Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 2, 2016
CASE NO(S).: 12-050, 15-135
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Wilfred J. Goldlust (File No. 12-050)
Appellant: Trillium Recovery Inc. (File No. 12-051)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to carry out work regarding the discharge of a contaminant
Reference No.: 2362-8URQYB-1
Property Address/Description: Site 1: Part Lots 14, 15,16 and 17, Concession 1 Site 2: 39 Manstor Road
Municipality: Site 1: Township of North Cayuga Site 2: City of Toronto
Upper Tier: Site 1: County of Haldimand
ERT Case No.: 12-050
ERT Case Name: Goldlust v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Wilfred J. Goldlust (File No. 15-135)
Appellant: Trillium Recovery Inc. (File No. 15-136)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to carry out work regarding the discharge of a contaminant
Property Address/Description: Part Lots 14, 15, 16 and 17, Concession 1
Municipality: Township of North Cayuga
Upper Tier: County of Haldimand
ERT Case No.: 15-135
ERT Case Name: Goldlust v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
Parties Wilfred Goldlust and Trillium Recoveries Inc. Counsel Mauro Marchioni
Parties Director, Ministry of the Environment and Climate Change Counsel Nicholas Adamson
Parties Greenmountain Landscaping Inc. and Joe Manuel DeSousa Counsel Richard Startek
Participants Lexie and Walter Raddick Self-represented
Helga Reiss Self-represented
DECISION DELIVERED BY DIRK VANDERBENT
REASONS
Background
1These proceedings arise as a result of an investigation by the then Ministry of the Environment, now the Ministry of the Environment and Climate Change (“MOECC”) in relation to the alleged deposit on or about February 24, 2012 of contaminated soil at a former rail line property located in the Township of North Cayuga (“Cayuga”) in the County of Haldimand (“County”). The site was formerly owned by CN Railway, and is a long, narrow strip of land approximately one kilometre long and several metres wide, that is zoned agricultural and bordered by residences and farms. It is comprised of part of Lots 14, 15, 16 and 17 in Concession 1 of the County (the “Site”).
2On June 5, 2012, Martin McConnochie, a Provincial Officer with the Hamilton District Office of the MOECC issued Order No. 2362-8URQYB (the “P.O. Order”) to Trillium Recovery Inc. and Wilfred J. Goldlust (who allegedly are responsible for sending contaminated soil to the Site), as well as the owner of the Site, 1856901 Ontario lnc. (which accepted the contaminated soil), and its sole directing officer Jovan Kresojevic, pursuant to s. 157 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (“EPA”). The Provincial Officer’s Report, on which the P.O. Order is based, identified several possible contraventions of the EPA relating to the deposit of waste without an environmental compliance approval and the provision of false and misleading information. The P.O. Order ordered the named parties to undertake five work items.
3On June 11, 2012, Trillium Recovery Inc. and Wilfred J. Goldlust requested a review of the Order by the Director, in accordance with s. 157.3 of the EPA. On June 18, 2012, the Director confirmed the Order (the “Work Order”).
4On June 29, 2012, Trillium Recovery Inc. and Mr. Goldlust (the “Appellants”) jointly filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) requiring a hearing respecting the Work Order. 1856901 Ontario lnc. and Mr. Kresojevic did not appeal the Work Order.
5The parties agreed to participate in Tribunal assisted mediation which commenced on May 9, 2013, and was ongoing through the years 2014 and 2015, as the parties successfully worked to obtain a resolution of the issues raised in these proceedings.
6In order to implement the resolution contemplated by the parties, Geoff Knapper, Director MOECC, issued an order on October 9, 2015 to Trillium Recovery Inc., Mr. Goldlust, 1856901 Ontario lnc., and Mr. Kresojevic (the “Implementation Order”).
