Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 2025

CASE NO(S).: OLT-22-002385 (Formerly LC190027)

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

Appellant: 536555 Ontario Ltd. & Emros Developments Corp.

Subject: Determination of compensation

Property Address: 747 Richmond Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-002385

Legacy Case No.: LC190027

OLT Case Name: 536555 Ontario Ltd. & Emros Developments Corp. v. Ottawa (City)

Heard: May 14, 2025, by video hearing; supplementary submissions made on May 26, 2025; June 2, 2025; June 9, 2025; August 8, 2025; and August 20, 2025

APPEARANCES:

Parties

Counsel

536555 Ontario Ltd. and Emros Developments Corp. (“Claimants”)

Sean Foran Abbey Sinclair

City of Ottawa (“City”/“Respondent”))

Frank Sperduti Laura Robinson

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The previous history of this proceeding was described in the Tribunal’s Decision issued on March 26, 2025, which ordered a rehearing of this matter (“Rehearing Decision”) on the basis of errors in the underlying original Decision (as defined in the Rehearing Decision as the “Existing Decision”) and need not be reiterated.

2Pursuant to the Rehearing Decision, the Tribunal ordered that a case management conference (“CMC”) be held to discuss the issues and parameters of the rehearing of this proceeding. That CMC was held on May 14, 2025. One outcome of the CMC was the Tribunal’s request, dated June 19, 2025, for supplementary submissions from the Parties on a number of issues related to the rehearing. As detailed in paragraph [3] below, the Parties made several additional submissions in August, 2025.

3In addition to the filings made by the Parties, which were enumerated in and considered by the Tribunal in reaching the Rehearing Decision, the supplementary materials delivered to the Tribunal as requested at the CMC were:

(a) Second Supplementary Submission of the Claimant, dated May 26, 2025, comprising 13 pages;

(b) Second Supplementary Book of Authorities of the Claimant, dated May 26, 2025, comprising 143 pages;

(c) Second Supplementary Submission of the City, dated June 2, 2025, comprising 13 pages;

(d) Second Supplementary Book of Authorities of the City, dated June 2, 2025, comprising 80 pages;

(e) Claimant’s Reply to Respondent’s Second Supplementary Submission, dated June 9, 2025, comprising 9 pages;

(f) Claimant’s Third Supplementary Submission, dated August 8, 2025, comprising 10 pages;

(g) Claimant’s Third Supplementary Book of Authorities, dated August 8, 2025, comprising 166 pages;

(h) Respondent’s Third Supplementary Submission, dated August 8, 2025, comprising 16 pages;

(i) Respondent’s Third Supplementary Book of Authorities, dated August 8, 2025, comprising 68 pages;

(j) Claimant’s Reply to Respondent’s Third Supplementary Submission, dated August 20, 2025, comprising 10 pages; and

(k) Claimant’s Reply Book of Authorities to Respondent’s Third Supplementary Submission dated August 20, 2025, comprising 40 pages.

4The Parties remain at odds concerning the scope of the rehearing. This partly arises from the fact that the Claimant, prior to the City’s request for review that led to the motion to review and the Rehearing Decision, had filed a Notice of Appeal to the Divisional Court (“Claimant’s Appeal”). As described in Second Supplementary Submissions, the Claimant’s Appeal is (below emphasis added):

…an appeal of the Original Decision to the Ontario Divisional Court pursuant to subsection 31(1) of the Expropriations Act on September 12, 2024...[which]…asserts, in part, that the Tribunal made an error of law by misapplying both the evidence and the proper legal test for the highest and best use of the Subject Lands

…On September 27, 2024, the City cross-appealed the Appeal on a contingent basis on account of the Review Request (the “Cross-Appeal”)

…To ensure procedural fairness, the parties requested on consent an adjournment of the Appeal and Cross-Appeal sine die so that the City’s Review Request could be disposed of by the Tribunal. The Appeal and Cross-Appeal remain adjourned.

5At the CMC, this Tribunal expressed concern to the Parties about what might result if the Divisional Court rules in favour of the Claimant’s Appeal and thus overturns the highest and best use (“HBU”) determination made in the Original Decision. If that occurs, it is possible (perhaps even probable) that the Divisional Court will direct that the Tribunal conduct a rehearing of at least the HBU issue. Given that the Rehearing Decision has already ordered a rehearing on certain terms, the Tribunal questioned whether the inclusion of the HBU matter in that rehearing might offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the rehearing. This guiding objective is set out in both Rule 1.3 of the Tribunal’s Rules of Practice and Procedure (“Rules”) and in subsection 12(2) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (“OLTA”).

