Dewdney Mountain Farms Limited v. Trent Lakes (Municipality), 2024 CanLII 106145

Ontario Land Tribunal

ISSUE DATE: October 21, 2024

CASE NO(S).: OLT-23-000354

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Dewdney Mountain Farms Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBL to permit a quarry use and associated uses on the subject lands

Reference Number: ZBA 20-14

Property Address: 543 Ledge Road

Municipality/UT: Municipality of Trent Lakes

OLT Case No.: OLT-23-000354

OLT Case Name: Dewdney Mountain Farms Limited v. Trent Lakes (Municipality)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Trent Lakes Concerned Citizens

Request for: Request for Dismissal Without a Hearing

Heard: May 6, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Dewdney Mountain Farms Limited

David White

Municipality of Trent Lakes

John Ewart

Trent Lakes Concerned Citizens

Eric Gillespie

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON MAY 6, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On May 6, 2024, a Hearing commenced concerning an appeal pursuant to s. 34(11) of the Planning Act (“Act”) resulting from the failure of the Municipality of Trent Lakes (“Municipality”) to make a decision within the statutory timeframe of the Act on an application for a Zoning By-law Amendment (“ZBA”) to amend the Municipality’s Comprehensive Zoning By-law No. B2014-070. The appeal has been filed by Dewdney Mountain Farms Limited (“Applicant”) pertaining to the property known municipally as 543 Ledge Road in the Municipality (“Subject Property”). The purpose of the proposed ZBA is to permit a Quarry Operation-Use, along with ancillary and accessory uses.

2The Hearing was scheduled for five days, but did not proceed past May 6, 2024, and was adjourned, due to the reasons described below.

3Two Case Management Conferences (“CMC”) previously took place on this matter, on August 18, 2023 (“First CMC”) and November 3, 2023 (“Second CMC”), with the Decisions issued on August 25, 2023 and November 20, 2023, respectively:

a. At the First CMC, it was confirmed that there were no issues with Notice as adequate Notice had been provided. The Affidavit of Service of Jenny Gillegean, affirmed on July 12, 2023, was marked as Exhibit 1 to this proceeding. Additionally, Trent Lakes Concerned Citizens (“TLCC”) were granted Party status, and the following were granted Participant status: Neal McCarthy, 1000190777 Ontario Inc., 1000190778 Ontario Inc., 1000190781 Ontario Inc., and Rebecca Jory.

b. At the Second CMC, the Procedural Order and Issues List were ratified and issued by the Tribunal, and this Hearing was scheduled for May 6-10, 2024.

4On March 27, 2024, TLCC brought a motion seeking an Order of the Tribunal dismissing the Applicant’s appeal (“Dismissal Motion”). In the Decision and Order dated May 1, 2024, the Tribunal denied the Dismissal Motion (“Tribunal’s May Decision”).

5In the morning of May 6, 2024, just prior to the commencement of the Hearing, the Tribunal received a Motion Record served by TLCC. This motion sought an Order of the Tribunal to dismiss the Appeal on the basis that the issues to be addressed lie outside of the jurisdiction of the Tribunal (“Jurisdiction Motion”). This Jurisdiction Motion, as described below, was addressed orally on May 6, 2024.

JURISDICTION MOTION

Evidence and Issues to be Addressed

6The evidence before the Tribunal at the Jurisdiction Motion was the Motion Record submitted by TLCC, which was identified as Exhibit 2, containing a Notice of Motion dated May 4, 2024 and the Affidavit of Sarah Quildon, along with exhibits, affirmed on May 6, 2024. Due to the last-minute nature of the Motion, the other Parties provided their arguments by way of oral submissions made by Counsel.

7The Tribunal addressed the following issues:

a. Can the time for the service of the Jurisdiction Motion be abridged?

b. Does the Tribunal have the jurisdiction to address this appeal as scheduled?

c. If the Tribunal does not have jurisdiction, should the appeal be dismissed?

d. If the appeal is not dismissed, could the Hearing proceed as scheduled?

Position of the Parties – TLCC and the Municipality

8TLCC’s basis for bringing this last-minute Jurisdiction Motion, seeking dismissal of the appeal for a second time, was that three new matters had arisen, which necessitated the bringing of a new Motion seeking dismissal:

a. The release of the Tribunal’s May Decision clarified that the only pertinent issue in this ZBA appeal was with respect to the haul route. The Applicant had submitted evidence that demonstrated that a significant portion of the proposed haul route is located exclusively on third-party private lands, though the third-party (or parties) has not been identified and is not a Party to this proceeding. As potential third parties have not been notified, the Tribunal does not have jurisdiction to proceed with a proceeding when proper Notice has not been affected, and the owner(s) of lands that may be affected have not been given the opportunity to participate.

b. On the day after the Tribunal’s May Decision was released, May 2, 2024, the Applicant commenced an action in the Superior Court of Justice (“Superior Court Action”) seeking the same relief (quoted below) that the Applicant is seeking in this Tribunal proceeding. This Tribunal does not have jurisdiction over private lands where the rights of the owner(s) will be materially affected.

c. The commencement of the Superior Court Action has resulted in a multiplicity of proceedings, which is an abuse of process. Moreover, the decision arising from the Superior Court Action will be binding on the Tribunal.

