1380268 Ontario Inc. and 2244214 Ontario Ltd. o/a Virk Home Furnishing v. Metrolinx, 2025 CanLII 24788

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 19, 2025

CASE NO(S).:

OLT-24-000580

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

Claimant:

1380268 Ontario Inc. and 2244214 Ontario Ltd. o/a Virk Home Furnishing

Respondent:

Metrolinx

Subject:

Land Compensation

Description:

To permit construction in relation to the Scarborough Subway Extension

Reference Number:

Expropriation Plan No. AT6218627

Property Address:

20 Nugget Avenue

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-24-000580

OLT Lead Case No:

OLT-24-000580

OLT Case Name:

1380268 Ontario Inc. and 2244214 Ontario Ltd. o/a Virk Home Furnishing 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:

Motion for Undertakings and Refusals

Heard:

February 10, 12, 24, March 4, 2025, in writing

APPEARANCES:

Parties

Counsel

1380268 Ontario Inc. and 2244214 Ontario Ltd. o/a Virk Home Furnishing (“Claimants”)

Emilio Bisceglia Hana Tariq

Metrolinx (“Respondent”)

Christel Higgs Jessica Karban Aisling Flarity

DECISION DELIVERED BY ROBERT G. ACKERMAN ON MARCH 17, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is a Motion in writing by the Respondent for an Order that the Claimant answer certain undertakings on the Examination for Discovery of its representative, Beant Virk, and certain questions which were refused or taken under advisement. By Order of the Tribunal dated October 21, 2024, which established the terms of the Procedural Order (“PO”) governing the conduct of this Proceeding, the scheduling of a Motion such as this was provided for. The PO requires that the request or scheduling for any such Motion be completed by January 17, 2025, on which date Counsel for the Respondent delivered the Motion Record herein. This Motion was originally returnable at a Status Hearing on February 3, 2025, along with a Motion for Directions. Vice Chair Middleton heard the Motion for Directions and adjourned the Undertakings and Refusals portion of the Motion to be heard this date. The Hearing on the merits of this application for compensation under s. 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26 (“Act”) is scheduled for 14 days, beginning on Monday, July 28, 2025.

2The claim for compensation arises out of the expropriation by the Respondent of all of the right, title, and interest of the Claimant 1380268 Ontario Inc. (“138”) in and to the property municipally known as 20 Nugget Avenue in the City of Toronto (“City”). The Subject Property was required for the construction of the Scarborough Subway project and is more particularly described as:

Pt Lot 22, Con 3 (Scarborough), designated as Pts 1, 2 & 3 on Expropriation Plan AT6218627; t/w rights in SC306151; s/t SC306315, SC448177; City of Toronto. (“Subject Property”)

3The Subject Property was improved with a commercial building having approximately 22,000 square feet of area which was tenanted by the Claimant 2244214 Ontario Ltd. o/a Virk Home Furnishing (“Virk Home”).

4138 claims amounts totaling $52,950,000 being comprised of payment for the market value of the Subject Property in the sum of $28,950,000, disturbance damages in the amount of $14 million, and business losses in the amount of $10 million. Virk Home claims amounts totaling $7 million comprised of $2 million for business losses and $5 million for disturbance damages. No particulars respecting the calculation of the amounts claimed are set out in the Statement of Claim. Paragraph 33 asserts that “the full particulars of all such losses shall be provided prior to the hearing of this matter”.

5The Examination for Discovery of Mr. Virk on behalf of both Claimants was held on November 26, 2024. The questions unanswered, incompletely answered, taken under advisement, and refused fall into four categories:

a. Questions relating to the financial information of 138;

b. Questions relating to the financial information of Virk Home;

c. Questions relating to the highest and best use and redevelopment of the Subject Property; and,

d. Questions relating to allegations of bad faith on the part of the Respondent.

