ISSUE DATE:
May 02, 2025
CASE NO.:
OLT-23-001261 OLT-24-000347
PROCEEDING COMMENCED UNDER subsection 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, c. 4
Claimant:
Capital Paving Inc.
Respondent:
Enbridge Gas, Enbridge Gas Distribution, and Enbridge Gas Inc.
Subject:
Claim for Compensation
Municipality:
Region of Waterloo
OLT Case No.:
OLT-23-001261
OLT Lead Case No.:
OLT-23-001261
OLT Case Name:
Capital Paving Inc. v. Enbridge Gas, Enbridge Gas Distribution, and Enbridge Gas Inc. (Enbridge Gas)
PROCEEDING COMMENCED UNDER subsection 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, c. 4
Claimant:
Capital Paving Inc.
Respondent:
Enova Power Corporation et. al.
Subject:
Claim for Compensation
Municipality:
Region of Waterloo
OLT Case No.:
OLT-24-000347
OLT Lead Case No.:
OLT-24-000347
OLT Case Name:
Capital Paving Inc. v. Enova Power Corporation et. al.
BEFORE:
W. DANIEL BEST
Wednesday, the 29th
MEMBER
day of April 2025
THESE MATTERS having come before the Ontario Land Tribunal (the “Tribunal”) for a Case Management Conference on April 9, 2025 and the Tribunal having issued a decision on April 29, 2025, directing the submission of a draft Procedural Order on consent of all the parties;
AND THE TRIBUNAL having received the requested draft Procedural Order, on consent;
NOW THEREFORE
THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule “1” is in full force and effect.
“Euken Lui”
EUKEN LUI ACTING REGISTRAR
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.
SCHEDULE 1
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
- The video hearing will begin on Wednesday, November 4, 2026 at 10:00 a.m. at:
GoTo Meeting: https://global.gotomeeting.com/join/927921077
Access code: 927-921-077
The parties’ initial estimation for the length of the hearing is fourteen (14) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in
Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Thursday, September 10, 2026 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Tuesday, October 6, 2026 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, October 9, 2026.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before Monday, August 31, 2026, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Friday, September 11, 2026, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Wednesday, September 30, 2026, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, October 2, 2026, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, October 16, 2026.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, October 2, 2026 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross- examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
On or before Wednesday, April 30, 2025, the parties shall provide copies of their respective affidavits of documents to the other parties and to the OLT case co-ordinator and file their respective affidavits of documents with the Tribunal, in accordance with the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Civil Rules”) and OLT Rules of Practice and Procedure, made under subsection 13(1) of the Ontario Land Tribunal Act, 202 (the “OLT Rules”).
On or before Tuesday, September 30, 2025, the parties shall complete examinations for discovery, in accordance with the Civil Rules and OLT Rules.
On or before Friday, December 5, 2025, the parties shall answer any undertakings given at examinations for discovery, in accordance with the Civil Rules and OLT Rules.
On or before Friday, February 27, 2026, the parties shall schedule any motions arising from examinations for discovery, in accordance with the Civil Rules and OLT Rules.
On or before Thursday, April 30, 2026, the claimant, Capital Paving Inc., shall provide copies of any expert reports to the other parties and to the OLT case-coordinator, in accordance with the Civil Rules and OLT Rules.
On or before Friday, May 29, 2026, the respondents shall provide copies of any responding expert reports to the other parties and to the OLT case-coordinator, in accordance with the Civil Rules and OLT Rules.
On or before Tuesday, June 30, 2026, the parties shall provide copies of any supplementary expert reports to the other parties and to the OLT case-coordinator, in accordance with the Civil Rules and OLT Rules.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
Attachment 1 – Identification of Parties and Counsel
No.
Party
Party Status
Counsel
Capital Paving Inc.
Claimant
Kennaley Construction Law Wincey Mills, Unit 305 31 Mechanic Street, Paris, ON N3L 1K1 Robert Kennaley Darcia Perry Tel: (519) 805-8186 Email: rjk@kennaley.ca Email:dperry@kennaley.ca
Enbridge Gas, Enbridge Gas Distribution and Enbridge Gas Inc.
