Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 02, 2021
CASE NO(S).: 19-060
PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: John Sherk (File No. 19-060)
Appellant: Elizabeth Sherk (File No. 19-061)
Appellant: Kathryn Stouffer (File No. 19-062)
Appellant: Estate of Norma Sherk (File No. 19-063)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order issued to submit a completed application for a Permit to Take Water for the dam constructed
Reference No.: 4567-BDKPTK-1
Property Address/Description: Part of Lot 10 and Lot 11, Concession 14
Municipality: South Frontenac
Upper Tier: County of Frontenac
OLT Case No.: 19-060
OLT Case Name: Sherk v. Ontario (Environment, Conservation and Parks)
Heard: October 22 ,2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
John Sherk, Elizabeth Sherk, Kathryn Stouffer and Estate of Norma Sherk
John Sherk*
Director, Ministry of the Environment, Conservation and Parks
Paul McCulloch
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON OCTOBER 22, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On August 7, 2019, John Sherk, Elizabeth Sherk, Kathryn Stouffer, and the Estate of Norma Grace Sherk (“Appellants”) filed appeals with the Environmental Review Tribunal (now the Ontario Land Tribunal (“Tribunal”)) regarding Director’s Order No. 4567-BDKPTK-1 (“Director’s Order”) made on July 24, 2019 by Trevor Dagilis, Kingston District Office, Ministry of the Environment, Conservation and Parks (“Ministry”). The Director’s Order requires the Appellants to submit a completed application for a permit to take water for a dam constructed at Part Lot 10 and Lot 11, Concession 14, South Frontenac.
2There were several telephone conference calls held in respect of this matter prior to this case management conference (“CMC”). The purpose of the current CMC was for the Ministry’s counsel to provide an update of the status relating to a proposed amendment to Ontario Regulation (“O. Reg.”) 387/04 that would exempt certain types of dams, including this dam, from the requirement to obtain a permit to take water for water takings that exceed 50,000 litres of water on any day, with limited exceptions.
UPDATE
3Mr. McCulloch, counsel for the Ministry advised that the Director became aware on or about October 14, 2020 that the Ministry had posted a notice on the Environmental Registry on October 6, 2020, proposing to amend Regulation 387/04 under the Ontario Water Resources Act (“Act”) to provide an exemption from the requirement to obtain a permit to take water as currently stipulated under s. 34 of the Act.
4He confirmed that if the regulation is amended as proposed, the dam, that is the subject of this appeal, would no longer require a permit to take water. However, to-date, he does not have any news as to when the amendment would take place. As such, he has instructions to fix a hearing for this matter.
5Mr. Sherk, representative for the Appellants, was of the view that there is no urgency to fix a hearing date as the status quo of the dam water and arrangement of irrigation water with the Rivendell Golf Course remains the same.
6The Tribunal notes that when or whether the amendment to O. Reg. 387/04 will or will not take place is an unknown. At this point, the matter has been languishing for more than two years. Previously, procedural orders have been issued and the parties have filed their respective witness statements.
7The Tribunal will fix two days for hearing on May 26 and 27, 2022 at 10 a.m. by video hearing.
8Mr. Sherk requested that those days be fixed for in-person hearing as he believes that a video hearing format is not conducive for presentation of large geographic maps. Further, with the opening up of businesses within the province and with more vaccinations, he thinks a venue could be arranged.
9The Tribunal informed Mr. Sherk that currently all management conferences and hearings are fixed on the virtual platform. Nevertheless, he can contact the Case Coordinator to seek assistance in arranging a suitable in-person venue, subject to availability and the provincial regulations, and/or protocols, if any, pertaining to the pandemic requirements for enclosed facilities.
HEARING TECHNICAL DETAILS
10The hearing is scheduled for two (2) days commencing on Thursday, May 26, 2022 by video hearing at 10 a.m. The Tribunal’s Case Coordinator will provide the details for accessing the hearing.
11Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
12The Tribunal orders that:
- The hearing is scheduled for two (2) days on May 26 and 27, 2022 by video hearing commencing at 10 a.m.
13There will be no further notice.
14The Member is not seized.
“T.F. Ng”
T.F. NG
MEMBER
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.