North American Muslim Foundation v. Metrolinx, 2023 CanLII 90002

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 25, 2023

CASE NO(S).: OLT-23-000430

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

Claimant: North American Muslim Foundation

Respondent: Metrolinx

Subject: GO Transit SmartTrack Expansion and Finch-Kennedy Go Station

Description: Determination of compensation Reference Number: AT6140898

Property Address: 4140 Finch Avenue East

Municipality: City of Toronto

OLT Case No: OLT-23-000430

OLT Case Name: North American Muslim Foundation v. Metrolinx

Heard: September 13, 2023, by Video Hearing

APPEARANCES:

Parties	Counsel
North American Muslim Foundation (“Claimant”)	H. Tariq
Metrolinx	J. Karban

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON SEPTEMBER 13, 2023 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference held in this proceeding which involves the claims brought by the Claimant against Metrolinx alleging losses arising from the expropriation by Metrolinx commenced on July 26, 2022 of property in the City of Toronto at the address municipally known as 4140 Finch Avenue East. The particulars of the Claimants’ allegations are as set out in their Notice of Arbitration and Statement of Claim dated May 24, 2023. Metrolinx has delivered a Reply dated June 13, 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 15-day hearing, although counsel for both Parties were of the view that a slightly shorter hearing period would also suffice. The pleadings in this matter set out all issues to be dealt with at that hearing.

4Both the Claimant’s counsel and counsel for Metrolinx seek a hearing to commence in October 2024. The Tribunal has now scheduled the hearing to commence on October 7, 2024, at 10 a.m. for a period of 13 days ending October 25, 2024 save and except that the Tribunal will not sit on October 14 or 15, 2024. If the Parties seek to have an in-person hearing, they must notify the Tribunal accordingly. Currently, the hearing is set to take place by video.

5Parties 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:

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access Code: 344-779-885

6Parties 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.

7Persons 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.

8Individuals 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 Video Hearing 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

9THE TRIBUNAL ORDERS THAT:

(a) The hearing of this matter shall commence on October 7, 2024 at 10 a.m. as described in paragraphs [4] to [8] above;

(b) The Procedural Order appended as Attachment 1 shall govern this proceeding.

10This 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.

SCHEDULE 1

CASE NO(S).: OLT-23-000430

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

Claimant: North American Muslim Foundation

Respondent: Metrolinx

Subject: GO Transit SmartTrack Expansion and Finch-Kennedy Go Station

Description: Determination of compensation Reference Number: AT6140898

Property Address: 4140 Finch Avenue East

Municipality: City of Toronto

OLT Case No: OLT-23-000430

OLT Case Name: North American Muslim Foundation 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 virtual hearing will begin on October 7, 2024 at 10:00 a.m.

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access Code: 344-779-885

The parties’ initial estimation for the length of the hearing is thirteen (13) days. The Tribunal will not sit on October 14-15, 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.
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 except as permitted by the Tribunal on a written motion.
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 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 served and filed a Notice of Arbitration and Statement of Claim on or about Wednesday, May 24, 2023.
Metrolinx served and filed a Reply on or about Tuesday, June 13, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by Thursday, October 12, 2023.
Examinations for Discovery of the representative of each party shall be completed on or before Thursday, November 30, 2023. The parties consent to conducting examinations for discovery by way of videoconference.
Each party shall answer their respective undertakings arising from examinations for discovery on or before Friday, March 15, 2024.
Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be filed in writing by no later than May 3, 2024, pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedure, or as the Tribunal may direct.
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 thirty (30) days of the Tribunal’s Decision on any written discovery motion brought in accordance with paragraph 13, or as otherwise directed by the Tribunal.
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 August 13, 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 twenty (20) days after the delivery of expert witness reports 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 September 23, 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 19 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 19 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 19 below.
On or before May 1, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before August 23, 2024 and in accordance with paragraph 29 below.
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.
On or before August 13, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before September 23, 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.
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 September 27, 2024.
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.
If the parties wish to mediate, such mediation shall take place by no later than August 30, 2024.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 23, 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.
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.
The Tribunal’s Rule 17 shall apply to requests for adjournment.

TRIBUNAL REGISTRAR

Attachment 1

Party: North American Muslim Foundation Party Status: Claimant Counsel / Representative: BISCEGLIA & ASSOCIATES Professional Corporation 9100 Jane Street Building “A”, Suite 200 Vaughan, Ontario L4K 0A4 Emilio Bisceglia (LSO# 34568Q) T: 905.695.5200 F: 905.695.5201 ebisceglia@lawtoronto.com

Party: Metrolinx Party Status: Respondent Counsel / Representative: M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) T: 416.947.6701 F: 416.947.6703 christel@mhlawyers.ca Ian Mathany (LSO #57197U) T: 416.947.6702 F: 416.947.6703 ian@mhlawyers.ca

Attachment 2

OLT File No: OLT-23-000430

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:

NORTH AMERICAN MUSLIM FOUNDATION

Claimant

and -

METROLINX

Respondent

ISSUES LIST

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

a. Notice of Arbitration and Statement of Claim, dated May 24, 2023.

b. Reply, dated June 13, 2023.

Attachment 3