Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 4, 2022
CASE NO(S).: OLT-22-003971
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: 1142059 Ontario Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: to permit a proposed extraction operation
Reference Number: ACW Z07-21
Property Address: Concession 2 Eastern Division, Part Lots 14 and 15, RP 22R6090 Part 1 RP 22R6857 Parts 1 to 3
Municipality/UT: Ashfield-Colborne-Wawanosh/Huron
OLT Case No: OLT-22-003971
OLT Lead Case No: OLT-22-003971
OLT Case Name: 1142059 Ontario Limited v. Ashfield-Colborne-Wawanosh (Twp)
Heard: September 22, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
1142059 Ontario Limited
Marc Kemerer (in absentia) Lawrence Hansen
Township of Ashfield-Colborne-Wawanash
Michael van Bodegom Thomas Sanderson (in absentia)
Friends of Ball’s Bridge and Little Lakes
David Donnelly Melanie Le Bouedec (Articling Student)
MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON september 22, 2022, AND ORDER OF THE TRIBUNAL
1The Tribunal convened the first Case Management Conference (“CMC”) for the above noted matter. 1142059 Ontario Limited (“Appellant”) filed an appeal against the failure to make a decision on the part of Township of Ashfield-Colborne-Wawanosh (“Township”) for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act. The property has frontage on Little Lake Road and is known municipally as Concession 2 Eastern Division, Pt. Lots 14 and 15, RP 22R6857 Parts 1 and 3 (“subject property”).
2The effect of the ZBA is to permit a proposed aggregate operation on the subject property. Sand and gravel are proposed to be mined from above and below the water table. The Appellant has also submitted an application under the Aggregate Resources Act (“ARA”). A decision from the Ministry of Natural Resources and Forestry (“MNRF”) is pending at the time of this CMC.
3The Affidavit of Service sworn August 12, 2022, is marked as Exhibit 1. No further notice is required.
4There is one request for Party status being the Friends of Ball’s Bridge and Little Lakes (“FBBLL”) represented by David Donnelly. The Tribunal grants Party status to FBBLL with the consent of the Appellant and Township.
5The Tribunal has two registered requests for Participant status from: Michael Gregg and Gordon Garland. The Tribunal grants Participant status with consent of all Parties.
6Mr. Hansen, counsel for the Appellant, provided background information with respect to the application for the benefit of the Tribunal and all present. The Appellant proposes to establish a sand and gravel pit immediately adjacent to an existing aggregate operation. The subject property is designated as Extractive and Natural Environment in the Township Official Plan. The application is supported by a complete series of submissions required both under the Planning Act and ARA. The proposed sand and gravel operation has been recommended for approval by the Huron County Planning Department and has received no objections from any of the commenting agencies to date.
7Mr. Hansen advised that an application for a license under the ARA was submitted to the MNRF in February, 2021. The Appellant expects to have a decision on their aggregate application as soon as September 30 2022. They plan to work diligently with all objectors to address identified issues and if necessary, make an appeal with respect to the decision related to the ARA licence.
8Mr. Van Bodegom advised the Tribunal that the Township plans to monitor the proceedings and call evidence as required. The proposed development and its history are fairly described by Mr. Hansen.
9Mr. Donnelly on behalf of the FBBLL submitted that it may be premature to set a date for a hearing at this CMC. This is a complicated matter especially when one considers the outstanding decisions with respect to the ARA. It would not be the efficient use of the Tribunal's time to deal with the planning and aggregate resource matters in separate hearings as the evidence that must be presented is similar to both. He advised the Tribunal that there are approximately 100 objectors and six citizen groups interested in the ARA application. In his experience, the Planning Act and ARA matters are best consolidated.
10A draft Procedural Order (“PO”) is before the Tribunal. All Parties consent to the content of the draft PO save and except the required length of a merits hearing. The Appellant believes a three day hearing is sufficient whereas the FBBLL are of the opinion as many as 12 days will be necessary to complete a merits hearing. The Tribunal noted that the issues in the Issues List are very general and would require a full adjudication of more than just planning related issues. It, therefore, would not be feasible to hear all of the required evidence in a three day hearing.
