Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 11, 2024

CASE NO(S).: OLT-23-000473

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

Claimant: Port Lands Land Co. Limited Partnership

Respondent: City of Toronto

Subject: Land Compensation

Property Address/ Description: 300 Commissioners Street

Municipality: City of Toronto

OLT Case No.: OLT-23-000473

OLT File No.: OLT-23-000473

OLT Case Name: Port Lands Land Co. Limited Partnership v. Toronto (City)

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

Request by: Port Lands Land Co. Limited Partnership

Request for: Request for Directions

Heard: August 30, 2024 by video hearing

APPEARANCES:

Parties

Counsel

Port Lands Land Co. Limited Partnership

Rodney Gill

Ian Andres

City of Toronto

Mark Piel

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON August 30, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was an interesting, contested motion by Port Lands Land Co. Limited Partnership (“Claimant”) seeking an adjournment (“Motion”) of the imminent 20-day hearing scheduled almost one year ago on consent to commence on Monday, September 16, 2024, before the Tribunal (“Hearing”). That Hearing concerns various claims brought under section 26(1) of the Expropriation Act (“Act”) by the Claimant against the City of Toronto (“Respondent” or “City”). The Claimant claims compensation arising out of the Expropriation by the Respondent of the leasehold interests in the lands municipally known as 300 Commissioners Street in the City (“Subject Property”), pursuant to Expropriation Plan AT5306866, which was registered on November 29, 2019.

2The Claimant brought this adjournment Motion because it eloquently argued that an application it filed in the Superior Court dated August 16, 2024 (“Application”) may render the Hearing ‘moot’. In that Application, the Claimant seeks certain relief under section 41 of the Act which states (below emphasis added):

“Abandonment of expropriated land

41 (1) Where, at any time before the compensation upon an expropriation is paid in full, the land or any part thereof is found to be unnecessary for the purposes of the expropriating authority or if it is found that a more limited estate or interest therein only is required, the expropriating authority shall so notify each owner of the abandoned land, or estate or interest, who is served or entitled to be served with the notice of expropriation, who may, by election in writing,

(a) take the land, estate or interest back, in which case the owner has the right to compensation for consequential damages;

(b) require the expropriating authority to retain the land, estate or interest, in which case the owner has the right to full compensation therefor.

Revesting

(2) Where all the owners elect to take the land, estate or interest back under clause (1) (a), the expropriating authority may, by an instrument signed by it and registered in the proper land registry office and served on each owner, declare that the land or part thereof is not required and is abandoned by the expropriating authority or that it is intended to retain only such limited

estate or interest as is mentioned in the instrument, and thereupon,

(a) the land declared to be abandoned revests in the owner from whom it was expropriated and those entitled to claim under the owner; or

(b) in the event of a limited estate or interest only being retained by the expropriating authority, the land so revests subject to such limited estate or interest.”

3The Claimant contends that only the Court may make determinations under section 41 of the Act, even though it sought that same relief in its statement of claim in this proceeding delivered in June, 2023. However, the Claimant waited until August 16, 2024 to take an active step before the Court. Therefore, the City argues that the Claimant has waited far too long to do so, although it actually seems to agree that the Ontario Land Tribunal (“OLT”) has no jurisdiction under section 41 of the Act.

4The City adamantly opposed the adjournment request on the basis that it is prepared for and ready to proceed with the Hearing. The Claimant concedes that it is also prepared for the Hearing but has instead decided that it now prefers to have its Application heard first.

5The most curious aspect of this Motion is that at its essence, the request for an adjournment is based upon (a) an assertion that the OLT has no jurisdiction to make any adjudication or determination under section 41 of the Act; and (b) that the OLT ought to accept that proposition and hence defer to the Court with respect to the Application by agreeing to adjourn the long-scheduled Hearing. Counsel for both Parties are to be commended for their thorough and forceful written and oral submissions which were of great assistance to this Tribunal.

6Significantly, the Parties acknowledged that no issue of the OLT’s jurisdiction under section 41 of the Act (or otherwise) was being pursued on this Motion. Similarly, in the Application, the Claimant also does not seek any determination as to the OLT’s jurisdiction. Thus, it is apparent that the Claimant and perhaps also the City, have simply agreed among themselves that the OLT has no jurisdiction.

