Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 30, 2016

CASE NO: 10-055

PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Technical Standards and Safety Authority (ERT Case No. 10-055)

Appellant: Doug C. Thompson Fuels Ltd. (ERT Case No. 10-058)

Appellant: Wayne Gendron (ERT Case No. 10-059)

Appellant: Liana Gendron (ERT Case No. 10-060)

Respondent: Corporation of the City of Kawartha Lakes

Subject of appeal: Order to pay in relation to the clean-up of a spill

Property Address/Description: Municipal property adjacent to 93 and 95 Hazel Street

Municipality: Township of Verulam

Upper Tier: City of Kawartha Lakes

ERT Case No.: 10-055

ERT Case Name: Technical Standards and Safety Authority v. Kawartha Lakes (City)

Heard: February 22, 23 and 26, 2016 in Lindsay, Ontario

APPEARANCES:

Parties

Counsel

Wayne and Liana Gendron

Martin Forget and Fahreen Kurji

Corporation of the City of Kawartha Lakes

Christine Carter

DECISION DELIVERED BY JERRY V. DEMARCO AND HUGH S. WILKINS

REASONS

Background

1This Decision relates to municipal orders to pay costs in relation to a spill of furnace oil in December 2008 from a home at 93 Hazel Street in the City of Kawartha Lakes. In this proceeding, Wayne and Liana Gendron appeal the orders (the “s. 100.1 Orders”) issued against them by the Corporation of the City of Kawartha Lakes (the “City”) under s. 100.1 of the Environmental Protection Act (“EPA”).

2The s. 100.1 Orders are the last in a series of orders that relate to the spill. On December 30, 2008, the Ministry of the Environment (now Ministry of the Environment and Climate Change or “MOECC”) issued an order under s. 157.1 of the EPA to Mr. Gendron and, then later, to Ms. Gendron, who were the owners of the home. The Order required the clean-up and remediation of the spill, which contaminated the Gendrons’ property and spread under Hazel Street. The contamination also migrated to adjacent lands owned by the City and to nearby Sturgeon Lake.

3The Gendrons had insurance coverage. Their insurance provider contracted with D.L. Services to undertake remediation services to address the spill. However, by the end of March 2009, the limits of the Gendrons’ insurance had been reached and the Gendrons’ insurer indicated that it would cease funding the work. The Gendrons did not appear to have the financial means themselves to finance its continuation.

4On March 27, 2009, the MOECC issued Provincial Officer’s Order No. 2585-7QESCT to the City under s. 157.1 of the EPA. The City requested that the MOECC Director review it. In response to the request for review, the Director issued Order No. 2585-7QESCT-1, dated April 9, 2009 (the “s. 157.1 Order”), requiring the City to

immediately take actions to prevent any further discharge of furnace oil to the natural environment and to retain a qualified consultant to prepare and implement an action plan.

5The City unsuccessfully requested a stay of the s. 157.1 Order (see: Kawartha Lakes (City) v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 68). Its appeals of the s. 157.1 Order were also unsuccessful (see: Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2010), 52 C.E.L.R. (3d) 273 (Ont. Env. Rev. Trib.), Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2012), 67 C.E.L.R. (32) 123 (Ont. Div. Ct.), and Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) (2013), 74 C.E.L.R. (3d) 1 (Ont. C.A.)).

6The work items of the s. 157.1 Order state:

Work Item 1

Within 24 hours of service of this Order, take all reasonable and necessary actions to prevent any further discharge of furnace oil to the natural environment from the properties owned by the [City] (roadway and shoreline of Sturgeon Lake as more specifically identified and described in the attached [Provincial Officer’s Report]) which has been impacted by furnace oil from the spill that occurred at 93 Hazel Street.

Work Item 2

Within one (1) business day of service of this Order, retain the service of a competent and qualified consultant (the Consultant) to undertake an assessment of the impacts to the properties owned by the [City] that have been impacted by the furnace oil from the spill at 93 Hazel Street and to prepare an action plan, with an implementation schedule, identifying the measures proposed to be taken to remediate the adverse effects of the furnace oil spill related to those properties and to restore the municipally owned property that has been impacted by furnace oil.

Work Item 3

Within ten (10) business days of the service of this Order [April 17, 2009], provide to the undersigned Provincial Officer the Action Plan prepared by the Consultant.

Work Item 4

Immediately upon receipt of the issuing Provincial Officer’s approval of the Action Plan prepared by the Consultant, implement the approved Action Plan.

Work Item 5

Beginning [April 10, 2009] and bi-weekly thereafter submit to the undersigned Provincial Officer in writing status reports detailing the clean-up efforts to restore the natural environment impacted by the contamination on and related to the properties owned by [the City] that have been impacted by the furnace oil from the spill at 93 Hazel Street and specific actions taken to comply with this Order.

7In response to the s. 157.1 Order, the City retained Golder Associates (“Golder”) as a consultant to undertake work. Golder developed an action plan and organized monitoring, sampling, and other activities at the site.

8The City later issued four orders to pay under s. 100.1 of the EPA against Mr. Gendron, Ms. Gendron, the Technical Standards and Safety Authority (“TSSA”), and Doug C. Thompson Fuels Ltd. operating as Thompson Fuels (“Thompson Fuels”). The s. 100.1 orders required the orderees to pay $471,691.44 to the City for its costs and expenses incurred in cleaning-up the spill.

9On July 29 and 30, 2010, the Gendrons, the TSSA and Thompson Fuels each filed notices of appeal with the Environmental Review Tribunal (the “Tribunal”) regarding the s. 100.1 orders pursuant to s. 100.1(7) of the EPA. Only the appeals by the Gendrons (Tribunal File Nos.: 10-059 and 10-060) remain before the Tribunal.

10In parallel to these proceedings before the Tribunal, both the Gendrons and the City brought separate civil proceedings relating to the spill. The civil proceedings were consolidated on consent. The City’s civil proceedings seek similar relief to that sought in the s. 100.1 Orders being appealed to the Tribunal and include the Gendrons as defendants. To prevent duplication, the Tribunal adjourned the proceedings before it several times to allow the civil claims to move forward. On September 24, 2015, the City undertook not to pursue the civil action if the Tribunal proceeded to a hearing. On October 9, 2015, the Tribunal ordered the hearing to proceed.

11On February 19, 2016, the Tribunal issued an Order (with reasons on March 10, 2016) setting out the scope of the hearing.

12Prior to the hearing before the Tribunal, the City reached a tentative settlement of its civil claim with several defendants, but not the Gendrons. In the proceeding before the Tribunal, the City is presently seeking only the payment of the costs and expenses of its environmental consultant (Golder) and Golder’s remediation contractor (Golder Associates Innovative Applications or “GAIA”) in the amount of $337,673.93, which, it states, are costs and expenses that were not addressed in the tentative settlement of the civil claim.

13The hearing of the appeal before the Tribunal was held on February 22, 23 and 26, 2016 in Lindsay, Ontario, with written submissions in March and April, 2016. For the reasons that follow, the Tribunal allows the appeal by Ms. Gendron and allows in part the appeal by Mr. Gendron.

Relevant Legislation

14Environmental Protection Act:

100.1 (1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.

(3) An order under subsection (1) shall include,

(a) a statement identifying the spill to which the order relates;

(b) a description of things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1);

(c) a detailed account of the costs and expenses incurred in doing the things; and

(d) a direction that the person to whom the order is issued pay the costs and expenses to the municipality.

(10) Except with leave of the Tribunal, at a hearing by the Tribunal, the person who required the hearing under subsection (7) is not entitled to appeal a portion of the order, or to rely on a ground, that is not stated in the person’s notice requiring the hearing.

(11) The Tribunal may grant the leave referred to in subsection (10) if the Tribunal is of the opinion that to do so is proper in the circumstances, and the Tribunal may give such directions as the Tribunal considers proper consequent on the granting of the leave.

(14) At a hearing by the Tribunal under this section, the municipality may, on reasonable notice to all parties, ask the Tribunal to amend the order by adding new costs or expenses or by increasing the amounts set out in the order.

(15) At a hearing by the Tribunal under this section, the Tribunal shall consider only,

(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,

(i) the owner of the thing that was discharged,

(ii) the person having charge, management or control of the thing that was discharged, or

(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or

(b) whether any of the costs or expenses specified in the order,

(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or

(ii) are unreasonable having regard to what was done.

Issues

15The issues before the Tribunal are:

1. Whether the City’s s. 100.1 Orders meet the statutory requirements set out in s. 100.1(3) of the EPA;

2. Whether Ms. Gendron was, immediately before the discharge into the natural environment, the owner of the thing that was discharged or the person having charge, management or control of the thing that was discharged (s. 100.1(15)(a)(i) and (ii));

3. Whether any of the costs or expenses specified in the City’s s. 100.1 Orders do not relate to things for which the City incurred costs or expenses for the purpose of preventing, eliminating or ameliorating any adverse effects or restoring the natural environment (s. 100.1(15)(b)(i) of the EPA); and,

4. Whether any of the costs or expenses specified in the City’s s. 100.1 Orders are unreasonable having regard to what was done (s. 100.1(15)(b)(ii) of the EPA).

