Motek Cultural Initiative v. Metrolinx, 2023 CanLII 66873

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 18, 2023

CASE NO(S).:

OLT-22-002362

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

Claimant:

Motek Cultural Initiative

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address:

1Atlantic Avenue

Municipality:

City of Toronto

OLT Case No.:

OLT-21-002362

OLT Lead Case No.:

OLT-21-002362

OLT Case Name:

Motek Cultural Initiative v. Metrolinx

Heard:

June 15, 2023

APPEARANCES:

Parties

Counsel/Representative

Metrolinx

A. Flarity

M. Cherkas (in absentia)

Motek Cultural Initiative C. Harris

S. Spitz (in absentia)

DECISION DELIVERED BY G.A. CROSER AND D. CHIPMAN ON JUNE 15, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter began when Metrolinx registered a Plan of Expropriation for the lands known municipally as 1 Atlantic Avenue (“Subject Lands”) on May 18, 2021. The Subject Lands contained a two-storey commercial building.

2The Claimant, Motek Cultural Initiative (“Motek”) occupied a unit in that building. A Notice of Expropriation and Statement of Claim were filed with the Tribunal by the Claimant on February 16, 2022. Since then, the Parties have appeared before the Tribunal on several occasions, with little forward momentum to resolving the matter.

3This Case Management Conference (“CMC”) was scheduled to provide the Tribunal with an update on the file’s progress and to discuss costs incurred as a result of the April 28, 2023 motion.

CONTEXT

4At the last appearance before the Tribunal on April 28, 2023, the Hearing dates were vacated as neither Party was in a position to proceed with a Merit Hearing in less than two months.

5Metrolinx brought forward a motion on April 28, 2023, requesting that the Claimant provide additional documentation to substantiate its claims, which would assist Metrolinx in its preparations for discoveries, or, in the alternative, that the claim be dismissed.

6Counsel for the Claimant reported that they would be receiving additional supporting documents. Motek was ordered by the Tribunal to provide a Supplementary Affidavit of Documents (“Supplementary AOD”) by May 5, 2023 –

a date agreed upon by both Counsel. While the Supplementary AOD was not provided on May 5, 2023, it was provided to Metrolinx at a later date.

7The Panel made it clear to Counsel present at the April 28, 2023 motion, and affirmed in its subsequent written decision, that the Parties were to cooperate and take steps to move this matter forward. This did not happen. While the Claimant did reach out to Metrolinx, this occurred the day before the June 15^th CMC. Metrolinx was of the view that this did not give it enough time to respond to the Claimant. However, the Tribunal notes that Metrolinx itself made no effort to establish a new draft Procedural Order nor to canvass discovery dates with the Claimant.

8This file has appeared before the Tribunal on several occasions without showing any signs moving forward to the next stage of the adjudicative process. The Tribunal is responsible for the fair, effective and efficient resolution of disputes. It is not appropriate for the Parties to use Tribunal time and resources to frustrate one another.

POSITION TAKEN BY METROLINX

9Metrolinx’s position is that the Supplementary AOD provided by the Claimant is inadequate. It argues that it cannot adequately prepare for discoveries based on the documents it has received to date. As such, it opposed rescheduling the Merit Hearing and requested that a motion date be set to compel the Claimant to provide even more documents to substantiate the Claimant’s damages claim.

10Metrolinx also noted that the Supplementary AOD was unsigned by the Claimant and was therefore incomplete.

11Metrolinx did not provide the Tribunal with a specific list of documents it required from Motek. Counsel for Metrolinx stated that the evidence it required would include various documents that substantiated the expenses contained within invoices that were payable by Motek Cultural Initiative.

12Metrolinx argued that the Claimant’s last-minute communication concerning the re-establishment of a Procedural Order did not provide it with sufficient time to reply before the June 15 CMC.

13With respect to costs, Metrolinx relied upon the outline of costs it had submitted prior to the April 28, 2023 motion date. Metrolinx argued that it has spent a considerable amount of time on this file, and requested costs on a substantial indemnity basis.