6As a result, following the CMC, the Tribunal corresponded with the Parties on June 19, 2025 as follows:

Thank you for your further supplementary submissions dated May 26th, June 2nd and June 9th arising from the May 14 CMC held in this matter. The Tribunal invites further submissions from the Parties on the following matters:

1. If the scope of the rehearing of this case is prescribed to include the issue of highest and best use (“HBU”), how much additional hearing time would then be required?

2. If HBU will be included in the rehearing, should the Parties be permitted to call fresh evidence on that issue from expert and fact witnesses who did not provide witness statements and oral testimony at the original hearing of this proceeding? If witnesses who testified previously (and provided reports) are again utilized, should there be limitations on the scope of their written and oral evidence at the rehearing?

3. Please provide any other submissions that the Tribunal should consider regarding the inclusion of HBU as an issue for the rehearing proceeding.

The Tribunal encourages the Parties to reach agreement, if possible, on the above-noted matters.

7Unfortunately, the Parties have been unable to reach agreement as to whether the rehearing ought to include the HBU issue or as to how evidence should be tendered on that issue if it is included.

Inclusion of the HBU Issue in the Rehearing

Claimant’s Position

8In its Second Supplementary Submission, dated May 26, 2025, the Claimant actually proposed that the rehearing should be adjourned, pending the outcome of the Claimant’s Appeal. One of the Claimant’s arguments was as follows (below emphasis added):

Consistent with Rule 1.3 of the Tribunal’s Rules, the Appeal offers a fairer, more just, expeditious, and cost-effective means of resolving these matters than a Rehearing at this time, in part because it allows for full consideration of the highest and best use of the Subject Property. The determination of highest and best use is central to, and underpins, the determination of the Subject Property’s market value, which is the central and sole compensation issue in this case. This is particularly important given that the Tribunal has suggested that it will not consider all evidence relating to the highest and best use of the Subject Property during the Rehearing… Excluding this evidence and holding the Rehearing before the Appeal risks a review decision premised on findings that may ultimately be overturned by the Divisional Court.

… Addressing the Review Request first, by contrast, risks entrenching a flawed or incomplete record that, if Emros is successful on appeal, would be overturned, leading to a possible third hearing before the Tribunal and four hearings in total. Emros submits that tortuously lengthy and costly proceedings would not benefit either party and represent an unreasonable use of already burdened adjudicative resources.

9This argument of course is consistent in part with one of the concerns expressed by the Tribunal at the CMC, as noted above.

10Counsel for the Claimant made an alternative argument in its May 26, 2025 Supplementary Submission about overall fairness (below emphasis added):

…should the Tribunal decide to proceed with the Rehearing first, it must ensure that the evidentiary scope is not unduly restricted to appraisal evidence alone…

… The determination of market value …involves a broad range of complex considerations, which may be appropriately addressed through the evidence of appraisers, quantity surveyors, land economists, and other qualified experts that Emros may be prepared to advance before the Tribunal…

Restricting the evidentiary scope would risk undermining the fairness of the Rehearing and the Tribunal’s ability to arrive at a just and accurate determination of market value. As indicated, Emros did not file its own review request with the Tribunal dealing with market value considerations, in reliance on the Appeal. It would be unfair for the Tribunal to now use Emros’ compliance with the Tribunal’s past direction to close the door on an expanded evidentiary record, particularly should the Rehearing occur before the Appeal…

11In its August 8, 2025 Third Supplementary Submission, the Claimant’s counsel further refined its position in light of the Tribunal’s June 19^th questions (below emphasis added):

…Emros submits that it is in the best interest of the parties, the Tribunal and the interests of judicial economy that the scope of the Rehearing be such that multiple proceedings be avoided.

… Emros maintains that a fulsome Rehearing is required to properly address the Tribunal’s concerns expressed in the Review Decision. In addition, a Rehearing that includes the consideration of highest and best use provides a direct path towards a final determination of the disputed issues…

… Emros’ position is that a rehearing addressing the issue of HBU could be completed within ten hearing days. This represents an incremental increase from the seven-day estimate provided in Emros’ May 26 Submissions, which assumed the exclusion of HBU from the scope of the Rehearing…

… The HBU is the foundation of a determination of market value. As previously indicated in Emros’ May 26 Submissions, the Original Decision was made based on an HBU that was not the position of either party’s appraiser, raising concerns about procedural fairness and the evidentiary foundation of the Tribunal’s findings.

