Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 10, 2016
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: February 10, 2016 by telephone conference call and February 18, 2016, in Toronto, Ontario and by telephone conference call
APPEARANCES:
Parties
Counsel
Wayne and Liana Gendron
Martin Forget and Fahreen Kurji
Corporation of the City of Kawartha Lakes
Christine Carter and Michael Krygier-Baum
Technical Standards and Safety Authority
Adam Grant
Doug C. Thompson Fuels Ltd.
Albert Wallrap
Les Reservoirs D’Acier de Granby Inc.
Brian G. Sunohara
ORDER DELIVERED BY JERRY V. DEMARCO AND HUGH S. WILKINS
REASONS
Background
1These are the reasons for the Tribunal’s Order dated February 19, 2016, which disposed of a motion addressing the proper scope of a hearing under s. 100.1 of the Environmental Protection Act (“EPA”). The appellants, Wayne and Liana Gendron, argue in favour of a wide scope while the respondent, City of Kawartha Lakes, along with several added parties that received Notices of Allegation from the Gendrons, argue for a narrower scope. For the reasons set out below, the Tribunal finds that the proper scope of a hearing before the Tribunal under s. 100.1 is narrow and is defined solely by s. 100.1(15) of the EPA.
2The background to this proceeding is summarized in the Tribunal’s Order dated January 22, 2016. Briefly stated, two appeals (i.e., those by Wayne and Liana Gendron) of orders to pay for the costs of a spill clean-up (the “s. 100.1 Orders”) that were issued by the Corporation of the City of Kawartha Lakes (the “City”) remain before the Tribunal.
3As noted in paragraphs 37-38 of the Tribunal’s January 22, 2016 Order (Technical Standards and Safety Authority v Kawartha Lakes (City), 2016 2592), the Tribunal put into place a mechanism to address the scope of evidence in advance of the main hearing, which was scheduled to commence on February 22, 2016:
In light of the Gendrons’ draft list of witnesses and the wording of the revised Notice of Appeal, the Tribunal will hold a TCC in early February 2016 to address procedural issues that may arise in relation to the upcoming hearing so as to ensure that the Tribunal stays within the statutory mandate of s. 100.1(15). Having regard to the content of witness statements that will have all been filed by the time of the TCC and in light of the wording of s. 100.1(15), the parties should be prepared to demonstrate at the TCC the relevance of the evidence set out in each witness statement for witnesses to be called or set out in the evidence summary (see Rule 192(b)) provided for any witness that may be the subject of a request for a summons. Any party who seeks to have all or parts of a witness statement struck or to request that the Tribunal refuse to issue a summons or circumscribe the evidence to be provided under a requested summons shall serve and file submissions on why the anticipated evidence is not relevant two days prior to the upcoming TCC. The Tribunal will subsequently provide appropriate direction to the parties so that the hearing scheduled to commence on February 22, 2016 will proceed efficiently.
Given that the Gendrons have indicated that they intend to request a summons for some witnesses on their draft witness list, the Tribunal directs that the materials required under Rule 192 for all witnesses expected to be the subject of a request for a summons shall be served and filed together with the Gendrons’ witness statements by the January 29, 2016 deadline for their witness statements and documents to be relied on. This will provide the parties and the Tribunal with sufficient information to address procedural issues, including issues pertaining to the evidence of all witnesses (whether subject to a summons request or not) during the TCC in early February 2016.
4The Tribunal held the above-mentioned telephone conference call (“TCC”) on February 10, 2016. Prior to the TCC, the City indicated in written submissions dated February 5, 2016 that it was seeking to strike the Gendrons’ proposed revised Notice of Appeal dated December 21, 2015, the Gendrons’ three Notices of Allegation, and a significant portion of the Gendrons’ witness statements. The City also expressed its opposition to the issuance of summonses for several witnesses that the Gendrons were seeking to call. During the February 10, 2016 TCC, it became clear that there was a divergence of opinion between the City and the Gendrons as to the proper measuring stick for assessing the relevance of the Gendrons’ intended evidence. The Gendrons submitted that their evidence was relevant to their Notice of Appeal and proposed revised Notice of Appeal, while the City submitted that relevance should be measured against s. 100.1(15) of the EPA. Several non-parties also participated in the TCC and indicated that they wished to have status to speak to the issue of the proper scope of the proceeding.
5During the February 10, 2016 TCC, the Tribunal provided procedural directions to the parties, setting out deadlines for the receipt of motion materials. Subsequent to the TCC, the Tribunal granted status to participate in the motions to three added parties on consent, as set out in its order dated February 12, 2016. Those three added parties, Technical Standards and Safety Authority (“TSSA”), Doug C. Thompson Fuels Ltd. (“Thompson Fuels”) and Les Reservoirs D’Acier de Granby Inc. (“Granby”), had received Notices of Allegation from the Gendrons in January 2016. The Notices seek contribution and indemnification from TSSA, Thompson Fuels, and Granby pursuant to s. 100.1(6) of the EPA.
6On February 12, 2016, the Tribunal received correspondence from the Gendrons noting that they were relying only on their original Notice of Appeal and would not seek leave to rely on the additional grounds set out in their proposed revised Notice of Appeal. Also, on February 12, 2016, the City confirmed its position that aspects of the Gendrons’ original Notice of Appeal, and not just the proposed revised Notice, are beyond the scope of a s. 100.1(15) hearing.
7The Tribunal received all additional written submissions on February 16 and 17, 2016 and correspondence from the Gendrons withdrawing the Notices of Allegation on February 17, 2016. The Tribunal held an in-person motion hearing on February 18, 2016, with all counsel present except Albert Wallrap, who participated by TCC. These are the reasons for the Tribunal’s order dated February 19, 2016, which directed the parties to confine this proceeding solely to the matters set out in s. 100.1(15) of the EPA.
Relevant Legislation and Rules
8The relevant provisions of the EPA and the Tribunal’s Rules of Practice are found in Appendix 1.
Issue
9The issue in this motion is whether the scope of the Gendrons’ appeals should be restricted so as to exclude evidence and argument on matters that fall outside of s. 100.1(15) of the EPA.
Summary of Submissions
The Changing Context for the Motion
10This motion proceeded by way of initial written submissions in early February 2016, a TCC on February 10, 2016, further written submissions, and then in-person oral submissions on February 18, 2016. The context for the motion changed throughout that process.
11At the beginning of the written process, the context for the motion included the following documents from the Gendrons: (1) a proposed revised Notice of Appeal, which the City anticipated the Gendrons would be seeking leave to rely on; (2) witness statements for nine witnesses (down from an initial list of 28), including some that would be subject to a request for a summons; and (3) Notices of Allegation against TSSA, Thompson Fuels and Granby.
12At the oral motion hearing on February 18, 2016, the context of the motion was significantly different because: (1) on February 12, 2016, the Gendrons indicated that they would not be seeking to rely on their proposed revised Notice of Appeal; (2) on February 17, 2016, the Gendrons withdrew the Notices of Allegations; and (3) at the motion hearing itself, the Gendrons indicated that they would only seek to call up to three witnesses at the main hearing. Adding to the dynamic situation was the fact that some of the Gendrons’ recent actions were apparently based on their own understanding of the situation, which involved an assumption that the City had recovered or would be recovering its remaining clean-up costs from others. This view apparently motivated some of the actions taken by the Gendrons even though that view was not shared by the City and added parties.
13At the motion hearing on February 18, 2016, the Tribunal noted its concern about the “moving target” nature of the proceedings given that the main hearing was scheduled to start only a few days later. Consequently, in its order dated February 19, 2016, the Tribunal not only addressed the context as of the point in time at the end of oral submissions on February 18, 2016, but also brought some certainty to issues that might arise again if the “target” moved again before the main hearing. For example, on the Notices of Allegation issue, the Tribunal not only accepted their withdrawal, but also prohibited the Gendrons from pursuing the allegations set out in those Notices at the hearing. The specific orders rendered by the Tribunal on February 19, 2016 were aimed at ensuring that a fair and efficient main hearing would come about, despite the changing circumstances leading up to it.
