Don Valley Auto Centre Ltd. v. Metrolinx, 2023 CanLII 56710

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 21, 2023

CASE NO(S).: OLT-23-000012

PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant: Don Valley Auto Centre Ltd.

Respondent: Metrolinx

Description: Determination of compensation to be paid by Metrolinx

Reference Number: Expropriation Plan AT5799687

Property Address: 388 Carlaw Avenue

Municipality: Toronto

OLT Case No.: OLT-23-000012

OLT Lead Case No.: OLT-23-000012

OLT Case Name: Don Valley Auto Centre Ltd. v. Metrolinx

Heard: Motion in Writing

APPEARANCES:

Parties	Counsel
Metrolinx	C. Higgs, I. Mathany
Don Valley Auto Centre Ltd. (“Don Valley”)	S. Rayman, S. Spitz, L. Cummings

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

Link to Final Order

1 INTRODUCTION

1This matter involves motions brought by each of Metrolinx and Don Valley in writing only, at the direction of the Ontario Land Tribunal (“OLT” or “Tribunal”).

2Metrolinx by its Notice of Motion dated March 24, 2023 in relation to a hearing date of May 5, 2023 sought:

(a) An Order for Summary Judgment in favour of Metrolinx with respect to claims raised in paragraphs 26-66 in Don Valley Auto Centre Ltd. (“Don Valley”)’s Notice of Arbitration and Statement of Claim (“Claim”) on the grounds that such claims are outside the jurisdiction of the Tribunal, in accordance with Rule 15.4 of the OLT’s Rules of Practice and Procedure (“OLT Rules”) and Rule 20 of the Rules of Civil Procedure (“Civil Rules”);

(b) In the alternative, an order striking paragraphs 26-66 of Don Valley’s Claim, without opportunity to amend, on the grounds that such claims are outside the jurisdiction of the Tribunal, in accordance with Rule 15.4 of the OLT Rules and Rule 21.01(3)(a) of the Civil Rules; and

(c) An order for costs of this motion on a substantial indemnity basis, payable by the Claimant to Metrolinx forthwith.

3Don Valley responded to the Metrolinx motion on the merits but also filed its own independent Notice of Motion, also dated March 24, 2023 and seeking a May 5, 2023 hearing date, in which it sought:

(a) An Order striking certain provisions (“Impugned Paragraphs”) of the Metrolinx Reply to the Don Valley Claim pursuant to Rule 25.06 of the Civil Rules because it fails to comply with the rules of pleadings;

(b) An Order striking the Impugned Paragraphs of the Reply pursuant to Rule 25.11 of the Civil Rules because they are scandalous, frivolous, and vexatious, will prejudice and/or delay the fair trial of this case, and are an abuse of the process of this Tribunal;

(c) An Order permitting leave to amend the Reply only for a proper concise statement of material facts;

(d) An Order abridging the time for service and filing of this motion and/or validating or dispensing with service of this motion, if necessary; and

(e) An Order for costs of this motion on a full indemnity basis, payable by Metrolinx to Don Valley Auto forthwith, under Rule 57 of the Civil Rules and Rule 26.16 of the OLT Rules.

4The extensive materials filed on the Motions described above in paragraph [3] were:

(a) Metrolinx Motion Record, dated March 24, 2023, comprising 252 pages;

(b) Metrolinx Pleadings Brief, dated April 21, 2023, comprising 56 pages;

(c) Metrolinx Transcript Brief, dated April 21, 2023, comprising 108 pages;

(d) Metrolinx Factum, dated April 21, 2023, comprising 30 pages;

(e) Metrolinx Brief of Authorities, dated April 21, 2023, comprising 267 pages;

(f) Don Valley Responding Motion Record, dated April 6, 2023, comprising 197 pages;

(g) Don Valley Responding Factum, dated May 1, 2023, comprising 50 pages;

(h) Don Valley Responding Book of Authorities, dated May 1, 2023, comprising 435 pages;

(i) Don Valley Motion Record, dated March 24, 2023, comprising 171 pages;

(j) Don Valley Factum, dated April 21, 2023, comprising 29 pages;

(k) Don Valley Book of Authorities, dated April 21, 2023, comprising 433 pages;

(l) Metrolinx Responding Motion Record, dated comprising xx pages;

(m) Metrolinx Responding Factum, dated May 1, 2023, comprising 28 pages; and

(n) Metrolinx Responding Brief of Authorities, dated May 1, 2023, comprising 203 pages.

