Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 31, 2024

CASE NO(S).: OLT-22-002720 (Formerly LC210009)

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

Claimant: Monashee Holdings Ltd. and Timeoso Inc.

Respondent: Regional Municipality of York

Description: Determination of compensation

Property Address: 20 Davis Drive

Municipality/UT: Town of Newmarket/ Regional Municipality of York

OLT Case No.: OLT-22-002720

Legacy Case No.: LC210009

OLT Lead Case No.: OLT-22-002720

Legacy Lead Case No.: LC210009

OLT Case Name: Monashee Holdings Ltd. v. York (Regional Municipality)

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

Request by: Monashee Holdings Ltd. and Timeoso Inc.

Request for: Request for Directions – to seek a Confidentiality Order

Heard: February 20, 2024, In Writing

APPEARANCES:

Parties Monashee Holdings Ltd. and Timeoso Inc. (“Claimant”)

Counsel S. Rayman C. Harris

Parties Regional Municipality of York (“York”)

Counsel M. Owen-King I. Wong

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter relates to York’s expropriation of the property located at 20 Davis Drive in the Town of Newmarket in which the Claimant owns an interest pursuant to a registered easement agreement over its parking lot (“Property”). The Property is improved with a retail shopping centre and is owned by Loblaw Properties Limited (“Loblaw”) and is adjacent to a retail shopping centre known as Yorktown Square Shopping Centre (“Yorktown Square”) located at 50 Davis Drive, in the Town of Newmarket owned by the Claimant.

2In its motion record filed before the Tribunal, the Claimant has alleged that in 2019, the Claimants entered into a lease agreement with Loblaw to operate a grocery store in a portion of Yorktown Square (“Lease Agreement”). The Claimant further alleges that the Lease Agreement contains a confidentiality clause which requires the Claimants and Loblaw to “keep all aspects of their negotiations and agreements in respect of this Lease confidential”. There are apparently only limited exceptions to this clause, including where the information is required to be disclosed by law.

3No copy of the Lease Agreement has been provided to the Tribunal – no doubt because the Claimant seeks by motion to have the Tribunal impose a confidentiality order (“CO”) in relation to the Lease Agreement and related communications. However, this means that the Tribunal has had no opportunity to review and consider the Lease Agreement or the allegations made about its provisions by the Claimant in the motion described below.

4The Claimant commenced a motion on February 1, 2024, seeking a CO in relation to the Lease Agreement as follows:

A Confidentiality Order, pursuant to Rules 19.1 and 22.2 of the Rules of Practice and Procedure of the Ontario Land Tribunal (the “OLT Rules”), as set out in the draft attached as Schedule “A”.

5The Tribunal issued an Order dated January 26, 2024, which in turn issued a Procedural Order (“PO”) to govern the conduct of this proceeding. A hearing on Monday, November 4, 2024 was thereby scheduled to commence for a period of five days. Other dates were proscribed in the PO in relation to documentary and oral discovery and other events.

6A CO is not a normal course event in any litigation before the Ontario Land Tribunal (“OLT” or “Tribunal”), including in applications made under the Expropriations Act, R.S.O. 1990, c. E.27 (“Act”). As discussed further below, this is an extraordinary remedy which requires a careful balancing of interests by the Tribunal and will not be routinely imposed, nor is it viewed as a matter of top priority by the OLT long before a hearing commences – since the Parties themselves may make private arrangements as to how they wish to treat as “confidential information” during the course of proceedings that do not involve filings to or advocacy and appearances before the OLT.

7In due course, upon enquiry from the Tribunal, the Parties advised as to the current status of this proceeding and as to how matters have been handled in terms of the treatment of the Lease Agreement by the Parties. On July 17, 2024, counsel for the Claimant advised by letter that the Parties had, on consent, entered into their own confidentiality agreement in relation to matters concerning the Lease Agreement and that no documents or other communications about it have been filed with the Tribunal or otherwise made publicly available. As already noted, this is permissible as a matter of contract as between the Parties – and no documents of this type are typically ever filed with the Tribunal until just prior to the hearing (except perhaps during certain types of motion practice).

