Don Valley Auto Centre Ltd. v Metrolinx, 2023 CanLII 78858

ISSUE DATE: August 25, 2023 CASE NO(S).: OLT-23-000012

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): Don Valley Auto Centre Ltd.

Subject: Land Compensation

Property Address/Description: 388 Carlaw Avenue

Municipality: City of Toronto

Municipal File No.:

OLT Case No.: OLT -23-000012

OLT File No.: OLT -23-000012

OLT Case Name: Don Valley Auto Centre Ltd. v Metrolinx

BEFORE:

WILLIAM R. MIDDLETON

Friday, the 25th

VICE-CHAIR

day of August, 2023

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment "A" to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on September 11, 2024.

"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.

ATTACHMENT "A"

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 hearing will begin on September 11, 2024 at 10:00 a.m. at the Ontario Land Tribunal, 655 Bay Street,16th Floor, Toronto, Ontario, for a period of 7 days ending September 19, 2024. The Tribunal will not sit on the following dates, however: September 9 and 10, 2024.

3. 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 phone number as soon as possible.

Requirements Before the Hearing

8. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about January 10, 2023.

9. Metrolinx served and filed a Demand for Particulars on or about January 26, 2023.

10. The Claimant served and filed a Response to the Demand for Particulars on or about January 30, 2023.

11. Metrolinx served and filed a Request to Inspect on or about January 31, 2023.

12. The Claimant served and filed a Response to the Request to Inspect on or about January 31, 2023.

13. Metrolinx served and filed a Reply on March 7, 2023.

14. A Motion for Directions was heard on or about May 5, 2023 and a decision was rendered by the Tribunal on June 21, 2023.

15. If deemed necessary by the Claimant, the Claimant shall serve and file an Amended Notice of Arbitration and Statement of Claim on or before July 31, 2023.

16. If deemed necessary by the Respondent, the Respondent shall serve and file an Amended Reply on or before August 15, 2023.

17. The parties shall exchange their respective Affidavits of Documents and Productions by September 15, 2023.

18. Examinations for Discovery of the representative of each party shall be completed on or before October 31, 2023. The parties consent to conducting examinations for discovery by way of videoconference.

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

20. Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be in writing pursuant to Rule 10 of the Rules of Practice and Procedure and shall be commenced by January 15, 2024.

21. 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 Tribunal's Decision on any discovery motion brought in accordance with section 21 above.

22. 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 36 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.

23. On or before January 26, 2024, 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 36 below.

24. On or before January 26, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 36 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

25. 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 26, 2024 and in accordance with paragraph 36 below.

26. Expert witnesses in the same field shall have a meeting on or before March 8, 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 March 29, 2024.

27. 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 21 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.

28. 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 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 21 above.

29. 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.

30. 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.

31. 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.

32. On or before ten (10) 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 36 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

33. 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, on or before the first day of the hearing.

34. 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.

35. 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.

36. On or by March 18, 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 April 30, 2024.

37. The Tribunal will conduct a pre-hearing conference on at least 30 days' prior notice to the parties on with a view to resolving any outstanding issues related to the October 2024 hearing. The pre-hearing conference shall be scheduled according to the Tribunal's calendar

38. 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.

39. 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.

40. 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.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

____________________________

TRIBUNAL REGISTRAR

Attachment 1

Party

Party Status

Counsel / Representative

Don Valley Auto Centre Ltd

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

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

Ian Mathany (LSO #57197U) Tel: 416.947.6702 ian@mhlawyers.ca

Attachment 2

OLT File No: OLT-23-000012

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:

DON VALLEY AUTO CENTRE LTD.

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

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

Attachment 3

OLT File No: OLT-23-000012

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:

DON VALLEY AUTO CENTRE LTD.

Claimant

• and -

METROLINX

Respondent

ORDER OF EVIDENCE

1. Don Valley Auto Centre Ltd. evidence, in-chief

2. Don Valley Auto Centre Ltd. evidence in cross-examination.

3. Metrolinx evidence in-chief.

4. Metrolinx evidence in cross-examination.

5. Don Valley Auto Centre Ltd., in Reply, if necessary.

Note: The Tribunal requires the Parties to submit written final arguments. If the Parties wish to also make oral final arguments, the Tribunal will schedule same upon consultation with the Parties.