2 METROLINX SUMMARY JUDGMENT MOTION/MOTION TO STRIKE

5In its Factum, Metrolinx repeats some aspects of the relief sought as set out above in paragraph 2 but then refines and narrows its request for summary judgment as emphasized in the passage below:

“1. …Metrolinx… seeks Summary Judgment to dismiss the…Claim… of…Don Valley Auto Centre Ltd…. with leave to amend to make permissible claims, on the grounds that the Claim contains claims that are outside the jurisdiction of the Tribunal”

[above emphasis added]

6The effect of the distinctions noted in paragraph [5] seems to be that Metrolinx no longer seeks a summary judgment Order to dismiss only certain paragraphs of Don Valley’s Claim, but instead argues for a complete dismissal of the Claim albeit with leave to amend.

7The alternative relief sought as expressed in the second paragraph of Metrolinx’s Factum is the same as the alternative relief described in its original Notice of Motion as repeated in paragraph 2 above: that is, an Order striking out solely paragraphs 26 to 66 of the Claim – without leave to amend - based on the position that those paragraphs state a claim outside the jurisdiction of this Tribunal.

8It is unclear to the Tribunal why Metrolinx decided to pursue these two very similar remedies in this manner. It may be that Metrolinx determined that it may not meet the accepted test for summary judgment and thus essentially framed an alternative remedy of striking key paragraphs of the Claim that, in the view of Metrolinx, describe a claim that this Tribunal cannot legally adjudicate.

9In any event, Metrolinx pleads reliance on Rule 15.4 of the OLT Rules of Practice and Procedure (“Rules”) which states:

“RULE 15 SCREENING…

15.4 Dismissal of Proceeding without a Hearing The Tribunal may, on its own initiative and without a hearing event, dismiss a matter by adjudicative order where:

(a) the initiating matter is frivolous, vexatious or is commenced in bad faith;

(b) the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

Before dismissing a matter, the Tribunal shall provide appropriate notice of the intended dismissal to the party who has initiated the proceeding and any appropriate statutory parties to the proceeding. All parties who receive such notice may make written submissions on the dismissal within the timelines set out in Rule 10.”

[above emphasis added]

10Of course, this is not a situation where the Tribunal has proceeded ‘on its own initiative to dismiss a matter by an adjudicative order’. Instead, Metrolinx has brought a motion for that remedy.

11Metrolinx also relies on section 19(c) of the Ontario Land Tribunal Act S.O. 2021, c. 4, Sched. 6 (“OLTA”) which provides that:

“Dismissal without a hearing

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

Notice

(2) The Tribunal shall give the parties notice of its intention to dismiss the proceeding, setting out the reasons for the dismissal and informing the parties of their right to make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.

Submissions

(3) A party who receives a notice under subsection (2) may make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.

Dismissal

(4) The Tribunal shall not dismiss a proceeding under subsection (1) until it has given notice under subsection (2) and considered any submissions made under subsection (3).

Application

(5) For greater certainty, this section applies instead of section 4.6 of the Statutory Powers Procedure Act.”

[above emphasis added]

12Obviously, section 19(1) of OLTA provides the statutory basis for Rule 15.4 but among other aspects does refer to a dismissal sought by ” …on the motion by any party.”, which of course corresponds to the circumstances of this Metrolinx motion. Section 19 of OLTA expressly applies instead of section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S22 (“SPPA”) by virtue of section 19(5) but incorporates reference to circumstances set out in section 4.6(1) of the SPPA which in turn states:

“Dismissal of proceeding without hearing

4.6 (1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.”

[above emphasis added]

13By a (necessary) circuitous route then, Metrolinx apparently takes the position on its Motion for Summary Judgment that the combined effect of Rule 15.4 of the OLT Rules, section 19(c) of OLTA and section 4.6(1) of the SPPA, this Tribunal is permitted to dismiss a matter without a hearing if it relates to matters outside the jurisdiction of the OLT. The Tribunal agrees, but declines to do so in this case for the reasons that follow.

14It is interesting that Metrolinx – and Don Valley – also make reference to and rely on Rule 20 of the Civil Rules which sets out the requirements relating to the granting of summary judgment in Ontario civil actions. Certainly, there is no express and specific summary judgment provision contained in the OLT Rules which may explain this. Certainly, the Tribunal and its predecessors has applied Rule 20 in past jurisprudence, as cited in the Parties’ Briefs of Authorities.

