Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 11, 2023

CASE NO(S).: OLT-23-000398

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

Claimants: Howard Weisberg, Barrister and Solicitor

Respondent: Metrolinx

Description: Determination of compensation

Reference Number: Expropriation Plan No. AT5880352

Property Address/Description: 4651 Sheppard Avenue East

Municipality: Toronto

OLT Case Nos.: OLT-23-000398

OLT File Nos.: OLT-23-000398

OLT Case Name: Weisberg v. Metrolinx

Heard: July 6, 2023 by videoconference hearing

APPEARANCES:

Parties Counsel

Howard Weisberg (“Claimant”) Jeff Goldstein

Metrolinx Jessica Karban

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON JULY 6, 2023 AND ORDER OF THE TRIBUNAL

1This proceeding involves an action by the Claimant brought under the Expropriations Act, R.S.O. 1990, c.E.26 for damages arising from the expropriation by Metrolinx of the lands municipally known as 4651 Sheppard Avenue East in the City of Toronto (“Subject Property”). The Claimant was a commercial tenant of certain premises at the Subject Property.

2A first Case Management Conference (“CMC”) was held on July 6, 2023, during which the counsel for the Parties sought, on consent, a 3-day hearing and, at the suggestion of the Tribunal, a further CMC in advance of that hearing. The Parties had also submitted a draft Procedural Order (“PO”) for the Tribunal’s consideration.

3The Tribunal has scheduled a CMC to take place on Tuesday, January 23, 2024.

4The Tribunal has scheduled a hearing for this matter to commence on June 3, 2024, for a period of three days ending on June 5, 2024.

5The hearings are scheduled to proceed by video as follows:

Second CMC Tuesday, January 23, 2024 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 687-587-165 Three Day Hearing Monday, June 3, 2024 at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only line: (Toll Free) 1 888 299 1889 or +1 (647) 497-9373 Audio-only access code: 558-205-565

6The 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.

7Parties 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.

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.

10The Parties’ counsel enquired about mediation and the Tribunal advised them to contact the Case Coordinator with carriage of this matter if they wish to arrange a mediation with the Ontario Land Tribunal mediation facility.

ORDER

11THE TRIBUNAL ORDERS THAT:

(a) A further Case Management Conference will be held on January 23, 2024, the details of which are noted in paragraph [5] above;

(b) The hearing of this proceeding shall commence on June 3, 2024, the details of which are noted in paragraph [5] above; and

(c) The Procedural Order appended as Attachment A shall govern the conduct of this matter.

12This Vice Chair shall remain available to assist with the case management of this proceeding, subject to the Tribunal’s scheduling requirements.

“William Middleton”

WILLIAM 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.

Attachment A

Ontario Land Tribunal

Tribunal ontarien de d’aménagement

du territoire

ISSUE DATE:

CASE NOS.: OLT-23-000398

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

Claimants: Howard Weisberg, Barrister and Solicitor

Respondent: Metrolinx

Subject: Claim for Disturbance Damages

Property Address/Description: 4651 Sheppard Avenue East

Municipality: City of Toronto

OLT Case Nos.: OLT-23-000398

OLT File Nos.: OLT-23-000398

OLT Case Name: Howard Weisberg, Barrister and Solicitor 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 Monday, June 3, 2024 at 10:00 a.m. at:

GoTo Meeting: https://meet.goto.com/558205565

Access code: 558-205-565

Audio-only line: (Toll Free) 1 888 299 1889 or +1 (647) 497-9373

Audio-only access code: 558-205-565

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 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 as set out in Attachment 3 to this Order. 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 Claimant served and filed a Notice of Arbitration and Statement of Claim on May 19, 2023.

10. The Respondent, Metrolinx, served and filed its Reply on June 6, 2023.

11. The parties shall exchange their respective Affidavits of Documents and Productions by August 25, 2023.

12. Examinations for Discovery of the representative of each party shall be completed on or before October 31, 2023.

13. Each party shall answer their respective undertakings arising from examinations for discovery on or before November 30, 2023.

14. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be filed with the Tribunal by Monday January 15, 2023 and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal.

15. Further answers to undertakings, questions taken under advisement, and/or refusals, further examinations for discovery, and/or further productions arising from a motion are to be answered, held, and/or provided within thirty (30) days of the discovery motion before the Tribunal.

16. 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 Tuesday, March 5, 2024 and in accordance with paragraph 30 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.

17. Expert witnesses in the same field shall have a meeting on Tuesday, April 9, 2024 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 Friday, April 19, 2024.

18. 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 30 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.

19. 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 30 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 30 below.

20. On or before Thursday, April 4, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 30 below.

21. The Tribunal will conduct a Case Management Conference on Tuesday, January 23, 2024 with a view to use best efforts to try to resolve or reduce the issues for the hearing or scheduling a motion, if necessary, on a date that is mutually agreed by the parties and the Tribunal.

22. On or before Monday, May 6, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

23. On or before Monday, May 27, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 30 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

24. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Monday, May 6, 2024 and in accordance with paragraph 30 below.

25. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before the Friday, May 17, 2024.

26. 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.

27. 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.

28. 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.

29. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Thursday, April 4, 2024 with a proposed schedule for the hearing that identifies, 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.

30. 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.

31. 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.

ATTACHMENT 1 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

Howard Weisberg, Barrister and Solicitor

Claimant

GOLDSTEIN LAW FRIM 306 Manning Avenue Toronto, Ontario M6J 2K9 Jeff Goldstein (LSO# 67763B) T: 647.838.6740 F: 416.352.1252 jeff@goldsteinlawyers.ca

Metrolinx

Respondent

M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: (416) 947-6701 Fax: (416) 947-6703 Email: christel@mhlawyers.ca

Jessica Karban (LSO #75541D) Tel: (416) 947-6700 ext. 212 Fax: (416) 947-6703 Email: jessica@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No.: OLT-23-000398

ONTARIO LAND TRIBUNAL 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:

HOWARD WEISBERG BARRISTER AND SOLICITOR

Claimant

• and -

METROLINX

Respondent

REPLY

1. The issues are as set out in the Pleadings filed with the Tribunal by the parties, as amended, listed below:

a. The Notice of Arbitration and Statement of Claim, served May 19, 2023, dated May 9, 2023; and

b. Reply of Metrolinx, dated June 6, 2023.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Claimant’s evidence in-chief

2. Claimant’s evidence in cross-examination

3. Respondent’s evidence in-chief

4. Respondent’s evidence in cross-examination

5. Claimant’s reply, if any.