[1]          This Decision arises from the third Case Management Conference (“CMC”) convened on the appeal filed by 1142059 Ontario Limited (“Appellant”) against the Township of Ashfield-Colborne-Wawanosh (“Township”) for the Township’s failure to make a decision within the prescribed period of time on a Zoning By-Law Amendment application (“ZBA”) pursuant to section 34(11) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) respecting the property municipally known as Concession 2 Eastern Division, Part Lots 14 and 15, RP 22R6090 Part 1 RP 22R6857 Parts 1 to 3 (“Subject Property”).  The effect of the ZBA is to permit a proposed aggregate operation on the Subject Property.

[2]         At the second CMC held September 25, 2023, the Tribunal determined that it was reasonable to schedule a merit hearing, giving the Parties approximately one year from the then scheduled date to review the results of the Aggregate Resources Act, R.S.O. 1990, c. A.8 (“ARA”) matter and determine if consolidation, or an order for a hearing together along with the present appeal should be sought, and/or whether revisions to the Procedural Order (“PO”) and Issues List (“IL”) were required.

[3]         The ARA matter has not yet been referred to the Tribunal.  A Motion for adjournment was brought by Friends of Ball’s Bridge and Little Lakes (“FOBBLL”).  The Parties came to a consensus on the requested adjournment and the scheduled merit hearing was thereby converted to a second CMC for the purpose of a status update on the appeal, the ARA matter, prospects of mediation and the required next steps to progress the matter forward.

[4]         Ultimately, as the referral of the ARA remains pending and it appeared the Parties were in agreement on seeking consolidation, the Tribunal scheduled this third CMC.  Mr. Kemerer was to advise the Case Coordinator once the ARA matter is referred to ensure that the first CMC on that matter is scheduled to be heard with the third CMC on the present ZBA appeal.

[5]         Further, the Tribunal ordered that, should the ARA referral occur in November 2023, and it was determined that there are no drastic changes to the IL, the Appellant could request hearing dates in advance of this third CMC.

[6]         At the second CMC, the Tribunal ordered a revised draft PO and IL to be filed by the Parties on or before Friday, January 12, 2024.

[7]         At the commencement of the third CMC, Mr. Kemerer provided the Tribunal with a status update on the ARA referral, which has not yet occurred, and which he had been advised by the Ministry of Natural Resources and Forestry (“MNRF”), would be issued by mid-October 2023.

[8]         After receiving correspondence from the MNRF that Wawanosh First Nation was owed a duty to consult, Mr. Kemerer advised that the MNRF has now unexpectedly added Walpole Island First Nation, Aamjiwnaang First Nation and Oneida Nation of the Thames to its duty to consult list, two years after providing his client with firm direction on which Indigenous Nations were covered by its duty to consult, thereby affecting the ARA application for a significant and undetermined period of time.  He advised he has a meeting scheduled in February 2024 with Wawanosh First Nation.  However, Walpole Island First Nation, Aamjiwnaang First Nation and Oneida Nation of the Thames have not responded.

[9]         Mr. Kemerer reiterated the prejudice to this client by this further delay of another year or two to satisfy this further duty to consult given that his client filed this appeal in June 2022.  He indicated his client has invested a huge amount of costs for experts and planners and he does not want to have those costs thrown away.  Further, he reminded the Tribunal of its own mandate that hearings should proceed in a fair, just and expeditious resolution of the merits.

[10]      In an email sent to the Tribunal December 21, 2023, Mr. Kemerer indicated that since consolidation is not imminent, and the issues have now been set out in the PO, he is requesting the Tribunal schedule a 10-day merit hearing of the ZBA appeal.

[11]      Mr. Donnelly interjected to object that Mr. Kemerer was seeking relief from the Tribunal through his submissions in the absence of MNRF-deemed Interested Parties in this proceeding – specifically, Walpole Island First Nation, Aamjiwnaang First Nation, and Oneida Nation of the Thames, as they are de facto part of this process and have not been given notice of today’s CMC.  Mr. Donnelly asserted it was unjust and unfair to receive submissions, make a determination as to merit hearing dates, and amending a PO and IL without the input of the First Nations.

