Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 29, 2024

CASE NO(S).: OLT-24-000119

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

Claimant: 5th Developments Limited Partnership

Respondent: County of Prince Edward

Description: Determination of compensation

Property Address: Alexander Island (Alexander Island)

Municipality/UT: Prince Edward/Prince Edward

OLT Case No.: OLT-24-000119

OLT Case Name: 5th Developments Limited Partnership v. Prince Edward (County)

Heard: July 31, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
5th Development Limited Partnership (“Claimant”)	Ajay Gajaria
Prince Edward County (“County”)	Suzanne Hunt

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON July 31, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Claimant served a Statement of Claim on the County on February 20, 2024, seeking compensation for loss or damage caused by injurious affection (no land taken) pursuant to section 21 of the Expropriations Act, R.S.O 1990, c. E.26, with respect to lands known as Alexander Island in the County (“Lands”). The Lands are currently vacant and undeveloped. The County filed its Reply to the Statement of Claim as directed by the Tribunal at the first Case Management Conference (“CMC”).

2On July 31, 2024, the Tribunal held this second CMC to organize the Appeal and establish next steps in this proceeding.

NEXT STEPS

3Counsel for the Parties informed the Tribunal that they have discussed a draft Procedural Order (including the Issues List). They undertook to exercise best efforts to finalize and file with the Tribunal a draft Procedural Order by Wednesday, August 14, 2024. The Tribunal directed that the draft Procedural Order be filed by that date. A draft Procedural Order was filed with the Tribunal on Thursday, August 15, 2024.

4The Parties requested that the Tribunal set a 10-day Merit Hearing to consider this matter. The Tribunal found that setting a hearing date was reasonable in the circumstances and accordingly directed that a 10-day Merit Hearing commence on Monday, August 11, 2025, at 10 a.m., by Video Hearing.

5Parties 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.

GoTo Meeting: https://global.gotomeeting.com/join/660145013

Access code: 660-145-013

6Parties 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.

7Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

8Individuals 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 Video Hearing 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

9THE TRIBUNAL ORDERS:

a. Its directions in this Decision; and,

b. The Procedural Order, including the Issues List, attached as Attachment A to this Order, is approved.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS 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.

Attachment A

CASE NO(S).: OLT-24-000119

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

Claimant: 5th Developments Limited Partnership

Respondent: County of Prince Edward

Description: Determination of compensation

Property Address: Alexander Island (Alexander Island)

Municipality/UT: Prince Edward/Prince Edward

OLT Case No.: OLT-24-000119

OLT Lead Case No.: OLT-24-000119

OLT Case Name: 5th Developments Limited Partnership v. Prince Edward (County)

PROCEDURAL ORDER

1. 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

2. The video hearing will begin on Monday, August 11, 2025 at 10:00 a.m. by Video Hearing.

3. The parties’ initial estimation for the length of the hearing is ten (10) 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.

4. The parties are set out in Attachment 1.

5. The procedural timetable of pre-hearing steps is set out in Attachment 2 to this Order.

6. 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.

7. 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.

8. All parties, counsel and witnesses, are expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Pleadings

9. The Claimant, 5th Developments Limited Partnership, served and filed a Notice of Arbitration and Statement of Claim on January 29, 2024.

10. The Respondent, Prince Edward County, served and filed a Reply on July 17, 2024.

Discovery

11. Affidavits of Documents (together with production briefs of the documents) shall be exchanged by December 20, 2024.

12. Examinations for Discoveries of the representative of each party shall be completed by February 20, 2025. Any appraisal reports to be relied upon pursuant to paragraph 22, shall be provided at least December 20, 2024, unless the Tribunal orders otherwise as provided in the Tribunal’s Rules of Practice and Procedure (“OLT Rules”) 26.21.

13. All undertakings provided at the Examination for Discovery of the parties shall be answered by March 20, 2025.

14. Any motion(s) arising out of the Examinations for Discovery shall be filed with the Tribunal by April 21, 2025 and shall be heard on a date and time to be determined by the Tribunal, if necessary. The OLT Rules apply in relation to any Motion(s) arising out of the discovery process. Should the parties agree that a motion day is not required, the parties agree to advise the Tribunal as soon as possible.

15. 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 30 days of the discovery motion before the Tribunal.

