747752 Ontario Ltd. v. North Dumfries (Township), 2023 CanLII 48549

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2023

CASE NO(S).: OLT-22-004440

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

Applicant/Appellant

747752 Ontario Ltd.

Subject:

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

Description:

A non-decision for a Zoning By-law Amendment to permit an aggregate pit.

Reference Number:

ZC-03/20

Property Address:

1662 Alps Road

Municipality/UT:

North Dumfries/Waterloo

OLT Case No:

OLT-22-004440

OLT Lead Case No:

OLT-22-004440

OLT Case Name:

747752 Ontario Ltd. v. North Dumphries (Township)

Heard:

March 20, 2023 by video

APPEARANCES:

Parties

Counsel/Representative

747752 Ontario Ltd. Township of North Dumfries Region of Waterloo

Jonathan Kahn Michael van Bodegom and Christopher Manning Fiona McCrea

memorandum of oral decision delivered by jatinder bhullar on 20 march, 2023 and order of the tribunal

1This was the first Case Management Conference (CMC) regarding an Appeal by 747752 Ontario Ltd. (“Applicant/Appellant”) for the failure of the Township of North Dumfries (the “Township”) to make a decision within the prescribed time period pursuant to s. 34(11) of the Planning Act. The Applicant/Appellant plans to develop an aggregates extraction facility. The site is Municipally known as 1662 Alps Road in the Township.

2The Affidavit of Service for the Notice of the first CMC made by Amanda Rupert and sworn on February 21, 2023 was determined to be duly processed and marked as Exhibit 1 for the record.

3The Region of Waterloo (Region) request for grant of a party status was reviewed. Based on the discussion and submissions from the parties, the Tribunal granted the Region party status.

4Benjamin Rouse requested party status. This request was opposed by the Applicant/Appellant. Mr. Rouse spoke passionately about possible impacts of the proposed development on his elderly parents living near the proposed development. The Tribunal provided guidance in a review of a party’s possible rights as well as obligations in the context of OLT Rules of Practice and Procedure. Mr. Rouse was taken aback and commented that this discourse appeared like a discouragement or a form of deterrence regarding him seeking party status. Mr. Rouse further explained that he would seek party status to represent his extended family including grown-up siblings. The Tribunal stood down so that Mr. Rouse could consider his options. On return from the break, Mr. Rouse informed the Tribunal and the parties that he instead would seek participant status. Benjamin Rouse was granted participant status.

5The North Dumfries Conservation Alliance (NDCA) sought participant status represented by Dr. Kathy Hrinivich. After a review of the request and consent of the parties, NDCA was granted participant status.

6The Tribunal informed the parties about Tribunal led mediation facilities should it assist in processing of the matter more efficiently.

7The parties reviewed possible issues that would need to be determined at a hearing. The parties promised to provide the Tribunal with a draft Procedural Order (PO) on consent by March 27, 2023. This has been received and the approved PO is attached as Schedule 1.

8The Tribunal reviewed possible calling of witnesses and evidence with the parties. As a result, the Tribunal set a hearing for a duration of five days commencing on September 18, 2023 at 10.00 a.m.

9The Applicant/Appellant informed the Tribunal that should a referral from the Ministry of Natural Resources and Forestry is forwarded to the Tribunal, there may be a need for a second CMC. This is so noted.

HEARING DETAILS

10A hearing is scheduled for Monday September 18, 2023 for five (5) days, commencing at 10:00 a.m.

11Parties and participants 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.

12The hearing is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/278736685

Access Code: 278-736-685

13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1 888-455-1389 or + 1 647-497-9391. The Access Code is as indicated above.

14Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

16There will be no further Notice and this Member is not seized.

17This Member would provide case management support should any issues arise leading up to the hearing.

18The directions in this decision are so Ordered.

“Jatinder Bhullar”

JATINDER bhullar

MEMBER

Ontario Land Tribunal

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

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

SCHEDULE 1

Procedural Order OLT-22-004440

Procedural Order

CASE NO(S).: OLT-22-004440

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

Applicant/Appellant

747752 Ontario Ltd.

Subject:

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

Description:

A non-decision for a Zoning By-law Amendment to permit an aggregate pit.

Reference Number:

ZC-03/20

Property Address:

1662 Alps Road

Municipality/UT:

North Dumfries/Waterloo

OLT Case No:

OLT-22-004440

OLT Lead Case No:

OLT-22-004440

OLT Case Name:

747752 Ontario Ltd. v. North Dumfries (Township)

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 September 18, 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 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 changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3. 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 June 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 July 10, 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 July 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 August 4, 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 22 below.

14. On or before August 4, 2023, 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 August 14, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 8, 2023, 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 on or before September 1, 2023 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 September 8, 2023.

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 7 days prior to the start of the hearing 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.

ATTACHMENT 1

PARTIES AND PARTICIPANTS

Parties

1. 747752 Ontario Ltd.

