CRH Canada Group Inc. v Tiny (Township) 2022 OLT mini 670

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 22, 2022

CASE NO(S).: OLT-21-001605 (Formerly PL180416)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: CRH Canada Group Inc.

Subject: Request to amend the Official Plan - Failure of Township of Tiny to adopt the requested amendment

Existing Designation: 'Rural', 'Environmental Protection II' and 'Mineral Aggregate Resource II'

Proposed Designated: 'Mineral Aggregate Resources I'

Purpose: To permit the expansion of the existing gravel pit

Property Address/Description: 2 Darby Road

Municipality: Township of Tiny

Approval Authority File No.: ‘12/D09’ (DS #36243)

OLT Case No.: OLT-21-001605

Legacy Case No.: PL180416

OLT File No.: OLT-21-001605

Legacy Lead Case No.: PL180416

OLT Case Name: CRH Canada Group Inc. v. Tiny (Township)

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

Applicant and Appellant: CRH Canada Group Inc.

Subject: Application to amend Zoning By-law No. 06-001 and 30-77 - Refusal or neglect of Township of Tiny to make a decision

Existing Zoning: Rural (RU) Zone, Rural (A) Zone and Holding Low Hazard (OS4) Zone

Proposed Zoning: Mineral Aggregate (MAR) Zone and Extractive Industrial (M5) Zone

Purpose: To permit the expansion of the existing gravel pit

Property Address/Description: 2 Darby Road

Municipality: Township of Tiny

Municipality File No.: ‘12/D14’ (DS#36242)

OLT Case No.: OLT-21-001605

Legacy Case No.: PL180417

OLT File No.: OLT-21-001607

Legacy Lead Case No.: PL180416

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

Referred by: CRH Canada Group Inc.

Objector: Blake & Brenda Anderson

Objector: Peter&Jeanette Anderson

Objector: Erin Archer

Objector: Murray Archer; and others

Applicant: Jessica Ferri

Subject: Application for a Class A licence for the removal of aggregate

Property Address/Description : 2 Darby Road

Municipality: Township of Tiny

OLT Case No.: OLT-21-001605

Legacy Case No.: MM210011

OLT File No.: OLT-21-001616

Legacy Lead Case No.: PL180416

Heard: June 9, 2022 by video hearing

APPEARANCES:

Parties

Counsel

CRH Canada Group Inc.

Jonathan W. Kahn

Federation of Tiny Township Shoreline Associations (“FOTTSA”)

Joseph Castrilli and Jacqueline Wilson

MEMORANDUM OF ORAL DECISION DELIVERED S. BRAUN ON JUNE 9, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a Case Management Conference (“CMC”) in relation to appeals by CRH Canada Group Inc. (“CRH”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, regarding the failure of the Township of Tiny (“Township”) to make a decision on applications for amendments to the Township’s Official Plan (“OP”) and Zoning By-law (“ZBL”) and the referral of an application for a License pursuant to s. 11(5) of the Aggregate Resources Act (“ARA”) to permit the expansion of an existing gravel pit for the subject property, located at 2 Darby Road.

2At a previous hearing event held on January 19, 2022, the Township of Tiny withdrew from the proceedings. The remaining Parties advised they were unable to finalize an Issues List (“IL”) for an upcoming hearing in relation to the present appeals because they were awaiting the outcome of a related hearing event in relation to a Permit to Take Water (“PTTW matter”) involving potentially overlapping issues.

3Today’s CMC was scheduled for the purpose of receiving an update on the aforementioned PTTW matter and, if necessary, to hear submissions and provide directions on the proposed IL for the hearing of the present appeals. The Tribunal was advised that, following the PTTW hearing event, the Parties resolved the form of the IL, save and except for the following issue identified by FOTTSA, to which CRH objects:

Whether:

a) the Teedon Pit Extension lands are located within a Natural Heritage System for the Places to Grow: 2019 Growth Plan for the Greater Golden Horseshoe (“Growth Plan”);

b) the official plan and zoning by-law applications under the Planning Act for the Teedon Pit Extension are subject to the Growth Plan, and, if so;

c) the applicant for the Teedon Pit Extension has demonstrated under policy 4.2.8.2 (b) iii of the Growth Plan how the area water resource system, including recharge areas, water tables, aquifers, etc. will be protected or enhanced?

