Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: November 13, 2015

CASE NO.: 13-110

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

Appellant: See Appendix 1 - Appellant list

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order regarding the removal of waste ash

Reference No.: 6726-8YAN85-1

Property Address/Description: 23449 Woodbine Avenue

Municipality: Georgina

Upper Tier: Regional Municipality of York

ERT Case No.: 13-110

ERT Case Name: Peel (Regional Municipality) v. Ontario (Environment and Climate Change)

Heard: September 15, 2015 in East Gwillimbury, Ontario, and September 24 and 29, 2015, October 6, 2015 and November 6, 2015 by telephone conference call

APPEARANCES:

Parties	Counsel/Representative⁺
Regional Municipality of Peel	Marc McAree, Richard Butler and Robert Woon
Keswick Presbyterian Church	Patrick Welsh
Donald Constable	Self-represented and Jurgen Hebel*
Mark Lawrence, Greenpath Inc. and Greenpath Eco Group Inc.	Donald Constable⁺ and Jurgen Hebel*
Director, Ministry of the Environment and Climate Change	Danielle Meuleman and Katie Clements

Participants | --- | --- City of Toronto | Graham Rempe and Scott Pasternak Ontario Waste Management Association | John Tidball

• November 6, 2015 only

ORDER DELIVERED BY MARCIA VALIANTE

REASONS

Background

1In March of 2009, the Ministry of the Environment and Climate Change (“MOECC”) issued Certificate of Approval No. 6601-7P4J7C (the “CofA”) for a waste disposal site located at 121 Watline Avenue, in Mississauga, Ontario (the “Watline site”) to Greenpath Inc. (“Greenpath”). Donald Constable and Mark Lawrence are or were directors or officers of Greenpath. The CofA authorized use of the Watline site for the processing of waste ash provided by the Regional Municipality of Peel (“Peel”) from its Algonquin Power Energy from Waste Facility.

2In 2009, the Keswick Presbyterian Church (the “Church”) constructed a new building, driveway and parking lot on a property located at 23449 Woodbine Avenue, Georgina, in the Regional Municipality of York (the “Site”). The MOECC alleges that fill deposited on the Site during construction was unprocessed waste ash from the Watline site, delivered to the Site by Antonio Cruz.

3On November 23, 2012, Provincial Officer Dave Fumerton issued Provincial Officer’s Order No. 6726-8YAN85 (the “Provincial Officer’s Order”) to Greenpath, Greenpath Eco Group Inc., Mr. Constable, Mr. Lawrence, Mr. Cruz, the Church, and Peel, requiring them, jointly and severally, by specified dates, to retain the services of a qualified person, to have that person remove all waste ash from the Site in accordance with identified procedures and submit a report summarizing the removal, for the Church and any other person with an interest in the Site to provide a copy of the Provincial Officer’s Order to any person acquiring an interest in the Site, and for the Church to ensure that a certificate of requirement under s. 197(2) of the Environmental Protection Act (“EPA”) be registered on title.

4The orderees other than Mr. Cruz requested review, stay and/or amendment of the Provincial Officer’s Order by the Director, MOECC, pursuant to s. 157.3 of the EPA. Tina Dufresne, Director, MOECC, stayed the Provincial Officer’s Order pending her review and decision. On August 13, 2013, she issued Director’s Order No. 6726-8YAN85-1 (the “Director’s Order”), confirming the actions required in the Provincial Officer’s Order, altering the dates for compliance, making minor amendments, and removing Mr. Cruz as a person to whom the order applies.

5On September 3, 2013, Peel filed a notice of appeal of the Director’s Order with the Environmental Review Tribunal (the “Tribunal”), in which it requested a stay of Items 1, 2 and 3 of the Director’s Order pending the disposition of the appeal, and also filed notices of allegation regarding several persons. On September 5, 2013, Mr. Constable, Mr. Lawrence, Greenpath and Greenpath Eco Group Inc. filed a notice of appeal, notice of a request for a stay, and notice of a request to add a party with the Tribunal. They requested a stay of Items 2 and 3 of the Director’s Order. As of September 9, 2013, they completed Item 1. Also on September 5, 2013, the Church filed a notice of appeal with the Tribunal, in which it requested a stay of the Director’s Order. As of August 30, 2013, the Church completed Item 5; since then, it has complied with Item 4 of the Director’s Order.

