Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 17, 2024
CASE NO(S).: OLT-23-000089 OLT-23-001202 OLT-24-000238
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Blueland Farms Ltd.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the establishment of a gravel pit on the subject property
Reference Number: POPA 2013 -0002
Property Address: 17736 Heart Lake Road (Part Lot 12, Concessions 2 (EHS))
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-23-000089
OLT Lead Case No.: OLT-23-000089
OLT Case Name: Blueland Farms Ltd. v. Caledon (Town)
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Blueland Farms Ltd.
Subject: Proposed Amendment to the Niagara Escarpment Plan
Description: To amend the Niagara Escarpment Plan for permission of mineral aggregate resource extraction on the subject property and add special policy to allow transportation of mineral materials
Reference Number.: Proposed Niagara Plan Amendment No. PP 213 18
Property Address: 17736 Heart Lake Road
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-23-001202
OLT Lead Case No.: OLT-23-001202
OLT Case Name: Plan Amendment No. 213 18 (Re)
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Blueland Farms Ltd.
Respondent: Niagara Escarpment Commission
Subject: Refusal of a Development Permit Application
Description: To propose an establishment of a new 25.97 hectare aggregate extraction operation (gravel pit) on a portion of a 40.5 hectare property
Reference Number.: P/E/2017-2018/408
Property Address: 17736 Heart Lake Road
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-23-001189
OLT Lead Case No.: OLT-23-001202
OLT Case Name: Blueland Farms Ltd. v. Ontario (Niagara Escarpment Commission)
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Blueland Farms Ltd.
Respondent: Niagara Escarpment Commission
Subject: Refusal of a Development Permit Application
Description: To allow for the transport of up to 750,000 tonnes (annually) of extracted aggregate from 17736 Heart Lake Road to an aggregate operation at 17679 Kennedy Road
Reference Number.: P/E/2023-2024/291
Property Address: 17679 Kennedy Road
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-23-001190
OLT Lead Case No.: OLT-23-001202
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8
Referred by: Ministry of Natural Resources and Forestry
Objector: Nikola Balaban
Objector: Donna Baylis
Objector: Victor Bras and Valentina Tovpeko
Objector: Sandy and Pail Caletti
Objector: Cheryl Connors; and others
Applicant: Blueland Farms Ltd.
Subject: Application for a Class A Licence, Category 1 Pit Below Water for the removal of aggregate
Description: McCormick Pit
Reference Number: Licence No. 626266
Property Address: Part Lot 12, Concession 2 EHS
Municipality/UT: Caledon/Peel
OLT Case No.: OLT-24-000238
OLT Lead Case No.: OLT-24-000238
OLT Case Name: Blueland Farms Ltd v. Ontario (Natural Resources and Forestry)
Heard: September 10, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
Blueland Farms Ltd.
A. Burton
Town of Caledon
C. Barnett
Niagara Escarpment Commission
D. Kappos M. McCloskey
Ministry of Natural Resources and Forestry
Z. D’Onofrio S. Dalton
Richard Pilosoff
P. Gross R. Northey (in absentia) C. Hummel (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON SEPTEMBER 10, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND PRELIMINARY MATTERS
1This Decision and Order arise out of a Case Management Conference (“CMC”) at which a number of Tribunal files relating to an undertaking by Blueland Farms Ltd. (“Applicant”/”Proponent”) were addressed concurrently for administrative convenience. The proposed undertaking seeks to permit aggregate extraction on part of the lands at 17736 Heart Lake Road (“Subject Property”) and engages a number of different statutes. For convenience, what follows is a brief description of the matters dealt with at this CMC and their corresponding Tribunal file numbers.
2OLT Case File No. OLT-23-000089 (“OPA Matter”) – Pursuant to s. 22(7) of the Planning Act (“PA”), the Applicant appealed against the failure of the Town of Caledon (“Town”) to make a decision within the legislated timelines on an application for an Official Plan Amendment to permit the establishment of a gravel pit at the Subject Property.
3OLT Case File No. OLT-24-000238 (“ARA Matter”) - Pursuant to s. 11(5) of the Aggregate Resources Act (“ARA”) the Ministry of Natural Resources and Forestry (“MNRF”) referred to the Tribunal the Proponent’s related application for a Class A License, Category 1 Pit Below Water.
4OLT Case File No(s). OLT-23-001202, OLT-23-001189 and OLT-23-001190 (“NE Matters”) - Pursuant to s. 10(3) of the Niagara Escarpment Planning and Development Act (“NEPDA”), the Niagara Escarpment Commission (“NEC”) referred to the Tribunal the Proponent’s related application for an amendment to the NEPDA and pursuant to s. 25(5.1) the Applicant appealed against the decision of the NEC to refuse two development permit applications related to the proposed undertaking. With respect to the NE Matters, the Tribunal acts in its role as the Niagara Escarpment Hearing Office (“NEHO”).
5Several CMCs have taken place in an effort to move these matters toward a hearing of the merits. The procedural history of the matters is adequately summarized in the Tribunal’s previous Decisions.
