Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 21, 2024
CASE NO(S).: OLT-22-002694 (Formerly LC190028)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk
Respondent: Metrolinx
Subject: Land Compensation
Property Address/ Description: 856-866 Eglinton Avenue East
Municipality: City of Toronto
OLT Case No.: OLT-22-002694
Legacy Case No.: LC190028
OLT Lead Case No.: OLT-22-002694
Legacy Lead Case No.: LC190028
LPAT Case Name: 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk v. Metrolinx
Heard: July 30, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk | Jonathan Minnes, Kevin Dias, John Doherty (in absentia) |
| Metrolinx | Aisling Flarity, Mariana Cherkas, Christel Higgs (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JULY 30, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This Hearing was the third Case Management Conference (“Third CMC”) before the Tribunal with respect to a Notice of Arbitration and Statement of Claim filed by 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk (“Claimant”) against Metrolinx (“Metrolinx”) pursuant to s. 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (“Act”). The Claimant claims compensation arising out of the Expropriation of parts of the lands known municipally as 856-866 Eglinton Avenue in Toronto (“Subject Property”) by Metrolinx, pursuant to Plan of Expropriation No. AT3917599, which was registered on June 17, 2015 (“Expropriation”). The purpose of the Expropriation was for the construction of the Eglinton Crosstown LRT.
2On September 11, 2015, pursuant to s. 25 of the Act, Metrolinx served a formal offer of compensation on the Claimant in the amount of $1.00 as an immediate payment for the Expropriation, without prejudice to the Claimant’s rights. The Claimant accepted this offer, which was paid by Metrolinx.
3Two previous CMCs by way of Telephone Conference Calls have taken place on this matter, on May 25, 2020 (“First CMC”) and August 28, 2020 (“Second CMC”), with the Decisions having been issued on May 27, 2020 and September 3, 2020, respectively. The following took place:
a. At the First CMC, Counsel for the Parties updated the Tribunal regarding the status of various procedural matters in this proceeding. Production orders were made. A Hearing could not be scheduled at that time due to the impact of the COVID 19 pandemic and the inability of the Tribunal to hold hearings.
b. At the Second CMC, the Parties indicated that they intended to engage in Tribunal-assisted mediation. As a result, it was determined that another Status Hearing would be helpful after the mediation was completed. A date was scheduled, but no Status Hearing proceeded on that date.
4Since that time, the Claimant changed its Counsel. Though the Parties had filed their pleadings in 2019 and 2020, an Amended Notice of Arbitration and Statement of Claim was issued by an Order of this Tribunal on March 31, 2021. Metrolinx filed its Amended Reply on April 28, 2021.
5The Parties have since both changed Counsel, the Claimant for the second time. This CMC took place with the Parties’ new Counsels in attendance.
THIRD CMC
6At the Third CMC, the Claimant’s and Metrolinx’s Counsel advised that they intended to file further amended pleadings. They were in the process of exchanging their draft amended materials. They anticipated that the request to amend their pleadings would be on consent, and a request would be made to the Tribunal in writing. No motion date was required at this time to seek to amend the pleadings.
7The Parties did not file a Procedural Order (“PO”) prior to the CMC, but advised that a draft had been prepared and exchanged, and that it mirrored the Tribunal’s Sample Expropriation PO, found on the Tribunal’s website. They anticipated that it would be filed with the Tribunal on consent. The Tribunal directed the Parties to provide a draft PO to the Tribunal’s Case Coordinator by Friday, August 16, 2024. The Parties have now provided the PO, which is approved as attached to this Decision.
8The Parties expressed an interest in engaging in mediation but were not sure of the most appropriate time to do so. The Claimant’s Counsel stated that after witness statements were exchanged may be appropriate. Metrolinx’s Counsel explained that further discussions were required to determine the best time for a mediation. The Parties were directed to advise the Tribunal in writing should they reach a Settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
HEARING DATE
9The Parties requested that the Tribunal schedule a five-day Hearing for November 2025. The Tribunal enquired as to the number of days for the Hearing, in light of the fact that the pleadings were to be amended and the issues to be addressed would likely be amended as well. The Parties explained that the number of witnesses (based on expert reports that have been exchanged) would stay the same, despite the pleadings being amended, and as such, five days would be appropriate. The Tribunal directed that they advise the Tribunal at their earliest convenience if amending the pleadings impacts the number of days required for the Hearing.
