Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 01, 2025
CASE NO(S).: OLT-24-000825
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Craft Kingsmen Rail (East) Corp.
Respondent: Metrolinx
Subject: Claim for compensation
Property Address: Various Addresses
Municipality: City of Toronto
OLT Case No.: OLT-24-000825
OLT Lead Case No.: OLT-24-000825
OLT Case Name: Craft Kingsmen Rail (East) Corp. v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Craft Kingsmen Rail (East) Corp.
Request for: Request for Directions
Heard: August 27, 2025, in writing
APPEARANCES:
Parties
Craft Kingsmen Rail (East) Corp. (“Craft”)
Metrolinx
Counsel/Representative*
P. Scargall, D. Lurie
B. O’Callaghan, A. Lu
DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL
1This proceeding is in respect of a claim for compensation brought against Metrolinx by Craft (the “Claimant”) pursuant to subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (“Act”) arising from an expropriation of certain property rights commenced by Metrolinx by the registration of 12 expropriation plans between June 2021 and January 2022, relating to various properties located generally the freehold interest in the air rights and space beginning at a point 27 feet above the top of rails of the Union Station Rail Corridor in the City of Toronto, extending from Strachan Avenue to Bathurst Street, and from Yonge Street to the Don Valley Parkway, including certain easements, rights-of-way and attachment rights, and having a total area of 1,547,106/16 square feet (the “Expropriation”).
2This Decision relates to only a single aspect of a motion brought by Craft by way of its motion record dated August 6, 2025 (“Motion”) seeking compliance by Metrolinx with certain alleged obligations arising from the examination for discovery held on June 24, 2025 of Metrolinx’s representation Alice Law, during which certain undertakings were given and certain questions asked were taken “under advisement” or were refused to be answered. The Tribunal will be issuing one or more separate Decisions concerning these obligations as well as other aspects of the Motion.
3The Motion materials filed by the Parties – in addition to numerous correspondence delivered to the Tribunal since the Motion was delivered – raise a number of issues and matters, some of which seem to imply that further motions may be filed by one or both of the Parties. As well, the Parties have both sought a Case Management Conference due to certain developments and allegations concerning the potential availability of a private arbitration pursuant to a contract between Craft and an entity which is not a party to this proceeding (“Private Arbitration”). The Tribunal has not yet confirmed whether it will convene a Case Management Conference for that purpose, pending clarification from the Parties.
4After the Motion was filed, both Parties delivered correspondence to the Tribunal concerning the Private Arbitration and whether it would be properly commenced by Metrolinx. For example, counsel for Metrolinx in a letter dated September 10, 2025 stated:
The support easements … expressly set out the manner in which the permissions in the support easements are to be interpreted in the event of a disagreement. Paragraph 10 of a support easement states as follows:
“10. All disputes arising between TTR and Transferee in respect of the provisions, the subject matter, the interpretation or the effect of this Agreement or as to any specific provision contained herein, the method of resolution for which is not otherwise provided for in this Agreement, and any disputes or other matters which under the provisions of this Agreement are to be referred to arbitration, shall be settled by arbitration in accordance with the provisions set forth in Section 11.”
Any potential willing buyer of the air rights contemplating closing on the APS and taking title to the air rights would need to understand what the support easements permitted. For that reason, Metrolinx is undertaking the due diligence that any reasonable willing buyer would have undertaken in advance of closing on the transaction and paying the purchase price. The arbitration clause in the support easement allows the potential purchaser/willing buyer, to undertake a private arbitration before a three arbitrator panel in order to receive a decision from that panel as to their interpretation of what the support easement permits. This private arbitration process can proceed without the consent of the other party to … the easement.
5The Hearing of this proceeding is currently scheduled to commence on March 2, 2026, for a period of 25 days. To the Tribunal’s knowledge, the exchange of correspondence referenced in paragraph [4] above is the first communication to the Tribunal about the Private Arbitration. It is unclear as to how the Parties expect the Tribunal to react to that matter. Based on the little information available, it does not appear that the Tribunal is being asked to adjudicate whether the Private Arbitration ought to proceed. Certainly, the Tribunal is not in a position to deal with that matter based only on the delivery of correspondence.
6As an observation, the Tribunal notes that, at this juncture, the Tribunal is unaware of any basis for any contention that the Private Arbitration could somehow oust or in any way limit the exclusive jurisdiction of the Tribunal to determine any compensation owed to the Claimant in this proceeding. This seems clear by the express terms of subsections 2(1), 2(4), section 3, subsection 26(1), and section 29 of the Act. If such an argument is to be pursued by either Party, it will be necessary for that party to commence a written motion to have the Tribunal determine any questions relating to its jurisdiction – indeed, for sheer clarity, it may be that the Parties will want to seek directions from the Tribunal by way of appropriate motion practice. In addition to the above-cited provisions of the Act, the Tribunal is provided authority to determine such questions under sections 8 and 9 of the Ontario Land Tribunal Act, S.O. 2021, C. 4, Sched 6 (“OLTA”) and by considerable applicable jurisprudence relating to such authority.
ISSUE TO BE DETERMINED
7The narrow issue which will be determined in this Decision concerns the question of whether a certain confidential document of Metrolinx ought to be protected from disclosure during the above-described discovery process on the basis of a claim for solicitor-client privilege. This document was sought by the Claimant in the Motion pursuant to Undertaking Under Advisement #45 (“Confidential Document”).
8Counsel for Metrolinx alleges in correspondence relating to the Motion delivered to the Tribunal and the Claimant dated August 19, 2025, as follows:
Metrolinx’s additional sur-reply submission is that this document is solicitor-client privileged because it contains legal advice. The extent of required disclosure for solicitor-client privileged documents is the nature of the document and the reasons for privilege. The document was a report to the Metrolinx Board, and was co-authored by the Chief Legal Officer at Metrolinx. The document therefore contained legal advice, and as such, is covered by solicitor-client privilege.
