St. Mary's Cement Inc. (Canada) & Rosedale Securities Limited v. Wellington (County), 2023 CanLII 123189

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 18, 2023

CASE NO(S).: OLT-22-004749

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

Applicant and Appellant: St. Mary's Cement Inc. (Canada) & Rosedale Securities Limited Subject: Official Plan Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, and 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: OP-2020-04 OLT Case No.: OLT-22-004749 OLT Lead Case No.: OLT-22-004749 OLT Case Name: St. Mary's Cement Inc. (Canada) & Rosedale Securities Limited v. Wellington (County)

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

Applicant and Appellant: St. Mary's Cement Inc. (Canada) & Rosedale Securities Limited Subject: Zoning Bylaw Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, and 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: D14-CBM OLT Case No.: OLT-22-004750 OLT Lead Case No.: OLT-22-004749 OLT Case Name: St. Mary's Cement Inc. (Canada) & Rosedale Securities Limited v. Puslinch (Town)

Heard: October 19 and November 6, 2023 by Video Hearing

APPEARANCES:

Parties Counsel

St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited Jonathan Kahn David Hillier

Township of Puslinch Kevin Thompson Jamie Cockburn

County of Wellington Peter Pickfield

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON NOVEMBER 6, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a third Case Management Conference (“CMC”) held on October 19 and November 6, 2023, in respect of the appeals filed by St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited (“Appellants”) against the Township of Puslinch (“Township”) for its failure to make a decision on an application to Amend the Zoning By-law (“ZBA”) within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Planning Act”) and against the County of Wellington (“County”) for its failure to make a decision on an application for an Official Plan Amendment (“OPA”) within the timeframe prescribed in the Act (collectively, the “Appeals”). The lands that are the subject of the applications are located at 4222, 4228, and 4248 Sideroad 25 South in the Township of Puslinch (“Subject Lands”).

2The proposed OPA is to amend the County Official Plan to expand the Mineral Aggregates Resources Overlay to include a portion of the Subject Lands and to redesignate a portion of the Subject Lands from Greenlands to Secondary Agricultural and to redesignate a further portion of the Subject Lands from Secondary Agricultural to Greenlands. Additionally, the proposed ZBA includes rezoning the Subject Lands to allow aggregate extraction. The effect of the OPA and ZBA would be to permit the expansion of the existing gravel pit that abuts to the north of the Subject Lands.

3At the first CMC, the Tribunal (differently constituted) scheduled a nine-day hearing on the merits beginning March 18, 2024 (“Hearing”). At the second CMC, the Tribunal (differently constituted) scheduled a third CMC in order to finalize and approve the Procedural Order, including the Issues List, with respect to the Hearing.

4In advance of the third CMC, the Township of Puslinch served and filed a Notice of Motion (“Motion”) seeking an adjournment of the Hearing until such time as the Minister of Natural Resources and Forestry makes a decision to either refer or elect not to refer any part of the Appellants’ application pursuant to the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended (“ARA”), for a Class A (Category 1 – Pit Below Water) licence to excavate aggregate from a pit on the Subject Lands (“ARA Licence Application”).

5The County served and filed a Response to Motion in support of the Motion, and the Appellants served and filed a Response to Motion in opposition to the Motion.

6The following documents were entered as Exhibits in Evidence with respect to the Motion:

Exhibit 1 – Motion Record of the Township of Puslinch dated October 4, 2023, including the affidavit of Robert Stovel sworn October 4, 2023 (the “Stovel Affidavit”)

Exhibit 2 – Response to Motion of the County of Wellington, dated October 12, 2023

Exhibit 3 – Response to Motion of St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited dated October 12, 2023, including the affidavit of Neal DeRuyter sworn October 12, 2023 (the “DeRuyter Affidavit”)

Exhibit 4 – Supplementary Response to Motion of St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited dated October 17, 2023, including the second affidavit of Neal DeRuyter sworn October 17, 2023 (the “Second DeRuyter Affidavit”)

Exhibit 5 – Book of Authorities of the Township of Puslinch, dated October 16, 2023

Exhibit 6 – Book of Authorities of St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited dated October 18, 2023

7At the conclusion of submissions and consideration of the evidence on the Motion, the Tribunal rendered an oral decision denying the Motion with a brief overview of reasons and the Hearing will proceed, as scheduled, to commence on March 18, 2024. The following is a written memorandum of that decision.