15However, the Tribunal notes that it is not strictly bound to apply the Civil Rules in OLT proceedings, even those under the Expropriation Act, R.S.O. 1990, c.E26 (“EA”), except in very specific circumstances. This is expressed in the OLT Rules as follows:

“1.1 Authority and Application

Authority: These Rules are made under the authority of subsection 13(1) of the OLT Act.

Application: These Rules apply to all matters and proceedings before the Tribunal unless otherwise specified.

1.4 Matters Not Dealt With in the Rules The Tribunal may at any time in a proceeding before it make orders and direct practices and procedures that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding and may exercise any of its powers under the OLT Act, the SPPA, or other applicable legislation. If these Rules do not provide for a matter of procedure, the Tribunal may adopt or follow the procedures set out in the Rules of Civil Procedure where appropriate and do whatever is necessary to adjudicate effectively and completely to resolve the merits of any dispute on any matter. If the Tribunal does not provide for a particular form, then the Tribunal may adopt, or modify the applicable form in the Rules of Civil Procedure to apply to any proceeding before the Tribunal.

3.1 Computation of Time Time is computed under these Rules or in a Tribunal order in accordance with the Rules of Civil Procedure unless otherwise provided.

9.1 Order for Discovery The Tribunal may make an order for discovery for a party to obtain necessary information from another party… The Tribunal may order:

(a) the examination of a witness before the commencement of a proceeding (under the Rules of Civil Procedure)

9.2 Rules of Civil Procedure Apply to Proceedings Following Order for Discovery If an order for discovery is obtained, then any production obligations continue to apply in the course of the proceeding with respect to the production of materials and documents subsequently obtained

26.13 General Rule for Service of Documents Service of documents may be made, in addition to the methods set out in subsection 1(2) of the Act:

…(b) in the case of a municipal or other corporation, partnership or individual, on the persons prescribed by the Rules of Civil Procedure.

26.16 Applicability of Rules of Civil Procedure No Tribunal order is required for examinations for discovery or documents. The Rules of Civil Procedure apply to proceedings under this Part unless the Tribunal on motion orders otherwise.

26.23 Notice for Expert Reports If the Rules of Civil Procedure specify a greater notice period for appraisal or other expert reports than under subsection 28(1) of the Act, the greater notice period applies.

26.25 Settlement Offer If an offer to settle is made and it is not dealt with in the Act, the Rules of Civil Procedure apply.”

[all above emphasis added]

16Therefore, in this Tribunal’s view, there is no mandatory requirement that the Tribunal to refer to or apply Rule 20 of the Civil Rules unless it believes that to do so would provide the best available remedy in the circumstances of this case. Put another way, this Tribunal prefers not to encourage a Party to seek a summary judgment ruling and to thereby import the considerable jurisprudence relating to Rule 20 of the Civil Rules absent some compelling reason to do so.

17Summary judgment is a remedy more suited to Ontario Superior Court proceedings, and this Tribunal is mindful of its overall mandate under both OLTA and the OLT Rules. Under section 12(2) of OLTA, this is expressed as follows:

“Fair, just and expeditious resolution

(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings”

[above emphasis added]

18In this Tribunal’s determination, the same point is equally applicable to Rules 21 and 25 of the Civil Rules. Simply put, it is the view of this Tribunal that if it was to enthusiastically encourage the adoption of summary judgment motion practice, pleading motion practice and other procedures commonly available in Superior Court actions this could distract – or even detract - from the objectives described above in paragraph [18].

19This is not to be construed as a finding that the OLT will never consider and apply Rules 20, 21 and 25 of the Civil Rules but rather the expression of a determination that the Tribunal has the discretion to decide not to do so except in compelling circumstances. A clear analogous example would be the common practice of the Tribunal in expropriation proceedings to refer to and apply the provisions of Rule 30 and 34 of the Civil Rules in relation to disputes arising from examinations for discovery – those Rules provide necessary, required substance and procedure for important steps in the proceedings in a situation where none are provided in the OLT Rules.

20Happily, in this proceeding, the Tribunal has determined that it is unnecessary to utilize Rule 20 of the Civil Rules in order to expeditiously render a fair ruling that properly takes into account the key arguments made by both Metrolinx and Don Valley.

21Under the provisions of OLTA, the SPPA and the OLT Rules identified above , for the reasons expressed above in this Part 2, the jurisdictional arguments made by Metrolinx can be more simply evaluated. The question is simply whether there are any aspects of Don Valley’s Claim as pleaded that are clearly beyond the Tribunal’s jurisdiction to grant. In the Tribunal’s view, this does not require it to weigh volumes of currently available competing evidence or to wait until a merits hearing to adjudicate a factual issue. Nor does the Tribunal need to depend upon strict adherence to the detailed provisions of the Civil Rules applicable to motions to strike pleadings.