9The Motion Record contained the Statement of Claim dated May 2, 2024 (“SOC”), filed in the Superior Court Action. The Applicant named the Municipality as the defendant and seeks the following relief:

a. A declaration that By-law 2022-115 is void as it confirms Resolution No. R2022-655 of the Council of the Municipality of Trent Lakes made December 6, 2022 including a reference to a proposed Haul Route as being on a Forced Road;

b. In the alternative, damages in the amount of $15,000,000;

c. A declaration that Ledge Road and Quarry Road, including that portion of Ledge Road that does not traverse the original road allowance, located in Trent Lakes, Ontario (the “Roads”), are highways pursuant to section 26 of the Municipal Act;

d. A declaration that the Roads are owned by the Municipality of Trent Lakes, as the road authority having jurisdiction under applicable law;

e. A declaration that the Roads are accurately contained in the survey prepared by Christopher E. Musclow, JBF Surveyors;

f. prejudgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

g. postjudgment interest in accordance with section 129 of the Courts of Justice Act;

h. the costs of this proceeding, plus all applicable taxes; and

i. such further and other Relief as to this Honourable Court may seem just.

10As such, TLCC sought the relief that, based on the new information outlined above, the Tribunal consider for a second time whether to dismiss the appeal. In the alternative, it was submitted that the Hearing could not proceed regardless, because the proper Parties had not been notified.

11The Municipality’s Counsel agreed with the relief sought by TLCC. The Municipality’s Counsel also identified May 1 and 2, 2024 as days that provided new information, and stated that the Tribunal’s consideration is related to events that occurred on those days. The Municipality also agreed that potential Parties were missing from this Hearing, and had not been notified. Thus, the Hearing could not proceed. The haul route may be found to be public or private, which declaration was dependent on the finding in the Superior Court Action.

12The Municipality’s Counsel submitted that the Tribunal could adjourn this Hearing while awaiting a decision from the Superior Court, but that could be for an indefinite amount of time. Thus, the Municipality asked that the Tribunal dismiss the appeal on a without prejudice basis, based on the new information that had come to light, and to allow this appeal to come back after the Superior Court Action had concluded. The Municipality emphasized that the Applicant made the decision on May 2, 2024 to go to the Superior Court because that is the proper jurisdiction, and as such, that proceeding should conclude before this one could proceed.

Position of the Parties – Applicant

13The Applicant’s Counsel submitted that this Jurisdiction Motion was barred by res judicata. It was an attempt by TLCC to have the Tribunal consider a dismissal yet again, despite the Tribunal having ruled against a dismissal just a few days before. TLCC’s Jurisdiction Motion was almost identical to the previous Dismissal Motion that the Tribunal had considered and decided on in the Tribunal’s May Decision.

14With respect to the Superior Court Action, the Applicant’s Counsel explained that the matter before the Tribunal is a ZBA application, while the matter before the Superior Court is with respect to the status of a road. Those are separate and distinct matters, and no duplicity of proceedings is taking place. At the Hearing, the Applicant intended to ask the Tribunal to approve the ZBA on an interim basis, with the Order withheld pending the approval of a haul road agreement or a resolution of the Superior Court Action. He referred to the case of D. Crupi & Sons Limited v Toronto (City), 2019 CanLII 10221 (ON LPAT) (“Crupi Case”) as an example of the Tribunal “virtually always” putting aside the road matter and allowing it to be dealt with by a road agreement. The Tribunal’s role is only to deal with the zoning and not with the haul route (though he did refer to s. 12 of the Aggregate Resources Act, wherein it is indicated that the Tribunal shall have regard for the haul road when making decisions on the instruments before it).

15The Applicant’s Counsel acknowledged that the status and determination of the road was essential and necessary. However, he argued that the ZBA could be dealt with by the Tribunal without a need for confirmation of what is before the Superior Court, since the Tribunal could make an interim order pending the decision of the Superior Court. The Tribunal would simply have to satisfy itself that the haul route is satisfactory and withhold its Order until there is a haul route agreement. In fact, the proposed ZBA before the Tribunal has a holding provision requiring such a haul route agreement.

16Moreover, in response to TLCC and the Municipality’s argument that the SOC is brand new information, necessitating or allowing for a new Motion seeking dismissal, the Applicant’s Counsel submitted that the matter before the Superior Court and the Tribunal were entirely different claims, and are totally different legal issues. Thus, the existence of the SOC is not new information that would impact the Tribunal proceeding.

