Lafarge Canada Inc. v. Northern Development, Mines, Natural Resources and Forestry (Ministry), 2023 CanLII 43666

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 17, 2023

CASE NO(S).: OLT-22-004100, OLT-22-003419

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: April 11, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Jeanor Enterprises Inc. (“Jeanor”)

Barry Dusome*

Lafarge Canada Inc. (“Lafarge”)

Kim Mullin Eugenia Bashura

Ministry of Northern Development, Mines, Natural Resources and Forestry (“MNDNRF”)

Zachary D’Onofrio

2520650 Ontario Inc. (“2520650”)

David White

1386146 Ontario Inc. (“386146”)

Steven Ferri Christopher Lee Alexandra Whyte

Ontario Stone, Sand & Gravel Association

John Buhlman

MEMORANDUM OF ORAL DECISION DELIVERED DAVID L. LANTHIER ON APRIL 11, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1For the reasons set out herein this Memorandum of Decision and Order of the Tribunal is issued in the two different proceedings before the Tribunal.

2A concurrent Case Management Conference (“CMC”) for these proceedings was scheduled by the Tribunal following a CMC conducted on February 14, 2023 in Tribunal Case File No. 22-004100 (“22-004100”). For the reasons set out in the Tribunal’s Decision issued on March 23, 2023, in that matter, it was determined to be appropriate that a further CMC be scheduled concurrently with Tribunal Case File No. 22-003419 (“22-003419”) for the purposes of hearing from the Parties in both proceedings on the matter of scheduling the hearings within a short period of time, to be heard by a common Panel.

3The rationale for the combined case management was to allow for consideration of both hearings being conducted by the same Panel in order to avoid the possibility of inconsistent findings on important jurisdictional and legal questions common to both proceedings. The request to consider scheduling of the two hearings by the same Panel was prompted by MNDRF and Lafarge, without the consent of Jeanor, but the Parties in 22-003419 had not yet had the opportunity to provide input to this request. Accordingly, following the CMC on February 14, 2023, directives and Notice similar to those contained in the Decision, were provided to the Parties in 22-003419.

4As a result of the directives of the Tribunal, a draft Procedural Order and Issues List was received from the parties, and reviewed by the Panel, in advance of this CMC. The Parties were also directed, in advance of the concurrent CMC, to provide conflict dates for a six-month period to aid the Tribunal in considerations for scheduling. Although delayed, this information regarding dates was eventually provided by all Parties.

5Due to technical limitations in the Tribunal’s digital file management system the CMCs were formally scheduled at two different start-times on April 11, 2023. However, following advance communications from the Tribunal, all Parties attended together at 10 a.m. to address all case management issues in both proceedings at one time. Upon addressing all matters relating to scheduling of both proceedings by a common Panel, the hearing dates for both proceedings, and the form of the Procedural Order and Issues List for each of the two matters, the Tribunal inquired and confirmed there were no other matters to be addressed. The Panel provided a summary of the oral Directives, and this Memorandum of Decision and Order now issues following receipt of the revised Procedural Orders.

WITHDRAWAL OF PARTY TO TRIBUNAL CASE FILE NO. 22-003419

6As a housekeeping matter, counsel for the Ontario Stone, Sand & Gravel Association attended to the CMC and has confirmed to the Tribunal that it is formally withdrawing as a party to the 22-003419 proceeding.

POSITION OF THE PARTIES ON ADJUDICATION BY COMMON PANEL

7At the outset of the CMC the Tribunal first inquired, and received confirmation from the Parties in 22-003419, that they are also of the view that it would be appropriate for one Panel to adjudicate both hearings due to the commonality of the jurisdictional issue and issues relating to the Tribunal’s approach to the consideration of financial compensation when dealing with Aggregate Resource Act licence transfers.

8Generally the Tribunal possesses the authority under s. 9(1) of the Ontario Land Tribunal Act to make orders or give such directions as may be necessary or incidental to the exercise of its powers conferred under that Act or any other Act. Specifically, s. 9.1(1) of the Statutory Powers Procedure Act also directs that a tribunal may hear two or more proceedings one immediately after the other where the proceedings involve the same or similar questions of fact, law or policy.

9It is the matter of similar questions of law or policy which apply in this case as the factual circumstances of each of the two proceedings are different. The Tribunal accordingly finds that it is appropriate that both proceedings be separately scheduled for hearing within as short a period of time as is possible with the Tribunal’s Calendar, and that one common Panel be struck to adjudicate both hearings on the merits.

