Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 29, 2016
CASE NO.:
15-096
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
See Appendix 1 - Appellant List
Respondent:
Regional Municipality of Niagara
Subject of appeal:
Order to pay costs related to the cleanup of a spill
Property Address/Description:
833 Helena Street
Municipality:
Town of Fort Erie
Upper Tier:
Regional Municipality of Niagara
ERT Case No.:
15-096
ERT Case Name:
Nirula v. Niagara (Regional Municipality)
Heard:
June 14, 2016 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
Regional Municipality of Niagara
Jessica Mathewson
1350095 Ontario Ltd. and Edwin M. Robertson
Marc McAree and Matthew Gardner
Corporation of the Town of Fort Erie
Christine G. Carter
Presenter
Iain McQuiston
Self-represented
ORDER DELIVERED BY KAREN KRAFT SLOAN AND HUGH S. WILKINS
REASONS
Background
1On March 19, 2015, the Director, Ministry of the Environment and Climate Change issued Order No. 7344-9UKF6C (the “Director’s Order”) to a number of persons regarding a spill of environmental contaminants including toluene and acetone at 833 Helena Street, Fort Erie, in the Regional Municipality of Niagara (the “Site”). Several persons named in the Director’s Order appealed to the Environmental Review Tribunal (the “Tribunal”) under s. 140 of the Environmental Protection Act (“EPA”). These appeals were assigned Tribunal Case Nos. 15-019 to 15-024. Those appeals were concluded in a Decision of the Tribunal, dated April 14, 2016.
2In response to the spill, the Regional Municipality of Niagara (the “Region”) undertook clean-up activities at or adjacent to the Site pursuant to s. 100(1)(a) of the EPA in an effort to prevent, eliminate and ameliorate any adverse effects and to restore the natural environment. On September 14, 2015, the Region issued an order under s. 100.1(1) of the EPA against the persons named in the Director’s Order for the recovery of $3,670,315.78 in costs and expenses (the “s. 100.1 Order”) incurred for its actions taken in the clean-up.
3Several persons named in the s. 100.1 Order appealed to the Tribunal under s. 100.1(7) of the EPA. The appeals of the s. 100.1 Order are the subject of this proceeding.
4A preliminary hearing in this proceeding was held by telephone conference call (“TCC”) on January 6, 2016, at which the Tribunal granted party status to the Corporation of the Town of Fort Erie and addressed procedural issues.
5On March 9 and 11, 2016, the Tribunal held status update TCCs at which the Region stated its intention to revoke the s. 100.1 Order as against the Appellants DTZ Barnicke Niagara Limited (“DTZ”), Todd Howard Crawford, Taylor Wilson and Sanjay Nirula. On April 18, 2016, the Tribunal issued an order revoking the Order as against those parties and dismissing their appeals.
6A further TCC was held on June 14, 2016, at which Iain McQuiston, an orderee under the s. 100.1 Order, requested presenter status.
Relevant Rules
7The relevant rules of the Tribunal’s Rules of Practice are:
- 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.
The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, 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 or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.
A Presenter in a Hearing may:
(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;
(b) be questioned by the Parties;
(c) provide the Tribunal with a written statement as a supplement to oral testimony; and
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter's interests.
- A Presenter 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) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(f) participate in a mediation, unless permitted to do so by the Tribunal;
(g) attend site visits unless permitted to do so by the Tribunal; and
(h) claim costs or be liable for costs.
Issue
8The issue is whether to grant presenter status to Mr. McQuiston.
Discussion, Analysis and Findings
9Mr. McQuiston stated that he was named as an orderee in the s. 100.1 Order and wished to provide the Tribunal with evidence on his involvement with and the activities of several companies that operated at the Site in the past. No party opposed Mr. McQuiston’s request for presenter status.
10The Tribunal finds that as an orderee and as a person who has knowledge of the Site and past activities that have taken place there, Mr. McQuiston’s interests may be directly and substantially affected by the hearing or its result, he has a genuine interest in the subject matter of the proceeding, and he is likely to make a relevant contribution to the Tribunal’s understanding of the issues. Based on this, the Tribunal finds that it is appropriate to grant Mr. McQuiston presenter status under Rule 69 of the Tribunal’s Rules.
ORDER
11The Tribunal grants Mr. McQuiston presenter status.
Request for Presenter Status Granted
“Karen Kraft Sloan”
KAREN KRAFT SLOAN
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – Appellant List
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
Appellant Name
File No.
Sanjay Nirula
15-096 (Appeal Dismissed)
1350095 Ontario Limited
15-097
Edwin Robertson
15-098
Gerald Douglas Warne
15-099
DTZ Barnicke Niagara Limited
15-100 (Appeal Dismissed)
Todd Howard Crawford
15-101 (Appeal Dismissed)
Taylor Wilson
15-102 (Appeal Dismissed)