Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 14, 2016
CASE NO.: 15-169
PROCEEDING COMMENCED UNDER section 140(1) 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 for removal of waste ash from site
Reference No.: 6411-9M2G78
Property Address/Description: 23449 Woodbine Avenue
Municipality: Town of Georgina
Upper Tier: Regional Municipality of York
ERT Case No.: 15-169
ERT Case Name: Keswick Presbyterian Church v. Ontario (Environment and Climate Change)
Heard: March 30, 2016 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Keswick Presbyterian Church | Patrick Welsh |
| Donald Constable, Mark Lawrence, Greenpath Inc. and Greenpath Eco Group Inc. | Jurgen Hebel |
| The Regional Municipality of Peel | Marc McAree, Richard Butler and Robert Woon |
| Director, Ministry of the Environment and Climate Change | Danielle Meuleman, Katie Clements and Kirstin Silvera (Articling Student) |
| Participants | Counsel |
|---|---|
| City of Toronto | Graham Rempe and Scott Pasternak |
| Ontario Waste Management Association | John Tidball |
ORDER DELIVERED BY MARCIA VALIANTE
REASONS
Background
1On November 9, 2015, Tina Dufresne, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Director’s Order No. 6411-9M2G78 (the “2015 Director’s Order”) to Donald Constable, Greenpath Eco Group Inc., Greenpath Inc. and Mark Lawrence (the “Greenpath Parties”), to the Regional Municipality of Peel (“Peel”), and to the Keswick Presbyterian Church (the “Church”). The 2015 Director’s Order was issued pursuant to sections 18, 43, 196(1), 197(1) and 197(2) of the Environmental Protection Act (“EPA”). It relates to the alleged deposit in 2009 of unprocessed waste ash at the Church’s property located at 23449 Woodbine Avenue, Georgina, Regional Municipality of York (the “Site”).
2The 2015 Director’s Order requires the orderees, jointly and severally, by specified dates, to: retain and confirm the retention of the services of a qualified person to prepare and complete the work specified; remove the waste ash from the Site in accordance with certain procedures; and submit a report summarizing the waste ash removal. It also requires the Church to give a copy of the order to every person acquiring an interest in the Site and to register on title the certificate of requirement included with the order.
3On November 30, 2015, the Church filed a notice of appeal of the 2015 Director’s Order with the Environmental Review Tribunal (the “Tribunal”). On December 1, 2015, the Greenpath Parties and Peel also filed notices of appeal with the Tribunal.
4The 2015 Director’s Order is similar to Director’s Order 6726-8YAN85-1, issued to the same parties on August 13, 2013 (the “2013 Director’s Order”). That order was appealed to the Tribunal by the parties to this proceeding; those appeals were referred to as Tribunal File Nos. 13-110 to 13-115 (“Case No. 13-110”). Following the issuance of the 2015 Director’s Order, on January 5, 2016, the Tribunal issued a decision revoking the 2013 Director’s Order and dismissing that proceeding.
5On March 30, 2016, the Tribunal held the preliminary hearing in this proceeding by telephone conference call (“TCC”).
Issues
6The issues are:
- whether to stay the operation of the 2015 Director’s Order pending the resolution of the appeals;
- whether to grant participant status to the City of Toronto (“Toronto”) and the Ontario Waste Management Association (the “OWMA”); and
- the scheduling of preliminary matters and the hearing.
Relevant Legislation and Rules
No automatic stay on appeal
- (1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than,
(a) an order to pay costs and expenses under section 99.1;
(b) an order to pay the costs of work made under section 150;
(c) an order to pay an environmental penalty; or
(d) an order to pay an administrative penalty.
Tribunal may grant stay
(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,
(a) an order to monitor, record and report; or
(b) an order issued under section 168.8, 168.14 or 168.20.
When stay may not be granted
(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
Rules of Practice of the Environmental Review Tribunal:
Naming of a Party
- The following persons are Parties for the purpose of the Rules:
(a) persons specified as Parties by or under the statute under which the proceeding arises;
(b) persons otherwise entitled by law to be Parties to the proceeding; and
(c) persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.
- 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
- 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
- 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.
- 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.
Issue 1: Whether to Stay the Operation of the 2015 Director’s Order Pending the Resolution of the Appeals
8In their notices of appeal, the appellants all requested a stay of the 2015 Director’s Order. The Director consents to a stay of Item Nos. 1, 2, 3, 4 and 6 of the work ordered, retroactive to December 1, 2015 and the other parties are in agreement. In the proceeding with respect to the 2013 Director’s Order, the Tribunal had issued a stay to a specified date, at which time the parties consented to extend the stay until the resolution of the appeals. In its Order for Case No. 13-110 dated May 14, 2014, the Tribunal stated, at para. 8:
Pursuant to s. 143(2) and (3) of the EPA, the Tribunal may grant a stay of an order, other than an order to monitor, record and report or an order issued under s. 168.8, 168.14 or 158.20, but shall not do so if it would result in danger to the health or safety of any person, impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it, or injury or damage or serious risk of injury or damage to any property or to any plant or animal life. The Director’s Order is not an order to monitor, record and report and no party suggested, nor is there any evidence on the record to suggest, that a stay extension would result in such harm, or the risk of such harm. Accordingly, the Tribunal accepts the agreement.
