On Oct. 27, No Place for a Quarry and Freymond Lumber had their first LPAT Case Management Conference virtually by Zoom to determine how the NPFAQ appeals process will go forward. Despite some technical glitches, and after much discussion, counsel for NPFAQ, Freymond Lumber and Hastings County agreed to an eight-week time frame for the hearing, a set date of Sept. 20, 2021 to begin the hearing, locating the hearing at the Faraday Community Centre, and confirming some of the participant status witnesses. They also agreed to have another CMC on Feb. 5 at 10 a.m. to stay on track and further settle outstanding issues like confirming further expert and lay witnesses and narrowing the list of issues in contention between the two parties before the hearing next September.
The CMC was chaired by Carmine Tucci. Benjamin Waters is the case coordinator and planner for this matter, which is numbered by LPAT at PL 190595 and MM 190020. The CMC is a mandatory event hearing that gives LPAT the chance to identify all parties and participant requests, identify and narrow down the issues that are agreed upon and give directions for information disclosure.
The LPAT is a tribunal that adjudicates cases in relation to a variety of land use matters, heritage conservation and municipal governance. It is a new appeals body for planning decisions, taking over from the Ontario Municipal Board in 2018.
After welcoming everyone present on the Zoom session, Tucci invited the legal counsel to introduce themselves. For Freymond Lumber, counsel are John Buhlman and Chantal deSereville from WeirFoulds LLP in Toronto, while the lawyers for No Place for a Quarry are Eric Gillespie and Kathleen Coulter of Eric K. Gillespie Professional Corporation Barristers and Solicitors in Toronto. Jennifer Savini from the Templeman law firm in Belleville was there as legal counsel for Hastings County.
The first order of business that morning was to agree to the order of presentation of evidence at the hearing, which Buhlman said that they had agreed to in a meeting with counsel the day before. It was agreed that Freymond Lumber would go first, followed by the county, then No Place For A Quarry would go next and Freymond Lumber would have the chance to respond.
NPFAQ is appealing to LPAT regarding the Class A aggregate licence that was granted to Freymond Lumber under the Aggregate Resources Act and an official plan amendment by Hastings County that permitted Freymond Lumber to proceed with the quarry under the Ontario Planning Act.
NPFAQ have had a noise impact study and an economic study done to support their views that the quarry will have negative affects in those areas. They also allege that there will be deleterious effects to the environment, tourism and road safety, and are opposed to having a quarry so close to Bancroft and to permanent homes, cottages and businesses.
Freymond Lumber has been working to get this quarry operational for almost a decade. They have had numerous peer reviewed technical studies done to prove that the negative effects that NPFAQ is concerned with will be minimal, and have already received regulatory approvals from Faraday Township and Hastings County to move forward with the quarry.
With regard to the NPFAQ appeals process encompassing both the ARA and the OPA, Buhlman suggested that the two matters be heard at the same time.
“A lot of the evidence is common evidence. We didn’t discuss this yesterday but I believe we’re all operating on the basis that they would be heard together,” says Buhlman, “If you look at the issues list it is quite lengthy.”
Buhlman explained that under the ARA there are a number of technical reports to support a licence and he’d be calling about 12 to 14 witnesses to testify on these reports and on issues related to the appeal under the OPA.
Gillespie agreed that in principle they agree it will be a lengthy hearing.
“Eight weeks will hopefully be enough if nothing changes. But I did think afterward that the ARA part of it might affect that timing and make it even a bit longer. However, we will work cooperatively with counsel to reduce the issues list and shorten the hearing,” he says.
Gillespie agreed that the hearing will include quite a bit of detailed scientific and technical evidence and there will be a need to allow for appropriate time for meetings of experts and potentially mediation between the parties ending up with the effect of shortening the hearing.
“We talked in preliminary terms about our client providing expert reports sometime in February, responses to those reports sometime in March, then allowing for some time between the parties for meetings of experts and that sort of thing, that put us potentially at a hearing date in the summer,” he says.
Gillespie went on to say that nobody really had a summer this year due to COVID-19, and that a summer hearing in 2021, in addition to depriving all involved in the hearing of another summer could also adversely affect Bancroft’s usually robust tourist season. There could also be an impact on community participation in the hearing process.
“Our respectful submission today is that we try to obtain that block of dates sometime after Labour Day of 2021,” he says.
Buhlman had no problem with the suggested timing of the hearing.
