Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 09, 2025

CASE NO(S).: OLT-22-003971

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

Applicant/Appellant: V. B. Sand & Gravel Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a proposed extraction operation

Reference Number: ACW Z07-21

Property Address: Concession 2 Eastern Division, Part Lots 14 and 15, RP 22R6090 Part 1 RP 22R6857 Parts 1 to 3

Municipality/UT: Ashfield-Colborne-Wawanosh/Huron

OLT Case No: OLT-22-003971

OLT Lead Case No: OLT-22-003971

OLT Case Name: V. B. Sand & Gravel Ltd. v. Ashfield-Colborne-Wawanosh (Township)

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

Applicant V. B. Sand & Gravel Ltd.

Objector Alphonse Meloche

Objector Ann Silversides

Objector B. H Yael

Objector Chelsey Wheeler

Objector Donna and Bill Crawford

Objector Dorta Nierzwicka

Objector Dr. Erin Campos

Objector Elizabeth Garrett

Objector Elizabeth Van Den Broeck

Objector Eva Mackey

Objector Friends of Ball’s Bridge and Little Lakes Road

Objector Gina McDonnell and Bob Riehl

Objector Gord Garland

Objector James Roy

Objector James Wheeler

Objector Jennifer Morris

Objector Jenny Jeffrey

Objector Kathy Young

Objector Keara Campos

Objector L.M. Russell

Objector Marian and Mike Durst

Objector Mary Gregg

Objector HMK in right of Ontario as represented by the Ministry of Natural Resources

Objector Rebecca Garrett

Objector Richard Vernon

Objector Robert Campos

Objector Sally Vernon

Objector Scott Profit

Objector Stephen Campos

Objector Susan and David Glousher

Objector Wendy Hoernig

Objector William and Maxine Seers

Subject: Aggregates Resources Act referral of objection(s)

Description: Little Lakes Road Gravel Pit

Reference Number: 626525

Property Address: (Lots 14 and 15, Concession 2, Geographic Township of Colborne Township of Ashfield-Colborne-Wawanosh, County of Huron)

Municipality/UT: Ashfield-Colborne-Wawanosh/Huron

OLT Case No: OLT-22-003971

OLT Lead Case No: OLT-24-000987

OLT Case Name: V. B. Sand & Gravel Ltd. v. Ontario (Ministry of Natural Resources)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: V. B. Sand & Gravel Ltd.

Motion for: Directions

Heard: In Writing

APPEARANCES:

Parties	Counsel/Representative*
V. B. Sand & Gravel Ltd.	Marc Kemerer
Township of Ashfield-Colborne-Wawanosh	Michael van Bodegom
Ministry of Natural Resources	Sarah Dalton, Zachary D’Onofrio
Friends of Ball’s Bridge & Little Lakes	David Donnelly
Gordon Garland	Self-represented*

DELIVERED BY T.F. NG ON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is a Motion for New Evidence (“Motion”) brought by Friends of Ball’s Bridge & Little Lakes (“FOBBLL”) in relation to an appeal brought by V. B. Sand & Gravel Ltd. (“VB Sand/Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”), against the Township of Ashfield-Colborne-Wawanosh (“Township/ACW”) regarding an application for a Zoning By-law Amendment (“ZBA”) for which no decision was rendered within the prescribed timeline. The purpose of the ZBA is to permit a proposed extraction operation located on the Appellant’s property, which is legally described as Concession 2 Eastern Division, Part Lots 14 and 15, RP 2246090 Part 1 RP 22R6857 Parts 1 to 3 (“Subject Property”).

2A referral pursuant to section 11(5) of the Aggregate Resources Act (“ARA”) by the Ministry of Natural Resources (“MNR”) of an application by VB Sand for a Licence for a Class A Pit Below Water was consolidated on November 20, 2024 with the ZBA application.

BACKGROUND

3The Matter was part heard from July 2, 2025 to July 18, 2025 with subsequent hearing dates scheduled to commence from December 1, 2025 to December 12, 2025 for continued hearing.

4At the part heard hearing, FOBBLL indicated that it desired to admit certain documents which were objected to by the Appellant. The Tribunal had then directed a motion in writing to be filed where the admission of the fresh evidence could be decided upon.

5The Procedural Order (“PO”), with Issues List (“IL”), was approved by the Tribunal Order issued on February 14, 2025 with the respective deadlines stipulated.

6FOBBLL seeks the admission of certain documents/material identified in the Motion dated November 7, 2025.

7VB Sand filed a Responding Motion to Motion dated November 17, 2025 while the Township and MNR also each filed Notice of Response dated November 17, 2025.

8FOBBLL thereafter filed a Reply to Response dated November 20, 2025.

9Gordon Garland filed a Response document dated November 24, 2025.

