Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 10, 2024
CASE NO(S).: OLT-23-000832
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: 1413857 Ontario Inc. O/A Firkin on Bloor
Respondent: City of Toronto
Description: Determination of compensation
Property Address: 81 Bloor Street East
Municipality: City of Toronto
OLT Case No.: OLT-23-000832
OLT Lead Case No.: OLT-23-000832
OLT Case Name: 1413857 Ontario Inc. O/A Firkin on Bloor v. Toronto (City)
Heard: November 15, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1413857 Ontario Inc. O/A Firkin on Bloor ("Claimant") | Jeff Goldstein |
| City of Toronto ("Respondent") | Nathan Muscat |
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON NOVEMBER 15, 2023, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing is the first Case Management Conference ("CMC") conducted in this claim for compensation under the Expropriations Act. The claim is brought by the Claimant against the Respondent and arises out of the Expropriation of the entirety of the property municipally known as 81 Bloor Street East, where the Claimant was a commercial tenant operating a full-service restaurant and bar. The Expropriation was for the construction of the TTC Bloor-Yonge Subway Station Capacity Improvements Project. The Claimant's restaurant was permanently closed as a result and the Claimant seeks damages from the Respondent for injurious affection, disturbance, and business losses.
PROCEDURAL ORDER
2A draft Procedural Order ("PO") had been circulated between Counsel and was filed with the Tribunal's Case Coordinator on November 13, 2023. Counsel advised the Tribunal that they were prepared to set a date for a Hearing on the Merits and that a five-day Hearing would be required. The Tribunal reviewed the draft PO, and directed that certain amendments be made with respect to the Pre-Hearing timelines, to which both Counsel agreed.
3Counsel for the Claimant undertook to revise and resubmit the draft PO to provide for the agreed revisions, the specific timeline dates, and appended Timetable once the Hearing date was set.
4The Tribunal inquired of Counsel regarding Tribunal-led Mediation. Mr. Goldstein, Counsel for the Claimant, responded that his client would welcome a Mediation and the opportunity to settle the claim, adding that the Claimant's business was permanently closed on June 27, 2022 as a result of the pending Expropriation. Mr. Muskat, Counsel for the Respondent, submitted that he did not have his client's instructions regarding a Mediation; however, he believed a Mediation would be premature. The Tribunal inquired regarding the availability of business loss reports. Mr. Goldstein advised that his client's report had been served and Mr. Muskat advised that his client's report was not yet available, but that he understood that it was near completion.
5Pursuant to Rule 26.6 of the Tribunal's Rule of Practice and Procedure (the "Tribunal's Rules"), the Tribunal directed the Parties to discuss participating in a Mediation for the purpose of resolving all or part of the claim. Delivery of this Order to Counsel for each Party shall constitute the Notice of the Tribunal's Direction as required by Rule 26.7 of the Tribunal's Rules.
6Following consultation, and with respect to the Tribunal's calendar and the availability of the Parties and Counsel, a five-day Hearing on the Merits, by Video Hearing was agreed upon, commencing on Monday, January 13, 2025, and concluding on Friday, January 17, 2025.
7The Tribunal has subsequently received and reviewed the revised draft of the PO, Parties List and Order of Evidence. 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 details for the Hearing on the Merits are set out below in this Decision.
8Appended 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.
9Appended to this Decision, as Attachment 1, Attachment 2 and Attachment 3, are the List of Parties, Timetable and Issues List, which shall govern the conduct of the Hearing on the Merits.
HEARING – January 13, 2025 – January 17, 2025
10For the five-day Video Hearing, commencing at 10 a.m. on Monday, January 13, 2025, and continuing to Friday, January 17, 2025, 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:
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889
Audio-only access code: 660-145-013
11Parties, witnesses and observers 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
12Persons 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 provided in paragraph [10] above.
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.
ORDER
14THE TRIBUNAL ORDERS THAT:
a. the Procedural Order appended as Schedule 1 to this Decision, the List of Parties appended as Attachment 1, the Timetable appended as Attachment 2 and the Issues list appended as Attachment 3, shall govern the conduct of this proceeding; and
b. the Tribunal Directs the Parties to discuss participating in a Mediation for the purpose of resolving all or part of the claim, and that delivery of this Decision to Counsel for the Parties shall constitute the Notice required by Rule 26.7 of the Tribunal's Rules.
