Court File and Parties

COURT FILE NO.: CV-16-0392 DATE: 2017-03-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROCK SOLID HOLDINGS INC. Applicant

B. Babcock, for the Applicant

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LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY Respondents

No one appearing for the Respondents LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY

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TROUT LAKE CAMPERS’ ASSOCIATION THE SURPRISE LAKE CAMPERS’ ASSOCIATION Proposed Intervenors

D. Zulianello, for the Proposed Intervenors

HEARD: February 9 and 24, 2017, at Thunder Bay, Ontario BEFORE: Mr. Justice W.D. Newton

Decision On Motion to Intervene

Overview

[1] In this motion, two cottage associations seek leave to intervene in a gravel pit company’s application to have the court determine the zoning on property owned by the company.

[2] For reasons that follow, I dismiss the motion for leave to intervene.

The Application

The Legislation

[3] The pit in issue is in an area newly designated by the Minister as subject to the Aggregate Resources Act, R.S.O. 1990, c. A.8. As such, the existing pit may continue to operate without a licence until the licence is issued or refused. If the Minister is satisfied that the location of the land on which the pit is situated complies with all relevant zoning bylaws then a licence shall issue.

[4] Section 12.1 of the Act provides that no licence shall be issued for a pit or quarry if prohibited by a zoning bylaw. If the Minister is in doubt as to whether a bylaw prohibits a pit or quarry, the Minister may serve notice on the applicant for the licence as to the bylaw concern. The prospective licencee may then make application to this court for a declaration that no zoning bylaw prohibits the property from being used as a pit or quarry.

The Parties

[5] Rock Solid Holdings Inc. (“Rock Solid”) seeks a pit and quarry licence for an existing pit. The Minister served notice with respect to zoning and Rock Solid commenced this application for a declaration that no zoning bylaw prohibits Rock Solid’s proposed use of the property.

[6] The respondents are the Lakehead Rural Planning Board (“Board”) and Her Majesty the Queen in Right of the Province of Ontario, as represented by the Minister of Natural Resources and Forestry (“Minister”).

The Positions of the Parties on the Application

[7] Rock Solid is the owner of what is described as part of Lot 18 and part of Lot 17, Concession 7 in Gorham Township (otherwise described by the proposed intervenors as the “Taranis Gravel Pit and Quarry operation”). Rock Solid argues that both lots are zoned for aggregate extraction. The Board does not dispute that Lot 18 is zoned for aggregate extraction. Whether Lot 17 is zoned for aggregate extraction will involve review of planning maps and the placement of Lot 17 upon those planning maps. If Lot 17 is not zoned for aggregate extraction, Rock Solid argues that Lot 17 has been used historically for aggregate extraction and is, therefore, a legally nonconforming use. The Board disputes that Lot 17 has been used historically for aggregate extraction and is, therefore, not a legally nonconforming use.

[8] The Minister does not take any position on the application.

The Positions of the Parties on the Intervention

The Proposed Intervenors

[9] The proposed intervenors are the Trout Lake Campers’ Association and the Surprise Lake Campers’ Association (“the Associations”). Both groups are incorporated and comprised of cottage owners on two lakes. There is not any evidence before me as to the distances from the Rock Solid property to the properties owned by the members of the Associations. In fact, on cross-examinations in advance of these motions, the representatives of the Associations refused to answer any questions relating to distance from the Associations members’ property to the Rock Solid property.

[10] The president of each Association deposed that they received complaints from their members and have experienced personal issues related to the Rock Solid operation including:

a) considerable noise during the day and into the evening, sometimes seven days a week from the gravel pit/crushing operation; b) the loud and repetitive beeping noise from gravel trucks backing up; c) the noise from the banging of tailgates of gravel trucks; d) the noise from pumps and other associated equipment; e) significant increase in dump truck traffic along Dog Lake Road to and from the City of Thunder Bay; and f) significant noise as result of the dynamite blasting operations at the Taranis lands.

[11] The presidents also depose that the Board has advised that the Board “will not advance specific evidence of the concerns” of the Associations or neighbouring landowners as part of its response to the application. The presidents further depose that their members will be able to provide the court with affidavit and other evidence on the issue of whether the use of the Rock Solid property is legally nonconforming. In argument, counsel for the Associations stated that the Associations will only present evidence on the historic use of the Rock Solid property.