7The core relief sought by the Claimant on the Application is:

“(a) a declaration that the Leasehold Interest (as defined below) is unnecessary for the

purposes for which it was expropriated by the City of Toronto (“City”);

(b) an order requiring the City to serve notice under subsection 41(2) of the

Expropriations Act advising of…[Claimant’s]… option to elect to: i) take the Leasehold

Interest back and its right to seek consequential damages; or ii) require the City to

retain the Leasehold Interest and obtain full compensation therefor;

unnecessary for the purposes for which it was expropriated by the City;

(d) in the further alternative to a), a declaration that only the taking of a more limited

estate or interest than the Leasehold Interest is required for purposes for which the

Leasehold Interest was expropriated;

(e) in the alternative to b), an order requiring the City to serve notice under section 41

of the Expropriations Act advising of…[Claimant’s]option to elect to: i) take a portion of

the Leasehold Interest back and its right to seek consequential damages; or, ii)

require the City to retain the Leasehold Interest and obtain full compensation

therefor;”

8The materials before the Tribunal on the Motion were:

(a) Claimant’s Motion Record, comprising 738 pages;

(b) City’s Responding Motion Record, comprising 230 pages; and

THE TRIBUNAL DECLINES TO EXERCISE ITS DISCRETION TO GRANT THE ADJOURNMENT OF A LONG-FIXED HEARING DATE

9The Ontario Land Tribunal Act S.O. 2021, C. 4, Sched. 6 (“OLTA”) under Part III empowers the Tribunal to make Rules of Practice & Procedure (“Rules”). Rule 17 of the Rules states (below emphasis added):

“ADJOURNMENTS

17.1 Hearing Dates Fixed Hearing events will take place on the date set unless the Tribunal

agrees to an adjournment. Adjournments will not be allowed that may prevent the Tribunal from

completing and disposing of its proceedings within any applicable prescribed time period.

17.2 Requests for Adjournment if All Parties Consent If all of the parties agree, they may

make a written request to adjourn a hearing event. The request must include the reasons, a

suggested new date, and the written consents of all parties. However, the Tribunal may require

that the parties attend in person or convene an electronic hearing to request an adjournment,

even if all of the parties consent. The consenting parties are expected to present submissions to

the Tribunal on the application of any prescribed time period to dispose of the proceeding.

17.3 Requests for Adjournment without Consent If a party objects to an adjournment

request, the party requesting the adjournment must bring a motion at least 15 days before the

date set for the hearing event. If the reason for an adjournment arises less than 15 days before

the date set for the hearing event, the party must give notice of the request to the Tribunal and to

the other parties and serve their motion materials as soon as possible. If the Tribunal refuses to

consider a late request, any motion for adjournment must be made in person, at the beginning of

the hearing event.

17.4 Emergencies Only The Tribunal will grant last minute adjournments only for

unavoidable emergencies, such as illnesses so close to the hearing date that another

representative or witness cannot be obtained. The Tribunal must be informed of these

emergencies as soon as possible.

17.5 Powers of Tribunal upon Adjournment Request The Tribunal may,

(a) grant the request;

(b) grant the request and fix a new date or, where appropriate, the Tribunal will schedule a case

management conference on the status of the matter;

(d) deny the request, even if all parties have consented;

(e) direct that the hearing proceed as scheduled but with a different witness, or evidence on

another issue;

(f) grant an indefinite adjournment, if the Tribunal finds no substantial prejudice to the other

parties or to the Tribunal’s schedule and the Tribunal concludes the request is reasonable for the

determination of the issues in dispute. In this case, a party must make a request, or the Tribunal

on its own initiative may direct, that the hearing be rescheduled or resumed as the case may be;

(g) convert the scheduled date to a mediation or case management conference; and

(h) make any other appropriate order.”

10As noted, the only issue for determination on this Motion is whether the Tribunal ought to exercise its discretion under the Rules to grant the adjournment.

