Federation of Tiny Township Shoreline Associations v. Ontario (Environment, Conservation and Parks), 2022 CanLII 9901

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 10, 2022

CASE NO(S).: OLT-21-001908

(Formerly) 21-030

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Appellant: Federation of Tiny Township Shoreline Associations (File No. 002268)

Appellant: Corporation of the Township of Tiny (File No. 002266)

Instrument Holder: CRH Canada Group Inc.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Decision to issue a Permit to Take Water from a source pond, issued under section 34.1 of the Ontario Water Resources Act

Reference No.: 6258-BRDJ2M

Property Address/Description: Lots 79 and 80, Concession 1

Municipality: Original Township of Tiny

Upper Tier: County of Simcoe

OLT Case No.: OLT-21-001908

Legacy Case No.: 21-030

OLT Case Name: Federation of Tiny Township Shoreline Associations v. Ontario (Environment, Conservation and Parks)

Heard: In writing and on February 8, 2022 by telephone conference call

APPEARANCES:

Parties

Counsel

Federation of Tiny Township Shoreline

Joseph Castrilli

Associations (“FOTTSA”)

Corporation of the Township of Tiny

Sarah Hahn

(“Township”)

CRH Canada Group Inc. (“CRH”)

Jonathan Kahn

Director, Ministry of the Environment,

Isabelle O’Connor

Conservation and Parks (“Director”)

Madeline Ritchie

MEMORANDUM OF SUMMARY DECISION DELIVERED BY DAVID. L. LANTHIER ON FEBRUARY 8, 2022 AND ORDER OF THE TRIBUNAL

1This is the second Case Management Conference (“CMC”) conducted for these Appeals, following the first CMC held on August 3, 2021. The Decision and Order incorporates the written memorandum of reasons supporting the Tribunal’s determinations on the four disputed issues communicated to the Parties on February 7, 2022.

2Prior to this second CMC, the Tribunal received a revised draft of a Procedural Order which had been reviewed by all counsel. The form of the Procedural Order and dates for the hearing of the Appeals, and the pre-hearing status hearing/CMC are addressed below.

DETERMINATION OF DISPUTED ISSUES ON THE ISSUES LIST

3In accordance with paragraphs 19 to 21 of the prior Decision of the Tribunal issued on August 20, 2021, following the first CMC, as the Parties were unable to resolve the form of the Issues List to be appended to the Procedural Order and governing the hearing of the Appeals. The Tribunal is accordingly required to adjudicate and determine the appropriate Issues to be considered on their merits. For the purposes of delivering the decision of the Tribunal on the disputed issues in advance of the CMC, the Panel provided its summary of the disposition, with this Written Memorandum of Decision to follow.

4The Tribunal has received, and reviewed, the Written Submissions received from each of the four Parties. CRH’s position is aligned with the Director. The Township supports the submissions of FOTTSA but it is noted, from the comments in paragraph 9 of the Township’s submissions, that except for the use of the word “pristine”. The Township’s position appears to be more moderate and in sync with the Director’s distinguishing of the two permit processes under the legislation. The additional submissions later set out by the Township do reiterate aspects of the arguments advanced by FOTTSA.

5There are four issues identified by the FOTTSA and the Township which have been challenged by the Director, as supported by CRH. These disputed issues will be addressed utilizing the numbering sequence in the proposed draft Issues List.

ISSUE 2

6The first issue, as framed by FOTTSA, and opposed by the Director and CRH, is:

Issue 2 – Whether aggregate washing at the Teedon Pit site has the potential to adversely impact the water quality/water quantity of domestic wells of local residents.

7The Director objects to the use of the term “aggregate washing”, which the Director submits should be replaced by the term “water taking”. More than mere terminology, this objection is rooted in a jurisdictional concern. The Director takes the position that the subsequent process of washing the aggregate is not relevant to the taking of the water, which is the true subject matter of a Permit to Take Water (“PTTW”) and its conditions, which the Director submits is the only permit now under appeal under the Ontario Water Resource Act (“OWRA”). Both s. 34.1 of the OWRA and Ontario Regulation 387/04 (“O. Reg. 387/04”) under that Act focus more upon water quantity, arising from the taking of the water, monitoring and reporting, and the rates of taking the water and not the quality of water resulting from industrial waste water processes.

8Specifically, the Director submits that for the purposes of permitting, all aspects of the aggregate washing are unrelated to the taking of the water and that the subsequent placement of water into ponds and related works for the re-use/redirection of the water are properly categorized as sewage works under s. 53 of the OWRA. Those sewage works are the subject of an entirely different application and if, and when, an Environmental Compliance Approval (“ECA”) is issued it will: occur under a separate decision of a Director; be issued by a separate Director; and be subject to a separate appeal process under the Environmental Bill of Rights (“EBR”).

