Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 26, 2025

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

PROCEEDING COMMENCED UNDER section 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Appellant: 536555 Ontario Ltd. and Emros Developments Corp.

Subject: Determination of compensation

Property Address: 747 Richmond Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-002385

Legacy Case No.: LC190027

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

Heard: January 21, 2025, by Video Hearing; Supplementary Written Submissions by the Parties on February 7, February 20 and March 7, 2025

APPEARANCES:

Parties	Counsel
536555 Ontario Ltd. and Emros Developments Corp. (“Claimants”)	Sean Foran, Abbey Sinclair
City of Ottawa (“City”)	Frank Sperduti, Laura Robinson

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

PART ONE: INTRODUCTION

1This Decision arises from a Request for Review (“Review Request”) of the Decision issued by the Tribunal on August 2, 2024 (“Existing Decision”). The Review Request was filed by the City on August 28, 2024 and was filed pursuant to section 23 of the Ontario Land Tribunal Act, 2021 (“OLTA”) and Rule 25 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

2The Chair of the Tribunal in a letter to the Parties dated October 17, 2024, in accordance with his authority under Rule 25.5, directed the Claimants to file a Response to the Request and invited the City to file a Reply both of which were duly delivered.

3After receiving the Response and the Reply, the Chair delivered a further letter to the Parties dated December 31, 2024 (“Disposition Letter”) which noted that he had exercised his discretion under Rules 25.6(b) to order a one-day motion for review (“Review Motion”) to deal with the Request. The Chair’s Order in this regard was issued on the same date (“Chair’s Order”). The Review Motion was conducted by video hearing on January 21, 2025.

4The materials before the Tribunal on the Review Motion were:

(a) Request for Review of City, August 27, 2024, comprising 8 pages;

(b) Affidavit of Yasmin Rezaaifar, August 27, 2024, comprising 214 pages;

(c) Response of Claimant to Request for Review, November 2, 2024, comprising 82 pages;

(d) Reply to Response of City, November 8, 2024, comprising 21 pages;

(e) City’s Supplementary Submissions, February 7, 2025, comprising 26 pages;

(f) City’s Book of Authorities, February 7, 2025, comprising 198 pages;

(g) Claimant’s Supplementary Submissions, February 19, 2025, comprising 23 pages;

(h) Claimant’s Book of Authorities, February 19, 2025, comprising 123 pages; and

(i) City’s Reply Submissions, March 7, 2025, comprising 8 pages.

PART TWO: ISSUES FOR DETERMINATION ON THE REVIEW MOTION

5At the outset, it is important to note that on this Review Motion the question of what should be the ultimate value determination made in the underlying proceeding is not a matter to be decided. In the Disposition Letter, the Chair stated, inter alia (below emphasis added):

…This matter arises as a result of the expropriation by the Requestor of all the Claimants’ rights, title and interest, in and to the lands and premises municipally known as 747 Richmond Road, Ottawa (“Subject Property”). The Tribunal commenced a 14-day hearing to determine the claim pursuant to section 26(1) of the Expropriations Act. After hearing voluminous submissions and evidence and considering the appropriate scheme, the Tribunal determined that the market value of the Subject Property at the effective date was $8,053,290, with a deduction for the costs of environmental remediation in the amount of $269,000. Accordingly, the Tribunal ordered the Requestor to pay the Claimants the sum of $7,784,290 in expropriation compensation less the sum of any payments made under section 25 of the Expropriations Act.

The Requestor alleges that the Tribunal had made material errors in its calculation of market value. Specifically, the Request alleges that the Tribunal misapprehended the appraisal evidence and incorrectly conflated Gross Buildable Area with Gross Floor Area. The Requestor requests that the Tribunal vary the Decision by amending four paragraphs under the authority of s. 23 of the OLTA and Rule 25. Additionally, the Requestor requests that the Tribunal correct certain alleged errors in 11 paragraphs of the Decision pursuant to either Rule 24.4 or Rule 25. The Requestor also asks the Tribunal to grant a rehearing in relation to the alleged errors, if necessary.

While not specifically set out in the Request or the Reply, it appears that the Requestor intends to rely on Rule 25.7(c) in bringing the Request to allege that the Tribunal “made an error of law or fact such that the Tribunal would likely have reached a different decision.”

…Having carefully reviewed the Decision and the content of the Request, Response and Reply, I have determined that the exercise of my discretion under Rule 25.6(b) is warranted.

…I exercise my discretion under Rules 25.6(b) to order a one-day motion for review (“Review Motion”) to be heard electronically before a different Member of the Tribunal to dispose of this Request. Given the specific and complex circumstances of this case, an oral motion would be the most effective and efficient way to address the errors alleged in the Request and to further consider the arguments made in the written submissions filed.

At the oral Review Motion, pursuant to Rule 25.8, the newly-assigned Member will hear submissions on whether the Request raises a convincing and compelling case that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision, pursuant to Rule 25.7(c). The Member will determine whether there are errors in the Decision sufficient to warrant a rehearing of the claim filed under s. 26(1) of the Expropriations Act…

6In the Chair’s Order, it was stated (below emphasis added):

AND WHEREAS THE CHAIR after having considered the Request and submissions filed under Rule 25.5, decided to exercise his discretion under Rule 25.6(b) to order a one-day motion for review to be heard electronically before the Tribunal to consider the Request and submissions received under Rule 25.5

ACCORDINGLY, THE TRIBUNAL HEREBY ORDERS that:

1. A one-day motion for review to be heard electronically pursuant to Rule 25.8 will be scheduled before a different Member of the Tribunal in accordance with the Chair’s letter of disposition dated December 31, 2024.

2. The Member assigned to conduct the motion for review is hereby delegated the Chair’s authority to consider and dispose of the Request in accordance with Rule 25.8 and the Chair’s letter of disposition.

7Based on the materials originally filed by the Parties for the Review Motion, upon hearing the oral argument of each counsel held on January 21, 2025, the Tribunal directed supplementary written submissions because it was clear that the Parties had not canvassed all of the issues required to be determined on the Review Motion.

8Upon receipt of the supplementary submissions, it was evident to the Tribunal that in this Review Motion the following issues required determination (“Issues”):

(a) Should this Tribunal on this Review Motion to grant a Rule 24.4 ‘minor correction/amendment’ given the provisions of Rule 24.5, and Rule 25 and the terms of the Disposition Letter and the Chair’s Order?

