Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2022

CASE NO(S).: PL130823

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Garry Sanderson
Appellant: Township of Armour
Appellant: Paul Van Dam
Appellant: Glen Thompson
Subject: By-law No. 31-13
Municipality: Township of Ryerson
OLT Case No.: PL130823
OLT File No.: PL130823
OLT Case Name: Sanderson v. Ryerson (Township)

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
Objector: Eleanor & Jim Armstrong
Objector: Morley & Diana Bonazza
Objector: Robert Farrar
Objector: David & Terry Galey; and others
Applicant: 1668830 Ontario Limited, Glen Thompson
Subject: Application for a Class A licence for the removal of aggregate
Property Address/Description: Lots 4 & 5, Concession 6
Municipality: Township of Ryerson
OLT Case No.: PL130823
OLT File No.: MM130073

Heard: In writing

APPEARANCES:

Parties	Counsel
1668830 Ontario Limited (“Applicant”)	David White
Township of Armour (“Armour”)	Edward Veldboom
Township of Ryerson (“Ryerson”)	John Ewart

DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL

BACKGROUND

1The matter before the Tribunal was a Motion initiated by the Tribunal to determine whether to rescind an Interim Order, for the failure to negotiate a haul route agreement between 1668830 Ontario Limited (“Applicant”), the Township of Ryerson (“Ryerson”) and the Township of Armour (“Armour”).

2In arriving at this decision, the Tribunal reviewed the following documents:

1. April 15, 2015, Ontario Municipal Board (“OMB”) decision
2. June 3, 2016, OMB decision
3. May 29, 2019, Tribunal decision
4. November 8, 2019, Tribunal decision
5. May 6, 2020, Tribunal decision
6. September 10, 2020, Tribunal decision
7. October 7, 2020, Tribunal decision
8. January 13, 2021, Tribunal decision
9. February 25, 2021, Tribunal decision
10. April 30, 2021, Tribunal decision
11. January 14, 2022, Applicant written submissions
12. January 14, 2022, Ryerson written submissions
13. January 14, 2022, Armour written submissions

3In a decision delivered on April 7, 2015, the OMB issued an Interim Order approving Zoning By-law (“ZBL”) No. 31-13 and directed the Ministry of Natural Resources and Forestry (“MNRF”) to issue a Class A licence to the Applicant. These approvals would permit the Applicant to develop and operate a pit and quarry on the subject property based on conditions that had been negotiated in Minutes of Settlement (“MOS”). The Final Order would be withheld until the Tribunal had been advised by the parties that a haul route agreement had been reached.

4The Tribunal was informed in the submissions of the Parties that a haul route agreement negotiation commenced in July 2015 but had stopped in February 2016. As a result, the OMB conducted a hearing on June 3, 2016, in which the matter was adjourned sine die.

5In response to a letter of status inquiry by the Tribunal on March 7, 2019, Ryerson and Armour requested a Telephone Conference Call (“TCC”). The TCC was held on May 29, 2019. During the TCC, the Tribunal was informed that there was a need for the Applicant to find new counsel as the Applicant’s counsel at the time now had a conflict of interest.

6Two further TCCs were held on November 8, 2019, and December 12, 2019. During these, the Tribunal was informed that counsel for Ryerson was retiring and that the law firm retained by Ryerson included counsel for the Applicant. As a result, both Parties needed to find new counsel and another TCC was scheduled for March 27, 2020.

7On March 17, 2020, the Tribunal ordered all scheduled TCCs for the period between March 18 and April 3, 2020, to be adjourned because of the Covid-19 emergency. On April 6, 2020, the Tribunal extended this adjournment period until June 30, 2020, and ordered that the adjourned TCCs could be rescheduled on a discretionary and case by case basis. The parties contacted the Tribunal to request that their TCC originally scheduled for March 27, 2020, be adjourned as a result of the Tribunal’s March 17, 2020 Order, and be rescheduled on the parties’ consent. The Tribunal granted the parties request and scheduled a TCC status update in this matter on May 6, 2020.

8During the May 6, 2020, TCC, new counsel for the both the Applicant and Ryerson presented themselves. The Tribunal was informed that the parties had some preliminary discussion regarding the haul route but as counsel for the Applicant and Ryerson had both been new to the file, they requested a further TCC set for September 10, 2020.

