Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 12, 2023
CASE NO(S).:
OLT-22-002362
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended
Claimant:
Motek Cultural Initiative
Respondent:
Metrolinx
Subject:
Land Compensation
Property Address:
1Atlantic Avenue
Municipality:
City of Toronto
OLT Case No.:
OLT-21-002362
OLT Lead Case No.:
OLT-21-002362
OLT Case Name:
Motek Cultural Initiative v. Metrolinx
Heard:
In writing
APPEARANCES:
Parties
Counsel
Motek Cultural Initiative (“Motek” or “Claimant”)
C. Harris, L. Cummings
Metrolinx
A. Flarity, M. Cherkas
DECISION DELIVERED BY DALE CHIPMAN AND GWEN CROSER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was a written motion commenced by Metrolinx on August 22, 2023 (“Motion”) arising from the alleged failure of Motek to honour its undertakings given at the examination for discovery (“Undertakings”) of its representative Ms. Ravid Rachel Dahan conducted on July 26, 2023, and to answer certain questions taken under advisement (“Refusals”).
2The background and history of this file has been set out in the Tribunal’s Decisions dated August 23, 2022, and July 18, 2023,and need not be reiterated.
MOTION ISSUES AND ANALYSIS
3In its Motion materials, comprising 305 pages, Metrolinx seeks compliance by the Claimant with the Undertakings. This now appears moot since in its Responding Motion Record dated August 31, 2023, comprising 168 pages, the Claimant’s counsel maintains and describes in detail that all Undertakings have now been satisfied. No further submission was made by counsel for Metrolinx to dispute that contention and therefore the Tribunal assumes that there is no longer a dispute regarding the Undertakings.
4In the event that the Claimant suddenly produces information for the first time at the rapidly approaching hearing of this matter scheduled for four days commencing Monday, October 23, 2023, then at that time the Tribunal may consider whether it is procedurally fair to permit into evidence such information if it determines that it should have been earlier provided to Metrolinx pursuant to one or more of the Undertakings.
5The Refusals were listed in the Motion materials of both Metrolinx and Motek and there appears to be no dispute about their form and content.
6The Tribunal has carefully reviewed the Refusals and the Motion materials and determines that the following items as listed in Schedule A of the Responding Motion Record are relevant to matters arising from the factually-rich pleadings set out in the Claimant’s Statement of Claim and in the Reply delivered by Metrolinx. As such, the information requested must be produced immediately as only a general allegation unsupported by specific evidence was made by the Claimant’s counsel to the effect that to do so could create any undue burden for the Claimant:
(a) Q. 358 p. 114 To produce the employment contracts of contractors that were hired to assist MCI with the expropriation and relocation. Ruling: only the contracts actually entered into by Motek and/or its affiliated entities in connection with “the expropriation and relocation” need be produced;
(b) Q. 367 p. 117-118 To produce copies of any T4s filed on behalf of the contractors hired to assist with the expropriation and relocation. Ruling: only the T4’s actually created by Motek and/or its affiliated entities for any of their employees in connection with such employees’ employment in connection with “the expropriation and relocation” need be produced;
(c) Q. 386 p. 123 To produce a detailed invoice and terms of storage for the storage of items moved out of 1 Atlantic and any receipts for payment regarding the same. Ruling: only if not already provided in its productions, this documentation must be produced; and
(d) Q.’s 490, 500 157-158, p. 160-161 To produce invoices, from both MP and its external contractors, for services related to expropriation that MP incurred for work carried out on behalf of MCI, to the extent that they exist, and to produce proof of payment of any invoices regarding the same. Ruling: only if not already provided in its productions, this documentation must be produced;
7Other than as described in paragraph [6] above, the Tribunal has determined that none of the other Refusals are relevant to matters arising from either the Claimant’s Statement of Claim or in the Reply delivered by Metrolinx, and therefore need not be addressed. The Tribunal further determines that there is no demonstrated need for Ms. Dahan to be further examined for discovery in relation to the Refusals described in paragraph [6] above.
8The Tribunal reminds the Parties that no adjournment of the hearing scheduled as described above in paragraph [4] will be granted except in accordance with Rule 17 of the Tribunal’s Rules of Practice and Procedure. The Tribunal notes that the previous hearing date in this proceeding was vacated due to the Parties’ obvious lack of readiness and that the Tribunal is therefore not prepared to consider another adjournment absent truly exigent circumstances. The Tribunal is also of the view that none of the information sought by Metrolinx in its Motion can reasonably be seen as being of critical importance to Metrolinx’s preparation for the upcoming hearing.
ORDER
9THE TRIBUNAL ORDERS THAT:
(a) The information that is responsive to the questions which were refused at the examination for discovery of Ms. Ravid Rachel Dahan conducted on July 26, 2023 as described and listed above in paragraph [6] of this Decision must be delivered by the Claimant within five days of the date of this Order;
(b) If the information subject to the Order set out in paragraph [9] (a) is not delivered in accordance with that Order, then the Claimant shall not be entitled to tender any evidence concerning such information at the hearing of this proceeding to commence on Monday, October 23, 2023, except with leave of the Tribunal granted at the hearing;
(c) There shall be no costs awarded in connection with the written Motion that is the subject matter of this Decision and Orders.
10These Tribunal Members shall remain available to assist with any matters arising from the above Orders.
“D. Chipman”
D. CHIPMAN
MEMBER
“G.A. Croser”
G. A. CROSER
MEMBER
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.