) ) LEMPIALA SAND & GRAVEL LIMITED Applicant – v. –, 2023 ONSC 5605

CITATION : Lempiala Sand & Gravel Limited v. Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry), 2023 ONSC 5605 DIVISIONAL COURT FILE NO.: 411/22 DATE: 20231012 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lococo, Matheson and Nishikawa JJ. BETWEEN: ) ) LEMPIALA SAND & GRAVEL LIMITED Applicant – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF NORTHERN DEVELOPMENT, MINES, NATURAL RESOURCES AND FORESTRY Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) Marc McAree and Alessia Petricone- Westwood , for the Applicant Michael J.

Sims , for the Respondent ) ) HEARD at Toronto: September 28, 2023, by video conference REASONS FOR JUDGMENT R. A. LOCOCO J. I. Introduction [ 1 ] The applicant Lempiala Sand & Gravel Limited (“Lempiala”) brings an application for judicial review of the reconsideration decision dated June 23, 2022 (the “Reconsideration Decision”) of the respondent His Majesty the King in Right of Ontario as Represented by the Ministry of Northern Development, Mines, Natural Resources and Forestry (the “Ministry”).

The judicial review application arises from applications to the Ministry for a permit to excavate aggregate on Crown property. [ 2 ] Lempiala and its competitor Milne Aggregates Inc. (“Milne”) are both in the business of operating pits and quarries. Both companies seek to excavate aggregate from the same Crown property northwest of Thunder Bay, known as the Fowler Pit. To do so requires an aggregate permit from the Ministry under the Aggregate Resources Act , R.S.O. 1990, c. A.8 (the “ ARA ”). [ 3 ] Milne and Lempiala each made an application to the Ministry for an aggregate permit for the Fowler Pit.

The Ministry deals with aggregate permit applications on a first come, first served basis. The Ministry declined to consider Lempiala’s aggregate permit application on the basis that the Ministry had already received and was considering a complete application from Milne. [ 4 ] The application before this court is Lempiala’s second judicial review application arising from these aggregate permit applications.

In its first judicial review application, Lempiala sought review of the Ministry’s decision dated May 16, 2018 (the “Initial Decision”), in which the Ministry accepted as complete Milne’s aggregate permit application. [ 5 ] In Lempiala Sand & Gravel Ltd. v. Ontario (Ministry of Natural Resources and Forestry) , 2022 ONSC 248 (Div. Ct.) (the “JR-1 Decision”), the Divisional Court quashed the Initial Decision and directed the Ministry to reconsider the matter in accordance with the court’s ruling.

In doing so, the court dismissed Lempiala’s request for an order in the nature of mandamus to direct the Ministry to cease considering Milne’s aggregate permit application and consider Lempliala’s application instead. [ 6 ] In its current judicial review application, Lempiala seeks review of the Reconsideration Decision, in which the Ministry reconsidered and affirmed the Initial Decision that accepted as complete Milne’s aggregate permit application.

[ 7 ] Lempiala challenges the reasonableness of the Reconsideration Decision, arguing that the Ministry unreasonably justified acceptance of Milne’ aggregate permit application as complete and failed to concurrently reconsider Lempiala’s application to determine which application was complete first. Among other things, Lempiala seeks an order to quash the Reconsideration Decision and remit the matter to the Ministry for a second reconsideration in accordance with the court’s decision. [ 8 ] For the reasons that follow, I would dismiss Lempiala’s judicial review application. II.

Factual background [ 9 ] The parties agree that the Divisional Court accurately set out the factual background of this matter in the JR-1 Decision. Certain aspects of the factual background are referred to further below. [ 10 ] On August 11, 2017, a Lempiala representative submitted what it called a “preliminary” aggregate permit application for the Fowler Pit, asking the Ministry to secure the site while Lempiala procured the requisite studies to complete the application process.