THE MOTION

Moving Party (FOBBLL)

10The Motion is supported by the Affidavits of Alexandra Nemy, Sarah Mainguy and Allan Ramsay, all dated November 7, 2025.

11FOBBLL seeks the following orders.

1. That the Tribunal admits into evidence the Ontario Land Surveyor-certified plan, prepared by D. Culbert Ltd. on July 11, 2025 (the “Real Property Survey”), correcting the property boundaries and extraction limits shown on the Applicant’s Site Plan, thereby demonstrating that the Applicant’s Site Plan contains significant, material boundary errors, which affect the Site Plan’s validity and the Tribunal’s ability to assess compliance with the Aggregate Resources Act (“ARA”).

2. That the Tribunal admits into evidence the June 12, 2025 Wood Turtle sighting documentation confirming recent nesting and basking activity near Balls Bridge, adjacent to the subject lands, including photographs and records submitted to the Natural Heritage Information Centre (“NHIC”).

3. That the Tribunal admits into evidence the Ministry of Natural Resources’ (“MNR” or the “Ministry”) Inspection Report under the Aggregate Resources Act (the “MNR Inspection Report”), which demonstrates non-conformity and operational conditions relevant to this proceeding and bears directly on the Applicant’s current operations and credibility, and on the Tribunal’s assessment of environmental effects and regulatory compliance under the ARA.

4. That the Tribunal admits into evidence video footage from local resident, Matthew Maaskant, of dust clouds emanating from the existing Fisher Pit, contrary to the Applicant’s claims that dust was being contained on site. These videos were recorded after the adjournment of the July hearing.

5. Such further and other relief as counsel may advise and this Honourable Tribunal may grant.

Responding Party (VB Sand)

12The Responding Motion to the motion, is supported by the Affidavits of Diane Schwier dated November 13, 2025 and Melanie Horton dated November 14, 2025.

13VB Sand requests an Order from the Tribunal

1. Dismissing the Motion;

2. Costs of this Response to Motion; and

3. Such further and other relief as counsel may advise and this Tribunal may grant.

Township

14In its Response to Motion, the Township stated:

1. the Township does not object to FOBBLL being given leave to introduce the new material particularized in its Notice of Motion, subject to that material being introduced into evidence by a witness qualified to do so;

2. The Township’s position is that all relevant and material evidence should be available to the Tribunal, and the proffered evidence would appear to be relevant and potentially material - however, the Township specifically disclaims the position attributed to it in paragraph 15 of FOBBLL’s Notice of Motion, and the Township is not taking the position on this motion that “the new Real Property Survey is correct, and crucially that the Site Plan before the Tribunal is seriously in error” as alleged in FOBBLL’s motion material.

MNR

15The MNR’s Response supported by the Affidavit of David Marriott dated November 14, 2025 stated:

1. It does not oppose the admittance of the documents in Friends of the Balls Bridge & Little Lakes’ Notice of Motion on the condition that they are not admitted for the truth of their contents as these documents have not been qualified by an appropriate witness.

2. The documents are real evidence, which is an item or thing that the trier of fact can view directly and “is generally admissible provided it is properly authenticated”. Real evidence can be received directly by the trier of fact, but the link between such evidence and the issue at hand is still established by the testimony of witnesses. As such, while these documents may be admitted for the mere fact of their existence, they still need to be qualified by an appropriate witness before they can be used for the truth of their contents.

3. In the first portion of the hearing, counsel for MNR orally presented their position on the admittance of these documents. Specifically, that this evidence could not properly be put before the Tribunal if it is entered through the cross-examination of MNR’s witness Mr. Marriott, an expert in land use planning. Mr. Marriott did not author the documents, has no prior knowledge of them, and his area of qualification does not extend to their subject matter. As a result, he is not able to speak to the truth of their contents. MNR maintains the same position.

4. The new survey data requires a surveyor licensed under the Surveyors Act to qualify it or to give an opinion on it. The inspection report would need to be qualified by an inspector under the ARA.

16As such, the main opposition to the Motion for admission of new evidence is strongly held, by VB Sand.

17The Township and MNR’s positions are that the documents are generally admissible if they are admitted through the relevant qualified expert witness in the proceedings.

Garland

18Mr. Garland being a lay person filed his response late on November 24, 2025. However, the Tribunal will extend some latitude to him. He is not legally qualified but was able to echo the views of FOBBLL, in generally supporting FOBBLL’s motion.

Grounds for the FOBBLL Motion

19FOBBLL’s grounds for the Motion are:

1. First, the proposed materials are highly relevant to issues before the Tribunal, including property boundary accuracy, environmental compliance, protection of endangered species, proposed Site Plan mitigation measures, and the proper location of important features e.g. berms, trees, buffers, etc.