Preliminary Matters at the Hearing

16At the outset of the hearing on February 22, 2016, the Gendrons presented the Tribunal with a motion seeking the following relief:

• An order for the production of the agreement between the City and the settling defendants in the City’s civil action.
• An order granting leave to amend the Notice of Appeal to add the following new grounds:
  • the Appellants state that in the event the Respondent did in fact incur expenses to remediate contamination as alleged, which is not admitted but specifically denied, the [Respondent has] been completely indemnified for those expenses in a settlement of their civil action commenced in Superior Court of Ontario under Court File No. 072/11,
  • the Appellants state the order issued constitutes an abuse of statutory authority and must be set aside, and
  • the Appellants state that the pursuit of these costs in two different legal forums constitutes an abuse of process.
• An order that the City pay the costs of this motion.

17After hearing the Gendrons’ oral submissions on the above motion, the Tribunal issued the following ruling after the morning recess:

The Tribunal does not need to hear from Ms. Carter with respect to the Gendrons’ Motion, dated February 22, 2016. That motion is dismissed. The Tribunal is of the opinion that the Gendrons have not demonstrated that granting leave to rely on additional grounds is proper in the circumstances under s. 100.1(11) of the EPA, because the proposed new grounds are outside the list of considerations in s. 100.1(15) of the EPA. The Gendrons’ concerns about double recovery, the production of the settlement agreement, and the terms of any withdrawal of the civil claim are not within the scope of s. 100.1(15) and, in any event, best addressed by the Superior Court.

18Prior to the hearing of evidence, the City suggested that the Tribunal hear a motion to dismiss the Gendrons’ appeals. The Tribunal determined that the appropriate course of action would be to proceed with the hearing of the evidence.

Evidence

The Gendrons’ Evidence

Wayne Gendron

19Mr. Gendron admitted that he was the owner of the furnace oil and had control over it immediately before its discharge. He stated that he and Ms. Gendron became separated in 2002 and that she has never resided at 93 Hazel Street. He said that, at the time of the spill, Ms. Gendron jointly owned the house with him, but that she lived elsewhere. He stated that he pre-purchased the furnace oil, in cash, prior to its delivery and that Ms. Gendron was not aware of the purchase of the oil or its delivery and did not financially contribute to the purchase. He said she was not involved with either the oil or the spill.

Kevin McClintock

20Mr. McClintock, an environmental engineer at D.L. Services, reviewed the work completed by his firm at the site. He said D.L. Services was notified of the spill on or about December 28, 2008, assessed its extent and then recommended and undertook remediation work on the Gendrons’ and adjacent municipal properties. He stated that D.L. Services delineated impacts in the soil and Sturgeon Lake, cleaned up impacted surface water on the lake, installed recovery culverts on Hazel Street, took core and water samples, excavated soil, and remediated contaminated water. He said that D.L. Services installed containment and absorbent booms on Sturgeon Lake, treated impacted ice, vacuumed surface water, cleaned the shoreline, and pumped out and cleaned catch basins. He said the work was directed by the MOECC as set out in approved action and then contingency plans.

21Mr. McClintock stated that by April 1, 2009, by which time the Gendrons’ insurance coverage had been exhausted, the catch basins, culverts and storm sewers were no longer acting as pathways for contaminants and the source of the spill was eliminated. Mr. McClintock stated that, while D.L. Services remained willing and able to continue clean-up work, the City informed it on May 5, 2009 that it had retained Golder to carry out the work the City was required to do under the s. 157.1 Order. Mr. McClintock stated that by May 2009, “there was little, if any, further remediation necessary”, apart from the need to remove contamination under Hazel Street and that “the adverse effects on the municipal land had been eliminated”. Mr. McClintock reiterated that:

By mid-July 2009, other than the contamination found near the catch basin at Hazel and Alfred Street and possibly below the roadbed on Hazel, there was no other remaining contamination of municipal lands. The storm sewer, culverts, other catch basin, the shoreline, the docks and the lake had all been remediated.

Other than the above, at the time of D.L. Services’ departure there was no evidence of any ongoing adverse effects either onsite or offsite, nor was there any risk of adverse effects to the shoreline or to the lake.

22Mr. McClintock stated that, on June 26, 2009, D.L. Services reported to the City its findings that the spill had contaminated lands under Hazel Street and recommended that remediation efforts be undertaken to prevent their further migration. He stated that the City did not act on this recommendation until January 2010. He said D.L. Services completed its work and left the site on or about July 10, 2009.

The City’s Evidence

David Kerr

23Mr. Kerr is the Manager of Environmental Services for the City. He stated that the s. 157.1 Order required the City to take reasonable steps to stop the discharge of furnace oil from its property into Sturgeon Lake, to retain a qualified consultant to assess the impacts of the spill and to prepare an action plan to eliminate adverse effects, and to have the action plan approved and implemented. He stated that it also required the City to provide the MOECC with status reports on the clean-up and the City’s actions to comply with the Order. He stated that, on the City’s receipt of the s. 157.1 Order, it retained an environmental consultant as required by the Order. He stated that it chose Golder because the Order required that it retain a consultant, not a remediation contractor like D.L. Services, and it wanted the consultant to be independent. He said that the City initially proposed to the MOECC Director that it minimize costs by having Golder monitor ongoing work being undertaken by D.L. Services; however, he said that this proposed approach was rejected in writing by the Director. He said Golder reviewed and found D.L. Services’ work to be satisfactory. Mr. Kerr stated that much investigative work was needed to be done by Golder, including taking and analyzing soil samples.

24Mr. Kerr reviewed several of Golder’s invoices stating that they describe the work that was done and who did it. He said he has reviewed all the invoices and is satisfied that all of the work done was related to the project and was reasonable in light of what was required.

25Under cross-examination, Mr. Kerr stated that the cost of cleaning up a spill of this type is often about $100,000. He said a rapid response is important for reducing clean-up costs and addressing the discharge before the contaminant migrates. He said that continued monitoring after the remediation is necessary to ensure that there is no on-going contamination. He said the MOECC carefully monitors clean-up projects. He said that the City asked the MOECC that Golder reduce sampling and monitoring over time, but that the MOECC refused this request. He said the City did not have sufficient capacity to monitor the site and that it had Golder do much of the monitoring. He said the MOECC was concerned that the bedrock in the area might be fractured and contaminants might infiltrate fractures and escape into the Lake. He stated that extensive monitoring was needed to ensure that this did not happen.

26Mr. Kerr stated under cross-examination that Golder’s invoices related to things done for the purpose of responding to the s. 157.1 Order against the City to prevent, eliminate or ameliorate adverse effects and to restore the natural environment. He said the invoices were reasonable having regard to what was done and that each of the invoices was reviewed twice by the City to ensure that the costs were related to the spill and reasonable.

Thomas McIelwain

27Mr. McIelwain is a professional engineer and a Principal at Golder. He reviewed his firm’s responsibilities in addressing the spill, including the compilation of documents, assessment of the spill, preparation of an action plan, meetings with the City, surface water clean-up, monitoring, cleaning of docks and shoreline, sampling and analysis, arranging for borehole drilling, and reporting. He stated that the work focused on lake and shoreline, terrestrial and subsurface impacts. Mr. McIelwain stated that Golder concluded that the local storm water sewer system was the vehicle by which furnace oil reached the lake and that the catch basins needed to be cleaned and monitored. He said that Golder needed to drill 18 boreholes to properly delineate the subsurface extent of the spill and to understand how it was migrating. He said groundwater monitoring was also needed. Mr. McIelwain stated that groundwater testing and subsurface samples were taken and analyzed to differentiate spill contaminants from other pre-existing contaminants in the area and to delineate the extent of the spill.

28Mr. McIelwain stated that the site’s proximity to Sturgeon Lake and its geologic features created challenges for delineating the extent of the spill. He said that not all of the contaminants followed consistent paths and they often travelled at varying speeds. He said the monitoring wells installed by D.L. Services were insufficient to properly delineate the extent of the spill and that Golder had to undertake additional work in this regard.

29Mr. McIelwain reviewed Golder’s invoices, stating that each identifies the work done, who did the work and how much time was spent on it. He said that Golder did all the work that was required under the action plan and did not do any work that was not required or directed to be done by the MOECC. He also stated that it did not duplicate any of the work that was done by D.L. Services.

30Mr. McIelwain stated that all of Golder’s work on the project was related to the spill and reasonable having regard to what was done. He said each site visit took six to seven hours to complete. He stated that one would need to look at Golder’s timesheets (which were not entered into evidence in this proceeding) to determine what work each individual Golder staff person performed with respect to each invoice. He said there was some duplication in the work done among the members of Golder’s team as more than one person was designated to work on the project.

31Mr. McIelwain stated that in August 2009, D.L. Services reported to the Gendrons that its work was completed and the soil and groundwater conditions at the site complied with MOECC requirements; however, he stated that the MOECC was concerned that the site was sensitive due to its proximity to Sturgeon Lake, and required continued monitoring and inspections to ensure that the lake was not contaminated.

32Under cross-examination, Mr. McIelwain acknowledged that most, but not all, of the work required to address the spill was completed by D.L. Services and that much of Golder’s work was monitoring. He said that D.L. Services would have been able to do the work that Golder did and that it would have been cheaper for the City to continue to have D.L. Services do the work. He said Golder was new to the project and had to develop a new action plan and set up a team to do the work.

33Mr. McIelwain stated that the occasional presence of sheen and some odour at the site was not a cause for taking action in the opinion of the MOECC and acknowledged that there were contaminants at the site that were not from the spill. He reviewed directions from the MOECC for monitoring, removal of contaminated debris, flushing out culverts, inspecting sewers, shoreline clean-up and other activities. He testified that the MOECC stated that some contaminant removal would occur through natural processes, such as wave action on Sturgeon Lake, provided that the source of the contaminants was cut off. He stated that it was, however, difficult for some time to determine whether the source had been cut off and he described concerns regarding the somewhat unpredictable movement of oil through soil.

