Mississauga (City) v. Ontario (Environment and Climate Change), 2017 CanLII 11501

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: February 28, 2017

CASE NO.: 16-109

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Corporation of the City of Mississauga

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to perform various work with respect to waste street sweepings

Reference No.: 3506-A8QGC3

Property Address/Description: Cayuga Site, Selkirk Site, and Other Sites

Municipality: Various municipalities

ERT Case No.: 16-109

ERT Case Name: Mississauga (City) v. Ontario (Environment and Climate Change)

Heard: January 23, 2017 in Toronto, Ontario

APPEARANCES:

Parties Corporation of the City of Mississauga

Counsel Harry Dahme and Julia Vizzaccaro

Parties Director, Ministry of the Environment and Climate Change

Counsel Sylvia Davis

ORDER DELIVERED BY LAURIE BRUCE, MAUREEN CARTER-WHITNEY AND KAREN KRAFT SLOAN

REASONS

Background

1On November 30, 2016, Tim Webb, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 3506-A8QGC3 (“Director’s Order”) to the Corporation of the City of Mississauga (“City”). The Director’s Order relates to street sweepings from the City that were delivered to various properties between 2004 and 2011, defined in the Director’s Order as the “Cayuga Site”, “Selkirk Site”, “Other Sites” and “Additional Sites”.

2The work ordered, and the associated completion dates are set out in Part 3 of the Director’s Order, which is included as Attachment 1 to this decision. In summary, the Director’s Order requires the City, by specified dates, to take all necessary steps to: share information in the City’s possession relating to the street sweepings (Part 3a, Items No. 1 to 5); retain one or more Qualified Persons to complete work with respect to street sweepings at the Cayuga Site (Part 3b, Items No. 6 to 9); retain one or more Qualified Persons to complete work with respect to street sweepings at the Selkirk Site (Part 3c, Items No. 10 to 12); retain one or more Qualified Consultants to conduct a forensic audit regarding the Other Sites and Additional Sites, prepare a report and submit it to the Director and Public Health Officials (Part 3d, Items No. 13 to 16); and retain one or more Qualified Persons to complete work with respect to street sweepings at the Other Sites, and the Additional Sites where a specific property address is known (Part 3d, Items No. 17 to 20).

3On December 6, 2016, the City filed a Notice of Appeal of the Director’s Order with the Environmental Review Tribunal (“Tribunal”). The City appealed the Director’s Order in its entirety, including the work ordered pursuant to each Work Item set out in Part 3. The grounds of the City’s appeal are that: the street sweepings are not “waste” within the meaning of the Environmental Protection Act (“EPA”) and applicable regulations, and the Director has no jurisdiction to issue the Director’s Order; the Director has not established that there are potential adverse effects associated with the street sweepings or, in the alternative, that there are not sufficient potential adverse effects associated with the street sweepings to justify the work ordered; and, in the event that the Tribunal finds that the street sweepings are a “waste” or that there are sufficient potential adverse effects associated with the street sweepings to justify the Director’s Order, the work ordered is excessive, unnecessary, unreasonable and not advisable having regard to all of the circumstances relating to the delivery of street sweepings to the properties referred to in the Director’s Order.

4The City seeks a stay of all the Work Items in the Director’s Order pending the disposition of this appeal. In an Order issued December 13, 2016, the Tribunal granted the City’s request for an interim stay, and scheduled the stay motion that is the subject of this Order for January 23, 2017. The Director requested that the Tribunal issue its disposition of the stay motion by the end of February 2017.

5The Director now agrees to a stay of Parts 3b and 3c of the Director’s Order, and to a stay of Items No. 17 to 20 of Part 3d. Regarding these Work Items, which relate to the investigations into street sweepings at various sites, it is the Director’s position that the MOECC has taken appropriate mitigation measures to protect the health of property owners while investigations are being carried out. He states that these measures include sending letters to property owners including the information described above, as well as fact sheets from the local public health units serving the respective jurisdictions in which the properties are located. The Director notes that further orders may be issued as necessary, as further information is received from the investigations and through the hearing process. On this basis, the Director is satisfied that it is acceptable to stay these Work Items.

6The Director does not consent to a stay of the remaining Work Items in the Director’s Order, specifically: Part 3a and Items No. 13 to 16 of Part 3d. The City continues to seek a stay of these Work Items.

