Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 13, 2016

CASE NO.: 13-110

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

Appellant: See Appendix 1 – Appellant List

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order regarding the removal of waste ash

Reference No.: 6726-8YAN85-1

Property Address/Description: 23449 Woodbine Avenue

Municipality: Georgina

Upper Tier: Regional Municipality of York

ERT Case No.: 13-110

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

Heard: In writing

APPEARANCES:

Parties	Counsel
Regional Municipality of Peel	Marc McAree, Richard Butler and Robert Woon
Director, Ministry of the Environment and Climate Change	Danielle Meuleman and Katie Clements

ORDER DELIVERED BY MARCIA VALIANTE

REASONS

Background

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

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

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

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

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

6On October 3, 2013, the Tribunal stayed the remaining items in the 2013 Director’s Order to specified dates to accommodate negotiations among the Director, the Church and the Greenpath parties regarding a possible resolution of the matters in the appeals. The Tribunal extended the stay several times to specified dates, then, in its order dated May 20, 2014, the Tribunal stayed the 2013 Director’s Order until the resolution of the appeals. At a telephone conference call (“TCC”) held on May 22, 2014, the parties requested that the Tribunal not schedule the preliminary hearing or the hearing of the appeals, due to further investigations being carried out by the MOECC at the Site and at other sites where the waste ash was allegedly deposited. They indicated that there was the possibility that new orders would be issued by the Director, which might lead the Director to revoke the 2013 Director’s Order.

7On June 22, 2015, the Director posted an instrument proposal notice for proposed new orders, including one related to the Site which named the parties to these appeals, on the Environmental Registry, pursuant to s. 22 of the Environmental Bill of Rights, 1993, with public comments to be received by August 6, 2015.

8On July 7, 2015, Peel filed a notice of motion in which it requested an order revoking the 2013 Director’s Order as against it. On July 21, 2015, the Tribunal informed the parties that it would schedule the preliminary hearing first and hear submissions at that time regarding whether the matters raised in Peel’s notice of motion should be addressed by way of a motion in advance of, or in, the main hearing of the appeals.

9On September 15, 2015, the Tribunal held the preliminary hearing in East Gwillimbury, Ontario. The Tribunal granted participant status to the City of Toronto (“Toronto”) and also to the Ontario Waste Management Association (“OWMA”), both for the purpose of addressing the legal issues raised in Peel’s motion. On September 22, 2015, the Tribunal informed the parties that it would hear Peel’s motion to revoke the 2013 Director’s Order as against it prior to the main hearing of the appeals, but only after disclosure of relevant documents between the parties had been completed. Subsequently, the Tribunal scheduled disclosure, the filing of motion materials and the hearing of Peel’s motion. That schedule was confirmed in the Tribunal’s order of November 13, 2015.

10On November 9, 2015, the Director issued Director’s Order No. 6411-9M2G78 to the Greenpath parties, Peel and the Church, again requiring the removal of waste ash from the Site, on similar terms as the 2013 Director’s Order (the “2015 Director’s Order”). The primary difference in the 2015 Director’s Order appears to be that the Director relies on different provisions of the EPA for her authority to order the removal of the waste ash. All of the parties filed notices of appeal of the 2015 Director’s Order with the Tribunal; these appeals are identified by Tribunal Case Nos. 15-169 to 15-174.

11On November 25, 2015, the Director wrote to the Tribunal requesting that the Tribunal accept the Director’s proposal to revoke the 2013 Director’s Order and dismiss this proceeding pursuant to Rule 202 of the Tribunal’s Rules of Practice. Peel objected to revocation and dismissal and the parties filed written submissions. On January 5, 2016, the Tribunal issued a decision revoking the 2013 Director’s Order and dismissing this proceeding.

12On February 4, 2016, Peel filed an application for costs to be paid by the Director in relation to the revocation of the 2013 Director’s Order and the dismissal of this proceeding. Only Peel and the Director filed materials on the costs application. The application was heard in writing.

Issue

13The issue is whether to award costs to Peel, to be paid by the Director, in relation to the revocation of the 2013 Director’s Order and the dismissal of this proceeding.

Relevant Legislation and Rules

14Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”)

s. 17.1(1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

(2) A Tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4).