Respondent’s Position

12In its June 2^nd Supplementary Submission, the Respondent’s counsel argued that the rehearing should proceed before the Claimant’s Appeal and further contended (below emphasis added):

…The City’s position is that the sole issue in the partial rehearing is the market value of 747 Richmond Road (the “Property”) as of the Effective Date. The Tribunal is functus on issues of (1) highest and best use; and (2) environmental remediation costs, which were decided in the Original Decision and were not within the scope of the City’s request for review filed August 27, 2024 …

…The partial rehearing must proceed in order to arrive at that answer. It is premature for an appeal to Divisional Court to proceed before a final Tribunal order disposing of the Claimants’ compensation claim has been issued…It is well established that Courts are reluctant to hear appeals or judicial review proceedings before the administrative decision-making process has ended…The partial rehearing must proceed for the merits of the compensation claim to be adjudicated. An appeal to Divisional Court is not necessary for the dispute to be resolved. The most efficient route is therefore to proceed with the rehearing first. At this point in time, whether an appeal will proceed once the parties receive the Tribunal’s final award is speculative…

… The Claimants raise concern with the partial rehearing proceeding, premised on the Original Decision’s HBU conclusion, due to the possibility of the Divisional Court overturning that finding. This concern is theoretical and, in the City’s submission, unlikely…

… During the Case Management Conference, the Vice Chair directed the parties to paragraph 66(c) of the Rehearing Order and queried if the partial rehearing could consider any issues other than market value. It should not. Any portions of the Original Decision that were not raised in the City’s Request for Review should not form any part of the partial rehearing. More specifically: the Tribunal is functus on the issues of HBU and environmental remediation, as no party sought a review of those portions of the Original Decision. Any challenge to those findings in the Original Decision is solely within the jurisdiction of the Divisional Court. The Rehearing Order correctly identified these issues “shall be treated as agreed findings and shall not be disputed for the purpose of the Rehearing…

13Counsel for the Respondent further argued in the alternative in its Third Supplementary Submission as follows:

…In the event that the Tribunal were to order that the rehearing includes HBU as an issue, the City estimates that it will require 6-7 days to complete its evidence. The City’s new appraiser has advised that if he is tasked with completing his own assessment the Subject Property’s HBU, he anticipates requiring inputs from a land use planner, architect, quantity surveyor and land economist to inform his conclusion of what is the reasonably probable use of the Subject Property, that is physically possible, legally permissible, financially feasible, and maximally productive, and that results in the highest value…

…Based on that estimate, and the assumption that the Claimants’ will require a similar amount of time to complete their evidence, the City anticipates that a Rehearing that includes issues of both HBU and market value will add approximately 11 days of hearing time to the City’s proposal, for a total of 15 days. Of note, the first hearing in this proceeding required 15 days of evidence in June 2023, and a further 1.5 days for closing submissions in September 2023…

Claimant’s Reply on Respondent’s Jurisdictional Argument

14In its Reply to the Respondent’s Third Supplementary Submission, the Claimant’s counsel contends (below emphasis added):

…the City Submissions claim that the Tribunal does not have the jurisdiction to reconsider the HBU issue…Emros disagrees with the City for the reasons set out below…

… The City Submissions correctly cite Chandler v. Assn. of Architects (Alberta)…[ [1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 (S.C.C.).]… as the leading case for the test of functus officio. Chandler stands for the proposition that an administrative decision can be reconsidered if authorized by Statute, or if there was a typographical slip or error. However, the City failed to cite the relevant paragraphs:

[…] the principle of functus officio applies [to Tribunals]. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

(emphasis added).

Restated, functus officio in a Tribunal context is a policy decision, not a rule, and as such, its application is more flexible. While appeals in expropriation matters may be available on questions of fact as well as law, the key policy rationale from Chandler remains applicable: tribunals must retain flexibility to reopen proceedings “in order to discharge the functions committed to them by their enabling legislation” [see: Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252 (CA)]…

… While the City cites Jacobs Catalytic Ltd. v. IBEW, Local 353 in support of its position, it overlooks that case’s express holding that the doctrine of functus officio does not apply where a tribunal remains seized of the matter:

The decision in IBEW 1739 is of no assistance for the simple reason that in the instant case the Board did not remain seized to give further reasons. When an arbitrator or tribunal remains seized of an issue, the doctrine of functus officio, by definition, does not apply.

(Emphasis added)…

… in the current instance the Tribunal is not arbitrarily reserving jurisdiction. As stated by the Tribunal itself at para 66(c) of the Review Decision:

This Vice Chair will be seized of the Rehearing which shall be limited to solely the issue of the market value of the Property. For greater certainty, except as may be otherwise permitted by this Tribunal, the findings made in the Existing Decision dated August 2, 2024 concerning the highest and best use of the Property and as to the acceptance of the ‘Hobin Proposal’ more particularly described in paragraph [72], [88] and [89] of the Existing Decision shall be treated as agreed findings and shall not be disputed for the purpose of the Rehearing;

(emphasis added).

