Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 27, 2025
CASE NO(S).: OLT-23-000272
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Shell Canada Limited
Respondent: Regional Municipality of York
Description: Determination of compensation
Property Address: 4235 Highway 7 W
Municipality/UT: City of Vaughan
OLT Case No.: OLT-23-000272
OLT Lead Case No.: OLT-23-000272
OLT Case Name: Shell Canada Limited v. Regional Municipality of York
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Shell Canada Limited
Request for: Request for Directions
Heard: February 12, 2025 by telephone conference call February 20, 2025 in writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Shell Canada Limited (“Claimant”) | Matthew Owen-King, Candace Mak, Jacquilyn Beauchamp (articling student) |
| Regional Municipality of York (“Respondent”) | Frank Sperduti, Michael Grant |
DECISION DELIVERED BY ROBERT G. ACKERMAN AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Hearing event is a Motion by the Claimant for a Confidentiality Order pursuant to Rule 22.2 of the Rules of Practice and Procedure of the Tribunal (“OLT Rules”).
2The Claimant is the owner of lands municipally known as 4235 Highway 7 West, Woodbridge, in the Regional Municipality of York, and more particularly described as Part of Lot 5, Concession 6 Vaughan, as in VA78513, except Parts 1, 2 and 3 on Plan 64-R8043, City of Vaughan, Regional Municipality of York (“Subject Property”). The Subject Property is improved by a fueling station and convenience store operated by the Claimant under the brand name “Shell”.
3The Claim for compensation pursuant to the provisions of the Expropriation Act, R.S.O. 1990, c. E.26 (the “Act”) arises out of the Expropriation by the Respondent of portions of the Subject Property for improvements to the York Region Transit System by the construction of dedicated bus lanes along Highway 7. The claim is for disturbance damages and business losses pursuant to Sections 13(2)(b) and 13(2)(c) of the Act, costs and statutory interest.
THE PRE-HEARING CONFERENCE
4The five-day hearing on the merits of the claim is scheduled to commence on Tuesday, March 4, 2025 and all Counsel appeared before this Member on February 12, 2025, by telephone conference call for a pre-hearing conference and status update. Counsel confirmed that all five days scheduled for the hearing will be required and that the Parties will be ready to proceed on Tuesday, March 4, 2025.
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9Counsel for the Claimant, Mr. Owen-King, advised the Tribunal that an issue had arisen which has resulted in instructions from his client to seek a Confidentiality Order pursuant to Rule 22.2 of the OLT Rules. The requested Order would apply to confidential financial information belonging to the Claimant and to proprietary information and data owned by a non-party regarding sales tracking and trends of fueling stations. Mr. Owen-King advised that the data and information has been provided to Counsel for the Respondent, but has yet to be filed with the Tribunal due to the concern respecting the maintenance of confidentiality. Counsel for the Respondent, Mr. Sperduti, advised the Tribunal that his client has no objection to the granting of a Confidentiality Order. The Tribunal provided Directions that a Motion in writing be scheduled, that Counsel for the Claimant deliver a Motion Record containing evidence satisfying the test in Rule 22.2(b), and that upon receipt and review of the Claimant’s Motion Record, Counsel for the Respondent, subject to his review of the Motion materials served, provide written confirmation to the Tribunal that the Respondent does not take a position on the Motion and that it will not be delivering any responding materials. The Tribunal directed that a Factum will not be required, but that Counsel for the Claimant refer the Tribunal to the relevant statutory provisions and case law. The Claimant was directed to deliver its Motion Record by February 19, 2025.
THE DIRECTED MOTION FOR A CONFIDENTIALITY ORDER UNDER RULE 22.2
10The Tribunal received the Claimant’s Motion Record on February 19, 2025, and a covering letter from Mr. Owen-King setting out the relevant statutory provisions and case law. On February 20, 2025, the Tribunal also received a letter from Mr. Sperduti stating in part:
The Region has reviewed the motion materials served by the Claimant on February 19, 2025 and advises that it takes no position on the relief sought by the Claimant. The Region will not be delivering any responding materials.
THE EVIDENCE
11Shell plc is a multinational oil and gas company with headquarters in London, United Kingdom, and The Hague, Netherlands. The Claimant, which owns approximately 1,800 gas stations across Canada, is the principal Canadian subsidiary of Shell plc.
12To advance its claim for business loss in this proceeding, the Claimant must produce information and documentation regarding its finances, marketing, and business practices relating to the management and operation of the fuel station and convenience store at the Subject Property and generally. At the examination for discovery of its representative Counsel for the Respondent asked a number of questions seeking information and documentation regarding the Claimant’s finances, its efforts to mitigate its damages, and its business practices relating to management and operation of the fuel station and convenience store at the Subject Property. In response to undertakings and questions taken under advisement, the Claimant has produced but has not filed with the Tribunal, a number of its financial records, business records, information and marketing documentation, up to and including August 2024.
