Keswick Presbyterian Church v. Ontario (Environment and Climate Change), 2016 ONERT 72282

Environmental Review Tribunal

Tribunal de l’environnement

October 21, 2016

15-169

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

Appellant:

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:

October 4, 2016 via telephone conference call

Parties

Counsel/Representative⁺

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

Donald Constable⁺

Director, Ministry of the Environment and Climate Change

Danielle Meuleman

Keswick Presbyterian Church

Patrick Welsh

Background

1This Order relates to a request by the Director, Ministry of the Environment and Climate Change (“MOECC”) to dismiss the appeals of Donald Constable, Greenpath Eco Group Inc., Greenpath Inc. and Mark Lawrence (together, “Greenpath Parties”) for non-compliance with their disclosure obligations.

2The background to this appeal is laid out in an Order of the Environmental Review Tribunal (“Tribunal”) dated July 21, 2016 (“Production Order”). The appeal by the Regional Municipality of Peel (File No. 15-174) was disposed of by way of a preliminary motion in the Tribunal’s order dated September 13, 2016. The remaining parties to this appeal are the Director, the Greenpath Parties, and the Keswick Presbyterian Church (“Church”).

3The instrument under appeal by the Church and the Greenpath Parties is Director’s Order No. 6411-9M2G78 (“2015 Director’s Order”), relating 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.

4The Director requests dismissal of the Greenpath Parties’ appeals under Rule 16 of the Tribunal’s Rules of Practice (“Rules”) for non-disclosure of relevant documents and for failing to comply with the Tribunal’s Production Order.

5A telephone conference call (“TCC”) was convened on October 4, 2016 to hear and consider the parties’ submissions on the Director’s request to dismiss.

Background Relating to Disclosure

6Following a preliminary hearing on March 30, 2016, the Tribunal issued a written order (“Pre-hearing Order”) requiring all parties to provide a copy of every relevant document in their possession, control or power to all other parties by April 19, 2016.

7On April 11, 2016, the Director received a CD from the Greenpath Parties with disclosure of 132 documents. The Director believes that there are more relevant documents that are in the possession, power or control of the Greenpath Parties that have not been disclosed.

8On May 3, 2016, the Director filed a motion to dismiss the Greenpath Parties’ appeals on the basis that they failed to fulfil their disclosure obligations resulting in unfairness to the Director and the other parties. The Director’s motion requested in the alternative that a production order 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 relevant documents not in their possession but within their control or power.

9The Director’s motion for dismissal due to non-disclosure was heard on June 24, 2016. In its July 21, 2016 Production Order, the Tribunal found that, while the Greenpath Parties may have disclosed all documents in their possession, they had not made all reasonable efforts to obtain and disclose documents in their control or power. The Tribunal ordered:

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.

10Following that Order, the Tribunal received the following correspondence:

Letter from the Director dated August 8, 2016 requesting that the Tribunal dismiss the Greenpath Parties’ appeals. Included was a copy of a letter from the Director to Mr. Constable dated August 5, 2016 indicating that nothing had been received from the Greenpath Parties by the Tribunal’s deadline of August 4, 2016, and asking for confirmation as to whether anything had been sent.
Email from Mr. Constable dated August 9, 2016 with the following statement:

I have just returned from Atlantic Canada we had a sudden death in our family, I have prepared the said information we have to date and will have it sent out in near future.

Emails from the Director dated September 7 and September 19, 2016 asking for dismissal of the Greenpath Parties’ appeals and for a TCC on the issue.
Email from Mr. Constable dated September 19, 2016 indicating that emails that he earlier stated to be in his possession were not, in his view, relevant. He also reiterated that all other documents were disclosed in 2013, and requested disclosure from the Director relating to an alleged meeting that took place between “the Director and staff from Greenpath, Jim Bonneville his lawyer and Tony Cruz.” The text reads as follows:

As I advised in the past we only had 3 emails that were sent but really did not have any issue with the MOE. All other documents, reports, CD, photos email etc. you have had since 2013 at the ERT hearing in Greenpaths Productions.