6On October 3, 2013, the Tribunal stayed items in the Director’s Order to specified dates to accommodate negotiations among the Director, the Church, Mr. Constable, Mr. Lawrence, Greenpath and Greenpath Eco Group Inc. regarding a possible resolution of the matters in the appeal. The Tribunal extended the stay several times to specified dates, then, in its Order dated May 20, 2014, the Tribunal stayed the Director’s Order until the resolution of the appeals. The parties requested that the Tribunal not schedule the preliminary hearing or the hearing of the appeals, due to further investigations being carried out by the MOECC and the possibility that new orders would be issued by the Director, which might lead the Director to revoke the Director’s Order.

7On June 22, 2015, the Director posted an instrument proposal notice for proposed new orders against the parties to these appeals on the Environmental Registry, with comments to be received by August 6, 2015; however, to date the Director has not yet determined whether to issue those orders and whether to revoke the Director’s Order that is the subject of these appeals.

8On July 7, 2015, Peel filed a notice of motion in which it requests an order revoking the Director’s Order as against it. On July 21, 2015, the Tribunal informed the parties that it would schedule the preliminary hearing first and hear submissions at that time regarding whether the matters raised in Peel’s notice of motion are more appropriately addressed by way of motion or should be addressed instead in the main hearing of the appeals.

9On September 15, 2015, the Tribunal held the preliminary hearing in East Gwillimbury, Ontario.

10On September 22, 2015, the Tribunal informed the parties that it will hear Peel’s motion to revoke prior to the hearing of the appeals. Subsequently, the Tribunal held telephone conference calls with the parties on September 24 and 29, October 6 and November 6, 2015 to discuss scheduling of disclosure, the filing of motion materials and the hearing of the motion to revoke.

Issues

11The issues are:

a. Whether to hear Peel’s motion to revoke prior to the hearing of the appeals; and

b. Whether to grant participant status to the City of Toronto and the Ontario Waste Management Association.

Relevant Rules

12Rules of Practice of the Environmental Review Tribunal

Naming of a Party

63. 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.

Naming of a Participant

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a party’s would be. A person who may otherwise qualify as a Party may request Participant status.

Role of a Participant

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant’s interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

Hearing of Motions

97. The Tribunal may determine when a motion will be heard.

Disclosure Ordered by Tribunal

163. The Tribunal may, at any stage of the proceeding, make orders for:

(a) the exchange of documents …

Disclosure of Documents

166. All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.

Discussion, Analysis and Findings

Issue 1: Whether to hear Peel’s motion to revoke prior to the hearing of the appeals

13Peel submits that the Tribunal should hear its motion to revoke prior to the hearing of the appeals. It submits that the Director’s Order is aimed at two waste transfers, a “lawful” transfer from Peel’s facility to the Watline site where the waste ash was accepted by Greenpath, ending Peel’s liability, and an “unlawful” transfer from the Watline site to the Site in which Peel had no involvement. According to Peel, the imposition of the Director’s Order against it for the “lawful” transfer raises a distinct legal issue regarding the transfer of ownership of waste and the protection from liability upon the acceptance of waste under s. 42 of the EPA. It argues that if this issue were resolved successfully on a motion, the question of responsibility for the “unlawful” transfer and cleanup of the Site would become the focus of the hearing of the appeals, which would make for a more efficient and cost-effective determination of all of the issues than requiring Peel to prepare for and attend the entire hearing.

14The Director submits that the motion to revoke is in essence about the very issues in the appeal and should be dealt with as part of the main hearing. She submits that, while the motion could have been limited to the narrow issue of the interpretation of s. 42 of the EPA, in fact the notice of motion is broader and requires a consideration of the entire factual context that forms the basis for the Director’s Order and the appeals. The Director notes that the test the Tribunal has applied in determining whether to grant a motion to revoke brought in advance of the hearing is whether there is “no genuine issue” to be determined in the hearing. The Director argues that her preparation for the motion will duplicate her preparation for the hearing itself, which would not be an efficient way to conduct the proceeding. The Director also raises a concern that the motion would be heard prior to disclosure by the parties.

