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Court upholds OMB ruling in favour of Simcoe County

Posted June 27, 2018

A gravel pit proponent in the community of Dalton, City of Kawartha Lakes has lost a divisional court application seeking leave to appeal an OMB decision that found in favour of Simcoe County's ability to assess "future maintenance or contribute to the costs of a 16 km haul route" that falls within its jurisdiction, for the duration of the proposed quarry's operation.

The application by Giofam Sebright Quarry seeking a motion for leave to appeal, was heard in Superiour Court, March 22, with a ruling posted this morning.

Giofam seeks to extract 200,000 tonnes of granite and related uses such as crushing, screening and storage of aggregate on a subject site of 424.2 ha in total area located in the former Township of Dalton, adjacent to the southwest corner of Queen Elizabeth II Wildlands Provincial Park, approximately six kilometers east of the community of Sebright, and directly north of the intersection of Monck Road (also known as Kawartha Lakes Road 45) and Lake Dalrymple Road.

A section of its haul route crosses into Simcoe County in the Ramara Township area, and as such, the sought compensation to cover repairs on its roads. Giofam objected and appealed to the OMB, which heard the case in March 2017.

The OMB ruled the County "has jurisdiction and authority to direct a licensee to either undertake maintenance and repairs directly or to contribute to such maintenance and repair costs, and that this obligation is to remain in place for the aggregate operation’s lifetime; in these circumstances, it would be appropriate and in the public interest to ensure that Giofam contributes to the Haul Route's maintenance and repair.

The OMB left it to the parties to determine the amount and timing of payment, and failing resolution, could be settled by the Board.

Giofam appealed arguing the "Decision contains numerous errors that provide more than sufficient reason to doubt its correctness. It argues the Decision raises questions of law of sufficient importance to merit the Divisional Court's attention" while "Simcoe submits that the OMB made no error in its findings and accordingly seeks a dismissal of Giofam's leave to appeal."

The Court ruling noted Giofam was required to meet three conditions for success:
1. a pure question of law; this cannot be a question of fact or mixed fact and law;
2. a reason to doubt the OMB Decision’s reasonableness, where the question - as in this case - involves the OMB's special expertise; and
3. sufficient general or public importance to merit the Divisional Court’s attention.

Justice Alexander Sosna ruled Giofam failed to meet the first two criteria.

The OMBs decision to withhold Giofam's licence as above involved a thorough and balanced assessment of the operative statutes, acts, and regulations with which it has specific expertise and is accorded deference. Policy papers also familiar to the OMB were reviewed to help make harmonious its interpretation of the different statutes and provide insight into the legislative objective of getting a private operator's product to market over infrastructure that Simcoe’s taxpayers are required to maintain," according to Justice Sosna. "The Decision clearly falls within a range of possible, acceptable outcomes, which are defensible in respect of facts and law...... Lastly, although Giofam has not met its onus to establish that the Decision raises either a pure question of law or a serious doubt to its reasonableness, this matter's importance goes beyond the parties in this case and extends to operators of pits and quarries and municipalities whose roads are used to move products to market. Accordingly, I find that the third criteria for leave to appeal is met. Since all three criteria must be established, but I found Giofam did not meet the first two, and for all the above reasons, Giofam's application for leave to appeal is dismissed."

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All stories, unless otherwise noted,
by Tony Veltri