Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 17, 2023 CASE NO(S).: OLT-23-000118

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

Claimants: McDonald’s Restaurants of Canada Ltd & 1444767 Ontario Inc. Respondents: City of Toronto & TTC Description: Determination of compensation Property Address: 3929 Keele Street Municipality: City of Toronto OLT Case No.: OLT-23-000118 OLT Lead Case No.: OLT-23-000118 OLT Case Name: McDonald’s Restaurants of Canada Ltd & 1444767 Ontario Inc. vs City of Toronto & TTC

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: McDonald’s Restaurants of Canada Ltd & 1444767 Ontario Inc. Request for: Request for Directions Heard: Motion in Writing

APPEARANCES:

Parties	Counsel
McDonald’s Restaurants of Canada Limited and 1444767 Ontario Inc. (collectively, “McDonalds” or “Claimant”))	S. Rayman, L. Cummings
City of Toronto (“City”)	M. Piel, J. Amey

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

Link to Final Order

PART 1: INTRODUCTION

1This motion arises in relation to a proceeding commenced before the Ontario Land Tribunal (“OLT” or “Tribunal”) by McDonalds against the City under the Expropriations Act, R.S.O. 1990, c. E-26 (“EA”) with respect to the property owned by McDonalds at 3929 Keele Street (“Subject Property”). The City conducted certain works around the Subject Property in connection with the Toronto-York Spadina Subway Extension which McDonald’s alleges caused it business losses and other damages (“Claims”).

2This proceeding is at an early stage, with the Notice of Arbitration and Statement of Claim having been filed on February 17, 2023 and the City’s Reply on March 17, 2023. Affidavits of Documents have not yet been exchanged, examinations for discovery have not been scheduled and no hearing date has been set. In fact, the Parties have not yet finalized a draft Procedural Order.

3After the exchange of several emails exchanged between the Parties’ counsel concerning the Procedural Order, McDonald’s counsel has brought an unusual motion seeking a comprehensive Confidentiality Order (“Motion”). The Tribunal directed that the Motion be made in writing. It is important to note that there is no agreement between the Parties concerning the Confidentiality Order (“CO”) - unlike in some past cases before the Tribunal where parties had consented to certain provisions for the protection of claimed confidential materials.

4The materials filed for the Motion were:

(a) Claimant’s Motion Record; (b) Responding Motion Record of the City; (c) Claimant’s Reply Motion Record; (d) Claimant’s Factum; (e) Respondent’s Factum; (f) Claimant’s Book of Authorities and Supplementary Book of Authorities; (g) Respondent’s Book of Authorities; and (h) Claimant’s Reply Factum

PART 2: ISSUES AND ANALYSIS

A. No Demonstration of a Current Need for a Confidentiality Order

5As noted, neither Party has delivered an Affidavit of Documents and no productions have been otherwise made, save and except a ‘without-prejudice’ damages report sent to the City’s counsel by counsel for McDonalds.

6The Claimant nonetheless seeks to have the Tribunal impose a broad and restrictive CO to govern its possible future productions. The evidentiary basis for this request is scant. Essentially, the Claimant seeks to have the Tribunal order into force strict non-disclosure obligations over the objections of the Respondent. In fact, as is further discussed below in this PART 2, there is no explicit basis for such an order by the OLT set out in its Rules of Practice and Procedure (“Rules”) or in any statute.

7A single affidavit from a representative of McDonald’s was included in the Claimant’s Motion Record. The only statements directly bearing on the alleged need for a highly restrictive CO are as follows:

“McDonald’s, like other businesses in this industry, keeps its financial information, including data related to its sales performance, projections, growth rates, renovation costs, costs of goods sold, and expenses confidential and proprietary. It does not make public this information and goes to considerable length to ensure this information remains confidential. This information is not known within the fast-food industry or to the public in general.

