The second LPAT Case Management Conference between No Place for a Quarry and Freymond Lumber was held on Feb. 5 at 10 a.m. virtually on GoToMeeting. Legal counsel for both parties and the CMC chair discussed: whether there were any other people that wanted to seek party or participant status at the hearings in September the continuing efforts to update the procedural order with deadlines to narrow down and finalize the issues list the specific actions that the objectors in the Aggregate Resources Act hearing would take the prospect of both parties reaching a settlement through an LPAT facilitated mediation finalizing any other matters that may need to be addressed.
After discussing the aforementioned issues, all present agreed that a third CMC was necessary, which was booked for March 25 at 10 a.m.
This second CMC was chaired by Hugh Wilkins, and it is LPAT case number PL 190595. 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 directions to all parties with regard to information disclosure. Taking over from the Ontario Municipal Board in 2018, the LPAT is a tribunal that adjudicates cases in relation to a variety of land use matters, heritage conservation and municipal governance.
The legal counsel present on Feb. 5 were John Buhlman and Chantal deSereville from WeirFoulds LLP in Toronto representing Freymond Lumber, Eric Gillespie, Kathleen Coulter and articling student Yasmeen Peer from Eric K. Gillespie Professional Corporation Barristers and Solicitors in Toronto acting on behalf of No Place for A Quarry and Wayne Fairbrother from the Templeman law firm in Belleville, standing in for Jennifer Savini (who had a conflicting appointment that day), representing Hastings County.
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 permitted Freymond Lumber to proceed with the quarry under the Ontario Planning Act (LPAT file no. PL 190595) and also regarding the Class A aggregate licence granted to Freymond Lumber for the removal of aggregate under section 11(5) of the Aggregate Resources Act (LPAT file no. MM190020).
Freymond Lumber has been working to get this quarry operational for almost a decade. They have had numerous peer-reviewed technical studies done, which they allege prove that the negative effects NPFAQ are concerned with will be minimal. They have already gotten regulatory approvals from Faraday Township and Hastings County to move forward with the quarry.
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.
At the Feb. 5 CMC, Wilkins began by welcoming everyone and clarifying that all parties wanted the Planning Act and the A.R.A issues heard together in the same hearing, which they replied that they did. Wilkins also verified that there were five participants that intended to take part in both hearings, who were granted this status at the last CMC; Marie Martin, Judy Musclow, Barry Wannamaker, John O’Donnell and Perry Best.
Any actions that that objectors in the A.R.A hearing intended to take was next on the agenda. Buhlman asked how these objectors intend to participate in the hearing.
“I think we need to clarify that so that the time set aside for the hearing is adequate. If all 26 objectors intend to call evidence, we need to consider dates. I think it would be important to resolve that,” he says.
Wilkins explained the difference between a party and a participant in these hearings for the objectors and everyone present. A party fully engages in the process, can call and cross examine witnesses, bring motions, make submissions, request a review of the tribunal’s decision and can request or be exposed to costs. A participant has interest in the matter, but makes a written submission which is considered by the tribunal and their role is essentially limited to that. He clarified for all that the objectors in the A.R.A. hearing had party status and therefore had full rights as a party.
Wilkins asked if anybody on the call was an objector at the A.R.A. hearing, and if so, if they had any questions about their role in the hearing. Peter Wagner and Alysha Dominico spoke up and identified as objectors. He explained that the hearing will hear evidence from the objectors and the applicant regarding whether the licence should be granted and then the tribunal will make a decision whether the Minister can issue the licence and the tribunal can set out conditions on how the licence should be applied.
“That’s essentially how the A.R.A hearing proceeds. Therefore Mr. Wagner and the other objectors have the ability to produce evidence and to make submissions at the hearing,” he says.