2. Second, the evidence was unavailable at the time witness statements were filed. For example, the Wood Turtle sighting, MNR Inspection Report, dust videos, and new surveys emerged after the May, 2025 deadlines for exchanging witness statements.

3. Third, admitting this evidence will promote fairness and completeness of the record before the Tribunal.

4. Fourth, the evidence does not prejudice VB Sand as the remainder of the hearing was adjourned, to continue on December 1, 2025, allowing sufficient time for review, i.e. 4 months. The new evidence was provided to the other Parties months in advance of the re-commencement of the hearing.

5. Finally, failure to admit the correct land survey could lead to a decision highly prejudicial to FOBBLL and the adjacent landowners Mr. Maaskant and Ms. Boyle. In addition, FOBBLL alleged that all the Parties e.g. Township, MNR and Applicant all agree the new Real Property Survey is correct, and crucially that the Site Plan before the Tribunal is seriously in error. (ACW denies that, and MNR stated that that is subject to authentication).

6. FOBBLL cited fresh evidence admission principles in Supreme Court case Palmer v. the Queen (1980) 1979 CanLII 8 (SCC), 1 SCR 759 and other cases in its Book of Authorities.

Responding Party VB Sand’s Grounds / Submissions

20VB Sand submitted that the Motion seeks to introduce the following new evidence (the “New Evidence”) to the hearing:

1. a partial survey prepared by D. Culbert Ltd dated 11 July 2025 (the “Partial Survey”). Mr. Culbert is the same surveyor who prepared the survey which is the basis for the subject site plans (Reference Plan 22R-6857) (the “Original Survey”) As set out in the Horton Affidavit, Mr. Culbert has confirmed that the boundaries for both surveys are the same, i.e. there is no issue with the site plans.

2. the 12 June 2025 wood turtle sighting. This sighting was made a month prior to the commencement of the hearing and was known to the natural heritage expert retained by FOBBLL, Sarah Mainguy, at that time. The wood turtle was located by Balls Bridge, hundreds of metres (“m”) away from the subject site;

3. the Ministry of Natural Resources (the “Ministry”) 2 June 2025 Inspection Report (the “Report”) which relates to the Fisher Pit and not the Proposed Pit. As set out in the Schwier Affidavit, the items set out in the Report were not significant or out of the ordinary and have been largely addressed to the satisfaction of the Ministry; and

4. Video footage taken by Mr. Maaskant of dust generated on the Fischer Pit site during July and August 2025 were taken after the hearing had adjourned and after VB Sand’s air quality expert, Diane Freeman, had presented her evidence.

21VB Sand has closed its case in chief, including with respect to the site plans (Samantha Brown), air quality (Diane Freeman) and natural heritage (Bev Wicks):

1. Ms. Brown provided evidence on the Original Survey as the legal basis for the site plans and explained that buildings outside the subject site are based on information other than a legal survey.

2. Ms. Freeman addressed the presence of dust generated on the Fischer Pit and was cross-examined on same by Mr. Donnelly using videos taken by FOBBLL. Those same videos were also addressed by Rebecca Garrett in her evidence.

3. Ms. Wicks addressed evidence relating to the wood turtle both in her evidence in chief and under cross-examination.

4. None of those witness should have to be brought back to address “new” evidence and particularly evidence which was known to FOBBLL prior to the drafting of witness statements and/or the commencement of the hearing. This is clearly prejudicial and expensive for VB Sand.

The Partial Survey (or “Real Property Survey”)

22The Appellant stated that the alleged issue of the site boundary/accuracy of the survey was not raised as an issue until the first day of the hearing and was not something VB Sand could have anticipated in advance of the hearing. Had it truly been an issue, as alleged in the Motion, it would have been included on the Issues List for the hearing and set out explicitly in the witness statements of Mr. Ramsay and Mr. Maaskant along with a copy of the Partial Survey.

23Even if it had been expressed as an issue in time for the hearing, the evidence of both Ms. Brown and Ms. Horton is that there is no issue with the Original Survey (Ms. Brown) and there is no distinction between the Original and Partial Surveys (Ms. Horton). This is a non-issue and cannot be relevant to the Tribunal’s review of the applications before it.

Dust Videos

24The purpose of an adjournment of a hearing cannot be to allow one party to bolster or rescue its case. The dust videos taken by Mr. Maaskant after the hearing:

1. do not appear to show dust migrating off site;

2. add nothing to the dust videos provided by FOBBLL as part of its visual evidence;

3. were satisfactorily addressed by the Ministry; and

4. were not responsive to the evidence of Ms. Freeman since Mr. Maaskant knew what her evidence was with respect to the mitigation of dust through her witness (and reply) witness statement, which included the Dust Best Management Practices Plan.

