Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: July 16, 2015
CASE NO.: 15-019
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellants: See Appendix 1 – Appellant list
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order issued to perform work to prevent the discharge of contaminants from the site
Reference No.: 7344-9UKF6C
Property Address/Description: 833 Helena Street
Municipality: Fort Erie
Upper Tier: Regional Municipality of Niagara
ERT Case No.: 15-019
ERT Case Name: McQuiston v. Ontario (Environment and Climate Change)
Heard: June 15, 2015 in Fort Erie, Ontario
APPEARANCES:
| Parties | Counsel/Representative+ |
|---|---|
| Director, Ministry of the Environment and Climate Change | Andrea Huckins |
| Edwin M. Robertson and 1350095 Ontario Ltd. | Marc McAree and Matthew Gardner |
| Sanjay Nirula | Bruce McMeekin |
| Gerald Douglas Warne | Stewart McLellan+ |
| Iain McQuiston, Carvern Petrochemical Co. Ltd. and Carvern International Industries Ltd. | Iain McQuiston+ |
| DTZ Barnicke Niagara Limited, Taylor Wilson and Todd Howard Crawford | John Tidball |
| Corporation of the Town of Fort Erie | Christine Carter and Michael Krygier-Baum |
| PPG Industries Ohio, Inc. and PPG Industries, Inc. | Gatlin Smeijers |
| Serious Business Inc. and Allcolour Paint Ltd. | Robert Chapman+ |
Participant
| Regional Municipality of Niagara | Jessica Mathewson |
ORDER DELIVERED BY HUGH S. WILKINS
REASONS
Background
1On March 19, 2015, the Director, Ministry of the Environment and Climate Change issued Order No. 7344-9UKF6C (the “Director’s Order”) to a number of individuals and entities regarding a spill of environmental contaminants including toluene and acetone at 833 Helena Street, Fort Erie, Regional Municipality of Niagara, Ontario (the “Site”). The Site is owned by 1350095 Ontario Limited. A number of the persons named on the Director’s Order appealed to the Tribunal under s. 140 of the Environmental Protection Act (“EPA”). A full list of the appellants is included in Appendix 1.
2Notices of motion requesting stays of the Director’s Order were filed by Sanjay Nirula on April 24, 2015, and by 1350095 Ontario Limited and Edwin Robertson on April 27, 2015. These parties and the Director agreed, on consent, to terms and conditions regarding the requested relief and, on May 13, 2015, the Tribunal orally granted a partial stay and ordered interim amendments to the Director’s Order as requested by these parties. The oral Order was confirmed in writing by the Tribunal on May 20 and with reasons on June 12, 2015.
3A preliminary hearing was held in Fort Erie, Ontario, on June 15, 2015. At the preliminary hearing, the Tribunal addressed requests for status and adjourned the preliminary hearing on consent to a telephone conference call (“TCC”) to be held on August 19, 2015 at 10 a.m.
ISSUES
4The issues are:
Whether to grant party status to: a. Taylor Wilson and Todd Howard Crawford; b. Corporation of the Town of Fort Erie; c. Carvern Petrochemical Co. Ltd. and Carvern International Industries Ltd.; d. PPG Industries Ohio, Inc. and PPG Industries, Inc.; e. Serious Business Inc. and Allcolour Paint Ltd.; and, f. Amercoat Canada, Danroh Inc., and Rubyco Ltd.
Whether to grant participant status to the Regional Municipality of Niagara.
Relevant Rules
5The relevant rules of the Tribunal’s Rules of Practice are:
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.
A Party to the proceeding before the Tribunal may: (a) bring motions; (b) be a witness at the Hearing; (c) be questioned by the Parties; (d) call witnesses at the Hearing; (e) cross-examine witnesses; (f) make submissions to the Tribunal, including final argument; (g) receive copies of all documents exchanged or filed by the Parties; (h) participate in a mediation; (i) attend site visits; and (j) claim costs or be liable to pay costs where permitted by law.