7As set out in the City’s reply submissions, dated January 20, 2017, it is now the City’s position that, should the Tribunal grant a stay of Part 3a and Items No. 13 to 16 of Part 3d, it is prepared to take certain steps so that owners of properties that received street sweepings are given notice of this appeal and an opportunity to participate. The City proposes to hire an independent Qualified Consultant to review the City’s records and interview City staff and external companies or contractors to identify the addresses and owners of those properties without municipal addresses listed in the Site Summary Table appended to the Director’s Order, and identify any other properties and owners of those properties that may have received street sweepings but were not identified in the Site Summary Table appended to the Director’s Order. The City states that this work would be conducted so that, to the extent reasonably possible, owners of those properties that received street sweepings from the City are given notice of the appeal and the opportunity to participate. The City is prepared to have a Qualified Consultant do the work necessary to identify the property owners, but objects to producing all the information required in Part 3a of the Director’s Order.

Issue

8The issue is whether the Tribunal should grant a stay of the Work Items in the Director’s Order until the disposition of the City’s appeal of the Director’s Order. The specific sub-issues are whether s. 143(2) or 143(3) of the EPA prevent the Tribunal from issuing a stay and whether a stay should be granted under the three-fold test for granting a stay found in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald”), and incorporated in Rule 110 of the Tribunal’s Rules of Practice (“Tribunal Rules”).

Relevant Legislation and Rule

9The relevant provisions of the EPA and Tribunal Rules are as follows:

Environmental Protection Act

143(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.

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.

Tribunal Rule

110. The Party shall provide evidence and submissions in support of its motion respecting:

(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;

(b) whether there is a serious issue to be decided by the Tribunal;

(c) whether irreparable harm will ensue if the relief is not granted; and

(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

Discussion

Evidence on the Motion

11The evidence on the motion consisted of affidavits from three witnesses on behalf of the City and five witnesses on behalf of the Director. There were no cross-examinations on the affidavits. However, the parties are not in agreement on all of the background facts presented in their respective motion materials. The background information set out in these reasons is subject to findings of fact that will be made on the evidence at the main hearing on the merits of the appeal.

12The City’s motion materials state that the City conducts street cleaning each year to collect materials that have accumulated on streets over the winter due to routine winter road maintenance practices. The City’s motion materials maintain that, between 2004 and 2011, the street sweepings were: accumulated at the City’s Mavis Road Works Yard (“Mavis Yard”); screened to remove debris such as litter; sampled by an external consultant who provided the results of the chemical testing to the City; and delivered to the owners of various properties, who were informed of the origin of the street sweepings and provided with the chemical testing results.

13The Director agrees with the fact that the City provided street sweepings to property owners from 2004 through 2011, but his motion materials state that there is insufficient evidence to conclude with certainty that the street sweepings were properly screened to remove debris, that the sweepings were properly screened or sampled to ensure they did not contain contaminants in unsafe amounts, or that the property owners were properly notified of the origin and contents of the materials provided. His motion materials further state that the Director has evidence of at least one complaint by a property owner regarding the contents of the street sweepings. The Director takes the position that street sweepings are waste, subject to the requirements of the EPA and Regulation 347, as they commonly include litter, glass, metal, plastic and grass, and may also contain a range of pollutants.

14The Director’s motion materials state that the City initially told the MOECC that 10 properties had received street sweepings but this number has risen to approximately 46 locations, of which a specific address is known for only 28 of these properties. His motion materials further state that the City has been unable to provide complete records about the amount of street sweepings sent to each property and the information provided to the property owners who received them. The Tribunal notes that there are 47 locations listed in the Site Summary Table appended to the Director’s Order.

15The City’s motion materials state that the City discontinued delivery of street sweepings to private properties in 2012, following discussions with the MOECC. The City’s materials describe its efforts since 2012 to assess whether there was an unacceptable risk to human health or the environment due to the potential presence of street sweepings on the affected properties. Specifically, the City’s materials state that it: retained Terrapex Environmental Ltd. (“Terrapex”) in 2013 to carry out a site sensitivity analysis of the properties identified at that time as having received street sweepings; and authorized Terrapex, in 2014, to conduct intrusive site investigations on the Cayuga Site and the Selkirk Site. The City’s materials further state that, in 2015, it retained Thomas Franz, who is designated as a “Qualified Person for Risk Assessment” under O. Reg. 153/04, to: review available information and provide opinions regarding potential human health and environmental impacts at the Cayuga Site and the Selkirk Site; evaluate potential risks associated with street sweepings at the Other Sites; and analyze available chemical data on the street sweepings that were at the Mavis Yard between 2004 and 2011.