"Robert G. Ackerman"
ROBERT G. ACKERMAN MEMBER
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 1
CASE NO(S).: OLT-23-000832
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended and in the matter of an Arbitration
Claimant: 1413857 Ontario Inc. O/A Firkin on Bloor
Respondent: City of Toronto
Description: Determination of compensation
Property Address: 81 Bloor Street East
Municipality: City of Toronto
OLT Case No.: OLT-23-000832
OLT Lead Case No.: OLT-23-000832
OLT Case Name: 1413857 Ontario Inc. O/A Firkin on Bloor v. Toronto (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 on January 13, 2025 and will end on January 17. 2025. The hearing may be converted into an in-person or hybrid hearing on consent of the parties, and as the Tribunal permits. A summary of the relevant dates are summarized in Attachment 3.
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889
Audio-only access code: 660-145-013
The parties' initial estimation for the length of the hearing is five (5) 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.
The parties identified at the case management conference are set out in Attachment 1.
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.
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.
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
Affidavit of Documents (together with production briefs of the documents) shall be exchanged by March 15, 2024.
Discoveries shall be completed on or before April 12, 2024.
Undertaking answers shall be provided on or before May 10, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed on or before May 24, 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 December 1, 2023 the parties shall discuss whether a request should be made for mediation of this matter. If the parties wish to proceed with mediation before the Tribunal, a request for mediation shall be submitted to the Tribunal on or by December 15, 2023.
Pursuant to Rule 26.6 of the Tribunal's Rule of Practice and Procedure ("the Tribunal's Rules), the Tribunal has directed the parties to discuss participating in mediation for the purpose of resolving all or part of the claim. Delivery of this Order to Counsel for each Party shall constitute the Notice of the Tribunal's Direction as required by Rule 26.7 of the Tribunal's Rules.
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 July 19, 2024 and in accordance with paragraph 29 below.
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 29 below. If this is not done, the Tribunal may refuse to hear the expert's testimony.
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.
On or before September 27, 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 29 below.
On or before December 20, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 29 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case coordinator a written reply to any written evidence on or before October 25, 2024 and in accordance with paragraph 29 below.
The Tribunal will conduct a pre-hearing conference on consent of the parties on November 5, 2024 at 10:00 a.m. with a view to resolving any outstanding issues related to the hearing.
GoTo Meeting: https://global.gotomeeting.com/join/687587165
Access code: 687-587-165
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889
Audio-only access code: 687-587-165
Expert witnesses in the same field shall have a meeting on or before November 15, 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 November 27, 2024 in accordance with paragraph 29 below. For clarity, if 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before thirty (30) days prior to the Hearing.
Any documents which may be used by a party in cross examination of an opposing party's witness shall only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, in advance of the start of the cross-examination of any witness at the hearing.
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.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 1, 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.
On or before November 1, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The parties are to update or confirm the hearing plan on or before fourteen (14) days prior to the Hearing.
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.
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.
This Member is seized.
So orders the Tribunal.
ATTACHMENT 1 – PARTIES LIST
| Party | Party Status | Counsel / Representative |
|---|---|---|
| 1413857 Ontario Inc. O/A Firkin on Bloor | Claimant | Goldstein Law [ADDRESS] Jeff Goldstein Tel: 647-838-6740 Email: jeff@goldsteinlawyers.ca |
| City of Toronto | Respondent | City Solicitor's Office City of Toronto 55 John Street, 26th Floor Toronto, ON M5V 3C6 Nathanial Muscat Tel: 416- 397-5475 Fax: 416 397-5624 Email: nathan.muscat@toronto.ca Jessica Amey Tel: 416-397-1890 Fax: 416 397-5624 Email: jessica.amey@toronto.ca |
ATTACHMENT 2 – ORDER OF EVIDENCE
- Claimant's evidence
- Respondent's evidence
- Claimant's Reply, if any
ATTACHMENT 3 – SUMMARY OF RELEVANT DATES
| Exchange or Event | Date |
|---|---|
| Parties to confer on Mediation | December 1, 2023 |
| Parties to request Mediation | December 15, 2023 |
| Exchange Affidavit of Documents | March 15, 2024 |
| Completion of Discoveries | April 12, 2024 |
| Undertakings answers to be provided | May 10, 2024 |
| Motions on Examination for Discoveries | May 24, 2024 |
| Witness Lists | July 19, 2024 |
| Witness Reports and Statements | September 27, 2024 |
| Reply Witness Statements | October 25, 2024 |
| Submit Preliminary Hearing Plan | November 1, 2024 |
| To confirm all hearing dates are required | November 1, 2024 |
| Pre-Hearing Conference | November 5, 2024 |
| Expert Meeting | November 15, 2024 |
| Exchange of Statement of Agreed Facts | November 27, 2024 |
| Submit Joint Document Book | December 13, 2024 |
| Visual Evidence | December 20, 2024 |
| Final Hearing Plan | December 20, 2024 |
| Hearing Commences | January 13, 2025 |