Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 7, 2015
CASE NO(S).: 15-018
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Desrosiers Geothermal Drilling Corporation
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to perform work in relation to the decommissioning of a bore hole that is discharging a contaminant
Reference No.: 6143-9TKLWT
ERT Case No.: 15-018
ERT Case Name: Desrosiers Geothermal Drilling Corp. v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Desrosiers Geothermal Drilling Corporation | Peter Verbeek |
| Director, Ministry of the Environment and Climate Change | Danielle Meuleman |
DECISION DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS
REASONS
Background
1In the spring of 2014, GP Empire Communities (Niagara) Ltd. (“Empire”) retained Oakville Hydro Energy Services Inc. (“OHESI”) to install a geothermal heating system at a new home at 7667 Goldenrod Trail in a new residential subdivision developed by Empire in Niagara Falls (the “Site”). OHESI engaged Desrosiers Geothermal Drilling Corporation (“Desrosiers”) to drill two bore holes on the Site and install a vertical closed loop ground source heat pump apparatus in the bore holes. At the time, Desrosiers was authorized to carry out this work pursuant to Environmental Compliance Approval No. 8270-8XTPR4, issued September 5, 2012 by the Ministry of the Environment and Climate Change (“MOECC”).
2Desrosiers completed its work in May of 2014 and the system became operational. However, on May 21, 2014, the MOECC was informed that natural gas was leaking from the bore holes. Staff of the MOECC inspected the Site and monitored the gas release. During the week of May 27, 2014, Desrosiers attempted to decommission the two bore holes. Follow-up inspections were carried out by MOECC staff in early June, and it was determined that gas was still being released from one (the “North Bore Hole”). On June 12, 2014, a Provincial Officer’s Order was issued to Desrosiers, OHESI and Empire, requiring monitoring of the Site and decommissioning of the North Bore Hole (the “North Bore Hole Order”). Empire and OHESI asked for a review of the North Bore Hole Order, which was confirmed by the Director. Empire and OHESI appealed that decision to the Environmental Review Tribunal (“Tribunal”) in Case Nos. 14-049 and 14-050. Desrosiers did not ask for a review of the North Bore Hole Order and did not comply with it. OHESI contracted with SPL Consultants Ltd. (“SPL”) to lead a team to decommission the North Bore Hole during the fall of 2014. On May 5, 2015, the Tribunal dismissed the appeals in Case Nos. 14-049 and 14-050 under Rule 199 of its Rules of Practice.
3During the work on decommissioning the North Bore Hole, the MOECC requested OHESI to have its contractor, SPL, monitor the second hole (the “South Bore Hole”) to determine if gas was leaking from it. SPL observed gas leaking from the South Bore Hole and recommended that this hole also be decommissioned. On February 20, 2015, Lisa Benvenuti, a Provincial Officer with the MOECC, issued Provincial Officer’s Order No. 6243-9TKLWT to Desrosiers and OHESI (the “Order”) requiring the following: the hiring of a licensed Professional Engineer or Professional Geoscientist; the venting of gas in the South Bore Hole and monthly monitoring of the concentration of gas emitted; monthly monitoring for the presence of gas in the basements of the house on the Site and those on adjacent properties; preparation, submission and implementation of a plan to decommission the South Bore Hole; reporting on implementation of the plan; and restoration of the Site. On March 2, 2015, OHESI asked the Director, MOECC, to review the Order and, in a letter dated March 4, 2015, Kim Groombridge, Director, confirmed the Order with the exception of one of the compliance dates. On March 12, 2015, OHESI filed a notice of appeal of that order with the Tribunal (Tribunal Case No. 15-017).
4On March 12, 2015, the Tribunal received an email from Desrosiers seeking to appeal the Order. On March 19, 2015, the Tribunal wrote to Desrosiers stating that the Tribunal considered that it may not have jurisdiction to hear the appeal and directing the parties to provide submissions on this issue.
Issue
5The issue is whether the Tribunal should dismiss the appeal without a hearing in accordance with Rule 119.
Relevant Legislation and Rule
- (1) A person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within fifteen days after service upon the person of a copy of the order, require a hearing by the Tribunal.
(2) No failure or refusal to issue, amend, vary or revoke an order is an order.
- The Tribunal shall extend the time in which a person may give a notice under section 139 or 140 requiring a hearing on an order or decision where, in the Tribunal’s opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision.
