Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: January 28, 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: January 6, 2016 by telephone conference call and on January 16, 2016 in writing
APPEARANCES:
| Parties | Counsel/Representative+ |
|---|---|
| Sanjay Nirula | J. Bruce McMeekin |
| 1350095 Ontario Ltd. and Edwin M. Robertson | Marc McAree and Matthew Gardner |
| Gerald Douglas Warne | Stewart McLellan+ |
| DTZ Barnicke Niagara Limited, Todd Howard Crawford and Taylor Wilson | John Tidball |
| Regional Municipality of Niagara | Jessica Mathewson, Leonard Griffiths and Sarah Gilbert |
| Corporation of the Town of Fort Erie | Christine G. Carter |
ORDER DELIVERED BY 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, Regional Municipality of Niagara, Ontario (the “Site”). Several persons named in the Director’s Order appealed to the Tribunal under s. 140 of the Environmental Protection Act (“EPA”). These appeals were assigned Tribunal Case Nos. 15-019 to 15-025.
2In response to the spill, the Regional Municipality of Niagara (“Niagara”) 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, Niagara 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. A full list of the appellants is included in Appendix 1. Two of the appellants are 1350095 Ontario Limited and Edwin M. Robertson. Along with their Notice of Appeal, pursuant to Rule 84 of the Tribunal’s Rules of Practice, they filed a Notice of Allegation, dated September 29, 2015, making allegations against several persons, including the Corporation of the Town of Fort Erie (the “Town of Fort Erie” or the “Town”), PPG Industries Ohio, Inc., PPG Industries Inc., Amercoat Canada, Danroh Inc., Allcolour Paint Limited, Serious Business Inc., and Rubyco Ltd. Amongst other things, the Notice of Allegation seeks to have those persons added as parties to this proceeding and requests that the Tribunal order them to comply with the requirements in the s. 100.1 Order.
4On December 9, 2015, the Tribunal received correspondence from 1350095 Ontario Limited and Edwin M. Robertson withdrawing their Notice of Allegation as against PPG Industries Ohio, Inc., PPG Industries Inc., Amercoat Canada, Danroh Inc., Allcolour Paint Limited, Serious Business Inc., and Rubyco Ltd. The Town of Fort Erie and the remaining other persons named in the Notice of Allegation would continue to be subject to it.
5A preliminary hearing in this proceeding was held by telephone conference call (“TCC”) on January 6, 2016. At the preliminary hearing, the Tribunal addressed a request for party status made by the Town of Fort Erie, scheduled dates for motions, addressed the partial withdrawal of the Notice of Allegation, and solicited dates for the main hearing of the appeal.
6On January 15, 2016, the Tribunal received correspondence from the Parties setting out agreed dates for the exchange of motion materials and the main hearing.
Issue
7The issue is whether to grant party status to the Town of Fort Erie.
Relevant Rules
8The 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.
- A Party to the proceeding before the Tribunal may:
(a) bring motions;
(b) be a witness at the Hearing;
(c) be questioned by the Parties;
(d) call witnesses at the Hearing;
(e) cross-examine witnesses;
(f) make submissions to the Tribunal, including final argument;
(g) receive copies of all documents exchanged or filed by the Parties;
(h) participate in a mediation;
(i) attend site visits; and
(j) claim costs or be liable to pay costs where permitted by law.
Discussion, Analysis and Findings
Request for Party Status
9The Town of Fort Erie submits that it is named in the Notice of Allegation, dated September 29, 2015, and may be directly affected by the outcome of the appeal. The Town submits that due to the allegations made against it, it has a direct interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. No party objected to the Town’s request.
10The Tribunal finds that as a recipient of the Notice of Allegation, the Town of Fort Erie’s interests may be directly and substantially affected by the outcome of the appeal and it meets the criteria for party status under Rule 63. The Tribunal grants the Town party status.
Other Procedural Issues
11During the TCC on January 6, 2016, Mr. Robertson and 1350096 Ontario Limited requested that other persons named in their Notice of Allegation be named as parties in the proceeding. They argued that the interests of those persons may be directly affected by the outcome of the appeal. The Tribunal deferred making a ruling on this request until such time as the persons for whom party status is being sought are formally notified of the requested relief and a notice of motion is properly served and filed.
12The parties requested the scheduling of motions to address the above-noted status requests and any jurisdictional or other issues that arise. During the TCC on January 6, 2016, the Tribunal set motion dates for March 30 and 31, 2016 in Toronto. Regarding any contemplated motion(s) challenging claims set out in the Notice of Allegation, the Tribunal requests that the Parties consider having the hearing proceed in two stages with a preliminary stage considering whether the s. 100.1 Order will be upheld against the Appellants, and if necessary, then proceeding to a second stage at which the Tribunal would consider whether others can and should be subject to the Order, having regard to the wording of s. 100.1.
13During the TCC on January 6, 2016, the Tribunal was informed that none of the Parties object to the partial withdrawal of the Notice of Allegation as requested by Mr. Robertson and 1350096 Ontario Limited.
14On January 15, 2016, the Tribunal received correspondence from the Parties setting out agreed dates for the exchange of motion materials and jointly proposing October 17 to 28, 2016 as the dates for the main hearing in Toronto. These agreed dates are set out below in this Order.
ORDER
15The Tribunal grants the Town of Fort Erie party status.
16The Tribunal confirms the following schedule for any motions to be brought by Parties:
February 17, 2016 Notices of motion and supporting affidavits to be served and filed with the Tribunal
March 2, 2016 Responding motion materials to be served and filed with the Tribunal
March 9, 2016 Reply motion materials (if any) to be served and filed with the Tribunal
March 15, 2016 Cross-examination on any affidavit evidence for motions to be completed
March 25, 2016 Facta and books of authorities for motions to be served and filed with the Tribunal
March 30 and 31, 2016 Hearing of motions in Toronto
17The portions of the Notice of Allegation, dated September 29, 2015, as against PPG Industries Ohio, Inc., PPG Industries, Inc., Amercoat Canada, Danroh Inc., Allcolour Paint Limited, Serious Business Inc., and Rubyco Ltd. are withdrawn.
18The main hearing will be held in Toronto commencing on October 17, 2016 and continuing to October 28, 2016.
19The Tribunal adjourns the preliminary hearing to a TCC to be held on March 9, 2016 at 10 a.m. The Tribunal Case Coordinator will contact and provide the Parties with call-in details for the TCC.
Request for Party Status Granted
Notice of Allegation Withdrawn in Part
Hearing and Motion Dates Scheduled
Preliminary Hearing Adjourned
“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 |
| 1350095 Ontario Limited | 15-097 |
| Edwin Robertson | 15-098 |
| Gerald Douglas Warne | 15-099 |
| DTZ Barnicke Niagara Limited | 15-100 |
| Todd Howard Crawford | 15-101 |
| Taylor Wilson | 15-102 |