Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 13, 2024 CASE NO(S).: OLT-24-000231

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.

Applicant: Brant Aggregates Ltd. Objector: Jacqueline Accadia Objector: Geoffrey Rowntree Objector: Cody Snyder Objector: Paul Snyder Objector: Nancy Snyder Objector: Tom and Marlene Phibbs Objector: Bob J. Phibbs Objector: Murray Roulston Objector: Ryan Snyder Objector: Doug Wilson

Subject: Application for a Class ‘A’ License Description: To operate a quarry (below groundwater level) to remove crushed stone Reference Number: License Application #626494 Property Address: Part Lot 10, 11 and 12, Concession 2 Municipality/Upper Tier: Walpole Township/County of Haldimand OLT Case No.: OLT-24-000231 OLT Lead Case No.: OLT-24-000231 OLT Case Name: Brant Aggregates Ltd. v. Ontario (Ministry of Natural Resources and Forestry)

Heard: May 29, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Brant Aggregates Ltd.	Marc Kemerer*
Jacqueline Accadia	Self-Represented
Geoffrey Rowntree	Self-Represented (in absentia)
Cody Snyder	Self-Represented
Paul Snyder	Self-Represented
Nancy Snyder	Self-Represented
Marlene Phibbs	Self-Represented
Bob J. Phibbs	Self-Represented
Murray Roulston	Self-Represented
Ryan Snyder	Self-Represented
Doug Wilson	Self-Represented

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY AND YASNA FAGHANI ON MAY 29, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision relates to a referral to the Tribunal from the Ministry of Natural Resources and Forestry (“MNRF”) of an application and objections pursuant to s.11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended (“ARA”) by Brant Aggregates Ltd. (“Applicant”). The Applicant applied for a Class A, Category 2 (quarry below water) licence (“application”) on the property located at Part Lots 10, 11, 12, Concession 12, Walpole Township, County of Haldimand (“Subject Property”). The proposed licence area is approximately 93.7 hectares, and the maximum number of tonnes of aggregate to be removed in any calendar year is approximately 750,000 tonnes.

2In its referral letter dated February 19, 2024, the MNRF requested that the Tribunal hold a hearing to determine whether a licence should be issued pursuant to the ARA. The MNRF also confirmed in its referral letter that it does not have any outstanding objections to the application and, as such, will not be a Party to the matter before the Tribunal.

3For ease of reference, s. 11(5) and s. 11(6) of the ARA read as follows:

Referral to Tribunal

(5) The Minister may refer the application and any objections arising out of the notification and consultation procedures that are prescribed or set out in a custom plan to the Tribunal for a hearing, and may direct that the Tribunal shall determine only the issues specified in the referral.

Parties

(6) The parties to the hearing are,

(a) the applicant;

(b) the person who made the objection;

(c) the Minister, if he or she notifies the Tribunal of his or her intention to be a party; and

(d) such other persons as are specified by the Tribunal.

PROCEDURAL MATTERS

4The Tribunal served Notice of this first Case Management Conference (“CMC”) on April 26, 2024. Prior to the CMC, the Tribunal was advised that the Notice referred to the Subject Property as “Concession 2”, as set out in the MNRF referral letter, rather than the proper address of “Concession 12”. At the CMC, the Tribunal confirmed with Counsel that the minor typographical error had not resulted in any known issues with the circulation of the Notice. As such, no further Notice is required.

5At the CMC, Counsel for the Applicant confirmed there are no related Planning Act appeals with respect to this application or any other consideration that the Tribunal should be aware of prior to proceeding. He advised that the only matter before the Tribunal is this referral from the MNRF.

LIST OF OBJECTORS AND REQUESTS FOR STATUS

6At the onset of the CMC, the Tribunal reviewed the list of Objectors received from MNRF with Counsel for the Applicant to ensure that the list was accurate. Counsel for the Applicant confirmed that the Tribunal’s list is reflective of the objections received up to the end of the 20-day objection period. The Tribunal acknowledges that if objections were received following that 20-day period, those persons would not be included 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.

7In addition, the Tribunal noted that McCarty Fowler Ltd., a law firm, was included in the list of Objectors. The Tribunal expressed concern that a law firm should not be considered an Objector, nor could a law firm be a proper Party to the appeal and noted that perhaps the individuals represented by the law firm (who did not submit individual objections already) should have been listed as Objectors.

8Counsel for the Applicant agreed with the Tribunal that a law firm is responsible for acting on behalf of individuals. As such, it is inappropriate to list a law firm as an Objector. Moreover, Counsel for the Applicant confirmed that McCarty Fowler Ltd. is no longer representing any individual related to this matter, and any represented person would be aware that their concerns/objections would no longer be proceeding. Counsel further advised that if anyone intended to proceed with their objection, they would be aware of the CMC. However, out of an abundance of caution, Counsel advised that he would follow up with McCarty Fowler Ltd. to confirm that it was no longer involved in the proceedings in any capacity.

9The Tribunal confirmed with the Objectors that they were each a Party to the appeal. In an effort to explain the difference between Party and Participant status, the Tribunal referenced s. 17 of the Ontario Land Tribunal Act, 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. The Tribunal then reviewed 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.