17The Applicant’s Counsel did agree that the Tribunal likely did not have jurisdiction to determine the ownership of the road. In response to a question from the Tribunal on what would happen to its Order if the Superior Court should determine that it is a private road, the Applicant’s Counsel stated that the Tribunal’s Order, namely the approved ZBA, would be rendered moot.

18He emphasized that the likelihood of this was very minimal because the Superior Court would definitely find this to be a public road, as there was overwhelming evidence to support it being a public road. He planned to go through that evidence at this Hearing. The Municipality had been negligent in not identifying the road as a Municipal road, despite the fact that it clearly is one. As a result, the Applicant has been forced to commence a Superior Court Action.

19He further argued that TLCC is simply attempting to stop the quarry at all costs, and is bringing this Jurisdiction Motion now for the same reason. In short, the Applicant’s Counsel requested that the Tribunal dismiss the Jurisdiction Motion, and address the triable issue at the scheduled Hearing. With respect to an adjournment of the Hearing, he submitted that it would be against natural justice, and that all previous Decisions related to this matter have said that the issue deserves to be heard.

ANALYSIS AND FINDINGS

ISSUE 1: Can the Time for the Service of the Jurisdiction Motion be Abridged?

20TLCC sought an abridgment of the time for service of the Jurisdiction Motion in the relief sought in the Motion Record. TLCC’s Counsel explained the urgency of bringing the Jurisdiction Motion at the outset of the Hearing by stating that new information had arisen to prevent the Tribunal from being able to proceed with the Hearing. Namely, the Tribunal’s May Decision was released on Thursday, May 1, 2024, the SOC had been filed and served on Friday, May 2, 2024, and the Applicant’s Counsel had provided the Parties with additional information. TLCC then served the Notice of Motion on Saturday, May 3, 2024, their earliest opportunity to do so.

21Neither the Municipality nor the Applicant specifically addressed the question of the abridgement of time for service, but rather engaged in substantive discussions and made submissions with regards to the Jurisdiction Motion itself. The Municipality’s Counsel did state that new information had arisen, and that events occurring on May 1 and 2, 2024 had necessitated the need for this Jurisdiction Motion.

22The Applicant’s Counsel had the opportunity to make a full oral response and proceeded to respond to the substantive points raised in the Jurisdiction Motion. He did not make the case that the Jurisdiction Motion should not be heard on May 6, 2024, but rather made substantive arguments with respect to the merits of the Jurisdiction Motion itself. During the course of the motion Hearing, he was given no time limit because of the seriousness of the request. Prior to commencing his submissions, he was given the opportunity to take a break. Moreover, though TLCC had the right of Reply, the Applicant’s Counsel was given the opportunity to interject and Reply to some of points raised by TLCC’s Counsel in Reply (after which TLCC then had the final say at the motion Hearing).

23The Tribunal independently considered the question of whether to address the Jurisdiction Motion in light of the last-minute service and determined that, due to the issues raised and discussed below, it had to do so. Specifically, the Tribunal did have to hear the Jurisdiction Motion and determine whether it could proceed with the five-day Hearing. As a result, the Tribunal determined that the Jurisdiction Motion would be heard on May 6, 2024.

24As will be discussed below, the Tribunal heard the Jurisdiction Motion, but found that it would not consider a dismissal because of the last-minute nature of the Motion. Rather, the Tribunal granted an adjournment. In short, the abridgment of time for service of a motion seeking a dismissal was not granted, but the Tribunal did use its discretion, in accordance with Rule 1.6 of the Tribunal’s Rules of Practice and Procedure (“Rules”) to find that it could not continue with the Hearing as scheduled.

25On May 15, 2024, the Tribunal received from the Applicant a Response to TLCC’s Motion. However, as an Oral Decision had already been given on May 6, 2024, without any indication to the Parties whatsoever that this matter would continue, the Tribunal did not consider the Response materials received on May 15, 2024, as it would not be fair, cost-effective, expeditious, or just. The Parties were advised of this by the Tribunal’s Case Coordinator.

ISSUE 2: Does the Tribunal have the Jurisdiction to Address this Appeal?

26The Tribunal cannot address matters that lie outside of its jurisdiction. TLCC’s Counsel relied on the case of Eastpine Kennedy-Steeles Ltd. v. Markham (Town), [2004] O.J. No. 644, which illustrates that the first question to be addressed is the Tribunal’s jurisdiction. In this case, the Tribunal lacks jurisdiction in the following ways:

a. The proper Parties to the proceeding may not have been notified and cannot participate in the proceeding should they so choose.

b. The main issue at the Hearing relates to a matter that the Tribunal cannot make a determination on, namely private land ownership.

c. A concurrent Superior Court Action is taking place, which takes precedence. For both the Hearing and the Action to proceed, there would be a duplication of proceedings and an abuse of process.

d. This particular case has a long-standing history, detailed in the Tribunal’s May Decision. The Applicant has sought a ZBA previously, which has gone to the Divisional Court, namely Eastman v. Dewdney Mountain Farms Ltd. [2017] OJ No. 5054, 2017 ONSC 5749, 2017 CarswellOnt 15193 (“Eastman Case”). In the Eastman Case, the Divisional Court ruled that there must be evidence of consent of the private owners before anyone, including the Tribunal, can impose any land uses relating to this particular proposed quarry.

