Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 10, 2023

CASE NO.: OLT-23-000032

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

Claimant: Burnhaven Farms Inc.

Respondent: Ministry of Transportation

Subject: Determination of compensation

Description: To permit the construction of Highway 6 Morriston Bypass.

Reference Number: WC509780

Property Address: 7342 Wellington Road 34 (Burnhaven Property)

Municipality/UT: Puslinch/Wellington

OLT Case No: OLT-23-000032

OLT Lead Case No: OLT-23-000032

OLT Case Name: Burnhaven Farms Inc. v. Ontario (Ministry of Transportation)

BEFORE:

STEVEN COOKE VICE-CHAIR

Tuesday, the 1st day of August, 2023

THIS MATTER having come before the Tribunal and being scheduled for a Case Management Conference on March 1, 2024;

AND THE TRIBUNAL having been advised that the parties have resolved the draft Procedural Order and Issues list on consent, and that the Procedural Order can be issued;

THE TRIBUNAL ORDERS that the Procedural Order attached to this Order as Schedule “A” shall be issued and the attached Procedural Order shall be in force and effect for the purposes of governing the procedures leading up to and including the Case Management Conference, which is scheduled to commence on Monday, March 1, 2024 at 10:00 AM for 1 day to proceed by video as follows:

Go To Meeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

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

Audio-only access code: 709-076-365

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

SCHEDULE “A”

ISSUE DATE: CASE NO(S).: OLT-23-000032

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

Claimant: Burnhaven Farms Inc.

Respondent: Ministry of Transportation

Subject: Determination of compensation

Description: To permit the construction of Highway 6 Morriston Bypass.

Reference Number: WC509780

Property Address: 7342 Wellington Road 34 (Burnhaven Property)

Municipality/UT: Puslinch/Wellington

OLT Case No: OLT-23-000032

OLT Lead Case No: OLT-23-000032

OLT Case Name: Burnhaven Farms Inc. v. Ontario (Ministry of Transportation)

PROCEDURAL ORDER

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

The hearing will begin on ______________________ at 10:00 a.m. at the Local Planning Appeal Tribunal 655 Bay Street,16th Floor Toronto, Ontario or by videoconference.
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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
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.
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

The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about January 10, 2023.
The Respondent served its Reply on or about March 6, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by May 31, 2023.
Examinations for Discovery of the representative of each party shall be completed on or before July 31, 2023. The parties consent to conducting examinations for discovery by way of videoconference.
Each party shall answer their respective undertakings arising from examinations for discovery on or before September 30, 2023.
Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard on ________________ at 10:00 a.m., 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 seven (7) days prior to the scheduled date for the motion, or as soon as possible thereafter.
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 thirty (30) days of the discovery motion before the Tribunal.
A party who intends to call witnesses, whether on 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 fifty-five (55) days prior to the start of the hearing 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.
Expert witnesses in the same field shall have a meeting on or before February 15, 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 at least fifteen (15) days prior to the start of the hearing.
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 above. 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.
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 20 above. 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 20 above.
On or before December 31, 2023, 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.
On or before December 31, 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.
On or before fifty-five (55) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before thirty (30) 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence, including expert reports, on or before February 28, 2024 and in accordance with paragraph 30 below.
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, ten (10) days prior to the start of the hearing.
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.
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.
On or by January 31, 2024 the parties shall discuss whether a request should be made for mediation of this matter. If the parties wish to proceed with mediation, a request for mediation shall be submitted to the Tribunal on or by February 15, 2024. The Tribunal will conduct a pre-hearing conference on consent of the parties on Friday, March 1, 2024 at 9:00 a.m. with a view to resolving any outstanding issues related to the [DATE] hearing.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 30 (30) 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.
All filings shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. 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.
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
Burnhaven Farms Inc.	Claimant	Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 shane@raymanharris.com Sarah Spitz (LSO #75279G) T: 416.306.8705 sarah@raymanharris.com
His Majesty the King in Right of Ontario as represented by the Minister of Transportation	Respondent	Crown Law Office – Civil 720 Bay Street, 8th Floor Toronto, ON M7A 2S9 Brendan Haynes (LSO # 53998H) Tel: 647-308-3708 Brendan.haynes@ontario.ca

Attachment 2

OLT File No: OLT-23-000032

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:

BURNHAVEN FARMS INC. Claimant

and -

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION Respondent

ISSUES LIST

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

Attachment 3