Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
August 08, 2024
CASE NO(S).:
OLT-24-000140
PROCEEDING COMMENCED UNDER subsection 7 of the Expropriations Act, R.S.O. 1990, c. E.26.
Expropriating Authority
Metrolinx
Claimant (Owner):
863880 Ontario Limited
Claimant (Owner):
First Capital (King Liberty-Retail) Corporation
Claimant (Tenant):
A&P Properties Limited, now Metro Ontario Real Estate Limited
Property Address:
61-75 Hanna Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-24-000140
OLT Lead Case No:
OLT-24-000140
OLT Case Name:
863880 Ontario Limited v Metrolinx
Heard:
July 30, 2024 by Video Hearing
Parties
Counsel
Metrolinx
Aisling Flarity
Jessica Karbon
First Capital (King Liberty-Retail)
Ajay Gajaria
Corporation
863880 Ontario Limited
Roberto Aburto
Kelly Duquette
A&P Properties Limited (now Metro
Shane Rayman
Ontario Real Estate Limited)
Stephanie Fong
REPORT of the tribunal DELIVERED BY HUGH S. WILKINS
1This is the Report of a Hearing of Necessity held under s. 7 of the Expropriations Act requested by First Capital (King Liberty-Retail) Corporation (“First Capital”), 863880 Ontario Limited (“863880”), and A&P Properties Limited (now Metro Ontario Real Estate Limited) (“Metro”) regarding the proposed expropriation of portions of the properties located at 61-75 Hanna Avenue (“subject properties”), in the City of Toronto. The Report relates to an application by an expropriating authority, Metrolinx, for approval to expropriate an interest in the subject properties.
2The purpose of a Hearing of Necessity is for the Tribunal to inquire into whether the proposed taking of lands is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority. Pursuant to s. 7 of the Expropriations Act, the Tribunal is to issue the Report of the hearing to the Minister of Transportation providing a summary of the evidence and arguments advanced by the Parties, the Tribunal’s findings of fact, and the Tribunal’s opinion on the merits of the application for approval to expropriate the subject interest in land and the reasons for the Tribunal’s opinion.
3The following documents were entered as Exhibits in Evidence at the Hearing:
Exhibit 1: Notice of Grounds, dated July 11, 2024
Exhibit 2: Metrolinx’s Document Book, dated July 11, 2024
Exhibit 3: Affidavit of Andrew Brown, dated June 25, 2024
Exhibit 4: Proposed Easement Language, dated July 25, 2024
Exhibit 5: Draft Plan for the subject properties
The Application for Approval to Expropriate
4By Application dated December 13, 2023, Metrolinx seeks approval from its approving authority, the Minister of Transportation, to expropriate portions of the subject properties for the purposes of providing construction access to the adjacent railway corridor to the north of the properties to facilitate work on the tracks. Following the service of notice of the applications, all of the Parties engaged in discussions. As a result of these discussions, Metrolinx agreed to revise its application so that the proposed taking would take the form of a revised temporary easement along the subject properties (see proposed revised easement language attached as Attachment 1 to this Report). The amount of land taken would be reduced in size from the original request and the taking would not be exclusive in nature. Based on the agreement reached among the Parties, owners and tenants of the subject properties would retain access to the loading dock and parking spaces in the affected area. The size of the taking would be reduced from 1,400 square metres (“m2”) to 560 m2 (see the revised draft R Plan (Exhibit 5), which is attached as Attachment 2 to this Report).
Summary of the Evidence and Arguments Advanced by the Parties
Evidence
5David Hopper is a civil engineer. He provided evidence on behalf of Metrolinx. He was qualified by the Tribunal to provide opinion evidence in the area of civil engineering.
6None of the other Parties produced witnesses.
