Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 26, 2024
CASE NO(S).: OLT-23-000726
PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. P.26, as amended and in the matter of an Arbitration
Claimant: 2090396 Ontario Limited
Respondent: Regional Municipality of York
Description: Determination of compensation
Subject: Market Value, Disturbance Damages and/or Injurious Affection
Property Address/Description: 1500 Centre Street, Vaughan
Municipality: Regional Municipality of York
OLT Case No.: OLT-23-000726
OLT Lead Case No.: OLT-23-000726
OLT Case Name: 2090396 Ontario Limited v. Regional Municipality of York
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Regional Municipality of York
Request for: Request for Directions
Heard: July 23, 2024 in writing
APPEARANCES:
Parties
Counsel
2090396 Ontario Limited
M. Flowers
("2090396" or "Claimant")
A. Valela
Regional Municipality of York
F. Sperduti
("York")
L. Fortini
M. Grant
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This decision arises from a motion in writing brought by York seeking an Order requiring 2090396 to deliver an itemized Schedule B to its Affidavit of Documents dated February 23, 2024 ("Motion"). The underlying proceeding involves claims brought by 2090396 for compensation and damages pursuant to the Expropriations Act, R.S.O. 1990, c. E.26 ("Act") arising from an expropriation initiated by York on April 7, 2015 in relation to the property municipally known as 1500 Centre Street in Vaughan, Ontario.
2The materials before the Tribunal on the Motion were:
(a) Fresh as Amended Motion Record of York, comprising 155 pages;
(b) Responding Motion Record of 2090396, comprising 98 pages;
(c) Reply of York to Notice of Response to Motion, comprising 8 pages;
(d) York’s Book of Authorities, comprising 144 pages; and
(e) 2090396’s Book of Authorities, comprising 111 pages.
ARGUMENTS AND ANALYSIS
3The precise relief sought on the Motion is for (below emphasis added):
An order that the Applicant/Appellant, 2090396 Ontario Limited ("209"), produce a detailed Schedule "B" related to the following, within 10 days of the Tribunal’s order:
a. correspondence (emails and letters) between appraisers and 209 (or anyone acting on behalf of 209) in 2015, and copies of documents, reports, reviews, or analyses exchanged between appraisers and the claimant (or anyone acting on behalf of the claimant) in 2015; and,
b. the October 2016 appraiser’s report, the appraiser’s review of the Region’s offer of compensation made in accordance with section 25 of the Expropriations Act1, documents, and any correspondence between 209 and anyone acting on behalf of 209 related to the foregoing."
4The actual Schedule B to the Affidavit of Documents of 2090396 is in what is often referred to as a ‘pro forma’ format, as follows:
5In matters relating to disputes arising from documentary and oral discovery in expropriations proceedings, the Tribunal typically refers to the Ontario Rules of Civil Procedure ("Civil Rules") since the Tribunal’s Rules of Practice and Procedure do not contain detailed provisions regarding oral and documentary discovery.
6Rule 30 of the Civil Rules provides that (below emphasis added):
Scope of Documentary Discovery
Disclosure
30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (1); O. Reg. 438/08, s. 26.
Affidavit of Documents
Party to Serve Affidavit
30.03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power. O. Reg. 438/08, s. 27 (1).
Contents
(2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action,
a. that are in the party’s possession, control or power and that the party does not object to producing;
b. that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for the claim; and
c. that were formerly in the party’s possession, control or power, but are no longer in the party’s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of or power over them and their present location. R.R.O. 1990, Reg. 194, r. 30.03 (2); O. Reg. 438/08, s. 27 (2).
(3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit.
7Schedule B to an Affidavit of Documents is required to conform with the provisions of Rule 30.03 (2) b., as reproduced in paragraph [6] above. However, as a matter of convention, parties to civil actions, including expropriations proceedings, do not always follow those strict requirements. Occasionally, parties will agree among themselves that this is unnecessary, although in some discovery disputes – as is the case on this Motion – strict adherence is sought by one or both parties during motion practice following examinations for discovery.
8In the Tribunal’s view, absent a contrary agreement, Rule 30.03 operates to govern the obligations of the Parties in terms of their respective Affidavit of Documents. The Tribunal discerns no reason in this case to exercise its discretion to vary the application of Rule 30.03. Moreover, the fact that York’s Affidavit of Documents may not contain a Schedule B compliant with Rule 30.03 is irrelevant. 2090396 has chosen not to pursue the same remedy as against York, which is its choice to make.
9Ordinarily, the proper Order for the Tribunal to make on this Motion would be to simply require 2090396 to deliver a Schedule B to its Affidavit of Documents in accordance with Rule 30.03. The obligation there is to set out "all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power." However, on the Motion, York seeks a predetermination of at least one area of relevance, as is described above in paragraph [3]. On the other hand, counsel for 2090396 strenuously argues that its Schedule B need not set out those documents:
The Claimant submits that the information that would be contained in a detailed Schedule "B" (i.e., the date, sender and recipient of privileged correspondence and documents) is not responsive to determining the when the injurious affection claim "became known" to the Claimant, and, in particular, whether the claim was "known" to the Claimant more than one year before service of the Notice of IA. It is therefore not relevant to the issue of whether the Claimant’s claim for injurious affection is barred by operation of ss. 22(1) of the Act.