… The Vice-chair not only remained seized of the matter when issuing the Review Decision but expressly left open the possibility that the Tribunal may permit changes to its findings on HBU. The Tribunal’s potential reconsideration of this issue following extensive submissions from both parties is the opposite of arbitrary.

Tribunal Ruling on the Inclusion of HBU in the Rehearing

15By its inclusion in its Order clause in the Rehearing Decision of the words “except as may be otherwise permitted by this Tribunal”, the Tribunal specifically reserved its discretion to revisit the matter of HBU as part of the rehearing in subparagraph [66]c. of its Rehearing Decision, as is reproduced in paragraph [14] above. This was also noted by the Tribunal at the CMC when it prefaced its intention to seek further supplementary submissions on this very topic.

16Moreover, the Tribunal’s broad jurisdiction in rehearing matters is clearly stated in Rule 25.10 of the Rules (below emphasis added):

25.10 The Review Hearing The Tribunal Member or panel that conducts the review hearing shall rehear the appeal or application, in whole or in part, as either directed by the Chair or the decision arising from the motion to review, and may review, confirm, rescind, change, alter or vary any decision, approval or order made by the Tribunal.

17In addition, OLTA describes the general authority and jurisdiction of the Tribunal to determine matters and to make orders (below emphasis added):

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.

Orders

9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

18The Tribunal is guided by the objectives set out in subsection 12(2) of the OLTA and Rule 1.3 of the Rules, as noted above in paragraph [5]. In the Tribunal’s opinion, the best opportunity in all of the relevant circumstances present here for a fair, just, expeditious, and cost-effective resolution of the merits of the rehearing would be to exercise the Tribunal’s discretion to include full consideration of the HBU issue.

19In this regard, the Tribunal agrees with the Claimant that to include the HBU issue as part of the rehearing would be procedurally fair, in the best interests of the Parties, would reduce the prospect of a multiplicity of proceedings and that: “the consideration of highest and best use provides a direct path towards a final determination of the disputed issues”.

20For the reasons expressed above, the Tribunal rejects the ‘functus officio’ argument made by the Respondent above and finds compelling the discussion of the applicable jurisprudence and legal arguments of the Claimant, as set out in paragraph [14] above. Finally, the Tribunal disagrees that the broad discretionary authority of the Tribunal to conduct a full or partial rehearing is constrained solely by the terms of the Respondent’s original request for review. Note that the Chair of the Tribunal also has the authority to initiate a Request for Review and thus one party’s request for review ought not to be seen as the sole determinant of how a rehearing might be conducted. Finally, the Tribunal is of the view that the inclusion of the issue of HBU may partly or fully address the need for the appeal being currently held in abeyance by the Divisional Court.

Evidentiary Matters and Procedures for the Rehearing

21There is less disagreement between the Claimant and the Respondent as to how the rehearing shall be conducted with the consideration of HBU, as directed by the Tribunal.

22The Tribunal is prepared to set aside up to approximately 15 days for the rehearing and requests that the Parties further confer on the question of how many days are required and as to when the rehearing ought to commence and advise the Tribunal accordingly. If the Parties, upon reflection, believe that less or additional rehearing days may be needed, they may so advise the Tribunal.

23The Tribunal also agrees with the Parties that fresh evidence will be required on the HBU issue, and also notes from the Respondent’s Supplementary Submissions, that at least one different appraisal witness may be needed. However, it prefers that the Parties work together to propose a draft Procedural Order (“PO”) for the consideration of the Tribunal once the rehearing dates are scheduled. The PO will set out the usual provisions regarding witness statements, exchange dates, etc. leading up to the rehearing. The Tribunal assumes that the Parties do not intend to conduct further documentary or oral discovery but is open to receiving further submissions on that issue.

ORDER

24THE TRIBUNAL ORDERS THAT:

a. The rehearing shall be conducted in accordance with the Tribunal’s Decision issued March 26, 2025 (“Rehearing Decision”), except that the rehearing shall now include written and oral evidence and submissions concerning the issue of the highest and best use of the Subject Property;

b. Within seven days of the date of issuance of this Decision, the Parties shall advise the Tribunal as to their agreed proposed rehearing dates for the rehearing, or failing such agreement, shall each make separate proposals;

c. Within seven days of the Tribunal’s scheduling of the rehearing, the Parties shall submit an agreed draft Procedural Order for the consideration of the Tribunal, or failing such agreement, shall deliver a draft which clearly delineates all areas of disagreement; and

d. This Vice-Chair will remain seized of this proceeding for all matters arising from the Orders made above, the ongoing case management of this matter, including all motion practice, and for the rehearing.

“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.