Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 10, 2024
CASE NO(S).: OLT-23-000350
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended
Claimant: 1255870 Ontario Limited
Respondent: Metrolinx
Subject: Land Compensation
Property Address: 68-70 Parliament Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000350
OLT Lead Case No.: OLT-23-000350
OLT Case Name: 1255870 Ontario Limited v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Metrolinx
Request for: Request for Directions
Heard: June 28, 2024 in writing August 20, 2024 in writing subsequent to additional submissions from the Parties
APPEARANCES:
| Parties | Counsel |
|---|---|
| Metrolinx | C. Higgs, I. Mathany |
| 1255870 Ontario Limited (“1255870”) | J. Farber, M. Rutledge |
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This concerns a dispute arising from examinations for discovery conducted in an expropriations case. Since originally filing their motion materials in May 2024, the Parties have been able to resolve much of their dispute concerning questions posed at the examination for discovery of Peter Kircher, representative of 1255870, conducted on March 8, 2024.
2The current status of the issues is summarized in Attachment 1 to this Decision, which is a chart compiled by counsel for Metrolinx that includes a column of responses by counsel for 1255870.
3The materials submitted to the Tribunal included:
(a) Metrolinx Motion Record dated May 17, 2024, comprising 710 pages;
(b) Responding Motion Record of 1255870 dated May 28, 2024, comprising 1897 pages;
(c) Reply by Metrolinx to Responding Motion Record, dated May 31, 2024, comprising 65 pages;
(d) Metrolinx Brief of Authorities, dated May 17, 2024, comprising 60 pages;
(e) Metrolinx Supplementary Brief of Authorities, dated May 31, 2024, comprising 65 pages;
(f) Attachment 1: Undertakings Under Advisements Refusals Chart (“Unanswered / Incomplete Undertakings Chart”), dated August 20, 2024.
UNDERTAKINGS
4Question #146 sought a copy of any retainer agreement “between 1255870 Ontario Limited and/or Greenpark, and WE!S with respect to the concept plans to incorporate the Porsche dealership into a block redevelopment.” Counsel for 1255870 has advised that no such retainer agreement has been located. Thus, this undertaking has been met.
5However, pursuant to Question # 146, Metrolinx also sought:
an order permitting the examination of a representative of 125 Limited to explain, under oath, the instructions and discussions between 125 Limited, Greenpark and WE!S with respect to the concept plans to incorporate the Porsche dealership into the block redevelopment.
6To this, counsel for 1255870 says in its Responding Motion Record:
In 125 Limited's answer to UT 347, a link to emails pertaining to negotiations between Mr. Jakobek and Greenpark is provided. In the emails provided is a chain of emails between Monte Weis (WE!S), Lino Pellicano (Greenpark), and Tom Jakobek dated March 25, 2020 – April 16, 2020 which indicate that such correspondence sought by Metrolinx may be in the possession of Greenpark. However, to the best of 125 Limited's knowledge, information, and belief, it does not have any further documents related to this undertaking in its possession.
[…] Accordingly, the Tribunal should dismiss Metrolinx's request that the Tribunal direct 125 Limited to provide further documents and answers for UTs 146 and 334.
7In the Tribunal’s view, the response by 1255870 does not fully respond to Question #146, in that Metrolinx’s request for further examination is not dealt with. However, if there are no documents available to 1255870 it may be that such a further examination would be fruitless. Thus, the Tribunal shall leave this matter to the Parties to discuss and consider, although based on the materials filed, Metrolinx is entitled to reasonably pursue this examination on this matter for a period of up to one hour.
8The undertaking in Question 334 is “to provide any correspondence from 1255870 Ontario Limited or WE!S with Porsche with respect to the potential redevelopment of 68-70 Parliament Street that incorporated a new Porsche dealership.” Metrolinx now admits that this undertaking has been partially satisfied by the provision of additional correspondence but claims to be dissatisfied with some of the redactions made to that correspondence.