16The City’s motion materials provide a summary of Mr. Franz’s conclusions, which include the following: the material at the Cayuga Site may not be street sweepings; if, however, street sweepings were delivered to the Cayuga Site, there are no human health or ecological risks related to street sweepings at the Cayuga Site; there are no human health or ecological risks related to street sweepings at the Selkirk Site; and the risk to human health and environment at the Other Sites is unlikely.

17The Director’s motion materials dispute the conclusions reached by Mr. Franz. The Director provides the affidavit evidence of Tim Edwards, a District Engineer with the MOECC, setting out his opinions that: there is not enough information available to conclude that the material at the Cayuga Site is not street sweepings; Mr. Franz’s conclusion that there are no human health and ecological risks related to street sweepings at the Cayuga Site is based on an unsupported conclusion that street sweepings were not deposited there; there is not enough information to support the conclusion that there are no human health or ecological risks related to street sweepings at the Selkirk Site, and further investigation of unaccounted for street sweepings at the Selkirk Site is required; and there is not sufficient information available to make the conclusion that the risk to human health and environment at the Other Sites is unlikely.

18The Director’s motion materials further state that the MOECC sent letters to the property owners for whom it has contact information alerting them that: the street sweepings provided to them may contain debris and contaminants; the MOECC would test private well water for contaminants if the property owners wish; and the MOECC was proposing to issue an order to require the City to provide information to the property owners regarding the street sweepings placed on their properties. According to the Director’s motion materials, these letters included a fact sheet from the local public health units that outlined cautions regarding adverse health effects and methods for minimizing exposure to the street sweepings.

Analysis and Findings

19Rule 110 refers to the relevant statutory tests in 110(a), which in this case are set out in s. 143(2) and 143(3) of the EPA, and incorporates, in 110(b) to (d), the three-pronged common law test for a stay set out in RJR-MacDonald. This three-pronged test considers: whether there is a serious issue to be decided; whether irreparable harm will ensue if the relief is not granted; and whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

20As noted above, the Director consents to a stay of Part 3b, Part 3c and Items 17 to 20 of Part 3d of the Director’s Order. While the conclusions of the Tribunal below address all the Work Items in the Director’s Order, the focus of the analysis is on the requested stay of the Work Items that remain in dispute, and which the parties addressed in their arguments: Part 3a and Items No. 13 to 16 of Part 3d.

Sections 143(2) and 143(3) of the EPA

21The Director and the City agree that there is no statutory bar to the Tribunal granting a stay, as neither s. 143(2) nor 143(3) of the EPA applies in this instance. Having reviewed all the Work Items in the Director’s Order and having heard submissions from both parties, the Tribunal is satisfied that it is not an order to monitor, record and report under s. 143(2)(a) and it was not issued under any of the sections listed in s. 143(2)(b). Likewise, the Tribunal is satisfied that staying the operation of the Director’s Order would not 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 injury or damage or serious risk of injury or damage to any property or to any plant or animal life. Therefore, the Tribunal finds that there is no statutory bar to granting a stay under s. 143(2) or 143(3) of the EPA. The Tribunal now turns to its consideration of the submissions and evidence from each party with respect to the test for a stay in RJR-MacDonald.

Serious Issue

22As stated in Limoges v. Ontario (Ministry of the Environment), [2007] O.E.R.T.D. No. 14 (“Limoges”), at para. 56, the question of whether there is a serious issue to be decided by the Tribunal “has a very low threshold, intended only to rule out frivolous or vexatious claims.” The City submits that there are serious issues to be tried with respect to: whether the street sweepings are “waste” under the EPA; whether there are potential adverse effects associated with the street sweepings; and whether the work ordered is excessive and unnecessary. The Director concedes for the purpose of this motion that this appeal raises a serious issue to be decided by the Tribunal. The Director states, for the record, his position that the street sweepings fall under the definition of “waste” under the EPA and that the opinion of Mr. Franz is fatally flawed.

Findings on Serious Issue

23Based on these submissions by the parties, the Tribunal is satisfied that there is a serious issue to be decided by the Tribunal and so this prong of the test is met.

Irreparable Harm

24It is the City’s position that it will suffer irreparable harm if it is required to carry out the work associated with Part 3a, Items No. 1 to 5, and Part 3d, Items No. 13 to 16, and then the Director’s Order is not ultimately upheld.