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined.

15The Tribunal’s Rules of Practice

COSTS

Objectives of Costs Rules

212. A costs award refers to the reimbursement of reasonable and eligible expenditures incurred by a Party for participation in a proceeding before the Tribunal. The objectives of the Tribunal’s costs Rules are to: provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and to discourage unreasonable conduct.

Scope of Costs Awards

213. A wide authority to award costs applies to proceedings under the Consolidated Hearings Act and the Environmental Assessment Act and to proceedings under sections 30, 32, and 36 of the Environmental Protection Act and sections 54, 55, and 74 of the Ontario Water Resources Act. A limited authority to award costs in situations of improper conduct applies to all proceedings before the Tribunal except Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act and proceedings under the Oak Ridges Moraine Conservation Act, 2001 and Greenbelt Act, 2005.

214. Only Parties are liable to pay costs and eligible to receive costs awards. Participants and Presenters are not liable to pay costs and they are not eligible to receive costs awards.

Parties Encouraged to Settle Costs Awards

215. Negotiated settlements regarding costs do not require Tribunal review or approval. Parties are encouraged to make every effort to negotiate a costs settlement.

Procedure for Application for Costs

216. A costs application may be filed with the Tribunal at any time prior to the conclusion of the Hearing, or no later than within 30 days from the date of the issuance of the reasons for the decision or report. Except in the case of improper conduct in a motion (see Rule 227) and for other procedural matters, the Tribunal will not make an order for costs unless a Party requests that it be awarded costs and the Party against whom an award is sought has been given the opportunity to make submissions on the issue.

217. The Party seeking a costs award bears the burden of proof and must demonstrate that any requested costs are:

(a) directly and necessarily incurred in relation to the proceeding before the Tribunal;

(b) reasonable in the circumstances;

(c) properly documented and verified; and

(d) consistent with the principles and criteria outlined in these Rules.

218. When filing a costs application with the Tribunal, the Party seeking a costs award shall provide:

(a) an explanation of how the requirements in Rule 217 (a), (b), and (d) have been met;

(b) a summary statement of hours and fees for each lawyer and consultant, supported by time dockets, invoices and a detailed description of the activity; and

(c) a summary statement of disbursements for each lawyer or consultant supported by corresponding invoices or receipts. Where invoices or receipts are not obtainable for good reasons, the Tribunal may accept a written record of individual disbursements and associated dates.

219. In most cases, the Tribunal will not decide issues of costs until the decision on the overall substance of the proceeding is released. If a Party against whom costs are sought objects to another Party's application for costs, the objection and any associated argument must be filed with the Tribunal and the Parties within 14 days after the filing of the costs application or within such time as directed by the Tribunal. The Party seeking a costs award then has five days or within such time frame as directed by the Tribunal to file a reply.

220. The Tribunal may decide the issues of costs based on the written material or the Tribunal may require brief oral submissions. In its costs decision, the Tribunal may order to whom and by whom the costs are to be paid and fix the amount of the costs. The Tribunal may also direct the scale at which the costs are to be assessed and assign the actual assessment, subject to confirmation by the Tribunal, to a designated person.

Other Circumstances in which Costs may be Awarded

225. Under section 17.1 of the Statutory Powers Procedure Act, the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.

This power applies to all proceedings before the Tribunal except proceedings under the Oak Ridges Moraine Conservation Act, 2001, proceedings under the Greenbelt Act, 2005 and Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act, unless the Niagara Escarpment Plan amendment proceeding is brought under the Consolidated Hearings Act.

It is expected that this power will only be used in the rare case where a Party’s conduct warrants such an award. In determining an award of costs under this Rule, the Tribunal may consider, among other things, the conduct of the requesting Party as well as whether the Party against whom a costs award is sought:

(a) failed to attend a Hearing or to send a representative when properly given notice, without contacting the Case Coordinator;

(b) failed to co-operate, changed a position without notice, or introduced an issue or evidence not previously mentioned;

(c) failed to act in a timely manner;

(d) failed to comply with the Tribunal’s Rules or procedural orders;

(e) caused unnecessary adjournments or delays or failed to prepare adequately for Hearings;

(f) failed to present evidence, continued to deal with irrelevant issues, or asked questions or acted in a manner that the Tribunal determined to be improper;

(g) failed to make reasonable efforts to combine submissions with Parties of similar interest;

(h) acted disrespectfully or maligned the character of another Party; and,

(i) knowingly presented false or misleading evidence.

