Fowler Construction Company Limited v Ontario (Ministry of Natural Resources and Forestry) 2023 OLT mini 1077

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 11, 2023 CASE NO(S).: OLT-22-004878

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Muskoka Environmental Alliance Inc. Applicant: Fowler Construction Company Limited Subject: Zoning By-law Amendment Description: To permit an expansion of the Childs Pit/Quarry operation Reference Number: D14-10/20 Property Address: 1255 Bonnie Lake Road Municipality/UT: Town of Bracebridge/District of Muskoka OLT Case No.: OLT-22-004878 OLT Lead Case No.: OLT-22-004878 OLT Case Name: Muskoka Environmental Alliance Inc. v. Bracebridge (Town)

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

Applicant: Fowler Construction Company Limited Objectors: Laura Pratt, Nancy Pratt, Ministry of Natural Resources and Forestry Subject: Application for a license Description: To permit an expansion of the Childs Pit/Quarry operation Reference Number: License Application #626505 Property Address: Lots 15 & 15, Concession 10, and Lots 14 – 17, Concession 9 and associated Road Allowances (Macaulay) Municipality/UT: Town of Bracebridge/District of Muskoka OLT Case No.: OLT-23-000408 OLT Lead Case No.: OLT-22-004878 OLT Case Name: Fowler Construction Company Limited v. Ontario (Ministry of Natural Resources and Forestry)

Heard: August 25, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Town of Bracebridge	H.G. Elston, C. Emmett
Muskoka Environmental Alliance Inc.	D. Donnelly
Fowler Construction Company Ltd.	K. Mullin, B. Artus (in absentia)
Nancy Pratt and Laura Pratt	D. Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON AUGUST 25, 2023 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) relating to objections commenced pursuant to s. 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8 (“ARA”) opposing a license application filed by Fowler Construction Company Ltd. (“Applicant”) for a Category 1 and 2, Class A Quarry License (“ARA License”).

2This is the second CMC conducted pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c.P.13 as amended (“Planning Act”) relating to an appeal filed by Muskoka Environmental Alliance Inc. (“Appellant”) following the approval by the Town of Bracebridge (“Town”) of Zoning By-law Amendment No. 2022-082 (“ZBA”).

3Both the ARA License and the ZBA relate to the property municipally known as 1255 Bonnie Lake Road, Bracebridge (“Subject Property”). The Subject Property is designated in the Town Official Plan to permit Aggregate Extraction.

4The Applicant owns and operates an existing quarry on Bonnie Lake Road. The existing quarry currently has a license area of 234.7 hectares permitting the Applicant to extract an area of 202 hectares. The Applicant has applied for an ARA License and an approved ZBA is required as part of the licensing process, all of which are being pursued for the purpose of extending the existing quarry operation. The Applicant has applied for a Category 1, Class A (Pit Below Water) and a Category 2, Class A (Quarry Below Water) license for a proposed license area of 163.1 hectares and a proposed extraction area of 143.2 hectares.

5At the first CMC heard April 28, 2023 by a Panel differently constituted, the decision of the Tribunal noted that the ARA License matter was forthcoming and a determination on the consolidation of the ARA License and ZBA appeal would be made at this CMC. It is further noted that there were no Party or Participant requests brought forward at the first CMC or at the present CMC.

STATUS REQUESTS / OBJECTORS

6Section 11(5) of the ARA allows the Minister to refer any objections to license applications to the Tribunal. By letter dated February 10, 2023, the Ministry referred the following Objectors to the Tribunal: Laura Pratt, Nancy Pratt and Ministry of Natural Resources and Forestry (“MNRF”).

7By letter dated July 14, 2023, MNRF withdrew its objection of the ARA License noting that all of its objections had been addressed to its satisfaction. As such, the remaining objectors to the ARA License are Laura Pratt and Nancy Pratt, both of whom are represented by David Donnelly.

CONSOLIDATION

8Although there was no motion before the Tribunal, the Parties jointly requested that the Tribunal consolidate the ZBA appeal (OLT-22-004878) with the ARA License proceedings (OLT-23-000408). The Parties had alluded to the potential consolidation request at the first CMC and there were no concerns or objections raised by anyone present at the CMC.

