Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 19, 2023

CASE NO(S).: OLT-22-002692 (Formerly LC190014)

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E. 27

Claimant: Nilrac Holdings Inc. Respondent: Metrolinx Description: Determination of compensation Property Address: 842 Eglinton Avenue West Municipality/UT: City of Toronto OLT Case No: OLT-22-002692 OLT Legacy Case No: LC190014 OLT Lead Case No: OLT-22-002692 Legacy Lead Case No: LC190014 OLT Case Name: Nilrac Holdings v. Metrolinx

Heard: July 12, 2023 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel
Nilrac Holdings Inc. ("Claimant")	Frank Sperduti
Metrolinx ("Respondent")	Jessica Karban

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON JULY 12, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the first Case Management Conference ("CMC") conducted in this Claim for compensation under the Expropriations Act and has been scheduled in response to the Tribunal’s Status Request dated December 2, 2022. The claim is brought by the Claimant against the Respondent and arises out of the Expropriation of the entirety of the Claimant’s commercial property at 842 Eglinton Avenue West for the construction of the Forest Hill stop on the Eglinton Crosstown LRT project.

PROCEDURAL ORDER

2Counsel advised the Tribunal that the Parties were content with the pre-Hearing timelines and provisions of a draft Procedural Order ("PO"), Issues List ("IL") and Order of Evidence, which had been circulated to the Tribunal prior to the CMC. Counsel advised the Tribunal that they were prepared to set a date for a Hearing on the Merits and that a 14-day Hearing would be required. Counsel for the Claimant undertook to revise and resubmit the draft PO to provide for specific timeline dates once the Hearing date was set. With respect to Mediation and the prospects of settlement, the Tribunal was advised that Counsel intended to cooperate to reduce the length of the Hearing by eliminating redundant evidence and would be attempting to reach settlements on issues where possible.

3Following consultation, respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a 14-day Hearing on the Merits, by VH was agreed upon, commencing on Tuesday, November 19, 2024, and concluding on Friday, December 6, 2024.

4The Tribunal has subsequently received and reviewed the revised draft of the PO, IL and Order of Evidence. The fixed dates for the Hearing on the Merits and for the pre-Hearing timeline, are now provided in the PO appended to this Decision, and the coordinates for the Hearings are set out below in this Decision.

5Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-hearing procedural requirements and the Hearing of the Arbitration.

6The attachments to Schedule 1 include Attachment 2 and Attachment 3, being the IL and Order of Evidence, which shall govern the conduct of the Hearing on the Merits.

HEARING DETAILS

7For the 14 day VH, commencing on Tuesday, November 19, 2024 at 10 a.m. and concluding on or before Friday, December 6, 2024, the Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/660145013

Access code: 660-145-013

8Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available at: https://app.gotomeeting.com/home.html

9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

11THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern the conduct of this proceeding.

"Robert G. Ackerman"

ROBERT G. ACKERMAN 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.

SCHEDULE 1

CASE NO(S).: OLT-22-002692

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E. 27

Claimant: Nilrac Holdings Inc. Respondent: Metrolinx Description: Determination of compensation Property Address: 842 Eglinton Avenue West Municipality/UT: City of Toronto OLT Case No: OLT-22-002692 OLT Legacy Case No: LC190014 OLT Lead Case No: OLT-22-002692 Legacy Lead Case No: LC190014 OLT Case Name: Nilrac Holdings v. Metrolinx

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 November 19, 2024 (the "Hearing Date") at 10:00 a.m. by video hearing.

3. The parties’ initial estimation for the length of the hearing is fourteen (14) days. 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.

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.

5. 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.

6. 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 the phone number as soon as possible.

7. 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

8. The Claimant served and filed its Statement of Claim on July 4, 2019

9. The Respondent served and filed its Reply on August 1, 2019.

10. The parties shall exchange their respective Affidavits of Documents and Productions by Wednesday, October 4, 2023.

11. Examinations for Discovery of the representative of each party shall be completed on or before Wednesday, December 6, 2023.

12. Each party shall answer their respective undertakings arising from examinations for discovery on or before February 29, 2024.

13. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be served and filed on or before March 22, 2024, and will be held by way of videoconference or at a mutually convenient time and location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion or as soon as possible thereafter.

14. Further answers to undertakings, 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 discovery motion before the Tribunal.

15. A party who intends to call witnesses, whether by 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 August 19, 2024 and in accordance with paragraph 31 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.

16. Expert witnesses in the same field shall have a meeting on or before October 18, 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 November 12, 2024.

17. 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.

18. 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.

19. On or before August 19, 2024, the Claimant 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 31 below.

20. On or before September 20, 2024, the Respondent 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 31 below.

21. On or before October 18, 2024, the Claimant shall provide copies of their reply witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 31 below.

22. On or before November 4, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

23. On or before Tuesday November 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 31 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

24. 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 November 12, 2024.

25. Any documents which may be used by a party in cross-examination of an opposing party’s witness may be password protected and may 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.

26. 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.

27. 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.

28. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 12, 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.

29. 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.

30. 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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1 – PARTIES LIST

Party	Party Status	Counsel / Representative
Nilrac Holdings Inc.	Claimant	Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON M5H 4E3 Frank Sperduti (LSO# 40677N) Tel: 416.367.6243 fsperduti@blg.com Michael Grant (LSO# 77317Q) Tel: 416.367.6120 mgrant@blg.com
Metrolinx	Respondent	M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Aisling Flarity (LSO #65500B) Tel: 416.947.6700 x 204 Email: aisling@mhlawyers.ca Jessica Karban (LSO #75541D) Tel: 416.947.6700 x 211 Email: jessica@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No.: OLT-22-002692

ONTARIO LAND TRIBUNALS

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:

NILRAC HOLDINGS INC. Claimant

• and -

METROLINX Respondent

ISSUES LIST

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

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Claimant’s evidence in-chief
2. Claimant’s evidence in cross-examination
3. Respondent’s evidence in-chief
4. Respondent’s evidence in cross-examination
5. Claimant’s reply evidence, if any