Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 27, 2015
CASE NO(S).: 12-033
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Appellant: Concerned Citizens Committee of Tyendinaga and Environs (CCCTE)
Instrument Holder: Waste Management of Canada Corporation
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Terms and conditions imposed under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, for an Amended Environmental Compliance Approval of the use, operation, and closure of the Richmond Landfill Site.
Reference No.: A371203
Property Address/Description: Lot Pt 1, 2, 3, Concession 4
Municipality: Town of Greater Napanee
Upper Tier: County of Lennox and Addington
ERT Case No.: 12-033
ERT Case Name: CCCTE v. Ontario (Environment and Climate Change)
Heard: February 6 and March 4, 2015 by telephone conference call and February 20, 2015 in Toronto, Ontario
APPEARANCES:
Parties
Counsel
Concerned Citizens Committee of Tyendinaga and Environs
Richard D. Lindgren
Director, Ministry of the Environment and Climate Change
Paul McCulloch
Waste Management of Canada Corporation
Harry Dahme
Mohawks of the Bay of Quinte
Eric Gillespie and Priya Vittal
Tom Touzel on behalf of Napanee Green Lights
Ian Miron and Will Amos
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY
REASONS
Background
1On January 9, 2012, Ian Parrott, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Amended Environmental Compliance Approval number A371203 (the “ECA”), under s. 20.3 of the Environmental Protection Act (“EPA”), to Waste Management of Canada Corporation (“WMC”) for the use, operation and closure of the Richmond Landfill Site (the “Site”), located at Lot Pt 1, 2, 3, Concession 4, Town of Greater Napanee, County of Lennox and Addington, Ontario. Notice of the Director’s decision to issue the ECA was posted on the Environmental Registry on January 16, 2012.
2On January 30, 2012, the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”) sought leave to appeal the Director’s decision pursuant to s. 38 of the Environmental Bill of Rights, 1993 (“EBR”).
3On March 30, 2012, the Environmental Review Tribunal (“Tribunal”) granted CCCTE leave to appeal the following conditions in the ECA, under the EBR: Condition 8.5 (Monitoring Programs); Condition 9.1 (Groundwater and Surface Water Impact Contingency Plan); Condition 9.2 (Leachate Collection System Contingency Plan); Condition 9.5 (Public Notification Plan for Contingency Plans); and Conditions 14.1,
14.2 and 14.3 (Monitoring Reporting and Annual Reporting). The Tribunal lifted the automatic stay under s. 42(1) of the EBR until the Tribunal issues its decision on the appeal or until the Tribunal orders otherwise.
4On April 13, 2012, CCCTE (the “Appellant”) filed a notice of appeal with the Tribunal, pursuant to s. 139, s. 142 and s. 145.2 of the EPA, in respect of the above-noted ECA conditions.
5At the commencement of the preliminary hearing on June 25, 2012, held at Selby Community Hall, Selby, Ontario, the Tribunal granted party status in this proceeding to the Mohawks of the Bay of Quinte (“MBQ”) and to Dr. Tom Touzel as the representative of Napanee Green Lights (“NGL”). The preliminary hearing was continued by telephone conference call (“TCC”) on September 11 and November 8, 2012, February 26 and March 7, 2013, and at the Deseronto Community Centre, Deseronto, Ontario on April 12, 2013.
6During the continued preliminary hearing on April 12, 2013, the parties presented to the Tribunal the terms of two settlement agreements with respect to the amendment of certain conditions of the ECA, and certain further investigations and work to be done. The Appellant undertook to withdraw and discontinue the portions of its appeal relating to the provisions of the ECA amended as a result of the settlement agreements. In its decision dated April 26, 2013, the Tribunal accepted the settlements and the withdrawal of the related portions of the appeal, and ordered the Director to amend the ECA accordingly, all as agreed by the parties.
7The ECA conditions that remain under appeal are: Conditions 8.5(b) and (c), which require WMC to provide an addendum report to the Environmental Monitoring Plan (“EMP”), including adequate details on groundwater and surface water monitoring locations, and monitoring frequencies and parameters; Condition 9.1, which requires that WMC submit for approval a Groundwater and Surface Water Impact Contingency Plan that incorporates the additional information collected from the groundwater investigations and includes trigger mechanisms associated with the groundwater and surface water monitoring programs; and Condition 9.2, which requires that the Leachate Collection System Contingency Plan be initiated when specified trigger mechanisms have been identified as occurring.
8The preliminary hearing was continued by TCCs on July 29, November 21 and 29, 2013, and January 29, April 16 and June 26, 2014. On May 28, 2014, the Tribunal heard a motion to adjourn, which was granted in its order of May 30, 2014 with reasons provided in its order of September 25, 2014. Additional background information about this proceeding is provided in the Tribunal’s orders of July 25 and October 5, 2012, April 3 and 26, and August 28, 2013, and January 10, May 8 and 30, September 25, and October 2, 2014.
9On December 10, 2014, the preliminary hearing was further continued by TCC to provide the Tribunal with a status update. During the TCC, Eric Gillespie, counsel for MBQ, advised that MBQ would be bringing a motion for costs. On January 12, 2015, MBQ filed a notice of motion for past and future costs of the proceeding.