4The Tribunal was provided with written and oral submissions to aid in its determination of whether the foregoing issue is appropriately included on the IL for the hearing of these appeals. The written submissions of CRH were marked as Exhibit 1. The written submissions and book of references submitted by FOTTSA were marked as Exhibits 2 and 2A, respectively.

POSITIONS OF THE PARTIES

5The disagreement between the Parties arises out of an April 13, 2012 letter from the Ministry of Natural Resources (“MNR letter”, Exhibit 1 page 6) in relation to the ARA application, which states:

The review of documents to support the above noted application package has been completed. The changes suggested for the site plans have been completed and the various reports meet the standards required by the Aggregate Resources Act. Furthermore, this application meets the Provincial Standards for a Category 3, Class A pit above the water table.

as well as s. 4.2.8.7 of the Growth Plan, which states:

Where an application under the Aggregate Resources Act has been received and deemed complete by the Province as of July 1, 2017, any applications under the Planning Act to permit the making, establishment or operation of the pit or quarry to which the Aggregate Resources Act application relates, if approved, will not be subject to the policies of this Plan.

6While FOTTSA does not dispute the MNR letter evidences the deemed completion of the aggregate application in 2012, it takes the position that the impugned issue should nevertheless remain on the IL, as it is relevant to the matters under appeal and within the jurisdiction of the Tribunal. In support of its position, FOTTSA advanced the argument that the deemed completion is immaterial as a result of both the passage of time and changes made to the application since 2012. It was submitted that the application presently before the Tribunal is substantially different and should therefore be treated as a “new” application to which is not exempt from the policies of the Growth Plan pursuant to s. 4.2.8.7.

7Counsel for FOTTSA drew the Tribunal’s attention to a January 2019 letter from CRH to MNR (“January 2019 letter”, Exhibit 2A Tab 6) which, inter alia, confirms that between April 2012 and January 2019,

• changes were made to the license area and the area of extraction;

• a number of supporting studies and site plans were filed, the majority of which were dated January 2019; and

• a hydrogeology assessment appended to the letter (Exhibit 2A Tab 8) appears to require further adjustments to the license area and the area of extraction

Moreover, it was noted that approximately seven years had elapsed between the deemed completion in 2012 and follow-up steps taken to advance the application in 2019. It was argued that the statutory process does not contemplate seven-year gaps, nor does it contemplate material changes to applications.

8Counsel for FOTTSA referred the Tribunal to s. 4.3.6 of the Provincial Standards for a Category 3 Class A Pit above the water table (“Provincial Standards”, Exhibit 1 page 23), which states:

If the applicant does not submit the required information as noted in sections 4.3.2 and 4.3.3 within 2 years of public notification as per section 4.1.1, the application is considered withdrawn and all documentation will be returned.

Sections 4.3.2 and 4.3.3 refer to requirements in relation to attempts to resolve objections. It was submitted that the two-year consultation period expired without the resolution of objections in 2014. Counsel for FOTTSA submitted that, in an attempt to circumvent the expiry of that two-year time limit, the previous Applicant/Owner (Cedarhurst Quarries and Crushing Limited) sold the subject property in 2017 to CRH, who thereafter took steps to advance the application.

9All of the foregoing, in FOTTSA’s submission, supports the inclusion of the impugned issue on the IL, as s. 4.2.8.7 of the Growth Plan only operates to exempt applications deemed complete prior to July 1, 2017. The “new” application filed in 2019 would, therefore, be subject to the Growth Plan and particularly policies therein which quite deliberately require aggregate applications to demonstrate protection or enhancement of the water resource system.

10CRH disagrees that the passage of time, filing of additional materials and/or revisions to the footprint of the extraction and license areas somehow created a “new” application and vitiated the deemed completion as set out in the MNR letter of April 13, 2012.