9After hearing the submissions of the Applicant, the Tribunal agreed that consolidation would be cost-effective and efficient given that the matters relate to the same property, engage the same Counsel, and will have overlapping evidence called at the merit hearing. The Tribunal directed that the two matters be consolidated pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure.

OPPORTUNITIES FOR SETTLEMENT

10The Applicant advised that it has had discussions with Ms. L. Pratt and Ms. N. Pratt and was open to engaging in discussions with all Parties. The Appellant and the Town agreed that they were in favour of continuing discussions in an effort to move the issues forward and work jointly towards resolution, if possible.

HEARING DATES AND DRAFT PROCEDURAL ORDER

11The Appellant requested that the Tribunal schedule a further CMC given that the appeal relates to a very large quarry and the Issues List is extensive. The Appellant noted that a further CMC could be used as a “place holder” to address any possible settlement, additional Party requests or deal with evidentiary issues that may arise.

12The Tribunal declined to schedule a further CMC noting that the Tribunal’s calendar is a scarce resource not to be used as a “place holder”. If the Parties reach a settlement or require a motion in advance of the hearing, requests for dates can be made through the Case Coordinator. In response to the Appellant’s submission that a further CMC could be used to address additional Party requests, the Tribunal noted that there have been two opportunities for Party requests to be made and none have come forward. At this point in the proceedings, any requests for Party status will require a motion pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedure.

13The Applicant and the City jointly requested that the Tribunal schedule a fifteen (15) day hearing for the proceedings. The Appellant submitted that the Issues List was extensive and would engage approximately seven disciplines and as such, a twenty (20) day hearing would be more appropriate. The Tribunal agreed with the Appellant noting that the Issues List was fulsome and would require evidence and testimony from a number of experts. The Tribunal agreed to schedule a twenty (20) day hearing and directed the Parties to amend paragraph 15 of the Procedural Order to extend the notice to the Tribunal confirming the reserved hearing dates to fifty-five (55) days.

14The Tribunal scheduled a twenty (20) day video hearing commencing Monday May 27, 2024 – Friday June 21, 2024, starting at 10:00 a.m.

15Parties 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.

16The hearing is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/680885805

Access Code: 680-885-805

17Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

18Parties 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

19Individuals 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.

20In advance of the CMC, the Parties submitted a draft Procedural Order and Issues List which was reviewed by the Tribunal. The Applicant advised that exchange dates and details in the Procedural Order will be finalized once hearing dates were set. The revisions will include amending paragraph 15 (as set out in paragraph 13 above) and adding Ms. L. Pratt and Ms. N. Pratt as being represented by Mr. Donnelly.

21Following the CMC, the Parties submitted a final Procedural Order and Issues List attached as Schedule 1 to this Decision, which the Tribunal reviewed and approved and the proceedings shall be governed by it.

ORDER

22The Tribunal orders that Case File Nos. OLT-22-004878 and OLT-23-000408 are consolidated in accordance with Rule 16 of the Tribunal’s Rules of Practice and Procedure.

23The Tribunal orders that the hearing shall be held by video hearing commencing on Monday, May 27, 2024 commencing at 10:00 a.m. Twenty (20) days have been set aside.

24The Tribunal orders that the Procedural Order appended as Schedule 1 shall govern the proceedings.

25The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

26No further notice will be given.

“C. Hardy”

C. HARDY 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.

CASE NO(S).: OLT-22-004878

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Muskoka Environmental Alliance Inc. Applicant: Fowler Construction Company Limited Subject: Zoning By-law Amendment Description: To permit an expansion of the Childs Pit/Quarry operation Reference Number: D14-10/20 Property Address: 1255 Bonnie Lake Road Municipality/Upper Tier: Town of Bracebridge/District of Muskoka OLT Case No.: OLT-22-004878 OLT Lead Case No.: OLT-22-004878 OLT Case Name: Muskoka Environmental Alliance Inc. v. Bracebridge (Town)

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

Applicant: Fowler Construction Company Limited Objectors: Laura Pratt, Nancy Pratt, Ministry of Natural Resources and Forestry Subject: Application for a license Description: To permit an expansion of the Childs Pit/Quarry operation Reference Number: Licence Application #626505 Property Address: Lots 15 & 16, Concession 10, and Lots 14-17, Concession 9 and associated Road Allowances (Macaulay) Municipality/Upper Tier: Town of Bracebridge/District of Muskoka OLT Case No.: OLT-23-000408 OLT Lead Case No.: OLT-22-004878 OLT Case Name: Fowler Construction Company Limited v. Ontario (Ministry of Natural Resources and Forestry)

PROCEDURAL ORDER

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 May 27, 2024 at 10:00 a.m. at: The hearing is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/680885805

Access Code: 680-885-805

Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

Parties 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

3. The parties’ initial estimation for the length of the hearing is 20 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.

