Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 26, 2024 CASE NO(S).: OLT-23-000865
PROCEEDING COMMENCED UNDER subsection s. 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Toronto Standard Condominium Corporation No. 1858 Respondent: Metrolinx Subject: Land Compensation Property Address: 4675 Steeles Avenue East Municipality/UT: City of Toronto OLT Case No.: OLT-23-000865 OLT Lead Case No.: OLT-23-000865 OLT Case Name: Toronto Standard Condominium Corporation No. 1858 v. Metrolinx
Heard: February 16, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Toronto Standard Condominium No. 1858 | Matthew Rutledge |
| Metrolinx | Brett Davis |
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER GOLD ON FEBRUARY 16, 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 Act”). The claim is brought by Toronto Standard Condominium No. 1858 (“Claimant”) against the Respondent, Metrolinx, (“Respondent”) and arises from Metrolinx’s use of the property municipally known as 4675 Steeles Avenue East, Toronto, in connection with the construction of the Milliken GO Station.
PROCEDURAL ORDER
2A draft Procedural Order (“PO”) had not been prepared in advance of the CMC. The Tribunal ordered that a draft PO be submitted to the Tribunal on or before March 4, 2024. The Tribunal received a consent PO which it has reviewed and finds acceptable. The fixed dates for the Hearing on the Merits and for the pre-Hearing timeline, are provided for in the PO, appended to this Decision as Schedule 1.
HEARING
3Following consultation respecting the Tribunal’s calendar and the availability of Counsel and the Parties, a five-day Hearing on the Merits, by Video Hearing (“VH”) was agreed upon, commencing on Monday, January 27, 2025, at 10 a.m.
4Parties 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:
https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
5Parties, witnesses and observers 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
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: +1 (647) 497-9391 or (Toll-Free) 1-888-299-1889. The access code is 927-921-077.
7Individuals 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 VH 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
8THE TRIBUNAL ORDERS THAT this Arbitration be scheduled for a five-day Hearing on the Merits, by Video Hearing commencing on Monday, January 27, 2025, at 10 a.m.
9AND THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern the conduct of this proceeding.
10This Member is not seized.
“Jennifer Gold”
JENNIFER GOLD 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 NOS.: OLT-23-000865
PROCEEDING COMMENCED UNDER subsection s. 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Toronto Standard Condominium Corporation No. 1858 Respondent: Metrolinx Subject: Land Compensation Property Address: 4675 Steeles Avenue East Municipality/UT: City of Toronto OLT Case No.: OLT-23-000865 OLT Lead Case No.: OLT-23-000865 OLT Case Name: Toronto Standard Condominium Corporation No. 1858 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 video hearing will begin on January 27, 2025 at 10 a.m. at:
https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
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 identified at the case management conference are set out in Attachment 1.
The issues for the hearing shall be those set out in the pleadings, including such amendments, if any, as may be permitted by the Tribunal. There will be no additional issues raised without the leave of the Tribunal, and the party seeking such variance may be subject to an award of costs against it.
The order of evidence shall be as set out in Attachment 2 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 the 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 September 5, 2023.
The Respondent served and filed a Reply on or about October 10, 2023.
The parties shall exchange their respective Affidavits of Documents and Productions by July 19, 2024.
Examinations for Discovery of the representative of each party shall be completed on or before August 6, 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 October 4, 2024.
Any motion arising from either documentary discover or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard on October 18, 2024 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.
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.
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 October 25, 2024 and in accordance with paragraph 30 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 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 November 22, 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 20 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 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 20 below.
On or before December 6, 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 30 below.
On or before December 6, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 30 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 20, 2024 and in accordance with paragraph 30 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 January 6, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before January 13, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 30 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 January 17, 2025.
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 January 22, 2025 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 – PARTICIPANT LIST
| Party | Party Status | Counsel / Representative |
|---|---|---|
| Toronto Standard Condominium Corporation No. 1858 | Claimant | FOGLER, RUBINOFF LLP 77 King Street West, Suite 3000 PO Box 95 TD Centre North Tower Toronto, Ontario M5K 1G8 Joel D. Farber T: 416.941.8866 jfarber@foglers.com Matthew W. Rutledge T: 416.864.7603 mrutledge@foglers.com |
| Metrolinx | Respondent | BORDEN LADNER GERVAIS LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, ON M5H 4E3 Robert Wood T: 416.367.6588 rwood@blg.com Brett Davis T: 416.367.6632 bdavis@blg.com |
ATTACHMENT 2 – ORDER OF EVIDENCE
- Claimant’s evidence in-chief
- Claimant’s evidence in cross-examination
- Respondent’s evidence in-chief
- Respondent’s evidence in cross-examination
- Claimant’s reply, if any.