Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 21, 2024
CASE NO(S).: OLT-24-000581
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: 1868981 Ontario Inc o/a Subway Sandwiches.
Respondent: City of Orillia
Description: Determination of compensation
Property Address: 70 Front Street North
Municipality/UT: City of Orillia
OLT Case No.: OLT-24-000581
OLT Lead Case No.: OLT-24-000581
OLT Case Name: 1868981 Ontario Inc o/a Subway Sandwiches. v. Orillia (City)
Heard: August 30, 2024 and August 5, 2024 by Video Hearing September 5, 2024, and October 9, 2024 in writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1868981 Ontario Inc. o/a Subway Sandwiches (“Claimant”) | Jeff Goldstein (in absentia) |
| City of Orillia (“Respondent”) | Robert Wood |
DECISION DELIVERED BY ROBERT G. ACKERMAN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing event is the first Case Management Conference (“CMC”) conducted in this Claim for compensation under the Expropriations Act, which arises as a result of the expropriation of the commercial property municipally known as 70 Front Street North, Orillia, (“Subject Property”) which was improved with a commercial plaza in which the Claimant was a tenant. The Subject Property was required for the municipal purpose of extending Coldwater Street East and preparing the lands for redevelopment and potential disposition in accordance with City of Orillia land use planning policies and economic development objectives and works ancillary thereto.
THE CMC
2On August 30, 2024, Counsel for the Respondent attended at the first return of the Notice of CMC, but counsel for the Claimant, Mr. Goldstein, did not attend. The Tribunal’s Case Coordinator advised that she had received a message that Mr. Goldstein was ill and unable to attend. Mr. Wood advised the Tribunal that he and Mr. Goldstein had been in “healthy communication”, and that a three-day hearing had been agreed to be heard during or about the spring of 2025, and that he expected that that terms of the Procedural order (“PO”) would also be agreed to. On this basis, the Tribunal adjourned the CMC to continue on September 5, 2024, advising Mr. Wood that if a consensus could be reached on the scheduling of a hearing on the merits and the terms of a Procedural Order (“PO”), the Case Coordinator (“CC”) should be notified and attendance at the CMC would not be necessary.
3On June 4, 2024, Counsel contacted the CC requesting that a three-day hearing be scheduled for the month of June, 2025. Following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a three-day Merit Hearing, to be held by video, was agreed upon, to commence on Tuesday, June 17, 2025 at 10 a.m. and set to conclude on Thursday, June 19, 2025. Counsel provided the Tribunal with their undertaking to submit a draft PO and Attachments and on consent, the CMC was adjourned sine die by Vice Chair Vincent.
PROCEDURAL ORDER
4On October 9, 2024, the Tribunal received and reviewed the revised draft of the PO and Attachments, being the Identification of Parties and Counsel (“IPC”), Procedural Timetable (“PT”), Issues List (“IL”) and Order of Evidence (“OE”). The fixed dates for the Hearing on the merits and for the pre-Hearing timeline are now provided in the PO appended to this Decision, and the coordinates for the Hearings are set out below in this Decision.
5Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-hearing procedural requirements and the Hearing of the Arbitration.
6Also appended to Schedule 1 to this Decision as Attachment 1, Attachment 2, Attachment 3 and Attachment 4, are the IPC, PT, IL and OE, which shall govern the conduct of the Hearing on the Merits.
HEARING DETAILS
7For the three-day Merit Hearing, commencing on Tuesday, June 17, 2025, at 10 a.m. and continuing until Thursday, June 19, 2025, the Parties are asked to log in to the Hearing by video at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/519389173
Access Code: 519-389-173
8Parties 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 at: https://app.gotomeeting.com/home.html.
9Persons 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 in paragraph [7] above.
10Individuals 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/s may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
11THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern the conduct of this proceeding.
“Robert G. Ackerman”
ROBERT G. ACKERMAN
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 1
CASE NO.: OLT-24-000581
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: 1868981 Ontario Inc o/a Subway Sandwiches.
Respondent: City of Orillia
Description: Determination of compensation
Property Address: 70 Front Street North
Municipality/UT: City of Orillia
OLT Case No.: OLT-24-000581
OLT Lead Case No.: OLT-24-000581
OLT Case Name: 1868981 Ontario Inc o/a Subway Sandwiches. v. Orillia (City)
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 video hearing will begin June 17, 2025 at 10:00 a.m. as directed by the Tribunal in the Decision issued following the Case Management Conference (CMC). (optional: the Parties may request an in-person or hybrid hearing by contacting the Case Coordinator.)
The parties’ initial estimation for the length of the hearing is 3 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.
The Parties and Counsel are set out in Attachment 1 to this Order,
The Procedural Timetable (“PT”) of pre-hearing steps is set out in Attachment 2 to this Order.
The issues are set out in the Issues List (“IL”) attached as Attachment 3 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.
The Order of Evidence (“OE”) will be as set out in Attachment 4 to this Order.
The Hearing Plan/Supplementary Order of Evidence (“SOE”) shall be provided on or before 7 days before the hearing in accordance with paragraph 33. The SOE shall provide for opening statements and closing argument, if applicable, with time estimates for each, and shall name each witness to be called, the area of expertise for ach witness, if applicable, and the estimated duration for each direct, cross and re-direct examination. 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.
