Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2022

CASE NO(S).: OLT-22-004100

PROCEEDING COMMENCED UNDER section 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.

Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry

Appellant: Lafarge Canada Inc.

Description: Application to Transfer Licence

Reference Number: Aggregate License #3748

Property Address: Part W1/2 Lot 21, Concession 9, Geographic Township of Vespra

Municipality/UT: Springwater/Simcoe

OLT Case No.: OLT-22-004100

OLT Lead Case No.: OLT-22-004100

OLT Case Name: Lafarge Canada Inc. v. Northern Development, Mines, Natural Resources and Forestry (Ministry)

PROCEEDING COMMENCED UNDER section 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.

Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry

Appellant: Lafarge Canada Inc.

Description: Application to Transfer Licence

Reference Number: Aggregate License #15788

Property Address: Part W1/2 Lot 21, Concession 9, Geographic Township of Vespra

Municipality/UT: Springwater/Simcoe

OLT Case No.: OLT-22-004101

OLT Lead Case No.: OLT-22-004100

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Requested by: Jeanor Enterprises Inc.

Request for: Request for Dismissal Without a Hearing

Heard: In writing

APPEARANCES:

Parties	Counsel/Representative*
Jeanor Enterprises Inc. (“Jeanor”)	B. Dusome*
Lafarge Canada Inc. (“Lafarge”)	K. Mullin, E. Bashura
Ministry of Northern Development, Mines, Natural Resources and Forestry	Z. D’Onofrio

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Jeanor filed a Motion seeking the Tribunal’s dismissal, without a full hearing, of Lafarge’s appeals to a proposed transfer of licence by the Minister of Northern Development, Mines, Natural Resources and Forestry (“Minister”).

2Lafarge and the Ministry oppose the Motion.

3At the request of the Parties on consent, the Tribunal directs that these two appeals are consolidated for the Tribunal’s purposes, as they both relate to licences under the Aggregate Resources Act (“ARA”) affecting the same property and the same Parties.

4For the reasons set out herein, the Tribunal denies the Motion and directs that a full hearing on the merits will be held. Given the full process to unfold, the Tribunal gives no direction at this time on whether requests for costs will be considered.

OVERVIEW

5For some 30 years, Lafarge has operated a sand and gravel pit, known as the Sass Pit, on lands owned by Jeanor, comprising part of the west half of Lot 21, Concession 9 in the Geographic Township of Vespra, now the Township of Springwater in the County of Simcoe (“site”). Lafarge is the Licensee of record as approved by the Minister under the ARA. Lafarge’s lease of the site from Jeanor expired in mid-2019.

6In May 2022, the Ministry circulated the Minister’s intention to grant Jeanor’s applications and transfer the licences from Lafarge to Jeanor. Lafarge engaged the Tribunal by filing its objections with the Minister.

Statutory Provisions

7The ARA prohibits a person from operating a pit or quarry in designated areas of Ontario, including this site, unless the Minister has issued a licence (s. 7). The provisions of s. 18 set out the process and requirements for the transfer of a licence that authorizes aggregate extraction. The Minister may transfer a licence to a requesting Applicant if the current Licensee consents [s. 18(3)]. If the Licensee does not consent, the Minister gives notice of the intended decision and the Licensee “is entitled to a hearing by the Tribunal” if the Licensee serves notice “within 30 days after being served” [s. 18(5)]. Upon such notice, the Minister “shall refer the matter to the Tribunal for a hearing” [s. 18(6)] and the Tribunal “may direct the Minister to carry out or rescind” the proposed licence transfer (s. 18(8)].

8The Ontario Land Tribunal Act (“OLTA”) enables the Tribunal to “dismiss a proceeding without a hearing” [s. 19(1)], including where it finds “that the proceeding has no reasonable prospect of success” [ss. (c)], or for circumstances in s. 4.6(1) of the Statutory Powers Procedure Act (“SPPA”). The SPPA s. 4.6(1) enables a dismissal if the proceeding “is frivolous, vexatious or is commenced in bad faith”, “relates to matters that are outside the jurisdiction of the tribunal”, or where “statutory requirements” have not been met. These SPPA provisions appear in Rule 15.4 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

Jeanor’s Motion

9Jeanor requests the Tribunal to:

1. Consolidate the appeals (done in para. 3 above);
2. Dismiss the appeals per the OLTA;
3. Direct the Minister to advise Lafarge that its time to object had expired;
4. Direct the Minister to transfer the licences to Jeanor;
5. In the alternative, to enable Jeanor to operate the Sass Pit until final disposition of the matter; and
6. Order costs on the motion (addressed in para. 4 above).

