Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 21, 2024
CASE NO(S).: OLT-24-000157
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Applicant: Reeves Construction Limited
Objector: Dennis and Lorri Grein
Objector: Hilja and Hans Viirlaid
Objector: Maurits and Robyn Dagelinckx
Subject: Application for Licence A, for a proposed Orchard Pit
Description: Reeves Construction Limited – Creation of Gravel Pit
Property Address: Concession 1 DIV 2 to 3 Part Lot 15 (Concession 1 DIV 2 to 3 Part Lot 15)
Municipality/UT: Southgate/Grey
OLT Case No.: OLT-24-000157
OLT Lead Case No.: OLT-24-000157
OLT Case Name: Dagelinckx v. Southgate (Township)
Heard: May 7, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Hilja Viirlaid and Hans Viirlaid and Dennis Grein and Lorri Grein
David Donnelly
Reeves Construction Limited
Peter Fallis
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 7, 2024
1On May 7, 2024, the Tribunal held the first Case Management Conference (“CMC”) in these proceedings regarding the referral by the Minister of Natural Resources and Forestry for a hearing regarding an application made by Reeves Construction Limited for a Category 3, Class A Licence (“proposed Licence”) for a proposed gravel pit in the Township of Southgate, in the County of Grey.
2Hilja and Hans Viirlaid and Dennis and Lorri Grein (“Objectors”) have filed objections to the proposed Licence.
3At the CMC, the Parties addressed the identification of the issues to be adjudicated, discussed the preparation of a draft Procedural Order and Issues List, discussed opportunities for settlement discussions, identified the types and number of witnesses to be called at the Hearing, and addressed the scheduling of the Hearing.
4Prior to the CMC, the Objectors filed a draft Issues List. During a break in the CMC, the Parties discussed the proposed issues and agreed to revisions to the Objectors’ Issues List to be filed with the Tribunal. Subsequent to the CMC, the Parties filed a final draft Procedural Order and Issues List, which the Tribunal has now reviewed and approves in the form attached as Schedule 1 to this Decision.
5The Parties expressed an openness to continuing to engage in settlement discussions and possibly mediation, which the Tribunal strongly encourages. Should the Parties agree to seek Tribunal-assisted mediation, the Tribunal encourages them to request these services through the Tribunal’s Case Coordinator.
6The Parties identified the types and number of witnesses that they each plan to call at the Hearing and agreed that a 10-day hearing would be required.
7The Tribunal scheduled a 10-day hearing commencing on Monday, October 21, 2024 at 10 a.m., by video hearing.
8Parties 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://meet.goto.com/357283957
Access Code: 357-283-957
9Parties 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
10Persons 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) 497-9391 or (Toll-Free): 1 888 455-1389. The access code is as indicated in paragraph 8 above.
11Individuals 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 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.
12There will be no further notice.
13This 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-24-000157
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Applicant: Reeves Construction Limited
Objector: Dennis and Lorri Grein, Hilja and Hans Viirlaid
Subject: Reeves Construction Limited – creation of gravel pit
Property Address/Description: Concession 1 DIV 2 to 3 Part Lot 15 Southgate
Municipality: Southgate/Grey
OLT Case No.: OLT-24-000157
OLT Case Name: Dagelinckx v. Southgate (Township)
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 Monday, October 21, 2024 at 10am at:
GoToMeeting: https://meet.goto.com/357283957
Access Code: 357-283-957
Audio-only telephone line: +1 (647) 497-9391 or (Toll-Free): 1 888 455-1389
Access Code: 357-283-957
The parties’ initial estimation for the length of the hearing is 10 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 (see the sample procedural order for the meaning of these terms).
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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 the parties’ consent, subject to the Tribunal’s approval, 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.
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 August 27, 2024 in accordance with paragraph 22 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 August 6, 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 October 6, 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
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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 September 6, 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 22 below.
On or before September 6, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 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 September 16, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 14, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 11, 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 October 14, 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
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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 filings shall be submitted electronically 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 by email shall be governed by Rule 7.
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.
This Member is not seized.
So orders the Tribunal.
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Meaning of terms used in the Procedural Order:
A 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. An unincorporated group cannot be a party and 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 authorisation 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 (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant 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 or participant intends to present as evidence at the hearing.