11The OLT has clear and exclusive powers under the OLTA and its Rules to decide whether an adjournment of any proceeding ought to be granted as a matter of its sole discretion. At a case management conference (“CMC”) held in September 2023, the Parties agreed to the terms of the governing Procedural Order (“PO”) and to the scheduling of this 20-day hearing on Monday, September 16, 2023. This was captured in the Tribunal’s Memorandum of Oral Decision issued on October 3, 2023.

12The Tribunal has a strong interest in maintaining the integrity of its proceedings and in particular, the ‘sanctity’ of its fixed hearing dates. Over the last year, the OLT dealt with over 1600 new cases and scheduled over 3400 hearing events. Ontario has over the last several years, significantly increased its investment in the OLT no doubt with the expectation that it will expeditiously, efficiently and fairly exercise its adjudicative mandate. The Tribunal sees great value in maintaining its fixed hearing schedule, which is in the best interests of all parties and stakeholders who appear before and interact with the OLT. When the Tribunal sets aside substantial time in its calendar for the purpose of a lengthy hearing, a last-minute adjournment simply means that those hearing days are ‘wasted’ and cannot be utilized for other long hearings – since from a practical standpoint, another proceeding cannot be substituted on such short notice.

13Therefore, the issue is not whether there is substantial evidence of prejudice to a Party opposing an adjournment, nor is there any obligation of that Party to marshal such evidence. The Tribunal assumes that considerable time, effort and expense is incurred by all Parties particularly when an agreed, fixed long hearing date is imminent. Of course, the Tribunal itself also expends its own resources in the case management of proceedings and in the finalization of a PO. It is notable to this Tribunal that no explicit mention was made at the CMC – or at any point until just before the filing of this Motion – that the Claimant needed to pursue a threshold jurisdictional issue requiring determination that could impact the Hearing or its fixed commencement date.

14Based on the materials submitted and the timing of the adjournment request, the absence of any circumstances of ‘emergency’ as described in Rule 17 of the Rules and in light of the prejudice and costs that would naturally be incurred, as a matter of its sole discretion under OLTA and the Rules, the Tribunal denies the request for an adjournment. In light of the stark opposition of the City, and of the extraordinary and unusual basis for this sudden adjournment request, the Tribunal declines to exercise its power to grant an adjournment of the hearing which is scheduled to commence on Monday, September 16, 2024 for a period of 20 days. The Tribunal agrees with the City’s submission that the Claimant has waited far too long to seek this adjournment. Moreover, the Tribunal does not accept the rationale urged upon it by the Claimant. Additionally, the Tribunal accepts and agrees with counsel for the City that the City will be prejudiced by any adjournment as it has incurred the significant costs of preparing for the upcoming hearing and is absolutely ready to proceed with the hearing on Monday, September 16, 2024.

THE TRIBUNAL’S JURISDICTION UNDER SECTION 41 OF THE ACT IS NOT DETERMINED ON THIS MOTION AND IS NOT A PROPER BASIS FOR A SUDDEN AND LATE ADJOURNMENT REQUEST

15As noted, although much energy was devoted to legal arguments by the Claimant’s counsel pertaining to the question of the Tribunal’s jurisdiction, both Parties conceded that this issue had not been brought before the Tribunal on this Motion.

16It is not for this Tribunal to make any determination with respect to the Application recently launched by the Claimant. However, in this Tribunal’s view, it is completely unprecedented for a Party before the OLT to:

(a) commence a proceeding under the Act claiming compensation and also seeking relief under section 41 of the Act;

(b) actively participate at a CMC and seek then to agree to a fixed hearing date and a governing PO

(d) decline an opportunity for a further CMC that had been scheduled under the PO for July 10, 2024;

(e) prepare for the hearing by delivering witness statements and expert reports in accordance with the PO;

(f) suddenly commence a Superior Court Application only weeks before the Hearing because it has unilaterally decided that some aspect of the relief it has claimed cannot be adjudicated by the OLT; then

(g) point to that Application as being proper grounds justifying an adjournment of the hearing date some two weeks prior to its start date.

17It is well accepted that the OLT has the power to consider its own jurisdiction and neither Party disputed this in their oral or written submissions on this Motion. Under the OLTA, it is also provided that:

Exclusive jurisdiction

8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.

