Lafarge Canada Inc. v. Northern Development, Mines, Natural Resources and Forestry (Ministry), 2023 CanLII 85389

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 14, 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: August 30, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Jeanor Enterprises Inc.	Barry Dusome*, Tim Byers*
Lafarge Canada Inc.	Kim Mullin, Bogdan Artus
Ministry of Northern Development, Mines, Natural Resources and Forestry	Zachary D’Onofrio, Julie Thompson, Articling Student

MEMORANDUM OF ORAL DECISION DELIVERED BY David Brown ON August 30, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The Tribunal convened a Status Hearing in respect of a Referral of the Minister’s proposed transfer of two licences issued pursuant to the Aggregates Resources Act (the “ARA”), under Aggregate Licence No. 3748 and Aggregate Licence No. 15788 (the “Licences”).

2Jeanor Enterprises Inc. (“Jeanor”) made an application to the Ministry of Northern Development, Mines, Natural Resources and Forestry (the “Ministry”) pursuant to s. 18 of the ARA requesting the Licences, issued to LaFarge Canada Inc. (“LaFarge”), be transferred to Jeanor. The Minister served notice to LaFarge of the proposed transfer as required by s. 18(5) of the ARA. LaFarge does not consent to the proposed transfer and requested a hearing before the Tribunal pursuant to s. 18(5) of the ARA. The Minister referred the matter to the Tribunal as required by s. 18(6) of the ARA.

3This matter has been the subject to two previous Case Management Conferences (“CMC”) and a Motion to Dismiss.

4The Motion to Dismiss the Referral without a hearing was filed by Jeanor in August of 2022 and the Motion was dismissed as set out in the decision issued by the Tribunal on November 22, 2022 (the “Motion Decision”).

5The first CMC was conducted on February 14, 2023. A further Motion to Dismiss without a Hearing, dated February 3, 2023, was effectively served on February 6, 2023 by Jeanor for consideration at the CMC. The Tribunal’s decision issued March 23, 2023 (“March CMC Decision”) notes that the Notice of Motion was not in compliance with the Tribunal’s Rules of Practice and Procedure (the “Rules”). The Tribunal dismissed the Motion setting out the reasons in the March CMC Decision and citing that, in the Tribunal’s view, the Motion is improperly brought before the Tribunal under the issue of estoppel and res judicata and is without merit.

6The March CMC Decision also addressed a request to have this matter and a separate matter currently before the Tribunal under Case No. OLT-22-003419 (the “Brillinger case”) to be heard by the same member or panel of the Tribunal. The March CMC Decision notes that the cases share an important commonality being the issue of whether or not the Tribunal has the jurisdiction to order financial compensation under s. 18(8) of the ARA as part of an approval to transfer an aggregate licence.

7The Tribunal scheduled a second CMC to be held for this matter together with a CMC for the Brillinger case. The second CMC was convened on April 11, 2023, at which time the Tribunal scheduled the hearings for each of the two matters and issued Procedural Orders, including Issues List, for each of the proceedings.

8Subsequent to the second CMC and prior to this proceeding, Jeanor copied the Tribunal on three letters addressed to the Ministry and to LaFarge. The first letter, addressed to the Ministry, was dated June 15, 2023 (Exhibit 1). This letter included a number of claims which the Tribunal notes are unsubstantiated at this time. The letter included, being of particular note as it is the reason for this hearing, Jeanor’s statement that they, Jeanor, “will not be accepting the transfer of the “suspended” licences of LaFarge.” The second letter from Jeanor was addressed to the Ministry and LaFarge, dated July 7, 2023 (Exhibit 2), and restated that Jeanor “will not be accepting any transfer of the suspended licences issued to LaFarge.” The third letter, dated July 10, 2023 (Exhibit 3), was addressed to the Ministry and LaFarge and copied to the Tribunal. In this letter, Jeanor again reiterates its position stating, “Under no circumstances will Jeanor be accepting the transfer of the suspended, non inspected licences.”

9In response to the statements within the three letters from Jeanor referred to above, LaFarge concluded that Jeanor has changed its position and is no longer seeking the transfer of the Licences. Lafarge submitted a letter to the Tribunal, dated July 14, 2023 (Exhibit 4), seeking direction from the Tribunal as it is LaFarge’s position that it appears that the hearing scheduled to commence on November 20, 2023 (the “Hearing”), is no longer required as Jeanor has advised that they will not be accepting the transfer of the Licences.

10Jeanor responded to the LaFarge letter with a letter addressed to the Tribunal dated July 17, 2023 (Exhibit 5) wherein again, Jeanor stated that, “Under no circumstance will Jeanor be accepting the transfer of the suspended, non-inspected licences.” Jeanor further advised the Tribunal that it wishes to proceed with the Merit Hearing as it will be seeking compensation for the damages done to Jeanor’s lands by LaFarge.

