Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 03, 2023
CASE NO(S).: OLT-23-000346
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2374868 Ontario Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the lands to be used for the transfer, storage and processing of soil and aggregate materials from vacuum trucks for the purposes of rehabilitation
Reference Number: D14/ONT
Property Address: 6678 Wellington Rd. 34; Concession 3 Front Part Lot 8
Municipality/UT: Puslinch/Wellington
OLT Case No.: OLT-23-000346
OLT Lead Case No.: OLT-23-000346
OLT Case Name: 2374868 Ontario Ltd. v. Puslinch (Township)
Heard: September 27, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2374868 Ontario Ltd. ("Applicant/Appellant") | Jonathan Kahn Brittiny Rabinovitch |
| Township of Puslinch ("Township") | Kevin Thompson |
MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES AND SHARYN VINCENT ON september 27, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second Case Management Conference ("CMC") in the matter of an appeal by 2374868 Ontario Ltd. ("Applicant/Appellant") from the refusal or neglect of the Township of Puslinch ("Township") of an application for a Zoning By-law amendment ("ZBA") for the property located at 6678 Wellington Road 34, Concession 3, Front Part Lot 8 ("Subject Property") in the Township of Puslinch, pursuant to section 34(11) of the Planning Act, R.S.O. 1990, c.13, as amended ("Act"). The purpose of the application is to amend Zoning By-law No. 23-2018 to permit the lands to be used for the transfer, storage and processing of soil and aggregate materials from vacuum trucks for the purpose of rehabilitation.
2The application also seeks to include an amendment to the definition of aggregate processing facility to read as follows: any premises used to process, crush, screen, wash, store/stockpile, and/or sort such aggregate, soil and top soil materials and includes an asphalt plant, a concrete batching plant, cement manufacturing plant, a brick and tile manufacturing plant, an aggregate transfer station, the stockpiling/blending of recycled aggregate, and a vacuum operation to transfer, store and process materials from other sites, and the storage of vehicles involved in the vacuum truck operation.
3At the initial CMC, no Issues list was filed with the Tribunal, and both Counsel requested time to refine the 28-item on the Joint Issues List before setting an anticipated 15-day Merit Hearing.
4A second CMC was scheduled for this date.
PARTY AND PARTICIPANT STATUS REQUESTS
5At the initial CMC, consideration of Participant status was deferred to this date due to a late Participant Request submission by Barbara Hagey, as Counsel wanted to review it properly before taking a position.
6Upon hearing no objections from Counsel, the Tribunal conferred Participant Status to the following:
a) Robert McCrindle;
b) Allison McCrindle; and,
c) Barbara Hagey
CASE MANAGEMENT CONFERENCE
7Counsel filed with the Tribunal an updated 18-item Joint Issues List setting out one remaining issue not resolved. Joint Issue List No. 10 reads as follows under the heading Engineering, Stormwater Management, and Site Design: "If so, are the systems as proposed by the Applicant appropriately designed so as to justify a rezoning of the property to allow the proposed uses?"
8Counsel for the Applicant, Mr. Kahn, advised that Joint Issue List No. 10 is a design issue that gets into matters beyond land use planning, and outside the jurisdiction of the Tribunal. Mr. Kahn further suggested that this issue falls within the realm of the Ministry of the Environment, Conservation and Parks and that Issue 10 is redundant to Issue 9 which reads as follows: "Can dewatering, stormwater management, soils management, drainage and runoff systems be designed to be appropriately protective of the site and surroundings?"
9Mr. Thompson, for the Township, suggested they are not asking the Tribunal to micro-review theoretical designs set out in Joint Issue List No. 10. However, instead the Tribunal is being asked to consider the engineering evidence and the peer review process to be called at the Merit Hearing in order to make the finding regarding Joint Issue List No. 10 based on actual designs.
10The Panel suggested that given that findings must be made in Issues 1 to 5 under Land Use Planning heading of the Joint Issues List, as such findings are statutory in nature, the Issue raised in Issue 10 is duplicative.