14In light of the above, the Tribunal has included below summaries of both the written and oral submissions of the parties, while recognizing that the context for those submissions was in a state of flux over the course of the written submissions, the February 10, 2016 TCC and the February 18, 2016 motion hearing.
The City’s Written Submissions
15The City argued that permitting the Gendrons to amend their Notice of Appeal would not be proper as the proposed revised Notice of Appeal was served late in the proceeding and the proposed amendments are irrelevant in light of s. 100.1(15). It argued that the proposed revisions therefore did not meet the requirements in s. 100.1(11) of the EPA.
16The City also argued that three paragraphs in the Gendrons’ original Notice of Appeal fall outside the Tribunal’s jurisdiction and are irrelevant and should be struck. It submitted that paragraphs (d), (g) and (h) in the Notice of Appeal, dated July 27, 2010, improperly allege that the City’s s. 100.1 Orders against the Gendrons are punitive and were issued in bad faith, their enforcement will result in irreparable harm to the Gendrons, and the Gendrons are unable to satisfy the Orders. It argued that these considerations and those relating to fairness are outside the scope of s. 100.1(15) of the EPA, which indicates that the Tribunal “shall consider only” the items listed in that section. It relied on s. 70 of the Interpretation Act in response to the Gendrons’ reliance on the words “may consider” in the heading preceding s. 100.1(15) of the EPA. The City also relied on caselaw related to a similarly worded section of the EPA (s. 145.3) (see Starnino Holdings Ltd. v. Ontario (Director, Ministry of the Environment) (2007), 31 C.E.L.R. (3d) 89 (Ont. Env. Rev. Trib.) (“Starnino”); and 569006 Ontario Ltd. v. Ontario (Director, Ministry of the Environment) (2006), 24 C.E.L.R. (3d) 187 (Ont. Env. Rev. Trib.) (“569006 Ontario”)) and the Tribunal’s limited references to s. 100.1(15) in Belahov v. City of Toronto, 2014 CarswellOnt 14277 (Ont. Env. Rev. Trib.) (“Belahov”) at para. 15; and Cosford v. London (City), 2009 CarswellOnt 7004 (Ont. Env. Rev. Trib.) (“Cosford”) at paras. 6 and 8.
17The City also sought to strike most of the Gendrons’ witness statements and to have the Tribunal refuse several requests for summons because much of the intended evidence did not relate to the matters listed in s. 100.1(15) of the EPA. It had additional reasons for opposing some specific aspects of the intended evidence, including claims of privilege with respect to evidence on how the City made certain decisions and concerns about counsel for the Gendrons seeking to call a lawyer from his own firm as a witness at the main hearing to give evidence on the history of the litigation among the parties. In the event that any of the disputed evidence was allowed by the Tribunal, the City requested permission to file additional reply evidence.
18The City also argued that the Gendrons’ Notices of Allegation related to issues that are outside the scope of s. 100.1 and should be struck. The City submitted that it withdrew its s. 100.1 Orders against Thompson Fuels and TSSA with the consent of the Gendrons (see the Tribunal’s order dated January 5, 2015) and that the Tribunal no longer had jurisdiction to consider their involvement. It argued that it would be an abuse of process for the Gendrons to now file notices of allegation against these entities or Granby. It also argued that contribution and indemnity matters, which were one of the bases for the Notices, are not for the Tribunal to determine under s. 99.1(7), which applies to s. 100.1 proceedings via s. 100.1(6), but rather for the court to determine in an action.
The Added Parties’ Submissions
19TSSA argued that the Gendrons’ Notice of Allegation against it should be struck in its entirety as it was delivered late and not in compliance with Tribunal Rules 84 and 85. TSSA submitted that in any event, it was not informed of the spill until after it occurred and cannot be subject to contribution or indemnity. It requested its costs on the motion.
20Thompson Fuels requested that the Gendrons’ Notice of Allegation against it be struck. It submitted that the Notice of Allegation is improper and non-compliant with either s. 100.1(6) of the EPA or Tribunal Rules 84 and 85 as Thompson Fuels did not have ownership or control of the pollutant immediately before its discharge and the Notice was delivered late. It argued that delivery of the Notice of Allegation is an abuse of process and vexatious. Thompson Fuels requested its costs on the motion.
21Granby requested that the Gendrons’ Notice of Allegation against it should be struck in its entirety. It argued that the Gendrons do not have a proper claim for contribution and indemnity against it and that Granby did not have ownership, charge, management or control of the pollutant immediately prior to its initial discharge. It also submitted that the Notice was not delivered in time given the fact that the Mr. Gendron made allegations against Granby more than five years ago in his civil action, yet did not serve the Notice of Allegation against Granby in this proceeding until January 2016. Granby emphasizes that service of the Notice was required “within 5 days of learning of the person’s acts or omissions” under Rule 85. Granby stated that it also will be seeking its costs on the motion.
The Gendrons’ Written Submissions
22The Gendrons submitted that, throughout these proceedings, the City has unreasonably targeted them. They submitted that they are uninsured and do not have the funds to satisfy the s. 100.1 Orders. They argued that the City’s actions have been unreasonable, financially inexplicable, and made in bad faith. They submitted that this poor conduct is reflected in the City’s refusal to provide a full accounting of expenses and their recovery or details on the City’s tentative partial settlement of its civil action against the Gendrons and others, which was pursued in parallel to these proceedings. They submitted that, although the City has recovered its expenses, it continues to pursue the Gendrons and to try to secure a lien on Mr. Gendron’s home even though the City will fully recover its expenses through the tentative settlement agreement of its civil claim. They argued that the City’s conduct has been unfair, unreasonable and punitive.
23The Gendrons argued that fairness and reasonableness ought to be considered as set out in 724597 Ontario Inc. (c.o.b Appletex) v. Ontario (Ministry of Environment and Energy), [1994] O.E.A.B No. 17, Ontario (Ministry of the Environment & Energy) v. 724597 Ontario Inc. (1995), 1995 10633 (ON CTGD), 26 O.R. (3d) 423 (Div. Ct.) (“Appletex”) and Montague v. Director, Ministry of the Environment, 2005 6379 (ON SCDC), [2005] O.J. No. 868 (Div. Ct.) (“Montague”). They submitted that the language in s. 100.1(1) is permissive giving the City discretion over whether to issue an order.
24The Gendrons submitted that, based on this permissive language, fairness issues should be considered. They argued that this situation is distinguishable from Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (“Midwest”), which addressed s. 99 of the EPA. The Gendrons stated that s. 99(6) includes no fault language, which is not in s. 100.1. They submitted that, if the legislature had intended s. 100.1 to provide recovery irrespective of fault, similar language would have been included in s. 100.1. The Gendrons submitted that it is in the public interest for the Tribunal to apply fairness considerations and to address the City’s punitive actions, bad faith, and other issues in light of the purpose of the EPA. They submitted that innocent homeowners should not be denied these defences. The Gendrons argued that their Notice of Appeal has a broader scope than just s. 100.1(15) of the EPA and therefore the hearing must not be confined to the considerations set out in that subsection.
25The Gendrons submitted that the threshold for striking pleadings is high. They argued that it must be plain and obvious that there is no reasonable cause of action or defence (see East Luther Grand Valley (Town) v. Ontario (Minister of the Environment and Energy), 2000 22361 (ON SC), [2000] O.J. No. 1424 (S.C.J.) and Roynat Inc. v. Singer Kwinter, [1991] O.J. No. 1387 (Gen. Div.)). They argued that the City has not demonstrated that the Gendrons have no reasonable defence, citing R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299, where the Supreme Court of Canada found that regulatory offences should not be read to exclude any possible defence. They submitted that the City’s motion to strike must fail.
26The Gendrons argued that the Court of Appeal’s Midwest decision stands for the proposition that those who create the risk are those who should be responsible for the restoration under the “polluter pays” principle. They argued that they are not at fault for the spill and that the Tribunal, in this proceeding “is entitled to look at all circumstances including capacity, fault, and reasonableness”. They also stated that the Tribunal’s public interest mandate permits it to look at the City’s conduct and the Gendrons’ financial circumstances.