9FOTTSA and the Township argue that the subject matter of the OWRA approval, and its conditions, under this Appeal, expressly include issues relating to the quality of the water (and not just the quantity). The “return, after use, of the water taken” is a matter expressly provided for in the legislation and thus, the aggregate washing is not relegated only to consideration under a sewage works ECA but relates to the taking, use and return of the water. As the legislation is interpreted and as provided for in prior Environmental Review Tribunal’s caselaw, water quality concerns are matters to be addressed in a PTTW.

10In addition to the submissions as to the interpretation of the legislation, FOTTSA maintains that the Decision of the Tribunal issued on April 19, 2021 on the Application for Leave Appeal (the “Leave Application”) has firmly predetermined the parameters of the Appeal and established the jurisdiction and relevance of the issues relating to the aggregate washing and water quality, as the water taken is processed through the ponds and recirculated.

11The Tribunal will address these two focused submissions separately.

Water Taking Permit versus Aggregate Washing/Sewage System ECA

12The Tribunal has considered the opposing submissions and carefully reviewed and considered the legislation. For the reasons that follow, the Tribunal determines that the PTTW and its conditions, and the issues before this Tribunal in this Appeal, do not encompass matters relating to the aggregate washing, the sump pond, or aspects of water quality as they relate to the processing of the water taken in the quarry operation – processes which represent sewage works under the OWRA.

13The Tribunal agrees with the position of the Director, as supported by CRH, that the legislation is structured in such a way as to segregate matters relating to the aggregate washing and waste water treatment within the category of “sewage works” which do not form part of the PTTW, or its conditions as issued by the Director. The jurisdiction granted to the Tribunal under s. 100(10) of the OWRA, extends only to the decision made by the Director, and the subject of the Appeal. With such constraints under the statutory regime, since Issue 2 is not within the subject matter of the application or the issuance of the PTTW or the conditions by the Director, it therefore cannot be within the scope and jurisdiction of the Tribunal in the Appeal. The ability to impose conditions that make reference to the return of water, as general powers cannot be utilized to expand the jurisdiction of the Tribunal beyond the subject matter of the PTTW. The Tribunal agrees that it cannot exercise powers that the Director does not have, and did not have, in the issuance of the PTTW.

14A PTTW, and the conditions under such a Permit, are governed under s. 34(1) and s. 34.1 of the OWRA, which mandates a required approval for the taking of water in excess of 50,000 litres per day. Subsections 34.1(8), (9) and (10) of the OWRA provide for the terms and conditions that may be imposed in a permit, and s. 4 of O. Reg. 387/04 enumerates the matters that must be considered by the Director in an application for a PTTW.

15The requirements for a sewage works ECA for proposed sewage works, and the imposition of conditions for such works, are governed under s. 53 of the OWRA and s. 20.2 and s. 20.3 of the Environmental Protection Act (“EPA”). Under the definitions of the OWRA, “sewage works” means any works for the collection, transmission, treatment and disposal of sewage or any part of such work, and in turn “sewage” includes drainage, storm water, commercial wastes and industrial wastes and such other matter or substance as is specified by the regulations.

16It is the Tribunal’s view that the treatment of the water taken under the PTTA, as it becomes industrial waste water through the aggregate washing processes and subsequent treatment through the settlement ponds, inclusive of the referred-to pond liners, and the recovery and reuse of waters used for aggregate washing processes, collectively constitute “sewage works”. FOTTSA does not, in its materials challenge the identification of these aspects of the use and treatment of the water as “sewage works”

17The facts are also undisputed that CRH has applied for an ECA for the aggregate washing operations in relation to the identified project’s industrial sewage works, (Tab 4 to the Director’s Submissions). The application identifies the separate and additional PTTW requested for the identified project – which is the PTTW that is the subject of this Appeal. The sewage works ECA is identified as a prescribed instrument under the EBR such that any decision to issue that sewage works ECA will be open to a request for leave to appeal.

18It is FOTTSA’s position that the legislation nevertheless permits the Director, and in turn the Tribunal, the authority to deal with terms and conditions relating to the return of water, and thus, the matter of the aggregate washing, and related ponds and processing of the water taken. FOTTSA’s submissions include the following:

(a) The PTTW involves not only the taking of the water but also the “return” of the water. Section 34.1(9)(d) of the OWRA states that the Director may include terms and conditions in a permit “governing the return, after use, of water taken under the permit” and decisions relating to a PTTW can address water quality concerns arising from the return of the water.

(b) Water quality is a clear consideration for a PTTW, both in relation to the taking of the water and the return of the water. FOTTSA refers to section 34.1(10) which states expressly that “without limiting the generality of [s. 34.1(9)(d)]” a term or condition governing the return of water may “(a) govern the manner in which water may be returned, the quantity of water that must be returned and the quality of water that may be returned;…”

(c) Section 3.1 of O. Reg. 387/04 also identifies matters to be considered in a request for a PTTW and refers to issues relating to “the return, after use, of water, including, the manner in which the water is being returned or is proposed to be returned”, as well as the location or area to which the water is to be returned.

