Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 23, 2024
CASE NO(S).: OLT-22-000102
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended.
Claimant: 284-286 Dunlop Street Inc.
Respondent: His Majesty the King in Right of Ontario, as Represented by the Minister of Transportation
Description: Determination of compensation
Property Address: 119 and 121 Henry Street
Municipality/UT: Barrie/Simcoe
OLT Case No.: OLT-23-000102
OLT Lead Case No.: OLT-23-000102
OLT Case Name: 284-286 Dunlop Street Inc. v. HMK in right of Ontario (Minister of Transportation)
Heard: November 14, 2023, by video hearing ("VH")
APPEARANCES:
| Parties | Counsel |
|---|---|
| 284-286 Dunlop Street Inc. ("Claimant") | Abby Sinclair |
| His Majesty the King in Right of Ontario as Represented by the Minister of Transportation ("Respondent") | Jonathon Sydor |
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON NOVEMBER 14, 2023, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing event was scheduled in response to a request by Counsel for the Claimant, is the first Case Management Conference ("CMC") conducted in this Claim for Compensation under the Expropriations Act. The claim is brought by the Claimant against the Respondent and arises out of the Expropriation of a portion of the Claimant’s property at 119 and 121 Henry Street, in the City of Barrie ("City"), for the construction of improvements to, and the reconfiguration of, the Highway 400 interchange at Dunlop Street.
PROCEDURAL ORDER
2A draft Procedural Order ("PO") had been circulated between Counsel and filed with the Tribunal’s Case Coordinator on November 13, 2023. Counsel advised the Tribunal that they were prepared to set a date for a Hearing on the Merits and that an eight-day Hearing would be required. The Tribunal reviewed the draft PO and directed that amendments be made with respect to the provisions regarding the filing of a Hearing Plan, the delivery of appraisal reports and the scheduling of Examinations for Discovery, to which both Counsel agreed.
3Counsel for the Claimant undertook to revise and resubmit the draft PO to provide for the agreed revisions and the specific timeline dates once the Hearing date was set.
4Following consultation, respecting the Tribunal’s calendar and the availability of the Parties and Counsel, an eight-day Hearing on the Merits, by VH was agreed upon, commencing on Wednesday, October 16, 2024, and concluding on Friday, October 25, 2024.
5The Tribunal has subsequently received and reviewed the revised draft of the PO, Issues List ("IL") and Order of Evidence. The fixed dates for the Hearing on the Merits and for the pre-Hearing timeline, are now provided in the PO appended to this Decision, and the co-ordinates for the Hearing is set out below in this Decision.
6Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-hearing procedural requirements and the hearing of the Arbitration.
7Appended to this Decision as Attachment 1, Attachment 2 and Attachment 3, are the List of Parties, Timetable and IL, which shall govern the conduct of the Hearing on the Merits.
HEARING – October 16 – October 25, 2024
8For the eight day video hearing, commencing at 10 a.m. on Wednesday, October 16, 2024, and continuing to Friday, October 25, 2024, the Parties 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://meet.goto.com/558205565
Access code: 558-205-565
Audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889
Audio-only access code: 558-205-565
9Parties, witnesses and observers 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
10Persons 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 provided above.
11Individuals 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
12THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision, the List of Parties appended as Attachment 1, the Timetable appended as Attachment 2 and the Issues list appended as Attachment 3, shall govern the conduct of this proceeding.
"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.
SCHEDULE 1
OLT CASE NO(S).: OLT-23-000102
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended.
Claimant: 284-286 Dunlop Street Inc.
Respondent: His Majesty the King in Right of Ontario, as Represented by the Minister of Transportation
Description: Determination of compensation
Property Address: 119-121 Henry Street
Municipality/UT: Barrie/Simcoe
OLT Case No.: OLT-23-000102
OLT Lead Case No.: OLT-23-000102
OLT Case Name: 284-286 Dunlop Street Inc. v. HMK in right of Ontario (Minister of Transportation)
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 October 16, 2024 at 10:00 a.m. as directed by the Tribunal in the Decision issued following the Case Management Conference (CMC).
The parties’ initial estimation for the length of the hearing is eight (8) 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 identified at the CMC are set out in Attachment 1.
The procedural timetable of pre-hearing steps is set out in Attachment 2 to this Order.
The issues are set out in the Issues List attached as Attachment 3. 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 provided on or before October 9, 2024. 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.
Requirements Before the Hearing
The Claimant, 284-286 Dunlop Street Inc., served and filed a Notice of Arbitration and Statement of Claim on February 14, 2023.
The Respondent, His Majesty the King in Right of Ontario as Represented by the Minister of Transportation ("MTO"), served and filed its Reply on April 14, 2023.
The parties agree to a mediation to take place on the earliest possible date.
