Krek v. Ontario (Environment and Climate Change), 2015 CanLII 59649

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: September 18, 2015

CASE NO.: 14-039

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

Appellant: Alex Krek

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 157.3(5)(b) and 157.3(6) of Environmental Protection Act to retain a consultant to prepare and complete all specified work respecting assessment and remediation of petroleum impact and ground water from a spill.

Reference No.: 6527-9HBQB9-DO

Property Address/Description: 1033 Bayview Point Road

Municipality: Lake of Bays

Upper Tier: Muskoka

ERT Case No.: 14-039

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

Heard: June 30, 2015, in Toronto, Ontario, and in writing

APPEARANCES:

Parties	Counsel/Representative
Alex Krek	Dennis O’Leary
Director, Ministry of the Environment and Climate Change	Sylvia Davis
Henry Fischler	Self-represented
Dianne Klein	Self-represented
Dieter Knoppke	John Buhlman
Thomas and Ingeborg Sickinger (via TCC)	Thomas Sickinger

ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS

Background

1On May 6, 2014, Cindy Hood, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 6527-9HBQB9-DO (“Director’s Order”) requiring Alex Krek (“Appellant”) to retain a consultant to prepare and complete all specified work respecting assessment and remediation of petroleum impact on ground water from a spill that took place in 1990 at a site located at 1033 Bayview Point Road, Dorset, Lake of Bays, in the District Municipality of Muskoka, Ontario.

2On May 20, 2014, the Appellant filed an appeal of the Director’s Order under s. 157.3(5)(b) and s. 157.3(6) of the Environmental Protection Act (“EPA”) requesting that the Environmental Review Tribunal (“Tribunal”) vary, revoke and provide other relief from the Director’s Order. Also on May 20, 2014, the Appellant delivered a Notice of Allegation requesting that, if the Director’s Order is not rescinded, Dieter Knoppke be added as an orderee. Further background to this proceeding can be found in the Tribunal order dated September 22, 2014, which was issued following the preliminary hearing.

3The preliminary hearing continued on June 30, 2015 in Toronto, Ontario for oral submissions on the parties’ proposed issues in the proceeding. The Tribunal issued an Order with reasons on July 31, 2015 (“Order”) establishing the issues list for this appeal. In that Order, the Tribunal directed that if any party believed that the Tribunal had improperly excluded an issue they had previously proposed, they were to file written submissions by August 14, 2015 explaining why the issue is within the scope of the appeal and why the principles set out in the Order do not apply.

Submissions Received

4The Tribunal received two sets of written submissions. The first was from counsel for Dieter Knoppke who requested confirmation that Issue 6 of the Tribunal’s Order did not exclude jurisdictional issues he proposes to raise in the appeal.

5Additionally Henry Fischler, Dianne Klein, and Thomas and Ingeborg Sickinger (“Added Parties”), filed written submissions requesting that multiple issues that they had previously proposed be added to the issues list, and that new issues be added. No submissions were made by the Added Parties explaining why the principles set out in the Order do not apply. The Added Parties also request that the Tribunal amend Issue 7 to add an additional water supplier or alternatively, to be neutral on the supplier of lake based water.

Discussion, Analysis and Findings

6With respect to the new issues proposed by the Added Parties, and the reiteration of their request to add issues excluded in the earlier Order, the Tribunal notes that there was no submission that the principles relied upon by the Tribunal in its July 31, 2015 Order were improperly applied. The Tribunal finds that all principles remain appropriate to apply.

ORDER

7Relying on the same principles set out in the Order, the Tribunal confirms that the issues proposed by the Added Parties in their additional submissions are excluded from the hearing with the exception that the Tribunal is content to amend Issue 7 to not identify any specific lake based water supplier as set out below. No further issues will be added to the issues list as amended by this Order, which is attached as Appendix 1.

8In consideration of the request for clarification received by the Tribunal in the written submissions, the Tribunal clarifies that Issue 6 does not preclude the parties from raising jurisdictional issues respecting the issue as to whether Mr. Knoppke should be added to the Director’s Order. The Tribunal also clarifies that any submissions relating to remedy, including the Tribunal’s jurisdiction to order a requested remedy, will be addressed after the main issues have been determined. Furthermore, the Tribunal orders that Issue 7 is amended to read as follows:

7. Whether the Tribunal has the jurisdiction to require that the lake-based water supply required in the Director’s Order (para. 2):

a. Be provided by a specific supplier, or

b. Have a maintenance plan embedded as part of the Director's Order.

Issues List Amended

Procedural Directions Ordered

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

Appendix 1 - Amended Issues 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

Appendix 1

Amended Issues List

1. Whether Mr. Krek has management or control of a source of contamination and is, therefore, properly subject to the Director’s Order (paras. 74 and 82).

2. Whether the MOECC lacked jurisdiction to issue the Provincial Officer’s Order or the Director’s Order because:

a. There is no discharge or threat of discharge of a contaminant (para 74);

b. There is no evidence that fuel oil has migrated and adversely affected any property other than the Knoppke property (para. 74);

c. Mr. Krek no longer has care, custody or control of the contamination (para. 83); or

d. MOECC has contributed to the harm (para. 76).

3. Whether the Orders should be should be struck or modified as counter to the principle of fairness and to the MOECC’s policies (para. 77).

4. Whether the Orders require activities that are not practicable and are inconsistent with s. 91(3) of the EPA, having regard for “the technical, physical and financial resources that are or can reasonably be made available” (para. 78). A related question is whether Alex Krek’s financial circumstances are relevant to the Director’s jurisdiction and decision to issue the order, and/or to the Tribunal’s determination of the appeal.

5. Whether the Orders amount to a denial of natural justice and fairness as they place Mr. Krek in “double jeopardy” due to law suits; or could place him in a situation where he will be unable to comply with any Court Order (para. 80).

6. To the extent that all or any portion of the Orders are upheld, whether parties should be added to the Director’s Order (paras, 75, 81 and 84) and, if so:

a. Whether Dieter Knoppke should be added to the Orders (including whether there are reasons specific to this appeal that prevent naming him. i.e., issue estoppel, abuse of process); and

b. Whether the Orders should contemplate use of Mr. Knoppke’s remedial fund of $150,000 (para. 81).

7. Whether the Tribunal has the jurisdiction to require that the lake-based water supply required in the Director’s Order (para. 2):

a. Be provided by a specific supplier, or

b. Have a maintenance plan embedded as part of the Director's Order.