THE TOWNSHIP’S POSITION ON THE MOTION

8The Township submitted that Rule 17.5(f) of the Tribunal’s Rules of Practice and Procedure (“OLT Rules”) states that the Tribunal “may grant an indefinite adjournment if the Tribunal finds no substantial prejudice to the other parties or to the Tribunal’s schedule and the Tribunal concludes the request is reasonable for the determination of the issues in dispute.”

9The Township submitted that an indefinite adjournment of the Hearing until such time as the ARA Licence Application is referred to the Tribunal by the Minister is “reasonable for the determination of the issues in dispute” as it would enable the Tribunal to conduct one hearing that considers all issues of the “inextricably intertwined” aspects of the ARA Licence Application, the OPA, and the ZBA and results in a comprehensive determination of the Appeals and the ARA Licence Application referral. Moreover, it avoids the potential for duplicative proceedings (i.e., the Hearing and, subsequently, a hearing on an ARA Licence Application referral if such referral occurs) or scenarios of additional efforts and cost, including the need to re-draft witness statements and other documents for the Hearing, bring motion(s) to amend the Issues List of the Procedural Order, or request a last-minute or mid-hearing adjournment of the Hearing, depending on if or when the Minister refers the ARA Licence Application to the Tribunal.

10The Township submitted that the ARA Licence Application was posted to the Environmental Registry of Ontario in March 2021 and remains so posted with the status of “proposal stage” at this time. The County submitted an objection letter to the MNRF in April 2021 and the County is the only objector to the ARA Licence Application (see the Stovel Affidavit, Paragraph 15).

11The County’s objection is summarized in its letter dated November 8, 2022, to the Appellants (see the Stovel Affidavit, Exhibit “E”):

The County objected to issuance of a license on the subject lands “until such time that the municipal planning process has concluded and the required approvals are in place.” Through the review of both the County Official Plan and Township Zoning By-law amendment applications, planning staff were generally in support of both applications provided that the technical issues related to potential impacts were addressed, in part, through the inclusion of specific consultant requested notes on the final site plan package to be submitted to the Minister for approval. It is also understood that the local municipality has raised concerns regarding road safety and compliance issues for the subject lands which have not yet been resolved.

Since the issuance of the County’s objection letter, an appeal for a non-decision under Section 17(40) and 34(11) of the Planning Act for both the Official Plan and Zoning By-law Amendment were received from CBM Aggregates. As such, the necessary planning approvals are not in place. Accordingly, the County maintains its objections to this application until the planning approvals are in effect and the aforementioned items, in addition to the concerns raised by the local municipality, are addressed.

12The Township submitted that both the County and the Township each requested that the Minister of MNRF (“Minister”) refer the ARA Licence Application to the Tribunal (see the Stovel Affidavit, Exhibits “C”, “D” and “E”). The Township has made numerous inquiries of MNRF staff in an effort to determine the potential timing of the Minister’s consideration of whether to refer the ARA Licence Application to the Tribunal without obtaining any firm timeline and noted that the procedural aspects of consultation with the Aboriginal communities in connection with the ARA Licence Application are delegated to the proponent, i.e., the Appellants (see the Stovel Affidavit, Paragraphs 18 to 20).

13The Township submitted that MNRF staff advised Township and County representatives at a video meeting in September 2023 that “if and when the Duty to Consult [Aboriginal communities] has been fulfilled by the [Appellants]”, then MNRF staff “would be recommending that the Minister refer the matter to the Tribunal in light of the County’s objection” (see the Stovel Affidavit, paragraph 21).