34Reviewing many of the dozens of Golder reports to the MOECC, Mr. McIelwain stated that on most visits to the site, there was found to be little or no sheen or odour to be viewed and no immediate actions were required. He noted that replacement of absorbent pads and other maintenance activities were routinely completed during the site visits.

35He stated that for several months, there was no need for immediate action to be taken; however, he said that one could not say there was no adverse effect because oil could still move slowly through the soil and contaminate the lake or groundwater. He stated that there is a difference between requiring immediate action to preserve the environment and taking action because it is prudent and reasonable, such as replacing absorbent pads. He stated that due to the slow subsurface migration of oil, there was no need to immediately excavate the contaminated soil under the roadway in 2009. He said it was not causing an adverse effect and that it was better to wait and see where the oil was going.

Discussion

The Gendrons’ Submissions

36The Gendrons challenge the validity of the s. 100.1 Orders on the following grounds:

i. the Orders do not comply with the mandatory requirements of s. 100.1(3);

ii. Ms. Gendron is inappropriately named as an orderee;

iii. the City seeks recovery of costs and expenses that are beyond the scope of s. 100.1(1);

iv. the City seeks recovery of costs and expenses that are unreasonable having regard to what was done; and

v. fairness factors weigh in favour of allowing the appeal.

37The Gendrons argue that the onus lies with the City to show that the invoices in question meet the s. 100.1 requirements. Should the Tribunal choose to make a finding on the amount of recoverable costs, the Gendrons request it be limited to $43,231.66.

i. The orders do not comply with the mandatory requirements of s. 100.1(3)

38The Gendrons submit that mandatory requirements under s.100.1(3) have not been met, arguing that the City did not adequately describe the things that were done as required under s. 100.1(3)(b) or provide a detailed account of the costs and expenses incurred in doing the things under s. 100.1(3)(c). They argue that descriptions of work done are found in Golder’s reports to the MOECC, but that these were not appended to the s. 100.1 Orders and were not provided to the parties by the City in this proceeding. They submit that the invoices do not state who did what work.

39The Gendrons argue that the City’s failure to fulfill the mandatory requirements of s. 100.1(3) make it difficult for an orderee to respond and defeats the purpose of the section to facilitate an expedient recovery. They argue that, without compliance with these requirements, the s. 100.1 Orders cannot stand. They state that s. 100.1(3) required the City to provide this information and not for the Gendrons to request further information from the City. They state that, in fact, full particulars have never been provided to them and that they are still unaware of what work listed in the invoices was done to prevent, eliminate or ameliorate adverse effects as opposed to consulting fees, report drafting and correspondence with the Director.

40The Gendrons argue that the s. 100.1 Orders attempt to improperly shift the onus on to the orderee to parse out the expenses, while s. 100.1(3) sets out a statutory obligation for the City to describe the accounts. The Gendrons submit that the Tribunal should draw an adverse inference from these “significant evidentiary omissions” in the s. 100.1 Orders.

ii. Ms. Gendron is an inappropriately named orderee

41The Gendrons submit that Ms. Gendron did not purchase the furnace oil and she did not have care, management or control of it at any time. They submit that Mr. and Ms. Gendron have been separated since 2002 and that Ms. Gendron was not residing at 93 Hazel Street at the time that the furnace oil was purchased or at the time of the spill in December 2008. They disagree with the City’s characterization of “owner of pollutant” to include the owner of the tank and submit that a person who owns the property where a fuel tank is located is not automatically the owner of the fuel in the tank.

iii. The City seeks recovery of costs and expenses that are beyond the scope of s. 100.1(1)

42The Gendrons argue that the City has misunderstood the purpose and scope of s.100.1 of the EPA. They submit that s. 100.1 is independent of s. 157.1 of the EPA and stands alone as a remedy to recover expenses. They argue that a s.157.1 order is broader as it can require more than the remediation of the environment and that s. 100.1 should not be interpreted to allow all expenses incurred in response to a s. 157.1 order.

43The Gendrons argue that s. 100.1(1) addresses recovery of expenses incurred to “prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.” This provision, they submit, must be read along with the purpose of the EPA, as set out in s. 3 of the Act, which is to protect and conserve the natural environment. They argue that s. 100.1 is limited and requires the presence of an adverse effect. They submit that the section does not provide for global recovery of all costs incurred as a result of a spill. They submit that recovery of broader costs is provided under s. 99(2) of the EPA. They submit that if there is no adverse effect to prevent, eliminate or ameliorate, then recourse is not available under s. 100.1.

44The Gendrons argue that the costs sought by City are not related to costs incurred in preventing, eliminating and ameliorating adverse effects to the environment. They state that Golder’s invoices include fees for attending meetings, telephone calls, travel to and from the site, affidavit preparation, and preparing estimates, reports and observing and consulting with D.L. Services. They submit that none of these work items prevented, eliminated or ameliorated any adverse effects. Moreover, the Gendrons argue that Golder solely provided consulting services and did not undertake actual remediation work.

45The Gendrons argue that by July 2009 when D.L. Services ended its work, neither the MOECC nor Golder could find any remaining adverse effects at the site beyond the contaminants under Hazel Street. They submit that no additional adverse effects were ever found and no further remediation work was performed apart from work addressing the soil under the roadway (for which costs and expenses are not being claimed in this proceeding). They submit that, if there were any outstanding adverse effects, they were mostly recovered through the City’s partial settlement of its civil claim and, in any event, most of those costs are not claimed in this proceeding.

46The Gendrons argue that invoices for consulting services are not connected to the prevention, elimination, or amelioration of adverse effects or the restoration of the natural environment and cannot be claimed under s. 100.1. They submit that although the s. 157.1 Order issued against the City required the City to retain a consultant, this does not mean that the costs of the consultant are recoverable under s. 100.1, unless there is an adverse effect that is being addressed. They submit that there were no adverse effects after July 2009 (apart from the soil under the roadway), but that Golder continued to work for another 15 months. They argue that Golder visited the site 33 times from July 2009 to October 2010, but no contamination of concern or adverse effect was identified during that time period.

47The Gendrons submit that monitoring and reporting are also outside the scope of s. 100.1(1) as they are not related to a purpose set out in s.100.1(1). They argue that monitoring is not remediation. They refer to Citizens Against Melrose Quarry v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 22, and Goldlust v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 60, as authorities for the recognition of the value of monitoring when it is time specific and related to the presence of a contaminant, but submit that monitoring on its own does not prevent an adverse effect. They submit that the monitoring performed by Golder did not lead to any revelations, had uncertain value as a preventative measure and did not include any remediation work, and, therefore, expenses related to monitoring are not recoverable.

48The Gendrons also submit that some of the costs from Golder’s remediation contractor, GAIA, relate to costs of equipment that was never used and was eventually returned to the supplier.

iv. The City seeks recovery of costs and expenses that are unreasonable having regard to what was done

49The Gendrons argue that s. 100.1(15) does not limit the Tribunal’s jurisdiction to only considering the reasonableness of the costs of the work that was done, but rather also allows it to consider whether the work itself was reasonable.

50The Gendrons submit that Mr. McClintock’s unchallenged evidence is that there were no adverse effects, nor a risk of adverse effects, arising from the spill after July 2009 and that Golder’s fees for work done after that time are not recoverable under s. 100.1 as there was no need for ongoing attendances or monitoring. The Gendrons submit that in fact on June 24, 2009, the City had containment booms and absorbent materials removed from the site.

51The Gendrons argue that the City’s decision not to allow D.L. Services to continue its remediation work and the City’s delay in remediating the contaminated soil under the roadway also were unreasonable. They argue that had the City cleaned up the soil under the roadway in a more expedient manner, it would have saved the City more than two years’ worth of attendances at the site by Golder. They submit that the monitoring done by Golder cost more than it was worth and was unnecessary and that the total cost of Golder’s services was double the amount that was originally estimated. They also question the amount of time docketed for Golder’s visits, submitting that it is unlikely that each visit took as much time as billed. They also argue that some of the costs claimed for reporting are unreasonable given that they include reports about the City’s own attendees at the site.

v. Fairness factors weigh in favour of allowing the appeal

52The Gendrons submit that they are not at fault for the spill, do not have the capacity to pay, and there are at-fault parties with sufficient funds to provide the City with the recovery it seeks. They argue that it would be unfair to uphold the s. 100.1 Orders against them. They argue that the Supreme Court of Canada in R v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 found that regulatory offences should not be read to exclude any possible defence and that reasonableness and fairness factors can be considered (see 724597 Ontario Inc. (c.o.b. Appletex) v. Ontario (Minister of Environment and Energy), [1994] O.E.A.B. No. 17 and Ontario (Ministry of Environment and Energy, Southern Region) v. 724597 Ontario Inc. (c.o.b. Appletex), 1995 10633 (ON CTGD), [1995] O.J. No. 3713 (Ont. Div. Ct.)). They submit that the Divisional Court, in Montague v. Ontario (Ministry of the Environment), 2005 6379 (ON SCDC), [2005] O.J. 868, at para. 22, also found that the Tribunal is entitled to consider issues of fairness, finding that s. 17 and 18 of the EPA provide that the MOECC Director “may” make an order, thus giving him or her discretion and entitling the Director to consider fairness issues when deciding whether or not to issue an order. They submit that s. 100.1(1) contains similar language to s. 17 and 18 and the Tribunal is entitled to consider capacity, fault, fairness and reasonableness issues with a view to achieving the purpose of the EPA.

