Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 24, 2024
CASE NO(S).: OLT-23-000860
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Argio Papanagnostou
Respondent: Metrolinx
Description: Determination of compensation
Property Address: 449 Queen Street West
Municipality: City of Toronto
OLT Case No.: OLT-23-000860
OLT Lead Case No.: OLT-23-000860
OLT Case Name: Papanagnostou v. Metrolinx
Heard: June 20, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Metrolinx | Alyssa Granato, Christel Higgs (in absentia), Ian Mathany (in absentia) |
| Argio Papanagnostou | Al Burton |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JUNE 20, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This Hearing was the fourth Case Management Conference (“Fourth CMC”) before the Tribunal with respect to a Notice of Arbitration filed by Metrolinx (“Metrolinx”) asking that the Tribunal determine the compensation to which Argio Papanagnostou (“Claimant”) is entitled to with respect to the lands known municipally as 449 Queen Street West in Toronto (“Subject Property”). The Claimant claims compensation arising out of the Expropriation of the Subject Property by Metrolinx, pursuant to Plan of Expropriation No. AT6058020, which was registered on April 27, 2022 (“Expropriation”). The purpose of the Expropriation was for the construction of the south entrance to the Queen / Spadina Ontario Line Subway Station.
2Metrolinx filed the Notice of Arbitration on August 29, 2023. A Statement of Claim has not yet been delivered on behalf of the Claimant.
3On July 25, 2022, pursuant to s. 25 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (“Act”), Metrolinx served a formal offer of compensation on the Claimant in the amount of $2,900,000 (“Section 25 Offer”). The Claimant accepted and Metrolinx paid the amount of $2,900,000 to the Claimant pursuant to s. 25(1)(b) of the Act. Such payment was made without prejudice to the Parties’ rights pursuant to the Act, including the rights of the Claimant to claim compensation from Metrolinx in excess of the compensation paid by Metrolinx.
4Three previous CMCs have taken place on this matter, on November 9, 2023 (“First CMC”), January 9, 2024 (“Second CMC”), and March 6, 2024 (“Third CMC”).
a. At the First CMC, Counsel for the Claimant, advised the Tribunal that the Claimant has passed away and that he has been taking instructions from the Claimant’s heirs until a Personal Representative can be appointed. Mr. Burton requested an extension of the time within which a Statement of Claim must be filed, stating that the Parties have agreed to participate in a Tribunal-led Mediation prior to delivery of the Claimant’s pleading.
b. At the Second CMC, the Parties advised that the claim was mediated without a settlement being reached. Mr. Matthew Furrow appeared before the Tribunal and advised that he is Counsel for Ekaterini Papanagnostou, who is the widow of the Claimant’s brother, Nick Papanagnostou. Mr. Furrow advised the Tribunal that it is his client’s position that her deceased husband co-owned the Subject Property with the Claimant and that she therefore has an interest in the Subject Property, including in these Proceedings and in the compensation to be determined by the Tribunal and payable under the Act. Mr. Furrow advised that he was instructed to file an Application in the Superior Court of Justice (“SCJ Application”) to establish his client’s entitlement to an interest in the compensation, at which point he will seek to have her added as a Claimant in these Proceedings. The third CMC was scheduled to allow time for the SCJ Application to be brought to the Court.
c. The Decision from the Third CMC has yet to be issued. At the Fourth CMC, the Parties advised that they had been encouraged by the Member presiding at the Third CMC to achieve a resolution in the estate matter in order to facilitate the progression of the Expropriation matter. Namely, it was necessary to come to an agreement on who is to bring forth this Expropriation Claim.
FOURTH CMC
5At the Fourth CMC, the Claimant’s Counsel and Mr. Furrow advised that the first attendance for the SCJ Application was scheduled to take place on Thursday, August 1, 2024. However, in the meantime, they had arrived at an agreement between themselves, wherein they would jointly ask the Tribunal to proceed with this Expropriation proceeding notwithstanding the lack of resolution on the SCJ Application. The position put forth by the Claimant’s Counsel was that, while no estate trustee has been appointed as of yet, and until the SCJ Application is resolved, the beneficiaries of both the Claimant and Mr. Furrow’s client have consented to the Hearing being scheduled for the Expropriation proceeding. Mr. Furrow added that his client consents to scheduling the Hearing, and that this is the limit of his client’s consent.