2. Township of North Dumfries

3. Regional Municipality of Waterloo

Participants

1. Benjamin Rouse

2. North Dumfries Conservation Alliance

ATTACHMENT 2

ISSUES LIST

Township Issues List

1. Does the proposed Zoning By-law Amendment facilitate and promote the integration, where applicable, with Bylaw Nos. 2881-17 (adjacent Cedar Creek Pit – License 2882-17) and 2882-17 (adjacent Alps Pit – License 28811-17) as earlier amendments to General Zoning By-law 689-83 for properties under the control of CRH Canada Group Inc? Matters to be considered include:

i) environmental features, including habitat corridors & linkages, and development setbacks / buffers;

ii) extraction along the common property lot lines;

iii) permitted uses, including elements such as the operational yard for processing, ancillary uses, etc.

2. Does the proposed Zoning By-law Amendment appropriately implement the boundary of the Alps Wood ESPA 53 Cedar-Creek Environmental Feature (and the associated buffer) as illustrated on Map 5A and in accordance with Township Official Plan Policies 6.1.7.1, 6.1.7.2, 6.1.7.4, 6.1.7.5 and 6.1.7.6?

3. Does the proposed Zoning By-law Amendment appropriately implement the Township’s Official Plan pertaining to Environmentally Sensitive Landscapes as illustrated on Map 5A and Policies 6.1.3.2, 6.1.3.7, and 6.1.3.9 ?

4. Does the proposed Zoning By-law Amendment establish the appropriate regulatory uses (primary and ancillary) for the proposed aggregate operation in accordance with Township Official Plan Policies 5.2.1.4, 5.2.5.7 and 5.2.8.4 and in consideration of the interface with the adjacent properties owned or controlled by CRH Canada Group Inc. associated with Bylaw Nos. 2881-17 (adjacent Cedar Creek Pit – License 2882- 17) and 2882-17 (adjacent Alps Pit – License 28811-17)?

5. Does the proposed Zoning By-law Amendment establish and facilitate the progressive and comprehensive rehabilitation of the proposed aggregate pit as an interim use in accordance with Township Official Plan Policies 5.2.3.4, 5.2.4.4, 5.2.5.8 b), 5.2.5.9, 5.2.8.2 and 5.2.8.3 a) to e) inclusive ?

6. Does the proposed Zoning By-law Amendment adequately address the technical requirements as outlined in Township Official Plan Policy 5.2.4 a) to h) inclusive, and where applicable, the potential cumulative impacts due to the proximity of adjacent Licensed aggregate operations as per Township Official Plan Policy 5.2.4.3?

7. Is the proposed Zoning By-law Amendment in conformity with the Provincial Policy Statement?

a) 1.1.1 (Managing and Directing Land Use);

b) 1.1.4.1 (Rural Areas in Municipalities);

c) 1.6.7.1 (Transportation Systems);

d) 1.7.1 a) (Long-Term Economic Prosperity);

e) 2.1.2 (Natural Heritage);

f) 2.5.3 (Rehabilitation);

g) 2.5.4 (Extraction in Prime Agricultural Areas)

8. Is the proposed Zoning By-law Amendment in conformity with the Places to Grow Act, 2005, and the Growth Plan for the Greater Golden Horseshoe, specifically Sections 4.2.4, 4.2.6, 4.2.7, and 4.2.8?

Region of Waterloo Issues

1. Does the proposed Zoning By-Law Amendment appropriately implement the boundary of the Alps Woods ESPA (ESPA 53) Cedar-Edworthy Environmental Feature as shown on Figure 6, Significant Features, in the Natural Environment Level 1 and 2 Technical Report and Environmental Impact Statement (EIS), Goodban Ecological Consulting Inc. (February 2020) in accordance with Regional Official Plan (ROP) Policies 7.A.2, 7.B.12, 7.C.10, 9.C.10 and 9.C.11?

2. Does the proposed Zoning By-Law Amendment appropriately delineate the area to be re-zoned for aggregate extraction and ESPA 53 for environmental conservation pursuant to ROP Policy 7.A.2, 7.B.11, 7.B.12, 7.C.10, 9.C.6 c) and 9.C.8?

3. Does the proposed Zoning By-Law Amendment appropriately identify the proposed rehabilitation areas to be zoned as proposed in Appendix 2 of the Planning Justification Report (MHBC, June 2020) in accordance with ROP Policy 7.A.2?

4. Does the proposed Zoning By-Law Amendment adequately address the technical requirements outlined in ROP Policy 9.C.3 including the completion of noise, dust and vibration studies; a hydrogeological study in accordance with the provisions of the Regional Implementation Guideline for Source Water Protection Studies; a Transportation Impact Study; an Environmental Impact Statement in accordance with the policies in Section 7.G; an archaeological assessment; information on the lifespan of the mineral aggregate operation and final rehabilitation plans; and any other identified study to meet the requirements under the provisions of the Planning Act; to the satisfaction of the Region or agency with jurisdiction over the issues addressed by the study?

5. Does the proposed Zoning By-Law Amendment appropriately address the requirements under Policy 9.C.10 and 9.C.11 with regards to a mineral aggregate operation proposed on lands designated as an Environmentally Sensitive Landscape as shown on Map 4 of the ROP?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 747752 Ontario Ltd.

2. Township of North Dumfries

3. Regional Municipality of Waterloo

4. Reply - 747752 Ontario Ltd.