11Tribunal-led mediation is offered and discussed. Both Parties are open to mediation. All Parties committed to continue their discussions and contact the Tribunal with respect to mediation at their convenience.
TRIBUNAL DISPOSTION
12The Tribunal is prepared to grant Party status to FBBLL.
13The Tribunal finds that it is appropriate to schedule a merits hearing as part of this CMC. Considering the timing of this hearing, all Parties will have an ample opportunity to review the results of the ARA and determine if the two matters are best consolidated and if revisions in the Issues List is required.
14A subsequent CMC may be requested by any Party should it be determined that the Planning Act matter be consolidated when the results of the ARA application are known. The Tribunal agrees with Mr. Donnelly that the two matters merit consolidation and would strongly encourage the Appellant and the Township take the necessary steps to have this happen.
15The Tribunal is prepared to schedule a ten day merits hearing commencing on Monday, September 25, 2023 at 10 a.m.
16The PO is approved and comes into full force and effect. It is found as Attachment 1 to this Decision.
MERITS HEARING TECHNICAL DETAILS
17A ten day merits hearing will convene on Monday, September 25, 2023 to Friday, October 6, 2023, by video hearing at 10 a.m. The hearing is scheduled to proceed by video as follows:
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
18Parties 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.
19Parties 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
20Persons 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: 1 (647) 497-9373 or Toll Free 1-888-299-1889. Access code is 660-145-013.
21Individuals 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 hearing by video 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
22Accordingly, the Tribunal orders.
a. a ten day Merits Hearing is to convene on Monday, September 25, 2023.
b. The Friends of Ball’s Bridge and Little Lakes is granted Party status.
c. Michael Gregg and Gordon Garland are granted Participant status.
d. The Procedural Order as set out in Attachment 1 is approved and comes into full force and effect.
23No further notice will be given.
24The Member is not seized.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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.
ATTACHMENT 1
CASE NO(S). OLT-22-003971
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: 1142059 Ontario Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: Permit a proposed extraction operation (sand and gravel)
Reference Number: ACW Z07-21
Property Address: Concession 2 Eastern Division, Part Lots 14 and 15, RP 22R6090 Part 1 RP 22R6857 Parts 1 to 3
Municipality/UT: Ashfield-Colborne-Wawanosh/Huron
OLT Case No: OLT-22-003971
OLT Lead Case No: OLT-22-003971
OLT Case Name: 1142059 Ontario Limited v. Ashfield-Colborne-Wawanosh (Township)
PROCEDURAL ORDER
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.
The Parties and Participant identified at the Case Management Conference are set out in Attachment 1.
Organization of the Hearing
The video hearing will begin on Monday 25 September 2023 at 10 a.m. at the following link: https://global.gotomeeting.com/join/660145013. Access Code 660-145-013. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference.
The length of the hearing will be about ten (10) 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 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.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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 26 May 2023 and in accordance with paragraph 24 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 23 June 2023 and use best efforts to try to resolve or reduce the issues for the hearing. The experts must prepare and file a Statement of Agreed Facts and the remaining issues to be addressed to all of the parties, the municipal clerk and the OLT case co-ordinator on or before 7 July 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 14 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 14 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 14 below.
On or before 28 July 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 24 below.
On or before 28 July 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 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 11 August 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before 1 September 2023 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 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 seven (7) days after the evidence is received and in accordance with paragraph 24 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before 15 September 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 seven (7) days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a hearing plan with the Tribunal on or before 18 September 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.
Documents and filings may be delivered by personal delivery, registered or certified mail or shall be submitted electronically and in hard copy. The delivery of documents by email shall be governed by Tribunal Rule 7. Material delivered by mail shall be deemed to have been received five (5) business days after the date of registration or certification.
