Action Champlain’s motion to appeal a ruling by the Ontario Local Planning Appeal Tribunal (LPAT) was heard in Ontario Divisional court on Monday, June 21.

On April 12, the LPAT ruled against Action Champlain’s appeal of a 2017 decision by the United Counties of Prescott and Russell (UCPR) council, which approved an Official Plan Amendment to permit Colacem Canada to build a cement production plant next to its existing quarry on County Road 17 near L’Orignal. On April 12, the LPAT also ruled in favour of Colacem’s appeal of a 2017 decision by Champlain Township council which rejected a Zoning By-Law Amendment that was required for the construction of the cement plant.

On April 12, lawyers representing Action Champlain and Colacem each presented arguments before Justice Patrick Boucher explaining why the appeal should or should not be accepted.

“The LPAT is not the end all and be all,” remarked Ronald Caza, one of the lawyers representing Action Champlain.

Caza said appealing the case to court would address issues of public importance beyond what the LPAT could address within its mandate.

“It’s an important question of judicial interpretation.”

Those issues include the potential environmental and health impacts of the cement plant.

“If the evidence is controversial, the court must expand,” said Caza.

Lawyer Gabriel Poliquin, who also represents Action Champlain, said that while the LPAT interpreted the Provincial Policy Statement (PPS) on land use planning, other policies such as those regulating aggregate resources and the environment also must be addressed in reaching a conclusion.

“It’s not an accessory, it’s part of it.”

Poliquin said it makes no sense that the quarry and plant were not considered as linked to each other during the LPAT process, and the process of approvals from various government departments.

“It’s a question of jurisdiction,” Poliquin added, referring to the Aggregate Resources Act, which is the responsibility of the Ministry of Natural Resources, and the Environmental Protection Act, which is the responsibility of the Ministry of the Environment, Conservation, and Parks (MECP).

Chris Barnett, the lawyer representing Colacem, spoke after Caza and Poliquin. He said there was no reason to doubt how the LPAT interpreted the PPS and that the objections with the LPAT ruling being raised by Action Champlain were not real questions of actual law.

“We shouldn’t be focusing on individual policies and we certainly shouldn’t be focusing on individual words; we should be looking at the policies as a whole.”

Barnett said the PPS states that aggregate resource facilities should be located as close as possible to their markets, which is applicable in this example because the quarry is next to the site of the proposed cement plant. He also noted that the Aggregate Resources Act only regulates the boundaries of the property where a quarry or pit is located.

Barnett said the LPAT ruling indicated that the cement plant project would serve a long-term public interest and that the LPAT’s findings were based on facts. He warned that Action Champlain’s representatives were “mixing and matching” references to various statutes.

Referring to the UCPR Official Plan, Barnett said the proposed cement plant conforms with the policy as identified by Director of Planning and Forestry Louis Prévost in his 2017 report which recommended approval by UCPR council. Barnett said the Official Plan allows for additional forms of buffering to be added to a site if necessary, so noise and dust emissions can be reduced.

“If you do have adverse effects, they must be minimized and mitigated.”

Justice Boucher asked if the potential adverse effects of the combined operations of the quarry and cement plant are the responsibility of the MECP and not the LPAT.

“The fact of the matter is that MECP has issued compliance approvals for the cement plant, full stop,” Barnett responded, adding the tribunal has no jurisdiction over ministry decisions.

The UCPR’s lawyer, Greg Meeds, did not speak during the session. He instead yielded his time to Barnett.

Following the presentations of Caza, Poliquin, and Barnett, Boucher did not instantly decide if the motion to appeal would be accepted.

“I need to consider the observations and evidence that has been presented,” said Boucher, before adjourning.