…Financial information at times shows McDonald’s management practices and the manner in which it operates its business. For example, this information could reveal lucrative restaurant locations and other market advantages that a competitor could rely upon to enhance its business to the detriment of McDonald’s

…[McDonald’s maintains]… data related to its sales performance, projections, growth rates, renovation costs, costs of goods sold…

…If McDonald’s sensitive financial information were made public, it would likely be used by its competitors and other parties to McDonald’s disadvantage. This would result in financial loss to McDonald’s…”

8The Tribunal is of the view that the above vague and conclusory statements described in paragraph [7] are uncompelling. The Tribunal suspects almost every business could raise similar concerns, especially those who pursue damages for injurious affection made under the EA arising from alleged business losses. Yet, the reality is that ‘pre-emptive’ confidentiality orders that impose stringent non-disclosure obligations (“NDO’s”) are not sought in the vast majority of OLT proceedings brought under the EA. Perhaps, this is because it is, or should be, well understood that Parties should strive to arrive at their own private agreements on NDO’s and that there are substantial public policy principles at stake that militate against imposing significant constraints on the disclosure and handling of information and documentation required to substantiate claims under the EA – let alone those restrictions which would impact the Tribunal’s own internal procedures and practices and the open and transparent conduct of its proceedings.

9In any event, the bare allegations made in McDonald’s Affidavit filed for the Motion do not correspond to the broad restrictions set out in the proposed CO discussed more fully below. The balance of the assertions made to support the alleged need for a CO are simply legal arguments made by McDonald’s counsel in the Claimant’s Factum – or in counsel’s numerous and contentious emails appended to a law clerk’s affidavit - and are not based on the affidavit evidence from the McDonald’s senior representative.

B. The Proposed Confidentiality Order Is Over-Broad

10The CO ostensibly aims to protect from the disclosure of “confidential information” but this term is defined in such a way as to be almost devoid of meaning. The Order sought on the Motion is set out in Schedule A to the Claimant’s Notice of Motion as follows:

“THE ONTARIO LAND TRIBUNAL (the “Tribunal”) ORDERS that the following evidence shall remain sealed and not form part of the public tribunal file:

a. All productions of the Claimants that include sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business;

b. All information provided by the Claimants in its examination(s) for discovery that include sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business;

c. All information provided by the Claimants in answers to undertakings from its examination(s) for discovery that include sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business; All information provided by the Claimants in the reports of their experts that include sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business;

d. All information provided by the Claimants used as evidence at the hearing of this matter (including exhibits filed with the Tribunal) that include sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business; and

e. Any other information designated by the Ontario Land Tribunal (the “Tribunal”) as confidential;

(collectively, the information described in paragraphs (a) to (f) is defined as “Confidential Information”). In the event that a party disagrees with data proposed by the Claimants to be Confidential Information or a party seeks to release the Confidential Information; a party may bring a motion before the Tribunal, to seek the Tribunal’s determination and/or permission in this regard.”

[above emphasis added]

11The Tribunal is hard-pressed to discern what information and data of McDonalds relating to its Claim for injurious affection under the EA would not fall within the above categories. A phrase such as: “sales and financial data, information on the operation of the Claimants’ business and other financial and other confidential information in respect of the Claimants’ business” is expansively inclusive notwithstanding the contrary assertions made in the Factum and Reply Factum filed by the Claimant’s counsel. Moreover, this Tribunal is unable to determine with certainty at this juncture precisely what information would be precluded by this proposed Order. Certainty is a requirement, in the Tribunal’s view.

12In the Tribunal’s view, a proper CO should not be so broadly framed that it could conceivably cover most of the information that might be sought by a Respondent from a Claimant pursuing a business loss claim under the EA. A CO should be specific and focused on the narrowest possible items of key information that can be convincingly demonstrated to be (by way of example only): vital trade secrets, intellectual property or crucial, secret financial and competitive data. This is because the burdens created by the type of CO sought by the Claimant on a Respondent and its experts and representatives – and also on this Tribunal - are significant and ought not to be lightly imposed.

13It must also be kept in mind that although the Tribunal may have the inherent jurisdiction to exercise its discretion to force the Parties to enter into NDO’s, this is a not a measure specifically spelled out in the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6 (“OLTA”) nor in the OLT Rules of Practice and Procedure (“Rules”). If the Legislature had intended that the Tribunal should routinely impose such stringent obligations, it presumably would have provided clear direction in OLTA and the Rules. The Tribunal disagrees with the apparent argument of Claimant’s counsel that Rule 19.1 (j) pertaining to Case Management Conferences (“CMC’s”) somehow covers this:

“…discuss issues of confidentiality, including any need to hold a part of the hearing in the absence of the public or to seal documents…”

14In this Tribunal’s view, the above provision simply enumerates one of the many matters which the OLT may explore at a CMC. It does not direct the Tribunal to implement confidentiality orders or to impose NDO’s.