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 January 26, 2024 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 March 15, 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 March 22, 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 March 29, 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 March 29, 2024, a participant shall provide copies of their written participant 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 April 1, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 17, 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. On or before April 26, 2024 the parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence 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 May 17, 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 May 17, 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. A Summary of Filing Dates is set out in Attachment 4.

24. 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 – PARTIES

Party	Representative/Contact Information
Town of Bracebridge	H.G. Elston 391 First Street, Suite 303 Collingwood, ON L9Y 1B3 Harold Elston T: 705-443-8183 E: counsel@haroldelston.com Barriston LLP 151 Ferris Lane, Suite 300 Barrie, ON L4M 6C1 Carly Emmett T: 705-792-9200 E: cemmett@barristonlaw.com
Muskoka Environmental Alliance Inc.	Donnelly Law 276 Carlow Avenue, Suite 203 Toronto ON N6B 3L1 David Donnelly T: 416-572-0464 E: david@donnellylaw.ca
Laura Pratt and Nancy Pratt	Donnelly Law 276 Carlow Avenue, Suite 203 Toronto ON N6B 3L1 David Donnelly T: 416-572-0464 E: david@donnellylaw.ca
Fowler Construction Company	Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Kim Mullin/Bogdan Artus T: 416-203-5633/416-203-7573 E: kmullin@woodbull.ca /bartus@woodbull.ca

ATTACHMENT 2 – ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

1. Does the application to amend the Town of Bracebridge Zoning By-law (“Proposed Amendment”) have appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act, in particular, subsections 2(a), 2(c), 2(h) and 2(o)?
2. Is the Proposed Amendment consistent with the Provincial Policy Statement, 2020 in particular but not limited to sections 1.1.5.4, 1.2.6, 1.6.7.1, 1.7.1, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2, 2.1.5, 2.1.6, 2.1.7,2.1.8, 2.2, 2.5.2.1, 2.5.2.2?
3. Does the Proposed Amendment conform with the District of Muskoka Official Plan, in particular but not limited to sections C1.3.1 and C1.3.2, C2.2; K1; K4.3, K4.3.2?
4. Does the Proposed Amendment conform with the Town of Bracebridge Official Plan, in particular but not limited to sections:

• A7.3.2.3; A7.4.2.1, A7.4.2.2, A7.4.2.3, A7.4.2.4, A7.11, A7.11.2.2, A7.11.2.3 (Goals and Objectives);
• B10, B10.3, B10.4 (Environmental Features);
• H1.3, H1.3.2, H1.3.4 H1.5.5, H1.5.6 (Aggregate Extraction); and
• I1.2, I1.2.2, I1.2.3 (Transportation, Servicing and Utilities)?

5. With respect traffic impacts:

a) Will the proposed quarry result in any unacceptable traffic and transportation impacts? b) Are there mitigation measures, monitoring and enforcement plans to accommodate the increase in traffic? c) Are improvements required now to the proposed haul route? d) Are improvements required to Bonnie Lake Road and the intersection of Bonnie Lake Road/Hwy. 117 and, if so, how will these improvements be secured and are there thresholds for when the improvements will be required?

6. Are the haul routes, including Hwy 117 and the intersection at Hwy 11 appropriate in terms of:

a) Safety; b) Impacts on road maintenance; c) Noise impacts; d) Compatibility with the character of the urban areas along the haul route; e) Social impacts; f) Business impacts; g) Geometrics; h) Roadway operations and future growth conditions; and i) Consideration for alternative routes?