Same

(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

18Although this Tribunal – for the reasons stated above – makes no findings in this Decision as to its jurisdiction under section 41 of the Act, the Tribunal pointed out to the Parties during their submissions that it seems clearly arguable that there is no express wording in section 41 that limits or excludes the power of the OLT in a proceeding to make findings or determinations under that provision. Unlike many other sections of the Act, there is also no language in section 41 that requires a Judge to take any action – for one example to the contrary, the immediately preceding section 40 seems clear (below emphasis added):

“Warrant to put down resistance to entry, etc.

40 (1) Where resistance or opposition is made to the expropriating authority or any person authorized by it in entering upon, using or taking possession of land when it is entitled so to do, it may apply to a judge for a warrant directing the sheriff to put down the resistance or opposition. R.S.O. 1990, c. E.26, s. 40 (1).

Hearing

(2) The judge shall, in writing, appoint a time and place for the hearing of the application and in the appointment may direct that it shall be served upon such person as the judge may prescribe. R.S.O. 1990, c. E.26, s. 40 (2).

Issue of warrant

(3) On proof of the resistance or opposition, the judge may issue a warrant. R.S.O. 1990, c. E.26, s. 40 (3).

Return

(4) The sheriff shall forthwith execute the warrant and make a return to the judge of the execution thereof.”

19The Tribunal also noted that there is no apparent wording in section 41 that would require the Tribunal to make an order to “re-convey”, “re-vest” or “grant back” property to an Owner where the evidence establishes that the expropriating authority no longer requires all or part of the subject property expropriated, which is part of the relief sought in paragraph 54 of the Claimant’s Statement of Claim (“The Claimant claims for revesting of its interest in the Expropriated Property and consequential damages pursuant to section 41 of the Act.”). Although this is a matter for determination by the presiding Member at the Hearing, it would seem logical that if based on the evidence heard, the Tribunal decided to make findings that demonstrate the applicability of section 41, then the outcome might simply be that based on such findings the expropriating authority may be required to deliver the requisite notice to the Claimant which then would presumably have the election described in section 41(1). This seems implicitly acknowledged by the Claimant’s prayer for relief in the Application.

20Thus, the Tribunal observes (without deciding the point) that there would appear to be no need for the Tribunal to ever make an Order of “reconveyance” or “revesting”. Such a step appears to be a matter for the authority to effect through an instrument, as provided in section 42(2) of the Act.

21The Claimant argued that the adjournment ought to be granted to permit it to pursue its Application because it alone is a ‘fair, cost-effective and expeditious’ method of resolving matters under section 41 of the Act. The genesis of this position was the Claimant’s argument that it is virtually assured that the OLT has no jurisdiction to make any adjudication under section 41. Had this really been the prevailing concern of the Claimant, one might have expected that at the CMC, it would have sought the scheduling of a motion before the Tribunal to determine that issue – or that the Claimant would have in any event commenced such a motion well prior to the current Motion. As noted above, the prospect of section 41 of the Act being a matter to be dealt with is not new: It was set out in the Statement of Claim delivered more than one year ago in June, 2023, well prior to the CMC.

22The Claimant’s counsel cited considerable jurisprudence as to the general limits of the authority of administrative tribunals, which is unnecessary for this Tribunal to consider on this Motion since no specific exercise of the Tribunal’s powers under the Act or OLTA is at issue. Counsel for the Claimant could only proffer one 51-year-old Decision of the Land Compensation Board (“LCB”) that resembles the circumstances of this case: Marcus et al v. Municipality of Metropolitan Toronto 1973 CarswellOnt 1357, 5 L.C.R. 78 (“Marcus”). An appeal from Marcus was later dismissed without reasons by the Court of Appeal.

23Leaving aside the fact that Marcus was decided long ago under a different version of the Act, a different enabling statute and is not binding on the OLT, this Decision is also distinguishable. As noted at the outset by the LCB panel (below emphasis added):

“1. As set out in, and quoting verbatim from, the notice of motion the claimant applies:

for an Order pursuant to Section 42 of The Expropriations Act R.S.O. 1970 Chapter 154 requiring the Municipality of Metropolitan Toronto to grant back to Irving Marcus the strip of land being about seven feet wide and about one hundred and sixteen feet long and being contiguous to the western boundary the property now owned by Irving Marcus at the southeast corner of Islington Avenue and the Queensway in the Borough of Etobicoke in the Municipality of Metropolitan Toronto.

