Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 23, 2023
CASE NO(S).: OLT-22-004100
PROCEEDING COMMENCED UNDER section 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.
Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry
Appellant: Lafarge Canada Inc.
Description: Application to Transfer Licence
Reference Number: Aggregate License #3748
Property Address: Part W1/2 Lot 21, Concession 9, Geographic Township of Vespra
Municipality/UT: Springwater/Simcoe
OLT Case No.: OLT-22-004100
OLT Lead Case No.: OLT-22-004100
OLT Case Name: Lafarge Canada Inc. v. Northern Development, Mines, Natural Resources and Forestry (Ministry)
PROCEEDING COMMENCED UNDER section 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.
Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry
Appellant: Lafarge Canada Inc.
Description: Application to Transfer Licence
Reference Number: Aggregate License #15788
Property Address: Part W1/2 Lot 21, Concession 9, Geographic Township of Vespra
Municipality/UT: Springwater/Simcoe
OLT Case No.: OLT-22-004101
OLT Lead Case No.: OLT-22-004100
Heard: February 14, 2023 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jeanor Enterprises Inc. (Applicant) | Barry Dusome* |
| Lafarge Canada Inc. (“Appellant Licensee”) | Kim Mullin, Eugenia Bashura |
| Ministry of Northern Development, Mines, Natural Resources and Forestry (“Ministry”) | Zachary D’Onofrio |
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON FEBRUARY 14, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) conducted in these proceedings before the Tribunal under the Aggregate Resource Act. The now-consolidated Appeals are before the Tribunal as a result of the Ministry’s referral of the applications by the Applicant to transfer licences for a sand and gravel pit in the Township of Springwater, which were approved by the Ministry, and appealed by the Appellant Licensee.
2A written Motion to Dismiss the Appeals without a hearing was brought by the Applicant in August of 2022 and was determined by the Tribunal under the decision issued by the Tribunal on November 22, 2022 (the “Motion Decision”). The Tribunal dismissed the Motion.
3This CMC was then scheduled by the Tribunal to continue with case management.
REPRESENTATION OF THE APPLICANT BY BARRY DUSOME
4In communications to the Tribunal prior to the CMC, the Appellant Licensee raised the matter of Mr. Dusome’s ability to represent the Applicant. Mr. Dusome is admittedly not a lawyer or paralegal; in written communications he represented himself to be a real estate broker. The matter of Mr. Dusome’s representation of the Applicant had not previously been addressed by the Tribunal and no Authorization Form had been previously executed by the representative of the Applicant, authorizing Mr. Dusome to act on its behalf. The ability to represent the Applicant under the restrictions imposed under By-law 4 of the Law Society of Ontario was thus raised before the Tribunal.
5Prior to the CMC the Applicant filed the Tribunal’s standard form and confirmed that: Mr. Dusome was a friend of Mr. Tim Byers, the principal of the Applicant corporation; was not receiving payment for his work on the file; and had not provided legal services to anyone other than in this instance in these proceedings. Upon inquiry by the Tribunal, Mr. Dusome confirmed that he was receiving no other compensation, directly or indirectly in representing the Applicant, was not acting in the capacity of a real estate broker and attended as a representative only as a friend to assist Mr. Byers and the Applicant Corporation. Mr. Byers also confirmed he had limitations that impacted his efficiencies with computers, typing and emails.
6Upon this review of the facts during the CMC, the Appellant Licensee and the Ministry indicated they were content to permit Mr. Dusome to continue representing the interests of the Applicant in this proceeding if acceptable to the Tribunal.
7Mr. Byers confirmed that he was content with the representation arrangement notwithstanding the fact that Mr. Dusome was not licenced to provide legal services. Both Mr. Byers and Mr. Dusome were cautioned, and acknowledged, that in all further proceedings the Tribunal would not provide any legal advice in regard to the proceedings, nor any assistance or advice as to the manner in which the Applicant was to present or advance its case in this proceeding. Mr. Dusome was also reminded that he was required to familiarize himself with the Tribunal’s Rules, all procedural requirements, and all relevant legislation and case law necessary for the efficient presentation of the case on behalf of the Applicant and is to be prepared and ready to proceed in all further appearances before the Tribunal.
8Mr. Dusome, as a person without a Class P1 licence to provide legal services in the Province of Ontario, is accordingly excepted from the application of By-law 4 of the Law Society of Ontario, under Item 4, and is hereby permitted by the Tribunal to represent the Applicant’s interests in this proceeding.
MOTION TO DISMISS
9Prior to this CMC the Applicant served and filed a further Motion to Dismiss without a Hearing dated February 3, 2023. The Notice of Motion was effectively served on February 6, 2023, which was not in compliance with the Tribunal’s Rules of Practice and Procedure. Neither the Appellant Licensee or the Ministry responded to the Motion but communicated to the Tribunal that they objected to the Motion being heard, and would not be responding, because it was not properly served and essentially re-argued issues that were already determined by the Tribunal in the Motion Decision on the Applicant’s first Motion to Dismiss.