8The materials before the Tribunal on this motion (“CO Motion”), in addition to the July 17, 2024 letter described above are:

(a) Notice of Motion of Claimant dated February 1, 2024, comprising 16 pages; and

(b) Affidavit of Jay Stulberg, sworn January 31, 2024, comprising 46 pages;

9No materials were filed by York on the CO motion, but it is the understanding of the Tribunal that York takes no position on the CO Motion brought by the Claimant (although it consented to the form of confidentiality agreement now existing between the Parties). The Tribunal has been advised that all discovery has been completed and that the Parties are planning to have mediation in September 2024 in an attempt to resolve this proceeding prior to the November hearing. At the Tribunal’s request, the Claimant’s counsel have now provided a draft Hearing Plan which provides that approximately 13 hours of oral testimony are sought to be closed to the public under this CO Motion. This is a significant period of closed hearing time, in the Tribunal’s view.

ARGUMENTS/ANALYSIS

Timing of the Confidentiality Order Motion

10The Claimant has neither filed a factum nor provided any caselaw authority in support of the specific terms for the requested confidentiality order in the CO Motion. It simply cites Rule 19.01 and 22.2 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”), which state (emphasis below added):

19.1 Case Management Conference At the request of a party, on its own initiative or as may be required by legislation or regulation, the Tribunal may direct parties to participate in a case management conference conducted by a Member of the Tribunal, which can include settlement conferences, motions or preliminary hearing matters, such as to:

... (j) discuss issues of confidentiality, including any need to hold a part of the hearing in the absence of the public or to seal documents;

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.

11Another relevant provision of the Rules is Rule 22.1 (emphasis below added):

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.

12The Tribunal considered confidentiality orders in two recent cases: see McDonald’s Restaurants of Canada Ltd & 1444767 Ontario Inc. vs City of Toronto & TTC, 2023 CanLII 76839 (ON LT) (August 17, 2023) (“McDonalds v. Toronto”) and McDonald’s Restaurants of Canada Limited vs York (Region), 2023 CanLII 50965 (ON LT) (June 8, 2023) (“McDonalds v. York”). The McDonalds v. Toronto case was provided to both Parties’ counsel on December 22, 2023 for their consideration – and it is noted that the Claimant’s counsel acted for McDonald’s Restaurants in both cases and so is obviously aware of these Tribunal Decisions. As noted above, counsel for the Respondent in this proceeding has consistently advised the Tribunal that its client is not a ‘joint requestor’ of the CO and “takes no position” on the Claimant’s request for a CO and thus, unsurprisingly, has made no submissions in respect of either of the McDonald’s Decisions.

13However, the circumstances in both of the McDonald Decisions described in paragraph [12] above were different from those in this matter since this CO Motion is now being adjudicated relatively close to the scheduled hearing date. The concerns expressed by the Tribunal in both McDonald’s cases are not as germane to the current proceeding since here there is no over-broad request being made at an early juncture for detailed confidentiality restrictions.

14As pointed out in McDonalds v. Toronto (cited in paragraph [12]), 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.

15There is no substantial concern here (unlike in the two McDonald’s cases cited above) that the documents sought to be protected are partly undefined or may never be filed: if this matter proceeds to a hearing, the Parties will presumably be filing the applicable expert reports related to the Lease Agreement very soon in order to have the Tribunal adjudicate the Claimant’s compensation entitlement under the Act. Thus, the CO Motion comes at a more relevant time – again in distinction to the circumstances presented in the two McDonald’s cases.

16As part of its submissions, the Claimant’s counsel filed a short administrative Order issued in the McDonalds v. York case on May 13, 2024 - almost one year after the 2023 Decision in that case. The Claimant’s counsel has suggested that this Order was provided: “for the Tribunal’s consideration in case it assists with the determination of the present motion”. However, this Tribunal is unable to discern from that Order precisely what circumstances existed at the time the Order was granted since the preambles of the Order simply state that “the Tribunal is satisfied that the nature of the matters, including and related to the matters referenced in ‘Attachment A’ hereto, meet the threshold established in Rule 22.2”. Therefore, this Order does not assist this Tribunal with the adjudication of the matters raised in the CO Motion.

