Simcoe (County) v. Arbour Farms Limited, 2017 ONSC 6803

CITATION: Simcoe (County) v. Arbour Farms Limited, 2017 ONSC 6803

DIVISIONAL COURT FILE NO.: 017-17

DIVISIONAL COURT FILE NO.: 195-17

DATE: 20171116

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

THE CORPORATION OF THE COUNTY OF SIMCOE Moving Party/Applicant

– and –

ARBOUR FARMS LIMITED, THE CORPORATION OF THE TOWNSHIP OF MULMUR, CONSERVE OUR RURAL ENVIRONMENT and THE AIRPORT ROAD GRAVEL GROUP Respondents

AND BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO Moving Party /Applicant

– and –

ARBOUR FARMS LIMITED, THE CORPORATION OF THE TOWNSHIP OF MULMUR, CONSERVE OUR RURAL ENVIRONMENT and THE AIRPORT ROAD GRAVEL GROUP Respondents

E. Marshall Green, for the Moving Party/Applicant, the Corporation of the County of Simcoe

Mary Bull, for the Respondent, Arbour Farms Limited

Alistair Crawley, for the Respondent, the Airport Road Gravel Group

Jane Pepino for the Respondent, Conserve our Rural Environment

James Feehely for the Township of Adjala-Tosorontio

Mary Bull, for the Respondent, Arbour Farms Limited

Alistair Crawley, for the Respondent, the Airport Road Gravel Group

Jane Pepino for the Respondent, Conserve our Rural Environment

HEARD at Toronto: September 13, 2017

SPIES J.

REASONS FOR DECISION

Overview

1This is a consolidated hearing¹ of two motions for leave to appeal from decisions of the Ontario Municipal Board (the “Board”). The Corporation of the County of Simcoe (“Simcoe”) seeks leave to appeal from a decision of Member H. Jackson of the Board dated December 23, 2016 which granted party status to Simcoe but with limitations on the type of evidence that Simcoe will be permitted to submit at the hearing which will hear Arbour Farms Limited’s (“Arbour Farms”) application for an official plan amendment, zoning bylaw amendment and aggregate extraction licence.

2The Corporation of the Township of Adjala-Tosorontio (“Adj-Tos”) also seeks leave to appeal from a decision of Members L.M. Bruce and H. Jackson of the Board dated April 6, 2017 which granted party status to Adj-Tos at the same hearing, with similar limitations to those imposed on Simcoe (collectively, the “Limitations”).

3At the outset of the hearing of these motions I raised the question of whether or not these motions are premature in that the hearing has not yet been held. All parties advised that they did not want to proceed to a hearing before the Board without having the issues raised on these motions resolved first and they asked that I hear the motions. In the circumstances, I agreed.

4The hearing before the Board was to take place on March 27, 2017 but was adjourned because of Simcoe’s and Adj-Tos’ (collectively, “the Townships”) motions for leave to appeal the decisions of the Board.

The Facts

Background

5The Townships are municipal corporations as defined in the Municipal Act, S.O. 2001, c. 25. Adj-Tos is a constituent lower municipality of Simcoe and is an amalgamation of the former Townships of Adjala and Tosorontio.

6Simcoe is the municipal authority for certain roads within its geographic and political jurisdiction including Simcoe County Roads 12 and 13. Adj-Tos has local township roads under its jurisdiction.

7The respondent Arbour Farms owns a property located on Airport Road in the Township of Mulmur in Dufferin County. Arbour Farms applied for a licence under the Aggregate Resources Act, R.S.O. 1990 c. A8 (the “AR Act”) to mine certain sand and gravel materials and also applied for an official plan amendment and zoning bylaw amendment.

8The Corporation of the County of Dufferin (“Dufferin”) is the municipal authority having jurisdiction for certain roads within its geographic and political jurisdiction including Dufferin Roads 18 (Airport Road) and 20. The Corporation of the Township of Mulmur (Mulmur) is a constituent municipality of Dufferin.

9Arbour Farms’ lands are located on Airport Road in Mulmur within Dufferin. A portion of the western boundary of Simcoe abuts Dufferin and in particular the Tosorontio portion of Adj-Tos abuts Mulmur.

10As part of the licencing process for aggregate operations, a proponent must obtain official plan and zoning permissions from the local and upper tier municipalities in which the proposed pit is located and obtain a licence from the Ministry of Natural Resources and Forestry (“MNRF”).

11Two ratepayer groups, Conserve Our Rural Environment, Inc. (“CORE”) and the Airport Road Gravel Group (“ARGG”) appealed the official plan amendment that had been granted to Arbour Farms by Mulmur. Arbour Farms appealed Mulmur’s failure to pass a zoning bylaw amendment for the pit operation. The MNRF referred Arbour Farms’ licence application to the Board. The Board consolidated all three applications to be heard together (the Consolidated Hearing). Arbour Farms, CORE and ARGG have full party status at the Consolidated Hearing. Simcoe and Adj-Tos will be subject to the Limitations, subject to an appeal.

12The uncontested evidence of Christian Meile, Director, Transportation Construction and Maintenance of Simcoe, in his affidavit sworn November 16, 2016 in support of Simcoe’s motion before the Board, is that prior to the Board hearing of the matter, all of the material that was distributed in relation to Arbour Farms’ application indicated that the majority of aggregate would be moved by truck over Dufferin County Road 18/Airport Road (the Dufferin Route) and that access to the pit would also be on that road. As a result, at the time, Simcoe’s staff noted that Simcoe roads would only be used for occasional local deliveries.

13The Director of Planning for Adj-Tos, Jacquie Tschekalin, has deposed in her affidavit sworn on November 23, 2016 in support of Adj-Tos’ motion before the Board, that based on the material that she saw in relation to Arbour Farms’ application that she was satisfied that there would be a relatively low number of deliveries into Adj-Tos over Dufferin Road 21 and on to Simcoe Road 12 in Adj-Tos.