11The Tribunal convened a Status Hearing to consider the matters raised by LaFarge and Jeanor and to confirm Jeanor’s intentions.

STATUS HEARING

12Ms. Mullin confirmed that LaFarge is the holder of two licenses issued under the ARA which authorize extraction of sand and gravel from an aggregates pit located on lands owned by Jeanor. She advised that LaFarge’s royalty agreement with Jeanor expired in 2019 and subsequently Jeanor applied to the Ministry to have the Licences transferred to Jeanor. The Ministry provided notice to LaFarge of its intention to grant the transfer. LaFarge objected to the proposed transfer, and the Ministry referred the matter to the Tribunal to conduct a hearing as provided for in the ARA.

13An issue raised by LaFarge for determination by the Tribunal at the Hearing is whether the Tribunal has jurisdiction to direct financial compensation for the value of a licence.

14Jeanor also raised a number of issues that are related to the LaFarge compensation issue and as noted in the Decision arising from the CMC conducted on April 11, 2023, these matters will be determined within the overarching issue raised by LaFarge. Jeanor also raised an issue (Issue No. 12 on the Jeanor Issues List) in respect to compensation being has the delay caused by LaFarge and the Ministry caused harm to Jeanor, such that the Tribunal would award compensation to Jeanor. It is noted that the issue also references s. 58 of the Commercial Tenancies Act.

15Ms. Mullin referenced the correspondence from Jeanor, including the letter addressed to the Tribunal dated July 17, 2023, wherein Jeanor clearly stated that it will not accept the transfer of the Licences. She noted that Jeanor indicated that they still wish to proceed to a hearing for the purpose of pursuing its claim for compensation against LaFarge and the Ministry.

16Ms. Mullin submitted that the Tribunal is a statutory administrative tribunal and as such has no inherent jurisdiction.¹ An administrative tribunal derives its authority from two sources, the first being the express grants of jurisdiction under its enabling pieces of legislation; and the second being the operation of the doctrine of necessary implication.²

17Ms. Mullin submitted that, in this matter, the Tribunal’s express power is found in s. 18 (8) of the ARA and further, the Tribunal also derives authority from the Ontario Land Tribunal Act, 2021(“OLT Act”). While neither of these statutory references explicitly provides the Tribunal the direction to deal with compensation, Ms. Mullin referred to the Ontario Municipal Board (“OMB”) decisions in Maniplex Investments West Carleton (Township) Pit Application (Re) [1997] O.M.B.D. No.1166, (“Maniplex”) and Schneider Sand & Gravel Ltd. v. Seip, 1995 CarswellOnt 4995, 32 O.M.B.R. (“Schneider”) wherein the OMB established that when considering a hostile licence transfer, as is the case in this matter, the OMB could consider the economic implications of the transfer.

18Ms. Mullin contends that the Tribunal only has authority to deal with matters of compensation arising from the transfer of a licence under s. 18 of the ARA. In this case, since Jeanor no longer seeks the transfer of the Licences, that means the Tribunal cannot address compensation. As the Tribunal noted in the Motion Decision in this matter:

Decisions of the Tribunal (including its predecessors) have addressed the matter of compensation in the course of a licence transfer [emphasis added]. In the absence of any Court ruling to the contrary at this time, the economic gains and losses associated with the transfer may be addressed by the requestor at a hearing. For the same reasons, the question of compensation is not found to be outside the jurisdiction of the Tribunal in the course of it giving direction to the Minister.

19Ms. Mullin concluded that since Jeanor is no longer seeking the transfer of the Licences, the Tribunal has no jurisdiction to consider Jeanor’s claims and as a result the Hearing is no longer necessary. Accordingly, Ms. Mullin requested the Tribunal to direct the Ministry to rescind its proposal to transfer the Licences and close its file.

20Mr. D’Onofrio advised that the Ministry agrees with the position taken by LaFarge with respect to Jeanor’s indication that they are no longer prepared to accept the transfer and that the Hearing is therefore not required. Mr. D’Onofrio does not share position of LaFarge with respect to the authority to award compensation with the transfer of a licence. He suggested that this matter is not relevant to the current proceedings and that the issue of compensation would be addressed by the Tribunal at the Hearing, should it proceed.

21Mr. D’Onofrio submitted that the Licences, should they be transferred, are on an “as-is” basis. Further, he submitted that it is unclear what Jeanor is now requesting. Mr. D’Onofrio contends that if Jeanor wishes to proceed with the request for the transfer, there is no authority to amend the Licences through this process. If Jeanor does not want the Licences “as-is”, then there is nothing to address by the Tribunal.

