Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 23, 2025 CASE NO(S).: OLT-23-001203

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

Claimant: Lajendra Singh Claimant: Kissoondai Ramdayal Respondent: City of Waterloo

Description: Determination of compensation Property Address: 275 Lester Street Municipality/UT: Waterloo/Waterloo OLT Case No: OLT-23-001203 OLT Lead Case No: OLT-23-001203 OLT Case Name: Singh v. Waterloo (City) Heard: In writing

APPEARANCES:

Parties	Counsel
Lajendra Singh and Kissoondai Ramdayal	John Doherty Jonathan Minnes Kevin Dias
City of Waterloo	Peter A. Hertz Michael A. van Bodegom

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

PART ONE: INTRODUCTION

1The history of this proceeding was summarized in the previous Decision of the Tribunal issued April 4, 2025 and need not be reiterated.

2The Tribunal scheduled an eight-day (8-day) Hearing to commence on May 20, 2025. This motion arises from the Claimants’ motion to compel answers to certain questions posed at the examination for discovery of the City’s representative Tanja Curic which was held on December 17, 2024 (“Motion”). The Claimants also seek a supplementary Affidavit of Documents from the City but given the rapidly approaching hearing date and the requirements of the Procedural Order in this case, the Tribunal will not order that further remedy at this late stage.

PART TWO: ISSUE ANALYSIS

(i) Introduction

3The key issue to be determined on this Motion is whether the City is permitted to continue to refuse answering the questions as set out in Attachment A appended to this Decision related to offers made by the City in October 2018 to purchase two properties owned by the Claimants (“Questions”), including the property that was eventually expropriated by the City by its expropriation plan registered on December 4, 2020 which thereby became the effective date for the purpose of determining any compensation owed pursuant to the Expropriation Act, R.S.O. 1990, c. E.26, as amended (“Act”).

4The Claimant alleges that the Questions were proper and highly relevant to the issues raised by the pleadings in this action, the Notice of Arbitration and Statement of Claim, dated November 30, 2023 (appended as Attachment B hereto) and the Reply of the City, dated February 6, 2024 (appended as Attachment C hereto) – (collectively, “Pleadings”).

5On the other hand, in the introduction to its Response to the Motion, the City alleges that the Questions: “…were properly refused because they seek information that is subject to privilege and that is irrelevant to the matters at issue in this proceeding…”

6Thus, the first issue to be determined is whether the Questions are relevant to a matter raised in the Pleadings. If they are not, then the second issue of privilege need not be dealt with by the Tribunal.

(ii) Are the Questions Relevant?

7The offers made by the City in 2018 were to purchase 267 Lester Street and 275 Lester Street, each for the same amount of $932,000 and both dated October 9, 2018. 275 Lester Street is the property that became the subject of the Expropriation – 267 Lester is a neighbouring property also owned by the Claimants but was not expropriated.

8In light of the fact that 275 Lester Street was the subject of the expropriation (“Expropriation”) as set out in the Pleadings, in the Tribunal’s view, appropriate questions about it would ordinarily be relevant. However, the issue is whether questions concerning the City’s offers to purchase it approximately 2 years prior to the Expropriation are relevant.

9After reviewing the relevant portions of the transcript of Ms. Curic’s examination, it is the Tribunal’s observation that the City’s counsel did not take the position that questions relating to 275 Lester were “irrelevant”. His refusal to permit Ms. Curic to answer the Questions was solely based on a claim of privilege. It is also noted that he made no specific reference to questions relating to 267 Lester. In the City’s Responding Record on the Motion, it is also not alleged that questions concerning the 2018 City offers to purchase 275 Lester – or 267 Lester, for that matter – were irrelevant beyond the single assertion reproduced in paragraph [5] above, save and except for the argument that the Claimants’ Statement of Claim does not mention those 2018 City Offers.

10In the Tribunal’s opinion, evidence as to what the Claimants were prepared to accept for the sale of 275 Lester or evidence of what the City was prepared to pay for that property prior to the Expropriation (which had been mentioned by the City to the Claimants in the 2018 offers as a possibility prior to the Effective Date) may be relevant to the Tribunal’s determination of market value compensation under the Act. Thus, proper questions about the City’s 2018 offer to purchase 275 Lester are relevant.

11On the other hand, there is no evidence that 267 Lester is related to the Expropriation or any other issues in this proceeding – beyond the fact that the two 2018 City offers seem to have been conditional on both being accepted by the Claimants (although neither was accepted). Thus, questions at the examinations concerning 267 Lester are irrelevant and need not be answered.

