Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 31, 2024
CASE NO(S).: OLT-23-000350
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended
Claimant: 1255870 Ontario Limited
Respondent: Metrolinx
Subject: Land Compensation
Property Address: 68-70 Parliament Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000350
OLT Lead Case No.: OLT-23-000350
OLT Case Name: 1255870 Ontario Limited v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Metrolinx
Request for: Request for Directions
Heard: October 30, 2024 in writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Metrolinx | C. Higgs I. Mathany |
| 1255870 Ontario Limited (“1255870”) | J. Farber M. Rutledge |
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This hearing concerns a further dispute arising from examinations for discovery conducted in an expropriations case following the Tribunal’s Decision and Order issued September 10, 2024, arising from earlier discovery disputes between the Parties (“September 10, 2024 Decision”). The background set out in the September 10, 2024 Decision will not be repeated here.
2Metrolinx submitted voluminous motion materials and 1255870 delivered a responding motion record for this motion by Metrolinx to compel answers to questions refused at a further examination for discovery conducted on September 26, 2024.
REFUSALS IN DISPUTE ARISING FROM SEPTEMBER 26, 2024 EXAMINATION FOR DISCOVERY OF MR. JAKOBEK
3In its motion materials, Metrolinx argued that:
Although 125 Limited provided answers to undertakings given at Jakobek’s examination, it maintained the refusals, being:
a. to advise whether a shut down of the Porsche dealership at the Subject Property would require approval from Porsche Canada;
b. to advise whether Jakobek briefed Ontasian Enterprises Inc. (the “2018 Shareholder”) on the redevelopment of the Subject Property;
c. to advise whether 125 Limited reported to 1375620 Ontario Limited and 1300680 Ontario Inc. (the “2019 Shareholders”) regarding the redevelopment of the Subject Property;
d. to advise why the 2018 Shareholder and the 2019 Shareholders (collectively, the “Shareholders”) changed;
e. to advise whether the Shareholders had any input or were a part of the redevelopment of the dealership at the Subject Property; and
f. to advise whether the Shareholders would have been part of the approval process for the redevelopment of the Subject Property.
(collectively, “Refusals”)
4In its responding motion record, 1255870 maintained that the Refusals were appropriate because they arose from examination beyond the scope permitted by the Tribunal in the September 10, 2024 Decision and because the questions refused were not relevant to any material issue in this proceeding. However, counsel for 1255870 went on to argue that:
Notwithstanding 125 Limited's position that the information sought by Metrolinx is not relevant and that Metrolinx was not permitted by the Tribunal Order to make such inquiries, on October 24, 2024, Mr. Matthew Rutledge, co-counsel for 125 Limited, advised Metrolinx by email that Porsche Canada had the right to terminate its dealership agreement with DFC in the event of failure to continue to operate in accordance with the Porsche Dealer Sales and Service Agreement or if the dealership location was changed with Porsche Canada's prior written approval. Redacted potions of the Porsche Dealer Sales and Service Agreement were also provided to Metrolinx… Accordingly, 125 Limited submits that it correctly refused, and otherwise answered, Metrolinx's question with respect to Refusal 1 and that the Tribunal should dismiss Metrolinx's request for the Tribunal to order 125 Limited to make further answers with respect to Refusal 1.
5With respect to the other Refusals, counsel for 1255870 maintained its position about the underlying questions being beyond the scope of permitted examination under the Tribunal’s September 10, 2024 Decision and further contended that:
125 Limited submits that it has correctly refused the questions posed by Metrolinx for which Refusals 2 – 6 were provided, as the information sought is not relevant or necessary to ascertain the market value of the Subject Property, nor were they proper questions within the limited scope of further examination contemplated by the Tribunal's Order. Notwithstanding the foregoing, on October 25, 2024, Mr. Rutledge provided by email further answers to Metrolinx with respect to Refusals 2 – 6.
6In the Tribunal’s view, at this late juncture, only days before the commencement of the lengthy hearing of this case on November 4, it is unnecessary to make formal rulings on Metrolinx’s Motion or to comment on whether the permissible scope of the examinations conducted on September 26 was exceeded. The Tribunal will permit broad cross-examination by counsel for Metrolinx of all witnesses called by 1255870 including but not limited to Mr. Jakobek. Should that cross-examination include some of the matters that were the subject of the Refusals, in the event of any objections raised by 1255870 the Tribunal will make requisite rulings after considering the submissions of the Parties. At this stage, in the Tribunal’s view, this is a procedurally fair way to adjudicate any evidentiary disputes that may arise including any of those that led to the Refusals.
7In the event that the Tribunal’s rulings on evidentiary disputes as described in paragraph [6] lead to new evidence that the witnesses for Metrolinx had not been previously aware of, the Tribunal is confident that appropriate latitude for their testimony can be fairly accommodated, if and as required. Naturally, the Tribunal will also permit broad cross-examination by counsel for 1255870 of Metrolinx’s experts and witnesses on such matters.
8As a final obvious point, both Metrolinx and 1255870 will be provided a full opportunity to address as they see fit in final oral and written argument all of the matters raised on Metrolinx’s Motion in the context of the oral evidence tendered at the hearing as it might relate to those matters.
9Notwithstanding the above, the Tribunal urges the Parties to continue to exchange and update relevant information and evidence prior to the commencement of this hearing. Should this lead to reasonable requests at the hearing to permit the modification of witness statements, expert reports and/or oral testimony, the Tribunal believes that this can be fairly assessed and accommodated as need be. It is not unusual for this to occur at lengthy, complex hearings in the Tribunal’s experience.
ORDER
10THE TRIBUNAL ORDERS THAT:
(a) This Motion is dismissed; and
(b) No costs shall be awarded to either Party in respect of this Motion.
“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.