17As was the question raised in the two 2023 McDonald’s Decisions, 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.

18MacEwen filed an affidavit from Jay Stulberg, who is the property manager for Yorktown Square – he is not identified as an officer of the Claimant. His evidence simply recites certain descriptions and legal conclusions about the Lease Agreement and its confidentiality restrictions. He then states the following (below emphasis added):

…The Lease Agreement, related agreements and documents, and documents and information related to the negotiation of the Lease Agreement, contain confidential and proprietary information which, if made public, would likely be used by competitors and other parties to the disadvantage of the Claimants and Loblaw…

CONCLUSIONS

19The evidence of Mr. Stulberg is brief and conclusory in nature and inappropriately states legal conclusions. Parties seeking confidentiality orders from the Tribunal are encouraged to provide more fulsome and detailed supporting evidence, from a principal or senior officer of the party seeking the CO. As a general principle, the Tribunal will not find persuasive such bald statements as described in paragraph [18] above. Statement of legal principles or argument are rarely acceptable, especially in an affidavit from a fact witness who is not a lawyer.

20Given 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 alleged economic loss, competitive harm/disadvantage or the sensitivity of alleged proprietary information. This will better enable the Tribunal to determine under Rule 22.2 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…

21It 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.

22As a further matter of general principle, parties to proceedings before the OLT should understand that the fact that they may have reached terms as to a confidentiality agreement does not – and should not - bind the Tribunal to make an Order under Rules 22.1 or 22.2. Similarly, confidentiality clauses in other contracts between parties – such as in this case, apparently contained in a now five-year-old Lease Agreement – cannot bind the Tribunal to make such Orders. As noted, the Tribunal must respect the Legislature’s expression of the public interest in fully open and transparent public hearings and publicly available documents filed in connection with such hearings. Thus, it must carefully weigh the competing concerns of litigants, the majority of whom may well consider that certain information that they may present before the OLT is ‘confidential’ or ‘proprietary’. Finally, where the Tribunal does determine that a restriction should be imposed to limit public access, it will strive to do so in the most limited terms practicable.

23However, in these unique circumstances, and in reliance primarily upon the assertions made by counsel for the Claimant, and after some consideration of the consent by York, the Tribunal may be prepared to grant limited confidentiality Order in this case. However, such an Order will not be granted until after this Tribunal has had an opportunity to review the Lease Agreement. The Lease Agreement may be filed ‘under seal’ to the Tribunal pursuant to Rule 22.2 – i.e. on the basis that the Lease Agreement will not become publicly available except upon further Order of the Tribunal made only after prior notice to the Parties, to provide an opportunity for the Parties to first make further submissions.

24Thus, this Tribunal will receive a copy of the Lease Agreement - together with, if and as desired, a supplementary short submission as to the proper interpretation and impact of its confidentiality provisions on a proceeding before the OLT - both under seal. Following the review of those items, the Tribunal may issue a further Order granting a confidentiality order or may seek further submissions from the Parties.

ORDER

25THE TRIBUNAL ORDERS THAT:

(a) the written motion brought by the Claimant for a confidentiality order pursuant to Rules 19.1 and 22.2 of the Rules of Practice and Procedure of the Ontario Land Tribunal shall be adjourned until such time as the Claimant files with the Tribunal under seal a copy of the 2019 lease agreement entered into with Loblaw Properties Limited referenced in the Claimant’s Notice of Motion dated February 1, 2024 (“2019 Lease”);

(b) the Tribunal shall receive the 2019 Lease under seal and shall not permit public access to it except by further Order of the Tribunal;

(c) No Order granting public access to the 2019 Lease shall be granted by the Tribunal without prior notice to the Parties, who shall, in that event, be permitted to make further submissions; and

(d) In the event that the Tribunal issues a further Order granting a confidentiality order concerning matters related to the 2019 Lease, such Order shall not disclose any terms of the 2019 Lease.

26This Vice-Chair shall remain seized of this proceeding insofar as it involves the issuance of an Order under Rules 22.1 and 22.2 of the OLT Rules of Practice and Procedure.

“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.