Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 09, 2024

CASE NO(S).: OLT-22-003419 (Formerly MM170072)

PROCEEDING COMMENCED UNDER subsection 18(5) of the Aggregate Resources Act, R.S.O. 1990, c. A. 8, as amended

Referred by: Ministry of Natural Resources and Forestry

Objector: 1386146 Ontario Inc.

Applicant: 2520650 Ontario Inc.

Subject: Application for a licence transfer – Applicant does not have licensee’s consent to transfer

Property Address/Description: Lot 9, Concession 4, Geographic

Municipality/UT: Whitchurch-Stouffville/York

OLT Case No.: OLT-22-003419

Legacy Case No.: MM170072

OLT Lead Case No.: OLT-22-003419

Legacy Lead Case No.: MM170072

OLT Case Name: 1386146 Ontario Inc. v. Ontario (Natural Resources and Forestry)

Heard: February 12, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
1386146 Ontario Inc. ("Licensee")	Steven C. Ferri, Christopher Lee, Mandy Ng
2520650 Ontario Inc. ("Applicant")	David White
Ministry of Natural Resources and Forestry ("MNRF")	Zachary D’Onofrio, Mandy Yee (Articling Student)

DECISION DELIVERED BY F. LAVOIE AND David Brown AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns a referral for a hearing from the Minister of Natural Resources and Forestry ("the Minister") of the proposed transfer of Licence No. 6531 ("the Licence") issued pursuant to the Aggregate Resource Act, R.S.O. 1990, c. A.8, ("ARA").

2This Decision and Order arise from the Tribunal’s direction to the Licensee, Applicant, and MNRF (collectively, the "Parties") that objections to any witnesses expected to testify take place on the first day of the Merit Hearing. The Tribunal also granted the Parties’ Proposal, on consent, to adjourn the remainder of the Hearing to a later date, due to exceptional circumstances preventing the attendance of counsel to one of the Parties.

3This Hearing was commenced pursuant to s. 18(5) of the ARA. The Applicant submitted an Application to the Minister requesting the transfer of the Licence held by the Licensee. The Licensee objected to the proposed transfer, and the Minister referred the matter to the Ontario Land Tribunal’s predecessor, the Local Planning Appeal Tribunal ("LPAT"). The basis of the objection was the unsuitability of the Applicant to be a licensee under the ARA, or alternatively, that the transfer should be subject to financial compensation paid by the Applicant to the Licensee.

4In an earlier Motion Decision for these proceedings, the LPAT found it did not have the jurisdiction to consider financial compensation under s. 18(8) of the ARA.¹ The Licensee appealed to the Divisional Court. The Divisional Court dismissed the Appeal as premature and remitted the matter to the Tribunal holding it could not determine whether the Tribunal’s finding on its jurisdiction was correct in the absence of factual findings, among other things.²

THE ISSUES

5The issue on this Motion is whether the following witnesses should be qualified by the Tribunal to provide expert opinion evidence:

a. Quinn Moyer (for the Licensee); b. Steven Strong (for the MNRF); c. Harold Brillinger (for the Applicant); and d. Bill Kester (for the Applicant).

6During the Hearing, the Parties conceded that the Applicant’s witnesses, Harold Brillinger and Bill Kester, were not experts and would only provide factual and contextual evidence in their testimony. Accordingly, the only impugned expert witnesses are Mr. Moyer and Mr. Strong.

APPLICABLE LAW AND ANALYSIS

7The leading cases on the admissibility of expert evidence are R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 ("Mohan"), and White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 ("White Burgess").

8In White Burgess, the Supreme Court expounded a two-step framework for the admissibility of expert opinion evidence. In the first step, the threshold stage, the proponent must establish that the evidence meets the four Mohan factors (relevance, necessity, absence of an exclusionary rule, and a properly qualified expert). In the second discretionary "gatekeeping" step, the Trier of Fact balances the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks.³

9Concerns related to the expert’s duty to the Court and their willingness and capacity to comply with it are best addressed in the "qualified expert" element of the Mohan framework.⁴ The Trier of Fact must determine:

… having regard to both the particular circumstances of the proposed Expert and the substance of the proposed evidence, whether the Expert is able and willing to carry out [their] primary duty to the Court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.⁵ [emphasis added]

Concerns about the expert’s independence and impartiality also come into play in the gatekeeping stage.⁶

QUINN MOYER

10The Applicant and the MNRF both object to the qualification of Mr. Moyer as an expert witness in the area of Aggregate Resources Management. The MNRF submits that Mr. Moyer’s financial interests render him incapable of giving an impartial opinion. The Applicant agrees and submits that Mr. Moyer’s ownership of aggregate licences is a direct financial interest in the outcome of this case. Neither Party took issue with Mr. Moyer’s experience in operating aggregate businesses or his expertise in the aggregate field.

