The Estate of Nikolaus R. Holz and Ellen I. Holz v. MTO, 2023 CanLII 78859

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

August 25, 2023

CASE NO(S).:

OLT-22-004658

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

Claimant:

The Estate of Nikolaus R. Holz and Ellen I. Holz

Respondent:

Ministry of Transportation

Description:

Determination of Compensation

Reference Number:

Property Address

Part Lot 25, Registrar's Compiled Plan 320

Municipality/UT:

Powassan/Parry Sound

OLT Case No.:

OLT-22-004658

OLT Lead Case No.:

OLT-22-004658

OLT Case Name:

The Estate of Nikolaus R. Holz and Ellen I. Holz v. MTO

Heard:

July 7, 2023 by telephone conference call

APPEARANCES:

Parties

Counsel/Representative*

The Estate of Nikolaus R. Holz and The Estate of Ellen I. Holz

(“Claimant”)

Nickolay Holz*

His Majesty The King in Right of The Province of Ontario ,

as represented by The Minister of Transportation for the Province of Ontario (“MTO”)

Jennifer Boyczuk, M. Khan (student at law)

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

INTRODUCTION/PROCEDURAL ORDER

1This matter proceeded to a first Case Management Conference (“CMC”) conducted by Telephone Conference Call (“TCC”) on July 7, 2023. The Claimant brought an action under the Expropriations Act, RSO 1990, c. E-26 (“EA”) for compensation arising from the expropriations by the MTO of certain portions of the property municipally known as Part Lot 25, Registrar's Compiled Plan 320, in the Town of Powassen, Ontario (“Subject Property”).

2Prior to the TCC, Mr. Holz for the Claimant filed a multiplicity of documents, purportedly for use at the CMC. Among them were a Notice of Constitutional Question; Notice of Motion for production of certain documents and/or compliance with certain requests made under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FOI”); and Notice of Motion to stop the Powassen Municipal Tax Office from selling the Subject Property (“Tax Issue”). The Tribunal advised Mr. Holz that none of these matters would be adjudicated at the CMC and that, in fact, the ‘Constitutional Question’, FOI issue and the Tax Issue, as framed, were not within the jurisdiction of the OLT to consider.

3The Tribunal advised Mr. Holz that the primary purpose of the CMC was to discuss and, hopefully, finalize a Procedural Order (“PO”) to govern the future conduct of the Claimant’s proceeding. After a considerable and very time-consuming discussion, Mr. Holz agreed to do so.

4Thankfully, the Tribunal was able to assist Mr. Holz and the counsel for the MTO to finalize all substantive terms of a PO, now appended to this Decision as Attachment A. However, clearly the terms of the PO may require further amendment in light of the Orders made in this Decision concerning the requirement that a lawyer be retained to act for the Claimant Estate.

5The Tribunal has scheduled an in-person hearing to commence on Monday, July 29, 2024, at 10 a.m. for a period of four days ending August 1, 2024 at:

Ontario Land Tribunal

655 Bay Street, 16^th^ Floor

Toronto, Ontario.

6Additional issues emerged for consideration at the CMC. One issue concerned the status of Mr. Holz. He is not currently a Party to this proceeding in his personal right, although he has alleged that he should be as he is the appointed executor of the estate of his late parents and also the sole beneficiary of that estate. Given that the estate of his late parents (“Estate”) is the Claimant in this action, the question becomes whether Mr. Holz,, as a non-lawyer executor of the Estate, is permitted to represent the Estate or whether instead a lawyer must be retained to act for the Estate. The second issue is whether Mr. Eric Polten, a lawyer who formerly acted for the parents of Mr. Holz and also for Mr. Holz, is entitled to be made a Party to this proceeding.

CLAIMANT REPRESENTATION

7It was apparent to the Tribunal that Mr. Holz is, for some reason, reluctant to retain counsel to act in this proceeding, notwithstanding Mr. Holz’s obvious general inexperience with the complexities of expropriation law, estates law and in conducting this type of action. While the OLT does not compel a Party to a proceeding to retain counsel, the circumstances here are unique due to the Claimant being the Estate. Mr. Holz argued at the CMC that, as the executor and sole beneficiary of the Estate, he is entitled to pursue this action in his personal capacity “because he owns the Estate”. However, the fact remains that Mr. Holz is not currently a Party to this proceeding in his personal capacity. Since the Claimant is the owner of the Subject Property, then only it can pursue this action under the EA, of course. If Mr. Holz becomes the legal owner of the Subject Property, then, presumably, he could seek by motion to continue this proceeding in his personal capacity – and there then may be no need for the Estate to be a Party.