6The Parties completed the following filings respecting this Motion:

a. Motion Record – Metrolinx – January 17, 2025;

b. Responding Motion Record – Claimants – January 30, 2025;

c. Reply to Response to Motion Record – Metrolinx – February 11, 2025;

d. Supplementary Responding Motion Record – Claimants – February 12, 2025;

e. Costs Outline (revised) – Metrolinx – February 24, 2025;

f. Costs Outline and Submissions– Claimants – March 4, 2025.

7Counsel for the Respondent, Ms. Flarity, filed an Undertakings and Refusals Charts which included the Claimants’ responses as Tab “A” to the Reply to Response Motion to Motion Record filed on behalf of the Respondent dated February 11, 2025. Claimant’s counsel, Mr. Bisceglia, submits that some of the undertakings and questions under advisement have been partially answered as set out in the Claimants’ Response, but submits that the remaining questions in dispute were properly refused on the basis of relevance and proportionality.

8It is unnecessary to repeat each undertaking for which the answer is incomplete, and each question refused. The following are examples of the incomplete undertaking answers given and the grounds for the questions refused, which the Tribunal finds particularly troubling and problematic:

a. UT #3 – “To provide proof [from 138 Inc.] for business losses of $10,000,000.00”. The initial answer was “the Claimants will provide particulars shortly”. The further answer given is “In support of their claim for business loss, the Claimants are relying on their productions, including but not limited to, the financial statements produced”. Ms. Flarity submits that this answer provides no particulars of the $10 million claim. The Tribunal agrees and so finds.

b. UT #5 – “To provide the particulars related to the information, facts, or evidence that the amounts for the disturbance damage amount and the business losses amount are based on”. As is the case with undertaking #3, the initial answer was “the Claimants will provide particulars shortly”. The further answer is also the same as for undertaking #3- “In support of their claim for business loss, the Claimants are relying on their productions, including but not limited to, the financial statements produced”. Ms. Flarity submits that this answer also provides no particulars of the disturbance damage or business loss claims. The Tribunal agrees and so finds.

c. UT #37 – “To provide the full particulars of the damages that were suffered by the claimant as a result of Metrolinx’s actions”, is answered in the identical fashion as undertakings #3 and #5. Ms. Flarity submits that this answer also provides no particulars of the disturbance damage or business loss claims. The Tribunal agrees and so finds.

d. REF #18 –“To advise if any studies or analyses with respect to the redevelopment of the property had occurred as of the valuation date”. “Refusal maintained on the basis of relevance and proportionality”.

e. REF #19 – “If any studies or analyses with respect to the redevelopment of the property had taken place as of the valuation date, to produce copies of those”. “Refusal maintained on the basis of relevance and proportionality”.

f. REF #20 – “To produce copies of all correspondence with the City about those consultations” (re: potential redevelopment of property). “Refusal maintained on the basis of relevance and proportionality”.

g. REF #22 – “To advise if there have been any consultations between 1380268 Ontario, its representatives, and the conservation authority regarding the redevelopment of this property. And, to advise if there have been any consultations or analyses engaged by either the city transportation staff or a transportation specialist on behalf of 1380268 Ontario. In relation to any redevelopment of the property or otherwise, if there had been any consultations at all regarding transportation studies related to this property prior to the valuation date”. “Refusal maintained on the basis of relevance and proportionality”.

h. REF #24 – “To advise if there have been any flood plain analyses or reports prepared for the owner in relation to the Subject Property”. “Refusal maintained on the basis of relevance and proportionality”. Ms. Flarity submits that all of the questions refused are proper and relevant and should be answered. The Tribunal agrees and so finds.

9The Tribunal observes that the allegation in the statement of claim is that the highest and best use for the Subject Property was for a mid-rise, mixed-use development. This is not the existing use. In the Tribunal’s view, the questions refused on the basis of relevance and proportionality concern the basis for this allegation. The Tribunal finds that the Claimants’ refusal to answer these questions is unreasonable as the questions are indeed relevant and proportional in view of the lack of particulars for the calculation of the claim and the simple fact that the magnitude of the claim for market value is $28 million.