12An alternative argument was made by counsel for the City to the effect that evidence concerning the 2018 City offers improperly raise issues under section 14(4)(b) of the Act because it would relate to the “scheme” of the Expropriation. The Tribunal disagrees – this cannot be a basis upon which to refuse to answer otherwise relevant questions. Matters related to section 14(4)(b) of the Act require specific findings of fact and law which will only be made by the Tribunal at the Hearing of this case. In reality, the Tribunal at the Hearing, in order to meet its obligation under that provision, must hear all available evidence bearing upon:

(a) the special use to which the expropriating authority will put the land;

(b) any increase or decrease in the value of the land resulting from the development or the imminence of the development in respect of which the expropriation is made or from any expropriation or imminent prospect of expropriation; or

(c) any increase in the value of the land resulting from the land being put to a use that could be restrained by any court or is contrary to law or is detrimental to the health of the occupants of the land or to the public health.

13Reasonable questions relating to the scheme and to matters under section 14(4)(b) at examinations for discovery are always relevant in every expropriation case. No pre-determination of the issues under section 14(4)(b) of the Act can be unilaterally made by either party – this is solely a matter for the Tribunal to consider at the Hearing.

14As a final obvious point, the Tribunal notes that the ultimate admissibility and relevance of evidence at the final Hearing is not determined at the examinations for discovery stage of a proceeding. Issues of admissibility and evidentiary objections are determined at the Hearing by the Tribunal. Moreover, parties to expropriation proceedings are reminded of the provisions of the OLT Rules of Practice and Procedure, including Rules 26.3, 1.1, 1.3, 1.4 and 1.6. and also of the Statutory Powers Procedure Act, R.S.O. 1990, C. S.22, section 15. Simply put, the Tribunal is not bound to follow the Ontario Rules of Civil Procedure in all situations and the Tribunal in certain respects has broader flexibility than does a Court with respect to matters of evidence.

15Given the short period of time until the Hearing will commence, for the purposes of clarity, the Tribunal finds that (a) any appraisal report or appraisal opinion obtained by the City related to its October 2018 offer to purchase 275 Lester Street and (b) any other communications from the City to the Claimants concerning the City’s October 2018 offer to purchase 275 Lester Street are relevant and producible, subject to the issue of prejudice considered below.

(iii) Do the Questions Relate to Matters Governed by a Valid Privilege Claim

16Upon reviewing the submissions made by the City on the Motion, the Tribunal is not satisfied that there is a valid claim of privilege governing all of the evidence that might arise if the Questions are answered.

17Based on the evidence tendered on the Motion, the Tribunal does not accept that the otherwise unsolicited October 2018 City offer to purchase 275 Lester is subject to any recognized privilege claim. There is no uncontroverted evidence that this offer to purchase was made as part of ongoing discussions aimed at settling pending or current litigation – in fact, this is specifically denied by the Claimants and the City has delivered no specific, reliable documentary evidence to the Tribunal to establish this claim. The excerpt from a letter from a city employee dated more than two months later – which does not even refer to the October 2018 offer to purchase – does not, in the Tribunal’s view, serve to support a claim of settlement privilege:

January 3, 2019, Lauder states, among other things that: […] over the coming weeks, you’ll be receiving information about City-initiated expropriation proceedings for 275 Lester St. If you wish to settle this matter through a sales process, please let Steve Ross know.

18In the Tribunal’s opinion, the fact that the unsolicited form of the October 2018 City offer to purchase 275 Lester contained the provision set out below also cannot unilaterally create the conditions for either a claim of litigation privilege or settlement privilege:

In consideration of the payment of the Purchase Price by the Purchaser to the Vendors, the Vendors on their behalf and on behalf of their heirs, executors, administrators and permitted assigns, hereby remise, release and forever discharge the Purchaser, its members of Council, officers, employees, agents, contractors and consultants from all manner of actions, causes of action, costs (including but not limited to legal costs), and claims including but not limited to claims arising under the Expropriations Act, R.S.O. 1990, c.E.26, or otherwise, which the Vendors ever had, now have, or can, shall or may hereafter have against the Purchaser for, or by reason of, or in any way arising directly or indirectly in relation to the conveyance of the Lands or the Works. The Parties acknowledge and agree that the foregoing release and covenant in favour of the Purchaser shall not merge but shall survive the completion of the transaction of purchase and sale contemplated herein.

19The situation might have been different if there had been further oral or written evidence available on this Motion that clearly detailed ongoing settlement discussions or which referenced contemplated or pending litigation between the Parties. However, on this Motion, the City has tendered an affidavit from Ms. Curic, who admits to having had no involvement in such matters including with respect to the October 2018 City offer to purchase 275 Lester. Needless to say, legal argument does not constitute evidence that the Tribunal can rely upon.