226. The Tribunal is not bound to order costs when any of the examples listed in Rule 225 occurs nor does the Tribunal have to find that one of the examples occurred in order to conclude that the conduct of a Party has been unreasonable, frivolous or vexatious or that a Party has acted in bad faith. The Tribunal will also consider whether the issues respecting the conduct of such a Party can be addressed by a denial or reduction of costs in its favour rather than a costs award against it. Costs for Motions

Submissions of the Parties

Peel’s Submissions

16Peel submits that a costs award is an important tool for the Tribunal to influence the conduct of parties, including discouraging the taking of unnecessary steps that unduly prolong a proceeding. Peel submits that the conduct of the Director in this proceeding has been unreasonable. Specifically, Peel argues that the Director: failed to act in a timely manner by taking two years to issue the 2015 Director’s Order; changed her position by issuing that order; and caused unnecessary adjournments and delays by requiring the parties to attend numerous TCCs regarding the procedural steps in the proceeding, including the scheduling of a stay of the 2013 Director’s Order, the scheduling of Peel’s motion to revoke, and the holding of the preliminary hearing.

17Peel states that it is not claiming costs for time spent on procedural steps in this proceeding that can be used to advance its appeal of the 2015 Director’s Order. Peel does claim costs for time spent on procedural steps it considers to be moot or “time thrown away” due to the revocation of the 2013 Director’s Order. Peel claims $23,004.54 in legal fees and $360.47 in disbursements.

18Peel submits that a costs award is necessary to “level the playing field” between parties where there is an imbalance of resources between the parties and one party has acted unreasonably in drawing out an appeal. Peel also submits that it would be unconscionable for it and its taxpayers to bear the cost of the Director’s decision to “cooper up” her previous order by issuing a subsequent order, the 2015 Director’s Order.

The Director’s Submissions

19The Director submits that the approach to determining whether costs should be awarded and the standard of unreasonableness that should be applied is found in the Tribunal’s decision in Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 29 (“Baker”). The Director submits that her conduct has not been unreasonable and therefore the costs application should be denied.

20The Director submits that she worked cooperatively with Peel and the other parties, by agreeing to the terms of an interim stay requested by Peel, which avoided the cost of a stay hearing, and by participating in mediation with the parties other than Peel to try to find a solution to settle the appeals. It is the Director’s position that, when mediation was not successful, in March 2014, she acted reasonably by consenting to the extension of the stay and agreeing to the scheduling of the preliminary hearing.

21The Director agrees with Peel that time and effort were spent in arguing about the need for a preliminary hearing and disclosure and about the scheduling of Peel’s motion to revoke; however, she argues that her approach to these issues was not unreasonable, as the Tribunal ultimately agreed with her positions. The Director argues that these steps will not need to be duplicated in the appeals of the 2015 Director’s Order.

22The Director submits that Peel is seeking costs for proceedings arising out of Peel’s own decision to press forward with its motion to revoke the 2013 Director’s Order despite knowing that the Director was proceeding to issue new orders. The Director states that she informed the Tribunal and the other parties during a TCC held on May 22, 2014 that she was considering issuing further orders on a different jurisdictional basis and with respect to the Site and two other sites. She submits that the parties agreed to adjourn the appeals of the 2013 Director’s Order pending her decision on whether to issue the new orders. According to the Director, she provided the parties with three draft orders, with respect to the Site and the two other sites, on March 13, 2015 for their comments prior to posting them on the Environmental Registry, which was done on June 22, 2015.

23The Director submits that if the Tribunal determines that her conduct was unreasonable, it should decline to exercise its discretion to award costs because of Peel’s own conduct. The Director argues that Peel did not do everything possible to minimize its costs and ensure that proceedings were conducted efficiently, and took a number of steps calculated to prevent or deter the Director from moving forward with issuing the new orders. The Director also submits that Peel is not an underprivileged party.