10Ms. Flarity submits that the information outstanding from unanswered undertakings and the questions refused is critical to the analysis of the Claimants’ claim currently being prepared by expert witnesses for the Respondent, and that without this information, the Respondent will be unable to meet the upcoming deadlines in the existing PO. The Tribunal agrees and so finds.

11The Tribunal finds that the Claimant must responsively and fully answer all of the undertakings incompletely answered, questions taken under advisement and questions refused for which answers are being sought by the Respondent, as these are listed in the Undertakings, Advisements and Refusals Charts included as Tab “A” to the Reply to Response Motion to Motion Record, and attached hereto as Schedule 1. For greater certainty, the undertakings are UT #3, 5, 9, 37 and 45; the questions taken under advisement are ADV #1, 2, 3, 4, 6, 7, 8, 14, 17, 18, 19, 20, 21, 22 and 23; and the refusals are REF #19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 36, 37, 38, 39, 41 and 43. The Claimants are to provide all answers to the Respondent forthwith and in any event, within 10 days of the date of issuance of this Decision.

12The Respondent is requesting an Order for the payment of its costs of this Motion. The Tribunal requested and the Parties filed costs outlines. The Respondent filed its costs outline which is summarized below. All amounts are inclusive of HST:

Actual Costs

Partial Indemnity

Substantial Indemnity

$16,544.33

$9,926.60

$14,889.99

13The Claimant filed Costs Submissions on March 4, 2025. The Claimants take the position that there should be no costs awarded to the Respondent. Mr. Bisceglia submits that, as it is a remedial statute, the Act must be given a broad and liberal interpretation consistent with its purpose, and that an Order that the Claimants pay costs to the Authority would be contrary to the spirit of the Act. The Tribunal agrees with this submission, to the extent only that its basis in law is the seminal decision of the Supreme Court in Toronto Area Transit Operating Authority v. Dell Holdings, 1997 CanLII 400 (SCC), [1997] 1 S.C.R. 32 at paragraph 21. However, the determination of the amount of the compensation is not before the Tribunal on this Motion. This Motion is procedural and is brought by the Respondent pursuant to the provisions Rule 31 of the Rules of Civil Procedure, which governs the conduct of examinations for discovery, and which has application to this Proceeding by virtue of Rule 26.3 of the Tribunal’s Rules of Practice and Procedure.

14Mr. Bisceglia submits that the Claimants have made good faith efforts to answer the undertakings and refusals. The Tribunal disagrees and finds that this Motion was only necessary due to the Claimants’ failure to plead any particulars whatsoever regarding the calculation of the amounts claimed, followed by the Claimants’ failure to provide fulsome and responsive answers to its undertakings and the unreasonable and continued refusal to answer proper and relevant questions, all of which arise from the Claimants’ framing of their prayer for relief. The Tribunal expects all parties to comply with their obligations to make continuing full documentary discovery pursuant to the Rules of Civil Procedure.

15Rule 57 of the Rules of Civil Procedure deals with the ordering of costs in civil proceedings and has application to this Motion. Rule 57 outlines the process for determining and awarding costs which is essentially that the loser pays costs. The Respondent has been fully successful on this Motion and the Tribunal finds that an Order of costs is therefore warranted.

ORDER

16THE TRIBUNAL ORDERS THAT:

a. the Claimants, 1380268 Ontario Inc. and 2244214 Ontario Ltd. o/a Virk Home Furnishing, are to responsively and fully answer the following undertakings: UT #3, 5, 9, 37 and 45;

b. the Claimants are to responsively and fully answer the following questions improperly taken under advisement: ADV #1, 2, 3, 4, 6, 7, 8, 14, 17, 18, 19, 20, 21, 22 and 23;

c. the Claimants are to responsively and fully answer the following questions improperly refused: REF #19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 36, 37, 38, 39, 41 and 43;

d. the Claimants are to provide all answers forthwith and, in any event, within 10 days of the issuance of this Decision.

e. the Claimants are to pay the Respondent’s costs of this Motion, on a partial indemnity scale, in any event of the cause, fixed in the amount of $7,500.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

MEMBER

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.