14The Township submitted that there could be “significant adverse consequences” if the Hearing proceeds in the absence of the Minister’s referral decision in the following scenarios:

a. If the MNRF refers the ARA License Application after the Procedural Order and Issues List are finalized, the Township and County may need to bring a motion to add any ARA-related issues that cannot be included in an issues list at this time;

b. If witness statements are already prepared/exchanged, the parties would need to redraft witness statements to address ARA matters/issues or bring a motion to vary the procedural order exchange dates to permit late filing of evidence. Depending on how soon before the hearing this occurs, a last-minute adjournment may be necessary;

c. More concerning would be a scenario where the referral occurs on the eve of the March 2024 hearing (or during the hearing), as an adjournment at that time would likely be the only appropriate remedy in any event to consider if the matters ought to be consolidated. In such an event, all parties would be highly prejudiced, as materials would have already been filed and potentially some evidence heard.

d. in the most extreme example of prejudice, the referral could happen after the 9-day merits hearing has concluded and a decision has been issued or remains under reserve with respect to the OPA/ZBLA. In that case, a second hearing would need to occur specifically on the ARA License Application, potentially before a different panel of the Tribunal, which would require the submission of highly duplicative evidence. (see Township Motion Record, Paragraph 20)

15The Township submitted that there is “no substantial prejudice” to the Appellants if the indefinite adjournment is granted as the Appellants would require both approval of the OPA and ZBA as well as approval of the ARA Licence Application in order to commence the proposed use. As such, proceeding with the Hearing and the potential outcome that the OPA and ZBA are approved will not in and of itself result in the Appellants being in a position to commence the permitted use. If an indefinite adjournment is granted, the parties could act expeditiously to request a CMC and the earliest possible hearing dates forthwith upon the Minister making a decision on whether or not to refer the ARA Licence Application. If the ARA Licence Application is referred to the Tribunal, then the Township would seek a consolidation order in respect of the Appeals and the ARA Licence Application referral.

16The Township acknowledged that there is no legislation that requires a hearing on the merits of the Appeals and a referral of the ARA Licence Application to be heard at the same hearing. Rather, Subsection 11(7) of the ARA states that the Tribunal “may consider” [emphasis added] an ARA application and objections referred to the Tribunal and a “related appeal to the Tribunal under the Planning Act” at the same hearing.

17The Township referred to the decision arising from the second CMC in these proceedings, in which Vice-Chair Sills notes:

6The Tribunal agrees that it is logical and typical for an ARA licence application referral and any related OPA and ZBA appeals to be heard together/consolidated. In this case, there is a known probability that the licence application will be referred to the Tribunal.

7In that regard, where an ARA licence application is referred to the Tribunal, an Objector to the licence is for all intents and purposes entitled to maintain party status in the hearing and among other things, is entitled to identify and request the inclusion of issues in the PO. In the circumstances, the IL, and by extension the PO, cannot be finalized until after the ARA license application is referred to the Tribunal. Moreover, should the ARA license ultimately be refused the OPA and ZBA will be superfluous.

8Notwithstanding that the PO cannot be finalized until the matter of the ARA licence application is referred to the Tribunal, no adjustments to the scheduling of the merit hearing (March 18, 2024) are necessary at this time.

18The Township provided caselaw including decisions in which parties consented to a consolidation of Planning Act appeals and ARA licence application referrals (for example, CBM St. Mary’s Cement Inc. v. Wellington (County) 2018, PL171378, Exhibit 5, Tab 1) or consented to not proceed to a hearing until the Minister’s referral decision on an ARA licence application had been made (see Lippa v. Muskoka Lakes (Township) 2019 LPAT PL170824, Exhibit 5, Tab 3) but acknowledged that it was unable to provide the Tribunal with caselaw that granted an indefinite adjournment in a contested motion in order to await the outcome of the Minister’s decision on whether or not to refer an ARA licence application. The Township asserted, however, that the reason for this lack of caselaw is because parties typically consent to an indefinite adjournment in such circumstances because it is appropriate to hear official plan and zoning by-law amendment appeals together with an ARA licence application referral.