Wood Turtle

25The evidence of the wood turtle sighting was known by FOBBLL on 12 June 2025, three weeks prior to the commencement of the hearing. Ms. Mainguy knew about it then and would have been able to identify what species of turtle it was. If this evidence was relevant, and it is submitted that this evidence is not, it should have been produced prior to the start of the hearing so Ms. Wicks could have addressed it in her testimony before the Tribunal.

26Also, the wood turtle sighting is not relevant since the sighting was not on the subject site and evidence on the wood turtle is already part of the record before the Tribunal.

27Evidence of the New Evidence Cannot be Presented. Other than its ecologist Ms. Mainguy, FOBBLL has no expert to present the New Evidence. FOBBLL purposely chose not to retain Mr. Culbert as an affiant or a witness. Neither Mr. Maaskant nor Mr. Ramsay are qualified to provide expert evidence on surveys. FOBBLL has not summoned the Ministry inspection staff to speak to the Report.

Case Law and the Application of Same to the Motion

28VB Sand stated that the case law on the admission of new evidence sets out the following principles:

1. The evidence must be relevant and helpful (Adi Development Group, tab at paras 84-86, Angus Glen Landowners Group Inc. quoting Queenscorp at para 28, FOBBLL Book of Authorities)

2. There must have been a reasonable and appropriate explanation for failing to produce the evidence earlier (Angus Glen Landowners Group Inc. at paras 28 and 32);

3. A party should not be put in the position of having to address new evidence by way of a Reply case Angus Glen Landowners Group Inc. at para 32);

29The Appellant submitted that the New Evidence should not be permitted as:

1. The Partial Survey is not relevant as it confirms the accuracy of the Original Survey. It could have been provided prior to the hearing.

2. The evidence of the wood turtle is not relevant as it does not provide the Tribunal with any material which is already before the Tribunal. That evidence could have been provided prior to the hearing.

3. Similarly, as the Tribunal has other videos of dust generated on the subject site there is no relevance to the new dust videos.

4. Putting the Report into evidence is not helpful to the Tribunal since the items in it have been fully resolved or will be resolved within the timelines set by the Ministry.

30The New Evidence will therefore not be helpful to the Tribunal. Moreover, it will not be introduced by any expert, including the surveyor and the Ministry Inspector.

31The New Evidence is however prejudicial to VB Sand as it could cause VB Sand to bring forward Reply, at great expense in cost and potential further delay to the hearing, which would otherwise not be required.

32If FOBBLL wanted the New Evidence put before the Tribunal it should have done so in accordance with the Procedural Order. Waiting until mere weeks before the continuation of the hearing is not fair or appropriate. There is no compelling explanation in the Motion for the delay in bringing forward the New Evidence.

33The Appellant concluded that to avoid prejudice to it and to provide for a just, expeditious and fair resolution of the appeals before the Tribunal, the Motion should be denied.

FOBBLL’s Reply to Response Motion and Response.

34FOBBLL countered that VB Sand’s objections overlook the Tribunal’s broad discretion to admit such evidence where fairness, completeness, and environmental safeguards are at stake.

35FOBBLL states that Mr. D. Culbert, has confirmed that the Site Plan is incorrect. The location of the music studio (Frame Shed), house, trees, etc., are all “misplaced” by about 10 m on the Site Plan.

36VB Sand claimed that the corrected Real Property Survey is redundant because the same surveyor prepared it as the original subject site plans (the “Original Survey”). This argument overlooks the fact that the Real Property Survey was not presented to the Parties until July 15, 2025, and it visually illustrates encroachment on private property (e.g. the berms) that were not evident in the Original Survey.

37Two separate stands of trees are clearly shown on the Site Plan as within the ARA License application boundary, when it is obvious they belong to Mr. Maaskant and Ms. Boyle (the adjacent neighbours).

38It was only after Mr. Ramsay performed a GIS overlay comparison on July 7, 2025, that these inaccuracies were confirmed, which was nearly 2 months after the May 16, 2025, exchange of witness statements. Contrary to VB Sand’s position, the Real Property Survey highlights discrepancies that go to the heart of Site Plan compliance and private property intrusion.

39The Affidavit of Ms. Horton, VB Sand’s land use planning expert, in support of the Response, also asserts that the surveyor, Mr. Culbert, the Principal of D. Culbert Ltd., confirmed there is "no issue with the site plans," when in fact, the surveyor drew no such conclusion.

40In the October 9, 2025, email correspondence submitted, Ms. Horton did not ask Mr. Culbert whether the location of the Maaskant/Boyle shed was correctly shown on both the Site Plan and the July 2025 Real Property Survey.

