The fourth Case Management Conference between No Place for a Quarry and Freymond Lumber regarding NPFAQ’s opposition to a proposed quarry on the Freymond Lumber property in Faraday Township, took place virtually on May 18 at 10 a.m. In addition to exploring the possibility of mediation and looking into setting a date for two mediation sessions in late June or early July, counsel resolved to further narrow the issues list in the coming months, to ensure that all witness statements were filed by end of day on May 18, and to update LPAT on their status by contacting case coordinator Benjamin Waters after their mediation sessions over the summer. At that point, if a further CMC or teleconference is necessary, it will be arranged after the mediation sessions but before the Sept. 20 hearing.
The fourth CMC for LPAT case number PL 190595 is between NPFAQ and Freymond Lumber regarding the former’s opposition to a proposed quarry on the latter’s property in Faraday Township. The chair of the meeting was LPAT member Shannon Braun.
LPAT is a tribunal that adjudicates cases in relation to a variety of land use matters, heritage conservation and municipal governance. Before 2018, it was the Ontario Municipal Board. The CMC is a mandatory hearing that provides LPAT with the chance to identify all party and participant requests, identify and narrow down the issues that are agreed on and give direction to all parties with regard to disclosure of information.
NPFAQ is appealing to LPAT 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.
In addition to LPAT member Braun, Eric Gillespie, new associate lawyer Yasmeen Peer and articling student Kristian Ferreira from Eric K. Gillespie Professional Corporation Barristers and Solicitors represented NPFAQ, Alysha Domenico and James Cunningham, Jennifer Savini from Templeman LLP represented Hastings County, and John Buhlman and Chantal deSereville from WeirFoulds LLP represented Freymond Lumber.
Braun noted that a lot of the heavy lifting had been done thus far in the last three CMCs to prepare for the hearing on Sept. 20, including getting a procedural order drafted and in place. She asked counsel to provide any updates on possible mediation between NPFAQ and Freymond Lumber. Buhlman said they had met by Zoom on May 17 to discuss whether mediation was viable and had agreed that it was. They were waiting to hear back from the mediators on two non-consecutive day mediation sessions in late June or early July that synchronizes with all their schedules.
Braun next asked about the exchange of witness statements and asked if all the witness statements had been submitted as of the deadline May 17. Buhlman replied that most had been, but there were a couple still outstanding, one from the NPFAQ planner. As the deadline had passed, Buhlman said he would object to the witness being called.
Buhlman also pointed out the issues list, which was still lengthy despite attempts to narrow it over the past months. According to the updated procedural order and issues list, which is dated April 21, 2021, the list has 20 issues on it, which cover ARA issues, Planning Act issues and Hastings County Official Plan Issues.
Because of the way the issues list was drafted, Buhlman said it would be a lengthy hearing and with 12 witnesses, he questioned whether he would need to lead them all through extensive evidence or just satisfy the tribunal under the ARA. He reiterated that it would be helpful to narrow down the issues list and that the upcoming experts’ meeting may accomplish that to some degree.
Braun asked Gillespie his thoughts with respect to the issues list. He replied that he had just received all the parties’ witness statements, but was surprised to hear there’s a concern about the planner’s witness statement from Buhlman.
“I’ll have to look into that, given that we’ve heard there’s going to be an objection. I’ll just point out that the next relevant date is response statements and that’s not due for two months. So, I’d just like to hear what the prejudice is? Why are we having a discussion about the planner?” he says.
Buhlman replied that they had dates set all along and in his view, NPFAQ with one exception has not complied with them. He reiterated that the procedural order set the deadline for witness statements at May 17.
“The appellant and the parties have had all the Freymond Lumber reports for years. So, why is a witness statement not filed on time? The reports have been available, the tribunal set out a procedural order. If everything is delayed, the hearing will be delayed. The procedural order is there for a reason and it shouldn’t be ignored,” he says.
Bulhman went on to say there was a prejudice because the experts are supposed to meet in the next two weeks and how can they do so if there’s no witness, and they don’t know what the issues are and what they’re supposed to be talking about.
