Skritek v. Ontario (Environment and Climate Change), 2015 CanLII 43580

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: July 16, 2015

CASE NO.: 14-056

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: Henry Skritek (ERT Case No. 14-056)

Appellant: 344827 Ontario Limited (ERT Case No. 14-057)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under section 16.4(5) of the Ontario Water Resources Act to perform work with respect to sewage.

Reference No.: 3053-8XWL4V-3

Property Address/Description: 1060 and 1061 Wigwam Lodge Road and adjacent road allowances

Municipality: Gravenhurst

Upper Tier: District Municipality of Muskoka

ERT Case No.: 14-056

ERT Case Name: Skritek v. Ontario (Environment and Climate Change)

Heard: April 7, 2015 at Gravenhurst, Ontario, and on July 15, 2015 by telephone conference call

APPEARANCES:

Parties

Henry Skritek and 344827 Ontario Limited

Counsel/Representative

Dylan Scott

Parties

Director, Ministry of the Environment and Climate Change

Counsel/Representative

Katie Clements

Participants

Jackie and Greg Keeling

Counsel/Representative

Self-represented

Presenter

Kahshe Lake Ratepayers’ Association (1994) Inc.

Counsel/Representative

George Lindsay and Ron Pearson

ORDER DELIVERED BY ROBERT V. WRIGHT

REASONS

Background

1On July 10, 2014 Henry Skritek and 344827 Ontario Limited (the “Appellants”) filed a request for a hearing by the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 100 of the OWRA, respecting order No. 3053-8XWL4V-3 (the “Amended Order”) made on June 30, 2014 by Cindy Hood, District Manager, Ministry of the Environment and Climate Change (“MOECC”) under s. 16.4(5) of the Ontario Water Resources Act (the “OWRA”). The Amended Order requires the Appellants to perform work with respect to sewage at 1060 and 1061 Wigwam Lodge Road and adjacent road allowances in Gravenhurst, District Municipality of Muskoka (the “Site”).

2The preliminary hearing was held on November 6, 2014. The Tribunal’s order dated December 23, 2014 confirmed the granting of participant and presenter status to the persons identified in the Appearances above and procedural directions for the hearing to commence on April 7, 2015. The parties advised the Tribunal that the original order in this matter also named the Town of Gravenhurst (the “Town”) as a party.

3The hearing started on April 7, 2015. At the commencement of the hearing, the parties jointly requested that the hearing be adjourned, to be spoken to on October 1, 2015, and that the Amended Order be stayed until that date on the terms set out in the attached Schedule A. The parties advised the Tribunal that the adjournment and the interim stay would make it possible to resolve this proceeding on the basis of the Appellant(s) obtaining a building permit for the sewage system from the Town. (The likely settlement was confirmed in the July 15, 2015 telephone conference call between the parties, the representative for the presenter, and the Tribunal.) On April 7, 2015 the Tribunal made an oral disposition granting the adjournment on the terms as requested. This Order provides theTribunal’s reasons for that disposition.

Relevant Legislation and Rules

4The following are the relevant provisions of the OWRA, R.S.O. 1990, c. O.40 and the Rules of Practice of the Tribunal (the “Rules”):

Ontario Water Resources Act

Tribunal may grant stay

102. (2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a direction, order, report or decision, other than,

(a) a direction, order or report to monitor, record and report; or

(b) an order issued under section 89.3, 89.8 or 89.12.

When stay may not be granted

(3) The Tribunal shall not stay the operation of a direction, order, report or decision if doing so would result in,

(a) danger to the health or safety of any person;

(b) impairment or serious risk of impairment of any waters or any use of waters; or

(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.

Rules of the Tribunal

Motions for Adjournment

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.

107. In granting an adjournment, the Tribunal may impose such conditions as it considers appropriate.

Motion Seeking an Interim Stay/Stay or a Removal of a Stay

110. The Party shall provide evidence and submissions in support of its motion respecting:

(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;

(b) whether there is a serious issue to be decided by the Tribunal;

(c) whether irreparable harm will ensue if the relief is not granted; and

(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

Issues

5The issues are whether the hearing should be adjourned and whether there should be an interim stay of the Amended Order.

Discussion, Analysis and Findings

6The parties submitted that an adjournment of the hearing and an interim stay of the Amended Order on the terms in Schedule A will make it possible for this matter to be resolved if the Appellant(s) obtain a building permit from the Town.

7The parties further submitted that the adjournment on the proposed terms would comply with s. 102 (2) of the OWRA (that the proposed terms are not of the nature of a direction, order or report to monitor, record and report); would not result in danger to health or safety of any person, impairment or risk of impairment of any waters or their use, or injury or damage or risk of same to any property, plant or animal under s. 102 (3) of the OWRA; and would meet the requirements of Rule 110. The parties submitted that the environmental concerns would be sufficiently addressed by the terms of Schedule A, such as the requirements of servicing, maintaining, partially disconnecting, and inspecting the sewage system at the Site by a qualified person.