9On September 10, 2020, the requested TCC to provide a status update by the Parties was held. The Applicant’s counsel was not able to participate in the TCC. Hearing from the other two Parties that participated, it was determined that without the representation of the Applicant there was little update for the Tribunal and requested a new date.

10At the October 7, 2020, TCC the Parties recognized that this matter had been long- standing on the Tribunal’s calendar but indicated that more time was required for their discussions and requested another 90 days to update the Tribunal via TCC. The Tribunal was informed that Ryerson had recently provided the Applicant with a list of potential conditions and that the two parties were now in discussions. One of the main issues continued to be that the haul route access currently requires entry through private property with wetlands. Counsel for the Applicant indicated that his client was seeking alternative options to access the road from the quarry.

11During the January 13, 2021 TCC, counsel for the Applicant informed the Tribunal that the Applicant had been working towards resolution of the current proposed haul route but found that issues around the wetland and the section of the route on private property was becoming cost prohibitive. The Applicant had been investigating the possibilities of alternative roads, but, due to the pandemic, the progress has been slow. Counsel for the Applicant suggested that the Tribunal consider this case administratively closed until such time that his client was able to address the haul route conditions.

12Counsel for Armour and Ryerson raised concerns about a potential new haul route and the request to administratively close the file. Counsel for Armour and Ryerson indicated that their clients would like this matter resolved before the next Municipal election in October 2022 when a new Council would be sworn in. Both counsel for Armour and Ryerson requested a further TCC to get instructions from their clients.

13On February 25, 2021, only the counsel for Armour appeared before the Tribunal. It was the second time that counsel for the Applicant failed to appear before the Tribunal within a six (6)-month period. The Tribunal ordered that the parties provide a written status update for the consideration of the Tribunal to administratively close the file.

14In the written submissions, counsel for the Applicant gave a brief explanation that his client was an investor to the project but had to take over when the original proponent passed away. The Tribunal was informed that the Applicant had been working to resolve the haul route issue and has recently been introduced to an individual with experience in the aggregate sector. The Applicant believed that they had a potential solution that could be negotiated and resolved by the end of 2021.

15Counsel for Ryerson indicated that Ryerson was not in agreement to any further extensions of the matter and requested that the matter be dismissed. The Tribunal was informed that Ryerson did not support an extension to the end of 2021.

16Counsel for Armour indicated that while Armour wanted to see the matter come to conclusion, they did not object to an extension to December 21, 2021. Should the matter not be resolved by that date, Armour suggested that the decision of the Tribunal be amended to deny the approvals of the Aggregate Resources Act (“ARA”) Licence and ZBL Amendment.

17In response, counsel for the Applicant submitted that Ryerson signed MOS that agreed to support the application, the approval of the ZBL, and ARA licence. Counsel further submitted that dismissing the application would prejudice the Applicant whereas an extension to the end of the year would have no prejudice to Ryerson.

18Counsel for the Applicant further maintained that should this request not be acceptable, the matter be placed on an administratively closed list with the Tribunal.

19The Tribunal found that given that Armour and Ryerson both wanted the matter resolved before a change of Council, the suggested date by Armour of December 21, 2021, by which to resolve the haul route matter was reasonable. As such, the Tribunal Ordered that should the matter not be resolved by December 21, 2021, the Tribunal would initiate a Motion with written submissions on January 14, 2022.

WRITTEN SUBMISSIONS

1668830 ONTARIO LIMITED

20The Applicant now requests that a further extension until October 2022 be granted. It is their position that they have been actively working towards an agreement, but Covid-19 caused havoc in their efforts to meet with Staff and neighbouring landowners.

21David White, Counsel for the Applicant refers to the fact that in the June 3, 2016, decision, the matter was adjourned sine die, because the parties did not feel it was an urgent matter at the time.

22The Applicant characterizes the change of its counsel as misfortunate. On both occasions, the change in legal counsel was out of the Applicant’s control. Furthermore, the submissions of the Applicant stress that they have retained as a consultant, Moreen Miller, a former president of an aggregate and construction company with expertise in both aggregate and road construction.

