Craft Kingsmen Rail (East) Corp. v. Metrolinx, 2025 CanLII 110382

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 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: In writing

APPEARANCES:

Parties	Counsel*/Representative
Craft Kingsmen Rail (East) Corp. (“Craft”)	P. Scargall, D. Lurie
Metrolinx	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 is the second Decision relating to the balance of the matters pending in respect 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 (“Discovery”), during which certain undertakings were given and certain questions asked were taken “under advisement” or were refused to be answered. The first Decision of the Tribunal was issued on October 1, 2025, which dealt only with a single document which Metrolinx had alleged was protected by solicitor-client privilege.

3The remaining issues to be decided on the Motion pertain to whether Metrolinx has:

(a) properly satisfied its undertakings arising from the Discovery;

(b) properly answered all proper questions arising from those undertakings;

(c) should provide answers to certain questions ‘taken under advisement’ or refused to be answered; and

(d) whether there remain any documents that Metrolinx has refused to produce on the basis of a proper claim of privilege.

Undertakings / Follow-up Questions

4The Claimant alleges that Metrolinx has not properly satisfied its undertakings as set out in the chart made Attachment A to this Decision (“Undertakings”) (which was made Schedule A to the Claimant’s Notice of Motion) nor has it answered proper follow-up questions (“Follow-up Questions”). Metrolinx does not agree. The Tribunal very recently in October 2025 enquired of the Parties if any of the Undertakings / Follow-up Questions had been satisfied since the filing of the Motion but was advised by the Claimant’s counsel that they had not. Metrolinx has maintained its position on the Motion.

5The Tribunal has reviewed Attachment A and has concluded that Metrolinx has not properly answered some of the Follow-up Questions described there. The Tribunal notes that Metrolinx provided an “Updated Answers to Follow-Up Questions” in Exhibit ‘O’ to its supporting affidavit filed in its Responding Motion Record. That exhibit is made Attachment B to this Decision.

6The Tribunal, upon review of Attachment B, finds that the following Follow-up Question has not been properly answered by Metrolinx: # 28; p. 149; Q. 544.

Undertakings Under Advisement/ Follow-up Questions

7These Follow-up Questions are also shown in Attachment B. The Tribunal, upon review of Attachment B, finds that the following Follow-up Questions have not been answered and that there is no proper basis for a refusal to answer them on the basis of relevance or because they have been unilaterally marked “Confidential or Commercially Sensitive”. Such a designation does not protect relevant documents from disclosure although it may be a basis for a separate motion by Metrolinx seeking relief under Rule 22 of the Tribunal’s Rules of Practice and Procedure (“Rules”). However, that possibility is not a relevant matter to be dealt with on this Motion:

(a) #1; p.32; Q. 125-127;

(b) #45; p. 141; Q. 116;

(c) #49; p. 144; Q. 522 – (Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding);

(d) #78; p. 205; Q. 711-712 – Metrolinx must answer to provide its specific position, which is a matter relevant to one or more issues raised in paragraphs 5 to 55, inclusive, of the Notice of Arbitration and Statement of Claim, dated August 12, 2024;

(e) #83; p. 210; Q. 727 – this is a relevant question which must be answered and Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding;

(f) #97; p. 237; Q. 814 – this is a relevant question and the Claimant is entitled to know what Metrolinx’s specific position is, if any;

(g) #98; p. 239; Q. 820 – (Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding); and

(h) #108; p. 250; Q. 867 – the document should not be redacted on the basis of ‘commercially sensitive or confidential information’ – Metrolinx may have a basis for a separate motion by seeking relief under Rule 22 of the Tribunal’s Rules of Practice and Procedure (“Rules”). However, that possibility is not a relevant matter to be dealt with on this Motion;

Questions Refused / Follow-up Questions

8These items are also shown in Attachment B. The Tribunal, upon review of Attachment B, finds that the following Follow-up Question has not been answered and that there is no proper basis for a refusal to answer it:

(a) #12: p. 130; Q. 468 – the Tribunal finds that this question is relevant to one or more issues set out in the pleadings in this proceeding. If there is a concern about commercial sensitivity or confidentiality, Metrolinx may have a basis for a separate motion by seeking relief under Rule 22 of the Tribunal’s Rules. However, that possibility is not a relevant matter to be dealt with on this Motion.

9As an aside, the Tribunal notes that Metrolinx in its responding materials suggests that the Claimant brought its Motion prematurely. However, this is not a matter at issue on the Motion although the Tribunal always encourages the Parties to work cooperatively to deal with matters arising from the discovery process.

10Beyond the matters addressed above by the Tribunal and reflected in the Orders made below, the balance of the Claimant’s Motion is dismissed.

ORDER

11THE TRIBUNAL ORDERS THAT:

(a) Metrolinx shall, within seven days of the date of this Decision, provide the answers and documentation reflected in the following questions asked at the examination for discovery of Ms. Alice Law held on June 24, 2025:

i. #1; p.32; Q. 125-127;

ii. #45; p. 141; Q. 116;

iii. #49; p. 144; Q. 522 – (Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding);

iv. #78; p. 205; Q. 711-712 – Metrolinx must answer to provide its specific position;

v. #83; p. 210; Q. 727 – this question must be answered and Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding;

vi. #97; p. 237; Q. 814 – this question must be answered, and Craft Kingsmen Rail (East) Corp (“Claimant”) is entitled to know Metrolinx’s specific position is, if any;

vii. #98; p. 239; Q. 820 – (Metrolinx must list all items for which solicitor client privilege is claimed (and identify the basis for that claim), save and except for correspondence, memoranda or other documents detailing communications between Metrolinx and Aird Berlis LLP subsequent to the commencement of this proceeding or which provided legal advice / opinion from Aird Berlis LLP predating commencement of this proceeding but relating to the anticipated contemplation of this proceeding); and

viii. #108; p. 250; Q. 867 – the document should not be redacted on the basis of ‘commercially sensitive or confidential information’.

(b) The Claimant is permitted to conduct an additional oral examination of Metrolinx’s representative for a period of four hours pertaining to reasonable questions arising from the answers and documentation provided as Ordered in (a) above, or, at its sole option, may conduct that examination by written questions only;

(c) This Vice Chair shall remain seized of all matters arising from this Decision and the above Orders, and of the ongoing case management of this proceeding but is not seized in respect of any mediation that may be convened or for the final hearing of this proceeding; and

(d) There shall be no Order as to the costs of this motion which shall be reserved for later determination by the Tribunal in the event that an application for costs is brought pursuant to Rule 26 of the Tribunal Rules of Practice and Procedure following the final hearing of this proceeding or a settlement reached by the Parties.

“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.