Mediation

16. The parties are directed pursuant to Rule 26.6 to confer to discuss participating in a mediation for the purpose of resolving all or part of the claim and the parties shall comply with the provisions of Rule 26.7.

17. The parties agree that, if participation in a mediation is agreed to by both parties, the parties are to file with the Registrar an Expropriation Mediation Request Form pursuant to Rule 26.5 on or before April 21, 2025.

18. If the parties agree to a mediation, the mediation shall take place on or before May 20, 2025.

Evidence

19. 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 April 21, 2025.

20. Expert witnesses in the same field shall have a meeting by May 20, 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 by May 30, 2025.

21. 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 23. 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. The 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 and a signed Acknowledgement of Expert’s Duty.

22. 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 23. 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 23.

23. On or before June 11, 2025, the parties shall provide copies of their respective expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 31 and subject to paragraph 12.

24. Parties may provide to all other parties and the OLT case co-ordinator a written response or reply to any written evidence on or before July 11, 2025 and in accordance with paragraph 31.

Requirements Prior to the Hearing

25. On or before July 21, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

26. On or before July 28, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 31. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

27. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 28, 2025.

28. 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 by at least July 28, 2025 that the written evidence is not part of their record.

29. Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Tribunal Rules 1.4 and 26.3 shall serve such request on the party opposite by at least July 21, 2025.

30. The parties shall prepare and file a hearing plan with the Tribunal on or before August 4, 2025 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.

31. All filings shall be submitted electronically and in hard copy. 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.

Adjournments

32. 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 such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1 – List of Parties

Party	Party Status	Counsel / Representative
5th Developments Limited Partnership	Claimant	Aird & Berlis LLP Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 David Neligan Tel: 416.865.7751 Email: dneligan@airdberlis.com
Prince Edward County	Respondent	Templeman LLP 205 Dundas Street East, Suite 200 PO Box 234 Belleville, ON K8N 5A2 Suzanne E. Hunt Tel: 613-966-2620 x.2129 Email: shunt@tmlegal.ca

Attachment 2 – Timetable

Event	Date
Exchange Affidavit of Documents	December 20, 2024
Examinations for Discovery	February 20, 2025
Appraisal Reports to be exchanged subject to direction of the Tribunal	December 20, 2024
Undertakings to be Answered	March 20, 2025
Any motions arising from Examinations or Undertakings to be requested /scheduled	April 21, 2025
Any further undertakings to be answered following the motion	30 days from the date of the discovery motion, if any
Mediation	May 20, 2025
Exchange of Witness List	April 21, 2025
Meeting(s) of Like Experts	May 20, 2025
Agreed Statement of Facts	May 30, 2025
Exchange of Expert Witness Statements / Reports / Lay Witness Statements	June 11, 2025
Exchange of Expert Reply Witness Statements / Reply Reports	July 11, 2025
Request to Admit	July 21, 2025
Confirm whether all hearing dates still required	July 21, 2025
Arrange for Court Reporter	July 21, 2025
Joint Document Book	July 28, 2025
Visual Evidence	July 28, 2025
Preparation of Hearing Plan	August 4, 2025
Hearing	August 11, 2025

Attachment 3 – Issues List

1. The determination of compensation owed to the Claimant for the reduction in market value of the Subject Property resulting from the County’s removal of access to the Subject Property through By-law 160-22;
2. The determination of compensation attributable to personal and business damages resulting from the County’s removal of access to the Subject Property through By-law 160-22;
3. The determination of interest and costs payable to the Claimant pursuant to sections 32 and 33 of the Expropriations Act, R.S.O. 1990, c.E.26, as amended, and the Courts of Justice Act, R.S.O. 1990, c. C.43;
4. The determination of the Claimant’s standing to bring the Claim;
5. The determination of whether the claim is statute-barred pursuant to section 22 of the Expropriations Act, R.S.O. 1990, c.E.26, as amended and section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B, as amended;
6. The determination of whether any injurious affection claimed by the Claimant resulted from the construction and not the use of the works pursuant to sections 1(1) and 21 of the Expropriations Act, R.S.O. 1990, c.E.26, as amended.

Attachment 4 – Order of Evidence

1. 5th Developments Limited Partnership
2. Prince Edward County
3. 5th Developments Limited Partnership in reply, if necessary