On or before April 18, 2024, the parties shall provide copies of their respective appraisal reports to the other parties and to the OLT case co-ordinator.
Affidavit of Documents (together with production briefs of the documents) shall be exchanged by April 25, 2024.
Examinations for Discoveries of the representative of each party shall be completed by May 30, 2024. Any appraisal reports to be relied upon pursuant to paragraph 18 below, shall be provided at least 15 days prior to the Examinations for Discovery, unless the Tribunal orders otherwise as provided in the Tribunal’s Rules of Practice and Procedure ("OLT Rule(s)") 26.21.
All undertakings provided at the Examination for Discovery of the parties shall be answered by June 20, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed with the Tribunal by July 4, 2024 and shall be heard on a date and time to be determined by the Tribunal, if necessary. The OLT Rules 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.
Further answers to undertakings, questions taken under advisement, and/or refusals, further examinations for discovery, and/or further productions arising from a motion (if any) are to be answered, held, and/or provided within fifteen (15) days of the discovery motion before the Tribunal.
A party who intends to call witnesses (expert and/or lay), 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 by July 26, 2024.
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. 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. 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. All expert witness statements shall be exchanged and provided to the OLT case co-ordinator on or before July 26, 2024.
Expert witnesses in the same field shall have a meeting by August 8, 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 by August 15, 2024.
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. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence. Such outlines must be filed and exchanged by July 26, 2024.
Parties may provide to all other parties and the OLT case co-ordinator a written response or reply to any written evidence on or before September 5, 2024.
On or before August 16, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 2, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 28 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 2, 2024.
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.
Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Tribunal Rules 1.4 and 26.3 shall serve such request on the party opposite at least 30 days before the hearing date.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 9, 2024 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 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. The exception is for the dates or deadlines set out in paragraphs 11 to 21 above, which may be amended by mutual agreement of the Parties without the need for a motion to the Tribunal.
This Member is not seized.
So orders the Tribunal.
Attachment 1 – List of Parties
| Party | Party Status | Counsel / Representative |
|---|---|---|
| 284-286 Dunlop Street Inc. | Claimant | WeirFoulds LLP 66 Wellington Street West Suite 4100, TD Bank Tower P.O. Box 35 Toronto, ON M5K 1B7 Sean Foran (LSO #31047D) Tel: 416-947-5019 Email: sforan@weirfoulds.com Abbey Sinclair (LSO #64230C) Tel: 647-715-7065 Email: asinclair@weirfoulds.com Katherine Chan (LSO #85394L) Tel: 416-365-6540 Email: kachan@weirfoulds.com |
| His Majesty the King in Right of Ontario, as Represented by the Minister of Transportation | Respondent | Attorney General for Ontario Crown Law Office – Civil 720 Bay Street, 8th Floor Toronto, ON M7A 2S9 Jonathan Sydor (LSO #:42831R) Tel.: 416-689-8279 Email: jonathan.sydor@ontario.ca Mark Wiffen (LSO #:49241K) Tel.: 416-571-8925 Email: mark.wiffen@ontario.ca |
Attachment 2 – Timetable
| Event | Date |
|---|---|
| Exchange Appraisal Reports | April 18, 2024 |
| Mediation | TBC |
| Exchange Affidavit of Documents | April 25, 2024 |
| Examinations for Discovery | By May 30, 2024 |
| Undertakings to be Answered | June 20, 2024 |
| Any motions arising from Examinations or Undertakings to be requested /scheduled | July 4, 2024 |
| Any further undertakings to be answered following the motion | 15 days from the date of the discovery motion, if any |
| Exchange of Witness List / Expert Witness Statements / Reports / Lay Witness Statements and Outlines | July 26, 2024 |
| Meeting(s) of Like Experts | August 8, 2024 |
| Agreed Statement of Facts | August 15, 2024 |
| Confirm whether all hearing dates still required | August 16, 2024 |
| Written response or reply, if any, to any written evidence | September 5, 2024 |
| Request to Admit | September 12, 2024 |
| Arrange for Court Reporter | October 2, 2024 |
| Joint Document Book | October 2, 2024 |
| Visual Evidence | October 2, 2024 |
| Preparation of Hearing Plan | October 9, 2024 |
| Documents to be used in cross-examination | To be provided on or before the first day of the hearing or in advance of the start of cross-examination |
| Hearing | October 16 to 25, 2024 |
Attachment 3 – Issues List
The determination of compensation and damages owed to the Claimant pursuant to the Expropriations Act arising from the MTO’s partial expropriation of the Claimant’s land including market value, injurious affection, disturbance damages, interest, reasonable legal, appraisal and other costs, and such further and other relief as set out in the Statement of Claim and as the Tribunal deems appropriate.