9The Claimant’s counsel responded, inter alia, by maintaining as follows:
However, as noted in the “Sur-Reply”, almost four weeks after its initial response to Question 45, and only after Kingsmen questioned non-production on the basis of the February 2021 Report based on it being marked “Confidential and Commercially Sensitive” has the Respondent claimed that it is asserting solicitor-client privilege over the February 2021 Report, on the basis that the document contains legal advice and was co-authored by Metrolinx’s Chief Legal Officer… The Respondent has had ample opportunity to consider whether to assert privilege over the highly relevant February 2021 Report and provide the basis for such assertion. Instead, the Respondent waited until its Sur-Reply to assert solicitor-client privilege over this document, without providing sufficient particulars for doing so, at significant prejudice to Kingsmen… In the circumstances, it is Kingsmen’s position that the February 2021 Report should be produced by the Respondent in its entirety. It is not sufficient for Metrolinx to attempt to cloak the February 2021 Report in solicitor-client privilege by stating that it was “co-authored” by Metrolinx’s Chief Legal Officer and asserting that it “therefore contained legal advice”. The onus is on Metrolinx to establish that solicitor-client privilege should protect the February 2021 Report. It has not done so.
… The case law is clear that solicitor-client privilege can only be claimed in respect of a document when the following three criteria are met:
(i) the document is a communication between solicitor and client;
(ii) which entails the seeking or giving of legal advice; and
iii) which is intended to be confidential by the parties.
When solicitor-client privilege is challenged, the onus is on the party asserting the privilege to establish that privilege should protect the communication in question. The party seeking to claim privilege should provide sufficient particulars to permit the court to make a proper determination of privilege, including identifying the documents, describing their nature and setting out the privilege claimed and grounds, and the function, role, status of the receiver and sender of the documents, their relationship to the party in the action, the grounds for the claim and description of each document consistent with the law which renders it privileged…
10Due to the competing arguments made by counsel for Metrolinx and the Claimant, the Tribunal conveyed to them on September 8, 2025 that it would be necessary for this Vice Chair to review the Confidential Document in order to reach a determination whether all or part of it was subject to claim of solicitor-client privilege. Counsel for Metrolinx provided the Confidential Document, on a confidential basis, to this Vice Chair on September 8, 2025, via the Tribunal’s case coordinator.
11After careful review and consideration of the Confidential Document, the Tribunal has determined that it is not properly subject to a claim of solicitor-client privilege and must be provided to the Claimant.
12The Tribunal is of the view that counsel for the Claimant has properly summarized the test for determining solicitor-client privilege and the applicable jurisprudence as set out in paragraph [9] above and as contained in the Claimant’s Supplementary Book of Authorities dated August 20, 2025. The Tribunal notes that Metrolinx has not addressed the elements of the test beyond merely identifying the fact that Heather Platt, the Chief Legal Officer of Metrolinx, is listed as one of the four individuals in the “From” section of this document, which is a memorandum addressed to the “Metrolinx Board of Directors”, dated February 11, 2021, entitled “Acquisition of Air Space within the Union Station Rail Corridor”. The other three apparent co-authors carry the titles of “Chief Capital Officer, Capital Projects Group”, “Vice President, Pre-Construction Services, Capital Projects Group” and “Program Sponsor, Union Station Rail Corridor”, clearly denoting their senior business management roles.
13In addition to the details described in paragraph [12] above, the Tribunal, in making the determination that the Confidential Document is not protected from disclosure on the basis of solicitor-client privilege, relies upon several other factors, including:
(i) The document, in its title section, does not identify the memorandum as a communication providing legal advice or opinions or as one being delivered in response to a request for legal advice or opinions;
(ii) Nowhere in the memorandum is there any mention of legal advice or opinions, or of any legal issues or matters involving potential legal issues or questions;
(iii) The memorandum is replete with business advice and recommendations concerning management’s recommendation that Metrolinx acquire, by way of expropriation certain property rights. The recommendation to proceed with the Expropriation is supported by various business rationales and a detailed budgetary analysis;
(iv) It is apparent that Heather Platt, while her title at the time was Chief Legal Officer, was a co-author in her role as a member of the management team. There is no identification of any specific legal advice or opinion from Heather Platt in the memorandum – nor of any specific content authored by her at all, let alone in relation to any legal issues or questions;
(v) The Tribunal takes notice of the reality that it is often common for senior legal officers of corporations to wear a ‘dual hat’ as both a member of a senior management team and as a legal advisor to that same team and/or to a CEO or Board of Directors. Here, based on a plain reading of the memorandum, Heather Platt seems to have functioned solely in her capacity as a member of the senior management team in ‘co-authoring’ the memorandum; and
(vi) The mere fact that a memorandum may be co-authored by a senior legal officer, such as Heather Platt, does not serve to imbue it with solicitor-client privilege or to insulate it from production in any legal proceeding.
ORDER
14THE TRIBUNAL ORDERS THAT:
(a) Metrolinx must forthwith produce to the Claimant’s counsel a full unredacted copy of the document described in this Decision as Undertaking Under Advisement #45;
(b) In the event that Metrolinx seeks a confidentiality Order in respect of the document described in (a) above under Rule 22.2 of the Tribunal’s Rules of Practice and Procedure, it shall bring a written motion for that relief;
(c) If the Parties require directions from the Tribunal in respect of the Tribunal’s jurisdiction as broadly discussed in the body of this Decision, they shall commence a written motion for that determination; and
(d) There shall be no Order as to the costs of this motion.
“William Middleton”
WILLIAM MIDDLETON VICE CHAIR
Ontario Land Tribunal Website: 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.