Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 20, 2016
CASE NO(S).:
15-148 and
15-158
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended; and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellants:
See Appendix 1 – Appellant List (15-148)
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to maintain environmental protection measures and to assess and report on environmental conditions regarding steel mill and mining operations
Reference No.:
7313-A44LL6
Property Address/Description:
Site 1: 105 West Street
Site 2: McLeod Mine adjacent to the Magpie River
Site 3: Goudreau Mine approx. 35 km northeast of Wawa
Municipality:
Site 1: Sault Ste. Marie
Site 2: immediately north of Wawa
Site 3: Aguonie Township
Upper Tier:
District of Algoma
ERT Case No.:
15-148
ERT Case Name:
Ghosh v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended; and under section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellants:
See Appendix 2 – Appellant List (15-158)
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to maintain environmental protection measures and to assess and report on environmental conditions regarding steel mill and mining operations
Reference No.:
7313-A44LL6, Amendment No. 1
Property Address/Description:
Site 1: 105 West Street
Site 2: McLeod Mine adjacent to the Magpie River
Site 3: Goudreau Mine approx. 35 km northeast of Wawa
Municipality:
Site 1: Sault Ste. Marie
Site 2: immediately north of Wawa
Site 3: Aguonie Township
Upper Tier:
District of Algoma
ERT Case No.:
15-158
ERT Case Name:
Ghosh v. Ontario (Environment and Climate Change)
Heard:
May 20, 2016 by telephone conference call
APPEARANCES:
Parties
Counsel
Essar Steel Algoma Inc., Essar Mumbai and Company Officers
Douglas F. Harrison, Patrick G. Duffy
Company Directors
Jennifer Teskey
Director, Ministry of the Environment and Climate Change
Justin A. Jacob
ORDER DELIVERED BY MARLENE CASHIN AND HEATHER I. GIBBS
REASONS
Background
1This order relates to a consent motion for a stay.
2On November 9, 2015, the Director of the Ministry of the Environment and Climate Change (the “Director”, “MOECC”) issued an initial Director’s order to Essar Steel Algoma Inc. (the “Company”), an entity identified as "Essar Mumbai", and the directors and officers of Essar Steel Algoma Inc. The initial Director’s order was amended on November 15, 2015 (“Amendment No. 1”). The initial Director’s order and Amendment No. 1 are referred to collectively as the “Order”.
3A number of parties, including a group identified as the “Company Directors”, comprising Jatinder Mehra, Kalyan Ghosh, Naresh Kothari and Kishore Mirchandani, appealed the Order.
4During a telephone conference call on May 20, 2016, on consent of all of the parties, the Environmental Review Tribunal (the “Tribunal”) issued a stay of the Order by oral disposition in this matter as follows:
Section 2.11 of the Order of the Director is stayed until the disposition of the appeals of the Order, insofar as it applies to the following directors of ESSAR Steel Algoma Inc: Jatinder Mehra, Kalyan Ghosh, Naresh Kothari and Kishore Mirchandani.
5These are the reasons for the granting of that stay.
6Further information on the appeals in this matter can be found in orders of the Tribunal dated February 2, 2016 and April 12, 2016. A complete list of the Appellants in case numbers 15-148 and 15-158 is included in Appendices 1 and 2.
Relevant Legislation and Rules
7The relevant legislation and rules are:
Environmental Protection Act (the “EPA”)
- (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; …
- (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 or 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 of damage to any property or to any plant or animal life.
Tribunal Rules of Practice (the “Rules”)
- The Party shall provide evidence and submissions in support of its motion respecting:
(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;
(b) whether there is a serious issue to be decided by the Tribunal;
(c) whether irreparable harm will ensue if the relief is not granted; and
(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.
Issue
The issue is whether a stay should be granted of s. 2.11 of the Order insofar as that section applies to the Company Directors, until the appeals are finally disposed of by the Tribunal.
8Section 2.11 of the Order states as follows:
2.11 Within 60 days of receipt of an approved [Terms of Reference] for the [Site Wide Environmental Conditions Report] outlined above, undertake all the required work in accordance with the approved schedule and submit a final report for review and approval of the Director.
9The Company Directors’ reasons for requesting the stay of s. 2.11 of the Order insofar as that section applies to them are as follows:
(i) the Terms of Reference document is expected to be submitted in the coming days;
(ii) the appeal hearing has yet to be scheduled;
(iii) the Director has consented to the stay;
(iv) a stay of the same section of the Order has been granted to the Company and certain of its officers; and
(v) the Tribunal is not barred from granting a stay of this section of the Order under either s. 143(2) or 143(3) of the EPA.
10Pursuant to s. 143(2)(a) of the EPA, the Tribunal is prohibited from staying the operation of orders to monitor, record and report. Both the Company Directors and the Director agree that s. 2.11 is not an order to “monitor, record and report”, and the Tribunal so finds.
11Section 143(3) of the EPA prohibits the Tribunal from staying the operation of an order if doing so 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.
12The parties submit that in the circumstances of this case, where the Company is continuing on a “business-as-usual” basis and is complying with the Order, granting the stay sought by the Company Directors does not, and will not, give rise to any actual or prospective danger or harm. The Tribunal finds on the basis of the parties’ submissions and the Tribunal’s earlier findings on the evidence discussed in its order dated April 12, 2016, that s. 143(3) does not apply in this case.
13The Tribunal finds that it is not precluded under s. 143(2)(a) or s. 143(3) of the EPA from issuing a stay of s. 2.11 of the Order as against the Company Directors. As the Director has consented to the Company Directors’ motion for a stay of s. 2.11, there is no need to engage in a detailed analysis of the Rules 110(b) to (d), which set out the factors to be considered when deciding whether or not to grant a stay. The Tribunal grants the stay until the appeals are finally disposed of by the Tribunal.
ORDER
14For the reasons set out above, and on consent of the parties, the Company Directors’ motion for a stay of s. 2.11 of the Order, insofar as that section of the Order applies to the Company Directors, is granted until the disposition of the appeals of the Order.
Company Directors’ Stay Motion Granted
“Marlene Cashin”
MARLENE CASHIN
MEMBER
“Heather I. Gibbs”
HEATHER I. GIBBS
VICE-CHAIR
Appendix 1 – Appellant List (15-148)
Appendix 2 – Appellant List (15-158)
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
Appellant List (15-148)
Appellant Name
File No.
Kalyan Ghosh
15-148
Jatinder Mehra
15-149
Naresh Kothari
15-150
Kishore Mirchandani
15-151
Pramod Kumar Shukla
15-152
Rajat Marwah
15-153
David James Rennie
15-154
J. Robert Sandoval
15-155
Essar Steel Algoma Inc.
15-156
Essar Mumbai
15-157
Appendix 2
Appellant List (15-158)
Appellant Name
File No.
Kalyan Ghosh
15-158
Jatinder Mehra
15-159
Naresh Kothari
15-160
Kishore Mirchandani
15-161
Pramod Kumar Shukla
15-162
Rajat Marwah
15-163
David James Rennie
15-164
J. Robert Sandoval
15-165
Essar Steel Algoma Inc.
15-166
Essar Mumbai
15-167