SCHEDULE 1

(pp.10-38, Reply to Response to Motion – Metrolinx – February 11, 2025)

UNDERTAKINGS CHART

Outstanding undertakings given on the Examination for Discovery of Beant Virk dated November 26, 2024

Issue & relationship to pleadings or affidavit

Question No.

Page No.

Specific Undertaking

Date answered or precise reason for not doing so

Metrolinx’s Position

Claimants’ Further Answer

Metrolinx's Further Response

Examination by Ms. Flarity:

To provide proof of the claim [from 138 Inc] for business losses of $10,000,000.

The Claimants will provide particulars shortly.

The information related to this question remains outstanding. The Claimant has failed to comply with its obligation to provide this information accordance with the December 20, 2024, deadline set out in the Procedural Order.

Further answer: In support of their claim for business loss, the Claimants are relying on their productions, including but not limited to, the financial statements produced. Further, the Claimants may rely on expert

This answer is also insufficient as it does not provide any particulars of their claim. Further, 138 has only provided corporate tax returns and financial statements for the fiscal years May 2019 to 2022. It has not provided any financials immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 138’s alleged business loss or loss of rent without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 138 has not provided externally prepared / audited financial statements. If 138 has externally prepared financial statements in its possession, care, or control, 138 must produce them as they are relevant.

opinion in this regard.

To provide the particular related to the information, facts, or evidence that the amounts for the disturbance damage amount and the business losses amount are based on.

The Claimants will provide particulars shortly.

To use best efforts to produce any other photographs of 1211 Kingston Road, including all of the units.

No further photographs.

The answer to this question is not responsive and insufficient. As the owner and landlord of the property (1211 Kingston Road), the Claimant ought reasonably to have these photographs or could reasonably obtain these photographs.

Further answer: see attached at Tab 2.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

103

To produce all documents including but not limited to invoices and purchase orders related to any renovation costs to relocate the business to 1211 Kingston Road, to the extent they were not previously produced.

The Claimants do not have further documents at this time.

The Claimant’s Affidavit of Documents does not contain any documentation related to the costs to renovate the new furniture store at the replacement premises.

Further answer: See attached at Tab 2.

The documents provided do not support the amount being claimed by 244 Inc.

#10

104

To produce copies of any and all photographs of the premises that are being occupied by Virk Home Furnishing at 1211 Kingston Road, to the extent they were not previously produced.

No further photographs.

As the tenant and operator of Virk Home Furnishing at 1211 Kingston Road, the Claimant ought reasonably to have these photographs or could reasonably obtain these photographs.

Further answer: see attached at Tab 2.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#36

621

161

To provide the specific basis and particulars on which the claim for bad faith is based.

Metrolinx insisted on the Claimants vacating the property by May 31, 2023, when Metrolinx was aware the closing of the replacement property was scheduled for July 28, 2023.

The answer to this question is not responsive and is insufficient. The Claimant has not provided sufficient particulars with respect to this serious allegation.

Claimant has nothing further to add.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#37

623

162

In reference to paragraph 28 (in Statement of Claim) where it states: “...The claimants have suffered damages as a result of Metrolinx’s actions...” to provide the full particulars of the damages that were suffered by the claimant as a result of Metrolinx’s actions.

The Claimants will provide particulars shortly.

Further answer: In support of their claim for damages, the Claimants are relying on their productions, including but not limited to, the financial statements produced. Further, the Claimants may rely on expert opinion in this regard.

This answer is also insufficient as it does not provide any particulars of their claim. Further, 138 Inc has only provided corporate tax returns and financial statements for the fiscal years May 2019 to 2022. It has not provided any financials immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 138’s alleged business loss or loss of rent without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 138 has not provided externally prepared / audited financial statements. If 138 and 224 have externally prepared financial statements in its possession, care, or control, 138 must produce them as they are relevant.

