Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 07, 2026
CASE NO(S).: OLT-25-000468
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: K & S Land Holding Co. Ltd.
Respondent: The Corporation of the City of Windsor
Description: Determination of compensation
Reference Number: Plan of Expropriation CE1118437
Property Address: 490 Division Road
Municipality: Windsor
OLT Case No.: OLT-25-000468
OLT Lead Case No.: OLT-25-000468
OLT Case Name: K & S Land Holding Co. Ltd. v. The Corporation of the City of Windsor
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: The Corporation of the City of Windsor
Request for: Request for Directions
Heard: March 31, 2026, in writing
APPEARANCES:
Parties
Counsel
K & S Land Holding Co. Ltd. ("KS" or "Claimant")
O. Sabo
The Corporation of the City of Windsor ("City" or "Respondent")
A. Farough
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This proceeding is in respect of a claim for compensation brought against the City by KS pursuant to subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended ("Act"), arising from an expropriation by the City of certain property rights relating to the property municipally known as 490 Division Road, in the City ("Subject Property"). The Subject Property also features a Keg Restaurant, which operates under a leasing arrangement with the Claimant.
2The City has brought a written motion seeking Orders from the Tribunal as follows ("Motion"):
(i) An Order for production in reference to the City’s partial expropriation of the Subject Property compelling the Claimant to produce and serve on the Respondent the following documents within 10 days of the Tribunal’s Order:
a) A full copy of any lease of the property and/or building municipally known 490 Division Road Windsor, Ontario (the "Subject Property") since August 18, 2022;
b) Any requests from the tenant of the Subject Property to the Claimant to amend the lease since August 18, 2022;
c) Records of any and all rent payments received by the Claimant relating to the Subject Property for the two years prior to January 9, 2023 and for all periods subsequent to January 9, 2023;
d) All communications between or on behalf of the Landlord with the tenants regarding the partial expropriation of the Subject Property, including communications regarding rent, access, relocation, abatements, or changes in lease obligations due to the partial expropriation;
(ii) An Order compelling discovery of a Claimant representative;
(iii) An Order compelling the Claimant to produce witness statements for all intended witnesses; and
(iv) An Order adjourning the hearing currently scheduled for April 15, 2026.
3The Claimant opposes the Motion arguing, inter alia, that the lease related documentation sought by the City is irrelevant to its claims and that at the Case Management Conference held on October 3, 2025: "there was no issue of examinations for discovery requested by… [the City]…nor were any timetabled…". The Claimant also complains of the lateness of the City’s requests.
4The materials filed for the Motion were:
(i) Notice of Motion of the City, comprising five pages;
(ii) City’s Affidavit of Megan Benoit, comprising 26 pages;
(iii) Supplementary Motion Record of the City, comprising 18 pages; and
(iv) Responding Motion Record of the Claimant, comprising 38 pages.
ISSUES AND ANALYSIS
Problems with Improper Form and Content
5Upon review of the materials described above, the Tribunal makes a number of observations about the improper form and substance of some aspects of those filings.
6Firstly, the Claimant’s pleadings do not comply with either the current Act, as amended in 2021, or the changes to Rule 26 of the Tribunal’s Rules of Practice and Procedure ("Rules") made approximately two years ago. The Tribunal no longer conducts ‘arbitrations’ and the Act no longer refers to them. Rule 26 requires an Application and a Statement of Claim, not a ‘notice of arbitration’. Counsel for all parties in expropriation matters must ensure that they read and comply with the Rules and the Act, as amended from time to time.
7Secondly, neither Party on this Motion filed a factum or any brief of authorities. Parties on all motions are urged to file both in order to assist the Tribunal. The Tribunal relies on counsel to prepare cogent, well-organized, written argument to support their clients’ positions. Except in unusual circumstances, when counsel do not refer to jurisprudence in their submissions, the Tribunal is left to assume that there is no relevant case law to be considered. If the Tribunal is aware of applicable jurisprudence, then it may then need to seek supplementary submissions from parties – which delays the adjudication and may add unnecessary time and expense. Here, no case law was referenced by either Party and the Tribunal concluded that it was unnecessary to consider that matter.