14Metrolinx referenced Vice-Chair Lanthier’s decision of August 8, 2022, Case No. 21-001603 (The Healthy Butcher Inc. v Toronto [City], Metrolinx, 2022 CanLII 73917 [ON LT]), during its submissions on the issue of costs and the need for another motion. Metrolinx used Lanthier’s decision as an example of a successful motion with respect to the production of a further Supplementary AOD and the award of costs for same.

15Metrolinx did not come before the Tribunal with an awareness of its own scheduling calendar and Counsel could provide no information concerning its availability for a Hearing on the merits of this matter.

POSITION TAKEN BY MOTEK

16The Claimant’s position was that it has provided Metrolinx with a Supplementary AOD and that any questions that Metrolinx has of these documents should be directed to the Claimant during the discovery process.

17Counsel for the Claimant stated that Metrolinx has been provided with the documents that were in the “possession, control or power” of Motek Cultural Initiative (“Motek”). Motek’s position is that Metrolinx will be provided an opportunity to test and question this evidence during examination for discoveries and that it can then make arguments on the veracity of evidence to the Tribunal at a hearing on the merits.

18Counsel for the Claimant suggested that it was common for a Supplementary AOD to be unsigned, and that this would be remedied during examination for discoveries.

19Counsel for the Claimant argued that, pursuant to Rule 23 of the Rules, costs can only be requested at the end of the Hearing event and must be done in writing.

20With respect to costs, Counsel for Motek also referenced The Healthy Butcher Inc. decision and, in particular, paragraph 46 of that decision. Counsel noted that Metrolinx was only awarded its costs on a partial indemnity basis for its success in that decision, and that the payment of costs was “to be held in abeyance, to be fixed or assessed by the Tribunal…upon [the] hearing and determination of the proceeding.” Motek suggested that if the Tribunal was to award costs for the motion to Metrolinx, the amount should be considered or used as an offset upon the resolution of the matter.

TRIBUNAL’S FINDINGS AND DIRECTIONS

Supplementary Affidavit of Documents

21Counsel for Motek indicated that the Supplementary AOD Affidavit of Documents (“Supplementary AOD”) contained all the documents presently “in the possession, control or power” of the Claimant. The Tribunal accepts this submission.

22In accordance with R. 26.16 of the Rules of Civil Procedure (“Civil Rules”), applied to examinations for discovery, the Civil Rules set out from s.30.02 to s.30.11 a Party’s obligations with respect to the scope, production, and contents of all documents relevant to any matter at issue in the claim. The Civil Rules on discoveries are designed to ensure that Parties have access to the information they need to argue their respective cases.

23If it is discovered that the Claimant has documents that were in its “possession, control or power” and did not disclose them, it can expect to be subject to substantial cost consequences for failing to make a full and frank disclosure.

24The Tribunal recognizes that Metrolinx may not find the evidence it has received to be as fulsome as it may have anticipated. Whether or not Motek has produced a sufficient evidentiary foundation upon which to substantiate its claims will be tested through discoveries and the subsequent Hearing on the merits of the matter. Speaking colloquially, it is time for Metrolinx to “play the hand it has been dealt.”

Motion for Additional Document Disclosure

25It is through the examination for discovery process that the Parties in an expropriation matter understand the facts of the case and the position taken by each side. This enables each side to efficiently and effectively prepare for a Hearing on the merits, or, alternatively, to find common ground to resolve the matter through negotiation and mediation.

26The Panel finds Metrolinx’s request for a date to schedule another motion to compel further documents to be premature. It would be more efficient and appropriate for Metrolinx to cross examine Motek on its Affidavit of Documents and Supplementary AOD at examination for discoveries and deal with any missing or substantiating information by way of undertakings. At this point in the proceedings, the Tribunal will not entertain another motion to request a further Supplementary AOD.

