Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 25, 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

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8.

Referred by:

Galibier Materials Inc.

Objector

Ministry of Natural Resources and Forestry

Objector:

Esther Allen and David Maginn

Objector:

Grant and June Hunter

Objector:

Guillaume Gagnon

Objector:

Mike and Monika Hurst

Objector:

Rod and Jean Rumble

Objector:

Sue and Juril Rosil

Objector:

Susan Gariepy

Subject:

Application and Referral Of Objections

Description:

Gravel Pit Expansion

Reference Number:

626566

Property Address:

Lewis Pit Part Lot 15, Concession 9

Municipality/UT:

Town of Springwater/ Simcoe County

OLT Case No.:

OLT-24-000873

OLT Lead Case No.:

OLT-23-000990

Heard:

September 12, 2024 by video hearing

APPEARANCES:

Parties

Counsel

Galibier Materials Inc.

Marc Kemerer

Township of Springwater

Bruce Engell

Springwater Green Community

David Donnelly

Coalition Inc.

Ministry of Natural Resources

Zachary D’Onofrio

and Forestry

Sarah Dalton

Esther Allen & David Maginn

David Donnelly

Susan Gariepy

David Donnelly

Sue & Juril Rosil

David Donnelly

Rod & Jean Rumble

David Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON SEPTEMBER 12, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This was the third Case Management Conference (“CMC”) in relation to appeals filed by Galibier Materials Inc. (“Appellant”) against the failure of the Township of Springwater (“Township”) to render decisions within the statutory timeframes of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”) with respect to applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”). The OPA appeal relates to Tribunal Case No. OLT-23-000990 and the ZBA appeal relates to Tribunal Case No. OLT-23-000991 (together “Planning Act Appeals”).

2The purpose of the OPA and ZBA is to permit the expansion of an existing mineral aggregate operation (“Lewis Pit”) located on the Appellant’s property legally described as West Part of Lot 15, Concession 9, in the former Township of Vespra, now the Township.

3This was also the first CMC in relation to Tribunal Case No. OLT-24-000873 (“ARA Matter”) which is a referral of an application and objections pursuant to s. 11(5) of the Aggregate Resources Act R.S.O. 1990, c. A.8, as amended by the Ministry of Natural Resources and Forestry (“MNRF”) relating to an application by the Appellant for a Licence for a Class A Pit Above Water.

4Previous CMCs in relation to the Planning Act Appeals were held on December 15, 2023 (“First CMC”) and June 21, 2024 (“Second CMC”). The County of Simcoe and Springwater Green Community Coalition Inc. (“SGCC”) were added as a Parties at the First CMC. Prior to the Second CMC, the County of Simcoe advised the Tribunal that it was withdrawing its Party status in the proceedings. During both prior CMCs the Tribunal declined to set hearing dates, as was requested by the Appellant, finding that it was premature given that the ARA Matter was not yet properly before the Tribunal. Instead, during the Second CMC the Tribunal scheduled a subsequent CMC for today’s date.

5The ARA Matter was referred to the Tribunal by MNRF on August 22, 2024 and, for the sake of efficiency, the Tribunal served Notice of the first CMC for the ARA Matter on September 6, 2024. The Tribunal abridged the time for service of notice in order to have the Planning Act Appeals and the ARA Matter heard concurrently. At the CMC, the Tribunal confirmed with Counsel that there were no known issues with service of notice of the ARA Matter.

6At the outset of the CMC, the Tribunal heard and considered two motions that were filed in advance of the CMC.

MOTIONS

Motion to Adjourn the CMC

7Following the Second CMC, the Chiefs of Ontario were advised of the Planning Act Appeals and a question arose regarding the adequacy of notice and Indigenous consultation. On August 7, 2024, the Chiefs of Ontario wrote a letter to the Minister of Municipal Affairs and Housing, copying the Tribunal, wherein they requested a 30-day adjournment of this CMC to afford them time to assess the adequacy of consultation. On August 20, 2024, the Chair of the Tribunal refused the adjournment request explaining that the Chiefs of Ontario are not a party to the proceedings and, as such, do not possess standing to request an adjournment.

8On August 28, 2024, SGCC filed a Motion to Adjourn seeking an Order to adjourn the CMC for 30 days or, in the alternative, schedule a further CMC at a mutually agreeable time to allow SGCC and/or the Chiefs of Ontario time to bring a motion regarding the constitutionality of certain Planning Act regulations governing First Nations’ notice and consultation (“Motion to Adjourn”). To be clear, Counsel for SGCC is not representing the Chiefs of Ontario.

9Counsel for SGCC submitted that the brief adjournment was necessary to enable the Chiefs of Ontario to consult with other directly affected First Nations organizations and allow the Chiefs of Ontario an opportunity to seek party status in the proceedings. It was further submitted that the abridged notice on the ARA Matter resulted in at least one Objector being unable to attend due to a work commitment and that the Objectors, as a whole, have suffered prejudice as a result of the abridged notice.