(d) FOTTSA accordingly submits that aggregate washing, as identified in Issue 2, is an included aspect of the PTTW that can thus be addressed by the Tribunal, since it relates to the return of the water and gives rise to issues as to water quality. FOTTSA’s asserted concern is that the aggregate washing, as water may be returned, may adversely impact the water quality/water quantity of local residents.

19The Tribunal agrees that water quality, as it may arise with respect to the taking of water under a PTTW is a relevant concern that may be addressed by it in an appeal such as this, relating to the PTTW and its conditions. The Tribunal has considered the included submission of the Director that the overall focus by the Director of a PTTW and its conditions, “relate to conditions pertaining to water quantity” and that the regulation of the activity is largely concerned with the volume of water taken and its potential impacts on the ecosystem and other users of water. In that respect, water quality remains a consideration, as it is clearly identified in the wording of the sections. However, the issue, in the Tribunal’s view, is limited to the quality of water as it may be impacted by the taking of the water.

20The Tribunal is unable to accept the submission of FOTTSA that the references to the “return” of the water, and the ability to impose conditions in relation to the return of the water and the quality of the water, operate to open the door wide to a broad consideration of all issues relating to the aggregate washing or the ponds, or re-use processes thereafter as described in the materials submitted, and the Leave Application. A fundamental flaw in this approach is the failure to consider that the “return” of the water is not the same as the “treatment” of the water. In the Tribunal’s view those are two entirely different things, and an interpretation of the legislation necessitates an appreciation for that distinction. The Director’s submissions as to how the legislation should be read and applied recognize this distinction; the arguments advanced by FOTTSA do not.

21The modern approach to statutory interpretation requires a contextual and purposeful approach whereby the words used in legislation are to be considered holistically, in their entire context, grammatically and in the ordinary sense, harmoniously with its scheme and objects, and the intention of the legislature.

22The Tribunal agrees with the Director that the OWRA, together with the Environmental Protection Act and the EBR, provides for two separate and distinct permitting processes. The PTTW process relates to the taking of large volumes of water, and conserving protecting and managing the Province’s waters for their efficient and sustainable uses. As such the PTTW considers matters and identified issues relating to the taking of water. The other process relates to the treatment of water, after being taken, that has, as a result of its use, given rise to the need for sewage works which collect, transmit, treat and dispose (or recycle) industrial wastes and water. Different sections of the legislation address such sewage works that involve the treatment of water and sewage, as defined in the OWRA.

23FOTTSA’s narrowed focus upon the “return” of the water fails to apply a purposeful approach to the use of that term within s. 34(9)(d) as it might relate to the taking of the water under a PTTW. In the context of that section and in the context of the OWRA and all relevant sections of the legislation and regulation, which clearly provide for the separate application processes for a sewage works ECA, considerations for the return of the water can be interpreted to apply to those limited circumstances where only the return of the water, as it is taken, must be considered.

24In contrast, the approach of the Director in distinguishing a PTTW under s. 34.1 and an ECA for sewage works under s. 53, results in a more harmonious understanding of the references to the “return” of water as a consideration in the PTTW processes. Accepting this “return of water” as separate from the entirely different considerations of treating and returning water to the environment in sewage works, recognizes the overall scheme and intent of the legislation to conserve, protect and manage the Province’s waters for efficient and sustainable uses “at both ends”. The legislation framework allows for a Director to correctly focuses on the quantity and quality of the water removed within one approval process; and for the treatment of industrial waste water, as it may also return water to the Province’s resources in sewage works to be addressed within another approval process.

25The Director’s examples provided to illustrate the distinctions are, in the Tribunal’s view, simple, aptly illustrate the harmony within the approval processes set out in the OWRA and are practical in their application. The Director considering a PTTW application has the authority to deal with the return of water where no other more specific instrument is involved, and where the water is returned directly to the environment. Such situations may arise where larger volumes of water may be taken for the purposes of irrigating crops or a golf course, where no sewage works, or interceding treatment of the water, is required. It is appropriate in such circumstances for the Director to consider matters relating only to the return of the water as it may be utilized for irrigation, which might impact the quantity or quality of the water being returned.

26However, in circumstances where the water is not simply returned, but through aggregate washing, is then processed whereby the by-products of sedimentation result in the creation of industrial waste – i.e. sewage, that requires attention to concerns that might adversely impact the conservation, protection and management of Ontario’s waters, and an ECA, a different Director must, under a separate permitting process, within the overall scheme and intent of the legislation, consider different matters unrelated to the taking of the water under the PTTW processes. The Tribunal accepts the Director’s submission that it is not unusual that an operation where aggregate is extraction and washed is regulated, from an environmental perspective, by two different instruments. That is clearly the case here, where an aggregate pit is subject to both a PTTW for the water taking and a sewage works ECA for the washing of the aggregate and the use of settlement ponds.