Braun asked Gillespie why the witness statement wasn’t filed on time and if he had anticipated a delay why he didn’t reach out to opposing counsel and let them know there would be a delay and ask for an extension.
Gillespie replied that he had been occupied all day May 17 on another hearing that went into overtime. At that point, he wasn’t sure what the reason was for the delay but he would find out, and that the missing material would be submitted by the end of day. Braun confirmed that Buhlman and Savini were alright with this arrangement, which they were. Savini reiterated Buhlman’s concerns about the delay, however.
“Planning is one of the key components of the county’s issue and case. So, it’s critical that we have that in, especially given the tight timeframes for the experts’ meeting,” she says.
Braun pointed out that the upcoming experts’ meeting on or before June 1 and the mediation sessions may go a long way to further narrowing down the issues list, to which all counsel agreed, saying it could also shorten the hearing.
Gillespie even said that they had advised opposing counsel that one or more of the issues can come off the list already, so some progress had been made, but more was likely.
Braun said that hopefully that would be the case, and that the mediation may also shorten the list or lead to a complete resolution. She suggested the parties contact the tribunal post mediation and reach out to Waters who can determine if another CMC or teleconference would be required. She asked counsel if this made sense to them going forward, which it did.
Braun returned to an outstanding issue that Buhlman had mentioned earlier. This was regarding another witness statement that had not been received; the hydrogeologist’s witness statement from Cunningham. At the previous CMC back in March, Cunningham had asked to be an ARA party due to some hydrogeological concerns he had about the proposed quarry and had contracted his own hydrogeologist to do a separate study. He has a property about two kilometres from the proposed quarry, and is worried that a spring on his property may be adversely affected by the proposed quarry, affecting the inflow to the lake his property fronts on. While Buhlman and Savini had objected to his addition at that late date, Hugh Wilkins, the LPAT member chairing the last CMC agreed to add Cunningham on as a party so LPAT could make a more fulsome decision with all the facts available.
Gillespie replied that they should have gotten Cunningham’s hydrogeologist, Chris Helmer’s witness statement already. If not, he said he would ensure it was filed by end of day with the outstanding planner’s witness statement, to which all opposing counsel agreed.
Braun told the meeting that they’d just leave the next hearing event open-ended, aside from the Sept. 20 hearing itself. She also queried Savini about the Faraday Community Centre, which was being held for a possible in-person hearing, if the COVID-19 situation makes this viable. Braun thought a video hearing was likely with the way things were going, but things could change by September. She wanted to know if the continued hold was alright with the township. Savini thought it was but would get in touch with LPAT if that changed.
Braun then reiterated that the counsel should contact Waters post mediation to provide a status update on the mediation, and at that point, they should also know better whether it would be a video hearing or an in-person hearing.
Braun asked if there were other outstanding procedural matters that needed to be discussed. Buhlman asked if Gillespie could submit a list of all the witness statements, they should have so they can double check if they have them all. Gillespie said he would do this.
Braun wondered if technical issues had possibly occurred with some of the submissions of witness statements with regard to any missing material, and advised everyone submitting to LPAT that they should ensure they that get a confirmation from LPAT so they know that the document was received. Gillespie informed Braun that his firm had been helping some of the objectors file their witness statements to LPAT, as some of them were unfamiliar with all the procedures, and consequently wouldn’t have gotten a confirmation. However, he vowed to work with them further to ensure they could keep in the loop with regard to submission of documents and materials.
Braun thanked Gillespie for clarifying that and for helping out some of the objectors in the process, and said they should reach out to Gillespie if needed and he will follow up with Savini and Buhlman to ensure everything was filed correctly.
“So, Mr. Gillespie we have your undertaking as well with respect to the [hydrogeologist] Chris Helmer witness statement and the witness statement of the planner, and so with that, I don’t think I can be of any more help,” she says. “Thanks very much everybody, and have a great day!”
Michael Riley, Local Journalism Initiative Reporter, The Bancroft Times