Environmental Review Tribunal

Tribunal de l’environnement

July 21, 2016

15-169

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended

Appellants:

See Appendix 1 – Appellant List

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Order for removal of waste ash from site

Reference No.:

6411-9M2G78

Property Address/Description:

23449 Woodbine Avenue

Municipality:

Town of Georgina

Upper Tier:

Regional Municipality of York

ERT Case No.:

15-169

ERT Case Name:

Keswick Presbyterian Church v. Ontario (Environment and Climate Change)

Heard:

June 24, 2016 in Toronto, Ontario

Parties

Counsel/Representative*

Donald Constable, Mark Lawrence, Greenpath Inc. and Greenpath Eco Group Inc.

Donald Constable*

Director, Ministry of the Environment and Climate Change

Katie Clements

Background

1On November 9, 2015 the Director, Ministry of the Environment and Climate Change (“MOECC”), issued Director’s Order No. 6411-9M2G78 (the “2015 Director’s Order”) to the Keswick Presbyterian Church (the “Church”), to Donald Constable, Mark Lawrence, Greenpath Inc. and Greenpath Eco Group Inc. (collectively, the “Greenpath Parties”), and to the Regional Municipality of Peel (“Peel”). The 2015 Director’s Order relates to the alleged deposit in 2009 of unprocessed waste ash at the Church’s property located at 23449 Woodbine Avenue, Georgina, Regional Municipality of York (the “Site”).

2The 2015 Director’s Order requires the orderees, jointly and severally, by specified dates, to: retain and confirm the retention of the services of a qualified person to prepare and complete the work specified; remove the waste ash from the Site in accordance with certain procedures; and submit a report summarizing the waste ash removal. It also requires the Church to give a copy of the 2015 Director’s Order to every person acquiring an interest in the Site and to register on title the certificate of requirement included with the 2015 Director’s Order.

3The Greenpath Parties filed a joint notice of appeal with the Environmental Review Tribunal (the “Tribunal”) on December 1, 2015. Peel and the Church also appealed, although they took no position on this motion. Further background to this matter can be found in the order of the Tribunal dated April 14, 2016.

4The 2015 Director’s Order is similar to Director’s Order 6726-8YAN85-1, issued to the same parties and ordering the same actions, dated August 13, 2013 (the “2013 Director’s Order”). That order was appealed to the Tribunal by the same parties to this proceeding; those appeals were referred to as Tribunal File Nos. 13-110 to 13-115 (“Case No. 13-110”). In the course of that proceeding, Peel brought a motion to revoke the 2013 Director’s Order as against it. After the preliminary hearing in Case No. 13-110, the Tribunal issued an order, dated November 13, 2015, directing the scheduling of Peel’s motion and disclosure by all parties pursuant to Rule 166. The Tribunal specifically directed that disclosure was to occur prior to the filing of materials respecting Peel’s motion. Following the issuance of the 2015 Director’s Order, the Tribunal issued a decision on January 5, 2016, revoking the 2013 Director’s Order and dismissing Case No. 13-110.

5Following the March 30, 2016 preliminary hearing in this proceeding, the Tribunal issued an order for disclosure, requiring all parties to provide to all other parties a copy of every relevant document in the possession, control or power of a party by April 19, 2016. Disclosure was again directed to be completed prior to the filing of materials respecting Peel’s renewed motion to revoke.

6The Director’s summary of the disclosure by the Greenpath Parties that has taken place to date was not contested. The Director states that on December 16, 2015 counsel for the Greenpath Parties provided a list of 132 documents in the possession of the Greenpath Parties, although the documents themselves were not provided at that time. On April 11, 2016 the Director received a compact disc containing the 132 documents as itemized in the list provided on December 16, 2015. The Greenpath Parties disclosed a further 30 documents on June 2, 2016.

7On May 3, 2016, the Director filed a notice of motion for an order dismissing the appeals initiated by the Greenpath Parties. The motion is brought on the basis that the Greenpath Parties have failed to fulfil their disclosure obligations, and it is unfair to the Director and the other parties to permit the Greenpath Parties’ appeals to proceed where: disclosure is required for a scheduled motion brought by Peel; and the failure to disclose will result in undue delay of Peel’s motion as well as these appeals.

8The Director’s motion requests, in the alternative, that

a Production Order should be issued requiring full and complete disclosure of all relevant documents in the possession, control or power of the Greenpath parties, and documentation relating to the Greenpath parties’ efforts to recover any relevant documents that may not be currently within their possession but are within their control or power. Such an order should be peremptory on the Greenpath parties, failing which the Tribunal should reserve the right to dismiss the appeals for lack of compliance with its Production Order.

Issues

9The issues are:

whether the Greenpath Parties have failed to fulfil their disclosure obligations; and
if the Tribunal finds that the Greenpath Parties have failed to fulfil their disclosure obligations, whether to dismiss their appeals or make an alternative order.