41In fact, Mr. Culbert has confirmed that the Site Plan is incorrect. The music studio, house and treeline are “misplaced”. Mr. Culbert produced a drawing that properly locates the features in dispute.

42VB Sand also argues that only Ms. Mainguy qualifies as an expert and that other Affiants like Mr. Ramsay or Mr. Maaskant are not qualified. This assertion misunderstands their roles: Mr. Ramsay is a Registered Professional Planner and a member in good standing of the Ontario Professional Planners Institute, qualified to offer a planning opinion grounded in verified GIS overlays.

43The MNR itself recognizes landscape architects, surveyors and land use planners as qualified to prepare and certify Site Plans. This means a land use planner like Mr. Ramsay is qualified to give evidence on whether a Site Plan is correct or incorrect.

44O. Reg 244/97, under the Aggregate Resources Act, indicates who is qualified to prepare and submit a Site Plan to the Ministry, which includes a registered professional planner, like Mr. Ramsay:

(3) Every site plan accompanying an application for a Class A licence or an aggregate permit that would authorize the excavation or removal of more than 20,000 tonnes of aggregate or topsoil from the site annually shall be prepared under the direction of and, where appropriate, certified by,

a) a professional engineer who is a member of the Association of Professional Engineers of Ontario;

b) land surveyor who is a member of the Association of Ontario Land Surveyors;

c) a landscape architect who is a member of the Ontario Association of Landscape Architects;

d) professional geoscientist who is registered with the Association of Professional Geoscientists of Ontario;

e) a registered professional planner who is a member of the Ontario Professional Planners Institute; or

f) any other person qualified for the purposes of this section and approved in writing by the Ministry.

45The documentation speaks for itself and is accompanied by an affirmed affidavit. There is no need to call Mr. Culbert. Ms. Horton, Mr. Marriott and Mr. Ramsay are all qualified to speak to the Site Plan and its errors.

46VB Sand’s assertion that the Wood Turtle sighting was known before the hearing began is misleading. The Wood Turtle sighting occurred on June 12, 2025, almost a month after the agreed May 16, 2025, deadline for witness statements. The sighting was only confirmed as a Wood Turtle after photographic review and ecological verification by Ms. Mainguy.

47Once verified, Ms. Mainguy submitted the sighting to NHIC on July 10, 2025, and FOBBLL promptly disclosed it to the Tribunal through the testimony of a lay witness, Rebecca Garrett, on July 14, 2025. The turtle’s location, near Balls Bridge and close to the site, constitutes relevant and new ecological data essential to the Tribunal’s understanding of the case.

48FOBBLL maintained that VB Sand’s argument that the turtle was “hundreds of metres away from the subject site” is vague and unsupported by an actual measurement or mapping, rendering the claim legally and factually unhelpful. In fact, the sighting was approximately 192 m from the subject property at the coordinates of 43°43'50.8"North 81°32'43.7"west.

49Regarding Mr. Maaskant’s dust videos, FOBBLL stated that VB Sand’s objection is based on the timing of their recording, rather than their content. The videos were taken after July 18, 2025, when the hearing adjourned. The videos demonstrate active dust emissions from the Fisher Pit.

50These dust recordings are relevant to assessing operational compliance with dust mitigation measures, particularly given that VB Sand’s air quality expert, Ms. Freeman, testified on July 16, 2025, that dust was being properly managed. The evidence directly contradicts that testimony and is precisely the type of new rebuttal evidence that warrants admission.

51VB Sand’s contention that the MNR Inspection Report, dated June 2, 2025, pertains to the Fisher Pit and is “not helpful to the Tribunal” overlooks that the Inspection Report demonstrates real-world, real-time compliance gaps that bear on licence suitability and the Applicant’s credibility.

52The Inspection Report is a government-authored record and is being introduced for the fact of its issuance and findings, not to challenge technical details without support.

53The issues identified regarding the Inspection Report remain unresolved, and there is no confirmation from the Ministry to support VB Sand’s assumption of future compliance.

54While it is the opinion of the Affiant, Ms. Schwier (who is not a witness in this case), that the identified non-compliance issues are “minor”, this is a subjective opinion without foundation. Ms. Schwier also confirms the need to see the videos, as they are obvious proof that the MNR is not enforcing compliance, and VB Sand is not taking action to keep dust on their property.

55FOBBLL’s new evidence arose either shortly before, during or after the July 2025 portion of the hearing. It was disclosed promptly and with supporting affidavits.

56The VB Sand’s Response to Motion references Angus Glen Landowners’ Group Inc. v Markham (City), 2023 CanLII 61511 (ONLT), where new video evidence was sought to be introduced the same day it was produced to the other Parties. FOBBLL stated that case is easily distinguished from the present case.