27In response to the City’s motion to strike, the Gendrons also sought an immediate order allowing the appeals, declaratory relief and costs.
Oral Submissions
28During the February 10, 2016 TCC, the Gendrons made reference to the permissive nature of s.100.1 orders, to the incorporation of 99.1(7) via 100.1(6) such that the Tribunal can adjudicate the contribution and indemnification issues raised in the Notices of Allegation, and to the use of the word “may” in the heading preceding s. 100.1(15) in the EPA. Based on their view that the main hearing would not be confined solely to the matters listed under s. 100.1(15) of the EPA, the Gendrons argued that the evidence from various proposed witnesses was relevant, with relevance being measured against what was set out in the original and proposed revised Notices of Appeal. The Gendrons also noted that this proceeding does not relate directly to environmental protection measures as the clean-up happened years ago.
29During the hearing of the motions on February 18, 2016, the Gendrons agreed to withdraw six of their nine witness statements, with only those of Kevin McClintock, Cathy Curlew and Mr. Gendron remaining. The City did not oppose Mr. Gendron testifying. The City submitted that, if Mr. McClintock and Ms. Curlew were permitted to testify, further and better witness statements must be required, focusing solely on relevant issues under s. 100.1(15). It objected to summons being issued that require Ms. Curlew or Mr. McClintock to testify on any issues outside the scope of that section.
30Regarding the impugned paragraphs in the Notice of Appeal, the City argued that they are neither truthful nor relevant. The City submitted that fault and culpability are not relevant issues under s. 100.1(15). The City stated that orderees under s. 100.1 are jointly and severally liable and the only issues that the Tribunal can address under s. 100.1 are the Gendrons’ control or ownership of the pollutant and whether the costs or expenses in the City’s s. 100.1 Orders relate to actions to prevent, eliminate or ameliorate any adverse effects or restore the natural environment, or are unreasonable having regard to the work done. The City argued that fairness considerations are not included under s. 100.1(15) and that the Gendrons’ position in this regard contradicts their earlier position in Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95 (Ont. Env. Rev. Trib.). The City also argued that the Tribunal does not have jurisdiction under s. 100.1 to address contribution and indemnity issues, as that task is for the courts.
31The City submitted that the amount of outstanding expenses that the City paid to remediate the spill amount to $337,673.93. The City submitted that this amount reflects the fees paid by the City to its consultant, Golder Associates.
32The added parties supported the City’s submissions and reiterated their requests for costs.
33The Gendrons submitted that the City has not accounted for the funds it will receive through the tentative settlement of its civil claim. They argued that as a threshold issue, the City must establish that it is out of pocket, which they state the City has not done. The Gendrons argued that the City issued orders against four entities requiring each to pay the full amount of the City’s expenses. If fulfilled, they submitted that this would result in double recovery. They argued that it is a breach of statutory authority for the City to seek more than it lost. The Gendrons submitted that there is no basis for the City’s orders unless the City can establish the amount of monies already received and justify what was spent.
34The Gendrons argued that financial hardship is a fairness factor that must be taken into account. They submitted that the City should not financially ruin an individual while other liable persons who are insured stand by. They questioned why, even if there is no double recovery, the Gendrons are being asked to pay for a disproportionate amount of the expenses, while the other defendants in the City’s civil action apparently pay less. They stated that the City should not let at fault parties avoid paying and then target an innocent victim.
35As noted above, at the hearing of the motions, the Gendrons informed the Tribunal that they would only seek to call all or some of Mr. McClintock, Ms. Curlew and Mr. Gendron, depending on the City’s evidence at the hearing. They submitted that evidence from Ms. Curlew and Mr. McClintock will be relevant to assessing the remediation work that was needed and what was done.
Analysis and Findings
Interpreting s. 100.1(15)
36Section 100.1(15) of the EPA directs the Tribunal to only consider certain enumerated things. It states:
At a hearing by the Tribunal under this section, the Tribunal shall consider only,
(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,
(i) the owner of the thing that was discharged,
(ii) the person having charge, management or control of the thing that was discharged, or
(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or
(b) whether any of the costs or expenses specified in the order,
(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or
(ii) are unreasonable having regard to what was done.
37Section 100.1(15) of the EPA is within the classes of appeals where the considerations by the Tribunal have been limited by the Legislature. Where the Legislature has determined that appeals would be limited to certain listed considerations, the wording “the Tribunal shall consider only” is employed in the EPA. Other examples of “consider only” provisions include: s. 145.2.1(2), 145.3(1), and 145.3(2). The drafting of the EPA is quite deliberate in regards to the various approaches to the scope of appeal proceedings and the Tribunal follows the Legislature’s direction in conducting the type of hearing envisioned for it in each particular circumstance.
38On a spectrum, some tribunal proceedings are relatively broad “new hearings” under s. 145.2 (recognizing that there are still limits as noted in RPL Recycling & Transfer Ltd. v. Ontario (Director, Ministry of the Environment) (2006), 21 C.E.L.R. (3d) 80 (“RPL”)), while others are limited as to the matters that can be considered by the Tribunal. Still others may be limited by the standard of review (unreasonableness) that the Tribunal is to employ (s. 145.4(2)). There are also provisions limiting the discretion of the Tribunal because of the presence of certain policies or regulations (s. 145.2.2 and s. 145.4(1)).
39The EPA’s “consider only” sections, such as 100.1(15), differ from the “new hearing” provision found in s. 145.2, which applies to most Part XIII (Appeals to the Tribunal) appeals, but not Part X (Spills) appeals like this proceeding. Among the “consider only” provisions, there are two general types in the EPA: (i) those that limit the considerations and provide no additional detail on the subsequent powers of the Tribunal (i.e., s. 100.1(15), s. 145.3(1), and s. 145.3(2)); and (ii) those that limit the considerations but then provide direction on the subsequent powers of the Tribunal (i.e., s. 145.2.1(2) and (4)). The following analysis is applicable to the class of “consider only” provisions that limit the Tribunal’s considerations and provide no additional detail on the subsequent powers of the Tribunal, such as s. 100.1(15).
40The Tribunal is regularly called upon to establish the proper scope of a “new hearing” proceeding under s. 145.2 (see, for example: RPL; and Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95). The Tribunal has also been regularly called upon to establish the scope of “shall consider only” proceedings under the renewable energy provisions (s. 145.2.1(2)). It has also been called upon to interpret and apply s. 145.3 (see, for example, Starnino and 569006 Ontario). However, there does not appear to be a body of detailed jurisprudence about the scope of s. 100.1(15) specifically (recognizing that there are some references to the scope of that provision in uncontested cases such as Belahov, at para. 15, and Cosford, at paras. 6 and 8).
41The starting point is to interpret s. 100.1(15) according to the applicable principles of statutory interpretation (Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). The Tribunal begins its analysis with the context and objectives for s. 100.1(15). Section 100.1(15) is part of a larger section (i.e., s. 100.1) dealing with municipal orders to pay for clean-up costs. Section 100.1 is found within “Part X: Spills” of the EPA (see Midwest for a discussion of the environmental protection and financial compensation goals of Part X).
42The purpose of the EPA is “to provide for the protection and conservation of the natural environment” (s. 3(1)). While significant portions of Part X are directly aimed at protecting and conserving the natural environment in relation to pollutant spills, it is clear that s. 100.1 is more focused on steps that follow spill clean-ups. Its direct purpose is to permit municipalities to be reimbursed for spill clean-ups. As noted by the Divisional Court in Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, 2012 ONSC 2708 at para. 17:
Section 100.1 of the Act provides a municipality with a summary remedy to recover its costs for cleaning up a spill that it did not cause by issuing an order for payment to the owner of the pollutant or the person having control of the pollutant.