Parties, counsel and witnesses, are expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Pleadings
The Claimant, 1868981 Ontario Inc., served and filed a Notice of Arbitration and Statement of Claim on June 4, 2024.
The Respondent, City of Orillia, served and filed its Reply on July 4, 2024.
Discovery
Affidavits of Documents (together with production briefs of the documents) shall be exchanged by October 31, 2024.
Examinations for Discoveries of the representative of each party shall be completed on or before November 30, 2025. Any appraisal reports to be relied upon pursuant to paragraph 22 below, shall be provided at least 15 days prior to the Examinations for Discovery, unless the Tribunal orders otherwise as provided in the Tribunal’s Rules of Practice and Procedure (“OLT Rule(s)”) 26.21.
All undertakings provided at the Examination for Discovery of the parties shall be answered on or before January 31, 2025.
Any motion(s) arising out of the Examinations for Discovery shall be filed with the Tribunal on or before February 15, 2025 and shall be heard on a date and time to be determined by the Tribunal, if necessary. The OLT Rules 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.
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 discovery motion before the Tribunal.
Mediation
The parties are directed pursuant to Rule 26.6 to confer to discuss participating in a mediation for the purpose of resolving all or part of the claim and the parties shall comply with the provisions of Rule 26.7.
The parties agree that, if participation in a mediation is agreed to by both parties, the parties are to file with the Registrar an Expropriation Mediation Request Form pursuant to Rule 26.5 on or before October 11, 2024.
If the parties agree to a mediation, the mediation shall take place on or before February 15, 2025.
Evidence
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 on or before April 30, 2025.
Expert witnesses in the same field shall have a meeting on or before May 26, 2025, 21 days before the commencement of the Hearing, 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.
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 24 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. The 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 and a signed Acknowledgement of Expert’s Duty.
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 24 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 24 below.
On or before March 17, 2025, the parties shall provide copies of their respective expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 34 below and subject to paragraph 13 above.
Parties may provide to all other parties and the OLT case co-ordinator a written response or reply to any written evidence on or before April 17, 2025 and in accordance with paragraph 34 below.
Parties may request the leave of the Tribunal to provide written sur-reply to any written evidence, response or reply on or before May 1, 2025 and in accordance with paragraph 34 below.
Requirements Prior to the Hearing
On or before 60 days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before 60 days prior to the start of the hearing the parties shall provide the Tribunal with their preliminary hearing plan.
On or before 10 days prior to the start of the hearing, the parties shall provide copies of their visual evidence to the other party in accordance with paragraph 34 below. If a model will be used, 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 on or before 7 days prior to the start of the Hearing.
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.
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 26.3 shall serve such request on the party opposite at least 30 days before the hearing date.
The parties shall prepare and file a hearing plan with the Tribunal on or before 7 days prior to the start of the hearing with the SOE containing a proposed schedule for the hearing that identifies, as a minimum, 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. 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.
Adjournments
- 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 – Identification of Parties and Counsel
| Party | Party Status | Counsel / Representative |
|---|---|---|
| 1868981 Ontario Inc. | Claimant | Jeff Goldstein |
| City of Orillia | Respondent | Robert Wood – Borden Ladner Gervais LLP |
Attachment 2 – Timetable
| Action | Date |
|---|---|
| Exchange Affidavit of Documents | October 31, 2024 |
| Examinations for Discovery | November 30, 2024 |
| Appraisal Reports to be exchanged subject to direction of the Tribunal | N/A |
| Undertakings to be Answered | January 31, 2025 |
| Any motions arising from Examinations or Undertakings to be requested /scheduled | February 15, 2025 |
| Any further undertakings to be answered following the motion | 15 days from the date of the discovery motion, if any |
| Exchange of Witness List / Expert Witness Statements / Reports / Lay Witness Statements | April 30, 2025 |
| Exchange of Expert Reply Witness Statements / Reply Reports | May 16, 2025 |
| Meeting(s) of Like Experts | May 26, 2025 |
| Agreed Statement of Facts | June 6, 2025 |
| Mediation | February 15, 2025 |
| Request to Admit | 30 days (May 16, 2025) before hearing |
| Confirm whether all hearing dates still required | 60 days (April 17, 2025) before hearing |
| Arrange for Court Reporter | 30 days (May 16, 2025) before hearing |
| Joint Document Book | 30 days (May 16, 2025) before hearing |
| Visual Evidence | 30 days (May 16, 2025) before hearing |
| Preparation of Hearing Plan | 7 days (June 10, 2025) before hearing |
| Documents to be used in cross-examination | To be provided on or before the first day of the hearing or in advance of the start of cross-examination |
| Hearing | June 17, 2025 |
Attachment 3 – Issues List
The determination of compensation for relocation costs and business losses owed to the Claimant pursuant to the Expropriations Act arising from the Respondent’s expropriation of the Claimant’s leasehold interest in the land known as 70 Front Street West in the City of Orillia, together with interest and reasonable legal, appraisal and other costs in accordance with Sections 32 and 33 of the Expropriations Act, and such further and other relief as set out in the Statement of Claim and as the Tribunal deems appropriate. The Respondent advances defences including (a) that the Claimant failed to take reasonable steps to mitigate its damages, (b) the losses claimed were not caused by the Respondent, and (c) defences arising from a commercial lease between the parties.
Attachment 4 – Order of Evidence
- Claimant’s case
- Respondent’s case
- Claimant’s reply