Globe Wholesale Meats Inc. et al. v. Metrolinx, 2025 CanLII 21801

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 10, 2025

CASE NO(S).:

OLT-22-004795

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

Claimants:

Globe Wholesale Meats Inc., 5000905 Ontario Inc., and 2347964 Ontario Inc.

Respondent:

Metrolinx

Subject:

Determination of compensation

Description:

Claim related to the Finch West Light Rail Transit Project

Property Address:

61 Signet Drive

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-004795

OLT Lead Case No:

OLT-22-004795

OLT Case Name:

Globe Wholesale Meats Inc. et al. v. Metrolinx

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by:

Metrolinx

Request for:

Request for Directions

In writing only:

March 4, 2025

APPEARANCES in writing only:

Parties

Counsel

Global Wholesale Meats Inc., 5000905 Ontario Inc., and 2347964 Ontario Inc. (“Globe”)

Matthew Valitutti

Metrolinx

Robert Wood Brett Davis

decision DELIVERED of william R. MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter proceeded to a first Case Management Conference (“CMC”) on May 30, 2024 in relation to claims made by Globe against Metrolinx for damages under subsection 26(b) of the Expropriations Act. Further background details are set out in the Decision of the Tribunal dated June 21, 2024 (“Prior Decision”) and need not be reiterated here.

2The Prior Decision scheduled a hearing date for this matter commencing on November 17, 2025 and also established a Procedural Order (“PO”). Since then, some examinations for discovery have been partly completed by the Parties and various disputes have arisen between the Parties concerning documentary productions by the Globe, Metrolinx’s Reply and with respect to the scheduling of mediation.

3The Parties now seem mired in these disputes and the Tribunal therefore directed written motion practice (“Motion”) to deal with that. In the Tribunal’s view, unless they settle this proceeding, the Parties need to squarely focus on completing the necessary steps required in this litigation since the hearing date is now just seven months away. Generally, the Tribunal will no longer entertain adjournments of hearing dates in expropriation matters except pursuant to a settlement or a motion properly brought under Rule 17 of the Tribunal’s Rules of Practice and Procedure (“OLT Rules”).

4The following materials were delivered in connection with the Motion:

(a) Metrolinx Motion Record dated February 11, 2025, comprising 494 pages;

(b) Metrolinx Written Submissions, dated February 11, 2025, comprising 19 pages;

(c) Globe Response to Metrolinx Motion dated February 18, 2025, comprising 153 pages; and

(d) Metrolinx Reply Submissions, dated February 21, 2025, comprising 12 pages.

MATTERS IN DISPUTE

5Much of the content set out in the Parties’ Motion materials and the dispute between them can be distilled as follows:

(a) Metrolinx alleges that Globe has not produced the proper financial records underlying Globe’s damages claim – The Tribunal agrees;

(b) Metrolinx seeks to amend its Reply in an effort to address Globe’s allegations that the requested financial records do not relate to issues pleaded – Regardless of whether there is merit to Globe’s allegations, the Tribunal will permit Metrolinx to amend its Reply; and

(c) Globe very much desires to proceed to mediation and maintains that Metrolinx is ‘deliberately delaying’ mediation – It is unnecessary for the Tribunal to adjudicate the issue of possible deliberate delay but it has made certain Orders below concerning mediation.

6The Tribunal always focuses on directives that are aimed at measures which offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding in accordance with Rules 1.3 and 1.4. of the OLT Rules. Moreover, although the OLT Rules permit reference to the Rules of Civil Procedure, the latter are not binding on the Tribunal as is made clear in OLT Rule 1.4 and OLT Rule 26.3.

7In expropriation matters – which are the types of proceedings adjudicated by the Tribunal that are most like civil litigation – the Tribunal has often commented that it discourages highly technical motion practice related to pleadings or matters of proper production. In the Tribunal’s view, when parties unduly focus their efforts on such matters it does not serve to create the conditions for expeditious and cost-effective dispute resolution or adjudication. Unfortunately, the events leading up to this Motion bear some of the hallmarks of that unconstructive approach as do the positions of the Parties set out in their motion materials.