#38

624

163

To advise either by undertaking or here today if it is the claimant’s position that Metrolinx took any actions in regards to the expropriation of this property which were contrary to its obligations under the Expropriations Act.

See answer to UT #36.

The answer to this question is not responsive and is insufficient. The Claimant has not provided sufficient particulars with respect to this serious allegation.

Further answer - Metrolinx insisted on the Claimants vacating the property by May 31, 2023, when Metrolinx was aware the closing of the replacement property was scheduled for July 28, 2023.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#39

625

163

With regard to the taking of possession of this property by Metrolinx, it has already been established here today that the notice of possession was for March 1, and possession was extended until May 31 that year by way of an occupancy agreement. If there is some allegation being made here than any of those actions by Metrolinx were contrary to the statutory provisions under the Expropriations Act, to detail those specifically by way of undertaking and possibly consider amending the pleadings to include those particulars. (Ms. Tariq says she advise that at this time the claim is what it is.)

See answer to UT#36.

The answer to this question is not responsive and is insufficient. The Claimant has not provided sufficient particulars with respect to this serious allegation.

Further answer - Metrolinx insisted on the Claimants vacating the property by May 31, 2023, when Metrolinx was aware the closing of the replacement property was scheduled for July 28, 2023.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#45

735

192

To confirm if the claimant is making a claim for damages related to items that were left behind on the property after August 15, 2023.

Yes, since the Claimants were forced to vacate the premises when their replacement property was not fully ready.

The answer is not responsive and sufficient. Metrolinx is entitled to the particulars of the claim and all supporting documentation.

Claimant has nothing further to add.

The Claimant has failed to provide particulars or quantify these damages

UNDER ADVISEMENTS

Outstanding questions taken under advisement given on the Examination for Discovery of Beant Virk dated November 26, 2024

Issue & relationship to pleadings or affidavit

Question No.

Page No.

Specific Question Taken Under Advisement

Date answered or precise reason for not doing so

Metrolinx’s Position

Claimants’ Further Answer

Further response from Metrolinx

Examination by Ms. Flarity:

To produce any internally or externally prepared financial statements. It sounds like they would have been externally prepared because Mr. Virk has indicated that he has an accountant. They are looking for the financial statements from 2018 to the present [re. 1380268].

The Claimant has requested same from its accountant and will answer shortly.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. 138’s financial statements are relevant to the determination of compensation, particularly with respect to138’s claim for business loss and market value and the issue of highest and best use.

Further answer: See attached at Tab 1.

138 has only provided financial statements for the fiscal years May 2019 to 2022. It has not provided any financial statements immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 138’s alleged business loss or loss of rent without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 138 has not provided externally prepared / audited financial statements. If 138 has externally prepared financial statements in its possession, care, or control, 138 must produce them as they are relevant.

The request (UA 1) includes balance sheets and income statements produced for or by 1380268 Ontario for both 20 Nugget and 1211 Kingston Road.

See answer to UA#1.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order 138’s balance sheets and income statements are relevant to the determination of compensation, particularly with respect to138’s claim for business loss and market value and the issue of highest and best use.

Further answer: See attached at Tab 1.

The Claimant has only provided 138's tax returns for fiscal years 2019 to 2022. It has not provided any tax returns or other financial information immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 138’s alleged business loss or loss of rent without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road With the exception of 2019, the financial statements provided are only internally prepared financial statements. 138 has not provided externally prepared / audited financial statements. If 138 has externally prepared financial statements in its possession, care, or control, 138 must produce them as they are relevant.

To provide the corporate income tax returns for the years 2018 to the present, related to 1380268 Ontario.

The Claimant has requested same from its accountant and will answer shortly.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. 138’s tax returns are relevant to the determination of compensation, particularly with respect to138’s claim for business loss and market value and the issue of highest and best use.

Further answer: See attached at Tab 1.