10The Tribunal finds Jeanor’s rationale to focus on request 2, being to dismiss the appeals. Request 3 may be a reason in support of 2, and request 4 would be the outcome if the motion is granted. The Tribunal would address request 5 if the motion is not granted.

11Jeanor submits that the facts of this case enable the Tribunal to dismiss the appeal under the OLTA s. 19(1) and Rule 15.4. Lafarge’s time to object expired on June 9, 2022, being 30 days after Fairview Courier received the Minister’s Notice on behalf of Lafarge and as marked with the correct address.

12Jeanor submits that the ARA s. 18(8) restricts the Tribunal’s jurisdiction and Lafarge’s reasons for appeal are outside such jurisdiction. Lafarge’s objections have no likelihood of success at a hearing because Lafarge is simply seeking to recover costs on a site it does not own and does not lease.

Lafarge’s Response

13Lafarge responds that it filed its objection within the 30-day time limit following receipt of notice under the ARA s. 18(5), and legitimate issues were raised for determination by the Tribunal.

14Although the Minister’s Notices were dated May 3, 2022, Lafarge received the Notice for Licence #15788 on May 31, 2022 and for Licence #3748 on June 9, 2022. The Ministry confirmed that Lafarge could request a hearing by filing such with the Ministry within 30 days of receiving each Notice. On June 29, 2022, Lafarge filed its objection and request for hearing with the Ministry via email, courier and registered mail. The Ministry confirmed receipt. Lafarge submits that ARA s. 64(2) enables its request for hearing to be considered as received by the Ministry within the statutory timeframe.

15Lafarge refers to Tribunal Decisions on licence transfers to argue that equity and fairness, and in turn, compensation, are relevant considerations for the Tribunal. Lafarge’s grounds for objection include these terms as clear issues. Lafarge notes that a Court Decision is coming on a motion for leave to appeal related to a recent Tribunal Decision on matters of compensation, but maintains that, even if the Court were to find that the Tribunal does not have jurisdiction related to compensation, the matters of fairness and equity remain relevant to a licence transfer.

16Lafarge argues that it has raised serious and valid concerns that are not frivolous, vexatious or in bad faith. Licences have value and Lafarge has invested time and money in the Sass Pit that warrants compensation.

17As additional background, Lafarge’s royalty agreement with Jeanor, establishing a payment per tonne of aggregate extracted, expired on July 31, 2019. Lafarge endeavoured over several months to negotiate a new agreement, until exchanges ended in March 2020 with Jeanor’s counsel advising he would respond, but no such response was received.

18Lafarge continued to maintain the Sass Pit from 2019 through late 2022, including remitting aggregate levies to the Ontario Aggregate Resources Corporation (“OARC”) and filing its annual Compliance Assessment Report to the Ministry, given that it was the licence holder, wished to keep the licence in good standing, and was proceeding in good faith towards a renewed royalty agreement.

19Email exchanges between the two Parties resumed late 2021 when Lafarge advised Jeanor that fill appeared to have been imported to the site which was not permitted by licence. Discussions ended in December 2021 with Jeanor advising that Lafarge was denied access to the site and that no new royalty agreement would be pursued. Lafarge’s subsequent requests for discussion invoked no response from Jeanor.

Ministry’s Response

20The Ministry posits that the Tribunal has no statutory basis to award the relief sought by Jeanor’s requests 3, 4 and 5, and for which Jeanor has failed to establish any grounds that would give the Tribunal jurisdiction.

21The issue of Notice and the resulting time for requesting a hearing constitutes a request for review of the Minister’s decision, which may be a matter for judicial review but is not for the Tribunal. The Tribunal’s jurisdiction begins when the Minister refers the matter to the Tribunal. Jeanor is asking the Tribunal to review the Minister’s decision to refer the matter. The Minister’s referral to the Tribunal is not open to question by the Tribunal.

