Oshawa Sand Gravel Supply v. Ontario (MTO), 2023 CanLII 92353

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 04, 2023

CASE NO(S).: OLT-22-002685 (Formerly LC140048)

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

Claimant: Oshawa Sand Gravel Supply

Respondent: Ministry of Transportation

Subject: Determination of compensation

Property Address: (Oshawa Sand Gravel Supply v. Ontario (MTO))

Municipality/UT: Clarington/

OLT Case No: OLT-22-002685

Legacy Case No: LC140048

OLT Case Name: Oshawa Sand Gravel Supply v. Ontario (MTO)

Heard: September 28, 2023 by teleconference

APPEARANCES:

Parties	Counsel
Oshawa Sand & Gravel Supply	C. Tzekas A. Sinclair (in absentia)
Province of Ontario (MTO)	R. Lawson

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON SEPTEMBER 28, 2023 AND ORDER OF THE TRIBUNAL

1This was the third Case Management Conference (“CMC”) held in this matter. The background of this case was well-summarized in the previous Decision of Member Dixon issued August 31, 2023 and need not be repeated here.

2This CMC was held by teleconference and was very brief. Counsel for the Parties advised that they are close to a full settlement. However, out of an abundance of caution, they sought certain amendments to the prevailing Procedural Order (“PO”) to account for an earlier resolution of some of the issues on appeal. To that end, on consent, they proposed a five-day hearing instead of the currently scheduled eight days – to accommodate this, they wish to commence on Monday, December 4, 2023, at 10 a.m. by video hearing rather than on the currently scheduled start date. Certain other deadlines in the PO have also been modified.

3Parties and participants 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/638422541

Access code: 638-422-541

4Parties 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

5Persons 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 638-422-541.

6Individuals 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.

7The Tribunal agreed with the proposed amendments to the PO and urged the Parties to advise the Tribunal as soon as possible in the event that this proceeding is settled so that the hearing dates can be vacated.

ORDER

8THE TRIBUNAL ORDERS that the Procedural Order appended as Attachment A to this Decision shall now govern the conduct of this proceeding.

9This Vice-Chair shall remain available to further assist the Parties with case management matters, subject to the Tribunal’s calendar.

“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.

ONTARIO LAND TRIBUNAL

IN THE MATTER OF the Expropriations Act, R.S.O. 1990, c. E.26, as amended

AND IN THE MATTER OF an arbitration

B E T W E E N:

VAN DRUNEN AND SONS GRAVEL LIMITED

c.o.b. OSHAWA SAND & GRAVEL SUPPLY, AND

HILARY VAN DRUNEN

Claimants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO (THE “MINISTER OF TRANSPORTATION”)

Respondent

PROCEDURAL ORDER OF THE TRIBUNAL

The Tribunal has issued procedural directions for this arbitration, which are confirmed in the following Order of the Tribunal.

1. At the request of any person, or on its own motion, the Tribunal may amend, vary or supplement all or any part of this Order at any time, either by making a ruling orally or by a further procedural order.

CONDUCT OF THE HEARING

Place and Time

2. The hearing will commence on December 4, 2023, at 10:00 a.m. by video hearing (the first day referred to as the “Hearing Date”). The time allotted for the hearing is five (5) days. Below are the GoToMeeting video hearing login details:

Platform: GoToMeeting

https://meet.goto.com/638422541

Access code: 638-422-541

Issues

3. The issues at the hearing shall be those set out in the pleadings filed, including such amendments, if any, as may be permitted by the Tribunal.

The Pleadings

4. (1) The Notice of Arbitration and Statement of Claim was served by the Claimants on December 8, 2014.

(2) The Respondent is to serve its Reply by September 15, 2023.

(3) Any requests to amend the Pleadings shall be brought before the Tribunal by way of a motion, unless otherwise agreed by the parties.

Discovery Process

5. (1) The Affidavits of Documents of the Claimants and the Respondent shall be served by October 6, 2023.

(2) The Examinations for Discovery shall be completed the week of October 16, 2023.