22Counsel for both Metrolinx and Don Valley agree that the OLT has exclusive jurisdiction over this proceeding under the EA and OLTA, as stated in Metrolinx’s factum as follows: “Pursuant to Section 26 of the Expropriations Act, the Tribunal has exclusive jurisdiction to hear disputes over compensation for expropriations in Ontario”.

23However, Metrolinx argues that Paragraphs 26-66 of the Claim (“Impugned Claims”) pertain solely to allegations that Metrolinx breached its obligations under the 2019 lease that governs Don Valley’s use of the premises (“Carlaw Lease”) located at 388 Carlaw Street in Toronto (“Carlaw Property”). Metrolinx argues that the Carlaw Property was not the subject of Metrolinx’s expropriation on July 15, 2021 of a separate property, 10 Dickens Street (“Expropriation”) that is located on the opposite side of the roadway across from 388 Carlaw Street. That property was owned by 802087 Ontario Limited a different corporation than the one which owned the Expropriation property, 10 Dickens, being Carlaw Industrial Centre Limited (although both entities share a common director). However, Metrolinx states that it did acquire 388 Carlaw Street under a separate agreement of purchase and sale on December 15, 2021 that was not part of its earlier Expropriation.

24On the other hand, Metrolinx concedes that any claims of Don Valley that are causally connected to its Expropriation of 10 Dickens Street may be properly pursued in the Claim. This arises in part due to an allegation by Don Valley in its Claim that it had an interest in 10 Dickens Street to use certain parking spaces there by virtue of its rights under the Carlaw Lease. That allegation is disputed by Metrolinx in its Reply but that disagreement is not the issue being raised by Metrolinx on its motion. As stated by Metrolinx in its Factum:

“…to be clear, whether the Claimant can make a claim for losses under the Expropriations Act for its alleged interest in 10 Dickens is not a matter in dispute in this Summary Judgment motion”

25What Metrolinx takes issue with are the numerous allegations in Impugned Claims that relate to what it portrays as alleged breaches of the Carlaw Lease arising after Metrolinx assumed the obligations owed to Don Valley under the Carlaw Lease after Metrolinx purchased the Carlaw Property. Metrolinx contends that the commercial tenancy dispute between Don Valley as tenant and Metrolinx as new owner/landlord cannot be adjudicated before the OLT, whether it is grounded in the Carlaw Lease or has arisen as alleged ‘tortious interference with business relations’ in relation to that tenancy. Counsel for Metrolinx maintains that:

“The foregoing contractual disputes are wholly unrelated to Metrolinx’s expropriation of 10 Dickens, which was owned by a separate legal entity and located on the other side of a municipally owned roadway”

26This matter becomes more complex due to the fact that Metrolinx’s purchase of the Carlaw Property Lands occurred via an Offer to Sell Fee Simple Interest, on December 15, 2021 – six months after registering the Expropriation Plan against title to 10 Dickens Street. Metrolinx maintains that: “…While the Offer to Sell did include a settlement of the claims of 802087 arising out of Metrolinx’s expropriation of 10 Dickens, Metrolinx’s purchase of the Carlaw Lands was not a Section 30 Agreement and did not constitute an expropriation of the Carlaw Lands.”

27Metrolinx further argues in its Factum that:

“Nowhere in the Offer to Sell is it described as a section 30 agreement, and its structure is completely different from that of a section 30 agreement. In particular, para 2.3 (d) of the Offer to Sell states that “Registration of [a] Plan of Expropriation shall not operate to repudiate or alter this Agreement, save and except for the obligation of the parties to complete the conveyance of the Dickens Lands to Metrolinx…”. As further noted in the agreement: “Section 2.3 [Agreement to Expropriate] shall survive the Closing or earlier termination of this Agreement.”

28Metrolinx maintains that the allegations set out above in paragraph [27] demonstrate that the Offer to Sell is not a section 30 agreement, because a section 30 agreement “is an alternative to an expropriation, not an adjunct to it.” A “Section 30 Agreement” refers to an agreement made under Section 30 of the EA which provides that:

“Application, if no expropriation

30 (1) If the owner of land consents to the acquisition of the land by a statutory authority, the statutory authority or the owner, with the consent of the other, may apply to the Tribunal for the determination of the compensation to which the owner would be entitled by this Act if the land were expropriated, and the Tribunal may determine the compensation. 2021, c. 4, Sched. 6, s. 48 (7).