53The Gendrons submit that the Tribunal must act in the public interest when adjudicating a s. 100.1 appeal. They argue that, on requests to terminate a proceeding, the Tribunal must consider, among other things, whether the agreement is in the public interest (see Rule 201 of the Tribunal’s Rules of Practice). The Gendrons argue that it would be inconsistent and not in line with the purpose of the EPA if such considerations were not also taken into account on an appeal on the merits.

The City’s Submissions

54The City submits that there are two issues that the Tribunal must determine:

i. Whether Mr. and Ms. Gendron were (a) the owners of the pollutant, or (b) persons having control of the pollutant immediately before the spill; and,

ii. Whether the costs and expenses incurred by the City do not relate to things done for the purpose of preventing, eliminating or ameliorating adverse effects or restoring the environment or whether any of the costs incurred were unreasonable having regard to what was done.

55The City submits that the role of the Tribunal on a s. 100.1 appeal differs from that of a proceeding under Part XIII of the EPA, arguing that the Tribunal is not to conduct a rehearing or to second guess the manner in which the City complied with the s. 157.1 Order.

i. Whether Mr. and Ms. Gendron were (a) the owners of the pollutant, or (b) persons having control of the pollutant immediately before the spill

56The City submits that Mr. Gendron conceded that he was the owner of the pollutant and that his liability is therefore not contested.

57The City argues that the Tribunal should draw an adverse inference from Ms. Gendron’s failure to appear at the hearing and from the fact that she did not appeal the MOECC’s s. 157.1 order against the Gendrons. It argues that she cannot now raise or argue issues that should have been raised by appealing that order (see: Consolidated Maybrun Mines Ltd. v. Ontario (Director, Ministry of the Environment) (2000), 33 C.E.L.R. (N.S.) 1 (Ont. Env. App. Bd.) (“Maybrun”) and National Hard Chrome Plating Co. (Re) (1996), 21 C.E.L.R. (N.S.) 266 (Ont. Env. App. Bd.)) and cannot now argue that she is not a proper orderee under s. 100.1. The City also argues that Ms. Gendron owned the property, including the fuel tank, and that her responsibilities as a property owner give rise to liability under s. 100.1. It also argues that Ms. Gendron contracted with Thompson Fuels for automatic delivery of furnace oil in 2001 and her credit card was on file with Thompson Fuels. The City submits that to relieve Ms. Gendron of responsibility would be contrary to the public policy and purposes of the EPA. It argues that the purpose of the EPA is best served using a broad reading of the term “owner of pollutant” that includes the owner of the tank. It submits that, under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16, Ms. Gendron had an ongoing responsibility to maintain the tank and therefore, requisite control of the pollutant stored in the tank. It submits that not living at a property does not relieve an owner of liability for harm caused at that property.

ii. Whether the costs and expenses incurred by the City do not relate to things done for the purpose of preventing, eliminating or ameliorating adverse effects or restoring the environment or whether any of the costs incurred were unreasonable having regard to what was done

58The City argues that there is no evidence to dispute that all of the Golder invoices relate to things that were done for the purpose of responding to the s. 157.1 Order against the City requiring it to prevent, eliminate or ameliorate adverse effects or restore the natural environment. It submits that the s. 157.1 Order required it to retain a “consultant” to assess the actions needed to remediate the adverse effect, prepare an action plan to restore the natural environment and prevent further discharges. It submits that this was what Golder did. It submits that there is no evidence showing that any of Golder’s invoices relate to clean-up activities that are unrelated to the spill.

59The City argues that to remediate the spill, both the installation and monitoring of wells were required. It argues that delineation of the spill was not completed by D.L. Services and the further work was required. It submits that the Provincial Officer’s Report accompanying the s. 157.1 Order stated that the shoreline, drains, roadway and surface water remained impacted, and that measures were needed to be taken by the City “to prevent or reduce the risk of discharge of a contaminant into the natural environment from the municipally owned property or to prevent, decrease, eliminate an adverse effects that may result”. The City submits that its action plan, as approved by the MOECC and required under the s. 157.1 Order, necessitated the actions undertaken by Golder. It submits that the drilling and samples taken by Golder and the clean-up activities that it undertook demonstrate that D.L. Services did not address all of the adverse impacts of the spill. It argues that consulting, monitoring and reporting are critical elements of a clean-up and their costs are covered under s. 100.1. It submits that to exclude these costs would be contrary to the purpose of the EPA and public policy.

60The City submits that s. 100.1(15)(b)(ii) requires the Tribunal to determine whether any of the costs or expenses are unreasonable “having regard to what was done” and that the issue of whether the costs and expenses were unreasonable is the issue, not whether what was done was unreasonable. The City submits that the Gendrons have the onus of proving that the costs and expenses are unreasonable and to provide expert evidence demonstrating this based on industry standards. The City argues that the Gendrons have failed to provide such evidence. It argues that the evidence of Mr. Kerr and Mr. McIelwain was uncontradicted that the costs and expenses were reasonable. The City submits that all of the invoices were carefully reviewed by City staff to ensure their relevancy and reasonableness with regard to the work done.

61The City argues that the Gendrons did not present expert evidence on whether the Golder invoices set out work related to the purposes referred to in s. 100.1(1). The City argues that it is not the role of the Tribunal to second guess whether a different consultant or contractor would have done things differently or whether work was done in the most cost-effective way possible, nor is it the role of the Tribunal to review every invoice to see if it is reasonable. Instead, the City submits that s. 100.1(15) requires the Tribunal to analyze whether or not costs and expenses are unreasonable having regard to what has been done. The City submits that the Tribunal must assess the reasonableness of what was done, as opposed to the reasonableness of doing those things.

62The City submits that its s. 100.1 Orders meet the requirements set out in s. 100.1(3) in that they identify the spill, describe the clean-up actions taken, and provide detailed accounts of the costs and expenses. It submits that Golder’s invoices were attached to the Orders and argues that there is no statutory requirement to include reports with the Order. It submits that the reports were made available to the Gendrons after the s. 100.1 Orders were issued and, in any event, if there was non-compliance, this is not an impediment to recovery. The City argues that the Gendrons are not prejudiced in any way due to how the Orders were structured. It argues that this issue is not a ground for appeal listed in the Gendrons’ Notice of Appeal and is precluded under s. 100.1(10), which requires leave of the Tribunal for an appellant to add grounds.

Analysis and Findings

63In its Order dated March 10, 2016 (Technical Standards and Safety Authority v. Kawartha Lakes (City), [2016] O.E.R.T.D. No. 8), the Tribunal found that the proper scope of a hearing before the Tribunal under s. 100.1 is narrow and defined solely by s. 100.1(15) of the EPA. The Tribunal stated at para. 51:

Section 100.1 provides a summary mechanism for municipalities to recover clean-up costs from those who owned or controlled a pollutant that was spilled. In s. 100.1 proceedings, the Tribunal’s ambit of considerations is clearly circumscribed by the wording of s. 100.1(15). The Tribunal will look into only: 1) issues relating to ownership or control of the “thing” (i.e., the pollutant, which in this case is the heating oil) immediately before the discharge, and 2) issues involving the relation of the incurred costs to s. 100.1(1) and the reasonableness of those costs having regard to what was done. The Tribunal finds that it should not hear evidence or argument regarding grounds that do not fall within the wording of s. 100.1(15)(a) or (b). Otherwise, it would be ignoring the “shall consider only” directive from the Legislature. The Tribunal has consistently abided by the “shall consider only” wording in proceedings under s. 145.3(2) (see, for example, Starnino and 569006 Ontario) and finds that the approach of confining the scope to only the listed considerations should also apply to s. 100.1 proceedings. While the scope of s. 145.3(2) is even narrower than s. 100.1(15) (in that ownership and control are not listed in the former), the general approach of confining the proceedings’ considerations only to the listed items is what the Tribunal finds was intended by the inclusion of the “shall consider only” wording in both provisions. Given that the provisions are drafted in a similar “shall consider only” manner, the Tribunal’s interpretation and application of them should be consistent.

64It added at paras. 69 to 70:

The following conclusions emanate from the above analysis. If the evidence shows that the orderee was within the classes of persons listed in s. 100.1(15)(a)(i) to (iii) (i.e., those with ownership or control) and the costs are not ones that fall within the classes set out in 100.1(15)(b)(i) and (ii) (i.e., costs that are unrelated to the clean-up work or are unreasonable having regard to the work), then the order should be upheld. Section 100.1(15) does not ask the Tribunal to conduct a wide-ranging new hearing or to consider substituting its discretion for that of the municipality. It is a summary mechanism to look at the specific questions set out in s. 100.1(15). Thus, after considering the evidence relating to the questions set out in s. 100.1(15), the Tribunal will intervene only if:

• the s. 100.1 order was directed to a person who does not fall within the list set out in s. 100.1(15)(a) (which would lead to a revocation);

• some or all of the costs do not relate to things for which the municipality incurred costs for a purpose set out in s. 100.1(1) (which would lead to a revocation or alteration, depending on whether all or some of the costs are unrelated); or

• some or all of the costs are unreasonable having regard to what was done (which would lead to a revocation or alteration, depending on whether all or some of the costs are unreasonable).

