Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 09, 2024
CASE NO(S).: OLT-23-001126
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Branded Cities Company Canada formerly known as Clear Channel Outdoor Company Canada
Respondent: Metrolinx
Description: Determination of Compensation
Property Address: 1 Atlantic Avenue
Municipality/UT: City of Toronto
OLT Case No.: OLT-23-001126
OLT Case Name: Branded Cities Company Canada formerly known as Clear Channel Outdoor Company Canada v. Metrolinx
Heard: February 20, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Branded Cities Company Canada formerly known as Clear Channel Outdoor Company Canada ("Claimant") | Hana Tariq |
| Metrolinx ("Respondent") | Aisling Flarity |
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON FEBRUARY 20, 2024, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing event is the first Case Management Conference ("CMC") conducted in this Claim for compensation under the Expropriations Act. The Claim arises out of the Expropriation of the entirety of the property at 1 Atlantic Avenue, Toronto, at which the Claimant operated three electronic billboard signs pursuant to a lease with the property owner. The purpose of the expropriation was to facilitate the construction of the Exhibition Station for the Ontario Line Subway.
PUNITIVE DAMAGES CLAIM
2The Tribunal reviewed the Notice of Arbitration and Statement of claim and referred Counsel for the Claimant, Ms. Tariq, to the claim for punitive damages contained in paragraphs 1(b) and 28 thereof. The Tribunal advised Ms. Tariq that punitive damages are not an available remedy under the Expropriation Act, R.S.O. 1990, c. E.26 (the "Act") and that the Tribunal therefore lacks the jurisdiction to adjudicate such a claim. To save the costs and the Tribunal’s resources which would be thrown away respecting the claim, the Tribunal directed Counsel for the Claimant to amend the Statement of Claim by deletion of the punitive damages claim and Counsel for the Respondent, Ms. Flarity, advised the Tribunal that her client would consent to such an amendment.
PROCEDURAL ORDER
3A draft Procedural Order ("PO") had been circulated between Counsel and filed with the Tribunal’s Case Coordinator. Counsel advised the Tribunal that they were prepared to set a date for a Hearing to determine the compensation, and that a five-day Hearing would be required. The Tribunal reviewed the terms for a draft PO with Counsel and suggested revisions, to which Counsel agreed. Counsel also agreed to cooperate respecting the formulation of the Issues List and the Order of Evidence and Ms. Flarity undertook to revise and resubmit the draft PO to provide for specific timeline dates once the Hearing date was set.
4Following consultation, respecting the Tribunal’s calendar, and the availability of the Parties and Counsel, a five-day Hearing on the Merits to determine the compensation, by Video Hearing ("VH") was agreed upon, commencing on Monday, June 9, 2025, at 10 a.m., and concluding on Friday, June 13, 2024.
5The Tribunal has subsequently received and reviewed the revised draft of the PO, Issues List and Order of Evidence. The fixed dates for the Hearing and for the pre-Hearing timeline, are now provided in the PO appended to this Decision, and the coordinates for the Hearing are set out below in this Decision.
6Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-Hearing procedural requirements and the Hearing to determine the compensation.
7Appended to this Decision as Attachment 1, Attachment 2 and Attachment 3, are the List of Parties, the Issues List and Order of the Evidence, which shall govern the conduct of the Hearing.
Merit HEARING – June 9 – June 13, 2025
8A five-day (5) Merit Hearing will commence by VH on Monday, June 9, 2025, at 10 a.m.
9Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/519389173
Access Code: 519-389-173
10Parties 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
11Persons 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: telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is same as mentioned above.
12Individuals 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
13THE TRIBUNAL ORDERS THAT the Claimant amend the Statement of Claim by deletion of the claim therein for punitive damages;
14AND THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision and Attachments 1, 2 and 3 thereto, shall govern the conduct of this proceeding.