27The first way in which the Tribunal lacks jurisdiction here is because of Notice. As TLCC’s Counsel explained, before the proceeding can continue, it must be confirmed that proper Notice has been provided to all Parties, and all Parties who may be affected by a Decision of the Tribunal have been given the opportunity to participate in the proceeding. While Exhibit 1 confirms that Notice was adequately served, due to the new information that has arisen, TLCC’s Counsel submitted that Notice had not been served to all Parties and there were potentially Parties missing from this Hearing.

28TLCC’s Counsel referred to the SOC (quoted at paragraph [9] of this Decision), wherein the Applicant is seeking a declaration that the roads are owned by the Municipality. This, along with a survey produced as part of the evidence (which was not shown to the Tribunal at the Motion Hearing), highlights that there is a question as to the ownership of the roads. Until that question is clarified, it is not known whether other potential owners of the road have been notified of this Tribunal proceeding. The Tribunal’s Decision resulting from this Hearing would impact the rights of potential private land-owners since the Tribunal’s decision would impact the land-use designation of those lands. However, those private land-owners are not only missing from the Hearing, but have yet to be identified.

29TLCC’s Counsel referred the Tribunal to the case of Meaford (Municipality) v. Grist, [2010] O.J. No. 1807, 2010 ONSC 2288 (“Meaford Case”), wherein it was found that persons whose property rights were affected and had an interest in the lands at issue must be notified and given the ability to participate in the proceedings. In fact, in the Meaford Case, it was found that the Attorney General was a proper Party to the proceeding since there was a public interest in the outcome of the action and pending motions. TLCC’s Counsel stated that the same was true here, since this haul route may be a public road. The Applicant has specifically sought a Declaration from the Superior Court that the haul route be declared a highway, so the Attorney General may have needed to be notified of this proceeding, but was not notified. As a result, proper Notice has not been served in this case, and the Tribunal does not have the jurisdiction to proceed today in the absence of evidence that proper Notice has been given to all entities whose rights may be affected.

30The Tribunal asked why, if Notice had been inadequate, it had been determined at the First CMC that no further Notice was required. TLCC’s Counsel submitted that this whole issue came to light when the Applicant produced the survey in advance of the Hearing, which had been the basis for the original Dismissal Motion brought on March 27, 2024. When the survey was produced, it was the first time that private ownership of the road became apparent. This occurred long after any of the CMCs.

31The Applicant’s Counsel asserted that TLCC’s Counsel’s interpretation of the survey was wrong, and the survey did not disclose what he said it did. The Tribunal did not have the opportunity to review this survey, as it was not provided during the Hearing of the Jurisdiction Motion. The Tribunal cannot and will not make a decision on the survey. However, what is apparent is that whatever arose from this survey and the Tribunal’s May Decision led to the Applicant bringing a Superior Court Action regarding whether the road is private or public (and specifically seeking “A declaration that the Roads are accurately contained in the survey prepared by Christopher E. Musclow, JBF Surveyors,” as quoted at paragraph [9e] of this Decision). As a result, the Tribunal can confidently rely on the fact that the question, at least, exists. Otherwise, the Applicant would not have commenced the Superior Court Action.

32On the issue of Notice, the Tribunal agreed with TLCC and the Municipality’s Counsel that there is a potential that all affected Parties (either private land-owners or the Attorney General) may not have been notified. While the Tribunal did not review the survey, the SOC specifically seeks a declaration that the haul route be declared a “highway” owned by the Municipality (at sections (c) and (d)). The Tribunal was persuaded that there may be private land-owners involved if this road is found to be a private road. Thus, the Tribunal was persuaded that there was concern regarding whether adequate Notice had been provided in this case.

33The second way in which the Tribunal lacks jurisdiction, according to TLCC’s Counsel, is because the Superior Court Action takes precedence over the Tribunal’s proceeding. As indicated in the SOC, and quoted at paragraph [9] of this Decision, a Declaration is being sought in the Superior Court Action regarding where the road traverses (provision (c)); the ownership of the road (provision (d)); and a declaration that the roads are accurately contained in the survey (provision (e)).

34In the Tribunal’s May Decision, the following is found and stated:

3The matter at issue in this Appeal centers around the ability to implement noise mitigation measures along the proposed Haul Route for the Proposal….