10The Tribunal also enquired regarding the timeline of more than one year in advance of the Hearing. The Parties explained that as all were new Counsel on this matter, and the pleadings needed to be amended, the other steps in the process may need to be re-done as well. For example, amended Affidavits of Documents may be required. Additionally, the timeline contemplated took into account Counsels’ schedule and the potential for a mediation to be completed.
11The Tribunal proceeded to schedule this Hearing to take place by Video Hearing for five (5) days, commencing at 10 a.m. on Monday, November 24, 2025, continuing to Friday, November 28, 2025.
12On the applicable dates, the Parties are to use the following coordinates:
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access Code: 660-145-013
13Parties 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
14Persons 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.
15Individuals 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 Merit 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
16The TRIBUNAL ORDERS as follows:
a. The Procedural Order, attached as Schedule A, will govern these proceedings.
b. The Hearing in this matter is scheduled to take place by Video Hearing as set out above in this Decision.
17The 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.
SCHEDULE A
Ontario Land Tribunal Tribunal ontarien de d’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk
Respondent: Metrolinx
Subject: Land Compensation
Property Address/ Description: 856-866 Eglinton Avenue East
Municipality: City of Toronto
OLT Case No.: OLT-22-002694
Legacy Case No.: LC190028
OLT Lead Case No.: OLT-22-002694
Legacy Lead Case No.: LC190028
LPAT Case Name: 2180982 Ontario Inc. O/A Shoeless Joe’s and Kwon Jungsuk v. Metrolinx
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 on November 24, 2025, at 10:00 a.m. by video conference: https://global.gotomeeting.com/join/660145013.
The parties’ initial estimation for the length of the hearing is five (5) 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 and participants identified at the case management conference 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.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
The Claimant, 2180982 Ontario Inc. o/a Shoeless Joe’s, shall serve and file the Second Fresh as Amended Notice of Arbitration and Statement of Claim on or before Tuesday, September 10, 2024.
Metrolinx shall serve and file its Further Amended Reply on or before Monday, September 30, 2024.
The parties shall exchange their respective unsworn Further Affidavits of Documents and Productions by Tuesday, November 5, 2024, with sworn copies to be provided in advance of the examinations for discovery.
Examinations for Discovery of the representative of each party shall be completed on or before Friday, January 24, 2025. The parties’ consent to conducting examinations for discovery by way of videoconference.
Each party shall answer their respective undertakings arising from examinations for discovery on or before Friday, February 21, 2025.
Any motion arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be heard, in writing, by Monday, March 24, 2025, pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedure, or as the Tribunal may direct.
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 thirty (30) days of the of the Tribunal’s Decision on any discovery motion brought in accordance with paragraph 15.
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. This list must be delivered on or before Friday, May 23, 2025, and in accordance with paragraph 32 below. A party who intends to call an 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.
Expert witnesses in the same field shall have a meeting on or before Friday, September 26, 2025, 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 co-ordinator on or before Friday, October 17, 2025.
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 21 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.
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 21 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 32 below.
On or before Thursday, June 26, 2025, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 32 below.
Parties may provide to all other parties, and the OLT case co-ordinator, with a written response to any written evidence on or before Thursday, August 14, 2025, and in accordance with paragraph 32 below.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
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 on or before Monday, November 17, 2025 before the hearing that the written evidence is not part of their record.
The parties may make a request for consideration of mediation facilitated by the Tribunal through the Tribunal’s case-coordinator for this process on or before September 11, 2025.
Parties may request the leave of the Tribunal to provide written sur-reply to any written evidence, response or reply on or before Thursday, September 4, 2025, and in accordance with paragraph 32 below. If leave is granted, written sur-replies are due by Friday, October 31, 2025.
On or before sixty (60) days prior to the start of the hearing, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Wednesday, November 5, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 32 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 co-ordinator on or before Monday, November 3, 2025.