10On February 2, 2015, MBQ’s motion commenced with the hearing of a preliminary jurisdictional issue. In a disposition dated February 5, 2015, with reasons to follow, the Tribunal dismissed the motion for costs to the extent that the motion did not relate to costs sought in relation to past conduct in this proceeding, and ordered that the hearing of the motion may continue with respect only to costs sought in relation to past conduct in this proceeding.
11At a status TCC on February 6, 2015, dates were set for the continued hearing of MBQ’s motion and for the exchange and filing of supplementary witness statements and expert reports prior to the main hearing, scheduled to begin on April 13, 2015. The continuation of the motion hearing was scheduled for February 20, 2015. The parties proposed that supplementary and updated documents be filed by CCCTE, MBQ and NGL by March 2, 2015, and by MOECC and WMC by March 30, 2015.
12At the commencement of the hearing of the motion on February 20, 2015, WMC raised an objection to portions of an affidavit provided as part of MBQ’s motion materials, alleging that there was a breach of mediation confidentiality. As a result, a voir dire hearing (a hearing to determine the admissibility of that evidence) before a different Tribunal member was scheduled for February 26, 2015 to deal with WMC’s objection, and the hearing of the motion for costs was adjourned on consent.
13At the outset of the voir dire hearing by Tribunal Member Marcia Valiante on February 26, 2015, Mr. Gillespie raised an objection to the materials Harry Dahme, counsel for WMC, had provided to the Tribunal relating to the issues to be addressed on the voir dire. Following submissions from the parties on how to proceed regarding these matters, Mr. Gillespie discussed the matter with the Chief of the MBQ. He then informed the Tribunal that MBQ was considering a deferral of its motion for costs, but required instructions from the Band Council. The Tribunal adjourned the voir dire hearing pending written notification of MBQ’s intention with respect to its costs motion. On March 3, 2015, MBQ requested that the hearing of the costs motion be deferred until after the completion of the main hearing in this proceeding.
14On March 4, 2015, a status TCC was held to address the deferral of the motion and the status of the motion materials.
Issue
15The issues to be determined are when the motion should be heard, and how MBQ’s costs motion materials should be dealt with until such time as the motion is heard.
Relevant Rules
16Rules of Practice of the Environmental Review Tribunal
The Tribunal may determine when a motion will be heard.
At the request of a Party or on its own initiative, the Tribunal may order all or part of a document to be marked "confidential", where appropriate, in which case it shall not form part of the public record.
Discussion, Analysis and Findings
17None of the parties object to MBQ’s request that the hearing of the costs motion be deferred until after the completion of the main hearing.
18MBQ requests that the motion materials remain with the Tribunal until the motion is heard, but be marked as confidential and sealed so as not to be available as part of the public record. MBQ submits that, as an alternative option, the materials could be returned to the parties. MBQ is requesting that the motion be deferred, but is not withdrawing it. MBQ does not wish to withdraw the motion and file it again after the hearing due to concerns about the additonal costs that would be incurred by relaunching the motion. MBQ indicates that it may file supplementary motion materials following the hearing. MBQ also notes that WMC may decide to withdraw its mediation confidentiality objection, depending on what occurs at the main hearing.
19WMC submits that the motion materials should be withdrawn and the motion re-filed at the end of the main hearing. WMC maintains its objection with respect to mediation confidentiality and submits that a withdrawal of the costs motion would give MBQ an opportunity to reconsider whether or not it seeks to rely on the portions of its motion materials to which WMC objects.
20CCCTE, NGL and MOECC take no position on the issue of how to deal with MBQ’s motion materials
Findings
21Having considered the parties’ submissions, the Tribunal determines that MBQ’s motion for costs should be heard following the completion of the main hearing in this proceeding, pursuant to Rule 97 of the Tribunal’s Rules of Practice.
22The Tribunal finds that there is no prejudice to WMC in permitting MBQ to defer the motion rather than requiring it to withdraw and re-file the motion. It remains open to MBQ, should it wish to do so, to withdraw the motion materials to which WMC objects. If necessary, WMC’s objection may be addressed prior to the motion being heard.
23The Tribunal finds that MBQ’s motion materials should be marked confidential, pursuant to Rule 211, due to WMC’s continued objection with respect to a portion of MBQ’s motion materials.
24The Tribunal further finds that it is appropriate to order the exchange and filing of supplementary and updated witness statements and expert reports as requested by the parties and set out in the order below. The Tribunal also finds it appropriate to schedule a status TCC as requested by the parties.
ORDER
25The Tribunal orders that:
MBQ’s motion for costs is adjourned to a date to be scheduled after the main hearing is completed;
All of the materials filed in support of MBQ’s motion for costs are marked confidential until such time as the motion is heard, or a further order is made by the Tribunal;
Supplementary and updated witness statements and expert reports shall be filed by CCCTE, MBQ and NGL by March 2, 2015, and by MOECC and WMC by March 30, 2015; and
A status TCC is scheduled to take place on March 30, 2015 at 4:30 p.m. Details for participation in the TCC will be provided by the Tribunal Case Coordinator.
Motion for Costs Adjourned
Motion Materials Marked Confidential
Procedural Directions Ordered
Status Telephone Conference Call Scheduled
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
member
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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