30The Parties have provided the Tribunal with an Issues List that is included in the Procedural Order issued by the Tribunal at the Second CMC. The Tribunal notes that each of the issues identified on the Issues List focus on the haul route and potential impacts arising from traffic and noise. The Decision of the Tribunal from the First CMC in paragraph [9] notes that the Parties have agreed to scope the Hearing with evidence focused on the haul route as reflected in the Issues List…

31The Tribunal finds that dismissing the Appeal without a hearing in this matter would be neither fair nor just. The evidence being proffered with respect to the width of Ledge Road, the ownership of a portion of Ledge Road, the status of that portion of Ledge Road with respect to whether it is a public road or a forced road, and the ability to modify the portion of the road in question as recommended by the DMF’s Engineering Report requires a full consideration of the evidence, in its entirety. The issues identified are worthy of the adjudicative process.

35TLCC submitted that it was in response to this finding that the Applicant filed the SOC the day after the Tribunal’s May Decision was issued, knowing that the matters indicated at paragraph [31] of the Tribunal’s May Decision are not within the jurisdiction of the Tribunal, and can only be addressed by the Superior Court. The Tribunal did not have the jurisdiction to decide whether this route is a public or private road.

36In contrast, as outlined above, the Applicant’s Counsel submitted that the Superior Court Action is entirely separate from the Tribunal proceeding. However, for the following reasons, the Tribunal found that the two proceedings are more related than the Applicant’s Counsel portrayed:

a. At paragraph 30 of the Tribunal’s May Decision, the Tribunal distinctly found that every issue on the issues list focuses on the haul route. As a result, the Superior Court Action’s finding regarding the haul route is relevant to this proceeding.

b. The Superior Court Action was filed the day after the Tribunal’s May Decision was issued, and one business day before the start of the Hearing. This timing suggests that the Tribunal’s May Decision may have influenced the need for the Superior Court Action.

c. The Applicant’s Counsel acknowledged that if the Superior Court finds that the haul route is private, then the Tribunal’s Order would be moot. Thus, there is a connection between the two proceedings. The Applicant’s Counsel suggested that this would not happen because the Superior Court would definitely declare this to be a public road (based on overwhelming evidence). However, the Tribunal found that the fact that a Superior Court Action exists means that there is a chance that the road could be declared to be private. Superior Court proceedings are very costly and time-consuming. No Party would choose to go through that process without reason. If it was so obvious that the road was public, the Superior Court Action would not have been commenced. Thus, the Tribunal found that there may be a chance that the Superior Court finds the route to be private, in which case, if this Hearing proceeded, the Tribunal’s Order would be at risk.

37The third way that the Tribunal lacks jurisdiction, according to TLCC’s Counsel, is that the issues identified to be the crux of the Tribunal proceeding are the same ones that are raised in the Superior Court Action. As a result, two different and distinct bodies are engaged in determining the same issue, namely, questions relating to the ownership of the haul route. This constitutes an abuse of process and creates a risk of opposing decisions being made. TLCC referred to the decision of Dufferin Construction Co., a Division of CRH Canada Group Inc. v. Mississauga (City), [2021] O.J. No. 1527, in support of that supposition. Thus, TLCC urged the Tribunal to make an Order preventing this abuse of process, in accordance with s. 23 of the Statutory Powers Procedures Act. Furthermore, the haul route is central to this Hearing, as confirmed in the Tribunal’s May Decision, quoted above, and also central to the Superior Court Action. Since the Superior Court’s finding is binding on the Tribunal, it is the Superior Court Action that must proceed prior to the Tribunal proceeding, and the Tribunal proceeding must be dismissed to prevent an abuse of process.

38In response, the Applicant’s Counsel insisted that the two proceedings are entirely separate. The Tribunal proceeding deals with the ZBA only, and an Order could be given approving it pending confirmation of a haul route agreement.

39However, as discussed below, the Tribunal did not make a finding on whether there was an abuse of process here. The Tribunal only found that there were concerns with the adequacy of the Notice for this matter and that the Tribunal proceeding and the Superior Court Action were related and could not be treated as separate and distinct. As discussed below in detail, there was not sufficient evidence at the Jurisdiction Motion regarding whether there was an abuse of process.

ISSUE 3: If the Tribunal Lacks Jurisdiction to Proceed with the Hearing, Should the Appeal be Dismissed?

40The Tribunal agreed with the Applicant’s Counsel that it is not patently clear how seeking a second dismissal is not res judicata. The Jurisdiction Motion was brought very last minute and all Parties had not had a fulsome opportunity to respond in writing or provide detailed factums.

41TLCC submitted that the Jurisdiction Motion was not res judicata because of the new matters that had arisen, most importantly the SOC. The Tribunal agreed that the SOC highlighted some issues to be clarified before this appeal could be heard, as discussed further below. However, a dismissal is an extreme solution and awarded in rare circumstances. In this case, the Tribunal was not satisfied that it had all information before it to make an accurate decision on this issue.

42As a result, the Tribunal determined that a dismissal would not be considered, and no decision would be made as to whether the matter should be dismissed.