8Having considered the submissions of the parties; the proposed terms of the interim stay of the Amended Order set out in Schedule A; the provisions of s. 102 (2) and (3) of the OWRA; and Rules 105, 107 and 110, the Tribunal found that the requested adjournment and interim stay met the relevant statutory test and Rules because:

• the request for the adjournment on terms was on consent of the parties;

• the terms would ensure that the environmental concerns would be met on an interim basis, and there was no evidence to the contrary;

• protecting the environment and providing the opportunity for the economical resolution of the proceeding furthers the public interest; and

• if the settlement merely changes the terms of the Amended Order then it will be subject to further review by the Tribunal.

ORDER

9The Tribunal orders that:

1. the hearing is adjourned from April 7, 2015, to be spoken to in a status update telephone conference call on October 1, 2015; and

2. Amended Order No. 3053-8XWL4V-3, made on June 30, 2014 by Cindy Hood, District Manager, Ministry of the Environment and Climate Change, is stayed until October 1, 2015, on the terms set out in the attached Schedule A.

Hearing Adjourned

Interim Stay of Order

“Robert V. Wright”

ROBERT V. WRIGHT

VICE-CHAIR

Schedule A – Terms of interim stay of the Amended Order

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

Schedule A

1. The appellants shall ensure that the tile bed located on portions of 1060 and 1061 Wigwam Lodge Road, Gravenhurst, and the adjacent Shoreline Road Allowance and Original Road Allowance, as set out in Provincial Officer’s Report 3053-8XWL4V (collectively the “Site”), shall be serviced and cleaned by a qualified person (licenced septic system installer) prior to May 31, 2015 or prior to occupying the Site, if occupation is prior to May 31, 2015;

2. Confirmation from the qualified person who serviced and cleaned the tile bed on Site confirming that the tile bed was serviced and cleaned shall be provided to the District Manager, Ministry of Environment and Climate Change, Barrie District Office (“District Manager”) by May 31, 2015 or prior to occupying the Site, if occupation is prior to May 31, 2015;

3. Holding/pump tank B (near cabin No 13) shall be emptied, decommissioned, and disconnected from the septic system such that it is not capable of receiving sewage, by a qualified person (licenced septic system installer), by May 31, 2015 or prior to occupying the Site, if occupation is prior to May 31, 2015;

4. Confirmation from the qualified person who emptied, decommissioned and disconnected holding/pump tank B (near cabin No 13) confirming that holding/pump tank B (near cabin No 13) has been emptied, decommissioned and disconnected from the septic system such that it is not capable of receiving sewage, shall be provided to the District Manager by May 31, 2015 or prior to occupying the Site, if occupation is prior to May 31, 2015;

5. The appellants shall, after occupying the Site in 2015 and until October 31, 2015 or so long as the Site is occupied by any person if occupation of the Site by any person occurs past October 31, 2015, have the septic system inspected by a qualified person (licensed septic system installer) for malfunction every two weeks, and shall provide a report from the person carrying out the inspections to the District Manager within one week of each inspection;

6. On or before April 30, 2015, the appellants shall provide written confirmation to the District Manager confirming that they have hired a person qualified (P.Eng. or licensed septic installer) to complete an application for a permit to construct a sewage system that is suitably design, sized, and located, such that it is acceptable for approval under the Ontario Building Code;

7. On or before June 30, 2015, the appellants shall provide written confirmation to the District Manager from the person hired to submit an application to the municipality of the Town of Gravenhurst (the “municipality”) confirming that the Site owner has submitted a complete and accurate application for a permit for a sewage system to the municipality, and has requested that the municipality send the District Manager written confirmation it has received a complete and accurate application to construct a sewage system under the Ontario Building Code;

8. If the municipality has not issued a Final Inspection Report permitting the use of a sewage system to service the Site (“Use Permit”) on or before September 30, 2015, the Tribunal will hold a status update teleconference on October 1, 2015;

9. If the municipality issues a Use Permit on or before September 30, 2015, the appellants shall make a written request to the Ministry of Environment and Climate Change Environmental Approvals Branch for revocation of Certificate of Approval, dated July 8, 1974, for the sewage works on Site within 5 days of issuance of the use permit by the municipality;

10. If the municipality issues a Use Permit before September 30, 2015, the parties will advise the Tribunal and the Tribunal will hold a status update teleconference at a date and time to be determined; and

11. The appellants shall remove all sewage works components, including associated pipes, plumbing and electrical wiring from the Shoreline Road Allowance by September 30, 2015.