27If undertakings are not disclosed/produced according to the dates agreed upon by both parties in the draft Procedural Order, then Metrolinx may bring a motion at that point and/or make arguments at a Merit Hearing regarding the probative value of the evidence. However, Metrolinx is cautioned that the Tribunal will only consider such a motion if it will serve a meaningful purpose in moving this matter towards resolution.

28The Tribunal reminds the Parties that the duty to disclose is a continual one. Should the Claimant receive further documentation that is relevant to this matter, then it must disclose this additional information in a timely manner to Metrolinx.

Mediation

29At the CMC, the Panel suggested to the Parties that issues arising from the discovery process may be addressed through Tribunal led mediation. The Panel reminded the Parties of the availability of the Tribunal’s mediation services and that mediation is not just a tool to be utilized for the resolution of a matter.

30As per s.16 of the Ontario Land Tribunal Act, the Tribunal may, at any time before a Hearing is completed, direct the Parties to participate in mediation “for the purpose of resolving one or more issues in the proceeding.” This may be more practical and efficient than consuming an entire day of the Tribunal’s calendar for another CMC. The Parties are requested to first consider this approach before contacting the Case Coordinator to schedule a further CMC.

31Alternatively, the Panel will attempt to make themselves available for a Telephone Conference Call to address any minor post-discovery issue in an attempt to keep this file moving forward.

Unsigned Affidavit of Documents

32It is considered a best practice to have a Party sign its Supplementary Affidavit of Documents before it is provided to the opposing Party. The Tribunal acknowledges that it is a fairly common practice in civil litigation to provide an unsworn affidavit of documents that is remedied at the discovery stage. The Tribunal accepts the Claimant’s assertion that the Supplementary AOD will be signed by the Claimant during the discovery stage of this file.

Draft Procedural Order

33It is noted that Motek did not provide its Supplementary AOD in a timely manner and that efforts between the Parties to produce a draft Procedural Order as directed by the Tribunal were last minute, one-sided, and unsuccessful.

34Both Parties continue to expect a Hearing on the merits to take no more than four days. As the Parties in this matter are represented by experienced Counsel, the Tribunal expects cooperation in providing dates of availability to the Case Coordinator for the Hearing on the merits and were directed to provide a draft Procedural Order by June 22, 2023, for consideration by the Tribunal.

35Subsequent to the Decision rendered in this matter, the Tribunal received a draft Procedural Order, which is attached hereto as Schedule 1. The Parties provided their availability for a Merit Hearing, which has now been scheduled.

Scheduling of Hearing

36The Tribunal has scheduled a four (4) day Merit Hearing to proceed by video, commencing on Monday, October 23, 2023 at 10:00 a.m.

37Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/638422541

Access code: 638-422-541

38Parties and Participants 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.

39Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 638-422-541.

40Individuals 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.

TRIBUNAL FINDINGS

41The Panel has read Vice-Chair Lanthier’s comprehensive decision referenced by both Parties during submissions. The Tribunal recognizes that it is not bound by previous decisions, as each case turns on its own set of facts. In The Heathy Butcher Inc., Metrolinx had retained a business valuator who required specific financial documentation from the Claimant to assess certain foundational documents relating to the business loss report prepared by the Claimant’s expert. The Tribunal allowed that motion in part.

42The case in hand is distinguishable as Metrolinx has provided no list nor has mentioned any retention of business valuators or other experts who would require additional information from the Claimant.

43With respect to Motek’s argument that costs must be in writing, the Panel finds that Metrolinx did provide its costs request in writing. Further, in accordance with Rule 23.4(a) of the Rules, the Tribunal heard oral submissions on the matter of costs for the April 28 motion at the CMC of June 15, 2023.

44The Panel acknowledges Vice-Chair Lanthier’s treatment of costs in The Healthy Butcher Inc. case. However, the Panel is not prepared to make an award of costs at this point in the proceeding. It is expected that the Member(s) presiding over the Hearing on the merits of this matter will consider the entirety of this file’s record before the Tribunal, including the April 28, 2023 motion and all other appearances, when making a determination on costs, if the Parties make such a request of the Tribunal.