The Ministry replied that the site could not be secured since Lempiala had not provided a complete application and application fee: JR-1 Decision, at paras. 45-46. Lempiala does not dispute that it did not submit a complete application at that time but takes the position that is did so in July 2018, as noted further below. [ 11 ] In February 2018, Milne commenced the application process with the Ministry to obtain an aggregate permit for the Fowler Pit.

At that time, the requirements for an aggregate permit application were set out in Aggregate Resources of Ontario: Provincial Standards, Version 1.0 (the “Provincial Standards”): see O. Reg. 244/97, s. 7 ; ARA , s. 7(3) . The Provincial Standards required the applicant to “provide information” regarding enumerated items, including a

Summary Statement (which includes information relating to the water table and intended depth of extraction) and technical reports relating to the Natural Environment (addressing nearby environmental features that may be affected) and Cultural Heritage (relating to any known significant archaeological resources on the property and the site’s potential to have heritage resources). [ 12 ] The Provincial Standards provided that once the applicant submitted all required documentation for an aggregate permit application, the Ministry had 15 days to determine if the application was complete.

When an application was determined to be complete, the application would then proceed to the “Notification and Consultation” stage, an iterative process during which the Ministry may request further information from the applicant: see JR-1 Decision, at paras. 13-20. [ 13 ] The Ministry’s permit issuance process was also governed by policies developed by the Ministry (“Ministry Policies”): JR-1 Decision, at paras. 21-44. Among other things, Ministry Policies set out in detail the steps to be followed for aggregate permit applications.

For context, the acceptance of an application as complete is Step 4 of a 28-step process. Ministry Policies also include its Environmental Policy, which addresses the required contents of Natural Environment Level 1 (“NEL 1”) reports: at paras. 34-39. Ministry Policies also include its Cultural Heritage Policy, which addresses the required contents of the Cultural Heritage Report. Among other things, the Cultural Heritage Policy provides that (

i) the Heritage and Libraries Branch of the Ministry of Culture will initially flag the potential for heritage resources, and (ii) a Cultural Heritage Report Stage 1 may consist of a “sign-off letter” from that Ministry: at paras. 40-44. The Ministry of Culture was later incorporated into the Ministry of Tourism, Culture and Sport ("MTCS"). [ 14 ] On February 1, 2018, Milne submitted an aggregate permit application that included a

Summary Statement, an NEL 1 Report and a letter from Milne’s technical consultant regarding the site’s archaeological potential. On February 8, 2018, Milne submitted an application permit form and paid the required application fee. On February 13, 2018, Milne submitted a completed checklist using an outdated version of a form generated by MTCS entitled "Criteria for Evaluating Archaeological Potential".

Also attached was an email from MTCS, indicating that the proposed site had “low potential” for archaeological impact, based upon the information Milne had previously provided to MTCS: see JR-1 Decision, at paras. 47-56. [ 15 ] On March 8, 2018, representatives of the Ministry, Milne and Milne’s technical consultant met to discuss Milne’s application.

At that meeting, Milne provided the Ministry with the information that Milne had provided to MTCS that formed the basis for MTCS’s email submitted with Milne’s application: JR-1 Decision, at para. 59. [ 16 ] In April 2018, during further consultations between the Ministry and MTCS, MTCS advised the Ministry that Milne had completed an outdated version of the archaeological checklist and that the new version “provides more instruction and may lead to a different outcome”.

The Ministry also noted a discrepancy between the map submitted with the aggregate permit application and the map Milne provided to MTCS, relating to the application boundary: JR-1 Decision, at paras. 61-63 and 66. [ 17 ] Also, during April 2018, in response to an inquiry from Milne’s technical consultant, a Ministry representative advised that the recommended time to complete the field investigation for the NEL 1 Report was between June 1 and 15, “in order to capture the peak bird breeding window, especially for migratory species and some Species at Risk”: JR-1 Decision, at para. 65. [ 18 ] By May 2018, Ministry personnel concluded that Milne’s application was complete under the Provincial Standards.