2 The respondent submits that the Board does not have jurisdiction to make such an order.”

24The above quotation from Marcus demonstrates that the Claimant in that case sought an Order of reconveyance. No such Order is before this Tribunal on this Motion nor has it yet been formally requested at the Hearing. As noted above, it also seems arguable that no such Order is required or even contemplated by the current section 41 of the Act. Apparently, at the Hearing, the Claimant may call evidence – and/or seek to rely on admissions - to establish that “the land or any part thereof is found to be unnecessary for the purposes of the expropriating authority or if it is found that a more limited estate or interest therein only is required”. In that event, the Tribunal may decide to make findings of fact on this point, just as it would on the myriad of matters before it under the Act relating to highest and best use, market compensation, injurious affection and other claims. Such findings of fact were not the main issue put before the LCB in Marcus – instead, the owner sought a special revesting order in the nature of a specific performance remedy.

25The panel in Marcus made other observations after deciding the main point that it had no power to make a reconveyance order. Those observations, made in the context of a different Act and a different enabling statute for the LCB may not be relevant in the context of the current Act or OLTA. As noted, neither are those comments binding on the OLT. The presiding Member at the Hearing will need to consider whatever evidence and legal submissions of the Parties may be made in final argument or otherwise.

26As an additional observation, it does not seem to be consistent with the provisions of OLTA or the Act to in effect encourage parties to expropriation proceedings to pursue separate Court actions whenever they have unilaterally decided to exclude the OLT from considering its own jurisdiction – and regardless of impending agreed fixed hearing dates. Another practical impact of such measures is to deprive the Court of the benefit of the OLT’s ruling on that question. Again, this seems unusual since the Divisional Court and the Court of Appeal have often reviewed and considered Decisions of the OLT and its predecessors on matters of jurisdiction – just as those Courts do with respect to other administrative tribunals’ decisions. In fact, Marcus itself is a historical illustration of a situation where the parties made their jurisdictional arguments before the LCB, not by way of a Court application.

27The Claimant also cited a decision of the Ontario Court of Appeal which considered section 41 of the Act: 1739061 Ontario Inc. v. Hamilton-Wentworth District School Board, 2016 ONCA 210. While it may be evident that the Superior Court and the Court of Appeal may, when requested, fashion a remedy in appropriate circumstances pursuant to section 41 of the Act, it seems to this Tribunal that the Court of Appeal was not directly considering let alone rejecting the jurisdiction or authority of the OLT to do so. In any event, the possibility that both the OLT and the Court may have some degree of concurrent jurisdiction under section 41 is not a matter to be decided here.

28As a final comment, this Tribunal also did not find persuasive the implicit argument that the OLT could not have any jurisdiction to make determinations under section 41 because that would be contrary to legislative intent as to the limits of statutory tribunal authority. At the appropriate juncture in a future OLT proceeding – perhaps even at the Hearing – the Tribunal will be interested to receive submissions on this topic. It seems intriguing to consider that under OLTA and the Act, the OLT has been granted a broad mandate in the public interest to adjudicate often highly complex factual and legal issues involving many 10’s of millions of dollars relating to development and planning matters; market value of expropriated real property and other interests; injurious affection; disturbance damages; relocation expenses; business losses; interest and legal/expert costs - and also to make certain declaratory orders (see: section. 11 and section. 34(1), (2) of the Act) – yet to ponder whether somehow the Legislature would not possibly intended to have the OLT make what could prove to be rather straightforward findings of fact and determinations under section 41 of the Act.

ORDER

29THE TRIBUNAL ORDERS that the Claimant’s motion seeking an adjournment of the hearing of this proceeding, now scheduled to commence on Monday, September 16, 2024, is dismissed.

“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.

Port Lands Land Co. Limited Partnership v. City of Toronto, 2024 CanLII 89457

Case Summary