14The Board convened a pre-hearing conference (PHC) for the Consolidated Hearing on July 8, 2015 at which time parties and participants were identified. Simcoe, relying on the studies that were circulated in support of Arbour Farms’ application and the apparent approval by Dufferin and Mulmur of the Dufferin Route, did not ask for any status at the Consolidated Hearing.

15Ms. Tschekalin did not see the need for Adj-Tos to become a party to the Consolidated Hearing either but in her affidavit (at para. 4) she deposed that she “assigned [her] name to the List of Notification to be advised of all future hearings” and that to the best of her knowledge and belief “the Township [of Adj-Tos] has not received any further notifications” (at para. 5), that the Township of Adj-Tos did not receive any advance notice that the haul route was being changed from the Dufferin Route to County of Simcoe roads through the Township of Adj-Tos and that she first became aware of this change in a meeting with Simcoe on November 10, 2015 (at para. 6). This evidence was uncontested before the Board.

16At the July 2015 PHC, the Board suggested to those persons seeking status as a party or participant that an attempt be made to mediate their issues. A date was set for March 27, 2017 for a three-week hearing in the event that there was no settlement.

Road Restriction Agreement

17As a result of the mediation and other negotiation efforts, CORE, ARGG and Arbour Farms (but not Dufferin or Mulmur) signed a private agreement called a “Haul Route Restriction Agreement”. The parties and the Board have referred to this agreement as a “Road Restriction Agreement” (the “RRA”) and so that is how I will refer to it.

18Pursuant to the terms of the RRA, Arbour Farms agreed to take all necessary steps, including the imposition of penalties, to require those using their operation to not use the Dufferin Route, except for local deliveries. Instead the trucks will be required to use a different route that the Townships allege will bring the majority of aggregate traffic through two of Adj-Tos’ larger residential settlement areas, Lisle and Everett, as well as a smaller one and will pass by a public school; (the Simcoe Route – Simcoe Roads 12 and 13).

19As I understand it there are two changes to the Dufferin Route that was originally proposed by Arbour Farms with its application. First of all, Arbour Farms has agreed to restrict truck traffic leaving the pit from using Dufferin Road 18 south of Dufferin Road 21 and Dufferin Road 21 west of Dufferin Road 18. This will significantly restrict the use of Dufferin roads in Mulmur and correspondingly will increase the amount of truck traffic that would need to travel into Adj-Tos by way of Simcoe Road 12 and subsequently Simcoe Road 13. In addition, as a term of the RRA, Arbour Farms has agreed to move the entrance to the pit from Dufferin Road 18 to Dufferin Road 21.

20By coincidence only and on very little notice, staff at Simcoe learned of the planned change to the Dufferin Route and they advised staff at Adj-Tos. Simcoe then arranged to be represented at the Board PHC on November 24, 2016 where it had been proposed that the official plan amendment, zoning bylaw amendment and licence application would be approved as part of a “settlement hearing”.

Simcoe’s Motion for Party Status

21Simcoe brought a motion at the settlement hearing on November 24, 2016 and asked for limited party status. It did not specify in its Notion of Motion before the Board exactly what it meant by “limited” but it did say that despite minor impact from an operational point of view Simcoe had “concerns with respect to the potential social impact on residents along the route”. Simcoe also complained about a compensation issue that was set out in the affidavit sworn by Mr. Meile, but that was not an issue argued on the motion before me.

22Adj-Tos also attended on the day of the PHC and requested an adjournment in order to obtain Council instructions, but that was refused.

23To address Simcoe’s concerns Arbour Farms had retained an engineering consultant, David Richardson from MMM Group Limited, to prepare a Traffic Operations Assessment (Richardson Report), which was provided in a letter dated November 8, 2016 to Simcoe. Mr. Richardson concluded that the RRA would have little or no impact “on truck movements through Lisle and Everett” (page 3 of Report). The Richardson Report was before the Board when it made its decision on Simcoe’s motion.

24The Board held a full motion hearing at which it received affidavit evidence and oral submissions from all parties requesting to be heard. In its decision of December 23, 2016, the Board found that:

[25] …. a key part of the settlement is a RRA that limits some traffic on Airport Road. As a result of that limitation, a certain amount of traffic, though acknowledged as minor, will now use County of Simcoe roads rather than Dufferin County Roads.

[26] Simcoe County is entitled to have the opportunity to evaluate the impact to their roads [Simcoe Roads 12 and 13] as a result of the RRA. It is reasonable that neither Simcoe County nor the Township of Adjala-Tosorontio requested status previously, given the understanding that the main traffic route was Airport Road and alternatives to that route were not under consideration.

[27] … The Board finds that Simcoe County raised this issue … in a timely manner. Simcoe County has not had the opportunity to assess the impacts to their roads as a result of the limitation on Airport Road, and should have the opportunity to do so.

[28] On balance, the prejudice to the parties who have settled is less, as this is a PHC, and there is a scheduled hearing in March, the date of which is not to change, by adding the County, on a limited party basis, to the hearing.

[29] The Board finds that there are reasonable grounds to add Simcoe County as a party as they are the road authority for the road network where some portion of the trucks from the proposed gravel pit will travel and, on that basis, the Board grants limited party status to the County of Simcoe.

[Emphasis added]

25The Board then went on to consider the submissions of counsel on what limits should be imposed on the party status granted to Simcoe. In arriving at the limitation imposed on Simcoe’s party status, the Board noted at para. 37 that all parties had acknowledged that the amount of traffic is minor.

26The Board found that:

[38] … Consistent with the previous ruling that ties the granting of party status to the presence of the RRA, the Board rules therefore that the limitation to party status is limited to the impact to Simcoe County Roads 12 and 13.

[39] The Board will not enter into adjudication of the appropriateness of the RRA between the parties.