43At the Hearing, the Tribunal did clarify and direct that the Parties could proceed with a dismissal motion in the future, but directed that, if they decided to do so, they must do so within the appropriate timelines as outlined in the Rules, allowing all Parties sufficient opportunity to respond in writing. Moreover, if TLCC chose to bring this motion again, TLCC must make it abundantly clear how a new dismissal motion is different from that considered by the Tribunal in the Tribunal’s May Decision.

ISSUE 4: If the appeal is not Dismissed, Can the Hearing Proceed as scheduled?

44The Tribunal found that the Hearing could not proceed for the following reasons:

a. The proper Parties may not have been notified of this proceeding;

b. Each issue on the Issues List relates to the haul route, which has been put in the jurisdiction of the Superior Court, as the ownership is in question;

c. The Tribunal Order may be rendered moot by the Superior Court’s decision;

d. Evidence would be presented at the Hearing that would require the Tribunal to make assumptions; and

e. It would contradict the binding Decision of the Divisional Court.

Proper Notice Required

45Proper Notice for a proceeding is a fundamental requirement of any Tribunal proceeding. In this case, the proper Parties may not all be before the Tribunal at this time, as discussed above at paragraphs [27] to [32] of this Decision. The Tribunal was persuaded that the correct Parties must be before it if issues are to be decided that impact their rights. As discussed above, the correct Parties may not have been notified. Thus, this Hearing must be paused until it is confirmed that the proper Parties have been notified and have been given the opportunity to be involved in the proceeding.

Issues to be Decided by the Superior Court

46As confirmed in the Tribunal’s May Decision, quoted at paragraph [34] of this Decision, each issue on the Issues List relates to the haul route. As a result, the Superior Court’s determination, or an agreement with respect to the haul route, is paramount to resolving each issues on the IL.

47The Applicant’s Counsel submitted that the Tribunal Proceeding and the Superior Court Action are entirely distinct from each other. However, as stated at paragraph 3 of the Tribunal’s May Decision, “The matter at issue in this Appeal centers around the ability to implement noise mitigation measures along the proposed Haul Route for the Proposal…”. If the Superior Court finds that this haul route is a private road, the Applicant’s ability to implement noise mitigation measures are significantly impacted. Thus, the Tribunal agreed with TLCC and the Municipality that the Superior Court Action and the Tribunal Proceeding are intimately related. The resolution of the Superior Court Action would significantly impact this Hearing as it will resolve the issue of whether the haul route is a public or private road.

Tribunal’s Order May be Rendered Moot

48The Applicant’s Counsel confirmed that, if the Superior Court finds that the haul route is private, the Tribunal’s decision would be rendered moot. Thus, as TLCC’s Counsel submitted, and the Tribunal agreed, this Hearing may be a waste of tax-payer’s money. If this Hearing took place, then the Tribunal would utilize resources on one Hearing and the Superior Court would utilize resources on another Hearing, both regarding the same haul route. Moreover, the Superior Court would make a finding that would be binding on the Tribunal, and could potentially conflict with it. Thus, the proceeding that should proceed and utilize tax-payer money is the Superior Court Action and not the Tribunal proceeding.

49Again, the Applicant submitted that the Tribunal is not being asked to determine the same issue. Rather, the Tribunal is being asked to determine land-use issues (zoning of the Subject Property), which are entirely different from what the Superior Court is to determine (ownership of the road). However, the Tribunal’s May Decision, quoted at paragraph [34] of this Decision, seems to indicate otherwise. In fact, this was known as early as the First CMC, in August 2023. In the Decision from the First CMC, it is noted at paragraph 8 as follows:

The Parties further agreed that the ZBA hearing will be a scoped hearing with planning and engineering evidence focused on the noise related to the haul road and the sufficiency of the haul road.

50It appears that the sole issue at play is related to the haul road. Thus, due to issues discussed above (including concerns with adequate Notice and the boundaries of the road to be affected), the Tribunal found that the issues were in fact related and the Tribunal proceeding could not take place.

Assumptions Would Need to Be Made

51The Applicant’s Counsel acknowledged that the haul route will be discussed at the Hearing. He submitted that evidence will be presented regarding how this route is to be used and that it is a public road. In other words, if the Hearing took place, the Tribunal would be presented with evidence on issues like the ownership of the road, which it cannot make a decision on (as they are in the jurisdiction of the Superior Court), and would have to proceed by making certain assumptions that have not been established (such as the haul route being a public road).

52The Applicant further submitted that the outcome of the Superior Court Action would be obvious, and this road would be found to be a public road. However, the existence of the Superior Court Action is itself evidence that the outcome is not obvious. Otherwise, the Applicant would not have commenced a costly and time-consuming action to obtain an obvious answer. Furthermore, if it is in fact obvious, then it should resolve quickly, and this Tribunal proceeding can continue. Moreover, the Applicant’s Counsel had submitted that the Municipality was being negligent by not acknowledging that this is a public road. This in itself (negligence of a Party) is something that is to be dealt with by the Superior Court.