Relevant Legislation and Rules

10Rules of Practice of the Environmental Review Tribunal:

If a Party or Participant

(a) fails to comply with these Rules, an Order or a written request from the Tribunal, or an undertaking; …

the Tribunal may:

(a) deem the Party or Participant to have accepted all of the material facts set out in materials provided by another Party or Participant;

(b) determine that the Party or Participant is not entitled to present evidence or make submissions;

(d) decide the matter based solely on the materials before it;

(e) dismiss the proceeding; or

(f) make any other order it considers appropriate.

Motions for Dismissal

A Party bringing a motion to dismiss a proceeding shall specify the basis for the motion, which may include that:

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;

(d) another Party has caused undue delay or has not complied with orders, undertakings, written requests from the Tribunal or these Rules.

All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.
A Party shall provide all the documents that the Party intends to rely on at the main Hearing to the Tribunal and to all other Parties within the time ordered by the Tribunal.

Discussion, Analysis and Findings

Issue 1: Whether the Greenpath Parties have failed to fulfil their disclosure obligations

11The Director argues that, since the preliminary hearing in Case No. 13-110 respecting the appeal of the Director’s 2013 Order, the Greenpath Parties have been given numerous opportunities to disclose important information that is in their “power or control”, and that they have wilfully disregarded their obligations.

12The Director submits that the “limited disclosure” of 162 documents does not constitute full and complete disclosure of all relevant documents in the possession, control or power of these parties, according to the Greenpath Parties’ own admission. The Director submits that Mr. Constable and/or counsel for the Greenpath parties have stated:

the Greenpath Parties have multiple bankers boxes of documents that are likely relevant, at least in part, to these appeals;
the Greenpath Parties have multiple computer hard drives that contain records that are likely relevant, at least in part, to these appeals; and
as of April 19, 2016 counsel for the Greenpath Parties was requesting a new date to be set in August 2016 for provision of full disclosure by the Greenpath Parties.

13The Director lists categories of documents that, while they may not currently be in the Greenpath Parties’ possession, are nonetheless within their power “as they have access to them and the Director does not.” The Director relies on the interpretation of “power” by reference to Rule 30.01(1)(b) of the Rules of Civil Procedure, which provides that a document is in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled. According to the Director, such documents include those in the possession of previous counsel, past directors and officers of the corporations, accountants, and the Site’s landlord.

14The Director takes the position that full disclosure would include, “at a minimum”:

a) Emails, correspondence and other hardcopy and electronic records amongst Greenpath employees;

b) Email, correspondence and other hardcopy and electronic records between Greenpath employees and third parties

c) Electronic and hardcopy records relating to:

i. the transportation to and receipt of waste ash by the Greenpath Parties,

ii. the processing of waste ash,

iii. testing and analyses records and/or reports which discuss or analyse waste ash and/or “Eco-fill”;

iv. the transfer of and transportation of waste ash or “Eco-fill” to and the deposit of waste ash or “Eco-Fill” at the Keswick Presbyterian Church, including documents relating to the assertion that any such transfer was not authorized by the Greenpath Parties;

v. the relationship to the Greenpath Parties of Vincent Orsini [sic], Tony Cruz and Metro Ready Mix and any other agents used by Greenpath for the transportation of waste ash; and

vi. the alleged theft of documents including police report(s) and other records relating to the “criminal proceeding” referred to on the November 6, 2015 Tribunal call.

15The Greenpath Parties acknowledge their disclosure obligations, but argue that they have disclosed 162 documents, which are all of the relevant documents in their possession. Mr. Constable argues that any other documents sought by the Director either are not in the Greenpath Parties’ possession due to factors beyond their control, or are not relevant. Mr. Constable also submits that he made inquiries of past legal counsel for documents, but received no response.

16Mr. Constable has been inconsistent in his statements relating to disclosure. At some points he appeared not to appreciate the full breadth of the disclosure obligations. Nevertheless, the Tribunal finds that the Greenpath Parties have complied in some measure with their disclosure obligations, having disclosed 132 documents on April 11, 2016 and 30 additional documents on June 2, 2016.

17It appears from the evidence before the Tribunal on this motion, however, that further relevant documents have not been disclosed. In particular, Mr. Constable recognized, at paras. 77 and 606 in the transcript of his cross-examination, that documents relating to litigation between the Greenpath Parties and the landlord of the Site could also be relevant to this appeal. In addition, he conceded that documents relating to the conduct of the Greenpath Parties’ business, which he claims were taken by a former director and a former employee, are relevant. At the time of the hearing of the motion, these documents had not been disclosed.

18Mr. Constable gave a number of undertakings, during the cross-examination on his affidavit for this motion, to produce certain documents or make inquiries about them. At the time of the hearing of the motion, these documents had not been disclosed.