25The City states that it will suffer irreparable harm if it incurs costs to undertake these Work Items, and the Tribunal later concludes that the street sweepings do not constitute “waste” under the EPA and that the MOECC had no jurisdiction to issue the Director’s Order, or concludes that the materials at issue are indistinguishable from other fill materials or street sweepings deposited by other municipalities. The City submits that, in such a scenario, it will not be able to sue the provincial government to recover its costs. Given that the Director consents to a stay of Part 3b, 3c and Items 17 and 20 of Part 3d, the City acknowledges that the costs of complying with the remaining Work Items in Part 3a and Part 3d, Items No. 13 to 16 would not constitute a material harm to the City on its face. The City submits, however, that the irreparable harm it would suffer arises from the inability to recover the costs of the litigation that may be threatened or commenced against the City by others as a result of providing the information specified in Part 3a, as further discussed below.

26The Director notes that the costs estimate provided in the affidavit of Mr. Franz pertains to Item No. 19 of the Director’s Order and does not address the costs of providing documents to the Director and various property owners under Part 3a, or of the forensic audit under Part 3d, Items No. 13 to 16. The Director submits that the City has not provided any evidence as to whether the expenditure of such money in the interim would constitute material harm and further submits that, without such evidence, it is impossible for the Tribunal to conclude that harm in the form of economic hardship would occur.

27The City further submits that, if a stay is not granted, it will suffer irreparable harm to the reputation it has earned for environmental excellence through a number of environmental initiatives, noting that it has been recognized with awards for its leadership in environmental excellence. The City asserts that the Supreme Court of Canada in RJR-MacDonald, at para. 64, recognized irrevocable damage to a party’s reputation as an example of irreparable harm. The City also provides prior decisions in which the Tribunal considered whether a party will suffer irreparable harm to its reputation if it complies with an order under appeal.

28The City goes on to cite the propositions in Canpages Inc. v. Quebecor Media Inc., [2008] O.J. No. 2169 (Ont. Sup. Ct.), at para. 14, that the loss of goodwill is something that damages cannot reverse and that it is difficult if not impossible to establish the impact of a loss of reputation. Citing Matrix Photocatalytic Inc. v. Purifics Environmental Technologies Inc., [1994] O.J. No. 2253 (Ont. Ct. J. (Gen. Div.)) (“Matrix”), at para. 77, the City states that a party does not have to demonstrate irreparable loss beyond doubt or on a balance of probabilities, but need only show a real risk of disastrous consequences for which damages will be of little or no comfort. The City submits that it is not required to prove actual loss of reputation, and that there is plausible evidence that there is a real risk that the City would suffer irreparable harm to its reputation for environmental excellence if the Work Items in dispute are not stayed. The City asserts that the loss of reputation by a municipality will affect public trust in the municipality and it is difficult, if not impossible, to provide evidence establishing the extent of the harm that will be suffered.

29The Director submits that in prior decisions, such as Tembec Industries Inc. v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 33 (“Tembec”), at para. 57, the Tribunal has found that complying with an order while denying responsibility does not constitute irreparable harm. The Director further submits that the one instance in which the Tribunal found that there could be a loss of reputation if an order was not stayed was in Braun v. Ontario (Ministry of the Environment), [2008] O.E.R.T.D. No. 47 (“Braun”), at para. 31, where the orderee would have been required to hire a competitor to comply with an order. The Director notes that these were different circumstances than the case in this matter.

30Finally, with respect to irreparable harm, the City submits that it is reasonable to anticipate that litigation will be threatened or commenced by the owners of the Other Sites against the City in connection with the delivery of the street sweepings. It is the City’s position that this could result in the costs of defending such litigation, as well as a further loss of reputation for the City. The City states that the Director’s evidence supports this, noting the Witness Statement of Larry Skorupski, which states that he would like to have his property brought back to its pre-existing condition before street sweepings were deposited. The City says it is reasonable to infer that the City will be exposed to litigation if Mr. Skorupski’s property is not restored.

31The City asserts that the Work Items in Part 3a of the Director’s Order require the City to provide to the persons listed all information generated under the requirements of the Director’s Order, even before those persons have sought and obtained Party status for the hearing, contrary to Rule 166 of the Tribunal Rules. The City further asserts that the requirement to provide “all information” is extremely broad and does not require that the information is relevant to the issues to be decided in the appeal, which would normally be determined following the identification of a preliminary list of issues. The City submits that the production of information beyond what is relevant to the issues on appeal may be prejudicial in any civil proceeding commenced by those persons named in Part 3a, Item No. 5.