While Wagner and Dominico said they didn’t have plans to present evidence at the A.R.A hearing at that time, the other objectors not in on the CMC call that day may decide to do so. Wilkins wanted to ensure that the objectors understood their party status and their rights. He explained that there were multiple matters the tribunal would consider at the A.R.A hearing, under section 12 of the A.R.A, and that some will be addressed at the Planning Act hearing and others will not. He wanted to make sure that the objectors weren’t under the impression that all their concerns would be addressed at the Planning Act hearing.
Gillespie didn’t think that would be a problem if none of the objectors actively participated, since the matter had been referred to the tribunal for adjudication, the tribunal had a positive duty to ensure that the section 12 requirements of the A.R.A. have been met.
“That puts the applicant in the position of calling evidence irrespective of whether there are any active objectors at the hearing,” he says.
Buhlman reiterated that he wanted to know if they intended to present evidence as it would impact how much time the hearing would take, and how he would organize his own witnesses and evidence. Wilkins asked the counsel to stay on after the CMC to be available if any of the objectors had any questions or needed any clarification on the A.R.A hearing and its proceedings. They agreed to do so.
At that point, Wilkins asked if anybody else present on the call wanted to seek party or participant status. Hearing nothing, he moved on.
The draft procedural order was brought up next by Wilkins, who said it would include deadlines for the submission of evidence as well as the submission of participant statements.
“But the objectors if they’re not actually participants can make submissions at the hearing and not have a deadline in the procedural order for making those submissions,” he says.
During the course of the CMC, the deadline for the submission of the issues list for NPFAQ was revealed to be Feb. 12, while the issues list for the A.R.A objectors was Feb. 26. The deadline for all the witness statements was put at May 15, while the meeting of the experts once the witness statements had been submitted was June 30. Wilkins confirmed that at the next CMC they would finish up the draft procedural order and finalize the issues list, which was agreed to by counsel.
Wilkins then broached the subject of the possibility of a settlement arrived at through tribunal facilitated mediation. Both Gillespie and Buhlman were open to that possibility. Gillespie said that all counsel were experienced with mediation and were certainly aware of that option.
“At this point, we’re happy to look at the issues list, and then look at the initial disclosure of the expert reports and the other witness statements and then use that as a basis for trying to determine if there are some, none or all of the issues that might be amenable to settlement,” he says.
Wilkins said that the more time given for the mediation to be booked and take place the better, and urged counsel to book it as soon as possible. Gillespie and Buhlman agreed to move the experts’ meeting deadline back to June 1 versus June 30, so that the whole month of June was available for a mediation session. They also requested a date be set. The date of this mediation should be finalized and revealed at the next CMC.
Wilkins then left the call for about 10 minutes, and when he returned, he had a date set for the next CMC for March 25 at 10 a.m. He confirmed the hearing date for Sept. 20, which would run weekdays for eight weeks, with the exception of the following days; Oct. 4 (LPAT monthly board meeting), Oct. 11 (Thanksgiving), Nov. 1 (LPAT monthly board meeting) and Nov. 11 (Remembrance Day). He also indicated that it was now likely that the hearing would be held virtually versus in person due to the continuing effects of COVID-19. He said that may change over the summer depending on how things go with the pandemic, but as of now, all parties should plan for a virtual hearing.
Buhlman raised another issue, asking that the venue that had been booked for the in-person hearing, the Faraday Township Community Centre, be kept until it was clear that an in-person hearing wasn’t viable. He stressed that with all the technical evidence, an in-person hearing would be preferable, but if it wasn’t viable, so be it. Everyone agreed, and Fairbrother said he would get in touch with the township to make sure the venue remained reserved until they knew for certain that the hearing would be virtual.
Because he wanted to draft the final procedural order by the next CMC, Wilkins asked counsel to send the finalized documents to the tribunal a day or two in advance, which they agreed to do. Wilkins then asked if there were any further matters to be discussed. Hearing none, he thanked everyone present and concluded the CMC, and reminded them that the next CMC was on March 25 at 10 a.m.
Michael Riley, Local Journalism Initiative Reporter, The Bancroft Times