10The Notice of Motion was indeed not properly served in accordance with the Tribunal’s Rules but more importantly, for the reasons that follow, this second Motion to Dismiss is, in the Tribunal’s view improperly brought under the principles of issue estoppel and res judicata, is without merit, and should be dismissed.
11The Tribunal has carefully compared both the original Motion to Dismiss dated August 23, 2022 and the within Motion to Dismiss dated February 3, 2023, as well as the reasons provided in the Motion Decision rendered by Vice-Chair Tousaw to support the dismissal of the Motion.
12The relief sought, and the grounds for the Motion, are almost identical in both Notices of Motion, save and except that the ground relating to the timing of the Appellant Licensee’s Appeal/Objection has been abandoned, as has the issue of the Appeal being vexatious, frivolous or in bad faith. The only other differences relate to an added ground claiming that “Lafarge has misrepresented facts to the MNR to obtain an operational amendment contrary to the Aggregate Resources Act” and assertions that Lafarge’s licence is currently invalid due to issues relating to its continuing right to lease the pit.
13The Tribunal finds that firstly, these amendments do not substantially change the nature of the Motion that has already been fully adjudicated upon by the Tribunal and the same questions and issues decided by Vice-Chair Tousaw in the first Motion are now before the Tribunal in this substantially identical Motion to Dismiss. Second: the parties are obviously the same now, as they were in August. Third: the Motion Decision on the first Motion to Dismiss was clearly a final decision on the same issues placed before the Tribunal. The three pre-requisites to issue estoppel, and the application of the principles of res judicata, in this instance have accordingly been satisfied.
14The submissions advanced in writing, and by Mr. Dusome in his oral submissions, do not truly raise new evidence or issues that were not advanced during the hearing of the first Motion to Dismiss but rather: (a) raise matters that are irrelevant to the issues to be before the Tribunal in these proceedings (such as the actions of Lafarge in failing to update information to the Ministry regarding changes to its lease); (b) alternatively attempt to re-argue and advance yet further apprehensions and concerns relating to the same issues that were first raised on the first Motion; or (c) advance arguments of law, and make unsubstantiated and unsworn statements that should properly be addressed in the hearing on the merits to be scheduled.
15The Applicant’s materials and submissions, in fact, argue that there is additional “evidence that needs to be in front of the Tribunal” sourced from either the Appellant Licensee or the Ministry. If that is the case, such evidence must properly be introduced on the hearing of the merits. There is no basis to dismiss the Appeals without a hearing, as there are, by the Applicant’s own submission, clearly issues warranting the presentation of evidence and the determination of the Appeals on the merits. Such documents and information that might support the Applicant’s assertions of such things as misrepresentations on the part of Lafarge, are demonstrative of the fact that there may be contentious evidence and issues to be adjudicated on the merits which negate any basis for a dismissal without a hearing.
16Moreso, the issue of whether the Tribunal has the jurisdiction to determine matters of compensation remains to be adjudicated and the Applicant’s arguments on this point within the materials filed, if anything, demonstrates why a full hearing on the merits is required. The Applicant’s rather entrenched and absolute submissions as to the Tribunal’s lack of jurisdiction to address matters of compensation on this second Motion to Dismiss are not, as the Applicant argues, as definitively clear as it suggests. The Tribunal must agree with the Appellant Licensee that the cases addressed by the Divisional Court in the Brillinger case (addressed below) demonstrate that the matter of the Tribunal’s jurisdiction to address matters of compensation remains contentious and undecided.
17Vice-Chair Tousaw’s Motion Decision, on the first and almost identical Motion, and in particular, paragraphs 27 to 30 adequately explain why these Appeals are to be adjudicated on their merits. They will be determined upon a full hearing with evidence and submissions.
18For these reasons the Applicant’s second Motion to Dismiss is dismissed.
FURTHER SCHEDULING – THE BRILLINGER PROCEEDING
19Both the Appellant Licensee and the Ministry take the position that due to the coincidence of a separate proceeding before the Tribunal under the Aggregate Resources Act, and to avoid the possibility of inconsistent findings by the Tribunal on the same issues, the Appeals in this proceeding should be heard by the same member hearing the separate Appeal in Tribunal Case File No. OLT-22-003419. This other proceeding involves similar applications related to a transfer of an aggregate license in the Township of Whitchurch held by 2520650 Ontario Inc. (whose principal is Harold Brillinger). The application was granted by the Ministry, and the current licensee, 1386146 Ontario Inc. objects to the transfer of the license. That proceeding as been referred to as the “Brillinger case”.
20Although the facts and nature of the issues relating to the transfer of the licence in the Brillinger case are most certainly different from the facts of these proceedings, they do share an important commonality. The Brillinger case gives rise to the very specific issue as to whether or not the Tribunal has jurisdiction to order financial compensation under s. 18(8) of the Aggregate Resources Act as part of an approval to transfer an aggregate license under the legislation. On a motion to determine that issue which was heard in December 2019, the Tribunal determined that it did not have such jurisdiction. Leave to appeal that decision was sought and granted.
