Blueland Farms Ltd. v. Caledon (Town of), 2024 CanLII 40926

ISSUE DATE: May 03, 2024

CASE NO(S).: OLT-23-000089 OLT-23-001202 OLT-24-000238

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Blueland Farms Ltd. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the establishment of a gravel pit on the subject property Reference Number: POPA 2013-0002 Property Address: 17736 Heart Lake Road (Part Lot 12, Concessions 2 (EHS)) Municipality/UT: Caledon/ Peel OLT Case No.: OLT-23-000089 OLT Lead Case No.: OLT-23-000089 OLT Case Name: Blueland Farms Ltd. v. Caledon (Town of)

PROCEEDING COMMENCED UNDER section 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant: Blueland Farms Ltd. Subject: Proposed Amendment to the Niagara Escarpment Plan Description: To amend the Niagara Escarpment Plan for permission of mineral aggregate resource extraction on the subject property and add special policy to allow transportation of mineral materials Reference Number: Proposed Niagara Plan Amendment No. PP 213 18 Property Address: 17736 Heart Lake Road Municipality/UT: Caledon/Peel OLT Case No.: OLT-23-001202 OLT Lead Case No.: OLT-23-001202 OLT Case Name: Plan Amendment No. 213 18 (Re)

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant: Blueland Farms Ltd. Respondent: Niagara Escarpment Commission Subject: Refusal of a Development Permit Application Description: To propose an establishment of a new 25.97 hectare aggregate extraction operation (gravel pit) on a portion of a 40.5 hectare property Reference Number.: P/E/2017-2018/408 Property Address: 17736 Heart Lake Road Municipality/UT: Caledon/Peel OLT Case No.: OLT-23-001189 OLT Lead Case No.: OLT-23-001202 OLT Case Name: Blueland Farms Ltd. v. Ontario (Niagara Escarpment Commission)

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant: Blueland Farms Ltd. Respondent: Niagara Escarpment Commission Subject: Refusal of a Development Permit Application Description: To allow for the transport of up to 750,000 tonnes (annually) of extracted aggregate from 17736 Heart Lake Road to an aggregate operation at 17679 Kennedy Road Reference Number.: P/E/2023-2024/291 Property Address: 17679 Kennedy Road Municipality/UT: Caledon/Peel OLT Case No.: OLT-23-001190 OLT Lead Case No.: OLT-23-001202

PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8

Referred by: Ministry of Natural Resources and Forestry Objector: Nikola Balaban Objector: Donna Baylis Objector: Victor Bras and Valentina Tovpeko Objector: Sandy and Pail Caletti Objector: Cheryl Connors; and others Applicant: Blueland Farms Ltd. Subject: Application for a Class A Licence, Category 1 Pit Below Water for the removal of aggregate Description: McCormick Pit Reference Number: Licence No. 626266 Property Address: Part Lot 12, Concession 2 EHS Municipality/UT: Caledon/Peel OLT Case No.: OLT-24-000238 OLT Lead Case No.: OLT-24-000238 OLT Case Name: Blueland Farms Ltd. v. Ontario (Natural Resources and Forestry)

Heard: March 26, 2024 by Video Hearing

Parties and Counsel/Representative*

• Blueland Farms Ltd.: A. Burton
• Town of Caledon: C. Barnett
• Region of Peel: R. Godley
• Niagara Escarpment Commission: D. Kappos
• Richard Pilosof: J. Ayres, S. Lemke
• Ministry of Natural Resources and Forestry: Z. D’Onofrio
• Objectors:
  • Miriam Kelly: Self-represented*
  • David Fowler: Self-represented*
  • Nikola Balaban: Self-represented*
  • Robert Shapton (on behalf of PitSense Niagara Escarpment Group): Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON MARCH 26, 2024 AND ORDER OF THE TRIBUNAL

BACKGROUND AND PROCEDURAL HISTORY

1This was the third Case Management Conference (“CMC”) in relation to an appeal by Blueland Farms Ltd. (“Applicant”/“Appellant”) against the failure of the Town of Caledon (“Town”) to make a decision on an application for an Official Plan Amendment (“OPA”) within the legislated timeframe. The purpose of the OPA is to permit the establishment of a gravel pit on the property located at 17736 Heart Lake Road.

2This was also the first CMC in relation to the following matters:

a) OLT-23-001202, OLT-23-001189 and OLT-23-001190 (“NE matters”) under the Niagara Escarpment Planning and Development Act (“NEPDA”), which relate to a proposed amendment to the Niagara Escarpment Plan and two development permit applications for the Subject Property. The Niagara Escarpment Commission (“NEC”) takes no position on the proposed amendment and refused the two development permit applications. With respect to the above noted matters, the Tribunal acts in its role as the Niagara Escarpment Hearing Office (“NEHO”); and,

b) OLT-24-000238 (“ARA Matter”), which is a referral under s. 11(5) of the Aggregate Resources Act (“ARA”) by the Ministry of Natural Resources and Forestry (“MNRF”) of an application for a Class A License, Category 1 Pit Below Water, received by the Tribunal on March 5, 2024.

3Previous CMCs in relation to the OPA appeal were held on May 24, 2023 and December 5, 2023 before panels differently constituted. The following were added as Parties: the Regional Municipality of Peel (“Region”), the NEC and Richard Pilosof. The following were granted Participant Status: Cynthia Barrett; Miriam Kelly; Robert Shapton; Sandy Kang-Gill/Manjinder Gill; and Ezra Satok-Wolman.

4At the December 5, 2023, CMC, the Tribunal noted that the Applicant was requesting a 40-day hearing and had given notice, pursuant to s. 21 of the Ontario Land Tribunal Act (“OLTA”), for a consolidated hearing for the proposed undertaking. Ultimately, it was determined that it was premature to take any procedural steps at that time, especially in light of the fact that the NE and ARA Matters were not yet properly before the Tribunal. Instead, a subsequent CMC was scheduled for today’s date.

5Following receipt of the Appeals for the NE Matters, the Tribunal scheduled the first CMC in those matters to be heard concurrently with the already scheduled OPA CMC, serving Notice of same on January 18, 2024. The ARA Matter was referred by the MNRF on March 5, 2024 and, for the sake of efficiency, the Tribunal served Notice of the first CMC on March 13, 2024, having abridged the time for service so as to have all three matters heard concurrently.

ONGOING INDIGENOUS CONSULTATION

6While a draft Issues List (“IL”) was not submitted, counsel for the Applicant nevertheless requested the Tribunal schedule these matters for a 40-day hearing, anticipating that 35 witnesses will be called. He explained that, despite several requests for the issues of MNRF, the Town, the Region, NEC and Mr. Pilosof, only MNRF responded in advance of this CMC. The Tribunal expressed concern with the lack of communication between counsel for the Parties. Going forward, the Parties are strongly encouraged to provide timely responses to correspondence and requests for information from fellow counsel.

7Counsel for MNRF explained that his client had recently completed a reassessment of the ARA application and identified Six Nations of the Grand River as requiring consultation. He noted that MNRF seeks no status in the OPA and NE matters, and that it does not intend to take part in the hearing of the ARA matters, provided consultation with Indigenous groups has been completed. He submitted that it would be premature to schedule any hearing in advance of the conclusion of that process, noting that if the Tribunal were to hold a hearing and ultimately direct the issuance of a license, constitutional obligations would take precedence, precluding MNRF from complying with such a direction in advance of the completion of the Indigenous consultation process. It was noted that the outcome of that process could impact a decision of the Tribunal and, in theory, result in the need for a further hearing.

8Counsel for the Town, the Region, the NEC and Mr. Pilosof concurred with the foregoing and submitted that it would not be an efficient use of resources to schedule a hearing under the circumstances. In addition, counsel for these Parties advised that their clients are in the process of a number of peer reviews and studies, and a reasonable amount of time would be required to allow for the completion and review of same by relevant experts in order to determine specific issues for adjudication. It was noted that Mr. Pilosof had only recently been granted status and, as such, he required more time to complete studies including traffic counts, which are scheduled to be performed later this summer and into the fall.

9In response to questions from the Tribunal with respect to progress to date, if any, in relation to the consultation with Six Nations of the Grand River, counsel for the Applicant advised that the process had only recently commenced on January 15, 2024 and, although committed to moving this process along in an expeditious manner, his client has no control over when (or if) the Crown might be satisfied. The Tribunal was advised that MNRF has directed the Applicant to provide regular updates at three-month intervals, in relation to the progress with respect to Indigenous consultation, with the first of such updates to take place in mid-May 2024.

STATUS REQUESTS AND THE LIST OF ARA OBJECTORS

10In response to the various Notices, the Tribunal received written requests for Participant Status in the NE Matters from the following: Robert Shapton (on behalf of PitSense Niagara Escarpment Group); Nikola Balaban; and Ezra Satok-Wolman.

11In addition, prior to and during the CMC, some of the Objectors to the ARA Matter expressed concerns with the list of Objectors and concerns. It was noted by Mr. Shapton that the list of concerns submitted on behalf of PitSense Niagara Escarpment Group were not fully addressed/responded to and that it appeared as though some names were missing from the list. For instance, Mr. Satok-Wolman advised that although he had been participating as an Objector going back to August 2021, he was not included on the list.

12Counsel for MNRF explained that the list is compiled by the Applicant and is reflective of objections received up to the end of the 20-day objection period which, in this case, was August 26, 2021. He noted that, if objections were received following that 20-day period, those persons would not be on the list, would not be treated as Objectors and would instead, be required to seek status if they wished to take part in the hearing. He further explained that the list would not reflect complete comments/concerns and again, any discussions which may have taken place in respect of the Objector’s concerns following August 26, 2021, would not be reflected.

13Counsel for the Town highlighted the importance of allowing residents an adequate opportunity to participate in the process and, to that end, he suggested that the Applicant and MNRF work together to ensure the accuracy of the list of Objectors and report back to the Tribunal at the next hearing event. He pointed out the inherent challenges for residents who wish to get involved, noting that certain individuals could have been under the mistaken impression that submitting concerns in relation to one matter would automatically translate into having some sort of status in all matters.

14Counsel for the Applicant indicated he was not aware of any discrepancies in the list provided to MNRF, but agreed to make inquiries and confirm the accuracy of the list at the next hearing event.

15In an effort to explain the difference between Party and Participant Status, the Tribunal referenced s. 17 of the OLTA, which states that a person who is not a party to a proceeding may make submissions to the Tribunal with respect to the proceeding in writing only; Rule 8.1 of the Tribunal’s Rules of Practice and Procedure, which sets out a detailed list of the role and obligations of a Party including fully participating in the proceeding by, for example, presenting and examining witnesses and cross-examining witnesses not of like interest, bringing/responding to motions and claiming costs or being subject to a costs award. The Tribunal also referenced s. 11(6) of the ARA, which provides that individuals who filed objections to the application for the licence are Parties, in respect of the hearing of the ARA matter, and explained that no such automatic status results from objections/submissions of concerns in relation to matters under the Planning Act and/or the NEPDA.

16Finally, it was explained that regardless of Status, Party or Participant, the Tribunal always encourages collaboration so as to avoid duplicative arguments, evidence and participant statements, noting that the merit of an argument or concern is not strengthened through repetition. For clarity, it is noted that those who have Participant status in more than one matter need only submit, for the Tribunal’s consideration at a future hearing, one written statement outlining the totality of their concerns.

17Subsequent to the Tribunal’s explanations, the following individuals requested and were granted a downgrade in status from Party to Participant in the ARA matter: Nikola Balaban and Robert Shapton (on behalf of PitSense Niagara Escarpment Group). If he has not already done so, Mr. Shapton is directed to submit to the Tribunal’s Case Coordinator a copy of the articles of incorporation for and written authorization to represent PitSense Niagara Escarpment Group. Given the uncertainty with respect to Mr. Satok-Wolman’s status in the ARA matter, he requested Participant Status, which was granted without objection. Mr. Satok-Wolman agreed to submit a written request following the CMC for the sake of a complete record.

18Although it is anticipated that, at a future CMC, these matters will be formally consolidated or ordered to be heard together, at this stage, given the abridgement of Notice for the ARA matter, the matters will continue to be heard concurrently. As such, in an effort to ensure an accurate record in relation to all of the matters presently before it, the Tribunal made inquiries as to the intentions of those who have status in some, but not all, matters. Counsel for the Town, the Region and Mr. Pilosof, all of whom are currently Parties to the ARA and OPA matters, indicated a wish to also be Parties to the NE Matters. Such status was granted without objection and, for the sake of a complete record, those Parties were directed to submit written status requests to the Tribunal following the CMC.

19No other individuals in attendance responded when the Tribunal opened the floor to the consideration of further status requests and none of the Objectors, who were in attendance, requested a change in status from Party to Participant.

NEXT STEPS

20Given the early stages of the NE and ARA proceedings (and the abridged Notice in the ARA matter), the ongoing Indigenous consultation process, the need to ensure the accuracy of the list of Objectors to the ARA matter and the potential for further status requests or changes in status to come forward for consideration, the Tribunal declined to set hearing dates and instead scheduled a further CMC, which will be held by video hearing on Tuesday, September 10, 2024.

21This should allow a reasonable amount of time for some degree of progress to be made with respect to Indigenous consultation and for most of the aforementioned peer reviews and studies to be completed and considered by relevant experts, such that the Parties can be in a position to begin the process of putting together a draft list of issues for a future hearing.

22In light of the Tribunal’s refusal to schedule hearing dates as well as the Parties’ previous refusals to respond to requests for information, counsel for the Applicant requested an Order for Discovery, compelling all Parties to provide the Applicant with copies of all available peer reviews/studies and draft issues lists by the end of April in an effort to ensure meaningful progress can be made in advance of the next hearing event. He also suggested that, as the Tribunal now “stands in the shoes of the Minister” in the ARA matter, the draft list of issues to be adjudicated at a future hearing could include an issue respecting Indigenous consultation and the adequacy of same.