32In the Director’s view, it is not clear why the City believes a stay will prevent litigation, noting that individual property owners and the general public have been notified of the street sweepings issue, the investigation by the MOECC, the issuance of the Director’s Order and the City’s appeal. The Director states that this notification has occurred through: visits to identified properties by MOECC officials; letters provided to property owners regarding the investigation and potential health hazards of the street sweepings; the provision of a copy of the Director’s Order to all property owners when it was issued; and an article in a local newspaper reporting on the MOECC findings leading to the Director’s Order and the City’s appeal of the Director’s Order. The Director asserts that the existence of the Director’s Order is already sufficient to potentially prompt someone to sue the City, and that this will be the case whether or not the Director’s Order is stayed. The Director further states that, regardless of whether a stay is ordered, the owners of all sites that might be affected by the Director’s Order are entitled to notice of the appeal and pre-hearing conference, and of their right to participate.

33It is the Director’s submission that the City has not put forward evidence, but has merely speculated, that litigation might occur, which does not meet the test set out in Hart v. Ontario (Ministry of the Environment), [2013] O.E.R.T.D. No. 48 (“Hart”), at para. 22, that speculation about the harm that might be suffered is not sufficient to prove irreparable harm. Citing Mad Term II Inc. v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 52 (“Mad Term”), at para. 28, the Director asserts that, even in a situation where parties are actively threatening civil litigation, the Tribunal found that the appellant had not demonstrated that it would suffer irreparable harm if a stay was not granted, because there was no evidence to suggest that complying with the order in that matter while continuing to deny legal responsibility for the contamination would affect the appellant’s legal position in any such litigation or subject the appellant to greater exposure for damages.

Findings on Irreparable Harm

34The Tribunal held in Rocha v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 51, at para. 73, that the issue at this prong of the test is whether harm to the appellant’s interests, through refusing the stay, could not be remedied if there is a different result on the merits at the conclusion of the main hearing.

35In RJR-MacDonald, at para. 59, the Supreme Court of Canada held that “irreparable” refers to the nature of the harm suffered rather than its magnitude, stating that it is harm, which either cannot be quantified in monetary terms or cannot be cured, usually because one party cannot collect damages from the other. In Limoges, at para. 60, the Tribunal reviewed case law analyzing irreparable harm, including this statement in RJR-MacDonald, and concluded that the case law “makes it clear that the litigant arguing irreparable harm must demonstrate that such harm would occur” (emphasis in the original). The Tribunal, in Limoges, went on to find that it would need some specific evidence to assess that there is irreparable harm in order for it to grant a stay and, in that case, determined that it had not been provided with a basis to assess whether there would be irreparable harm.

36The City states that the Matrix decision addressed the standard of proof that must be met to demonstrate irreparable harm. The Matrix decision dealt with a motion for an interlocutory injunction against the defendants in that matter to restrain them from conducting a purifying business in competition with the plaintiff. Noting that the test for the granting of an interlocutory judgment is the same as the three-pronged test for a stay in RJR-MacDonald, the City referred the Tribunal to para. 77, where the Court states as follows:

A party in the position of Matrix does not have to demonstrate irreparable loss beyond doubt or even, at this stage, on a balance of probabilities. All that must be done, as it seems to me, is to show a real risk of disastrous consequences for which damages will be of little or no comfort.

37In oral submissions, the Director agreed that the standard of proof of a real risk of disastrous consequences applies here instead of the higher standard of proof, on a balance of probabilities. Therefore, both parties accepted that the standard of proof that the City must meet is whether there is a real risk of disastrous consequences for which damages will be of little or no comfort. The Tribunal utilizes that standard here but notes that the same result would have been reached under a balance of probabilities standard in the circumstances of this case.

38With respect to the claim that it will suffer irreparable harm due to financial costs, the City has not provided any evidence concerning the estimated financial costs of providing data and reports regarding the street sweepings, or of conducting a forensic audit. Rather, the City acknowledges that it will not cost a great deal of money to fulfill the requirements of these Work Items. The Tribunal finds that the City has not demonstrated that there is a real risk of disastrous consequences for which damages will be of little or no comfort due to the cost of performing the Work Items in Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order.