[12]      The Tribunal queried Counsel regarding the Administrative Notice provision; that the Municipality obviously advertised the ZBA, with no response from First Nations to become engaged.  Mr. Donnelly agreed that the Administrative Notice provision indicates “located within 1 km of a Reserve of First Nation”.  However, the fact remains that the MNRF has determined these three additional First Nations have an interest and should be notified.

[13]      Mr. Kemerer submitted that there is no statutory requirement to notify the newly added three First Nations as potentially having an interest in this matter; that the duty to consult within the ARA process is not the same duty to consult on matters under the Act.  Further, Mr. Kemerer objected that Mr. Donnelly raises this issue on the eve of this third CMC knowing he has had notice since December 21, 2023, and could have brought a Motion, and did not.

[14]      Mr. Kemerer noted the Objectors in the ARA matter are represented by being members of FOBBLL; therefore, there is no prejudice to the public interest by continuing with this CMC to set merit hearing dates on the ZBA appeal.

[15]      Mr. Kemerer indicated there is currently a PO and IL before the Tribunal and that the ZBA is “ready to go”.

[16]      Mr. van Bodegom, Counsel for the Township, agreed that there was no statutory entitlement jurisprudence that would require the three First Nations to have notice before this matter could proceed and does not consider it to be a roadblock at this third CMC.

[17]      Mr. van Bodegom indicated that while the Township is sympathetic to the problems facing delays, the reality is a consolidated hearing is more cost efficient for all.  He acknowledges there is delay but not one that causes prejudice, as currently no aggregate is being extracted at the present time.

[18]      In advancing their respective positions, Mr. Kemerer and Mr. Donnelly quoted relevant jurisprudence with regard to consolidation matters.

[19]      Mr. Donnelly commenced his submissions by quoting from the first CMC: “…Tribunal agrees with Mr. Donnelly the two matters merit consolidation and would strongly encourage the Appellant and the Township take the necessary steps to have this happen”.

[20]      Mr. Donnelly suggests Mr. Kemerer could have, at that stage, raised an argument that this matter did not merit consolidation, of which he did not. 

[21]      Mr. Donnelly indicated at the second CMC that the adjournment was consented to by all Parties.  He suggested Mr. Kemerer could have appealed the order or brought a motion, which he did not.

[22]      Mr. Donnelly suggested that the purpose of this third CMC was to contemplate setting dates for a consolidated hearing. 

[23]      Mr. Donnelly vehemently disagreed with Mr. Kemerer’s assertion that there is a PO and IL currently before the Tribunal.  He indicated his experts prepared for a consolidated hearing in this matter and not a division of evidence that separates the ZBA appeal from the ARA issues as the evidence is different.

[24]      Mr. Donnelly urges this Tribunal to deny Mr. Kemerer’s request to set hearing dates on the ZBA appeal.  In the alternative, he asks the Tribunal to set a motion hearing date with a properly constituted PO and IL.

[25]      In deciding the issues at this third CMC, the Tribunal considers inter alia the recommendation by the Tribunal Member during the first CMC:

[26]      This Tribunal heard from Mr. Kemerer that the ARA matter remains pending despite his client’s application remaining outstanding since June of 2022.  He urged the Tribunal to proceed with the ZBA appeal separately from the ARA matter, to further the matter along.

[27]      Mr. Donnelly and Mr. van Bodegom request the Tribunal proceed with a consolidated hearing of the ARA and the ZBA matter as it avoids duplicitous proceedings of experts having to testify twice, with both Counsel opining it is a more cost-effective process.

[28]      The Tribunal has considered that the potential successful results of a ZBA proceeding without ARA approval has the latent result of leaving the subject lands rezoned without a permit.

[29]      The Tribunal disagrees with Mr. Donnelly’s assertion that it is unjust and unfair to proceed with this third CMC without notice to Walpole Island First Nation, Aamjiwnaang First Nation, and Oneida Nation of the Thames.

[30]      The Tribunal is of the view that this third CMC is properly constituted.

[31]      THE TRIBUNAL ORDERS that: