Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 06, 2024
CASE NO(S).: OLT-23-001267, OLT-24-000223
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant: Port Colborne Quarries Inc.
Appellants: Niagara Water Protection Alliance and Sharon Ladd
Subject: By-law No. 7161/103/23
Description: To permit a change in the zoning of the subject lands from Agricultural to Mineral Aggregate Operation for a quarry expansion.
Reference Number: D14-09-21
Property Address: Part of lot 17, 18, 19, Concession 2
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-23-001267
OLT Lead Case No.: OLT-23-001267
OLT Case Name: Niagara Water Protection Alliance et al. v. Port Colborne (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant: Port Colborne Quarries Inc.
Appellant: Niagara Water Protection Alliance
Subject: Proposed Official Plan Amendment
Description: To permit the addition of the subject lands to Site Specific Policies of the Niagara Official Plan in order to facilitate an expansion of the existing quarry
Reference Number: ROPA 3
Property Address: Part of lot 17, 18, 19, Concession 2
Municipality/UT: Port Colborne/Niagara
OLT Case No.: OLT-24-000223
OLT Lead Case No.: OLT-24-000223
OLT Case Name: Niagara Water Protection Alliance v. Niagara (Region)
Heard: April 26, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| City of Port Colborne | J.P. Maloney S. Premi (in absentia) |
| Region of Niagara | S. Crocco |
| Niagara Water Protection Alliance | G. Gaverluck* J.S. Hellinga* |
| Sharon Ladd | M. Hoy |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON APRIL 26, 2024 AND ORDER OF THE TRIBUNAL
BACKGROUND AND PROCEDURAL HISTORY
1This decision and Order arise out of the concurrent hearing of the first Case Management Conferences (“CMCs”) for OLT-23-001267 and OLT-24-000223. OLT-23-001267 is an appeal of the decision of the City of Port Colborne (“City”) to approve an application for a Zoning By-law Amendment (“ZBA”) by Port Colborne Quarries Inc. (“Applicant”) in relation to property legally described as Part of Lot 17, 18, and 19 Concession 2 (“Subject Property”). OLT-24-000223 is an appeal of the decision of the Region of Niagara (“Region”) to approve the Applicant’s application for an Official Plan Amendment (“ROPA3”) in relation to the Subject Property. The purpose of the applications is to permit the expansion of an existing quarry.
2The Tribunal notes, for context, that the Applicant also applied to the City for an Official Plan Amendment (“LOPA13”). On November 14, 2023, the City made a decision to adopt the ZBA and LOPA13, but the decision to adopt LOPA13 remained subject to the approval of the Region.
3In December 2023, the Niagara Water Protection Alliance (“NWPA”) and Ms. Ladd filed appeals against the City’s decision to approve the ZBA under s. 34(19) of the Planning Act (“Act”) and appeals against the City’s decision to approve LOPA13 under s. 17(24) of the Act. While the appeals of the ZBA were valid, the appeals of LOPA13 were invalid, as they should not have been made in advance of approval by the Region. Essentially, no right of appeal existed from the decision of the City on LOPA13 given the requirement for Regional approval.
4On December 18, 2023, The City forwarded the valid appeals of the ZBA along with the invalid appeals of LOPA13 to the Tribunal, which processed the invalid appeals in error.
5On January 25, 2024, the Region made a decision to approve LOPA13 as well as ROPA3. No appeals of the Region’s decision to approve LOPA13 were filed, and only the NWPA appealed the approval of ROPA3.
6On February 28, 2024, the Region wrote to the Tribunal to advise that the appeals of LOPA13 filed by Ms. Ladd and the NWPA were premature and therefore invalid. Thereafter, the Parties were informed of the Tribunal’s intention to dismiss the invalid LOPA13 appeals for lack of jurisdiction. Having been provided with an opportunity to make submissions, all Parties agreed that the LOPA13 appeals were invalid and, in an Order dated April 17, 2024, the appeals of LOPA13 by NWPA and Ms. Ladd were dismissed without a hearing pursuant to s. 4.6(1)(b) and (c) of the Statutory Powers Procedure Act.
7As a result of the lack of any valid appeal of LOPA13, that instrument is now in full force and effect.
AFFIDAVIT OF SERVICE AND STATUS REQUESTS
8The Tribunal received an Affidavit of Service sworn by Sean Norman on April 3, 2024, confirming proper notice for the CMCs in both OLT-23-001267 and OLT-24-000223 had been given. No further notice will be required.
9Melissa Bigford, who attended the hearing event as an observer, requested that she be added to the Tribunal’s mailing list in order to receive information with respect to future hearing events. Others who appeared to observe the hearing event were directed to contact the assigned Case Coordinator should they also wish to be added to the Tribunal’s mailing list.
10In response to the Notice, the Tribunal received no Requests for Party or Participant Status. However, in advance of the service of the Notice, the Applicant wrote to the Tribunal and the Parties, indicating an intention to take part in the proceedings as a Party. The Applicant has an obvious interest in the outcome of these proceedings and will assist the Tribunal in making its decision, and as such, was granted Party status in both OLT-23-001267 and OLT-24-000223 with no objections from any other Parties.