57FOBBLL submitted that the majority of the new evidence to be brought by FOBBLL has been in the Parties’ possession for months, or 5 months by the time the hearing resumes. The videos were provided at least one month prior to Mr. Maaskant’s testimony and could not have been produced during the first phase of the hearing.

58As such, there was no undue delay or prior knowledge. The evidence ensures fairness and completeness for the Tribunal.

59The MNR Response acknowledges that the MNR does not oppose the admission of the documents forming the basis of the Motion, including the Wood Turtle evidence, the corrected Real Property Survey, and the MNR Inspection Report. However, the MNR argues they cannot be admitted “for the truth of their contents” unless “qualified by an appropriate witness”.

60FOBBLL argued that the MNR’s position overlooks the fact that the new materials were either introduced by a qualified witness via affidavit or authored by a government authority itself, specifically:

a. The Wood Turtle evidence is supported by a professional ecologist, Ms. Mainguy, who confirmed species identification and submitted the record to NHIC in July 2025; and

b. The corrected Real Property Survey is authenticated by Mr. Ramsay, a registered professional planner, who reviewed the map overlay on July 7, 2025 and provided his expert planning opinion. He is eminently qualified to read the Real Property Survey and apply it to the Site Plan.

c. The MNR Inspection Report is an official document authored by the Ministry itself, and it is relied upon for the fact of its issuance and the observations noted therein.

61Mr. Marriott is similarly qualified to review a Site Plan, per O/Reg 244/97.

62The Township of ACW does not object to the admission of the new materials identified in the Motion, provided they are introduced through a qualified witness.

63The MNR does not oppose the admission of the documents, and their only concern, that the evidence is not admitted “for the truth of its contents” without proper qualification, is addressed by the presence of two supporting expert affidavits in the Motion Record. Mr. Ramsay is qualified to give evidence regarding the Site Plan and its accuracy.

64FOBBLL reiterates that all new evidence was disclosed as soon as practicable following its short emergence before and after the July 2025 hearing session. The Motion was brought well in advance of the resumption of the hearing, per the Tribunal’s direction and at the request of the Parties. Neither the MNR nor ACW has identified prejudice in FOBBLL bringing forward the Motion.

65FOBBLL argues that the Tribunal should therefore grant the Motion in full, admitting the corrected Real Property Survey, the Wood Turtle evidence, and the MNR’s own Inspection Report as new, relevant, and authenticated materials, in accordance with the Ontario Land Tribunal Rules of Practice and Procedure and the principles of natural justice.

Analysis and Findings

66In deciding whether to admit fresh or new evidence, the principles are as set out in the Supreme Court of Canada’s case of Palmer v. the Queen 1979 CanLII 8 (SCC) (1980) 1 SCR 759. (“Palmer”).

1. The evidence should generally not be admitted if, by due diligence it could have been adduced at the trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at the trial.

3. The evidence must be credible in the sense that it is reasonably capable of belief.

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at the trial, be expected to have affected the result.

67In terms of the Tribunal’s adjudication, being comparable to a civil case, the general prohibition to admitting new evidence will fall towards the stricter side of the continuum.

68Nevertheless, as the Tribunal is charged with the determination of matters within the public interest, it retains a discretion under legislation and the Tribunal’s Rules, to a degree of flexibility, in the admission of new evidence.

69The Tribunal considered the motion materials, s. 9 of the Ontario Land Tribunal Act (“OLTA)”; rules 1.6, and 1.7 of the Tribunal Rules of Practice and Procedure (“Rules”).

70Section 9(1) OLTA states: The Tribunal has the authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

71Rule 1.6 specifies: The Tribunal may grant all necessary exceptions from these Rules or from any procedural order or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.

72Rule 1.7 directs: The Tribunal expects compliance with these Rules and adherence to Tribunal orders arising from the application of these Rules by all parties and participants. If a party or participant to any proceeding has not complied with a requirement of these Rules or a Tribunal order, such as a procedural order or any requirement included therein, then the Tribunal has the discretion to determine the consequences of non-compliance and may grant necessary relief or exercise any of its powers authorized by legislation or regulation.

73This panel adjudicated at the 2 July to the 18 July 2025, 1st part hearing before the proceedings were adjourned to 1 December to 12 December 2025 for the 2nd part hearing.

A) The Procedural Order filed by the parties had these important timelines.

1. Witness statements were to be filed by: 9 May 2025 (extended to 16 May 2025).

2. Visual evidence by: 11 June 2025

3. Joint Document Book by: 13 June 2025

B) The following documents/material timelines were:

1. MNR inspection report (Fisher pit): 2 June 2025

(obtained by FOBBLL 8 July 2025)

2. Wood Turtle sighting documents: 12 June 2025

(further submitted to NHIC 10 July 2025)

3. D. Culbert Ltd. Partial Survey: 11 July 2025

4. Maaskant dust videos: July and August 2025

MNR Report

74This inspection report relates to an adjacent Fisher gravel pit that is operated by the Appellant. The subject pit in issue is the Little Lakes pit.