15Therefore, as a matter of policy, the Tribunal would strongly prefer that the Parties reach agreement on such matters before seeking subsequent approval from the OLT - which still must ensure that the public interest issues at stake are respected. Obviously, under OLTA and the EA, adjudication is prima facie to be conducted via an open, transparent process – if the Parties prefer not to litigate in this forum on that basis, then they may enter into their own agreement to resolve their disputes through private arbitration or other modes of private alternative dispute resolution.

16The Tribunal will not approve the CO currently proposed by the Claimant. A more carefully circumscribed CO might be justified at a later stage of this proceeding when it is much clearer what specific information and documentation is sought to be protected. However, in the Tribunal’s view, as explained in PART 2 G. below, the better and simpler route at the appropriate time would be to pursue an Order under the Rules and the Statutory Procedures Act RSO 1990, c S-22 (“SPPA”). Again, the imposition of NDO’s should be seen as an exceptional measure only rarely to be ordered by the OLT in situations where the Parties cannot themselves agree on such terms.

17The Order sought by the Claimant goes even further:

“Any Confidential Information filed with the Tribunal shall be sealed in an envelope clearly marked as “Confidential Information”. Confidential Information filed with the Tribunal shall not be placed on the public record and shall only be accessible to members and employees of the Tribunal and persons that have filed a Declaration and Undertaking.”

“The Tribunal will order the hearing be closed to all individuals, except for non-party witnesses appearing under summons, that have not signed a Declaration and Undertaking when Confidential Information and related evidence and argument will be disclosed and/or made.

Notwithstanding any other provisions of this Order, no Confidential Information, in whole or in part, shall be provided to any other public body subject to the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M-56 or the Freedom of Information and Protection of Privacy Act, RSO 1990, c F-31 or other federal or provincial freedom of information legislation.”

18The provisions described in paragraph [17] are extraordinary and also clearly contrary to the well-known practices followed by the Tribunal in conducting open, public proceedings as required by applicable law – again as outlined in PART 2 G. below.

C. The Proposed Confidentiality Order Will Lead to Further Disputes and OLT Adjudication

19Contrary to the assertions made in the Claimant’s Factum, the proposed CO will not provide certainty as it is clear that many disputes will arise that will inevitably require resolution by this Tribunal. Indeed, this constitutes one of several burdens that must be considered by the Tribunal when it considers the need for any confidentiality order. This is yet another reason why NDO’s should not be routinely sought from the OLT.

20As noted above, due to the vague definition of confidential information set out in the CO it can be expected that differences of opinion will emerge between the Parties when McDonald’s seeks to designate groups of documents and information as ‘confidential’. Ultimately, motions will be brought to determine such disputes. The CO expressly contemplates this as follows:

“In the event that a party disagrees with data proposed by the Claimants to be Confidential Information or a party seeks to release the Confidential Information; a party may bring a motion before the Tribunal, to seek the Tribunal’s determination and/or permission in this regard”

21In another section of the proposed CO it is stated:

“Confidential Information generated by, or in the possession of, any individual who has signed a Declaration and Undertaking may only be shared with other individuals who have signed a Declaration and Undertaking as contemplated herein. Counsel of Record for the parties, who have signed a Declaration and Undertaking, will be given access to all Confidential Information exchanged. Representatives of the parties will be given access to Confidential Information on a “need to know” basis.”

[emphasis added]

Who shall determine which representatives have such a “need to know”? Inevitably, a dispute on this will be brought to the Tribunal for adjudication.

22Another example could be the following:

“Confidential Information in the possession of any individual who has signed a Declaration and Undertaking must be sealed and secured from access by those who have not signed a Declaration and Undertaking…For greater certainty, this includes sealing and securing Confidential Information contained in electronic files and loaded onto shared networks”

[above emphasis added]

What does ‘sealing’ mean in practice? And what standard of “security from access” must be employed? What exactly does sealing require when it comes to electronic files on a network? Again, the Tribunal assumes that in the event of disagreement between the Parties, more adjudication will be required.

D. Significant Burdens Are Created by the Proposed Confidentiality Order

23In the Tribunal’s view, the current terms of the CO creates significant additional process and resultant burdens on the Respondent, its representatives and experts and on the OLT itself. Moreover, because the CO is so abstract at this stage of the proceedings no practical purpose is achieved by having the Tribunal authorize it on this Motion. No attempt has yet been made to identify what specific documents and information deserve such confidentiality “protection” – the CO simply proposes a virtually exhaustive category of data that could include any and all evidence relevant to the Claimant’s business loss claims.