6Upon further questioning from the Tribunal, the Claimant’s Counsel clarified that the nature of the issues in the Expropriation proceeding, as clarified at the mediation which took place in December 2023, relates only to the market value of the Subject Property and to lost rental income. These issues are not dependent on the estate proceeding or the outcome of the SCJ Application, which relates to the distribution of the proceeds rather than the amount.
7Metrolinx’s Counsel, however, submitted that Metrolinx’s position was that progression in this Expropriation matter was entirely dependent on the estate matter being clarified. Moreover, Metrolinx had not been involved in any way in the discussions between the Claimant’s Counsel and Mr. Furrow. As such, Metrolinx had not been privy to any agreements reached between them and did not understand how the estate matter had been resolved in accordance with the directions that had been provided at the Third CMC. Contrary to the position put forth by the Claimant’s Counsel, Metrolinx’s Counsel explained that the issue of ownership – and the identity of the individual bringing forth this Expropriation claim – was quite relevant to this Expropriation proceeding and no Procedural Order could be ratified until there was an understanding / agreement in that regard. As such, it was Metrolinx’s position that no Hearing should be scheduled until there was either a formal agreement between those instructing the Claimant’s Counsel and Mr. Furrow’s client, specifically to clarify who is bringing forward this Expropriation proceeding, or the SCJ Application resolved. Furthermore, no Statement of Claim had been filed and, thus, the issues in dispute remain unclear.
8The Tribunal inquired as to the impact of the estates issue on whether Metrolinx had complied with its requirements under the Act, specifically as it related to Notice and the Section 25 Offer. Metrolinx’s Counsel submitted that the ramifications of this estate issue on the Expropriation proceeding remained unclear and needed clarification through discussions that involved Metrolinx (and not just the Claimant’s Counsel and Mr. Furrow). The Claimant’s Counsel submitted, however, that Metrolinx had served Notice on the registered owner of the Property, the Claimant, and as a result, there were no issues with respect to compliance with the Act.
9Upon hearing the submissions of Counsel, the Tribunal determined that it was premature to set a Hearing date at this time. The first attendance for the SCJ Application had yet to take place. Moreover, the Parties had engaged in discussions to resolve the estate matter (as it related to the Expropriation proceeding) but no formal agreement had been reached and Metrolinx had not been involved. Metrolinx remained unclear on the identity of the Claimant (or Claimants) proceeding with this Expropriation proceeding and remained unclear on the exact nature of the issues in dispute since no Statement of Claim had as of yet been filed. Mr. Furrow could not confirm whether his client intended to file a Statement of Claim either, stating he only represented them for the estate matter.
10As such, the Tribunal determined that a fifth CMC would be scheduled. The Parties and Mr. Furrow were directed to engage in discussions until then with the hope of reaching a formal agreement to allow the matter to proceed. Moreover, the Claimant is directed to file a Statement of Claim. Lastly, if a motion for direction or to appoint a person to represent the estate (an option suggested by the Claimant’s Counsel) is required, this motion is to be brought formally to the Tribunal in accordance with the Tribunal’s Rules of Practice and Procedure. The motion can be brought in writing.
11The Parties have engaged in Tribunal-assisted mediation, which did not result in a resolution of this matter. The Parties are directed to advise the Tribunal if they would like to engage in Tribunal-assisted mediation again. If so, they can reach out to the Tribunal’s Case Coordinator in writing in pursuit of those services. Moreover, the Tribunal directed that, if the Parties should reach a settlement with respect to some or all of the issues, they advise the Tribunal in writing at their earliest convenience.
NEXT CMC DATE
12As indicated, a fifth CMC has now been scheduled to take place by Video Hearing on Tuesday, October 22, 2024, at 10 a.m.
13On the applicable date, the Parties are to use the following coordinates:
GoToMeeting: https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
14Parties 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. Parties 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
15Persons 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 as indicated above.
16Individuals 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 CMC by Video to ensure that they are properly connected to the event at the correct time. Questions prior to the CMC event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
17The TRIBUNAL ORDERS that a fifth Case Management Conference is scheduled as described above in this Decision.
18The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE
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.