Galibier Materials Inc. v. Springwater (Township), 2024 CanLII 77596

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 07, 2024

CASE NO(S).: OLT-23-000990

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

Applicant/Appellant: Galibier Materials Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the expansion of the existing mineral aggregate operation (Lewis Pit)
Reference Number: OP-2022-002
Property Address: Lot 15 Concession 9 Vespra
Municipality/UT: Township of Springwater / Simcoe County
OLT Case No.: OLT-23-000990
OLT Lead Case No.: OLT-23-000990
OLT Case Name: Galibier Materials Inc. v. Springwater (Township)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Galibier Materials Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the expansion of the existing mineral aggregate operation (Lewis Pit)
Reference Number: ZB-2022-016
Property Address: Lot 15 Concession 9 Vespra
Municipality/UT: Township of Springwater/ Simcoe County
OLT Case No.: OLT-23-000991
OLT Lead Case No.: OLT-23-000990

Heard: June 21, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Galibier Materials Inc. ("Applicant")	Marc Kemerer
Township of Springwater ("Township")	Bruce Engell
Springwater Green Community Coalition Inc. ("SGCC")	David Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS and N. ALLAM ON June 21, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant seeks to expand the adjacent Lewis Pit for sand and gravel aggregate operation at a property known as the west half of Lot 15, Concession 9, in the Township. To this end, the Applicant had filed applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”). The Appeals are brought pursuant to sections 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), due to the Township’s failure to decide on the Applications in a timely manner.

2The Tribunal was informed that the County of Simcoe (“County”) is no longer a Party to this proceeding.

3In addition to the Applications and Appeals under the Act, the Applicant had filed a concurrent Application with the Ministry of Natural Resources and Forestry (“MNRF”) pursuant to the Aggregate Resources Act, R.S.O. 1990, c. A.8 (“ARA”) for a Class A licence. That matter is not currently before the Tribunal but may be referred to the Tribunal by the MNRF.

NEXT STEPS

4Counsel for the Applicant informed the Tribunal that there is still no referral received from the MNRF under the ARA. Mr. Kemerer also informed the Tribunal that the referral could occur within the next month, but there remains uncertainty. In his view, all the relevant First Nations had been consulted, and only the Huron Wendat had yet to “sign off”. The Tribunal was not in receipt of a draft Procedural Order, including an Issues List.

5Nevertheless, the Applicant requested that the Tribunal set a hearing date for the matter to be heard.

6Counsel for the SGCC objected to setting a hearing date and argued that the required First Nations had not been appropriately consulted according to constitutional principles.

7Given the continued uncertainty as to the scope of the issues and the required number of witnesses to be heard, the Tribunal concluded that it was premature to set a hearing date. Rather, the Tribunal directed that a third Case Management Conference (“CMC”) be held on Thursday, September 12, 2024, at 10 a.m., by Video Hearing.

8Parties 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.

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

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.

10Individuals 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.

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 Video 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.

12The Applicant is directed to inform the Tribunal as soon as possible of any referral under the ARA.

13The Tribunal also directed that the Parties are to file with the Tribunal a draft Procedural Order, including an Issues List, by Friday, September 6, 2024.

CONSTITUTIONAL QUESTION

14With respect to Counsel for the SGCC’s arguments about the constitutional duty to consult, the Tribunal notes that the Tribunal is only seized, at this stage, with Appeals under the Act, that the referral under the ARA has not yet been forwarded to the Tribunal, and that any such potential referral has not been consolidated or directed to be “heard together” with the Appeals under the Act pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”). Mr. Donnelly confirmed that he is not retained by a First Nation.

15The Tribunal thus directed that if the SGCC wishes to continue to press the matter it is to do so by written motion, returnable at the third CMC, following the procedures prescribed at Rule 10. Moreover, the Tribunal specifically directed that the Applicant must comply with Rule 11 of the Rules, which requires that a timely Notice of a Constitutional Question be sent to the Attorneys General of Canada and Ontario.

ORDER

16THE TRIBUNAL ORDERS its directions in this Decision.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

MEMBER

“N. Allam”

N. ALLAM

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.