Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 08, 2016
CASE NO.:
15-134
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
Superior Fine Papers Inc.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to prepare and execute a demolition waste source separation program
Reference No.:
0268-9ZRN94
Property Address/Description:
550 Shipyard Road
Municipality:
City of Thunder Bay
Upper Tier:
District of Thunder Bay
ERT Case No.:
15-134
ERT Case Name:
Superior Fine Papers Inc. v. Ontario (Environment and Climate Change)
Heard:
March 29, 2016 by telephone conference call
APPEARANCES:
Parties
Counsel
Superior Fine Papers Inc.
Alec McLennan
Director, Ministry of the Environment and Climate Change
Nicholas Adamson
ORDER DELIVERED BY DIRK VANDERBENT
REASONS
Background
1On September 25, 2015, Tyler Manning, Provincial Officer, Ministry of the Environment and Climate Change (“MOECC”) issued Order No. 0268-9ZRN94 to Superior Fine Papers Inc. (“Superior”) to retain the services of a qualified person who has experience and expertise in preparing and executing source separation programs for large demolition projects as required by Ontario Regulation 103/94 (the “Regulation”) made under the Environmental Protection Act (the “EPA”). The Provincial Officer’s Order further requires that Superior direct this qualified person to prepare a demolition waste source separation program for the ongoing demolition of the mill buildings owned by Superior located at 550 Shipyard Rd., Thunder Bay (the “Site”).
2Superior requested that the Director, MOECC review the Provincial Officer’s Order, and on October 9, 2015, Trina Rawn, the Director, provided Desmond Joseph, President of Superior, with correspondence confirming the Order (the “Director’s Order”).
3On October 21, 2015, Superior filed an appeal of the Director’s Order with the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 140(1) of the EPA. In overview, Superior appeals the Director’s Order in its entirety asserting that it does not refer to a matter that is a cause of any immediate threat or danger to the natural environment. Superior further asserts that the Director’s Order has not been issued to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the Site. In addition, Superior states that it has made a request to the Director for the release of Financial Assurance held by the MOECC for work completed in accordance with Minutes of Settlement entered between the MOECC and Superior. Superior asserts that, until such time as the MOECC releases the funds secured by the Financial Assurance, Superior will not be able to comply with any part of the Director’s Order. In its appeal, Superior also requests a stay of the Director’s Order. Superior asserts that it will suffer irreparable harm to its financial stability, if the Director’s Order is not stayed, and maintains that this would jeopardize all remediation efforts currently being undertaken by Superior at the Site.
4On March 29, 2016, the Tribunal held a preliminary hearing by telephone conference call (“TCC”). No persons, other than counsel for the parties, participated in the TCC, or otherwise communicated with the Tribunal to request party, participant, or presenter status. The Tribunal gave procedural directions for the hearing as set out in the Order below.
Discussion, Analysis and Findings
5At the preliminary hearing, the Appellant concurred with the Tribunal’s suggestion that the parties avail themselves of Tribunal assisted mediation. Nicholas Adamson, Counsel for the Director, indicated he would request instructions from the Director on this point. Mr. Adamson subsequently confirmed the Director’s agreement to participate in mediation. Mr. Adamson emphasized the Director’s position that the work required under the Director’s Order should be undertaken prior to the commencement of the winter season. The parties, therefore, agreed to schedule mediation on either June 13, or 17, 2016, and to schedule the main hearing on September 12, 13, and 14, 2016. The Tribunal confirmed these dates, and gave directions for the exchange of production and witness statements. In order to ensure that all witnesses can be heard in three days, the Tribunal directed that each witness statement must include all of the evidence that the witness intends to adduce at the main hearing. The Tribunal further directed that submissions in respect of the main hearing would be heard in writing, with filing due dates to be determined at the outset of the main hearing, if the appeal is not otherwise resolved through mediation.
6The Appellant has requested a stay of the Director’s Order. The Tribunal earlier directed that the request for the stay be heard by motion in writing, including written submissions, with an opportunity to provide brief oral submissions to be heard by TCC. The Appellant advised the Tribunal that it is waiting for a transcript of a cross-examination of one witness, which will not be made available prior to June 3, 2016. Consequently, the Appellant stated that it is not yet ready to set dates to proceed with the hearing of the stay motion. The Tribunal observes that, as dates for mediation have been reserved for June 13, and 17, 2016, it is likely that mediation will proceed before the hearing of stay motion is completed. Hopefully, all issues can be resolved in mediation. However, if it is necessary to proceed with its stay motion, the Tribunal directed that the parties should confer between themselves to agree on filing due dates for the motion, response, and reply, and then contact the Tribunal case co-ordinator to advise her of these dates, and to schedule a date for oral submissions to be heard by TCC.
ORDER
7The Tribunal’s procedural directions for filing due dates, and the dates for the main hearing are as follows:
June 13 and 17, 2016
Dates reserved for Tribunal-assisted mediation
June 15, 2016
Both parties to complete the exchange of disclosure
July 8, 2016
The Director to serve her witness statements on the Appellant and file them with the Tribunal
August 8, 2016
The Appellant to serve its witness statements on the Director and file them with the Tribunal
August 22, 2016
The Director to serve her reply witness statements, if any, on the Appellant and file them with the Tribunal
September 12, 13, and 14, 2016
Hearing of the appeal at a venue to be confirmed by the case co-ordinator.
Procedural Directions Ordered
“Dirk VanderBent”
DIRK VANDERBENT
VICE-CHAIR
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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