Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 23, 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: July 3, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Brant Aggregates Ltd. | Marc Kemerer |
| Cody, Paul, Nancy and Ryan Snyder | Callum Shedden |
MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AND C. HARDY AND ON JULY 03, 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.
3At the first Case Management Conference (“CMC”) held on May 29, 2024, the Tribunal, among other things, finalized the list of Objectors and their preferred status in the proceedings. Counsel for the Applicant confirmed that he had provided the necessary updates to the individuals identified as Participants.
STATUS UPDATE
4At this second CMC, Mr. Shedden advised the Tribunal that he was retained as legal representative of Cody, Nancy, Paul and Ryan Snyder (together “Snyders”). Mr. Shedden confirmed that: he had reviewed the draft Procedural Order (“PO”) and Issues List (“IL”) and consents to same; he did not take issue with anyone identified as a Participant; and fruitful settlement discussions had occurred between himself and counsel for the Applicant. Mr. Shedden further noted that a meeting with the Applicant’s Hydrogeologist would be of assistance given that the protection of groundwater is the primary concern of the Snyders. Both counsel were hopeful that continued discussions may result in the issues being scoped or resolved prior to a Hearing.
5In response to a question from Ms. Accadia, Mr. Kemerer offered to set up a meeting between the Applicant’s Planner and any of the Objectors in order to discuss their concerns and provide additional information.
NEXT STEPS
6After discussions with respect to the number of witnesses, potential disciplines of each witness and likely anticipated length of the Hearing, the Tribunal scheduled a three (3) day Video Hearing commencing on September 18, 2024 at 10 a.m.
7The Tribunal directed the Parties to finalize the draft PO and IL and requested the Applicant’s counsel to submit the final drafts by July 5, 2024. As requested, the Parties submitted the final PO and IL which is attached as Schedule 1 to this Decision. The PO and IL has been reviewed and approved by the Tribunal.
8Parties 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://meet.goto.com/278736685
Access Code: 278-736-685
9Parties 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
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: (Toll-Free) 1-888-455-1389 or +1 (647) 497-9391. The access code is as indicated 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 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
12A Video Hearing has been scheduled for September 18, 2024.
13The Procedural Order attached as Schedule 1 to this Order is hereby approved and shall govern the pre-hearing procedural requirements and the hearing of the Appeal.
14There will be no further Notice, and the Panel is not seized but may be available for case management, subject to availability.
“Yasna Faghani”
YASNA FAGHANI
MEMBER
“C. Hardy”
C. HARDY
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-24-000231
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)
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 18 September 2024 at 10 a.m. and will end on 20 September 2024.
The parties’ initial estimation for the length of the hearing is 3 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).
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.
Attachment 4 contains a Table of Deadlines.
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
If the applicant / appellant intends to seek approval of a revised proposal at the hearing, the applicant / appellant shall provide a copy of the proposed modifications to the other parties on or before 12 July 2024. The applicant/appellant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn 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 26 July 2024 and in accordance with paragraph 24 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 proposed to be qualified.
Expert witnesses in the same field shall have a meeting on or before 9 August 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and if the expert witnesses reach an agreement, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before 30 August 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 15 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 the expert’s evidence as in paragraph 15 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as set out in paragraph 15 below.
On or before 9 August 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 24 below.
On or before 9 August 2024 a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 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 3 September 2024 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 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 on or before 19 August 2024, ten (10) days after the evidence is received, and in accordance with paragraph 24 below.
On or before 14 August 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before 9 August 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 and the other parties 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 11 September 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 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 to the Tribunal if requested. 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 the 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.
These Members are not seized.
So orders the Tribunal.
ATTACHMENT 1 – PARTIES AND PARTICIPANTS
PARTIES
- Brant Aggregates Ltd.
McMillan LLP 4400 – 181 Bay Street Toronto ON M5H 4E3 Marc Kemerer 416-865-7222 marc.kemerer@mcmillan.ca
- Paul, Nancy, Ryan and Cody Snyder
Daniel & Partners LLP 300B Fourth Avenue St. Catharines ON L2S 0E6 Callum Shedden 905-688-9411 sheddenc@niagaralaw.ca
PARTICIPANTS
| Name | Address | |
|---|---|---|
| Murray Roulston | murrarlstn@yahoo.com | |
| Marlene and Bob Phibbs | Limousinbeef70@gmail.com | |
| Doug and Barbara Wilson | 780 Concession 11 Walpole, Hagersville, ON N0A1H0 | Dandbwilson5@hotmail.com |
| Jacqueline Accadia and Geoff Rowntree | 2684 Concession 12 Hagersville ON N0A 1H0 289-440-1203 |
Jakki-1014@hotmail.com |
ATTACHMENT 2 – ISSUES LISTS
Does the proposed quarry have regard for the matters of provincial interest set out in Section 12 of the Aggregate Resources Act specifically 12(1)(a)(b)(e)(h) and (j)?
Will the operation of the proposed quarry result in any undue adverse impacts on neighbouring properties with respect to:
- water quality or quantity
- noise (blasting); and/or
- dust?
If the answer to paragraph 2 is yes, what mitigation measures are required and are they already contained in the site plans for the proposed quarry?
Note: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties the case they need to meet.
ATTACHMENT 3 – ORDER OF EVIDENCE
- Brant Aggregates Ltd.
- Snyders
- Reply, if any, of Brant Aggregates Ltd.
ATTACHMENT 4 – TABLE OF DEADLINES
| ITEM | DEADLINE |
|---|---|
| Delivery and filing of revised proposal for approval, if applicable | 12 July 2024 |
| Exchange and filing of lists of witnesses | 26 July 2024 |
| Meeting(s) of like experts | 9 August 2024 |
| Filing of Statement of Agreed Facts and Issues | 30 August 2024 |
| Exchange and filing of witness and participant statements and expert witness statements | 9 August 2024 |
| Exchange and filing of reply witness statements and reply expert witness statements | 19 August 2024 |
| Confirmation with OLT that hearing dates are still required | 14 August 2024 |
| Exchange and filing of visual evidence | 3 September 2024 |
| Filing of preliminary hearing plan | 11 September 2024 |
| Filing of Joint Document Book | 9 September 2024 |
| Commencement of hearing | 18 September 2024 |