Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 03, 2023 CASE NO(S).: OLT-23-000473

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

Claimant: Port Lands Land Co. Limited Partnership Respondent: City of Toronto Subject: Land Compensation Property Address/ Description: 300 Commissioners Street Municipality: City of Toronto OLT Case No.: OLT-23-000473 OLT File No.: OLT-23-000473 OLT Case Name: Port Lands Land Co. Limited Partnership v. Toronto (City)

Heard: September 7, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Port Lands Land Co. Limited Partnership	Anne Benedetti, Rodney Gill, Ian Andres (in absentia)
City of Toronto	Mark Piel, Nathanial Muscat (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND WILLIAM R. MIDDLETON ON SEPTEMBER 7, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) before the Tribunal with respect to a Claim brought under section 26(1) of the Expropriation Act (“Act”) by Port Lands Land Co. Limited Partnership (“Claimant”) against the City of Toronto (“Respondent”). The Claimant claims compensation arising out of the Expropriation by the Respondent of the leasehold interests in the lands municipally known as 300 Commissioners Street in the City of Toronto (“Subject Property”), pursuant to Expropriation Plan AT5306866, which was registered on November 29, 2019.

2On June 16, 2020, the Respondent served the Claimant with a compensation offer pursuant to section 25 of the Act (“Section 25 Offer”), together with an Appraisal Report prepared by Altus Group Limited dated March 18, 2020 (“Altus Report”). The Altus Report estimated the total market value of the Claimant’s interest in the Subject Property to be $9,490,000, and that is what the Section 25 Offer offered as compensation to the Claimant. The Claimant accepted the Section 25 Offer without prejudice to its rights to seek further compensation pursuant to the Act. The Respondent paid the Claimant $9,490,000 on September 1, 2020. This payment did not include interest in accordance with section 33 of the Act. The Respondent indicated in its Reply to Notice of Arbitration that:

“The subject section of the Expropriations Act does not prescribe when interest is due to be paid. Accordingly, whatever interest may be paid to the Claimant pursuant to section 25(4) of the Expropriations Act may be determined pursuant to these proceedings.”

PROCEDURAL ORDER AND ISSUES IN DISPUTE

3Each Party filed a separate Procedural Order (“PO”) prior to the CMC for the Tribunal’s review and approval at the CMC. The Tribunal provided the Parties with some direction regarding the PO, which for the most part, reflected the Tribunal’s sample PO with respect to specifically Expropriation matters. The two POs were similar in many aspects, but there was some discussion with respect to the wording of one particular paragraph. The Parties continued their discussion after the CMC, and arrived at an agreement, which they included in the final PO, submitted on consent subsequent to the CMC.

4The Issues in Dispute are contained in the Claimant’s Notice of Arbitration / Application, dated June 2, 2023, and the Respondent’s Reply to Notice of Arbitration, dated June 22, 2023.

5The Parties were directed to provide the final version of the PO, containing updated dates, to the Tribunal and have now done so. It is attached to this Decision and will guide these proceedings.

MEDIATION AND SETTLEMENT

6The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties were open to this, but the Claimant’s Counsel pointed out that a framework would need to be set. They were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

SECOND CMC

7The Parties were asked whether they would require a second CMC. They elected to discuss this amongst themselves after the CMC to determine whether one was needed. Upon submission of the PO, the Parties requested that a second CMC, or a “pre-hearing conference” as it is referred to in Paragraph 19 of the PO, be scheduled for July 10, 2024, “with a view to resolving any outstanding issues related to the hearing.”

8This request is accommodated by the Tribunal, and a second CMC is scheduled to take place by video hearing on Wednesday, July 10, 2024 at 10:00 a.m.

9On that date, the Parties 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.

10The CMC is scheduled to proceed by video as follows:

GoToMeeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

11Persons 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.

12Parties 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

13Individuals 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.

HEARING

14The Parties requested that, based on the draft PO and issues outlined in the pleadings, a Hearing for this matter be scheduled for approximately 20 days. Both Parties agreed that this amount of time would be appropriate, in light of the issues and the estimated number of witnesses. With respect to when this Hearing is to take place, the Claimant had proposed a timeline approximately in June of 2024, whereas the Respondent suggested a timeline approximately in September of 2024. The Parties provided their submissions on this. The Claimant’s Counsel explained that the Claimant had been waiting for the resolution of this matter since the Expropriation in 2019, and wanted the matter resolved as soon as possible. The Respondent’s Counsel explained that due to the Respondent’s “blackout dates” and scheduling concerns, a Hearing for some time after September of 2024 would be more acceptable. The Claimant conceded to the Respondent’s timeline, emphasizing, however, that it preferred to resolve this matter as soon as possible and was ready to proceed at the earliest available date.

15Of note, the Tribunal’s calendar was available for this 20-day Hearing as of September 2024 onwards.

16With respect to the type of Hearing, the Tribunal provided the Parties with the opportunity to advise whether they preferred an in-person, hybrid, or video hearing. The Parties asked to discuss this subsequent to the CMC. The Tribunal scheduled a virtual hearing, and the Parties were directed that if they preferred to proceed differently, they could indicate this in the final PO to be submitted to the Tribunal. Ultimately, upon submission of the final PO, the Parties elected to proceed by way of a virtual hearing, as originally scheduled.

