Teichman v. Ontario (Environment and Climate Change), 2016 CanLII 42864

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

July 11, 2016

CASE NO.:

16-063

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended; and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant:

George Teichman

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Order to complete work with respect to a spill of a contaminant

Reference No.:

6876-A9WLJ3-1

Property Address/Description:

Grand River and banks thereof between Victoria Street North and King’s Highway No. 8

Municipality:

City of Kitchener and Township of Woolwich

Upper Tier:

Regional Municipality of Waterloo

ERT Case No.:

16-063

ERT Case Name:

Teichman v. Ontario (Environment and Climate Change)

Heard:

June 14, 2016 by telephone conference call

APPEARANCES:

Parties

Counsel

George Teichman

Rosalind Cooper

Director, Ministry of the Environment and Climate Change

Isabelle O’Connor

ORDER DELIVERED BY HEATHER GIBBS AND KAREN KRAFT SLOAN

REASONS

Background

1These are reasons of the Environmental Review Tribunal (the “Tribunal”) for granting a motion by George Teichman (the “Appellant”) for a stay of certain provisions or a director’s order pending resolution of an appeal.

2On May 19, 2016 the Director, Ministry of the Environment and Climate Change (the “MOECC”) issued Director’s Order No. 6876-A9WLJ3-1 (the “Director’s Order”) to P.V. Development Corp., Ronald Behrendt, Sherry Rose Behrendt and George Joseph Teichman. Only Mr. Teichman has appealed to the Tribunal.

3The Director’s Order provides that the named orderees complete work with respect to a spill of oil that was observed to be in a storm sewer outfall leading from Centennial Drive to the Grand River in Kitchener, Ontario. The Director’s Order defines the “Site” as the “Grand River and banks thereof between Victoria Street North and King's Highway No. 8 (also known as the Freeport Diversion) in the City of Kitchener and Township of Woolwich, Regional Municipality of Waterloo” (the “Site”).

4The Appellant requested a stay of the Director’s Order as it applies to him, until the appeal is disposed of. A telephone conference call (“TCC”) was scheduled for June 14, 2016 in this regard.

5During the June 14, 2016 TCC, the parties indicated that the requested stay is on consent. The Director is satisfied that sections 1-3 of the Director’s Order have been complied with, and therefore no stay is required of those sections. Sections 1-3 address containment of the spill in oily impacted areas. The Appellant’s request for a stay applies to sections 4-6 of the Director’s Order, which address protecting and restoring the natural environment within the Site.

6The Tribunal granted the consent stay as against Mr. Teichman as set out below.

Relevant Legislation

7Environmental Protection Act

Tribunal may grant stay

142(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,

(a) an order to monitor, record and report; or

(b) an order issued under section 168.8, 168.14 or 168.20.

When stay may not be granted

143(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,

(a) danger to the health or safety of any person;

(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or

(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.

Issue

8The issue is whether the Tribunal should grant a stay of sections 4-6 of the Director’s Order, as they apply to Mr. Teichman, pending the disposition of the appeal. The specific issues are whether s. 143(2) or (3) of the Environmental Protection Act (“EPA”) prevent the Tribunal from issuing a stay in this case.

Discussion, Analysis and Findings

9Section 143(2)(a) of the EPA provides that the Tribunal may not stay the operation of an order to monitor, record or report. The Director and the Appellant both agree that, in this case, s. 143(2)(a) does not apply because the provisions in question are not of their nature requirements to monitor, record or report.

10The Tribunal finds that s. 143(2)(a) of the EPA does not apply to this stay request. Section 4 of the Director’s Order requires the development of a remediation plan. Sections 5 and 6 require implementation of that plan. All parties agree, and the Tribunal finds, that the sections of the Director’s Order for which the stay is requested are not of their nature requirements to “monitor, record or report”.

11Section 143(3) of the EPA provides that the Tribunal may not issue a stay where doing so would result in danger to the health or safety of any person, impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it, or serious risk of injury or damage to any property or to any plant or animal life. The parties submit that there would be no such result from a stay in this case because other orderees who did not appeal are carrying out the required work. In particular, P.V. Development Corp and Mr. Behrendt are currently complying with the Director’s Order.

12The Director stated that the stay is on consent so long as the ordered work continues to be done by an orderee. The Director also confirmed that a stay of this Director’s Order does not relieve the Appellant from complying with any other applicable order, instrument, or municipal, provincial or federal law.

13Based on these submissions, the Tribunal finds that s. 143(3) of the EPA does not prevent the issuance of a stay as against the Appellant, in that the clean-up work ordered in the Director’s Order is continuing. The stay may be revoked if the provisions of the Director’s Order are no longer being complied with by other orderees, upon application to the Tribunal.

14Given that the stay is on consent of all parties, it is not necessary to analyze the elements listed in the Tribunal’s Rule 110 relating to evidence and submissions in support of a motion for a stay.

ORDER

15The Tribunal grants the request for a stay of sections 4, 5 and 6 of the Director’s Order as they apply to Mr. Teichman until the disposition of the appeal in this matter. The stay may be revoked by the Tribunal upon application of the Director if the other orderees no longer comply with the Director’s Order.

Request for Stay Granted

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

MEMBER

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248