Respondent(s)
Lerners LLP 225 King Street West, Suite 1600 Toronto, ON M5V 3M2 Justin Martin Tel: (416) 867-3076 Email: jmartin@lerners.ca
Enova Power Corporation (formerly known as Waterloo North Hydro Inc.), Waterloo North Hydro Inc.
Respondent(s)
Lerners LLP 225 King Street West, Suite 1600 Toronto, ON M5V 3M2 Justin Martin Tel: (416) 867-3076 Email: jmartin@lerners.ca
Bell Canada
Respondent
Borden Ladner Gervais Bay Adelaide Centre, East Tower, 22 Adelaide Street West, Toronto, ON M5H 4E3 Keri Bedeau Tel: (416) 367-6001 Email: kbedeau@blg.com
Hydro One Networks Inc., Hydro One Limited, Hydro One Inc.
Respondent(s)
Hydro One Networks Inc. 483 Bay Street, 8th Floor, South Tower Toronto, ON M5G 2P5 Raman Dhillon Tamar Klein Tel: (416) 859-0942 Email:Raman.Dhillon@HydroOne.com Email: Tamar.Klein@hydroone.com
Attachment 2 – Issues List
Identification of Issues:
Capital Paving Inc. (“Capital Paving”) has advanced a claim for compensation pursuant to subsections 17 (1) (c) and 17(4) of the Ontario Underground Infrastructure Notification System Act, 2012 (the “Act”).
From Enbridge Gas’s perspective, the issues raised by the Claim for Compensation are:
Whether Enbridge Gas caused Capital Paving to incur a “loss or expense” within the meaning of subsection 17(1) of the Act, and with consideration of subsection 10(1) of the Act, which states excavation cannot commence until all members have complied with subsection 6 (1).
Whether Capital Paving reached an agreement with a member (as defined under the Act) about a different timeline for the completion of the locate requests that are the subject of this proceeding. Subsections 6(5) and (6) provide that such agreements prevail over the five business time limit provided under subsection 6(3).
The exact cause(s) and extent of the Project delay.
The nature and extent of Capital Paving’s damages, if any, that were actually caused by the Project delay. What actions, if any, did Capital Paving take to mitigate their losses, including whether Capital Paving contracted a “dedicated locator” pursuant to section 7 of the governing statute.
From Capital Paving’s perspective, the issues raised by the Claim for Compensation are:
Whether the Respondents provided the requested standard locates within five business days after the Respondents received notification of those locate requests, in accordance with section 6 of the Act.
Whether the Respondents caused Capital Paving to incur any economic or financial loss or expense, or any other type of loss or expense prescribed by the Minister, within the meaning of section 17 of the Act, and the nature and extent of Capital Paving’s losses and/or expenses in that regard.
From Bell Canada’s perspective, the issues raised by the Claim for Compensation are:
Whether Bell Canada is a necessary party in this claim for compensation.
Whether Bell Canada caused Capital Paving to incur a “loss or expense” within the meaning of subsection 17(1) of the Act, and with consideration of subsection 10(1) of the Act, which states excavation cannot commence until all members have complied with subsection 6 (1).
Whether Capital Paving reached an agreement with a member (as defined under the Act) about a different timeline for the completion of the locate requests that are the subject of
this proceeding. Subsections 6(5) and (6) provide that such agreements prevail over the five business time limit provided under subsection 6(3).
The exact cause(s) and extent of the Project delay.
The nature and extent of Capital Paving’s damages, if any, and Capital Paving’s entitlement to compensation from Bell Canada, particularly given the difficulty in locating the buried infrastructure of another member and the required relocation of buried infrastructure by that same member to complete the requested locates.
From Enova Power Corp., formerly known as Waterloo North Hydro Inc. perspective, the issues raised by the Claim for Compensation are:
- See issues raised by Enbridge Gas.
From Hydro One Networks Inc.’s perspective, the issues raised by the Claim for Compensation are:
Hydro One Inc. and Hydro One Ltd. are not proper parties to this claim.