11As Ms. Ladd appealed only the ZBA and not ROPA3, the Tribunal explained that she did not have standing in the ROPA3 proceeding. Counsel for Ms. Ladd submitted that it was always her client’s intention to appeal ROPA3, noting that the failure to do so was inadvertent. She further submitted that her client has substantive rights that are affected as a result of the decision and requested that the Tribunal add her client as an Appellant to ROPA3.
12The Tribunal explained that it does not have the discretion to extend timelines for the filing of appeals (in this case, the appeal period for ROPA3 ended on February 15, 2024) and that the only path for Ms. Ladd to have gained standing in the ROPA3 appeal would have been for her to have submitted a written request for Party status in advance of the CMC.
13In response, counsel for Ms. Ladd requested that her client be granted Party status in OLT-24-000223. Counsel for the Applicant objected to the request, but given the confusion which resulted from the invalid appeals of LOPA13 and what appeared to be a lack of understanding in terms of the limits of its jurisdiction, the Tribunal exercised it’s discretion to allow Ms. Ladd an opportunity to provide a written request for status in OLT-24-000223 for consideration at the next hearing event. It was further explained that, should she be granted status as a non-appellant Party, Ms. Ladd would be required to shelter under issues raised by an Appellant party. Counsel for Ms. Ladd was directed to review the Tribunal’s Rules of Practice and Procedure and in particular Rule 8.3.
14Should Ms. Ladd wish to seek Party status in that matter, she is directed to submit her written request to the assigned Case Coordinator, copying all other Parties to OPA-24-000223 as soon as possible following this CMC. For clarity, the filing of a request does not guarantee that Ms. Ladd will be granted such status and the other parties will be provided with an opportunity to make submissions to the Tribunal on the request at the next hearing event.
15In an effort to ensure a complete and accurate record, the NWPA was directed to provide a copy of its Articles of Incorporation as well as written authorization for Messrs. Gaverluk and Hellinga to represent the NWPA in both matters to the Case Coordinator following the CMC.
SETTLEMENT OPPORTUNITIES
16The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation. Counsel for the Applicant advised that, while his client is open to pursuing discussions aimed at resolving or scoping the issues, it is likely that the appeals will require adjudication by the Tribunal, and he did not foresee a need for Tribunal-assisted mediation. All other Parties expressed an interest in engaging in discussions of some sort in an effort to achieve a resolution or a scoping of the issues for adjudication.
17Should the Parties wish to avail themselves of the resource of Tribunal-assisted mediation at some point in the future, they may reach out to the assigned Case Coordinator for assistance in that regard.
NEXT STEPS
18Counsel for the Applicant advised that there is a related application for a license under the Aggregate Resources Act (“ARA”), which is currently with the Ministry of Natural Resources and Forestry (“Ministry”). He further advised that he expects the matter will be referred to the Tribunal for adjudication by the Ministry. He acknowledged that, in the absence of the Tribunal receiving that referral, it would be premature to set hearing dates but expressed optimism that the referral would occur in advance of June of this year and requested that the Tribunal schedule a second CMC for these matters in June.
19Counsel for Ms. Ladd advised that she is a sole practitioner, is otherwise engaged in another hearing during the month of June and would not be available to attend a second CMC until early July. Given those scheduling constraints, the Tribunal scheduled a second CMC to be held for both matters by way of a video hearing commencing at 10a.m. on Wednesday, July 3, 2024.
20Parties 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/687587165
Access code: 687-587-165
21Parties 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
22Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.
23Individuals 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.
24Counsel for the Applicant requested the Tribunal set a deadline for the Parties to exchange their lists of issues and requested that the NWPA and Ms. Ladd be directed to advise as to the number of witnesses they intend to call at a future hearing of the merits and the professional disciplines of those witnesses. Should the ARA matter be referred in advance of the next hearing event, the foregoing will aid in ensuring the matters progress in an efficient and timely manner. The Parties agreed to exchange their issues lists and the NWPA and counsel for Ms. Ladd agreed to provide the requested information respecting anticipated witnesses no later than 12 p.m. on Friday, May 31, 2024.
25For the benefit of the NWPA and Ms. Ladd, the Tribunal explained that the issues for adjudication at a future hearing must not fall outside of the Tribunal’s jurisdiction, must have a clear connection to the grounds of Appeal and must be stated in the form of a question in neutral language. The NWPA and Ms. Ladd are encouraged to consult a sample Issues List (“IL”) and Procedural Order (“PO”), which can be obtained through the case coordinator, in order to inform their understanding of the Tribunal’s expectations for a forthcoming draft PO and IL in these matters.
26The Tribunal expects the parties to submit a draft PO and IL no later than 12 p.m. on Friday, June 28, 2024 and come to the next CMC prepared to discuss outstanding procedural matters including, if appropriate, scheduling hearing dates.
OTHER MATTERS
27The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just, and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
28The case management directives set out above are so Ordered.
29There will be no further notice and this Member is not seized but, if necessary, may be available for further case management subject to availability in the Tribunal’s calendar.
“S. Braun”
S. Braun
VICE-CHAIR
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.