24As currently worded, the CO could also create potential problems in the interactions between employed City counsel and their ‘masters’ because counsel could not disclose “confidential information” unless and until their instructing authorities agree to sign the proposed Declaration – which those authorities, for a variety of reasons, may be unwilling to do.

25As a final note, the CO even creates costs and obligations for the Tribunal in terms of enforcement against breaches. It proposes:

“A breach of this Order may be pursued as a contempt proceeding pursuant to paragraph 13(1)(c) of the Statutory Powers Procedure Act, RSO 1990, c S-22.”

The above-noted section of the SPPA states:

“Contempt proceedings”

13 (1) Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court, the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. S.22, s. 13; 1994, c. 27, s. 56 (27).”

[above emphasis added]

26Thus, the CO contemplates that, as an enforcement remedy, this Tribunal must either bring its own motion or respond to a Party’s motion by incurring the considerable costs and time involved to state a case to the Divisional Court. This is an unusual and onerous burden to impose on the Tribunal.

E. Unnecessary to Decide the Question of the OLT’s Jurisdiction to Make An Order Overriding Ontario or Federal FOI & Privacy Statutes

27The CO and this Motion seeks another unusual remedy: The Claimant seeks an Order as follows:

“Notwithstanding any other provisions of this Order, no Confidential Information, in whole or in part, shall be provided to any other public body subject to the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M-56 or the Freedom of Information and Protection of Privacy Act, RSO 1990, c F-31 or other federal or provincial freedom of information legislation.”

28Pursuant to the terms of the CO, a declarant must also agree to:

“I will not divulge Confidential Information (for example, witness statements, reports, analyses, or financial statements) to any party that is subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act or other federal or provincial freedom of information legislation, excluding their respective legal counsel and their retained expert witnesses* who have signed this Declaration and Undertaking. For greater clarity, the foregoing prohibition shall not constrain legal counsel and experts retained by such public-sector organizations from verbally communicating Confidential Information with their respective clients for the purposes of the herein proceeding.”

[emphasis added]

29No case directly on point was cited to the Tribunal to establish that it has the jurisdiction to make the Order described in paragraph [27] above or to approve a CO which requires the Declaration in paragraph [28]. In any event, it is the Tribunal’s view that no definitive ruling on this issue is required since the Tribunal has decided not to grant this Motion on other grounds.

F. The Claimant’s Financial Data is Aged

30Based on the information available, it appears to the Tribunal that it seems likely that no current allegedly sensitive financial or other data is likely to be relevant to the claims presented by the Claimant.

31McDonald’s business losses are described in its Claim as follows:

“41. Looking at comparable restaurants during the period of construction, it is apparent that the Keele McDonald’s restaurant underperformed with regards to sales and profits during this period. The restaurant saw sales decline for fiscal years 2011 to 2014 and did not see a full recovery to pre-construction sales estimates until fiscal year 2018. There is no evidence that these losses were mitigated by potential customers patronizing nearby alternate McDonald’s restaurant

42. McDonald’s claims $4,000,000 in compensation for injurious affection as business losses that are the reasonable and natural consequence of the construction of the Works. In the alternative, McDonald’s claims this amount as disturbance damages or business losses under sections 18 or 19 of the Expropriations Act. “

[above emphasis added]

32The Tribunal further notes that the above-described claim is by far the largest component of the overall damages claim of $4,750,000 summarized in paragraph 52 of the Claim

33Therefore, the Tribunal finds it reasonable to assume at this early stage that the only time period of “sensitive financial information” for this particular restaurant would be for the long-past period of 2011 to the end of 2017. In turn, this means that the earliest relevant business data is already 12 years old, and the most recent information is now 6 years old. If the hearing of this case does not occur until January of 2025 as is proposed by the Parties, this parcel of information will be at least another 18 months older.

34From a common-sense perspective, the fact that much of the Claimant’s data relevant to its Claim is older suggests that its sensitivity and relevance from a competitive standpoint is likely to be significantly reduced. There was no attempt by McDonald’s to deal with this relevant and important issue in its supporting affidavit.