22The Tribunal noted that the letters from Jeanor made numerous references to the status of the Licences as being “suspended”. Jeanor insists that LaFarge must bring the property and the Licences into compliance prior to the transfer. The Tribunal questioned Mr. Dusome as to whether Jeanor is prepared to accept the Licences in their current form and by extension accept the aggregates pit in its current state?

23Mr. Byers confirmed that Jeanor wishes to proceed with the hearing and will accept the Licences subject to a “Superior Court action.”

24The Parties requested that the Tribunal grant permission to revise the witness lists in response to the submissions considered by the Tribunal. Specifically, the Ministry requests permission to include the area inspector for the Jeanor lands. Jeanor is proposing to call Mr. Dusome as a witness to provide factual evidence. LaFarge requested the Tribunal’s consideration to revise their witness list to enable them to call such witness(es) in response to the new witnesses being proposed by Jeanor and the Ministry.

25The Tribunal reviewed with Mr. Byers that Mr. Dusome will be required to provide a witness statement as set out in the Procedural Order and was cautioned to be succinct and focussed with his submissions. The Tribunal noted that Jeanor has filed hundreds of pages of documents and correspondence with the Tribunal to date and advised Mr. Byers that “burying” the Tribunal in paper is not going to assist the Tribunal in making a finding in this matter.

26Further, the Tribunal confirmed with Mr. Byers that it is not Jeanor’s intention to qualify Mr. Dusome as an expert and that his evidence, therefore, will be factual in nature and not opinion evidence.

27The Tribunal directed the Parties to file their final witness lists with the Tribunal no later than Friday, September 8, 2023. The Procedural Order issued by the Tribunal in respect of this matter will otherwise continue to apply.

28The Tribunal, having confirmed that Jeanor wishes to continue to pursue the requested transfer of the Licences, confirms that the Hearing shall proceed as scheduled.

29In consideration of the submissions from the Parties, the Tribunal confirms that its authority in these proceedings is derived from s. 18(8) of the ARA. The Tribunal is to provide direction to the Minister to either carry out or rescind the proposed transfer. Under this authority the Tribunal finds that within this authority the Tribunal can not amend or revise the licence under consideration.

30The Tribunal, in response to the inference of a condition being attached to the transfer by Mr. Byers (paragraph 24 above), advises that should he wish conditions attached to the transfer, he must make submissions to the Tribunal at the Hearing, setting out the Tribunal’s authority and support for any contemplated condition.

31The Parties have raised the issue of compensation and offered three contrary positions. The Ministry submitted that the ARA does not provide the Minister the authority to award compensation with the request for a transfer of a licence. LaFarge submitted that the Tribunal has the authority to consider the monetary value of a Licence in the context of a “hostile transfer”. The Tribunal was directed to the Maniplex and the Shneider Decisions from the OMB wherein the OMB concluded, although not explicitly stated, that its power to address the matter of compensation in the course of a contested licence transfer arose from the doctrine of necessary implication. Jeanor submits that LaFarge has damaged their property and has not been operating in compliance with the Licences issued by the Ministry. Further, Jeanor contends that the delay resulting from these proceedings have financial implications for Jeanor and LaFarge and the Ministry should be responsible for the costs incurred by Jeanor.

32Should the Tribunal, after having conducted the Hearing, direct the Minister to carry out the proposal, or put another way, approve the transfer of the Licences, then the Tribunal can consider submissions in respect to the authority of the Tribunal to determine the economic value of the Licences. If the Tribunal finds that such authority exists, then the Tribunal may determine whether any compensation is payable associated with the transfer and to whom such compensation is to be awarded.

33The Tribunal makes no determination in respect of the matter of its authority to award compensation at this proceeding.

34The Tribunal will proceed with the hearing commencing on Monday, November 20, 2023, as set out in the Tribunal’s Decision issued May 17, 2023 in respect of this matter. Further, the Procedural Order attached to that Order shall continue to govern the proceedings leading up to an including the hearing, save and except the submission of witness lists as required by paragraph 9 of the Procedural Order shall be revised requiring that the final witness lists must be delivered on or before September 8, 2023.

35The Member is not seized of this matter, however, may be available for case management, subject to Tribunal scheduling, should any further issues arise in respect of this matter.

“David Brown”

DAVID BROWN

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.

Footnotes

1. 12684360 Ontario ltd. v. Kingston (City), 2021 CarswellOnt 2726 (LPAT) at paragraph 32.
2. 2Pierre v. McRea, 2011 ONCA 187 at paragraph 32.