Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 18, 2024, CASE NO.: OLT-23-000048

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

Applicant and Appellant: Bartels Environmental Services Inc.
Subject: Zoning Bylaw Amendment
Description: To permit a biosolid storage facility on the subject property
Property Address: 6903 Perth Line 34
Municipality/UT: West Perth/Perth
Municipal File No.: D14-16-21
OLT Case No.: OLT-23-000048
OLT Lead Case No.: OLT-23-000048
OLT Case Name: Bartels Environmental Services Inc. v. West Perth (Municipality)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Bartels Environmental Services Inc.
Subject: Site Plan
Description: To permit a biosolid storage facility on the subject property
Property Address: 6903 Perth Line 34
Municipality/UT: West Perth/Perth
Municipal File No.: D11-06-21
OLT Case No.: OLT-23-000049
OLT Lead Case No.: OLT-23-000048
OLT Case Name: Bartels Environmental Services Inc. v. West Perth (Municipality)

BEFORE:

VICE CHAIR SHANNON BRAUN ) Wednesday, the 18th day of September 2024

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment "A" to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on November 25, 2024.

"Euken Lui"

ACTING REGISTRAR

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.

Attachment "A"

PROCEDURAL ORDER

1. 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

2. The video hearing will begin on November 25, 2024 at 10 a.m.

3. The parties' initial estimation for the length of the hearing is 12 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.

4. 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).

5. 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.

6. 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.

7. 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.

8. 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

9. 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 September 6, 2024 and 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 along with the witness list.

10. Expert witnesses in the same field shall have a meeting on or before September 13, 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 before September 20, 2024.

11. 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.

12. 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 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.

13. On or before October 4, 2024, the parties shall provide copies of their witness outlines and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before October 4, 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.

15. On or before October 21, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 8, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 18, 2024 in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 15, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 18, 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.

22. All filings shall be submitted electronically, and hard copies will only be required if requested by the presiding member or panel. 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.

23. 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.

Attachment 1

List of Parties/Participants

Parties

Counsel/Agent

Bartels Environmental Services Inc. (Applicant/Appellant)

Gowling WLG (Canada) LLP 1 First Canadian Place 100 King Street West, Suite 1600 Toronto, Ontario, M5X 1G5 Alexandra Sadvari 416-814-5695 alex.sadvari@gowlingwlg.com Peter Gross 416-862-4459 peter.gross@gowlingwlg.com

Municipality of West Perth

NextGen Law LLP 9-2020 Lanthier Dr., Suite #205 Ottawa, ON K4A 3V4 Scott McAnsh 613-324-5618 scott@nextgenlaw.ca Joe Jebreen 613-324-5618 joe@nextgenlaw.ca

Ashley and Jeffrey Kroonen

Scott Petrie LLP 200-252 Pall Mall Street London, Ontario N6A 5P6 John Goudy 519-433-5310 jgoudy@scottpetrie.com

Attachment 2

ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

BARTELS ENVIRONMENTAL SERVICES INC. ISSUES LIST

1. Is the use of the existing sewage lagoons on the Subject Property for the storage of non-agricultural source material ("NASM") a legal non-conforming use or an extension of a legal non-conforming use?

2. Did the Municipality of West Perth provide reasons for its refusal of the Zoning By-law Amendment ("ZBLA") in accordance with the Planning Act, Section 34 (10.10) and Ontario Regulation 545/06: Zoning By-laws, Holding By-laws and Interim Control By-laws, Section 4?

3. Are the ZBLA and Site Plan Application consistent with the Provincial Policy Statement 2020, as amended or replaced ("PPS"), including with respect to the following policies:

a. PPS Policy 1.1.1(c): Healthy, liveable and safe communities are sustained by: avoiding development and land use patterns which may cause environmental or public health and safety concerns;

b. PPS Policy 1.1.5.6: Opportunities should be retained to locate new or expanding land uses that require separation from other uses;

c. PPS Policy 2.3.1: Prime agricultural areas shall be protected for long-term use for agriculture;

d. PPS Policy 2.3.3.1: In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses; and

e. PPS Policy 2.3.3.3: New land uses in prime agricultural areas, including the creation of lots and new or expanding livestock facilities, shall comply with the minimum distance separation formulae.

4. Is the NASM storage use an agriculture-related use?

5. In the alternative, does the NASM storage use meet the criteria for a non-agricultural use in a prime agricultural area (PPS Policy 2.3.6.1)?

6. Do the ZBLA and Site Plan Application ("SPA") conform with the County of Perth Official Plan, including Policy 5.5.10: Farm-related Commercial and Industrial Activities?

7. Is the NASM storage use an appropriate and compatible use of the Subject Property?

8. Do the ZBLA and SPA represent good planning?

9. Are the ZBLA and SPA in the public interest?

MUNICIPALITY OF WEST PERTH ISSUES LIST

1. Does the Tribunal have the legal authority to determine if a proposed use is a legal non-conforming use when considering an appeal of a municipality denying a proposed ZBLA and SPA?

2. What is the proper role of the Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas, prepared by the Ministry of Agriculture, Food and Rural Affairs (the "OMAFRA Guidelines") in interpreting the PPS, including:

a. The criteria and commentary set out in section 2.2.1 of the OMAFRA Guidelines for determining appropriate agricultural-related uses; and

b. The examples of uses that would typically not be agricultural-related uses because they do not meet the PPS definitions or criteria, set out in section 2.2.3 of the OMAFRA Guidelines, including sewage biosolids storage and composting facilities for non-agricultural source material?

ASHLEY AND JEFFREY KROONEN ISSUES LIST

1. Do the ZBLA and SPA have regard to the matters of provincial interest set out in Section 2 of the Planning Act, in particular subsections 2(b), (h), (n), (j), (o), and (p) with respect to the following issues:

(a) Odour impacts;

(b) Dust impacts;

(c) Pest and Rodent impacts; and

(d) Potential contamination of surface and sub-surface water?

2. Are the ZBLA and SPA consistent with the PPS, including with respect to the following policies:

(a) PPS Policy 1.1.1(d): Healthy, liveable and safe communities are sustained by avoiding development that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas;

(b) PPS Policy 1.1.5.4: Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted; and

(c) PPS Policy 1.2.6.1: Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.

3. Does the NASM storage use have the potential to cause unacceptable adverse effects to property owners in the surrounding area with respect to the following issues:

(a) Odour;

(b) Dust;

(c) Pests and Rodents; and

(d) Potential contamination of surface and sub-surface water?

4. If the SPA is approved, what are the appropriate conditions?

Attachment 3

Order of Evidence

1. Applicant/Appellant – Bartels Environmental Services Inc.

2. Municipality of West Perth

3. Ashley and Jeffrey Kroonen

4. Reply, if any, of Applicant/Appellant – Bartels Environmental Services Inc.