27It is accordingly the Tribunal’s view that the taking of water, under the scheme of the OWRA, can be considered in many factual circumstances as a proposed activity subject to regulation that is distinctly separate and apart from the actions of using and processing water, once taken, and wastewater arising from that use and processing, in sewage works. They are two different things. The Tribunal is therefore unable to accept the submission of FOTTSA that water taking is “inextricably linked” to the aggregate washing processes simply because the taking of the water is done to facilitate aggregate washing. This interpretation does not accord with the overall scheme of the legislation, or the manner in which different activities are regulated under different instruments.

28Accepting that this is the case, and that considerations relating to the aggregate washing, and aspects of the sewage works are not part of the PTTW that is the subject of this Appeal before the Tribunal, it follows that the Tribunal does not have the jurisdiction, within the scope of this Appeal to entertain Issue 2.

29The Tribunal also considers the Director’s submission to be persuasive that if the Tribunal were to consider such issues relating to aggregate washing, or other matters relating to impermeable liners, the sump pond, groundwater quality monitoring, and sump pond water levels, these would not be proper considerations and issues relating to the PTTW, and in turn, this Appeal. Such matters would exceed the jurisdiction of the Tribunal limited by s. 100(10) of the OWRA.

30If such issues, that were properly the subject of the authority of a different Director making a decision on the sewage works ECA were to be decided by the Tribunal, this could result in inconsistent instruments. Despite FOTTSA’s presented arguments, the Tribunal is unable to conclude that timing issues, relating to delays in the applications, or the absence of concurrent applications for both the PTTW and the sewage works ECA militate against the concerns arising from the possibility of inconsistent decisions on the two permits.

31Furthermore, if the Tribunal were to assert jurisdiction over matters relating to a sewage works ECA, before a s. 53 decision was made by the Director, this would prematurely wrest the pre-eminent authority to decide a sewage works ECA application from the hands of the Director, under the legislation. This would effectively result in the Tribunal prematurely and pre-emptively deciding matters relating to the ECA, and related terms and conditions, which are not within the Tribunal’s first-instance decision-making authority under the legislation.

32For all of these reasons, the Tribunal finds that it does not have the jurisdiction on an appeal of a PTTW to determine issues relating to conditions which are outside the regulatory scope of a PTTW, including whether aggregate washing has the potential to adversely impact the quality or quantity of water serving domestic wells of local residents. When such matters are decided by the Director, and as a sewage works ECA may be issued, the right to seek leave to appeal will remain. The Tribunal does not consider FOTTSA’s submission that such separate appeal processes will result in unnecessary costs or duplication of proceedings is sufficient to persuade the Tribunal to adjudicate matters that are not properly within its authority. As the legislative scheme and the distinctive nature of the authority of the Director and the Tribunal to consider and hear applications and appeals under two separate instruments has been established, the delineated jurisdiction of the Tribunal must prevail.

The Effect of the Leave Decision

33The Tribunal has considered the additional arguments of FOTTSA, as supported by the Township, that the jurisdiction of the Tribunal to consider issues relating to aggregate washing, and other considerations and matters that might be within the parameters of the sewage works, has been predetermined by the Tribunal in the Leave Decision. The Tribunal is unable to accept such submissions for a number of reasons.

34The Tribunal has considered the authorities cited by FOTTSA, including Concerned Citizens of Brant v. Ontario (Environment and Climate Change), 2017, CarswellOnt 5213, (the “2017 Brant Decision”) in support of its position. The Tribunal acknowledges that this decision correctly establishes that where the Tribunal has decided that leave is not granted on a specific issue, the Tribunal will not thereafter revisit the issue in the appeal itself.

35The Leave Decision in this case, only grants leave to appeal and makes no determination of any issue on its merits. As the “Leave Test” has often been identified by the Tribunal, the threshold is set as a prima facie or “preliminary merit” test. In considering this “lesser standard” it is not the function of the Tribunal in deciding whether to grant leave, to determine the actual merits of the appeal or any potential issue in the appeal. In reviewing the Leave Decision issued on April 19, 2021, the respective positions of the Parties, and the background to the various bases that might be advanced by the Appellant, are certainly recounted at length, but no determination of the specific issues is ever made, nor contained within any directive or Order of the Tribunal.

36In the Review Decision, the Order of the Tribunal is only that leave is granted “to appeal the Director’s decision in its entirety to FOTTSA and the Township”. The Order make no specific determinations as to matters of jurisdiction or precise issues. The entirety of the Director’s decision is to be the subject of the Appeals before the Tribunal. What issues may be properly within the jurisdiction of the Tribunal has thereafter been deferred to the Tribunal to be dealt with at this juncture, in this Decision.