24The Director argues that if the Tribunal decides to award costs, the quantum of costs applied for is unsupported and should be reduced.

Peel’s Reply Submissions

25In reply, Peel submits there was a delay of 295 days between the Director advising the parties and the Tribunal that she was considering issuing new orders, in May 2014, and the provision of the new orders to the parties in March 2015. Peel states that this delay is “inexcusable” and also “unreasonable in that the Director knew that time, effort and resources (including legal fees) were being expended by all parties during the period of the Director’s delay.” Peel also submits that the Director’s failure to respond to emails from the Tribunal’s Case Coordinator requesting status updates is unreasonable conduct.

26Peel further submits that it did not act unreasonably in advancing its position that a preliminary hearing was premature and the motion to revoke should be heard prior to a preliminary hearing.

Analysis and Findings

27In appeals of the kind in this proceeding, the Tribunal has only a limited authority to award costs. According to s. 17.1(2) of the SPPA, a tribunal shall not award costs unless the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith” and its rules provide for the awarding of costs. Rule 213 of the Tribunal’s Rules refers to these as “situations of improper conduct”.

28In Baker, the Tribunal noted, at para. 38, that it conducts a three-stage analysis in determining whether to grant an award of costs in such cases:

1. The Tribunal must first determine whether a Party has engaged in unreasonable, frivolous, or vexatious conduct or acted in bad faith.

2. If so, the Tribunal then considers whether to exercise its discretion to award costs.

3. If the Tribunal exercises its discretion to award costs, the Tribunal then exercises its further discretion in determining the appropriate amount of the cost award.

29Thus, the first step is to determine whether the Director engaged in improper conduct. Peel alleges that the Director’s conduct was unreasonable and does not allege that the Director engaged in frivolous or vexatious conduct or acted in bad faith.

30In Baker, the Tribunal addressed the standard by which to measure whether a party’s conduct is unreasonable. At para. 34, the Tribunal stated (emphasis added):

Accordingly, the Tribunal concludes that, in light of these purposes and objectives, the standard to determine whether conduct or a course of conduct is unreasonable, is whether the conduct or course of conduct interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of the proceeding before it. There are three important corollaries to this conclusion. First, it is the adjudicator who must measure the actual impact of the impugned conduct, or course of conduct, on the course of the proceeding, which includes consideration of the impact of the conduct on other parties. Secondly, “unreasonableness” must be assessed in terms of the circumstances which were known at the time the impugned conduct occurred, or the time period over which an impugned course of conduct transpired. For conduct to be unreasonable, a party must make an improper decision to act, or fail to act, during the course of the proceeding. A decision can only be improper if the impropriety was clear in the circumstances at the time the decision was made. Thirdly, an assessment as to whether conduct is unreasonable does not turn solely on whether the impugned conduct negatively affected another party. Similarly, the Tribunal may objectively find a party’s conduct to be unreasonable, even though the party perceived it to be reasonable because it served the party’s individual interests at the time.

31Peel argues that the Director’s actions give rise to three of the enumerated examples of unreasonable conduct set out in Rule 225, that is, the Director “changed a position”, “caused unnecessary adjournments or delays”, and “failed to act in a timely manner.”

32Peel argues that because the Director ultimately issued the 2015 Director’s Order, which led to the revocation of the 2013 Director’s Order and the dismissal of this proceeding, some of the costs it incurred in the course of protecting its interests in this proceeding were “thrown away”. Peel does acknowledge that some of the procedural steps taken in this proceeding will not need to be repeated in the proceeding with respect to the appeals of the 2015 Director’s Order. The specific costs alleged by Peel to have been thrown away are associated with the TCCs regarding the granting of stays, the preliminary hearing, and the scheduling of the motion to revoke.

