1255870 Ontario Limited v. Metrolinx, 2023 CanLII 87738

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 19, 2023

CASE NO(S).: OLT-23-000350

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

Claimant: Respondent:

1255870 Ontario Limited Metrolinx

Subject: Property Address: Municipality: OLT-Case No.: OLT Lead Case No.: OLT Case Name:

Land Compensation 68-70 Parliament Street City of Toronto OLT-23-000350 OLT-23-000350 1255870 Ontario Limited v. Metrolinx

Heard:

August 8, 2023 by video hearing

APPEARANCES:

Parties

Counsel

1255870 Ontario Limited

J. Farber M. Rutledge

Metrolinx

M. Cherkas I. Mathany (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON August 8, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting a claim for compensation by 1255870 Ontario Limited (“125 Limited”) against Metrolinx pursuant to the Expropriations Act in connection with the expropriation of 125 Limited’s fee simple interest in the lands municipally known as 68-70 Parliament Street in the City of Toronto by the statutory authority, Metrolinx (the “Claim”).

2The Tribunal entered into evidence Exhibit 1 as the Affidavit of Service of Matthew Rutledge sworn on May 1, 2023 and Exhibit 2 as the Affidavit of Service of Victoria Deo sworn on June 2, 2023 evidencing service of the Notice of Arbitration and Statement of Claim by 125 Limited and the Reply by Metrolinx respectively.

MEDIATION

3The parties indicated that they believe Tribunal-led mediation may be helpful to resolve some or all of the claim for compensation and this request has been referred to Tribunal staff to be facilitated appropriately.

HEARING DATES AND PROCEDURAL ORDER

4The parties estimate that a hearing on the merits of the Claim will require ten hearing days. In this regard, 125 Limited anticipates calling three to four witnesses and Metrolinx anticipates calling two witnesses. The Tribunal is satisfied that this is a reasonable estimate of hearing length.

5A hearing is scheduled to take place commencing on Monday, November 4, 2024, at 10 a.m. by video and continue for ten hearing days excluding Monday November 11, 2024 (Remembrance Day), Monday November 18, 2024 and Tuesday November 19, 2024 (Tribunal Professional Development Days) including and concluding on Wednesday, November 20, 2024.

6As directed at the CMC, the Parties provided a draft Procedural Order to the Tribunal for its consideration through the Case Co-ordinator following the CMC. The Procedural Order attached as Schedule “A” to this Order is approved and will govern the proceedings up to and including the hearing. It is noted that the approved Procedural Order provides for the parties to bring any motions arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, in writing on Friday May 10, 2024 at 10:00 a.m. In the event that the parties do not require any such motion, they shall notify the Tribunal, on consent, at least one week prior to this scheduled date.

7A second CMC is scheduled to take place by video on Tuesday, October 31, 2023 at 10 a.m. in order to consider an update by the parties with respect to mediation/settlement efforts to narrow or resolve the issues of the Claim with a view to determining if any hearing dates may be released, and to provide opportunity for consideration of any other matters with respect to this proceeding that may require the Tribunal’s direction.

8The hearings are scheduled to proceed by video as follows:

Second CMC: Tuesday, October 31, 2023 at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373

Ten (10) Day Hearing:

Monday, November 4, 2024 at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373

9Parties and participants 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

10Persons 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.

11Individuals 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

12The Tribunal Orders as follows:

a) A second CMC is scheduled to take place on Tuesday, October 31, 2023 at 10 a.m. by video;

b) A hearing is scheduled to take place, commencing Monday, November 4, 2024 at 10 a.m. by video and will continue for ten days, not including November 11, 2024 (Remembrance Day), November 18 and 19, 2024 (Tribunal Professional Development Days); and

c) The Procedural Order attached as Schedule “A” to this Order is approved.

13The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.

14No further notice is required or will be given.

“D. Arnold”

D. ARNOLD

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 “A” – PROCEDURAL ORDER

CASE NOS.: OLT-23-000350

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

Claimants:

1255870 Ontario Limited

Respondent:

Metrolinx

Subject:

Claim for Land Compensations and Disturbance Damages

Property Address/Description:

68 & 70 Parliament Street

Municipality:

City of Toronto

OLT Case Nos.:

OLT-23-000350

OLT File Nos.:

OLT-23-000350

OLT Case Name:

1255870 Ontario Limited 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 video hearing will begin on November 4, 2024 at 10:00 a.m. at:

Monday November 4, 2024 at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373

Ontario Land Tribunal

655 Bay Street, 16th Floor

Toronto, Ontario M5G 1E5

3. The parties’ initial estimation for the length of the hearing is ten (10) days, standing down on November 11, 18 and 19, 2024. 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.

5. 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.

6. 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.

7. 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.

8. 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

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about April 28, 2023.

10. Metrolinx served and filed a Reply on or about June 2, 2023.

11. The parties will attend a Case Management Conference on October 31, 2023 regarding the status of preparation for mediation.

Tuesday October 31, 2023 at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373

12. The parties may make a request for consideration of mediation facilitated by the Tribunal through the Tribunal’s Case Co-ordinator for this proceeding.

13. The parties shall exchange their respective Affidavits of Documents and Productions by Wednesday, November 29, 2023.

14. Examinations for Discovery of the representative of each party shall be completed on or before Friday, March 15, 2024. The parties’ consent to conducting examinations for discovery by way of videoconference.

15. Each party shall answer their respective undertakings arising from examinations for discovery on or before Tuesday, April 30, 2024.

16. Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard in writing on Friday May 10, 2024 at 10:00 a.m., or as may be otherwise directed by the Tribunal. In the event that the parties do not require any such motion, they shall notify the Tribunal, on consent, at least one week prior to the scheduled date for the motion.

17. Further answers to undertaking, 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 one month of the discovery motion before the Tribunal.

18. A party who intends to call witnesses, whether or 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 Monday, July 15, 2024 and in accordance with paragraph 32 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.

19. Expert witnesses in the same field shall have a meeting on or before Friday, August 9, 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. The parties shall agree to a date to file the Agreed Facts and Issues, but in any event shall file the same on or before Friday, October 22, 2024.

20. 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 22 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.

21. 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 22 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 22 below.

22. On or before Thursday, September 5, 2024, the parties 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 32 below.

23. On or before Thursday, September 5, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 32 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

24. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Tuesday, October 8, 2024 and in accordance with paragraph 32 below.

25. 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.

26. 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.

27. On or before Tuesday, September 10, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

28. On or before Tuesday, October 22, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 32 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

29. 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 Friday, October 25, 2024.

30. 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.

31. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, October 28, 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.

32. All filings shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. 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.

33. 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 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

1255870 Ontario Limited

Claimant

FOGLER, RUBINOFF LLP Lawyers 77 King Street West, Suite 3000 PO Box 95 TD Centre North Tower Toronto, Ontario M5K 1G8 Joel D. Farber (LSO# 36690T) T: 416.941.8866 jfarber@foglers.com

Matthew W. Rutledge (LSO# 82904S) T: 416.864.7603 mrutledge@foglers.com

Metrolinx

Respondent

M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Ian Mathany (LSO #57197U) T: 416.947.6702 F: 416.947.6703 ian@mhlawyers.ca

Mariana Cherkas (LSO #85947P) T: 416.947.6700 ext. 210 mariana@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No.: OLT-23-000350

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:

1255870 ONTARIO LIMITED

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. 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 April 28, 2023; and

b. Reply of Metrolinx, dated June 2, 2023.

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, if any.