37The Tribunal’s reasons in the Leave Decision represent only the analysis undertaken upon argument by the Parties at the hearing of the Leave application. As has been noted by FOTTSA in its submissions now presented on this dispute over the Issues List, the Director did not raise arguments as to jurisdiction during the argument of the Leave Application. For the Tribunal, it is of equal or greater significance that neither did the Tribunal consider or decide such matters of jurisdiction, as they might relate to the precise grounds and issues for hearing by the Tribunal once identified in the Notice of Appeal. Whether it might have ultimately impacted the Order made by the Tribunal in the Leave Decision cannot be known. In any event, what is clear to the Tribunal is that the Leave Decision has not pre-determined the parameters of the Appeal to the extent that it has already decided issues of jurisdiction or what issues that may properly be placed before the Tribunal.

38FOTTSA argues that the many references to aggregate washing within the Leave Decision and the fact that the Panel, in the Leave Decision, did not accept the Director’s arguments that there were any adverse effects caused by aggregate washing (as opposed to the taking of the water) evidence the validation of the ability of the Tribunal to decide issues relating to the aggregate washing. The Tribunal does not agree and as indicated, the Review Decision has not made findings in this regard. Those arguments of the Director that there are no adverse effects caused by the aggregate washing may ultimately remain the position of the Director regarding the sewage works ECA, and may be dealt with at that time. The fact that the Tribunal heard and identified arguments advanced by FOTTSA relating to the possible adverse effects of the aggregate washing, during the Leave Application, does not, in and of itself, create jurisdiction for the Tribunal where none exists under the legislation, as now considered in this Decision.

39The ability of the Tribunal to pre-determine questions of jurisdiction in a decision on a Leave application, before a Notice of Appeal has been placed before the Tribunal, need not be decided here. It is sufficient to clarify that what the Tribunal did in the Leave Decision issued on April 19, 2021, is identify only those components of the Director’s decision over which the prospective Appellant may, or may not, be granted leave to appeal. And as noted in the 2017 Brant Decision, once that determination has been made, it may not be revisited. The precise issues in the Appeal were not identified in, nor the subject of, the Leave Decision nor were identified issues approved for placement before the Tribunal in the Leave Decision. The Order of the Tribunal in a Leave application is only to refuse leave, or to grant leave to appeal all, or part, of a Director’s decision. Unlike an application for leave to appeal before the Court, the prospective Appellant does not file a list of specific issues with the Tribunal on a leave application.

40The Tribunal also notes that sequentially, it is only after leave is granted by the Tribunal that the Notice of Appeal is filed by an appellant. It is the appellant’s Notice of Appeal that procedurally begins the Appeal process. From there, it remains within the authority of the Tribunal to precisely consider matters of jurisdiction and control its own processes. Should an appellant then bring issues and grounds before the Tribunal that are not properly within the legislated authority of the Tribunal, the ability of the Tribunal to exclude such issues is not in any way fettered by the decision granting leave of the entire Decision. It is the view of the Tribunal that the validity of an appeal, or confirmation of the proper issues to be raised within an appeal may only be determined once the Notice of Appeal is actually filed and before the Tribunal. It is the Notice of Appeal that ultimately represents the grounds and bases for the issues put forward by an appellant, which leads to the Tribunal’s identification and approval of the issues.

41As the Director has submitted, a matter over which the Tribunal does not have jurisdiction under the legislation, cannot be brought within the jurisdiction of the Tribunal by virtue of the reasons and analysis provided on a decision on a Leave application. The Tribunal does not have the ability to assume jurisdiction over a matter which the statute has not granted authority. It is trite law that the Tribunal has jurisdiction over only those matters granted by statute, and no other. The Tribunal concurs with the Director and CRH that the fact that issues relating to the effects of washing or lining of the ponds were argued in the leave decision cannot grant to this Tribunal jurisdiction to consider matter it does not otherwise have. Despite the submissions made and the analysis provided in the Leave Decision, the Tribunal, could not, and has not, within the Leave Decision, created jurisdiction over matters where none exists under the applicable legislation.

42The Tribunal accordingly is unable to accept the submissions of FOTTSA, supported by the Township, that the Leave Decision pre-determined that Issue 2 (or other matters relating to the aggregate washing and sewage works ECA) is within the jurisdiction of the Tribunal.

43For the reasons given in relation to these two focused arguments, Issue 2 is accordingly to be removed from the Issues List.

ISSUE 3

44Issue 3 on FOTTSA’s proposed Issue List is as follows:

Issue 3 – Whether the deeper down-gradient groundwater resources at, and in the vicinity of the Teedon Pit site, are:

(a) properly characterized as “pristine”; and

(b) subject to potential adverse impacts from aggregate washing at the Teedon Pit site?

45The Director objects to the inclusion of sub-paragraph (a) of this Issue on the basis that whether or not the groundwater is “pristine” is not a relevant issue in an appeal of a PTTW. With respect to sub-paragraph (b), consistent with the basis for the objection to Issue 2, the Director similarly argues that the question of adverse impact relates to “water taking” and not “aggregate washing”.

