Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 17, 2024

CASE NO(S).: OLT-23-000272

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant: Shell Canada Limited

Respondent: Regional Municipality of York

Description: Determination of compensation

Property Address: 4235 Highway 7 W

Municipality/UT: City of Vaughan

OLT Case No.: OLT-23-000272

OLT Lead Case No.: OLT-23-000272

OLT Case Name: Shell Canada Limited v. Regional Municipality of York

Heard: June 6, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Shell Canada Limited ("Claimant")	Matthew Owen-King Candace Mak
Regional Municipality of York ("Respondent")	Mike Grant

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON June 6, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Claimant served a claim in compensation on the Respondent on April 12, 2023, pursuant to section 26(1) of the Expropriation Act, R.S.O. 1990, c. E.27 ("Act"), in the amount of approximately $2,720,000 based on past and ongoing business losses, as well as costs and interest pursuant to sections 32 and 33 of the Act ("Claim").

2The Claimant owns an automobile fuel station and convenience store at 4235 Highway 7 in the community of Woodbridge ("Subject Lands"). On April 15, the Respondent expropriated certain interests in the Subject Lands to facilitate construction and road widening related to the building of a bus transit project along Highway 7 as well as other works. This included a fee simple interest in part of the Subject Lands, a permanent easement, and a five-year temporary easement.

3The Parties have previously resolved compensation for the taking of the land. This was without prejudice to the Claimant's right to claim compensation for business losses, which is the subject of the present Claim.

4On June 6, 2024, the Tribunal held its first Case Management Conference ("CMC") to establish next steps in this proceeding.

NOTICE

5Notice of the CMC was sent administratively by the Tribunal on May 7, 2024. There were no issues raised with service of Notice of the CMC and as such, no further notice is required.

OPPORTUNITIES FOR SETTLEMENT

6Counsel for the Parties advised that they intend to seek a pre-hearing conference and mediation assessment on or before January 15, 2025. This is provided for in the draft Procedural Order filed jointly by the Parties on consent prior to the CMC.

7The Parties are directed to advise the Tribunal, as soon as possible, of any settlement, and are encouraged to narrow the issues.

NEXT STEPS

8Counsel for the Parties request that a five-day Merit Hearing be set by the Tribunal. Having heard from the Parties, the Tribunal directs that a Merit Hearing commence on Tuesday, March 4, 2025 at 10 a.m., by Video Hearing.

9Parties 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/687587165

Access Code: 687-587-165

10Parties 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.

11Individuals 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 same as mentioned above.

12Individuals 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.

TCC

13To update the Tribunal on the status of the proceeding, and to ensure an efficient Hearing process, the Tribunal directs that a second CMC, by means of a telephone conference call ("TCC"), be scheduled to proceed on Wednesday, February 12, 2024 at 9 a.m., with the following dial-in instructions: Individual(s) are directed to call (Toll Free) 1-866-633-0848 or 416-212-8012. When prompted, enter the code 4779874 to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal's Case Coordinator having carriage of this case.

ORDER

14THE TRIBUNAL ORDERS:

a. Its directions in this Decision; and,

b. The Procedural Order attached to this Decision.

"Jean-Pierre Blais"

JEAN-PIERRE BLAIS 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.

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.

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 Hearing will begin on March 4, 2025 at 10:00 a.m. by videoconference.

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 are set out in the Issues List attached as Attachment 2.

7. 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.

8. 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. 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.

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

Pleadings

10. The Claimant issued its Notice of Arbitration and Statement of Claim on April 12, 2023.

11. The Respondent issued its Reply on May 2, 2023.

12. The Claimant shall serve its Amended Statement of Claim on or before June 14, 2024.

Documentary and Oral Discoveries

13. The parties shall exchange their respective Affidavits of Documents together with productions of the documents on or before June 14, 2024.

14. Examinations for discovery of the representative of each party shall be completed on or before July 12, 2024. The parties consent to conduct examinations for discovery by way of videoconference.

15. Each party shall answer their respective undertakings arising from examinations for discovery on or before August 22, 2024.

16. Any motion(s) arising out of the examinations for discovery shall be served and filed on or before September 20, 2024.

17. 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 16.