9In this proceeding, the parties submit that, similar to the 2013 Director’s Order, this is not an order to “monitor, record and report” and further submit that there is no new evidence of the potential for adverse impacts from the waste ash remaining in place or otherwise suggesting that a stay would pose a danger to human health or safety, impairment or risk of impairment to the natural environment, or damage or risk of damage to property or plant or animal life. Given that there is no evidence of the potential for such harm, the Tribunal accepts the agreement of the parties and orders that Item Nos. 1, 2, 3, 4 and 6 of the work ordered in the 2015 Director’s Order are stayed until the final resolution of the appeals. Item No. 5 requires the Church and any person with an interest in the Site, before dealing with the Site, to provide a copy of the 2015 Director’s Order to every person who will acquire an interest in the Site as a result of such dealing. Based on the agreement of the parties, the Tribunal refuses to stay this Item.
Issue 2: Whether to Grant Participant Status to the City of Toronto (“Toronto”) and the Ontario Waste Management Association (“OWMA”)
10In the proceeding with respect to the 2013 Director’s Order, Peel requested to bring a motion to revoke the order as against it in advance of the main hearing of the appeals. In its Order for Case No. 13-110 dated November 13, 2015, the Tribunal stated, at para. 17, that it accepted Peel’s request to be able to bring this motion in advance of the main hearing on the appeals as the “most efficient and appropriate path forward so long as the Director’s concerns about disclosure are addressed.” For the purpose of that motion, Toronto and the OWMA sought, and the Tribunal granted, participant status.
11In this proceeding, Peel has again requested that it be allowed to bring a motion to revoke the 2015 Director’s Order as against it in advance of the hearing and the other parties do not oppose that request. Toronto and the OWMA have renewed their requests for participant status for the purpose of Peel’s motion, in order to make legal submissions on the issues raised therein. No party opposes those requests.
12The Tribunal agrees with its finding, as set out in the November 13, 2015 Order for Case No. 13-110, that “each of them has a genuine interest in the subject matter of the appeals and will make a relevant contribution to the Tribunal’s understanding of the issues.” Participant status is granted to Toronto and the OWMA.
Issue 3: The Scheduling of Preliminary Matters and the Hearing
13The parties proposed a schedule for the completion of disclosure and the hearing of Peel’s motion to revoke. The Tribunal adopts that schedule, which may be modified as needed at the direction of the Tribunal.
14The parties agree that the hearing will commence in November 2016 and will require approximately two to three weeks, depending on the outcome of Peel’s motion to revoke. However, the parties requested an opportunity for further discussion among themselves regarding specific dates for the filing of witness statements and the commencement of the hearing. The Tribunal agreed. The parties are directed to inform the Case Coordinator when their discussions are completed, following which the Tribunal will schedule the hearing.
ORDER
15The Tribunal orders that Item Nos. 1, 2, 3, 4 and 6 of Director’s Order No. 6411-9M2G78 are stayed until the final resolution of the appeals. The Tribunal refuses to stay Item No. 5 of that order.
16The Tribunal grants participant status in this proceeding to the City of Toronto and the Ontario Waste Management Association.
17The Tribunal directs that the exchange of disclosure, the filing of motion materials and the hearing of Peel’s motion to revoke be completed in accordance with the following schedule:
April 19, 2016 All parties to provide to all other parties a copy of every relevant document in the possession, control or power of a party
May 3, 2016 Peel to serve upon other parties and file with the Tribunal its Motion Record with respect to its motion to revoke
May 24, 2016 Parties responding to Peel’s motion to serve upon other parties and file with the Tribunal their motion records
May 31, 2016 Peel to serve upon other parties and file with the Tribunal reply affidavits, if any
June 2 – 13, 2016 Parties to conduct cross-examinations on affidavits
June 29, 2016 Facta and books of authorities to be served upon other parties and filed with the Tribunal by parties in favour of the motion
July 18, 2016 Facta and books of authorities to be served upon other parties and filed with the Tribunal by parties opposed to the motion
August 12, 2016 Hearing of the motion in Toronto
Stay Granted in Part
Participant Status 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. |
|---|---|
| Keswick Presbyterian Church | 15-169 |
| Donald Constable | 15-170 |
| Mark Lawrence | 15-171 |
| Greenpath Inc. | 15-172 |
| Greenpath Eco Group Inc. | 15-173 |
| The Regional Municipality of Peel | 15-174 |