8There is no proper basis set out in Globe’s responding materials upon which Metrolinx ought not to be permitted to amend its Reply. Moreover, at this stage there is no evidence of any actual prejudice that would be suffered by Globe given that the discovery process has not yet been completed. Arguably, even without an amended Reply, there is no grounds upon which Globe ought to be relieved from the requirement to provide the financial records and documentation underlying its damages claim for resultant business losses. However, an amended Reply puts an end to that narrow, technical dispute. Of course, if the requested records and documentation do not exist, or somehow cannot be retrieved, that is a separate matter not directly raised on this Motion – in that event, further avenues may be explored.

9In the Tribunal’s view, the allegations by Globe in its response (set out directly below) as to a hidden agenda on the part of Metrolinx in seeking additional documentary disclosure and to amend its pleading do not require adjudication by the Tribunal. In any event, those allegations are irrelevant:

Metrolinx is actually seeking additional relief, which is not included in the “Relief” section of the notice of motion, but disguised in the “Grounds” section at paragraph 24 of the notice of motion where Metrolinx appears to also be seeking an order delaying the mediation. This is the actual purpose of this motion by Metrolinx and is what this motion was intended to do when it was initiated by the Claimants (prior to attending discoveries). The fact that it is buried in the “grounds” section reveals that is collateral to the main relief sought on the motion.

10The Tribunal also does not agree with the submission of Globe that there is any ‘abuse of process’ raised by reason of this Motion by Metrolinx. Often matters dealt with at one interim stage of a proceeding – such as a CMC – may well be revisited by one or both Parties at a later juncture. Moreover, POs are often fluid and even when the Parties haven’t sought a specific change, the Tribunal has the inherent control over its own process and may initiate its own changes to a PO at any time. When mediation is concerned, although the Tribunal has the ultimate power to direct a mandatory mediation it is and should be reluctant to do so – for the reasons described below.

11As a final point, the Tribunal disagrees with the highly technical arguments made by Globe concerning the alleged deficiencies of Metrolinx’s proposed amended Reply. The Tribunal finds it unnecessary to comment further on those submissions.

MEDIATION

12It appears here that both Parties, in theory, seem to desire mediation – which the Tribunal heartily encourages. However, in the Tribunal’s experience gleaned from its Mediation Group, involuntary mediation is rarely productive. It is far better that the Parties willingly proceed to mediation whether or not facilitated by the OLT Mediation Group.

13Within the last 24 months, Rule 26 of the OLT Rules – which governs expropriation proceedings – has twice been amended. In the first set of amendments, Rules 26.4, 26.5, 26.6, 26.7, 26.8, 26.9 and 26.10 were introduced. The broad latitude afforded the Tribunal under the Ontario Land Tribunal Act, S.O. 2021 (“OLTA”) with respect to mediation is reflected in those provisions. Yet here, the Tribunal observes that neither Party has apparently utilized those new Rules as there is no record of a formal mediation request being filed by either Party – this might be due to certain comments made in the Prior Decision and the existing PO. On the other hand, it appears that there has been outreach to the Tribunal’s Mediation Group and nothing in this Decision or the attached revised PO should be interpreted in a way that interferes with any current or future agreement of the Parties to mediate on any particular date.

14As noted below, the Tribunal is now formally requiring the Parties to meet and confer regarding mediation, in accordance with Rules 26.6 and 26.7. However, the Tribunal is not yet at a point where it is prepared to enforce mandatory mediation, notwithstanding anything contained in the Prior Decision for the reasons stated above. The Tribunal has reviewed this proceeding in detail and is satisfied that circumstances have evolved differently than expected and that a directed, mandatory mediation is premature. In the Tribunal’s view, the sooner the Globe provides the relevant financial documentation sought by Metrolinx, the sooner a mediation will be maximally productive. Metrolinx is strongly encouraged not to delay its participation in mediation for tactical / strategic reasons – such as, for example, in an effort to compel Globe to expend additional unnecessary effort, time and expense. However, at this stage, there is no evidence of this having occurred.

REVISED PO

15A PO is never ‘set in stone’ once issued. It is within the express and inherent jurisdiction of the Tribunal – under both OLTA and the OLT Rules – to control its proceedings and to revise a PO at any reasonable stage of a proceeding. As noted above, sometimes this occurs at the request of one or both of the parties and sometimes this is done on the initiative of the Tribunal exercising its case management mandate.

16It is evident to the Tribunal that the existing PO needs revision, partly to better implement the Orders made below. Thus, certain changes have been made.