(b) If the Tribunal determines to not grant a Rule 24.4 ‘minor correction/amendment’, what is the standard to be demonstrated by the City under Rule 25.7 that its Review Request has raised “a convincing and compelling case that the Tribunal…made an error of law or fact such that the Tribunal would likely have reached a different decision…” (“Error”)?

(c) Was such an Error made in the Existing Decision?

(d) If the Tribunal on this Review Motion concludes that an Error was made in the Existing Decision, is this Tribunal empowered on this Review Motion – as distinct from a Review Hearing conducted pursuant to Rule 25.10 – to grant any other remedy beyond an order for ‘a rehearing of all or part of the proceeding’ (“Rehearing”)?

(e) If a Rehearing is the only Order that should be made by the Tribunal on this Review Motion, what is the scope and nature of a permissible partial rehearing of the proceeding underlying the Existing Decision? Specifically, what evidence should be dealt with in a partial rehearing if so ordered by the Tribunal?; and

(f) Does the Tribunal have the authority to order that a Rehearing be conducted in writing only?

PART THREE: ANALYSIS OF THE ISSUES

A. Should this Tribunal on this Review Motion grant a Rule 24.4 ‘minor correction/amendment’ given the provisions of Rule 24.5, Rule 25 and the terms of the Disposition Letter and the Chair’s Order?

9Rule 24 states (below emphasis added):

CORRECTING MINOR ERRORS IN DECISIONS AND ORDERS

24.4 Correcting Minor Errors The Tribunal may at any time and without prior notice to the parties correct a technical or typographical error, error in calculation or similar minor error made in a decision or order. There is no fee if a party requests this type of correction.

24.5 Processing Request as a Review Request If a party requests a correction or clarification that the Tribunal finds is a request for a substantive change in the decision or order, the Tribunal shall treat it as a request for review under section 23 of the OLT Act and Rule 25.

10The City insisted in both its oral and written submissions on the Review Motion that the Existing Decision contained mistakes that ought to simply be corrected under Rule 24.4. The Claimant strongly objects to that notion (and, additionally, rejects the City’s position that any Error occurred).

11Interestingly, the Tribunal notes that the manner in which the City has characterized the alleged errors in the Existing Decision has changed throughout this process, from its Review Request through its original written submissions, its oral argument and then its supplementary written submissions.

12In its Review Request, the City argued as follows (below emphasis added):

…With the greatest respect to the Tribunal’s Decision, there appear to be material errors in the Tribunal’s calculation of market value due to a misapprehension of the appraisal evidence. The Decision incorrectly conflates “GBA” with “GFA” in several paragraphs and with substantial impacts to the market value conclusion…

…Due to this error, the City respectfully requests that the Decision as set out in paragraphs 104, 105 and 120 be varied as follows:

[104] The results of Mr. Morassutti’s Comparable Sales Analysis range from $45 to $69 per sq. ft. of GBA GFA. Employing this unit of comparison in the Comparable Sales Summary Chart prepared by Mr. Capordelis results in a range of $23.98 to $65 per sq. ft. of GBA GFA. The average of the six sales analyzed by Mr. Capordelis is $44.44 per sq. ft. of GBA GFA, which is very close to the $45 per sq. ft. of GBA GFA for the sale of 175 Carruthers Avenue, which value is approximately mid-range between the $25 per sq. ft. of GBA opined by Mr. Capordelis and the $67 per sq. ft. of GBA GFA opined by Mr. Morassutti. As referenced above, this was the unit rate for the one comparable sale relied upon by both appraisers. The Tribunal therefore finds that the unit rate of $45.00 per sq. ft. of GBA GFA is the appropriate measure of the market value of the Subject Property as at the Effective Date.

[105] The Tribunal therefore finds that the market value of the Subject Property as at the Effective Date was $8,053,290 $5,961,690, calculated using a GBA of 178,962 sq. ft. GFA of 132,482 and a unit rate of $45.00 price per sq. ft. of GBA GFA.

[120] The Tribunal finds that the market value of the Subject Property as at the Effective date was $8,053,290$5,961,690, calculated using a GBA of 178,962 sq. ft. GFA of 132,482 sq. ft. and a unit rate of $45.00 per sq. ft. of GBA GFA.

Further, the City respectfully requests that the Order as set out at paragraph 122 of the Decision be varied as follows:

[122] The Tribunal Orders that:

a. The Market Value of the Subject Property as at the Effective Date was

$8,053,290 $5,961,690;

b. The amount of the deduction from Market Value for the costs of environmental remediation is $269,000;

c. The City of Ottawa shall pay to the Claimant the sum of $7,784,290 $5,692,690, less the sum of any payment(s) made under Section 25 of the Expropriations Act;

d. In the event that the Parties are unable to reach agreement respecting statutory interest and costs, either party may file a Motion requesting that the Tribunal determine either or both matters.

Finally, the City respectfully requests that the following technical or typographical errors be corrected in the Decision:

• At paragraph 62: in respect of the May 2013 Proposal, correcting the GFA amount to be 148,150 sq. ft.3 This requires a corresponding correction to the GBA reference – per the accepted “rule of thumb” that GFA is about 76% of GBA,4 the City respectfully submits that a GBA of 185,188 sq. ft. is reasonable.⁵

3 Affidavit of Yasmin Rezaaifar affirmed August 27, 2024 (the “Rezaaifar Affidavit”) at paras. 21-23; see also R. Lahey Transcript dated June 7, 2023, being Exhibit J to Rezaaifar Affidavit.

4 Decision at para. 61(c).

5 This figure was not in evidence at the hearing and requires a factual finding by the Tribunal.

• At paragraphs 77, 78, 81, 84: in reference the May 2013 Proposal (also referred to at times as the “Preferred Site Plan”), correcting the reference from “GBA of 148,150 sq. ft.” to “GFA of 148,150 sq. ft.”⁶

• At paragraphs 91, 93, 95, 96, 98, 102: in reference to Mr. Morassutti’s opinion, correcting all references from GBA to GFA.⁷

• At paragraph 101: in reference to Mr. Capordelis’ and Mr. Morassutti’s opinion, correcting all references from GBA to GFA.⁸

• At paragraph 104: in reference to Mr. Morassutti’s opinion and certain of Mr. Capordelis’ opinion, correcting the references from GBA to GFA (as set out in the above paragraph requesting relief).