(3) All undertakings provided at the Examination for Discovery of the parties shall be answered by October 27, 2023.

Written Evidence

6. (1) “Written evidence” includes all written material, letters, reports, studies and documents which a party intends to present as evidence at the hearing. Written evidence shall have consecutively numbered pages and, where appropriate, consecutively numbered paragraphs.

(2) “Expert report” means a document prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of the expert witness’ opinions on those issues, and a list of reports or studies that the expert witness will rely on at the hearing.

(3) “Witness statement” means a document consisting of a short outline of the facts and issues that a lay witness will address in oral evidence.

7. 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. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence.

8. On or before November 3, 2023, the parties shall provide copies of their written evidence, expert reports and witness statements to the other party and to the Tribunal and in accordance with paragraph 23 below.

9. Parties may provide to the other party and the Tribunal a written response to any written evidence, expert reports and witness statements on or before November 17, 2023 in accordance with paragraph 23 below.

10. Further written evidence, witness statements and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted, shall be served and filed at least five (5) calendar days before the date an expert witness who will give oral evidence is to be called. This paragraph does not apply to written evidence counsel intend to refer to during cross-examination of an opposing witness.

11. Unless the Tribunal orders otherwise, no expert shall give oral evidence at the hearing without first having:

(a) served and filed written evidence, and

(b) served and filed an expert report.

12. A party who serves and files a witness statement or expert report must have the witness present at the hearing to testify unless the party advises the Tribunal and the parties served with the witness statement or expert report that it is not to be part of the record.

Amendment of Written Evidence

13. Amendments to expert reports or witness statements will be permitted only by motion, with notice to all parties.

Notice to Admit

14. Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Tribunal Rules 1.4 and 26.16 shall serve such request or requests on the party or parties opposite at least 30 days before the Hearing Date.

Witnesses

15. A party who intends to call witnesses, whether or not by way of summons, shall provide to the other parties and file with the Tribunal a list of the witnesses to be called no later than November 3, 2023.

16. Counsel shall use best efforts to ensure that the witness who will follow the witness who is testifying shall be available in the hearing room to take the stand immediately upon the completion of the testimony of the prior witness.

Document Book, Visual Evidence and Court Reporter

17. The parties shall prepare a Joint Document Book to be filed with the Tribunal by November 27, 2023.

18. On or before November 27, 2023, the parties shall provide a copy of their visual evidence to the other party and file with the Tribunal in accordance with paragraph 23 below.

19. The Respondent shall arrange for the service and payment of a certified Court Reporter by November 17, 2023.

Presentation of Evidence at the Hearing

20. The order of presentation of evidence shall be:

(a) case for the Claimants;

(b) case for the Respondent; and

(c) reply by the Claimants.

21. Reply evidence shall not include evidence which was or should have been led in chief.

Adjournments

22. Adjournments will not be granted during the hearing except on the grounds of serious hardship or illness or unless otherwise agreed by the parties.

Filing of Materials

23. All filings shall be submitted electronically and in hard copy or as 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.

24. Attached hereto as Schedule "A" is a Timetable setting out the key dates described in this Order by which the steps in this proceeding shall be completed.

This Member is not seized. So orders the Tribunal.

SCHEDULE “A”

No.	Remaining Steps to be Completed	By which Party	Date to be Completed by
1.	Serve and file Reply	Respondent	September 15, 2023
2.	Exchange Affidavit of Documents	All parties	October 6, 2023
3.	Examinations for Discovery	All parties	Week of October 16, 2023
4.	Undertakings to be answered	All parties	October 27, 2023
5.	Exchange of Witness List / Expert Witness Statements / Reports / Lay Witness Statements	All parties	November 3, 2023
6.	Exchange of Expert Reply Witness Statements / Reply Reports	All parties	November 17, 2023
7.	Request to Admit	All parties	30 Days Before the Hearing
8.	Arrange for Court Reporter	MTO	November 17, 2023
9.	Joint Document Book	All parties	November 27, 2023
10.	Visual Evidence	All parties	November 27, 2023
11.	Hearing (5 days)		December 4, 2023 to December 8, 2023.