Absent the above circumstances, the order will stand. There is no residual set of considerations that the Tribunal will examine in considering whether to revoke or alter a s. 100.1 order.

65The scope of the Tribunal’s analysis in this Decision is limited to a consideration of the factors set out in s. 100.1(15). The Tribunal will not address those aspects of the Gendrons’ arguments that fall outside of the scope of s. 100.1(15). In so doing, the Tribunal adopts its previous analysis set out in Technical Standards and Safety Authority v. Kawartha Lakes (City), [2016] O.E.R.T.D. No. 8.

66Prior to analyzing the issues, the Tribunal clarifies what costs the City is seeking in this proceeding. Along with its original s. 100.1 Orders, the City put into evidence at the hearing a proposed amended order, dated December 16, 2015, which abandons some of the relief sought but also includes additional invoices. As noted above, the original order sought $471,691.44 whereas the proposed amended order seeks $337,673.93. It should be noted that the new proposed lesser total amount is not merely a subset of the original total amount. Numerous items have been removed from the original order (including one of the two GAIA invoices, plus all of the other invoices or accounts that do not emanate from Golder or GAIA), but 10 new invoices are proposed to be added by the City. Adding new costs may be permitted under s. 100.1(14) of the EPA.

67The $337,673.93 total is set out on page 3 of the City’s proposed amended order, which contains a list of 24 invoices (23 from Golder and one from GAIA); 14 of those invoices (13 from Golder and one from GAIA) were in the original order and continue to be pursued. The 10 new invoices are all from Golder. The range of dates of the Golder and GAIA invoices still being pursued by the City are from April 23, 2009 to November 28, 2011.

68There are several typographical errors on page 3 of the proposed amended order, including invoice numbers and invoice amounts. In these reasons, the Tribunal relies on the invoiced amounts in the invoices themselves rather than the list and total on page 3 of the proposed amended order. The only exception is where, in a few cases, the City is pursuing only the pre-GST amount of some invoices. The Tribunal did not receive evidence as to why that was the case, but does note that some of the City’s approval stamps on some invoices authorized the payment of the pre-GST amount as opposed to the total invoiced amount (for example, the July 17, 2009 invoice). Where the City only seeks to recover a pre-GST amount for a few specific invoices in its proposed amended order, the Tribunal has followed that approach for those specific invoices in its disposition at the end of this Decision.

1. Whether the City’s s. 100.1 Orders meet the statutory requirements set out in s. 100.1(3) of the EPA.

69The Gendrons argue that the City did not meet the requirements in s. 100.1(3) of the EPA. They state that the s. 100.1 Orders do not include a “description of things” for which the City incurred costs or expenses to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment, and they do not include a “detailed account” of the costs and expenses incurred in doing the things (s. 100.1(3)(b) and (c)).

70In accord with s. 100.1(3)(a), the s. 100.1 Orders state that they are orders to pay “in relation to the clean-up of the spill performed by the City of Kawartha Lakes” on municipal property (road allowance, municipal infrastructure and shoreline) adjacent to 93 and 96 Hazel Street. In accord with s. 100.1(3)(d), the s. 100.1 Orders include a direction to pay the costs to the municipality. The s. 100.1 Orders (original and proposed amended versions) refer to “attached documentation” consisting of numerous Golder and GAIA invoices that were paid by the City. Each Golder invoice includes a “Project description” heading under which is stated “to provide environmental consulting services regarding the oil spill at 93 Hazel Street, Thurstonia (Sturgeon Lake)”. Each Golder invoice also includes a “Summary of Current Charges” heading under which is stated “Project costs” and then a summary of the “labour” and “disbursement” costs. The Golder invoices include the staff person positions (sometimes with individual names) who did work and disbursement costs including mileage, equipment costs, subcontractors, subconsultants, etc. For each staff person’s labour cost, there is an accounting of the number of hours worked during the period of the invoice, the hourly rate and the resulting total cost. The Golder invoices do not state what each person did in relation to the spill for the hours they worked. The one GAIA invoice that the City continues to pursue does, however, refer to “shoreline control hydrocarbon sheen”, which is somewhat more specific than the project description in the Golder invoices.

71As noted above, the original s. 100.1 Orders also included additional invoices from companies (for example, WG Jackett & Sons Construction Ltd.) other than Golder and GAIA that are no longer being pursued in this proceeding. The final two pages of the s. 100.1 Orders include “accounts” for unknown work by unknown persons with nine dates listed (totaling nearly $150,000) and an additional $11,405.29 for city staff time, labour and mileage. The City is also no longer pursuing the amounts on the final two pages of the s. 100.1 Orders in this proceeding.

72Oddly, the s. 100.1 Orders include at the top of the first page the Tribunal’s name and the style of cause from previous litigation between the City and the MOECC instead of making it clear that these are orders issued by the City. Nonetheless, it appears that all orderees understood that the s. 100.1 Orders were orders issued by the City and not the Tribunal.

73The parties differ on how much detail is required to satisfy s. 100.1(3)(b) and 100.1(3)(c). The Tribunal finds that the s. 100.1 Orders including their attachments are deficient in terms of the “descriptions of things” required under s. 100.1(3)(b). The adequate “description of things” is only contained in Golder’s reports to the MOECC, which were entered into evidence at the hearing. Those reports were not attached to the s. 100.1 Orders. The Gendrons state that the Golder reports to the MOECC, which the Gendrons included in their book of documents, were only obtained through the discovery process in the parallel civil proceedings. All but one of the over 30 Golder reports included in the Gendrons’ five-volume Document Brief (Exhibit 10-1 to 10-5) are part of the evidentiary record in this case (As noted by the Tribunal at the hearing, the Tribunal only considered those documents in the parties’ briefs that were either entered on consent or referred to in the hearing as part of the evidence. As outlined in the parties’ document entitled “Documents not referenced”, 41 of the 139 documents in the Gendrons’ brief are not part of the evidence in this proceeding).

74The Golder reports to the MOECC detail what work Golder did in the time period covered by each report. The first report is dated May 15, 2009, which is soon after Golder started its work at the site and the last report is dated October 22, 2010. Five of the invoices the City seeks to add to the s. 100.1 Orders via the proposed amended order are for Golder work carried out after the date of the last Golder report to the MOECC that was entered into evidence in this proceeding.

75The failure by the City to describe in the s. 100.1 Orders themselves the things for which the City incurred costs or expenses makes it challenging for an orderee to undertake an assessment of whether the work done was related to things for which the City incurred costs or expenses for a purpose referred to in s. 100.1(1) or whether the costs were reasonable having regard to what was done. The omission was most obvious with respect to the page of unknown accounts totaling nearly $150,000 (which is no longer being pursued here) at the end of the original Order. However, the omission extends to all of the Golder invoices in the s. 100.1 Order (except perhaps the GAIA invoice, which has some more detail). The Golder invoices refer only to the spill but not what specific work was done by the persons listed in the invoices. To comply with s. 100.1(3)(b), the City should have either attached the Golder reports or provided some other sufficient “description of things” through additional documentation attached to the orders.

76With respect to the “detailed account” required by s. 100.1(3)(c), the Tribunal finds that the invoices are detailed and would have satisfied this aspect had they been accompanied by better information (such as through the Golder reports) on how the costs were “incurred in doing the things”. The City’s failure to provide fuller information likely increased the likelihood of an appeal, and indeed, all four orderees appealed the s. 100.1 Orders, which contained vague types of expenses (such as the “accounts” for unknown work) and unsubstantiated amounts.

77Mr. McIelwain and Mr. Kerr gave general evidence that all the Golder invoices were proper, but during their testimony neither of them reviewed the invoices individually in detail to explain what work was done for each invoice or how each invoice related to a purpose set out in s. 100.1(1). In this proceeding, the descriptions set out in the Golder reports to the MOECC for time periods that correspond to Golder invoices connect the dots among the costs incurred by the City, the “description of things”, and the purposes in s. 100.1(1). This paper trail of reporting to the MOECC explains what work Golder was undertaking for the period covered by the Golder reports and most (but not all) invoices.

78The City argues that, if there was non-compliance with s. 100.1(3), the Gendrons were not prejudiced by it and, in any event, they did not include s. 100.1(3) as a ground in their notice requiring the hearing nor did they seek leave under s. 100.1(10) or have leave granted by the Tribunal under s. 100.1(11) to rely on s. 100.1(3) as a ground for the appeal. The City also submits that, if the Gendrons took issue with what documents the City disclosed in this proceeding (as opposed to the civil proceeding), they could have raised that issue earlier.

79The Tribunal has significant concerns with the City’s failure to comply with s. 100.1(3) and with the contents and form of the s. 100.1 Orders. However, the Tribunal will not grant the Gendrons’ appeal on the basis of the s. 100.1(3) ground for three reasons. First, the Tribunal finds that the Gendrons should have raised this ground in their Notice of Appeal or sought leave to add this ground. Second, as noted above, the Tribunal is asked under s. 100.1(15) to consider “only” certain things and compliance with s. 100.1(3) is not one of the items listed (though in substance, some of the arguments related to procedural non-compliance with s. 100.1(3) could also be relevant to s. 100.1(15)(b), which will be addressed later). Third, no practical benefit would result, as striking out the s. 100.1 Orders for failure to comply with s. 100.1(3) (if the Tribunal did have the jurisdiction to consider s. 100.1(3) compliance under s. 100.1(15)) at this stage would likely simply cause the City to reissue the s. 100.1 Orders with the Golder reports attached. Any resulting appeal would then hear the same substance that was already heard in this hearing. This would not be an efficient method of addressing the merits of the issue. The Tribunal’s decision not to grant relief on the basis of s. 100.1(3), however, should not be taken as condoning the City’s approach.