23It is the view of Ms. Miller that that the existing Trespass Road is in bad condition and is located within a Provincially Significant Wetland. In her opinion rebuilding the existing road through the wetlands is not sustainable from a natural heritage perspective and does not recommend the use of aggregate trucks on the road.

24The Applicant has informed the Tribunal that work has been in progress. As part of their submissions, the Applicant enclosed three emails to show that they are working towards resolution.

25On September 28, 2021, Mr. White emailed John Ewart, Counsel for Ryerson, to inform Mr. Ewart that the Applicant had retained the services of Ms. Miller. Ms. Miller has spent some time looking for an alternative haul route and expressed that she has overall concerns with the condition of the existing road. Mr. White suggested that a meeting with the Township Road Official would be helpful.

26On November 29, 2021, Ms. Miller emailed the Applicant outlining some potential options of new locations for the quarry entrance. In the email Ms. Miller indicates that they are hoping to discuss the matter with Ryerson over the next few months.

27In a separate email on the same day, Mr. White emailed both counsel for Ryerson and Armour asking for an additional six-month extension to June 30, 2022 citing that a portion of the existing trespass road is on Crown land and that they have contacted MNRF to explore options, but again Covid-19 was slowing the process down. Mr. White further asked that the Parties meet in the new year.

28The Applicant states that there is no cost to Armour or Ryerson if the Tribunal grants an extension until October 2022, that if there is no extension the Applicant would experience a prejudice while there would be no prejudice to Armour or Ryerson, and that a denial would not be consistent with s. 2.5.2.1 of the Provincial Policy Statement, 2020 (“PPS”).

29The Applicant believes that they are working towards a remedy to address the road deficiencies and that road improvements would be a public benefit.

TOWNSHIP OF ARMOUR

30In the written submissions, Armour requests that the Tribunal issue the Final Order directing the Minister of Natural Resources and Forestry to refuse to issue the requested license having regard to s. 12 of the ARA, R.S.O. 1990 as it existed in the time of the OMB proceedings and Interim Order dated April 7, 2015.

31Armour’s sole issue set out in the Issues List is the proposed haul route. They submit that the haul route agreement negotiations commenced in July 2015 but effectively stopped in early February 2016. Between February 2016 and the date of the Tribunal’s TCC on May 29, 2019, Armour states that they had not been contacted by the Applicant’s legal counsel or consultants to discuss the haul route any further.

32Council for Armour, in its submissions, recognizes that there have been a series of changes to counsel for both the Applicant and Ryerson. However, Armour notes that the current legal counsel for the Applicant was retained prior to the May 6, 2020 TCC. It is the position of Armour that no meaningful discussions have occurred concerning the hall route agreement with the Applicant since late 2015.

33It is the position of Armour that the arguments stating that the process has been hindered by Covid-19 is not sufficient to explain years of delay and inactivity. Armour submits that during the pandemic, countless Planning Act applications in jurisdictions across Ontario have started and finished, including many that commenced prior to Covid-19 and have been completed during this time.

34As Armour continues to endure legal costs during this process, it is their position that the Applicant is failing to actively resolve the conditions that would facilitate the issuance of the Final Order.

TOWNSHIP OF RYERSON

35It is the position of Ryerson that the application be dismissed because of the Applicant’s failure to satisfy the conditions of the haul route. The Order of April 7, 2015 was to withhold the Final Order until the Tribunal was advised of a haul route agreement.

36Ryerson submits that while some preliminary discussions had occurred as of May 6, 2020, no haul route agreement had been reached. It is the position of Ryerson that a series of TCCs had been held with no meaningful updates relating to the resolution of the haul route.

37After the January 13, 2021 TCC, Ryerson and Armour requested time to get direction from their clients. The Tribunal was then informed that Ryerson was not agreeable to consent to any further extensions to the end of 2021 and expressed concerns regarding the length of time that had already elapsed in resolving the issue.

38Ryerson submits that the Council has made clear their position to not approve of any further extensions and asks the Tribunal to consider the chronology of events and s. 2.1 a) and b) of the Planning Act, R.S.O. 1990, cP.13, as amended, which states:

2.1 (1) When an approval authority or the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to,

(a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and

(b) any information and material that the municipal council or approval authority considered in making the decision described in clause (a). 2015, c. 26, s. 13; 2017, c. 23, Sched. 3, s. 2 (1); 2019, c. 9, Sched. 12, s. 1 (1).

