Craft Kingsmen Rail (East) Corp. v. Metrolinx, 2025 CanLII 113862

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 29, 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
Craft Kingsmen Rail (East) Corp. (“Craft”)	P. Scargall, D. Lurie
Metrolinx (or “Respondent”)	B. O’Callaghan, A. Lu

DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

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 a motion brought by Craft by way of its motion record dated September 26, 2025 (“Motion”) seeking production of certain documents and information from Metrolinx allegedly relied upon and referred to in a report prepared by Barry Conway, N. Barry Lyon Consultants Ltd.: “Market and Land Economic Review: Assessment of Market Demand for the Air Rights over certain parts of the Union Station Rail Corridor” dated August 25, 2025 (“NBLC Report”) delivered by Metrolinx to Craft as part of the exchange of expert witness statements required under the governing Procedural Order in this proceeding (“PO”).

3The materials delivered for the Motion were:

(a) Craft Motion Record, comprising 868 pages;

(b) Craft Factum, comprising 31 pages;

(c) Metrolinx Responding Record, comprising 414 pages; and

(d) Craft Reply, comprising 17 pages.

4The specific requests in the Motion in relation to the NBLC Report are for:

(a) the “NBLC RFP document” in respect of the 433 Front Project, as referenced in Figure 11 on page 16 of the NBLC Report;

(b) “preliminary feasibility studies conducted by Metrolinx” entitled “B+H, PCL, Deloitte, Development Options 433 Front Street, June 2020,” referenced in footnote 3 in paragraph 32 of the NBLC Report;

(c) a “Letter of Intent” referenced in paragraph 35, along with a “construction contract” referenced at paragraph 37 of the NBLC Report; and

(d) any subsequent agreement(s) entered into between Metrolinx, Kilmer Group and DREAM in respect of the 433 Front Project (collectively, the “RFP Documents”).

5Craft also seeks an Order: “…directing the Respondent to produce a letter from Aird & Berlis LLP dated July 18, 2025 (the “Instructing Letter”, collectively with the RFP Documents, the “Documents”), which was relied upon and referred to in six of the Respondent’s Expert Witness Statements/Expert Witness Reports…” also delivered to date under the PO.

ISSUES / ANALYSIS

(i) General Principles on Discovery

6This Motion raises issues concerning the obligations of parties in expropriation cases concerning documentary discovery and expert witness statements delivered under a PO prior to a final hearing.

7The Tribunal encourages parties in expropriation cases to quickly bring motions, in writing, when issues arise as the result of the filing of expert witness statements. This is particularly so when one party seeks to limit or exclude written and later oral evidence, because it avoids the situation where suddenly at the hearing the Tribunal may be asked to grant that remedy in circumstances that might deprive one party from tendering all or part of its case – which in turn could give rise to fairness issues. However, the circumstances underlying this motion are equally important: It is desirable that each Party is put in a position to properly inform its intended expert witnesses so that the exchange of witness statements and reply witness statements is complete and fulsome. Not only does this assist the Parties in their preparation for the hearing, it is also essential because it fosters the presentation of a full and complete evidentiary record for the adjudicative use of the Tribunal.

8It is well known that although expropriation proceedings before the Tribunal proceed under the normal adversarial system, the role of expert opinion evidence is to assist and inform the Tribunal in a fair and impartial fashion. This is most explicitly recognized in Rule 7.5 of the Tribunal’s Rules and Practice and Procedure (“Rules”) and in the Acknowledgement of Experts’ Duty form commonly included with all expert witness statements (below emphasis added):

“…I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

a. to provide opinion evidence that is fair, objective and non-partisan;

b. to provide opinion evidence that is related only to matters that are within my area of expertise;

c. to provide such additional assistance as the Tribunal may reasonably require, to determine a matter in issue…”

9For the Tribunal to properly understand and be assisted and informed by an expert opinion report, it needs to be apprised of what the expert relied upon in forming his/her opinions and conclusions. Where the expert actually describes or lists sources and reports authored by others, then the Tribunal will be informed by considering the information provided by those sources. Thus, those listed and described sources ought to provided by the expert witness along with the witness statement or reply witness statement as the case may be. Sometimes, such source material is contained in appendices to an expert’s report but often it is not delivered until an objection or request such as this Motion is initiated.