53In short, proceeding with the Hearing would require the Tribunal to make the assumption that this is a public road or to hear evidence to that effect. The Tribunal could not adequately rely on this assumption since it is clearly in question and before the Superior Court. Moreover, making decisions based on assumptions would not result in a fair, just, or reliable decision.

Contradiction of the Divisional Court’s Decision

54TLCC’s Counsel referred to the Divisional Court’s finding in the Eastman Case, and subsequently the LPAT (one of this Tribunal’s predecessors), where this particular project was evaluated and the onus was put on the Applicant to demonstrate that this project was feasible. TLCC’s Counsel submitted that, since it is not known whether a haul route can be used here, until its status is clarified by the Superior Court, the Applicant has not discharged its onus of demonstrating that the project is feasible. TLCC’s Counsel added that, while it is common practice for the Tribunal to make interim Orders pending fulfilment of conditions (as the Applicant suggested should be done here), in this particular case, the Divisional Court has specifically said that the project cannot proceed unless it is feasible. Without confirmation regarding the haul route, the project is not feasible. Thus, if it proceeds with the Hearing, the Tribunal would be in contravention of a binding Divisional Court ruling.

55The Tribunal reviewed the Eastman Case in detail. It is stated, at paragraphs 53 to 56 of that case, as follows:

Issue 4: Whether the OMB erred by proposing noise mitigation measures without evidence supporting their feasibility

53The appellants submit that the OMB erred in law in adopting the respondent’s mitigation measures without regard for the accepted evidence that there was a possibility that access to private lands would be required to implement those measures.

54In response, Dewdney submits that as set out in the OMB Order of November 19, 2015, the order was contingent. The OMB’s order provided that the “zoning by-law amendment shall be withheld pending confirmation from the Municipality that a Haul Route Agreement has been executed by the relevant parties.” However, counsel to Dewdney acknowledged that the reference in the order to “relevant parties” would not ordinarily encompass private land owners.

55The appellants submit that the approval is therefore ineffective and in error because it fails to address this issue. It contemplates mitigation measures that may not be implemented without the private land owners’ consent, which is not provided for.

56We agree that this is an error in law and remit this one issue to the OMB for re-consideration.

[Emphasis added by Tribunal.]

56The Tribunal was persuaded that this case specifically found that it was an error in law to contemplate mitigation measures that may impact the rights of private land-owners. The existence of the Superior Court Action confirms that the private rights of land-owners remains unclarified. Thus, if the Hearing proceeded as scheduled, the Tribunal would be put in the position to make the same error in law as had been made previously. The Divisional Court’s finding that this is an error in law is binding, and the Tribunal agreed that it could not make a decision that contradicted that ruling. Thus, the Hearing would need to be adjourned until the Applicant could demonstrate that the proposal was feasible.

Prejudice to the Applicant

57The Applicant submitted that not proceeding with the Hearing would be highly prejudicial to it, as it was ready to proceed, this Hearing was entirely distinct from the Superior Court Action, and an adjournment would delay this proposal for an indefinite amount of time.

58On this point, the Tribunal agreed with TLCC’s Counsel that there is minimal prejudice to the Applicant here since it has to go through the Superior Court process regardless before it could take action on this project. The Tribunal agreed that the request that the Applicant’s Counsel was making, namely that the ZBA be approved on an interim basis while the haul route issue is being resolved, would result in the Applicant having to wait a similar amount of time it would have to regardless while the Superior Court Action is being addressed. It could not proceed with the project earlier. Thus, the Applicant would not be unreasonably delayed by an adjournment. The holding provision that the Applicant is proposing (discussed at paragraph [15] of this Decision) would have a similar result of requiring the Applicant to wait before proceeding with the proposal. Moreover, the Tribunal further found, as mentioned above, that the Divisional Court was presented with the same option (quoted at paragraph [55] of this Decision) but struck that option because private rights would be affected, similar to this situation.

59If the Hearing did proceed, it would prevent the Tribunal’s ability to consider this matter properly and adequately. The prejudice to the Tribunal’s ability to make a decision would far outweigh the prejudice to the Applicant to have to wait for a Hearing to proceed.

Conclusion

60Upon hearing the submission of the Parties, the Tribunal determined that the best course of action would be to adjourn this proceeding. None of the Parties relied on legal arguments in seeking an adjournment. In fact, the Municipality and TLCC submitted that dismissal would be preferable to an adjournment, and the Applicant submitted that an adjournment would be prejudicial. However, based on the factual findings made above, the Tribunal made the decision that an adjournment would be appropriate. While a dismissal would not be considered, continuing with the Hearing would not be fair, just, cost-effective, or expeditious in the circumstances.