6 Rezaaifar Affidavit at paras. 21-23; see also R. Lahey Transcript dated June 7, 2023, being Exhibit J to Rezaaifar Affidavit.

⁷ Rezaaifar Affidavit at paras. 6-11; see also P. Morassutti Appraisal Report dated March 1, 2023, being Exhibit A to Rezaaifar Affidavit; see also P. Morassutti Transcript dated June 8 and 9, 2023, being Exhibits B and C to Rezaaifar Affidavit.

⁸ Rezaaifar Affidavit at paras. 6-11 and 15-17; see also see also P. Morassutti Transcript dated June 8 and 9, 2023, being Exhibits B and C to Rezaaifar Affidavit; see also T. Capordelis Transcript dated June 15 and 19, 2023, being Exhibits E and F to Rezaaifar Affidavit.

⁹ Decision at para. 61.

13Thus, based on the arguments made in its original Review Request as excerpted above the City characterizes the alleged errors in the Existing Decision as ‘material errors in the calculation of market value’ based on a ‘misapprehension of the appraisal evidence’ resulting in ‘substantial impacts to the market value conclusion’. These are significant depictions. The use of this language, in this Tribunal’s opinion, does not suggest that the errors were ‘technical or typographical error(s), error in calculation or similar minor errors’ as referenced in Rule 24.4. Moreover, a closer examination of the City’s Review Request itself demonstrates that a careful review of the transcripts of oral evidence of various witnesses is required in order to consider whether to replace Gross Floor Area (“GFA”) with Gross Building Area (“GBA”). That exercise would then require an evidentiary finding as to how such a conversion is properly calculated. Indeed, to support its original Review Request the City filed a lengthy supporting affidavit (214 pages inclusive of exhibits) which explained in considerable detail how the errors contrasted with or were derived from various aspects of the oral testimony of three different experts at the hearing. The City also noted in paragraph [12] above in a footnote in the Review Request that one of the corrections sought by the City to a mistaken GBA reference “…was not in evidence at the hearing and requires a factual finding by the Tribunal”.

14In both oral argument and later supplementary written argument, counsel for the City then honed their positions to focus on the alleged simplicity underlying the mistakes they claimed were made in the Existing Decision. For example, in both oral argument and written submissions, the City stated (below emphasis added):

There are repeated references in the Decision to “GBA” (Gross Building Area), where the evidence stated “GFA” (Gross Floor Area). Those errors are minor and analogous to a technical or typographical error, as the evidence undisputedly referenced GFA…There are repeated references in the Decision to “GBA” (Gross Building Area), where the evidence stated “GFA” (Gross Floor Area). Those errors are minor and analogous to a technical or typographical error, as the evidence undisputedly referenced GFA.

15The matter of the standard to be considered by the Tribunal on this Review Motion will be dealt with below. However, in the Tribunal’s view, the various different arguments made by the City serve to highlight the point that the alleged errors in the Existing Decision cannot easily be characterized as simply ‘minor’ and akin to ‘technical’ or ‘typographical’ errors that are easily recognized and correctable. By contrast, as evident from the City’s own supplementary written arguments, the errors require in-depth review of the evidence tendered at the hearing by more than one witness, an assessment of how the core finding of market value was impacted, the appropriate conversion of one unit of value to another and, importantly, the divining of the ‘intent of’ the Member who rendered the Existing Decision.

16This Vice Chair has substantial experience in dealing with the correction of minor errors under Rule 24.4 over the last few years, having been delegated that role by the Chair. The typical minor errors corrected (approximately 100 annually) are caused by, for example, the misspelling of counsel or witness names; incorrect video hearing details or backup telephone numbers that do not correspond to the scheduled videoconference; failure to account for the presence of one or more counsel or parties at a hearing event; errors in stated municipal addresses of properties at issue in a proceeding; and errors in the dates of hearing events either in the past or to occur in the future.

17In this Tribunal’s view the errors claimed here by the City are not minor at all and do not fall within those ordinarily dealt with under Rule 24.4. Given how the City has characterized those errors, and the overall alleged financial impact of those alleged errors (which although not determinative, is certainly relevant here), this matter falls squarely within the common sense meaning of the provisions set out in Rule 24.5. It is consequently the Tribunal’s opinion that the City’s Review Request and all arguments made orally and by supplementary submission by the City clearly constitute “…a request for a substantive change in the decision or order...” within the ambit of Rule 24.5. From a common sense perspective, this is further demonstrated by the reality that the amendments sought by the City would reduce the value conclusion in the Existing Decision by over $2M.

18In their written supplementary submissions, counsel for the Claimants similarly point out (below emphasis added):

the substitution of fundamental valuation inputs, namely one unit of comparison for another – i.e. GFA for GBA – and a $2 million change in the market value, are not mere updates, clarifications, technical or typographical errors, or minor calculation errors as the City suggests… By any standard, an amendment or substitution that results in a reduction of 26% or a variation of over $2 million in fair market value compensation determined in a land compensation hearing is a substantial change and must be treated as such…

19In any event, the Chair has clearly received the Review Request not as a request under Rule 24.4 and in both the Disposition Letter and Order has instead exercised his discretion to convene this Review Motion to determine the City’s Review Request in accordance with Rule 25.7 c.

20While it is true, as argued by the City, that the Tribunal has broad powers under OLTA to make Orders (section 8 and 9 of OLTA) and to vary, alter or rescind Orders (sections 22 and 23 of OLTA), the specific words of those provisions and of section 24 of OLTA are instructive (below emphasis added):

Exclusive jurisdiction

8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.

Same

(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

Orders

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

Conditions

(2) The Tribunal may include in an order conditions that it considers fair in the circumstances, including a condition that the order comes into force at a future fixed time or on the performance of terms imposed by the Tribunal.

Interim orders

(3) The Tribunal may make an interim order without notice if it is of the opinion that it is necessary to do so, but no such order shall be made for any longer time than the Tribunal may consider necessary to enable the disposition of the proceeding.

Relief

(4) Unless another Act specifies otherwise, the Tribunal may, as it considers to be appropriate, (a) make an order granting all or part of the relief applied for; or (b) make an order granting relief that is additional to or different from the relief applied for.

