Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 20, 2024
CASE NO(S).: OLT-23-001315
PROCEEDING COMMENCED UNDER subsection 38(4.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: CBM Aggregates
Subject: Interim Control By-law 2022-75
Description: Interim Control By-law 2022-75 restricts the use of land for the establishment of new gravel pits of quarries, while a study is completed
Reference Number: By-law 2022-075 and Extension By-law 2023-084
Property Address: All lands within the Caledon High Potential Mineral Aggregates Area
Municipality/UT: Caledon/Peel
OLT Case No: OLT-23-001315
OLT Lead Case No: OLT-23-001315
OLT Case Name: CBM Aggregates v. Caledon (Town)
Heard: March 11, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| CBM Aggregates, a Division of St Marys Cement Inc. (Canada) | Kim Mullin |
| Town of Caledon | Chris Barnett |
| Forks of the Credit Preservation Group Inc. | David Donnelly |
MEMORANDUM OF ORAL DECISION DELIVERED BY Hugh S. Wilkins ON MARCH 11, 2024 AND ORDER OF THE TRIBUNAL
1This Decision arises from the first Case Management Conference (“CMC”) in OLT Case No. OLT-23-001315, which consists of a proceeding under s. 38 of the Planning Act relating to the appeal of By-law No. 2023-084 (“Extension By-law”), which was passed by the Town of Caledon (“Town”). The Extension By-law extends for one year the application of the Town’s By-law No. 2022-75 (“Interim Control By-law”), which is an interim control by-law prohibiting the use of any land, building or structure for a gravel pit or quarry on certain lands not already zoned MX (Extractive Industrial). These instruments apply to all lands within the Town that have been identified by the Town as High Potential Mineral Aggregate Resource Area lands. The Extension By-law was appealed by CBM Aggregates, a Division of St Marys Cement Inc. (Canada) (“Appellant”), which seeks to develop an aggregate operation on lands within the affected area.
2At the CMC, the Tribunal addressed a request for Party status, provided directions on the preparation of a draft Procedural Order and Issues List, discussed opportunities for settlement discussions, and scheduled a hearing.
Request for Added Party Status
3At the CMC, the Forks of the Credit Preservation Group Inc. requested Party status. It represents a group of local citizens who seek to preserve the ecological integrity of the Town. It stated that it retained planning experts who wrote a report that was submitted to Town Council when the Interim Control By-law was being considered. Neither the Appellant nor the Town opposed the request for status. The Tribunal found that the Forks of the Credit Preservation Group Inc. has a direct and genuine interest in the matter, will be impacted by the Tribunal’s decision, and can assist the Tribunal in adjudicating the appeal. The Tribunal granted Party status to Forks of the Credit Preservation Group Inc. as requested.
Draft Procedural Order and Issues List
4The Appellant stated that it has prepared a draft Procedural Order and Issues List, which has been circulated to the other Parties, including the Forks of the Credit Preservation Group Inc. The Parties agreed that final drafts of these documents would be finalized and filed with the Tribunal forthwith.
5The Parties described the witnesses that they plan to call at the hearing and agreed that the hearing could be completed in three to four days.
6Forks of the Credit Preservation Group Inc. stated that a motion may be needed to be heard addressing the scope of the appeal. The Tribunal directed that the scoping motion, if it is to be brought, must be served and filed by Thursday, April 11, 2024.
7Subsequent to the CMC, the Parties filed the draft Procedural Order and Issues List, which the Tribunal has now reviewed and approves as attached as Schedule 1 to this Order and Decision.
Opportunities for Settlement Discussions
8The Parties stated that, given the nature of the proceeding, the potential for settlement is slim and that the matter is unlikely to be a candidate for successful settlement discussions or mediation. The Parties stated, however, that they will keep an open mind to it.
Scheduling of the Hearing
9The Tribunal scheduled a three-day hearing for the appeal to commence on Wednesday, September 4, 2024 at 10 a.m. by video hearing.
10Parties and Participants are asked to log in to the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoToMeeting: https://global.gotomeeting.com/join/927921077
Access code: 927-921-077
11Parties 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
12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-299-1889. The access code is as indicated above.
13Individuals 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 Video Hearing 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.
ORDER
14THE TRIBUNAL ORDERS THAT Forks of the Credit Preservation Group Inc. is a Party in this proceeding.
15There will be no further notice.
16This Member is not seized.
