Kahlon Family Holdings Ltd. v. Toronto (City), 2024 CanLII 46464

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 14, 2024

CASE NO(S).: OLT-23-000154

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

Claimant: Kahlon Family Holdings Ltd.

Respondent: City of Toronto

Description: Determination of compensation

Property Address: 3300 Kingston Road

Municipality/UT: City of Toronto

OLT Case No.: OLT-23-000154

OLT Lead Case No.: OLT-23-000154

OLT Case Name: Kahlon Family Holdings Ltd. v. Toronto (City)

Heard: April 22, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Kahlon Family Holdings Ltd. ("Claimant")	I. Wong, P. Scargall
City of Toronto ("City")	M. Mahoney

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON APRIL 22, 2024 AND FINAL ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Ontario Land Tribunal ("Tribunal" or "OLT") was a motion hearing in relation to this proceeding, which involves an appeal under subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E. 26, in respect of the property municipally known as 3300 Kingston Road, in the City of Toronto.

2Previously, at a Case Management Conference ("CMC") held on September 13, 2023, a Procedural Order ("PO") was finalized and issued. A hearing date was also scheduled for a period of five days commencing October 7, 2024.

3Since the CMC, the Claimant's counsel alleges that the City has not adhered to the PO and has brought a motion to compel the City to do so and to alter a number of dates set out in the PO, including the October 7, 2024 hearing date ("Motion").

4The materials before the Tribunal on the Motion included:

(a) Motion Record of Claimant dated April 8, 2024, comprising 84 pages;

(b) Factum of Claimant, dated April 8, 2024, comprising 8 pages; and

(c) Claimant's Brief of Authorities, dated April 8, 2024, comprising 63 pages.

5The City did not file any responding materials and made only oral submissions at the Motion hearing.

MOTION RELIEF REQUESTED AND ARGUMENTS

6The Notice of Motion of the Claimant sought the following:

(a) An order amending the Procedural Order to ensure that the City is required to advance this matter in a timely, efficient, and cost-effective manner, including amending the hearing date as required by the City's delay; and

(b) An order directing the parties to attend mediation following examinations for discovery and fixing a date.

7As noted, the City's counsel did not file any responding motion material and had no real explanation to offer for that omission. In oral submissions, he advised that he was in agreement with the relief described in paragraph [6] subparagraph (a) above.

8The Tribunal reminded the Parties that it is highly desirable that the provisions of an issued PO be adhered to by the Parties absent extraordinary circumstances, particularly in a case such as this where the Parties had agreed to the hearing date. The consequence of the City's failure to do so means that both Parties agree that the October 7, 2024 hearing commencement date is no longer feasible given that examinations for discoveries and documentary productions must be first completed over the coming months, along with the preparation and delivery of expert witness reports and perhaps other witness statements.

9This is unfortunate, as the Tribunal's calendar is valuable and is maintained in the public interest so that the many hundreds of proceedings that are annually commenced before the OLT can be efficiently scheduled and completed. The Tribunal expects the Parties in expropriation cases to work together cooperatively to schedule and manage their OLT files in accordance with their agreed PO's. While it is recognized that sometimes the case timelines will need to be revisited when circumstances change or when unexpected events occur, the Tribunal does ask Parties to respect the OLT Rules of Practice and Procedure, particularly those set out in Rule 26 governing expropriation cases, which was recently amended in October 2023.

10As a final point, the Tribunal expects the Parties to commit to effective and efficient case management and prefers not to deal with motion practice when one Party simply fails, without good cause, to follow the agreed PO governing the conduct of a proceeding. However, in this situation, it is clear that the Claimant had little choice other than to bring this Motion to compel the City's response.

11Counsel for the City at this Motion event agreed to all of the salient elements of relief sought by the Claimant, although objected to the notion of mandatory mediation. The Tribunal reminded him that it has the power under the Ontario Land Tribunal Act, S.O. 2021 to direct mediation, but that it is reluctant to do so and prefers instead that the Parties work voluntarily to arrange mediation. Here, the Claimant has filed a Request to Mediate as part of its Motion materials and so this will be passed along to the OLT Mediation group for consideration and follow-up.

12In the event that the Parties have a later dispute about arranging mediation at the appropriate time, the Claimant may seek an Order from the Tribunal under Rule 26.6 and 26.7 directing the Parties to meet and confer to discuss mediation and, if the City resists mediation, to require the City to make submissions as to why a mediation ought not to be directed.

13As a result of this Motion, the Tribunal has vacated the former hearing date of October 7, 2024, and with the consent of the Parties has scheduled a new hearing date of June 2, 2025 for a five-day video hearing (if the Parties wish to have this converted to an in-person or hybrid event, they must file a request for same).

14The hearing is scheduled to proceed by video on Monday, June 2, 2025 at 10 a.m.

15Parties and Participants 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/660145013

Access code: 660-145-013

16Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

17Parties and Participants 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

18Individuals 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

19THE TRIBUNAL ORDERS THAT:

(a) The hearing of this proceeding will commence for a period of 5 days in 2025 as scheduled above;

(b) The new hearing date shall be peremptory and shall not be further modified or adjourned except as may be granted by the Tribunal under Rule 17 or otherwise; and

(c) The Procedural Order appended as Attachment 1 shall govern the future conduct of this proceeding.

20This Vice Chair shall remain available to assist the Parties with ongoing case management matters, subject to the Tribunal's calendar.

"William R. Middleton"

WILLIAM R. MIDDLETON

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.

