New Apostolic Church Canada v. Metrolinx, 2023 CanLII 71681

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: AUGUST 04, 2023

CASE NO(S).: OLT-22-004704

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. P.13, as amended

Claimant: New Apostolic Church Canada

Respondent: Metrolinx

Description: Determination of Compensation

Property Address/Description: 6484 Finch Avenue West

Municipality: Toronto

OLT Case No.: OLT-22-004704

OLT Lead Case No.: OLT-22-004704

OLT Case Name: New Apostolic Church Canada v. Metrolinx

Heard: July 11, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
New Apostolic Church Canada (“Claimant”)	Leah Cummings
Metrolinx (“Respondent”)	Ian Mathany

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON JULY 11, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the first Case Management Conference (“CMC”) conducted in this Arbitration to determine the amount of the compensation payable under the Expropriations Act (“the Act”). The Arbitration has been commenced under section 26(1) of the Act, by the Claimant, New Apostolic Church of Canada, and arises out of two Expropriations by which the Respondent, Metrolinx, acquired fee simple interests and a temporary easement over portions of the Claimant’s property municipally known as 6484 Finch Avenue West, in the City of Toronto (“City”), Ontario (“the Subject Property”).

APPROVAL OF A FURTHER EXPROPRIATION IS PENDING

2Following the exchange of pleadings, the Respondent determined that a further requirement was needed, and proposed a third Expropriation involving the acquisition of a temporary easement for grading purposes. A Hearing of Necessity under section 7 of the Act was requested by the Claimant and is scheduled to be heard on Thursday August 3, 2023. Amendment of the pleadings may be required if the third Expropriation proceeds. Counsel for the Claimant agreed to deliver the Claimant’s Amended Statement of Claim, if so advised, by September 8, 2023, and in such case Counsel for the Respondent agreed to deliver the Respondent’s Amended Reply by Friday September 15, 2023.

CLAIMANT’S MOTION RETURNABLE AT THE CMC

3On June 30, 2023, Counsel for the Claimant had delivered a Motion Record seeking an order that the Deponent of the Respondent’s Affidavit of Documents be a member of the Respondent’s senior management, and for the production of certain documents identified in the Motion Record. The Notice of Motion was marked to be returnable at this CMC although a Motion scheduling request had not been made. The Respondent objected to the Motion being heard at this CMC and delivered a Responding Motion Record on July 10, 2023. Upon reviewing the Motion Record, the Tribunal determined that the Motion was premature as documentary discovery has yet to be made. The Tribunal therefore directed that the Hearing of the Motion be included as a term of the Procedural Order (“PO”), to be heard after the exchange of Affidavits of Documents and Production Briefs and prior to Examinations for Discovery. Counsel agreed to Monday, October 30, 2023, for a one-day Hearing of the Claimant’s Pre-Discovery Motion.

PROCEDURAL ORDER AND TIMELINE SUMMARY

4Counsel for the Claimant had circulated a draft PO ahead of the CMC. The Tribunal reviewed with Counsel the terms of the draft PO and its timeline, and after some adjustment, Counsel advised the Tribunal that the Parties were content with the provisions in the PO and Timeline Summary. An eight-day hearing in September 2024 was requested, and following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and Witnesses, an eight-day in-person Hearing on the Merits, was agreed upon, commencing on Wednesday, September 11, 2024, and running through to Friday, September 20, 2024.

5Appended to this Decision as Schedule 1 is the PO and Timeline Summary, which will now govern all further pre-hearing procedural requirements and the Hearing of the Arbitration.

CLAIMANT’S PRE-DISCOVERY MOTION

6For the one-day Motion by video hearing, commencing on Monday, October 30, 2023, at 10 am.

Monday, October 30, 2023 at 10a.m. (One-Day Motion Hearing)

GoTo Meeting: https://global.gotomeeting.com/join/442599157

Access code: 442-599-157

Audio-only telephone line: (Toll Free) 1-888-455-1389 or +1(647) 497-9391

Audio-only access code: 442-599-157

7The Parties and Participant 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.