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 1 LIST OF PARTIES AND PARTICIPANTS
PARTIES
DEVRY SMITH FRANK LLP 95 Barber Greene Road, Suite 100 Toronto, Ontario M3C 3E9
Marc Kemerer marc.kemerer@devrylaw.ca Tel: (416) 446-3329 Fax: (416) 449-7071
Lawyers for 1142059 Ontario Limited
DUNCAN, LINTON LLP
45 Erb Street
Waterloo, Ontario
N2J 1L7
Michael van Bodegom
Christopher Manning
Tel: (519) 886-3340
Fax: (519) 886-8651
Lawyers for the Township of Ashfield-Colborne- Wawanosh
DONNELLY LAW
276 Carlaw Avenue
Toronto, ON M4M 3L1
David R. Donnelly
Tel: (416) 572-0464
Fax: (416) 572-0465
Lawyers for the Friends of Ball’s Bridge & Little Lakes
PARTICIPANTS
Gordon Garland 61 Essex Street Goderich ON N7A 2H5 (519) 524-6618
Michael Gregg (215) 253-8747 michael.gregg@utoronto.ca
ATTACHMENT 2 ISSUES LIST
NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet. No Party shall make submissions or tender evidence on an issue not identified on the Issues List without leave of the Tribunal.
Does the application to amend the Township of Ashfield-Colborne-Wawanosh (“Township”) Zoning By-law (“Proposed Amendment”) have appropriate regard for the matters of provincial interest set out in subsections 2(a), (c), (h) and (o) of the Planning Act?
Is the Proposed Amendment consistent with the following policy sections of the Provincial Policy Statement, 2020?
a. 1.1.1 (Managing and Directing Land Use);
b. 1.1.4.1 (Rural Areas in Municipalities);
c. 1.1.5.2, 1.1.5.8 (Rural Lands in Municipalities);
d. 2.1.8 (Natural Heritage);
e. 2.2.1 (Water)
f. 2.3.6 (Non-Agricultural Uses in Prime Agricultural Areas); and
g. 2.5.2.1, 2.5.2.2, 2.5.3.1 and 2.5.3.2 (Mineral Aggregate Resources)?
Does the Proposed Amendment conform with Township Official Plan policies 2.2.4, 2.2.5 (adjacent lands), 3.4.13, 3.4.17, 5.3, 5.4.4, 5.6.6, 5.6.8, 5.6.9, 5.6.10, 5.6.16, 6.3 (adjacent lands), 6.4.4, 6.4.7 and 6.4.11?
Will the Proposed Amendment result in any unacceptable noise impacts to nearby noise-sensitive uses in the context of the applicable Ministry of the Environment, Conservation and Parks (MECP) guidelines/standards? If yes, what additional monitoring and mitigation requirements could be put in place to ensure that MECP guidelines/standards are met?
Will the Proposed Amendment result in any unacceptable adverse hydrogeological impacts? If yes, what mitigation and monitoring measures could address those impacts?
Will the Proposed Amendment result in any unacceptable adverse traffic impacts?
If the Tribunal does approve the Proposed Amendment, what is the appropriate form of the zoning bylaw and should any conditions be imposed on that approval?
Does the Proposed Amendment represent good planning, and is it in the public interest?
ATTACHMENT 3 ORDER OF EVIDENCE
1142059 Ontario Limited
Township of Ashfield-Colborne- Wawanosh
Friends of Ball’s Bridge & Little Lakes
1142059 Ontario Limited (Reply)
ATTACHMENT 4 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 5 SUMMARY OF PROCEDURAL DATES
DATE
EVENT
Friday, May 26, 2023
Exchange of list of witnesses and the order in which they will be called
Friday, June 23, 2023
Meeting of expert witnesses in the same field
Friday, July 7, 2023
Filing of agreed statement of facts
Friday, July 28, 2023
Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons, participant statements
Monday, August 7, 2023
Exchange of response evidence
Friday, September 1, 2023
Exchange of visual evidence
Friday, September 15, 2023
Completion of joint document book
Monday, September 18, 2023
Parties to prepare and file hearing plan
Friday, September 22, 2023
Parties to file cross examination material
Monday, September 25, 2023
Hearing commences