Extension of time

(5) If an order or decision of the Tribunal requires anything to be done within a specified time, the Tribunal may extend the specified time,

Decisions final

22 Except as provided for in sections 23 and 24, orders and decisions of the Tribunal are final and binding.

Review

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules.

Appeal

24 (1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.

Exception, consolidated hearings

(2) Despite subsection (1) or any other Act, there is no appeal from a decision of the Tribunal in a consolidated hearing under section 21.

Notice to Tribunal

(3) A person appealing an order or decision of the Tribunal shall give notice of the motion for leave to appeal to the Tribunal.

Tribunal entitled to be heard

(4) The Tribunal is entitled to be heard on the argument of the appeal, including on the motion for leave to appeal.

21It is clear that the Tribunal’s power under section 23 of OLTA to review, rescind or vary an Order made is a matter of discretion. This was also expressly stated in the Disposition Letter and the Chair’s Order, and his exercise of discretion here was explicitly spelled out. Having done so, the Chair’s ruling directing that this Review Request be dealt with under section 25.7 of the Rules, firstly by way of this Review Motion, cannot itself be challenged during this Review Motion. In other words, in this Tribunal’s view, the City’s argument that its Review Request now be determined solely on the basis of Rule 24.4 is not a proper matter to be determined on this Review Motion. Even if it was a proper request, this Tribunal has denied this remedy for the reasons stated above.

B. What comprises the standard to be demonstrated by the City under Rule 25.7 that its Review Request has raised “a convincing and compelling case that the Tribunal…made an error of law or fact such that the Tribunal would likely have reached a different decision…” (“Error”)?

22The City and the Claimant partly agree on what standard must be met by the City in order to convince the Tribunal that an Error was committed. The City’s counsel in written supplementary submissions noted:

The threshold to grant a request for review is a “convincing and compelling case” that one of the grounds enumerated in Rule 25.7 has been established. The case law confirms that this is a high threshold, at times identified as a “extraordinary remedy.”…The City relies on Rule 25.7(c) and asserts that the Tribunal made errors of fact or law which, if properly construed by the Tribunal, would likely have led to a different result…The City’s Request for Review must raise a convincing and compelling case that: (1) the Decision contains factual or legal errors; and (2) the Tribunal “relied on these mistaken facts in coming to its conclusion”.

23The Claimant argues that the applicable standard is much higher than the ‘balance of probabilities’ and stated:

The Claimants agree with the statements in paragraph 5 of the City’s Submissions that there is a high threshold for granting a request for review and that the case law has referred to the threshold for granting such a request as a “rare and extraordinary remedy”.

24The Claimant relies heavily on one past decision of the Tribunal’s predecessor, the Ontario Municipal Board in Citizens Coalition of Greater Fort Erie, Re (2023), 2013 CarswellOnt 7871, 11 M.P.L.R. (5th) 157, 77 O.M.B.R. 76 (“Citizens Coalition”). There, former Vice Chair Mackenzie was considering a request for review pursuant section 43 of the Ontario Municipal Board Act (“OMB Act”), to have an OMB decision set aside and a new hearing scheduled.

25However, prior to the review motion in Citizens Coalition, the party requesting the review abandoned the ground that corresponded to what is now contained in current Rule 25.7 (c). Therefore, the issue was no longer whether “…an error of law or fact such that the Board would likely have reached a different decision”. Instead, the issue was whether there was “a convincing and compelling case that the Board had when considering whether a proposed expert witness should be qualified to provide opinion evidence violated the rules of natural justice or procedural fairness, including those against bias.”

26Thus, in Citizens Coalition, former Vice Chair Mackenzie was not dealing with an alleged error of law or fact that would likely have led to a different decision – the sole issue to be determined on this Review Motion. Despite this important distinction, his remarks are still of relevance (below emphasis added):

Finally, revisiting the core of the test against which the Request is to be assessed and bearing in mind the enunciations set out in Roehampton, a compelling case is one that is so attractive as to be overpowering and irresistible; one that leaves the Board thinking 'I am constrained from considering any other path;' one that simply leaves no option but to grant the relief sought. A convincing case, likewise, is one that brings the Board to thinking, 'I am moved, I am sold, I am induced to commit to what you want me to do.' There can be no shades of gray at the end of it; there can be no remaining ambiguity blurring a request. None of what PALS has advanced in this motion has moved the Board to such thinking.

… At the same time, a request cannot be found to be convincing and compelling if, following submissions, the Board cannot identify which natural justice or procedural fairness rules or rights have been violated, or what was procedurally prejudicial. A request cannot be found to be convincing and compelling if the Board itself has to make connections that the requesting party has not made or rely on extrapolations about bias that are at best speculative and abstract. A request cannot be found to be convincing and compelling if, to arrive at the destination sought by the requesting party, the Board is left to fill in gaps or make assumptions. And finally, a request cannot be found to be convincing and compelling if the Board, at the end of it all, is left with two equally attractive paths or a single path that is more attractive than the path desired by the requesting party…

…Based on the foregoing analysis, the Board finds that PALS has not made out a convincing and compelling case — or, indeed, any case — that Vice-Chair Schiller violated the rules of natural justice and procedural fairness, including those against bias when she refused to qualify Dr. Gayler as an expert. As Mr. Pritchard succinctly put it, she got the law right; and she did what she was empowered to do in a transparent, even-handed manner…

27A past Decision of the Tribunal or one of its predecessor bodies is not binding on this Tribunal. However, past Tribunal jurisprudence can be of assistance particularly with respect to issues and doctrines that commonly arise before the Tribunal. On the other hand, requests for review that result in motions directed by the Chair are very rare. Review requests naturally turn on the specific circumstances of each case and the Decision being challenged.

28Given how different the circumstances can vary in such matters – as is indeed evident here – the context for a given past Decision may mean that its findings are of lesser assistance to this Tribunal. This is the current situation. The circumstances in Citizens Coalition and the basis for the review request are dramatically different than those in the Existing Decision. Allegations of a violation of the rules of natural justice and a lack of procedural fairness go to the core principles of an independent adjudicative body such as the Tribunal and must be taken extremely seriously. However, no such allegations were made in this case.