13Kalibrate Canada Inc. (“Kalibrate”) is a non-party and is the owner of proprietary information and data regarding sales tracking and trends of fueling stations in Ontario which Mr. Owen-King referred to at the pre-hearing conference. Kalibrate provides market data to its subscribing members, including the Claimant and other fuel retailers, through a reporting platform known as Kalibrate Market Intelligence (“KMI”). The data collected and provided by Kalibrate to subscribers such as the Claimant provides insight into market dynamics, and allows the Claimant and other subscribers to measure the success of their strategic, operational, and tactical decisions and to build a stronger brand and more resilient business by providing them with: (a) accurate volumetric and spot pricing data for the Canadian market; (b) analytics to explore and interact with that data; and (c) the ability to understand market trends and empower their decision making (“Kalibrate Information”).
14The Claimant was required to enter into an agreement with Kalibrate which, inter alia, provides that the Kalibrate data and related materials contain proprietary information and trade secrets of Kalibrate, will remain confidential and be used solely for internal and external business purposes of the Claimant and will not be loaned, distributed, published, transferred, or otherwise made available to others without the consent of Kalibrate.
15In support of this motion, Counsel for the Claimant filed an Affidavit sworn by Kent Robert Martin, who is the General Manager of Shell Mobility (Canada), which is a business unit of the Claimant. Mr. Martin described the harm which the Claimant would suffer were its confidential information exposed. He deposed that, if the Claimant’s confidential information is made available to the public, the result would be the complete exposure of the Claimant’s marketing, financial and business practices. The information would be of keen interest to the Claimant's direct competitors, and would therefore render the Claimant drastically less competitive in the oil and gas marketplace and jeopardize its business, as its competitors would gain knowledge of how the Claimant manages its fuel stations, its marketing and pricing strategies, and its revenues and profits. Mr. Martin deposed that this disclosure would cause harm to the Claimant’s negotiation and commercial abilities and that the result would be a benefit to the Claimant’s competitors to the Claimant’s great detriment and would jeopardize the Claimant’s business.
16Mr. Martin also deposed that he has received and that he does believe information provided by Shawn Blakey, who is the Real Estate Manager for Shell Mobility. Mr. Martin deposes that Mr. Blakey advised him that the Claimant subscribes to Kalibrate, and receives business intelligence data and analytics through the reporting platform, KMI. He deposed that in response to a request by the Respondent at discoveries, the Claimant has provided the Respondent with Kalibrate’s records regarding fuel stations located across Ontario, containing over 35,000 data entries which relate to Ontario fuel stations other than those of the Claimant (“Kalibrate Information” and “Non-Party Sites”).
17Mr. Martin goes on to depose that, if the Kalibrate Information is made available to the public, the Claimant's direct competitors and the owners of other gas and convenience retailers would be able to extrapolate for performance and pricing strategies for the Claimant’s fuel stations and for the Non-Party Sites. Therefore, if confidentiality of the Kalibrate Information is not maintained its disclosure will jeopardize not only the business of the Claimant, but also the businesses of Kalibrate, and of the owners of the Non-Party Sites.
18Counsel for the Claimant also filed an Affidavit sworn by Justin Tischler, who is the Chief Operating Officer of Kalibrate. Mr. Tischler described Kalibrate as a provider of business intelligence data and analytics to its clients through its reporting platform KMI which he described as a market data set, containing essential information for those with an interest or investment in fuel retailers. The data collected by Kalibrate includes, among other things, the data presented in Kalibrate’s proprietary data products (including KMI) and any data, including raw data, compiled into its proprietary database (collectively, “Kalibrate Data”).
19The Kalibrate Data allows its clients to create clarity around market activity, so that they can act and react accordingly. The Kalibrate Data provides its clients with insight into market dynamics, and allows them to measure the success of their strategic, operational, and tactical decisions and to build a stronger brand and more resilient business by providing them with: (a) accurate volumetric and spot pricing data for the Canadian market; (b) analytics to explore and interact with that data; and (c) the ability to understand market trends and empower their decision-making.
20To have access to the Kalibrate Data, its clients are required to sign a “Data Analytics and Consulting Services Agreement” and agree to Kalibrate’s standard terms (“Data Agreement”). This Data Agreement provides the clients with access to the Kalibrate Data and requires that the clients: (a) agree to use the Kalibrate Data solely for their internal and external business purposes within their territory; (b) agree not to lend, distribute, publish, transfer, or otherwise make the Kalibrate Data available to others unless otherwise agreed to in writing with Kalibrate; and (c) acknowledge that the Kalibrate Data and related materials contain proprietary information or trade secrets of Kalibrate and agree to maintain the confidentiality of the Kalibrate Data and related materials. The Kalibrate Data, and therefore the Kalibrate Information, is financially sensitive in nature, is not public knowledge, and would only be available upon engagement of Kalibrate’s services after the client has signed the Data Agreement.