39A greater concern for the City appears to be the potential for a loss of reputation and the threat of litigation with respect to the street sweepings. The Tribunal accepts that irrevocable damage to a party’s reputation may constitute irreparable harm. The City has certainly demonstrated that it has earned a reputation for environmental excellence that has been widely recognized and has indicated that it has concerns about the potential impact of the Director’s Order on this reputation. However, for the reasons that follow, the Tribunal finds that the City has not shown that the actions required to fulfil the Work Item requirements in Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order will result in a loss of the City’s reputation, and therefore has not demonstrated that there is a real risk of disastrous consequences for which damages will be of little or no comfort in respect of its reputation.

40The Tribunal, in the Tembec case at para. 57, did “not agree that complying with an order while denying responsibility constitutes irreparable harm.” The Tribunal in Tembec went on in para. 57 to refer to a discussion, at para. 42 of the Braun decision, that a stay decision does not speak to the issue of whether a party should ultimately be considered responsible. The Tribunal adopts the reasoning in Tembec, and observes that it is open to the City to comply with the Work Items in Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order while, at the same time, publicly putting forth its position that it is not responsible.

41Regardless of whether all the requirements of the Director’s Order are stayed, the existence of this order is already publicly known, as the Director notes. A risk of harm to the City’s reputation for environmental excellence may already exist by virtue of the fact that the Director’s Order has already been issued and made public. Performance of the disputed Work Items is intended to result in additional property owners being identified and advised of the Director’s Order, therefore publicizing the Order more broadly, in order to ensure that all those affected are made aware of the potential contamination (as is further discussed in below in the analysis of the “balance of convenience” prong of the test). However, this is not a case, as in Braun, where the real risk of a loss of reputation arose because the appellant would have been forced to hire a competing business in order to comply with the requirements of an order. The situation in the case before the Tribunal is different from Braun in that the City has not suggested that it is in a competitive relationship with other municipalities or that it would have to retain such a competitor to comply with the Director’s Order.

42The Tribunal also finds that the City has not demonstrated that there is a real risk of disastrous consequences for which damages will be of little or no comfort insofar as it has not shown a real risk of a threat of litigation arising from a decision not to stay the Work Item requirements in Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order. The City has not provided evidence of any intent on the part of any property owners to pursue litigation. The Tribunal views Mr. Skorupski’s witness statement as an indication that he seeks to have his property returned to its pre-existing condition, but sees no implicit or explicit threat of litigation. As the Director noted, the Tribunal in Mad Term did not find that there was irreparable harm from a threat of litigation where a neighbour had written to the appellants to say that it “may” seek to recover costs by way of a civil action for damages. As in the Mad Term case, the City has not provided evidence to suggest that complying with the Director's Order, while continuing to deny legal responsibility for the alleged contamination would affect the City’s legal position in any potential litigation or subject it to greater exposure for damages. Furthermore, as with the City’s concern about loss of reputation, the potential for litigation already exists because it is publicly known that the Director’s Order has been issued.

43The Tribunal finds that the City has not demonstrated a real risk that irreparable harm would ensue if the stay is not granted and, therefore, the City has not met the irreparable harm prong of the test for a stay. However, the Tribunal will go on to consider the final prong of the test for a stay, the balance of convenience, as well.

Balance of Convenience and Public Interest Considerations

44The Tribunal’s decision in Pitt v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 21, at para. 54, states that this prong of the stay test has been described as a determination of which of the two parties will suffer the greater harm from the granting or refusal of a stay pending a decision on the merits. As set out in Limoges, at para. 65, regardless of whether the public interest is a dominant or overriding consideration in assessing the balance of convenience, it is a significant and imperative factor that must be taken into consideration.

45The City submits that the balance of convenience favours the granting of a stay of Part 3a and Part 3d, Items No. 13 to 16 of the Director’s Order. The City asserts that there is no evidence at this time to suggest any human health or ecological risks relating to the street sweepings, pending the hearing of the appeal. The City notes Mr. Franz’s conclusions that there is no risk to human health and the environment from street sweepings, or that such risk is unlikely. Further, the City submits that the lack of immediate action by the MOECC in 2012, when they first became aware of the street sweepings, suggests that there is not a strong public interest in requiring the work under the Order to be completed prior to the Tribunal’s decision in the appeal.

46The City submits that, in agreeing to stay those parts of the Director’s Order that relate to the performance of investigations and remedial work by the City pending the disposition of this appeal, the Director has agreed that the public interest does not require that remedial work take place prior to the completion of the hearing. The City submits, therefore, that the question of whether the public interest requires remedial action to be taken prior the hearing is irrelevant in this motion, and should not tip the balance of convenience in favour of denying the stay of Part 3a and Part 3d, Items 13 to 16.