11Counsel for CRH drew the Tribunal’s attention to the section 4 of the Provincial Standards, which begins with the following:

The applicant shall submit all required documentation to the Ministry of Natural Resources. Within twenty (20) days, the Ministry of Natural Resources shall determine if the application is complete. Once the application is determined to be complete, the applicant may proceed with the following Notification and Consultation Standards.

He submitted that the foregoing provision is a “gateway”, precluding an application from proceeding to the Notification and Consultation stage in the absence of a determination that the application is complete. Section 4.1.1 goes on to state:

The applicant must provide public notice as identified in 4.1.2. The 45 day notification period will begin with the publication in the local newspaper as described in 4.1.2.3

Counsel for CRH argued that FOTTSA misinterpreted s. 4.3.6, which makes reference to s. 4.1.1 and clearly indicates that the two-year period is triggered by publication of the notice and the commencement of the 45-day notification period. It was submitted that FOTTSA’s argument with respect to the two-year time limit having expired in 2014 is without merit because publication of the notice and the commencement of that two-year period did not occur until 2019.

12With respect to revisions to the licence and extraction areas, it was submitted that the statutory regime contemplates an iterative process, whereby new/updated technical reports and modifications to applications are all an expected part of the normal progression of an application, which includes mandatory public consultation and efforts to resolve objections. Counsel for CRH explained that revisions to the aggregate application came about as a result of efforts to resolve concerns raised in relation to the associated Planning Act applications and drew the Tribunal’s attention to the January 2019 letter, which states:

Since the applications were submitted, there has been extensive agency and public review that has resulted in changes to the applications.

13In addition to all of the foregoing, counsel for CRH argued that MNR’s actions of posting the application on the Environmental Registry and allowing it to progress through the Notification and Consultation stage as well as ultimately referring same to the Tribunal (all steps which cannot occur in the absence of a determination that an application is complete), clearly indicate the Ministry did not consider the passage of time, revisions to the license/extraction area and filing of further reports in 2019 as constituting a new application.

14Counsel for CRH submitted the argument advanced by FOTTSA, and in particular, that revisions to the application somehow vitiated the deemed completion and resulted in the creation of a “new” application, is both untenable and contrary to the public interest. He pointed out that it is commonplace for development applications to undergo revisions in an effort to respond to concerns and resolve disputes and submitted that, were developers required to begin the application process anew as a result of such revisions few, if any, development disputes would ever be resolved.

15Finally, he pointed out that striking the impugned issue will not preclude groundwater protection and hydrogeological issues and evidence from being heard and considered by the Tribunal given that the balance of the IL, as agreed upon between the Parties, includes a number of groundwater protection and hydrogeological issues.

16In response to questioning from the Tribunal, both counsel advised that there are no provisions in the ARA or the Regulations which set out any time limits between when an application is deemed complete and when the Notification and Consultation stage must begin, nor are there any provisions which speak to a deemed completion lapsing as a result of changes made to an application or as a result of the passage of a certain amount of time. Notwithstanding the foregoing, counsel for FOTTSA submitted that, in the absence of a numerically specific time limit, the Tribunal is entitled to apply a standard of reasonableness. He argued that an application should not be permitted to “simmer and change materially” over a seven-year period and still be protected by a deemed completion.

17Finally, in response to the Tribunal’s query with respect to the previous Growth Plan (2006) and its applicability to the present appeals in the event of a finding in favour of the position advanced by CRH, counsel indicated they had not prepared detailed submissions in that regard and were not certain that the previous Growth Plan continued to be of any legal force and effect. Nevertheless, they agreed that even if the 2006 Growth Plan were applicable, it would be a “non-issue” for the hearing of these appeals, as it contained no similar policies and requirements in relation to groundwater protection. Counsel for CRH reiterated that, in any event, a number of hydrogeology and water resource/groundwater issues remain on the IL and pointed out that there are a number of other policy documents applicable to the matters under appeal which include groundwater protection policies such as the the Provincial Policy Statement and relevant Official Plans.