8Thirdly, on this Motion both Parties relied on supporting affidavits filed by law clerks within their organizations. On matters of material fact only, this is an acceptable practice. However, it is not proper for a supporting affidavit from any witness to contain pure legal argument, regardless of whether it is framed as being on "information and belief" from a lawyer. Argument belongs solely in factums or within a notice of motion or a responding motion statement.
9Examples of improper argument are contained in paragraphs 7., 8., and 9. of the Affidavit of Megan Benoit in support of the City’s Notice of Motion. Almost all of the second Affidavit of Ms. Benoit, delivered with the City’s Supplementary Motion Record, contains impermissible legal argument. The Responding Motion Record of the Claimant contains no submissions at all – instead all argument is improperly set out in paragraphs 5., 7., 9., 13., 14., 15., and 16. of the Affidavit of Anita Jones.
10Affidavits which contain argument are susceptible to being struck in whole or in part on a motion by either party – however, the Tribunal may initiate such a motion itself regardless of whether a party does so. However, the key point here is that argument contained within supporting affidavits filed by law clerks is not ‘evidence’ and does not assist the Tribunal in its adjudication. Instead, counsel who commence and respond to motions ought to properly organize and express their detailed submissions in factums, or another form of written argument, filed for both written and oral motions.
11An additional problem with the Claimant’s Responding Motion Record and supporting Affidavit is that it contained only ‘excerpts’ of certain expert reports which were being relied upon to support the Claimant’s argument on irrelevance and admissibility. This is also improper. Unless directed otherwise by the Tribunal, a party who relies on any expert report should deliver a full unredacted copy so that the Tribunal will have an opportunity to review its entire contents in order to appreciate the complete context of the expert’s opinions. Filing excerpts only can create a perception of ‘cherry-picking’ or, worse, may create an impression that a party is seeking to mislead the Tribunal – thus this practice should be avoided.
Tribunal’s Determination of the Issues
12It is clear that neither Party has proceeded efficiently in order to prepare this matter for a hearing on the merits. For some unexplained reason, neither Party included provisions in their proposed Procedural Order ("PO") for the conduct of examinations for discovery. Thus, the PO was issued on October 3, 2025, without such provisions. In this Vice-Chair’s considerable experience, it is very unusual for parties in expropriation cases not to conduct examinations for discovery – exceptions might occur where parties proceed to a successful mediation or have agreed to very narrowly circumscribe the issues well prior to a hearing. However, neither event occurred in this case.
13Examinations for discovery are specifically contemplated by Rule 26.28 of the Rules and no Tribunal order is required to permit them. Moreover, in the Tribunal’s experience, the documentary and oral discovery process in expropriation proceedings serves a number of important purposes:
(i) It avoids a later ‘trial by ambush’ by compelling parties to disclose facts that are relevant to the prosecution or defence of claims;
(ii) It can produce admissions which serve to narrow the issues required to be adjudicated;
(iii) It may serve to enhance the prospects for early resolution because it enables both parties to assess the relative strengths and weaknesses of their cases;
(iv) It should minimize the need to bring motions to seek production of relevant documents and information; and
(v) It may result in a much more efficient hearing which requires fewer days to complete.
The Tribunal is loathe to deprive either party in an expropriation proceeding of the opportunity to conduct reasonable documentary and oral discovery. Despite the City’s delay, the Tribunal is not prepared to preclude it in this proceeding. The Claimant is of course also permitted to seek discovery and is encouraged to do so.
14If either Party had sought to amend the PO, it should have made this request long ago – not mere weeks before the scheduled hearing. Thus, the City ought to have moved much more quickly to amend the PO and/or to file this Motion. The City also could have simply sought to commence examinations for discovery notwithstanding the terms of the current PO. If this had been opposed by the Claimant, the City could then have sought to compel it based on Rule 26.28. The terms of the PO do not necessarily supersede the provisions of the Rules.
15On the other hand, based on the available record, the Claimant’s counsel has delayed his responses to the many enquiries from the City’s counsel, beginning in mid-January 2026, seeking further documentary disclosure pertaining to lease-related documentation. Such delay should not be rewarded by the Tribunal. Moreover, under the well-known legal principles governing the determination of costs and interest pursuant to the Act, the additional reasonable efforts and associated costs of the Claimant will be recoverable in this proceeding. Thus, there is no actual prejudice to the Claimant stemming from the City’s pursuance of oral and documentary discovery.
