Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2024

CASE NO(S).: OLT-22-004704

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. P. 13, as amended

Claimant: New Apostolic Church Canada

Respondent: Metrolinx

Description: Determination of Compensation

Property Address/Description: 6484 Finch Avenue West

Municipality: Toronto

OLT Lead Case No.: OLT-22-004704

OLT Case No.: OLT-22-004704

OLT Case Name: New Apostolic Church Canada v. Metrolinx

IN THE MATTER OF subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6.

Request by: New Apostolic Church Canada

Request for: Motion for Directions

Heard: March 25, 2024 by Video Hearing and March 27, 2024 by Telephone Conference Call

APPEARANCES:

Parties

New Apostolic Church Canada (“Claimant”)

Metrolinx (“Respondent”)

Counsel

Shane Rayman Leah Cummings

Aisling Flarity Mariana Cherkas

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON March 27, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is a Motion by the Claimant for:

a. an Order requiring that the Respondent, Metrolinx, provide responsive answers to its undertakings and under advisements, as identified in Schedule “A” to the Notice of Motion, within 30 days;

b. an Order that the Respondent’s representatives re-attend for Examination for Discovery following production of the further answers; and,

c. Such further and other relief as counsel may request and this Tribunal may permit.

2This Claim arises as a result of two expropriations registered in December 2018 and October 2019, in which fee simple and temporary limited interests were taken from the property owned by the Claimant and located at the intersection of Finch Avenue West and Martin Grove Road, in the City of Toronto (the “Subject Property”). The purpose of the takings was to facilitate the construction of a traction station for the Finch West LRT Project (the “Works”). The Claimant alleges that the Respondent, Metrolinx, has committed numerous and continuing acts of trespass upon the Subject Property, and that, as a result of the acts of trespass and the disruptions to access caused by the construction of the Works, it has been forced to relocate the place of worship, which it operated at the Subject Property.

3The Claimant delivered its Notice of Arbitration and Statement of Claim in November 2022. The Claimant seeks, inter alia, damages in the sum of $3,603,000 for the market value of the fee simple and temporary limited interests taken, for injurious affection, disturbance damages and trespass. The terms of a Procedural Order (“PO”) were established in August 2023 and a Hearing of the Merits for this Claim is scheduled for Wednesday, September 11 to Friday, September 20, 2024. Under the terms of the PO, Expert Reports must be delivered by May 31, 2024, and Witness Lists exchanged by July 11, 2024.

4The Examination for Discovery of the Respondent’s representative, Steve Andrews, was conducted on December 12, 2023. The Respondent subsequently provided answers to its Undertakings, Under Advisements and Refusals on January 19, 2024. It is the position of the Claimant that some of the Respondent’s Undertakings and Under Advisements were not answered properly or completely and that some Refusals were improper.

5At the Hearing of this Motion, counsel advised the Tribunal that a large number of the Undertakings, Under Advisements and Refusals had been resolved. The Tribunal will therefore deal only with the matters, which remain in dispute. The Undertakings, Under Advisements and Refusals fall into three categories: a) Communications between Metrolinx and its contractor relating to the trespass and obstruction of access; b) Photographs and visual records of the Subject Property to establish the trespass and loss of access; c) Agreements and policies, including internal policies, that address liability for trespass and obstruction of access between Metrolinx and its contractors or subcontractors.

Communications between Metrolinx and its Contractor relating to the Trespass and Obstruction of Access

6UT 31 – “To advise the basis for the redactions of the email communications between counsel for the Church and Mosaic at Tab 25 and 26 of the Respondent’s Affidavit of Documents.” Counsel advised the Tribunal that this Undertaking had been resolved with respect to the Tab 25 email but not with respect to the redacted email at Tab 26. Upon the assurance of Counsel for the Respondent, Aisling Flarity, to the Tribunal and to Counsel for the Claimant, Shane Rayman, that the email is subject to solicitor-client privilege as it involved the provision of legal advice. The Tribunal Orders that only the names of the sender, recipient and anyone copied with the email be provided by Monday, April 15, 2024.

7UT35 – “To produce any other drone photos of the Subject Property for the period between June/July 2021 and the present.” The Respondent’s answer to this Undertaking was that it had made a reasonable search of its records and has produced what it could locate. Ms. Flarity advised the Tribunal that the Respondent has requested any such photographs from its contractors but none have been produced. The Tribunal Orders that the Respondent produce copies of all such requests to its contractors for drone photos from the June to July 2021 time period and the responses thereto by Monday, April 15, 2024.

8No ID #1 Q549 – “To produce photographs of monitoring of the Church Property demonstrating when access was lost in the fall of 2023 and when it was reinstated.” The Respondent answered this Undertaking with the same response as in UT35 above. The Tribunal Orders that, if the Respondent intends to call a witness at the hearing from any of its contractors or sub-contractors respecting the issue of the referred to photographs, this Question is to be answered by Thursday, July 11, 2024, with the exchange of Witness Lists.