15The Church does not take a position on the substance of Peel’s request but submits that the procedure the Tribunal follows should be one where duplication is minimized.

16Mr. Constable does not take a position on whether the motion to revoke should be heard prior to the hearing of the appeals, but notes that he, Mr. Lawrence and the Greenpath companies would like to have all of the issues settled in a timely way.

17The Tribunal does not necessarily accept Peel’s characterization of the issues in the appeal as involving “lawful” and “unlawful” transfers of waste that are completely separate. Nevertheless, the Tribunal finds that there is the potential for inefficiencies in the process whether Peel’s motion to revoke is heard prior to, or as part of, the hearing of the appeals. While development of the factual foundation for the motion to revoke may involve some duplication of the evidence that will be needed in the hearing of the appeals, there is also the possibility that Peel would be required to participate unnecessarily in a lengthy hearing. At this stage, it is not possible to know, with certainty, where the greater burden lies. On balance, however, the Tribunal finds that proceeding with the motion first appears to be the most efficient and appropriate path forward so long as the Director’s concerns about disclosure are addressed.

18After considering the submissions made by the parties, the Tribunal agreed to hear Peel’s motion to revoke prior to the hearing of the appeals. However, the Tribunal also agreed with the Director that it would be unfair to do so prior to disclosure by all parties, so the Tribunal directed that disclosure of all relevant documents in the possession, control or power of a party is to be completed prior to the filing of motion materials.

Issue 2: Whether to grant participant status to the City of Toronto and the Ontario Waste Management Association

19The City of Toronto and the Ontario Waste Management Association both sought participant status for the limited purpose of making legal submissions on the issues raised in the Peel motion to revoke. They both seek to address the meaning of s. 42 of the EPA and the implications for the waste management industry if the grounds for including Peel in the Director’s Order are upheld. No party objected to their participation.

20The Tribunal granted participant status to the City of Toronto and the Ontario Waste Management Association for the purpose of Peel’s motion to revoke and, if that motion is unsuccessful, at the hearing of the appeals. The Tribunal finds that each of them has a genuine public interest in the subject matter of the appeals and will make a relevant contribution to the Tribunal’s understanding of the issues.

ORDER

21The Tribunal grants participant status to the City of Toronto and the Ontario Waste Management Association for the purpose of Peel’s motion to revoke and, if that motion is unsuccessful, at the hearing of the appeals.

22The Tribunal orders that Peel’s motion to revoke be heard prior to the hearing of the appeals.

23The Tribunal directs the exchange of disclosure and filing of motion materials in respect of Peel’s motion to revoke be completed in accordance with the following schedule:

October 30, 2015 Disclosure by all parties (other than Mr. Constable, Mr. Lawrence, Greenpath and Greenpath Eco Group Inc.) pursuant to Rule 166 of the Tribunal’s Rules of Practice

November 18, 2015 Peel serves and files its Motion Record

December 8, 2015 Responding parties serve and file Motion Records

December 11, 2015 Disclosure by Mr. Constable, Mr. Lawrence, Greenpath and Greenpath Eco Group Inc. pursuant to Rule 166 of the Tribunal’s Rules of Practice

December 16, 2015 Peel serves and files reply affidavits, if necessary

January 11, 2016 Cross-examination on affidavits

February 4, 2016 Peel and Participants serve and file their Facta and Books of Authorities

February 22, 2016 Responding parties serve and file their Facta and Books of Authorities

March 1, 2016 Hearing of the Motion at 655 Bay Street, Toronto

Requests for Participant Status Granted Request to Schedule Motion Granted Procedural Directions Ordered

“Marcia Valiante” MARCIA VALIANTE MEMBER

Appendix 1 - Appellant List

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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

Appellant List

Appellant Name	File No.
Regional Municipality of Peel	13-110
Keswick Presbyterian Church	13-111
Donald Constable	13-112
Mark Lawrence	13-113
Greenpath Inc.	13-114
Greenpath Eco Group Inc.	13-115