Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 17, 2024 CASE NO(S).: OLT-21-001312

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

Claimant: MacEwen Petroleum Inc. Respondent: City of Ottawa Subject: Determination of compensation Description: To facilitate the construction of the Ottawa Stage 2 Light Rail Transit system. Reference Number: OC1953142 Property Address: 1181 Richmond Road Municipality/UT: Ottawa/Ottawa OLT Case No: OLT-21-001312 OLT Lead Case No: OLT-21-001312 OLT Case Name: MacEwen Petroleum Inc. v. Ottawa (City)

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

Claimant: Kareem George Saikaley Respondent: City of Ottawa Subject: Determination of compensation Description: To facilitate the construction of the Ottawa Stage 2 Light Rail Transit system. Reference Number: OC1953142 Property Address: 1181 Richmond Road Municipality/UT: Ottawa/Ottawa OLT Case No: OLT-21-001568 OLT Lead Case No: OLT-21-001312 OLT Case Name: Kareem George Saikaley v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: MacEwen Petroleum Inc. Request for: Written Motion for Directions Heard: In Writing

APPEARANCES:

Parties	Counsel
MacEwen Petroleum Inc. ("MacEwen" or "Claimant")	Philip Osterhout
City of Ottawa ("City")	Laura Robinson

DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This matter relates to the City’s expropriation of the property located at 1181 Richmond Road (“Property”), on which MacEwen was a tenant. MacEwen sublet the Property to Georges Aoun (c.o.b as “GRA Gas Bar”), who operated a MacEwen-branded gas station and convenience store.

2Pursuant to the terms of the sublease, GRA Gas Bar paid MacEwen a fixed annual minimum rent, plus variable rent that was tied to its sales. MacEwen earned profit from the sale of fuel at that location and paid GRA Gas Bar a commission on every litre of fuel sold at that location.

3The City and MacEwan have now settled all matters relating to MacEwen’s claims under the Expropriations Act, R.S.O. 1990, c. E.26 (“Act”), save and except for MacEwen’s entitlement to costs under s. 32 of the Act. By written motion, MacEwen now seeks a confidentiality order from the Tribunal in respect of certain business loss reports that may be relevant to the adjudication of costs (“CO Motion”).

4The Parties have also initiated a second written motion returnable after the CO Motion seeking costs adjudication by the Tribunal, as described in paragraph three ([3]) above.

5The materials delivered to the Tribunal for the CO Motion include the Claimant’s Notice of Motion dated June 19, 2024 comprising four (4) pages and a supporting affidavit from Andrew Boulanger sworn on the same date comprising three (3) pages. Counsel for the City advised the Tribunal on June 20, 2024 that the City “takes no position on” the CO Motion and has not filed any materials.

ARGUMENTS / ANALYSIS

Timing of the CO Motion

6The Claimant has neither filed a factum nor provided any caselaw authority nor has it provided or suggested any specific terms for the requested confidentiality order beyond the 6 itemized business loss expert reports described in its Notice of Motion. It simply cites Rule 22.2 of the OLT Rules of Practice and Procedure (“Rules”), which states (emphasis below added):

22.2 Confidentiality Orders The Tribunal may order that any document filed in a proceeding be treated as confidential and not be disclosed to the public where the Tribunal is of the opinion that: a) matters involving public security may be disclosed; or b) the document contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public.

7Another relevant provision of the Rules is Rule 22.1:

22.1 Hearings to be Public All Tribunal hearing events will be open to the public except where the presiding Tribunal Member determines that the hearing event is to be heard in private, such as a mediation or the exceptions to a public hearing set out in relevant legislation or regulation, such as subsection 9(1) of the SPPA.

8The Tribunal has recently considered confidentiality orders in two cases: see McDonald’s Restaurants of Canada Ltd. & 1444767 Ontario Inc. v. City of Toronto 2023 CanLII 76839 (August 17, 2023) (“McDonalds v. Toronto”) and McDonald’s Restaurants of Canada Limited v. York Region 2023 CanLII 50965 (June 8, 2023). However, the circumstances in both of those proceedings were significantly different from those in this matter since this CO Motion stems from a full settlement (except for the determination of costs under the Act by the Tribunal). The concerns expressed by the Tribunal in both McDonald’s cases are not as germane to the current proceeding since there is no over-broad request being made at an early juncture for detailed confidentiality restrictions.