27On this issue the Board adopted the position of Arbour Farms and rejected the submission of Simcoe that the limitation be limited to “consideration of the impacts and identification of issues arising from pit traffic entering and leaving Simcoe County via Dufferin County Road 21.

28In the end the Board imposed limitations on Simcoe’s participation as a party and limited Simcoe to presenting evidence and arguing:

any incremental impact from an increase in the number of trucks from Arbour Farms pit on Simcoe County Roads 12 and 13 in terms of operational issues and in terms of safety.

29The Board then adjourned the PHC to the date that had been previously set for the Consolidated Hearing – being March 27, 2017.

Adj-Tos’ Motion for Party Status

30Adj-Tos brought a motion for limited party status and retained an engineering report from Henry Centen P. Eng from R. J. Burnside & Associated (Centen Report) to identify potential traffic concerns to Adj-Tos. The Centen Report was filed before the Board in support of Adj-Tos’ motion. Mr. Centen identified several concerns with respect to the fact that the entrance location and the haul route had been modified from what was originally proposed, and that Adj-Tos’ claims needed to be addressed.

31Mr. Centen also commented on the Richardson Report. He opined that traffic delay is not the critical parameter and that safety and pit access to the public road system is the primary issue. He suggested that all significant intersections including significant driveway intersection, such as schools, be reviewed for potential impacts (including safety impacts) of increased truck volumes, taking into account various factors set out at paras. 10 and 11 of his Report. He then concluded that the proposed haul route should be evaluated against the other potential haul routes and that a haul route study should be completed to confirm the preferred haul route as well as the location of the access to the pit.

32Ms. Bull submitted that the four bullets set out in para. 10 and all but the first two bullets in para. 11 of the Centen Report can be considered by the Board as they go to safety issues. The issue as I understand it, however, is that the Board would only be considering the incremental impact on the Townships and not comparing haul routes as suggested by Mr. Centen.

33The motion by Adj-Tos was heard on February 16, 2017. Again, the Board held a full motion hearing at which it received affidavit evidence and oral submissions from all parties requesting to be heard. In its decision, the Board noted the Richardson Report. The Board also mentioned that it had the Centen Report but made no comment on the concerns expressed in that Report. The Board also noted that in contrast to the limitation placed on Simcoe, Adj-Tos was asking that their party status be limited to the ability to compare available haul routes and to confirm which is the preferred route, in the context of the social and economic impacts.

34The Board held that it could see no reason to expand the status of Adj-Tos beyond what was granted to Simcoe and that Adj-Tos is not the road authority; it is Simcoe that is responsible for the roads in question. The Board decided it would grant Adj-Tos the same party status as it did to Simcoe.

35In its reasons the Board stated:

[38] Adjala-Tosorontio argued that ‘alternative haul routes’ must be assessed and in support of this position, pointed to official plan policies that require the consideration of alternative haul routes. However, as submitted by Ms. Bull, Simcoe County OP policies do not apply in an adjacent municipality, and neither Dufferin County nor Mulmur Township, where the pit is located, requires an assessment of alternative routes.

[39] Additionally, as was explained by the Applicant, there is no ‘preferred haul route’, and there has been no comparison of ‘alternatives’ as there was no need to do so. The traffic from the pit is intended to disperse directly onto both Dufferin and Simcoe County roads that are designed to handle this type of truck traffic. As well, the evidence, as acknowledged by Simcoe County’s road expert, [Mr. Meile] is that the increase in traffic to Simcoe County Roads 12 and 13 is minor resulting from the RRA. The contention that Simcoe County roads in the Township of Adjala-Tosorontio are to be used without previous permission or consultation is not sufficiently compelling to grant the expanded status that is requested. County roads are designed for truck traffic. The request to undertake an alternative haul route study raises issues that are well beyond the scope of issues that the parties to this dispute have. The Board can see no compelling reason, given these facts, to expand Adjala-Tosorontio’s status to address items that have no apparent bearing on the application. That is not at all a reasonable request, and there is no valid ground for such a request.

[40] The proposed pit is in a neighbouring municipality, and it is to be expected that Simcoe County roads would be used to get the product to market. The only factor that is different and could not have been anticipated was the RRA, a private agreement, which neither Simcoe County nor Adjala-Tosorontio were aware of. However, as was determined in the previous decision, it is only the incremental difference that the Board will consider, as this is the only factor that is different and which may have some (the degree not determined) impact to Simcoe County and Adjala-Tosorontio and is relevant for the Board to address in a hearing on this matter.

[41] If either Simcoe County or Adjala-Tosorontio had wanted to protect their roads and community from any use by trucks coming or going to this pit, or if they wished to delve into the planning matters of this application, they should have requested status at the first opportunity, being at the first PHC for this matter. They did not. There is no compelling reason to now expand Adjala-Tosorontio’s status to include social impact or planning matters beyond the stated limitation. The prejudice to the Applicant in expanding the scope of issues for the hearing is significant. Both Simcoe County and Adjala-Tosorontio argued that their request for status placed no prejudice on the Applicant, however; the effect of their request and subsequent appeal to the courts has been to adjourn the hearing of this matter sine die.

[Emphasis added]

36The Board went on to find that the submissions of Adj-Tos align closely with the submissions of Simcoe in the earlier motion when Simcoe requested party status and that there “are no substantive differences that would lead this panel of the Board to conclude any differently than the conclusion the was reached … and elucidated in the Board decision of December 23, 2016 and expanded upon herein.”

37At para. 44 of its Reasons the Board imposed the same limitations on Adj-Tos’ participation as it did with Simcoe and limited Adj-Tos to presenting evidence and arguing:

any incremental impact from an increase in the number of trucks from Arbour Farms pit on roadways within the Township of Adjala-Tosorontio in terms of operational issues and in terms of safety.

The Position of the Parties

38The Applicants submit that one of several items that the Board must determine under the AR Act is which haul route is the most suitable one to be the main route to get the product to market.