47The City notes that there is currently no remedial work required under the Director’s Order because the Director is consenting to a stay of Part 3b, Part 3c and Items 17 to 20 of Part 3d, and submits that the Director has not provided any evidence of human or ecological risks in the event that a stay is granted of Part 3a and Part 3d, Items 13 to 16. The City cites the Tribunal’s decision in Keswick Presbyterian Church v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 41 (“Keswick”) to grant a stay of an order where there is no evidence of the potential for adverse impacts from the material at issue remaining in place, and submits that a similar approach should be adopted here.

48The City asserts that the Director has not alleged or provided evidence of the persistent lack of timely compliance by the City with MOECC requirements. The City states that it has provided information about the street sweepings to the MOECC upon request, notwithstanding that the parties may have a dispute regarding the completeness of that information. The City further asserts that, if there has been a delay, it has been on the part of the MOECC and not the City, and it should not tilt the balance of convenience in favour of denying the stay.

49It is the City’s position that its proposal to hire a Qualified Consultant to undertake the work required to identify property owners and the addresses of those who may have received street sweepings will ensure that the public interest is satisfied, by ensuring that all those who may have an interest in the hearing are provided with notice. The City submits that, in the absence of a stay, the Director’s Order would compel it to produce documentation that may be prejudicial to the City in advance of any obligation to do so in the hearing process. The City states that, given this concession, the balance of convenience is in favour of granting the stay of the remaining items in the Director’s Order.

50The Director submits that the balance of convenience favours not granting a stay because the strong public interest in the completion of the Work Items in Part 3a and Part 3d, Items 13 to 16 of the Director’s Order outweighs the City’s interest in a stay. It is the Director’s submission that it is in the public interest to ensure that all those who may have an interest in the hearing are provided with proper notice and that there is full disclosure by the City to the Director of all relevant documents.

51The Director asserts that the essence of procedural fairness is the ability to participate in a hearing and that proper notice is the essential first step in that process. The Director notes that the Tribunal Rules will require the City to provide the Tribunal with a certified list of names and addresses of all owners of property within 120 metres of the boundary of the properties that are the subject of the Director’s Order, as well as the names and addresses of any other persons who should be notified of the proceeding due to an interest in the outcome. Noting that the properties that are the subject of the Director’s Order include the Additional Sites for which the City has not provided addresses or owner contact information, the Director submits that the owners of these sites have an interest in the outcome of the hearing and should be provided with personal notice in accordance with Rule 126. The Director further submits that the forensic audit of the City’s records, required in Part 3d, Items 13 to 16 of the Director’s Order, would address the problem of the missing addresses and contact information.

52With respect to disclosure, it is the Director’s submission that full disclosure of all relevant documents is an essential aspect of the adjudicative process, and all the documents that Part 3a, Item 1 of the Director’s Order requires the City to provide are relevant to the hearing and must be disclosed. The Director states that, if any of the owners or public health officials listed in Part 3a, Items 2 to 5 of the Director’s Order obtain party or participant status, they would be entitled, as part of legitimate disclosure, to all documents listed in Part 3a, Item 1. The Director asserts that the forensic audit required under Part 3d, Items 13 to 16 of the Director’s Order may also disclose records that should be disclosed to the Director, local public health officials and property owners as part of the hearing process.

53Although the Director is satisfied that appropriate mitigation measures have been taken to protect the health of property owners while investigations are being conducted, he remains concerned that there is potential contamination from the street sweepings. Regarding the Tribunal’s granting of a stay in Keswick, cited by the City on the basis that there was no evidence of potential adverse impacts from material remaining in place, the Director notes that because both parties consented to a stay of the order in that matter, the Tribunal did not hear argument from the parties on the balance of convenience and the public interest.

Findings on Balance of Convenience and Public Interest Considerations

54Based on the evidence and submissions provided by the parties, the Tribunal finds that the balance of convenience and public interest considerations favour denying a stay of Part 3a and Part 3d, Items No. 13 to 16 of the Director’s Order.

55While it is the City’s position that there is no evidence to suggest any human health or ecological risks relating to the street sweepings, the Director presented detailed evidence in support of his ongoing concerns about the street sweepings, including the affidavit evidence of Mr. Edwards. Mr. Edwards addressed each of Mr. Franz’s conclusions and provided his opinion that those conclusions are based on inadequate information, as set out above in paragraph 17. Mr. Edwards stated that his opinion of the City’s position is supported by correspondence from Terrapex, which provided the opinion of its Qualified Person that the information provided by the City was not adequate.