The Claimant has only provided 138's tax returns for fiscal years 2019 to 2022. It has not provided any tax returns or other financial information immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 138’s alleged business loss or loss of rent without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 138 has not provided externally prepared / audited financial statements. If 138 has externally prepared financial statements in its possession, care, or control, 138 must produce them as they are relevant.

To produce any tax and/or common area maintenance recovery documents from 2018 through present for both 20 Nugget and 1211 Kingston Road.

The Claimant will advise shortly.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. Information related to tax and/or common area maintenance recovery from tenants at 20 Nugget is relevant to the determination of compensation, particularly with respect to138’s claim for business loss and market value and the issue of highest and best use.

Further answer: No documentation with respect to common area maintenance recovery exists.

Tax documents, at a minimum, should exist. Snow clearing and other maintenance documents can be obtained from service providers if not maintained by the owner.

To produce the rent rolls for both 20 Nugget and 1211 Kingston Road for 2018 to the present (Ms. Tariq indicates it has been produced for 1211 Kingston Road but not from 2018 in the Supplementary Affidavit of Documents (Exhibit 3)).

The Claimant will advise shortly.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. The rent rolls for 20 Nugget Ave and 1211 Kingston Rd from 2018 to the present are relevant to the issues of business loss, highest and best use, and market value.

Further answer: Claimant does not have further rent roll for 1211 Kingston prior to purchase of property. See attached Tab 5 for 20 Nugget.

Metrolinx has no further comments but will rely on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

100

Regarding the tenant claim brought on behalf of Virk Home Furnishings or 2244214 Ontario, to produce all internally or externally prepared financial statements from 2018 to the present.

The Claimant has requester same from its accountant and will answer shortly.

The Claimant, 2244214 Ontario Inc (“224”) has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. 242’s financial statements are relevant to assessing its claim for $5,000,000 on account of business loss (para 36 of Statement of Claim) and its claim for disturbance damages in the amount of $2,000,000 (para 36 of Statement of Claim)

Further answer: See attached at Tab 1.

The Claimant has only provided 224 Inc’s financial statements for fiscal years May 2019 to 2022. It has not provided any tax returns or other financial information immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 224 Inc’s alleged business loss and disturbance damages without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road With the exception of 2019, the financial statements provided are only internally prepared financial statements. 224 has not provided externally prepared / audited financial statements. If 224 has externally prepared financial statements in its possession, care, or control, 224 must produce them as they are relevant.

101

That request (UA 6) includes and is not limited to balance sheets and income statements associated with those financial statements [re. 2244214].

See answer to UA #6.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. 242’s balance sheets and income statements are relevant to assessing its claim for $5,000,000 on account of business loss (para 36 of Statement of Claim) and its claim for disturbance damages in the amount of $2,000,000 (para 36 of Statement of Claim).

Further answer: See attached at Tab 1.

The Claimant has only provided 224 Inc’s financial statements for fiscal years May 2019 to 2022. It has not provided any tax returns or other financial information immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 224 Inc’s alleged business loss and disturbance damages without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 224 has not provided externally prepared / audited financial statements. If 224 has externally prepared financial statements in its possession, care, or control, 224 must produce them as they are relevant

102

To produce all corporate tax returns for the years 2018 to present [re. 2244214].

The Claimant has requested same from its accountant and will answer shortly.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order. 242’s tax returns are relevant to assessing its claim for $5,000,000 on account of business loss (para 36 of Statement of Claim) and its claim for disturbance damages in the amount of $2,000,000 (para 36 of Statement of Claim).

Further answer: See attached at Tab 1.

The Claimant has only provided 224 Inc’s tax returns for fiscal years May 2019 to 2022. It has not provided any tax returns or other financial information immediately prior to and subsequent to relocating (i.e. fiscal years 2023 to the present). It is not possible to properly determine 224 Inc’s alleged business loss and disturbance damages without seeing what the revenues / earnings were immediately prior to and subsequent to moving from 20 Nugget to 1211 Kingston Road. With the exception of 2019, the financial statements provided are only internally prepared financial statements. 224 has not provided externally prepared / audited financial statements. If 224 has externally prepared financial statements in its possession, care, or control, 224 must produce them as they are relevant.

