5039520 Ontario Inc. v. Metrolinx, 2023 CanLII 92342

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 04, 2023

CASE NO(S).:

OLT-23-000357

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

Claimant:

5039520 Ontario Inc./Sankalp Pandey

Respondent:

Metrolinx

Description:

Determination of compensation

Reference Number:

AT5880352

Property Address

4651 Sheppard Avenue East

Municipality:

City of Toronto

OLT Case No.:

OLT-23-000357

OLT Lead Case No.:

OLT-23-000357

OLT Case Name:

5039520 Ontario Inc. and Sankalp Pandey v. Metrolinx

Heard:

September 12, 2023 by Video Hearing (VH)

APPEARANCES:

Parties

Counsel

5039520 Ontario Inc. and Sankalp Pandey (“Claimants”)

Jeff Goldstein

Metrolinx

Jessica Karban

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. 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 on October 28, 2021, of property in the City of Toronto at the address municipally known as 4651 Sheppard Avenue East. The particulars of the Claimants’ allegations are as set out in their Notice of Arbitration and Statement of Claim dated May 2, 2023. Metrolinx has delivered a Reply dated June 6, 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 five-day hearing in mid-2024. The pleadings in this matter set out all the issues to be dealt with at that hearing.

4The Tribunal has now scheduled the hearing to commence by video on Monday, June 17, 2024, at 10 a.m. for a period of five-days ending on Friday, June 21, 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:

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

Access code: 660-145-013

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 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

9THE TRIBUNAL ORDERS THAT:

(a) The hearing of this matter shall commence on Monday, June 17, 2024, 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 R. Middleton”

WILLIAM R. 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

ISSUE DATE: October 04, 2023

CASE NOS.: OLT-23-000357

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

Claimants:

5039520 Ontario Inc. o/a Subway Sandwiches and Salads and Sankalp Pandey

Respondent:

Metrolinx

Subject:

Claim for Disturbance Damages

Property Address/Description:

4651 Sheppard Avenue East

Municipality:

City of Toronto

OLT Case Nos.:

OLT-23-000357

OLT File Nos.:

OLT-23-000357

OLT Case Name:

5039520 Ontario Inc. o/a Subway Sandwiches and Salads, et al. 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 Monday, June 17, 2024, at 10:00 a.m. at: GoToMeeting or a web application is available:

https://app.gotomeeting.com/home.html

3. The parties’ initial estimation for the length of the hearing is five (5) 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 identified at the case management conference are set out in Schedule 1 to this Order.

5. The issues are set out in the Issues List attached as Schedule 2 to this Order. 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 Schedule 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, 5039520 Ontario Inc. o/a Subway Sandwiches and Salads and Sankalp Pandey, served and filed a Notice of Arbitration and Statement of Claim on May 17, 2023.

10. The Respondent, Metrolinx, served and filed its Reply on June 6, 2023.

11. The parties shall exchange their respective Affidavits of Documents and Productions by November 8, 2023.

12. Examinations for Discovery of the representative of each party shall be completed on or before December 15, 2023.

13. Each party shall answer their respective undertakings arising from examinations for discovery on or before February 16, 2024.

14. 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 March 18, 2024, above or at the direction of the Tribunal.

15. 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 fifteen (15) days of the decision of the Tribunal from the discovery motion.

16. 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 March 19, 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.

17. Expert witnesses in the same field shall have a meeting April 29, 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 May 20, 2024.

18. 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.

19. 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.

20. On or before April 18, 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 29 below.

21. On or before May 20, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

22. On or before June 3, 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.

23. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before May 20, 2024, and in accordance with paragraph 29 below.

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 June 10, 2024.

25. 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.

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 twenty-five (25) 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.

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.

TRIBUNAL REGISTRAR

SCHEDULE 1 – PARTY LIST

Party

Party Status

Counsel / Representative

5039520 Ontario Inc. o/a Subway Sandwiches and Salads and Sankalp Pandey

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

SCHEDULE 2 – ISSUES LIST

OLT File No.: OLT-23-00000357

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:

5039520 ONTARIO INC. o/a SUBWAY SANDWICHES AND SALADS and SANKALP PANDEY

Claimants

• and -

METROLINX

Respondent

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 May 19, 2023, dated May 2, 2023; and,

b. Reply of Metrolinx, dated June 6, 2023.

SCHEDULE 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.