Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: August 28, 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: August 19, 2015 by telephone conference call
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+
DTZ Barnicke Niagara Limited, Taylor Wilson and Todd Howard Crawford
John Tidball
Corporation of the Town of Fort Erie
Christine Carter
PPG Industries Ohio, Inc. and PPG Industries, Inc.
Gatlin Smeijers
Serious Business Inc., Allcolour Paint Ltd., Amercoat Canada, Rubyco Inc., and Danroh Inc.
Rosalind Cooper
Participant
Regional Municipality of Niagara
Leonard Griffiths
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 orally granted party status to Taylor Wilson, Todd Howard Crawford, Carvern Petrochemical Co. Ltd., Carvern International Industries Ltd., the Corporation of the Town of Fort Erie, PPG Industries Ohio, Inc., PPG Industries, Inc., Serious Business Inc., and Allcolour Paint Ltd., and granted participant status to the Regional Municipality of Niagara. The Tribunal confirmed this Order in writing on July 16, 2015.
4The preliminary hearing was continued by way of telephone conference call (“TCC”) on August 19, 2015 at which time the Tribunal considered additional requests for status made by Amercoat Canada, Rubyco Ltd. and Danroh Inc., and adjourned the preliminary hearing on consent to a TCC to be held on October 15, 2015 at 10 a.m.
ISSUE
5The issue is whether to grant party status to Amercoat Canada, Rubyco Ltd. and Danroh Inc.
Relevant Rules
6The 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.
Discussion, Analysis and Findings
Requests for Party Status
7Rosalind Cooper represented Amercoat Canada, Rubyco Ltd. and Danroh Inc. at the preliminary hearing TCC on August 19, 2015. She stated that Amercoat Canada, Rubyco Ltd. and Danroh Inc. are named in 1350095 Ontario Limited’s and Mr. Robertson’s Notice of Allegation, dated May 25, 2015, and each may be directly affected by the outcome of the appeal. She said each company has an interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues.
8No party objected to Ms. Cooper’s requests to have each of these companies granted party status. The Tribunal finds that as potential orderees, these companies may be directly affected by the outcome of the appeal and they each meet the criteria under Rule 63. The Tribunal grants each of them party status.
Other Procedural Issues
9Matthew Gardner, representing Mr. Robertson and 1350096 Ontario Limited, provided an update on progress in completing the work required under the interim amendments to the Director’s Order. He said much of the work is expected to be completed by late September and he proposed that the identification of issues and setting of procedural deadlines should be further postponed until mid-October 2015 when the work is expected to be completed and the parties should have a clearer view of ways forward.
10No party was opposed to the suggested adjournment. However, Andrea Huckins, counsel for the Director, raised the question of whether added parties in these proceedings may raise new issues and suggested that this should be addressed by the Tribunal before procedural due dates are set. Ms. Cooper expressed her clients’ interest in promptly bringing a motion to strike the allegations against them from the Notice of Allegation, dated May 25, 2015, prior to the hearing of the appeal. Counsel for DTZ Barnicke Niagara Limited, Mr. Wilson, Mr. Crawford, the Corporation of the Town of Fort Erie, PPG Industries Ohio, Inc., and PPG Industries, Inc. stated that they may also wish to bring motions to strike prior to a hearing of the appeals.
11As completion of the work under the interim amendments to the Director’s Order may resolve many, if not all, of the issues under appeal, the Tribunal finds that it is practical to postpone the setting of procedural due dates, identification of issues, and scheduling of any motions until after the work is more fully completed and the parties have a clearer view of the next steps required.
12The Tribunal adjourns the preliminary hearing to a TCC to be held on October 15, 2015 at 10 a.m.
ORDER
13The Tribunal grants party status to Amercoat Canada, Rubyco Ltd., and Danroh Inc.
14The preliminary hearing is adjourned to a TCC to be held on October 15, 2015 at 10 a.m. The Tribunal case coordinator will forward call-in details for the TCC to the parties.
Party 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