Big Wax Inc. v. Metrolinx, 2024 CanLII 53860

ISSUE DATE:

June 07, 2024

CASE NO.:

OLT-22-003688

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

Claimant:

Big Wax Inc.

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address:

271 Front Street

Municipality:

City of Toronto

OLT Case No.:

OLT-22-003688

OLT Lead Case No.:

OLT-22-003688

OLT Case Name:

Big Wax Inc. v. Metrolinx

BEFORE:

SHARYN VINCENT

Friday, the 7th

VICE-CHAIR

day of June 2024

THIS MATTER having come before the Tribunal for a Case Management Conference on May 5, 2023;

AND THE TRIBUNAL having issued a Procedural Order through an Order issued on June 8, 2023;

AND THE TRIBUNAL having now received a request to amended the issued Procedural Order, on consent;

THE TRIBUNAL ORDERS that the Procedural Order issued on June 8, 2023, is hereby rescinded and that the Procedural Order attached hereto as Schedule “1” is in full force and effect;

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

Ontario Land Tribunal

Website: 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.

AMENDED 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, July 29, 2024 at 10:00 a.m. at:

https://global.gotomeeting.com/join/914098901

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. The order of evidence shall be provided on or before five (5) days of the hearing. 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.

7. 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.

8. 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

9. The Claimant has advised that it does not require discovery of the Respondent.

10. Affidavit of Documents (together with production briefs of the documents) shall be delivered on or before July 24, 2023.

11. Discoveries shall be completed on or before September 15, 2023.

12. All undertakings provided at the Examination for Discovery shall be answered on or before October 27, 2023.

13. Any motion(s) arising out of the Examinations for Discovery shall be filed on or before December 15, 2023. The Motion(s) if necessary, shall be heard 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.

14. 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 ninety (90) days before the hearing 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.

15. Expert witnesses in the same field shall have a meeting on or before June 21, 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 June 28, 2024 before the hearing.

16. On or before June 28, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. 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 19 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.

18. 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 19 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.

19. On or before January 3, 2024, the parties provided copies of their witness expert and witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 29 below.

20. On or before July 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 29 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

21. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before June 10, 2024 the evidence is received and in accordance with paragraph 29 below.

22. The Respondent may provide to all other parties and the OLT case co-ordinator a written sur-reply to any written response evidence on or before July 5, 2024.

23. The parties agreed to attend a mediation on or before June 18, 2024.

24. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 23, 2024.

25. 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.

26. 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.

27. 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.

28. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 12, 2024before 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.

29. 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.

30. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Party

Party Status

Counsel / Representative

Big Wax Inc.

Claimant

MILLER THOMSON LLP 40 King Street West, Suite 5800

Toronto, Ontario M5H 3S1

Kate Genest Tel: +1 416.597.4360 Email: kgenest@millerthomson.com

Metrolinx

Respondent

M&H LLP

61A Jarvis St., Suite 200

Toronto, ON M5C 2H2

Christel Higgs (LSO # 53408T)

Tel: 416.947.6701

Email: Christel@mhlawyers.ca

Aisling Flarity (LSO # 65500B)

Tel: 416.947.6700 x 204

Email: Aisling@mhlawyers.ca

Attachment 2

OLT File No.: OLT-22-003688

OLT Case No.: OLT-22-003688

ONTARIO LAND TRIBUNALS IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E.26 AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

BIG WAX INC.

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues are as set out in the Pleadings filed with the Tribunal by the parties, as amended, listed below:

a. The Notice of Arbitration and Statement of Claim, dated May 6, 2022; and

b. Reply of Metrolinx, dated May 27, 2022.

Attachment 3

1. Claimant’s witness in-chief

2. Claimant’s witness in cross-examinations

3. Respondent’s witness in-chief

4. Respondent’s witness in cross

5. Claimant’s Reply, if any