SCHEDULING

10The Tribunal has received submissions from the Parties regarding scheduling and anticipated length of each hearing. 2520650 takes the position that the hearing of 22-003419 should take place before the hearing of 22-004100, on the basis that this matter came before the Tribunal first and that directions had been issued by the Divisional Court that 22-003419 be heard by the Tribunal. This position is not shared by the other Parties. 1386146 submits that it might request party status to the limited extent of monitoring the hearing in 22-004100, dependent upon which hearing is first to be scheduled.

11Based upon the submitted conflict dates of the parties, the complexities of the Tribunal’s calendar and the challenges of coordinating the two hearings with the same Panel within a relatively short period of time, the request by 2520650 that the 22-003419 proceeding proceed first is unworkable. Neither is such a priority necessary since the two proceedings are being heard independently of one another, with different evidence and facts. The expectation is that the same Panel will be making determinations on the common jurisdictional and legal issues independently upon the facts in each case, but consistent in their approach to those issues, and it does not matter which case proceeds first. The Panel will ultimately decide the timing and manner in which the Decisions are rendered in each of the two proceedings.

22-004100 - Hearing – November 20 to November 24, 2024

12The five-day video hearing of the hearing in Tribunal Case File No. 22-004100 will commence at 10 a.m. on Monday, November 20, 2023, and continuing to Friday, November 24, 2023. The Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

The Directives for this Video Hearing of 22-004100 are set out below.

22-003419 - Hearing – February 12 to February 21, 2024

13The seven-day video hearing of the hearing in Tribunal Case File No. 22-003419 will commence at 10 a.m. on Monday, February 12, 2024, and continuing to Wednesday, February 21, 2024, standing down on Monday, February 19, 2024 for Family Day. The Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/278736685

Access Code: 278-736-685

The Directives for this Video Hearing of 22-003419 are set out below.

Directives – Both Hearings

14For each of the video hearing, all Parties, witnesses or observers 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.

15Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings 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.

16Persons who experience technical difficulties accessing either of the video hearing events using 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 1-888-455-1389 or +1 (647) 497-9391. The access codes for each of the two video hearings are as indicated above.

TELEPHONE CONFERENCE CALL STATUS HEARING – September 29, 2023

17If it may be of assistance to the Parties or the Tribunal, a final Status Hearing/CMC can be held at 9 a.m. on Friday, September 29, 2023, with the following dial-in instructions:

Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848. When prompted, enter the code 4779874# to be connected to the call.

18The Parties in either or both of the two proceedings are to advise the Case Coordinator on or before Friday, September 15, 2023, as to whether the Status Hearing/CMC is, or is not, required in each of the two proceedings.

PROCEDURAL ORDER – TRIBUNAL CASE FILE NO. 22-004100

19In accordance with the prior Directives of the Tribunal, the Panel received and reviewed a draft Procedural Order submitted jointly by the parties to 22-004100. The Tribunal had no concerns regarding the Issues identified by Lafarge. The Panel inquired with Lafarge and MNDNRF with respect to the more detailed issues identified by Jeanor in the Issues List. Lafarge expressed some concern as to the appropriateness of some of the issues and noted the fact that many of the issues identified by Jeanor with some specificity, were already subsumed within the overarching issues identified by Lafarge. However, in the interests of moving forward without delay, and with the standard proviso preamble in the Issues List, Lafarge indicated it would not oppose the form of Jeanor’s Issues List.

20Aside from the one issue identified by Jeanor regarding the organization of the hearings (which has been decided in this Decision) and the issue referencing Motion materials the Tribunal acknowledges that many of the specific issues are already covered by the primary issues identified by Lafarge. Some issues are also noted by the Tribunal to be somewhat argumentative as expressed or perhaps inelegantly worded in the form usually adopted for an Issues List.

21Aside from the two inappropriate issues, rather than focusing on the precision of the wording of some of the issues, the Tribunal is satisfied that Jeanor’s issues sufficiently identify the particularity of Jeanor’s position on the contentious matters to be placed before the Tribunal in this proceeding. This includes, for example: Jeanor’s position that there is a live issue as to the validity or “suspension” of the Aggregate licence which is the subject of the transfer application, relative to a lease agreement that Jeanor asserts has expired, and which may thus impact Lafarge’s ability to claim compensation; or Jeanor’s entitlement to claim compensation arising from the delay in the transfer of the Aggregate License. It will remain for the presiding Panel to distill, from both the broader and specific issues in the Issues List, which issues are ultimately appropriate or relevant to the determination the 22-004100 proceeding.