10SGCC noted that the requested relief is for a brief adjournment of the CMC and the Planning Act Appeals have already had multiple adjournments over the past nine months, which the Appellant requested and SGCC consented to. SGCC argued that the Tribunal should allow the Motion to Adjourn in order to remain consistent in how its Rules are applied. The SGC contends that only prejudice in adjourning the CMC is delay, and the Appellant has already been the cause of delay in the proceedings on multiple occasions.

11The Township did not take a position on the Motion to Adjourn.

12The Appellant submitted that there is no reason to delay the proceedings as the Chiefs of Ontario have not sought party status and if they do, they would be in the same position if the CMC proceeds as scheduled as they would be if an adjournment is granted.

13The Appellant argued that notice of the Planning Act Appeals was confirmed at the First CMC and there was no evidence that the Chiefs of Ontario, nor any First Nations, wanted to take part in the proceedings. Further, SGCC did not raise any issues in prior CMCs or on the issues list, relating to First Nations nor a concern regarding the duty to consult.

14The Appellant disagreed with SGCC and argued that it was SGCC who requested the prior adjournments, which the Appellant consented to, and the Tribunal granted. The Appellant contends that it will be prejudiced by an adjournment as it would have the effect of indefinitely adjourning the proceedings while the Chiefs of Ontario considers whether it will pursue a constitutional question.

15The Appellant requested that the Tribunal dismiss the Motion to Adjourn for a number of reasons, including that it is being made on behalf of a non-party by Counsel who does not represent the Chiefs of Ontario. Further, SGCC and the Chiefs of Ontario would be in the same position if the 30-day adjournment is granted as they would be if the CMC proceeded as scheduled.

16Following a careful review of the written submissions and oral argument of SGCC and the Appellant, the Tribunal denied the Motion to Adjourn. While the Tribunal agreed with SGCC that what is being raised by the Chiefs of Ontario is not a trivial matter, the Chiefs of Ontario are not a party to the proceedings. Proceeding with the CMC as scheduled would not preclude the Chiefs of Ontario from seeking party status if they wish to do so, nor from raising any issues or bringing any motions relating to the proceedings if they are granted party status.

17The Tribunal fails to see how SGCC would suffer any prejudice resulting from a denial of the Motion to Adjourn. The concerns raised by SGCC can be addressed through proper case management established at the CMC. Hearing dates will be set far enough in advance that any party status requests or motions can be heard and decided well in advance of the hearing.

18The Tribunal did not find the submissions regarding prior adjournments relevant considerations to the Motion to Adjourn. The Tribunal has discretionary powers to control its adjudicative process, including fixing hearing dates, which are to remain as scheduled unless the Tribunal finds a compelling reason to grant an adjournment. In this case, the Tribunal fails to find any such reason.

19Proceedings before the Tribunal are managed in a cost-effective and efficient manner and the Tribunal was not persuaded that any Party (emphasis added) would suffer any prejudice by proceeding with the CMC as scheduled and as such, finds that further delay of the proceedings is not justified.

20For clarity, in denying the Motion to Adjourn, the Tribunal is not making any findings on the party status of the Chiefs of Ontario or any other party status request, nor is it making any findings on constitutional questions. Finally, the Tribunal did not consider the Appellant’s request for costs of the Motion to Adjourn and reminded the Parties that Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”) governs motions for costs.

Motion to Consolidate

21On September 9, 2024, the Appellant brought a motion to obtain an order consolidating the Planning Act Appeals and the ARA Matter (“Motion to Consolidate”). In addition, the Appellant sought an abridgment of time for service of the Motion to Consolidate and costs.

22The Township and MNRF supported consolidating the matters. MNRF submitted that it would prefer that the matters be heard together as it did not intend to participate in the Planning Act Appeals, however, it was not opposed to consolidation.

23SGCC supported consolidating the matters submitting that it was in the public interest to do so. However, it did note that consolidating the matters would give the Objectors to the ARA Matter additional rights and obligations which they may not wish to assume. The Appellant responded that neither MNRF nor the Objectors would be compelled to take on additional obligations if they did not wish to do so.

24The Tribunal granted the requested relief to abridge time for service of the Motion to Consolidate. The time for service of Notice of the ARA Matter had been abridged by the Tribunal and the Appellant brought the Motion to Consolidate as quickly thereafter as possible. In providing the Parties with latitude in responding to the Motion to Consolidate, the Tribunal found that no prejudice would be suffered by any Party if the abridgement was granted.

25Based on the Appellant’s written and oral submissions, the Tribunal granted the requested relief and consolidated Tribunal Case No(s). OLT-23-000990, OLT-23-000991 and OLT-24-000873 pursuant to Rule 16.1 of the Rules.