8Counsel for the MTO did not take a formal position on this matter but did raise it as an issue that ought to be dealt with by the Tribunal and the Tribunal agrees. It was unfortunate that as a result, Mr. Holz reacted angrily to the matter being raised by counsel for the MTO, falsely accusing her and her client of vague improper motives. Indeed, on a number of occasions during the CMC, the Tribunal had to intervene in an attempt to moderate Mr. Holz’s behaviour and to ‘lower the temperature’ of both his rhetoric and also that of Mr. Polten. On a few occasions, these two individuals erupted into loud, angry arguments. Fortunately, the Tribunal was able to maintain control of the telephone proceedings throughout although the result was that the CMC took several hours to complete.

9In any event, the Tribunal would ordinarily expect that an individual taking the position put forward by Mr. Holz would bring a motion to determine the matters described in paragraph [7]. However, Mr. Holz does not appear to have sought or received any independent legal advice on this issue and it was evident to the Tribunal that as a non-lawyer he understandably does not fully comprehend the legal issues at play yet remains very insistent that he alone is entitled to personally prosecute this action.

10These circumstances put the Tribunal in an unusual position. However, in this Tribunal’s view, the public interests at stake here, and the well-established jurisprudence, require it to more fully consider the issues created by the way in which this proceeding has been instituted, in light of Mr. Holz’s arguments at the CMC and his apparent intentions. The Tribunal requested that Mr. Holz deliver whatever materials he had that he believed may establish that he is the executor of the Claimant Estate and, as claimed, is the sole beneficiary of the Estate. However, as the Tribunal noted several times to Mr. Holz at the CMC, the OLT has no jurisdiction to make rulings concerning estates matters which can only be adjudicated in the Ontario Superior Court. Mr. Holz became exasperated about this and the Tribunal had to reiterate that it cannot assume such jurisdiction simply at the request of a Party.

11The Ontario Land Tribunal Rules of Practice and Procedure do not directly address these circumstances concerning the representation of the Estate although by Rule 26.16 “The Rules of Civil Procedure apply to proceedings under this Part… [in expropriation cases] …unless the Tribunal on motion orders otherwise”. Rule 15.01 of the Ontario Rules of Civil Procedure (“Rules”) provides:

“Where Lawyer Is Required

15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (1); O. Reg. 575/07, s. 1.

(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.

(3) Any other party to a proceeding may act in person or be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (3); O. Reg. 575/07, s. 1.”

[above emphasis added]

12The Ontario Court of Appeal in Herberman Estate (Re), 2003 CanLII 10801 noted:

5An appeal has been launched by Lillian Streisfield in her capacity as litigation administrator on behalf of the estate of Gerald Streisfield. Pursuant to rule 15.01(1), she is unable to personally represent the estate. Rule 15.01(1) requires that the estate be represented by a solicitor. In the circumstances, we order that if a solicitor is not retained by March 15, 2003 to represent the estate of Gerald Streisfield in its appeal, a motion may be made to this court to dismiss that appeal.

[above emphasis added]

13In Direk v. Attorney General Of Ontario, 2010 ONSC 3428, the Superior Court stated:

5The applicants argue that they are unable to obtain legal representation by reason of an alleged longstanding systemic conspiracy among the legal profession in Ontario. They argue that as a result all lawyers have a conflict of interest and cannot properly represent them. In the circumstances, they argue, as individuals who have long involvement in and familiar with the issues in this case, Ural and Kemal should be granted leave to represent the interests of Elif and Ertug. The applicants argue that the court should exercise its discretion to excuse compliance with the Rules in this regard, because the interests of justice required it.