56Mr. Edwards further stated that: the City had not provided the types of records required to confirm that an appropriate sampling and testing program had been carried out at the Mavis Yard and he was therefore unable to determine whether the results of sampling can be considered representative of the street sweepings deposited at each of the sites; MOECC Provincial Officers had observed street sweepings at some of the locations where they were deposited and had identified significant amounts of debris indicating that the street sweepings may not have been appropriately screened prior to leaving the Mavis Yard; he is of the opinion that, if the street sweepings were not adequately processed to remove debris prior to being disposed of, the material is classified as waste regardless of the presence or absence of any chemical contamination; and the presence of debris within the street sweepings observed at some of the Other Sites presents a potential for adverse effects. The Tribunal finds that the evidence of Mr. Edwards supports the Director’s position that additional investigations are required, notwithstanding the evidence of Mr. Franz.

57While the MOECC’s investigations prior to issuing the Director’s Order took place over a number of years, the Director has now made a determination that the order is necessary in order to address the potential for contamination. As noted above, the Director is satisfied that appropriate mitigation measures have been taken to protect the health of property owners while investigations are being carried out and therefore has consented to staying Part 3b, Part 3c and Items No. 17 to 20 of Part 3d of the Director’s Order. However, the Director requires additional information in order to determine whether the potential for and extent of human health or ecological risks arising from the street sweepings.

58The Work Items for which the Director does not consent to a stay are intended to ensure: that property owners receive important information pertaining to their sites that may assist them in deciding whether to participate in this hearing; that local public health officials are aware of what is present on those sites and can make informed decisions about potential risks to health; and that a consultant who, in the Director’s opinion, has the experience and qualifications to carry out the forensic audit work to address the lack of property owner addresses and contact information for certain sites and determine the complete list of properties that may have received the street sweepings. The Tribunal finds that the public interest in identifying and directly notifying, to the extent possible, persons directly affected by this appeal outweighs the City’s concerns about those Work Items in Part 3a and Part 3d, Items No. 13 to 16, of the Director’s Order. The owners of all sites that might be affected by the Director’s Order are entitled to notice of the appeal and preliminary hearing, and notice of their right to participate in the hearing process.

59While proposing to take alternative steps in order to provide notice to property owners, the City maintains that the Director’s Order would require it to produce potentially prejudicial documentation in advance of any obligation to do so in the hearing process. The Tribunal finds, however, completion of the Work Items in Part 3a and Part 3d, Items No. 13 to 16 is required to provide property owners of Other Sites and Additional Sites with enough information to ensure procedural fairness to the owners of all sites by providing proper notice and the ability to participate in the proceeding. The Tribunal sees no prejudice to the City in providing to the owners the information pertinent to their properties, under the Work Items in Part 3a of the Director’s Order, prior to the commencement of the Pre-hearing process in this appeal. The Tribunal notes that the information in the forensic audit report ordered under Part 3d, Items No. 13 to 16, is to be submitted only to the Director and the relevant local public health officials, and not to all property owners of sites that received street sweepings, prior to the Pre-hearing process.

Conclusions

60In conclusion, the Tribunal is satisfied that there is no statutory bar to granting a stay of Part 3b, Part 3c and Items No. 17 to 20 of Part 3d of the Director’s Order under s. 143(2) or s. 143(3) of the EPA. The Tribunal finds it appropriate to grant a stay of these Work Items on consent, based on the submissions and evidence of the parties.

61Regarding Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order, the Tribunal finds that the City has not provided adequate evidence and submissions to demonstrate that irreparable harm will ensue if the stay is not granted or that the balance of convenience, including effects on the public interest, favours granting the stay.

ORDER

62The Tribunal orders that:

1. Part 3b, Part 3c and Items No. 17 to 20 of Part 3d of Director’s Order No. 3506-A8QGC3 are stayed until the final resolution of the appeal. The Tribunal dismisses the request for a stay of Part 3a and Items No. 13 to 16 of Part 3d of that order.

2. The Case Coordinator will contact the parties to schedule a date for a status update telephone conference call with the Tribunal to determine the appropriate dates for completion of the Work Items in Part 3a and Items No. 13 to 16 of Part 3d of Director’s Order No. 3506-A8QGC3.

Stay Granted in Part

Procedural Directions Ordered

“Laurie Bruce”

LAURIE BRUCE

MEMBER

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

MEMBER

Attachment 1 – Director’s Order No. 3506-A8QGC3

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