G. The Statutory Requirements For Imposing Confidentiality Restrictions Cannot Be Yet Satisfied

35The Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (“TARA”) is relevant in these circumstances. At section 2 and section 3 it states:

“Adjudicative records public

2 (1) A tribunal shall make those adjudicative records in its possession that relate to proceedings commenced on or after the day this section comes into force available to the public in accordance with this Act, including any rules made under section 3.

Confidentiality orders

(2) A tribunal may, of its own motion or on the application of a person referred to in subsection (3), order that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public if the tribunal determines that

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

Who may apply

(3) The following persons may apply to the tribunal for a confidentiality order in respect of an adjudicative record:

1. A party to a proceeding to which the adjudicative record relates.

2. A person who would be affected by the disclosure of the information contained in the adjudicative record or a portion of the adjudicative record.

Scope of order

(4) A confidentiality order may apply to adjudicative records regardless of when the proceeding to which they relate was commenced.

Rules

3 (1) A tribunal may make rules governing procedures for providing access to adjudicative records and for obtaining a confidentiality order.

[above emphasis added]

36Of course, in the current circumstances, the Tribunal notes that none of the above provisions in TARA govern those records which have not yet been delivered to the Tribunal, nor do they contemplate the type of pre-emptive CO and NDO’s sought by the Claimants.

37Section 3 (1) of TARA contemplates rule-making by the Tribunal. Rule 22 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”) states:

“CONDUCT OF PROCEEDINGS”

22.1 Hearings to be Public All Tribunal hearing events will be open to the public except where the presiding Tribunal Member determines that the hearing event is to be heard in private, such as a mediation or the exceptions to a public hearing set out in relevant legislation or regulation, such as subsection 9(1) of the SPPA.

22.2 Confidentiality Orders The Tribunal may order that any document filed in a proceeding be treated as confidential and not be disclosed to the public where the Tribunal is of the opinion that: a) matters involving public security may be disclosed; or b) the document contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public. “

Section 9(1) of the SPPA further states:

“Hearings to be public, exceptions

9 (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public. R.S.O. 1990, c. S.22, s. 9 (1); 1994, c. 27, s. 56 (16).

[above emphasis added]

38It is to be noted that the above-noted provisions of the Rules, TARA and the SPPA essentially codify the jurisprudence that maintains that all hearings must be held in public subject to narrow exceptions. Here, well before a hearing has even been scheduled, the Claimant seeks to have the Tribunal close the hearing when the confidential information of McDonald’s will be presented or discussed. Currently, given the excessively broad definition of confidential information set out in the CO, this could mean most of the hearing will be closed. In the Tribunal’s view, this is not the appropriate time to consider implementing such a significant constraint, and the Tribunal declines to exercise its discretion to do so.

39The Tribunal also agrees with counsel for the City that section 22.2 of the Rules specifically deals with when a document can be sequestered from public availability: i.e. only when it is filed in a proceeding. This is not the current circumstance before this Tribunal since this protection is being sought before any documents have been filed with the OLT - or even exchanged by the Parties.

40In the Tribunal’s view, Rule 22.2 presents a much simpler and direct method to deal with any legitimate confidentiality concerns of the Claimant. In theory, it could be extended to the situation at examinations for discovery where the Claimant seeks protection before or after disclosure of sensitive material. However, it is important to keep in mind that documents and information provided at examinations for discovery do not automatically become admissible evidence that can be tendered at the hearing or otherwise delivered to the Tribunal. Thus, it may be entirely unnecessary for the Claimant to seek a remedy even at the discovery stage.

41In any event, the key point here is that if the Claimant needs to seek the protection described under Rule 22.2 for specific information and documentation it can certainly do so by motion at the relevant time. Moreover, all the speculative and problematic matters discussed and considered above will then no longer exist: because the Claimant will be seeking protection for clearly defined material, as opposed to an uncertain and vague category of potential information. The Tribunal will then be in a position to consider whether in fact the material “contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public”.

42Similarly, insofar as the hearing is concerned, it is this Tribunal’s view that only when a motion is brought in relation to specific documents, information and proposed testimony, will the Tribunal be in the best position to determine whether: intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public”.

43It should be noted that a later point in this proceeding, the Parties may well reach a consensus on the documents, information etc. that may justify rulings by the Tribunal under Rule 22.2 and subsection 9 (1) (b) of the SPPA. Thus, the motions referred to above in paragraphs [41] and [42] could be brought on consent, seeking approval by the OLT of an agreed upon arrangement. While the City clearly objects to the CO now being sought by the Claimant, it may change its position when it has an opportunity to consider more precisely defined material and evidence identified by McDonald’s as highly confidential. At the very least, it seems likely that the issues required to be adjudicated by the Tribunal might be narrowed once specific data and evidence is identified.