45In the event that a settlement is reached, the Parties are to immediately advise the Tribunal that the file may be closed, unless the Parties have been unable to resolve the matter of costs or the assistance of the Tribunal is required in some other capacity.

46With respect to meeting the directives of the Tribunal moving forward, the Panel would like to draw to the Parties’ attention to R. 23.8 of the Rules – the Tribunal “may make a costs award for conduct at any time during a proceeding” – and, to Rule 23.9(c) and (d) with respect to circumstances in which costs orders may be made. The Panel expects the Parties to be mindful of its obligations to the Tribunal and that Tribunal directions are Orders not suggestions.

ORDER

47THE TRIBUNAL ORDERS that:

a. The Merit Hearing is scheduled to commence on Monday, October 23, 2023 at 10:00 a.m. by video hearing for a period of four (4) days.

48The Panel remain seized and can be spoken to if direction is needed to address issues arising from examination for discoveries or related to any other matter related to the Decision.

“G.A. Croser”

G.A. CROSER

MEMBER

“D. Chipman”

D. CHIPMAN

MEMBER

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.

Schedule 1

CASE NO(S).: OLT-22-002362

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

Claimant:

Motek Cultural Initiative

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address:

1 Atlantic Avenue

Municipality:

City of Toronto

OLT Case No.:

OLT-21-002362

OLT Lead Case No.:

OLT-21-002362

OLT Case Name:

Motek Cultural Initiative 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, October 23, 2023 at 10:00 a.m. at https://global.gotomeeting.com/join/638422541.

Access code: 638-422-541

3. The parties’ initial estimation for the length of the hearing is four (4) 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 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.

9. Closing submissions are to be provided to the Tribunal in writing no more than three days after the oral hearing has concluded. Written submissions should be no more than 10 pages in length, single sided and double spaced.

Requirements Before the Hearing

10. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or before February 16, 2022.

11. The Respondent, Metrolinx, served and filed its Reply on or about March 11, 2022.

12. The parties shall exchange their respective Affidavits of Documents and Productions by Friday, May 5, 2023.

13. Examinations for Discovery of the representative of each party shall be completed on or before Monday, July 31, 2023.

14. Each party shall answer their respective undertakings arising from examinations for discovery on or before Tuesday, August 15, 2023.

15. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be brought in writing, and the moving party’s motion materials (including a Notice of Motion, supporting Affidavit, and Factum) shall be served on the opposing party and filed with the Tribunal on or before Wednesday, August 23, 2023. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion or as soon as possible thereafter.

16. 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.

17. 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 Wednesday, August 23, 2023 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.

18. Expert witnesses in the same field shall have a meeting on or before ten (10) days after the delivery of expert reports 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 fifteen (15) days prior to the start of the hearing.

19. 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 20 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.

20. 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 21 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 21 below.

21. On or before Wednesday, August 30, 2023, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 30 below.

22. On or before Wednesday, August 30, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 30 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

23. On or before twenty-five (25) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

24. On or before seven (7) days prior to the start of the hearing, 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.

25. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Wednesday, September 20, 2023 and in accordance with paragraph 30 below.

26. On or before seven (7) days prior to the start of the hearing, the parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before the first day of the hearing.

27. 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.

28. 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.

29. 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.

30. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days prior to the start of the hearing 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.

31. 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.

32. 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 Panel is not seized.

So orders the Tribunal.

ATTACHMENT 1 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

Motek Cultural Institute

Claimant

Rayman Harris LLP 250 The Esplanade Suite 202 Toronto, Ontario M5A 1J2 Conner Harris (LSO #66645E) T: 416.597.5422 conner@rbllp.com Leah Cummings (LSO #78980W) T: 437.222.9004 leah@rbllp.com

Metrolinx

Respondent

M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 christel@mhlawyers.ca

Aisling Flarity (LSO #65500B) Tel: 416.947.6700 x204 aisling@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No: OLT-22-002362

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:

MOTEK CULTURAL INITIATIVE

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues shall be those as set out in the pleadings delivered by the Parties.

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.