Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 02, 2022
CASE NO(S).: OLT-21-001554
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended
Referred by: Kendall Haddow
Objector: Yolande & Henry Rabiej
Objector: Natalie Guindon
Objector: Chantale Roy
Applicant: D. Lafond Contracting Limited
Subject: Application for aggregate extraction license on private land
Property Address/Description: PCL 9981 SEC SES; PT LT 8 CON 6
Municipality: Township of Markstay - Warren
OLT Lead Case No.: OLT-21-001554
OLT Case No.: OLT-21-001554
OLT Case name: Rabiej et al vs. MNRF (Authority)
Heard: February 22, 2022 by video hearing
APPEARANCES:
Parties
Representative
D. Lafond Contracting Limited (“Applicant”)
Donald Lafond
Ministry of Northern Development, Mines, Natural Resources and Forestry (the “Ministry”)
Did Not Attend
Natalie Guindon (“Objector 1”)
Self-represented
Chantale Roy (“Objector 2”)
Self-represented
Yolande and Henry Rabiej (“Objector 3”)
Did Not Attend
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO AND S. BOBKA ON FEBRUARY 22, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held to organize a hearing on the merits stemming from objections to the Applicant’s application for an Aggregate Extraction License on private lands in the Township of Markstay-Warren (the “Township”).
2This matter was referred to the Ontario Land Tribunal (the “Tribunal”) by the Ministry under s. 11(5) of the Aggregates Resources Act (“ARA”).
3The Minister of Northern Development, Mines, Natural Resources and Forestry, whom is the Approval Authority on the matter, may choose to refer the matter and application, along with objections to the Tribunal to adjudicate on. The relevant section to this matter, s. 11(5) of the ARA is cited below:
“The Minister may refer the application and any objections arising out of the notification and consultation procedures that are prescribed or set out in a custom plan to the Tribunal for a hearing, and may direct that the Tribunal shall determine only the issues specified in the referral. 2017, c. 23, Sched. 5, s. 3 (1); 2021, c. 4, Sched. 6, s. 30 (1)”.
4The Applicant seeks approval and permissions to extract up to 2,000,000 cubic metres of aggregate on the lands legally known as PCL 9981 SEC SES; PT LT 8 CON 6 AWREY TOWNSHIP AS IN EP6537, EXCEPT PT 1 53R1465, within the Township.
5No additional appeals or Planning Act amendments were sought at this time by any Party for the Tribunal to adjudicate or review. Specifically, no Official Plan Amendment (“OPA”) or Zoning By-law Amendment (“ZBA”) were identified nor required for permissions sought.
6The Applicant’s request to the Ministry for a Licence application under the ARA subsequently received three objections from concerned citizens (“Objectors”).
7The Tribunal provided Notice for the CMC on December 2, 2021, satisfying statutory requirements and timelines.
THE CMC
The Parties
8Section 11(6) of the ARA identifies the Parties to the Hearing as:
(a) the Applicant;
(b) the person who made the objection;
(c) the Minister, if he or she notifies the Tribunal of his or her intention to be a party; and
(d) such other persons as are specified by the Tribunal. 2017, c. 23, Sched. 5, s. 3 (1); 2021, c. 4, Sched. 6, s. 30 (1).
9The Tribunal was advised by the Ministry that they will not be attending nor be participating in the proceedings for this matter.
10Neither the Township nor the Upper Tier (Sudbury District) attended or sought status for these proceedings.
11The Applicant was present, as well as Objector 1 and Objector 2 for the CMC. None of the Parties had legal representation and were all self-represented at the CMC.
12The Tribunal was advised that unfortunately Mr. Rabiej had passed away and Ms. Rabiej had subsequently moved away from the area. Having received no correspondence indicating continued interest or concerns on the matter, Objector 3 was removed as Party to the proceedings.