Furthermore we have request from the Director any and all documents, photos, emails, affidavits, from any parties that attended the meeting with the Director and staff from Greenpath, Jim Bonneville his lawyer and Tony Cruz.

These have never been sent nor received to date some 4 years.

I would like to request from all parties a copy of all legal accounts to date on the said Orders 2013 / 2015.

Email from Mr. Constable dated October 4, 2016, sent during the TCC, including three scanned pages.

Issue

11The issue is whether the appeals by the Greenpath Parties should be dismissed due to failure to comply with Tribunal’s Production Order.

Relevant Legislation and Rules

12The following Tribunal Rule, effective on the date of the Tribunal’s Production Order, is relevant here:

If a Party or Participant

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

(b) causes undue delay;

(d) does not provide, within the time permitted by the Tribunal, a response to an appeal or application which was served on him or her;

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.

Discussion, Analysis and Findings

(a) Whether the Greenpath Parties Failed to Fulfil Disclosure Obligations

13The Director argues that the Greenpath Parties have been given numerous opportunities to disclose important information that is in their “power or control”, since the first preliminary hearing in the appeal of an earlier, almost identical order issued by the Director in 2013, and that they have wilfully disregarded their obligations. The Director lists the various orders issued by the Tribunal relating to the appeals of the 2013 Director’s Order and the 2015 Director’s Order.

14In the July 21, 2016 Production Order, the Tribunal found that Mr. Constable had not made efforts to obtain the full breadth of relevant documents outlined by the Director within the time frame provided in the Tribunal’s Pre-hearing Order. The Tribunal provided “one last opportunity” for Mr. Constable to provide disclosure and to comply with undertakings he made on cross-examination, or evidence that he had made reasonable efforts to obtain documents that were in his power and control. That “final opportunity” expired on August 4, 2016.

15Mr. Constable filed no additional materials by August 4, 2016. His explanation, that he was in Atlantic Canada at a family funeral, was provided after August 4, 2016, at which time he promised that the “said information we have to date” would be forwarded in the “near future”. Nothing was received by the Director or the Tribunal by the date of the TCC on October 4, 2016.

16During the TCC on October 4, 2016, Mr. Constable indicated he was in the process of scanning and forwarding copies of two previously undisclosed emails. The TCC was paused in order for all parties to receive and consider the documents.

17The scanned documents consist of a two-line letter dated July 15, 2016 from Marshall Sone on letterhead of “Saber and Sone Group, Accounting Tax Specialists”, stating that Greenpath Eco Group Inc. and Mr. Constable are insolvent. It is addressed to “Ontario Ministry of the Attorney General, Legal Services Branch, Attention Danielle Meuleman,” with no destination address. The July 15, 2016 letter was copied to Mr. Constable. There is also an email showing that Mr. Sone forwarded his July 15, 2016 letter to Mr. Constable again on September 29, 2016.

18The scanned documents forwarded during the TCC on October 4, 2016 also include two pages of emails from 2010. They are from Jim Bonneville of “Indusite Realty”, dated December 7, 2010 and December 8, 2010, ostensibly relating to a property at 121 Watline Avenue in Mississauga, Ontario (the site of Greenpath Inc.’s waste ash processing facility) and the “purchaser’s lawyer”.

19Mr. Constable submitted that, with the pages forwarded on October 4, 2016, there are no remaining documents to disclose. He took the view that any documents related to “other proceedings”, specifically in relation to litigation involving his former landlord, are not relevant to this appeal and need not be disclosed.

20Ms. Meuleman, who is counsel for the Director, stated on the TCC that she never received the letter addressed to the “Ontario Ministry of the Attorney General”. In any event, she submitted, the documents forwarded during the TCC did not fulfill the requirements of the Production Order. She submitted that the Director is prejudiced by the Greenpath Parties’ lack of production, particularly of internal company documents, and asked that the Tribunal dismiss the Greenpath Parties’ appeals.