Witnesses and Evidence

18. The following definitions shall apply in this matter:

a. "Expert report" means a report prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of his or her opinion on those issues, and a list of reports, documents and/or studies that the expert witness relies upon;

b. "Witness statement" means a document consisting of a short outline of the facts and issues that a non-expert witness will address in evidence. A witness statement must be served for all non-expert witnesses a party intends to call at the hearing.

c. "Expert Witness Statement" means a witness statement prepared by an expert witness, and should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing

d. "Visual Evidence" includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.

19. 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 37 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.

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

21. A party who intends to call a witness who is not an expert must file a witness statement, as in paragraph 37.

22. On or before October 25, 2024, the Claimant shall provide copies of their witness and expert witness statements and/or expert reports to the Respondent and to the OLT case co-ordinator and in accordance with paragraph 37.

23. On or before December 16, 2024, the Respondent shall provide copies of their expert reports and witness statements to Claimant and to the OLT case co-ordinator and in accordance with paragraph 37.

24. On or before February 7, 2025, the Claimant shall provide copies of their reply expert reports and witness statements to the Respondent and to the OLT case co-ordinator and in accordance with paragraph 37.

25. 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.

26. 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 to the Tribunal on or before October 15, 2024 and in accordance with paragraph 37. 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.

27. On or before fifteen (15) days prior to the Hearing, the parties shall provide copies of their visual evidence to all the other parties in accordance with paragraph 37. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

28. 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

29. On or before January 15, 2025, the parties shall request a pre-hearing conference and mediation assessment be scheduled by the Tribunal.

Requests to Admit

30. 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 on or before January 31, 2025.

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

Hearing Plan and Arrangements

32. On or before February 7, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

33. The Respondent shall arrange for the service and payment of a certified Court Reporter for the hearing and provide notification to the Claimant of these arrangements by February 10, 2025.

34. On or before February 20, 2025, the parties shall prepare and file a final Issues List with the OLT Case Coordinator.

35. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 20, 2025.

36. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 20, 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 during the hearing.

General

37. 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.

38. 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
Shell Canada Limited	Claimant	Scargall Owen-King LLP 20 Victoria Street, 8th Floor Toronto, ON M5C 2N8 Matthew Owen-King T: 416.597.5421 matthew.owen-king@sokllp.com Candace Mak T: 416.869.2206 candace.mak@sokllp.com
The Regional Municipality of York	Respondent	Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON M5H 4E3 Frank Sperduti (LSO# 40677N) Tel: 416.367.6243 fsperduti@blg.com Michael Grant (LSO# 77317Q) Tel: 416.367.6120 mgrant@blg.com

ATTACHMENT 2

ISSUES LIST

1. The issues are defined by the pleadings of the parties as filed with the Tribunal.

ATTACHMENT 3

ORDER OF EVIDENCE

1. The order of presentation of evidence shall be:

a. case for the Claimant;

b. case for the Respondent; and

c. reply by the Claimant.

2. Reply evidence shall not include evidence that was or should have been led in-chief.

Summary of Procedural Order "Key Dates"

Para.	Event	Date
03	Arbitration Hearing (5 days, by videoconference)	March 04 – 10, 2025
29	Pre-Hearing Conference & Mediation Assessment	by January 15, 2025
12	Shell's Amended Statement of Claim	by June 14, 2024
13	Exchange of Affidavits of Documents	by June 14, 2024
14	Discovery Examinations	by July 12, 2024
15	Answers to Undertakings	by August 22, 2024
16	Service of Discovery Motion Materials (if necessary)	by September 20, 2024
26	Lists of Witnesses	by October 15, 2024
22	Shell Witness Statements & Expert Reports	by October 25, 2024
23	York Witness Statements & Expert Reports	by December 16, 2024
30	Request to Admit Facts or Documents	by January 31, 2025
24	Shell Reply Witness Statements & Reply Expert Reports	by February 07, 2025
32	Confirmation of Hearing Dates	by February 07, 2025
33	Confirmation of Court Reporter	by February 10, 2025
27	Visual Evidence	by February 14, 2025
34	Final Issues List	by February 20, 2025
35	Joint Document Book	by February 20, 2025
36	Hearing Plan	by February 20, 2025