39The Townships argue that they should have received notice that Arbour Farms’ had effectively amended its application in terms of the proposed haul route. The Township of Adj-Tos submits that notice to it was required, relying on the evidence of Ms. Tschekalin that she put her name on the List of Notification to be advised of all future hearings. The Townships submit that they should have received advance notice of the PHC scheduled for November 24, 2016.

40It is also the position of the Townships that the Board breached the audi alteram partem rule, that the Board exceeded its jurisdiction by placing the Limitations on the Townships’ participation in the Consolidated Hearing and that the Townships and the residents they represent will thus be denied procedural fairness and natural justice.

41While it was admitted by the Townships that from an “operational” point of view (i.e., that the roads are of a suitable standard) that the increased number of vehicles would not impact traffic on the Simcoe Route negatively, there has been no assessment of the social impact on the residents along the Simcoe Route, which includes two urbanized settlement areas with about 200 residences. In particular, the Townships argue that as a result of these Limitations they will be unable to argue any social impacts (a reference to the number of residents along each route, the potential noise and dust impacts, etc.) and where there are two potential routes as in this case, they will be unable to compare the Simcoe Route to the Dufferin Route to weigh the relative impacts on both on any basis whatsoever.

42The Townships submit that if they are not granted the wider scope of participation that is being requested, the residents along the Simcoe Route will be left without an adequate voice. Since the Board will have no opposing evidence it will have delegated its decision making to Arbour Farms and the two groups of opposing residents who oppose the original Dufferin Route.

43The Respondents submit that the Townships were given full party status and the Limitations made by the Board Decisions were in accordance with applicable legislation and clear case law precedent, and that the Board acted within its jurisdiction by exercising its discretion to control its own process. Further, questions related to the manner in which the Board exercises its jurisdiction are not reviewable by this Court unless they are also pure matters of law. Issues that are merely jurisdictional in nature are not reviewable by the Divisional Court. The Respondents submit that Board Decisions to limit the Townships’ evidence to the operational and safety aspects of the incremental traffic were appropriate and reasonable. They submit that there is simply no good reason to doubt the reasonableness of the Board Decisions. The Respondents also submit that to remove the Limitations now would undermine the many hours of time spent to reach a mediated settlement.

44The Respondents also submit that there was no denial of procedural fairness or natural justice. The Board’s reasons reflect the fact that the Board considered all of the evidence and the submissions and the Board Decisions are reasonable and within the specialized expertise of the Board and should be given deference. Ms. Bull submitted that this Court should not dress up a procedural issue as a denial of natural justice.

45In addition, the Respondents submit that the issues raised by the motions for leave to appeal are matters that relate only to the parties. The issues raised by the Townships are a local matter that does not merit appellate intervention.

THE ISSUES

46Subsection 96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (OMBA) provides for an appeal to the Divisional Court on a question of law with leave of a judge of the Divisional Court.

47Appeals on matters of Board jurisdiction were removed from the Court’s supervision by amendment to the OMBA, R.S.O. 1980, c 347 in 1984. Prior to that time, the OMBA provided:

95 (1) Subject to the provisions of Part IV, an appeal lies from the Board to the Divisional Court upon a question of jurisdiction or upon any question of law…It is clear that the Legislature intended to remove issues concerning how the Board exercises its jurisdiction from the Court’s review, unless such questions are also questions of law.

48The only issue on this motion is whether Simcoe and Adj-Tos have met the test for leave to appeal the Board Decisions to the Divisional Court that has been developed by this Court. To obtain leave, the Applicants must show that:

(1) there is reason to doubt the correctness of the Board Decisions on a point of law; and

(2) the point of law is of sufficient importance to merit the attention of the Divisional Court.

See Avery v. Pointes Protection Assn., 2016 ONSC 6463 at para. 23, Aurora 2C West Landowners Group Inc. v. Aurora (Town), 2011 ONSC 7642 (Ont. Div. Ct.), at para. 2; Train v. Weir, 2012 ONSC 5157 (Ont. Div. Ct.), at para. 4; McGregor v. Rival Developments Inc. (2003), 174 O.A.C. 297, 40 M.P.L.R. (3d) 107, 2003 CarswellOnt 2991, [2003] O.J. No. 3062 (Ont. Div. Ct.), at para. 12; Proudfoot Motels Ltd. v. Ontario (Municipal Board) (1996), 92 O.A.C. 35, 1996 CarswellOnt 2530, [1996] O.J. No. 2126 (Ont. Div. Ct.), at para. 1, citing Toronto (City) v. Torgan Developments (1990), 36 O.A.C. 318 (Ont. Div. Ct.).

49In answering the question of correctness, many judges of this Court have held that the Court should take into account the standard of review applicable in the proposed appeal; see, for example, Spellman v. Essex (Town) (also reported as Essex (City) v. Material Handling Problems Solvers Inc.), [2003] O.J. No. 4619 at para. 3 where Blair J. (as he then was) stated that the test may be more aptly worded as “Is there reason to doubt the reasonableness of the Board’s decision?”

50In other cases as canvassed by Justice Ellies at para. 28 in Avery, supra, the wording of the first branch of the test has varied anywhere from "some reason” to “good reason to doubt” or “very serious debate”. In other cases the Court has simply stated that the standard of review should be kept in mind. For example, as stated by the Court in The Legislative Assembly of Ontario v. Avenue-Yorkville Developments Ltd., 2011 ONSC 25 (Div. Ct.) at para. 8:

The Court, in asking whether there is reason to doubt the correctness of the Board’s decision, must be mindful of the fact that it owes deference to the Board insofar as the Board is engaged in its core areas of expertise.

51I agree that in considering these motions I should be mindful of the standard of review should this appeal proceed. I agree with the observations of Justice Ellies in Avery at para. 31 that it “makes no sense to grant leave to appeal by applying a less deferential standard where the appeal is unlikely to succeed once a more deferential standard is applied. Such a rule does little to help an already overburdened justice system.”