21For the reasons indicated in its Decision issued on September 23, 2022 (1386146 Ont. Inc. v. 2520650 Ont. Inc. et al., 2022 ONSC 5277) the Divisional Court dismissed the appeal as premature and remitted the matter back to the Tribunal for a full hearing on the merits, with encouragement to determine an economic value for the aggregate licence, and without prejudice to the Appellant’s ability to again argue the issue of jurisdiction in the event the Tribunal determined, upon a full hearing, that it did not have jurisdiction.
22On the face of the Tribunal’s record in this proceeding, and without delving into the full reasons of the Divisional Court in this CMC Decision, it is apparent to this Panel Member that the jurisdictional issue, the Tribunal’s (and former Board’s) approach to the consideration of financial compensation when dealing with licence transfers, and the relevancy of the respective financial positions of the transferor and the transferee of an ARA Licence, are common to both the Brillinger case and these Appeals.
23For that reason, in the absence of any prejudice that might be found to be caused to the parties in the Brillinger case (which have not yet been considered), or other reason why it would not be appropriate to do so, the Tribunal agrees with counsel for the Appellant Licensee and the Ministry that it is necessary to address matters of scheduling of both hearings concurrently to allow for both hearings to be conducted by the same member and to avoid the possibility of inconsistent findings on these important considerations.
24The Panel confirmed that as a result of the Decision of the Divisional Court in the Brillinger case, a CMC was in the process of being tentatively scheduled on Tuesday, April 11, 2023. That date has now been assigned on the Tribunal’s calendar. While it may not be the most elegant of solutions, the best method to ensure that the two hearings are efficiently and effectively scheduled such that the same Panel can be assigned to both hearings is for the Tribunal to conduct further case management of these appeals concurrently with the Brillinger case.
25A Notice of CMC Hearing has thus been issued in both proceedings to commence as a Video Hearing at 2 p.m. on Tuesday, April 11, 2023. The coordinates for the GoToMeeting video hearing are as set out in the Notice provided to the parties to this Appeal (and to the parties in the Brillinger case). The purpose of having both these otherwise unrelated proceedings dealt with at a common CMC is to assist in the scheduling of the two matters within a short period of time to be heard by the same presiding Panel, if required, due to the commonality of the jurisdictional issue and the goal of avoiding inconsistent results on the jurisdictional issue.
PROCEDURAL ORDER AND ISSUES LIST
26The Tribunal did not have the benefit of a draft Procedural Order and Issues List for this CMC, due in part, to the second Motion to Dismiss brought, and the inability of the parties to convene a meeting to discuss the form and content of the Procedural Order and Issues List. The Applicant’s proposed Issues have been included in the material served on the Motion.
27The Parties are directed to arrange a meeting during the week commencing February 27, 2023, and take such steps as are necessary to complete and submit a draft Procedural Order and Issues List to the Tribunal, not later than Friday, March 24, 2023 for consideration at the scheduled CMC on Tuesday, April 11, 2023. The pre-hearing filing dates will of course be dependent upon the assigned hearing dates.
28In the event there are any matters that are contentious between the parties with respect to the form and content of the Procedural Order or the Issues List the parties are to provide their respective positions in writing as to such contentious issues by that deadline so that they can be addressed by the Tribunal efficiently. In the event the Parties anticipate that the length of the hearing is to be greater than the five-days currently proposed, they are also to advise the Tribunal. Finally, to assist in scheduling efficiencies, the Parties are also to submit, by Friday, March 24, 2023, a list of any conflict dates for the scheduling of the hearing during an eight-month period commencing August 1, 2023.
29The Tribunal will be providing similar directives to the Parties to the Brillinger case to assist in the effective and efficient case management of that proceeding and scheduling of the hearing. Mr. D’Onofrio is Counsel for the Ministry in both proceedings and may, to the extent possible, alert counsel in the Brillinger case to the concurrent CMC proposed in April.
MEDIATION / SETTLEMENT
30The Panel did address the possibility of Tribunal-led mediation with the Parties. Whether or not this is a feasible option remains to be discussed between the parties during the further discussions that are to occur to prepare a draft Procedural Order and Issues List. The processes of requesting Mediation Assessment through the separate mediation branch of the Tribunal are familiar to both counsel and has been explained to Mr. Dusome and Mr. Byers should they wish to pursue this option.
ORDERS / DIRECTIVES
31The Panel Member is not seized with respect to the hearings, nor formally assigned to continued case management but may be available to preside over the concurrently scheduled CMCs on Tuesday, April 11, 2023, calendar permitting, due to the somewhat unusual combined case management of the two proceedings, for the reasons set out herein.
32The Tribunal so orders and provides these CMC directives for the purposes of the case management of these appeals and the intended concurrent case management of the appeals in Tribunal Case File No. OLT-22-003419.
“David L. Lanthier”
DAVID L. LANTHIER VICE-CHAIR
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.