Hart v. Ontario (Environment and Climate Change), 2015 CanLII 43582

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: July 16, 2015

CASE NO.: 13-034

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

Appellants: See “Schedule 1 – Appellant list”

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 18(1) and 43 of the Environmental Protection Act, to carry out work with respect to waste material.

Property Address/Description: 350 Wentworth Street North

Municipality: City of Hamilton

ERT Case No.: 13-034

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

Heard: June 24, 2015 by telephone conference call

APPEARANCES:

Parties

Counsel/Representative+

Director, Ministry of the Environment and Climate Change

Andrea Huckins

John McGill Currie (deceased), Robert Labatt and Donald Rickerd

Renata Kis

Greg Hart, Imco Technologies and 836724 Ontario Limited

Don Morris

Harbhajan Singh Tamber and 1125906 Ontario Inc.

John Smithson+

Sukhinder Singh Sandhu, 1352473 Ontario Inc., 1350684 Ontario Inc. and Manjit Gill

Chris Argiropoulos

Royal Bank of Canada

Jonathan W. Kahn

ORDER DELIVERED BY HUGH S. WILKINS

REASONS

Background

1On April 16, 2013, Geoffrey Knapper, Director, Ministry of the Environment and Climate Change (the “Ministry”), issued a Director’s Order (the “Director’s Order”) to 20 persons pursuant to s. 18(1) and 43 of the Environmental Protection Act (“EPA”). The Director’s Order relates to a site located at 350 Wentworth Street North in the City of Hamilton (the “Site”), where drums of waste materials were discovered behind a wall in the basement of a building. This discovery was reported to the Ministry on April 8, 2013 by one of the current owners of the Site. Ministry environmental officers carried out an inspection of the Site on April 10, 2013 and confirmed the presence of approximately 200 barrels of apparently hazardous waste materials being stored there in an insecure manner. On April 11, May 9 and June 6, 2013, securement orders were issued by a Justice of Peace against the current owners prohibiting the unauthorized removal of wastes. In the past, the Site has been the subject of a number of Ministry orders and enforcement actions regarding unauthorized storage of hazardous wastes, related spills and soil contamination.

2The Director’s Order requires the named persons to secure the Site, to retain the services of a qualified professional, to have that person assess the buildings on the Site to determine the extent of waste materials present within and around any structures, to have a qualified professional assess, sample and classify all wastes currently on the Site and all those discovered as a result of the assessment, to have the wastes disposed of in accordance with the applicable regulations, guidelines and standards, to have the affected structures remediated and decontaminated, and to report to the Ministry at each step. The Director’s Order also requires the present owners of the Site to grant access to all of the orderees and to persons retained by them.

3The Director’s Order was served on April 23, 2013. Within the appeal period, the Environmental Review Tribunal (the “Tribunal”) received notices of appeal from three groups of persons who are all named in the Director’s Order:

1. Robert Labatt, Donald Rickerd and John McGill Currie (Mr. Currie passed away in May 2013 following the filing of the Notice Appeal);

2. Greg Hart, Imco Technologies Inc. and 836724 Ontario Limited; and

3. Harbhajan Singh Tamber, 1125906 Ontario Inc., and Wim Van Ravenswaay.

4With their notices of appeal, Mr. Hart, Imco Technologies Inc., and 836724 Ontario Limited included a notice of allegation against Home Trust Company and Royal Bank of Canada (“RBC”) and others. Similarly, Mr. Tamber, 1125906 Ontario Inc., and Mr. Van Ravenswaay included a notice of allegation against Home Trust Company and RBC, Canadian Imperial Bank of Commerce (“CIBC”), Manjit Singh and others with their appeals.

5On June 11, 2013, a notice of motion was filed by the Messrs. Currie, Labatt and Rickerd requesting a partial stay of the Director’s Order as against them. On July 19, 2013, the Tribunal issued an order refusing this request.

6A preliminary hearing was held in Stoney Creek, Ontario, on November 21, 2013 at which the Tribunal received several requests for party status and the parties requested Tribunal assisted mediation. The preliminary hearing was continued by telephone conference call (“TCC”) on November 28, 2013 during which the parties discussed the setting of procedural deadlines.

7On March 3, 2014, the Tribunal issued an Order in which it confirmed that mediation services would be provided by the Tribunal and directed the disclosure of documents. It also granted party status to:

1. RBC;

2. CIBC;

3. Sukhinder Singh Sandhu;

4. 1352473 Ontario Inc.;

5. 1350684 Ontario Inc.; and

6. Manjit Gill.

8During a subsequent TCC on February 6, 2014, counsel for CIBC advised the Tribunal that Mr. Van Ravenswaay, Mr. Tamber and 1125906 Ontario Inc. had withdrawn their notice of allegation against CIBC. As a result, CIBC requested, on consent, to be removed as a party. The Tribunal granted this relief and reflected this in the March 3, 2014 Order.

9Further TCCs were held on May 15, June 25, September 3, 2014, and April 1, 2015 over which time mediation was ongoing.

10On April 14, 2015, Mr. Tamber, Mr. Van Ravenswaay, and 1125906 Ontario Inc. withdrew their notice of allegation against Home Trust Company. Mr. Hart, Imco Technologies Inc. and 836724 Ontario Limited withdrew their notice of allegation against Home Trust Company on May 13, 2015 and on May 26, 2015, they withdrew their Notice of Allegation against RBC.

11On May 29, 2015, Home Trust Company, which up until that time had been considering requesting status in the proceedings, informed the Tribunal that it would not be seeking any status.

12On June 24, 2015, a further TCC was held. During the TCC, RBC requested to be removed as a party. None of the parties objected to RBC’s request and the Tribunal orally granted the requested relief. The parties requested, on consent, a further adjournment of the preliminary hearing to facilitate the continuation of mediation. The Tribunal granted the adjournment on the basis that, if the parties do not resolve their appeals prior to the next TCC scheduled to be heard on July 22, 2015, then the Tribunal will provide procedural directions and set hearing dates for the hearing of these appeals.

ORDER

13RBC is removed as a party to this proceeding.

14The preliminary hearing in this matter is adjourned to a TCC to be held on July 22, 2015 at 4 p.m. The Tribunal case coordinator will forward call-in details for the TCC to the parties.

Request to be Removed as a Party Granted

Preliminary Hearing Adjourned

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Schedule A – Appellant List

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

Appellant List

1. John McGill Currie (13-041)

2. Robert Labatt (13-042)

3. Donald Rickerd (13-043)

4. Greg Hart (13-034)

5. Imco Technologies Inc. (13-037)

6. 836724 Ontario Limited (13-038)

7. Harbhajan Singh Tamber (13-035)

8. 1125906 Ontario Inc. (13-039)

9. Wim Van Ravenswaay (13-036)