Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2024

CASE NO(S).: OLT-22-002690

PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant

889445 Ontario Inc.

Respondent

The Regional Municipality of Waterloo

Subject:

Determination of compensation

Description:

For determination by the Tribunal of the compensation to be paid by Waterloo Region

Property Address:

209 Pinebush Road

Municipality/UT:

Waterloo/Waterloo

OLT Case No:

OLT-22-002690

Legacy Case No:

LC190005

OLT Lead Case No:

OLT-22-002690

Legacy Lead Case No:

LC190005

OLT Case Name:

889445 Ontario Inc. v. Waterloo (Region)

Heard:

November 14, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative

889445 Ontario Inc. (“Claimant”)

Micah Goldstein

The Regional Municipality of Waterloo (“Respondent”)

David Thrasher

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON NOVEMBER 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the first Case Management Conference (“CMC”) conducted in this Claim for compensation under the Expropriations Act (“the Act”) and has been scheduled in response to the Tribunal’s Status Request dated May 9, 2023. The Claimant, 889445 Ontario Inc., seeks compensation for damages for injurious affection, business losses and disturbance from the Respondent, The Regional Municipality of Waterloo. The claim arises out of the partial Expropriation of the commercial property at 209 Pinebush Road, Cambridge (“the Subject Property”), and the construction of a roundabout at the intersection of Pinebush Road and Franklin Boulevard. The Claimant was a tenant at the Subject Property, from which it operated a Tim Horton’s Restaurant.

PROCEDURAL ORDER

2Counsel advised the Tribunal that the Parties were content with the Pre-Hearing timelines and provisions of a draft Procedural Order (“PO”), Issues List and Order of the Evidence, which had been circulated to the Tribunal prior to the CMC. Counsel advised the Tribunal that they were prepared to set a date for a Hearing on the Merits and that a four-day Hearing would be required.

3The Tribunal, having reviewed the draft PO, directed Counsel to make certain amendments to the timeline in paragraphs 15 and 21 and to delete the references to Participants in paragraph 4 and in Attachment 1 to the PO. Counsel for the Claimant undertook to revise and resubmit the draft PO to also provide for specific timeline dates once the Hearing date was set. With respect to Mediation and the prospects of settlement, the Tribunal was advised that Counsel intended to cooperate to reduce the length of the Hearing by eliminating redundant evidence and would be attempting to reach settlements on issues where possible.

4Following consultation respecting the Tribunal’s calendar and the availability of the Parties, counsel and witnesses, a four-day Hearing on the Merits, by video conference, was agreed upon, commencing on Tuesday, September 17, 2024, at 10 a.m. and concluding on Friday, September 20, 2024.

5The Tribunal’s Case Coordinator was subsequently contacted by Mr. Goldstein, Counsel for the Claimant, who advised that he and Counsel for the Respondent had conferred after the Hearing of the CMC was concluded, and that they had determined that some of the dates in the draft PO require to be changed and requested that the draft PO not be issued until agreement on those dates had been reached. In view of the approaching holidays, Mr. Goldstein requested that the Parties be permitted to file the revised draft PO in mid to late January 2024. The Tribunal directed that Counsel file the revised PO by January 26, 2024.

6The Tribunal has subsequently received and reviewed the revised draft of the PO, Issues List and Order of Evidence. The fixed dates for the Hearing on the Merits and for the Pre-Hearing timeline, are now provided in the PO appended to this Decision, and the coordinates for the Hearing are set out below in this Decision.

7Appended to this Decision as Schedule 1 is the PO, which will now govern all further Pre-Hearing procedural requirements and the Hearing on the Merits.

8Appended to this Decision as Attachment 1 is the identification of the Parties and their Counsel. Appended to this Decision as Attachment 2, as an Issues List, are the pleadings. Appended to this Decision as Attachment 3 is the Order of the Evidence, which shall govern the conduct of the Hearing on the Merits.

HEARING – September 17 – September 20, 2024

9For the four-day video hearing, commencing at 10 a.m. on Tuesday, September 17, 2024, and continuing to Friday, September 20, 2024, the Parties 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

10Parties, witnesses and observers 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

11Persons 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 660-145-013.