9No ID #2 Q513 – “To advise, upon review of the photographs in the Claimant’s Affidavit of Documents, which photographs reflect a situation in which it was not possible for the Church or its representatives to access the Church Property.” The Respondent did not answer this Undertaking, stating “your letter mischaracterizes the undertaking. The photographs referred to in the undertakings are not identified so the undertaking is too vague to have any clear meaning. If the photographs referred to are those produced by the claimant and taken by its agent, Metrolinx is not in any better position to assess them than anyone else and in any event they speak for themselves.” The Tribunal finds that the question is proper and Orders that the Respondent is to advise the Claimant by Monday, April 15, 2024, on a yes or no basis, whether it acknowledges that the photographs show a situation in which it was not possible for the Claimant or its representatives to access the Subject Property. In addition, the Respondent is to advise the Claimant by Monday, April 15, 2024, whether it disputes the Claimant’s security reports, which have been tabulated on a spread sheet provided to the Respondent’s Counsel, showing between 30 and 35 instances where blocked access to the Subject Property or trespass thereon, was reported.

Agreements and Policies, including Internal Policies, that address Liability for Trespass and Obstruction of Access between Metrolinx and its Contractors or Subcontractors

10UA1 – “To produce all agreements Metrolinx has entered into with respect to the Finch West LRT that relate to trespass, unlawful acts, remedies for unlawful acts, remedies for damages for unlawful acts, and litigation or arbitration to deal with unlawful acts.” The Respondent refused to answer this question on the basis of proportionality, citing Rule 29.2.03(1) of the Rules of Civil Procedure and the Decision of the Superior Court in Ontario v. Rothmans Inc., 2011 ONSC 2504 (“Ontario v. Rothmans”). The Tribunal finds that the principle of proportionality has no application to Land Compensation Proceedings under the Expropriations Act and that of Ontario v. Rothmans, and is therefore distinguished from the instant case. In this regard, the Tribunal observes that Statutory Authorities, such as the Respondent, are mandated by Section 13 of the Act to compensate expropriated property owners. In the Tribunal’s view, the principle of proportionality in the Rules of Civil Procedure have no application to Land Compensation Proceedings in view of the remedial nature of the Act and the direction of the Supreme Court in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., 1997 CanLII 400 (SCC), [1997] 1 S.C.R. 32 that the Act must be interpreted in a broad and purposeful manner consistent with its remedial intent. The Tribunal therefore Orders that the Respondent answer UA1 by Monday, April 15, 2024.

11UA2 – “To produce internal or external policies relating to liability of contractors, damages from trespass or other uses that might create harms to neighbouring lands.”

12UA3 – “To produce any insurance policies or documents regarding damage to property caused by the works.” Ms. Flarity provided the Tribunal and Mr. Rayman with her client’s assurance that, it would not be taking the position that the Claimant should have sued its contractors and/or sub-contractors for damages in Superior Court. Ms. Flarity referred to and quoted paragraph 67 of the Respondent’s Factum, which states:

Metrolinx has never once denied its statutory obligations regarding any compensation properly owed to the Claimant on account of the Expropriations Act or its responsibilities towards the Claimant on account of any damage caused to the Subject Property as a result of the actions of Metrolinx or the Contractor. If there is some determination to be made regarding liability for any such damages as between Metrolinx and the Contractor, the Claimant would not be a party to or even privy to any such determination.

Mr. Rayman advised the Tribunal that he was satisfied with this assurance and the Tribunal therefore makes no Order with respect to UA2 and UA3.

13UA12 – “To produce any agreements or directions that direct that the contractor is responsible for the fence relocation that have not yet been produced.” The Tribunal Orders that the Respondent answer UA12 by Monday, April 15, 2024.

Particulars from Metrolinx relating to its further Requirements for this Property and its Position with respect to Loss of Access

14UT11 – “Per Claimant: To advise whether Metrolinx is seeking additional rights under the permanent easement that is to be put in place over the shared driveway once the Section 24 Agreement closes. To advise whether there are any other interests in the driveway that have not yet been acquired.” “Per Metrolinx: To confirm if there might be other interests that Metrolinx will have to take in that driveway that has not yet acquired.” This question is reasonable and relevant. The Tribunal Orders that the Respondent provide the Claimant with its answer by Monday, April 15, 2024.

ORDER

15The Tribunal Orders:

a. With respect to UT 31, that the Respondent provide the Claimant with the names of the sender, recipient and anyone copied with the email, a redacted copy of which is produced at Tab 25 of its Affidavit of Documents, be provided by Monday, April 15, 2024;

b. With respect to UT 35, that the Respondent produce copies of all requests sent to its contractors for drone photographs from June to July 2021 time period, and all responses thereto, by Monday, April 15, 2024;

c. With respect to No ID #1 Q549, if the Respondent intends to call a witness at the hearing from any of its contractors or sub-contractors respecting the issue of the referred photographs, that this Question be answered by Thursday, July 11, 2024, with the exchange of Witness Lists.

d. With respect to No ID #2 Q513, that the Respondent is to advise the Claimant by Monday, April 15, 2024, on a yes or no basis, whether it acknowledges that the photographs show a situation in which it was not possible for the Claimant or its representatives to access the Subject Property; and the Respondent is to further advise the Claimant by Monday, April 15, 2024, whether it disputes the Claimant’s security reports, which have been tabulated on a spread sheet to provide the Respondent’s Counsel, showing between 30 and 35 instances where access to the Subject Property or trespass thereon, was reported;

e. With respect to UA1, that the Respondent provide its answer by Monday, April 15, 2024;

f. With respect to UA12, that the Respondent provide its answer by Monday, April 15, 2024;

g. With respect to UA11, that the Respondent provide its answer by Monday, April 15, 2024; and,

h. The costs of this Motion shall be in the cause.

“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.