Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: December 05, 2017
CASE NO.: 17-047
PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended;
Appellant: GolfNorth Properties Inc.
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Terms and conditions of a Permit to Take Water
Reference No.: 3605-AM6MHH
Property Address/Description: Lot 89, 91, Concession German Company Tract
Municipality: Township of Woolwich
Upper Tier: Regional Municipality of Waterloo
ERT Case No.: 17-047
ERT Case Name: GolfNorth Properties Inc. v. Ontario (Environment and Climate Change)
Heard: November 8, 2017 in Cambridge, Ontario
APPEARANCES:
Parties GolfNorth Properties Inc. Counsel/Representative⁺ Doug Breen⁺
Parties Director, Ministry of the Environment and Climate Change Counsel/Representative⁺ Jessica Rosenberg
Participant Regional Municipality of Waterloo Counsel/Representative⁺ Richard Brookes
ORDER DELIVERED BY MARLENE CASHIN, JUSTIN DUNCAN AND HELEN JACKSON
REASONS
1On June 8, 2017, Brookfield Country Club Limited, owned by GolfNorth Properties Inc. (“GolfNorth” or “Appellant”), was issued Permit to Take Water No. 3605-AM6MHH (“PTTW”) for its golf course located at 400 Golf Course Road in Conestogo, Township of Woolwich, Ontario.
2On July 4, 2017, GolfNorth appealed to the Environmental Review Tribunal (“Tribunal”) conditions 4.4 and 4.5 of the PTTW, relating to a requirement to install a nested bedrock monitoring well, under s. 100(4) of the Ontario Water Resources Act.
3On November 8, 2017, a Pre-hearing Conference (“PHC”) was held in Cambridge, Ontario.
4At the outset of the PHC, the parties provided an overview of their positions on the appeal. Counsel for the Director, Jessica Rosenberg, explained that the Director was open to mediation on the appeal, provided that a request by the Regional Municipality of Waterloo (“Region”) for participant status was granted.
5On behalf of the Appellant, Doug Breen confirmed that the Appellant was only concerned about conditions 4.4 and 4.5 relating to the installation of a nested bedrock monitoring well. He explained that GolfNorth was aware of multiple other water takings in the area around the golf course and believed that it was fair that others share in the cost of installing such a well. Mr. Breen also expressed the view that mediation may resolve the issue between the parties.
6The Region requested participant status on the appeal under Rule 66 of the Tribunal’s Rules of Practice and Procedure (“Rules”). Richard Brookes, legal counsel for the Region, explained that it was the Region that had requested the Director to include conditions 4.4 and 4.5 in order to ensure that water levels in the aquifer are fully monitored. He explained that it has been the Region’s experience that the aquifer, which is its source of drinking water, is being depleted. He submitted that the Region has a clear interest in the appeal and explained that, if granted status, the Region will provide hydrogeological evidence regarding the need for conditions 4.4 and 4.5 in the PTTW. Mr. Brookes also requested that the Tribunal direct that the Region be provided with documents pursuant to Rule 67(d) of the Tribunal’s Rules and also be given permission to participate in any mediation between the parties pursuant to Rule 68(e) of the Rules. Neither the Appellant nor the Director objected to the Region being granted participant status and they consented to the Region’s requests to be provided with the documents to be exchanged between the Parties and to be involved in any mediation.
7The Tribunal granted participant status to the Region on the basis that it has a genuine connection with the subject matter and issues in dispute. The Tribunal also granted the Region’s requests to be included in the documentary exchange and to be involved in any mediation.
8There were no other requests for party, participant or presenter status during the PHC.
9The Tribunal then went on to discuss next steps on the appeal with the Parties and the Region. The Parties and the Region jointly requested that dates be set for disclosure of documents and for mediation.
10The Parties and the Region all requested a one-day session with a Tribunal Mediator, to be held sometime in February 2018. The Tribunal’s Case Coordinator will make inquiries about an available Mediator, and set a date for the mediation. In response to questions by counsel for the Director, the Tribunal indicated that procedural directions on the mediation process, including whether a joint mediation brief will be required, will be provided by the Tribunal Mediator once a mediation date has been set.
11At the request of the Parties and the Region, the Tribunal directed that the Appellant, Director and Region will exchange lists of documents that they are seeking from each other in disclosure of documents by November 15, 2017. A telephone conference call (“TCC”) will be held on December 1, 2017 at 9 a.m., in order to resolve any disputes regarding the scope of disclosure. The Parties and Region will simultaneously exchange disclosure of documents by December 11, 2017. The Tribunal directed that copies of disclosure are not to be filed with the Tribunal at this time but that any documents intended to be relied upon at the hearing are to be filed with evidence at a later date.
12A further TCC will take place on March 9, 2018 at 10 a.m. The intent of this TCC is for the Parties and the Region to provide the hearing panel with an update on the progress of their mediation discussions and to discuss next steps related to the appeal, if the mediation has not resulted in a settlement by that time.
ORDER
13The Regional Municipality of Waterloo is granted participant status.
14The Region is to receive copies of documents exchanged by the Parties in accordance with Rule 67(d) and is required to disclose relevant documents in its possession.
15The Region is permitted to participate in mediation in accordance with Rule 68(e).
16The Tribunal directs that the proceeding be conducted in accordance with the following schedule, as may be varied by agreement of the Parties and the Region, and confirmed by the Tribunal:
November 15, 2017 Exchange of lists of documents sought through disclosure.
December 1, 2017 at 9 a.m. Telephone conference call to resolve any issues related to the scope of disclosure of documents.
December 11, 2017 Disclosure of documents to be completed.
February 2018 (date to be confirmed) One-day mediation session for Parties and the Region
March 9, 2018 at 10 a.m. Telephone conference call for the Parties and the Region to provide the Tribunal with an update on the progress of mediation discussions and to discuss next steps on the appeal.
Participant Status Granted
Procedural Directions Ordered
“Marlene Cashin” MARLENE CASHIN MEMBER
“Justin Duncan” JUSTIN DUNCAN VICE-CHAIR
“Helen Jackson” HELEN JACKSON MEMBER
If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.
Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248