Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 18, 2024
CASE NO(S).:
OLT-24-000173
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27, as amended
Claimant:
Orlando Corporation
Respondent:
The Regional Municipality of York
Description:
Determination of compensation
Property Address/Legal Description
PIN 03126-0139(LT): BLOCK 6, PLAN 65M4080, RICHMOND HILL; PIN 03126-0141(LT): BLOCK 8, PLAN 65M4080, RICHMOND HILL. S/T EASE IN GROSS OVER PT 1, 65R31053 AS IN YR1208678; and PIN 03126-0142(LT): BLOCK 9, PLAN 65M4080, RICHMOND HILL
Municipality/UT:
City of Richmond Hill/Regional Municipality of York
OLT Case No.:
OLT-24-000173
OLT Lead Case No.:
OLT-24-000173
OLT Case Name:
Orlando Corporation v. York (Regional Municipality)
Heard:
May 31, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Orlando Corporation
Brendan O’Callaghan
David Neligan (in absentia)
Regional Municipality of York
Michael Grant
Frank Sperduti (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER ON MAY 31, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) for an expropriation matter commenced under subsection 26(1) of the Expropriations Act (“Act”). Orlando Corporation (“Claimant”) is claiming compensation pursuant to Sections 13 and 30 of the Act with respect to a partial taking by the Region of York (“Respondent”) of a fee simple interest as well as a temporary easement interest and permanent easement interest in lands owned by the Claimant in Richmond Hill. The expropriations were required to assist the Respondent in the construction of the Highway 404 Mid Block Crossing located North of 16th Avenue.
2The CMC was convened to set the Procedural Order (“PO”) that will govern the remainder of these proceedings and to schedule the Hearing on the Merits (“Merit Hearing”) of this matter.
MEDIATION
3The Parties have discussed mediation prior to the CMC and agreed that this should take place before October 1, 2024. The Parties are instructed to reach out to the Case Coordinator to schedule this matter.
MERIT HEARING
4The Parties provided a draft Procedural Order in advance of the CMC and requested, on consent, a four (4)-day Video Hearing. Counsel for the Claimant undertook to forward an updated PO populated with the necessary dates. The Tribunal requested that the Parties forward the updated PO by no later than Friday, June 7. This was received and the Tribunal Member has reviewed and approved this document which is included with this Decision as Attachment 1.
5The Tribunal set a four-day Video Hearing commencing on Monday, February 10, 2025 at 10 a.m.
6Parties 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/344779885
Access code: 344-779-885
7Parties 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
8Persons 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.
9Individuals 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
10THE TRIBUNAL ORDERS that:
a. A finalized Procedural Order attached to this Order as Attachment 1 is approved and shall govern the proceedings.
b. A four-day Merit Hearing is scheduled to take place via Video Hearing commencing on Monday, February 10, 2025, and ending on Thursday, February 13, 2025.
11The Member is not seized but will remain available for continued case management to the extent that the Tribunal calendar permits.
“G.A. Croser”
G.A. CROSER
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.
CASE NO.: OLT-24-000173
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c.E.26, as amended.
Claimant:
Orlando Corporation
Respondent:
The Regional Municipality of York
Description:
Determination of compensation
Property Address/Legal Description:
PIN 03126-0139(LT): BLOCK 6, PLAN 65M4080, RICHMOND HILL; PIN 03126-0141(LT): BLOCK 8, PLAN 65M4080, RICHMOND HILL. S/T EASE IN GROSS OVER PT 1, 65R31053 AS IN YR1208678; and PIN 03126-0142(LT): BLOCK 9, PLAN 65M4080, RICHMOND HILL
Municipality/UT:
City of Richmond Hill/Regional Municipality of York
OLT Case No.:
OLT-24-000173
OLT Lead Case No.:
OLT-24-000173
OLT Case Name:
Orlando Corporation v. York (Regional Municipality)
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 [February 10th, 2025] at [10:00 am] virtually through GoToMeeting.
The parties’ initial estimation for the length of the hearing is four (4) 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 as set out in Attachment 4 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.
All parties, counsel and witnesses, are expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Pleadings
The Claimant, Orlando Corporation, served and filed a Notice of Arbitration and Statement of Claim on February 15, 2024.