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.
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.
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.
Discussion, Analysis and Findings
1. Requests for Party Status
Taylor Wilson and Todd Howard Crawford
6Mr. Wilson and Mr. Crawford were represented by John Tidball. He stated that Messrs. Wilson and Crawford are directors of the Appellant, DTZ Barnicke Niagara Limited (“DTZ”), and that both of these individuals are named as orderees in the Director’s Order.
7Mr. Tidball explained that Mr. Crawford prepared and filed the notice of appeal on behalf of DTZ. He stated that when Mr. Crawford prepared the notice of appeal he omitted to state that it was on behalf of DTZ, Mr. Wilson and himself. Mr. Tidball requested that the Tribunal correct this and recognize Mr. Wilson and Mr. Crawford as appellants or alternatively that the Tribunal grant them party status. He stated that their interests align with those of DTZ and will be directly and substantially affected by the hearing or its result.
8Although no party objected to Mr. Tidball’s proposed interpretation of the DTZ notice of appeal or to the granting of party status to these individuals, the Director requested that if Messrs. Wilson and Crawford are granted the requested relief, they should address solely the issues raised by DTZ in its notice of appeal.
9The Tribunal raised concerns regarding the appropriateness of interpreting a notice of appeal to be on behalf of appellants who, on its face, are not included. In the absence of direct evidence regarding the preparation of the notice of appeal, or any references to authorities allowing the Tribunal to interpret a notice of appeal in the manner requested, the Tribunal declined to make the requested ruling.
10Regarding the alternative relief sought, i.e., the requests by Messrs. Wilson and Crawford for party status, the Tribunal finds that they each satisfy the criteria for the granting of status as added parties as set out in Rule 63. As named orderees, the Tribunal finds that they have interests that may be directly and substantially affected by the hearing and grants their requests for party status under Rule 63.
Corporation of the Town of Fort Erie
11Christine Carter represents the Corporation of the Town of Fort Erie (“Fort Erie”). She stated that Fort Erie is named in the Amended Notice of Allegation, dated June 12, 2015, filed by Mr. Robertson and 1350096 Ontario Limited (the “Amended Notice of Allegation”), which requests that Fort Erie be made an orderee. She submitted that as a potential orderee, Fort Erie’s interests may be directly and substantially affected by the hearing. She said it has a genuine interest in the proceeding and would provide relevant contributions, specifically regarding the history of the Site.
12No party objected to Fort Erie’s request. The Tribunal finds that as a potential orderee, Fort Erie meets the criteria under Rule 63 and grants it party status.
Carvern Petrochemical Co. Ltd. and Carvern International Industries Ltd.
13Mr. McQuiston requested that Carvern Petrochemical Co. Ltd. and Carvern International Industries Ltd. be each granted party status. He is an officer and director of Carvern Petrochemical Co. Ltd. and is president of Carvern International Industries Ltd.
14Mr. McQuiston stated that Carvern Petrochemical is named in the Director’s Order and that Carvern International is named in the Amended Notice of Allegation. He submitted that if these companies were granted party status, they would each make relevant contributions to the proceedings.
15No party objected to these requests for party status. The Tribunal finds that as Carvern Petrochemical Co. Ltd. is an orderee and Carvern International Industries Ltd is named in the Amended Notice of Allegation, and is thereby a potential orderee, they each meet the criteria set out in Rule 63. The Tribunal grants their requests for party status.
PPG Industries Ohio, Inc. and PPG Industries Inc.
16Gatlin Smeijers represented PPG Industries Ohio, Inc. and PPG Industries, Inc. He stated that these companies are named in the Notice of Allegation, dated May 25, 2015, filed by Mr. Robertson and 1350096 Ontario Limited. He submitted that this Notice of Allegation requests that the companies be made orderees and that they thus have a direct interest in the proceedings because they could be compelled to comply with the Director’s Order.
17No party objected to these requests for party status. The Tribunal finds that as potential orderees, these companies meet the criteria in Rule 63 and grants them party status.