According to the Ministry representative dealing with Milne’s application, she consulted her direct supervisor about concerns with Milne’s information relating to Cultural Heritage and was advised that the Ministry’ comments could be addressed during the Notification and Consultation stage.

Similarly, the Ministry also noted that the requirement for a site visit for the NEL 1 Report could be addressed in the Notification and Consultation stage since the requirement was found in Ministry Policies rather than in the Provincial Standards: JR-1 Decision, at para. 67. [ 19 ] By letter to Milne dated May 16, 2018 (defined above as the Initial Decision), the Ministry confirmed that after completing the technical review of Milne’s application, the Ministry determined that the information provided met the requirements of the Provincial Standards and was deemed complete as of March 23, 2018.

The latter date was 15 days after the March 8 meeting between the Ministry and Milne, during which Milne furnished the Ministry with the archeological information Milne had initially provided to MTCS. The Ministry’s letter also stated that the Ministry had a number of significant comments regarding the application, which would be provided in a separate follow up letter: JR-1 Decision, at paras. 69-70.

[ 20 ] The Ministry provided its follow up comments in a four-page letter dated May 18, 2022. With respect to archaeological issues, the letter stated that an outdated version of the archeological checklist had been used and that the map Milne provided did not include the entire site boundary applied for. Milne was advised that “a level 1 Archaeological report is required.” With respect to the NEL 1 Report, the letter stated that a field visit (site inspection) would be required in order to comply with applicable Ministry Policies: JR-1 Decision, at paras. 71-74. [ 21 ] On July 18, 2018, Lempiala filed an aggregate permit application for the Fowler Pit that included a

Summary Statement and the requisite technical reports: JR-1 Decision, at para. 75. The NEL 1 Report indicated that environmental investigations were conducted during four site visits on June 6 to 9, 2018. Lempiala submits that the material it provided at that time constituted a complete application in accordance with the Provincial Standards and Ministry Policies. [ 22 ] On August 3, 2018, Milne submitted updated technical reports and a cultural heritage report (Stage 1 Archaeological Assessment dated July 23, 2018) to the Ministry: JR-1 Decision, at para. 76.

The updated NEL 1 Report (dated August 1, 2018) indicated that a site visit was conducted on June 12, 2018. [ 23 ] On August 7, 2018, the Ministry informed Lempiala that it had already accepted an aggregate permit application for the Fowler Pit from another party and that the Ministry would not review or process Lempiala's application until it had fully considered the outstanding application: JR-1 Decision, at para. 76. [ 24 ] In a letter dated May 9, 2019, responding to correspondence from Lempiala’s counsel, the Ministry confirmed its previous advice that at the time Lempiala submitted its aggregate permit application in July 2018, the Ministry had already accepted another party’s application for the same lands (deemed complete March 23, 2018), which the Ministry was processing in accordance with the Ministry’s “policy to consider applications on a first come, first served basis.” III.

Previous judicial review application [ 25 ] On October 29, 2019, Lempiala commenced its first application for judicial review, challenging the Initial Decision. Lempiala argued that Milne’s aggregate permit application did not accord with the Provincial Standards and Ministry Policies. Therefore, the Initial Decision accepting Milne’s application as complete was unreasonable and should be quashed.

Lempiala also sought an order in the nature of mandamus , requiring the Ministry to cease consideration of Milne’s aggregate permit application and consider Lempiala’s application instead. [ 26 ] In the JR-1 Decision, the Divisional Court quashed the Initial Decision and directed the Ministry to reconsider the matter in accordance with the court’s ruling.

In doing so, the court rejected Lempiala’s argument that a complete aggregate permit application must strictly comply with Provincial Standards and Ministry Policies and accordingly must include an NEL 1 Report based on a site visit and a completed Cultural Heritage Report. The court held (at para. 99) that the correct approach was as follows: A plain reading of the relevant Provincial Standards … requires an applicant to "provide information" regarding certain enumerated items, including reports defined by Ministry Policies.

