Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 27, 2023
CASE NO(S).: OLT-22-003971
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: 1142059 Ontario Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: to permit a proposed extraction operation
Reference Number: ACW Z07-21
Property Address: Concession 2 Eastern Division, Part Lots 14 and 15, RP 22R6090 Part 1 RP 22R6857 Parts 1 to 3
Municipality/UT: Ashfield-Colborne-Wawanosh/Huron
OLT Case No: OLT-22-003971
OLT Lead Case No: OLT-22-003971
OLT Case Name: 1142059 Ontario Limited v. Ashfield-Colborne-Wawanosh (Twp.)
Heard: September 25, 2023, by video hearing
APPEARANCES:
Parties
Counsel
1142059 Ontario Limited
Marc Kemerer
Township of Ashfield-Colborne-Wawanosh Friends of Ball’s Bridge and Little Lakes
Michael van Bodegom Christopher Manning David Donnelly
MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH AND C. HARDy ON September 25, 2023, AND ORDER OF THE TRIBUNAL
1This Decision arises from a second Case Management Conference (“CMC”) convened in the appeal filed by 1142059 Ontario Limited (“Appellant”) against the Township of Ashfield-Colborne-Wawanosh (“Township”) for failure to make a decision within the prescribed period of time on a Zoning By-Law Amendment application (“ZBA”), pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), respecting the property municipally known as Concession 2 Eastern Division, Pt. Lots 14 and 15, RP 22R6857 Parts 1 and 3 (“Subject Property”). The effect of the ZBA is to permit a proposed aggregate operation on the Subject Property.
2At the first CMC, this hearing was originally scheduled as a 10-day merit hearing notwithstanding a potentially pending appeal from a licensing application filed by the Appellant with the Ministry of Natural Resources and Forestry (“MNRF”) under the Aggregate Resources Act, R.S.O. 1990, c.A.8 (“ARA”). While there was opposition from the Friends of Ball’s Bridge and Little Lakes (“FOBBLL”), this Tribunal appropriately determined that it was reasonable to schedule a merit hearing giving the Parties approximately one year from the then scheduled date to review the results of the ARA matter and determine if consolidation or an order for a hearing together along with the present appeal should be sought (“Consolidation Order”), and/or whether revisions to the Procedural Order (“PO”) and Issues List (“IL”) was required.
3Unfortunately, the ARA matter was not referred to this Tribunal before the commencement of the merit hearing, as originally anticipated. Following what appears to be a series of discussions between the Parties respecting a motion for adjournment brought by FOBBLL, the Parties ultimately came to a consensus on the requested adjournment which was submitted to this Tribunal in advance of the hearing, on consent, and administratively granted (“Adjournment”). The merit hearing was thereby converted to this second CMC for the purpose of receiving a status update on the appeal, the ARA matter, prospects of mediation and the required next steps to progress the matter forward.
4Marc Kemerer, Counsel for the Appellant, advised that his client consented to the Adjournment as they agree that a Consolidation Order would be the most effective and efficient use of the time and resources of all Parties involved, including that of this Tribunal. Mr. Kemerer advised that he had been in contact with the MNRF and there is only one matter outstanding in the ARA matter that is anticipated to receive resolution in mid-October. Accordingly, Mr. Kemerer was optimistic that the ARA matter could be referred to this Tribunal by mid-November.
5Mr. Kemerer’s position was that a merit hearing on the present appeal, in contemplation of a potential consolidation with the ARA matter, could be scheduled for the Spring/Summer of 2024 to ensure the matters progress forward and to avoid his client further delay. Mr. Kemerer stated that any issues in the ARA matter have already been established and submitted through Objector Statements to the MNRF and are overlapping issues with those on the present appeal. As such, Mr. Kemerer was of the view that the hearing could be completed within the originally estimated 10-day time frame, notwithstanding additional Party-Objectors to the ARA matter, who he stated would be comprised mainly of the current members of the FOBBLL on the present appeal.
6Michael van Bodegom, for the Township, stated he had no further information to add to the status update on the ARA matter. The Township agreed with the efficiency in scheduling hearing dates at present, with any further potential issues being dealt with at a third CMC which could be scheduled in the early new year.