75At first glance, the MNR report dated 2 June 2025 is after the witness filing date of 9 May 2025 (or the extended date 16 May 2025) but before Joint document book filing date 13 June 2025. On the Palmer 1st test, with due diligence, could this MNR report be obtained earlier than the stated 8 July 2025 date (when FOBBLL obtained the report) (see A. Nemy’s Affidavit 7 November 2025) and filed on time? The answer appears to be negative.

76That is not the end of the matter, as the Palmer 2nd test refers to relevance of the new evidence to a decisive issue or potentially decisive issue in the proceedings.

77Although, the MNR inspection report relates to matters of non-compliance with the operations of the adjacent Fisher pit, that pit is operated by the Appellant.

78The Appellant is applying for another license from the Ministry to operate a gravel pit at Little Lakes. Thus, the MNR report has relevance on the issue of the potential license being granted to the same operator. Whether the operator will operate in compliance with the license if approved. The Tribunal is not determining whether there is or is not any compliance. Only that the MNR report is relevant to the ARA matter before it for adjudication.

79Further, the parties do not dispute the MNR report’s existence nor the authenticity of that report.

80The MNR has yet to present its case and when the hearing comes on, will have a witness who could be cross examined on the matters contained in the report.

81Pursuant to the powers under s. 9 of the OLTA and the requirements for a fair and expeditious hearing for the parties under the provisions of the Rules in particular Rule 1.6, the Tribunal will admit the MNR report.

Culbert’s Partial Survey

82This survey was done on 11 July 2025. It was during the 1st part hearing commencing 2 July 2025 that on 7 July 2025, the witness’s Mr. Ramsay’s GIS overlay of the Appellant’s Site Plan, revealed that some tree stands/clusters were found within the Appellant’s Site Map boundary and that the site map boundaries were shown inconsistent or too close to the adjacent Mr. Maaskant’s shed.

83The revelation of this issue was at the July hearing. The subsequent partial survey was undertaken by D. Culbert Ltd., which was the same land surveyor of the underlying original land survey done.

84Mr. Maaskant is the current owner of the adjacent property. It appeared that Mr. Maaskant had assumed throughout that the Appellant’s Site Plan contained the proper dimensions and accurate boundary as per the original underlying land survey by Culbert.

85The new partial survey could not have, by due diligence, be undertaken before the revelation, with the GIS overlay on the site plan by the FOBBLL’s witness at the hearing.

86The parties are in agreement that the underlying original land survey boundaries are accurate and proper. The dispute lies in the Site Plan map boundaries that are said to be off by some 10 m in certain place(s).

87Here too, the parties do not question that Culbert was the original land surveyor and also that the partial survey was done by Culbert.

88The existence and authenticity are not in dispute.

89The Tribunal finds that the Partial survey is relevant to the foundational issue of the Site Plan map boundaries. This is a relevant and decisive issue of the extent of the Little Lakes pit boundaries. Also, the determination of the proper boundary lines will determine the relative positions of the Maaskant shed and where the tree clusters lie and other pertinent issues in the ARA adjudication.

90The Culbert Partial Survey is admitted by the Tribunal.

Maaskant Videos

91These videos were made in July and August 2025 after the 1st part hearing was adjourned. Ostensibly these were made to further support the FOBBLL’s case in the upcoming 2nd part hearing.

92Palmer’s test on due diligence takes on prominence here. Mr. Maaskant has filed a witness statement for the 1st part hearing and with due diligence (as to be expected since he is a resident in the area) he must anticipate that the dust clouds issue would be front and center for him. Nonetheless, he did not think it necessary to shoot these further videos at that time and only put in these series of videos at this late stage.

93The Tribunal finds that videos could have been listed or appended to the witness statement at the 16 May 2025 extended witness statements filing date. Alternatively, those videos could have been the visual evidence filed on 11 June 2025.

94Neither of those required filings contained the videos now proposed.

95The Appellant had completed its case and is now awaiting FOBBLL’s presentation of its case. The Appellant would have had the opportunity in the 1st part hearing to deal with these videos if they were included. The relevant Appellant’s witness could have dealt with the video evidence. That opportunity had been lost and if these videos were permitted, there would be prejudice occasioned to the Appellant.