7. With respect to potential noise impacts:

a) Will the proposed quarry result in any unacceptable noise impacts to nearby noise sensitive uses? b) Is the proposed monitoring and mitigation adequate to ensure compliance with applicable Ministry of the Environment, Conservation and Parks (MECP) guidelines/standards? c) If the answer to (b) is negative, what additional monitoring and mitigation requirements could be put in place to ensure that MECP guidelines/standards are met?

8. With respect to potential air quality impacts:

a) Will the proposed quarry result in any unacceptable air quality impacts to nearby sensitive uses? b) Is the proposed monitoring and mitigation adequate to ensure compliance with applicable MECP guidelines/standards? c) If the answer to (b) is negative, what additional monitoring and mitigation requirements could be put in place to ensure that MECP guidelines/standards are met?

9. With respect to potential blasting impacts:

a) Will the proposed blasting activities result in any unacceptable impacts? b) Will the proposed blasting activities below the Muskoka River result in any unacceptable impacts? c) Should the applications be approved, what if any mitigation measures should be imposed to address blasting impacts?

10. With respect to potential hydrogeological and surface water impacts:

a) Will the proposed quarry operations result in any unacceptable hydrogeological impacts? b) Will the proposed quarry operations negatively impact the pre-quarrying water levels and water quality in the Sage Creek Wetlands and Muskoka River? c) Will there be any adverse effects resulting in spring flooding downstream along the Muskoka River due to operations? d) Should the applications be approved, what if any mitigation and monitoring measures should be imposed to address hydrogeological impacts?

11. Do the proposed site plan drawings and license conditions include adequate monitoring and contingency measures to ensure that the proposed quarry will not have any adverse impacts on private drinking water wells in the vicinity of the proposed quarry?
12. Is the Aggregate Resources Act licence application, including its Site Plan (“ARA Application”), consistent with the "matters to be considered" under section 12 of the Aggregate Resources Act, in particular sections 12(b), (d), (e), (f), (h), (i) and (j) and the Aggregate Resources of Ontario: Provincial Standards (Category 2)?
13. Will appropriate mitigation be in place to minimize any adverse impacts arising from the proposed quarry extension on the surrounding residences, commercial uses and natural features?
14. Does the Proposed Amendment appropriately implement the ARA Application?
15. Has the applicant addressed the mitigation of impacts on site entrance and haul route and has the applicant demonstrated that the proposal will not result in unacceptable traffic operations or safety impacts?
16. Have the impacts on specific land uses within the community been adequately identified and has the applicant proposed sufficient mitigation measures?
17. Are the proposed Site Plan Notes comprehensive and do they represent longer term commitments by the proponent to operate and manage the Quarry to Town standards/policies and do they provide certainty that monitoring and mitigation measures will address foreseen and unforeseen impacts in the community?
18. Has the applicant carried out progressive rehabilitation in compliance with the licence requirements for the existing quarry?
19. Should the Site Plan Notes limit extraction to a depth of 1.5 m above the established (seasonally high) groundwater table on all lands within the proposed licence proposed for above-water extraction?
20. Does the proposal give rise to an undue impact on the surrounding area and its character?
21. Should a cumulative effects assessment be undertaken that takes into consideration the existing Childs Pit, the Kenny Pit operations and, if so, what are the cumulative effects of the proposed quarry expansion?
22. If the Tribunal does approve the proposal, what is the appropriate form of the zoning bylaw and site plan and what conditions of the Tribunal’s approval are appropriate?
23. Does the proposal represent good planning, and is it in the public interest?

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Fowler Construction Company
2. Town of Bracebridge
3. Muskoka Environmental Alliance/Laura Pratt and Nancy Pratt
4. Reply by Fowler Construction Company

ATTACHMENT 4 – SUMMARY OF FILING DATES

Date	Event
January 26, 2024	Exchange of witness lists (names, disciplines and order to be called)
March 15, 2024	Expert meetings prior on or before this date
March 22, 2024	Agreed statement of expert witnesses (if any)
March 29, 2024	Exchange of witness statements and participant statements, summonsed witness outlines and participant statements
April 1, 2024	Parties to advise if all hearing days required
April 26, 2024	Exchange of reply witness statements
May 17, 2024	Exchange of visual evidence
May 17, 2024	Finalize joint document book
May 17, 2024	Hearing plan filed with Tribunal
May 27, 2024	Hearing commences