"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-23-0001126
PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, as amended and in the matter of an Arbitration:
Applicant(s)/Appellant(s): Branded Cities Company Canada, formerly known as Clear Channel Outdoor Company Canada
Subject: Land Compensation
Property Address/Description: 1 Atlantic Avenue
Municipality: City of Toronto
Municipal File No.:
OLT Case No.: OLT-23-0001126
OLT File No.: OLT-23-0001126
OLT Case Name: Branded Cities Company Canada, formerly known as Clear Channel Outdoor Company Canada v. Metrolinx
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 virtual hearing will begin on June 9, 2025 at 10:00 a.m.
https://global.gotomeeting.com/join/519389173
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 parties entered into an agreement pursuant to Section 24 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended, dated October 23, 2023 (the "s.24 Agreement").
Pursuant to paragraph 4 of the s.24 Agreement, the parties shall attend a mediation on or before June 28, 2024.
The parties shall exchange mediation briefs, including any expert reports to be relied upon at mediation and any documents referenced or relied upon in those reports at least 30 days prior to the mediation date, with the Claimant’s materials to be provided at least 60 days in advance of the scheduled mediation date and the Respondent’s materials to be provided at least 30 days in advance of the scheduled mediation date.
The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about Wednesday, November 15, 2023.
Metrolinx served and filed a Reply on or about Tuesday, December 5, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by August 30, 2024.
Examinations for Discovery of the representative of each party shall be completed on or before November 1, 2024. 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 January 15, 2025.
Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard, in writing, by February 28, 2025, pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedure, or as the Tribunal may direct.
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 Tribunal’s Decision on any discovery motion brought in accordance with paragraph 16.
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 on or before ninety (90) days prior to the start of the hearing, and in accordance with paragraph 31 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 twenty (20) days after the delivery of expert witness reports 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 twenty (20) days prior to the start of the hearing.
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 22 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.
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 22 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 22 below.
On or before sixty (60) days prior to the start of the hearing, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 31 below.
Parties may provide to all other parties, and the OLT case co-ordinator, a written response to any written evidence on or before thirty (30) days prior to the start of the hearing, and in accordance with paragraph 31 below.
Parties may request the leave of the Tribunal to provide written sur-reply to any written evidence, response or reply on or before fifteen (15) days prior to the start of the hearing and in accordance with paragraph 33 below.
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 before sixty (60) days prior to the start of the hearing, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
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 31 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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 seven (7) days prior to the start of the hearing.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before sixty (60) days prior to the start of 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.
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.
The Tribunal’s Rule 17 shall apply to requests for adjournment.
This Member is not seized.
So orders the Tribunal.
Attachment 1
| Party | Party Status | Counsel / Representative |
|---|---|---|
| Branded Cities Company Canada, formerly known as Clear Channel Outdoor Company Canada | Claimant | BISCEGLIA & ASSOCIATES Professional Corporation 9100 Jane Street Building "A", Suite 200 Vaughan, Ontario L4K 0A4 Emilio Bisceglia (LSO# 34568Q) T: 905.695.5200 F: 905.695.5201 ebisceglia@lawtoronto.com |
| Metrolinx | Respondent | M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) T: 416.947.6701 F: 416.947.6703 christel@mhlawyers.ca Ian Mathany (LSO #57197U) T: 416.947.6702 F: 416.947.6703 ian@mhlawyers.ca |
Attachment 2
OLT File No: OLT-23-0001126
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:
BRANDED CITIES COMPANY CANADA, formerly known as CLEAR CHANNEL OUTDOOR COMPANY CANADA Claimant
- and -
METROLINX Respondent
ISSUES LIST
- The issues shall be those as set out in the pleadings delivered by the Parties. a. Notice of Arbitration and Statement of Claim, dated November 15, 2023. b. Reply, dated December 5, 2023.
Attachment 3
OLT File No: OLT-23-0001126
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:
BRANDED CITIES COMPANY CANADA, formerly known as CLEAR CHANNEL OUTDOOR COMPANY CANADA Claimant
- and -
METROLINX Respondent
ORDER OF EVIDENCE
- Claimant evidence in-chief
- Claimant evidence in cross-examination
- Metrolinx evidence in-chief
- Metrolinx evidence in cross-examination
- Claimant evidence in Reply, if necessary