ORDER

17THE TRIBUNAL ORDERS THAT:

a. Globe Wholesale Meats Inc., 5000905 Ontario Inc., and 2347964 Ontario Inc. shall produce to Metrolinx any and all existing documents within its possession or control referred to in Attachment 1 hereto within 30 days of the date of this Order;

b. Metrolinx is permitted to deliver its amended Reply in the form and content set out in Attachment 2 hereto;

c. The Parties are directed to complete examinations for discovery and the other steps in this proceeding in accordance with the revised Procedural Order appended as Attachment 3 hereto;

d. The Parties shall forthwith confer regarding mediation in no event later than 20 days from the date of this Order in accordance with Rule 26.6;

e. The Parties shall deliver written submissions to the Tribunal in no event later than 30 days from the date of this Order in accordance with Rule 26.7;

f. For clarity, nothing in the Orders made in d. and e. above shall be construed to alter any agreed arrangements already made by the Parties with respect to conducting a mediation on an agreed date; and

g. No costs shall be payable to either Party in respect of the motion brought by Metrolinx dated February 11, 2025.

18This Vice Chair shall remain seized of this proceeding with respect to the implementation of the above Orders and any matters arising from the Orders and in respect of all other matters in this proceeding save and except for any mediation that may be convened by the Tribunal and the hearing of this proceeding now scheduled for Monday, November 17, 2025.

“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.

ATTACHMENT 1

ATTACHMENT 2

ATTACHMENT 3

CASE NO(S).: OLT-22-004795

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

Claimant:

Globe Wholesale Meats Inc., 5000905 Ontario Inc., and 2347964 Ontario Inc.

Respondent:

Metrolinx

Description:

Determination of compensation

Property Address/Description

61 Signet Drive

Municipality

Toronto

OLT File/Case No.

OLT-22-004795

OLT Case Name

Globe Wholesale Meats Inc. et al v. Metrolinx

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or on its own initiative.

Organization of the Hearing

2. The video hearing will begin on Monday, November 17, 2025 at 10:00 a.m. for 6 days up to and including Monday, November 24, 2025.

3. The parties’ initial estimation for the length of the hearing is 6 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

Pleadings (the issues in this proceeding are defined solely by the pleadings described below):

5. The Claimant served and filed a Statement of Claim dated November 4, 2022.

6. The Respondent served and filed a Reply dated January 24, 2024 and shall deliver an amended Reply in accordance with the Decision which Ordered this revised Procedural Order

Documentary and Oral Discoveries:

7. The parties shall exchange their supplementary respective Affidavits of Documents on or before April 15, 2025.

8. Further and continued examinations for discoveries shall be completed on or before May 31, 2025.

9. Each party shall answer their respective undertakings arising from examinations for discovery on or before June 15, 2025.

10. Any Motion(s) arising from the examinations for discovery shall be brought in writing only on or before July 15, 2025.

List of Witnesses

11. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before October 3, 2025

Expert Reports and Witness Statements

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to her the expert’s testimony.

13. On or before August 14, 2025, expert witnesses in the same field shall have a meeting and use best efforts to try to resolve or reduce the issues for the hearing. If the expert witness reach agreement on certain facts, their Agreed Statement of Facts shall be delivered on or before August 31, 2025

14. On or before August 31, 2025, the Claimant shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and any responding expert witness statements by the Respondent are to be provided within 15 days thereafter.

15. On or before October 1, 2025, the Claimant shall provide copies of their reply expert witness statement to the other parties and to the OLT case co-ordinator.

16. On or before October 3, 2025, any party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence.

17. On or before October 3, 2025, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have reasonable opportunity to view it before the hearing.

18. “Visual Evidence” includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.

19. “Witness Statement” is a short written outline of a lay witness’ background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the Hearing.

20. An “Expert Witness Statement” should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing.

21. On or before October 15, 2025: (a) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required; and (b) if either party seeks to exclude or limit the written or oral evidence of the other party it must file with the Tribunal a written motion.

22. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 17, 2025.

23. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

GENERAL PROVISIONS:

24. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 1, 2025 including a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

25. All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

26. No adjournments or delays will be granted before or during the hearing except pursuant to the Tribunal’s Rule 17.

EVIDENCE AT THE HEARING:

27. The order of presentation of evidence shall be:

a. case for the Claimant;

b. case for the Respondent; and

c. reply by the Claimant, if any.