Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
August 31, 2023
CASE NO(S).:
OLT-22-002685
(Formerly LC140048)
PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.
Claimant
Oshawa Sand & Gravel Supply
Respondent
Ministry of Transportation
Subject:
Determination of compensation
Property Address:
Part of Lot 25, Concession 3
Municipality/UT:
Clarington/Durham
OLT Case No:
OLT-22-002685
Legacy Case No:
LC140048
OLT Case Name:
Oshawa Sand &Gravel Supply v. Ontario (MTO)
Heard:
August 30, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Oshawa Sand & Gravel Supply
C. Tzekas A. Sinclair (in absentia)
Province of Ontario (MTO)
R. Lawson
MEMORANDUM OF ORAL DECISION DELIVERED BY S. DIXON ON AUGUST 30, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision and Order arises from the second Case Management Conference (“CMC”) regarding a claim by Oshawa Sand & Gravel Supply (“Claimant”) pursuant to s. 26(2)(b) of the Expropriations Act, R.S.O. 1990, c. E.26.
2The Statement of Claim pertains to lands expropriated by the Province of Ontario (“Province”) for the construction of the East Durham Link as part of the Province’s Highway 407 easterly extension project. The expropriated lands are located on Part of Lot 25, Concession 3 in the Municipality of Clarington.
OPPORTUNITIES FOR SETTLEMENT
3Mr. Tzekas, Counsel for the Claimant, advised the Tribunal that in November 2022, the Parties participated in mediation before the Board of Negotiation that resulted in “a significant success” that resolved several claims in principle. A partial settlement agreement was then forwarded to the Province for their consideration. However, that partial settlement has not yet been finalized.
4Since that time, a full settlement proposal for the entirety of the Claim was presented to the Province, who are in the process of reviewing same. The Parties are hopeful that an agreement will be reached, negating the need for a hearing.
PROCEDURAL ORDER
5A Procedural Order was issued on October 12, 2022, following the first CMC for this matter. The Procedural Order set an eight-day Hearing commencing Wednesday, November 29, 2023, and established dates for the service and exchange of materials in advance of same.
6The Procedural Order also scheduled this CMC, being the second in this matter, to set the dates for the completion of any remaining procedural steps, including setting dates for the:
a. Exchange of Witness List, Expert Witness Statements, Reports, and/or Lay Witness Statements;
b. Exchange of Expert Reply Witness Statements and/or Reply Reports; and
c. Meeting of Like Experts (if necessary).
7At this CMC, the Tribunal was informed that, in an effort to resolve the case without a hearing, the Parties had not adhered to the Procedural Order and several of the dates contained within it had lapsed without the filing or exchange of the required documents.
8Despite the above, the Claimant advised the Tribunal that they still wish to proceed to the scheduled Hearing in the event a settlement cannot be reached. However, doing so will require an amended Procedural Order with a condensed timeline for the required procedural steps.
9While the Tribunal does not take the failure of Parties to follow its direction lightly, it does recognize that in this instance, best efforts have been made by the Parties to resolve the matter without a hearing and, according to the Parties, there is a high likelihood that will occur.
10Mr. Tzekas advised the Tribunal that he has prepared an amended Draft Procedural Order (“DPO”) to reflect a revised timeline leading to the November 29, 2023 Hearing. The DPO, he noted, benefits from the prior mediation and settlement discussions that have reduced the number of issues between the Parties.
11Given the circumstances, the Tribunal will rely on the following provision of the Procedural Order to amend all or part of same following receipt of the DPO on consent of the Parties, in accordance with Paragraph [15] of this Decision:
- At the request of any person, or on its own motion, the Tribunal may amend, vary or supplement all or any part of this Order at any time, either by making a ruling orally or by a further procedural order.
NEXT STEPS
Scheduling of a Further CMC
12In light of the above, the Parties requested an additional CMC in the near future to address the potential settlement and/or next steps in advance of the Hearing, if required. The Tribunal granted the request and scheduled a third CMC for Thursday, September 28, 2023 at 9:30 a.m. to be held via Telephone Conference Call (“TCC”).
13The details and instructions for the TCC are as follows:
Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874 to be connected to the call.
14It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
Status Update
15In advance of the next CMC, the Tribunal directed the Parties to provide a status update with the Case Coordinator no later than Friday, September 22, 2023, in accordance with the following:
a. If a full resolution has been reached between the Parties, the Parties will inform the Tribunal of same and advise as to whether the CMC is still required.
b. Any settlement materials requiring the Tribunal’s attention will be filed with the Tribunal at the time of the status update.
c. If a full resolution has not been reached between the Parties, the Parties will submit an amended DPO with the Tribunal at the time of the status update for consideration at the CMC.
ORDER OF THE TRIBUNAL
16THE TRIBUNAL ORDERS that a CMC will commence by Telephone Conference Call on Thursday, September 28, 2023 at 9:30 a.m.
17THE TRIBUNAL ORDERS that the Parties provide the Tribunal’s Case Coordinator with a status update no later than Friday, September 22, 2023 in accordance with Paragraph [15] of this Decision.
18This Member is not seized.
“S. Dixon”
s. dixon
membeR
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.