[12] The Associations argue that they meet the test set out in Rule 13.01 of the Rules of Civil Procedure since they have an interest in the subject matter of this proceeding and that they are persons who may be adversely affected by a judgment in this proceeding. They argue that their intervention will not unduly delay or prejudice the determination of the rights of the parties to the proceedings.

[13] The Associations point out that if this was an application for a new licence there would be an opportunity for consultation once the application complied with the Act and regulations. This consultation process would provide for objections and, if unresolved, then the Minister may refer the application and any objections to the Ontario Municipal Board. The parties to that hearing are the applicant, the objectors, the Minister and such other persons as are specified by the Ontario Municipal Board (s. 11). As this is an application concerning a pit in a newly designated area, there is no opportunity to object and participate in a hearing (s.71(7)).

Rock Solid

[14] Rock Solid argues that the Associations do not have a “sufficient interest” in the subject matter of this proceeding and denies that the Associations may be adversely affected since the operation on Lot 18 will continue. Rock Solid argues that the Minister retains the power to include conditions, rescind conditions and/or vary the conditions of any licence. If the licencee disputes the proposed conditions, a licencee is entitled to a hearing before the Ontario Municipal Board. The parties to that hearing are the licensee, the Minister and “such other persons as are specified” by the Ontario Municipal Board (s. 13).

[15] Rock Solid argues that the Planning Board actively opposes this application and that there is no reason to suspect that the Board will not adequately present the evidence with respect to historical use. If leave to intervene is granted, Rock Solid argues that there should be strict limits placed upon the Associations’ intervention so that there is not undue delay or prejudice to Rock Solid.

The Planning Board

[16] I am informed that the Planning Board consents to the proposed intervention. Nothing was filed by the Board explaining its position or outlining why the proposed intervention would be appropriate. The Minister takes no position.

The Law

[17] Rule 13 states:

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

[18] In exercising its discretion with respect to granting leave to intervene, the court should also consider other factors. The court may decline intervention where it considers that the interests of the proposed intervener are already adequately represented (See Re Starr. v. Township of Puslinch, (1976) 12 O.R. (2d) 40).

[19] Similarly, the interests of the proposed intervener that are not adequately represented is a factor. As Pardue J., as she then was, stated in Association of Concerned Citizens of Hilton Beach v. Bernt Gilbertson Enterprises Limited et al, 2004 ONSC 48167, at para. 33:

The role of the court in dealing with applications pursuant to s. 12.1 of the Aggregate Resources Act is not to rubber stamp them when the municipality is quiescent. Persons directly and legitimately concerned must be given an opportunity to be heard. The fact-finding task of the court will likely be more accurate if there is an adversarial hearing.

[20] As was stated by Master Haberman in Terratec v. Township of Melancthon, [2003] O. J. No. 4448, at para 15:

… it is up to the court to ensure that those persons that are permitted to intervene are actually bringing something to the table that is both unique and relevant to the inquiry on the merits. As it is recognized that there will be some degree of disruption of the process if others are added to the next, their inclusion in what began as a private process must be justified. Accordingly, a slightly different emphasis on the argument will not suffice, on its own, to justify granting intervener status. [Emphasis added.]

[21] In denying the proposed intervener’s request for leave to intervene in Terratec, the Master found that there was no evidence before the court to suggest that the interveners had access to any factual information that the Township would not have or could not have easily obtained from the proposed interveners.

Analysis and Disposition

[22] I am satisfied that the proposed interveners have an interest in the subject matter of the proceeding, albeit not a direct legal interest. I also accept that they may be adversely affected by such nuisances as noise, for example.

[23] However, the issue in this application is narrow: is there a zoning bylaw that prohibits the properties (Lots 17 and 18) from being used as a pit? If a determination has to be made with respect to legal nonconforming use then the parties will be obliged to call evidence on historic use. There is nothing in the material that suggests to me that the Board cannot access information from any member of the Associations. Unlike Hilton Beach, the Board is not quiescent. The proposed intervention would elevate witnesses to the status of parties. I conclude that it is not necessary or desirable in the circumstances to do so. It is not necessary because that evidence can be presented by the Board. It is not desirable because the intervention will unduly delay the application. This application has already been delayed for four months while this leave motion was brought.

Costs

[24] Should Rock Solid seek costs then it shall, within 20 days, deliver its cost submissions limited to three pages plus costs outline. Thereafter, the Associations will have 10 days to deliver their cost submissions, again limited to three pages plus costs outline.

[25] If costs submissions are not received within 20 days then costs will be deemed settled.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: March 1, 2017