33In Baker, the Tribunal held that conduct that results in costs thrown away does not necessarily constitute unreasonable conduct. At para. 53 of the decision the Tribunal noted:

The Costs Applicants assert that they could have avoided unnecessary expense, had Lafarge made its decision to withdraw its application for the CofAs earlier in the proceeding. Under Rule 217 [now 225] (c), of the Tribunal’s Rules of Practice, a failure to act in a timely manner may constitute unreasonable conduct. Implicit in this assertion, however, is the presumption that there is an obligation to act. Such obligation may result from regulatory requirements under legislation, the Tribunal’s Rules of Practice, or procedural Orders issued by the Tribunal. In these situations, identifying the obligation, and when it arises, is usually a straight forward enquiry. Otherwise, it is often difficult, in any given case to clearly identify what a party is obliged to do and when the obligation arises. There are many concurrent considerations and strategies at play in litigation at any point in time. Disputes regarding practice and procedure before the Tribunal, as well as evidentiary issues, are to be expected. Often, such disputes highlight important issues, which the Tribunal must consider in order to secure a just determination of each proceeding. Proceedings before the Tribunal are adversarial, and each party to a proceeding has the right to determine how best to advocate its position within the proceeding. Accordingly, care must be taken not to second guess a party’s decision to withdraw an appeal with the benefit of hindsight.

34Peel’s justification for an award of costs directly relates to the Director’s decision to issue new orders and seek revocation of the 2013 Order and dismissal of the proceeding. Peel asserts this is a “change in position” that has not been explained. The Rule refers to a “change in position without notice”. It is clear that the Director’s action was not taken without notice.

35The Director first advised the Tribunal and the other parties of this possibility in May of 2014. Prior to that time, the Tribunal was asked to grant a series of interim stays of the 2013 Director’s Order in order to provide the parties time to negotiate a possible resolution of the appeals. Peel did not participate in those negotiations but had itself requested a stay, and did not oppose a deferral of the compliance dates. Tribunal-assisted mediation was held between the Director and the parties, other than Peel, but mediation was not successful in resolving the matters at issue in the proceeding. At a TCC held on March 5, 2014, the parties requested the Tribunal to extend the stay of the 2013 Director’s Order until the resolution of the appeals. Peel agreed at that time, yet now argues that the Director’s actions in this period should be found to be unreasonable in view of the subsequent issuance of the 2015 Director’s Order.

36In the excerpt from Baker cited above, the Tribunal noted that a party’s actions should be assessed “in terms of the circumstances which were known at the time the impugned conduct transpired.” Prior to May of 2014, several TCCs were required because the parties agreed only to short-term stays of the 2013 Director’s Order to specific dates to allow time for negotiations. They appeared to believe, optimistically, that the issues could be resolved fairly quickly without a hearing and, from all indications they attempted to do so but were ultimately unsuccessful. Peel has not provided evidence or a rationale as to why the Director’s actions during this period were unreasonable.

37There was a delay in this proceeding that resulted from the Director’s notice in May 2014 that she was considering issuing new orders. When the Director advised of the possibility of new orders being issued, the parties, including Peel, asked the Tribunal to delay the scheduling of the preliminary hearing and the hearing in this proceeding indefinitely, until the Director had determined whether to issue the new orders, amend the existing orders or make no change. The Tribunal did so and directed the parties to advise the Case Coordinator if a TCC was required. Peel argues that the Director delayed drafting new orders despite knowing that the parties were expending time, effort and resources during this period; however, Peel provides no evidence as to why it would have expended time, effort and resources on the proceeding during this period and in fact seeks no reimbursement for any costs incurred between May 2014 and June 2015.

38During this period, the Tribunal’s Case Coordinator emailed the parties to ask for updates on the Director’s progress and the intentions of the parties. None of the parties responded until March 2015; apparently, that was when it became clear that the Director was issuing new orders. The Tribunal expects parties to respond to its requests for information in a timely way, which did not happen here. As the Tribunal noted in Baker, at para. 69, the Tribunal does not consider non-compliance with a procedural direction to be “trivial”. However, at the time, counsel for the Director apologized for not responding earlier and here, as in Baker, there is no evidence that any party suffered prejudice or incurred costs as a result, or that the parties’ (in particular the Director’s) failure to respond sooner interfered with the Tribunal’s ability to secure a just, expeditious and cost-effective determination of the proceeding on its merits.