19With respect to documents that the Director characterized as “in his control” but not in his possession, Mr. Constable states that he made inquiries of a former legal counsel and received nothing in response. However, Mr. Constable provided no evidence to support this claim, such as copies of letters or emails he sent asking for relevant documents.

20The Tribunal has previously found that the obligation on a party to disclose all documents in its “control” includes the obligation to make reasonable efforts to obtain relevant, non-privileged documents from a third party such as an accountant or lawyer. At para. 35 of Trillium Recovery Inc. v. Ontario (Ministry of the Environment) [2013] O.E.R.T.D. No. 77 (ERT Case No. 13-007) (“Trillium”), for example, the Tribunal stated:

35The Tribunal finds that the Appellant has not met its disclosure obligations in producing only the twelve documents that it has delivered to the Director. The Appellant is required under the Tribunal’s Rules of Practice to disclose all relevant documents related to the incidents of past practice referred to in the Director’s notice of refusal. The Appellant is required to disclose not only documents that it currently has in its possession, but if there are relevant documents not in its possession, it must make every reasonable effort to obtain such documents where disclosure of those documents is within its control or power.

21The Tribunal finds, on the basis of Mr. Constable’s statements during cross-examination, that the Greenpath Parties have not disclosed, nor made efforts to obtain, all relevant documents within the time frame directed by the Tribunal.

Issue 2: If the Tribunal finds that the Greenpath Parties have failed to fulfil their disclosure obligations, whether to dismiss their appeals or make an alternative order

22Having found that the Greenpath Parties have not complied with their disclosure obligations, the next question is whether the appropriate remedy is dismissal of the Greenpath Parties’ appeals, as requested by the Director. Rule 16, set out above, identifies the range of remedies available to the Tribunal when a party fails to comply with its order.

23In support of her request to dismiss the appeals, the Director referred to a number of cases. The Tribunal finds that the cases relating to closing a file by the Tribunal’s Case Coordinator due to insufficient particulars relating to the originating documents themselves, are not sufficiently similar to this case to apply (i.e., Rouleau v. Ontario (Ministry of the Environment) [2011] O.E.R.T.D. No. 51; Innis v. Ontario (Ministry of the Environment) [2012] O.E.R.T.D. No. 63). Those cases dealt with basic information required by the Tribunal in order to open an appeal, including such information as the names and addresses of neighbouring property owners to whom a statutory notice of an appeal affecting their interest must be sent, or providing the grounds of appeal. They are not similar to the current case, involving disclosure of documents that the Director deems to be insufficient.

24In Morrison v. Ontario (Ministry of the Environment) [2001] O.E.R.T.D. No. 37 (“Morrison”) the Tribunal dismissed an appeal where an appellant failed to appear for a proceeding and was not able to be contacted, in addition to having disregarded Tribunal procedural orders which included an order to disclose relevant documents. In Rosenfeld v. Ontario (Ministry of the Environment) [2013] O.E.R.T.D. No. 23 (“Rosenfeld”) the Tribunal dismissed an appeal at the very early stages, where an appellant was to confirm whether or not he intended to withdraw the appeal, and the issues for hearing. In that case the Tribunal had earlier warned the appellant that, failing confirmation by a certain date of his intention to proceed with the appeal, a motion to dismiss could be brought. Paragraph 6 of that decision states:

The Procedural Order required Mr. Cooey to serve on the Director and the participant, the Corporation of the Municipality of Brighton (the "Municipality") and file with the Tribunal by January 31, 2013 a statement as to whether he was withdrawing his appeal or, if not, which issues he intended to pursue at the hearing. The Procedural Order also required Mr. Cooey to serve on the Director and participant all relevant documents by that date. The Procedural Order also stated that, if Mr. Cooey did not comply with the January 31, 2013 deadline, the Director could bring a motion in writing seeking a dismissal of the appeal.

25The Tribunal finds neither Morrison nor Rosenfeld to be directly applicable to this case, where the Greenpath Parties have consistently appeared and indicated an intention to proceed, and some disclosure has taken place. More directly applicable is Trillium, noted above, in which the Tribunal made a further order for specific disclosure.

26The purpose of requiring full and timely disclosure has been addressed in previous Tribunal decisions. For example, in Cham Shan Temple v. Ontario (Ministry of the Environment) [2014] O.E.R.T.D. No. 55, the Tribunal stated, at para. 7:

The fundamental principle underlying the disclosure requirement is fairness. The hearing process, once commenced by an appellant, will only be fair to all parties if disclosure of relevant documents is provided promptly and early in the process. It is only after disclosure that parties decide what evidence they will call and rely on in the hearing. Disclosure serves the public interest by ensuring that documents are not concealed and that there will be no surprises at the hearing that could cause delays or waste the time and resources of the parties and the Tribunal… Disclosure can also serve to narrow the issues or facilitate settlement.

