Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 01, 2023 CASE NO(S).: OLT-23-000457

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

Applicant: J.G. Stewart Construction Ltd. Objector: Betty Smith and Ken O’Reilly Objector: Russell Booker Subject: Application for aggregate extraction Class A License for existing quarry Description: To permit a Category 2 – Class A Quarry Below Water, Licence to excavate aggregate from a Quarry of 65.5 hectares Reference Number: 626491 Property Address: Pt Lot 23 & 24, Con 4 Municipality/UT: Dysart et al/Haliburton OLT Case No: OLT-23-000457 OLT Lead Case No: OLT-23-000457 OLT Case Name: J.G. Stewart Construction Ltd. v. MNRF (Approval Authority)

Heard: August 17, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
J.G. Stewart Construction Ltd	David Germain
Betty Smith and Ken O’Reilly	Self-represented*
Russell Booker	Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON AUGUST 17, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

1J.G. Stewart Construction Ltd. (“Applicant”) applied for a Class A license (Category 2- Quarry Below Water) to: excavate aggregate from a Quarry of approximately 65.5 hectares (“ha”); convert an existing pit licence to a new quarry licence; and maintain the existing Annual Tonnage Condition of unlimited tonnes under the Aggregate Resources Act, R.S.O. 1990, c. A.10. (“ARA”) at the property located at Part Lot 23 and 24, Concession 4, Municipality of Dysart et al, County of Haliburton (“Subject Property”).

2The Applicant currently owns an existing 79 ha licenced gravel pit on the Subject Property. The location to excavate aggregate on the Subject Property is north of the access road. The remainder of the Subject Property will remain as a gravel pit and continue to operate under the existing licence approvals.

3Five objections to the application were made and the Ministry of Natural Resources and Forestry (“MNRF”) referred the application to the Tribunal for a hearing under s. 11(5) of the Planning Act. There are currently two objections remaining identified as Parties in this decision.

4Section 11(6) of the ARA identifies the Parties to the Hearing as:

a. The Applicant;

b. The person who made the objection;

c. The Minister, if he or she notifies the Tribunal of his or her intention to be a party; and

d. Such other persons as are specified by the Tribunal. 2017, c. 23, Sched. 5,s. 3 (1); 2021, c. 4, Sched. 6, s. 30 (1).

5The Applicant has tried to unsuccessfully resolve the outstanding concerns during the resolution of objections stage process. The Tribunal was advised by the Parties that a settlement was unlikely. The Tribunal suggested to the Parties that Tribunal led mediation could be available and encouraged the Parties to inquire with the assigned Case Coordinator as to the process and next steps if the opportunity presented itself.

6MNRF advised the Tribunal it does not intend to be a party to the proceedings for this matter. If all objections to this matter are withdrawn and the Tribunal file is closed, MNRF requests correspondence from the Tribunal referring the matter back to the MNRF so that the Minister can decide whether to issue or refuse to issue the licence pursuant to section 11(8) paragraph 4 of the ARA. MNRF also requires confirmation that the site plan forwarded with the MNRF referral request was not subject to any changes negotiated between the Applicant and any Objector as part of an agreement for settlement.

7Neither the Municipality of Dysart et al (“Municipality”) or the County of Haliburton (“County”) attended or sought status for these proceedings.

8The Tribunal recognized that the self-represented Parties may not be familiar with the procedures of the Tribunal. To assist the self-represented Parties, the Tribunal reviewed Rule 8 of the Tribunal’s Rules of Practice and Procedure (“Rules”) regarding the roles and obligations of a Party. The Tribunal explained the difference between a Party and a Participant.

9The Tribunal was advised that the self-represented Parties do not intend to seek legal counsel or present expert witnesses or testimony.

10The Tribunal advised the Parties that it makes decisions based on objective evidence provided by expert witnesses, reports or studies that can be tested. The Tribunal encouraged the self-represented Parties to obtain clarity on the Rules, the duties and obligations of a Party and consult or seek legal counsel.

11The Notice of Case Management Conference (“CMC”) was issued by the Tribunal on June 26, 2023.

12No requests for Party status were received.

13No requests for Participant status were received.

14On consent of the Parties the following issues have been identified to be addressed at a hearing:

a. Predicted impacts on the natural environment;

b. Predicted impacts of water resources; and

c. Predicted impacts of blasting.

15The Tribunal was presented with a Procedural Order (“PO”) prior to the CMC. The Tribunal requested that a revised draft PO be submitted, on consent, to ensure that the issues of all Parties are included and that appropriate dates for the exchange of documents and meetings of expert witnesses are reflected. Counsel for the Appellant was directed to submit the draft PO to the Case Coordinator by end of day Monday, August 21, 2023.

16Having received the benefit of the revised draft PO prior to the issuance of this Decision and having examined the scoped Issues List (“IL”), the Tribunal deems the PO to be in force and effect to govern the proceedings at the Hearing of the merits scheduled below. Any changes to the PO will require approval of the Tribunal.

17On consent of the Parties and based on the discussions during the CMC regarding the scope of the issues, the Tribunal determined it would be reasonable to schedule the Hearing for three days.

18The hearing is scheduled to proceed by video on Wednesday, February 14, 2023 at 10 a.m.

19Parties 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:

https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

20Parties 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

21Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 687-587-165.

22Individuals 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.

ORDER

23The Tribunal orders its directions and rulings as set out above.

24The Procedural Order appended to this Decision as Schedule 1 is approved and in force and effect.

25There will be no further notice.

26The Member is not seized but may be spoken to through the Case Coordinator if there are any issues with respect to the implementation of this Order.

“W. Daniel Best”

W. DANIEL BEST 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

ISSUE DATE: September 01, 2023 CASE NO(S).: OLT-23-000457

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

Applicant: J.G. Stewart Construction Ltd. Objector: Betty Smith and Ken O’Reilly Objector: Russell Booker Subject: Application for aggregate extraction Class A Licence for existing quarry Description: To permit a Category 2 – Class A Quarry Below Water, Licence to excavate aggregate from a Quarry of 65.5 hectares Reference Number: 626491 Property Address: Pt Lot 23 & 24, Con 4 Municipality/UT: Dysart et al/Haliburton OLT Case No: OLT-23-000457 OLT Lead Case No: OLT-23-000457 OLT Case Name: J.G. Stewart Construction Ltd. v. MNRF (Approval Authority)

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 February 14, 2024 at 10:00 a.m. as a virtual hearing.

3. The parties’ initial estimation for the length of the hearing is 3 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 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. 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 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 Friday, December 15, 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, January 26, 2024 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 Monday, January 29, 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 Friday, January 19, 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 Friday, January 19, 2024, a participant or objector shall provide copies of their written participant or objector 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 Friday, February 2, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Wednesday, February 7, 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 within ten (10) days after the evidence is received 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 Wednesday, February 7, 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 Wednesday, February 7, 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.

BEFORE:

Name of Member:

Date:

____________________________

TRIBUNAL REGISTRAR

Attachment 1 – Parties

1. J.G. Stewart Construction Ltd.
2. Betty Smith and Ken O’Reilly
3. Russell Booker

Attachment 2 – Issues List

1. Is issuance of the proposed quarry licence appropriate, having regards to:

a. predicted impacts on the natural environment;

b. predicted impacts on water resources; and

c. predicted impacts of blasting?

Attachment 3 – Order of Evidence

1. J.G. Stewart Construction Ltd.
2. Betty Smith and Ken O’Reilly
3. Russell Booker
4. J.G. Stewart Construction Ltd. (reply)