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.

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.

MOTIONS ARISING FROM DOCUMENTARY AND/OR EXAMINATIONS FOR DISCOVERY

11For the one-day Motion by video hearing, commencing at on Friday, February 23, 2024, at 10 a.m.

Friday, February 23, 2024 at 10am (One-Day Motion Hearing)

Go To Meeting: https://meet.goto.com/join/278736685

Access code: 278-736-685

Audio-only telephone line: +1 (647) 497-9391/1-888-455-1389 Audio-only access code: 278-736-685

12Please refer to paragraphs [7] to [10] for the hearing detail instructions.

CMC AND MEDIATION ASSESSMENT

13Counsel also advised the Tribunal that they would like to have a Mediation Assessment and further CMC. Thursday, August 1, 2024, was agreed to for CMC. Both Counsel are directed to contact the Tribunal’s Mediation Coordinator to arrange the Mediation Assessment.

14For the one-day Pre-Hearing Conference by video hearing, commencing on Thursday, August 1, 2024, at 10 a.m.

Thursday August 01, 2024 at 10 a.m. (One-day Pre-Hearing)

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access code: 519-389-173

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

Audio-only access code: 519-389-173

15Please refer to paragraphs [7] to [10] for the hearing detail instructions.

MERIT HEARING

16The eight-day in-person Hearing, commencing at 10 a.m. on Wednesday, September 11, 2024, and continuing to Friday, September 20, 2024, will be at the Hearing Facilities of the Tribunal, at

655 Bay Street,

16th Floor,

Toronto, Ontario.

Other Matters

17There will be no further notice with respect to the hearing events and the Panel Member is not seized.

18The Tribunal so Orders and provides these directives for the purposes of the case management of this Proceeding.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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-22-004704

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. P.13, as amended

Claimant: New Apostolic Church Canada

Respondent: Metrolinx

Description: Determination of Compensation

Property Address/Description: 6484 Finch Avenue West

Municipality: Toronto

OLT Case No.: OLT-22-004704

OLT Lead Case No.: OLT-22-004704

OLT Case Name: New Apostolic Church Canada 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. An in-person hearing will begin on September 11-20, 2024, at 10:00 a.m. at the Ontario Land Tribunal at 655 Bay Street, 16th Floor, Toronto, Ontario.

3. The parties’ initial estimation for the length of the hearing is eight (8) 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 to this Order.

5. The issues are set out in the Issues List attached as Attachment 2 to this order. 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

Pleadings

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on November 30, 2022.

10. The Respondent, Metrolinx, served and filed its Reply on January 9, 2023.

11. If deemed necessary by the Claimant, the Claimant shall serve and file an amended Statement of Claim to incorporate any further property requirements, including Metrolinx’s temporary grading easement as described in Metrolinx’s Notice of Application for Approval to Expropriate dated March 29, 2023, on or by September 8, 2023

12. The Respondent shall serve and file an amended Reply, if an amended Statement of Claim is served and filed, on or by September 15, 2023.

Documentary and Oral Discoveries

13. The parties shall exchange their respective Affidavits of Documents and Productions by September 29, 2023.

14. The Tribunal will hear the Claimant’s pre-discovery motion on October 30, 2023, if the Claimant elects to bring a pre-discovery motion in accordance with the Rules. The parties shall advise the Tribunal by October 13, 2023 if this motion date is no longer needed.

15. Examinations for Discovery of the representative of each party shall be completed on or before December 15, 2023.

16. Each party shall answer their respective undertakings arising from examinations for discovery on or before January 19, 2024.

17. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be heard on February 23, 2024 and will be held by way of videoconference 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 endeavour to notify the Tribunal, on consent, at least fourteen (14) days prior to the scheduled date for the motion or as soon as possible thereafter.

18. 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.

Expert Reports, Witness List, and Witness Statements

19. “Written Evidence” includes all written material, reports, studies, documents, letters and statements which a Party intends to present and rely on as evidence at the Hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

20. “Expert Report” means a document 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 the expert witness’ opinions on those issues, and a list of reports or studies that the expert witness will rely on at the Hearing.