46FOTTSA and the Township submit, in response that issues relating to the quality of the groundwater resources which may be impacted by the PTTW are entirely relevant because they may lead to a conclusion that other conditions are necessary to maintain or enhance such “pristine” water quality. They submit the fact that the Leave Decision referred to the “pristine issue” no less than three times is of significance to FOTTSA and further extrapolates, from certain portions of the reasons (paragraphs 36 and 37), that the Tribunal assuredly recognized the uniqueness of the water resources and referenced good quality water coming from the wells. Such discussion within the Leave Decision supports FOTTSA’s submission that the “pristine” nature of the water is a proper issue before the Tribunal.

47Succinctly, the Tribunal must agree with the Director and CRH that the OWRA does not provide for such a pre-determined qualitative ranking of water quality as a consideration and in no part of the legislation and regulations is the Director, or the Tribunal, to consider whether water is “properly characterized as “pristine””. The introduction of such an issue would artificially create a qualitative standard or metric where none exists. The unilateral introduction of a subjective qualitative moniker for a classification of groundwater is unwarranted and also, by its inclusion, risks the insertion of a pre-determined standard to be considered without probative evidence or legislative guidance to support such a selected standard.

48Nothing however would prevent the Appellants from addressing the issue as to whether the quality of the groundwater resources would be adversely affected by the taking of the water, or the necessity of conditions related to the taking possibly to protect such proven water quality. Section 34.1(e)(iv) of the OWRA, as it is worded, allows for the consideration of such an issue.

49It is not entirely clear to the Tribunal but if the submission of the Director is that a concern as to the quality of water arising from the permitted taking of the water (as opposed to the quality of the water taken) is not a consideration for the issuance of a PTTW, the Tribunal would have some difficulty with this submission. The Tribunal would consider qualitative changes to the water, arising from the permitted taking, to be a fair issue in a PTTW application given that s. 34.1(e)(iv) provides that conditions may be included in a permit which govern “the monitoring and reporting of the effects of water takings under a permit, including their effects upon water quantity and water quality”.

50Since the taking of the water under a PTTW is recognized as potentially impacting water quality, such issues relating to water quality may be addressed by the Tribunal. Within that issue, nothing restrains the Appellants from introducing evidence relating to a qualitative assessment of the subject water, before and after the taking, determined from monitoring and reporting, based upon such metrics or standards of water quality which the witnesses might seek to establish. It is however, neither appropriate or supportable that the issue include the pre-determined qualitative standard of “pristine”.

51With respect to sub-paragraph (b) of Issue 3, for the same reasons indicated above, in Issue 2, the Tribunal cannot agree that the potential impacts of the aggregate washing activities on the groundwater watershed is the appropriate issue, since this also relates to a sewage works ECA for another Director to determine under s. 53 of the OWRA.

52The Tribunal accordingly finds that Issue 3 cannot be framed to include considerations of whether the groundwater resources are pristine or are subject to adverse impacts from aggregate washing. To the extent that the Appellants may wish to address a more focused issue as to whether “the deeper down-gradient groundwater” in that vicinity, as it might affect local residents accessing the groundwater, may be subject to potential adverse impacts from its taking, the Tribunal would accept that as an appropriate issue. As discussed above, impacts from purported contamination from the sewage works remain to be determined under a separate ECA instrument.

53The issue would accordingly read as follows, with the permitted option of the Appellants to refer specifically to both the quantity and/or quality of the groundwater as subject to the potential resources:

Whether the [quantity and/or quality of the] deeper down-gradient groundwater resources at, and in the vicinity of the Teedon Pit site, are subject to potential adverse impacts from the taking of the water for the Teedon Pit site?

ISSUE 6

54The third issue in dispute, as presented by FOTTSA is as follows:

Issue 6 – Whether the PTTW conditions:

(a) are based on adequate hydrogeological site investigations and monitoring, including baseline testing, information respecting the existence and effects of the sump pond catch basin; water balance information for the sump pond, and existing water quality monitoring data;

(b) contain adequate requirements for

(i) conducting groundwater quality monitoring; and

(ii) reporting on the results thereof;

(c) contain adequate requirements for the installation of new water quality monitoring wells, and improvements to site water quality and water level monitoring, and reporting with respect thereto?

55The Director objects to portions of sub-paragraph (a) of Issue 6 because the matter of the sump pond catch basis was not raised in the Notices of Appeal. The Director relies upon s. 101(2) of the OWRA which provides that an applicant is not entitled to rely upon a ground of appeal that is not stated in the notice requiring the hearing. As well, the conditions to the PTTW contain no reference to a catch basin. As to the inclusion of sub-paragraphs (b) and (c), the Director submits that these are not proper issues because they again are outside the scope of the PTTW and more particularly relate to an application for sewage works – an entirely different permit (and appeal) process.