(See also: Friends Sweets & Tandoori Restaurant v. Brampton (City), [2007] O.E.R.T.D. No. 61 at para. 7)
43Read in its entire context, s. 100.1 not only addresses compensation but also acts as a financial incentive to those who own or control pollutants to prevent spills, lest they be saddled with an order to pay for a clean-up later. This type of financial incentive is in keeping with the overall environmental protection and conservation purpose of the EPA. Section 100.1 and other financial provisions in the EPA provide an incentive for environmentally responsible behaviour. The Tribunal understands s. 100.1 to be a part of an integrated statutory system that implements the “pollution prevention” and “environmental restoration” principles that underlie many environmental laws. Prevention and restoration are both referred to in s. 100.1(1) (see also s. 93(1)). “Restore the natural environment” is broadly defined in s. 91(1). Section 100.1 also encompasses the “polluter pays” principle to the extent that the persons subject to it may include many of those who would be considered a “polluter” (see Midwest for a discussion of “polluter pays” in the context of interpreting another “pollutant owner or controller” provision of the EPA).
44As was the situation in the first round of litigation regarding this spill, which concluded with the decision in Kawartha Lakes (City) v. Ontario (Environment), 2013 ONCA 310, the EPA provision at issue this time is also not a fault-based provision. Section 100.1 is directed at those who own or control a pollutant that is then spilled. Of course, there are many situations where the “polluter” and the “owner” and/or “controller” are the same person even from a fault-based perspective, but the provision clearly does not confine itself to such situations. While s. 100.1 is different from provisions such as s. 157.1 that capture owners of property or undertakings, it is nonetheless another type of “owner pays” provision, at least in part. The difference is that ownership or control is limited to those who own or control a pollutant under s. 100.1 rather than those who own, manage or control property or undertakings. Clearly, it is possible for a pollutant owner to be captured by s. 100.1 regardless of fault. The Tribunal will, therefore, follow the direction provided by the statute and focus its consideration of evidence on ownership or control regardless of fault.
45Like s. 157.1, which was at issue in the first round of litigation over this spill, s. 100.1 contemplates scenarios where there can be some perceived unfairness, in that a pollutant owner who is not at fault or is less at fault than others can be subject to a joint and several order to pay costs of a clean-up. However, subsequent recourse can be pursued by those subject to a s. 100.1 order via civil proceedings, which may involve the common law as well as s. 99.1(5) to (8) of the EPA because of s. 100.1(6). In that forum, degrees of fault or negligence can be taken into account in allocating final financial liability according to what is just and equitable in the circumstances (see s. 99.1(6)).
46It does remain possible that there may be some residual perceived unfairness at the end of the day if, for example, those at fault cannot be found or are impecunious. This is the approach that the Legislature has chosen in order to encourage behaviour that both reduces the likelihood of spills and incents municipalities to undertake prompt clean-ups (see: Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, 2012 ONSC 2708 (Div. Ct.) at paras. 40-42 regarding the importance of quick remediation). As in the first round of litigation over this incident, the parties find themselves in a statutory context that places environmental objectives first in the overall legislative scheme (in this case, discouraging behaviour that may give rise to spills and encouraging prompt clean-ups by municipalities through provisions regarding reimbursements of clean-up costs).
47In the first round of litigation over this spill (Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95 at paras. 59-60), the Tribunal noted the following about the Tribunal and its predecessor:
In the context of related civil proceedings, the Environmental Appeal Board reached a similar conclusion in Re Straza (1992), 9 C.E.L.R. (N.S.) 314 at 323:
In my view, the intention of the legislature in creating the Environmental Appeal Board was to provide a quick and specialised process to resolve the problems of application of the Environmental Protection Act. If the parties wish to further debate their liability in front of the civil courts to establish the degree of responsibility of other persons not caught by the Environmental Protection Act, they can always do so. It is not an issue which concerns this Board.
One of the main roles of the Tribunal (and previously, the Board) is to provide an efficient resolution to many of the disputes relating to decisions of the Director in a manner that furthers the protection of the environment.
48As pointed out by the Gendrons, this proceeding does not relate directly to environmental protection measures. The clean-up happened long ago. Rather, this proceeding is about whether the two remaining appellants will, under s. 100.1, be required to pay for costs associated with the environmental protection measures carried out some time ago by the City. However, just because this proceeding focuses on the payment of costs associated with the spill clean-up, this does not mean that it can serve to resolve all financial aspects of the legal disputes arising from the clean-up. As noted in Straza, the Tribunal is to resolve the “problems of the application” of the EPA while the courts can address other civil matters assigned to the courts under the EPA or the common law. Here, the EPA provisions giving rising to the current problem or dispute between the City and the Gendrons are not broad enough to encompass all the matters that the Gendrons wish to raise under their broad scope approach.
49The Gendrons also make reference to the word “may” in the heading preceding s. 100.1(15). They argue that this demonstrates that the list of considerations in s. 100.1(15) does not limit what the Tribunal may consider in this proceeding. The Tribunal takes note that the heading that precedes s. 100.1(15) is worded differently than the heading that precedes s. 145.2.1(2), for example, which is another “consider only” provision. Regardless of the differences in the headings, the Tribunal follows the actual wording of s. 100.1(15), which is very clear. It says that the Tribunal is to consider “only” the listed matters. This approach of focusing on the wording of the provision itself rather than the preceding heading is also in keeping with s. 70 of the Legislation Act, as argued by the City.
50The Gendrons also draw a distinction between s. 99(6), which is an explicit “no fault” provision, and s. 100.1, which has no similar provision. They interpret this difference in drafting such that fault has not been excluded from s. 100.1 proceedings before the Tribunal. The Tribunal notes, however, that s. 99 as a whole is drafted differently from s. 100.1. Section 99 is more similar to s. 100, while s. 100.1 is more similar to s. 99.1. A reading of all four sections reveals that s. 99 and s. 100 have explicit “no fault” provisions (i.e., s. 99(6) and s. 100(6)) while s. 99.1 and. 100.1 do not. However, this does not mean that fault is off the table in s. 99 and s. 100 but on the table in s. 99.1 and 100.1 hearings before the Tribunal. A close reading of s. 99.1 and s. 100.1 reveals that there was no need for a section like s. 99(6) in either s. 99.1 or s. 100.1 because the list of the “only” things on the table in s. 99.1 and 100.1 proceedings has been expressly provided in the statute in s. 100.1(15) and s. 145.3(1). With those two sections stipulating the only things that can be considered, it is clear that all other things, such as fault, are not to be considered. Once the statute limited the items to be considered in such proceedings, there was no need for another provision stipulating what should not be considered. This can be contrasted with s. 99 and s. 100 that do not have a “consider only” provision. For those sections, the Legislature had to enact a specific provision if it wanted to ensure that fault was to be excluded, and it did so in. s. 99(6) and s. 100(6).
51Having regard to the applicable principles of statutory interpretation and the analysis set out above, the Tribunal reaches the following conclusions regarding the scope of the evidence that should be considered in s. 100.1 appeals. Section 100.1 provides a summary mechanism for municipalities to recover clean-up costs from those who owned or controlled a pollutant that was spilled. In s. 100.1 proceedings, the Tribunal’s ambit of considerations is clearly circumscribed by the wording of s. 100.1(15). The Tribunal will look into only: 1) issues relating to ownership or control of the “thing” (i.e., the pollutant, which in this case is the heating oil) immediately before the discharge, and 2) issues involving the relation of the incurred costs to s. 100.1(1) and the reasonableness of those costs having regard to what was done. The Tribunal finds that it should not hear evidence or argument regarding grounds that do not fall within the wording of s. 100.1(15)(a) or (b). Otherwise, it would be ignoring the “shall consider only” directive from the Legislature. The Tribunal has consistently abided by the “shall consider only” wording in proceedings under s. 145.3(2) (see, for example, Starnino and 569006 Ontario) and finds that the approach of confining the scope to only the listed considerations should also apply to s. 100.1 proceedings. While the scope of s. 145.3(2) is even narrower than s. 100.1(15) (in that ownership and control are not listed in the former), the general approach of confining the proceedings’ considerations only to the listed items is what the Tribunal finds was intended by the inclusion of the “shall consider only” wording in both provisions. Given that the provisions are drafted in a similar “shall consider only” manner, the Tribunal’s interpretation and application of them should be consistent.