Same

(2) For the purposes of subsection (1), the compensation shall be assessed as of the date on which the consent to the acquisition is given, subject to any agreement of the parties. 2021, c. 4, Sched. 6, s. 48 (7).

29Unsurprisingly, counsel for Don Valley characterizes matters quite differently. Indeed, it is through the Tribunal’s review of the Responding Motion Record and Responding Factum of Don Valley that the true underlying rationale for both Motions becomes clearer. Early in the Responding Factum Don Valley’s counsel succinctly states:

“Metrolinx expropriated 10 Dickens and acquired the remaining lands.. [the Carlaw Property]…by agreement of purchase and sale. Its unfounded attempt to treat its expropriation of the parking lot as separate from its acquisition of 388 Carlaw is the source of the dispute on this motion…

Metrolinx has provided no evidence as to what the “structure” of a section 30 agreement is or ought to be. This is—at its core—an acquisition of property by a statutory authority for a public purpose with the consent of the landowner. Both properties were acquired by a public authority for the purpose of constructing the Ontario Line”

30Counsel for Don Valley complains that Metrolinx has refused to produce adequate documentation or relevant communications to explain why it purchased the Carlaw Property and how that might be related to the Expropriation. Then more than 20 paragraphs in the Responding Factum are expended on an extensive detailing of the various disputes that arose between Don Valley and Metrolinx relating to allegations of interference with the parking lot at 10 Dickens Street; improper deletion of certain provisions of the Carlaw Lease; disputes concerning the responsibility for alleged floor slab problems on one of Don Valley’s leased units; attempts to repair those problems; the intercession of a local MPP who made efforts to advocate for Don Valley in relation to Metrolinx’s activities; the threatened termination by Metrolinx of the Carlaw Lease; the withdrawal of that threat to terminate; ongoing delays in the floor slab repair exercise; business losses sustained by Don Valley in relation to all of the foregoing; the identity of the common director of Carlaw Industrial Centre Limited (former owner of 10 Dickens) and 802087 Ontario Limited (former owner of the Carlaw Property).

31Certainly, the Factum of Metrolinx is no less factually rich in its description of underlying events related to the obvious tenancy disputes between it and Don Valley. Cross examination of the deponent of the Affidavit filed by Metrolinx in support of its Motion was conducted, during which some of the factual context was explored.

32The Tribunal does not find it necessary to conduct a detailed summary judgment analysis nor a review of the considerable summary judgment jurisprudence cited by counsel for both Parties, for the reasons already noted above. In any event, based on its careful review of the many competing factual contentions made in both Metrolinx’s Factum and in Don Valley’s Responding Factum, it is the Tribunal’s view that there are obvious, significant issues of factual dispute that cannot be properly resolved by motion at this juncture. If the Tribunal had chosen to consider and apply Rule 20 of the Civil Rules, this would be fatal to the summary judgment motion. By itself, the transcript of the cross-examination conducted by Don Valley’s counsel on the affidavit filed by Metrolinx in support of its motion demonstrates the conflicting alleged facts that do not support a summary judgment ruling.

33From the standpoint of the powers of the OLT under OLTA and its own Rules to dismiss claims that are not within its jurisdiction, the Tribunal is unconvinced that the Impugned Claims relate to matters not within the jurisdiction of the OLT. The Impugned Claims do not so clearly fall outside the jurisdiction of the Tribunal under the EA to determine the compensation that could be owed to Don Valley as the tenant under the Carlaw Lease in relation to its possible interests/rights in the Expropriation property at 10 Dickens Street so as to warrant complete dismissal at this early stage of this case.

34On the other hand, several paragraphs of the Claim, including in the Impugned Claims – and also in the Responding Factum of Don Valley - certainly contain a mash-up storyboard of evidentiary content and pure argument that is unnecessary, irrelevant and unlikely to be helpful to the Tribunal in its eventual adjudication of the merits of this case (or to the Parties as they proceed through examinations for discovery).

35Many elements of the Claim’s paragraphs 18, 25, 27, 28, 29, 32, 33, 34, 36, 38-42 inclusive, 43, 44, 46, 48, 49 and 52-60 inclusive, fall into the category described in paragraph [35]. Although this Tribunal will make no Order in this regard, it strongly recommends that Don Valley consider amending and shortening these paragraphs to remove the unnecessary chronological-format evidence and argumentative flair in favour of concise statements of material fact only. Similar comments will be made below about Metrolinx’s Reply.

