Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 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/ Appellant: Nelson Aggregate Co.
Objector: Alejandra Calle
Objector: Alex Brock
Objector: Anna Denvir et al.
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
PROCEEDING COMMENCED UNDER subsection 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
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Applicant/ Appellant: Nelson Aggregate Co.
Respondent: Niagara Escarpment Commission
Subject of appeal: Refusal of a Development Permit Application to allow for development related to the proposed quarry operations.
Reference Number: H/E/2020-2021/108
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-23-000541
OLT Lead Case No.: OLT-22-004372
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Applicant/ Appellant: Nelson Aggregate Co.
Respondent: Niagara Escarpment Commission
Subject of appeal: Referral of the application to amend the Niagara Escarpment Plan to redesignate the lands from Escarpment Rural Area to Mineral Resource Extraction Area to expand the existing aggregate resource extraction operation
Reference Number: PH 219 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-23-000631
OLT Lead Case No.: OLT-22-004372
Heard: October 11, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Nelson Aggregate Co. (“Nelson”/“Appellant”)
David White QC
City of Burlington (“City”)
Rodney Northey
Jessica Boily
Regional Municipality of Halton (“Region”)
David Germain
Chris Barnett
Brittany Maione
Conservation Halton
No appearance (withdrawn)
Niagara Escarpment Commission (“NEC”)
Ken Hare
Demetrius Kappos
Protecting Escarpment Rural Land and Conserving Our Rural Ecosystems of Burlington Inc. (“PERL and CORE”)
David Donnelly (in absentia)
Roger Goulet* (lay representative)
Objectors
Self-represented*
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON OCTOBER 11, 2023 AND ORDER OF THE TRIBUNAL
1This Decision and Order relate to the Hearing of the second Case Management Conference (“CMC”) in relation to Appeals by Nelson Aggregate Co. (“Nelson”/“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.
2Two related Niagara Escarpment Commission (“NEC”) Appeals, OLT-23-000541 and OLT-23-000631 (“NEC Appeals”) have been included for the purpose of a consolidation with the Planning/ARA Appeals by a City of Burlington (“City”) Notice of Motion. The NEC Appeals are for a first CMC and notice for the case management date has been given by the Tribunal.
Case Management Conference
3The Tribunal dealt with matters of case management before turning to the Motion, and the Responses to the Motion by the Regional Municipality of Halton (“Region”) and Nelson.
4Conservation Halton had withdrawn by Notice to the Tribunal, having ascertained that there is no remaining issue of concern to it.
5Mr. Donnelly, Counsel for Protecting Escarpment Rural Land and Conserving Our Rural Ecosystems of Burlington Inc. (“PERL and CORE”), had corresponded with the Tribunal that he would be at another hearing and would not be present until the afternoon. He supports the City’s Motion.
Draft Procedural Order and Issues List
6Parties had circulated a Draft Procedural Order (“DPO”) and Issues List (“IL”). Mr. White, Counsel for Nelson, requested a Hearing date to be fixed so that the deadlines could be filled in the DPO and Parties could schedule the necessary process toward the Hearing. Other Counsels appear to be amenable to that suggestion, and each Party intends to call somewhere in the vicinity of 10 to 15 witnesses. The estimated number of Hearing days was said to be 60 to 65 days. The Hearing to be requested will be a date far enough in the future to enable two or three more CMC’s to deal with processes, scoping of issues and other procedural matters.
7Despite Counsels’ request, the Tribunal’s view was that there were too many moving parts to enable the scheduling of a Hearing date. Particularly when 60 to 65 days are requested, the dates will be fixed far in the distance. Since the Motion is to seek a consolidation of Appeals, which is yet to be decided, issues will need to be scoped. PERL and CORE are still in the process of discussions with objectors to scope their issues and to make the Hearing more efficient. The actual number of witnesses required by each of the Parties is unclear. Further, it will be sensible to just schedule another CMC until a decision on the Motion is made and the DPO can be finalized accordingly.
8The Tribunal scheduled a further CMC which will proceed by way of Video Hearing, commencing at 10 a.m. on Thursday, March 7, 2024. 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
9Parties 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.
10Persons 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 the same as the access code noted above.
11Individuals 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.
CITY’S NOTICE OF MOTION/REGION’S RESPONSE/NELSON’S RESPONSE
12Prior to hearing on the Motion, the Tribunal sought clarification from Mr. Northey, Counsel for the City, with respect to the affidavit in support of the Motion that was filed by a law clerk.
13Clarification as to matters of a motion where the affiant is required to attest to the knowledge of facts, matters, and even as to the law, whether a law clerk of the firm represents the firm or has the ostensible authority to affirm such an affidavit that request certain orders from the Tribunal.
14After canvassing the preliminary views of Counsels present, and after the Tribunal’s inquiry as to whether Mr. Northey will proceed with the Motion (noting that if he proceeds, the Tribunal will require submissions on that law clerk’s affirmation issue); Mr. Northey opted to withdraw the Motion, with liberty to file afresh.
15The Tribunal will note that the Motion was not heard and Mr. White has expressed disappointment that the Motion that has been slated to be heard is now postponed, with a new filing that will prejudice his client with the delay. He reiterated that the Notice of Motion is, for him, defective, and that there are a number of non-compliance matters of schedule that he had noted in his Response.
16Mr. Northey replied that Mr. White had himself not consented to the proposed schedule, hence the City had then proceeded under Rule 10 of the Tribunal’s Rules of Practice and Procedure.
17After several exchanges of views, the Parties settled on and the Tribunal directed the following.
18Mr. Northey will not make changes to the Notice of Motion. The new affiant will file an affidavit to support the Notice of Motion. The Tribunal will hear the Motion based on the new affidavit and all documents filed in the Motion, and all documents in the Responses. There is no requirement for the Region or Nelson to file further Responses.
19At the next CMC, the DPO and IL are to be finalized, subject to the outcome of the City’s Motion. The City’s Notice of Motion will be heard at the next CMC.
ORDER
20The Tribunal Orders:
That a Case Management Conference date is scheduled on Thursday, March 7, 2024 by Video Hearing.
That the Parties are to be prepared to finalize the Procedural Order and Issues List at the next Case Management Conference, subject to the outcome of the City’s Motion.
The City’s Motion will be heard at the next Case Management Conference.
“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.