Dewdney Mountain Farms Limited v. Trent Lakes (Municipality), 2023 CanLII 112321

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 20, 2023

CASE NO(S).: OLT-23-000354

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

Applicant/Appellant: Dewdney Mountain Farms Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBL to permit a quarry use and associated uses on the Subject Lands

Reference Number: ZBA 20-14

Property Address: 543 Ledge Road

Municipality/UT: Municipality of Trent Lakes

OLT Case No: OLT-23-000354

OLT Case Name: Dewdney Mountain Farms Limited v. Trent Lakes (Municipality)

Heard: November 3, 2023, by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
Dewdney Mountain Farms Limited (“Applicant/Appellant”)	David White
Municipality of Trent Lakes (“Municipality”)	John Ewart
Trent Lakes Concerned Citizens	Ian Flett

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON November 3, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a second Case Management Conference (“CMC”) concerning an appeal filed by the Applicant/Appellant regarding its property known municipally as 543 Ledge Road. The appeal arises following a non-decision by the Municipality with respect to a Zoning By-law Amendment (“ZBA”) application to amend the Municipality’s Comprehensive Zoning By-law No. B2014-070. The purpose of the proposed ZBA is to permit a proposed Quarry Operation use along with ancillary and accessory uses.

2The purpose of the present CMC is to consider a draft Procedural Order and Issues List and to set Hearing dates for the Merit Hearing.

PROCEDURAL ORDER AND ISSUES LIST

3The Tribunal received and reviewed a draft Procedural Order with Issues List from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule 1).

HEARING

4Upon the request of the Parties, the Tribunal set a five (5)-day Hearing commencing on Monday, May 6, 2024, at 10 a.m. by VH. No further Notice is required for the Hearing.

5Parties and Participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections.

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access Code: 344-779-885

6Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

7Persons 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 as indicated above.

8Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

9The Tribunal Orders that:

1. The date and particulars of the Hearing are set out above; and

2. The Procedural Order appended as Schedule 1 shall govern the proceedings.

10The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS MEMBER

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

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

SCHEDULE 1

CASE NO(S).: OLT-23-000354

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

Applicant/Appellant: Dewdney Mountain Farms Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBL to permit a quarry use and associated uses on the subject lands

Reference Number: ZBA 20-14

Property Address: 543 Ledge Road

Municipality/UT: Municipality of Trent Lakes

OLT Case No: OLT-23-000354

OLT Case Name: Dewdney Mountain Farms Limited v. Trent Lakes (Municipality)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on May 6, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/344779885

3. The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

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 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. The meaning of the terms used in this Order are set out in Attachment 4.

8. 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.

9. 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

10. If the Appellant intends to seek approval of a revised proposal at the Hearing, then the Appellant shall provide copies in accordance with paragraph 24 below of the revised proposal, including revised plans, drawings, proposed instruments and updated documents and reports to the other parties on or before February 12, 2024. The Appellant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

11. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before February 9, 2024 and in accordance with paragraph 24 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

12. Expert witnesses in the same field shall have a meeting on or before February 16, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before March 8, 2024.

13. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 15 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

14. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 15 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 15 below.

15. On or before February 23, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

16. On or before March 18, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. On or before April 1, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before April 22, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 23 below.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 26, 2024.

21. A person wishing to change written evidence without consent of the other parties, 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 29, 2024 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.

24. 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 the Rule 7.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized. So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

No.	Parties	Counsel / Representative*	Address/Phone/E-mail
1	Dewdney Mountain Farms Limited	David S. White, Q.C.	Devry Smith Frank LLP 100 – 95 Barber Greene Road Toronto, ON M3C 3E9 Tel: 416-446-5811 E-mail: david.white@devrylaw.ca
2	Municipality of Trent Lakes	M. John Ewart	Ewart O’Dwyer 311 George Street North, Suite 103 Peterborough, ON K9J 3H3 Tel: 705-874-0404 ext. 231 E-mail: jewart@ewartodwyer.com
3	Trent Lakes Concerned Citizens (“TLCC”)	Eric K. Gillespie	Eric K. Gillespie Professional Corporation 160 John Street, Suite 300 Toronto, ON M5V 2E5 Tel: 416-703-6362 E-mail: egillespie@gillespielaw.ca

No.	Participants	Counsel / Representative*	Address/Phone/E-mail
4	Neal McCarthy	Self-represented	Tel: 647-927-9788 E-mail: neal@rjm56.com
5	1000190777 Ontario Inc. (“777”)	Self-represented
6	1000190778 Ontario Inc. (“778”)	Self-represented
7	1000190781 Ontario Inc. (“781”)	Self-represented
8	Rebecca Jory	Self-represented	Tel: 705-738-9755 E-mail: rjory@live.com

ATTACHMENT 2

ISSUES LIST

1. Has it been demonstrated that the proposal will not result in unacceptable traffic operations, safety or noise impacts?
2. Has the applicant addressed the mitigation of impacts on Ledge Road and Quarry Road as a result of truck movements and quarry operations?
3. Have the requirements of the haul route with respect to its intersection with County Road 36 been satisfactorily addressed, including those requirements of the County?
4. Has the applicant demonstrated that appropriate mitigation measures will be implemented to address impacts along the external haul routes, including: i. risks with regard to the use of Ledge Road and Quarry Road by heavy trucks; ii. operational limitations due to the road geometry; iii. conflict and safety with respect to private access to public roads; iv. the use of public roads by school buses; v. the use of public roads by other road users (eg. pedestrians, cyclists, etc.); vi. Noise impacts?
5. Has the applicant demonstrated that the use of the deviated section of Ledge Road, which is considered a “forced road” is appropriate in terms of: i. ownership of the right-of-way; ii. width of right-of-way; iii. width of the existing road platform; and iv. ability to improve the road as required to support its use as a haul route?
6. Has the applicant identified and investigated alternative haul routes in consideration of the noted concerns and impacts, specifically limitations to the use of the deviated section of Ledge Road? Can the proposed upgrades and mitigation to the haul route be accommodated within the municipal right-of-way, including the municipally maintained section of the forced road? If not, what is an appropriate alternative haul route to transport aggregate from this site to market.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Appellant/Applicant – Dewdney Mountain Farms Limited
2. Responding Municipality – Municipality of Trent Lakes
3. Respondent Party – Trent Lakes Concerned Citizens

ATTACHMENT 4

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so).

Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

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

Additional Information

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

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.