2017 ONSC 5749
DIVISIONAL COURT FILE NO.: DC-1014/17 DATE: 20170929
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BEFORE: M. G. Quigley, Matheson, Faieta JJ.
BETWEEN:
Adri and Tim Eastman, Melissa and Steve Johnson, Janet and David Klein, and Ruth Pillsworth
Appellants
– and –
Dewdney Mountain Farms Ltd.
Respondent
COUNSEL: E. Gillespie, A. Chachula and K. Coulter, for the Appellants D. White and A. D’Andrea, for the Respondent
HEARD at Oshawa: September 26, 2017
Matheson J. (Orally)
[1] This is a statutory appeal under s. 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (OMBA), from a series of decisions of the Ontario Municipal Board (OMB).
[2] The appellants seek to set aside three OMB decisions regarding amendments to the Municipality of Trent Lakes’ Official Plan and Zoning By-laws regarding a proposed limestone quarry.
Brief Background
[3] The respondent wants to develop a large-scale limestone quarry on land northeast of Bobcaygeon.
[4] On January 15, 2013 the Municipality of Trent Lakes approved the amendments to its Official Plan and Zoning By-Laws needed for the respondent to go ahead with the quarry.
[5] The appellants are Trent Lakes residents. They are concerned—among other things—about excessive road noise and ecological concerns resulting from the quarry. They appealed Trent Lakes’ approvals to the OMB.
[6] The OMB hearing proceeded over several weeks in 2014 before Member Hefferon. The OMB heard from numerous expert and fact witnesses.
[7] On February 5, 2015, the OMB released its decision, making a contingent order. OMB Member Hefferon wrote a lengthy decision, which included a review of the evidence. The respondent’s requested amendments to the Official Plan and Zoning By-laws were approved subject to certain conditions being met.
[8] Three errors in the decision were promptly noted by the respondent. The second error is most significant for this appeal – a finding by the OMB that an expert witness, Rob West, had not testified in support of his report when he had in fact done so.
[9] The parties took a number of follow-up steps as a result of these three errors. Different avenues were raised to address them.
[10] A motion for directions was brought before Member Hefferon, returnable May 5, 2015. Prior to the return of the motion, on May 1, the appellants gave notice of their position in their formal Notice of Response. Among other things, they took the position that the matter could fall within s. 43 of the OMBA, which allows for a review, correction or rehearing, but also took the position that Member Hefferon could not be the adjudicator.
[11] On May 5, prior to the hearing of the motion for directions, the appellants’ counsel asked to meet with Dewdney and Trent Lakes’ counsel outside the hearing room. At that meeting, the appellants’ counsel requested that the motion be heard in front a member other than Member Hefferon, and requested that it should be referred to the Executive Vice-Chair of the OMB, pursuant to s.43 of the OMBA.
[12] The respondents’ counsel agreed with the appellants’ counsel request that a member other than Member Hefferon deal with the three errors. At no point did appellants’ counsel qualify his request or suggest that he objected in any way with a member other than Member Hefferon resolving the matters that had been raised, or reserve his right to do so later in the proceedings. If counsel for Dewdney had known that appellants’ counsel was going to take issue with a member other than Member Hefferon resolving the matter at a later stage, he would not have consented to the request.
[13] On May 6, 2015, a letter was sent to the OMB with the consent of all concerned indicating that an agreement had been reached that the requested corrections regarding the three errors be addressed in a motion under s. 43 of the OMBA. The respondent Dewdney then brought the s. 43 motion.
[14] Along this course of events, the appellants had also moved for leave to appeal to this Court. The parties also agreed to adjourn that motion until the s. 43 motion had been heard.
Section 43 Motion
[15] Prior to the hearing of the s. 43 motion, the appellants delivered their formal response to the s. 43 request for review, correction or rehearing. Their primary position was that the error regarding the evidence of Mr. West could not be corrected. Their alternative position was that recalling Mr. West as a witness at a reconvened hearing, as proposed by the respondent,
“would resolve most if not all of these issues. Still, consideration would need to be given to the ability of [Dewdney] to have its witness participate in such a process. Subject to these considerations, in the Appellants’ respectful submission this is the only appropriate approach to resolve this second error.”
[16] The OMB held a hearing on November 12, 2015 regarding the s. 43 motion. Members Stefanko and Conti presided. As recorded in the decision, there was no dispute that these Members had jurisdiction.
[17] By the time of the hearing before these members, the parties had reached an agreement with respect to the approach to take to the alleged errors. In accordance with that agreement, by decision dated November 19, 2015, the OMB ordered as follows:
(i) there was a consent correction to para. 6 of the Hefferon decision;
(ii) with respect to the second error, regarding Mr. West’s evidence, the OMB ordered that a “portion” of the hearing be “reconvened,” and at that time, the OMB “shall once again hear the evidence of two experts, Chris Ellingwood and Rob West, both of whom were called at the original hearing.”