2. Whether Ms. Gendron was, immediately before the discharge into the natural environment, the owner of the thing that was discharged or the person having charge, management or control of the thing that was discharged (s. 100.1(15)(a)(i) and (ii)).

80The Tribunal first addresses the City’s argument that essentially states that Ms. Gendron was properly named in a s. 157.1 order issued by the MOECC, so she must equally be liable under s. 100.1. The Tribunal notes that both s. 100.1 and 157.1 are, in part, “owner pay” provisions, but the thing being owned is different as between the two sections. Section 100.1(1) permits a municipality to issue orders against “the owner of the pollutant” or the “person having control of the pollutant”. Under s. 91(1), those in ownership or control are defined to be those who owned or controlled a pollutant “immediately” before the discharge (see also s. 100.1(15)(a)). On the other hand, s. 157.1 allows the MOECC to issue preventative measures orders against “any person who owns or who has management or control of an undertaking or property”.

81As is the case with some other provisions of Part X of the EPA, ownership or control of the “pollutant” is the primary question under s. 100.1(1) and 100.1(15)(a) (see Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (“Midwest”) at para. 46). While the EPA must be interpreted expansively (Midwest at paras. 50-51), the interpretation process cannot completely ignore the distinctions between the terms used in s. 100.1(1) and 157.1. The Tribunal understands the EPA as using “property” ownership as a basis for liability in some of its provisions and “pollutant” ownership in others. While there are many situations where a property owner is also a pollutant owner or controller (as was apparently the case for the corporate defendant in Midwest), there are some situations where a distinction between the two is made out on the facts. Based on its interpretation of the EPA, the Tribunal finds that the “owner of the thing” or the “person having charge, management or control of the thing” immediately before the discharge under s. 100.1(15)(a)(i) and (ii) is not necessarily synonymous with “any person who owns or who has management or control of an undertaking or property” under s. 157.1(1).

82The evidence in this proceeding is that that the MOECC specifically added Ms. Gendron to the s. 157.1 order naming Mr. Gendron because she co-owned the property at the time. A property owner is not always the owner or person having charge, management or control of a pollutant on the property.

83Determining who is the owner(s) of the thing or the person(s) having charge, management or control of the thing immediately before the discharge under s. 100.1(15)(a) is a question that has to be determined on the facts of each case. If property ownership were enough to satisfy s. 100.1, then the wording of the statute would have reflected that. While the City emphasizes that Ms. Gendron did not challenge the MOECC’s s. 157.1 order directed to her, it does not follow that she cannot raise whether she properly fits within s. 100.1(15)(a) in this proceeding. Challenging the s. 157.1 order would have required that she show that she did not own the property but challenging the s. 100.1 Order requires that she address the specific categories set out in s. 100.1(15)(a). This situation is thus quite different from Maybrun. Here Ms. Gendron is challenging the City’s costs order under s. 100.1, which is not based on mere property ownership. Her failure to challenge the MOECC’s s. 157.1 order that was amended to include her, based on property ownership, has no bearing whatsoever on this proceeding, which involves a separate City order and different order-making section of the EPA (i.e., s. 100.1).

84The Tribunal now turns to the evidence regarding whether Ms. Gendron can be subject to the s. 100.1 Order. The Gendrons presented evidence that Ms. Gendron did not reside at 93 Hazel Street at the time of the spill and never owned the furnace oil that was spilled. Although Mr. Kerr introduced evidence demonstrating that Ms. Gendron entered into a service agreement in 2001 with Thompson Fuels, Mr. Gendron testified that the agreement had been terminated and the credit card on file had expired in 2002. The Tribunal finds that the agreement from 2001 does not demonstrate that Ms. Gendron was the owner of the furnace oil immediately before its discharge into the natural environment.

85The evidence shows that, although Ms. Gendron was a co-owner of the home (and presumably the tank in the home) at the time of the spill, she never resided there and neither owned nor had charge, management or control of the furnace oil at any time (nor was she an employee or agent under s. 100.1(15)(a)(iii)). For a lengthy period of time prior to the spill, Mr. Gendron was the sole occupant of the house and he purchased the furnace oil in cash to heat his residence. He was the sole owner of the pollutant after it was purchased. Ms. Gendron had no connection to the oil at all, whether as owner of the oil or person in control of it. The Tribunal finds that Ms. Gendron does not meet any of the criteria under s. 100.1(15)(a), and therefore is not a proper s. 100.1 orderee.

3. Whether any of the costs or expenses specified in the City’s s. 100.1 Orders do not relate to things for which the City incurred costs or expenses for the purpose of preventing, eliminating or ameliorating any adverse effects or restoring the natural environment (s. 100.1(15)(b)(i) of the EPA).

86The Gendrons put forward two general types of arguments in respect of s. 100.1(15)(b)(i). The Tribunal will first address their arguments relating to the scope of s. 100.1, which includes their statutory interpretation arguments that certain classes of work do not fall within the language of 100.1(1) (i.e., “to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment”). The Tribunal will then address their arguments relating to certain facts regarding whether the costs in the s. 100.1 Orders relate to the costs incurred for a purpose referred to in s. 100.1(1).

87The Gendrons argue that most if not all of the relevant remediation work was completed by D.L. Services and that the costs and expenses sought by the City for work completed by Golder relates mostly to consulting, monitoring and reporting activities, which they submit were not for the purpose of preventing, eliminating or ameliorating any adverse effects or restoring the natural environment. The City disagrees. It argues that consulting, monitoring and reporting are critical activities for preventing and eliminating adverse effects and that, given the geology of the site and its proximity to Sturgeon Lake, these activities were necessary.

88Section 100.1(15)(b)(i) states that the Tribunal shall consider whether any of the costs or expenses do not relate to “things” for which the municipality incurred costs for a purpose referred to in s. 100.1(1). The purposes referred to in s. 100.1(1) are to prevent, eliminate or ameliorate any adverse effects or restore the natural environment. The Tribunal must assess the types of things that were done and their purpose. It must consider whether Golder’s work, including consulting, monitoring and reporting on certain matters, in the present case were “things” related to a purpose set out in s. 100.1(1). It must take into account the purpose and relevance of these activities specifically in relation to s. 100.1(1).

89There is no dispute among the parties that the spill caused an adverse effect. The issue is whether the “things” undertaken by Golder helped to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment. The Gendrons argue that only some of the costs that the City incurred in responding to the s. 157.1 Order fit within s. 100.1(1). They argue that the main focus of the s. 157.1 Order was on remediation and that most of that work was done by D.L. Services, not Golder.

90The City puts forward a general argument that any work required of the City by the MOECC under the s. 157.1 Order also fits within the wording of s. 100.1. Section 157.1 sets out the scope of MOECC preventative measures orders:

Order by provincial officer re preventive measures

157.1 (1) A provincial officer may issue an order to any person who owns or who has management or control of an undertaking or property if the provincial officer reasonably believes that the requirements specified in the order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property.

(4) The following directions may be specified in the order:

1. Any direction listed in subsection 18 (1). […]

(5) Where the order requires a person to make a report, the report shall be made to a provincial officer.

91As is evident from s. 157.1(4), s. 157.1 incorporates s. 18(1) by reference. That section includes directions such as: “to monitor and record the presence or discharge of a contaminant ... and to report thereon”, “to study and to report … on the presence or discharge of a contaminant …”, “to study and report … on the natural environment into which a contaminant … may be discharged”, and “to develop and implement plans to … prevent, decrease or eliminate any adverse effects that result … from a spill”. For the purposes of s. 18, the permitted grounds for issuing such directions are set out in s. 18(2) which, like s. 157.1, shares much common wording with s. 100.1(1).

92It is clear that there are similarities between the wording of s. 100.1(1) and 157.1 (and also s. 18). However, the Gendrons are correct in stating that not all work items required under a s. 157.1 order necessarily fall within the types of work contemplated in s. 100.1(1) as being for the purpose of preventing, eliminating or ameliorating any adverse effects or restoring the natural environment. Although the grounds for issuing a s. 157.1 order address similar issues as the purposes set out in s. 100.1(1), s. 100.1(15) asks the Tribunal to consider the relationship between the things done by the municipality and the purposes set out in s. 100.1. The section does not require the Tribunal to conclude that any measures the Provincial Officer believed were appropriate under s. 157.1 automatically satisfy s. 100.1. There is no “free pass” that permits a municipality to point to a s. 157.1 order and have all of the costs it has included in a s. 100.1 order automatically validated under s. 100.1(15). Rather, the Tribunal is to make its own determination under s. 100.1(15)(b) based on the facts of the case. The Tribunal is to measure the costs in a s. 100.1 order against the s. 100.1(15) tests and should not use the fact that a s. 157.1 order has been issued as a reason to not carry out its duty under s. 100.1(15).

93Of course, in many s. 100.1 proceedings before the Tribunal, there is no s. 157.1 order against the respondent municipality at all. Municipalities may take measures that are ultimately subject to recovery under s. 100.1 without any prodding from the MOECC via a s. 157.1 order. In those cases, the Tribunal will also examine the nature of the work done by the municipality or its consultants and contractors to determine whether the work falls within s. 100.1(1). This further illustrates that the tests to be applied arise from the wording of s. 100.1 and that the conclusions the Tribunal reaches under s. 100.1(15)(b) are not determined solely by the wording of any earlier MOECC order that motivated the municipality to act.

