Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 03, 2024
CASE NO(S).: OLT-23-000556
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Dermot Cleary
Respondent: Metrolinx
Description: Determination of compensation
Reference Number: Plan of Expropriation AT6051013
Property Address: 58 Stewart Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000556
OLT Lead Case No.: OLT-23-000556
OLT Case Name: Cleary v. Metrolinx
Heard: April 25, 2024 by video hearing
APPEARANCES:
Parties Counsel
Dermot Cleary Conner Harris and Brynn Leger
Metrolinx Jessica Karban
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON APRIL 25, 2024 AND ORDER OF THE TRIBUNAL
1On April 25, 2024, the Tribunal held the first Case Management Conference (“CMC”) regarding the claim brought by Dermot Cleary seeking compensation and costs from Metrolinx under the Expropriations Act with respect to the expropriation of lands located at 58 Stewart Street, in the City of Toronto.
2At the CMC, the Parties described the types and number of witnesses that they each intend to call at the hearing on the merits. They agreed that a four-day hearing would be required and requested hearing dates in April 2025. Subsequent to the CMC, the Parties filed a final draft Procedural Order and Issues List, which the Tribunal has reviewed and approves as attached as Schedule 1 to this Order and Decision
3The Parties expressed an openness to settlement discussions and possibly mediation, if needed. The Tribunal encourages the Parties to engage in such discussions and to attempt to narrow or resolve the issues in dispute.
4The Tribunal scheduled the hearing on the merits to be held by video hearing commencing on Monday, April 7, 2025, at 10 a.m. Four days have been set aside for the hearing.
5Parties 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/344779885
Access Code: 344-779-885
6Parties 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
7Persons 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 as indicated above.
8Individuals 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.
9The Tribunal notes that if the Parties find in the leadup to the hearing that they require a further CMC to obtain additional procedural directions, they may contact the Tribunal’s Case Coordinator and request a second CMC.
10There will be no further notice.
11This Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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-23-0000556
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Dermot Cleary
Respondent: Metrolinx
Description: Determination of compensation
Reference Number: Plan of Expropriation AT6051013
Property Address: 58 Stewart Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000556
OLT Lead Case No.: OLT-23-000556
OLT Case Name: Cleary 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 April 7, 2025, at 10:00 a.m. by video conference.
GoToMeeting: https://global.gotomeeting.com/join/344779885
Access Code: 344-779-885
The parties’ initial estimation for the length of the hearing is 4 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 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
Affidavits of Documents (together with production briefs of the documents) shall be exchanged on or before Friday, May 31, 2024.
Discoveries shall be completed on or before Friday, June 28, 2024. The parties agree to complete Examinations for Discovery virtually by way of videoconference.
All undertakings provided at the Examination for Discovery of the parties shall be answered on or before August 21, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed, in writing, on or before Friday, October 4, 2024.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 the motion date is not required, the parties agree to advise the Tribunal as soon as possible. Any productions ordered by the Tribunal at this Motion shall be produced within thirty (30) days of the decision by the Tribunal.
The parties may make a request for consideration of mediation facilitated by the Tribunal through the Tribunal’s Case Coordinator for this process.
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 December 4, 2024 and in accordance with paragraph 27 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 February 7, 2025 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 March 21, 2025.
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 18 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 18 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 18 below.
On or before January 21, 2025, 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 27 below.
If any, on or before January 21 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 27 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before January 13, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 19, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 27 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within March 4, 2025 the evidence is received and in accordance with paragraph 27 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 31, 2025.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 3, 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. 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
Party
Party Status
Counsel / Representative
Dermot Cleary
Claimant
RAYMAN HARRIS LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5B 1J2 Conner Harris (LSO #66645E) T: 416.597.5422 F: 437.222.9001 conner@raymanharris.com
Brynn Leger (LSO #77713P) T: 437.222.9003 F: 437.222.9001 brynn@raymanharris.com
Metrolinx
Respondent
M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 Fax: 416.947.6703 christel@mhlawyers.ca Jessica Karban (LSO #75541D) Tel: 416.947.6700 ext. 212 Fax: 416.947.6703 aisling@mhlawyers.ca
Attachment 2
ISSUES LIST
The issues are defined by the pleadings of the parties which have been filed with the Tribunal. A summary of the issues is set out below. References to the Notice of Arbitration and Statement of Claim (“Claim”) and the Reply to the Notice of Arbitration and Statement of Claim (“Reply”) are referred to, where applicable.
The nature of the Claimant’s interest in 58 Stewart Street (the Subject Property) at the time of the expropriation by Metrolinx, including:
a. Whether the Claimant was a tenant at the 58 Stewart Street (the Subject Property), leasing Units 200 and 301, later identified as Unit 300 (Claim, paras 7-9; Reply, paras 8-10);
b. Whether the Claimant utilized Unit 200 to operate his business, with the consent of the landlord (Claim, paras 10-21; Reply, 39-48)
c. The amount of rent the Claimant was paying at the time of the expropriation (Claim, para 9);
d. Whether the Claimant experienced special difficulties in relocating due to his family needs, including children with special needs, and the dual residential and commercial lease requirements (Claim, paras 10, 45, 53-58, 75);
e. Whether the Claimant failed to mitigate in relocating in a reasonable manner (Reply, paras 17-24, 36)
- The Claimant’s entitlement to compensation for disturbance damages arising from the expropriation of the Subject Property pursuant to subsection 13(2)(b) and section 18 of the Expropriations Act, including:
a. The rights and entitlements of tenants of the Subject Property arising from the Rental Housing Demolition Agreement imposed on the expropriated owner of the subject property by the City of Toronto (Claim, paras 22-31; Reply paras 25-29);
b. Whether the Claimant is entitled to compensation arising from the expropriation based on the entitlements under the Rental Housing Demolition Agreement (Claim, paras 63-69; Reply, paras 33-34);
c. The quantum of compensation owing to the Claimant as a result of the expropriation, including:
i. The compensation entitlements under the Rental Housing Demolition Agreement (Claim, paras 75-77)
ii. The differential in rent between the rent paid by the Claimant at the Subject Property as compared to rent he will pay as a result of the expropriation (Claim, paras 78-85, Reply, paras 30, 35);
iii. The term of rent differential to which the Claimant is entitled as compensation arising from the expropriation (Claim, para 79; Reply, para 35);
iv. Whether and in what amount the Claimant is entitled to moving and storage costs, and replacement of lost/damaged good and improvements (Claim, para 89-90; Reply paras 37-38);
v. Whether and in what amount the Claimant is entitled to costs to fit-out and set up replacement premises for his business (Claim, paras 86-88; Reply, paras 39-48);
vi. Whether and in what amount the Claimant is entitled to compensation for business losses arising from the expropriation (Claim, para 91; Reply, paras 39-48);
The Claimant’s entitlements to reimbursement of reasonable legal appraisal, and other costs incurred in the determination of compensation, pursuant to section 32 of the Expropriations Act (Claim, para 92(b); Reply, para 49).
The issues as set out herein do not detract, limit, or prevent a party from relying on issues and material facts as set out in the pleadings as filed.
Attachment 3
ORDER OF EVIDENCE AT HEARING
Claimant evidence in-chief
Claimant evidence in cross-examination
Metrolinx evidence in-chief
Metrolinx evidence in cross-examination
Claimant evidence in Reply, if necessary