My Place on 7 Inc. v. York (Regional Municipality), 2023 CanLII 78875

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 22, 2023

CASE NO(S).: OLT-21-001186

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

Claimant: My Place on 7 Inc.

Respondent: Regional Municipality of York

Subject: Land Compensation

Property Address/ Description: 4850 Highway 7

Municipality: City of Vaughan

OLT Case No.: OLT-21-001186

OLT Lead Case No.: OLT-21-001186

OLT Case Name: My Place on 7 Inc. v. York (Regional Municipality)

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

Request by: My Place on 7 Inc.

Request for: Request for Discovery

Heard: Motion In Writing

APPEARANCES:

Parties

My Place On 7 Inc. (“My Place” or “Claimant”)

Counsel

S. Rayman, L. Cummings

Parties

Regional Municipality of York (“York” or “Respondent”)

Counsel

F. Sperduti, M. Grant

DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This motion arises from an expropriation claim made by My Place relating to an expropriation by York of certain permanent and temporary easements of the Claimant’s property, 4850 Highway 7, Vaughan, Ontario (the “Subject Property”), on March 5, 2018. By a Procedural Order issued on September 20, 2022, the Parties were to, among other things, conduct examinations for discovery, which took place on December 6, 9, and 19, 2022.

2My Place delivered a Notice of Motion dated April 18, 2023 seeking answers to undertakings and to questions refused and taken under advisement by York. Then, My Place delivered a Supplementary Motion Record also dated April 18, 2023 seeking the same relief, comprising 134 pages. My Place also sought an Order as follows:

“An order amending the Procedural Order, to ensure that My Place on 7 Inc. … continues to have five months following receipt of all of the Region’s answers to undertakings, under advisements, and refusals prior to the date on which it has to deliver its expert reports and all necessary changes to the Procedural Order arising from this delay, as agreed to by the Parties.”

3York delivered a Responding Motion Record dated April 20, 2023, comprising 20 pages.

4My Place delivered a Factum dated May 2, 2023 comprising 38 pages, and York provided a ‘Responding Factum and Costs Submissions’, dated May 4, 2023, comprising 37 pages. My Place delivered a Reply Factum dated May 8, 2023, containing 7 pages. In addition, the Claimant delivered a Book of Authorities dated May 2, 2023 containing 14 tabs, along with Costs Submissions comprising 6 pages and dated May 2, 2023 and a further Costs Outline, containing 5 pages.

5Neither Party included the applicable pleadings in their motion records, which are:

(a) Notice of Arbitration, dated July 20, 2021;

(b) Statement of Claim, dated May 25, 2022; and

(c) Reply, dated June 14, 2022.

BACKGROUND

6In its Factum, My Place stated that York expropriated permanent and temporary easements of the Claimant’s property, 4850 Highway 7, Vaughan, Ontario (the “Subject Property”), on March 5, 2018. York is undertaking a project along Highway 7 and adjacent roads to expand rapid transit services throughout the Region (the “Works”). For internal purposes, the project was divided into phases. The Subject Property lies on the dividing line between phases of these Works. My Place alleges that this has caused complications and uncertainty as to the effect that the Works will have on the Subject Property.

7Counsel for My Place also alleged in its Factum that:

“The Parties are subject to a procedural order issued by the Tribunal on September 20, 2022. The Claimant has governed itself in accordance with this order. The Respondent has not…The parties had more than two months to prepare and exchange answers to undertakings, under advisements, and refusals given during these examinations. On February 28, 2023 the Claimant served its answers. After 5:00pm on that date – being the date set by the procedural order for the exchange of answers – the Respondent’s counsel advised it was not in a position to serve its materials. Instead, the Respondent took an additional five weeks to provide its answers. Because the Claimant had been given no forewarning that the Respondent would not be complying with the procedural order, the Respondent was unfairly advantaged by having the Claimant’s materials for weeks before providing its own.”

8My Place’s counsel noted that since service of the Notice of Motion both Parties have worked to narrow the scope of this Motion and there still remain four categories of questions refused that are in dispute between them, although only a modest number of refusals / undertakings under advisement:

a. questions related to expropriations of neighbouring properties;

b. questions related to prior attempts by the Respondent to purchase the Subject Property;

c. questions related to the prematurity of the claim; and

d. questions related to the Respondent’s non-compliance with the Expropriations Act, R.S.O. 1990, c. E26 (the “EA”).

Counsel for My Place argues that the above-noted categories of questions are relevant to the pleadings; will assist the Tribunal in determining compensation owed; and that requiring answers to these questions is “proportionate relief”.

