Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 04, 2024
CASE NO(S).: OLT-22-003902
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26
Claimant: Frank & Audrey John
Respondent: Metrolinx
Description: Determination of compensation
Reference Number: Plan of Expropriation HR1784365
Property Address: 891 Orpha Street
Municipality: City of Burlington
OLT Case No.: OLT-22-003902
OLT Case Name: John v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Frank & Audrey John
Request for: Request for Directions
Heard: February 15, 2024 by video hearing
APPEARANCES:
Parties
Counsel
Frank John and Audrey Dianne John (“Claimants”)
Leah Cummings
Metrolinx (“Respondent”)
Jessica Karban
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON FEBRUARY 15, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing event is a Motion by the Claimants for an Order that the Respondent answer certain questions on the Examination for Discovery of its representative, Brian Matthews, which were refused or taken under advisement. By Order of the Tribunal dated May 12, 2023, which established the terms of the Procedural Order (“PO”) governing the conduct of this Proceeding, the scheduling of such a Motion was provided for. The PO requires that the materials in support of any such Motion be filed by November 17, 2023, on which date Counsel for the Claimants delivered the Motion Record herein. The Hearing on the Merits of this claim is scheduled for three days beginning on Wednesday, June 5, 2024.
2The Claim for compensation pursuant to the provisions of the Expropriation Act, R.S.O. 1990, c. E.26 (the “Act”) arises out of the Expropriation of a temporary easement (“the Easement”) by the Respondent over and upon the property municipally known as 891 Orpha Street, Burlington (“Subject Property”). The Claimants are the owners of the Subject Property. The Expropriation of the Easement was for the purposes of the GO Expansion Project within the GO Lakeshore West Rail Corridor (the “Works”). In response to the Tribunal’s query, Jessica Karban, Counsel for the Respondent, advised that construction of the Works has been delayed and that construction is not scheduled to begin until during or about the month of July 2024.
3The Examination for Discovery of the Respondent’s representative was held on October 5, 2023. The questions which were refused and those taken under advisement fall into three categories:
a. Questions relating to Project Agreements between the Respondent and its construction contractors and related to the design of the Works: Ques. 16, 18, 19, 35, 37, 38, 39, 40, 68, 74, 75;
b. Questions relating to the Respondent’s assurances to the Claimant that access to the Subject Property will be maintained and that access will not be obstructed or interrupted by either the construction or the use of the Works: Ques. 41, 42, 43, 45, 51, 52, 55, 56, 64;
c. Questions relating to the Respondent’s Appraisal prepared and served pursuant to section 25 of the Act: Ques. 23, 24.
4For reasons orally given the Tribunal found that questions relating to access to the Subject Property during and after construction and to the section 25 Appraisal are proper as the former relate to the issue of disturbance damages and the latter to the issue of market value. The Tribunal therefore ordered that the Respondent answer the questions identified in paragraph [3] b. and [3] c. above. As construction will not begin until July 2024, the Tribunal found that the questions relating to the design of the Works are premature and the questions relating to the Project Agreements are irrelevant.
ORDER
5THE TRIBUNAL ORDERS THAT the Respondent provide answers to Questions 16, 18, 19, 35, 37, 38, 39, 40, 68, 74, 75 on the Examination for Discovery of Brian Matthews, by March 15, 2024.
6AND THE TRIBUNAL ORDERS THAT the Respondent provide answers to Questions 23 and 24 on the Examination for Discovery of Brian Matthews, by March 15, 2024.
7The Tribunal makes no order as to the costs of this Motion.
8So 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.