THE COUNTY’S RESPONSE TO THE MOTION

19The County supported and adopted the position of the Township on the Motion. The County submitted that there is the potential for inconsistent findings if the Appeals are adjudicated prior to a referral of the ARA Licence Application, as there will need to be various assumptions made with respect to the Appeals, such as mitigation measures, that are unknown with respect to inclusion in any licence that might be issued as a result of the ARA Licence Application. Indeed, the County noted that it would seek to include the following issue in the Issues List as part of the Procedural Order approved for the Hearing:

Have appropriate changes/conditions, as recommended by technical reviewers through the planning and approval process, been incorporated into the ARA Site Plans for the proposed Mineral Aggregate Operation to satisfy the PPS, Growth Plan and the applicable policies of the County Official Plan as identified in the above issues?

20The County submitted that the hearing together or consolidation of the ARA Licence Application and the Appeals “would be consistent with long-standing Tribunal practice, and the guidance provided in Tribunal decisions on motions to consolidate or hear matters together.” Moreover, the County noted that Section 12(2) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, as amended (“OLT Act”) states:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

21If the adjournment is not granted and the Hearing proceeds before a referral of, or a decision not to refer, the ARA Licence Application, then the County submits that the following prejudice to the County would result:

a) The County’s interrelated planning and licence issues will not be fully and fairly addressed;

b) The County would be required to expend resources on a second hearing on the related ARA Licence Application issues; and,

c) There is the potential for duplicative evidence and inconsistent findings in the two required hearings.

THE APPELLANTS’ RESPONSE TO THE MOTION

22The Appellants submitted that the request for an indefinite adjournment is not “reasonable for the determination of the issues in dispute” as required by Rule 11.5(f). The “issues in dispute” pertain to the Appeals only as the Tribunal does not have jurisdiction over the ARA Licence Application presently. As such, the Township through its Motion is asking the Tribunal to “prejudge” the need for consolidation of that Application with the Appeals by granting an indefinite adjournment that presumptively concludes that the criteria for consolidation have been met without any knowledge of the issues identified by the Minister in the referral or indeed whether the Minister will even decide to refer the ARA Licence Application to the Tribunal.

23The Appellants submitted that no decision has been made by the Minister as yet regarding whether or not to refer the ARA Licence Application to the Tribunal, and MNRF has no timeline for such a decision (see the Second DeRuyter Affidavit, Paragraphs 2 and 3).

24The Appellants disagreed with the submission made by the Township and the County that proceeding with the Hearing of the Appeals alone could result in inconsistent decisions if there is a subsequent referral of, and Tribunal decision regarding, the ARA Licence Application. The Appellants submitted that there would be no possible inconsistency as Section 12.1 of the ARA prohibits the issuance of a licence if the applicable zoning by-law prohibits the subject lands from being used for the making, establishment, or operation of pits and quarries.

25The Appellants also submitted that the County’s planners prepared a Recommendation Report for the Township’s Council dated July 13, 2022, which stated that “the technical aspects of the ARA Application including ecology, hydrogeology, noise and engineering have been addressed, and that public comments and concerns have also been addressed. It identified some items to be included on the draft site plan – all of which [the Appellants] subsequently added and shared with the Township and the County.” Moreover, this Report “concluded that St. Marys’ development proposal represented appropriate development consistent with Provincial policy and the County’s Official Plan.” (see the DeRuyter Affidavit, Paragraphs 10 to 14 inclusive). The Appellants noted that the County’s objection to the ARA Licence Application is the only outstanding objection, and its objection is that the Planning Act approvals are not in place.