27In fashioning an appropriate response to a party’s failure to comply with its disclosure obligations, the case-specific prejudice alleged by the other party is a key consideration.

28Here, the Director is concerned that the Greenpath Parties have not disclosed documents that are relevant to Peel’s motion to revoke, which is to be argued on August 12, 2016, prior to the main hearing. The Director argues that she is prejudiced in her defence of Peel’s motion to revoke the Director’s order as against Peel, if the Greenpath Parties’ documents are not available for the hearing of that motion. In addition, the Director argues that she is prejudiced if documents relevant to Peel’s motion are only disclosed after that motion has been heard.

29Mr. Constable submits that it is unfair to dismiss the Greenpath Parties’ appeals when he has disclosed all documents he has in his possession, and where there are factors (such as computer and document box theft) which make it impossible for him to produce all the documents requested by the Director. He argues that the impact to the Greenpath Parties of dismissing the appeals is substantial, in that they will have no right to a hearing.

30Given that Mr. Constable gave a number of undertakings to provide further documents, and that the Greenpath Parties’ obligation to inquire of other persons for documents that are relevant to this proceeding has been clarified through this motion, the Tribunal finds that dismissal of the Greenpath appeals is not appropriate at this time. The Tribunal finds that it is appropriate to provide a final opportunity for the Greenpath Parties to make full disclosure. Given the history of this appeal and the timing of the hearing of Peel’s motion, the Tribunal finds that a deadline of August 4, 2016 is fair and adequate.

31The Tribunal notes that, in light of the purpose of disclosure to prevent surprises at the hearing, it is likely to be unfair to the Director and the other parties to permit the Greenpath Parties to rely on any document at the hearing that should have been disclosed and was not disclosed by 4 p.m. on August 4, 2016. The Tribunal also observes that it may be appropriate in these circumstances to deem the Greenpath Parties to have accepted certain facts as set out in the materials of other parties and to limit their evidence on certain matters; however, it is premature at this point to make a specific order. The parties may therefore request that the Tribunal make further rulings with respect to these matters at the appropriate time.

ORDER

32The Tribunal orders the Greenpath Parties to provide full and complete disclosure of all relevant documents to the other parties by 4 p.m. on August 4, 2016. These include the following documents:

Emails, correspondence and other hardcopy and electronic records among officers, directors and employees of the Greenpath Parties;
Emails, correspondence and other hardcopy and electronic records between officers, directors or employees of the Greenpath Parties and third parties;
Electronic and hardcopy records relating to:

i. The transportation to and receipt of waste ash by the Greenpath Parties;

ii. The processing of waste ash;

iii. testing and analyses records or reports that discuss or analyze waste ash and/or “Eco-fill”;

iv. The transfer of and transportation of waste ash or “Eco-fill” to and the deposit of waste ash or “Eco-fill” at the Keswick Presbyterian Church, including documents relating to the assertion that any such transfer was not authorized by the Greenpath Parties;

v. The relationship to the Greenpath Parties of Vincent Ursini, Tony Cruz and Metro Ready Mix, and any other agents used by the Greenpath Parties for the transportation of waste ash; and

vi. The alleged theft of documents including police reports and other records relating to the “criminal proceeding” referred to on the November 6, 2015 telephone conference call with the Tribunal.

33The Tribunal orders that Mr. Constable fulfil the undertakings to produce certain documents, made during his cross-examination, by 4 p.m. on August 4, 2016.

34The Tribunal orders that, for documents not in their possession, the Greenpath Parties request in writing relevant documents from former legal counsel, accountants, directors, officers, employees, landlords and contractors. The Tribunal directs the Greenpath Parties to provide to the other parties and file with the Tribunal by 4 p.m. on August 4, 2016 copies of written requests and the responses received.

Motion to Dismiss Appeals Dismissed

Procedural Directions Ordered

“Heather Gibbs”

HEATHER GIBBS

VICE-CHAIR

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

Appendix 1 – Appellant List

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1 – Appellant List

Appellant Name

File No.

Keswick Presbyterian Church

15-169

Donald Constable

15-170

Mark Lawrence

15-171

Greenpath Inc.

15-172

Greenpath Eco Group Inc.

15-173

The Regional Municipality of Peel

15-174

Keswick Presbyterian Church v. Ontario (Environment and Climate Change), 2016 ONERT 47160

Case Summary

Background

Issues

Relevant Legislation and Rules

Discussion, Analysis and Findings

Issue 1: Whether the Greenpath Parties have failed to fulfil their disclosure obligations

Issue 2: If the Tribunal finds that the Greenpath Parties have failed to fulfil their disclosure obligations, whether to dismiss their appeals or make an alternative order

ORDER