DISPOSITION

39In response to a letter of status inquiry by the Tribunal on March 7, 2019, Ryerson and Armour requested a TCC. The TCC was held on May 29, 2019, and the Tribunal noted in its decision that:

There has been little activity on this file since June 3, 2016.

40The Tribunal further states in the May 29, 2019 decision that:

Given the length of time this file has been inactive the Tribunal instructed the parties that clear next steps will be imposed to ensure that resolution is brought to this file in the relatively near future.

41However, in the December 18, 2019 decision the Tribunal gave the parties more time to address seeking new counsel and states:

The Tribunal has made it clear to the parties that its intention is to see this matter through to a resolution in a timely fashion.

42In the May 6, 2020 decision, the Tribunal recognized the new counsel for both Ryerson and the Applicant. When the Parties requested a further TCC as some preliminary discussions had occurred, the Tribunal again stressed in its decision:

Member Douglas granted the request of the parties to hold another TCC on March 27, 2020 in order for the parties to retain new counsel but made it clear that it was the Tribunal’s intentions to see the matter come to a resolution in a timely manner.

43At the October 7, 2020 TCC, the Parties informed the Tribunal that a list of potential conditions was provided by Ryerson and that the Parties were in discussions. Counsel for the Applicant requested another 90 days to update the Tribunal.

44On January 13, 2021, the Tribunal was informed that the Applicant was looking at alternative routes as the existing haul route agreed upon in the settlement was now cost prohibitive. Mr. White, Counsel for the Applicant asked for the file to be administratively closed. Counsel for Armour and Ryerson raised concerns that this would continue to prolong matters and asked to seek direction of their clients.

45As counsel did not appear at the final TCC on February 25, 2021, the matter was ultimately converted into written submissions due April 14, 2021. Ryerson informed the Tribunal that they would like the matter to be dismissed as there was no clear indication that any real progress was being made. The Applicant again urged that the file would be administratively closed but believed that with their newly retained expert, they would have the matter resolved by the end of 2021. Armour suggested the date of December 21, 2021, as that was the last day that their municipal office was open in 2021.

46Having heard that the Applicant had retained an expert and found that the date suggested by Armour was reasonable the Tribunal gave a final extension to December 21, 2021, for the matters to be resolved.

47On two occasions the Applicant did not have representation at the Tribunal’s proceedings, without notice or communication prior to either TCC, thus wasting the Tribunal’s time and resources.

48As raised by the Applicant there is no doubt that Covid-19 has played a factor in progress over the past two years. However, the Tribunal is not satisfied that Covid-19 hindered the ability to resolve the haul route issue. There was plenty of time in the three and a half years prior to the pandemic, and significant time after, during which the Province, Municipalities, the Tribunal, businesses, etc. adjusted to new protocols, during which this matter could have been resolved.

49The Applicant raised the concern that not granting an extension would go against s. 2.5.2.1 of the PPS. While the Tribunal understands the position of the Applicant, it is within the Tribunal’s purview to set reasonable timelines for conditions to be met.

50Ryerson has asked that the Tribunal take into consideration s. 2.1 a) and b) of the Act in its deliberations. This section of the Act directs that the Tribunal shall have regard to the decisions made by a Municipal Council and information and materials that have been used in the decision-making process of a Municipal Council. Simply put, due to a prolonged period without a haul route agreement resolution or substantive discussions, the Councils of both Armour and Ryerson have given direction that they are no longer interested in continuing to seek resolution to the condition in the Interim Order regarding a haul route.

51The Tribunal is not satisfied that this matter is left unresolved. It has been clear, through the decisions of three different Members that the Tribunal’s desire was to have this matter resolved efficiently. While the Tribunal recognizes that there have been several unusual obstacles, ample opportunities and time extensions have been provided to the Applicant.

ORDER

52THE TRIBUNAL ORDERS that the Interim Order issued on April 7, 2015 is rescinded.

53THE TRIBUNAL DIRECTS that the Minister refuse the licence.

“Steven Cooke”

STEVEN COOKE
VICE-CHAIR

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.