17Accordingly, a video hearing was scheduled to commence at 10:00 a.m. on Monday, September 16, 2024 until Friday, October 11, 2024 for twenty (20) days.

18On those dates, the Parties 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.

19The Hearing is scheduled to proceed by video as follows:

GoToMeeting: https://meet.goto.com/558205565

Access Code: 558-205-565

20Persons 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.

21Parties 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

22Individuals 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

23THE TRIBUNAL ORDERS as follows:

a. A second CMC is scheduled to proceed, by video hearing, on Wednesday, July 10, 2024, at 10:00 a.m.

b. The Procedural Order, attached as Schedule A, will govern these proceedings.

c. The Hearing in this matter will commence on Monday, September 16, 2024, at 10:00 a.m., by video hearing and twenty (20) days have been set aside.

24The Panel is not seized but may be contacted through the Case Coordinator for assistance with the ongoing case management of this matter.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“William R. Middleton”

WILLIAM R. MIDDLETON VICE CHAIR

Ontario Land Tribunal Website: www.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

CASE NO(S).: OLT-23-000473

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

Claimant: Port Lands Land Co. Limited Partnership Respondent: City of Toronto Subject: Land Compensation Property Address/ Description: 300 Commissioners Street Municipality: City of Toronto OLT Case No.: OLT-23-000473 OLT File No.: OLT-23-000473 OLT Case Name: Port Lands Land Co. Limited Partnership v. Toronto (City)

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 September 16, 2024 and will end on October 11, 2024.

3. The parties’ initial estimation for the length of the hearing is 20 days. Notwithstanding the initial estimation for the length of the hearing 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. In the event the parties agree that scheduled hearing days may be released from the Tribunal’s calendar they are to advise the Tribunal immediately.

4. The parties identified at the case management conference are set out in Attachment 1.

5. The issues are as set out in the pleadings of the parties. 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 2 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 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. Affidavit of Documents (together with production briefs of the documents) shall be exchanged by December 15, 2023.

9. Discoveries shall be completed on or before February 16, 2024.

10. Undertaking answers shall be provided on or before March 8, 2024.

11. Any motion(s) arising out of the Examinations for Discovery shall be filed on or before April 12, 2024. The Motion(s) if necessary, shall be brought in writing, subject to the Tribunal’s discretion to schedule an oral hearing on a date and time to be determined by the Tribunal. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process. Should the parties agree that a motion day is not required, the parties agree to advise the Tribunal as soon as possible.

12. On or before April 30, 2024 the parties shall discuss whether a request should be made for mediation of this matter and shall report to the Tribunal by May 8, 2024 to advise of the Tribunal of the status of those discussions.

13. Parties 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 April 30, 2024 and in accordance with paragraph 28 below.

14. An expert witness shall prepare an expert report/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 28 below. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

15. 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 14 above. 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 14 above.

16. On or before May 31, 2024, the parties shall provide copies of their expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 28 below.

17. On or before August 30, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 28 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case coordinator a written reply to any written evidence on or before June 28, 2024 and in accordance with paragraph 28 below.

19. The Tribunal will conduct a pre-hearing conference on consent of the parties on July 10, 2024 at 10:00 a.m. with a view to resolving any outstanding issues related to the hearing.

20. Expert witnesses in the same field shall have a meeting on or before April 30, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties shall prepare a Statement of Agreed Facts and, file same with the OLT case co-ordinator on or before May 10, 2024 in accordance with paragraph 28 below. For clarity, in the event that there are no facts which are agreed to, the Statement of Agreed Facts will confirm that the experts’ meeting took place, that best efforts were used to try to resolve or reduce the issues for the hearing, and confirm that there are no facts that the parties agree to.

21. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 30, 2024.

22. 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.

23. 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.

24. In the event that a party seeks to exclude all or part of any expert report, witness statement or other written evidence, wherever possible a motion should be brought at least 60 (sixty) days prior to the hearing date. The Tribunal may decline to consider such a motion at the hearing if it is apparent that it could have been brought prior to the hearing.

25. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 30, 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.

26. On or before August 15, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

27. The parties are to update or confirm the hearing plan on or before September 9, 2024.

28. All filings shall be submitted electronically and, when directed, 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.

29. 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 – PARTIES LIST

Party	Party Status	Counsel / Representative
PORT LANDS LAND CO. LIMITED PARTNERSHIP.	Claimant	Goodmans LLP Bay-Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Anne Benedetti Tel: 416-597-5929 Fax: 416-979-1234 Email: abenedetti@goodmans.ca Ian Andres Tel: 416-597-5160 Fax: 416-979-1234 Email: iandres@goodmans.ca Rodney Gill Tel: 416-597-4136 Fax: 416-979-1234 Email: rgill@goodmans.ca
City of Toronto	Respondent	City Solicitor’s Office City of Toronto 55 John Street, 26th Floor Toronto, ON M5V 3C6 Mark Piel (LSO# 55343B) Tel: 416-392-2124 Fax: 416 397-5624 Email: mark.piel@toronto.ca Nathanial Muscat (LSO# 66024L) Tel: 416- 397-5475 Fax: 416 397-5624 Email: nathan.muscat@toronto.ca

ATTACHMENT 2 – ORDER OF EVIDENCE

1. Claimant’s evidence
2. Respondent’s evidence
3. Claimant’s Reply, if any