7Mr. Hopper reiterated that the proposed taking is to provide construction access to the adjacent railway corridor to facilitate work on the tracks. He stated that Metrolinx would install a fence to control vehicular and pedestrian access into the area in question. He said the proposed taking would be for non-exclusive use of the area so that deliveries to the subject properties and parking can be maintained. He said that construction vehicles would not be permitted to park or queue on the lands. He said activity at the site would occur throughout the week and at all times of day.
8Mr. Hopper stated that the purpose of the track work is part of Metrolinx’s SmartTrack Program and the construction of the new King-Liberty station located at King Street West and Sudbury Street. The new station will be on the Union Station to Kitchener commuter railway line. He said it will connect with the Bloor Street Toronto Transit Commission (“TTC”) subway and the Kitchener Rail Corridor.
9Mr. Hopper reviewed Metrolinx’s grounds for the taking as set out in its Notice of Grounds. He stated that the lands to be taken are in connection with multiple objectives, including:
to respond to increased public demands for service by GO Transit and improve and integrate transportation within the Greater Toronto and Hamilton Area by improving public access to transit services, increasing those services, and electrifying the corridor;
to implement Metrolinx’s GO Expansion program to enhance transit service in the City of Toronto including the integration of public transit by providing local residents and workers with improved access to transit to Union Station, the airport, and the Kitchener Corridor;
to implement the New SmartTrack Stations Environmental Project Report, dated July 2018, which demonstrated that there would be limited impacts caused by the construction of the King-Liberty Station;
to implement and integrate the SmartTrack program with the GO Expansion program to construct and maintain improved rail services;
to complement the Kitchener Rail Corridor expansion with a fourth track to facilitate increased transit services and provide for improved GO Train services and to facilitate the future construction of tracks for increased service on the Milton Rail Corridor;
to improve infrastructure, signals, and equipment to enhance GO Transit service;
to provide a safe separation between trains, motor vehicles and pedestrians, including during construction, through the installation of signage, fences, and security gates;
to achieve a safe, attractive and comfortable environment for transit riders and pedestrians;
to work with local municipalities and community groups to assist in encouraging active transportation between municipal roads, trails and GO Transit facilities; and
to address infrastructure expansion requirements of GO Transit in a planned and organized manner.
10Mr. Hopper stated that the King-Liberty area is an area of intensification with continuing population and employment growth. He stated that the proposed project will provide for increased access to public transit to accommodate this growth.
11Mr. Hopper stated that the revised scope of the taking, as agreed among the Parties, allows for a non-exclusive easement for a reduced area of the subject properties, which is temporary in nature, and will ensure the achievement of Metrolinx’s objectives.
Submissions
12Metrolinx submits that the revised proposed taking is fair, sound and reasonably necessary as well as reasonably defensible. Metrolinx submits that the proposed taking as set out in the revised easement language and draft Plan for the subject properties will ensure that Metrolinx’s objectives as set out in its Notice of Grounds will be achieved.
13First Capital, 863880, and Metro support the proposed revised taking and expressed support for Metrolinx’s engagement and collaborative efforts with the Parties through the Hearing of Necessity process.
The Tribunal’s Findings of Fact
14The Tribunal finds that the proposed expropriation of the subject properties will support the expansion and improvement of public transit services to accommodate projected future demand and does so in a manner that takes into account the needs of the affected property owners and tenants.
The Tribunal’s Opinion on the Merits of the Application for Approval and the Reasons for the Opinion
15The Tribunal finds that the proposed expropriation of the subject properties is fair, sound and reasonably necessary in the achievement of Metrolinx’s objectives. As noted above, it finds that the proposed revised taking will support the expansion and improvement of public transit services in a manner that takes into account the needs of the affected property owners and tenants. The Tribunal notes that the proposed revisions to the proposed taking are on the consent of all of the Parties.
16The Tribunal finds that the proposed revised taking is reasonably defensible and should be approved.
17No costs were requested.
“Hugh S. Wilkins”
HUGH S. WILKINS
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 1
Attachment 2