Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 26, 2022 CASE NO(S).: OLT-21-001664

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 1394706 Ontario Inc. Subject: Application to amend the Zoning By-law – Refusal of application Description: Refusal of ZBA to permit an aggregate extraction site Reference Number: D02-02-19-0038 Property Address: 7731 Fernbank Road Municipality/UT: Ottawa/ OLT Case No.: OLT-21-001664 OLT Lead Case No.: OLT-21-001664 OLT Case Name: 1394706 Ontario Inc. v. Ottawa (City)

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

Subject: Application for a (Class A or B) licence for the removal of aggregate Reference Number: 626398 Property Address: 7731 Fernbank Road Municipality/UT: Ottawa/Ottawa OLT Case No.: OLT-22-003316 OLT Lead Case No.: OLT-21-001664

Heard: August 10, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
1394706 Ontario Inc. (“Appellant/Applicant”)	Gregory Meeds, Lauren Benoit
City of Ottawa (“City”)	Timothy Marc

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting:

an appeal by the Appellant/Applicant, commenced pursuant to s. 34(11) of the Planning Act, following the City’s refusal to amend Zoning By-law No. 2008-250 to permit aggregate extraction at 7731 Fernbank Road (the “Subject Site”); and,
an objection by Northwest Goulbourn Community Association (“NGCA”), commenced pursuant to s. 11(5) of the Aggregate Resources Act (“ARA”), opposing the Appellant/Applicant’s application for a Category 3 Class A Licence (Licence Application No. 626398) to permit the removal of aggregate at the Subject Site.

2The hearing of the two above-described matters were previously administratively consolidated by the Tribunal to be dealt with together at the same hearing(s).

Service of Notice of CMC

3There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status and withdrawal of the NGCA Objection

4The Tribunal received a request from the NGCA (as represented by Peggy Jordan) seeking participant status with respect to the Appellant/Applicant’s Zoning By-law Amendment (“ZBA”) appeal. Ms. Jordan confirmed that the NGCA is an incorporated body and she has authority to provide directions and act on NGCA’s behalf.

5Given that the NGCA is already a party to the ARA matter, The Tribunal queried Ms. Jordan to confirm the extent to which the NGCA wishes to be participate in both the ARA and Zoning By-law Amendment (“ZBA”) matters. She confirmed that the NGCA does not intend to call any professional witnesses in the ARA proceedings and was satisfied to limit its involvement in the ZBA proceedings to submitting a Participant Statement.

6The Tribunal then canvassed the other Parties for comment. Counsel for the Appellant/Applicant noted that the NGCA is the only objector as it relates to the ARA matter, making it the only party (other than the Appellant/Applicant) in that matter, and if it did not intend to participate more fully in the proceedings, then the NGCA would fail to bring a case and the Appellant/Applicant’s evidence would be unopposed. The Appellant/Applicant suggested that, if this is the situation, then the NGCA should withdraw its objection to the aggregate extraction licence and focus on opposing the ZBA application. The Appellant/Applicant cautioned that it would consider seeking costs against the NGCA if it proceeded with its objection without bringing a proper case.

7Both the Appellant/Applicant and the City confirmed that the requested ARA licence cannot be issued if the requested ZBA application is not successful (citing s. 12.1 of the ARA). The City confirmed that this is why the City is opposing the ZBA appeal, but has not bothered to object to the ARA licence application.

8Through these discussions, the City noted that the value of maintaining the NGCA’s objection against the Appellant/Applicant’s licence application is limited to possibly imposing conditions on the license, if the ZBA appeal is successful and the Tribunal determines that the subject licence should be granted. Furthermore, the City recognized that, despite the NGCA not planning on bringing professional evidence to the hearing, the NGCA may nevertheless provide meaningful lay-testimony as a Party to those proceedings.

9At this point in the CMC, the Tribunal asked the NGCA how it wished to proceed – noting that, if it chose to withdraw its objection to the ARA licence, the Tribunal would consider submissions from the NGCA if it wanted to seek party status (instead of participant status) in relation to the ZBA matter as a means to provide meaningful lay-witness testimony.