It does not necessitate that every report submitted with a complete application contain every piece of evidence or analysis as specified by the Ministry Policies. The "law" does not require such strict compliance. It merely requires that a complete application "provide information" about same. [Footnote omitted.] [ 27 ] The court also rejected the Ministry’s argument that Ministry Policies do not apply at the completeness stage of the application process and are only relevant at the Notification and Consultation Stage: JR-1 Decision, at paras. 94-96.

At paras. 100-101, the court noted the mandatory requirement in the Ministry’s Aggregate Policy, directing that reports “ must be prepared in accordance with

Section 2.0 Report Standards” (emphasis added), and stated that a “reasoned explanation” was required to depart from the requirements of the Ministry Policies: see Alexion-Pharmaceuticals Inc. v. Canada (Attorney-General) , 2021 FCA 157 , [2022] 1 F.C.R. 153, at paras. 39 , 58. [ 28 ] With respect to the NEL 1 Report, the court noted that the Ministry’s Environmental Policy required the individual writing the report to consider evidence obtained during a site visit to determine whether specified environmental features exist close to the site.

The site visit must be carried out at a time when the feature would be expected to be visible. The initial NEL 1 Report that Milne provided in February 2018 with its permit application was prepared without a site visit. The Ministry accepted that report for the purpose of determining whether Milne’s application was complete. The court held that in these circumstances (

i) Milne was required to provide a “reasoned explanation” for the departure from the Environmental Policy’s mandatory requirement, (ii) the Ministry did not provide the court with any evidence to explain why it did not deem a site visit to be necessary in the circumstances, and (iii) in the absence of evidence regarding its decision-making rationale, the Ministry’s decision was not reasonable: JR-1 Decision, at paras. 109-114. [ 29 ] At paras. 115-118, the court reached a similar conclusion with respect to the Cultural Heritage Resource Report.

The court found that the Ministry did not provide the court with evidence as to why information that included an outdated archaeological checklist was sufficient for the completeness analysis.

As a result, the court concluded that the Ministry’s decision to accept as sufficient an outdated checklist (together with an email from MTCS indicating that the likelihood of meaningful archaeological impact was low, based on information Milne provided to MTCS) was unreasonable, since the court was not able to discern the rationale for the Ministry’s decision, especially given MTCS’s statement that completion of an up-to-date checklist may yield different results. IV.

Reconsideration Decision [ 30 ] By letter dated June 23, 2022, the Ministry provided the Reconsideration Decision to Milne, with a copy to Lempiala. In the Reconsideration Decision, the Ministry indicated that it was attempting to address the items of deficiency that the court identified in the JR-1 Decision.

After doing so, the Ministry confirmed its previous conclusion that Milne’s aggregate permit application was complete as of March 23, 2018. [ 31 ] The matters that the Ministry addressed in the Reconsideration Decision related to the absence of a “reasoned explanation” for the Ministry’s departure from the mandatory requirements of Ministry Policies relating to the NEL 1 Report and the Cultural Heritage

Resource Report. [ 32 ] With respect to the NEL 1 Report, the Ministry provided the following explanation for its failure to require a site visit at the completion stage when it accepted the initial NEL 1 Report that Milne provided. Significantly, and as alluded to by the Court, the time of year that Milne’s application was received – February – meant that a site visit within the 15 day period for determining completeness would have been of no benefit to the Ministry.

A site visit is typically used to confirm the natural heritage values that are available online via the publicly accessible GeoHub, maintained by Land Information Ontario. If a site visit were undertaken in Winter, a number of species and natural heritage features would not be present or accessible at that time.

However, the information that Milne provided in its desktop review through its consultant’s NEL 1 Report, which the Ministry addressed in its Comment Letter, was sufficient to permit the Ministry to begin its review of the NEL 1 Report (which is the purpose of the Completeness Determination) while awaiting confirmation of certain values from the site visit. The Ministry also wishes to note that its original assessment for completeness of Milne’s application was not made for the purposes of choosing between a competing application from Lempiala containing an NEL 1 based on a site visit.