26The Appellants submitted that Subsections 11(5) and (7) of the ARA state, respectively, that the Minister “may”, not “shall”, refer an ARA Licence Application to the Tribunal, and if the Minister does so, the Tribunal “may”, not “shall”, hear an ARA licence application referral and Planning Act appeals in the same hearing. Planner DeRuyter opined that “[w]hile in my experience zoning appeals and ARA referrals are often heard together, this is not always the case. There are situations where the zoning hearing is held in advance of the ARA licensing referral. Indeed, in some municipalities aggregate resources are ‘pre-zoned’ and the ARA licence application can come later.” (see DeRuyter Affidavit, Paragraph 14)

27The Appellants submitted that the “principle of land use” may be considered independently of the ARA Licence Application. The Appellants cite the LPAT decision of Kevin Matthews/Robin Latimer v. Gorham (Township) 2020 CanLii 32070 (LPAT) which states: “It is well-established by previous OMB and LPAT Decisions that the principle of the land use must be established prior to the issuance of an ARA licence.” (supra, Paragraph 107).

28The Appellants submitted that there would be substantial prejudice to them if the indefinite adjournment is granted as there is a cost to the Appellants for the delay in pursuing the planning permissions sought by the Appeals. They submitted that it is unknown when or if the Minister might refer the ARA Licence Application to the Tribunal and, if so, the nature of the referred issues. The Appellants noted that the Appeals were brought pursuant to the statutory rights of the Appellants pursuant to the Planning Act for “lack of decision” and there is no principle of law that a proponent cannot obtain a planning permission prior to applying for or obtaining an ARA licence.

29The Appellants also referred to Subsection 12(2) of the OLT Act and submitted that the Tribunal must adopt, “in respect of each proceeding,” any practices and procedures that, in the Tribunal’s opinion, offer the “best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.” [emphasis added] The Appellants submitted that the subject proceedings pertain to the Appeals and that there is substantial prejudice, including costs of delay to the Appellants if the Hearing is adjourned indefinitely.

ANALYSIS AND FINDINGS

30Pursuant to Rule 17.5(f) of the OLT Rules, the Tribunal may grant an indefinite adjournment if the following criteria are satisfied:

(a) The Tribunal finds no substantial prejudice to the other parties [emphasis added] or to the Tribunal’s schedule; and,

(b) The Tribunal concludes that the request is reasonable for the determination of the issues in dispute.

31Subsection 12(2) of the OLT Act states:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

32All of the parties agreed that the Motion is not a request for consolidation of the Appeals with the ARA Licence Application as this is not possible; the ARA Licence Application is not a proceeding before the Tribunal currently nor is it known if or when it may become a proceeding before the Tribunal.

33All of the parties acknowledged that there is no case law in which an indefinite adjournment was granted on a contested motion.

34The Appellants have submitted that there is a cost to them if the indefinite adjournment is granted and, as a result, there is a delay in the Hearing and a decision on the merits of the Appeals. The Appeals were made in October 2022 for a lack of decisions by the County and the Township. The Motion is not to adjourn to a fixed date (this is not possible as the timing of the Minister’s decision on the ARA Licence Application is unknown), but rather to adjourn indefinitely. Given the timeline of proceedings of the Appeals and the Appellants’ submission regarding the cost of delay, the Tribunal finds that there is substantial prejudice to the Appellants if an indefinite adjournment is granted.

35With regard to the first criterion in Rule 17.5(f), the Tribunal notes that the Tribunal may grant the indefinite adjournment if it finds no substantial prejudice to the other parties. Accordingly, the criterion is not whether the moving party (i.e., the Township) will suffer substantial prejudice if the indefinite adjournment is not granted. Even if it is assumed that the criterion entails consideration of the moving party’s potential prejudice, the Tribunal finds that this potential prejudice is speculative and, at most, may amount to the potential cost of a second separate hearing with respect to the ARA Licence Application if the Minister makes a referral and, if so, to the extent of the issues that are the subject of the referral. Similarly, the “other” party, the County, made submissions regarding speculative, potential prejudice involving potentially duplicative evidence and proceedings as well as a potential adjournment on the eve of, or during, the Hearing if the Minister decides to refer the ARA Licence Application at that time. This potential prejudice to the Township or the County may be contrasted with the actual prejudice to the Appellants if the indefinite adjournment is granted.

