Burnhaven Farms Inc. v. Ontario (Ministry of Transportation), 2024 CanLII 25582

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2024

CASE NO(S).: OLT-23-000032

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

Claimant: Burnhaven Farms Inc.

Respondent: HMK in right of Ontario as represented by the Ministry of Transportation

Subject: Determination of compensation

Description: To permit the construction of Highway 6 Morriston Bypass.

Reference Number: WC509780

Property Address: 7342 Wellington Road 34 (Burnhaven Property)

Municipality/UT: Puslinch/Wellington

OLT Case No: OLT-23-000032

OLT Lead Case No: OLT-23-000032

OLT Case Name: Burnhaven Farms Inc. v. Ontario (Ministry of Transportation)

Heard: March 1, 2024 by Video Hearing

APPEARANCES:

Parties Burnhaven Farms Inc.

Counsel Sarah Spitz Shane Rayman in absentia

HMK in right of Ontario as represented by the Ministry of Transportation

Brendan Haynes Laura Brazil

MEMORANDUM OF ORAL DECISION DELIVERED BY W. daniel best ON MARCH 1, 2024 AND ORDER OF THE TRIBUNAL

1This first Case Management Conference (“CMC”) was conducted to organize the hearing of a claim for compensation brought by Burnhaven Farms Ltd. (“Claimant”) against HMK in right of Ontario as represented by the Ministry of Transportation (“Respondent”) under s. 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26 (“EA”) with respect to lands municipally known as 7342 Wellington Road, Puslinch Ontario and legally described as Part Lot 20, Concession 7, Township of Puslinch; as in RO706140, except Parts 1 & 2 on Plan 61R-11884; Township of Puslinch; PIN71197-0404 (Inactive) (the “Burnhaven Property”).

2The Claimant is seeking compensation for the market value for its interest as the registered owner of the Burnhaven Property, a portion of which was acquired in fee simple by the Respondent pursuant to Expropriation Plan WC509780 registered on title on July 11, 2017 (the “Effective Date”).

3The Claimant also holds a leasehold interest in the following properties:

Part Lots 23, 24 & 25, Concession 3, Township of Puslinch, as in RO708151, Except Parts 1, 2, 3, and 4, Expropriation Plan WC 509804; S/T IS12229, IS7926, Township of Puslinch
Part Lot 19 Concession 7, Township of Puslinch, as in ROS525201; S/T spousal interest in ROS525201, except Part 1 on Expropriation Plan WC509790, Township of Puslinch
Part of Lot 21, Concession 7, Puslinch 7, Puslinch as in RO657310, save and except Parts 1, 2 & 3 on Plan 61R-21010, subject to an easement as in IS12103, Township of Puslinch
Part Lot 28, Concession 7, Township of Puslinch as in ROS596237, West of 61R1543; T/W ROS596237, Township of Puslinch
Part Lot 28, Concession 7, Township of Puslinch as in ROS596237, East of 61R1543; T/W ROS596237, Township of Puslinch
Part Lot 14, Concession 8, Part Road Allowance Between Cons 7&8, Township of Puslinch, as closed by IS15570 as in MS135643; Part Lot 14, Concession 7, Parts 5 & 6 on 61R261, Township of Puslinch, S/T MS129541, City of Guelph
Collectively these properties are the (“Leased Properties”)

4The Claimant also seeks compensation for disturbance damages and injurious affection arising from the Respondent’s expropriation of the Burnhaven Property and Leased Properties, as provided for under the EA. Notice of the claims was provided to the Respondent on July 9, 2018.

5The Parties have been following the Procedural Order (“PO”) issued on August 10, 2023. The Tribunal requested that a revised PO be submitted, on consent, to ensure that the appropriate dates are reflected. The Claimant’s Counsel was directed to submit the draft PO before Friday, March 8, 2024, to the Case Coordinator.

6The Parties are aware of the availability of Tribunal-led mediation and have made a request and are currently seeking dates from the Tribunal.

7Having received the benefit of the revised PO from the Claimant, prior to the issuance of this Decision, the Tribunal deems the PO to be in force and effect to govern the proceedings at the Merit Hearing scheduled below. Any changes to the PO will require the approval of the Tribunal.

8Counsel for both Parties agreed that a Merit Hearing will likely require five days and that it would be reasonable for the Merit Hearing to take place in the Fall of 2024. Therefore, the Tribunal has scheduled the Hearing to commence on Monday, November 4, 2024 for five days, ending Friday, November 8, 2024.