96In Angus Glen Landowners Corporation Inc. v. Markham (City), OLT-22-002000, July 6, 2023, (“Angus”) at paragraph 28, the Tribunal in Angus, referred to Queens corp (Mona Road) Inc. v. Mississauga (City) 2020 CarswellOnt 3788 (“Queenscorp”) where: a large electronic file, filed on the morning of the hearing dating back to 2009 was rejected by the Tribunal- “the Tribunal was not persuaded that there was a reasonable and appropriate explanation for failing to provide this visual evidence in a timely way and in accordance with the requirements of the procedural order…” There the Tribunal declined to admit the extensive collection of photographs as being neither relevant nor helpful.

97The panel in Angus agreed with Queenscorp and it went on to decide at paragraph 32 that the Tribunal did not grant leave under r.1.6 or 1.7 to admit the video evidence (in the Angus case) because (among others): there was no adequate explanation for the profound lateness; no satisfactory reasons were given for not including such evidence as part of the…case in its witness statements; no prior opportunity was given to any other party to respond through their witnesses or otherwise; the opposing side ought not be put in position to having to address this late breaking video evidence by way of a reply case.

98In the instant case, video evidence could have been part of the Maaskant witness statement filed 16 May 2025 or the visual evidence filed on 11 June 2025. That would have given the Appellant’s and other Party’s witnesses an opportunity to reply accordingly.

99The Appellant having closed its case would unreasonably be put to make a reply case and which they should not have been put in. There are inadequate reasons for why the videos are provided this late in the proceedings. Suggesting in the motion that the 2nd part hearing is some months away, does not relieve Mr. Maaskant from the requirement of due diligence and fairness to the opposing parties in affording the right to counter and question at the appropriate time which should have been at the 1st part July 2025 hearing.

100The Tribunal finds that, in having lost the first opportunity to test, counter and reply at the first hearing, and having closed its case, the Appellant is prejudiced thereby. Thus, because of the prejudice caused, the Tribunal will not exercise its discretion under r.1.6 or r.1.7 (discretion to allow the evidence) to admit these videos.

101The Maaskant videos are not admitted.

Wood Turtle sighting documents (NHIC submission and photos)

102According to FOBBLL this occurred on 12 June 2025 one month after 16 May 2025 witness statements deadline and was one day after the visual evidence filing deadline. Further, after Ms. Mainguy verified the turtle species, the sighting with photos were submitted to the NHIC on July 10, 2025. FOBBLL’s lay witness Ms. Garrett reported the sighting at the July hearing on 14 July 2025.

103Could FOBBLL with due diligence have ensured that the Wood Turtle documents be filed by the visual evidence deadline?

104It appears that the Wood Turtle documents could not have been filed through the Palmer’s due diligence test. The sighting is a natural occurrence after the witness statements filing deadline and visual evidence filing had passed.

105As regards relevance, the lone sighting allegedly was at the Balls Bridge vicinity and not at the subject gravel pit site. Nevertheless, Balls Bridge is in the Little Lakes area and the general geographic area where the endangered species wood turtle was encountered.

106The Endangered Species Act (“ESA”) s. 9(1) states that: “No person shall (a) kill, harm, capture or take a living member of a species that is listed at risk in Ontario List as an extirpated, endangered or threatened species”.

107Section 10 ESA (Prohibition on damage to habitat) stipulates: “10(1) No person shall damage or destroy the habitat of (a) a species that is listed on the species at risk in Ontario List as an endangered or threatened species…”

108Granted that at this stage, there is affidavit evidence in the Motion on the wood turtle sighting, the Tribunal finds that the Wood Turtle documents for the sighting at the Balls Bridge are relevant for endangered species issue and ecological issue within the Little Lakes area.

109The Tribunal will exercise its discretion to admit under r.1.6 and r.1.7 thereof.

110The Wood Turtle documents are admitted.

Costs

111On the request for costs by VB Sand, as the Response motion is dismissed, it would not occasion consideration of an award of costs for VB Sand.

CONCLUSION

112The Tribunal finds that there are witnesses at the hearing, such as land use planners and ecologists who are able to speak to and be examined on the relevant admitted documents.

113The Tribunal allows the FOBBLL’s Motion in part and admits the MNR Inspection Report, the Culbert Partial Survey and the Wood Turtle Documents. The Maaskant Videos are not admitted.

114The VB Sand Response Motion to the motion is dismissed.

ORDER

115THE TRIBUNAL ORDERS THAT the V. B. Sand and Gravel Ltd. Response Motion to Motion is dismissed.

116THE TRIBUNAL ORDERS THAT the Motion to admit new evidence brought by Friends of Ball’s Bridge & Little Lakes is granted in part:

1. The MNR inspection report dated 2 June 2025 is admitted.

2. The Culbert Partial survey dated 11 July 2025 is admitted.

3. The Wood Turtle documents of 12 June 2025 and 10 July 2025 are admitted.

4. Maaskant Videos of July to August 2025 are not admitted.

“T.F. Ng”

T.F. NG

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.