Lempiala’s application was not received until July 2018, well after the Ministry had determined that Milne’s application was complete. [ 33 ] With respect to the requirements relating to the Cultural Heritage Resource Report, the Ministry provided the following explanation for accepting information that included an outdated MTCS archaeological checklist.

Although Milne submitted an older version of the checklist (“Criteria for Evaluating Archaeological Potential – A Checklist for the Non- Specialist”), neither version is a stated requirement of the Provincial Standards, nor of Ministry Policy 4.01.07 (“Cultural Heritage Policy”).

Moreover, the Cultural Heritage Policy, which the Ministry understands the Court to have found applies at the completeness stage, expressly provides that the “Stage 1 report may consist of a sign-off letter from the MCL Heritage and Libraries Branch [now MTCS] confirming that there are no known significant archaeological resources on the site or low potential of the site to have heritage resources.” Milne submitted such a sign-off letter from MTCS with its February 2018 application.

While the Ministry identified that a boundary on a map of the proposed site provided to MTCS differed in one respect from the site plan submitted with its application, boundaries of proposed aggregate operations routinely shift or are adjusted based on stakeholder input during the Notification and Consultation stage, requiring an applicant to reconsider any Cultural Heritage impact.

Accordingly, the Ministry is of the view that 1) the information Milne provided was sufficient for the purposes of a completeness determination under the Provincial Standards, particularly in light of the Cultural Heritage Policy, 2) the boundary discrepancy could be dealt with during the Notification and Consultation stage, when boundary issues often arise and require reconsideration of any Cultural Heritage implications, and 3) the timing of Milne’s submission (Winter) meant that additional field work could not be done at that time, in any event, and any field work that may be needed to advance the application could be completed during the Notification and Consultation stage.

V. Jurisdiction and standard of review [ 34 ] The Divisional Court has jurisdiction to hear this judicial review application: Judicial Review Procedure Act , R.S.O. 1990, c. J.1, ss. 2 , 6(1) . [ 35 ] When a court considers the merits of an administrative decision upon judicial review, there is a presumption that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 2 S.C.R. 653, at paras. 23-25 .

The parties agree that the standard of review that applies in this case is reasonableness. [ 36 ] Reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov , at para. 13 . Reasonableness review looks to whether the decision is transparent, intelligible and justified: Vavilov , at paras. 15, 81, 86 and 94-96 .

A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov , at para. 85 .

The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov , at para. 31 . [ 37 ] As noted in paras. 85-86 of the JR-1 Decision, the Supreme Court in Vavilov , at para. 131 , addressed the role that government policies have in government decision-making, noting the government’s “justificatory burden of explaining” in its reasons its departure from “longstanding practices or established internal authority”: see also Alexion , at paras. 39, 58.

In that regard, the Supreme Court in Vavilov concluded that “a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.” [ 38 ] In Vavilov , at para. 100 , the Supreme Court also addresses the burden on the party challenging an administrative decision in the following terms: The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. VI. Issues to be determined [ 39 ] In the current judicial review application, Lempiala challenges the reasonableness of the Reconsideration Decision on the following grounds (which are addressed in more detail below): a. Unreasonable completeness analysis: The Ministry’s justification for accepting as complete Milne’s aggregate permit application

was unreasonable. b. Concurrent consideration of applications: The Ministry failed to concurrently reconsider Lempiala’s aggregate permit application together with Milne’s application to determine which one was complete first. [ 40 ] Lempiala submits that the appropriate remedy is to quash the Reconsideration Decision and remit the matter to the Ministry for a second reconsideration in accordance with the court’s decision.

Lempiala also seeks an order in the nature of mandamus , requiring the Ministry to cease processing Milne’s aggregate permit application and instead reconsider Milne’s and Lempiala’s applications concurrently to determine which application was complete first and provide reasons for that determination. VII.