20There is no need for the Tribunal to consider or comment upon the apparent prior planning disputes between the Parties that led to what the City characterizes as the 2014 OMB Settlement. Again, based on the available evidence on this Motion, the Tribunal can find no basis for a conclusion that the 2014 Minutes of Settlement specifically related to or resulted in the offer made more than four years later in October 2018 to purchase 275 Lester. Moreover, the Tribunal also notes that the dispute arising from those Minutes of Settlement is the subject matter of a separate civil action commenced by the City against the Claimants and is not a proper matter to be considered or adjudicated by the Tribunal in this proceeding (as earlier elaborated upon in the April 4, 2025 Tribunal Decision).

21The Tribunal noted with interest the following submission of the Claimants’ counsel:

If the City, in fact, considered the 2018 City Offers to be settlement privileged, then it is a complete contradiction that the City had no issue with probing…[at its discovery of the Claimants]… into the content and context of discussions between the City and the Claimants regarding the 2018 City Offers – discussions that the City in doing so clearly did not consider to be settlement privileged

22The Tribunal agrees with that submission but of course the conduct of the City’s examination of the Claimants is not determinative of the privilege claims.

23As a final note, the Tribunal has reviewed each of the Parties’ Affidavits of Documents as they existed at the time of examinations for discovery. The Claimants’ first Affidavit of Documents has a Schedule B listing two privileged items (shown below), yet the two October 2018 City offers to purchase are listed in Schedule A (Non-privileged). The Claimants’ Supplementary Affidavit of Documents indicates “N/A” in its Schedule B.

24However, the City’s Affidavit of Documents does not contain a properly completed Schedule B – in other words, there is no specific listing of the documents for which the City claims privilege nor the basis of the claim for each document (see below). While this still occurs in Ontario civil litigation, it is non-compliant with Rule 30.03(2)(b). This is also somewhat unexpected in these circumstances, in which the City is putting forward privilege claims in this Motion:

25In the Tribunal’s view, in addition to the other factors considered above in PART TWO (iii), the failure of the City at the time of the discoveries to deliver a properly detailed Schedule B listing all items for which it claimed privilege and the basis for such claims now militates against its position on this Motion. The Claimants’ listing in its Schedule A of the two October 2018 City offers to purchase is not determinative of the City’s privilege claim – but does show that the Claimant did not consider them to be subject to either settlement or litigation privilege, which is consistent with its position on this Motion.

FINDINGS AND CONCLUSIONS

26The Tribunal finds that:

(a) otherwise proper questions at the examination for discovery of the City’s representative related to the City’s October 2018 offer to purchase 275 Lester Street are relevant and must be answered;

(b) questions at the examination for discovery of the City’s representative related to the City’s October 2018 offer to purchase 267 Lester Street are irrelevant and need not be answered;

(c) there is no valid claim of either litigation privilege or settlement privilege relating to the questions described in (a) above.

ORDER

27THE TRIBUNAL ORDERS THAT:

(a) within 5 business days of the date of issuance of this Decision, the City shall produce to the Claimants copies of any appraisal reports prepared by or for the City in connection with or relating to the October 2018 offer to purchase 275 Lester Street;

(b) within 5 business days of the date of issuance of this Decision, the City shall produce to the Claimants copies of any emails or other correspondence relating to the items in (a) above, save and except any communications between City employees and inside or outside legal counsel or any communications between appraisers and inside or outside legal counsel;

(c) within 5 business days of receipt of the documents described in (a) and (b) above, the Claimants’ counsel may submit a list of up to 10 written questions to the City’s counsel arising out of the productions described in (a) and (b) and the City’s representative shall in good faith provide responsive answers to those questions within 3 business days of their receipt;

(d) the City’s representative is not required to answer any other questions or requests set out in Attachment A hereto except as ordered above in (a), (b) and (c);

(e) for clarity, none of the information and documentation described in (a), (b) and (c) above shall be delivered to the Tribunal except as may be incorporated by reference in any expert reports or witness statements delivered in connection with the Hearing now scheduled to commence on May 20, 2025 (“Hearing”);

(f) nothing in the Orders made above shall be deemed to prevent either Party from raising any evidentiary objections at the Hearing, including but not limited to issues of admissibility;

(g) there shall be no Order as to the costs of this Motion; and

(h) this Vice Chair shall remain seized of any matters arising from the above Orders.

“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.