Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 22, 2021 CASE NO.: MM190006

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended

Referred by: Ministry of Natural Resources and Forestry Objector: Paulette and George Celinski Objector: Marcus and Barbara Collette Objector: Kathy Deley Objector: Brenda Green; and others Applicant: Nadin Contracting Ltd. Subject: Application for a Class A licence for the removal of aggregate Property Address/Description: North Part Lot 1, Concession 3 North Municipality: Township of Gorham LPAT Case No.: MM190006 LPAT File No.: MM190006 LPAT Case Name: Celinski v. Ontario (MNRF)

BEFORE: M.A. SILLS VICE-CHAIR

Thursday, the 22nd day of July, 2021

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment "A" to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Monday, September 20, 2021.

"Becky Fong" BECKY FONG REGISTRAR

Ontario Land Tribunal Website: 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.

ATTACHMENT "A"

ISSUE DATE: CASE NO(S).: MM190006

PROCEEDING COMMENDED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A. 8, as amended:

Referred by: Ministry of Natural Resources and Forestry (MNRF) Objector: P. & G. Celinski Objector: M. & B. Collette Objector: Kathy Deley Objector: Brenda Green; and others Applicant: Nadin Construction Ltd Subject: Application for a Class A licence for the removal of aggregate Property Address/Description: North Part Lot 1, Concession 3 North Municipality: Township of Gorham LPAT Case No.: MM190006 LPAT File No.: MM190006 LPAT Case Name: Celinski v. Ontario (MNRF)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties' request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, September 20, 2021 at 10 a.m./p.m. at https://global.gotomeeting.com/join/324732533 Access code: 324-732-533

3. The parties' initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 3, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before August 13, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts' meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the LPAT case co-ordinator on or before September 3, 2021 (>10 days prior to the start of the hearing).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 13 below.

13. On or before August 13, 2021, the Objectors shall provide copies of their witness' and expert witness' statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 23 below.

14. On or before August 13, 2021 (38 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before August 27, 2021, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the LPAT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 23 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the LPAT case co-ordinator on or before September 10, 2021 (11 days prior to the hearing).

18. Any documents which may be used by a party in cross examination of an opposing party's witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the LPAT case co-ordinator, on or before September 10, 2021.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal's Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 20, 2021 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

Applicant Nadin Construction Limited Louis Nadin and Norman Nadin (Principals of the Applicant)

Lori Kruse Petrone & Partners 76 N. Algoma St. Thunder Bay, ON P7A 4Z4 Email: lori@petronelaw.ca P (807) 344-9191 F (807) 345-8391

Dustin Nadin Petrone & Partners 76 N. Algoma St. Thunder Bay, ON P7A 4Z4 Email: dustin@petronelaw.ca P (807) 344-9191 F (807) 345-8391

Objectors Paulette & George Celinski, Daniel & Bonnie Nicholas, Marcus & Barbara Collette, Kathy Deley, Keith & Brenda Green; Stan Kaminski, Lori Perala, Pat Williams, Aira Perala, Gerry Stricker, and others

Rene Larson Larson Lawyers LLP 620 Victoria Ave E Thunder Bay, ON P7C 1A9 Email: rene.larson@larsonlawyers.com P (807) 285-7777 F (807) 623-1354

NO PARTICIPANTS HAVE BEEN IDENTIFIED

ATTACHMENT 2

ISSUES LIST

Issues List of Objectors

1. Is the licence application premature in view of the Applicant's studies and site plan provided?

2. Has the Applicant provided the information required by the Aggregate Resources of Ontario: Site Plan Standards, August 2020, the Aggregate Resources of Ontario: Technical Reports and Information Standards, August 2020 and their predecessor standards?

3. Is the True Grit Natural Environment Level 1 Report submitted by the Applicant sufficient to address the potential effects of the operation and its haul route on endangered species, significant wildlife habitat and fish habitat?

4. Does the application and its site plan sufficiently address the objectors' concerns and Ministry of Environment requirements regarding noise, vibration and dust pollution arising from the proposed operation?

5. Does the application sufficiently address the effects of the proposed operation and haul route on nearby residents and communities, public safety from trucks and cumulative traffic along the proposed haul route and the impact and mitigation of dust, noise and vibration from the use of the haul route? Does the proposed operation and haul route result in unacceptable traffic and transportation impacts, including noise, dust, vibration and public safety?

6. Were alternative haul routes studied and assessed?

7. Is it premature to approve the application's proposed haul route in advance of any assessment or study being undertaken of its impacts on nearby residents and communities and in view of available alternative routes and their potential impacts?

8. What additional conditions might the Tribunal impose to ensure that adequate mitigation measures, complaints' reporting, monitoring process and enforcement procedures are in place to protect residents from non-compliance with Ministry of Natural Resources & Forestry, Ministry of Environment and Municipality of Shuniah requirements?

9. Does the application sufficiently study and address potential negative impacts to the environment and nearby residents and communities regarding potential effects on the quantity and quality of ground, surface and drinking water, and in view of the requirements and standards of the Ministry of Environment?

10. Is it premature to approve an application without applicant assessment or studies being undertaken of its impacts on ground, surface and drinking water and provision of Ministry of Environment related approvals?

11. Pursuant to section 12 (1) (d) of the ARA, does the Tribunal conclude that the progressive rehabilitation and final rehabilitation plans for the site as contained in the applicant's application and site plan are suitable and compliant with all relevant Ontario policies, laws and regulations?

12. Do the proposed setbacks, buffers, the settling pond location, site access, annual extraction limit and hours of operation sufficiently mitigate adverse effects of the proposed operation and haul route on area residents and communities?

13. Is the zoning for the proposed operation in force? Does the zoning for the proposed operation permit the proposed licence activities?

14. Will the mitigation measures proposed by the Applicant adequately and feasibly deal with any adverse effects or impacts of its operations upon the environment and nearby communities?

15. Should the licence be made subject to additional conditions if approved by the Tribunal in order to prevent unacceptable impacts to area residents and the environment and to provide for a clear process for addressing complaints?

ATTACHMENT 3

ORDER OF EVIDENCE

1. The Applicant
2. The Participants (none identified)
3. The Objectors
4. The Applicant in Reply (if necessary)

Meaning of terms used in the Procedural Order:

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual, group or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Subsection 33.2 of the Local Planning Appeal Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person's background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness' opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.