Unreasonable completeness analysis [ 41 ] In the Reconsideration Decision, was the Ministry’s justification for accepting as complete Milne’s aggregate permit application unreasonable? [ 42 ] In the JR-1 Decision, the Divisional Court found that the Initial Decision relating to the Milne aggregate permit application was unreasonable in that it failed to provide a “reasoned explanation” for its departure from Ministry Policies relating to Natural Environment and Cultural Heritage.

Lempiala submits that in the Reconsideration Decision the Ministry failed to provide a reasoned explanation for its departure from both policies. The Ministry’s justification for accepting as complete Milne’s aggregate permit application was therefore unreasonable. [ 43 ] Lempiala argues that in the Reconsideration Decision, the Ministry provided an inadequate explanation for accepting an NEL 1 Report that was prepared without the site visit required by the Environmental Policy.

In its submissions, Lempiala highlighted the importance of field work to be carried out by the technical consultant in determining the matters required to be addressed in the NEL 1 Report, which Lempiala says was not adequately addressed in the Reconsideration Decision. Lempiala submits that in the absence of an adequate explanation, the Ministry should have required Milne for the completeness analysis to provide an NEL 1 Report following a site visit in order to comply with the Environmental Policy.

Milne provided such a report to the Ministry on August 3, 2018, after Lempiala had already provided the Ministry with its aggregate permit application, which Lempiala says fully complied with applicable requirements. [ 44 ] With respect to the Cultural Heritage Policy, Lempiala argues that the Ministry’s explanation for accepting an outdated MTCS archaeological checklist (together with MTCS’s email) was also inadequate.

Among other things, Lempliala challenged the Ministry’s justification that the email from MTCS was sufficient to constitute a “sign-off letter” that qualifies as a Stage 1 Cultural Heritage Report under the Cultural Heritage Policy. Lempiala submits that in the absence of an adequate explanation, the Ministry should have required Milne for the completeness analysis to provide a full Cultural Heritage Report in order to comply with the policy.

Once again, Milne provided such a report to the Ministry on August 3, 2018, after Lempiala had already provided the Ministry with its aggregate permit application which included such a report. [ 45 ] I disagree with Lempiala’s analysis. [ 46 ] In the Reconsideration Decision, the Ministry provided a reasoned explanation for the points of departure from Ministry Policies that the Divisional Court identified in the JR-1 Decision.

With respect to accepting the NEL 1 Report in the absence of a site visit, the Ministry explained that given the time of year that Milne submitted the initial NEL 1 Report (as part of its February 2018 application), a winter site visit would not have provided information about “a number of species and natural heritage feature [that] would not be present or accessible at that time.” The Ministry also explained that a “desktop review” by its technical consultant was sufficient for the completion determination to permit the Ministry to begin it substantive review of the NEL 1 Report while awaiting further information from a site visit later in the year.

The Ministry’s explanation is reasonable, affording appropriate deference to the decision maker’s expertise: Vavilov , at para. 31 . [ 47 ] With respect to the Cultural Heritage Policy, in the Reconsideration Decision, the Ministry noted the statement in the policy that the requirement for a Cultural Heritage Stage 1 report may consist of a sign-off letter from MTCS. The Ministry stated that Milne fulfilled that requirement by providing the email from MTCS providing the necessary confirmation, which was sufficient for the Ministry’s completeness determination.

The Ministry also explained that the boundary discrepancy that it had identified could be addressed at the Notification and Consultation stage, “when boundary issues often arise and require reconsideration of any Cultural Heritage implications”. The Ministry also noted that the winter timing of the application meant that additional field work that may be needed could not be done at that time but could be completed at the Notification and Consultation stage.

