Mahoney et al v. Petersburg Sand Company Inc., 2025 CanLII 2782

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 15, 2025

CASE NO(S).: OLT-24-000877

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

Referred by: Ministry of Natural Resources and Forestry

Objector: Maria and Alberto Alves

Objector: Julie and Paulo Tavares Das Neves

Objector: Jim Mahoney

Applicant: Petersburg Sand Company Inc.

Subject: Application for Class A Licence under the Aggregates Resources Act (ARA)

Description: To permit Class A Licence to Operate a Pit under the Aggregates Resources Act (ARA)

Reference Number: Licence # 626570

Property Address: Part of Lot 5, Concession North of Snyder’s Road

Municipality/UT: Waterloo

OLT Case No.: OLT-24-000877

OLT Lead Case No.: OLT-24-000877

OLT Case Name: Mahoney et al v. Petersburg Sand Company Inc.

Heard: November 15, 2024 by video hearing

APPEARANCES:

Parties	Counsel
Petersburg Sand Company Inc. ("Applicant")	Al Burton, Albert Engel
Julie and Paulo Tavares Das Neves ("Objectors")	David Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY L.P. YOU and HUGH S. WILKINS ON NOVEMBER 15, 2024 AND ORDER OF THE TRIBUNAL

1On November 15, 2024, the Tribunal held the first Case Management Conference ("CMC") for the appeal referred by the Ministry of Natural Resources relating to an application submitted by Petersburg Sand Company Inc. ("Applicant") for a Class A aggregate license, for a proposed pit above the water table, on the lands located at 1856 Snyder’s Road, in the Geographic Township of Wilmot ("Subject Lands").

2At the CMC, the Tribunal addressed the preparation of a draft Procedural Order and Issues List, the scheduling of a merit hearing, and opportunities for settlement discussions.

Identification of Issues, Procedural Order and Issues List, and Scheduling of a Merit Hearing

3At the CMC, the Parties discussed the preparation of a Draft Procedural Order, which was subsequently filed with the Tribunal. The Parties disagreed over the timing of several due dates in the draft. The Tribunal has reviewed the draft and finds that the proposed due dates are reasonable and align with those regularly set by the Tribunal. The Tribunal approves the Draft Procedural Order attached as Attachment 1 to this Order and Decision.

4As stated by the Applicant and the Objectors, there will be 11 witnesses to be called and cross-examined at the hearing. As such, the Tribunal scheduled a nine-day hearing to resolve the issues identified in the Issue List.

5The merit hearing will be held commencing on Monday, June 9, 2025 at 10 a.m. and continuing until Friday, June 24, 2025. It will be held by video hearing. The Panel will not be sitting on Monday, June 16, 2025.

6Parties are asked to log in to the CMC at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

7Parties 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

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is as indicated above.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

Opportunities for Settlement Discussions

10The Tribunal explored the possibility of mediation and settlement with the Parties. The Objector stated that she did not foresee mediation for this matter but expressed openness to resolution discussions with the Applicant if the technical experts from both sides work together. The Applicant did not oppose engaging in settlement discussions. The Tribunal encourages the Parties continue to discuss the matters to narrow down the scope or to resolve the appeal.

ORDER

11THE TRIBUNAL ORDERS that:

1. The date and particulars of the hearing are set out above; and,
2. The Procedural Order appended as Attachment 1 is approved and shall govern the proceedings.

12There will be no further notice.

13The Panel may be spoken to through the Case Coordinator if any issues arise.

"L.P. You"

L.P. YOU MEMBER

"Hugh S. Wilkins"

HUGH S. WILKINS 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

ATTACHMENT 1

ISSUE DATE: January 15, 2025 CASE NO(S).: OLT-24-000877

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

Referred by: Ministry of Natural Resources and Forestry Objector: Maria and Alberto Alves Objector: Julie and Paulo Tavares Das Neves Objector: Jim Mahoney Applicant: Petersburg Sand Company Inc. Subject: Application for Class A Licence under the Aggregates Resources Act (ARA) Description: To permit Class A Licence to Operate a Pit under the Aggregate Resources Act (ARA) Reference Number: Licence # 626570 Property Address: Part of Lot 5, Concession North of Snyder's Road Municipality/UT: Waterloo OLT Case No.: OLT-24-000877 OLT Lead Case No.: OLT-24-000877 OLT Case Name: Mahoney et al. v. Petersburg Sand Company Inc.

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 Monday, June 9, 2025 at 10:00 a.m.:

Parties are asked to log in to the CMC at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

3. The parties’ initial estimation for the length of the hearing is 10 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.

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 January 17, 2025 (date – at least 55 days prior to the start of the hearing) and in accordance with paragraph 21 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.

10. Expert witnesses in the same field shall have a meeting on or before January 31, 2025 (date) 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 February 21, 2025 (date – at least 15 days prior to the start of the hearing).

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. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence.

13. On or before April 7, 2025 (date – at least 45 days prior to the start of the hearing), the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.

14. On or before May 5, 2025 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before May 30, 2025 (date – typically 10 days prior to hearing start), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 30, 2025 (date – at least 10 days prior to the start of the hearing).

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 30, 2025 (date – at least 7 days prior to the start of the hearing) 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.

21. All filings shall be submitted electronically. 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.

22. 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.

These Members are not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date: ____________________________

TRIBUNAL REGISTRAR

ATTACHMENT 1 – PARTY LIST

Party	Party Status	Counsel / Representative
Petersburg Sand Company	Applicant	FOGLER, RUBINOFF LLP 77 King Street West, Suite 3000 PO Box 95 TD Centre North Tower Toronto, Ontario M5K 1G8 Albert Engel T: 416.864.7602 aengel@foglers.com and THOMSON, ROGERS 3100 – 390 Bay Street Toronto, Ontario M5H 1W2 Al Burton T: 416-868-3113 aburton@trlaw.com
Julie Das Neves	Objector	Donnelly Law 276 Carlaw Avenue, Suite 203 Toronto, Ontario M4M 3L1 David R. Donnelly T: 416.572.0464 david@donnellylaw.ca

ATTACHMENT 2 – ISSUES LIST

Julie Das Neves Issues:

1. Is the Aggregate Resources Act licence application, including its Site Plan ("ARA Application"), consistent with the "matters to be considered" under section 12 of the Aggregate Resources Act, in particular sections 12(b), (d), (e), (f), (g), (h), (i) and (j) and the Aggregate Resources of Ontario: Provincial Standards (Category 2)?
2. Do the proposed site plan drawings and license conditions include appropriate noise mitigation to be in place to minimize any adverse impacts arising from the proposed pit on the surrounding land uses?
3. Are the proposed Site Plan Notes comprehensive and consistent with the requirements of the ARA?
4. Will the pit result in any unacceptable adverse air quality impacts? If yes, what mitigation and monitoring measures could address those impacts?
5. Do the proposed site plan drawings and license conditions include adequate monitoring and contingency measures to ensure that the proposed pit will not have any adverse impacts on private drinking water wells in the vicinity of the proposed pit?
6. Will the pit result in any unacceptable adverse traffic impacts? If yes, what mitigation and monitoring measures could address those impacts?

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Opening statements
2. Evidence of the Applicant’s witnesses
3. Evidence of the Objector's witnesses
4. Evidence of the Applicant's reply witnesses, if any
5. Closing Arguments