16On this Motion, the Tribunal does not intend to make any declaration as to whether information relating to the lease history related to the Subject Property is ultimately admissible at the hearing in respect of the adjudication of the Claimant’s claims. There is no evidence before it which could enable such a determination. In fact, the full copy of the Claimant’s appraisal report of Mr. Ben Lansink, dated April 25, 2023, actually appends nine pages of lease documentation, which seems to suggest that he found it somehow relevant to his report. For some reason, this was not included in the ‘excerpt’ provided in the Claimant’s Responding Motion Record. The City’s appraiser also noted the presence of the leased Keg Restaurant operating on the Subject Property and noted that the highest and best use of the Subject Property is the continuation of that operation.
17Thus, it is not for the Tribunal at this early stage, before discovery has been completed, and without hearing oral testimony from Mr. Lansink, from Mr. Bower, or the City’s appraiser, let alone full legal argument, to make a final ruling upon the admissibility and relevance of the lease documentation sought by the City on this Motion. The Tribunal also generally agrees that when an appraiser makes a determination to reject the income approach to the valuation of a commercially leased property in favour of the direct comparison methodology, the opposing party is entitled to reasonably explore the underlying basis for that decision by seeking appropriate oral and documentary discovery. The Claimant has made no submission regarding this Motion which has persuaded the Tribunal that the City is not permitted to seek disclosure and discovery of the leasing history of the Subject Property. This is particularly so when the Claimant’s appraiser has already produced the base leasing documentation in his report.
18At this stage, all of the documents referred to in the City’s Notice of Motion, as reproduced above in paragraph [2], should be produced by the Claimant to the extent that they are within the Claimant’s possession and control. Had they been previously produced in the Claimant’s Affidavit of Documents, this Motion might have been at least partly unnecessary.
19Counsel for the Claimant has also suggested, via the improper legal arguments made in the law clerk’s affidavit, that somehow his client has made an admission that might impact the relevance, and hence admissibility, of the lease-related documentation. This is also not a matter for the Tribunal to decide upon at this juncture.
20Given the obvious legal importance of any admissions which the Claimant could choose to make in this proceeding, they must be clearly captured in writing, either through the Request to Admit procedures set out in the Ontario Rules of Civil Procedure or otherwise in writing as exchanged by the Parties. Based on the inadequate record before it on this Motion, the Tribunal will therefore not make an Order restricting the Claimant’s compensation claims under the Act. In any event, for the reasons already stated, even if this Claimant is no longer seeking compensation for disturbance damages, this does not mean that the leasing history of the Subject Property is irrelevant to its valuation.
ORDER
21THE TRIBUNAL ORDERS THAT:
(a) The hearing of this proceeding shall be adjourned to a later date in 2026, to be determined by this Tribunal following additional submissions from the Parties’ counsel;
(b) The Parties shall deliver a fresh draft Procedural Order, in Word format only (using the most current template available on the Tribunal’s public website), as directed by the Tribunal, subsequent to the determination by the Tribunal of the new hearing date for this proceeding;
(c) The Corporation of the City of Windsor ("City") shall be permitted to conduct an oral examination for discovery of the Claimant’s representative, and the Claimant shall be entitled to conduct an oral examination for discovery of the City’s representative, which shall both be commenced on or before Monday, June 1, 2026 ("Examinations");
(d) The Claimant shall deliver to the City a further and better sworn Affidavit of Documents at least seven days prior to the commencement of the Examinations, which shall list all of the documents referred to in paragraph 2 of this Decision, above, to the extent that such documents are within the control or possession of the Claimant;
(e) This Vice-Chair shall remain seized of all matters or disputes arising from the above Orders, the Examinations, and of the ongoing case management of this proceeding but is not seized in respect of any mediation that may be convened or for the final hearing of this proceeding; and
(f) There shall be no Order as to the costs of this motion, which shall be reserved for later determination by the Tribunal in the event that an application for costs is brought pursuant to Rule 26 of the Tribunal Rules of Practice and Procedure following the final hearing of this proceeding or a settlement reached by the Parties.
"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.