Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 05, 2023
CASE NO(S).: OLT-22-004100
PROCEEDING COMMENCED UNDER subsection 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.
Referred by: Ministry of 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 subsection 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.
Referred by: Ministry of 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: September 29, 2023 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jeanor Enterprises Inc. | Barry Dusome*, Tim Byers* |
| Lafarge Canada Inc. | Kim Mullin, Bogdan Artus |
| Ministry of Natural Resources and Forestry | Zachary D’Onofrio |
MEMORANDUM OF ORAL DECISION DELIVERED BY David Brown ON September 29, 2023 AND ORDER OF THE TRIBUNAL
1The Tribunal convened a second Status Hearing in respect of a Referral of the Minister’s proposed transfer of two licences issued pursuant to the Aggregates Resources Act (“ARA”), under Aggregate Licence No. 3748 and Aggregate Licence No. 15788 (the “Licences”).
2Jeanor Enterprises Inc. (“Jeanor”) made an application to the Ministry of Natural Resources and Forestry (“MNRF”) pursuant to s. 18 of the ARA requesting the Licences, issued to Lafarge Canada Inc. (“Lafarge”), be transferred to Jeanor. The Licenses authorize Lafarge to operate an aggregates pit for the extraction of sand and gravel on lands owned by Jeanor (the “Jeanor Lands”). The Minister served notice to Lafarge of the proposed transfer as required by s. 18(4) 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.
3At the second Case Management Conference held on April 11, 2023, the Tribunal scheduled a hearing for this matter to commence on November 20, 2023 (the “Hearing”) and issued a Procedural Order (“PO”) for the proceedings. The Tribunal also scheduled a Status Hearing for September 29, 2023, “if it may be of assistance.”
4The Tribunal convened a Status Hearing on August 30, 2023, at the request of the Parties, to address a procedural issue arising from correspondence that had been exchanged by the Parties. The correspondence raised a question of whether Jeanor was still pursuing the transfer of the Licenses and whether the matter before the Tribunal should be continued. The Tribunal addressed the issues raised and the matter is to proceed. The Tribunal canvassed the Parties at that time to determine if there were any other issues to be addressed. No other issues were raised.
5In light of the Status Hearing held on August 30, 2023, the Tribunal canvassed the Parties on September 25, 2023 to determine if the Status Hearing scheduled on September 29, 2023 was still required. Jeanor requested that the Tribunal proceed with the Status Hearing, as they are seeking direction from the Tribunal with respect to the Parties ability to provide a Statement of Agreed Facts (“SAF”), as required by the PO. It is Jeanor’s submission that the SAF can not be provided if the Parties’ experts do not meet at the Jeanor Lands to inspect the aggregates pit that is the subject of the Licenses.
6Mr. Dusome referred the Tribunal to the MNRF Procedure No. A.R. 2.02.01, issued March 15, 2006, and reviewed Procedure Step 4 that he submits requires an inspection of the property with the transferee and transferor to be conducted in connection with the requested transfer of the Licenses. He advised that the MNRF refuses to meet at the Jeanor Lands.
7The Tribunal was advised that the meeting of the experts, as required by paragraph 10 of the PO, was held on September 27, 2023. The Tribunal confirmed with each of the Parties that this meeting occurred, and their respective experts participated as required.
8Mr. Byers questioned how the SAF can be completed if the MNRF refuses to meet at the Jeanor Lands and inspect the aggregates pit?
9The Tribunal advised Mr. Byers that the experts will determine what they require to prepare a SAF for submission to the Tribunal. Further, it is typical that a SAF will be prepared by each discipline of the experts that meet and it will include their signatures. The Tribunal further advised Mr. Byers that if any of the Parties do not want to meet on the Jeanor Lands, the Tribunal will not be compelling them to do so.
10The Tribunal finds that the concerns raised by Mr. Byers appear to challenge the validity and veracity of the opinions being proffered by the experts as they have not attended at the Jeanor Lands. The Tribunal advised Mr. Byers that these matters are appropriately raised at the Hearing and suggested that he may wish to raise these concerns, through his representative, at the Hearing in the context of the evidence being considered by the presiding Member of the Tribunal. The Status Hearing is convened to address procedural matters leading up to the hearing.
11Ms. Mullin raised her client’s concern with the Witness Statement submitted by Andrew Topp dated September 27, 2023, on behalf of Jeanor (the “Topp WS”). She explained that Lafarge filed the Witness Statements provided by their experts on September 21, 2023 as required by paragraph 13 of the PO. It was also noted that the MNRF also filed their expert’s Witness Statements on September 21, 2023.
12Ms. Mullin advised that Jeanor filed the Topp WS and the Witness Statement of William Fitzgerald, on September 27, 2023, just prior to the commencement of the experts meeting occurring on that date and six days after the date required by the PO. The Topp WS includes reply evidence to the Witness Statements filed by Lafarge and included a copy of a letter addressed to Jeanor from Lafarge detailing an offer made by Lafarge to settle the matter (the “Lafarge Letter”). The Lafarge Letter was marked in large bold font that it was “Confidential and Without Prejudice” and the letter explains what this term means specifically in the context of the offer contained therein. Ms. Mullin also noted that the Topp WS makes reference to the Lafarge Letter in the body of the Witness Statement.
13Ms. Mullin submitted that the late filing of the Witness Statements does not comply with the PO, the inclusion of the Lafarge Letter is inappropriate and the references to the Lafarge Letter and the reply submissions contained within the Topp WS are also inappropriate. She requested the Tribunal direct that the Topp WS be revised to remove the Lafarge Letter and remove any reference to the Lafarge Letter contained within the Witness Statement. Further, she requested that the Topp WS be accepted as Mr. Topp’s reply statement as provided for in paragraph 17 of the PO.
14Mr. D’Onofrio advised that MNRF supports the position of Lafarge with respect to the Topp WS.
15With respect to the issue of a meeting at the Jeanor Lands, Mr. D’Onofrio clarified that the MNRF initiated the scheduling of the meeting of the experts canvassing the Parties for availability. Jeanor had requested that the meeting occur at the Jeanor Lands, however Lafarge did not consent and the MNRF did not pursue nor schedule a meeting on the Jeanor Lands.
16The Tribunal expressed concerns with the late filing of the witness statements and the inclusion of the Lafarge Letter by Jeanor. The Tribunal advised that the PO is created to assist the Tribunal and the Parties in preparing for a hearing and conducting a hearing. The dates provided are intentional and they are to be adhered to. Submission of a witness statement six days after the date set out in the PO without any explanation is unacceptable. If a Party is unable to comply with a date, they are to notify the Tribunal and to seek direction from the Tribunal. The PO was issued May 17, 2023, four months prior to the date on which the witness statements were to be filed. The excuse proffered by the Jeanor representatives that Jeanor’s witnesses were busy focussing on a meeting to be held on the Jeanor Lands is not an acceptable reason for missing the date set out in the PO, particularly in light of the fact that the Parties never consented to the meeting occurring on the Jeanor Lands.
17The Tribunal reviewed the PO with the Jeanor representatives and confirmed that they are aware of the expectations of the Tribunal in respect to complying with the future dates set out in the PO.
18In respect to the Topp WS, the Tribunal directs that Jeanor is to provide to the Tribunal and the Parties on or before Friday, October 6, 2023 a revised Witness Statement from Andrew Topp. The revised witness statement shall not include the Lafarge Letter nor any reference to the Lafarge Letter within the revised witness statement. In all other respects, the Topp WS shall remain unaltered.
19Further, the Topp WS, as revised, will be considered the Response of Mr. Topp as provided for in paragraph 17 of the PO.
20The 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.