2441066 Ontario Inc. v. Hamilton (City), 2024 CanLII 118364

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 18, 2024

CASE NO.: OLT-24-000737

PROCEEDING COMMENCED UNDER subsection 26(2)(b) of the Expropriations Act, R.S.O. 1990, c. E.26.

Claimant: 2441066 Ontario Inc. Respondent: City of Hamilton Description: Land Compensation - Construction of the East-West Waterdown Bypass Road Reference Number: WE1449621 Property Address: 347 Parkside Drive Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-24-000737 OLT Lead Case No: OLT-24-000737 OLT Case Name: 2441066 Ontario Inc. v. Hamilton (City)

BEFORE:

WILLIAM R. MIDDLETON

Monday, the 18th

“William R. Middleton”

day of November, 2024

THE TRIBUNAL ORDERS that the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on January 19, 2026. The Tribunal has set aside 10 day(s) for the hearing.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

ISSUE DATE: CASE NO(S).: OLT-24-000737

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, and in the matter of an Arbitration

Claimants: 2441066 Ontario Inc.

Respondent: City of Hamilton

Subject: Determination of compensation in accordance with the Expropriations Act

Property Address/Description: 347 Parkside Drive

Municipality: City of Hamilton

Municipal File No.:

OLT Case No.: OLT-24-000737

OLT File No.:

OLT Case Name: 2441066 Ontario Inc. vs City of Hamilton

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.

2. Any date or deadline contemplated in this Procedural Order related to obligations as between the parties, and which does not involve an appearance or deadline for filing with the Tribunal, may be amended by written agreement of the parties.

Organization of the Hearing

3. The video hearing will begin on January 19, 2026, at 10:00 a.m. by videoconference. https://global.gotomeeting.com/join/914098901 Access Code: 914-098-901

Persons 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 1-888-299-1889. The access code is 914-098-901.

4. The parties’ initial estimation for the length of the hearing is ten (10) 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.

5. The parties are set out in Attachment 1.

6. The issues are set out in the Issues List attached as Attachment 2.

7. The order of evidence shall be as set out in Attachment 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.

8. 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. 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.

9. 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

Mediation

10. Subject to the outcome of a mediation assessment, the parties will attend a mediation within the period of November 9–20, 2025, to attempt to narrow or resolve the issues.

Pleadings

11. The Claimant delivered its Notice of Arbitration and Statement of Claim on July 19, 2024.

12. The Respondent delivered its Reply on October 24, 2024.

Documentary and Oral Discoveries

13. The parties shall exchange their respective Affidavits of Documents together with productions of the Schedule A documents on or before January 22, 2025.

14. Examinations for discovery of the representative of each party shall be completed on or before March 5, 2025. The parties consent to conduct examinations for discovery by way of videoconference.

15. Each party shall answer their respective undertakings arising from examinations for discovery on or before April 23, 2025.

16. Any motion(s) arising out of the examinations for discovery shall be served and filed in writing only on or before May 28, 2025.

17. 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 one month of the date on which the Tribunal delivers its reasons on the motion described in paragraph 16.

Witnesses and Evidence

18. The following definitions shall apply in this matter:

a. “Expert report” means a report 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 his or her opinion on those issues, and a list of reports, documents and/or studies that the expert witness relies upon;

b. “Witness statement” means a document consisting of a short outline of the facts and issues that a non-expert witness will address in evidence. A witness statement must be served for all non-expert witnesses a party intends to call at the hearing.

c. “Expert Witness Statement” means a witness statement prepared by an expert witness, and should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing

d. “Visual Evidence” includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.

19. 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 to the Tribunal on or before June 25, 2025 and in accordance with paragraph 36 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.

20. 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 36 below. Instead of a witness statement, the expert may file his or her entire expert report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

21. Unless the Tribunal orders otherwise, no expert shall give oral evidence at the hearing without first having served and filed an expert report.

22. A party who intends to call a witness who is not an expert must file a witness statement, as in paragraph 36 below.

23. On or before July 9, 2025, the parties shall provide copies of their witness and expert witness statements and/or expert reports to the other parties and to the OLT case co-ordinator and in accordance with paragraph 36 below.

24. On or before October 8, 2025, the parties shall provide copes of all reply expert reports and witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 36 below.

25. Further 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 on which the expert witness who will give oral evidence is to be called. In the event that a Party objects to and seeks to exclude any evidence, witness statement or expert report, in whole or in part, the objecting Party must file a motion in writing with the Tribunal by no later than November 15, 2025.

26. On or before November 11, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 36 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

27. A party who provides written evidence of a witness or expert report to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least seven (7) days before the hearing that the written evidence is not part of their record.

Mediation Assessment and Pre-Hearing Conference

28. On or before July 23, 2025, the parties shall request and attend a mediation assessment to be scheduled by the Tribunal.

29. On or before December 17, 2025, the parties shall request and attend a pre-hearing conference to be scheduled by the Tribunal.

Requests to Admit

30. Any party choosing to serve a Request to Admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure, incorporated by reference in Tribunal Rule 1.04, shall serve such Request or Requests on the party or parties opposite on or before November 27, 2025.

31. Responses to any Request(s) to Admit shall be served in accordance with the Rules of Civil Procedure.

Hearing Plan and Arrangements

32. On or before December 4, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

33. The Respondent shall arrange for the service and payment of a certified Court Reporter for the hearing, and provide notification to the Claimant of these arrangements by January 5, 2026.

34. The parties shall cooperate to prepare a joint document book and a brief of witness statements / expert reports which shall be filed with the OLT case co-ordinator on or before January 8, 2026.

35. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 8, 2026, 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.

General

36. All filings shall be submitted electronically. 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.

37. 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

Attachment 1

Party

Party Status

Counsel / Representative

2441066 Ontario Inc.

Claimant

RAYMAN HARRIS LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5B 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 F: 437.222.9001 shane@raymanharris.com Brynn Leger (LSO #77713P) T: 437.222.9003 brynn@raymanharris.com Stephanie Fong (LSO #77647O) T: 437.222.9005 stephanie@raymanharris.com

City of Hamilton

Respondent

SCARGALL OWEN-KING LLP 17 Leader Lane Toronto, ON M5E 1L8 Matthew Owen-King (LSO #52344K) Tel: 416.597.5421 matthew.owen-king@sokllp.com Aadil Nathani (LSO #83145M) Tel: 416.869.2202 aadil.nathani@sokllp.com

Attachment 2

ISSUES LIST

1. The issues are defined by the pleadings of the parties as filed with the Tribunal.

Attachment 3

ORDER OF EVIDENCE

1. The order of presentation of evidence shall be:

a. case for the Claimant;

b. case for the Respondent; and

c. reply by the Claimant.

2. Reply evidence shall not include evidence that was or should have been led in-chief.