6The law is well settled in Ontario that the court has no discretion to permit a non-lawyer to represent another individual in proceedings before the Superior Court of Justice. The topic is analyzed in depth in Gagnon v. Pritchard (2002), 2002 CanLII 49419 (ON SC),58 O.R. (3d) 557 (S.C.J.). As noted in that case, even where there is a formal power of attorney in favour of an individual, that person cannot act as legal representative in Superior Court proceedings. As stated in that decision (at para. 44):

“It would be both wrong and risky to interpret the court's inherent jurisdiction to control its own procedures so as to, in effect, permit the court to issue licences to practise law in its discretion.”

[above emphasis added]

14The Divisional Court in Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 stated:

4Rule 15.01(1) of the Rules of Civil Procedure provides that; A party to a proceeding who… acts in a representative capacity shall be represented by a lawyer.

[5] As estate trustee, Leon Radzevicius acts in a representative capacity for the estate and the beneficiaries as is made clear by Rule 9.01. Therefore, he is not authorized to appear on behalf of the estate in this court without a lawyer. The Rules do not provide the court with the ability to grant leave to a non-lawyer to act as they do, for example, under Rule 15.01(2) when a corporation is involved…

[7] Moreover, the Superior Court of Justice has no discretion to permit a non-lawyer to represent another individual in proceedings before it: Direk v. Ontario (Attorney General), 2010 ONSC 3428, at para. 6. Any inherent jurisdiction to control the court’s processes is ousted by the prohibitions against non-lawyers providing legal services under the Law Society Act, RSO 1990, RSO 1990, c L.8. This is not a case of a self-represented litigant appearing in court as of right and then, with leave of the court, being aided by a relative or friend. The estate trustee is not a self-represented litigant with a right to appear before the court on his own behalf. Rather, his status as a litigant is as a representative for the estate and its beneficiaries. Only a lawyer may appear in this court representing others.

[above emphasis added]

15Brun Del Re v. The Estate of Philip Thomas Buck, 2022 ONSC 6002 is another relevant case supporting the same principles stated in paragraph [14] above, as is the recent decision of Associate Justice Robinson in Eskandari v. Raizman, 2023 ONSC 1674 where at paragraph 11 he stated:

“Representation by a lawyer in this case is a mandatory requirement. Unlike a corporation, for which leave to be represented by a non-lawyer may be granted under subrule 15.01(2), the Rules do not provide the court with any authority to grant leave to a non-lawyer to act for another person in a representative capacity. As set out in s. 26.1 of the Law Society Act, RSO 1990, c L.8, only licensees of the Law Society of Ontario are entitled to practise law or provide legal services in Ontario. Although no case law has been cited by either party, it is well-established that only a lawyer may appear to represent others in proceedings before the Superior Court of Justice and that the court has no discretion to permit a non-lawyer to represent another individual, including when acting in a representative “capacity”

[above emphasis added]

16It is this Tribunal’s determination that it must recognize and follow the principles described and maintained by the Court of Appeal, the Divisional Court and the Superior Court in the jurisprudence discussed in paragraphs [11], [12],[13], [14] and [15] above. Those principles are matters of general law and procedure under the Rules governing situations where a non-lawyer seeks to act in a representative capacity for an estate, as is exactly the situation here. Given that the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6 and the OLT Rules are silent on the matters raised by the circumstances described above, and in light of OLT Rule 26.16, the Tribunal is satisfied that it should follow the well-established jurisprudence under Rule 15.01(1). In this Tribunal’s view, there are no current compelling circumstances or available, reliable evidence that would justify its exercise of discretion under OLT Rule 26.16 to rule otherwise.

17The Tribunal acknowledges the strong feeling of Mr. Holz that as the sole beneficiary of – and executor of - the Estate that he ought to be permitted to represent the Estate in this action. The Tribunal also takes note that Mr. Holz filed an ‘Affidavit of Self-Adjudication’, appended as Attachment ‘B’ hereto along with a number of photo-copied documents to demonstrate that he is the sole beneficiary of the Estate and that his brother has apparently relinquished all claims against the Estate. Mr. Holz also relies on this Affidavit for the purpose of addressing Rule 15.01(1) but the Tribunal does not accept it as determinative – it is simply an attempt at legal argument contained in the form of an affidavit by Mr. Holz as the proponent of the argument. Moreover, as stated, this Tribunal is not empowered to make a legal ruling as to the ownership of the Claimant Estate or its property.