56The response of FOTTSA, supported by the Township is that conditions were put into place in relation to the catch basin, under the settlement reached to resolve the Motion to Lift the Stay and are obviously relevant to the issues in the Appeal. FOTTSA submits that since the Ministry consented to such conditions, it is contradictory and unreasonable to suggest that the imposition of such conditions cannot now be issues in this Appeal. Further, if the Tribunal accepted the settlement of the terms for the lifting of the stay, it arguably did so guided by the applicable legislation which supports the inclusion of such conditions, and thus is relevant to the issues in the Appeal.

57FOTTSA and the Township acknowledge that the Notice of Appeal made no reference to the catch basin and that such conditions relating to the catch basin were only the subject of the settlement negotiations with CRH in the context of the Motion to Lift the Stay. In the alternative, FOTTSA also argues that if the Tribunal finds that s. 101(2) prohibits the inclusion of the additional ground, s. 101(3) nevertheless permits the Tribunal to grant leave to the Appellant to raise such additional grounds if to do so is proper in the circumstances, with conditions as necessary.

58FOTTSA submits that it is proper in the circumstances to allow the addition of the catch basin because this was an undisclosed return water quality issue that was not referred to in CRH’s supporting material for the PTTW application. Had it been included, FOTTSA submits that it would have referred to within the Notice of Appeal (and the leave application). Neither the Director, nor CRH dispute this purported failure to disclose the catch basin within the initial application.

59In the Tribunal’s view, the inclusion of the referenced sump pond catch basin as a condition to the lifting of the stay arises from a settlement between the Appellants and CRH. As such, the Director submits that the inclusion of the conditions on a private settlement cannot, at that point, dictate the issues in the appeal of the PTTW. The Tribunal agrees. The public interest considerations that are to be addressed under s. 102(3) of the OWRA relate to those identified risks pending the hearing of the appeal and are not prejudicial to the respective positions to be taken by the Parties at the hearing of the Appeals on the merits. The terms of a settlement do not pre-determine issues of relevancy, nor do they cure non-compliance with s. 101(2) of the OWRA.

60The Tribunal is accordingly not inclined to consider the manner in which the catch basin condition was included, as an interim term pending the hearing of the appeal, to be determinative that the issue should be included for that reason.

61Notwithstanding this approach, the Tribunal is inclined to agree with FOTTSA that the non-inclusion of the referenced catch basin in the original application (which appears to be the case) and the lack of opportunity to have addressed this, represents sufficient reason to conclude that it is proper allow the additional reference to the catch basin to the issues within the Appeal so as not to prejudice the Appellants.

62However, what is not adequately clear to the Tribunal in the submissions provided is that, the inclusion of the reference to the sump pond catch basin relates only to the PTTW and the taking of the water, and not to matters relating to the sewage works. Assuming that it is the former, and that the reference to the catch basin, as part of Issue 6, relates to the taking, and not the sewage works, then the Tribunal would permit that amendment to the Notice of Appeal pursuant to s. 101(3) of the OWRA.

63With respect to the balance of this issue, in sub-paragraph (b) and (c), applying the same analysis set out for Issue 2, the Tribunal similarly considers that such matters are within the jurisdiction of the Director in considering the sewage works ECA and are not before the Tribunal unless, and until, an Appeal of a sewage works ECA is permitted and is before the Tribunal. For the same reasons provided, they are not proper issues within the jurisdiction of the Tribunal under the PTTW.

64Accordingly, the Tribunal directs that Issues 6(b) and (c) are to be removed and Issue 6 (a) may be amended to reflect the analysis and determination above, as follows:

Whether the PTTW conditions are based on adequate hydrogeological site investigations and monitoring, including baseline testing, information respecting the existence and effects of the sump pond catch basin; water balance information for the sump pond, and existing water quality monitoring data.

ISSUE 7

65The final issue as proposed by FOTTSA and supported by the Township, which is in dispute, is Issue 7:

Issue 7 – Whether the PTTW should contain conditions to eliminate the potential for off site water quality impacts by requiring:

(a) installation of impermeable liners for the site’s sedimentation ponds and sump pond; and

(b) maintenance of sump pond water levels well below the elevation of the catch basin?

66Issue 7 is challenged by the Director as being similarly outside the scope of the PTTW and instead, is properly the subject matter of a sewage works ECA. As with sub-paragraph (a) of Issue 6, the Director also similarly takes the position that the matter of the sump pond catch basis was not raised in the Notices of Appeal and therefore may not now be added as an Issue to this Appeal.

67In response, FOTTSA, supported by the Township, advances similar submissions and arguments as to the interpretation of the legislation and the references to such matters within the Leave Decision.

68Upon the same analysis set out in relation to Issues 2, 3 and 6(b) and (c) the Tribunal similarly concludes that such matters are outside the scope and jurisdiction of the Director and the Tribunal, as they relate to a sewage works ECA.