36With regard to the second criterion of Rule 17.5(f), the Tribunal must consider whether the request for an indefinite adjournment is reasonable for the determination of the issues in dispute. While the Tribunal observes in obiter that there are potential efficiencies in Planning Act and ARA proceedings being consolidated or heard together in one hearing (if all of those proceedings are before the Tribunal), the Tribunal finds that it is not reasonably necessary in order to conduct an effective hearing on the merits of the Appeals including consideration of the applicable criteria, tests, and planning documents under the Planning Act.

37There was evidence on the Motion that there are municipalities in which lands are “pre-zoned” to permit aggregate activities without any pending ARA licence application under consideration (see DeRuyter Affidavit, Paragraph 14). Moreover, case law was provided (albeit in a settlement hearing) in which a zoning by-law amendment was approved by the Tribunal without a pending ARA licence application before it (see 747752 Ontario Ltd. V. North Dumfries (Township) 2023 CanLII 92343 (OLT), Exhibit 6, Tab 2). This finding is consistent with subsection 11(7) of the ARA which states that the Tribunal “may”, not “shall”, hear an ARA licence application referral and Planning Act appeals in the same hearing. Moreover, the Appellants have statutory appeal rights pursuant to the Planning Act which are unfettered by any statutory proviso or condition that links the exercise of those appeal rights to any potential referral of a related ARA licence application.

38The Tribunal may conduct a hearing on the merits of the Appeals with the required consideration of the criteria, tests, and associated planning documents pursuant to the Planning Act without the ARA Licence Application before it, and the Township and the County will have full opportunity to provide evidence and submissions in this regard. Indeed, as noted in Matthews/Latimer v. Gorham (Township) [supra, paragraph 107], “it is well established by previous OMB and LPAT Decisions that the principle of the land use must be established prior to the issuance of an ARA licence” and the fact that an ARA licence is required before commencing the activity “does not relieve the [approval authority under the Planning Act] from determining the principle of the proposed land use for the purposes of determining whether the proposed [zoning by-law amendment] is consistent with the [Provincial Policy Statement] and conforms with the Official Plan.” This is consistent with the rationale of section 12.1 of the ARA, which prohibits the issuance of a licence for a pit or quarry if the applicable zoning by-law prohibits the making, establishing or operation of pits and quarries.

39For the foregoing reasons, the Tribunal concludes that the request for an indefinite adjournment is not reasonable for the determination of the issues in dispute pertaining to the Appeals.

40Subsection 12(2) of the OLT Act requires the Tribunal, in respect of each proceeding, to adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings. The Appeals are the only proceedings before the Tribunal at this time. With reference to the reasons and findings above with respect to the substantial prejudice to the Appellants and that a hearing on the merits of the Appeals may proceed without the ARA Licence Application before the Tribunal, the Tribunal is of the opinion that denying the Motion and proceeding with the Hearing offers the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings. If there is a referral of the ARA Licence Application at some point pertinent to the Hearing of the Appeals, then the Tribunal may address those circumstances at that time in a manner that, in the opinion of the Tribunal, offers the best opportunity for a fair, just, and expeditious resolution of the merits of the referral proceedings and the Appeals.

PROCEDURAL ORDER

41The parties submitted a draft Procedural Order including Issues List (the “PO”) on consent save and except for the following draft issue proposed by the Township and opposed by the Appellants:

Is the proposed receiving/processing pit (McNally Pit – ARA licence 5497) in compliance with its approved Site Plans and Permit-to-take-Water? If not, is it appropriate to approve an expansion of the Lanci Pit so long as McNally Pit will be used for processing aggregate extracted from the Lanci Pit?