94It is clear that the focus of the work items in the s. 157.1 Order is on preventing discharges (Item No. 1), and remediating adverse effects and restoring the environment (Item Nos. 2 to 5). The uncontested evidence adduced by the City was that the geology of the site is such that contaminants could migrate slowly and by means of uncertain pathways, resulting in delayed impacts and/or the discharge of furnace oil into Sturgeon Lake through bedrock. To address the further migration of furnace oil, the action plan prepared by Golder as required in the s. 157.1 Order and approved by the MOECC required cleaning of the affected areas of Sturgeon Lake, soil, catch basins and other areas, regular visual surveys, inspections, monitoring and reporting on the migration of the contaminants as well as periodic groundwater, soil and surface water inspecting, monitoring, sampling and reporting. Undertaking these activities required consulting work in developing the action plan and implementing it. The Tribunal finds that these activities or “things” all served to prevent, eliminate or ameliorate the adverse effects of the spill or restore the natural environment. The Tribunal also finds that the fact that D.L. Services completed most of the remediation work does not mean that Golder’s subsequent work is, therefore, ineligible under s. 100.1(1). There was still appropriate environmental protection work to be done, even if most of the remaining work was less about remediating and restoring (although there was still some remediation to do at the time Golder arrived, especially under the road bed and in the vicinity of one catch basin) and more about ensuring that additional adverse effects were prevented. It is clear from the evidence in this proceeding that much of Golder’s work was preventative in nature, which is not surprising given that it was carrying out consulting work in relation to a “preventative measures” order against the City under s. 157.1.

95The Tribunal finds that consulting work that includes monitoring (which comprises a large portion of the invoices subject to this proceeding) can fall within the wording of s. 100.1(1) in circumstances where there has been a spill and there is a continued risk of migration or discharge. While the Gendrons argue that nearly all the remediation work was done by the time Golder arrived on the scene, that does not mean that the tasks of ameliorating or preventing an adverse effect were complete.

96For the purposes of this proceeding, where the remaining invoices that the City seeks cost recovery relate to Golder’s activities as opposed to the excavating and removal of the material under the road bed for example (which was the subject of some other invoices in the original s. 100.1 Order), the Tribunal finds that “preventing adverse effects” is the category in s. 100.1 that best captures most of the work of Golder. Having examined the Golder reports to the MOECC, given the circumstances that were present at the time that the costs were incurred, the Tribunal is satisfied that Golder’s consulting and monitoring work falls within the rubric of a purpose of “preventing adverse effects”. Even if one considers that consulting or monitoring on its own does not prevent adverse effects, consulting or monitoring can be part of an overall prevention and clean-up approach that has a purpose of preventing an adverse effect. At the time the work was being undertaken, there was no certainty that all adverse effects had been addressed and there was no indication that the natural environment had been fully restored.

97Additionally, to the extent that the Gendrons argue that costs of Golder staff travelling to and from the site and communication costs are not about preventing adverse effects or remediating the site per se, the Tribunal finds that such costs do “relate” to things for which the municipality incurred costs or expenses for a purpose set out in s. 100.1(1). The Tribunal does not read s. 100.1(15)(b)(i) narrowly to the point that the normal attendant activities to pollution clean-up and prevention, including meetings, travel expenses and report-writing, cannot be recovered.

98The Gendrons also appear to challenge whether, in fact, some aspects of the invoices are limited to Golder’s consulting work in addressing the spill. They note that Golder’s work during the relevant times would have also included meeting with counsel for the City and swearing an affidavit in respect of the City’s appeal of the s. 157.1 Order. The Tribunal agrees that any costs incurred by the City in its attempt to reduce the scope of the s. 157.1 Order or avoid having to comply with all or some of the s. 157.1 Order’s requirements are not things done in relation to the purposes of s. 100.1(1). For example, any invoices for work done by Golder or by legal counsel to support the City’s request for a Director’s review of the Provincial Officer’s Order, the City’s request for a stay of the s. 157.1 Order, and the City’s appeal of the s. 157.1 Order, would not be recoverable under s. 100.1. However, there is no evidence that the Golder invoices from the original order remaining at issue in this proceeding relate to costs incurred by the City in challenging the s. 157.1 Order, which would not be recoverable under s. 100.1(1).

99The testimony and documentary evidence provided in this proceeding do not lead to the conclusion that the remaining invoices from the original order that the City pursues in this proceeding were for purposes other than those set out in s. 100.1(1). The Tribunal is cognizant of the fact that the City is no longer pursuing some of the costs set out in the original s. 100.1 Order, which may have included expenses that do not fit within s. 100.1(1). Generally speaking, for the invoices that remain at issue in this appeal, the evidence shows a pattern of a Golder invoice and a corresponding report to the MOECC indicating what Golder did during the relevant time period. These reports, which were required under s. 157.1(5), provide a paper trail of how the Golder work relates to s. 100.1(1) purposes. The Golder reports put into evidence begin on May 15, 2009 and end on October 22, 2010.

100To give an example, Golder’s invoice dated September 11, 2009 for $14,543.41 covers work completed between August 2 and 30, 2009, which is reflected in Golder’s reports dated August 28 and September 24, 2009. This work included two site visits by Golder’s staff, which included site inspection, observation and monitoring work and groundwater sampling and analysis. Another example is Golder’s invoice dated November 13, 2009 for $2,886.99 covering work completed between October 5 and November 1, 2009. That invoice was for two site visits as reflected in Golder’s reports dated October 30 and November 13, 2009, which included site inspection, observation and monitoring work.

101As noted above, in the evidence in this proceeding, the paper trail of Golder reports ends with the October 22, 2010 report to the MOECC. That period covers all of the Golder invoices from the original order. However, five of the ten new invoices that the City seeks to add under s. 100.1(14) are dated December 14, 2010, December 31, 2010, May 17, 2011, August 11, 2011, and November 28, 2011. Section 100.1(14) allows the municipality, on reasonable notice, to ask the Tribunal to amend the order to add new costs or expenses or to increase the amounts ordered.

102Section 100.1(14) does not specify which considerations the Tribunal should take into account in addressing a request by a municipality to add new costs or expenses. The Tribunal finds that, in exercising its discretion over a municipality’s request under s. 100.1(14), the s. 100.1(15)(b) considerations are appropriate to consider in these circumstances.

103The new invoices are similar to the others in evidence, in that they refer to the same project number, the same project description, staff positions (and the names of two individuals), hours, rates and disbursements. As discussed above in the context of s. 100.1(3), these new invoices, viewed on their own, do not contain an adequate description of the things that were done. For the Tribunal to accede to the City’s request to add new costs or expenses to the s. 100.1 Orders under s. 100.1(14), the Tribunal would need to receive evidence that the new costs relate to things for which the City incurred costs or expenses for a purpose set out in s. 100.1(1) and are reasonable. Without proper documentation to back up the very general comments by Mr. Kerr and Mr. McIelwain, the Tribunal is not satisfied that it should grant the City’s request in respect of the five new invoices for which there are no related Golder reports in the evidence. Accordingly, the Tribunal will only permit the City to pursue the first five (May 10, June 9, July 20, August 23, and September 7, 2010) of the 10 new invoices under s. 100.1(14), as there are Golder reports in the evidence that cover the relevant time period for those five invoices. The Tribunal is satisfied that those five invoices relate to work done for a purpose set out in s. 100.1(1) but, based on the evidence in this proceeding, is not satisfied that is the situation for the five newer ones starting December 14, 2010.

104Excluding the five invoices from December 14, 2010 onwards (or more accurately, refusing to permit those five to be added under s. 100.1(14)), this leaves 19 remaining invoices to consider (18 for Golder and one for GAIA). Based on the “paper trail” of Golder reports to the MOECC for all relevant time periods and the testimony of Mr. Kerr and Mr. McIelwain, the Tribunal finds that, for the 19 invoices that remain at issue, the costs did relate to work which had a purpose of preventing adverse effects. Accordingly, with regard to the 19 remaining invoices, the Tribunal finds that the Gendrons have failed to show that the costs in the s. 100.1 Order do not relate to costs incurred for a purpose set out in s. 100.1(1).

4. Whether any of the costs or expenses specified in the City’s s. 100.1 Orders are unreasonable having regard to what was done (s. 100.1(15)(b)(ii) of the EPA).

105Section 100.1(15)(b)(ii) states that the Tribunal shall consider whether any of the costs or expenses specified in the s. 100.1 Orders are unreasonable having regard to what was done. The Gendrons argue that s. 100.1(15) does not limit the Tribunal’s jurisdiction to only considering the reasonableness of the costs of what was done, but also allows it to consider whether the work itself was reasonable. The City disagrees. It submits that the Tribunal must only consider whether the costs and expenses were unreasonable.