69Similarly, for the same reasons, despite the fact that the Leave Decision mentions the absence of liners at least eight times, such mentions within the Leave Decision are not determinative of the Tribunal’s jurisdiction and scope of consideration of issues. Neither does the inclusion of such references in the Notice of Appeal by the Appellant dictate whether the issue is appropriate. Whether or not an issue is properly within the jurisdiction of the Tribunal in this Appeal is determined by the Tribunal, and not by inclusive references within the Notice of Appeal.

70For this reason, the Tribunal is not inclined to permit Issue 7 as drafted by the Appellants, to be adjudicated by the Tribunal in the hearing of the Appeals. The only exception relates to the possibility of the catch basin, as referenced in this issue, remaining as a valid issue if the issue, as framed, relates to a requirement for maintenance of sump pond water levels “well below the elevation of the catch basins” which in turn relates solely to the taking of the water, and not to the matters relating to the aggregate washing or sewage works. Again, upon the submissions and material before the Tribunal on the submissions, there is some uncertainty that this is the case.

71Accordingly for the same reasons set out for Issue 6, the Tribunal will strike all parts of Issue 7, provided that the Appellants may include on the Issues List an issue framed in such a manner that the question of whether PTTW conditions are required to eliminate the potential for off-site water quality impacts arises only from the taking of the water, and not from those processes and actions with respect to the water that are properly within the jurisdiction of the s. 53 Director’s decision for the sewage works ECA.

SUMMARY OF DIRECTIONS ON THE DISPUTED ISSUES

72In addition to those Issues which have been agreed upon by the Parties, the following directives are provided with respect to the numbered draft Issues List:

Issue 2 is to be struck from the List

Issue 3 is amended as follows, with the discretion granted to the Appellants to insert the reference to “quantity and/or quality”:

Whether the [quantity and/or quality of the] deeper down-gradient groundwater resources at, and in the vicinity of, the Teedon Pit site, are subject to potential adverse impacts from the taking of the water for the Teedon Pit site?

Issue 6 may be amended by deleting subparagraphs (b) and (c) and amending subparagraph (a) to read as follows:

Whether the PTTW conditions are based on adequate hydrogeological site investigations and monitoring, including baseline testing, information respecting the existence and effects of the sump pond catch basin; water balance information for the sump pond, and existing water quality monitoring data.

Issue 7 is to be struck from the List, provided that, the Appellants may include, on the Issues List, an issue with the limited question as to: “Whether PTTW conditions are required to eliminate the potential for off-site water quality impacts arising from the taking of the water”, such that the issue does not relate to those processes and actions that are properly within the jurisdiction of the s. 53 Director’s decision for the sewage works ECA

PROCEDURAL ORDER

73The Tribunal received and reviewed the draft Procedural Order submitted by the Parties. Two appropriate adjustments were noted as needed in paragraphs 9 and 14, which should more appropriately refer to filing with the Tribunal, rather than the “Clerk” in these Appeals. Paragraph 13 (referring to Participants) is also likely not applicable.

74Counsel for CRH proposed to await the receipt of this CMC Decision and Order containing the reasons for the determination of the issues before circulating and returning the final draft of the Procedural Order and Issues List to the Tribunal for issuance by the Registrar. Now that the hearing dates are known, the final draft will also permit the referencing of specific pre-filing deadlines if counsel wish to do so. The revised draft will also incorporate the additional paragraph and details relating to the advance status hearing/CMC as provided to counsel. The requirement for a joint document book and directions for the filing of material necessary for cross-examination was also missing and is to be included.

PRE-HEARING CMC AND HEARING DATES

75Prospective hearing dates and possible scheduling conflicts were canvassed with counsel and the Panel obtained available dates for the hearing of the Appeal. The Panel Member also discussed with counsel the requirement for a telephone conference call (“TCC”) hearing to be conducted approximately 45 to 60 days prior to the start of the hearing for the purposes of reviewing a draft hearing plan, confirming the number of days ultimately required for the hearing and addressing the status of the proceeding and hearing plan. This will be included in the Procedural Order and the date for this TCC hearing is provided for below.

Hearing – October 24 to November 4, 2022

76The ten-day video hearing of the Appeals will commence at 10 a.m. on Monday, October 24, 2022, and continue to Friday, November 4, 2022. The Parties 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://meet.goto.com/979388733

Access Code: 979-388-733

77For the video hearing, all Parties, witnesses or observers 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.

78Persons who experience technical difficulties accessing either of the video hearing events using 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) 497-9373. The Access Code is as indicated above.

79Individuals 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 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.

TCC Status Hearing – Friday August 26, 2022

80The TCC Status Hearing to receive a status report, review the draft hearing plan, and address any other pre-hearing matters will commence at 9 a.m. on Friday, August 26, 2022. Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time.

81There will be no further notice with respect to each of the two hearing events, and the Panel Member is not seized on either of the hearings.

82The Tribunal so orders and provides these CMC directives for the purposes of the case management of these Appeals.

“David L. Lanthier”

DAVID L. LANTHIER

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.