21Mr. Tischler deposed that Canadian retail petroleum businesses cooperate with Kalibrate surveys under the understanding that the data Kalibrate collects will not become publicly available and will not be made available to other businesses who do not participate in Kalibrate’s surveys. He deposed that the selling of fuel station volumetic and attribute data is core to Kalibrate’s business and that, if the Kalibrate Information were to become publicly available, it would no longer have commercial value, thereby causing harm to Kalibrate’s business and goodwill.
22While the Claimant has not yet filed the Confidential Information with the Tribunal, it has been provided to the Respondent and the Parties’ experts for the purposes of this proceeding, subject to the terms of a confidentiality agreement. The issuing of a Confidentiality Order will provide the Claimant with the assurances it requires to file the Confidential Information and the Kalibrate Data and Kalibrate Information with the Tribunal for the purposes of the hearing so that confidential business information, including that of non-parties, will not become publicly available.
23Counsel for the Claimant has submitted a proposed form of Confidentiality Order as Schedule A to the Notice of Motion.
ANALYSIS
24Rule 22.1 of the OLT Rules provides that, by default, all OLT hearings are to be open to the public. However, the OLT Rules also provide for the Tribunal to issue confidentiality orders to protect, among other things, intimate and confidential information and documentation.
25Rule 22.2 of the OLT Rules provides the test for a Confidentiality Order:
22.2 Confidentiality Orders The Tribunal may order that any document filed in a proceeding be treated as confidential and not be disclosed to the public where the Tribunal is of the opinion that:
a. matters involving public security may be disclosed; or
b. the document contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public.
26In its Decision in McDonald’s Restaurants of Canada Ltd & 1444767 Ontario Inc. v. City of Toronto & TTC, 223 CanLll 76839 (ON LT) (“McDonald’s”) the Tribunal dismissed a motion for a Confidentiality Order on the basis that the Claimants sought to have “the Tribunal impose a broad and restrictive confidentiality order to govern its possible future productions” (para 6). Vice-Chair Middleton found that the Claimant’s motion was “pre-emptive” in nature (para 8) and went on to state that a “more carefully circumscribed” confidentiality order might be justified at a later stage in the proceeding “when it is much clearer what specific information and documentation is sought to be protected” (para 16, 41 and 45).
27Counsel for the Claimant submits that the following circumstances in the instant case are very different from, and distinguishes this case from that in McDonald’s:
(a) the Proceeding is on the eve of a hearing; (b) the Respondent is not taking any position on the relief sought in this motion; (c) the parties have already acknowledged and agreed that the confidentiality of the Kalibrate Information is necessary and fundamental to the protection of the business of Kalibrate and signed a confidentiality agreement regarding the provision of the Kalibrate Information; (d) the “confidential information” to be subject to the Confidentiality Order will be clearly enumerated in the Confidentiality Order; (e) the intimate financial information to be protected by the Confidentiality Order includes that of non-parties; and (f) the intimate financial information to be protected by the Confidentiality Order includes current sensitive financial data.
28Counsel for the Claimant has referred the Tribunal to its recent unreported Decision in Kareem George Saikaley v. Ottawa (City) 2024 CanLII 69901 (ON LT), 2025 CanLII 5384 (ON LT) (OLT-21-001312) (“Kareem”), where the Tribunal distinguished the Decision in McDonald’s and granted a Confidentiality Order, asserting that the Tribunal’s concerns within McDonald’s were not present in “the current proceeding since there is no overbroad request being made at an early juncture for detailed confidentiality restrictions” (para 8). In Kareem, as is the situation in the instant case, “the Parties [were] filing the applicable expert reports very soon in order to have the Tribunal adjudicate” unlike the documents in McDonald’s which were “partly undefined or may not [have been] filed” (para 10).
FINDINGS
29After careful consideration of the evidence filed, the law, and the submissions of Counsel for the Claimant, the Respondent taking no position on this Motion, the Tribunal finds pursuant to Rule 22.2(b) of the OLT Rules, that both the Claimant’s Confidential Information, the Kalibrate Information and the Kalibrate Data, contain information regarding intimate financial or personal matters that are of such a nature that the public interest and the interests of the Claimant, Kalibrate and other Non-Parties outweigh the desirability of adhering to the principle that documents filed in a proceeding be available to the public, and that a Confidentiality Order should therefore issue.
30The Tribunal has carefully reviewed and considered the proposed form of Order tendered by Counsel for the Claimant and finds it to be reasonable in its entirety. An Order will therefore be approved in the form submitted by Counsel for the Claimant, Counsel for the Respondent taking no position.
ORDER
31The Tribunal Orders, that the motion is granted and that the information set out in the draft Order submitted by Counsel for the Claimant shall be made confidential, and not be disclosed to the public pursuant to Rule 22.2 of the Rules of Practice and Procedure of the Ontario Land Tribunal.
“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.