29The Tribunal declines to accept the framing of the standard apparently set out in Citizens Coalition which, in retrospect, may have been at least partly derived from the unique circumstances there which involved allegations of serious ‘administrative law misconduct’ against a senior OMB Vice Chair. While this Tribunal accepts that the City must meet a higher threshold which exceeds the concept of the ‘balance of probabilities’, it is of the view that some of the language used to express the standard in Citizens Coalition is too demanding. Some elements of the test expressed in Citizens Coalition almost seem to be akin to ‘beyond any reasonable doubt’ - or even beyond any doubt whatsoever. From a practical standpoint, it is this Tribunal’s view that such a standard seems almost equivalent to a requirement of ‘absolute certainty’. In this Tribunal’s opinion, had the Legislature intended to impose such a demanding standard then different or additional language beyond ‘convincing and compelling’ would have been utilized.

30The Tribunal has reviewed the other jurisprudence referenced by the Parties on the question of the standard to be met here and finds it to be not of material assistance. For example, the ‘manifest error’ comment made by the Court of Appeal in Russell v. Shanahan (2000), 2000 CanLII 17036 (ON CA), 52 O.R. (3d) 9 [2000] O.J. No. 4762 related to what that Court recognized was actually a reference to an internal guideline used by the former Ontario Municipal Board in conducting reviews – however, no such guideline is in use by the OLT. Similarly, on the issue of most relevance to this Review Motion, the Divisional Court in 2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569, 2023 A.C.W.S. 6539, 48 M.P.L.R. (6th) 76 did not provide any separate delineation of the standard in Rule 25.7 (c) beyond what was stated by the OLT Chair in his underlying disposition here except for noting that the granting of review is a ‘rare and extraordinary remedy’ – another term derived from past OLT jurisprudence.

31While this Review Motion is not an appellate review exercise, the Tribunal notes that even appellate courts do not utilize a standard of review for errors of fact that requires virtual certainty. In the Tribunal’s view, the actual wording of Rule 25.7 (c) provides the required guideposts, and it is unnecessary to craft some further formulaic approach or doctrine beyond that. In the Tribunal’s opinion, ‘convincing and compelling’ means that the Tribunal must be substantially persuaded that errors were apparently made – well beyond ‘more probably than not’ – but it is not required to conclude that it is absolutely certain that errors occurred especially when to do so would involve a consideration of what the adjudicator ‘must have intended’. As for the alleged errors, they must simply be such that without them, a different decision would likely have been reached. Put another way, if errors are made in a Decision that would have no real impact on the final outcome, they cannot justify intervention under Rule 25.7 (c).

32The Court of Appeal in Russell, citing another decision of the same Court along with a leading treatise on administrative law noted:

The power to reconsider decisions is peculiar to tribunals. It is not found in the law-courts. Its existence is the consequence of a general lack of provisions for appeal, particularly on questions of fact, from tribunals, and of the regulatory nature of most tribunals. In both respects the tribunals differ from the courts. The power to reconsider thus appears to be an appropriate means both for the correction of errors in the absence of an appeal and to permit adjustments to be made as changes in the regulated activity occur. The importance of such a power has been recognized by the courts.

C. Was such an Error made in the Existing Decision?

33Obviously, this is the fundamental issue on the Review Motion. It is also in some ways the most difficult to resolve.

34In the Tribunal’s view, the contrasting positions of the City and Claimants can be essentially distilled to two main scenarios to be considered:

1. The Existing Decision contained significant material errors that are readily correctible to reflect what the presiding Member must have intended given the evidence before him – and once addressed lead to a significantly reduced value conclusion (the City’s position);

2. There were errors made in the Existing Decision, but the actual value conclusion may have been nonetheless intended – and there is no compelling evidence that this outcome was in error (the Claimant’s position).

35There is little doubt that if the essential holding in the Existing Decision was supposed to be based on the unit of measure for GFA instead of GBA, the overall value conclusion would have been much lower. The City claims that this difference comprises $2,091,600 which, as noted, represents almost a 26% reduction in the value determination set out in the Existing Decision. By any standard, this is significant and material. Interestingly, to calculate this differential the Tribunal is requested to convert GBA to GFA through use of a proposed ‘rule of thumb’ which although alluded to in the evidence was not unequivocally determined by the Tribunal in the Existing Decision (which seemed to characterize this as a matter of agreement between the Parties – but which is not evident according to the submissions made on this Review Motion). The Claimant disputes this ‘rule of thumb’ and strongly challenges the notion that there was an evidentiary basis to support how GBA should be converted to GFA.

36The most troublesome aspect of determining whether an Error is present in the Existing Decision is that the common thread intertwined in the arguments of the Parties requires this Tribunal to make assumptions as to the intentions of the presiding Member. Each Party essentially has a different view as to what those intentions were. The City seeks a conclusion that there was an intention to use GFA, not GBA, as the unit of measure which then leads to its argument that it is a simple matter to correct those references and to thereby reduce the market value ruling by +$2M. The Claimant while conceding that there are several misstatements in references to GBA and GFA in the Existing Decision, argues in its written submissions that:

Respectfully, there is no convincing and compelling case that Member Ackerman intended to conclude a market value for the Subject based on a price psf of GFA instead of the stated GBA. At best, it may be argued that there were two equally plausible paths, i.e. a value based on psf GFA and value based on psf of GBA. Again, consistent with the high standard required, the Tribunal in the Citizens case held that an error is not convincing and compelling if the Tribunal is left with two equally attractive paths or a single path that is more attractive than the path desired by the requesting party.

37After much deliberation, this Tribunal is of the view that the several mistaken references to GBA coupled with the considerable, unfortunate uncertainty stemming from the Existing Decision as to what were the intentions of the presiding Member leads to a conclusion that there is an Error. Moreover, the sheer magnitude of the difference between what the Claimant argued could be ‘two equally plausible paths’ cannot be easily dismissed. It may be that the errors and evidentiary misstatements and resultant confusion caused were simply the result of inadvertence in the drafting of the Existing Decision. However, in the current circumstances, for the reasons discussed below, this cannot be further investigated. In summary, the elements of the Error determined here include but are not limited to:

(a) The apparent conflation in the use of the terms Gross Building Area (“GBA”) with Gross Floor Area (“GFA”) without adequate explanation at various points in the Existing Decision;

(b) Misstating of the evidence of Mr. Paul Morassutti and Mr. Anthony Capodelis with respect to their use of GBA and GFA as units of measure;

(c) The absence of a clear explanation in the Existing Decision of the basis for reaching a determination of market value for the Subject Property based on the unit rate of $45.00 per sq. ft. of GBA when the bulk of the appraisal evidence concerning valuation was tendered based on GFA;

(d) The absence of reasons clearly explaining the difference between GFA and GBA and the absence of a clear evidentiary basis for the conversion of GBA to GFA or an expressly-stated finding on that matter; and

(e) The significant impact on the market value conclusion reached in the Existing Decision depending on whether the unit measure of GBA or GFA is properly used.