44For the sake of completeness and clarity, the Tribunal is also not satisfied that there is currently a demonstrable risk of serious prejudice to the Claimant if it discloses financial and other business operational data to the City’s counsel and their instructing authorities. The Tribunal is not persuaded by the contrary speculative legal arguments and various assertions made by the Claimant’s counsel in his various correspondence and repeated in the Claimant’s Factum. At this early stage, the Tribunal is not prepared to assume that the City and its counsel will not or cannot maintain appropriate safeguards to ensure that any sensitive information of the Claimant is not publicly disclosed. In this Tribunal’s view, absent unusual and compelling circumstances, the OLT ought to be careful not to lightly assume an active role in policing the conduct of counsel and their clients.

45The Tribunal has noted and considered all of the jurisprudence cited by counsel for the Claimant as support for the proposition that the Tribunal has the jurisdiction to impose confidentiality obligations and non-disclosure requirements on parties to proceedings before the OLT. However, as already stated above in this PART 2 it is unnecessary for the Tribunal to make any declaration concerning the scope of its jurisdiction and its inherent discretion to control its process. The Tribunal is simply unconvinced that the current circumstances require the imposition of such requirements and declines to consider the exercise of its discretion in this regard. It is possible that in the future the Tribunal may be presented with additional evidence at or before the motions referred to in this PART 2, and in the Orders made below, that may cause it to further evaluate such matters.

46The common law tests set out the jurisprudence referred to by counsel for both Parties might even be stricter than the standards set out in the OLT Rules, TARA and the SPPA as discussed above in this PART 2. However, the Tribunal finds it unnecessary to comment further on the applicable case law in light of its above rulings.

Similarly, this Tribunal has determined that there is no current need to carry out an analysis of whether and in what circumstances the confidentiality interests of McDonald’s could outweigh the public policy issues set out in the OLT Rules, TARA, the SPPA and other jurisprudence – in fact, this Tribunal is of the view that it cannot properly undertake that exercise in the context of this Motion. As noted, the Tribunal has no actual examples of the Claimant’s sensitive data to consider. Since the definition of confidential information in the proposed CO is so broad and abstract, it does not assist the Tribunal in appropriately evaluating these fundamental issues.

47As a final note, the Tribunal reiterates that there is sound public policy that stands in opposition to the exceptional, restrictive measures proposed in the current form of the CO and the Orders sought on this Motion. There is a well-recognized public right and interest in open proceedings at the OLT which includes the right to hear all evidence presented in a contested hearing. This is the quid pro quo of a publicly funded adjudicative system that every Party is deemed to accept when it files an appeal or damages claim with the Tribunal.

ORDER

48THE TRIBUNAL ORDERS THAT:

(a) the Claimant’s Motion is dismissed;

(b) no costs shall be awarded to either Party in respect of the Claimant’s Motion; and

(c) the Parties shall deliver within 30 days of the date of issuance of this Decision, on consent, a revised draft Procedural Order to govern the conduct of this proceeding or, failing such agreement, that sets out a clear delineation of any remaining matters in dispute.

49THE TRIBUNAL FURTHER ORDERS THAT: Leave is granted to permit the Claimant:

(a) to bring a future motion under Rule 22.2 in respect of specific documents and information that are proposed to be tendered in evidence by either Party at the hearing of this Claim or to otherwise form part of the public record maintained by the Tribunal in respect of this proceeding; and/or

(b) to bring a motion no earlier than ninety (90) days prior to the commencement of the hearing of this Claim under subsection 9 (1) of the Statutory Powers Procedure Act, regarding attendance at the hearing, and/or pursuant to subsection 2 (2) of Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 in respect of all or part of the evidence to be presented at such hearing; and

(c) to deliver and file under seal all materials relating to either of the motions described in paragraph [49] (a) and (b) above on the basis that such materials shall not form part of the public record maintained by the Tribunal unless the Tribunal hearing those motions determines otherwise after considering the written or oral submissions of the Parties.

50This Vice-Chair shall remain available to deal with any questions arising with respect to the implementation of the above Orders.

“William R. Middleton”

WILLIAM R. 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.