26The Tribunal was persuaded that consolidating the Planning Act Appeals with the ARA Matter would lead to better efficiencies and results than would be achieved through hearing the matters together. The matters relate to the same property and proposal and have common issues which will involve hearing evidence from the same witnesses. Consolidation will enable the Tribunal to deal with the issues in a comprehensive, efficient and cost-effective manner and avoid potential predetermination of issues in subsequent proceedings.

27The Tribunal did not consider the Appellant’s request for costs of the Motion to Consolidate for the same reasons as set out in paragraph [20] above.

CASE MANAGEMENT CONFERENCE

Status

28The Tribunal reviewed the list of Objectors and confirmed that the following were represented by David Donnelly: Esther Allen & David Maginn; Sue and Juril Rosil; Rod and Jean Rumble; and Susan Gariepy. Mr. Donnelly further confirmed that the Objectors that he represented would work together in order to avoid duplicative issues and evidence.

29MNRF appeared at the CMC represented by Counsel and as noted above, intends to limit its participation to the ARA Matter.

30The following Objectors did not appear at the CMC: Grant and June Hunter; Mike and Monika Hurst; and Guillaume Gagnon. The Tribunal heard from both Counsel for the Appellant and Mr. Donnelly that Mr. Gagnon expressed an interest in attending the CMC, however, given the short notice he was unable to re-schedule work commitments. In order to ensure that there is no prejudice to any Objectors who were unable to attend the CMC as a result of the abridged Notice, the Tribunal will not make any adverse findings regarding those Objectors who failed to appear at the CMC.

31The Tribunal expects all Objectors, or their representative(s), to attend the subsequent CMC scheduled for Thursday, January 30, 2025, prepared to address how they intend to participate in the proceedings. Further, in advance of Thursday, January 25, 2025, the Objectors will provide Counsel for the Appellant with a list of issues that they intend to raise.

32The Chiefs of Ontario or any other entities who wish to seek party status are expected to bring a Motion for Party Status well in advance of the upcoming CMC scheduled for January 30, 2025. This will ensure that the upcoming CMC is productive and an efficient use of time and resources.

33No other individuals or entities present responded when the Tribunal inquired if there were further status requests to be considered.

Settlement Opportunities

34The Tribunal recognized that given the consolidation of the Planning Act Appeals and the ARA Matter at this CMC and the possibility of additional issues coming forth from the Objectors, discussions regarding settlement or mediation opportunities would be premature, and the Parties agreed. However, the Appellant did advise that it was interested in discussing the possibility of mediation with the Parties when the opportunity arises.

Procedural Order and Issues List

35In advance of the CMC, the Tribunal was provided with a draft Procedural Order (“PO”) which Counsel for the Appellant advised included draft issues of the Township and SGCC relating to both the Planning Act Appeals and the ARA Matter.

36During the CMC, Counsel for the Appellant provided MNRF with a copy of the current draft PO. The Tribunal directed the Parties to work together to amend the issues list, if required, as a result of any impacts following the coming into effect of the Provincial Planning Statement, 2024 on October 20, 2024. As set out in paragraph [31] above, the Tribunal further directed the Objectors to provide a list of issues to the Appellant for inclusion in the PO.

37The Tribunal directed the Appellant to submit a revised PO for review and approval on or before Thursday, January 25, 2025.

Next Steps

38Given the early stages and abridged notice of the ARA Matter, the potential motion for party status from the Council of Chiefs and the anticipated need for additional case management, the Tribunal scheduled a further CMC, which will be held by video hearing on Thursday, January 30, 2025. This should allow a reasonable amount of time for any motions to be brought and decided by the Tribunal and for the Parties, including the Objectors, to make progress on finalizing the issues to be adjudicated and canvass whether Tribunal-led mediation would be of assistance.

39The Appellant requested that the matter be scheduled for a 15-day hearing for the consolidated appeals. Given the potential motions which may be filed and the anticipated changes to the issues list following the coming into effect of the Provincial Planning Statement, 2024, the Tribunal agreed to schedule a hearing in the fall, 2025. The Tribunal scheduled a 15-day hearing of the merits by video hearing commencing on Monday, September 15, 2025 at 10 a.m.

40The Hearings are scheduled to proceed by video as follows:

Thursday, January 30, 2025 at 10 a.m.- One-Day Case Management Conference

GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889 Audio-only access code: 687-587-165

Monday, September 15, 2025 at 10 a.m. – 15-Day Merit Hearing GoTo Meeting: https://global.gotomeeting.com/join/344779885 Access code: 344-779-885 Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889 Audio-only access code: 344-779-885

41Parties, Participants or Observers are asked to log into the event at least 15 minutes before it begins to test their video and audio connections.

42Parties and Participants or Observers 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

43Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling into an audio-only telephone line.

44Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER

45THE TRIBUNAL ORDERS THAT OLT Case File No(s) OLT-23-000990, OLT-23-000991 and OLT-24-000873 are consolidated pursuant to Tribunal Rule 16.1;

46The case management directives set out above are so ordered.

47The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

48No further notice will be given.

“C. Hardy”

c. hardy

VICE CHAIR

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.