7On October 23, 2015, Trillium Recovery Inc. and Mr. Goldlust jointly filed a Notice of appeal with the Tribunal requiring a hearing respecting the Implementation Order. 1856901 Ontario lnc., and Mr. Kresojevic did not appeal the Implementation Order. Consequently, Trillium Recovery Inc. and Mr. Goldlust are the sole Appellants in the appeals of the Work Order and the Implementation Order.
8On October 28, 2015, Mr. Goldlust and Trillium Recovery Inc., entered into a written agreement with the Director, entitled “Minutes of Settlement”. This agreement provides that, once certain work is completed (which is described below), the parties will request that the Tribunal revoke Work Item No. 1 of the Work Order and that the Appellants’ appeals of both Orders be withdrawn. On October 30, 2015, the parties filed the Minutes of Settlement with the Tribunal. Because the parties’ agreement proposes to change the Work Order by withdrawing Work Item No. 1, the parties acknowledge that Rule 201 of the Tribunal’s Rules of Practice applies, which requires that the Tribunal review the settlement in light of the applicable legislation and the public interest, and to consider the interests of the participants, before it accepts the withdrawal of the appeal and dismisses this part of the proceeding. The parties further requested that the Tribunal provide them with provisional approval of the Minutes of Settlement, prior to the Appellants commencing the work required under the Implementation Order.
9The Tribunal granted their request for provisional approval of the Minutes of Settlement. Further background information regarding these appeals is set out in the Tribunal’s orders dated July 31, 2012, April 2, 2013, and December 16, 2015.
10The Tribunal’s Order dated December 16, 2015 states, at paras 17 and 18:
The Tribunal conditionally accepts the Minutes of Settlement executed on October 17, 2015 pending receipt of confirmation that the fill cap has been installed in compliance with the requirements of the Implementation Order.
Upon confirmation that the fill cap has been installed in compliance with the requirements of the Implementation Order and upon receipt of a joint request of the parties to terminate these proceedings, the Tribunal will issue a decision that will:
a. amend the Work Order by revoking Work Item No. 1, accept the Appellants’ withdrawal of their appeal respecting the Work Order, and otherwise dismiss their appeal; and
b. accept the Appellants’ withdrawal of their appeal respecting the Implementation Order, and dismiss their appeal.
11Subsequent to the Tribunal’s Order on December 16, 2015, the Director, by email dated January 28, 2016, advised the Tribunal that the fill cap has been installed as required by the Implementation Order. By email sent to the Tribunal on February 4, 2016, Mauro Marchione, counsel for the Appellant, submitted a joint request, on behalf of all parties, to amend the Work Order and otherwise withdraw the appeals. In his email, Mr. Marchione further noted that the parties agree that the appeals are to be dismissed without costs.
Relevant Legislation and Rules
12Environmental Protection Act
3(1). The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of Practice of the Tribunal
Termination of Proceedings
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.
Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Discussions, Analysis and Findings
13As noted above, in its Order dated December 16, 2015, the Tribunal found that Rule 201 applies to the Work Order, as the proposed settlement amends the Work Order by revoking Work Item No. 1. The Tribunal further found, after considering the interests of the participants, that the proposed settlement is in the public interest. As the parties have now confirmed that the fill cap has been installed in compliance with the requirements of the Implementation Order and have jointly submitted a request to terminate these proceedings, the Tribunal grants their request to dismiss this part of the proceeding respecting the Work Order.
14Similarly, in its Order dated December 16, 2015, the Tribunal found that Rule 199 applies to the Appellants’ request to withdraw their appeals of the Implementation Order, as the parties are not seeking to amend the Implementation Order. Again, as the pre-conditions set out in the Tribunal’s Order dated December 16, 2015 have now been satisfied, the Tribunal dismisses this part of the proceeding respecting the Implementation Order.
DECISION
15The Director is directed to amend Work Order by revoking Work Item No. 1.
16The Tribunal otherwise accepts the Appellants’ proposed withdrawal of their appeals and the appeals are dismissed.
Work Order Amended
Appeals Dismissed
“Dirk VanderBent”
DIRK VANDERBENT
VICE-CHAIR
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