#14

195

To provide any plans or reports, specifically any plans that show where these sewers are located on the subject property is to make that inquiry of any architects or planners who have been engaged by 1380268 Ontario Inc. on this property to see, in their records, if any such plans exist.

Mr. Milenov does not have any records. Further answer: The Claimants do not have any records in their possession.

This answer is not responsive. The question asked is not solely whether Mr. Milenov has any such records, but whether the claimant or any of its agents have such records.

Further answer: The Claimant has no such records in its possession.

The Claimant must produce all relevant documents in its power, possession and control, which includes documents prepared by consultants retained on behalf of the Claimant.

#15

200

To provide copies of any previous surveys, reference plans or site plans prepared for this site.

Mr. Milenov does not have any records.

This answer is not responsive. The question asked is not solely whether Mr. Milenov has any such records, but whether the claimant or any of its agents have such records.

Further answer: see attached at Tab 4.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#16

201

To including in the above [UA 15], any approvals related to the building; like permits, plans, architectural drawings or site plan approvals or agreements.

Mr. Milenov does not have any records.

This answer is not responsive. The question asked is not solely whether Mr. Milenov has any such records, but whether the claimant or any of its agents have such records.

Further answer: see attached at Tab 4.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#17

203

To provide a copy of those appeal decisions (re tax assessment appeals).

Refused on the basis of relevance.

Tax assessment appeal decisions are relevant to the issue of highest and best use and market value.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings.

#18

290

To advise if any studies or analyses with respect to the redevelopment of the property had occurred as of the valuation date.

Refused on the basis of relevance.

Any studies or analyses undertaking by the Claimant, 138, with respect to the redevelopment as at the valuation date are relevant to the determination of highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly with respect to the Claimant’s pleading that the highest and best use is redevelopment.

#19

291

If any studies or analyses with respect to the redevelopment of the property had taken place as of the valuation date, to produce copies of those.

Refused on the basis of relevance.

Any studies or analyses undertaking by the Claimant, 138, with respect to the redevelopment as at the valuation date are relevant to the determination of highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

#20

293

To produce copies of all correspondence with the City about those consultations (re potential redevelopment of property).

Refused on the basis of relevance.

Any consultations between the Claimants or its agents and the City regarding the potential redevelopment of the subject property prior to the valuation date are relevant to the determination of highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

294

That request (UA 20) would include any correspondence between the planner and the architect retained by 1380268 Ontario and the City planning department.

Refused on the basis of relevance.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

295

To advise if there have been any consultations between 1380268 Ontario, its representatives, and the conservation authority regarding the redevelopment of this property. And, to advise if there have been any consultations or analyses engaged by either the city transportation staff or a transportation specialist on behalf of 1380268 Ontario. In relation to any redevelopment of the property or otherwise, if there had been any consultations at all regarding transportation studies related to this property prior to the valuation date.

Refused on the basis of relevance.

Any consultations between the Claimants or its agents and the Conservation Authority or City transportation staff regarding the potential redevelopment of the subject property prior to the valuation date are relevant to the determination of highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

299

For an undertaking related to any consultations that took place between the owner and/or its representatives and the conservation authority specifically in relation to potential redevelopment of the property.

Refused on the basis of relevance.

Any consultations between the Claimants or its agents and the Conservation or City transportation staff regarding the potential redevelopment of the subject property prior to the valuation date are relevant to the determination of highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

300

To advise if there have been any flood plain analyses or reports prepared for the owner in relation to the subject property.

Refused on the basis of relevance.

Floodplain analysis or reports in relation to the subject property are relevant to the determination of the highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

302

The above (UA 24) should include any general studies on flooding potential for this property.

Refused on the basis of relevance.