11After considering the positions of both Counsel, the Panel directed a wording change in Joint Issue List No. 10 replacing "justify" with "support". Mr. Thompson indicated he was indifferent and had no objection.
12The Panel further suggested Joint Issue List No. 11 relates to the Growth Plan, and is encompassed within Joint Issue List No. 1 through 5 as being statutory.
13The Panel further suggested removing the word "all" in Joint Issue List No. 13, and both Counsel were unopposed.
14The Panel further requested clarification on the difference between Joint Issue List No. 17 and 18 which reads as follows: "17. Is there an unreasonable risk to private wells from this proposal as designed? 18. Has the applicant demonstrated that there will be no unacceptable impact to source water quality?"
15Mr. Thompson explained Joint Issue List No. 18 has a macro level and much broader impact on Source Water Protection, and agreed with the Panel that it relates to "scale of impact" but essentially is the same as "contamination".
PROCEDURAL ORDER
16The Panel ordered that Joint Issue List No. 10 be allowed to remain on the Joint Issues List, but the Panel anticipates that, should the proposed use be found to have merit, the ultimate design would be dealt with by way of a condition such as in an interim decision until such time as the various Ministry approvals have all been given.
17The Panel tasked Mr. Kahn, Counsel for the Applicant/Appellant to prepare and file a revised Joint Issues List with the Tribunal.
18The Panel directed that a 12-day Video Hearing on the Merits be held on Monday, July 8, 2024, at 10 a.m.
19The 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.
20The Merit Hearing is scheduled to proceed by video as follows:
GoToMeeting: https://meet.goto.com/996288525
Access Code: 996-288-525
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: Toll-Free 1-888-455-1389 or +1 647-497-9391. The Access Code is as indicated above.
22Parties 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
23Individuals 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.
24A Status Update as set out in the Procedural Order is to be filed 35 days prior to the commencement of the Merit Hearing.
25A Joint Hearing Plan is to be filed ten (10) days prior to the commencement of the Merit Hearing.
MEDIATION
26Counsel advised they will continue to engage in discussion to narrow the Issues.
ORDER
27THE TRIBUNAL ORDERS THAT
Participant status is conferred to Robert McCrindle, Alison McCrindle and Barbara Hagey.
A 12-day Video Hearing is scheduled to commence as set out above.
A revised Joint Issues List is to be filed with the Tribunal by Mr. Kahn, Counsel for the Applicant/Appellant.
A Status Update as set out in the Procedural Order is to be filed 35 days prior to the commencing of the hearing.
A Hearing Plan is to be filed 10 days prior to the commencement of the Hearing.
28This Panel is not seized.
29No further notice will be provided.
"Jackie Denyes"
JACKIE DENYES
MEMBER
"Sharyn Vincent"
SHARYN VINCENT
VICE-CHAIR
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 A
Procedural Order
CASE NO(S).: OLT-23-000346
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended:
Applicant and Appellant: 2374868 Ontario Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the lands to be used for the transfer, storage and processing of soil and aggregate materials from vacuum trucks for the purposes of rehabilitation
Property Address: 6678 Wellington Rd. 34; Concession 3 Front Part Lot 8
Municipality/UT: Puslinch/Wellington
Municipal File No.: OP-2020-04
OLT Case No.: OLT-23-0000346
OLT Lead Case No.: OLT-23-0000346
OLT Case Name: 2374868 Ontario Ltd. v. Puslinch (Township)
- 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
The video hearing will begin on July 8, 2024 at 10 a.m.
The parties' initial estimation for the length of the hearing is 12 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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 additions may have costs awarded against it.
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.
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.
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
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 April 24, 2024 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.
Expert witnesses in the same field shall have a meeting on or before May 9, 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 May 24, 2024.
The Appellant shall file a Status Update with the OLT case co-ordinator on or before June 3, 2024.
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 14 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.
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 14 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 14 below.
