Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: May 27, 2015 CASE NO.: 15-017

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

Appellant: Oakville Hydro Energy Services Inc. 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 Property Address/Description: 7667 Goldenrod Trail Municipality: Niagara Falls Upper Tier: Regional Municipality of Niagara ERT Case No.: 15-017 ERT Case Name: Oakville Hydro Energy Services Inc. v. Ontario (Environment and Climate Change) Heard: May 14, 2015 in Niagara Falls, Ontario

APPEARANCES:

Parties	Counsel
Oakville Hydro Energy Services Inc.	Rick Coburn
Director, Ministry of the Environment and Climate Change	Danielle Meuleman

Participant
Gabriella Guo	Self-represented

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This order addresses two issues that arose at the preliminary hearing of this appeal held on May 14, 2015: a request for participant status and requests for an adjournment of the preliminary hearing.

2A detailed background to this proceeding is set out in the order of the Environmental Review Tribunal (the “Tribunal”), dated May 12, 2015 respecting a motion for an interim stay. In summary, Oakville Hydro Energy Services Inc. (“OHESI” or the “Appellant”) appeals the order of the Director, Ministry of the Environment and Climate Change (“MOECC”), dated March 4, 2015, which confirmed Provincial Officer’s Order No. 6243-9TKLWT, dated February 20, 2015 (the “Order”). The Order requires OHESI and Desrosiers Geothermal Drilling Corporation (“Desrosiers”) to carry out specified work to decommission a bore hole located on a residential property at 7667 Goldenrod Trail in Niagara Falls (the “Site”). The bore hole had been drilled in the spring of 2014 by Desrosiers in order to install a geothermal heating system at the Site.

3On May 14, 2015, the Tribunal held a preliminary hearing in this proceeding in Niagara Falls, Ontario. At the preliminary hearing, the Tribunal granted participant status to Gabriella Guo and adjourned the preliminary hearing, without giving reasons. These are the reasons for the granting of status and the adjournment.

Issues

4The issues are:

1. Whether to grant participant status to Gabriella Guo; and
2. Whether to adjourn the preliminary hearing.

Relevant Rules

5Rules of Practice of the Tribunal:

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person’s interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant’s interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

105. In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(c) the integrity of the Tribunal’s process;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

Discussions, Analysis and Findings

Issue 1: Whether to grant participant status to Gabriella Guo

6Gabriella Guo resides in the residence on the Site. Ms. Guo requested participant status in the hearing in order to provide her perspective on the work being undertaken. She stated that she is unable to use her driveway or garage and is concerned about further delay in completing the work required in the Order. She has photographs and a video she wishes to share with the Tribunal. Neither the Director nor the Appellant had an objection to Ms. Guo being granted participant status.

7The Tribunal finds that Ms. Guo has a genuine interest in the subject matter of the proceeding, that her interest may be directly and substantially affected by the result of the proceeding, and that she is likely to make a relevant contribution to the Tribunal’s understanding of the issues per Rule 63. For these reasons, the Tribunal grants participant status to Ms. Guo.

Issue 2: Whether to adjourn the preliminary hearing

8The Appellant informed the Tribunal that, following the Tribunal’