10The NGCA confirmed that it wished to unconditionally withdraw its objection of the Appellant/Applicant’s ARA licence application and proceed only as a Participant in relation to the ZBA appeal (thus, intimating that it did not intend to bring any evidence to either proceeding). As a consequence, the Tribunal finds that the ARA matter is effectively closed in terms of the Tribunal’s involvement, and the NGCA’s involvement in these proceedings as a Party has similarly ended. The Tribunal granted Participant status to the NGCA as it relates to the remaining ZBA appeal.

MEDIATION AND SETTLEMENT

11The Tribunal raised the issue of resolution, but the Appellant/Applicant and the City both concurred that the nature of the present case does not make it a good candidate for resolution.

PROCEDURAL ORDER AND ISSUES LIST

12The Tribunal received and reviewed a draft Procedural Order from the Parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).

HEARING

13Upon request of the Parties, the Tribunal set a 5-day hearing commencing on Monday, February 6, 2023, at 10 a.m. by VH. No further Notice is required for the hearing.

14Parties and Participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

15Parties 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.

16Persons 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 1-888-299-1889 or +1 (647) 497-9391. The Access Code is as indicated above.

17Individuals 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 VH 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

18The Tribunal Orders that:

having been advised that all Parties other than the Applicant do not wish to proceed with the Aggregate Resources Act matter, Licence Application No. 626398 shall be referred back to the Minister of Northern Development, Mines, Natural Resources and Forestry;
the date and particulars of the hearing pertaining to the remaining s. 34(11) Planning Act matter are set out above;
the Procedural Order appended as Schedule 1 shall govern the proceedings;
the Northwest Goulbourn Community Association is granted Participant status. The deadline to serve and file a revised participant statement is September 23, 2022; and,
the Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS 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.

SCHEDULE 1

CASE NO(S).: OLT-21-001664

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

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

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

The video hearing will begin on Monday, February 6, 2023 at 10 a.m.
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.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
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.
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.
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.
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.

Requirements Before the Hearing

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 55 days prior to the hearing date( December 13, 2022) 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.
Expert witnesses in the same field shall have a meeting on or before 21 days before the hearing date (January 16, 2023) 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 OLT case co-ordinator on or before 14 days prior to the start of the hearing (January 23, 2023).
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.
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.
On or before 34 days before the hearing date (January 3, 2023) the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before 34 days before the hearing date (January 3, 2023), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before 14 days before the hearing date (January 23, 2023), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days (January 13, 2023) after the evidence is delivered and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before 14 days prior to the hearing (January 23, 2023).
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.
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 (January 30. 2023) that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 21 days prior to the hearing (January 23, 2023) 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.
All filings shall be submitted electronically. 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.
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.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A 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. An unincorporated group cannot be a party and 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 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). Section 17 of the Ontario Land 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 a list of reports or materials 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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

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

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

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.

Attachment 1

Parties and Participants

Parties

City of Ottawa
1394706 Ontario Inc.

Participant

Northwest Goulbourn Community Association, Inc.

Attachment 2

Issues

Is the requested Zoning By-law amendment consistent with the Provincial Policy Statement, 2020, including the Mineral Aggregate Policies?;
Is the requested Zoning By-law amendment in conformity with the relevant and applicable policies of the Official Plan for the City of Ottawa, including the General Rural Area policies set out in Section 3.7;
Can the proposed increase in vehicular traffic be safely accommodated within provincial standards and requirements?
Does the proposed level of vehicular traffic result in an undue adverse impact on surrounding land uses?
Can the use of the lands which would be permitted by the Zoning By-law Amendment be appropriately buffered from neighbouring land uses in accordance with provincial standards and requirements and applicable policies of the Official Plan?
Does the requested Zoning By-law amendment represent good land use planning and properly account for matters of Provincial interest?
Would zoning the lands for sand and gravel extraction establish any basis for a future transition to a quarry use?

Note: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.

Any Party may call or not call evidence on any issue; however, no Party is obligated to call evidence on any particular issue or every issue.

Attachment 3

Order of Evidence

1394706 Ontario Inc.
City of Ottawa
Reply-1394706 Ontario Inc

1394706 Ontario Inc. v. Ottawa (City), 2022 CanLII 78153

Case Summary