The Respondent, The Regional Municipality of York, served and filed a Notice of Intent to Defend on March 1, 2024, and its Reply on March 15, 2024.
Discovery
Affidavits of Documents (together with production briefs of the documents) shall be exchanged by July 16th, 2024.
Examinations for Discoveries of the representative of each party shall be completed within August 15th, 2024. Any appraisal reports to be relied upon pursuant to paragraph 22 below, shall be provided at least July 31, 2024, 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 within October 4, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed with the Tribunal by October 24, 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 are to be answered, held, and/or provided within 30 days of the discovery motion before the Tribunal.
Mediation
The parties are directed pursuant to Rule 26.6 to confer to discuss participating in a mediation for the purpose of resolving all or part of the claim and the parties shall comply with the provisions of Rule 26.7.
The parties agree that, if participation in a mediation is agreed to by both parties, the parties are to file with the Registrar an Expropriation Mediation Request Form pursuant to Rule 26.5 on or before September 1, 2024.
If the parties agree to a mediation, the mediation shall take place on or before October 1, 2024.
Evidence
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 November 4, 2024.
Expert witnesses in the same field shall have a meeting by November 28, 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 coordinator by December 13, 2024.
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 23 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. The 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 and a signed Acknowledgement of Expert’s Duty.
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 23 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 23 below.
On or before December 13, 2024, the parties shall provide copies of their respective expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 31 below and subject to paragraph 12 above.
Parties may provide to all other parties and the OLT case coordinator a written response or reply to any written evidence on or before January 13, 2024 and in accordance with paragraph 31 below.
Requirements Prior to the Hearing
On or before January 13, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 4, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 31 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 coordinator on or before February 4, 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 by at least February 4, 2024 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 by at least January 13, 2024.
The parties shall prepare and file a hearing plan with the Tribunal on or before February 4, 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 the Rule 7.
Adjournments
- 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 – LIST OF PARTIES
Party
Party Status
Counsel / Representative
Orlando Corporation
Claimant
Aird & Berlis LLP
Brookfield Place, 181 Bay Street
Suite 1800, Box 754
Toronto, ON M5J 2T9
David Neligan
Tel: 416.865.7751
Email: dneligan@airdberlis.com
The Regional Municipality of York
Respondent
Borden Ladner Gervais LLP
Bay Adelaide Centre, East Tower
22 Adelaide Street W
Toronto, ON M5H 4E3
Frank Sperduti
Tel: 416.367.6243
Email: fsperduti@blg.com
Michael Grant
Tel: 416.367.6120
Email: mgrant@blg.com
ATTACHMENT 2 – TIMETABLE
Exchange Affidavit of Documents
July 16th, 2024
Examinations for Discovery
August 15, 2024
Appraisal Reports to be exchanged subject to direction of the Tribunal
July 31, 2024
Undertakings to be Answered
October 4, 2024
Any motions arising from Examinations or Undertakings to be requested /scheduled
October 24, 2024
Any further undertakings to be answered following the motion
30 days from the date of the discovery motion, if any
Mediation
On or before October 1, 2024
Exchange of Witness List
November 4, 2024
Meeting(s) of Like Experts
November 28, 2024
Agreed Statement of Facts
December 13, 2024
Exchange of Expert Witness Statements / Reports / Lay Witness Statements
December 13, 2024
Exchange of Expert Reply Witness Statements / Reply Reports
January 13, 2025
Request to Admit
January 13, 2025
Confirm whether all hearing dates still required
January 13, 2025
Arrange for Court Reporter
January 13, 2025
Joint Document Book
February 4, 2025
Visual Evidence
February 4, 2025
Preparation of Hearing Plan
February 4, 2025
Hearing
February 11-14, 2025
ATTACHMENT 3 – ISSUES LIST
The determination of compensation and damages owed to the Claimant pursuant to the Expropriations Act arising from the Respondent’s expropriation of the Claimant’s land with respect to market value, 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.
ATTACHMENT 4 – ORDER OF EVIDENCE
Orlando Corporation
The Regional Municipality of York
Orlando Corporation in reply, if necessary
60473626.2
60473626.4