Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 11, 2024

CASE NO(S).: OLT-22-004306

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant: Viso Inc.

Respondent: Metrolinx

Description: Determination of Compensation

Reference Number: Expropriation Plan AT5799687

Property Address: 388 Carlaw Avenue

Municipality/UT: City of Toronto

OLT Case No: OLT-22-004306

OLT Case Name: Viso Inc. v. Metrolinx

Heard: January 10, 2024, by Telephone Conference Call

APPEARANCES:

Parties	Counsel
Viso Inc. ("Claimant")	Sarah Spitz
Metrolinx ("Respondent")	Jessica Karban

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON JANUARY 10, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the pre-hearing Conference (“CMC”) ordered by the Tribunal in its Decision dated January 31, 2023. The Hearing on the Merits of this Claim for compensation under the Expropriations Act, is scheduled to be heard over five days commencing on April 22, 2024.

LENGTH OF HEARING REDUCED TO THREE AND ONE-HALF DAYS

2Both Counsel advised the Tribunal that the Parties have been working cooperatively to narrow the issues, and that as a result it is has been agreed that only three witnesses will be called, being the Claimant’s principal and two business loss experts. As a result, the estimated time required for the Hearing has been reduced to three and one-half days.

HEARING TO COMMENCE ON APRIL 23, 2024

3Counsel requested, in order to accommodate observance of the Passover Holiday, that the Hearing begin on Tuesday, April 23, 2024, rather than on Monday, April 22, and that the Hearing adjourn early on April 23, 2024, at 1 p.m. The Hearing will then continue at 10 a.m. on Wednesday, April 24, 2024, and conclude on Friday, April 26, 2024. The Tribunal agreed and granted this request. Counsel advised that the Timetable Order on January 31, 2023, is being followed, and that a draft Hearing Plan has been circulated and will be filed as required with the Tribunal’s Case Coordinator. Counsel undertook to file a revised Procedural order (“PO”) with the Tribunal’s Case Coordinator, which has now been received by the Tribunal.

4The Hearing on the Merits is now scheduled for Tuesday, April 23, 2024, at 10 a.m. by Video Hearing.

GoToMeeting: https://global.gotomeeting.com/join/765631861

Access Code: 765-631-861

5Parties 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.

6Persons 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 1-888-455-1389 or +1 (647) 497-9391. The Access Code is indicated above.

7Parties 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

8Individuals 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.

MEDIATION

9The Tribunal’s Order of January 31, 2023, provided that this Pre-Hearing Conference would include a Mediation Assessment. As the Tribunal’s Rules of Practice and Procedure were subsequently amended regarding the procedures for a Mediation Assessment, Counsel were directed to consult the Tribunal’s website under the tab “Mediation” for instructions and Mediation Request forms.

OTHER MATTERS

10Both Counsel advised the Tribunal that there were no other outstanding issues which they required to be addressed and that the Parties will be ready to proceed with the three- and one-half-day Video Hearing commencing on Tuesday, April 23, 2024.

ORDER

11The Tribunal Orders that paragraph two of the PO herein is amended in accordance with the Revised PO appended hereto as Attachment 1, to provide that the Hearing on the Merits of this Claim will begin on Tuesday, April 23, 2024, by Video Hearing for three and one-half days.

12This Member is not seized.

13So orders the Tribunal.

“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.

ATTACHMENT 1

CASE NO(S).: OLT-22-004306

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant: Viso Inc.

Respondent: Metrolinx

Description: Determination of Compensation

Reference Number: Expropriation Plan AT5799687

Property Address: 388 Carlaw Avenue

Municipality/UT: City of Toronto

OLT Case No: OLT-22-004306

OLT Case Name: Viso Inc. v. Metrolinx

REVISED PROCEDURAL ORDER

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.

Organization of the Hearing

2. The video hearing will begin on Tuesday, April 23, 2024, at 10:00 a.m. at

GoTo Meeting: https://global.gotomeeting.com/join/765631861

Access code: 765-631-861

Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389

Audio-only access code: 765-631-861

3. The parties’ initial estimation for the length of the hearing is three and a half (3.5) days. The Day 1 of the hearing is to be concluded by no later than 2 pm. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

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

6. 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.

7. 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 – ideally before the case management conference. 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 phone number as soon as possible.

8. 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

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about August 26, 2022.

10. Metrolinx served and filed a Reply on or about September 30, 2022.

11. The parties shall exchange their respective Affidavits of Documents and Productions by February 28, 2023.

12. Examinations for Discovery of the representative of each party shall be completed on or before April 28, 2023. The parties consent to conducting examinations for discovery by way of videoconference.

13. Each party shall answer their respective undertakings arising from examinations for discovery on or before May 31, 2023.

14. Any motion arising from either documentary discover or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard on June 29, 2023 at 10:00 a.m., and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, one week prior to the scheduled date for the motion, or as soon as possible thereafter.

15. Further answers to undertaking, 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 discovery motion before the Tribunal.

16. A party who intends to call witnesses, whether or 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 on or before fifty-five (55) days prior to the start of the hearing and in accordance with paragraph 32 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.

17. Expert witnesses in the same field shall have a meeting on or before January 31, 2024, 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 on or before February 15, 2024.

18. 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 35 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.

19. 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 20 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 32 below.

20. On or before December 1, 2023, the parties shall provide copies of their witness statement and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 32 below.

21. On or before December 1, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 35 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

22. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before January 15, 2024 and in accordance with paragraph 32 below.

23. 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.

24. 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.

25. On or before fifty-five (55) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

26. On or before ten (10) days prior to the start of the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 32 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

27. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before the first day of the hearing.

28. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and 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, on or before the first day of the hearing or in advance of the start of the cross-examination of any witness at the hearing.

29. 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.

30. The Tribunal will conduct a pre-hearing conference and mediation assessment on consent of the parties on January 10, 2024 with a view to scheduling mediation and subsequent hearing on a date that is mutually agreed by the parties and the Tribunal.

31. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days before the hearing 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.

32. All filings shall be submitted electronically and in hard copy, unless otherwise 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.

33. 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 not seized.

So orders the Tribunal.

Attachment 1

Party	Party Status	Counsel / Representative
Viso Inc.	Claimant	Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 shane@rbllp.com Sarah Spitz (LSO #75279G) T: 416.306.8705 sarah@rbllp.com
Metrolinx	Respondent	M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Ian Mathany (LSO #57197U) Tel: 416.947.6702 ian@mhlawyers.ca Mariana Cherkas (LSO # 75541D) Tel: 416.947.6700 mariana@mhlawyers.ca

Attachment 2

OLT File No: OLT-22-004306

ONTARIO LAND TRIBUNAL

IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E-26

AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

VISO INC. Claimant

• and -

METROLINX Respondent

ISSUES LIST

1. The issues shall be those as set out in the pleadings delivered by the Parties.

Attachment 3

OLT File No: OLT-22-004306

ONTARIO LAND TRIBUNAL

IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E-26

AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

VISO INC. Claimant

• and -

METROLINX Respondent

ORDER OF EVIDENCE

1. Viso Inc.
2. Metrolinx
3. Viso Inc., in Reply