10The principle and requirement described in paragraph [9] above is reflected at least implicitly in the PO – in this case, in paragraph [23] thereof. However, the principle is applicable even though a governing PO may not list each and every item that ought to be produced with the expert witness statement (which would be impractical to do in every PO given the wide variety of types of expert evidence tendered to the Tribunal).

11Separate from, but related to, the important principle discussed above is the obligation of a qualified expert witness to answer questions about what documents, conclusions and information etc. (s)he relied on in forming opinions and conclusions proffered to the Tribunal. Certainly, those questions will be almost certainly be asked on direct or cross-examination at the hearing – or by the Tribunal itself. However, from the Tribunal’s standpoint, the actual production of documents and sources relied upon by the expert should not wait until that stage of the final hearing, because that could be inefficient, unfair and could lead to resultant and costly delays in the hearing. Thus, it is instead mandatory to disclose such information, documentation and sources as part of the disclosure process involved in the exchange of witness statements and reply witness statements.

12In expropriation proceedings under Rule 26.28 of the Rules, no specific Order is required to permit written and oral discovery. In fact, most written and oral discovery obligations are agreed to by the parties and in this proceeding were set out in the PO. Examinations for discovery of both Parties’ representatives have taken place and prior to that, Affidavits of Documents were delivered. Upon request, as noted in the Motion, Rule 9.1 also permits Orders for further discovery (below emphasis added):

9.1 Order for Discovery The Tribunal may make an order for discovery for a party to obtain necessary information from another party. Such an order will be made only on motion and only if the party has requested information and it has been refused or no answer has been received. The notice of motion shall be accompanied by an affidavit, which sets out the efforts made to obtain the desired information and the reasons that demonstrate that the information sought is both necessary and relevant to the disposition of the issues in the proceeding. The Tribunal may order:

a. any person to provide an affidavit containing a list of relevant documents in the possession of the person;

b. the delivery of relevant documents;

c. an examination or cross-examination of any person or party;

d. an examination for discovery by written questions;

e. the inspection and testing of property;

f. the examination of a witness before the commencement of a proceeding (under the Rules of Civil Procedure);

g. any other form of discovery; and

h. that conditions be imposed concerning the timing and scope of discovery.

(ii) Metrolinx Agrees to Most of the Orders Sought by Craft

13In its responding materials, despite its previous refusals to produce materials requested, Metrolinx has agreed to many elements of the Orders sought by Craft on the Motion (despite claiming that the Motion was filed unnecessarily and without adequate notice – matters the Tribunal finds unnecessary to comment upon in this Decision). Therefore, the Tribunal’s Decision will deal with only those documents that Metrolinx continues to refuse to produce.

14The net impact of the assertions contained in Metrolinx’s Responding Record and the submissions made in the Craft Reply, is that the following documents comprise those which Metrolinx still refuses to produce and Craft continues to seek:

(a) The construction contract referred to at paragraph 27 of the NBLC Report, (“the OnCorr Construction Contract”); and

(b) Any of the subsequent agreement(s) entered into between Metrolinx, Kilmer Group and DREAM in respect of the 433 Front Project (the “Subsequent Agreements”)

15Craft’s position remains that the OnCorr Construction Contract and the Subsequent Agreements are referred to in the NBLC Report and are thus producible by Metrolinx. Metrolinx does not dispute that the NBLC Report refers to the OnCorr Construction Contract but claims that it ought not to be produced. Metrolinx argues that the Subsequent Agreements are not referenced at all in the NBLC Report.

16Metrolinx argues that the only fact cited in the NBLC Report concerning the OnCorr Construction Contract was that it had not been executed as of 2021. Since that information is publicly available, Metrolinx contends that it does not justify production of the full document.

17As noted, Metrolinx further argues that the Subsequent Agreements are not directly referred to in the NBLC Report.