Any documents which may be used by a party in cross-examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before the first day of the hearing or in advance of the start of the cross-examination of any witness at the hearing.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before sixty (60) days prior to the start of the hearing 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, unless otherwise directed by the Tribunal. 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.
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 requests for adjournment.
This Member is not seized.
So orders the Tribunal.
Attachment 1
| Party | Party Status | Counsel / Representative |
|---|---|---|
| 2180982 Ontario Inc. o/a Shoeless Joe’s | Claimant | GOWLING WLG (CANADA) LLP Barristers & Solicitors 345 King Street West, Suite 600 Kitchener ON N2G 0C5 John Doherty (LSO#24491G) Tel: 519-575-7518 Fax: 519-571-5018 john.doherty@gowlingwlg.com Jonathan Minnes (LSO#70993I) Tel: 519-569-4561 Fax: 519-576-6030 jonathan.minnes@gowlingwlg.com |
| Metrolinx | Respondent | M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Aisling Flarity (LSO# 65500B) Tel: 416.947.6700 x 204 Email: aisling@mhlawyers.ca |
Attachment 2
OLT File No.: OLT-22-002694
ONTARIO LAND TRIBUNAL
IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E-26
AND IN THE MATTER OF AN ARBITRATION
B E T W E E N:
2180982 Ontario Inc. o/a SHOELESS JOE’S
Claimant
- and -
METROLINX
Respondent
TIMETABLE
| Task | Deliverable By |
|---|---|
| Second Fresh as Amended Notice of Arbitration & Statement of Claim to be filed on consent or by way of motion by | Tuesday, September 10, 2024 |
| Mediation Request | Wednesday, September 18, 2024 |
| Further Amended Reply to be filed to be filed on consent or by way of motion by | Monday, September 30, 2024 |
| Exchange of unsworn Affidavit of Documents | Tuesday, November 5, 2024 |
| Examinations for Discovery | Friday, January 24, 2025 |
| Undertakings to be Answered | Monday, March 24, 2025 |
| Any motions, in writing, arising from Examinations or Undertakings to be requested /scheduled | Thursday, May 15, 2025 |
| Any further undertakings to be answered following the motion | Within 30 days of receipt of Tribunal’s Order. |
| Exchange of Witness List | Friday, May 23, 2025 |
| Exchange of Witness Statements or Expert Reports | Thursday, June 26, 2025 |
| Meeting(s) of Like Experts | Thursday, July 24, 2025 |
| Exchange of Expert Reply Witness Statements / Reply Reports | Thursday, August 14, 2025 |
| Request Leave to produce Sur-Replies due to the Tribunal by | Thursday, September 4, 2025 |
| Preparation of Hearing Plan | Friday, October 3, 2025 |
| Confirm whether all hearing dates still required | Friday, October 17, 2025 |
| Agreed Statement of Facts | Tuesday, October 28, 2025 |
| Sur-Reply to be provided by | Friday, October 31, 2025 |
| Request to Admit | In accordance with the Rules of Civil Procedure. |
| Metrolinx to arrange for Court Reporter agreed to by the Parties | ASAP |
| Joint Document Book | Monday, November 3, 2025 |
| Visual Evidence | Wednesday, November 5, 2025 |
| Advise Tribunal if any witnesses are no longer required | Monday, November 17, 2025 |
| Documents to be used in cross-examination | To be provided on or before the first day of the hearing or in advance of the start of cross-examination |
| Hearing | Monday, November 24 to Friday, November 28, 2025 |
Attachment 3
OLT File No.: OLT-22-002694
ONTARIO LAND TRIBUNALS
IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E.26 AND IN THE MATTER OF AN ARBITRATION
B E T W E E N:
2180982 ONTARIO INC. O/A SHOELESS JOE’S
Claimant
- and -
METROLINX
Respondent
ISSUES LIST
- The issues shall be those as set out in the pleadings delivered by the Parties.
a. Second Fresh as Amended Notice of Arbitration & Statement of Claim
b. Further Amended Reply
Attachment 4
- Claimant evidence in-chief
- Claimant evidence in cross-examination
- Metrolinx evidence in-chief
- Metrolinx evidence in cross-examination
- Claimant evidence in Reply, if any