Once again, that explanation meets the reasonableness standard, affording deference to the Ministry’s conclusions relating to matters within its expertise. [ 48 ] Accordingly, I see no merit in Lempiala’s submission that the Ministry did not provide a reasoned explanation for the departures from Ministry Policies that the court identified in the JR-1 Decision. Those explanations met the required standard of reasonableness. VIII.

Concurrent consideration of applications [ 49 ] In the Reconsideration Decision, did the Ministry err by failing to concurrently reconsider Lempiala’s aggregate permit application? [ 50 ] Lempiala submits that in order to meet the reasonableness standard of review, the Ministry was required in its Reconsideration Decision to concurrently reconsider Lempiala’s application together with Milne’s application to determine which one was complete first. Lempiala suggests that the concurrent reconsideration would involve answering the following questions: a.

Did Lempiala and Milne each file a complete aggregate permit application? b. If so, on what date they do so?

c. Which of them was first to file a complete application? [ 51 ] Lempiala says that this approach was necessary for the Ministry to fully comply with the court’s direction in the JR-1 Decision to reconsider the Initial Decision. In support of that submission, Lempiala cited para. 122 of the JR-1 Decision, in which the court stated that the “appropriate result is for the matter to be remitted back to the Ministry for reconsideration” (emphasis added). By “the matter”, Lempiala argues that the court meant the “entire” matter, which consisted of competing applications from Lempiala and Milne.

Lempiala had previously advocated this approach in a letter from Lempiala’s Secretary-Treasurer to the Ministry dated February 22, 2022, after the JR-1 Decision was released and before the date of the Ministry’s Reconsideration Decision. [ 52 ] In response to a question from the panel, Lempiala’s counsel did not draw the court’s attention to any other passage in the JR- 1 Decision to support his submission on this issue.

He argued, however, that concurrent consideration of the applications to determine which one was complete first was consistent with the Ministry’s first come, first served policy, which Lemipiala does not dispute. [ 53 ] Once again, I disagree with Lempiala’s analysis. [ 54 ] It is instructive to consider the context in which the reviewing court made the statement that Lempiala relies on in support of its submission.

In its first judicial review application, Lempiala sought an order in the nature of mandamus to require the Ministry to cease consideration of Milne’s aggregate permit application and consider Lempiala’s application instead. In the JR-1 Decision, the court refused to require the Ministry to do so. At para. 122 of the JR-1 Decision, the court justified its decision to refuse that order and, in the course of its explanation, stated that the matter should be remitted back to the Ministry for reconsideration.

Lempiala relies on that statement but does so in isolation from the rest of the paragraph. [ 55 ] In para. 122, the court also noted that even though the documents in question did not fully comply with Ministry Policies, “it could well be that Milne provided sufficient information to the Ministry regarding the NEL 1 and Cultural Heritage Report in its application so as to be deemed complete.” In essence, that is the matter that the Ministry was directed to reconsider.

In the Reconsideration Decision, the Ministry did so and reaffirmed its decision to accept Milne’s aggregate permit application as complete prior to the date that Lempiala says it provided a complete application. In these circumstances, it was not necessary for the Ministry to concurrently “reconsider” Lempiala’s application and Milne’s application to meet the required reasonableness standard. IX. Disposition [ 56 ] Accordingly, I would dismiss the application for judicial review and order Lempiala to pay costs to the Ministry in the agreed amount of $15,000. ___________________________ Lococo J.

I agree ___________________________ Matheson J. I agree ___________________________ Nishikawa J. Date of Release: October 12, 2023 CITATION : Lempiala Sand & Gravel Limited v. Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry), 2023 ONSC 5605 DIVISIONAL COURT FILE NO.: 411/22 DATE: 20231012

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lococo, Matheson and Nishikawa JJ. BETWEEN: LEMPIALA SAND & GRAVEL LIMITED Applicant – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF NORTHERN DEVELOPMENT, MINES, NATURAL RESOURCES AND FORESTRY Respondent REASONS FOR JUDGMENT R. A. LOCOCO J. Date of Release: October 12, 2023