[18] Thus, on consent, a portion of the hearing was reconvened to hear not just Mr. West’s evidence, but also the evidence of another expert witness on the relevant subject matter, Mr. Ellingwood. The parties did not request, nor did the OMB order, a full re-hearing.
[19] The prior contingent order was replaced. The decision also approved the amendments in part, withholding only the zoning by-law amendment subject to the parties reaching a haul route agreement.
[20] On December 2, 2015, the re-hearing of Mr. Ellingwood’s and Mr. West’s oral and written evidence took place. In keeping with the agreement between the parties reached May 5th, the hearing did not proceed before Member Hefferon. It proceeded before Member Conti.
[21] There is no indication that a preliminary objection was made to Member Conti conducting the re-hearing, as we would expect would have been made if the appellants did object to a different member presiding.
[22] Both experts testified. In final submissions, after their testimony, counsel to the appellants began to make submissions that took issue with Member Conti making a decision regarding certain issues without having heard all the prior evidence. After the evidence had been re-heard, the appellants requested a new full hearing.
[23] On May 3, 2016, the OMB released its decision. As set out in the reasons for decision, Member Conti noted that part of the evidence had been re-heard by an order that was on consent of both sides. He further acknowledged that he had not heard all the prior evidence but had heard the evidence necessary to correct the error regarding Mr. West’s evidence. He went on to consider the impact of the evidence that he had heard, and, as shown in his reasons for decision, he considered the evidence in detail. With respect to the appellants’ request, he concluded that a full new hearing was not justified. Minor amendments were made to the February 5, 2015 decision and the remainder of the decision remained unchanged.
[24] After Member Conti’s decision was released, the appellants’ application for leave to appeal to this Court was resumed, with an amended leave motion that added the issue of audi alterem partem, otherwise described as “he who hears must decide.”
Motion for Fresh Evidence
[25] I turn now briefly to the motion for fresh evidence, which was disposed of earlier today with reasons to follow. These are those reasons.
[26] The respondent brought a motion for leave to introduce fresh evidence on the appeal. The fresh evidence relates to certain of the events I have just described, including the agreement made May 5, 2015, under which Member Hefferon not preside on the s. 43 motion to review, correct or rehear his original decision. We granted the motion for leave to introduce fresh evidence.
[27] Leave was sought to introduce four documents in particular. Three of those documents are part of the formal proceedings before the OMB. The fourth is a brief affidavit of Mr. Ewart, counsel to the respondent Municipality of Trent Lakes, who is not appearing as counsel on this appeal.
[28] The parties agree on the test for admission of the fresh evidence, as set out in the decision of Sengmueller v. Sengmueller, 1994 8711 (ON CA), [1994] O.J. No. 276 (Ont. CA).
[29] The appellants dropped their objection based on settlement privilege after the Court drew to their attention the decision in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, regarding the exception to the privilege where a settlement or its terms are being disputed.
[30] After argument, we concluded that the fresh evidence met the test, as follows:
(1) The fresh evidence is credible. It comprises three formal documents filed at the OMB, two of which are from the appellants. The fourth document is an affidavit that is mainly first hand testimony from Mr. Ewart, a witness who was present at the May 5th meeting. His evidence is not challenged by contrary evidence on this motion, and the one paragraph on information and belief from counsel appearing today has not been shown to be controversial and is consistent with other material in the record.
(2) The fresh evidence was put forward after the issue it relates to arose, which was late in the proceedings. We do not agree that it should have been brought in front of the judge dealing with the leave to appeal motion. We conclude that there was not a problematic delay in bringing the motion in the circumstances of this case.
(3) The fresh evidence would likely be conclusive on the ground of appeal to which it relates, as it has turned out to be for Issue #1, as shown in our reasons that follow.
Analysis
[31] This appeal is made under s. 96 of the OMBA, which grants this Court jurisdiction to hear an appeal on a question of law only. Leave to appeal is required and has been granted.
[32] We note that the appellants submit that the issue of whether the four issues before us are questions of law has already been determined by the leave judge. We accept that the leave judge must be satisfied to some degree, for the purposes of granting leave, but we do not accept that his determinations are binding on this panel. The leave judge, who gave no reasons for decision, was not deciding the ultimate appeal after full argument on the merits. This panel is doing so, and must consider the question of whether the issues raised, as argued fully before us, are questions of law.
