Frank & Audrey John v. Metrolinx, 2023 CanLII 61509

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 04, 2023

CASE NO(S).: OLT-22-003902

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant: Frank & Audrey John

Respondent: Metrolinx

Description: Determination of compensation

Reference Number: Plan of Expropriation HR1784365

Property Address: 891 Orpha Street

Municipality: City of Burlington

OLT Case No.: OLT-22-003902

OLT Case Name: John v. Metrolinx

Heard: May 12, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Frank John and Audrey Dianne John (“Claimants”)	Leah Cumming
Metrolinx (“Respondent”)	Ian Mathany

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON May 12, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the first Case Management Conference (“CMC”) conducted in this Claim for compensation under the Expropriations Act (“the Act”), brought by the Claimants, Frank John and Audrey Dianne John against the Respondent, Metrolinx. The Claim arises out of the Expropriation of a temporary easement (“the Easement”) by the Respondent over and upon the property municipally known as 891 Orpha Street, Burlington (“Subject Property”). The Claimants are the owners of the Subject Property. The Expropriation of the Easement was for the purposes of the GO Expansion Project within the GO Lakeshore West Rail Corridor.

PROCEDURAL ORDER

2Counsel advised the Tribunal that the Parties were content with the provisions of a draft Procedural Order (“PO”), Issues List and Order of the Evidence which had been circulated to the Tribunal prior to the CMC. The Tribunal was advised that counsel had also canvassed the prospects for Mediation of the claim and that they had agreed to schedule a Mediation Assessment to be held during June 2023, and that the subsequent Mediation, if so advised, would be conducted on or before August 19, 2023.

3Counsel for the Parties also advised that they were prepared to set a Hearing date. Following consultation respecting the Tribunal’s calendar and the availability of the Parties, counsel and witnesses, a three-day Hearing on the Merits, by video conference was agreed upon, commencing on Wednesday, June 5, 2024, and running to Friday, June 7, 2024.

4The Tribunal has subsequently received and reviewed the revised draft of the PO, Issues List and Order of Evidence. The fixed dates for the Hearing on the Merits, are now provided in the PO appended to this Decision, and the coordinates for the hearings are set out below in this Decision.

5Appended to this Decision as Attachment 1 is the PO, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.

HEARING – June 5 TO 7, 2024

6For the three-day video hearing, commencing at 10 a.m. on Wednesday, June 7, 2024, and continuing to Friday, June 7, 2024, the Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Wednesday, June 5, 2024 to Friday, June 7, 2024.at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509 Audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889 Audio-only access code: 719-383-509

7Parties, witnesses and observers are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line provided above.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

10THE TRIBUNAL ORDERS THAT the Procedural Order appended as Attachment 1 to this Decision shall govern the conduct of this proceeding.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

MEMBER

Ontario Land Tribunal

Website: 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.

ATTACHMENT 1

ISSUE DATE: CASE NO(S).: OLT-22-003902 and OLT-22-004461

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, as amended:

Applicant(s)/Appellant(s): Frank John and Audrey Dianne John

Subject: Land Compensation

Property Address/Description: 891 Orpha Street

Municipality: City of Burlington

Municipal File No.:

OLT Case No.: OLT-22-003902 and OLT-22-004461

OLT File No.: OLT-22-003902 and OLT-22-004461

OLT Case Name: John, et al. v. Metrolinx

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on June 5, 2024 at 10:00 a.m. at [link to be provided by the Tribunal].

3. The parties’ initial estimation for the length of the hearing is three (3) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be provided on or before five (5) days of the hearing. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. The parties will proceed to a Tribunal led mediation on or before August 19, 2023 or on the earliest mutually convenient date thereafter.

10. Affidavit of Documents (together with production briefs of the documents) shall be delivered on or before September 8, 2023.

11. Discoveries shall be completed on or before October 1, 2023.

12. All undertakings provided at the Examination for Discovery shall be answered on or before November 3, 2023.

13. Any motion(s) arising out of the Examinations for Discovery shall be filed on or before November 17, 2023. The Motion(s) if necessary, shall be heard on a date and time to be determined by the Tribunal. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process. Should the parties agree that a motion day is not required, the parties agree to advise the Tribunal as soon as possible.

14. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before ninety (90) days before the hearing and in accordance with paragraph 27 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

15. Expert witnesses in the same field shall have a meeting on or before sixty (60) days and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before thirty (30) days before the hearing.

16. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 17 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

17. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 17 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 17 below.

18. On or before ninety (90) days before the hearing, the parties shall provide copies of their witness expert and witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 27 below.

19. On or before ninety (90) days before the hearing, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 27 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

20. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before forty-five (45) days after the evidence is received and in accordance with paragraph 27 below.

21. On or before fifteen (15) days before the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 27 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

22. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on the first day of the hearing.

23. Any documents which may be used by a party in cross-examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before the first day of the hearing, or in advance of the start of the cross-examination of any witness at the hearing.

24. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

25. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

26. The parties on or before thirty (30) days before the hearing shall confirm with the Tribunal if all the reserved hearing dates are still required.

27. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before fourteen (14) days before the hearing with a proposed schedule for the hearing that 00identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

28. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

29. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Party	Party Status	Counsel / Representative
Frank John and Audrey Dianne John	Claimants	RAYMAN HARRIS LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO #44649V) Tel: 416.597.5406 Fax: 437.222.9001 Email: shane@raymanharris.com Brynn Leger (LSO #77713P) Tel: 437.222.9003 Email: brynn@raymanharris.com Leah Cummings (LSO #78980W) Tel: 437.222.9004 Email: leah@raymanharris.com
Metrolinx	Respondent	M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Ian Mathany (LSO # 57197U) Tel: 416.947.6702 Email: ian@mhlawyers.ca Jessica Karban (LSO # 75541D) Tel: 416.947.6700 x 212 Email: jessica@mhlawyers.ca

Attachment 2

OLT File No.: OLT-22-003902 and OLT-22-00461

OLT Case No.: OLT-22-003902 and OLT-22-00461

ONTARIO LAND TRIBUNALS IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E.26 AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

FRANK JOHN and AUDREY DIANNE JOHN

Claimants

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues are as set out in the Pleadings filed with the Tribunal by the parties.

Attachment 3

1. Claimant’s witness in-chief
2. Claimant’s witness in cross-examinations
3. Respondent’s witness in-chief
4. Respondent’s witness in cross
5. Claimant’s Reply, if any