52The question then is what standard of review would apply? Reasonableness is concerned mostly with the exercise of transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) at para. 47.

53However, as stated in Dunsmuir, the correctness standard will apply when the issues raised on the leave to appeal relate to true questions of jurisdiction which will arise where the:

[59] … tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. … These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.

[60] …courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialize area of expertise”. [Citation omitted]

54The Supreme Court however has since reiterated that true questions of jurisdiction are exceptional; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, 2011 CarswellAlta 2068 (“ATA”), at para. 39. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. The party seeking to invoke a true question of jurisdiction must be required to demonstrate why the court should not review a tribunal's interpretation of its home statute on the deferential standard of reasonableness. ATA, Ibid. at para. 39.

55In this case, Arbour Farms submits that it is clear that the reasonableness standard applies because the Board was applying its home statute or statutes closely related to its core functions, including the Planning Act; the OMBA; the AR Act and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).

56I accept that a standard of reasonableness applies if an issue raised by the Applicants is determined to be a pure question of law. I must keep in mind however, that the question at this stage is whether or not there is good reason to doubt that the Board Decisions on a question of law are reasonable. The Applicants do not have to show that the Board Decisions on a question of law are unreasonable or probably unreasonable; see Richmond Hill Naturalists v. Corsica Developments Inc., 2013 CarswellOnt 18415 (Div. Ct.) at para. 22.

57Furthermore, there is no doubt that to the extent the Townships allege a breach of the rules of procedural fairness and a denial of natural justice that I need not engage in an assessment of the appropriate standard of review. Rather I must “evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to …by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly”; see Corporation of the City of London v. Ayerswood Development Corp. et al., 2002 3225 (ON CA).

58In answering this question, it is appropriate that I also give weight “to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other”; see Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at para. 43, approved of in Bart v. McMaster University, 2016 ONSC 5747 (Div. Ct) at para. 109.

59As for the second prong of the test for leave, the Divisional Court has stated that the question of law need not be of general importance (as is the case under rule 62.02(4)(b) in respect of leave to appeal judges’ interlocutory orders). Leave to appeal may be given in “matters relevant to the parties while raising a question of sufficient importance to merit the court’s attention” (Rosedale Golf Assn. v. Degasperis, 2004 18310 (Div. Ct.) at para. 3).

60The issue of “sufficient importance” however calls for the question to be other than a site-specific matter. It should be one that is more general and relate to more public issues.

…the court must be mindful that matters of importance must be general and relate to matters of public rather than private importance or matters must be relevant to the development of the law and administration of justice. See Kraft Canada Inc. v. Menkes Lakeshore Ltd., et al. [citation omitted] (Div. Ct.) at para 14.

61Between the two Applicants many issues are raised with respect to the Board Decisions and they do not provide supporting case law in all cases. Most of the law provided goes to what in my view are the strongest arguments that they raise that are capable of being considered questions of law, namely the issue of whether or not the Board breached the rules of natural justice. I propose to examine the case law first and then determine if any of the issues raised by the Townships establish that there is good reason to doubt the correctness of the Board Decisions on a point of law.

Analysis

(1) Is there is good reason to doubt the correctness of the Board Decisions on a point of law?

62The Townships concede that the Board has the power to determine its own procedure but submit that that does not extend to denying natural justice to a party. The Townships rely on the Supreme Court of Canada’s decision in Syndicat des Employes Professionnels de L’Universite due Quebec a Trois-Rivieres v. Universite du Quebec a Trois-Rivieres, 1993 CarswellQue 142 (Larocque) where the Court considered the decision of an arbitrator to exclude certain evidence and concluded:

[29] …in my opinion, there is no doubt that the mis en cause arbitrator had complete jurisdiction to define the scope of the issue presented to him, and that in this regard only a patently unreasonable error or a breach of natural justice could give rise to judicial review.

[37] The question before this Court is instead whether, in erroneously deciding to exclude evidence relevant to the ground of dismissal which he [the arbitrator] has himself identified as being that which he must examine, the arbitrator necessarily commits an excess of jurisdiction. In my view the answer to this question must in general be no. It will be yes, however, if by his erroneous decision the arbitrator was led to infringe the rules of natural justice. [Emphasis in original]

[39] The difficulty of this question arises from the tension existing between the quest for effectiveness and speed in settling grievances on the one hand, and on the other preserving the credibility of the arbitration process, which depends on the parties’ believing that they have had a complete opportunity to be heard.

[41] … Section 100.2 of the Labour Code does give a grievance arbitrator complete autonomy in dealing with points of evidence and procedure; but the rule of autonomy in administrative procedure and evidence, widely accepted in administrative law, has never had the effect of limiting the obligation on administrative tribunals to observe the requirements of natural justice.

[42] It is true that the error of an administrative tribunal in determining the relevance of evidence is an error of law, and that in general the decisions of administrative tribunals which enjoy the protection of a complete privative clause are beyond judicial review for mere errors of law.

[43] That is not true, however, in cases where … the arbitrator’s decision on the relevance of evidence had the effect of breaching the rules of natural justice. A breach of the rules of natural justice is regarded in itself as an excess of jurisdiction and consequently there is no doubt that such a breach opens the way for judicial review….

[47] ….I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice. [Emphasis added]

63In Ontario (Liquor Control Board) v. Lifford Wine Agencies, 2005 25179 (ON CA), [2005] O.J. No. 3042 Cronk J.A. for the Court summarized the law on this point this way, at para. 35:

The error of an administrative tribunal in determining the relevance of evidence is an error of law. Generally, where a tribunal enjoys the protection of a robust privative clause, its decisions are beyond judicial review for such errors: Larocque at para. 42. But this does not apply, even in the face of a complete privative clause, where the tribunal’s decision on the relevance of evidence occasions a breach of the rules of natural justice; “A breach of the rules of natural justice is regarded in itself as an excess of jurisdiction and consequently there is no doubt that such a breach opens the way for judicial review”. (Larocque at para. 43.)