ISSUE DATE: May 14, 2024

CASE NO(S).: OLT-23-000154

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, and in the matter of an Arbitration

Claimant: Kahlon Family Holdings Ltd.

Respondent: City of Toronto

Subject: Determination of compensation in accordance with the Expropriations Act

Property Address Description: 3300 Kingston Road, Toronto, Ontario

Municipality: City of Toronto

Municipal File No.:

OLT Case No.: OLT-23-000154

OLT File No.: OLT-23-000154

OLT Case Name: Kahlon Family Holdings Ltd. v City of Toronto

PROCEDURAL ORDER

AMENDMENT OF THIS ORDER

1. This Order may be amended, varied or supplemented by the Ontario Land Tribunal (the "Tribunal") at the request of any person, or on its own motion, either by making a ruling orally or by a further Procedural Order.

2. Any date or deadline contemplated in this Procedural Order related to obligations as between the parties, and which does not involve an appearance or deadline for filing with the Tribunal, may be amended by written agreement of the parties.

ORGANIZATION OF THE HEARING

3. The video hearing has been scheduled for five (5) days beginning on June 2, 2025 and ending June 6, 2025.

4. 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.

5. The parties are set out in Attachment 1.

6. The issues at the hearing shall be those set out in the Pleadings filed, including amendments, if any.

7. The order of the presentation of evidence shall be:

a. case for the Claimant;

b. case for the Respondent; and

c. reply by the Claimant.

8. 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.

9. 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

10. The procedural timeline is set out in Attachment 2.

Pleadings

11. The Claimant served the Notice of Arbitration and Statement of Claim on March 6, 2023.

12. The Respondent served its Reply on March 27, 2023.

13. Any amendments to the pleadings shall be made in accordance with the Tribunal's Rules of Practice and Procedure.

Discovery

14. The parties agree that:

a. Affidavits of Documents and productions shall be exchanged on or before May 6, 2024.

b. Examinations for Discovery shall be completed on or before September 16, 2024.

c. Answers to undertakings provided shall be completed on or before November 18, 2024.

d. Any additional productions or further examinations for discovery arising from answers to undertakings shall be completed on or before December 16, 2024.

e. Any motion(s) arising out of the examinations for discovery shall be served and filed on or before January 27, 2025.

15. Further answers to undertakings, 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 date on which the Tribunal delivers its reasons on the motion described in paragraph 14(e).

Mediation

16. A one-day mediation following examinations for discovery will begin on a date to be scheduled subject to the Tribunal's availability.

Witnesses and Evidence

17. 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 at least ninety (90) calendar days before the Hearing and in accordance with paragraph 33 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.

18. 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 expert report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.

19. Unless the Tribunal orders otherwise, no expert shall give oral evidence at the hearing without first having served and filed an expert report.

20. A party who intends to call a witness who is not an expert must file a witness statement, as in paragraph 33 below.

21. On or before February 17, 2025, the parties shall provide copies of their witness and expert witness statements and/or expert reports to the other parties and to the OLT case co-ordinator and in accordance with paragraph 30 below.

22. On or before April 21, 2025, the parties shall provide copes of all reply expert reports and witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 30 below.

23. Further witness statements and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted, shall be served and filed at least five (5) calendar days before the date on which the expert witness who will give oral evidence is to be called.

24. A party who provides written evidence of a witness or expert report to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least seven (7) days before the hearing that the written evidence is not part of their record.

Pre-Hearing Conference and Mediation Assessment

25. The parties may request a pre-hearing conference and mediation assessment be scheduled by the Tribunal at any time.

Requests to Admit

26. 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 at least forty (40) days before the Hearing.

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

Hearing Plan and Arrangements

28. At least thirty-five (35) days prior to the start of the Hearing, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

29. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator at least ten (10) days before the Hearing.

30. The parties shall prepare and file a preliminary hearing plan with the Tribunal at least ten (10) days before 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.

General

31. 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.

32. 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.

MEMBER

Attachment 1

PARTY	PARTY STATUS	COUNSEL / REPRESENTATIVE
Kahlon Family Holdings Ltd.	Claimant	Scargall Owen-King LLP 17 Leader Lane Toronto, ON M5E 1L8 Paul Scargall T: 416.869.3417 F: 416.869.2201 Paul.Scargall@sokllp.com Irene Wong T: 416.597.5404 F: 416.869.2201 Irene.Wong@sokllp.com
City of Toronto	Respondent	City of Toronto Legal Services Division 26th Floor, Metro Hall 55 John Street Toronto, ON M5V 3C6 Michael Mahoney T: 416.392.4846 F: Michael.Mahoney@toronto.ca

Attachment 2

ITEM	DATE
Notice of Arbitration and Statement of Claim	March 6, 2023
Reply	March 27, 2023
Affidavit of Documents / Productions	May 6, 2024
Completion of Discovery Examinations	September 16, 2024
Answers to Undertakings	November 18, 2024
Productions / Further Examinations Arising from Answers to Undertakings	December 16, 2024
Motions Arising from Discoveries / Answers to Undertakings	January 27, 2025
Expert Reports and Witness Statements	February 17, 2025
Reply Expert Reports and Witness Statements	April 17, 2025
List of Witnesses	90 days before Hearing
Request to Admit	40 days before Hearing
Response to Request to Admit	in accordance with the Rules of Civil Procedure
Notice of Readiness	35 days before Hearing
Visual Evidence	30 days before Hearing
Joint Document Book	10 days before Hearing
Hearing Plan	10 days before Hearing
Hearings (5 Days)	June 2 to 6, 2025