42The Township submitted that the Township has compliance concerns pertaining to the McNally Pit currently. The Township has contacted Provincial enforcement staff of the MNRF and the Ministry of Environment, Conservation and Parks (the “MECP”) regarding these concerns, but the Township has not received information from those Ministries regarding the outcome of any inspections, including any enforcement steps, in response to the Township’s concerns. The Township submitted that an approval of the expansion of the Lanci Pit is not appropriate while these concerns remain unaddressed and, in this regard, noted that section 12 of the ARA with respect to the issuance or refusal of a licence refers to “the applicant’s history of compliance if a licence or permits has previously been issued to the applicant.” The Township acknowledged that the concerns do not relate to consideration of the applicable criteria, tests, and planning documents under the Planning Act in relation to the Appeals.

43The Appellants submitted that matters of compliance and enforcement of licences and permits pursuant to the ARA and the other applicable provincial legislation pertaining to the McNally Pit are not relevant to a consideration of the merits of the Appeals nor does the Tribunal have jurisdiction to make findings of such compliance in its consideration of the Appeals. The Appeals pertain to land use planning matters concerning the Subject Property, while compliance concerns regarding licences and permits pertain to individuals who hold such licences or permits. While it may be contemplated that aggregate extracted from the Subject Property may, subject to all required approvals, be received and processed at the McNally Pit, it is not a land use planning consideration in respect of the Subject Property.

44While the Tribunal understands that to date the Township has not been satisfied with the consideration of its compliance concerns as communicated to the MNRF and the MECP regarding the McNally Pit, the Tribunal found that this issue is not relevant to consideration of the land use planning merits of the Appeals and directed that the draft issue in this regard be deleted from the PO. The Tribunal directed the parties to submit a revised draft PO to the Tribunal for its consideration, and the PO attached as Schedule “A” to this Decision is approved.

ORDER

45THE TRIBUNAL ORDERS that:

a) The Motion seeking an indefinite adjournment of the Hearing is denied, and the Hearing on the merits of the Appeals will commence on March 18, 2024, as scheduled.

b) The Procedural Order attached as Schedule “A” to this Order is approved.

c) This Member is not seized in this matter but may be available for further case management purposes, subject to scheduling availability.

“D. Arnold”

D. ARNOLD 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.

Schedule “A” – Procedural Order

Procedural Order

CASE NO(S).: OLT-22-004749

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

Applicant and Appellant: St. Marys Cement Inc. (Canada) & Rosedale Securities Limited Subject: Official Plan Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, & 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: OP-2020-04 OLT Case No.: OLT-22-004749 OLT Lead Case No.: OLT-22-004749 OLT Case Name: St. Marys Cement Inc. (Canada) & Rosedale Securities Limited v. Wellington (County)

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

Applicant and Appellant: St. Marys Cement Inc. (Canada) & Rosedale Securities Limited Subject: Zoning Bylaw Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, & 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: D14-CBM OLT Case No.: OLT-22-004750 OLT Lead Case No.: OLT-22-004749 OLT Case Name: St. Marys Cement Inc. (Canada) & Rosedale Securities Limited v. Puslinch (Town)

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 Monday, March 18, 2024, at 10 a.m. by videoconference.

3. The parties’ initial estimation for the length of the hearing is 9 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.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no additions to this list unless the Tribunal permits, and a party who asks for additions 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. 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 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 Monday, November 20, 2023, and in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, December 22, 2023, 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 Thursday, January 18, 2024.

11. 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 13 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.

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 paragraph 13 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 13 below.

13. On or before Thursday, February 8, 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 22 below.

14. On or before Thursday, February 8, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Monday, February 12, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, March 8, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence before Monday, March 4, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, March 8, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, March 11, 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.

22. 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.

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

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES COUNSEL

St. Marys Cement Inc. (Canada) & Rosedale Securities Limited Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 Toronto, ON N5L 1A9 Jonathan Kahn Email: jonathan.kahn@blakes.com Tel: 416-863-3868

County of Wellington Garrod Pickfield 9 Norwich St. W. Guelph, ON N1H 2G8 Peter Pickfield Email: Pickfield@garrodpickfield.ca Tel: 519-837-0500

Township of Puslinch SmithValeriote Law Firm LLP 245 Hanlon Creek Blvd Suite 102 Guelph, ON N1C 0A1 Kevin Thompson Email: kthompson@svlaw.ca Tel: 519‑821‑4146

