Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: November 30, 2016

CASE NO.: 16-063

(revisions of December 09, 2016 have been incorporated herein)

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: November 7, 2016 by telephone conference call

APPEARANCES:

Parties

Counsel

George Teichman

Rosalind Cooper

Director, Ministry of the Environment and Climate Change

Sarah Kromkamp

DECISION DELIVERED BY KAREN KRAFT SLOAN

REASONS

Background

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

2The 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 of the spilled oil 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”.

3Mr. Teichman requested a stay of the Director’s Order, as it applies to him, until the appeal is disposed of and the parties agreed to the request on consent. A telephone conference call (“TCC”) was scheduled for June 14, 2016 in this regard and the panel received written submissions and heard oral submissions. The Tribunal granted the stay of the Director’s Order as against Mr. Teichman and reasons were provided in Tribunal Order issued July 11, 2016.

4A pre-hearing conference (“PHC”) was held in Kitchener, Ontario on August 26, 2016 during which the parties informed the Tribunal that while the work, as set out in the Director’s Order, was close to completion, weather conditions had delayed plantings. Counsel for the Director told the Tribunal that once weather conditions were amenable, the outstanding planting would be undertaken. The parties, on consent, requested that the PHC be adjourned until October 12, 2016 and held via TCC. The Tribunal agreed to the adjournment. During the October TCC, counsel for the Director informed the Tribunal that the work under the Director’s Order had been completed to the Director’s satisfaction and stated that the Director intended to revoke the Director’s Order. In a November 4, 2016 letter, the Director provided reasons for the revocation of the Director’s Order and in a letter dated November 4, 2016, Mr. Teichman outlined his response to the Director’s proposed revocation.

5A TCC was scheduled on November 7, 2016 to hear submissions.

Relevant Legislation

6The Tribunal’s Rule 202 states:

202. Where a Director, Risk Management Inspector or Official, Authority or a municipality proposes to revoke a decision that is the subject of an appeal, the Tribunal shall consider whether the proposed revocation is consistent with the purpose and provisions of the relevant legislation and whether the proposed revocation is in the public interest. The Tribunal shall also consider the interests of Parties, Participants and Presenters. After the consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

Issue

7The issue is whether the Tribunal should accept the proposed revocation of the Director’s Order and dismiss the proceeding.

Discussion, Analysis and Findings

8Both parties submitted that the revocation of the Director’s Order against all of the orderees and the subsequent withdrawal of the appeal by Mr. Teichman, is without prejudice to the parties’ positions in this appeal. Counsel for the Director submitted that the Director reserves the right to issue an order in the future on this matter. Counsel for Mr. Teichman submitted that he maintains his position that as an owner of the property and not an operator with control of the substance, he should not have been part of the Director’s Order. Counsel for Mr. Teichman submitted that her client agrees to withdraw his appeal on the basis that the Director’s Order has been fully complied with and that it would not be a prudent use of resources to proceed to a hearing of the appeal. Counsel for Mr. Teichman submitted that by agreeing to the revocation of the Director’s Order and to the withdrawal of his appeal, the withdrawal would be without prejudice to his position in the appeal.

9This matter is straightforward, as the work required under the Director’s Order has been completed and the Director’s Order is intended to be revoked as against the other orderees. The revocation as against Mr. Teichman is consistent with the purpose and the provisions of the Environmental Protection Act and the Ontario Water Resources Act and is in the public interest. As well there are no other parties, participants or presenters.

DECISION

10Director’s Order No. 6876-A9WLJ3-1 is revoked as against Mr. Teichman and Mr. Teichman will withdraw his appeal.

11Mr. Teichman’s appeal is dismissed.

Order Revoked

Appeal Dismissed

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

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