Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2024
CASE NO(S).:
OLT-23-001261
OLT-24-000347
PROCEEDING COMMENCED UNDER subsection 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, c. 4
Claimant:
Capital Paving Inc.
Respondent:
Enbridge Gas, Enbridge Gas Distribution, and Enbridge Gas Inc.
Subject:
Claim for Compensation
Municipality:
Region of Waterloo
OLT Case No.:
OLT-23-001261
OLT Lead Case No.:
OLT-23-001261
OLT Case Name:
Capital Paving Inc. v. Enbridge Gas, Enbridge Gas Distribution, and Enbridge Gas Inc. (Enbridge Gas)
PROCEEDING COMMENCED UNDER subsection 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, c. 4
Claimant:
Capital Paving Inc.
Respondent:
Enova Power Corporation et. al.
Subject:
Claim for Compensation
Municipality:
Region of Waterloo
OLT Case No.:
OLT-24-000347
OLT Lead Case No.:
OLT-24-000347
OLT Case Name:
Capital Paving Inc. v. Enova Power Corporation et. al.
Heard:
May 28, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
Capital Paving Inc.
Darcia Perry
Enbridge Gas, Enbridge Gas Distribution and Enbridge Gas Inc.
Justin Martin
Enova Power Corporation
Justin Martin
Hydro One Networks Inc.
Raman Dhillon
Tamar Klein
Bell Canada
Keri Bedeau
MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON MAY 28, 2024, AND ORDER OF THE TRIBUNAL
1The Tribunal convened the second Case Management Conference (“CMC”) for a Claim for Compensation filed by Capital Paving Inc. (“Claimant”) against Enbridge Gas, Enbridge Gas Distribution, and Enbridge Gas Inc. (“Enbridge”) pursuant to s. 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, c. 4 (“OUINS Act”).
2Additionally, the Tribunal convened the first CMC for a Claim for Compensation filed by the Claimant against Enova Power Corporation (“Enova”), Hydro One Networks (“Hydro One”) and Bell Canada (“Bell”) pursuant to s. 17(4) of the OUINS Act.
3Enbridge, Enova, Hydro One and Bell may be referred to collectively as the “Respondents” in this Decision.
4In order to avoid duplication and ensure efficiencies, these matters are being heard together in accordance with Rule 16.3 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”).
5The Claimant is seeking compensation for lost revenue, unrecovered overhead costs, lost profit, underutilization of equipment, and labour, as well as any related costs for the period dating from Monday, May 9, 2022 to Monday, June 13, 2022, due to delays caused by the Respondents’ failure to provide locates within five business days in accordance with s. 6(3) of the OUINS Act.
6This second CMC was scheduled to receive a status update from the Claimant and Enbridge, including a draft Procedural Order and Issues List submitted on consent for the Tribunal to consider.
7The Claimant and Enbridge fulfilled the requirements of the first CMC.
8The Claimant’s Counsel advised that Enova, Hydro One and Bell were served with a Claim for Compensation in advance of Tuesday, April 30, 2024.
9The Building Infrastructure Safely Act, 2024 S.O. 2024, received Royal Assent on March 6, 2024. The passing of this Act made several changes to the OUINS Act, including amending s. 17 to remove the requirement for a Member to compensate an excavator for a loss or expense incurred because the Member failed to provide a locate in accordance with the time limit applicable under s. 6 of the OUINS Act.
10The matters currently before this Tribunal are specific to paragraph [9] above and specifically to s. 17(1)(c) of the OUINS Act which was repealed on May 1, 2024.
11The Claimant’s Counsel argued that they hold a legislative right to come before the Tribunal on these matters, as all Claims for Compensation were presented to the Respondents in advance of Tuesday, April 30, 2024.
12Counsel for the Respondents agree that with the repeal of s. 17(1)(c) of the OUINS Act on May 1, 2024, the Ontario Land Tribunal does not have the jurisdiction to award compensation to an excavator for a loss or expense incurred because the Member failed to provide a locate in accordance with the time limit applicable under s. 6 of the OUINS Act.
13The Tribunal determined that the matter of jurisdiction must be addressed before proceeding any further. In accordance with Rule 10.11 of the OLT Rules, the Tribunal initiated a Motion to inquire into its jurisdiction to hear the matter and directed that a written hearing would be the most efficient manner to proceed in accordance with Rule 21.1 of the OLT Rules.
14After canvassing the Parties for potential timelines, the following process has been set to determine the issue of jurisdiction:
a. 30 days from the date of this Decision, the Claimant will serve submissions in accordance with the requirements of Rule 21.3(a) of the OLT Rules;
b. 30 days from the service of submissions, the Respondents wishing to respond will do so in accordance with the requirements of Rule 21.3(b) of the OLT Rules; and
c. The Claimant may wish to reply and may do so within 14 days in accordance with the requirements of Rule 21.3(c) of the OLT Rules.
15Should the Tribunal determine that it does not have jurisdiction to grant the remedy sought by the Claimant, it will dismiss the proceeding without a hearing in accordance with s. 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.4, Sched. 6.
ORDER
16THE TRIBUNAL ORDERS the directions contained in this Decision.
17The Member is seized and may be contacted through the Case Coordinator should any procedural issues arise.
“W. Daniel Best”
W. DANIEL BEST
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.