6At the outset of this CMC, the Tribunal recognized a change in counsel for Mr. Pilosoff, as well as the withdrawal of the Region of Peel (“Region”) from all matters in these proceedings. The Region recently ceased to be an upper tier Municipality with planning responsibilities and its interest in the proceedings was limited to environmental concerns under the Region’s Official Plan (“ROP”), which is now administered by the Town.
7In accordance with the Tribunal’s previous direction, in advance of this CMC, counsel for the Applicant circulated to all Parties and submitted to the Tribunal an updated list of ARA Objectors. There were no issues raised by any of the Parties or Participants, either prior to or at the CMC, with the accuracy of that list.
STATUS REQUESTS AND DIRECTIONS FOR PARTICIPANTS
8The Tribunal received a written request for Participant status in the ARA matter from Miriam Kelly, who is already a Participant in the OPA matter. The Tribunal granted the request with no objection from the Parties. Martin Shain, an Objector to the ARA licence application, requested a change in status from Party to Participant. That request was also granted with no objection from the other Parties.
9Counsel for the Applicant offered to provide an emailed copy of the draft issues list (“IL”) (once complete) to all Participants in order to allow them an opportunity to add to/augment their lists of objections/written statements for consideration by the Tribunal at a future hearing. One of the Participants, Mr. Satok-Wolman agreed to provide hard copies to any of the Participants who do not have access to email.
10Participants who wish to augment or make additions to previously submitted written statements/lists of objections following receipt of the draft IL are directed to submit same to the other Parties and the Tribunal in accordance with a (yet to be determined) deadline that will be specified in a forthcoming Procedural Order (“PO”). Participants who do not wish to add to/augment previously submitted written statements/lists of objections need not take further action, as their concerns are already on record and will be taken into consideration at a future hearing of the merits.
11Although the Tribunal’s May 3, 2024 Decision and Order provided some guidance for the Participants, it bears repeating that those who have Participant status in more than one matter need only submit one written statement outlining the totality of their concerns.
INDIGENOUS CONSULTATION
12Counsel for the Applicant advised that consultation remains ongoing with two nations, namely, Six Nations of the Grand River Elected Council (“SNGREC”) and the Haudenosaunee Confederacy Chiefs Council (“HCCC”). He further advised that some meetings have already taken place with SNGREC, which has indicated that it intends to seek peer reviews in relation to some technical matters, the specifics of which are yet to be determined. Consultation with the HCCC is in the early stages and the Applicant is in the process of arranging an initial meeting with the HCCC to understand what, if any, concerns it may have.
13Although counsel for the Applicant was unable to advise on expected timing for the conclusion of the consultation process with these two nations, he confirmed that the Applicant is fully engaged in and committed to this process and is providing regular progress updates to the MNRF at quarterly intervals.
ORGANIZING FOR A FUTURE HEARING
14The Tribunal’s May 3, 2024 Decision and Order directed all Parties to communicate with counsel for the Applicant by August 27, 2024 to share their lists of issues for a hearing so that a consolidated draft IL could be presented for the Tribunal’s review and approval at this CMC.
15The foregoing direction specifically included Objectors to the ARA application who had not requested and been granted a change in status to Participant. Such Parties were additionally directed to clarify with counsel for the Applicant and the assigned Case Coordinator, in advance of this CMC, whether they intended to present a case at a future hearing or simply rely upon written statements. Other than the request by Mr. Shain discussed above at paragraph [8], no communications were received by from any of the remaining Objector Parties on the list provided by counsel for the Applicant.
16The Applicant, Town, MNRF, NEC and Mr. Pilosoff did collaborate in advance of the CMC to provide a detailed consolidated draft IL. However, those Parties agreed that some refinement thereto was still required and counsel for the Applicant agreed to revise and submit an updated draft on consent by Tuesday, September 24, 2024. Should more time or further direction on the IL be required, the Parties may contact the assigned Case Coordinator to request same.
17On May 17, 2023, counsel for the Applicant had given notice to the Tribunal and Parties pursuant to s. 21 of the Ontario Land Tribunal Act (“OLTA”), that his client’s undertaking involved proceedings under the PA, ARA, and NEPDA and requested the Tribunal issue an Order for a consolidated hearing. At a previous CMC held in December 2023 before a Panel differently constituted, the Tribunal deferred consideration of this request because, at that time, only the OPA Matter was properly before it.
18With all matters relating to the undertaking now properly before the Tribunal and a relatively detailed draft IL having been submitted for consideration, the Tribunal entertained discussion aimed at efficiently organizing these matters for a hearing of the merits. Counsel for the Applicant clarified that, pursuant to s. 21 of the OLTA as well as the Tribunal’s Rules of Practice and Procedure (“Rules”) and, in particular Rule 16 “Consolidation”, his client was seeking an Order that the OPA Matter, ARA Matter and NE Matters be heard together under Rule 16.1.
19The OLTA established the Ontario Land Tribunal, into which several Tribunals were amalgamated. Section 21 of the OLTA speaks to undertakings which engage one or more prescribed Acts (including, but not limited to: the ARA, NEPDA and PA) where more than one hearing is or may be required to be held by more than one administrative Tribunal. If notice is given under s. 21, all matters related to the undertaking that could be considered at a hearing shall be heard by the Tribunal and no other person or body shall hold a hearing.