12Individuals 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 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

13THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern the conduct of this proceeding.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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 1

Procedural Order

CASE NO(S).: OLT-22-002690 formerly LC190005

PROCEEDING COMMENCED UNDER: the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: 889445 Ontario Inc.

Respondent: Regional Municipality of Waterloo

Subject: Land Compensation

Property Address/ Description: 209 Pinebush Road, Waterloo

Municipality: Regional Municipality of Waterloo

OLT Case No.: OLT-22-002690 formerly LC190005

OLT File No.: OLT-22-002690 formerly LC190005

OLT Case Name: 889445 Ontario Inc. v. Waterloo Region

PROCEDURAL ORDER OF THE TRIBUNAL

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 Tuesday, September 17, 2024 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is four (4) 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 identified at the case management conference are set out in Attachment 1.

Issues

5. The issues are set out in the Claimant’s Notice of Arbitration and Statement of Claim and the Respondent’s Reply attached as Attachment 2. There will be no changes to the issues except by way of an amendment to a pleading as provided under Rule 7.8 of the Tribunal’s Rules of Practice and Procedure and a party who asks for changes may have costs awarded against it.

Order of Evidence

6. The order of evidence shall be as set out in Attachment 3 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.

7. 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

8. The parties agree that, if attendance at mediation is agreed to by both parties after the exchange of expert reports, the parties are to attend and participate in a mediation pursuant to Rule 18 of the Tribunal’s Rules of Practice and Procedure before the Tribunal on or before August 13, 2024.

9. 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 by the Claimant on or before March 1, 2024 and by the Respondent on or before March 13, 2024, in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before August 2, 2024 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 August 30, 2024.

11. 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 22 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.

12. 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 paragraphs 13 and 14 below, as applicable. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraphs 13 and 14 below.

13. On or before May 10, 2024, the Claimant shall provide copies of its witness and expert witness statements to the Respondent and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. The Respondent shall deliver all reply evidence and witness statements on or before June 21, 2024 to the Claimant and to the OLT case co-ordinator and in accordance with paragraph 22 below.

15. On or before July 15, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before August 23, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 30, 2024.

18. 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 7:00 p.m. the day before that witness gives evidence.

19. 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 fifteen (15) days before the Tribunal hears the motion.

20. 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 at least seven (7) days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 15, 2024 (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.

22. 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.

23. 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.

KEY PROCEDURAL DATES

Exchange of Witness Lists

March 1, 2024 (Claimants)

March 13, 2024 (Respondent)

Delivery of Claimant Witness Statements and Expert Reports

May 10, 2024

Delivery of Respondent Reply Witness and Reply Expert Statements

June 21, 2024

Meeting of Experts

August 2, 2024

Exchange of Visual Evidence

August 23, 2024

Confirm with the Tribunal if all Reserved Hearing Dates still Required

July 15, 2024

Mediation to be conducted before the OLT

August 13, 2024

Filing of Statement of Agreed Facts

August 30, 2024

Joint Book of Documents to be filed

August 30, 2024

Hearing Plan to be filed

July 15, 2024

Hearing

September 17, 2024

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

Attachment #1 Parties

Counsel for the Claimants:

Matlow, Miller, Cummins, Thrasher LLP

Barristers and Solicitors

43 Dickson Street, P.O. Box 607

Cambridge, ON N1R 5W1

David Thrasher

Tel: (519) 621-2430

davidthrasher.lit@matlowmiller.com

Counsel for the Respondent :

WeirFoulds LLP 66 Wellington Street West, Suite 4100, P.O. Box 35, TD Bank Tower,

Toronto, ON M5K 1B7

Micah Goldstein

Tel: 416-947-5082

mgoldstein@weirfoulds.com _________________________________

Attachment #2 Issues List

Attachment #3 Order of Evidence

1. 889445 Ontario Inc. – Claimant

2. The Regional Municipality of Waterloo - Respondent

3. Reply – 889445 Ontario Inc. - Claimant