18The Tribunal has no jurisdiction to make definitive findings that, as a matter of Ontario estates law, Mr. Holz is, in fact, the sole beneficiary of his parents’ estate or “owner” of it. For example, the Tribunal does not know, nor can it make any reliable enquiries to determine, whether there are any other claimants or beneficiaries of that estate. The Tribunal also cannot rely on photo-copied documents of this nature in these circumstances. The Tribunal is loathe to make any rulings in this proceeding that could in theory impact the rights of those who may be entitled to make claims against the Estate – that is again, well beyond its statutory mandate. The Affidavit in Attachment B does not change this. Mr. Holz also filed another document with the Tribunal entitled “Proof of Ownership of the Estates of Ellen Ingeburg Holz and Nikolaus Reiner Holz” which included Attachment B and stated that there is a tax debt interest registered against the Subject Property but that this should not be seen to create any beneficial interest in the Estate and “will be challenged through litigation”. Again, the Tribunal can neither rely on such a document or assertion and has no power to rule upon the estates law matters.

19As a matter of observation, the Tribunal notes that it is quite clear that Mr. Holz would be greatly assisted if he was to retain experienced expropriations counsel to represent the Estate in this proceeding – claims under the EA are not routine matters and the effective presentation of such claims at a hearing requires a high degree of expert preparation, skill and judgment.

20It also strikes the Tribunal that Mr. Holz as the apparent executor of the Estate certainly has the power to appropriately conclude and dispose of all outstanding matters concerning the Estate and, if he is indeed the sole beneficiary, to assume ownership of the Subject Property. Thus, if Mr. Holz does not wish to have legal counsel involved in the pursuance of this EA claim, he has a ready solution at hand: once he becomes the legal owner of the Subject Property he can then seek to continue this action in his personal capacity and be self-represented if that is his preference. Currently, based on the pleadings filed, the Claimant Estate is the owner of the Subject Property and no contrary evidence was made available to the Tribunal.

NO BASIS UPON WHICH TO GRANT PARTY STATUS TO ERIC POLTEN

21As noted, Mr. Polten seeks Party status. Based on his submissions at the CMC it became evident that he is interested in this proceeding because he claims to be a mortgagee in respect of the Subject Property, having been apparently granted that mortgage by the late father of Mr. Holz, as a collateral form of security for a debt owed for his legal fees for past legal work performed. This could raise a possible issue as to whether Mr. Polten is or could be a judgment creditor of the Estate. Of course, it also raises the question of whether as executor of the Estate, Mr. Holz owes any duties to Mr. Polten. Mr. Holz forcefully denies this, which led to a rather spirited and loud argument between him and Mr. Polten at the CMC which at one point threatened to spiral out of control. However, once again, this dispute is well beyond the jurisdiction of this Tribunal to determine.

22In the Tribunal’s view, based on the information available to date, there is no basis upon which to grant Party status to Mr. Polten. He would not be tendering any independent evidence in relation to the Claim that could assist the Tribunal. Instead, this seems to be a situation where Mr. Polten seeks Party status in order to somehow protect his alleged interests as a possible creditor of the Estate. This is not an appropriate basis upon which the Tribunal should grant Party status and it is clear that whatever Mr. Polten’s interests and legal rights may be, they are best dealt with by an originating application in the Superior Court as against the Estate.

CONCLUSIONS

23For the reasons set out above, the Tribunal directs that Mr. Holz, in his role as executor of the Claimant Estate, shall retain legal counsel to represent the Claimant. The Tribunal also determines that Mr. Polten is not granted Party status. Finally, the PO, as amended shall govern the future conduct of this matter, subject to the Orders made below.

ORDERS

24THE TRIBUNAL ORDERS THAT:

(a) Within 30 days of the date of this Order, the Claimant and Nicolay Holz as executor of the Claimant Estate must retain legal counsel to represent the Claimant in this proceeding;

(b) In the event that the Claimant and Nicolay Holz as executor of the Claimant Estate fails to satisfy the Order in paragraph [24] (a), the Respondent MTO may bring a motion to dismiss this proceeding or the Tribunal may institute its own motion to dismiss this proceeding;

(c) The Procedural Order appended as Attachment ‘A’ shall govern the conduct of this proceeding;

(d) The hearing of this appeal shall proceed on July 29, 2024, the details of which are set out in paragraph [5] above.