20Rule 16 flows from s.21 of the OLTA, and provides the Tribunal broad discretion to: order two or more proceedings consolidated; heard together; heard one after the other; or to stay or adjourn any matter until the determination of any other matter, subject to any applicable statutory or regulatory restrictions.
21At the heart of s. 21 and Rule 16 is the concept of efficiency and, in deciding whether to order proceedings consolidated or heard together, the Tribunal has consistently considered efficiency along with other factors, including: fairness/potential prejudice; the potential for inconsistency in decision making and the Tribunal’s jurisdiction to deal with all of the issues affecting a proposal.
22The Tribunal is of the view that hearing the OPA, ARA and NE matters together represents a fair and efficient way to deal with all issues affecting the proposed undertaking and will not result in any prejudice, while avoiding the potential for contradictory decisions or for a decision in one matter to predetermine another. No compelling arguments were advanced from any of the other Parties to suggest that ordering the matters to be heard together, rather than consolidated, was somehow inappropriate or would result in prejudice to any Party. As such, the Tribunal exercised its discretion under Rule 16.1 and ordered the matters to be heard together. In the event the proceedings become unduly complicated, delayed or repetitive, or if a Party is unduly prejudiced, a motion may be brought forward requesting relief in the form of a reversal of this Decision in accordance with Rules 10 and 16.4.
23A lengthy discussion ensued with respect to scheduling dates for a hearing and whether it would be appropriate to consider a phased hearing, with the first phase determining the OPA and NE matters and, if necessary, a second phase determining the ARA matter. This was largely suggested by the Applicant in an attempt to move the matters forward while allowing sufficient time for the completion of Indigenous consultation. Ultimately, the Parties agreed that, at this juncture, a phased hearing would not be necessary provided that the chosen hearing dates allow a reasonable period of time for Indigenous consultation to take place.
24Given the level of detail provided in the IL, the Tribunal canvassed the Parties with respect to opportunities for settlement, including the use of Tribunal-assisted mediation, acknowledging this might be somewhat premature in light of ongoing indigenous consultation. The Tribunal was advised that the Town is currently updating its OP and, as part of that exercise, it is anticipated that several new policies speaking to aggregate-related issues will come into force at a later date which accounts, in part, for some of the necessary refinements to the IL. The foregoing, in combination with the issue of incomplete Indigenous consultation, precludes the Parties from engaging in productive discussions aimed at settling or narrowing issues for the time being.
FUTURE HEARING EVENT DETAILS
25Given the number of issues and witnesses required to speak to same, the Parties requested that approximately 30 days be set aside in late 2025. They further requested the Tribunal require the Applicant to provide an update on the process of Indigenous consultation well in advance of a hearing of the merits and any associated deliverable deadlines.
26A further CMC will be held by video on Friday, June 6, 2025 at 10 a.m. at which point, the Tribunal will receive an update on the status of consultation with the SNGREC and the HCCC. If consultations remain ongoing, the Parties will be expected to arrive prepared to discuss possible next steps. Such steps could include scheduling dates for any necessary motions to determine whether the Tribunal has the jurisdiction to determine the adequacy of Indigenous consultation, revisiting deliverable deadlines pursuant to the PO, and/or vacating/rescheduling dates for the hearing of the merits.
Friday, June 6, 2025, CMC at 10 a.m.
GoToMeeting: https://global.gotomeeting.com/join/709076365
Access Code 709-076-365
Audio-only Access Code: 709-076-365
Audio-only Telephone Line: 1-888-299-1889 or +1 (647) 497-9373
27A 31-day hearing of the merits will be held by video on non-consecutive days commencing on Tuesday, October 21, 2025 at 10 a.m., and continuing as follows:
Tuesday, October 21 – Friday, October 24, 2025
Tuesday, October 28 – Friday, October 31, 2025
Wednesday, November 12 – Friday, November 14, 2025
Tuesday, November 18 – Friday, November 21, 2025
Tuesday, November 25 – Friday, November 28, 2025
Tuesday, December 2 – Friday, December 5, 2025
Tuesday, January 13 – Friday, January 16, 2026
Tuesday, January 20 – Friday, January 23, 2026
28The Video Hearing details for the hearing events are as follows:
GoToMeeting: https://meet.goto.com/558205565
Access Code: 558-205-565
29Persons 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.
30Parties are asked to log into hearing events at least 15 minutes before the start of the event to test their video and audio connections. Parties 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.
31Individuals 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 event(s) by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event(s) may be directed to the Tribunal’s Case Coordinator having carriage of this case.
OTHER MATTERS
32The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
33THE TRIBUNAL ORDERS THAT OLT Case File No(s) OLT-23-000089, OLT-24-000238, OLT-23-001202, OLT-23-001189 and OLT-23-001190 are to be heard together.
34The case management directives set out above are so ordered.
35This Member is not seized but may be available for further case management subject to availability in the Tribunal’s calendar.
“S. Braun”
S. Braun
VICE-CHAIR/HEARING OFFICER
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.