Nelson Aggregate Co. v. Burlington (City), 2023 CanLII 66871

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 19, 2023

CASE NO(S).: OLT-22-004372

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

Applicant/Appellant: Nelson Aggregate Co.

Property Owner: 546958 Ontario Limited

Property Owner: Bestway TV and Appliances Limited

Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment

Description: to permit the expansion of the Nelson quarry

Reference Number: 505-04-20

Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road

Municipality/UT: Burlington/Halton

OLT Case No: OLT-22-004372

OLT Lead Case No: OLT-22-004372

OLT Case Name: Nelson Aggregate Co. v. Burlington (City)

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.

Applicant: Nelson Aggregate Co.

Objector: Alejandra Calle

Objector: Alex Brock

Objector: Anna Denvir et all

Description: Proposed extension to its Burlington Quarry on lands located to the south and west of the existing Burlington Quarry.

Reference Number: License No. 626477

Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road

Municipality/UT: Burlington/Halton

OLT Case No: OLT-22-004888

OLT Lead Case No: OLT-22-004372

OLT Case Name: Nelson Aggregate Co. v. Natural Resources and Forestry (Ministry)

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

Applicant/Appellant: Nelson Aggregate Co.

Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment

Description: The purpose of the application is to amend the Maps of the Halton Region Official Plan to permit the expansion of the existing quarry.

Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road

Municipality/UT: Burlington/Halton

OLT Case No: OLT-22-004886

OLT Lead Case No: OLT-22-004372

OLT Case Name: Nelson Aggregate Co. v. Halton (The Regional Municipality)

Heard: June 29, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Nelson Aggregate Co.	David White Q.C.
City of Burlington	Rodney Northey
Regional Municipality of Halton	David Germain Chris Barnett Brittany Maione
Conservation Halton	Konstantine Stavrakos
Niagara Escarpment Commission	Ken Hare
Protecting Escarpment Rural Land Conserving Our Rural Ecosystems of Burlington Inc.	David Donnelly David Donnelly
Objectors (see list attached Appendix 2)	Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JUNE 29, 2023 AND ORDER OF THE TRIBUNAL

1This decision and order relate to the hearing of the first Case Management Conference (“CMC”) in relation to appeals by Nelson Aggregate Co.(“Appellant”). pursuant to s. 22(7) of the Planning Act (“Act”) for official plan amendments to permit the extraction of aggregate materials. The Appellant made an application (“permit application”) to extract aggregate and to approve Site Plans for that licence under the Aggregate Resources Act (“ARA”). The permit application was referred by the Ministry of Natural Resources and Forestry to the Tribunal pursuant to s. 11(5) of the ARA to determine whether a licence should be issued.

2The Affidavit of Service for the Notice of the CMC was marked as Exhibit 1.

PARTY/PARTICIPANT REQUESTS

3Without objections, the Tribunal granted Party Status to six requestors namely: The City of Burlington (“City”); the Regional Municipality of Halton (“Region”); Conservation Halton (“CH”); Niagara Escarpment Commission (“NEC”); Protecting Escarpment Rural Land (“PERL”); and Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”). Except for NEC, all requestors filed the party status request forms prior to the CMC. Counsel for NEC has undertaken to file the formal request following grant of status.

4Participant Status was granted to 66 formal requests for status without objections. The list of Participants is attached as Appendix 1 to this decision. The list of Objectors is appended as Appendix 2.

5The Tribunal agrees with Counsel Mr. White that there is a large number of objectors in the ARA appeal matter who are parties under the ARA who may not be familiar with their roles as parties. He suggested that in order to save time and resources, the community parties’ PERL and CORE represented by Mr. Donnelly can apprise and sift their respective interests in the matters to align and scope issues for the hearing. Mr. White stated that Mr. Donnelly has already prepared a draft of his clients’ issues.

6Mr. Donnelly was amenable to that suggestion wherefore the Tribunal directed Mr. Donnelly to initiate and organize the objectors’ interests to align with the required issues for the hearing. The Tribunal urged objectors to present their cases under an umbrella entity in order to obtain economies of scale and to have an efficient hearing process.

MEDIATION

7Due to the large number of objectors, Mr. White did not hold out much hope for mediation in these appeals.

PROCEDURAL ORDER/ISSUES LIST

8Counsels have not provided a Draft Procedural Order (“DPO”) or Issues List. With the inclusion of the added Parties, it is appropriate that the DPO and draft Issues List is to be worked on by counsels in a cooperative manner. A new CMC date will be scheduled for the DPO and Issues List.

9The next CMC is to allow the City’s intended Notice of Motion to seek directions on consolidation of these appeals with two other related NEC appeals that are already at the Tribunal but not administratively ready for this CMC.

10Furthermore, the next CMC will serve as the first CMC for the NEC appeals where the Tribunal will require a notice of the CMC scheduled to be given, and an Affidavit of Service being filed.

11The Tribunal scheduled a further CMC which will proceed by way of video hearing commencing at 10 a.m. on Wednesday, October 11, 2023. 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

12Parties 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.

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): 1-888-299-1889 or (647) 497-9373. The access code is 709-076-365.

14Individuals 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 CMC 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.

15The parties are to submit the DPO and Issues List(s) to the Case Coordinator at least two weeks before the next CMC by Wednesday, September 27, 2023.

16At the next CMC, the DPO and Issues List are to be finalized subject to the outcome of the City’s Motion. The City’s Notice of Motion will be heard at the CMC and parties’ counsels have agreed on the filing schedule, the response and reply timeframes. A draft Motion will be presented by Friday, July 14, 2023.

ORDER

17The Tribunal Orders:

That the City of Burlington; the Regional Municipality of Halton; Conservation Halton; Niagara Escarpment Commission; Protecting Escarpment Rural Land; and Conserving Our Rural Ecosystems of Burlington Inc. are granted Party Status in the proceedings herein.
That the persons in the Participant Requests list appended as Appendix 1 are granted Participant Status in the proceedings herein.
That the Parties file a Draft Procedural Order and Issues List with the case co-ordinator by Wednesday, September 27, 2023.
That a CMC date is scheduled on Wednesday, October 11, 2023 by video hearing.
That the Parties are to be prepared to finalize the Procedural Order at the next CMC, subject to the outcome of the City’s motion.
The City’s Motion will be heard at the next CMC.

18The Member is not seized.

“T.F Ng”

T.F. NG

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.