FINDINGS

18The Tribunal accepts the submissions of CRH and finds that, by virtue of s. 4.2.8.7, the aggregate application having been deemed complete in 2012 is not subject to the policies of the Growth Plan and accordingly, the impugned issue should not be included on the IL for the hearing of the present appeals. In so finding, it was considered significant that the only time limit governing any part of the process is found in s. 4.3.6 of the Provincial Standards, which indicates that a two-year limitation period only commences once publication of notice occurs in accordance with s. 4.1.1.

19The MNR letter clearly accords with the interpretation of s. 4.3.6 as put forward by CRH, given the following statement therein:

If letters of objection are received from the general public and/or commenting agencies regarding this application then a two year time period as per Section 4.3.6 of the Provincial Standards begins the day Form 1 (Notice of Application) is published in the newspaper.

The evidence indicates that publication of the notice occurred in 2019 and therefore, the Tribunal does not accept FOTTSA’s submission that the two-year period expired in 2014. Moreover, there was no evidence to suggest that the MNR took issue with the time elapsed and/or the revisions made to the application following the deemed completion in 2012. In fact, the MNR permitted the application to progress through to the Notification and Consultation stage and subsequently referred the application to the Tribunal.

20While it is acknowledged that seven years elapsed between the application being deemed completion in 2012 and publication of the notice in 2019, FOTTSA was unable to point to any provision within the Act or the Regulation to substantiate its argument that the deemed completion is without force as a result of either the expiry of a certain period of time or by virtue of actions or omissions on the part of CRH or Cedarhurst. The Tribunal does not accept FOTTSA’s submission that a time limit can be read in to find that a deemed completion is without force, nor does it accept the argument that revisions to the licence or extraction area have the effect of vitiating a deemed completion or creating a new application.

PROCEDURAL ORDER AND HEARING

21Subject to the agreement between the Parties in advance of this CMC which resulted in the removal of other issues from the IL and, in light of the foregoing, ruling, both counsel were in agreement that the length of the hearing should be reduced from 13 days to 11 days.

22Following the CMC, the Parties provided a revised draft of a PO and IL (contained in Attachment 1), which appropriately reflects the reduction in the number of hearing days as well as the Tribunal’s ruling on the IL. Attachment 1 shall govern these proceedings leading up to and including the (now) eleven -day video hearing, commencing at 10 a.m. on Tuesday, January 31, 2023. 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://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

23Parties 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.

24Persons 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. The access code is 519-389-173.

25Individuals 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.

SETTLEMENT OPPORTUNITIES

26The Tribunal canvassed the Parties with respect to opportunities for resolution, reminding of the availability of Tribunal-assisted mediation. The Parties advised that, in the course of preparing for the hearings of the present appeal and the PTTW appeal, they will continue to pursue conversations which may, at some point result in a resolution of some or all of the issues in dispute. Parties are directed to advise the Tribunal should they reach a settlement on some or all of the issues resulting in the ability to release any or all of the days set aside for this hearing, so as to allow for a timely redistribution of those dates to other matters.

OTHER MATTERS

27The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

28The previously scheduled hearing shall commence on Tuesday, January 31, 2023 at 10 a.m., but the number of hearing days shall be reduced from 13 to 11. The hearing shall be governed by the Procedural Order and Issues List appended to this Order as Attachment 1.

29There will be no further notice and this Member is not seized but may be available for case management, should scheduling permit.

“S. Braun”

S. BRAUN

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

PROCEDURAL ORDER

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: CRH Canada Group Inc.

Subject: Request to amend the Official Plan - Failure of Township of Tiny to adopt the requested amendment

Existing Designation: 'Rural', 'Environmental Protection II' and 'Mineral Aggregate Resource II'

Proposed Designated: 'Mineral Aggregate Resources I'

Purpose: To permit the expansion of the existing gravel pit

Property Address/Description: 2 Darby Road

Municipality: Township of Tiny

Approval Authority File No.: ‘12/D09’ (DS #36243)

OLT Case No.: OLT-21-001605

Former LPAT File No.: PL180416

OLT Case Name: CRH Canada Group Inc. v. Tiny (Township)

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

Applicant and Appellant: CRH Canada Group Inc.

