Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 2, 2023

CASE NO(S).: OLT-21-001498

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

Claimant: York Professionals Inc.

Respondent: Regional Municipality of York

Subject: Determination of compensation

Description: Newmarket and Bogart Creek Sewage Pumping Stations

Property Address: 567 Davis Drive (567 Davis Drive)

Municipality/UT: Newmarket/York

OLT Case No: OLT-21-001498

OLT Lead Case No.: OLT-21-001498

OLT Case Name: York Professionals Inc. v. York (Regional Municipality)

Heard: June 29, 2023, by video hearing

APPEARANCES:

Parties	Counsel
York Professionals Inc. (Claimant)	Connor Harris Leah Cummings
The Regional Municipality of York (Respondent)	Michael Grant

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON JUNE 29, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1By Order of the Tribunal dated April 5, 2023, pursuant to the provisions of Rule 19.1 of the Tribunal’s Rules of Practice and Procedure, this Case Management Conference (“CMC”) was scheduled for the purpose of addressing the matters in Sub-Rules 19.1(f), of the Tribunal’s Rules of Practice and Procedure, and to fix a date, place and format for the Hearing pursuant to Sub-Rule 19.1(i). As directed by the Tribunal, a draft Procedural Order was submitted prior to the CMC.

PROCEDURAL ORDER (“PO”)

2A draft PO, Issues List (“IL”) had been circulated between counsel and the Tribunal prior to the CMC. After amendment to paragraph 16 of the draft PO respecting any possible Motion arising from the Examinations for Discovery, and to paragraph 36 respecting the timing for the Mediation Assessment for a date on or after Friday, March 29, 2024, Counsel advised the Tribunal that the Parties were content with the provisions of a draft PO and IL

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 five-day earing on the merits, by video was agreed upon, commencing on Monday, June 3, 2024, to Friday, June 7, 2024.

4The Tribunal has subsequently received and reviewed the revised draft of the PO and IL. The fixed dates for the Hearing on the merits, are now provided in the PO appended to this Decision, and the coordinates for the Hearing 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 Arbitration.

HEARING DATES

6The five-day Hearing is scheduled to proceed by video commencing at 10 a.m. on Monday, June 3, 2024, and continuing to Friday, June 7, 2024.

7Parties and Participants 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:

https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

8Parties 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

9Persons 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: (Toll Free): 1-888-299-1889 or (647) 497-9373. The access code is as indicated above

10Individuals 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

11The Tribunal so Orders and provides these Case Management Conference directives for the purposes of the case management of this Proceeding.

12There shall be no further notice.

13This Member is not seized.

“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.

CASE NO(S).: OLT-21-001498

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, as amended and in the matter of an Arbitration:

Applicant(s)/Appellant(s): York Professionals Inc. Subject: Disturbance Damages and/or Injurious Affection Property Address/Description: 567 Davis Drive Municipality: Regional Municipality of York OLT Case No.: OLT -21-001498 OLT File No.: OLT -21-001498 OLT Case Name: York Professionals Inc v. The Regional Municipality of York

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

Ontario Land Tribunal 655 Bay Street 16th Floor Toronto, Ontario

3. The parties’ initial estimation for the length of the hearing is five (5) 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 issues at the hearing shall be those set out in the pleadings filed, including such amendments, if any, as may be permitted by the Tribunal.

5. The order of evidence shall be provided on or before seven (7) days before 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.

6. 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 phone number as soon as possible.

7. 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.

8. Adjournments will not be granted during the hearing except on the grounds of serious hardship or illness.

9. Counsel shall provide the Tribunal with three copies of a written summary of their oral submissions at the time of presenting the submissions.

10. The written summary of oral submissions shall state that the party has no submissions with respect to a part or parts of the evidence, if that is the case.

Requirements Before the Hearing

11. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or before November 24, 2021.

12. The Respondent, The Regional Municipality of York, served and filed its Reply on or about October 14, 2022.

a. Discovery Process

13. The parties shall exchange their respective Affidavits of Documents and Productions by May 19, 2023.

14. Examinations for Discovery of the representative of each party shall be completed on nor before August 4, 2023. The parties consent to conducting examinations for discovery by way of videoconference.

15. Each party shall answer their respective undertakings arising from examinations for discovery on or before September 29, 2023.

b. Motions

16. Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard on November 17, 2023 and will be held by way of videoconference or teleconference, or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall notify the Tribunal, on consent, by October 13, 2023, if that date can be released

17. Further answers to undertaking, 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 one month of the discovery motion before the Tribunal.

c. Evidence

18. “Written evidence” includes all written material, letters, reports, studies and documents which a party intends to present as evidence at the hearing. Written evidence shall have consecutively numbered pages and, where appropriate, consecutively numbered paragraphs.

