NPFAQ had its final CMC before it heads to an Ontario Land Tribunal (formerly LPAT) hearing on Sept. 20 in its fight against the Freymond Lumber/Fowler Construction proposed quarry on Bay Lake Road in Faraday Township. Eric Gillespie, the legal counsel for NPFAQ had sought this CMC back in August to seek direction and clarity with respect to a few issues; the pared down issues list between NPFAQ and Freymond Lumber, devising a specific work plan/schedule for the hearing and determining the role the ARA objectors would play in terms of their verbal testimony at the Sept. 20 hearing. The hearing will also be held virtually, in light of the ongoing COVID-19 pandemic and restrictions.
The final CMC between NPFAQ and Freymond Lumber occurred virtually on Sept. 1 at 10 a.m. In attendance at the conference were Gillespie, Yasmeen Peer and articling student Kristian Ferreira (legal counsel for NPFAQ), John Buhlman and Chantal deSereville (legal counsel for Freymond Lumber) and Darrell Mast (legal co-counsel with Jennifer Savini for Hastings County). Although Savini was not present, Mast mentioned that Justin Harrow, the director of planning for Hastings County was on the call.
NPFAQ is appealing to the OLT under an official plan amendment No. OPA 18 under section 17(36) of the Planning Act by Hastings County that allowed Freymond Lumber to proceed with the quarry under the Ontario Planning Act. They are also appealing the Class A aggregate licence granted to Freymond Lumber for the removal of aggregate under section 11(5) of the Aggregate Resources Act.
The chair of this final CMC on Sept. 1 was William Middleton, who asked Gillespie to start things off by telling the tribunal why he had requested this CMC several weeks earlier. Gillespie said that there were three matters that needed to be discussed before the tribunal that day; the issues list which was able to be pared down because of successful OLT facilitated mediation, developing a more specific work plan/schedule for the upcoming hearing which he said turns significantly on the role of the objectors in the hearing, and determining the role of the ARA objectors and how much verbal testimony they would offer at the hearing to more accurately come up with a timeframe for the work plan/schedule of the hearing.
Buhlman agreed with Gillespie that the role of the objectors was the most important matter to deal with that day. He said that there had originally been 26 objectors, five had withdrawn from participating in the hearing, leaving 21 objectors, of whom only 15 had submitted witness statements to the tribunal by the deadline.
“I guess our purpose is to find out what the plan is of the objectors who’ve filed witness statements and those who have not,” he says.
Gillespie said that his firm had been representing two of the objectors, Alysha Dominico and James Cunningham, but their issues (on hydrogeology) had been resolved and they would no longer be participating substantively in the hearing, so Gillespie would no longer be representing them after that day’s CMC concluded.
Gillespie said that the 15 objectors who had filed witness statements should have an opportunity to address the tribunal and an allotted time to make their oral submissions. He estimated that this testimony should take approximately two days, and the fact that they weren’t calling expert witnesses should allow this testimony to be pretty focused, in his opinion. He said that in his experience, usually the first several objectors will raise the primary concerns of the remaining objectors.
“If the objectors could be directed by the tribunal to prepare in such a way that the first group of objectors address the central issues so that those who follow, if they wish to address the tribunal directly are in a position to simply agree with those central issues. If they have something to add of course the hope would be that the tribunal would hear that so that all issues and concerns are fully canvassed but in an organized way that avoids repetition,” he says.
The legal counsel, after some discussion, decided to leave the presentation of evidence at the hearing as it was listed in the procedural order; Freymond Lumber, Hastings County, NPFAQ, the ARA objectors and then Freymond Lumber’s rebuttal. Gillespie said that this original order of evidence would allow the hearing chair to have the maximum amount of flexibility to integrate the objectors’ evidence into the hearing, without significantly altering the rest of the hearing.
Buhlman told the tribunal that what he wanted decided that day was how many of those 15 objectors were planning to speak at the hearing. He did note that in his opinion much of what he had read in the objectors’ witness statements was inadmissible.
“They’re quoting other expert opinions not before the tribunal and have offered their own opinions, when they’re not qualified to do so. Clearly when it comes to them testifying, I’ll have to deal with what they can and can’t say,” he says.
Buhlman said it would be useful to go through the list of objectors and see what their intentions are. Consequently, Middleton asked Buhlman to do a roll call of the objectors and ask those objectors who were on the call that day what their intentions were with regard to offering verbal testimony. Going down the list of ARA objectors, only four were on the call; Peter Wagner, Michael Freeman and David and Mary Mackie. Wagner said he would not be testifying, but Freeman and the Mackies said they would be, and that they would take approximately 30 minutes and 20 minutes to do so, respectively.