22Following the CMC, the Parties completed and forwarded a final draft of the Procedural Order to the Tribunal based upon the hearing dates provided. The Issues List was reviewed and amended by the Tribunal based upon the submissions of the Parties.

23Appended to this Decision as Schedule 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of Tribunal Case File No. 22-004100.

PROCEDURAL ORDER – TRIBUNAL CASE FILE NO. 22-003419

24In accordance with the prior Directive of the Tribunal, the Panel received and reviewed a draft Procedural Order submitted jointly by the parties to 22-003419. The Parties were ad idem with respect to the form of the Procedural Order and Issues List and the Tribunal had no concerns. Following the CMC, the Parties completed and forwarded a final draft of the Procedural Order to the Tribunal based upon the hearing dates provided.

25Appended to this Decision as Schedule 2 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of Tribunal Case File No. 22-003419.

OTHER MATTERS - DIRECTIVES

26Jeanor raised a general question about a possible conflict on the part of counsel for 2520650 in the 22-003419 proceeding. Jeanor is not a party to that matter, and with no real issue of prejudice or practical concern being raised by Jeanor that would give rise to any impediment to the representation of 2520650 by retained counsel, there is no determination to be made by the Tribunal.

27There will be no further notice with respect to each of the two hearing events, or the TCC Status Hearing/CMC and the Panel Member is not seized on any of the hearings.

28The Tribunal so orders and provides these CMC directives for the purposes of the case management of these appeals.

“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.

Ontario Land Tribunal Ontario Land Tribunal

655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349

Toll free: 1-866-448-2248 Website: olt.gov.on.ca Tribunaux de l’aménagement du territoire Ontario Tribunal d’appel de l’aménagement local

655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349

Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

SCHEDULE 1

CASE NO(S).: OLT-22-004100

PROCEEDING COMMENCED UNDER subsection 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended

Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry

Appellant: Lafarge Canada Inc.

Description: Application to Transfer Licence

Reference: Aggregate Licence #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 subsection 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended

Referred by: Ministry of Northern Development, Mines, Natural Resources and Forestry

Appellant: Lafarge Canada Inc.

Description: Application to Transfer Licence

Reference: Aggregate Licence #15788

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)

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 five-day video hearing will begin on November 20, 2023, at 10:00 a.m.

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 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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 August 22, 2023, and in accordance with paragraph 23 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 October 6, 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 October 20, 2023.

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 September 21, 2023, 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 23 below.

14. On or before September 21, 2023, 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.

15. On or before October 16, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 6, 2023, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 30, 2023, and in accordance with paragraph 23 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 November 3, 2023.

19. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before November 15, 2023.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 3, 2023, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. 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.

24. 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 - SUMMARY OF DATES

Date

Event

August 22, 2023

Witness List (and Expert CVs) Due

September 21, 2023

Participant Statements, Witness and Expert Witness Statements Due

October 6, 2023

Expert Witnesses to Meet On or Before This Date

October 16, 2023

Parties to confirm with the Tribunal if all reserved hearing dates are required

October 20, 2023

Statement of Agreed Facts and Issues Due

October 30, 2023

Written Response to Written Evidence Due

November 3, 2023

Joint Document Book & Preliminary Hearing Plan Due

November 6, 2023

Visual Evidence Due

November 15, 2023

Cross-Examination Documents Due

November 20, 2023

Start of Hearing

ATTACHMENT 2 - PARTIES AND PARTICIPANTS

PARTIES

Party Name

Contact Information

Lafarge Canada Inc. Counsel - Kim Mullin/Eugenia Bashura

Wood, Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Tel: (416) 203-5633 E-mail: kmullin@woodbull.ca/ ebashura@woodbull.ca

Jeanor Enterprises Inc. Representative – Barry Dusome

Barry Dusome Broker Right At Home Realty Inc. 684 Veterans Drive, Unit 1 Barrie, ON L9J 0H6 Tel: (705)-627-6707 E-mail: barrydusome@gmail.com

Ministry of Northern Development, Mines, Natural Resources and Forestry Counsel – Zachary D’Onofrio

Ministry of Northern Development, Mines, Natural Resources and Forestry Legal Services Branch Civil Law Division – MAG 99 Wellesley St. W., Rm. 3420 Toronto, ON M7A 1W3 Tel: (416)-919-8621 E-mail: Zachary.D’Onofrio@ontario.ca

ATTACHMENT 3 - ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Lafarge Canada Inc.

1. Does the Ontario Land Tribunal have jurisdiction to direct financial compensation for the economic value of a licence when considering a proposal by the Minister of Natural Resources and Forestry to transfer a licence under subsection 18(4) of the Aggregate Resources Act?