"Hugh S. Wilkins"
HUGH S. WILKINS VICE-CHAIR
Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
SCHEDULE 1
CASE NO(S).: OLT-23-001315
PROCEEDING COMMENCED UNDER subsection 38(4.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: CBM Aggregates
Subject: Interim Control By-law 2022-75
Description: Interim Control By-law 2022-75 restricts the use of land for the establishment of new gravel pits of quarries, while a study is completed
Reference Number: By-law 2022-075 and Extension By-law 2023-084
Property Address: All lands within the Caledon High Potential Mineral Aggregates Area
Municipality/UT: Caledon/Peel
OLT Case No: OLT-23-001315
OLT Lead Case No: OLT-23-001315
OLT Case Name: CBM Aggregates v. Caledon (Town)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The video hearing will begin on September 4, 2024, at 10:00 a.m. at https://global.gotomeeting.com/join/927921077
The parties’ initial estimation for the length of the hearing is 3 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The Issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before June 6, 2024, and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before June 21, 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 July 8, 2024.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 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.
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.
On or before July 8, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.
On or before July 8, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before July 31, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before August 6, 2024.
On or before August 21, 2024, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, on or before August 23, 2024.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before August 23, 2024.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 26, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filing shall be electronic 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 email shall be governed by Rule 7.
A Summary of Filing Dates is set out in Attachment 4.
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.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
PARTIES AND PARTICIPANTS
PARTIES
| Party Name | Contact Information |
|---|---|
| 1. CBM Aggregates, a division of St. Marys Cement Inc. (Canada) (“CBM”) | Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Kim Mullin / Mithea Murugesu Tel: (416) 203-5633 / 416-203-5634 E-mail: kmullin@woodbull.ca / mmurugesu@woodbull.ca |
| 2. Town of Caledon | Osler, Hoskin & Harcourt LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto ON M5X 1B Chris Barnett Tel: (416) 862-6651 Email: cbarnett@osler.com |
| 3. Forks of the Credit Preservation Inc. (“FCPG”) | Donnelly Law, Barrister and Solicitor 276 Carlaw Avenue, Suite 203 Toronto, ON M4M 3L1 David Donnelly Tel: (416) 572-0464 E-mail: david@donnellylaw.ca |
ATTACHMENT 2
ISSUES LIST
- Do Interim Control By-law No. 2022-075 (“ICBL”) and Extension By-Law No. 2023-084 (“Extension”) have appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act, in particular, subsection 2(c)?
- Are the ICBL and the Extension consistent with the Provincial Policy Statement, 2020, in particular, but not limited to, sections 2.5.1 and 2.5.2.1?
- Do the ICBL and the Extension conform with the Growth Plan for the Greater Golden Horseshoe, in particular, but not limited to, section 4.2.8.6?
- Do the ICBL and the Extension conform with the Region of Peel’s Official Plan, in particular, but not limited to sections 3.4.1, 3.4.2 and 3.4.5?
- Do the ICBL and the Extension conform with the Town of Caledon’s Official Plan, in particular, but not limited to, sections 5.11.1.3, 5.11.1.4, and 5.11.2.1.2?
- Were the ICBL and Extension passed for legitimate land use planning grounds?
- Has the Town of Caledon acted expeditiously in carrying out the required study?
ATTACHMENT 3
ORDER OF EVIDENCE
- CBM
- Town of Caledon
- FCPG
- Reply by CBM
ATTACHMENT 4
SUMMARY OF FILING DATES
| Date | Event |
|---|---|
| June 6, 2024 | Exchange of witness lists (names, disciplines and order to be called) |
| June 21, 2024 | Expert meetings prior on or before this date |
| July 8, 2024 | Agreed statement of expert witnesses (if any) |
| July 8, 2024 | Exchange of witness statements and participant statements, summonsed witness outlines and participant statements |
| July 31, 2024 | Parties to advise if all hearing days required |
| August 6, 2024 | Exchange of reply witness statements |
| August 21, 2024 | Exchange of visual evidence |
| August 23, 2024 | Finalize joint document book |
| August 26, 2024 | Hearing plan filed with Tribunal |
| September 4, 2024 | Hearing commences |
ATTACHMENT 5
Purpose of the Procedural Order and Meaning of Terms
Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other Parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a Party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a Party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorization from the Party.
NOTE that a person who wishes to become a Party before or at the hearing, and who did not request this at the Case Management Conference, must ask the Tribunal to permit this.
Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.
NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as Parties can.
Written and Visual Evidence:
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the hearing.
Witness Statements:
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.
An expert witness statement should include the expert’s (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.
Additional Information:
Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.
The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:
- direct examination by the Party presenting the witness;
- direct examination by any Party of similar interest, in the manner determined by the Tribunal;
- cross-examination by Parties of opposite interest;
- re-examination by the Party presenting the witness; or
- another order of examination mutually agreed among the Parties or directed by the Tribunal.