Subject: Application to amend Zoning By-law No. 06-001 and 30-77 - Refusal or neglect of Township of Tiny to make a decision

Existing Zoning: Rural (RU) Zone, Rural (A) Zone and Holding Low Hazard (OS4) Zone

Proposed Zoning: Mineral Aggregate (MAR) Zone and Extractive Industrial (M5) Zone

Purpose: To permit the expansion of the existing gravel pit

Property Address/Description: 2 Darby Road

Municipality: Township of Tiny

Municipality File No.: ‘12/D14’ (DS#36242)

OLT Case No.: OLT-21-001605

Former Lead LPAT Case No.: PL180416

Former LPAT File No.: PL180417

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

Referred by: CRH Canada Group Inc.

Objector: Blake & Brenda Anderson

Objector: Peter&Jeanette Anderson

Objector: Erin Archer

Objector: Murray Archer; and others

Applicant: Jessica Ferri

Subject: Application for a Class A licence for the removal of aggregate

Property Address/Description : 2 Darby Road

Municipality: Township of Tiny

OLT Case No.: OLT-21-001605

Former Lead LPAT Case No.: PL180416

Former LPAT File No.: MM210011

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The video hearing will begin on January 31, 2023 at 10 a.m.

3. The length of the hearing will be about 11 days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.

4. 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).

5. 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 (other than changes caused by the narrowing or resolution of issues) may have costs awarded against it.

6. 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 consent or by Order of the Tribunal.

7. 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.

8. 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

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered by November 2, 2022. 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.

10. Expert witnesses in the same field shall have a meeting on or before November 17, 2022 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all the parties and the Tribunal by December 2, 2022.

11. An expert witness shall prepare an expert witness statement, which shall include any reports prepared by the expert, and shall list any other reports or documents to be relied on at the hearing. Copies of this must be provided as in section [13]. 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.

12. 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 section [13]. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, including any documents the witness intends to rely on.

13. On or before December 16, 2022, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the Tribunal.

14. On or before December 16, 2022, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. Parties may provide to all other parties and file with the Tribunal a written response to any written evidence by January 16, 2023.

16. On or before January 24, 2023 the parties shall provide copies of their visual evidence to all the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. 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.

18. 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 that the written evidence is not part of their record or unless the Tribunal orders otherwise.

19. The parties shall prepare and file a hearing plan with the Tribunal on or before January 9, 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.

20. The parties shall cooperate to prepare a joint document book which shall be filed with the OLT case coordinator on or before January 24, 2023.

21. All filings shall be submitted electronically and in hard copy. 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 Rule 7.

22. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

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. If an unincorporated group wishes to become a party, 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, group 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). Subsection 33.2 of the Local Planning Appeal 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

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

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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

Counsel

CRH Canada Group Inc.

Jonathan W. Kahn Brittiny Rabinovitch

Federation of Tiny Township Shoreline Associations (“FoTTSA”)

Joseph Castrilli Jacqueline WIlson

Participants

1. Peter Anderson

2. Erin Archer

3. Rene Ariens

4. Balm Beach Community Association

5. David Barkey

6. Lynne Gibson

7. Mathew Lund

8. Nancy McBride

9. John D. Morgan

10. Bonnie Pauze

11. Jessica Staples-Campitelli

12. Christopher Williams

13. Annie Ritchie Nahuis

14. Yanina Zainkovskaya

15. William Shotyk

Attachment 2 Issues List

ISSUES LIST – CASE NO. PL180416

JANUARY 12, 2022

General Water Issues

1. Whether the elevation of the water table and the resulting proposed pit floor elevation have been reliably established for the Teedon Pit Extension?¹

2. Whether proposed measures for soil quality testing of imported aggregate and fill in site plan 2, condition 51 are adequate to prevent contaminated soils from being brought on-site and to protect off-site groundwater quality?²

3. Whether proposed measures for on-site fuel storage and truck refueling set out in site plan 2, condition 38 are adequate to prevent on-site fuel handling, storage, and servicing practices from impacting off-site groundwater quality?³

