Jennifer Danahy

The appellants appealed two orders issued by the Director of the Ministry of the Environment, Conservation and Parks requiring stormwater management and soil and sediment remediation work.

Following Tribunal-led mediation and expert meetings, the parties reached a settlement on a revised Delineation Plan.

The Tribunal approved the settlement, allowing the appeal in part to amend the second order to reflect the agreed-upon scope, and dismissing the appeal of the first order.

Horn Ventures International Inc. appealed the dismissal of its application to compel Xylem to sell it property, arguing that a binding agreement for sale was triggered by waiving a condition in an Offer to Lease.

The key issue was whether the "Obligation to Purchase" provision could be triggered before environmental remediation of the property was completed.

The Court of Appeal upheld the application judge's interpretation that the obligation to purchase arose only after Xylem advised that remediation was complete, and Horn Ventures could only waive the environmental consultant's certificate, not the completion of remediation itself.

The appeal was dismissed, as no reversible error was found in the application judge's contractual interpretation.

The appellants appealed a Director's Order requiring stormwater management and soil and sediment remediation work at their property.

At a Case Management Conference, the parties requested a further 90-day adjournment to continue productive settlement discussions and expert meetings involving soil sampling and testing.

The Tribunal granted the adjournment, noting the progress made, and scheduled a further Case Management Conference to either set a settlement hearing or finalize a procedural order and issues list for a contested hearing.

The appellants appealed a Director's Order requiring stormwater management and soil and sediment remediation work.

At a status update teleconference, the parties reported significant progress in settlement discussions, including meetings between experts and ongoing soil sampling.

The Tribunal agreed it would be premature to schedule a new hearing and ordered a further Case Management Conference for March 2023 to assess the status of the settlement.

The applicant tenant sought a declaration that an agreement of purchase and sale was binding and an order for specific performance.

The commercial lease contained an obligation for the tenant to purchase the property once the landlord completed environmental remediation and provided a consultant's certificate.

The tenant attempted to trigger the purchase by waiving the requirement for the certificate, even though remediation was not complete.

The court dismissed the application, finding that the contract required the landlord to first advise that remediation was complete before the tenant could waive the certificate.

The court also held that while the provision was not a true condition precedent, it benefited both parties and could not be unilaterally waived by the tenant.

The appellant municipality appealed a condition in its renewed municipal drinking water licence that imposed a new Total Chlorine Residual limit on media filter backwash effluent.

The appellant's existing system could not immediately comply with the new limit.

The parties reached a settlement to remove the limit from the current licence, with the appellant committing to make necessary system alterations before the 2026 licence renewal.

The Tribunal approved the settlement, finding it satisfied statutory requirements under the Safe Drinking Water Act and was in the public interest, as the delay posed no risk to drinking water and insignificant environmental impact.

The Tribunal held Case Management Conferences regarding appeals by the appellants against a Director's Order requiring stormwater management and soil and sediment remediation.

The parties finalized a draft Procedural Order and Issues List.

The Tribunal approved the Procedural Order and Issues List and scheduled a 13-day video hearing to commence on October 11, 2022.

The appellants appealed a Director's Order requiring stormwater management and soil and sediment remediation work at a property in Lincoln, Ontario.

During a status update telephone conference call, the parties informed the Tribunal that the Ministry intended to issue a further Order regarding a Delineation Plan, which the appellants anticipated appealing.

The parties requested that a further Case Management Conference be scheduled to finalize procedural steps for both the present and anticipated appeals.

The Tribunal scheduled the CMC for October 1, 2021.

The applicant sought judicial review of the City of Markham's alleged decisions to plan and approve a four-lane collector road crossing protected Greenbelt lands.

The City argued the application was premature because the environmental assessment and planning processes were ongoing and no final location for the road had been determined.

The Divisional Court agreed, holding that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until they are complete.

The application was dismissed as premature.

The appellant, Xylem Canada Company, appealed an application judge's order declaring that an obligation to purchase, set out in a 1996 lease, remained in effect through subsequent lease renewals.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the contractual documents.

The court reiterated that contractual interpretation involves issues of mixed fact and law, entitling the application judge's decision to deference.

The City of Thunder Bay appealed an Amended Permit to Take Water issued by the Director of the Ministry of the Environment, Conservation and Parks regarding the Boulevard Lake Dam.

The parties reached a settlement to revise the permit to reflect the closure of a hydroelectric facility and clarify that water taking is for recreational and conservation uses only.

The Tribunal granted Presenter status to the North Shore Steelhead Association, who opposed the settlement seeking specific fishery objectives.

The Tribunal approved the settlement, finding the revisions consistent with the Ontario Water Resources Act and in the public interest, and dismissed the appeal.

Wrigley Canada Inc. (moving party) sought an interim injunction and an inspection order under Rule 32 to conduct its own environmental testing on the adjacent property owned by Metrus Properties (responding party).

Metrus had sued Wrigley alleging contamination from Wrigley's property and had refused Wrigley access for testing, subsequently beginning excavation work.

The court granted the injunction and inspection order, finding that Wrigley had demonstrated a serious issue to be tried, would suffer irreparable harm if denied access to conduct independent testing before excavation altered the site, and that the balance of convenience favoured granting the order, especially given Metrus's refusal of access and non-disclosure of excavation plans.

The applicant sought to enforce an indemnity agreement relating to environmental contamination, requesting that it be defended at the respondents' expense by counsel taking instructions from the applicant rather than the respondents.

The applicant argued that a conflict of interest existed because the sole officer and director of the indemnifying corporations was also the directing mind of the plaintiff corporation in the underlying action.

The court dismissed the application, finding no direct conflict of interest that would deprive the indemnifying parties of their right to direct the defence, as the director was not acting as counsel and the parties' interests were not directly adverse regarding the indemnity.

The appellant municipality appealed a no-fault remediation order issued by the Ministry of the Environment under s. 157.1 of the Environmental Protection Act following a fuel oil spill that migrated onto municipal property.

The appellant sought to introduce evidence before the Environmental Review Tribunal to prove that others were at fault for the spill, relying on the 'polluter pays' principle.

The Tribunal excluded this evidence as irrelevant to the environmental protection objective of the Act.

The Court of Appeal upheld the Tribunal's decision, confirming that evidence of third-party fault is irrelevant to whether a no-fault order should be revoked.

ERM brought motions to consolidate four related actions arising from environmental contamination and a remediation agreement, and to strike the property owners' claims for contribution, indemnity, and nuisance.

The court dismissed the motion to consolidate, finding that the actions should be tried together to avoid prejudice to the plaintiffs' right to separate counsel and to prevent circumvention of limitation periods.

The court also dismissed the motions to strike, holding that the claims for contribution and indemnity were not premature given ongoing Ministry of the Environment involvement, and that it was not plain and obvious the nuisance claims would fail.