[33] With respect to the standard of review, questions of law engaging the special expertise of the OMB attract a standard of reasonableness. Questions of law generally applied and for which the OMB has no special expertise are reviewed on a standard of correctness. There is no standard of review for questions of procedural fairness or natural justice.
[34] There are four issues before us, as follows:
whether the OMB breached audi alterem partem;
whether the OMB misapprehended evidence about the at-risk turtle species;
whether the OMB misapprehended evidence about sound levels; and,
whether the OMB erred in proposing noise mitigation measures without evidence supporting their feasibility.
[35] We conclude that the appeal must fail on Issues 1, 2 and 3, but we grant the appeal on Issue 4.
Issue 1: Whether the OMB breached audi alterem partem
[36] According to the appellants, the OMB violated this procedural fairness principle because Member Conti only heard Mr. Ellingwood’s and Mr. West’s evidence, which the appellant submits was out of context of the other evidence from the original hearing. And the appellants submit that they never consented to proceeding in this manner.
[37] However, the evidence before us amply demonstrates that the appellants did consent to the process that took place, without qualification, and waived their right to object at this stage.
[38] At the request of the appellants, the parties’ agreed that Member Hefferon would not preside over the s. 43 matter. Also on consent, the OMB ordered that only a portion of the hearing was reconvened, to rehear two witnesses only, as stated in its order. On consent, there was a re-hearing of only a portion of the evidence before a different member.
[39] Further, before the s. 43 hearing there was no request that other evidence also be re-heard, nor was there a submission that Member Conti would have to rehear all of the prior evidence.
[40] Moving to when the rehearing commenced, there was no objection raised when it was obvious that Member Conti would be rehearing the evidence of those two witnesses. That would have been the appropriate time to raise the issue, yet it was only raised in final argument about certain issues, after the expert testimony had been reheard.
[41] Member Conti was keenly aware of his role, as shown in his reasons for decision. At the outset of his decision he noted, as set out in para. 5 that “based on the submissions and the consent of the parties, the OMB determined that it would re-hear the evidence of both Mr. West and Mr. Ellingwood to determine if the decision should be altered in any way.”
[42] Member Conti discussed this at some greater length at para. 60 of his reasons for decision, as follows:
Mr. Gillespie contended that this paragraph could not be dealt with because this Member did not hear ‘all of the evidence’ and that the Board should order a new hearing. While this Member did not hear all of the evidence provided at the original hearing, the Member heard the evidence that was determined to be critical to correct errors in the decision as identified by the parties through the motion hearing. It is the Board’s understanding that Mr. Gillespie consented that this was the evidence that should be re-heard to correct errors. This evidence dealt directly the main matters included in para. 85, that is, Blanding’s turtle, the whip-poor-will and species at risk. The Issues that were raised through the re-hearing of the evidence of Mr. West were simply not of sufficient significance to require revisions to para. 85. Furthermore, only through significant and compelling evidence raised in the re-hearing would the Board contemplate that a new hearing may be required. The evidence provided by Mr. Ellingwood and Mr. West did not raise Issues that would meet this threshold. Based upon the evidence, the Board will make no changes to para. 85. The Board affirms the original decision as amended through the above and as amended through the decision of the Board issued on November 19, 2015 as a result of the motion hearing held on November 12, 2015.
[43] The appellants now submit that they could not have consented because they could not have known in advance what Member Conti would refer to and rely upon in making his decision. We disagree. The appellants requested and agreed that a portion of the hearing would be reconvened before another member of the OMB and should not now be able to appeal on the basis that that member did not hear all the prior evidence. Member Conti did what he was called upon to do in accordance with the agreement between the parties of May 5 and the consent order of November 19, 2015. This ground of appeal therefore fails.
Issue 2: Whether the OMB misapprehended evidence about the at-risk turtle species
[44] The appellants have not identified a question of law in their submissions on this ground of appeal. Their submissions ask for a reassessment of the facts in their favour.
[45] The appellants submit that the OMB wrongly rejected uncontroverted evidence of an observed Blanding’s turtle near the quarry site, evidence about how far the turtles can travel and Mr. West’s evidence at the s. 43 re-hearing. However, the OMB specifically considered all of this evidence along with other evidence that the turtles had never been seen on the proposed quarry lands and that turtles would not experience harm as a result from the quarry’s construction and operation. The OMB further concluded that there was no evidence that demonstrated that the turtle’s habitat extended near the quarry site.
[46] The appellants further submits that the OMB failed to consider the Environmental Review Tribunal’s findings about the Blanding’s turtle and mitigation measures proposed to protect those turtles in a different case – Prince Edward County Field Naturalists v. Ontario, [2016] O.E.R.T.D. No. 25 – which relates to property at Ostrander Point in Prince Edward County. However, the OMB specifically considered and distinguished that case, noting the substantial factual differences. That case related to an area in Prince Edward County where a proposed site was found to be entirely composed of a high quality Blanding’s turtle habitat and the turtles, as a result of the project, would suffer serious and irreversible harm. That is plainly completely different from the evidence before the OMB in this case.