64The Townships submit that by narrowing the issues that they can respond to the Board has breached the audi alteram partem rule as the preferred haul route is the issue the Board must consider and the Board has excluded relevant evidence to that issue that the Townships wish to lead. The Townships submit that the revised application to seek approval of the private agreement, the RRA, is tantamount to asking the Board to approve the new haul route.

65The audi alteram partem rule of natural justice was summarized by L’Heureux-Dubé J. in Larocque at para. 59 as follows:

Refusing to hear relevant and admissible evidence is a breach of the rules of natural justice. It is one thing to adopt special rules or procedure for a hearing, and another not to comply with a fundamental rule, that of doing justice to the parties by hearing relevant and therefore admissible evidence.

66The Townships submit that while the Board did grant them party status they, and in particular Adj-Tos, raised serious questions in their material in support of their motions to be added as parties, that was not cross-examined on and that evidence will not be considered by the Board because of the Limitations imposed on their party status. It is their position that in effect two relatively small ratepayer groups have dictated a haul route that is adverse to another group of ratepayers.

67Arbour Farms argues that the Larocque decision is distinguishable in that in that case the Court found a breach of natural justice because the respondent was precluded from calling any evidence whatever on an important point. In this case, however, the Townships will have the opportunity to call evidence with respect to the impact of increased truck traffic from the pit on the Simcoe County Roads and so the Board Decisions do not result in a denial of natural justice to the Townships.

68The Respondents rely on Moreau-Berube c. Nouveau-Brunswick, 2002 SCC 11, 2002 CarswellNB 46 (S.C.C) at para. 75 where the Court stated:

The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority [citations omitted] … Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. The nature and extent of this duty, is turn, “is eminently variable and its content is to be decided in the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). [Emphasis added]

They also rely on para. 81 where the Court noted what was stated by L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 27:

…the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statue leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriated in the circumstances …. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints. [Citation omitted]

69The Respondents also rely on Menkes Lakeshore Ltd. v. Toronto (City), (also reported as Kraft Canada Inc. v. Menkes Lakeshore Ltd, et al.) 2007 65611 (ON SCDC), 2007 CarswellOnt 4637 (Div. Ct.) at paras. 30–31, where the applicant on a motion for leave to appeal argued that it had been denied natural justice because it had not been allowed to lead certain evidence. The Court stated:

Under the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (SPPA), s. 25.0.1, the Board, as an administrative tribunal exercising a statutory power of authority, maintains absolute jurisdiction and control over its own procedure. It has the power to determine its own procedures and practices and to make procedural orders: see Ontario Municipal Board Act, R.S.O. 1990, c. O. 28, ss. 37(a) and 91; Ontario Municipal Board Rules of Practice and Procedure. Section 15 of the SPPA gives administrative tribunals the express statutory power to exclude evidence that is unduly repetitious.

The authorities are clear that courts should give deference to procedural orders and rulings and should be reluctant to interfere with procedural orders within a tribunal's jurisdiction.

70It seems to me that the key determination I must make on this issue is what will the Board be required to consider as a matter of law when it hears the matter at the Consolidated Hearing and will the effect of the Board Decisions be that the Board refuses or fails to hear and consider relevant evidence. If so, would that failure to hear and consider relevant evidence amount to a breach of natural justice?

71Arbour Farms submitted that the RRA is not a haul route agreement, that there is no defined haul route in the RRA and that as the Board stated, it will not be asked to approve of the RRA. Arbour Farms submits that there never a haul route proposed because Dufferin did not require it. Ms. Bull submitted that the aggregate will go by truck to where the market is and, according to the Richardson Report, most of the primary markets are in Simcoe. Ms. Bull submitted that Arbour Farms and Dufferin never represented that trucks leaving the pit would only go on one haul route and that there would have been nothing to prevent the trucks from using Simcoe’s County roads. It is her position that the pit is located on two County roads, which are equipped to handle truck traffic and that there is no intention to use local township roads in Simcoe except for local deliveries and that haul routes are only an issue when the trucks have to start on local township roads. In any event Ms. Bull submitted that the Townships will be able to deal with these issues at the Consolidated Hearing.

72The AR Act states that the following shall be considered by the Minister (and on a referral to the Board, by the Board) on any application for a permit or licence under the AR Act:

12. (1) In considering whether a licence should be issued or refused, the Minister or the Board, as the case may be, shall have regard to,

(a) the effect of the operation of the pit or quarry on the environment;

(b) the effect of the operation of the pit or quarry on nearby communities;

(c) any comments provided by a municipality in which the site is located;

(d) the suitability of the progressive rehabilitation and final rehabilitation plans for the site;

(e) any possible effects on ground and surface water resources;

(f) any possible effects of the operation of the pit or quarry on agricultural resources;

(g) any planning and land use considerations;

(h) the main haulage routes and proposed truck traffic to and from the site;

(i) the quality and quantity of the aggregate on the site;

(j) the applicant’s history of compliance with this Act and the regulations, if a licence or permit has previously been issued to the applicant under this Act or a predecessor of this Act; and

(k) such other matters as are considered appropriate.

[Emphasis added]

73The Townships submit that as a result of these provisions, both of the haulage routes are relevant considerations for the Board, and in particular that the Board must compare the Dufferin and Simcoe Routes at the Consolidated Hearing.

74The Townships also rely on the Provincial Policy Statement (“PPS”) which is a policy paper issued by the province under section 3 of the Planning Act, R.S.O. 1990, c. P 13 as a matter of provincial interest. All “approval authorities”, which would include the Board, must make their decisions “consistent with” the PPS; see s. 3.(5)(a)(b). Section 2.5.2.2 of the PPS requires that “[mineral] extraction shall be undertaken in a manner which minimizes social, economic and environmental impacts”. [Emphasis added]

75The Townships argue that “extraction” must include haulage as Arbour Farms will not leave the extracted material on site; it will necessarily be hauled somewhere.