23Counsel for the Region noted that it is inappropriate for the Tribunal to assess the adequacy of Indigenous consultation and objected to the inclusion of same on the Issues List. Counsel for the Town, the Region, the NEC and Mr. Pilosof all objected to an Order for Discovery, noting that peer reviews and studies are protected by litigation privilege and any such Order ought to be decided by way of a formal motion.

24The Tribunal agreed with the foregoing, made no Order for Discovery, and directed that the Parties engage in further discussions with respect to issues for adjudication at a future hearing in an effort to ensure that the matters progress in as timely and efficient a manner as possible following the completion of Indigenous consultation. Counsel for the Town, the Region, the NEC and Mr. Pilosof all agreed to provide the Applicant with a preliminary Issues List, on behalf of their clients, subject to the understanding that the scope of such issues may be affected by the outcomes of the Indigenous consultation process and any peer reviews/studies currently underway. It was agreed that the Parties would forward their preliminary Issues Lists to counsel for the Applicant no later than Tuesday, August 27, 2024.

25In the interest of allowing the Tribunal and the other Parties to gain a better understanding of the intentions of the ARA Objectors and to efficiently progress these matters toward a hearing, the Tribunal directs all ARA Objectors (who have not already done so) to communicate with the assigned Case Coordinator and the other Parties, in advance of the next CMC, to clarify whether they intend to present a case at a future hearing (individually or collectively) or whether they simply wish to abandon their Statutory Party status and become a Participant and make written submissions only. Should they wish to present a case, they are directed to provide a list of issues to counsel for the Applicant no later than Tuesday, August 27, 2024 and to attend the next CMC prepared to discuss the number of witnesses they anticipate calling as well as the professional disciplines of such witnesses. Objectors who did not attend or speak out at this CMC, and who do not communicate with the Parties and Case Coordinator in advance of the next CMC are reminded that they play an important role in the process and are encouraged to attend the next hearing event to communicate to the Tribunal and the Parties their intentions with respect to taking part in any future hearing.

26Counsel for the Applicant is directed to submit a consolidated list of the preliminary issues of all Parties to the Tribunal no later than Tuesday, September 3, 2024. It is noted that this list is preliminary only and will be subject to change based upon the outcome of the Indigenous consultation process and any peer reviews/studies that may remain outstanding at the next CMC.

27At the next hearing event,

• the Applicant will be expected to provide confirmation of the accuracy of the list of Objectors in the ARA matter or, in the alternative, a revised list which accurately reflects the names and concerns of those who submitted objections within the 20-day consultation period;
• the Tribunal will consider any further requests for status or changes in status given the explanations provided with respect to the differences between Party and Participant Status;
• the Applicant (and, if appropriate, the MNRF) will be expected to provide an update on any progress made in relation to the consultation with Six Nations of the Grand River and, if appropriate, the expected timing for completion of same;
• the Parties will be expected to arrive prepared to discuss the appropriateness of the Tribunal formally consolidating or alternatively, ordering that the ARA, NE and OPA matters be heard together;
• the Parties will be expected to arrive prepared to discuss the preliminary Issues List and whether any meaningful progress can be made toward finalizing same in light of the aforementioned updates to be received from the Applicant; and,
• objectors to the ARA matter who wish to present a case at a future hearing, either individually or collectively with a common representative, are expected to have provided counsel for all Parties their list of issues by Tuesday, August 27, 2024. They will be expected to attend the CMC prepared to discuss their intentions with respect to presenting a case including, but not limited to: whether they intend to retain counsel, retain experts to provide evidence and if so, the number of and disciplines of anticipated witnesses or simply wish to fully participate, as a Party through cross-examination of the expert witnesses.

28Parties 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:

https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

29Parties 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.

30Persons 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) 497-9391. The access code is as indicated above.

31Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

OTHER MATTERS

32The Tribunal notes that the Parties were canvassed with respect to opportunities for settlement, including the use of Tribunal-assisted mediation. The Parties advised that, at this early stage of the proceedings, they are not currently in a position to pursue same, but are aware of the means by which they may access Tribunal-assisted mediation should they wish to avail themselves of this resource in the future.

33There will be no further notice and this Member is not seized but, if necessary, may be available for case management subject to availability in the Tribunal’s calendar.

34The Tribunal so orders and provides the foregoing directives for the purposes of the case management of these appeals.

“S. Braun”

S. Braun

VICE-CHAIR/ HEARING OFFICER

Ontario Land Tribunal

Website: 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.