25This Vice Chair shall remain available to assist the Parties with respect to the implementation of the above Orders and the ongoing case management of this matter. The Tribunal recognizes that once legal counsel is retained in accordance with the Order made above in paragraph [24] (a), it may be necessary to revisit certain details in the Procedural Order now made Attachment A. In that event, the Parties may make written submissions to the Tribunal with respect to any proposed required changes.

“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.

Attachment A

CASE NO(S).: OLT-22-004658

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

Claimant: The Estates of Nikolaus Holz and Ellen Holz

Respondent: Ministry of Transportation

Subject: Determination of Compensation

Property Address/Description: Part Lot 25, Registrar’s Compiled Plan 320

Municipality: Powassan/Parry Sound

Municipal File No.:

OLT Case No.: OLT -22-004658

OLT File No.: OLT -22-004658

OLT Case Name: The Estates of Nikolaus Holz and Ellen Holz v. MTO

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 July 29, 2024 at 10:00 a.m. for a period of four (4) days ending August 1, 2024 in person at

Ontario Land Tribunal 655 Bay Street

16th Floor Toronto, Ontario

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 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 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.

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

a. Discovery Process

9. The parties shall exchange their respective Affidavits of Documents and Productions by August 18, 2023.

10. Examinations for Discovery of the representative of each party shall be completed on or before October 13, 2023. The parties consent to conducting examinations for discovery by way of videoconference.

11. Each party shall answer their respective undertakings arising from examinations for discovery on or before November 13, 2023.

b. Motions

12. Any motion arising from either documentary discover or the Examinations for Discovery and answers to undertakings, if necessary, shall be filed in writing on or before December 15, 2023. There will be no oral hearing except as may scheduled at the sole discretion of the Tribunal.

13. 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 written discovery motion before the Tribunal.

c. Evidence

14. “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.

15. “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.

16. “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.

17. The Claimant shall provide their expert report(s) and witness statements to the Respondent by March 29, 2024.

18. The Respondent shall provide their expert reports(s) and witness statements to the Claimants by May 24, 2024.

19. The Claimant shall provide an reply expert report(s) and reply witness statement to the Respondent by June 28, 2024.

20. Further written evidence, witness statements, and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted pursuant to s. 28(1) of the Expropriations Act, 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.

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

22. 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.

23. 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.

24. 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

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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. Mediation Assessment

31. The Tribunal will a mediation assessment at the request of the parties with a view to scheduling mediation on a date that is mutually agreed by the parties and the Tribunal.

f. Request to Admit

32. 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.

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

g. Witnesses

34. 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 thirty (30) days prior to the hearing commencement date, which is July 29, 2024.

35. 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.

36. Expert witnesses in the same field shall have a meeting on or before thirty (30) days prior to the hearing commencement date, which is July 29, 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 before the hearing.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

h. Hearing Plan

42. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days before the hearing commencement date, which is July 29, 2024 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.

i. Filing with the Tribunal

43. 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

Estates of Nikolaus Holz and Ellen Holz

Claimants

Nicolay Holz

44 Ardmore Road, Apt 2C

Toronto, ON M5P 1W1

Email: nicolayholz@gmx.com

His Majesty the King in Right of Province of Ontario, as represented by the Minister of Transportation

Respondent

Ministry of the Attorney General

Crown Law Office – Civil

720 Bay Street, 8^th^ Floor

Toronto, ON M7A 2S9

Jennifer Boyczuk (LSO # 70838L)

Tel: 416-909-6673

Email: jennifer.boyczuk2@ontario.ca

Attachment 2

OLT File No.: OLT -22-004658

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:

THE ESTATES OF NIKOLAUS HOLZ AND ELLEN HOLZ

Claimants

• and -

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

Respondent

ISSUES LIST

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

Date: July 7, 2023

Attachment 3

OLT File No.: OLT -22-004658

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:

THE ESTATES OF NIKOLAUS HOLZ AND ELLEN HOLZ

Claimants

• and -

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

Respondent

ORDER OF EVIDENCE

1. The Estates of Nikolaus Holz and Ellen Holz

2. The Minister of Transportation

3. The Estates of Nikolaus Holz and Ellen Holz, in Reply