106The Tribunal finds that the issue of the propriety of the work that was done is addressed under s. 100.1(15)(b)(i) where the Tribunal considers whether the costs and expenses specified in the order relate to things for which the municipality incurred costs or expenses for a purpose set out in s. 100.1(1). There, the Tribunal looks at the work itself. In contrast, the issue for the Tribunal to consider under s. 100.1(15)(b)(ii) is specifically whether the costs and expenses were unreasonable “having regard to what was done”. Under this section, for all those costs that the Tribunal found were related to a proper purpose under s. 100.1(15)(b)(i), the Tribunal examines the reasonableness of those costs. An expense that does not relate to a proper purpose would be excluded from recovery under the first step, while an expense that is unreasonably high even if it was incurred for a proper purpose would be caught by the second step. Put another way, if unreasonable work is undertaken, it would be excluded from recovery by s. 100.1(15)(b)(i) because such work would be found to be not sufficiently related to things done for the purposes set out in s. 100.1(1). Accordingly, to the extent that some of the Gendrons’ submissions on reasonableness are more relevant to s. 100.1(15(b)(i), they have been considered earlier in the Tribunal’s analysis. This section addresses only the reasonableness of the costs “having regard to what was done”.

107Both Mr. Kerr and Mr. McIelwain testified that they reviewed all the invoices and were satisfied that all of the work that was done by Golder was reasonable in light of what was required. The City submits that the Gendrons failed to prove that the costs and expenses are unreasonable or to provide expert evidence demonstrating this based on industry standards. The City argues that it is not the Tribunal’s role to assess whether a different consultant or contractor would have done things more cost-effectively or to review every invoice to see if it is reasonable.

108The Gendrons submit that there were no adverse effects, nor a risk of adverse effects, arising from the spill after July 2009, except with respect to contaminated soils under Hazel Street, which D.L. Services recommended be addressed by the City in June 2009, but was not excavated until January 2010. The Gendrons also argue that Golder’s fees for work after July 2009 were unreasonable as there was no need for ongoing attendances or monitoring when there was no risk of adverse effects. The essence of those arguments has been addressed under the first step above. To summarize, there was still some risk of adverse effects given the situation that arose from the spill and the nature of the local environment, and it was appropriate for work to be done by the City to prevent further adverse effects.

109The Gendrons also submit that the total costs of Golder’s services were double the amount that was originally estimated and that by allowing the account to reach such a level, the City acted unreasonably. They argue that the City’s decision not to allow D.L. Services to continue its remediation work and the City’s delay in remediating the contaminated soil under Hazel Street led to increased costs and expenses that are unreasonable.

110The Tribunal notes that concerns were raised by the MOECC and D.L. Services regarding the removal of contaminants under Hazel Street as early as June 2009, but that the contaminated soil was not excavated and removed by the City until January 2010. Although concerns were raised by the Gendrons that this delay prolonged Golder’s work at the site, they did not adduce expert geological, hydrogeological or surface water evidence on this point. The City did not provide expert evidence on this either. Throughout the period of time that Golder was doing its work, hydrogeological and surface water experts at the MOECC were consulted on progress and occasionally made recommendations. The City followed the directions provided by the MOECC. No technical concerns were raised by the MOECC that any of the work undertaken was unnecessary or unreasonable.

111The Tribunal notes that over time, the frequency of Golder’s monitoring, sampling and inspection work at the site was reduced and, although the Gendrons submitted that the invoices were double the original estimate, they did not produce any evidence from Mr. McClintock or others regarding the reasonableness of Golder’s individual or collective invoices.

112The Tribunal notes that, in hindsight, the clean-up and prevention work that was undertaken could likely have been done much more inexpensively. Indeed, it is often the case that prompt action right after a spill can save significant resources from being expended later on. However, in this case, the City was not part of the equation in the early post-spill stages. Once it was ordered to take action by the MOECC, there is no indication that the City tried to run up an unreasonable bill by doing unnecessary work or by paying out unreasonable amounts for such work. Indeed, it made significant efforts to try to minimize the work it had to do by, for example, seeking a review of the Provincial Officer’s Order, appealing and seeking a stay of the s. 157.1 Order and proposing more of a “watching brief” approach to complying with the Order. These attempts were all unsuccessful; appropriate work to protect the environment was required to be done and in fact done. For the purposes of this proceeding, this course of action helps confirm that the City was not attempting to do unnecessary work.

113It is true that the MOECC required, and the City had carried out, more monitoring and reporting than the Gendrons would have preferred and that the City may have incurred higher costs by retaining Golder instead of D.L. Services (though there were valid reasons for doing so, including the s. 157.1 Order’s requirement for a consultant and because conflicts could arise if the City retained D.L. Services, given the City’s position on how the insurance coverage funded clean-up was undertaken). It is also true that, by waiting a period of time to have the contaminants under the road bed removed, costs may have become higher accordingly.

114However, assessing reasonableness does not involve simply identifying the lowest cost path that could have been undertaken and concluding that all other paths are necessarily unreasonable. Rather, assessing reasonableness under s. 100.1(15)(b)(ii) looks at the work that was done and analyzing whether the level of expenses falls within the range of reasonable cost alternatives that were available to fully accomplish the purposes of the work being done, based on the information available at that time. As the appellant under s. 100.1(7), the onus is on the Gendrons to demonstrate unreasonableness under s. 100.1(15)(b)(ii). Assertions are not enough; evidence is needed. In this particular case involving complex facts and highly technical pollution prevention and clean-up work, expert evidence would have been required for the Gendrons’ assertions of unreasonableness to carry persuasive weight in regard to the Golder invoices remaining at issue. If the Gendrons were to succeed in demonstrating unreasonableness under s. 100.1(15)(b)(ii), they would have needed to bring evidence showing that the level of expenses incurred falls outside the reasonable range for such work given what was known at the time that the costs were incurred. Without that evidence, the Tribunal finds, on balance, that the Gendrons have not shown that the remaining Golder invoices at issue are unreasonable.

115With respect to the one remaining GAIA invoice, the Gendrons assert that some equipment ordered by GAIA was likely returned to the supplier and should not be recoverable if the City was not ultimately responsible for the costs of purchasing that equipment. The Tribunal agrees that it would not be reasonable to include in a s. 100.1 order costs for which the City was ultimately not responsible for paying. There was some reference in the evidence at the hearing to equipment not being needed but that a “restocking fee” may have been charged. The Tribunal also notes that the original s. 100.1 Orders contained two GAIA invoices whereas the City’s proposed amended order, which sets out the remaining invoices it seeks to recover, only contains one. The one remaining GAIA invoice for $19,865.50 included $19,200.00 for equipment and the testimony at the hearing did not include sufficient evidence to demonstrate that the City was not ultimately responsible for the costs for that one remaining invoice. On that basis, the Tribunal concludes that the costs associated with the GAIA equipment order were not shown to be unreasonable by the Gendrons on this basis or any other.

116Overall, with respect to the 19 remaining Golder and GAIA invoices as a whole, the Gendrons made several assertions that the costs were unreasonable but did not bring any convincing evidence to support those assertions. Accordingly, based on the evidence, the Tribunal finds that the Gendrons have failed to show that the remaining 19 invoices under consideration are unreasonable having regard to what was done.

Other Matters

117The parties made brief reference to a lien on the property and interest on the municipality’s costs. The Tribunal notes that it is not its role under the statute to address s. 153(2) of the EPA (which applies to municipal costs orders via s. 100.1(4)) or s. 100.1(5) of the EPA. Should those matters need to be addressed, they can be addressed in the proper forum, rather than the Tribunal.

DECISION

118The Tribunal allows Ms. Gendron’s appeal and directs the City to revoke the s. 100.1 Order directed to Ms. Gendron.

119With respect to the s. 100.1 Order directed to Mr. Gendron, under s. 100.1(14) the Tribunal permits the City to add new costs with respect to the following five Golder invoices:

May 10, 2010: $9,658.50

June 9, 2010: $22,642.37

July 20, 2010: $12,366.64

August 23, 2010: $3,327.73 (figure corrected from City’s proposed amended order)

September 7, 2010: $2,126.94.

120With respect to the s. 100.1 Order directed to Mr. Gendron, under s. 100.1(14) the Tribunal refuses to permit the City to add new costs with respect to the Golder invoices dated December 14, 2010, December 31, 2010, May 17, 2011, August 11, 2011 and November 28, 2011.

121With respect to the 14 remaining invoices from the original s. 100.1 Order, the Tribunal dismisses those aspects of Mr. Gendron’s appeal. Specifically, the City may include the following invoices, in addition to the five new invoices permitted above, in an amended order:

April 23, 2009: $20,730.94 (figure corrected from City’s proposed amended order)

May 20, 2009: $72,946.24

May 27, 2009: $19,865.50 (corrected)

June 11, 2009: $47,707.54 (corrected)

July 17, 2009: $19,696.43 (corrected)

August 14, 2009: $18,691.38

September 11, 2009: $14,543.41 (corrected)

October 30, 2009: $2,918.06

November 13, 2009: $2,886.99 (corrected)

December 11, 2009: $4,326.51

February 1, 2010: $8,562.19

February 19, 2010: $6,868.93

April 6, 2010: $9,976.05

April 16, 2010: $13,162.73

122With respect to the original s. 100.1 Order, the Tribunal allows Mr. Gendron’s appeal in part based on the City’s statement that it is no longer pursuing some aspects of the original s. 100.1 Order as against the Gendrons. The Tribunal directs the City to amend the s. 100.1 Order as against Mr. Gendron such that it does not exceed $313,005.08, which is the total of the 19 invoices set out above.

Appeal (File No. 10-060) Allowed

Appeal (File No. 10-059) Allowed in Part

City Directed to Revoke Order (File No. 10-060)

City Directed to Amend Order (File No. 10-059)

“Jerry V. DeMarco”

JERRY V. DEMARCO

ASSOCIATE CHAIR

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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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