76Further, Simcoe has in place an Official Plan, approved by the Board pursuant to s. 17 of the Planning Act. With respect to aggregate approvals, the Simcoe Official Plan (OP) requires, in s. 4.4.12, that:

Where there are two or more alternative haul routes, the haul route having the least impact shall be selected.

77The Townships submit that as a result of the AR Act, the PPS and the OP, among the relevant planning considerations would be social impacts (number of residents along each proposed haul route, the potential noise and dust impacts, etc.) and that where there are two potential haul routes (here the Dufferin Route and the Simcoe Route) there should be a weighing of the relative impacts on both.

78The Board found that the Simcoe OP does not apply to an adjacent municipality, but in its reasons the Board did not expressly deal with the AR Act or the PPS.

79There is an issue as to whether or not the PPS applies as it refers to “extraction” which is not defined in the PPS. However, the PPS does define “mineral aggregate operations” as:

c) associated facilities used in extraction, transport, beneficiation, processing or recycling of mineral aggregate resources and derived products such as asphalt and concrete, or the production of secondary related products.[Emphasis added]

80Arbour Farms argues that given that the transport of aggregate falls under the definition of “mineral aggregate operation” rather than extraction, s. 2.5.2.2 does not apply to consideration of the transport of aggregates and that the Townships cannot use s. 2.5.2.2 to justify leading evidence regarding social, environmental and economic impacts. The Board made reference to the PPS but did not come to any conclusion as to whether or not it applies.

81Setting aside the question of the application of the PPS, in my view the key question is whether or not the Board’s conclusion that it does not have to assess alternative haul routes is reasonable. That conclusion was arrived at because neither Dufferin nor Mulmur, where the pit is located, require an assessment of alternative routes, and that there is no “preferred haul route”, and therefore no need to compare “alternatives” as the traffic from the pit is intended to disperse directly onto both Dufferin and Simcoe County roads that are designed to handle this type of truck traffic. The Board concluded that the request to undertake an alternative haul route study raises issues that are well beyond the scope of issues that the parties to this dispute have.

82In my view this issue hinges on what the Board is required to do in these circumstances given s. 12(h) of the AR Act, which clearly requires, by the use of the word “shall”, that the Board consider “the main haulage routes and proposed truck traffic to and from the site” before approving a licence to Arbour Farms to operate a pit to mine sand and gravel materials (Licence).

83I agree with the submissions of the Townships that by limiting the Townships to calling evidence only on any incremental impact from an increase in the number of trucks from Arbour Farms’ pit on roadways within the Townships, in terms of operational issues and in terms of safety, the Board has effectively decided that at the Consolidated Hearing it will refuse to hear relevant evidence to an issue it is required to consider namely the main haulage routes (plural) and proposed truck traffic to and from the site. This evidence will not come from any other source as the other parties to the hearing all support Arbour Farms’ application given they have entered into the RRA.

84The Townships submit that the position taken by the Respondents, which was accepted by the Board, that the RRA does not approve a particular haul route and that it only restricts traffic to one of the routes, is a distinction without a difference. They argue that the effect of the RRA is that Arbour Farms will take steps against truck drivers if they take the Dufferin Route and so the Board is really being asked to find that the Simcoe Route is preferred. I agree.

85In particular, the Townships will not be able to lead any evidence that would compare what Arbour Farms originally proposed as the Dufferin Route to what is now proposed as the Simcoe Route. The evidence of the Townships will have to be limited to the how the RRA has caused an incremental impact from an increase in the number of trucks within the Townships and then only if that evidence goes to operational issues and in terms of safety. Given the other parties have entered into the RRA, there will be no evidence that compares the two main haulage routes before the Board.

86As the Townships argue, since it appears that CORE, ARGG, Mulmur and Dufferin have settled on the Simcoe Route, the residents along the Simcoe Route will be left without an adequate voice if the Limitations remain in place. The effect of the Limitations imposed on the Townships by the Board is that all of the other parties will have the right to provide all relevant evidence to the Board without the possibility of answer by the Townships whose residents will bear some of the actual impact of increased truck traffic. In essence, since the Board will have no opposing evidence it will have delegated its decision making to Arbour Farms and the two groups of opposing residents from one of the haul routes only, those who signed the RRA.

87The Townships submit that by limiting their participation at the Consolidated Hearing the Board has effectively approved the RRA. I agree. It may be that the Board is correct that it is not being asked to approve of the RRA but indirectly that is exactly what it is being asked to do. The RRA is part of the evidence that will be before the Board when it is asked to grant a Licence to Arbour Farms. In my view the RRA clearly did change the proposed haul route; that is the whole point of the road restrictions that Arbour Farms have agreed to in order to settle with local residents. If the Townships are limited by the Limitation in the Board Decisions, the only issue for the Board will be whether or not the incremental impact on the Townships is such that it should refuse Arbour Farms’ application for a Licence.

88Having come to the conclusion that there is a good argument that the Board has erred in law by imposing the Limitations on the Townships, given the strong privative clause enjoyed by the Board I must consider whether or not the Board Decisions to exclude evidence results in a breach of the rules of natural justice that opens the door to an appeal of its Decisions.

89In my view there are a number of good reasons to suggest that there has been a breach of the rules of natural justice. Arbour Farms argued that as sophisticated public authorities the Townships should have known that mediation could result in changes to Arbour Farms’ applications, in particular the potential arterial county roads that trucks might use and that it was incumbent upon them to participate in and follow the Board process. This argument was made before the Board and rejected and so in my view it is not a consideration now.

90In response to Simcoe’s motion the Board made a number of findings that are relevant to the question of procedural fairness including its finding that it was reasonable that neither Simcoe nor Adj-Tos requested status previously, given the understanding that the main traffic route was Airport Road and alternatives to that route were not under consideration. The Board also found that once the Townships were aware of the issue that they raised their concerns in a timely manner and that they were not asking that the hearing scheduled for March 2017 be adjourned.