10A good deal of the submissions made by 2090396, and the counter-arguments of York in response, pertain to the issue of what might be relevant to the Claimant’s knowledge of its injurious affection claim. Much jurisprudence is marshalled by both Parties on this issue as well. Subsection 22(1) of the Act states, as follows:
22 (1) Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.
11However, in this Tribunal’s view, this Motion does not require the Tribunal to finally adjudicate the question of what may or may not be relevant evidence concerning when the Claimant was aware of its injurious affection claim, let alone the possible operation of section 22(1) of the Act or any questions as to what privilege might be asserted with respect to items listed in a compliant Schedule B. Evidentiary disputes on such issues may need to be dealt with by way of a separate, focussed motion, or perhaps at the eventual hearing itself – although as a matter of practice, the Tribunal prefers that anticipated disputes concerning evidentiary matters be dealt with by motion practice brought prior to the hearing.
12In this Tribunal’s view, a ruling that unduly limits the obligations of the Claimant in relation to its delivery of a proper Schedule B to its Affidavit of Documents ought not to be made at this juncture. The specific Order sought by York, as described in paragraph [3] above, refers to items that, if they exist, seem clearly relevant to matters at issue in the pleadings of the Parties. This is essentially admitted by counsel for 2090396 in its written submissions, although it characterizes the applicable York pleading as containing ‘bald allegations’. In the absence of persuasive evidence from the Claimant that to merely list such items in its Schedule B is unreasonable or would cause some undue burden or costs, those documents ought to be properly described in its Schedule B, along with the basis for any privilege asserted.
13The essence of 2090396’s position on this Motion is that York does not need any such documents that might be listed in a proper Schedule B and that they should not be found relevant to a determination under section 22(1) of the Act. It further argues:
The Region should not be able to participate in a fishing expedition in an effort to uncover evidence used to support a technical argument that would prevent the Claimant from proceeding with a bona fide claim for injurious affection. This is not in keeping with the spirit of the Act
14As already noted, the possible application of section 22(1) of the Act is not a matter to be adjudicated on this Motion. The Tribunal also does not agree that York is seeking to conduct an ‘unfair fishing expedition’. In reaching this conclusion, this Tribunal is mindful of the purposes of discovery, which were succinctly stated by Mr. Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504, with reference to a leading text which in turn described longstanding jurisprudence from both the Divisional Court and the Ontario Court of Appeal (below emphasis added):
In J.W. Morden and P.M. Perell, The Law of Civil Procedure in Ontario (1st ed.) (Toronto: NexisLexis, 2010), at p. 487 I describe the purposes of an examination for discovery as follows:
The examinations for discovery provide an opportunity to define the issues that are contested and uncontested and to move forward in the proof or disproof of contested facts. In Modriski v. Arnold, [1947] O.J. No. 132 (C.A.), the Court of Appeal stated that the purposes of production and discovery are: (1) to enable the examining party to know the case he or she has to meet; (2) to enable the examining party to obtain admissions that will dispense with formal proof of his or her case; and (3) to obtain admissions that will undermine the opponent’s case.
In Ontario Bean Producers Marketing Bd. v. W.G. Thompson & Sons (1982), 1982 CanLII 2084 (ON HCJ), 35 O.R. (2d) 711 (Div. Ct.), the Divisional Court elaborated and extended the various aims of discovery. The Court noted the following purposes for examinations for discovery: (1) to enable the examining party to know the case he or she has to meet; (2) to procure admissions to enable a party to dispense with formal proof; (3) to procure admissions which may destroy an opponent’s case; (4) to facilitate settlement, pre-trial procedure, and trials; (5) to eliminate or narrow issues; and (6) to avoid surprise at trial."
15In conclusion, the Tribunal sees no current basis for ruling that the Claimant ought not to provide a compliant Schedule B to its Affidavit of Documents, which would include the items, again only if they exist, described above in paragraph [3]. It is premature to determine whether those documents ought to be ultimately produced or whether any privilege claims are properly made – this may need to be the subject of another motion. Although the Claimant raises the spectre of ‘overbroad’ discovery here, there is no evidence that this simple requirement would result in ‘oppressive’ or ‘uncontrollable’ discovery, as has been commented upon in the cited caselaw. There is also no need to adjudicate the application of section 22 of the Act on this Motion – it would be improper and premature to do so, in this Tribunal’s view.
ORDER
16THE TRIBUNAL ORDERS THAT:
(a) The Claimant, 2090396 Ontario Limited ("209"), shall provide a detailed Schedule B to its Affidavit of Documents in compliance with Rule 30.02 of the Rules of Civil Procedure, which shall include, but not be limited to, the following: any existing correspondence (emails and letters) concerning 1500 Centre Street, Vaughan between real estate appraisers and 209 (or anyone acting on behalf of 209) in 2015, and copies of documents, reports, reviews, or analyses exchanged between appraisers and the claimant (or anyone acting on behalf of the claimant) concerning 1500 Centre Street, Vaughan in 2015; and the October 2016 appraiser’s report, the appraiser’s review of the offer of compensation made by the Regional Municipality of York in accordance with section 25 of the Expropriations Act, documents, and any correspondence between 209 and anyone acting on behalf of 209 related to the foregoing;
(b) The Schedule B described in (a) above shall be delivered within 14 calendar days from the issuance of this Decision; and
(c) No costs shall be awarded on this Motion.
17This Vice-Chair shall remain seized of all matters relating to and arising from this Decision and the ongoing case management of this proceeding, but not the final hearing of this matter.
"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.