Contribution and Indemnification
52On February 17, 2016, the Gendrons withdrew their Notices of Allegation, which included allegations that supported the Gendrons’ right to contribution or indemnification from TSSA, Thompson Fuels and Granby. However, the withdrawal appeared to be on the basis of its understanding of the facts regarding a settlement involving the City and others. Since that understanding was not necessarily shared by the other parties at the time of the motion, the Tribunal determined that it was appropriate to adjudicate this issue despite the withdrawal of the Notices. The Tribunal did so in light of the fact that the parties had already given detailed written argument on this question. The Tribunal, in its Order dated February 19, 2016 not only accepted the withdrawal of the Notices of Allegation, but also prohibited the Gendrons from pursuing the allegations set out in those Notices at the hearing. The reasons why it imposed that prohibition remedy are set out below.
53In their written submissions, the Gendrons argued that some of their intended evidence relates to the right to contribution or indemnification in s. 99.1(7) and not just s. 100.1(15). Section 99.1(7) states:
The right to contribution or indemnification under subsection (6) may be enforced by action in a court of competent jurisdiction.
54Section 100.1(6) states:
Subsections 99.1 (5) to (8) apply, with necessary modifications, in respect of orders issued by a municipality under subsection (1) and, for that purpose, a reference in those subsections to Her Majesty in right of Ontario shall be deemed to be a reference to the municipality.
55The Gendrons argued that s. 99.1(7) expands the scope of this proceeding beyond the list of considerations in s. 100.1(15) via the operation of s. 100.1(6). The City argued that s. 100.1 proceedings are limited solely to s. 100.1(15) matters and that the “necessary modifications” brought on by s. 100.1(6) do not extend to replacing “action in a court” with “proceeding before the Tribunal”. The City argued that the portions of s. 99.1 that are incorporated by reference into s. 100.1 proceedings ensure that the references to provincial orders in s. 99.1 are read to include municipal orders in s. 100.1, but that the forum for enforcement remains with the court and not the Tribunal. The Tribunal agrees with the City’s argument for the following reasons.
56Section 99.1(7), which is incorporated through s. 100.1(6), refers to the right to contribution or indemnification being enforced by “action in a court of competent jurisdiction”. Section 100.1(6) makes “necessary modifications” to s. 99.1(7) so that it applies properly to the s. 100.1 context. The question that arises is whether the “necessary modifications” made by s. 100.1(6) would change the words “enforced by action in a court of competent jurisdiction” into something akin to “enforced in a proceeding before the Tribunal”. In other words, in enacting s. 100.1(6), did the Legislature intend contribution and indemnification matters to be considered by the Tribunal in addition to the considerations set out in s. 100.1(15)?
57The Gendrons interpret s. 99.1(7) and s. 100.1(6) such that they would include this proceeding before the Tribunal and, therefore, evidence that is relevant to contribution and indemnification should be admitted in this proceeding. This would include evidence about the fault or negligence of non-orderees such as Granby, the heating oil tank manufacturer, to whom the Gendrons issued a Notice of Allegation.
58Applying the specific words of s. 99.1(7) with the necessary modifications referred to in s. 100.1(6), the Tribunal finds that it does not have the jurisdiction to carry out the contribution and indemnification role set out in s. 99.1(7). It is clear that the Legislature turned its mind to the fact that a reference in s. 99.1 to Her Majesty in right of Ontario shall be deemed to be a reference to the municipality through s. 100.1(6). Presumably, if the Legislature had also wished to substitute “Tribunal” for “court” and “Tribunal proceeding” for “action”, it would have done so explicitly. It would have also added contribution and indemnification matters to the list of considerations under s. 100.1(15).
59Reading in the changes to s. 99.1(7) suggested by the Gendrons through the “necessary modifications” process set out in s. 100.1(6) would go far beyond “necessary modifications” and would constitute a significant rewriting of s. 99.1(7). Having regard to the manner in which the section was drafted, and in particular the provision’s explicit substitution of the “municipality” for “Her Majesty”, it does not make sense that the Legislature would not have also explicitly substituted the “Tribunal” for the “court” if such an important modification were intended. Instead, the Tribunal interprets s. 100.1(6) to mean that the substance of s. 99.1(7) and related sections applies to s. 100.1 despite the difference in the order issuing authority (municipal rather than provincial) and that the right to contribution and indemnification is still to be enforced in the courts, not the Tribunal.
60The Tribunal adds that the interpretation offered by the Gendrons poses a significant procedural problem to orderees. Commencing a proceeding before the Tribunal must be done within 15 days under s. 100.1(7) and the ability to extend time is very limited under s. 100.1(8). It is quite possible that a properly named orderee will not appeal a s. 100.1 order because it knows it is an owner or controller of the pollutant. It may subsequently become aware of other potential orderees from whom contribution and indemnification could be sought under s. 99.1(7) and s. 100.1(6) but would not be able to enforce such if “action in a court of competent jurisdiction” actually means a proceeding before the Tribunal, which had to be commenced within 15 days of the municipal order. The Tribunal favours an interpretation where the orderee would be subject to the typical civil limitation periods and would not be forced to uncover all persons from whom contribution and indemnification could be sought in a 15-day limitation period.
61To summarize, the court is the body referred to in s. 99.1(7) and the Tribunal finds that the Legislature intended the court to exclusively resolve contribution and indemnification issues arising from both s. 99.1 and 100.1. The “necessary modifications” set out in s. 100.1(6) are not expansive enough to replace court actions with Tribunal proceedings. An innocent owner or controller of a pollutant may initially be liable to pay for municipal costs under s. 100.1 but ultimately be reimbursed by those with a greater degree of fault or negligence in a civil action before the courts (which could involve s. 100.1 and common law causes of action as well). Having regard to the specific wording of s. 99.1(7) and for reasons analogous to those set out in a different context in Straza, the Tribunal finds that it should not attempt to usurp the role of the civil courts in that endeavour. The Tribunal is confined to its specific mandate under the EPA and is not given the legislated mandate to conduct trials of actions to enforce a right to contribution or indemnification. Therefore, the Tribunal would not have entertained any of the Gendrons’ evidence and argument intended to address contribution and indemnification, including the allegations relating to this in the withdrawn Notices of Allegation.
62Given that the parties did not appear to agree on the factual basis for the Gendrons’ withdrawal of the Notices, at the time of the Tribunal’s order dated February 19, 2016, it remained possible that the contribution and indemnification issue could be revived. As a result, notwithstanding the Gendrons’ withdrawal of the Notices, the Tribunal decided the jurisdictional question and issued a prohibition order to ensure that the issue would not arise again in this proceeding.
63Alternatively, even if it were the case that the Tribunal could address the Gendrons’ allegations against the added parties as they relate to contribution and indemnification, the Tribunal agrees with the added parties that, in the particular circumstances of this case, the Gendrons failed to explain their inordinate delay in issuing the Notices under Rules 84 and 85. Based on the materials filed (including information from the related civil actions), the Tribunal is persuaded by the added parties’ argument that the Gendrons have been aware of the alleged acts or omissions that form the basis for the Notices for many years. Nonetheless, the Gendrons did not serve and file the Notices until January 2016, years after these appeals were commenced and many months after the hearing dates in February 2016 were set (see Tribunal order of October 9, 2015). The Rules require timely service of Notices of Allegations against non-parties. Granby has been a non-party since the outset of this proceeding and TSSA and Thompson have been non-parties since the Tribunal’s order of January 5, 2015. The Gendrons did not make any argument to explain their significant delay in serving and filing the Notices, such that they were only issued in the weeks coming up to the main hearing. Therefore, in the specific circumstances of this case, the Tribunal elected to exercise its discretion under Rules 16(b) and (f) and prohibit the Gendrons from pursuing the allegations set out in the Notices, regardless of their withdrawal, for failure to comply with Rules 84 and 85.