21. “Visual Evidence” includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.

22. “Witness Statement” is a short-written outline of a lay witness’ background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the Hearing.

23. An “Expert Witness Statement” should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing.

24. 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 July 11, 2024 and in accordance with paragraph 42 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.

25. Expert witnesses in the same field shall have a meeting on or before July 31, 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 on or before fifteen (15) days prior to the start of the hearing.

26. 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 41 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.

27. 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 34 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 35 below.

28. On or before May 1, 2024, the parties shall provide copies of their expert reports/witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 42 below.

29. On or before May 31, 2024, the parties shall serve all reply expert reports and witness statements and all participants shall provide copies of their written participant statement to the other parties in accordance with paragraph 42 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

30. On or before thirty-five (35) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

31. On or before fifteen (15) 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 42 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

32. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before ten (10) days prior to the start 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 or in advance of the start of the cross-examination of any witness at 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. Where leave is granted, such party must serve and file the new evidence at least five (5) calendar days before the date of on which the expert witness who will give oral evidence is to be called.

35. 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 ten (10) days before the hearing that the written evidence is not part of their record.

Pre-Hearing Conference and Mediation Assessment

36. The parties will coordinate amongst themselves and make a request to the Tribunal for a mediation to be scheduled for June 2024. The parties will make a request for a mediation by May 10, 2024.

37. A pre-hearing conference shall take place on August 1, 2024, if necessary.

Request to Admit

38. 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.

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

Notice of Readiness for Hearing

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

General Provisions

41. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before thirty (30) 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.

42. 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.

43. 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
New Apostolic Church Canada	Claimant	RAYMAN HARRIS LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO# 44649V) T: 416.597.5406 F: 437.222.9001 shane@raymanharris.com Leah Cummings (LSO# 78980W) T: 434-222-9004 leah@raymanharris.com
Metrolinx	Respondent	M&H LLP 61A Jarvis Street, Suite 200 Toronto, Ontario M5C 2H2 Christel Higgs (LSO #53408T) Tel: (416) 947-6701 Fax: (416) 947-6703 christel@mhlawyers.ca Aisling Flarity (LSO #65500B) Tel: 416.574.1695 aisling@mhlawyers.ca Mariana Cherkas (LSO# 85947P) Tel: 416.947.6700 ext. 210 mariana@mhlawyers.ca

Attachment 2 – ISSUES LIST

OLT File No.: OLT-22-004704

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:

NEW APOSTOLIC CHURCH CANADA

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

Attachment 4 – ORDER OF EVIDENCE

Date	EVENT/DEADLINE
September 8, 2023	Amended Statement of Claim, if needed
September 15, 2023	Amended Reply, if needed
September 29, 2023	Parties exchange Affidavits of Documents
October 13, 2023	Parties to advise Tribunal if October 30, 2023 motion date is needed
October 30, 2023	Pre-Discovery Motion Hearing
December 15, 2023	Deadline by which to complete Examinations for Discovery
January 19, 2024	Deadline for the parties to provide answers to undertakings
January 31, 2024	Parties to advise Tribunal is February 23, 2024 motion date is needed
February 23, 2024	Hearing of any motion arising from the discovery process
May 1, 2024	Parties to exchange witness statements and expert reports
May 10, 2024	Deadline for parties to request a mediation
May 31, 2024	Parties to exchange reply expert reports
July 11, 2024	Parties to exchange witness lists
July 31, 2024	Deadline for meeting of experts in the same field
August 1, 2024	Pre-Hearing Conference
August 2, 2024 (40 days prior to hearing)	Deadline to serve a Request to Admit
August 12, 2024 (30 days prior to hearing)	Deadline to file Hearing Plan
August 27, 2024 (15 days prior to hearing)	Deadline to file visual evidence
August 27, 2024 (15 days prior to hearing)	Deadline to file Experts’ Agreed Statement of Facts
August 30, 2024 (10 days prior to hearing)	Deadline to file Joint Document Book
September 11-20, 2024	Hearing on the merits