38There is an almost irresistible urge in a unique situation such as this to have the presiding Member clarify exactly what he intended to rule. However, this is not an appropriate course of action to take for a variety of reasons. Certainly, no appellate court when carrying out a review of alleged errors on the part of a lower court conducts an interview of the trial judge or panel to discern their ‘true intentions’ and then reports back its findings of those intentions as part of its ruling. For the Tribunal – or the Chair – to do so in this case may also raise serious issues concerning the independence of the presiding Member and of procedural fairness.

39If after issuance of a Decision a Member is in effect asked to justify or explain in detail what (s)he decided or what (s)he intended, this could create a scenario whereby the adjudicator may feel compelled to reconsider or to change his/her findings and determinations under perceived ‘pressure’ from either a peer or the Chair or both. For obvious reasons, this is undesirable situation for an independent adjudicator to be in and there is no practice or convention at the OLT that permits this.

40Moreover, it would seem unfair for such a process as described above in paragraphs [38] or [39] to be conducted without the opportunity for the Parties to participate in some fashion and to perhaps even make submissions to the adjudicator. Then, the situation becomes even more complicated and potentially protracted.

41The powers to conduct decision review set out in section 23 of OLTA and Rule 25 and the associated procedures are clear and detailed. In this Tribunal’s view, had the Legislature intended to provide for further procedures in the nature of a direct ‘petition to rehear or review’ by one or both Parties to a Member (such as exist, for example, in court actions in some USA jurisdictions), it would have done so.

42Thus, the difficulty here is that it is impossible to ascertain the precise intentions of the presiding Member from simply reading the Existing Decision. This Tribunal does not accept the notion that misstatements or confusion in analysis that led to quite different views of the key findings should lead to the conclusion that no errors were made of the nature described in Rule 25.7 (c) – and to the extent that this was a finding in Citizens Coalition, this Tribunal respectfully declines to follow it. In this Tribunal’s opinion, it is critical that OLT Decisions and Orders be clear in all material aspects and that they avoid being capable of fundamentally differing interpretations, especially in relation to the ultimate key Order made. This is in the best interests of all parties and public stakeholders and helps to foster respect for the Tribunal’s process and outcomes.

43In this Tribunal’s opinion, as is the situation with respect to the Existing Decision, where there are errors, misstatements of the evidence, at least partly unexplained findings, conclusions and resultant confusion that cause profound uncertainty as to whether the overall market value determination made is accurate and intended, this constitutes a convincing and compelling case that an error was made such that a different decision would likely have been reached. This is another factor which supports this Tribunal’s decision on this Review Motion in addition to the mistakes and errors already summarized in paragraph [37] and referenced at various other points above.

44In reaching the above conclusions, the Tribunal wishes to reiterate that it makes no finding as to what the market value determination is or should be and expresses no opinion whatsoever based on the transcript evidence, experts’ opinions or any other materials contained in the Tribunal’s file in this proceeding. This is not a part of what must be decided on this Review Motion. The Tribunal has found that there were significant errors in the Existing Decision but is not making any determination as to the correctness of either the market value conclusion expressed in the Existing Decision or that proposed by the City.

D. If the Tribunal on this Review Motion concludes that an Error was made in the Existing Decision, does this Tribunal have the authority on this Review Motion – as distinct from a Review Hearing conducted pursuant to Rule 25.10 – to grant any other remedy beyond an order for ‘a rehearing of all or part of the proceeding’ (“Rehearing”)?

45As noted above, the City has sought correction under Rule 24.4 and for the reasons stated above in Part Three A., the Tribunal has dismissed that request. In light of that finding, then ‘a rehearing of all or part of the proceeding’ can be ordered on this Review Motion.

46However, the City’s alternative submission first made in its written supplementary submissions argues that this Tribunal currently has the delegated power to amend or vary the Existing Decision without ordering a partial or full rehearing (below emphasis added):

…In this Review Motion, the Tribunal has the equivalent power as the Chair to dispose of the City’s Request for Review set out in Rule 25.6. That discretion may be exercised to either: dismiss the request for review (Rule 25.6(a)), or grant the request for review, in whole or in part (Rule 25.6(c)). The jurisdiction is not limited to ordering “a rehearing of all or part of the proceeding.”

…It is significant that the Chair did not make any decision in respect of the City’s Request for Review. The Chair’s Disposition Letter dated December 31, 2024 states:

I exercise my discretion under Rules 25.6(b) to order a one-day motion for review (“Review Motion”) to be heard electronically before a different Member of the Tribunal to dispose of this Request… At the oral Review Motion, pursuant to Rule 25.8, the newly-assigned Member will hear submissions on whether the Request raises a convincing and compelling case that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision, pursuant to Rule 25.7(c). The Member will determine whether there are errors in the Decision sufficient to warrant a rehearing of the claim filed under section 26(1) of the Expropriations Act.

47The City’s counsel further maintained (below emphasis added):

… The Chair’s Order dated December 31, 2024 further provides:

AND WHEREAS THE CHAIR after having considered the Request and submissions filed under Rule 25.5, decided to exercise his discretion under Rule 25.6(b) to order a one-day motion for review to be heard electronically before the Tribunal to consider the Request and submissions received under Rule 25.5;

ACCORDINGLY, THE TRIBUNAL HEREBY ORDERS that:

1. A one-day motion for review to be heard electronically pursuant to Rule 25.8 will be scheduled before a different Member of the Tribunal in accordance with the Chair’s letter of disposition dated December 31, 2024.

2. The Member assigned to conduct the motion for review is hereby delegated the Chair’s authority to consider and dispose of the Request in accordance with Rule 25.8 and the Chair’s letter of disposition.