9Unsurprisingly, counsel for York offers a different perspective on the motion brought by My Place:

“My Place … urges the Tribunal to view this motion as one that is unnecessary and brought about by the Region’s apathy towards deadlines set by the Tribunal and to its obligations to produce documents and information relevant to the matter at hand… The Tribunal should not adopt the Claimant’s perspective… The Region has worked diligently to collate and organize a massive amount of information and respond to 40 undertakings, 55 questions taken under advisement, and 51 questions that were refused… The Region has engaged in consistent, good-faith attempts to settle portions of this motion and narrow issues in dispute through exchanges with Claimant counsel and the production of documents and information responsive to certain undertakings, questions taken under advisement, and questions that were refused. These attempts have been successful and embraced by the Claimant… The Region has properly refused to answer the questions that remain at issue. These questions are irrelevant, overbroad, vague, and violate the proportionality principle that governs the discovery process… The Tribunal ought to dismiss the vast majority of this motion, which is the unfortunate result of the Claimant’s attempt to engage in inappropriate discovery…”

[above emphasis added]

ISSUES / ANALYSIS AND FINDINGS

10The refusals / undertakings under advisement at issue on this motion (“Refusals”) are as set out in Schedule A to the Claimant’s amended Notice of Motion, which is also appended to this Decision as Attachment A.

11The Tribunal agrees that its analysis of whether York ought to be ordered to answer the Refusals must be based on a consideration of whether the questions at the discoveries which gave rise to the Refusal are: (a) relevant to matters contained in the Statement of Claim and the Reply; and (b) do not contravene the principle of proportionality.

12The relevancy issue is expressed in Rule 31.06 of the Ontario Rules of Civil Procedure RRO 1990, Reg 194 (“Rules”). The Rules may be applied by the Ontario Land Tribunal (“OLT”) in relation to expropriation proceedings under Rule 26.16 of the OLT Rules of Practice and Procedure (“OLT Rules”), which provides:

“… 26.16 Applicability of Rules of Civil Procedure No Tribunal order is required for examinations for discovery or documents. The Rules of Civil Procedure apply to proceedings under this Part unless the Tribunal on motion orders otherwise…”

Rule 31.06 of the Rules states:

“…31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined. R.R.O. 1990, Reg. 194, r. 31.06 (1); O. Reg. 438/08, s. 30 (1).”

[above emphasis added]

13Proportionality is described in Rule 29.2.03 of the Rules of Civil Procedure, which states:

…29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

a. the time required for the party or other person to answer the question or produce the document would be unreasonable;

b. the expense associated with answering the question or producing the document would be unjustified;

c. requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

d. requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

e. the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.”

[above emphasis added]

14Relevancy is largely determined by the pleadings, in this case being the Statement of Claim and the Reply.

15York alleges that neither the “Issue of Frontage” nor the “Issue of Dedication”, to which many of the Refusals relate, have been pleaded by My Place. On the other hand, My Place counters that the “Issue of Frontage” is properly derived from paragraph 39 of its Statement of Claim and that the “Issue of Dedication” was raised in York’s Reply. Counsel for York suggests that, in effect, York’s Reply cannot be so utilized by the Claimant as a basis for questioning.

16Paragraph 39 of the Statement of Claim is not a model of clarity and is somewhat vague. However, the Tribunal recognizes that proper pleadings are to contain concise statements of material fact and not detailed evidence or argument. Therefore, the Tribunal agrees that the ‘Issue of Frontage’ can be seen to arise from paragraph 39, which alleges:

“…39. The temporary expropriations have expired and the first five-year term of the Works has expired. However, the Transportation Master Plan shows that the Region intends to make further improvements to Highway 7 abutting the Subject Lands as part of the Works. These further changes have not yet been realized and the Claimant continues to receive conflicting information on what improvements will be made to the portion of Highway 7 adjacent to the Subject Lands and for which the permanent easement was taken.”

17The Tribunal disagrees with the contention that the Claimant may not ask questions on discovery related to matters raised by York in its Reply with respect to the ”Dedication Issue”. No jurisprudence was cited by York to support that argument. Clearly, in paragraph 28 of its Reply, the ‘Issue of Dedication’ is raised:

“…28. The Region has the authority under the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”) to require land dedication without compensation as part of the planning process. The Claimant’s redevelopment application would have triggered this requirement. As part of site plan approval, the Claimant would have been required to dedicate what ended up being the Expropriated Easements to the Region without compensation.”

[above emphasis added]

18The matter described by York in its Responding Factum as the “Issue of Process”, which is largely addressed by the Claimant in its Factum at paragraphs 43 and 44, can also be characterized as alleged ”Differential Treatment” by York of the Claimant as compared to other property owners also affected by York’s projects which gave rise to its expropriation.