91When the Board made its decision with respect to the same motion by Adj-Tos, it came to two inconsistent conclusions from its decision on the Simcoe motion when: 1) it found that if either Simcoe or Adj-Tos had wanted to protect their roads and community from any use by trucks coming or going to this pit, they should have requested status at the first opportunity, being at the first PHC for this matter; and 2) that there was significant prejudice to Arbour Farms in expanding the scope of issues for the hearing because the “effect of their request and subsequent appeal to the courts has been to adjourn the hearing of this matter sine die.”

92There is no dispute that had the Townships asked for party status at the initial PHC that they would have been granted this without any limitations. No limitations have been imposed on any of the other parties. Furthermore, it is clear from the Board’s findings on the Simcoe motion that there would have been no prejudice to Arbour Farms if no Limitations were imposed given that no adjournment of the hearing, which was set for three weeks, was being sought. In light of this, in my view the findings made by the Board in response to Simcoe’s motion are the salient ones and the Board ought not to, in effect, punish the Townships because at the time the Adj-Tos motion was brought, Simcoe had sought leave to appeal its decision.

93At para. 55 of Arbour Farms’ factum in response to the Adj-Tos motion before me, it states what the Applicants submit is a very important admission:

The Road Restriction Agreement results in a modification to the Applications. At the hearing, the Board will decide whether the revised Applications are appropriate in the policy context. The policy context and ARA [Aggregate Resources Act] apply to the Applications, not the settlement agreement. [Emphasis added]

94The Applicants submit that since the original application was revised that those parties on the circulation list, which included the Townships, should have been notified of the revised application. I agree that as a matter of procedural fairness that should have occurred.

95The position of Adj-Tos is stronger on this point than the position of Simcoe in that it did not receive any notice of the proposed RRA from any party to the application, despite requesting that it be given notice at the PHC in July 2015. Arbour Farms argues that having chosen not to ask to be parties to the Consolidated Hearing at the first PHC, the Townships had no standing and that there is no such thing as having notice of hearings only. Ms. Bull referred to the “Purpose of Prehearing Conference” document that is provided to persons who are given notice of the PHC in support of her argument but as I have already noted, the evidence of Ms. Tschekalin was not contested and this document does not in my view contradict her evidence. Ms. Bull argued that the failure to ask for party or participant status at the PHC is fatal. These arguments, however, were made before the Board during the hearing of the Simcoe motion and they were rejected by the Board.

96Arbour Farms submits that it is beyond argument that the Board has jurisdiction to determine the question of party status and wide discretion in making such determinations. This includes the authority to deny or limit party status. It would be incongruous to grant the Board the authority and discretion to deny party status and, at the same time, suggest that it cannot limit that which it may deny outright. Mr. Green submitted, however, that he is not aware of any case where the Board granted party status but then limited the issues the party could address in advance of the hearing. Certainly none were provided to me. That is not to say that the Board could not decide what is relevant when evidence is called at a hearing but that is not what the Board has done in this case.

97The Townships also submit that the Board put no weight on the evidence of an independent expert, Mr. Centen, who identified various matters that should be addressed including the necessity of a comparison of haul routes. The Townships submit that although the Board considered Simcoe and Adj-Tos to be proper parties to the hearing, it decided that the Townships should not be allowed to raise these relevant considerations. Ms. Bull submitted that a number of the concerns raised by Mr. Centen can be addressed at the Consolidated Hearing but clearly no comparison of the haul routes can be argued. I would have thought that Mr. Centen’s evidence would be relevant to the issues before the Board and in particular s. 12 (h) of the AR Act.

98The Townships also argue that by imposing the Limitations the Board breached s. 10.1 of the SPPA which provides that a party to a proceeding may, at a hearing, call and examine and cross-examine witnesses as reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. Given the other issues raised I see no reason to comment on this.

99In my view, for these reasons, there is good reason to doubt the correctness of the Board Decisions which imposed the Limitations on the party status of the Townships in that this constituted a denial of procedural fairness and natural justice.

(2) Is the point of law of sufficient importance to merit the attention of the Divisional Court?

100As for the second prong of the test for leave, in my view the issues raised by the Townships on this appeal are of sufficient importance to merit the attention of the Divisional Court. In my view they are not limited to a site-specific matter. There are no other cases that the parties have provided to me where the Board has decided in advance of a hearing to limit the evidence that some of the parties can call. To that extent this appeal raises matters of general importance.

101Furthermore, the Townships raise the issue of whether or not it is appropriate for the Board to permit a private agreement to determine, in effect, the appropriate haul route. The Board has held that it would not deal with this (para. 40 of the Simcoe Decision). As I have already stated, that in my view is precisely the issue that the Board must consider and that is a matter of general importance. On the one hand, mediation of issues before the Board is to be encouraged. On the other hand, the Board, as a public authority, must be careful that it does not, in effect, delegate its decisions to private parties.

Disposition

102For these reasons I grant leave to Simcoe to appeal the Limitations, as defined herein, which were imposed on it by the Decision of the Board dated December 23, 2016 to this Court. Similarly, I grant leave to Adj-Tos to appeal the Limitations, as defined herein, which were imposed on it by the Decision of the Board dated April 16, 2017 to this Court.

Costs

103With respect to costs, I thank counsel for coming to an agreement following the hearing of this motion and before the release of my Decision that $5,000 should be awarded to the successful parties on the motion.

104Accordingly, I order that Arbour Farms pay $5,000 in costs, all-inclusive, to the Applicants within 30 days of the release of this decision.

Footnotes

1. 1It is not clear to me that a formal order consolidating these motions/appeals has been made by this Court. That relief was requested in the Notice of Motion for Leave to Appeal by the Corporation of the Township of Adjala-Tosorontio and, if required, I formally grant that order.