157.3 (1) A person to whom an order under section 157, 157.1 or 157.2 is directed may, within seven days after being served with a copy of the order, request that the Director review the order.
(2) The request may be made orally, with written confirmation served on the Director within the time specified in subsection (1), or in writing.
(8) If, within seven days of receiving a written request for review or a written confirmation of an oral request for review, the Director does not make a decision under subsection (5) and give oral or written notice of the decision to the person requesting the review, the order in respect of which the review is sought shall be deemed to have been confirmed by order of the Director.
Tribunal’s Rules of Practice
- The Tribunal may, on its own initiative, dismiss a proceeding without a Hearing if:
(a) the proceeding relates to matters outside the jurisdiction of the Tribunal; or
(b) some aspect of the statutory requirements for bringing the proceeding has not been met.
Submissions of the Parties
7Desrosiers submits that this proceeding should not be dismissed. Desrosiers states that it did not receive a copy of the Order, purportedly sent by courier on February 20, 2015 to its counsel’s office. It submits that there is no record of the Order being received and that the person who signed for the courier package is unknown to those working at its counsel’s office. Thus, Desrosiers submits, it did not receive notice of the Order until it received a copy of OHESI’s notice of appeal in Case No. 15-017 on March 12, 2015.
8Desrosiers submits that it requested a review of the Order by the Director on March 18, 2015, but that the Director refused the request on the ground it was beyond the period allowed.
9The Director submits that the Tribunal’s jurisdiction is limited to hearing appeals of orders of the Director and that, here, there is no Director’s order and no deemed Director’s order that applies to Desrosiers.
10The Director further submits that the Order was properly served on Desrosiers. The Director submits that service conformed to the requirements of Ontario Regulation 227/07 and was effective as of February 23, 2015. The Director states that Officer Benvenuti emailed to confirm the address for service with David Desrosiers, a principal of Desrosiers, on February 24, 2015 and that Mr. Desrosiers replied, confirming the address and confirming that he had received the Order.
11The Director submits that, pursuant to s. 157.3(1) of the Environmental Protection Act (“EPA”), a request for the Director to review an order must be made within seven days after being served with a copy of the order. In this case, according to the Director, the seventh day following service of the Order was March 2, 2015 and no request from Desrosiers was received by that date. Therefore, the Director determined that she did not have jurisdiction to review the Order.
12The Director also submits that there is no deemed Director’s order under s. 157.3(8) of the EPA, as that provision only applies when there is a request for review received within seven days of service of a provincial officer’s order and the Director fails to issue a decision within seven days of the request for review.
Discussion and Findings
13The Tribunal’s jurisdiction to hear an appeal of orders such as that at issue here is found in s. 140(1) of the EPA. Under this provision, a person to whom an order of the Director is directed may require a hearing by the Tribunal if notice is served within fifteen days of service of the Director’s order on the person. As provided in s. 141, the Tribunal has the ability to extend the time in which notice under s. 140 may be given where “it is just to do so because service of the order… on the person did not give the person notice of the order…”
14Here, Desrosiers did not request the Director to review the Order within seven days of service of it, and no order was subsequently issued by the Director. Therefore, there is no “order of the Director” for Desrosiers to appeal to the Tribunal pursuant to s. 140 of the EPA, nor does s. 141 apply. In addition, there is no deemed decision of the Director that could trigger Desrosiers’ right to appeal, pursuant to s. 157.3(8) of the EPA, because that provision only applies in circumstances where a request for review has been made within seven days of service of a provincial officer’s order and the Director fails to make a decision within seven days of the request.
15Instead, Desrosiers’ complaint concerns whether the Order was properly served and whether Desrosiers met the deadline to file a request for a Director’s review of the Order. The EPA does not give the Tribunal jurisdiction over those matters. Under s. 141 of the EPA, the Tribunal’s jurisdiction to extend the time in which a person may give notice requiring a hearing applies only to notices respecting Directors’ decisions and orders brought under sections 139 and 140. The only order to date directed at Desrosiers is a provincial officer’s order and not a Director’s order. Therefore, the Tribunal finds that the proceeding relates to a matter outside of its jurisdiction and that an aspect of the statutory requirement for bringing the proceeding has not been met.
DECISION
16The Tribunal dismisses the appeal in accordance with Rule 119 of its Rules of Practice.
Appeal Dismissed
“Marcia Valiante”
MARCIA VALIANTE
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
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