21The Church did not take a formal position on the Director’s request to dismiss. Nonetheless, the Church stated that it has suffered prejudice due to the delay caused by the disclosure controversy, that the Church promptly disclosed all relevant documents, and that the same disclosure standard should be applied to all parties.

22The Tribunal finds that the Greenpath Parties did not comply with the Production Order. Even if the Greenpath Parties have provided all the relevant documents in their possession, as stated by Mr. Constable, there has been no indication that he or they made any efforts to obtain relevant documents that were in his or their “power or control” but not in their possession. Specifically, the Tribunal directed that the Greenpath Parties provide “copies of written requests” for documents to “former legal counsel, accountants, directors, officers, employees, landlords and contractors” and the responses received. There is no evidence that any written requests were made in accordance with the Production Order.

23Rule 16 addresses non-compliance with Tribunal orders and provides a range of remedies that are within the discretion of the Tribunal. In determining which of its discretionary remedies to apply in this situation, the Tribunal considers that the following elements weigh against dismissing the appeals.

24Under s. 140 of the EPA, the Greenpath Parties have a right to appeal a Director’s Order. Dismissal of an appeal prior to hearing the merits of the appeal is the most significant of all remedies as it revokes the party’s right to pursue its appeal. As such, when contemplated as a penalty for procedural defects, dismissal should only be ordered in the clearest of cases.

25Mr. Constable is not a lawyer. He has had sporadic legal representation but is currently self-represented and is representing all of the Greenpath Parties. Mr. Constable has described personal and business difficulties that have impeded his access to records and other documents. He has shown a poor ability to manage the procedures involved in this appeal and a poor grasp of the steps he has been ordered to take. Mr. Constable disclosed a number of relevant documents earlier in the proceedings. He responded to the Production Order and appeared on the TCC. It should also be recalled that he appeared at the previous motion brought by the Director to dismiss the Greenpath Parties’ appeals, which resulted in the Tribunal’s Production Order. When questioned by the Tribunal, he acknowledged his obligations on behalf of the Greenpath Parties and made some attempt to comply with the Production Order. Specifically, the letter and emails forwarded on October 4, 2016, indicate that Mr. Constable made some effort to comply with his undertaking made to the MOECC, which is also one of the listed requirements in the Tribunal’s Production Order.

26The Tribunal therefore finds that, while Mr. Constable may have misunderstood his disclosure obligations or been unable to organize his affairs sufficiently for timely compliance, nonetheless he has not shown wilful disregard of the Tribunal’s Rules or the Production Order.

27It is also relevant that the Director’s request for dismissal comes at an early stage in the appeal, in that witness statements have not been prepared or filed and the hearing dates have not been confirmed. Any prejudice occasioned to the Director or the Church by Mr. Constable’s failure to make efforts to obtain documents under his control may be cured during the hearing, through procedural directions as the need arises.

28The Tribunal finds that in the circumstances of this case, the appropriate remedy is for the Tribunal to make an order preventing the Greenpath Parties from relying during the hearing on any document that could have been but was not disclosed by the date of this Order. For clarity, this prohibition also applies to any witnesses called by the Greenpath Parties; that is, they too may not rely upon documents that could have been but were not disclosed to all parties by the date of this Order. This approach balances the need for respect for the Tribunal’s processes, the Greenpath Parties’ right to pursue their appeals, and the Director’s and the Church’s right not to be “ambushed” at the hearing with relevant documents that should have been disclosed.

ORDER

29The Tribunal orders:

The Greenpath Parties may not rely upon any documents at the hearing that have not been disclosed by the date of this Order.
No witnesses called by the Greenpath Parties may rely upon documents that have not been disclosed by the date of this Order.
The hearing dates will be set as “peremptory”.

Motion for Dismissal 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