2. Should the licences be transferred from Lafarge Canada Inc. to Jeanor Enterprises Inc.?

3. If the Ontario Land Tribunal has jurisdiction to direct compensation for the economic value of a licence, then should Lafarge Canada Inc. be compensated for the value of its licences upon the transfer of the licences?

4. If Lafarge Canada Inc. should be compensated for the economic value of the licences, then what is the appropriate amount of compensation?

Jeanor Enterprises Inc.

1. Does the “power” vested in the Ontario Land Tribunal (“Tribunal”) under 18(8) of the Aggregate Resources Act (“A.R.A”) include “implied” rights to award compensation with no such evidence of contract, concerning the transfer of aggregate licences back to the landowner after the expiry of the lease?

2. Has the Ontario Superior Court of Justice (a court of “original” inherent jurisdiction) always been the appropriate arena to make a civil financial claim with respect to the transfer of an aggregate licence?

3. Is Lafarge Canada Inc. “out of time” with respect to any claim of financial compensation concerning the licence transfers and any evidence that Lafarge has of contractual arrangements to receive “compensation” for the licences at the end of the term of the lease which was July 31, 2019?

4. Is there any “compensation” due to a licence holder when the “authority” to affect the “issued” licence has expired and the licence becomes effectively “suspended”?

5. Is there any compensation due to a licence holder who objects to the aggregate transfers, effectively “sterilizing” any uses of the lands and any resource on the lands in contravention to Section 2 of the A.R.A.?

6. Is an A.R.A. licence, (which does not expire) the property of the Ministry (having “complete control” and “unfettered discretion”) as are the site plans?

7. Is a licence a “right” which is “issued” by an authoritative body (Ministry) and “renewed” based on the conditions required to maintain the licence in “good standing” including Authorization (lease), C.A.R.’s TOARC fees etc., failing which it is “suspended”?

8. Is an A.R.A. licence ownership, akin to property and are the licences specific to the sites as to contain no value to the licence holder once the “authorization” period (lease) has expired?

9. Is awarding “compensation” for licences controlled by the Ministry a “function” necessary to fulfill the planning mandate of the Tribunal?

10. Will the Tribunal be considering altering or amending a historic (now expired) lease agreement between two private parties and prepared by Lafarge counsel which contained no provision for any compensation for the licences after the expiry of the lease to the unfair detriment of all aggregate owners across Ontario and in sharp contrast to the commercial contract laws of Ontario, which are intended to be enforceable at law?

11. If the objections of Lafarge do not include the transfers of the licences, would the Tribunal consider an immediate order transferring the licences to Jeanor to support the mandate of the A.R.A. in the management of aggregate resources in Ontario?

12. Has the delay of Lafarge and the Ministry caused harm to Jeanor, such that the Tribunal would award “compensation” to Jeanor Enterprises Inc.?, Including, claims under Section 58 of the Commercial Tenancies Act regarding the detainment of the land and its uses after expiry of the lease on July 31, 2019?

13. Should Lafarge have notified the Ministry under A.R 2.06.01 that their licences had expired and they no longer had “authorization” to remove aggregates from the licenced lands?

14. Are the licences deemed to have been “suspended” under s.15.1(6)(b) of the A.R.A?

15. If ‘yes’, then does that negate any financial value in the licences and can the suspended licences be transferred immediately?

16. If “yes”, the licences are “suspended” i.e. not in compliance with the A.R.A, should Lafarge Canada Inc. be allowed to defend the licences at the Tribunal with respect to “compensation”?

17. If “yes”, can “economic value” be placed on a “suspended” licence as no good or service can flow from it?

18. If “yes”, the licences are “suspended” then is this case then “distinguished from “Schneider” and “Maniplex” as those licences were both in “good standing” and as in “Lillie v. West Carlton” #1; “inequities and unfairness that may have existed in Schneider and Maniplex do not exist here”?

19. If “yes”, should only A.R.A licences in "good standing" be allowed to object to the Tribunal for the transfer of an aggregate licence associated with a property?

ATTACHMENT 4 - ORDER OF EVIDENCE

1. Lafarge Canada Inc.

2. Ministry of Northern Development, Mines, Natural Resources and Forestry

3. Jeanor Enterprises Inc.

4. Reply by Lafarge Canada Inc.

Attachment to Sample Procedural Order

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.