9As pointed out in McDonald’s v. Toronto (cited in paragraph eight [8]), the Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (“TARA”) is also relevant in these circumstances. At section 2 and section 3 TARA states (emphasis below added):

Adjudicative records public

2 (1) A tribunal shall make those adjudicative records in its possession that relate to proceedings commenced on or after the day this section comes into force available to the public in accordance with this Act, including any rules made under section 3.

Confidentiality orders

(2) A tribunal may, of its own motion or on the application of a person referred to in subsection (3), order that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public if the tribunal determines that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

Who may apply

(3) The following persons may apply to the tribunal for a confidentiality order in respect of an adjudicative record:

1. A party to a proceeding to which the adjudicative record relates.

2. A person who would be affected by the disclosure of the information contained in the adjudicative record or a portion of the adjudicative record.

Scope of order

(4) A confidentiality order may apply to adjudicative records regardless of when the proceeding to which they relate was commenced.

Rules

3 (1) A tribunal may make rules governing procedures for providing access to adjudicative records and for obtaining a confidentiality order.

10There is no concern here (unlike in the two McDonald’s cases cited above) that the documents sought to be protected are partly undefined or may not be filed: for the costs motion following this CO Motion, the Parties will be filing the applicable expert reports very soon in order to have the Tribunal adjudicate the Claimant’s costs entitlement under the Act. Thus, the CO Motion comes at a highly relevant time – again in distinction to the circumstances presented in the two McDonald’s cases.

The Confidentiality Concerns Justify the Remedy Sought

11As was the question raised in the two McDonald’s cases, the issue here is whether the Claimant has tendered sufficient evidence to warrant the invocation of the extraordinary exception to the Tribunal’s standard practice for all proceedings: that the hearings be held in public (whether in person or by video) and that all materials filed and evidence tendered be publicly available.

12MacEwen filed an affidavit from Mr. Boulanger, who is the Chief Financial Officer for MacEwen Petroleum Inc. – thus the most senior financial executive of the Claimant. Mr. Boulanger’s uncontested written evidence is:

(a) Under the terms of the sublease, GRA Gas Bar paid MacEwen a fixed annual minimum rent, plus variable rent. MacEwen earned profit from fuel sales and paid GRA Gas Bar a commission on every litre of fuel;

(b) in support of its claim for compensation, MacEwen commissioned a valuation of Business Loss report from Deloitte LLP dated May 15, 2019. The City commissioned responding reports from the accounting firm RSM Canada Consulting LP, dated June 18, 2021, and from retail fuel consultant Woods Consulting, dated May 31, 2021. MacEwen obtained a further report from Deloitte LLP dated December 2022, responding to the methodology in the draft RSM Consulting LP report provided by the City. The City subsequently produced a further valuation of business loss prepared by the accounting firm PricewaterhouseCoopers LLP, dated June 19, 2023, and a second, responding report from Woods Consulting, dated June 19, 2023;

(c) by direct quote (emphasis added): “…Each of the reports noted above relate to MacEwen’s projected loss of profits arising from the expropriation of 1181 Richmond Road and are premised, at least in part, on MacEwen’s confidential financial records. Most significantly, this information includes particulars of MacEwen’s costs and profit margins…”;

(d) by direct quote (emphasis added): “…The retail fuel industry is a highly competitive market. Gas bar fuel prices are routinely adjusted throughout the day in response to market conditions, including fuel costs and competitor pricing. The public disclosure of MacEwen’s costs and profit margins could therefore result in a significant competitive disadvantage in relation to other fuel retailers…”;

(e) by direct quote (emphasis added): “…In addition to the concern that the financial information could provide insight into MacEwen’s strategic model generally, the PricewaterhouseCoopers Report includes information concerning the performance of three other MacEwen gas station locations that continue to be in operation today…”; and,

(f) by direct quote (emphasis added): “…The cost that MacEwen pays for fuel is negotiated in confidence with its suppliers. The price that it pays from time to time is therefore not necessarily the same as the price charged to other purchasers. In addition to any competitive disadvantage, the disclosure of MacEwen’s costs could therefore also result in significant reputational and economic harm to both MacEwen and its suppliers.”

