1846827 Ontario Corporation v. Metrolinx, 2024 CanLII 33131

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 12, 2024

CASE NO(S).: OLT-23-001174

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

Claimant: 1846827 Ontario Corporation

Respondent: Metrolinx

Description: Determination of compensation

Property Address: 586 Kerr Street

Municipality/UT: Town of Oakville/ Region of Halton

OLT Case No.: OLT-23-001174

OLT Lead Case No.: OLT-23-001174

OLT Case Name: 1846827 Ontario Corporation v. Metrolinx

Heard:

February 27, 2024 by Video Hearing

March 21, 2024 by Telephone Conference Call

APPEARANCES:

Parties

Counsel

1846827 Ontario Corporation

Al Burton

Metrolinx

Alyssa Granato

MEMORANDUM OF ORAL DECISION DELIVERED BY David Brown and J. Innis ON February 27, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Case Management Conference (“CMC”) in respect of a claim filed by 1846827 Ontario Corporation (the “Claimant”) pursuant to s. 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (the “Act”) for the Tribunal’s determination of compensation in the case of an expropriation of lands by Metrolinx (the “Respondent”) resulting in the termination of the Claimant’s business for which no agreement as to compensation has been made.

2The matter affects the lands known municipally as 586 Kerr Street.

3Counsel was canvassed and advised that they each intend to call two witnesses. It was agreed that three days for a hearing is required.

4In consideration of the possibility of settlement or mediation, the Respondent advised that they would be willing to participate in Tribunal-led mediation. The Claimant raised a concern that Metrolinx has been in possession of a Business Loss Report for two years and this CMC was the first time that mediation has been raised. The Tribunal encouraged the Parties to explore the possibility of settlement and take such steps as are necessary to achieve a resolution of this matter.

5Two draft Procedural Orders (“PO”), one from each Party, were filed with the Tribunal for consideration. Mr. Burton submitted that the dates contained within the PO filed by Ms. Granato do not reflect a desire to resolve this matter in a timely manner and set the Hearing date a year hence.

6In consideration of scheduling a Hearing for this matter, the Claimant sought a date in the later part of 2024 and the Respondent requested a Hearing date in the spring of 2025. The Tribunal set a Hearing date that, in its opinion, would offer the best opportunity for a fair, just, and expeditious resolution of the merits of this proceeding.

7The Tribunal scheduled a three-day Hearing for the consideration of the merits of the Appeal to be held on Monday, January 20, 2025, at 10 a.m. by Video Hearing.

8Parties 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:

GoToMeeting: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

9Parties 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

10Persons 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 719-383-509.

11Individuals 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.

12The Tribunal reviewed the dates identified within the PO with the Parties in the context of a Hearing date of January 20, 2025. The Tribunal provided direction with respect to the dates that were agreeable to both Parties. The Tribunal further directed the Parties to revise and submit the final PO which is attached to this Order as SCHEDULE 1. The PO shall govern the proceedings leading up to and including the Hearing for this matter.

13The Tribunal Orders the directions set out in this decision.

“David Brown”

DAVID BROWN

MEMBER

“J. Innis”

J. INNIS

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-23-001174

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

Claimant: 1846827 Ontario Corporation

Respondent: Metrolinx

Description: Determination of compensation

Property Address: 586 Kerr Street

Municipality/UT: Town of Oakville/ Region of Halton

OLT Case No.: OLT-23-001174

OLT Lead Case No.: OLT-23-001174

OLT Case Name: 1846827 Ontario Corporation v. Metrolinx

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 Monday, January 20, 2025 at 10 a.m. at:

https://global.gotomeeting.com/join/719383509

ACCESS CODE: 719-383-509

3. The parties’ initial estimation for the length of the hearing is 3 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.

4. The issues are as set out in the pleadings. 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.

5. The order of evidence is attached as Attachment 1. 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.

6. 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

7. Affidavit of Documents (together with production briefs of the documents) shall be exchanged by Friday, May 10, 2024.

8. Discoveries shall be completed on or before Friday, July 26, 2024.

9. Undertaking answers shall be provided on or before Friday, August 23, 2024.

10. Any motion(s) arising out of the Examinations for Discovery shall be filed on or before Tuesday, September 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.

11. 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 Friday, September 27, 2024 and in accordance with paragraph 28 below.

12. 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 14 below. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. 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 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 14 below.

14. On or before Friday, October 25, 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 28 below.

15. On or before Friday, December 6, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 28 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case coordinator a written reply to any written evidence on or before Friday, November 22, 2024, after the evidence is received and in accordance with paragraph 28 below.

17. Expert witnesses in the same field shall have a meeting on or Friday, November 8, 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 Friday, November 15, 2024.

18. Any party choosing to serve a Request to Admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure, incorporated by reference in Tribunal Rule 1.04, shall serve such Request or Requests on the party or parties opposite on or before Friday, December 13, 2024.

19. Responses to any Request(s) to Admit shall be served in accordance with the Rules of Civil Procedure.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, January 10, 2025.

21. 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, on or before Friday, January 17, 2025 or in advance of the start of the cross-examination of any witness at the hearing.

22. 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.

23. 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.

24. 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.

25. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, November 29, 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.

26. On or before Monday, December 16, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

27. The parties are to update or confirm the hearing plan on Friday, January 10, 2025.

28. 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.

29. 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

ORDER OF EVIDENCE

1. 1846827 Ontario Corporation

2. Metrolinx

3. Reply, if any, by 1846827 Ontario Corporation