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 he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.
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An expert witness statement should include his or her (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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
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.
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Attachment 1
List of Parties and Participants
Party Name
Contact Information
Reeves Construction Limited
Fallis, McMillan & Ferrier LLP
195 Lambton Street E. Durham ON N0G 1R0
Peter Fallis
Email: pfallis@fallislaw.com
Tel: 519-369-2315
Township of Southgate
185667 Grey County Road 9 Dundalk ON N0C 1B0
Lindsey Green
Email: lgreen@southgate.ca
Tel: 519-923-2110 ext. 9262
Dennis and Lorri Grein, and Hilja and Hans Viirlaid
Donnelly Law
276 Carlaw Ave. #203 Toronto ON M4M 3L1
David Donnelly, Siena Turnbull
Email:david@donnellylaw.ca, siena@donnellylaw.ca
Tel: 416-572-0464
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Attachment 2
Case No. OLT-24-000157
Issues List
Dennis and Lorri Grein, Hilja and Hans Viirlaid
May 17, 2024
- With respect to potential traffic impacts:
a. Has the proponent adequately studied the planned Western exit and associated heavy truck westerly travel direction?
b. Is the intersection safe for cars, cyclists and pedestrians?
c. Will there be unavoidable loud resulting noise conditions to very close residents on the road’s hillside slope down toward Ontario highway 6?
d. Will dust raised by heavy trucks be a serious issue for the health of nearby residents?
e. Will planned pit aggregate extraction rate and resulting truck traffic be exceeded?
f. What enforcement or control mechanisms exist to ensure continued good governance in that case?
- With respect to potential noise impacts:
a. Will the proposed pit result in any unacceptable noise impacts to nearby noise sensitive uses?
b. Is the proposed monitoring and mitigation adequate to ensure compliance with applicable MECP (formerly MOECC) guidelines/standards?
c. If the answer to (b) is negative, what additional monitoring and mitigation requirements could be put in place to ensure that MECP guidelines/standards can be met?
- With respect to potential air quality impacts:
a. Will the proposed pit result in any unacceptable air quality impacts to nearby sensitive uses?
b. Is the proposed monitoring and mitigation adequate to ensure compliance with applicable MECP (formerly MOECC) guidelines/standards?
c. If the answer to (b) is negative, what additional monitoring and mitigation requirements could be put in place to ensure that MECP guidelines/standards can be met?
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- With respect to potential hydrogeological impacts:
a. Will the proposed pit operations result in any unacceptable hydrogeological impacts?
b. Should the applications be approved, what if any mitigation and monitoring measures should be imposed to address hydrogeological impacts?
c. Will the pit’s operations lead to groundwater being exposed and released, that the springs and groundwater on the south side of Southgate SR14 will be adversely affected?
d. If the pit is excavated to near the underlying water table, what prevents newly introduced chemicals or bacteria-carrying manure from getting to that groundwater without being adequately filtered and slowly biodegraded by the passage of time?
Do the proposed site plan drawings and license conditions include adequate monitoring and contingency measures to ensure that the proposed pit will not have any adverse impacts on private drinking water wells in the vicinity of the proposed?
Under the proposed Mineral Aggregate Extraction (MEA) Zone what, if any, accessory uses and ancillary uses should be permitted?
Is the Aggregate Resources Act license application, including its Site Plan (“ARA Application”), consistent with the "matters to be considered" under the Aggregate Resources Act (Section 12) and the Aggregate Resources of Ontario: Provincial Standards (Category 2), including in particular, sections 12 (b), (d), (e), (f), (h), (i) and (j)
Does the ARA Application appropriately implement the OP Amendments and zoning in force?
Should the site plan notes, as approved under the ARA, include regulations to limit extraction to a depth of 1.5 metres above the established (seasonally high) groundwater table on all lands within the proposed license area proposed for above-water extraction?
Is the ARA application appropriate at this location and does it represent good planning?
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Attachment 3
Order of Evidence
Reeves Construction Ltd.
Township of Southgate
Dennis and Lorri Grein, and Hilja and Hans Viirlaid
Reply by Reeves Construction Ltd.
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