CONCLUSIONS

13The evidence of Mr. Boulanger is, for the most part, brief and conclusory in nature. Parties seeking confidentiality orders from the Tribunal are encouraged to provide more fulsome and detailed supporting evidence. As a general principle on these motions, the Tribunal will not find persuasive such bald statements as “competitive disadvantage”, “significant reputational and economic harm” or “premised in part on confidential records”.

14Given that a confidentiality order is a significant exception to the usual practices, procedures and policies followed by the Tribunal, Parties are encouraged to provide more specific examples and explanations as to the likelihood of economic loss or competitive harm. This will better enable the Tribunal to determine whether “the document contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public”. It is clear that the Tribunal must engage in a balancing exercise when considering such requests, and therefore that Parties must put the Tribunal in a position to do so in a thoughtful manner and not merely based on assumptions derived from positions taken by the requestor.

15However, in these unique circumstances, and in reliance upon the assertions made by the senior financial officer of the Claimant, the Tribunal is prepared to grant limited confidentiality protection. The only issue to be adjudicated is the costs entitlement under section 32 of the Act – which will be done through written motion proceedings. There will be no evidence tendered on the other compensation issues such as injurious affection, business loss, etcetera.

16Thus, from the public interest perspective, it can be expected that there will be limited interest in the costs proceeding and even less interest in the details of ancillary expert reports. Moreover, that interest is likely to focus on the ultimate determinations made by the Tribunal which will be reflected in the final Decision and Orders made. In other words, the Tribunal will be able to fully explain the basis for its determinations without the need to delve deeply into the details concerning the economic loss component or the expert reports tendered on that issue.

17On motions such as these, it is preferable the requesting party specify the exact terms of the confidentiality order sought. Unfortunately, the request made here in the CO Motion merely states:

…An Order of the Tribunal that all business loss reports filed in this matter, as particularized below, and the underlying financial information contained within those reports shall be treated as confidential and not be disclosed to the public...

18Presumably, this means that the Claimant does not want there to be public access to the listed business loss reports that will form part of the Tribunal’s file. In addition, the Tribunal assumes that if it were to exercise its discretion to schedule an oral hearing event in addition to the written motion, the Claimant seeks to exclude from public access any testimony concerning such reports. Finally, the Tribunal assumes that the Claimant wishes the eventual Decision and Order on the costs adjudication to avoid any reference to the actual details of the listed business loss reports.

19Because at this time the Tribunal has not decided to schedule an oral hearing, it will therefore decline to make any advance ruling about the conduct of such an event. This can be revisited if and as applicable.

ORDER

20THE TRIBUNAL ORDERS THAT:

(a) the business loss reports listed in Attachment A to this Order (“Reports”) if and as filed by the Parties shall not be contained in the publicly available file maintained by the Tribunal;

(b) during the written adjudication of the separate proceeding already commenced by the Parties seeking adjudication of costs pursuant to the Expropriations Act, R.S.O. 1990, c. E.26, (“Costs Adjudication”) the contents of the Reports will not be described nor otherwise contained in the publicly available file maintained by the Tribunal;

(c) the contents of the Reports shall be redacted or otherwise excluded from the Decision and Order arising from the Costs Adjudication; and

(d) in the event that the Tribunal convenes an oral Hearing in relation to the Costs Adjudication, the Parties will be afforded an opportunity to make submissions as to any proposed testimony concerning the Reports.

21This Vice Chair shall remain seized of this proceeding and, for greater clarity, of the already scheduled proceedings involving the costs adjudication.

“William R. Middleton”

WILLIAM R. MIDDLETON VICE-CHAIR

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.

ATTACHMENT “A”

a. The Deloitte Report: “Quantification of projected losses as a result of the termination of the lease at 106 McEwen Avenue”, dated May 15, 2019

b. The “Woods Consulting Report”, dated May 31, 2021

c. The RSM Canada Consulting LP Report: “Calculation of Business Losses & Critique of the Deloitte Report dated May 15, 2019,” dated June 18, 2021

d. The Deloitte Report: “Response to RSM Canada Consulting LP Report titled Calculation of Business Losses and Critique of the Deloitte Report dated May 15, 2019”, dated December 2022

e. The PricewaterhouseCoopers LLP Report: “Critique of the Deloitte Report & PwC” “Responding Loss Quantification Analysis”, dated June 19, 2023

f. The Woods Consulting Report: “Responses to Reports”, dated June 19, 2023.