General Discretion
64The Gendrons also argue that the opening words of s. 100.1(1) confer a wide discretion on municipalities as to whether to pursue persons for costs recovery. They argue that the Tribunal is similarly endowed with such discretion and that some of the evidence that the Gendrons wish to introduce would be relevant to such discretion even if that evidence would not fall within s. 100.1(15). The Gendrons refer to cases such as Appletex and Montague, which involved “new hearing” proceedings and argue that the Tribunal should hear evidence regarding the conduct of others and the personal circumstances facing the Gendrons and re-exercise discretion in place of the municipality under s. 100.1(1). The City argues that the Gendrons’ position in this regard contradicts their position in the first round of litigation over this spill (Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95 (Ont. Env. Rev. Trib.) at paras. 16-30).
65As noted in Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95 (Ont. Env. Rev. Trib.), the Appletex factors have limited current relevance in “new hearings” before the Tribunal, which are guided more directly by the EPA’s purpose and the Ministry of the Environment and Climate Change’s (“MOECC”) present-day Compliance Policy: Applying Abatement and Enforcement Tools (Ontario Ministry of the Environment, May 2007) (“Compliance Policy”). However, some Appletex-type factors such as financial hardship, have been reflected, to at least a limited degree, in the Compliance Policy, and thus could be relevant in some Tribunal hearings. Financial hardship is one of the Gendrons’ grounds of appeal that the City argues is irrelevant under s. 100.1(15). Another is the alleged punitive or bad faith conduct of the City in electing to pursue the Gendrons for clean-up costs.
66The Tribunal is not persuaded by the Gendrons’ argument that the Tribunal essentially stands in the shoes of the municipality for all purposes under s. 100.1(1). The “consider only” wording of s. 100.1(15) must be given meaning. The Legislature did not make s. 100.1 proceedings subject to a wide “new hearing” type of appeal, but rather stipulated that appeals be scoped to the matters set out in s. 100.1(15). Therefore, the Tribunal finds that s. 100.1(1) and the general caselaw on “new hearings” and the Compliance Policy (which may include some limited aspects of the old Appletex factors, such as financial hardship) do not apply to appeals before the Tribunal that are subject to s. 100.1(15).
67As well, the Tribunal notes that “new hearings” are not an opportunity to hear all types of evidence that any party seeks to introduce, as was made clear by the Tribunal and the courts in the first round of litigation over this spill. The Gendrons’ present argument in favour of a wide scope, regardless of the position they relied on successfully in the first round of litigation, is clearly inapplicable to proceedings under the “consider only” provisions in the EPA. The conduct of other persons was not on the table in the first round of litigation, which was subject to a wider appeal provision, and is certainly not on the table in this proceeding, which is explicitly narrowed by the s. 100.1(15) wording. The Gendrons can pursue issues of fault in their ongoing civil proceeding instead of before the Tribunal. The Tribunal will remain focused on s. 100.1(15).
68To conclude, the permissive opening words of s. 100.1(1) and the caselaw under “new hearing” proceedings do not have the effect of expanding the ambit of this proceeding beyond the confines of s. 100.1(15). Section 100.1(15) establishes the boundaries of what is to be considered, and the Gendrons cannot submit evidence unrelated to the issues listed in s. 100.1(15) based on their arguments related to the municipality’s general discretion.
Conclusions on Scope
69The following conclusions emanate from the above analysis. If the evidence shows that the orderee was within the classes of persons listed in s. 100.1(15)(a)(i) to (iii) (i.e., those with ownership or control) and the costs are not ones that fall within the classes set out in 100.1(15)(b)(i) and (ii) (i.e., costs that are unrelated to the clean-up work or are unreasonable having regard to the work), then the order should be upheld. Section 100.1(15) does not ask the Tribunal to conduct a wide-ranging new hearing or to consider substituting its discretion for that of the municipality. It is a summary mechanism to look at the specific questions set out in s. 100.1(15). Thus, after considering the evidence relating to the questions set out in s. 100.1(15), the Tribunal will intervene only if:
the s. 100.1 order was directed to a person who does not fall within the list set out in s. 100.1(15)(a) (which would lead to a revocation);
some or all of the costs do not relate to things for which the municipality incurred costs for a purpose set out in s. 100.1(1) (which would lead to a revocation or alteration, depending on whether all or some of the costs are unrelated); or
some or all of the costs are unreasonable having regard to what was done (which would lead to a revocation or alteration, depending on whether all or some of the costs are unreasonable).
70Absent the above circumstances, the order will stand. There is no residual set of considerations that the Tribunal will examine in considering whether to revoke or alter a s. 100.1 order.
71The Tribunal notes that the above analysis is limited to the class of “consider only” provisions that limit the Tribunal’s considerations and that provide no additional detail on the subsequent powers of the Tribunal (i.e., s. 100.1(15), s. 145.3(1), and s. 145.3(2)). The Tribunal is not called upon in this proceeding to interpret the other type of “consider only” provision in the EPA, which does provide detail on the subsequent powers of the Tribunal (i.e., s. 145.2.1(4)).
72While there are constraints on what evidence the Tribunal will hear in this proceeding, the Tribunal notes that s. 100.1(15), like all other appeal provisions in the EPA, does not limit the evidence on appeal to the evidence that was before the original decision-maker. Therefore, the Tribunal is prepared to hear evidence that may not have been considered by the City when it issued the s. 100.1 Orders so long as it relates to the list of considerations under s. 100.1(15). With the above in mind, the Tribunal now turns to the Notice of Appeal and anticipated evidence to determine specifically what evidence and argument is within the scope of the upcoming hearing.
Applying s. 100.1(15) to the Notice of Appeal
73Most of the grounds set out in the Gendrons’ Notice of Appeal address matters specifically listed in s. 100.1(15), including whether the Gendrons owned and controlled the pollutant, whether the costs are reasonable having regard to the work that was performed, and whether the costs relate to the spill clean-up. The dispute among the parties is restricted to the following portions of the Gendrons’ Notice of Appeal:
(d) The Order is punitive in nature and issued in bad faith,
(g) Enforcement of the Order would result in irreparable harm to the Appellants, and
(h) The Municipality is aware that the Appellants are not in a position to satisfy the payment of costs by the Order and as a result the Order ought to be set aside.
74In light of the analysis above, the Tribunal concludes that all three of these grounds are outside the scope of this proceeding. As indicated above, the scope is defined by s. 100.1(15). All of the relevant matters listed in s. 100.1(15) are listed in the Gendrons’ other grounds of appeal. Grounds (d), (g), and (h) do not relate to s. 100.1(15). To the extent that the Gendrons seek to rely on them because they relate to the general discretion of the City, which the Gendrons seek to have the Tribunal re-exercise, this is not the role of the Tribunal under s. 100.1. The Tribunal is not conducting a “new hearing”, as noted above.
75To the extent that grounds (g) and (h) relate to any old Appletex factors, the Tribunal notes that at least one of those factors (i.e., financial hardship) is included in the MOECC’s Compliance Policy and thus may still have relevance in some proceedings about MOECC clean-up orders before the Tribunal (see Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2009), 48 C.E.L.R. (3d) 95 (Ont. Env. Rev. Trib.) at paras. 73, 77 and 79). However, the Tribunal concludes that such factors have no direct applicability to a s. 100.1 proceeding involving costs incurred by a municipality. Section 100.1(15) determines the scope and any still extant Appletex-type factors such as financial hardship, which are reflected in the Compliance Policy and may continue to be relevant to other types of Tribunal proceedings, are not relevant here. The Tribunal is not asked, under s. 100.1(15), to consider any criteria that relate to the financial circumstances of the orderees or the motivation of, or discretion exercised by, a municipality in issuing an order. Consequently, grounds (d), (g), and (h) of the Gendrons’ Notice of Appeal are outside the scope of this proceeding.