All of which are ordered pursuant to my authority under section 23 of the Ontario Land Tribunal Act, 2021 and Rule 25 of the Tribunal’s Rules of Practice and Procedure.

48Therefore, the City’s counsel argued (below emphasis added):

The Chair delegated his authority to dispose of the City’s Request for Review to the Vice Chair in this Review Motion. The delegation of authority to dismiss the Request pursuant to Rule 25.6(a) or to grant the Request pursuant to Rule 25.6(c) is implicit, as no one at the Tribunal has yet “disposed of” the City’s Request for Review in accordance with Rule 25.6. Accordingly, the Vice Chair presiding over this Review Motion should interpret his authority as equivalent to that of the Chair under Rule 25.6.

The Tribunal’s task in the Review Motion is to consider the City’s Request for Review and determine whether the City has raised a convincing and compelling case that the Tribunal made an error of fact or law, such that the Tribunal would likely have reached a different decision. If that standard is met, then the presiding Vice Chair may either:

a. Grant the request for review pursuant to Rule 25.6 and make the amendments requested by the City…or

b. Order a Review Hearing pursuant to Rule 25.10, and direct that the Member or panel that conducts the Review Hearing to rehear the claim in part… The City’s proposed scoping of a potential Review Hearing is reviewed in the following section.

49The Claimant’s counsel disagrees with the positions taken by the City (below emphasis added):

The delegated authority conferred by the Chair in this case was not so broadly defined [as in caselaw cited by the City]... It was limited to a rehearing in the event the Tribunal decides to grant the Request for Review. The Claimants have been unable to locate any case law that supports the proposition that the Tribunal has the authority to grant a remedy other than those prescribed by the Chair’s delegated authority…

While the City highlights select passages of the Disposition Letter and accompanying Order, it ignores the fact that the Chair has restricted the available remedy to a rehearing of the proceedings, if it is determined that the City’s Request raises a convincing and compelling case. Interpretations of the plain language of Rule 25 and the Tribunal’s general authority to review, rescind or vary any order or decision on a Request for Review are irrelevant because the Chair has exercised his authority and prescribed the available remedies in this case. As noted above, the Chair has directed the scope of the Review Motion and authority of the assigned Member as follows:

“[t]he Member will determine whether there are errors in the Decision sufficient to warrant a rehearing of the claim filed under s. 26(1) of the Expropriations Act.

…The Disposition Letter is part of the accompanying Order, which refers to the Letter in paragraph 2 and by extension Rule 25.8 restricting the remedy to a rehearing. For the above reasons, the Tribunal does not have the authority to amend, rescind or vary the Decision without a rehearing…

50The Tribunal also agrees with the Claimant’s argument that certain caselaw relied upon by the City is distinguishable from the circumstances present here: Pinto v. Simcoe County, 2019 CanLII 77511 (ON LPAT) (“Pinto”); Bolton North Hill Landowners Group Inc. v. Peel (Region), 2020 CanLII 89023 (ON LPAT) (“Bolton”); Shergar Development Inc v. The City of Windsor, 2019 ONSC 2623 (Div. Ct.) (“Shergar”).

51In Pinto, the Chair’s directions were quite different. As stated by Vice Chair Taylor (below emphasis added):

The panel assigned to the motion was directed to determine whether the review request raised “a convincing and compelling” case that there was an error in the Decision sufficient to warrant a review of the appeal pursuant to Rule 25.08. Moreover, the hearing panel was delegated authority to either amend the Decision, or to set the correct award for the amount of injurious affection, or to set aside part of the Decision and schedule a date for a Pre-hearing on that one aspect of the claim. In the further alternative the panel was delegated authority to confirm the Decision and deny the review request.

52Bolton was a planning case, and no formal Decision was issued. Instead, the former Executive Chair and an Associate Chair issued a short Order which approved certain aspects of a regional official plan and deleted certain paragraphs of the underlying Decision that had been reviewed.

53In Shergar, the Divisional Court stated, when considering the findings of a Review Panel convened by the OMB which reviewed an underlying Decision:

The Review Board considered that each of these findings satisfied the “convincing and compelling” threshold set out in Rule 115.01 of the Ontario Municipal Board Rules of Practice and Procedure in effect at the time of the Review Decision (the “OMB Rules”) entitling the Review Board to exercise its discretion to grant the requested review on the three matters addressed above. The Review Board also concluded that the most equitable approach to address the deficiencies in the Initial Decision set out above was to rescind the relevant paragraphs of the Initial Decision and direct that a new panel of the Board be convened to receive evidence and submissions on the three identified issues to arrive at a final determination.

54The Tribunal agrees that Shergar stands for the proposition that the Divisional Court has accepted the broad discretion and power of the OLT’s predecessor with respect to the review of Decisions. However, what was evidently seen in Shergar to be an ‘equitable approach’ may not be equally commendable in the present case. The Divisional Court was not directing that the Chair’s power and discretion be exercised or limited in any particular way.

55In this Tribunal’s opinion, the terms of the Chair’s Disposition Letter and Order are unequivocal and govern this Review Motion regardless of what comprises the other general broad powers and discretion afforded under OLTA and the Rules as discussed above. The Chair has asked this Tribunal to “…determine whether there are errors in the Decision sufficient to warrant a rehearing of the claim filed under s. 26(1) of the Expropriations Act…”. In the Chair’s Order, it was stated (below emphasis added):

The Member assigned to conduct the motion for review is hereby delegated the Chair’s authority to consider and dispose of the Request in accordance with Rule 25.8 and the Chair’s letter of disposition…

56Again, as noted above, Rule 25.8 states:

…A Tribunal Member or panel assigned by the Chair to conduct a motion to review may, after receiving submissions from the parties, order a rehearing of all or part of the proceeding only if satisfied that the request raises a convincing and compelling case in respect of one or more of the issues set out in clauses a) to e), inclusive, of Rule 25.7…

57Thus, in light of the above, and in the absence of further direction from the Chair, the Tribunal is of the view that the only order that can be made on this Review Motion at this stage would be to order a partial or full rehearing of the proceeding underlying the Existing Decision.

D. If a Rehearing is the only Order that should be made by the Tribunal on this Review Motion, what is the scope and nature of a permissible partial rehearing of the proceeding underlying the Existing Decision? Specifically, what evidence should be dealt with in a partial rehearing if ordered by the Tribunal?