19. “Expert Report” means a report prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of his or her opinion on those issues, and a list of reports, documents and/or studies that the expert witness relies upon.

20. “Witness statement” means a document consisting of a short outline of the facts and issues that a non-expert witness will address in evidence. A witness statement must be served for all non-expert witnesses a party intends to call at the hearing.

21. The Claimant shall serve all expert reports and witness statements on the Respondent on or before January 12, 2024.

22. The Respondent shall serve all responding expert reports and witness statements on the Claimant on or before February 16, 2024.

23. The Claimant shall serve all reply expert reports and witness statements on the Respondent on or before March 15, 2024.

24. Further written evidence, witness statements, and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted shall be served and filed at least five (5) calendar days before the date on which the expert witness who will give oral evidence is to be called.

25. Unless the Tribunal orders otherwise, no expert shall give oral evidence at the hearing without first having served and filed an expert report.

26. Notwithstanding the above paragraph, a party who has summoned an expert to appear at the hearing for a purpose other than to prove an expert report, but who has not retained the expert or paid to them a fee in excess of the normal witness fees, is not required to serve and file an expert report from that expert or to serve and file a witness statement prepared by that expert, but is required to file a detailed outline of the evidence to be given by that expert at least five (5) calendar days before the date on which the expert witness who has been summoned to give oral evidence is to be called.

27. A party who serves and files a witness statement or expert report must have the witness present at the hearing to testify unless the party advises the Tribunal and the parties served with the witness statement or expert report that it is not to be a part of the record.

28. If a party intends to call a lay person as a witness, it shall serve on all other parties and file with the Tribunal a witness statement of the lay person.

d. Amendment of Written Evidence

29. Amendments to expert reports or witness statements will be permitted only by motion, with notice to all parties, unless all parties agree to waive this requirement by written consent.

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

31. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before thirty (30) days after the evidence is received.

32. 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.

33. 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.

34. 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.

e. Number of Expert Witnesses

35. Parties wishing to secure leave pursuant to section 28(2) of the Act to call more than four expert witnesses in any one specialized field shall seek leave of the Tribunal to do so on or before the commencement of the hearing of this matter.

f. Pre-Hearing Conference and Mediation Assessment

36. A pre-hearing conference and mediation assessment on consent of the parties will take place on March 29, 2024 or on such other date as may be agreed upon and as is available, to be requested by the parties by February 29, 2024.

g. Request to Admit

37. Any party choosing to serve a Request to Admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure, incorporated by reference in Tribunal Rule 1.04, shall serve such Request or Requests on the party or parties opposite on or before forty (40) days in advance of the Hearing Date.

38. Responses to any Request(s) to Admit shall be served in accordance with the Rules of Civil Procedure.

h. Witnesses

39. A party who intends to call witnesses, whether or not by way of summons, shall provide to the other parties and file with the Tribunal a list of the witnesses to be called. This list must be delivered on or before ninety (90) days before the hearing.

40. 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.

41. Expert witnesses in the same field shall have a meeting on or before sixty (60) days before the hearing 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.

42. 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. 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.

43. 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. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence.

44. Counsel shall use best efforts to ensure that the witness who will follow the witness who is testifying shall be available outside the hearing room to take the stand immediately upon the completion of the testimony of the prior witness.

45. 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.

46. Once sworn an expert witness will be considered qualified by the Tribunal in the area of expertise which is set out in his or her expert report, unless a party objects before the witness begins to testify.

i. Notice of Readiness for Hearing

47. The parties shall file a Notice of Readiness for Hearing with the Ontario Land Tribunal on or before sixty (60) days in advance of the Hearing Date.

j. Hearing Plan

48. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days before 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.

k. Filing with the Tribunal

49. 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.

This Member is not seized.

So orders the Tribunal.

Attachment 1

Party	Party Status	Counsel / Representative
York Professionals Inc.	Claimant	Rayman Harris LLP 250 The Esplanade Suite 202 Toronto, Ontario M4A 1J2 Conner Harris (LSO #66645E) T: 416.597.5422 conner@raymanharris.com Leah Cummings (LSO #78980W) T: 437.222.9004 leah@raymanharris.com
The Regional Municipality of York	Respondent	Borden Ladner Gervais LLP Barristers and Solicitors Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, ON M5H 3Y4 Frank Sperduti (LSO #40677N) Tel:416.367.6243 fsperduti@blg.com Michael Grant (LSO #77317Q) Tel: 416.367.6120 mgrant@blg.com

Attachment 2

OLT File No: OLT-21-001498

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:

YORK PROFESSIONALS INC. Claimant

• and -

THE REGIONAL MUNICIPALITY OF YORK Respondent

ISSUES LIST

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

Date: June 29, 2023.

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.