Applying s. 100.1(15) to the Categories of Intended Evidence
76The City intends to call two witnesses: David Kerr and Tom McIelwain. The Gendrons intend to call up to three: Mr. Gendron, Ms. Curlew (via summons) and Mr. McClintock (via summons). At the outset of the process for hearing submissions on this motion, the Gendrons were intending to call up to nine witnesses. The analysis below applies s. 100.1(15) to the main categories of evidence found in the parties’ witness statements.
77At least two intended witnesses (Mr. Gendron and Mr. Kerr) are to speak in part to whether the Gendrons fall within the classes of persons listed in s. 100.1(15)(a). This evidence is relevant.
78At least three of the intended witnesses (Ms. Curlew, Mr. Kerr, and Mr. McIelwain) are to speak in part to whether the costs relate to the heating oil spill clean-up. This evidence is relevant under s. 100.1(15)(b)(i).
79At least three of the intended witnesses (Mr. Kerr, Mr. McIelwain, and Mr. McClintock) are to speak in part to the reasonableness of the costs that were incurred having regard to the work that was done. This evidence is relevant under s. 100.1(15)(b)(ii).
80Portions of some witness statements appear to speak to whether others were in control of or responsible for the spill. In a s. 100.1 proceeding, the Tribunal would permit evidence about the conduct of others only to the extent that it helps answer a question expressly set out in s. 100.1(15), such as whether the Gendrons owned or controlled the pollutant or whether work done was related to a spill clean-up. The Tribunal is not engaged in the contribution and indemnification exercise set out in s. 99.1(7) (which is for the courts, as set out above), nor is it engaged in a process of considering whether other persons could be added to a joint and several s. 100.1 order, as such is not a listed consideration under s. 100.1(15).
81As is evident from s. 100.1, it is not necessarily the case that only one person owned or controlled the pollutant before the spill. Evidence that indicates additional potential orderees could have been named is not relevant, but evidence that indicates that another person was in control and therefore the appellant orderee was not in control may be relevant. For example, in certain fact situations, a party may seek to call evidence that says orderee X could not have been in control of the pollutant because orderee X did not commit the act that demonstrates control, but that it was actually person Y who committed the acts that demonstrate control. In such a situation, the Tribunal may find that evidence about Y, such a security camera video recording, may be relevant to the question of whether X was properly named as an orderee. However, if a party seeks to introduce evidence about the conduct of others without such evidence being relevant to a specific task of the Tribunal under s. 100.1(15) to determine (e.g., whether an appellant orderee was properly named), such evidence will not be relevant. Using a criminal law analogy, evidence about the conduct of others that exculpates the orderee may be relevant while evidence that simply inculpates others without exculpating the orderee does not assist the Tribunal in carrying out its narrow statutory mandate under s. 100.1(15).
82To summarize, evidence about the conduct of others in causing the spill will only be permitted if it is relevant to a question that the Tribunal is tasked with answering under s. 100.1(15), such as whether the Gendrons fall within s. 100.1(15)(a). Section 100.1(15) does not include in its list of considerations any inquiry into whether others should be added to a joint and several order or how the relative liability amongst orderees should be allocated. Therefore, evidence of that nature will not be heard. Here, the witness statements provided by the Gendrons that contained evidence about the conduct of others in causing the spill did not go to any of the specific questions within s. 100.1(15)(a). It appears that they were being put forward under the rubric of the Gendrons’ s. 99.1(7) argument or for some other purpose that is not within the scope of a hearing under s. 100.1(15). Therefore, that evidence will not be heard.
83Some of the intended witnesses were to speak to the history of litigation among the parties. This does not fall within any of the considerations listed in s. 100.1(15). To the extent that this evidence may go to the City’s overall motivation or its specific pursuit of a lien, this is irrelevant in light of the matters listed in s. 100.1(15). To the extent that this evidence may go to the question that there may be double recovery as between this proceeding and the civil proceeding, that can be addressed before the courts in the context of the City’s upcoming withdrawal of its civil claim (as noted in the Tribunal’s order dated January 22, 2016). The Tribunal will not hear evidence about that here. To the extent that some of the evidence is intended to demonstrate unreasonableness, it must be noted that the Tribunal is looking at whether costs relate to the clean-up work and are reasonable having regard to the work that was done. To the extent that the Gendrons are seeking to read into s. 100.1(15)(b)(ii) a larger inquiry into reasonableness that goes beyond measuring the unreasonableness of the costs having regard to the work that was done to a new area of unreasonableness that has regard to the financial circumstances of the Gendrons, the motivation of the City, or some other notion of unreasonableness, unfairness or inequity, such evidence is irrelevant to the Tribunal proceeding because of the limited list of considerations found in s. 100.1(15).
84One of the intended witnesses was to speak to the City’s decision to release two orderees in 2015 and maintain the order against the Gendrons. This evidence can be seen as a subset of the evidence that relates to the history of litigation among the parties and is irrelevant for the reasons set out above. As well, with respect to the settlement of the appeals of municipal costs orders by TSSA and Thompson Fuels, those matters were concluded by the Tribunal in Technical Standards and Safety Authority v. Corp. of the City of Kawartha Lakes, 2015 CarswellOnt 60. Any remaining dispute involving those parties is to be pursued in the civil courts.
The Gendrons’ Requests for Relief in Response to the Motion
85In response to the City’s motion, the Gendrons included in paragraphs 182(a) and (b) of their Responding Submissions dated February 17, 2016, the following requests:
(a) An immediate order allowing the appeals, and
(b) A declaration that the disposition of these appeals had the same force and effect as if following a hearing been held on February 22, 2016.
86The Tribunal is not prepared to effectively grant summary judgment in favour of the Gendrons on the basis of a request made in responding written submissions to a motion about the proper scope of the appeals. The factual basis for the above request was clearly in dispute among the parties and, if the Gendrons wished to pursue summary relief, the time and place to do it was not while responding to this motion but rather in the form of their own motion seeking such relief.
ORDER
87The Tribunal orders that:
(a) the scope of this proceeding is limited solely to the matters set out s. 100.1(15) of the Environmental Protection Act (the “EPA”);
(b) those portions of the Gendrons’ Notice of Appeal dated July 27, 2010 that do not relate to s. 100.1(15) of the EPA, specifically paragraphs (d), (g), and (h), are struck and the Gendrons are prohibited from relying on any grounds that do not relate to s. 100.1(15) at the hearing;
(c) the Gendrons’ statement that they are not seeking leave to rely on their Amended Notice of Appeal dated December 21, 2015 is confirmed and the Notice of Appeal dated July 27, 2010, as modified by this Order, will be the Notice of Appeal that applies at the hearing;
(d) those portions of the witness statements and document briefs filed by all parties that do not relate to s. 100.1(15) of the EPA are struck and the Tribunal will not hear submissions or evidence that do not relate to s. 100.1(15);
(e) the parties are directed to serve one copy and file with the Tribunal three copies of revised witness statements and document briefs that exclude all evidence that does not relate to s. 100.1(15) of the EPA at the commencement of the main hearing on February 22, 2016;
(f) the withdrawal on February 17, 2016 of the Notices of Allegation issued by the Gendrons to Technical Standards and Safety Authority (“TSSA”), Doug C. Thompson Fuels Ltd. (“Thompson Fuels”) and Les Reservoirs D’Acier de Granby Inc. (“Granby”) is accepted and the Gendrons are prohibited from pursuing the allegations set out in those Notices in this proceeding;
(g) the Gendrons’ requests for summons to Cathy Curlew and Kevin McClintock are granted, subject to their evidence being confined to the matters set out in s. 100.1(15) of the EPA;
(h) the Gendrons’ withdrawal of the witness statements of Robert Smith, Michael Flynn, Robyn Carlson, Fahreen Kurji, Andy Lethan and Ric McGee is accepted and those witnesses will not provide evidence in this proceeding;
(i) the requests for costs by TSSA, Thompson Fuels and Granby will be considered in a written hearing pursuant to the Tribunal Rules 216-220 and 225-231. The deadline for the costs applications by TSSA, Thompson Fuels and Granby is 30 days from the date of these reasons;
(j) any requests for costs by the main parties will be dealt with after the conclusion of the main hearing; and
(k) the Gendrons’ requests for relief set out in paragraphs 182(a) and (b) of their Responding Submissions dated February 17, 2016 are denied.