10Finally, it was explained that regardless of status, Party or Participant, the Tribunal always encourages collaboration to avoid duplicative arguments, evidence and participant statements, noting that the merit of an argument or concern is not strengthened through repetition.

11Subsequent to the Tribunal’s explanations, the following individuals requested and were granted a revision in status from Party to Participant: Marlene and Bob Phibbs, Doug Wilson, Murray Roulston, Jacqueline Accadia and Geoffrey Rowntree. Through discussions with Ms. Phibbs, the Tribunal learned that Tom Phibbs had passed away and, as such, is no longer an Objector.

12Cody, Nancy, Paul and Ryan Snyder advised the Tribunal that they wished to maintain their Party status. The Tribunal requested one person to be the spokesperson on behalf of the Parties to encourage efficiencies with respect to communication. Cody Snyder assumed the role of spokesperson and confirmed that he would advise the Tribunal if Legal Counsel would be retained on behalf of the Parties. If so, he will direct Legal Counsel to communicate with the Tribunal and Counsel for the Applicant.

13At the request of Counsel for the Applicant, the Tribunal directed all Objectors, whether Party or Participant, to provide Counsel for the Applicant with their contact information following the CMC.

14Prior to the CMC, the Tribunal received written requests for Participant status from Haldimand County (“the County”) and Beverley Wydysz.

15Counsel for the Applicant objected to Beverly Wydysz’s Participant request. He advised that although Ms. Wydysz had suffered an injury recently, she and her partner, Trevor Smith (homeowner of a property across the street from the Subject Property), were apprised of the process by neighbours and through email correspondence to Mr. Smith. Counsel further submitted that despite this, Ms. Wydysz and Mr. Smith did not object or raise concerns until one week prior to the CMC. Counsel for the Applicant further advised that some of Ms. Wydysz’s concerns were vague and went beyond the scope of this matter but that her relevant concerns would be addressed through similar concerns raised by the existing Parties and Participants. Ms. Wydysz confirmed that she has lived in Mr. Smith’s home for about five years and was aware of this matter through neighbours. However, she advised that Mr. Smith did not receive registered mail regarding the application. She advised that her concerns relate to noise, pollution, and structural damage.

16Mike Evers appeared as a representative of the County and provided background with respect to the reasons the County was late in putting forth its objection. Mr. Evers advised that previous Council members of the County had noted technical concerns regarding the road infrastructure yet ultimately came to a decision not to maintain its objection. He noted, however, that the current Council is made up of new members who have a renewed interest in maintaining the previous objections. Counsel for the Applicant objected to the County’s Participant request, noting that the County made a conscious choice to withdraw its objection by not submitting the requisite response or forms within a timely manner as it had been advised. Counsel for the Applicant referenced email correspondence to the County dated November 26, 2021, wherein the County was advised to submit its concerns by December 22, 2021, and if no response was received, the objection would be deemed withdrawn. Furthermore, Counsel for the Applicant advised that the County is a sophisticated Party who is aware of the rules and procedures and, in this case, is barred by statute from participating in the process.

17After deliberation, the Tribunal denied Participant status to Ms. Wydysz and the County. The Tribunal found that Ms. Wydysz’s concerns will be covered by the existing Parties and Participants and that her participation will not further assist the Tribunal in rendering its decision. With that said, Counsel for the Applicant offered to keep Ms. Wydysz updated as this matter proceeds. In addition, the Tribunal denied Participant status to the County. The Tribunal found that the previous Council had the opportunity to participate and specifically declined to do so. The Tribunal found that a change in Council membership is not an adequate reason to grant Participant status and would be prejudicial to the Applicant.

18In response to the Tribunal’s inquiry, there were no other persons or entities present at the CMC requesting Party or Participant status.

NEXT STEPS

19In light of the early stages of the proceedings, the direction from the Tribunal to the Parties is that they engage in discussions to ensure efficiency in presenting their case and to consider whether obtaining Legal Counsel would be their preferred course of action. The Tribunal declined to set hearing dates; rather, the Tribunal scheduled a further CMC to be held by Video Hearing on Wednesday, July 3, 2024, at 10 a.m.

20The Tribunal directed the Parties to communicate with each other in advance of the next CMC and provide a list of issues to Counsel for the Applicant on or before June 19, 2024. The Tribunal directed that all Parties attend the next CMC prepared to discuss the number of witnesses they intend to call, the professional disciplines of each witness and availability for a merit hearing.

21The Tribunal further directed Counsel for the Applicant to submit a draft Procedural Order and consolidated Issues List of all Parties to the Tribunal on or before Wednesday, June 26, 2024.

22The CMC is scheduled to proceed by video on Wednesday, July 3, 2024, at 10 a.m.

23Parties 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/442599157

Access Code: 442-599-157

24Parties 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

25Persons 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) 1-888-455-1389 or +1 (647) 497-9391. The access code is as indicated above.

26Individuals 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.

ORDER

27There will be no further Notice, and the Panel is not seized but may be available for case management, subject to availability.

28The Tribunal so orders and provides the above Case Management Conference directives for the purposes of the case management of the appeal.

“C. Hardy”

C. HARDY VICE CHAIR

“Yasna Faghani”

YASNA FAGHANI 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.