“I don’t have a problem with looking at an early September date. I would prefer earlier, but two things suggest otherwise. One is given the very technical nature of the hearing I think doing it remotely would be difficult. I would be concerned if we started in the spring, we would not have in person hearings yet. And given the very technical nature of the hearing it would be difficult to do it remotely. Although I would like to start earlier than that, I’m not sure it’s practical to start before Labour Day,” he says.
With those issues in mind, Tucci checked his schedule for an eight-week space and returned with a date of Sept. 20 at 10 a.m. to begin the hearing, which would conclude on Nov. 12. It would convene every weekday with the exception of four days; Oct. 4 (LSAT monthly board meeting), Oct. 11 (Thanksgiving), Nov. 1 (LSAT monthly board meeting) and Nov. 11 (Remembrance Day).
The other issue was coming up with a venue for the hearing, with Gillespie offering that a location closer to Bancroft was preferable to his client, as it would allow more community involvement in the proceedings, which Buhlman and Savini agreed to.
Savini looked into this with Dawn Switzer, the clerk for Faraday Township, at Tucci’s request. They were able to secure the Faraday Township Community Centre for those dates, contingent on what the COVID-19 restrictions will be like later on next year.
Next up was a discussion about individuals seeking participant or party status within the hearing. A person with party status would be fully involved in the proceedings, including filing submissions and presenting submissions. They may also request costs, adjournments or a review of the decision. An individual with participant status has a more limited role and do not fully take part in the proceedings and may only provide written submissions on behalf of either side.
“There are some individuals who are seeking either participant or party status. If we’re ready to move forward on that I’d like to do so. Who do we have that has sought out participant status?” says Tucci.
Gillespie replied that while some people had submitted written testimony to the tribunal already, there were a significant number of people had contacted his client to participate in the hearing, but wanted to testify verbally versus providing a written statement.
Buhlman spoke up, saying that they had discussed this the day before and it was his understanding that these participants would be providing written statements to the hearing, not testifying. He said that if they did the latter, it would take up more time in the hearing.
Savini concurred with Buhlman, saying that she thought that participants should express their concerns and testimony through the traditional written statement, and that other participants from the other side may not be able to be afforded the same opportunity given that the hearing was already going to be quite long. Tucci agreed with Savini and Buhlman.
“Mr. Gillespie, it is usually the practice of the tribunal that if we do grant participant status, the way to participate is through written submission that we need to receive prior to the hearing and then we take that information and we incorporate it into our decision,” he says.
Tucci went on to tell Gillespie that if any participants wanted to testify at the hearing, they would have to have party status and conform to the rules and regulations that such a status would impart, such as being cross examined. He stressed that Gillespie would need to make them fully aware of this. Gillespie replied that he would do so for those witnesses who intended to testify, such as some of the management of the Grail Springs Retreat Centre for Well Being.
Gillespie suggested working cooperatively with opposing counsel in the coming weeks to resolve this issue regarding status, rather than complicating that day’s CMC and stated the fundamental reason they’d offered it in the first place was to make the hearing more efficient.
There were five participant witnesses confirmed so far, and Tucci granted them participant status with no argument by either side. Tucci then said that any more potential participant witnesses would have ample time to submit applications and forms to LPAT in the coming months before the next CMC.
Both sides hope to narrow down the issues list by the middle of December. Once that is done, and after further discussion between Gillespie, Buhlman and Savini, they are hopeful that an exchange of definitive expert witness lists can be achieved. The exact date on this latter item was deferred until said discussions can take place.
Buhlman suggested another CMC may be in order to keep everything on track. Tucci thought that was a great idea, due to the magnitude and the complexity of the case, and after checking his schedule, set up a second CMC on Feb. 5 at 10 a.m. All parties agreed to this date.
Buhlman asked again about the time frame for additional people to be added on as participants to the hearing. Tucci said that they could bring that up again at the Feb. 5 CMC, as well as any other issues and hopefully a reduced issues list. He then asked if there was anything else to be discussed, to which all parties answered in the negative. Tucci then concluded the session.
“I hope that both parties can update their draft procedural order and have it sent into our case management worker, and if there are any additional issues please kindly refer them to Mr. Waters, and he will refer all information to me. I wish everyone a safe winter and be well.”
At that point, the proceedings were adjourned, until the next CMC convenes on Feb. 5 at 10 a.m.
Michael Riley, Local Journalism Initiative Reporter, The Bancroft Times