[47] The appellants further submitted that the OMB reached a conclusion on mitigation measures without any supporting evidence. This is not borne out. The OMB found there was no evidence of a turtle habitat on the quarry lands and that there was no evidence of a Blanding’s turtle having been discovered on the quarry lands. We note, therefore, that there was no demonstrated need for mitigation measures. However, the respondent Dewdney had mitigation measures under which a Blanding’s turtle, if discovered, would be moved to safety. Appellants’ counsel acknowledged that those measures were part of respondent Dewdney’s Operational Plan under the Aggregate Resources Act, R.S.O. 1990, c A.8. Thus, the existence of supervision of this mitigation, as part of the Operation Plan under that Act, was implicit.
[48] We do not agree that it was an error of law not to require more in these circumstances.
Issue 3: Whether the OMB misapprehended evidence about sound levels
[49] This issue also does not give rise to a question of law. The OMB based its decision on sound levels after assessing the evidence of both party’s experts. The OMB preferred Dr. Williamson’s evidence about sound levels, as found in paragraphs 38 and 39 of the February 5, 2015 reasons for decision, as follows:
The Board was told that “45 dba” is generally considered by acoustic professionals to be an acceptable one-hour equivalent sound level in a rural area. The projected noise increase, Dr. Williamson contended, should therefore be measured from a base of 45 dba rather than the existing 30-35 dba. Mr. Emiljanow did not agree. Mr. Emiljanow maintained that an increase of 10 + dba (as measured from the current 30-35 dba along Ledge Road to the generally accepted rural noise level of 45 dba) would be classified using MOE Guidelines MPC 232 as ‘very significant’ (Exhibit 89, table 9).
From the testimony of the two experts, the Board concluded that the noise levels of 30-35 dba are more commonly found in wilderness areas rather than on rural properties metres from a municipal road that is maintained year-round, which is the case in the subject area, and on which families live and presumably use power tools (chain saws, garden tractors, power mowers, etc.) to maintain their properties. The Board prefers the evidence of Dr. Williamson and finds that for the purposes of these proceedings, the ambient one-hour equivalent sound levels along Ledge and Quarry Roads should be considered to be 45 dba.
[50] It was not an error of law to accept an expert’s evidence that regard should be had for acceptable sound levels in a rural area. The appellants have essentially challenged the Board’s fact-finding process in preferring one expert’s evidence over another.
[51] The appellants also seek to rely on another case, James Dick Construction Ltd. v. Caledon (Town of), [2010] O.M.D.B. No. 905. However, as appellants’ counsel acknowledged in oral argument, a similar finding of fact to that relied upon before us was not even made in that case and, again, the factual basis of that case is materially different.
[52] The OMB’s decision was based on the evidence before it and is reasonable. No error of law has been demonstrated.
Issue 4: Whether the OMB erred by proposing noise mitigation measures without evidence supporting their feasibility
[53] The appellants submit that the OMB erred in law in adopting the respondent’s mitigation measures without regard for the accepted evidence that there was a possibility that access to private lands would be required to implement those measures.
[54] In response, Dewdney submits that as set out in the OMB Order of November 19, 2015, the order was contingent. The OMB’s order provided that the “zoning by-law amendment shall be withheld pending confirmation from the Municipality that a Haul Route Agreement has been executed by the relevant parties.” However, counsel to Dewdney acknowledged that the reference in the order to “relevant parties” would not ordinarily encompass private land owners.
[55] The appellants submit that the approval is therefore ineffective and in error because it fails to address this issue. It contemplates mitigation measures that may not be implemented without the private land owners’ consent, which is not provided for.
[56] We agree that this is an error in law and remit this one issue to the OMB for re-consideration.
[57] The appeal is therefore granted in part.
___________________________ Matheson J.
I agree
Michael G. Quigley J.
I agree
Faieta J.
Date of Reasons for Decision: September 26, 2017
Date of Release: September 29, 2017
2017 ONSC 5749
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BEFORE: M. G. Quigley J Matheson J Faieta J
BETWEEN:
Adri and Tim Eastman, Melissa and Steve Johnson, Janet and David Klein, and Ruth Pillsworth
Appellants
– and –
Dewdney Mountain Farms Ltd.
Respondent
ORAL REASONS FOR JUDGMENT
THE COURT
Date of Reasons for Judgment: September 26, 2017
Date of Release: September 29, 2017