13Mercedes Reed and Traveen Reed were present at the CMC and had asked to be granted Party status for the proceedings. Ms. Reed having moved into the home of Objector 3, and Mr. Reed being an investor in the home, shared many of the concerns of Objectors 1 and 2.
14The Tribunal asked the Parties if they were clear on the obligations of a Party as opposed to those of a participant? The Tribunal also asked if the Parties had prepared a Draft Procedural Order (the “DPO”) and an Issues List for the Tribunal to consider?
15The Parties all had a basic understanding of Party and Participant status differences, however, to the second question of having a DPO and Issues List, the Tribunal was advised that neither were prepared in advance of this CMC.
16The Parties further advised the Tribunal that no discussions or exchange of information had occurred between the Applicant and Objectors prior to the CMC.
17The Applicant did advise the Tribunal that this process has been ongoing in excess of 5 to 7 years, and he and his company had gone to great efforts to obtain the necessary technical reports and conduct public meetings to inform and listen to the community. The Applicant was willing to have continued dialogue with the Objectors and address any legitimate concerns, particularly those within their control, but again noted he believed he and his company had done so, with the numerous reports conducted and obtained. The Applicant also indicated that he and his company had already reduced the proposed area of extraction from the original 85 acres to the now scaled back 50 acres approximately proposed.
18It became evident to the Tribunal, that the Parties have not done what is required to proceed to the next step in procuring a Hearing of the Merits date. Through discussions, the Tribunal noted several reasons had contributed to the lack of preparation of the Parties, some legitimate, and some not so legitimate, however, ultimately the onus still lied with the Parties.
19The Tribunal respectfully advised the Parties that they shared the responsibility of preparation for this CMC. However, the Tribunal recognizing the Parties were all self represented and not familiar with the procedures of the Tribunal, and further all seemingly coming forward with genuine concerns and showing a willingness to be open to discussions, made several recommendations and left the Parties with some instructions in advance of a second CMC scheduled before the Tribunal.
Recommendations and Instructions
20During a recess at the CMC, the objecting Parties had an opportunity to discuss some suggestions put forward during the CMC and advised the Tribunal that Objector 1, Ms. Guindon would remain as the sole objecting Party on the matter. With the similarities in the objectors’ concerns the Tribunal concurred and removed Objector 2 as a Party to the proceedings.
21Objector 2, Ms. Roy was granted Participant status and Ms. Reed and Mr. Reed, were also jointly granted Participant Status for the proceedings.
22The Tribunal advised the Parties that a second CMC will be scheduled, and a joint DPO and Issues List will be required two weeks in advance of the second CMC.
23The Tribunal further cautioned the Parties that far less understanding and latitude will be provided by the Tribunal to the Parties at the next CMC, and strongly suggested the Parties obtain clarity on “The Duties and Obligations of Parties” going forward and possible consideration of representation if needed.
24Further suggested by the Tribunal was that the Parties meet and discuss the matter and issues thoroughly, with refinement of issues and possible resolution of issues being the ultimate goal.
25Lastly, the Tribunal suggested to the Parties that Tribunal led mediation could be available and encouraged the Parties to inquire with the assigned case coordinator as to the process and next steps, if interested.
ORDER
26The Parties are instructed to provide the DPO with Issues List, to the Tribunal’s assigned Case Coordinator, on or before Friday, May 13, 2022, for Tribunal consideration and approval.
27The Tribunal orders a second CMC be held by video, scheduled to commence at 10 a.m. on Friday, May 27, 2022.
28Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/687587165
Access Code: 687-587-165
29Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
30Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is 687-587-165.
31Individuals 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 with carriage of this case.
32If any issues arise, the Panel may be spoken to, if required through correspondence received through the Case Coordinator.
33The Panel is not seized for the purposes of the Hearing. The Panel or the individual member could be made available for the second CMC if the Tribunal calendar permits.
34No further notice is required.
“M. Russo”
M. RUSSO
MEMBER
“S. Bobka”
S. BOBKA
MEMBER
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.