11Mr. Moyer’s Curriculum Vitae indicates that he has been the President of Nelson Aggregate Co. since 2010, and part owner of MAG Aggregates & HATACA Inc. since 2008. He has been employed in the Ontario aggregate industry for over 40 years. Mr. Moyer was a former Chair of the Ontario Sand, Stone and Gravel Association and served on the Board of Directors for 14 years from 2007 to 2021. Under cross-examination, Mr. Moyer candidly admitted to holding aggregate licences, both directly and indirectly through his ownership of MAG Aggregates.

12As indicated in White Burgess, the "mere fact of the interest or connection" is not enough to disqualify expert evidence at the threshold stage. No evidence was provided to the Tribunal as to the value of these aggregate licences. Further, there was no indication that Mr. Moyer has any direct pecuniary interest in the outcome of this Litigation. Indeed, if Mr. Moyer has any interest in the outcome of this Litigation, it is held in common with all Aggregate Licensees.

13The Tribunal finds Mr. Moyer’s knowledge and experience in the aggregate industry to be relevant, necessary, and not subject to an exclusionary rule. The Tribunal also finds Mr. Moyer is willing and able to fulfill his duty to the Tribunal to provide opinion evidence that is fair, objective, and non-partisan. Accordingly, the Tribunal qualifies Mr. Moyer to provide opinion evidence in the area of management of aggregate resources, aggregate site operations, and the licensing of aggregate sites.

STEVEN STRONG

14Mr. Strong has a Master’s Degree in Environmental Studies (Planning), and is a Member of both the Ontario Professional Planners Institute and Canadian Institute of Planners. He has worked for the MNRF in various capacities since 2001, and currently in the role of Senior Policy Advisor, Land-Use Planning and Aggregates.

15The Licensee objects to the qualification of Mr. Strong as an expert witness on the basis that he is not independent, being currently employed with the MNRF. Counsel to the Licensee cited HLP Solution Inc. v Her Majesty the Queen, 2015 TCC 41 ("HLP"), where the Tax Court did not qualify a Canada Revenue Agency ("CRA") employee as an expert witness due to a lack of impartiality. The Licensee submits that the Tribunal should equally find in this case the "blurring of the distinction between [Mr. Strong’s] role as an expert witness and [his] role as an [MNRF employee]."⁷

16The case before the Tribunal stands in stark contrast to the facts in HLP. The CRA employee had been involved at every stage of the Taxpayer’s audit, was the CRA representative at every meeting with the Taxpayer, confused her role as a Research and Technology Advisor for the CRA with that as an expert witness, lacked detachment in her Expert Report, and reproduced word for word sections of her Technical Review Report in her Expert Report. Conversely, Mr. Strong testified that he was involved with the Licence first as a Compliance Officer in the early 2000s, and more recently having advised the staff responsible with the transfer as to Ministry processes. He clearly indicated being neither directly responsible nor having the delegated authority for the transfer. In consideration of Mr. Strong’s responsibilities and the nature of the evidence that he is expected to provide to the Tribunal, the Tribunal finds that Mr. Strong can objectively and impartially fulfill his duty to the Tribunal as an expert witness.

17Accordingly, the Tribunal qualifies Mr. Strong to provide opinion evidence as an expert in the field of land use planning with specific knowledge in environmental planning and aggregate and resources planning and management.

HEARING DATES

18On the Parties’ request, the Tribunal will adjourn this Hearing until a later date. The Tribunal directs that the Merit Hearing be rescheduled to commence on Monday, June 10, 2024, at 10 a.m., until Friday, June 14, 2024, by Video Hearing.

19Parties 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:

GoToMeeting: https://global.gotomeeting.com/join/344779885 Access Code: 344-779-885

20Parties 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.

21Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is as indicated above.

22Individuals 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

23THE TRIBUNAL ORDERS that:

a. Any opinion evidence in the Witness Statements of Bill Kester and Harold Brillinger is struck; b. The testimony of Bill Kester and Harold Brillinger shall be limited to factual testimony; and c. The directions in this Decision.

24This Panel is seized.

"F. Lavoie" F. LAVOIE MEMBER

"David Brown" DAVID BROWN MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 11386146 Ontario Inc. v Ontario (Natural Resources and Forestry), 2020 CanLII 97259 (ON LPAT) at para 102.
2. 21386146 Ont Inc. v 2520650 Ont Inc. et al, 2022 ONSC 5277 at paras 39-40.
3. 3White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess] at paras 23-24.
4. 4Ibid at para 53.
5. 5Ibid at para 49.
6. 6Ibid at para 54.
7. 7HLP Solution Inc. v Her Majesty the Queen, 2015 TCC 41 at para 40.