58On this issue, the Parties are once again in disagreement. Simply put, the City argues that a partial rehearing ought to be reconsidered and, unsurprisingly, seeks to simply have the Tribunal carry out a simple reassessment – in writing only – of the existing evidentiary record without any fresh evidence or testimony. Indeed, the City argues that (below emphasis added):

If the Tribunal directs a written Review Hearing, the simple question to answer is: given the above-noted findings of fact, what is the market value of the Subject Property on the Valuation Date? The City respectfully submits that the answer to this question requires a mathematical calculation, and no further evidence is necessary…

Should the Tribunal decide that further evidence is required, any new evidence should be limited to the singular issue raised in the City’s Request for Review: whether the Tribunal made an error by multiplying $45 by the GBA of the Hobin Proposal. The parties’ appraisers could be recalled to clarify their evidence regarding the metric used to analyze the comparable sales (GFA or GBA), though the City maintains that this fact is already set in the existing evidentiary record

59Equally unsurprising is the Claimant’s position that a rehearing must involve a full rehearing in the circumstances of this case (below emphasis added):

In certain circumstances, a rehearing can proceed in writing. However, a written rehearing would not be appropriate in this case…any rehearing of the proceedings cannot be artificially limited in scope and must fully and fairly consider all the issues and evidence…

The primary issue in this case is the fair market value of the Subject Property, which was determined based on the extensive and interrelated evidence of appraisal, planning and land economist experts. The error that would be the subject of a rehearing would be an approximately $2 million reduction of the determined market value of the Subject Property. A rectification of such an error cannot be reheard in the limited manner proposed by the City…

If the Tribunal decides to grant the City’s Request, only a full rehearing with fresh evidence on the facts and law can lead to a fair and final determination of compensation for the Subject Property as required under the Expropriations Act. The subject matter of the alleged error is the core issue in the claim and hearing, i.e. the market value of the Subject Property. Given the quantum and gravity of the error, only a full rehearing is appropriate.

60The Claimant also argues that the limited scope proposed by the City is tantamount to permitting the Error to be dealt with as a minor correction under Rule 24.4 and ought not be permitted. The Tribunal agrees and has already rejected that notion. The Claimant also points out that there is an ‘evidentiary gap’ on the important question of converting GBA to GFA, and vice versa, which needs to be addressed through new evidence in a rehearing. Finally, counsel for the Claimant argues that:

Lastly, the characterization of the Tribunal’s consideration of the evidence in paragraph 40 of the City’s Submissions is inaccurate. The Decision does not contain a detailed recitation of all the evidence. There are no reasons or consideration of the extensive market and absorption analysis tendered by the Claimants’ land economist, Peter Norman, in the Decision. Furthermore, the Claimants dispute the findings of fact in paragraphs 41(a) and 41(b) of the City’s Submissions which mis-state the Member’s conclusions of the HBU [highest and best use] as GFA

61In directing supplementary submissions, the Tribunal was hopeful that the Parties consider carefully whether a full rehearing of the case would be required and might agree on an approach which would reduce the associated time and expense of doing so. This Tribunal is mindful of the mandate of the OLT under both OLTA and the Rules to consider such practices and procedures which “offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings”.

62This Tribunal is unconvinced that a full rehearing of all evidence tendered at the proceeding which led to the Existing Decision would be the most fair, expeditious and cost-effective disposition to deal with the Error. Certainly, there was no allegation made by either Party that any errors were made in relation to the analysis which led to the determination of a deduction of market value for the costs of environmental remediation in the amount of $269,000. There was also no assertion that any errors or mistakes were made in the determination of the highest and best use of the subject property nor is there any argument made that the Error impacted that determination. Closely connected with that latter issue were the differing positions of the Parties at the hearing concerning the reasonable and probable density that could have been achieved on the Subject Property. Once again, neither the City nor the Claimant on this Review Motion argued that the Error impacted that matter or the determination eventually made in the Existing Decision.

63Counsel for both Parties concede that this Tribunal is not bound to Order a full rehearing whereby fresh evidence is heard on all factual and legal issues raised in the original hearing. As already noted, the Tribunal agrees with the Claimant that the City’s proposed written partial rehearing on matters of “mathematical calculation” only is unacceptable and essentially aligns with the City’s argument that the Error was a simple minor mistake that is easily correctible. Again, for the reasons stated above, the Tribunal disagrees and rejects that contention and also disagrees with the City’s argument that any rehearing should be based on the existing evidentiary record only.

64On the other hand, the Tribunal is not persuaded by the Claimant’s insistence that only a full rehearing involving new evidence on all matters dealt with at the original 14-day hearing is necessary or reasonable. The mere fact that the market value opinion evidence is in turn dependant on findings as to the highest and best use and the reasonably achievable density does not automatically mean that new evidence is required on all of these issues. The nature of the Error – and indeed the Parties’ arguments made on this motion – did not involve any alleged mistakes related to those determinations in the Existing Decision. Therefore, this Tribunal is of the opinion that a limited scope partial rehearing should involve solely evidence on market value. In this Tribunal’s opinion, the findings in the Existing Decision on highest and best use; the acceptance of the Hobin proposal and the costs to be deducted for environmental remediation shall be treated essentially as ‘agreed / determined facts’ for the purpose of the rehearing.

65The Tribunal will convene a Case Management Conference in relation to the partial rehearing and will consider the Parties’ further submissions as to its scope as determined and described in paragraph [64] above and as Ordered below.

ORDER

66THE TRIBUNAL ORDERS THAT:

a. The Decision issued August 2, 2024 (“Existing Decision”) contained an error of fact or law such that the Tribunal would likely have reached a different decision (“Error”);

b. In light of the Error, the Tribunal shall conduct a partial rehearing of the proceeding that led to the Existing Decision (“Rehearing”);

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

d. The Tribunal will convene a Case Management Conference (“CMC”) following the delivery of a Procedural Order (“PO”) in accordance with the Order made in paragraph [66] e. below;

e. The Parties shall deliver a PO to the Tribunal within 10 days of the issuance of this Decision on agreed terms or, failing such agreement, which clearly delineates any areas of dispute; and

f. This Vice Chair shall be seized with respect to the Rehearing and all matters arising from this Decision and the Orders set out above.

“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.