Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 21, 2023
CASE NO(S).: OLT-23-000359
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26
Claimant: 2638553 Ontario Inc.
Respondent: Metrolinx
Description: Determination of compensation
Reference Number: AT6051027
Property Address: 668 King St. West
Municipality: City of Toronto
OLT Case No.: OLT-23-000359
OLT Lead Case No.: OLT-23-000359
OLT Case Name: 2638553 Ontario Inc. v. Metrolinx
Heard: September 12, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2638553 Ontario Inc. ("Claimant") | Jeff Goldstein |
| Metrolinx | Jessica Karban |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON SEPTEMBER 12, 2023 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference held in this proceeding which involves the claims brought by the Claimants against Metrolinx alleging losses arising from the expropriation by Metrolinx commenced in October, 2021 of property in the City of Toronto at the address municipally known as 668 King Street West. The particulars of the Claimants’ allegations are as set out in its Notice of Arbitration and Statement of Claim, dated May 2, 2023. Metrolinx has delivered a Reply, dated June 5, 2023.
2The Parties have considered resolution and were advised of the Tribunal’s mediation resources, which are available to them upon request.
3The Parties submitted a draft Procedural Order and sought, on consent, to schedule a seven-day hearing. The pleadings in this matter set out all issues to be dealt with at that hearing.
4The Claimant’s counsel sought a hearing to commence in September, 2024; however, counsel for Metrolinx sought a start date in 2025. Generally, absent compelling reasons, the Tribunal would not be inclined to set a hearing date that is much more than one year from the date that a hearing is requested; therefore, as noted in paragraph [5] below, the hearing will be scheduled in September, 2024. The Tribunal is unable to adjust its hearing calendar to account for every possible potential conflict in the calendars of counsel, and the Tribunal notes that the law firm representing Metrolinx has several lawyers who handle expropriation cases.
5The Tribunal has now scheduled the hearing to commence on Tuesday, September 3, 2024 at 10 a.m. for a period of seven days, ending Thursday, September 12, 2024 – the Tribunal will not sit on Monday, September 9, 2024. If the Parties seek to have an in-person hearing, they must notify the Tribunal accordingly. Currently, the seven-day hearing is set to take place by video.
6Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/692665589
Access Code: 692-665-589
7Parties 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: https://app.gotomeeting.com/home.html
8Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.
9Individuals 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 Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
10THE TRIBUNAL ORDERS THAT:
(a) The hearing of this matter shall commence on Tuesday, September 3, 2024, as described in paragraphs [5] to [9] above; and,
(b) The Procedural Order, appended as Attachment 1, shall govern this proceeding.
11This Vice Chair may remain available to assist with the ongoing case management of this matter, subject to the Tribunal’s calendar.
"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.
ATTACHMENT 1
Ontario Land Tribunal
Tribunal ontarien de d’aménagement du territoire
CASE NO(S).: OLT-23-000359
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26
Claimant: 2638553 Ontario Inc.
Respondent: Metrolinx
Description: Determination of compensation
Reference Number: AT6051027
Property Address: 668 King St. West
Municipality: City of Toronto
OLT Case No.: OLT-23-000359
OLT Lead Case No.: OLT-23-000359
OLT Case Name: 2638553 Ontario Inc. v. Metrolinx
PROCEDURAL ORDER
- 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
- The video hearing will begin on September 3, 2024, at 10:00 a.m. at:
GoTo Meeting: https://global.gotomeeting.com/join/692665589
Access Code: 692-665-589
Audio-only Telephone Line: +1(647) 497-9373 or 1-888-299-1889
Access Code: 692-665-589
Ontario Land Tribunal 655 Bay Street, 16th Floor Toronto, Ontario M5G 1E5
The parties’ initial estimation for the length of the hearing is seven (7) 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.
The parties 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.
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.
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.
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
The Claimant, 2638553 Ontario Inc. o/a Regulars Bar, served and filed a Notice of Arbitration and Statement of Claim on May 17, 2023.
The Respondent, Metrolinx, served and filed its Reply on June 5, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by December 8, 2023.
Examinations for Discovery of the representative of each party shall be completed on or before March 22, 2024.
Each party shall answer their respective undertakings arising from examinations for discovery on or before April 17, 2024.
Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be filed in writing with the Tribunal within 30 days of the deadline in paragraph 13 or at the direction of the Tribunal.
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 Decision of the Tribunal on the written discovery motion or as otherwise directed by the Tribunal.
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 June 12, 2024, and in accordance with paragraph 29 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.
Expert witnesses in the same field shall have a meeting on or before June 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 August 19, 2024.
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. Copies of this must be provided as in paragraph 29 below. 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.
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 as in paragraph 29 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 29 below.
On or before June 4, 2024, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 29 below.
On or before August 6, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before August 19, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 29 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before July 5, 2024, and in accordance with paragraph 29 below.
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 August 27, 2023.
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 or in advance of the start of the cross-examination of any witness at the hearing.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before fifteen (15) days prior to the start of the hearing 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.
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.
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.
ATTACHMENT 1 – PARTY LIST
| Party | Party Status | Counsel / Representative |
|---|---|---|
| 2638553 ONTARIO INC. o/a REGULARS BAR | Claimant | GOLDSTEIN LAW FIRM 306 Manning Avenue Toronto, Ontario M6J 2K9 Jeff Goldstein (LSO# 67763B) T: 647.838.6740 F: 416.352.1252 jeff@goldsteinlawyers.ca |
| Metrolinx | Respondent | M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: (416) 947-6701 Fax: (416) 947-6703 Email: christel@mhlawyers.ca Jessica Karban (LSO #75541D) Tel: (416) 947-6700 ext. 212 Fax: (416) 947-6703 Email: jessica@mhlawyers.ca |
ATTACHMENT 2 – ISSUES LIST
OLT File No.: OLT-23-0000359
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:
2638553 ONTARIO INC. o/a REGULARS BAR Claimant
- and -
METROLINX Respondent
- The issues are as set out in the Pleadings filed with the Tribunal by the parties, as amended, listed below:
a. The Notice of Arbitration and Statement of Claim, served May 17, 2023, dated May 2, 2023; and
b. Reply of Metrolinx, dated June 5, 2023.
ATTACHMENT 3 – ORDER OF EVIDENCE
- Claimant’s evidence in-chief
- Claimant’s evidence in cross-examination
- Respondent’s evidence in-chief
- Respondent’s evidence in cross-examination
- Claimant’s reply, if any.