Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: October 9, 2015

CASE NO: 10-055

PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Technical Standards and Safety Authority (ERT Case No. 10-055)

Appellant: Doug C. Thompson Fuels Ltd. (ERT Case No. 10-058)

Appellant: Wayne Gendron (ERT Case No. 10-059)

Appellant: Liana Gendron (ERT Case No. 10-060)

Respondent: Corporation of the City of Kawartha Lakes

Subject of appeal: Order to pay in relation to the clean-up of a spill

Property Address/Description: Municipal property adjacent to 93 and 95 Hazel Street

Municipality: Township of Verulam

Upper Tier: City of Kawartha Lakes

ERT Case No.: 10-055

ERT Case Name: Technical Standards and Safety Authority v. Kawartha Lakes (City)

Heard: September 24, 2015 by telephone conference call

APPEARANCES:

Parties Wayne and Liana Gendron

Counsel Fahreen Kurji

Parties Corporation of the City of Kawartha Lakes

Counsel Christine Carter

ORDER DELIVERED BY JERRY V. DEMARCO AND HUGH S. WILKINS

REASONS

Background

1On June 15, 2010, the Corporation of the City of Kawartha Lakes (the “City”) issued orders against the Technical Standards and Safety Authority (“TSSA”), Doug C. Thompson Fuels Ltd. operating as Thompson Fuels (“Thompson Fuels”), and Wayne and Liana Gendron (the “Gendrons”), pursuant to s. 100.1(1) of the Environmental Protection Act (“EPA”) (the “s. 100.1 Orders”). The s. 100.1 Orders require the appellants to pay $471,691.44 in relation to a clean-up of furnace oil performed by the City on municipal property adjacent to 93 and 95 Hazel Street, in the City of Kawartha Lakes, Ontario.

2On July 29 and 30, 2010, the appellants filed notices of appeal with the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 100.1(7) of the EPA. Only the appeals by the Gendrons (Tribunal File Nos.: 10-059 and 10-060) remain before the Tribunal.

3In parallel to these proceedings before the Tribunal, both the Gendrons and the City have brought separate civil proceedings relating to the spill, which affected both the Gendrons’ property and the City’s. The civil proceedings were consolidated on consent. The City’s civil proceedings seek similar relief to that sought in the s. 100.1 Orders being appealed to the Tribunal and include the Gendrons as defendants.

4The proceedings before the Tribunal have been adjourned several times to, among other reasons, avoid duplication with the civil actions before the Ontario Superior Court. In its most recent adjournment order, dated February 12, 2015, the Tribunal found, at para. 36, that “[w]ithout a declaration from the City that it will forego its civil claims and continue solely on the Tribunal proceeding track, the risk of duplication of efforts and the potential loss of opportunities for a global resolution remain”. It found that the City had shown no signs at that time that it would forego its civil claim and the Tribunal adjourned the proceeding.

5Further background to this proceeding is set out in the Tribunal’s Order, dated February 12, 2015.

6On September 23, 2015, the Tribunal received correspondence from counsel for the Gendrons and from counsel for the City, updating the Tribunal on the status of both the appeal and the civil proceedings. In its correspondence, the City stated that it “does not intend to pursue the civil action once the ERT hearing is complete”. However, it stated that it “is not in a position to finalize settlement of the civil action with the parties other than Gendron and its insurer unless and until it can be assured that the ERT hearing will in fact proceed”. It requested that hearing dates before the Tribunal be set immediately.

7On September 24, 2015, the Tribunal held a status update telephone conference call (“TCC”) at which the City clarified to the Tribunal and to the Gendrons that the City undertakes not to pursue the civil action if the Tribunal hearing proceeds, even if the City is unsuccessful at that hearing. Based on these submissions, the Tribunal found that there has been a significant change in circumstances from those at the time of the February 12, 2015 Order. Based on this change, the Tribunal indicated that it was prepared to set hearing dates and procedural deadlines for this proceeding. During the TCC, the parties agreed on hearing dates and undertook to provide the Tribunal with deadlines for all remaining procedural steps (which they did by email later that day). The dates are set out below. The Tribunal observed that, should circumstances change once again, the parties may seek further procedural directions from the Tribunal.

ORDER

8The Tribunal directs the following due dates for the exchange of documents and filing of witness statements and documents to be relied on at the hearing:

November 16, 2015 All documents relevant to this proceeding are to be exchanged by the Parties.

November 30, 2015 The City to advise the Gendrons which invoices it intends to pursue.

December 11, 2015 The Gendrons to advise the City which invoices they intend to challenge.

December 30, 2015 The City’s witness statements and documents to be relied on at the hearing are to be served on the Gendrons and filed with the Tribunal.

January 29, 2016 The Gendrons’ witness statements and documents to be relied on at the hearing are to be served on the City and filed with the Tribunal.

February 5, 2016 The City’s reply witness statements and reply documents (if any) to be relied on at the hearing are to be served on the Gendrons and filed with the Tribunal.

9The hearing of the appeal shall commence on February 22, 2016 at 10 a.m. and is scheduled to continue until March 4, 2016. The Tribunal case coordinator will inform the parties of the location of the hearing at a later date.

10The City shall proceed first at the hearing, followed by the Gendrons and any reply evidence by the City.

Hearing Dates Scheduled

Procedural Directions Ordered

“Jerry V. DeMarco” JERRY V. DEMARCO ASSOCIATE CHAIR

“Hugh S. Wilkins” HUGH S. WILKINS MEMBER

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