Serious Business Inc. and Allcolour Paint Ltd.
18Robert Chapman is the owner of Serious Business Inc. and president of Allcolour Paint Ltd. He represented these companies at the preliminary hearing. He stated that the companies are each named in the Notice of Allegation, dated May 25, 2015, and have a direct interest in the outcome of the appeal.
19No party objected to Mr. Chapman’s requests to have these companies each granted party status. The Tribunal finds that as potential orderees, these companies meet the criteria under Rule 63 and grants them party status.
Amercoat Canada, Danroh Inc., and Rubyco Ltd.
20Mr. Chapman also requested that party status be granted to Amercoat Canada, Danroh Inc., and Rubyco Ltd.; however, he stated that he is not an officer or director of any of these companies and he could not properly verify that he had authorization to represent them in these proceedings. Mr. Chapman stated that these companies will retain counsel to represent them. The Tribunal deferred these requests for status to the next session of the preliminary hearing in order to allow the companies sufficient time to retain counsel and decide on the course of action that they wish to take.
2. Request for Participant Status
21The Regional Municipality of Niagara (“Niagara”) requested participant status. It was represented by Jessica Mathewson. She stated that Niagara is a property owner adjacent to the Site. She said it has undertaken significant remediation and monitoring work as a result of the spill. Ms. Mathewson stated that Niagara is concerned that there could be additional impacts to local watercourses and the municipal drinking water supply, which could adversely affect her client. She stated that if there are further problems at the Site or if the Director’s Order is not enforced, Niagara may be forced to undertake further clean-up actions. She stated that Niagara wishes to remain informed of developments at the Site and receive documentation and updates on work that is being completed.
22No party objected to Niagara’s request for participant status. The Tribunal finds that Niagara has interests that may be directly and substantially affected by the hearing and has a genuine interest in the subject matter of the proceeding. As such, the Tribunal finds that Niagara meets the criteria set out in Rule 66 and grants it participant status.
3. Other Procedural Issues
23Marc McAree represents Mr. Robertson and 1350096 Ontario Limited. He submitted that it was premature to identify issues or set procedural deadlines at the preliminary hearing given that his clients are conducting the work required under the interim amendments to the Director’s Order and intend to complete the work as scheduled. He stated that if the work is completed as contemplated, then the issues under appeal and any procedural deadlines that are set now would need to be revised. He proposed that the identification of issues and setting of procedural deadlines should be postponed until a time after the work is well underway. He suggested that a status update TCC should be scheduled for a date in mid-August 2015.
24The parties consented to Mr. McAree’s proposed adjournment. The Tribunal finds that it is practical to postpone the identification of issues and scheduling of procedural due dates until after the work is at least underway and the parties have a clear view of the issues. The Tribunal adjourns the preliminary hearing to a TCC to be held on August 19, 2015 at 10 a.m.
ORDER
25The Tribunal grants party status to:
a. Taylor Wilson; b. Todd Howard Crawford; c. Carvern Petrochemical Co. Ltd.; d. Carvern International Industries Ltd.; e. Corporation of the Town of Fort Erie; f. PPG Industries Ohio, Inc.; g. PPG Industries, Inc.; h. Serious Business Inc.; and i. Allcolour Paint Ltd.
26The Tribunal grants participant status to the Regional Municipality of Niagara.
27The preliminary hearing is adjourned to a TCC to be held on August 19, 2015 at 10 a.m. The Tribunal case coordinator will forward call-in details for the TCC to the parties.
Party and Participant Status Granted
Preliminary Hearing Adjourned
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – List of Appellants
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
List of Appellants
| Appellant Name | File No. |
|---|---|
| Iain McQuiston | 15-019 |
| Sanjay Nirula | 15-020 |
| DTZ Barnicke Niagara Limited | 15-021 |
| Gerald Douglas Warne | 15-022 |
| 1350095 Ontario Limited | 15-023 |
| Edwin Robertson | 15-024 |