61However, the Tribunal did agree with the Parties that a Superior Court Action could take an indefinite amount of time. As a result, the Tribunal gave some directions for actions to take next, discussed below, to allow this matter to proceed.

SUMMARY OF FINDINGS

62The Tribunal addressed the following issues:

a. Can the time for the service of the motion be abridged? The Tribunal found that it was necessary for it to hear the Jurisdiction Motion, and allowed it to proceed. However, the Tribunal further found that there was not sufficient evidence that the second dismissal request was warranted in the nature that it had been brought, and the abridgment for time for service was not granted. If TLCC wanted to bring a motion seeking a dismissal, it was directed to bring it in accordance with the Rules and to make it abundantly clear as to how it was different from the first Dismissal Motion.

b. Does the Tribunal have the jurisdiction to address this appeal as scheduled? The Tribunal found that it did not have jurisdiction to address this appeal as scheduled, because it was not clear whether Notice had been adequately served on all who would be affected by a Tribunal decision. Moreover, the Superior Court Action and the Tribunal proceeding appear to be related to each other, and a Superior Court finding could potentially render the Tribunal’s decision moot. However, the Tribunal did not make a decision on whether the commencement of the Superior Court Action had led to an abuse of process, as it did not have sufficient evidence or information before it to make such a decision.

c. If the Tribunal does not have jurisdiction, should the appeal be dismissed? No, the appeal should not be dismissed. The Tribunal did not consider the Jurisdiction Motion as it had not been brought in accordance with the Rules, and it was not abundantly clear that the grounds were different than that of the previous Dismissal Motion.

d. If the appeal is not dismissed, could the Hearing proceed as scheduled? No, the appeal could not proceed as scheduled because:

i. The proper Parties may not have been notified of this proceeding;

ii. Each issue on the Issues List relates to the haul route, which has been put in the jurisdiction of the Superior Court;

iii. The Tribunal’s Order may be rendered moot by the Superior Court’s decision;

iv. Evidence would be presented at the Hearing that would require the Tribunal to make certain assumptions; and

v. It would contradict the binding Decision of the Divisional Court.

63The Tribunal conducted its review of these issues on May 6, 2024. Due to the nature of the request, and the Hearing that had been scheduled for May 6-10, 2024, the Tribunal determined that an Oral Decision was required on the same day to provide guidance to the Parties on how to proceed with the scheduled Hearing. As a result, after hearing the submission of the Parties, and allowing them a full opportunity to make submissions, the Tribunal stood down to deliberate and to consider the information presented to it.

64Upon return, the Tribunal made the rulings outlined above. Namely, the Tribunal determined that a motion for dismissal would not be considered, but also that it could not proceed with the Hearing as scheduled. The Tribunal’s Oral Decision contained reasons, which the Tribunal explained would be more detailed in the written Decision to follow. It is therefore appropriate that this Order is effective as of May 6, 2024, in keeping with Rule 24.3 of the Rules.

NEXT STEPS

65The Tribunal adjourned the Hearing and it did not take place over the remaining scheduled days.

66However, as TLCC’s Counsel submitted, Superior Court cases can take years on end, and it was not reasonable to adjourn a Tribunal proceeding indefinitely, having it hanging over the heads of all the Parties without a foreseeable resolution in sight.

67The Tribunal agreed and determined that a date would be set for one year from the date of the Order, namely May 6, 2025, for the Parties to provide a status update to the Tribunal’s Case Coordinator. At that time, they could seek a date for a CMC or a Telephone Conference Call (“TCC”) to advise the Tribunal on the status of this proceeding. Namely, the Parties could advise:

a. Whether additional landowners and interested persons have been notified;

b. Whether a resolution has been reached on the haul route issue (for example, the Applicant’s Counsel explained that the Municipality at any point could recognize the haul route as a public road, which would make the Superior Court Action unnecessary);

c. Whether progress has been made on the Superior Court Action; or

d. Whether other solutions have been contemplated to allow this proceeding to continue.

68The Parties were directed that if they required input from the Tribunal earlier than that date (May 6, 2025), such as advising of updates to the items indicated above, they could seek a date for a CMC or a TCC from the Tribunal at any time.

ORDER

69THE TRIBUNAL ORDERS THAT:

a. The Motion for Dismissal is not considered.

b. The appeal cannot proceed and is adjourned pending any of the following:

i. Any or all landowners and / or interested persons are notified of the haul route issue;

ii. The Superior Court Action is resolved;

iii. The Parties reach a resolution on the haul route issue; or

iv. Any other solution that allows for the proper Parties to be before this Tribunal, without requiring the Tribunal to make a decision on private land-ownership issues.

c. The Parties are to provide a status update to the Tribunal within one year of the date of the Order, by Tuesday, May 6, 2025.

70The TRIBUNAL FURTHER ORDERS that, in accordance with Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order is effective as of May 6, 2024.

“Bita M. Rajaee”

BITA M. RAJAEE

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.