19The Tribunal is not satisfied that the Claimant’s questions at discovery related to ”Differential Treatment” / the “Issue of Process” are linked to any allegations set out in the Statement of Claim or the Reply. Thus, the Tribunal agrees with York’s argument in its Responding Factum that:

“…28. With respect to the Issue of Process, whether the Region followed a different process is also irrelevant to Claimant’s claims related to loss of access and utility. The Claimant does not plead that differential treatment relative to neighbouring properties has caused it injurious affection. In addition, the Region’s rationale and decision-making processes adopted in relation to the neighbouring properties are based on a multitude of factors specific to those properties and cannot be reasonably and usefully compared to the Subject Property.”

20At examinations, the Claimant’s counsel also asked certain questions regarding how the next phase of the highway construction project planned by York might affect the property line and access of My Place’s parcel. Counsel for York terms this line of questioning as the ”Compatibility Issue” and maintains its Refusals on the basis that there is no adequate explanation of relevance made by the Claimant. Although this is certainly a speculative area, the Tribunal is of the view that these questions do relate to the allegations generally made at paragraphs 32 to 39, inclusive, of the Statement of Claim. Thus, in the Tribunal’s view, such questions are relevant.

21York also objects to being required to address certain Refusals that concern what it describes as its ”Litigation Strategy” but does so solely on the basis of lack of proportionality (which is dealt with in paragraphs [25] and [26] below).

22Other Refusals related to questions asked concerning previous negotiations and discussions with the previous owner of the property now owned by the Claimant. These questions York objects to on the basis of lack of relevance. The Tribunal agrees with this position and York’s assertion in its Responding Factum that:

“…The negotiations the Region may have had with the previous owner of the Subject Property have no bearing on the “uncertainty of the injury to the Subject Property that will flow from the next phase of the Works.”31 The answers to these questions will not change the nature of the expropriation that occurred, the size of the expropriated lands, or what other decisions the Region makes about the Subject Property in the future. What the Region did or did not do in this context has no bearing on what injury, if any, might occur in the future. Similarly, the Region’s negotiations with the previous owner of the Subject Property have no bearing on the design and impact of the next phase of the Works…None of these questions are relevant to the determination of market value…The Region’s decision-making process prior to the date on which market value is determined is irrelevant to that determination and will not assist the Claimant in challenging the Region’s position on the market value of the expropriated lands…”

23York also argues that questions 292, 295, 396, and 397 (and the resultant Refusals therefrom) are too vague. The Tribunal agrees.

24The issue of proportionality must still be considered insofar as the Tribunal’s determinations of relevancy set out in paragraphs [17], [18], [21] and [22]. York makes a number of arguments and allegations in paragraphs 38 to 40, inclusive, and then again in [47] to [50], inclusive, and elsewhere in its Responding Factum about the lack of proportionality and undue effort required if it was required to answer several Refusals and to therefore search for and produce documents, etcetera. The Tribunal generally agrees with the principles cited by York’s counsel, that are, in turn, derived from the jurisprudence relating to Rule 29.2.03 of the Rules.

25However, the Tribunal concurs with the counter arguments on proportionality set out in paragraphs 6 to 8 of the Claimant’s Reply Factum to the effect that the lack of proportionality has likely been overstated and that there is no evidence before the Tribunal to substantiate the arguments made by York in its Responding Factum. The latter situation creates a difficulty for the Tribunal – yet, on the other hand, the Tribunal concedes that to require an extensive effort and supporting affidavit to justify proportionality arguments could, in some situations, be unwarranted. However, on balance, the Tribunal cannot rely solely on legal argument made in a factum or a schedule column that lists brief reasons. Thus, the Tribunal is unable to accord weight to these arguments of York.

26As a final matter, the Tribunal notes that some of the arguments made in the factums filed by counsel for both the Claimant and the Respondent are no longer applicable to the much-reduced list of outstanding refusals and questions taken under advisement set out in Attachment A. The Orders made below relate solely to those remaining items.

ORDER

27THE TRIBUNAL ORDERS THAT:

(a) the following questions refused at the examination for discovery of R. Mihalis held on December 9 and December 19, 2022 (as set out in Attachment A to this Decision) shall be answered: Questions 394 (except those documents which would be duplicates of productions already made by the Claimant); 441; 448; 455; 458; and 459.

(b) upon a written request from either Party, a Case Management Conference (“CMC”) to discuss any required amendments to the currently governing Procedural Order (“PO”) will be scheduled at the earliest reasonable date by the Tribunal on notice to the Parties. Alternatively, the Parties may make either a joint submission or separate submissions in writing in order to avoid any possible scheduling delays;

(c) At least 3 days prior to the date of any CMC that may be scheduled as described above in paragraph [27] (c), the Parties shall submit to the Tribunal a draft revised PO on a consent basis, or a draft PO that clearly delineates any areas of disagreement; and

(d) There shall be no Order of costs made in respect of this motion proceeding.

28This Vice-Chair shall remain available to assist the Parties with the ongoing case management of this matter, subject to the Tribunal’s scheduling requirements.

“William Middleton”

WILLIAM MIDDLETON VICE CHAIR

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.