On or before June 7, 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 23 below.
On or before June 7, 2024, 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.
On or before June 18, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before June 28, 2024 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within 14 days after the evidence is received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before June 28, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 2, 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.
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.
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
LIST OF PARTIES AND PARTICIPANTS
| PARTIES | COUNSEL |
|---|---|
| 2374868 Ontario Ltd. (Appellant) | Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 Toronto, ON N5L 1A9 Jonathan Kahn Email: jonathan.kahn@blakes.com Tel: 416-863-3868 Brittiny Rabinovitch Email: brittiny.rabinovitch@blakes.com Tel: 416-863-4258 |
| Township of Puslinch | SmithValeriote Law Firm LLP 245 Hanlon Creek Blvd Suite 102 Guelph, ON N1C 0A1 Kevin Thompson Email: kthompson@svlaw.ca Tel: 519‑821‑4146 |
PARTICIPANTS
Robert McCrindle bob@well-lab.com
Alison McCrindle chickadeetrees@sympatico.ca
Barbara Hagey barb.hagey@icloud.com
ATTACHMENT 2
ISSUES LIST
Land Use Planning
Does the proposed amendment to the Township of Puslinch Zoning By-law No. 023-18 (the "ZBL") have regard for the matters of provincial interest set out in section 2 of the Planning Act, in particular subsections 2(a), 2(b), 2(c), 2(e), 2(f), 2(g), 2(h), 2(l), 2(n), 2(o), and 2(p)?
Is the ZBL consistent with Provincial Policy Statement 2020 ("PPS 2020"), in particular policies 1.1.1(c) & (h), 1.1.4, 1.1.5.2, 1.1.5.7, 1.2.6, 2.1, 2.2, 2.5.3.1, and 3.2.3?1
Does the ZBL conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (as amended), in particular sections 4.2.1, 4.2.6, and 4.2.6.3?
Does the ZBL conform with the County of Wellington Official Plan, in particular policies 4.9.3, 4.9.4, 4.9.5.2, 4.9.5.3, 4.9.7, 5.5.4, 5.6.2, 5.6.3, 5.7, 6.5.3, 6.5.4, 6.6.4, and 6.6.8?
Has compliance with section 4.23 of the ZBL been demonstrated?
If the ZBL is approved, should a holding provision be imposed requiring a) ARA licence surrender on the portion of the property subject to the ZBL, and/or, b) site plan approval as a condition of lifting the hold?
Is the form of the proposed ZBL appropriate? In particular, has the area proposed to be rezoned been appropriately drawn to capture the site, including the pond? Should the application include the abutting property to the west, given the overlap of the pond between the two properties?
Is this type of use more appropriate in Industrially-designated sites within the Township?
Engineering, Stormwater Management, and Site Design
Can dewatering, stormwater management, soils management, drainage and runoff systems be designed to be appropriately protective of the site and surroundings?
If so, are the systems as proposed by the Applicant appropriately designed so as to support a rezoning of the property to allow the proposed uses?
Environment and Soils Management
Has the applicant demonstrated that there will be no negative impacts to natural heritage features or their functions from the proposed use?
Has the applicant demonstrated compliance with the Core Greenland policies of the County Official Plan?
Noise
Have potential noise impacts been appropriately assessed and modelled?
In particular,
- have all points of reception been appropriately classified? If not, what is/are the appropriate classification(s)?
- have appropriate ground absorption coefficients been used?
Hydrogeology
Is the Subject Property appropriate for the proposed use, given the underlying geological formations and hydrogeological setting?
Does the proposal represent an undue risk of soil/groundwater contamination, that cannot be mitigated through site design?
Is there an unreasonable risk to private wells from this proposal as designed?
Sourcewater Protection
- Has the applicant demonstrated that there will be no unacceptable impact to sourcewater quality?
ORDER OF EVIDENCE
- 2374868 Ontario Ltd
- Township of Puslinch
- 2374868 Ontario Ltd, in reply