3 DON VALLEY MOTION TO STRIKE IMPUGNED PARAGRAPHS OF METROLINX REPLY

36The Tribunal repeats its strong preference that Parties before the OLT avoid the importation from the Civil Rules of aggressive, highly technical tactics – that are ultimately unnecessary. In particular, Rule 25.06 and Rule 25.11 have no counterparts in the OLT Rules, which is unsurprising given the mandated approach to be employed by the Tribunal as discussed in Part 2 above. Certainly, the Tribunal recognizes that proceedings under the EA constitute a form of civil litigation that is dissimilar to most other OLT proceedings. On rare occasions, it may be necessary for one Party to seek refinement in the pleadings of the opposing Party so that the issues for determination are clearly delineated in the interests of clarity and to promote fairness. However, in this Tribunal’s view, this is not one of those instances.

37Don Valley’s Motion to Strike certain paragraphs of the Metrolinx Reply is also not well-founded and seems merely to be a tactical response to Metrolinx’s Summary Judgment Motion as can be rather easily inferred from paragraph 17 of Don Valley’s Notice of Motion. Moreover, it strikes the Tribunal as quite ironic, in light of the observations made in Part 2 above, that Don Valley would criticize the content of the Metrolinx Reply.

38The Tribunal agrees with Don Valley’s contention that the Metrolinx Reply demonstrates the hallmarks of legal argument submissions rather than those of a proper pleading – just as does much of Don Valley’s unnecessarily prosaic Claim. Clearly, Metrolinx (and/or its counsel) took umbrage at the content of the Statement of Claim and used its Reply as a vehicle to deliver its strong contrary arguments and to cite considerable supporting evidence. Yet, this is not the proper purpose of a Reply – or of any other pleading for that matter.

39Don Valley relies on Rule 25.06 of the Civil Rules which states:

“Rules of Pleading — Applicable to all Pleadings

Material Facts

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06 (1).

Pleading Law

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. R.R.O. 1990, Reg. 194, r. 25.06 (2).

Documents or Conversations

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material. R.R.O. 1990, Reg. 194, r. 25.06 (7).

[above emphasis added]

40A review of the Pleadings Brief filed by Metrolinx for these motions reveals that neither Party followed the precepts of Rule 25.06. Both Parties dumped plentiful servings of evidence and argument into their respective pleadings - and reiterated ad nauseum the contents of various correspondence between them in a gleeful display of tit for tat. Paragraphs 11, 12, 13, 19, 28, 29, 35, 37, 38 and 47 are the best examples of this contained in the Metrolinx Reply.

41In these circumstances, the Tribunal shall make no Order concerning the content of the Metrolinx Reply – but, as it also urged Don Valley, encourages Metrolinx to rethink its approach and to excise the unnecessary legal argument and evidence from its pleading in favour of a succinct pleading of material facts only.

42Indeed, if both Parties and their counsel devoted less energy to pitched battle at this stage and more directed to proper scoping of their approach to this case, the result would be a much leaner and sensible set of pleadings – and perhaps even could increase the prospects for a future mutually satisfactory resolution or at least a more efficient course of litigation. In the Tribunal’s view, the efforts of the Parties’ counsel would be better directed to the prompt scheduling and completion of all required examinations for discovery, rather than to attacks and counter-attacks on pleadings.

4 MOTION COSTS

43The Tribunal will make no ruling awarding costs on the basis that:

(a) Neither the Motion by Metrolinx or by Don Valley was successful;

(b) Neither of the Motions brought served to advance the fair, expeditious resolution of the merits of this dispute;

(c) The Tribunal declines to exercise its discretion to consider and apply the costs provisions of the Civil Rules; and

(d) Neither Party has satisfied the Tribunal that costs ought to be awarded pursuant to the OLT Rules

ORDER

44The Tribunal Orders that the Motion of Metrolinx set out in its Notice of Motion dated March 24, 2023 is dismissed without costs.

45The Tribunal Orders that the Motion of Don Valley Auto Centre Ltd. set out in its Notice of Motion dated March 24, 2023 is dismissed without costs.

46The Tribunal Orders that the Parties’ counsel shall meet and confer (virtually or in person at their choice) within 10 days of the date of this Decision for the purpose of:

(a) advising the Tribunal as to their available dates in 2023 for a Case Management Conference which will be scheduled by the Tribunal on notice to the Parties; and

(b) the development of a Procedural Order to govern the future conduct of this case.

48This Vice-Chair will assist the Parties with the ongoing case management of this proceeding.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.