Whether Hydro One Networks Inc (“HONI”) is a necessary party in this claim for compensation.
Whether HONI caused Capital Paving to incur a “loss or expense” within the meaning of subsection 17(1) of the Act, and with consideration of subsection 10 (1) of the Act, which states excavation cannot commence until all members have complied with subsection 6(1).
The nature and extent of Capital Paving’s damages, if any, caused by HONI.
What actions, if any, did Capital Paving take to mitigate their losses. S. 7 of the Act permits the use of a “dedicated locator”, a single locate service provider contracted by the project owner to complete all locate requests on a project.
Whether Capital Paving reached an agreement with a member (as defined under the Act) about a different timeline for the completion of the locate requests that are the subject of this proceeding. Subsections 6(5) and (6) provide that such agreements prevail over the five business day time-limit pursuant to subsection 6(3) of the Act.
The exact cause(s) and extent of the Project delay.
Attachment 3 - Order of Evidence
The order of examination of witnesses will be direct examination, cross-examination and re- examination, in the following way:
Direct examination by the party presenting the witness;
Direct examination by any party of similar interest, in the manner determined by the Tribunal;
Cross-examination by parties of opposite interest;
Re-examination by the party presenting the witness; or
Another order of examination mutually agreed among the parties or directed by the Tribunal
Case File Number: OLT-23-001261 Capital Paving Inc. v. Enbridge Gas, et al.
Claimant (Capital Paving Inc.)
Respondent(s) #1 (Enbridge Gas, Enbridge Gas Distribution, Enbridge Gas Inc.)
Claimant (Capital Paving Inc.), in reply, if necessary.
Case File Number: OLT-24-000347
Capital Paving Inc. v. Enova Power Corp., formerly known as Waterloo North Hydro Inc., et al.
Claimant (Capital Paving Inc.)
Respondent(s) #2 (Enova Power Corp., formerly known as Waterloo North Hydro Inc., Waterloo North Hydro Inc.)
Respondent(s) #3 (Hydro One Networks Inc., Hydro One Limited, Hydro One Inc.)
Respondent #4 (Bell Canada)
Claimant (Capital Paving Inc.), in reply, if necessary.
Attachment 4 - Timetable
No.
Description
Date
The parties shall provide copies of their respective affidavits of documents to the other parties and to the OLT case co-ordinator
Wednesday, April 30, 2025
The parties shall complete examinations for discovery
Tuesday, September 30, 2025
The parties shall answer any undertakings given at examinations for discovery
Friday, December 5, 2025
The parties shall schedule any motions arising from examinations for discovery
Friday, February 27, 2026
The claimant, Capital Paving Inc., shall provide copies of any expert reports to the other parties and to the OLT case co-ordinator
Thursday, April 30, 2026
The respondents shall provide copies of any responding expert reports to the other parties and to the OLT case co-ordinator
Friday, May 29 2026
The parties shall provide copies of any supplementary expert reports to the other parties and to the OLT case co-ordinator
Tuesday, June 30, 2026
The parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator
Monday, August 31, 2026
Exchange of a list of witnesses
Thursday, September 10, 2026
A participant shall provide copies of their written participant statement to the other parties
Friday, September 11, 2026
The parties shall confirm with the Tribunal if all the reserved hearing dates are still required
Wednesday, September 30, 2026
The parties shall provide copies of their visual evidence to all of the other parties
Friday, October 2, 2026
The parties shall prepare and file a preliminary hearing plan with the Tribunal
Friday, October 2, 2026
Expert witnesses shall have a meeting to use best efforts to try to resolve or reduce the issues for the hearing
Tuesday, October 6, 2026
Following the experts’ meeting, parties to prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator
Friday, October 9, 2026
The parties shall cooperate to prepare a joint document book which will be shared with the OLT case co-ordinator
Friday, October 16, 2026
Hearing (Electronic/Video) – anticipated length of hearing is fourteen (14) days
November 4, 2026 to November 23, 2026