9A five-day Merit Hearing is scheduled to commence at 10 a.m. on Monday, November 4, 2024, by Video Hearing.

10Parties are asked to log in to 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/519389173

Access code: 519-389-173

11Parties 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 at: 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 519-389-173.

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 the directions contained in this Decision.

15The Procedural Order, appended to this Decision as Schedule 1, is approved and in force and effect.

16There will be no further notice.

17The Member is not seized and may be spoken to through the Tribunal’s Case Coordinator if there are any issues with respect to the implementation of this Order.

“W. Daniel Best”

W. DANIEL BEST

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-23-000032

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

Claimant: Burnhaven Farms Inc.

Respondent: HMK in right of Ontario as represented by the Ministry of Transportation

Subject: Determination of compensation

Description: To permit the construction of Highway 6 Morriston Bypass.

Reference Number: WC509780

Property Address: 7342 Wellington Road 34 (Burnhaven Property)

Municipality/UT: Puslinch/Wellington

OLT Case No: OLT-23-000032

OLT Lead Case No: OLT-23-000032

OLT Case Name: Burnhaven Farms Inc. v. Ontario (Ministry of Transportation)

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 hearing will begin on November 4, 2024 at 10:00 a.m. at the Ontario Land Tribunal 655 Bay Street,16th Floor Toronto, Ontario or by videoconference.
The parties’ initial estimation for the length of the hearing is FIVE (5) 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 participants identified at the case management conference are set out in Attachment 1.
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.
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.
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.
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

The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about January 10, 2023.
The Respondent served its Reply on or about March 6, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by May 31, 2023.
Examinations for Discovery of the representative of each party shall be completed on or before July 31, 2023. The parties consent to conducting examinations for discovery by way of videoconference.
Each party shall answer their respective undertakings arising from examinations for discovery on or before September 30, 2023.
Each party shall deliver to the other party any response to answers to undertakings, questions taken under advisement, and/or refusals by October 30, 2023.
The Claimant and the Respondent shall exchange any further answers to undertakings, questions taken under advisement, and/or refusals by November 15, 2023.
The Parties shall advise the Tribunal whether any motion arising from documentary discovery or Examinations for Discovery and answers to undertakings will be necessary by November 22, 2023.
Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard in writing unless directed otherwise by the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion, or as soon as possible thereafter.
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 thirty (30) days of the discovery motion before the Tribunal.
A party who intends to call witnesses, whether on 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, being September 10, 2024 and in accordance with paragraph 33 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.
Expert witnesses in the same field shall have a meeting on or before May 15, 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 at least fifteen (15) days prior to the start of the hearing, being October 18, 2024.
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 23 above. 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.
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 23 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 23 above.
On or before February 15, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 33 below.
On or before February 15, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 33 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before fifty-five (55) days prior to the start of the hearing, being September 10, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before thirty (30) days prior to the start of the hearing, being October 4, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 33 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 co-ordinator a written response to any written evidence, including expert reports, on or before April 15, 2024 and in accordance with paragraph 33 below.
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, ten (10) days prior to the start of the hearing, being October 25, 2024.
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.
On or by February 22, 2024 the parties shall discuss whether a request should be made for mediation of this matter. If the parties wish to proceed with mediation, a request for mediation shall be submitted to the Tribunal on or by March 15, 2024. The Tribunal will conduct a pre-hearing conference on consent of the parties on Friday, March 1, 2024 at 9:00 a.m. with a view to resolving any outstanding issues related to the November 4, 2024 hearing.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 30 (30) days before the hearing, being October 4, 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.
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.
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

Burnhaven Farms Inc. Claimant Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 shane@raymanharris.com Sarah Spitz (LSO #75279G) T: 416.306.8705 sarah@raymanharris.com

His Majesty the King in Right of Ontario as represented by the Minister of Transportation Respondent Crown Law Office – Civil 720 Bay Street, 8th Floor Toronto, ON M7A 2S9 Brendan Haynes (LSO # 53998H) Tel: 647-308-3708 Brendan.haynes@ontario.ca Laura Brazil (LSO #60039L) Tel: 416-995-8892 Laura.brazil@ontario.ca

Attachment 2

OLT File No: OLT-23-000032

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:

BURNHAVEN FARMS INC. Claimant

and -

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION Respondent

ISSUES LIST

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

Attachment 3