7David Donnelly, on behalf of the FOBBLL, strongly opposed the setting of hearing dates. Summarizing his reasons, Mr. Donnelly submitted that the optimism for the ARA referral was contemplated at the first CMC in October of 2022, however, has yet to be properly before the Tribunal. He submitted that the original scheduling of hearing dates and opposition to his client’s adjournment requests has resulted in the unnecessary expenditure of time and resources in preparing for a merit hearing that, in his view, was mistakenly scheduled by this Tribunal and incorrectly bifurcated from the pending ARA matter. Mr. Donnelly referred to the Ontario Land Tribunal Act, 2021, S.O 2021, c.4, Sched. 6, the OLT Rules of Practice, made under subsection 13(1) of the Ontario Land Tribunals Act, 2021, and the Consolidated Hearings Act, R.S.O. 1990, Chapter C.29.
8Referring to this legislative scheme, it was Mr. Donnelly’s position that it was outside of the Tribunal’s jurisdiction to schedule a consolidated hearing without the consolidation first taking place. He submitted that this falls outside the normal course of practice posing practical implications involving proper notice, implementation of a comprehensive PO/IL, potential conflict respecting the availability of added Parties to the ARA matter with hearing dates, and is a “dangerous precedent” to be avoided.
9Mr. Donnelly added that the ARA matter required proper notice to the relevant Parties in that matter, and an opportunity for the Parties to convene at a CMC to more thoroughly articulate and scope the ultimate issues in dispute.
10Following consideration of the Parties’ submissions and given the ARA matter has yet to be referred to this Tribunal over the course of this past year as originally anticipated, the Tribunal determined it would not set new hearing dates at this time. There now appears to be several issues on which the Parties are opposed (including if/when the consolidation may be granted, the number of independent Parties to the ARA matter and the list and scope of the ARA issues), that pose a challenge to determining if 10 days remains an appropriate length of time for the merit hearing.
11Notwithstanding its Ruling, this Panel expressly disagreed with Mr. Donnelly’s characterization of the decision to set hearing dates at the first CMC as a mistake or a “dangerous precedent”. It was entirely appropriate for this Tribunal to have done so at that time.
12The Mandate of this Tribunal is to fairly, effectively, and efficiently resolve disputes which includes progressing matters forward to their ultimate resolution and to avoid lengthy delays. In this regard, the Tribunal agrees with Mr. Kemerer that it is within the Tribunal’s jurisdiction, and standard practice, to schedule hearings where the Parties have agreed on a PO and IL while providing ample time for potentially pending related appeals to be referred and consolidated where the Tribunal considers it appropriate to do so. Unfortunately, as occurred in this case, there are instances where such a referral and/or consolidation may not occur in time prompting a further CMC to address such issues as they arise.
13As the referral of the ARA matter to this Tribunal remains pending and the Parties now appear to be in agreement on seeking consolidation, the Tribunal scheduled a third CMC to take place on Wednesday, January 17, 2024, pursuant to the details set out below. The Tribunal directed Mr. Kemerer to advise the Case Coordinator once the referral of the ARA matter occurs, so as to ensure that the first CMC in that matter is scheduled to be heard with the third CMC on the present appeal as scheduled.
14The Tribunal further directed that the Parties work cooperatively together on a revised draft PO and IL which is to be filed on or before Friday, January 12, 2024.
15On inquiry from Mr. Kemerer, and following submissions from the Parties, the Tribunal further endorsed that, should the ARA referral occur in November, and it is determined that there are no drastic changes to the IL, the Appellant is at liberty to request hearing dates in advance of the third CMC through the Case Coordinator. Any such request will be reviewed and determined administratively.
16On inquiry as to whether the Parties had contemplated mediation, the Tribunal was advised that all Parties were open to mediation. Mr. Donnelly added his position that a mediation would be most fruitful following referral of the ARA matter so that all issues could be discussed together.
17The Parties are reminded that if they wish to avail themselves of Tribunal-assisted mediation, arrangements can be made by reaching out to the Case Coordinator.
18On inquiry as to whether there were any other matters to be addressed by the Tribunal which might assist in the fair, just and expeditious resolution of this matter, the Partis indicated there were none.
THIRD CMC TECHNICAL DETAILS
19A third CMC will convene on Wednesday, January 17, 2024, by video hearing at 10 a.m. The CMC is scheduled to proceed by video as follows:
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
20Parties 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.
21Parties 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
22Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is the same as the access code noted above.
23Individuals 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 CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
24The Tribunal Orders:
a) A third CMC is to convene on Wednesday, January 17, 2024;
b) A revised draft Procedural Order and Issues List is due to be filed by the Parties on or before Friday, January 12, 2024;
25No further notice will be given.
26The Panel is not seized.
“N. Eisazadeh”
N. EISAZADEH
MEMBER
“C. Hardy”
C. HARDY
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.