Participants

1. John McNie johnmcnie@hotmail.com
2. Crieff Hills Retreat Centre (c/o Kristine O’Brien) director@crieffhills.com

ATTACHMENT 2

Township of Puslinch / County of Wellington

Issues List

Land Use Planning

1. Do the proposed amendments to the County of Wellington Official Plan (the “OP”) and Township of Puslinch Zoning By-law (the “ZBL”) have appropriate regard for the matters of provincial interest set out in section 2 of the Planning Act, in particular subsections 2(a), 2(b), 2(c), 2(d), 2(f), 2(h), 2(n), 2(o)? (County/Township)

2. Are the proposed amendments to the OP and ZBL consistent with Provincial Policy Statement 2020, in particular policies 1.1.1(c) & (h), 1.1.4.1, 1.1.5.1, 1.1.5.2, 1.2.1(c) 1.2.6.1, 2.1, 2.2.1, 2.2.2, 2.5.2.1, 2.5.2.2, 2.5.3, 3.2.1 and 3.2.2, and is the proposed extraction undertaken in a manner that minimizes social impacts on the people living within the community? (County/Township)

3. Do the proposed amendments to the OP and ZBL conform with policies 2.2.9.3, 4.2.1, 4.2.4.1 to 4.2.4.3, 4.2.6.3 and 4.2.8 of the Growth Plan for the Greater Golden Horseshoe, 2020? (County/Township)

4. Do the proposed amendments to the OP and ZBL conform with the County of Wellington Official Plan, and in particular policies 4.9.5, 4.9.5.9, 5.5.4, 5.6.1, 5.6.2, and 6.6? (County/Township)

5. If the Tribunal allows the appeal in whole or in part, what is the appropriate form of the zoning by-law amendment? Should a holding provision be imposed until necessary regulatory approvals (e.g., Endangered Species Act) have been obtained? Should a holding provision be imposed until a development/road agreement is entered into with the Township? (Township)

6. Has the applicant demonstrated that the mitigation measures which it proposes to incorporate into the development proposal to address potential impacts on sensitive land uses and the natural environment are sufficient to satisfy the applicable policies, as identified in the above issues, of the PPS, Growth Plan and the County Official Plan? (County)

7. Should a survey by an Ontario Land Surveyor be undertaken to delineate the boundaries of the proposed Extractive zone, Agricultural zone and Natural Environment zone on the subject property?

Noise

8. Have the potential noise impacts been appropriately assessed, modelled and considered, including but not limited to rock trucks? (Township)

9. Have all potential noise receptors been accounted for? (Township)

10. Has the applicant adequately described the number, type, and model of equipment to ensure that the assumptions in the Golder Noise Impact Assessment are valid? (Township)

Traffic/Access/Road Safety

11. Has the applicant demonstrated that the proposal will not result in unacceptable traffic operation or safety impacts from trucks crossing Concession 2, including: i. Risks of mud-tracking, siltation, and road damage such a potholes; ii. Conflict and safety for other vehicles using Concession 2; and, iii. Safety for active transportation users?

12. Can the applicant and, if so, should the applicant be required to enter into a development or road agreement for Concession 2 to address matters of indemnification, insurance, cleaning, maintenance and repair, traffic control, traffic lighting, signage, restrictions on crossing times (e.g. sunrise-sunset), restrictions on crossings per hour/day, a complaint/response procedure, and any necessary upgrades to Concessions 2 and/or the entrance/exit to the subject property, including the driveway/apron, etc.? (Township)

Dust

13. Has the applicant appropriately considered dust impacts and mitigation, including for any truck haulage through the existing Lanci Pit and including proposed road crossings by trucks? Township)

ATTACHMENT 3

ORDER OF EVIDENCE

1. St. Marys Cement Inc. (Canada) & Rosedale Securities Limited
2. Township of Puslinch
3. County of Wellington
4. St. Marys Cement Inc. (Canada) & Rosedale Securities Limited, in reply