Procedural Directions Ordered
“Jerry V. DeMarco”
JERRY V. DEMARCO
ASSOCIATE CHAIR
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 - Relevant Legislation and Rules
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
Relevant Legislation and Rules
Purpose of Act
- (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Interpretation and application, Part X
- (1) In this Part,
“restore the natural environment”, when used with reference to a spill of a pollutant, means restore all forms of life, physical conditions, the natural environment and things existing immediately before the spill of the pollutant that are affected or that may reasonably be expected to be affected by the pollutant, and “restoration of the natural environment”, when used with reference to a spill of a pollutant, has a corresponding meaning
Duty to mitigate and restore
- (1) The owner of a pollutant and the person having control of a pollutant that is spilled and that causes or is likely to cause an adverse effect shall forthwith do everything practicable to prevent, eliminate and ameliorate the adverse effect and to restore the natural environment.
Liability
99 (6) Liability under subsection (2) does not depend upon fault or negligence.
Joint and several liability
99.1 (5) Where two or more persons are liable to pay costs or expenses pursuant to an order under subsection (1), they are jointly and severally liable to Her Majesty in right of Ontario.
Contribution and indemnity
(6) Where the Director is entitled to issue an order to two or more persons under subsection (1) in respect of costs or expenses, as between themselves, in the absence of an express or implied contract, each of those persons is liable to make contribution to and indemnify the other in accordance with the following principles:
- Where the Director is entitled to issue an order to two or more persons under subsection (1) in respect of costs or expenses and one or more of them caused or contributed to the costs or expenses by fault or negligence, such one or more of them shall make contribution to and indemnify,
i. where one person is found at fault or negligent, any other person to whom the Director is entitled to issue an order under subsection (1), and
ii. where two or more persons are found at fault or negligent, each other and any other person to whom the Director is entitled to issue an order under subsection (1) in the degree in which each of such two or more persons caused or contributed to the costs or expenses by fault or negligence.
For the purpose of subparagraph 1 ii, if it is not practicable to determine the respective degrees in which the fault or negligence of two or more persons to whom the Director is entitled to issue an order under subsection (1) caused or contributed to the costs or expenses, such two or more persons shall be deemed to be equally at fault or negligent.
Where no person to whom the Director is entitled to issue an order under subsection (1) caused or contributed to the costs or expenses by fault or negligence, each of the persons to whom the Director is entitled to issue an order under subsection (1) is liable to make contribution to and indemnify each other in such degree as is determined to be just and equitable in the circumstances.
Enforcement of contribution
(7) The right to contribution or indemnification under subsection (6) may be enforced by action in a court of competent jurisdiction.
Adding parties
(8) Wherever it appears that a person not already a party to an action under subsection (7) may be a person to whom the Director is entitled to issue an order under subsection (1) in respect of the costs or expenses, the person may be added as a party defendant to the action on such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.
Application of subss. 99 (6) to (12)
100 (6) Where the right to compensation under subsection (4) arises, subsections 99 (6) to (12) apply with necessary modifications.
Municipality’s order for costs and expenses
100.1 (1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.
Contribution and indemnity
(6) Subsections 99.1 (5) to (8) apply, with necessary modifications, in respect of orders issued by a municipality under subsection (1) and, for that purpose, a reference in those subsections to Her Majesty in right of Ontario shall be deemed to be a reference to the municipality.
Appeals
(7) A person to whom an order of a municipality is directed under subsection (1) may, by written notice served on the municipality and the Tribunal within 15 days after service on the person of a copy of the order, require a hearing by the Tribunal.
Extension of time for requiring hearing
(8) The Tribunal shall extend the time in which a person may give a notice under subsection (7) requiring a hearing if, in the Tribunal’s opinion, it is just to do so because service of the order on the person did not give the person notice of the order.
Contents of notice requiring hearing
(9) A person who gives a notice under subsection (7) shall state in the notice,
(a) the portions of the order in respect of which the hearing is required; and
(b) the grounds on which the person intends to rely at the hearing.
Effect of contents of notice
(10) Except with leave of the Tribunal, at a hearing by the Tribunal, the person who required the hearing under subsection (7) is not entitled to appeal a portion of the order, or to rely on a ground, that is not stated in the person’s notice requiring the hearing.
Leave by Tribunal
(11) The Tribunal may grant the leave referred to in subsection (10) if the Tribunal is of the opinion that to do so is proper in the circumstances, and the Tribunal may give such directions as the Tribunal considers proper consequent on the granting of the leave.
What Tribunal may consider
(15) At a hearing by the Tribunal under this section, the Tribunal shall consider only,
(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,
(i) the owner of the thing that was discharged,
(ii) the person having charge, management or control of the thing that was discharged, or
(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or
(b) whether any of the costs or expenses specified in the order,
(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or
(ii) are unreasonable having regard to what was done.
Powers of Tribunal
145.2 (1) Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.
What Tribunal may consider at hearing to pay costs
145.3 (1) At a hearing by the Tribunal on an order under subsection 99.1 (1) to a person to pay the costs and expenses of doing things, the Tribunal shall consider only,
(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,
(i) the owner of the thing that was discharged,
(ii) the person having charge, management or control of the thing that was discharged, or
(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or
(b) whether any of the costs or expenses specified in the order,
(i) do not relate to things for which Her Majesty in right of Ontario incurred costs or expenses for a purpose referred to in subsection 99.1 (1), or
(ii) are unreasonable having regard to what was done.
Same
(2) At a hearing by the Tribunal on an order under subsection 150 (1) or (2.1) to a person to pay the costs of doing things, the Tribunal shall consider only whether any of the costs specified in the order,
(a) do not relate to a thing that the person was required to do by an order or decision made under this Act, as amended by any Tribunal decision or on any appeal from a Tribunal decision; or
(b) are unreasonable having regard to what was done.
Rules of Practice of the Environmental Review Tribunal
GENERAL
Non-compliance
- If a Party or Participant
(a) fails to comply with these Rules, an Order or a written request from the Tribunal, or an undertaking;
(b) causes undue delay;
(c) does not attend a Preliminary Hearing, Mediation or Hearing of which he or she was given notice; or
(d) does not provide, within the time permitted by the Tribunal, a response to an appeal or application which was served on him or her;
the Tribunal may:
(a) deem the Party or Participant to have accepted all of the material facts set out in materials provided by another Party or Participant;
(b) determine that the Party or Participant is not entitled to present evidence or make submissions;
(c) proceed in the Party’s or Participant’s absence without any further notice to him or her;
(d) decide the matter based solely on the materials before it;
(e) dismiss the proceeding; or
(f) make any other order it considers appropriate.
ALLEGATIONS AGAINST PERSONS WHO ARE NOT PARTIES
A Party who requests that the Tribunal vary, revoke or provide other relief from the decision under appeal because of the alleged acts or omissions of a person who is not a Party to the appeal shall, if the acts or omissions of that person are known to the Party at the commencement of the proceeding, prepare a notice of allegation including the facts that the Party relies on in support of the allegation, the relief requested, and the address and telephone and fax numbers of the person against whom the allegation is made. The notice of allegation shall be served on that person and the Parties and shall be filed with the Tribunal together with proof of service with the first document the Party files with the Tribunal.
A Party who, during the course of a proceeding, requests that the Tribunal vary, revoke or provide other relief from the decision under appeal because of the alleged acts or omissions of a person who is not a Party to the appeal shall, within 5 days of learning of the person’s acts or omissions, serve that person and the Parties with a notice of allegation and file the notice with the Tribunal together with proof of service. The notice of allegation shall include the facts that the Party relies on in support of the allegation, the relief requested, and the address and telephone and fax numbers of the person against whom the allegation is made.