39In March of 2015, the Director provided the draft orders (including the draft 2015 Director’s Order) to the parties and, following an opportunity for the parties to comment, posted them on the Environmental Registry on June 22, 2015, allowing for public comments until August 6, 2015. At that point, it was clear that the Director intended to issue new orders and it was clear what those new orders contained, although the timing of when they would be issued was uncertain. In March 2015, the Director first indicated to the Tribunal that she would not seek to revoke the 2013 Director’s Order before the new orders were issued.

40Knowing the Director’s intention, Peel requested in a TCC held on June 25, 2015 that the Tribunal set a date for the hearing of a motion to revoke the 2013 Director’s Order that Peel intended to bring. No motion materials were available but the parties and the Tribunal tentatively agreed to August 13, 2015 as the date for hearing the motion. Counsel for the Director expressed concern that disclosure of all relevant documents by the parties had not yet occurred, which would interfere with its ability to fully argue the motion.

41Subsequently, Peel filed motion materials on July 7, 2015. The timing was such that, according to the Director, she did not have sufficient time to respond and be in a position to argue the motion on August 13. In the meantime, the Tribunal received requests from the OWMA and Toronto, asking the Tribunal to grant them status to allow them to participate in the hearing of Peel’s motion. The Tribunal requested and received written submissions from the parties on how to proceed. On July 21, 2015, the Tribunal advised the parties that it was cancelling the August 13, 2015 hearing date for Peel’s motion to revoke and would schedule a preliminary hearing before it would hear the motion, when it would address the status requests. The Tribunal also directed the parties to provide submissions at the preliminary hearing regarding whether the matters raised in Peel’s notice of motion were more appropriately addressed by way of motion in advance of, or at, the main hearing of the appeals.

42During this period, and once the new orders were posted on the Environmental Registry, Peel sought to continue with this proceeding in respect of the 2013 Director’s Order. Peel was particularly adamant that its motion should be heard before the new orders were issued. Because of a number of factors, including the nature of Peel’s motion, the requests for status, and the prior lack of disclosure, the Tribunal directed that a preliminary hearing be held first. It was also not known if other persons, including those named in the notices of allegation, would seek status in this proceeding. The costs requested by Peel in this period relate to attendance on one TCC, which was largely devoted to the scheduling of Peel’s own motion. The Tribunal finds that there is no evidence that demonstrates that the actions of the Director in this period were unreasonable.

43At the date of the preliminary hearing on September 15, 2015, the Director had not issued the new orders. The Director did not explain why they had not yet been issued, or when that might occur, but she did indicate that it would likely happen soon. Knowing this, the parties agreed to continue with the preliminary hearing with respect to the 2013 Director’s Order anyway. At the preliminary hearing, the Tribunal heard submissions about the status of the OMWA and Toronto. Peel argued to be permitted to bring its motion to revoke in advance of the hearing and the Director opposed that request. The preliminary hearing was held at the direction of the Tribunal, as were the submissions regarding when Peel’s motion ought to be heard. There is no evidence to indicate that the actions of the Director at the preliminary hearing were unreasonable.

44After consideration of the parties’ submissions at the preliminary hearing in this proceeding, the Tribunal informed the parties that it would hear Peel’s motion before the main hearing of the appeals, but only after disclosure was completed. The parties attempted to reach agreement on the scheduling of the steps leading to the hearing of the motion, but there were delays in doing so. Several TCCs were held to discuss scheduling; however, based on the record these delays were due to other parties, and not to any unreasonable action or inaction by the Director.

45Following the issuance of the 2015 Director’s Order, Peel opposed the Director’s request for revocation of the 2013 Order and dismissal of this proceeding, which necessitated the preparation of further submissions. After considering all of the submissions, the Tribunal revoked the 2013 Order and dismissed the proceeding.

46The Tribunal finds that, overall, the conduct or course of conduct of the Director cannot be said to have been responsible for “unnecessary adjournments and delays” in this proceeding as alleged by Peel. There were delays but these were agreed to by the parties and the Tribunal, and the evidence does not support a finding that they were unnecessary or unreasonable at the time they occurred.