Regarding the objectors not on the call that day, Gillespie argued there should be no determination yet on their right to testify verbally and such a determination should be deferred to the hearing.
“We’re aware of some of the concerns Mr. Freeman has raised; not everyone has access to computers so they’re getting information from other sources, also it’s summertime so people could be away on vacation. There’s a number of things that could explain why they are not at this CMC,” he says.
Gillespie said that all of the objectors understand that the hearing is scheduled to start on Sept. 20 and that the hearing would be the appropriate time to revisit whether they should be permitted to offer oral testimony or not.
Buhlman agreed with this, saying it would be inappropriate and not in the public interest to deny the objectors not present the right to speak at the hearing at that point.
“It’s unfortunate they’re not here today but I have to agree with Mr. Gillespie. Although I would have preferred to deal with it today, I can accept it being deferred,” he says.
What Buhlman proposed to do, since his firm put together the work plan/hearing schedule because they have the most witnesses, was to fit the Mackies and Mr. Freeman into the hearing after NPFAQ, and give the other objectors roughly the same amount of time (20 to 30 minutes), which would facilitate the parties having some sense of how long the hearing will ultimately take. This schedule was due to the OLT by Sept. 3 but Middleton said it could be submitted the following week if necessary.
Gillespie also broached the subject of NPFAQ’s witness list, telling the tribunal there were six expert witnesses they intended to call and that they would take no longer than half a day for each witness with their evidence in chief and with their cross examination.
Mast thought that the expert witnesses that Hastings County intended to call in the Planning Act matter would take conservatively, around three and a half days to hear their testimony and for cross examination, but it could be a little longer. Initially there were five witnesses, but with the resolution of the hydrogeology issues in the Planning Act case, the hydrogeologist the county intended to call may no longer be necessary, so they would only be calling four witnesses.
Buhlman thought that his expert witnesses would take longer, as there was a lot of scientific and engineering evidence that they needed to testify to, especially with respect to the ARA hearing. He said he had eight or nine expert witnesses or more for the ARA hearing. Getting into the level of detail necessary to satisfy the tribunal’s guidelines in the ARA hearing would take more time, unless the tribunal allowed him to do an overview and not get into that level of detail.
“Since we’ve not been able to narrow the ARA issues, that’s the situation we’re in. I’ll raise that with the tribunal members in an effort to reduce the amount of time I’ll need for those expert witnesses,” he says.
Middleton understood Buhlman’s argument and said that it was likely that the tribunal members hearing the case could accommodate some sort of mechanism to reduce the time needed for those expert witnesses, such as allowing them to give an overview with the stipulation that a witness could be recalled in the event that something comes up that needs to be addressed.
Middleton announced that the OLT had definitely decided that the hearing on Sept. 20 would be held virtually due to the ongoing concerns surrounding COVID-19. All legal counsel were aware of this development, and were planning accordingly for a video hearing.
The other scheduling issue dealt with had to do with a conflicting court hearing that Gillespie and his firm had to attend to on Oct. 4, precluding them from attending the OLT hearing that day. Opposing legal counsel had no issue with this and Oct. 4 was approved by the tribunal as a day off from the hearing.
Another discussion issue was the narrowed issues list, due to the OLT facilitated mediation sessions over the summer. Gillespie informed the tribunal that the issues resolved fell under the Planning Act, and were related to hydrogeology. All in all, three issues from the issues list in the procedural order (issues 17, 18 and 19) were resolved and will no longer be in contention under the Planning Act appeal. Gillespie said that with hydrogeology being such a complex area, it would have taken up a significant number of hearings days, so this resolution would narrow the scope of the hearing and its length.
The final issue brought up to the tribunal was Gillespie’s potential request to have a court reporter transcribe the minutes of the hearing. While Gillespie was not sure that this would even come to pass, he wanted to bring it to the attention of the tribunal in case his firm did decide to make such a request. They will be discussing it with the opposing counsel and intended to reach a decision soon.
At that point, Middleton did a recap of all the matters discussed that day and the resolutions that had been arrived at, which was acknowledged and agreed to as accurate by the legal counsel. With no further issues or discussion, he thanked the lawyers and everyone on the call and adjourned the CMC. As previously stated, the hearing between NPFAQ and Freymond Lumber will convene virtually at 10 a.m. on Sept. 20.
Michael Riley, Local Journalism Initiative Reporter, The Bancroft Times