4. Whether the proposed spill response conditions (Nos. 54 to 59) are appropriate and adequate to prevent fuel spills from impacting off-site groundwater quality?⁴

5. Whether, in light of site plan 2, condition 50, there should be a condition prohibiting the importation of asphalt to the site for any purpose except road paving?⁵

6. Whether the use of provincially approved dust suppressants (other than water) should be prohibited in order to protect groundwater quality?⁶

7. Whether groundwater quality monitoring should be required for the site and, if so, what condition(s) should be imposed?⁷

8. Whether there is a potential for adverse water quality impacts from a combination of issues 3 to 8, above, on the domestic wells of local residents and what condition(s) should be imposed to mitigate such impacts?

9. Whether the proposed pit has a potential for adverse water quantity or water level impacts on the domestic wells or properties of local residents and, if so, what condition(s) should be imposed to mitigate such impacts?

10. Whether:

(a) the deeper downgradient groundwater resources in the area, including the area on French’s Hill, are sufficiently well understood to allow development of conditions for their protection; and

(b) the proposed pit has a potential for adverse water quality impacts on the deeper downgradient groundwater resources in the area and, if so, what condition(s) should be imposed to eliminate such potential?

Water Issues Arising under Aggregate Legislation

11. Whether the proposed operations will cause any possible effects on ground and surface water resources including drinking water sources which should lead the Tribunal to refuse the licence pursuant to section 12(1)(e) of the Aggregate Resources Act?

Water Issues Arising under Land Use Planning Legislation and Policies

12. Whether, in connection with the proposed official plan and zoning by-law amendments for the Teedon Pit Extension, there has been appropriate regard for the matters of provincial interest set out in section 2(a), (e), (h), and (o) of the Planning Act?

13. Whether the proposed Teedon Pit Extension is consistent with Policies 1.2.6.1, 2.2., and 2.5.2.2 of the 2020 Provincial Policy Statement concerning:

(a) avoidance/mitigation/minimization of potential adverse effects/risks to public health and safety;

(b) restriction in or near sensitive groundwater features in order to protect, improve, or restore these features and their related hydrologic functions;

(c) minimizing environmental impacts from mineral aggregate extraction.

14. Whether the proposed official plan and zoning by-law amendments conform with the policies of the County of Simcoe Official Plan, in particular sections 3.1.3, 3.3.16, 3.3.21, 3.3.22, 3.7.10, 3.8.13, 4.4.1, 4.4.6, 4.4.7, 4.5.1, 4.5.2, 4.5.6 and Schedules 5.2.1, 5.2.5 and 5.2.6?

15. Whether the proposed official plan and zoning by-law amendments conform with the Township of Tiny Official Plan, in particular sections A2.1, A2.2, A2.6, A.3 (EP2), B14.4.1, 14.4.2, C4, C9, and Schedule A?

16. Whether the proposal represents good planning and is it in the public interest?

17. Whether conditions of approval are appropriate should the Tribunal decide to approve the proposal and, if so, what form should they take in the official plan and zoning by-law amendments?

ATTACHMENT “A” TO ISSUES LIST

EXCERPTS FROM JANUARY 2021 TEEDON PIT EXTENSION SITE PLAN NOTES

ACCESS TO THE PIT

Item 1. 20. Aggregate from the pit may also be transferred to the adjacent Teedon Pit (Licence # 3670) for processing and washing.

EXTRACTION

Item 2. 21. The elevation of the established watertable ranges on site from +/- 236.5mASL to +/- 237.5mASL. The maximum depth of extraction is to remain 1.5m above the established watertable based on on-going monitoring.

IMPORTED MATERIALS

Item 3. 49. Aggregate may be imported onto the licensed property for processing and blending with on-site aggregate.