22In the event the Tribunal chooses to decide this issue, the Ministry submits that the Minister’s referral accords with the ARA and its process for procedural fairness to the Parties, including s. 64(2).

FINDINGS

23The Tribunal will dismiss the Motion for the following reasons.

24The Tribunal accepts the Ministry submissions in finding that the Tribunal’s jurisdiction is enacted by the Minister’s referral of the matter to the Tribunal for a hearing, pursuant to the ARA s. 18(6). Starting then, the Tribunal has authority to carry out or rescind a proposed licence transfer under s. 18(8) via direction to the Minister. The validity of the process leading up to a referral to the Tribunal is a matter for the Ministry and the Minister to be satisfied that compliance with the ARA was achieved.

25In the event the Tribunal is found wrong in law on the above finding, it also finds that the Ministry’s procedures resulting in these referrals indeed comply with the ARA. In the pursuit of fairness regarding the timing of Notice delivery and resulting referral period, the Ministry relied on reasonable contributing factors: Notices were sent to a long-outdated address; the correctly addressed Notices were intervened by a delivery company; and the reasonable confirmation by a Lafarge employee of the actual dates the Notices were first received. The Tribunal finds that the Ministry applied the discretionary powers under the ARA s. 64(2) appropriately and reasonably such that the statutory requirements have been met per Rule 15.4.

26The Tribunal also finds that Jeanor has failed to substantiate that these referrals have “no reasonable prospect of success” [OLTA s. 19(1)], are “frivolous, vexatious or [are] commenced in bad faith” or “outside the jurisdiction of the tribunal” (SPPA s. 4.6(1) and Rule 15.4). These findings align with the following selections from the several cases submitted by Lafarge.

27As outlined in 1353837 Ontario Inc. v. Ontario (Municipal Affairs) 2017 CarswellOnt 18286, the Ontario Municipal Board (“OMB”) emphasized that:

[25] … the Board should not summarily dismiss an Appellant’s statutory right to appeal without properly meeting the tests enunciated in the legislation. The onus is on the Moving Party to establish that a criterion … has been satisfactorily addressed.

[26] The Board’s ability to dismiss should not be taken lightly and a high threshold must be met.

28In Maniplex Investments West Carleton (Township) Pit Application (Re), [1997] O.M.B.D. No. 1166, the OMB found that:

25 … the merit of the proposed transfers depends on whether fair compensation can be made for the loss to [the licensee] of the privilege granted by the licence.

29Similarly, in Schneider Sand & Gravel Ltd. v. Seip, 1995 CarswellOnt 4995, O.M.B.D. No. 992, the OMB determined that:

22 … a licence when granted has value and can be seen to have economic value. Where a licence held by a licensee in good standing, is to be transferred without the consent of the licensee, compensation to balance the gains and losses of the economic value between parties is warranted as part of the consideration of the merit of the transfer.

30In the case at hand, Jeanor has failed to sufficiently establish that the high threshold for dismissal has been met. To the test of “no reasonable prospect for success,” Decisions of the Tribunal (including its predecessors) have addressed the matter of compensation in the course of a licence transfer. In the absence of any Court ruling to the contrary at this time, the economic gains and losses associated with the transfer may be addressed by the requestor at a hearing. For the same reasons, the question of compensation is not found to be outside the jurisdiction of the Tribunal in the course of it giving direction to the Minister.

31Lafarge’s opposition to the licence transfer on the question of compensation is not found to be: frivolous, i.e., lacking in serious purpose; vexatious, i.e., intended to cause annoyance; or commenced in bad faith, i.e., to conceal its real purpose. Lafarge has been forthright in its submissions while Jeanor has alleged misconduct without sufficient evidence and has argued absence of jurisdiction without supportive case law. A hearing will proceed on the proposed licence transfers.

32The Tribunal finds Jeanor’s Motion request 5 to be unsupported by submissions or evidence, and will therefore not enable Jeanor to operate the Sass Pit during the course of this referral hearing. Lafarge is the licence holder until and unless the Minister transfers the licence.

ORDER

33The Tribunal Orders the Motion dismissed.

“S. Tousaw”

S. tousaw

VICE-CHAIR

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.