ATTACHMENT 1 - SUMMARY OF DATES

Date

Event

November 14, 2023

Witness List (and Expert CVs) Due

December 14, 2023

Expert Witnesses to Meet On or Before This Date

December 29, 2023

Written Evidence Due

December 26, 2023

Statement of Agreed Facts and Issues Due

January 15, 2024

Written Response to Written Evidence Due

January 23, 2024

Parties to confirm with the Tribunal if all reserved hearing dates are required

January 29, 2024

Joint Document Book & Preliminary Hearing Plan Due

January 31, 2024

Visual Evidence Due

February 9, 2024

Cross-Examination Documents Due

February 12, 2024

Start of Hearing

ATTACHMENT 2 - PARTIES AND PARTICIPANTS

PARTIES

Party Name

Contact Information

1386146 Ontario Inc. Counsel – Steven Ferri, Christopher Lee, Alexandra Whyte

Loopstra Nixon LLP 135 Queens Plate Drive, Suite 600 Toronto, ON M9W 6V7 Tel: (416) 748-4752 E-mail: sferri@loonix.com; clee@loonix.com; awhyte@loonix.com

2520650 Ontario Inc. Counsel – David White

Devry Smith Frank LLP 85 Bayfield Street, Suite 300 Barrie, ON L4M 3A7 Tel: (705) 721-3624 E-mail: david.white@devrylaw.ca

Ministry of Natural Resources and Forestry Counsel – Zachary D’Onofrio

Ministry of Natural Resources and Forestry Legal Services Branch Civil Law Division – MAG 99 Wellesley St. W., Rm. 3420 Toronto, ON M7A 1W3 Tel: (416)-919-8621 E-mail: Zachary.DOnofrio@ontario.ca

ATTACHMENT 3 - ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

1886146 Ontario Inc.

1. Should licence no. 6531 ("Licence") be transferred from 1386146 Ontario Inc. to 2520650 Ontario Inc. on the terms proposed by the Minister of Natural Resources and Forestry ("Minister")?

2. Does the Ontario Land Tribunal (“OLT”) have jurisdiction to consider the economic value of the Licence when considering the proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act?

3. Does the OLT have jurisdiction to consider the impact of the transfer of the Licence from 1386146 Ontario Inc. to 2520650 Ontario Inc. for without financial compensation when considering the proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act? If so, what is the impact?

4. Does the Minister and/or the OLT have authority to take economic value away from 1386146 Ontario Inc. without consent or compensation?

5. Does the OLT have jurisdiction to determine whether the terms, including economic terms and financial compensation, of the transfer of the Licence from 1386146 Ontario Inc. to 2520650 Ontario Inc., are correct when considering the proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act?

6. Does the OLT have jurisdiction to determine the correct economic terms and/or financial compensation for the transfer of the Licence 6531 from 1386146 Ontario Inc. to 2520650 Ontario Inc.? If so, what are the correct economic terms and/or financial compensation for the transfer of the Licence 6531 from 1386146 Ontario Inc. to 2520650 Ontario Inc.?

7. Does the OLT have jurisdiction to deny the transfer of the Licence from 1386146 Ontario Inc. to 2520650 Ontario Inc. on the grounds that the terms of the transfer, including but not limited to economic terms and financial compensation to 1386146 Ontario Inc. for the economic value of the Licence, have not been provided and/or are inadequate, when considering a proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act?

8. Does the OLT have jurisdiction to permit the transfer of the Licence from 1386146 Ontario Inc. to 2520650 Ontario Inc. on the condition that appropriate terms of the transfer, including but not limited to economic terms and financial compensation to 1386146 Ontario Inc., be satisfied when considering the proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act?

9. Does the OLT have jurisdiction to direct economic terms and/or financial compensation for the Licence when considering the proposal by the Minister to transfer the Licence under subsection 18(4) of the Aggregate Resources Act?

10. Should 1386146 Ontario Inc. be compensated for the value of the Licence upon the transfer of the Licence?

11. If 1386146 Ontario Inc. should be compensated for the economic value of the Licence, then what are the correct economic terms and/or financial compensation?

2520650 Ontario Inc.

12. How should the market value of an Aggregate Licence be determined?

13. What is the market value of an Aggregate Licence that does not have access to the property or the aggregate resource and has no right to extract the aggregate resource?

14. Are there sufficient reasons for not following the financial considerations that were considered in the Schneider and Maniplex decisions?

ATTACHMENT 4 - ORDER OF EVIDENCE

5. 1386146 Ontario Inc.

6. Ministry of Natural Resources and Forestry

7. 2520650 Ontario Inc.

8. 1386146 Ontario Inc. (Reply, If Any)

Attachment to Sample Procedural Order

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.