47Peel also argues that the Director “failed to act in a timely manner” by taking an extended time to issue the 2015 Director’s Order. The Director took from May 22, 2014 to early March 2015 to determine whether to issue new orders and to draft them, and three months to finalize and issue the 2015 Director’s Order following the close of the public comment period. Although the Director has provided no explanation for the timing of the issuance of the 2015 Director’s Order, Peel has not provided evidence that the amount of time taken by the Director was unreasonable. Thus, the Tribunal cannot find that the amount of time taken to issue the new order was unreasonable in the circumstances. While it is possible that issuance of the 2015 Director’s Order could have been accomplished more quickly, this has not been established. Moreover, in accordance with Baker, the question the Tribunal must answer is whether the Director’s conduct was unreasonable in that it interfered with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of this proceeding.

48The effect of the amount of time the Director took to reach a decision and issue a new order has been to delay the final resolution of the substantive issues in the appeals, that is, the determination of whether material should be removed from the Site and who should be responsible for doing so. This delay means that final resolution of the issues has not been particularly expeditious because of the Director’s action. Nevertheless, this delay does not mean that the Tribunal will be unable to achieve a just and cost-effective resolution of the issues, which will occur in the context of the appeals of the 2015 Director’s Order. As the Tribunal stated in its order dismissing this proceeding, dated January 5, 2016, at para. 26:

The public interest in environmental protection is unaffected by the revocation of one order and issuance of a new order on substantially the same terms. There is also a public interest in having issues resolved in a just, expeditious and cost-effective manner. There could be some delay in the resolution of the legal issues, and thus continued uncertainty for the waste industry as well as the parties, if this proceeding is dismissed and the new appeals are not heard in a timely way. However, delay could be minimized through procedural directions by the Tribunal in the proceeding regarding the 2015 Director’s Order. The hearing in that proceeding will be held in any event and holding only one hearing would reduce the potential for duplication of evidence between two hearings.

49Unlike in Baker, where one party waited to inform the Tribunal and the other parties about its strategy until significant costs had been expended by the other parties in preparing for a hearing that was ultimately not held, the Director here kept the parties and the Tribunal apprised of her intentions. The other parties agreed to the delays in moving forward with the hearing of the appeals of the 2013 Director’s Order and significant costs were not expended by any of the parties while waiting for the Director to make a decision about the drafting and issuing of the new orders. The only steps taken in this proceeding related to preliminary matters relating to the stays, the timing of disclosure, the timing of Peel’s motion, the granting of participant status to the OWMA and Toronto, and the preliminary hearing.

50Because of the resolution of the parties’ arguments over procedural issues in this proceeding, similar steps in the appeals of the 2015 Director’s Order can be significantly shortened or avoided, and the new proceeding is expected to run more expeditiously. The circumstances, parties, participants and issues are expected to be the same in both proceedings, and, to the Tribunal’s knowledge, there will be no need to revisit in any detail the matters that required the several TCCs and the preparation of many of the submissions in this proceeding. The time spent in preparation of substantive positions was not thrown away. For example, while Peel prepared motion materials in this proceeding, it has indicated that it will bring essentially the same motion forward in the new proceeding.

Conclusion

51There is no doubt that delay occurred in this proceeding due to the Director’s decision to issue the 2015 Director’s Order and that some amount of the time expended on discussing scheduling and attending TCCs throughout this proceeding could be said to be have been thrown away because the proceeding regarding the appeals of the 2013 Director’s Order has been dismissed. However, that does not by itself make the Director’s conduct, or course of conduct, “unreasonable” in the sense identified in Baker.

52In light of all the circumstances, and in accordance with the considerations under Rules 212-226, the Tribunal finds that the evidence does not support a finding that the Director’s conduct or course of conduct in this proceeding was unreasonable in the sense that it interfered with the Tribunal’s ability to secure a just, expeditious and cost-effective determination of the proceeding. As a result of this finding, the Tribunal finds that it is not necessary to address the second and third stages of the Baker analysis set out above.

ORDER

53The Tribunal dismisses Peel’s application for costs in relation to the revocation of the 2013 Director’s Order and the dismissal of this proceeding.

Application for Costs Dismissed

“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.
Region of Peel	13-110
Keswick Presbyterian Church	13-111
Donald Constable	13-112
Mark Lawrence	13-113
Greenpath Inc.	13-114
Greenpath Eco Group Inc.	13-115