Studies relating to flooding potential of the subject property are relevant to the determination of the highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

303

To advise if the owner has any zoning certificates, applicable law certificates or zoning reviews from the City or conservation authority for the subject property.

Refused on the basis of relevance.

The information is relevant to the determination of the highest and best use of the subject property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

#27

308

To advise and produce any copies of any offers received for the subject property prior to the valuation date.

The property was not for sale.

The answer provided is not responsive to the question asked, which is whether the claimant ever received any offers to purchase the subject property. Any unsolicited offers to purchase are relevant to the determination of market value of the subject property.

Further answer: The Claimants cannot locate any offers.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#28

309

To produce any correspondence related to any offers to purchase the property prior to the valuation date.

See answer to UA#27 above.

Further answer: The Claimants cannot locate any offers.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

310

To advise if there has ever been any orders from the Ministry of Environment, the conservation authority or any other regulatory body with respect to the subject property.

Refused on the basis of relevance.

Information related to the environmental condition of the subject property, including and orders from a regulatory body, are relevant to the determination of highest and best use of the property and market value of the property.

Refusal maintained on the basis of relevance and proportionality.

Metrolinx maintains that this information is relevant to the issues in the pleadings, particularly in respect to the Claimant’s pleading that the highest and best use is redevelopment.

#33

500

129

To provide any correspondence between the claimants and the broker or real estate agents that were used about the replacement properties, and the search for the replacement properties.

See answer to UA#34.

The answer is not responsive to the question. Metrolinx has asked that the claimants produce any correspondence between the claimants and their broker or real estate agent with respect to their search for replacement property, not just the list of properties considered.

Further answer: The Claimants cannot locate such emails. The realtor also cannot locate such emails.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#36

596

155

To provide the rent rolls from the date of possession up to the present for 1211 Kingston Road.

See answer to UA#5.

Further answer: Claimant does not have further rent roll for 1211 Kingston prior to purchase of property. For 20 Nugget, please refer to Tab 5.

The document provided at Tab 5 does not contain sufficient details as compared to the rent roll previously provided by the Claimant for 1211 Kingston Road.

597

155

To provide the tax and common area maintenance recovery documents or additional rent statements from the date of possession to present for 1211 Kingston Road.

See answer to UA#4.

Further answer:

605

156

To advise if either of the claimants claimed an input tax credit for the HST on this invoice [Tab 58 of Claimants’ AOD].

Refused on the basis of relevance.

If the Claimant is claiming reimbursement from HST from Metrolinx, then this information is relevant.

Further answer: See financial statements at Tab 1.

No financial statements were provided at Tab 1.

622

162

To provide a list of any individuals where there were communications between Mr. Virk or other representatives of the claimants and representatives of Metrolinx where allegations of bad faith are being alleged in those conversations.

See UT # 36 re. particulars of the Claimants’ allegations of bad faith.

The answer to this question is not responsive and is insufficient. The Claimant has not provided sufficient particulars with respect to this serious allegation.

No further answer.

Metrolinx relies on the Claimants’ continuing disclosure obligations under Rules 30.07 and 30.08 of the Ontario Rules of Civil Procedure.

#41

659

173

Regarding the actual capital assets that were removed from 20 Nugget, not just inventory but actual capital assets that were removed from 20 Nugget, to advise what were the fixtures and equipment and capital assets associated with the business.

The assets include 3 vehicles, tools, forklifts, air compressors, etc.

Claimant to clarify what other assets, if any, are meant by “etc"

Further answer: racks, shelves, computers, printers, refrigerator, stove.

This claim has not been appropriately quantified.

#43

699

184

To provide the address of the storage facility.

The Claimant is making inquiries and will advise.

The Claimant has failed to comply with its obligation to provide its response to this question in accordance with the December 20, 2024, deadline set out in the Procedural Order.

Further answer: 8 Cadetta Road, Brampton, Ontario, L6P 0X4

Please provide storage contract and accompanying receipts.