18In response to the above, Craft contends that both the OnCorr Construction Contract and the Subsequent Agreements are “rooted” in certain discussions and conclusions expressed in the NBLC Report. This is so because Craft points out that NBLC offers an opinion comparing the potential development pleaded by Craft in its Statement of Claim to another Metrolinx project located at 433 Front Street in Toronto. Essentially, NBLC points to difficulties with construction activities and coordination of construction at 433 Front Street and opines that the potential development pleaded by Craft would face the same or substantially similar difficulties and problems. Craft also argues that Metrolinx has conceded in its responding materials that the Kilmer Group and DREAM were the preferred proponents in the 433 Front Street project and therefore contends that Metrolinx’s agreements with them are relevant to a fuller understanding and appreciation of the above-summarized opinion of NBLC.

19On this Motion, the Tribunal is not adjudicating the merits of Craft’s claims or of Metrolinx’s defence to those claims. The only issues to be considered are whether the items sought by Craft are either explicitly or implicitly referred to in the NBLC Report tendered by Metrolinx for the final hearing of this proceeding and are relevant to issues raised in the pleadings of Craft or Metrolinx. If they are, then they ought to be produced now.

20Upon review of Craft’s submissions and after consideration of Metrolinx’s lengthy explanation of the NBLC report contained in paragraphs 40, 41 and 42 of its Responding Record, the Tribunal accepts that the OnCorr Construction Contract and the Subsequent Agreements ought to be produced because both are at least implicitly referred to and relied on by NBLC. In addition, both may contain information that is relevant to the feasibility of the potential development proposed and pleaded by Craft in its Statement of Claim. In turn, that development proposal is a key basis of Craft’s claims for compensation set out there.

21None of these documents as described in paragraph [20] need be filed with the Tribunal at this juncture and thus it is premature to consider whether any type of confidentiality Order is justified under Rule 22 of the Rules. In the event that those documents are proposed to be tendered or otherwise included in written or oral evidence by either Party, Metrolinx may then seek a confidentiality Order by a separate written motion.

22However, it should be kept in mind that for a variety of reasons as expressed in the Tribunal’s most recent jurisprudence in expropriation matters concerning such confidentiality Orders, the Tribunal is reluctant to grant such Orders except in the clearest of circumstances and only as supported by detailed, persuasive affidavit evidence establishing that the requirements of Rule 22.2 have been met. The fact that Craft may not oppose – or may even consent to – such an Order is not determinative.

ORDER

23THE TRIBUNAL ORDERS THAT:

(a) Metrolinx shall, within seven days of the date of this Decision, provide the following documentation to the Claimant (“Supplementary Productions”) related to a report prepared by Barry Conway, N. Barry Lyon Consultants Ltd.: “Market and Land Economic Review: Assessment of Market Demand for the Air Rights over certain parts of the Union Station Rail Corridor” dated August 25, 2025 (“NBLC Report”):

(i) the “NBLC RFP document” in respect of the 433 Front Project, as referenced in Figure 11 on page 16 of the NBLC Report;

(ii) “preliminary feasibility studies conducted by Metrolinx” entitled “B+H, PCL, Deloitte, Development Options 433 Front Street, June 2020,” referenced in footnote 3 in paragraph 32 of the NBLC Report;

(iii) a “Letter of Intent” referenced in paragraph 35, along with a “construction contract” referenced at paragraph 37 of the NBLC Report;

(iv) any subsequent agreement(s) entered into between Metrolinx, Kilmer Group and DREAM in respect of the 433 Front Project; and

(v) The construction contract referred to at paragraph 27 of the NBLC Report, (the OnCorr Construction Contract)

(b) The Claimant may amend its Reply Witness Statements if and as required to respond to the Supplementary Productions, within 20 days of receipt thereof;

(c) Metrolinx is granted leave to file a written motion seeking an Order under Rule 22 of the Tribunal Rules of Practice and Procedure in relation to the Supplementary Productions if and as required;

(d) 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

(e) There shall be no Order as to the costs of this motion which shall be deferred 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.