50. The storage of asphalt shall not be permitted on site.

51. Clean inert fill may be imported to facilitate the establishment of 3:1 (horizontal: vertical) slopes on the final pit faces. See page 4 of 4. The operator must ensure that the material is tested at the source, before it is deposited on site, to ensure that the material meets the Ministry of Environment, Conservation and Parks criteria under Table 1 of the Ministry of Environment, Conservation and Park’s soils, groundwater and sediment standards for use under Part XV.1 of the Environmental Protection Act. Sampling results will be provided to the Ministry of Natural Resources and Forestry or the Ministry of the Environment, Conservation and Parks upon request.

52. Notwithstanding the above, where the imported material is not being placed within 1.5 meters of the surface, the criteria under Table 1 for sodium absorption ratio and electrical conductivity do not have to be met.

FUEL HANDLING / STORAGE AND SERVICING

Item 4. 38. Fuel storage will be in above ground tanks certified in accordance with approved standards. Fuel storage will be located [in] proximity to the processing area. Refuelling by fuel trucks is also permitted.

SPILLS RESPONSE PLAN

Item 5. 54. All employees and contractors must obey the following instructions when handling potential contaminants on the licensed property.

55. All employees and contractors handling fuel and / or potential contaminants will be instructed as to the proper, safe handling of such fuels / contaminants.

56. Potential contaminants, i.e., fuel, will be stored and handled as required by provincial legislation.

57. All reportable spills or release of contaminants must be cleaned up immediately and transported to an approved waste disposal site by a licensed hauler. Any spill must be immediately contained to prevent further spread (i.e., excavate and contain oil soaked material in a loader bucket until disposal can be arranged).

58. All spills or release of contaminants must be immediately reported to the Ministry of the Environment, Conservation and Parks Spills Action Centre by telephone at 1-800-268-6060.

59. Employees and contractors working on site will be informed of the spills response plan and required to comply with these requirements.

EQUIPMENT TO BE USED ON SITE AND NOISE / AIR MITIGATION

Item 6. 34. Water or another provincially approved dust suppressant will be applied to internal haul roads and processing areas as often as required to mitigate dust.

WATER MONITORING

Item 7. 43. One year prior to extraction commencing, two additional monitoring wells shall be installed. One between MW9-18 and MW8-18 and the second shall be installed along the eastern edge of the extraction area. MW1-09, MW8-18, MW10D-18, MW5-18, MW-A and MW-B shall be monitored monthly for water levels. The monitoring wells shall be equipped with automatic water level recorders (AWLR) data loggers. See location of monitoring wells on monitoring well schematic this page.

44. MW9-18 shall be monitored quarterly for water levels until it is removed for extraction.

45. Extraction shall remain 1.5 metres above the established water table. In the event the water level data indicates the maximum depth of extraction is less than 1.5 metres above the established water table, the maximum depth of extraction shall be adjusted accordingly to maintain the 1.5 metre depth.

46. The operator shall maintain a record of the monitoring results to verify that extraction remains 1.5m above the established water table.

Attachment 3 Order of evidence

1. Evidence of CRH Canada Group Inc.

2. Responding evidence of Federation of Tiny Township Shoreline Associations

3. Reply evidence of CRH Canada Group Inc.

Footnotes

1. 1Attachment “A”, item 2, referring to January 2021 Teedon Pit Extension Site Plan, page 2, note 21.
2. 2Attachment “A”, item 3, referring to January 2021 Teedon Pit Extension Site Plan, page 2, notes 49, 51-52.
3. 3Attachment “A”, item 4, referring to January 2021 Teedon Pit Extension Site Plan, page 2, note 38.
4. 4Attachment “A”, item 5, referring to January 2021 Teedon Pit Extension Site Plan, page 2, notes 54-59.
5. 5Attachment “A”, item 3, referring to January 2021 Teedon Pit Extension Site Plan, page 2, note 50.
6. 6Attachment “A”, item 6, referring to January 2021 Teedon Pit Extension Site Plan, page 2, note 34.
7. 7Attachment “A”, item 7, referring to January 2021 Teedon Pit Extension Site Plan, page 2, notes 43-46. This issue may become moot for PL180416 if it is settled or fully adjudicated and decided upon in the related PTTW appeal (Case No. 21-030 now known as OLT-21-001908).