Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: January 13, 2017

CASE NO.: 15-169

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

Appellant: See Appendix 1 - Appellant List

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order for removal of waste ash from site

Reference No.: 6411-9M2G78

Property Address/Description: 23449 Woodbine Avenue

Municipality: Town of Georgina

Upper Tier: Regional Municipality of York

ERT Case No.: 15-169

ERT Case Name: Keswick Presbyterian Church v. Ontario (Environment and Climate Change)

Heard: December 21, 2016 via telephone conference call

APPEARANCES:

Parties	Counsel
Donald Constable and Mark Lawrence	Jurgen Hebel
Director, Ministry of the Environment and Climate Change	Danielle Meuleman and Joslyn Currie (articling student)
Keswick Presbyterian Church	Patrick Welsh

ORDER DELIVERED BY HEATHER I. GIBBS

REASONS

Background

1This Order provides written confirmation of the disposition of the Environmental Review Tribunal (“Tribunal”) given orally on December 21, 2016, to a request by Donald Constable and Mark Lawrence (“Moving Parties”) to bring a motion prior to the hearing in this appeal.

2The full background to this appeal was described in a previous order of the Tribunal dated September 13, 2016 (“Tribunal’s September Order”). The parties are the Director, Ministry of the Environment and Climate Change (“MOECC”) and the appellants Mr. Constable, Mr. Lawrence, Greenpath Eco Group Inc., Greenpath Inc., and Keswick Presbyterian Church (“Church”). An appeal by the Regional Municipality of Peel (Tribunal File No. 15-174) was disposed of in the Tribunal’s September Order.

3The instrument under appeal is Director’s Order No. 6411-9M2G78 relating to the alleged deposit in 2009 of unprocessed waste ash at the Church’s property located at 23449 Woodbine Avenue, Georgina, Regional Municipality of York (“Site”).

4A telephone conference call (“TCC”) took place on December 8, 2016 to address a request by the Moving Parties, represented for this limited purpose only by Jurgen Hebel, to schedule a motion to revoke the Director’s Order as it applies to them prior to the hearing. At that time, the Tribunal directed that Mr. Hebel file a Notice of Motion detailing the relief requested by December 20, 2016 and that a further TCC would take place the next day to discuss the next steps.

5A Notice of Motion was filed by the Moving Parties on December 20, 2016 requesting the following relief:

1. An order revoking the Director’s Order as against the Moving Parties;
2. An order that Vincent Ursini, Antonio Cruz and Pastor Kirk MacLeod be named parties to the proceedings;
3. An order that the Director disclose all notes and records of interviews, meetings and telephone discussions with Antonio Cruz and Vincent Ursini; and
4. An order that the Director disclose the total costs of the proceedings to date.

6The Notice of Motion indicates that affidavits by Mr. Constable and Mr. Lawrence would be relied upon at the hearing of the motion, to be filed in future.

Issue

7The issue is whether the Tribunal should schedule a motion to hear the requests for relief raised by the Moving Parties prior to the hearing in this appeal.

Relevant Legislation and Rules

8The relevant provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and the Rules of Practice of the Environmental Review Tribunal (“Tribunal Rule(s)”) are:

Statutory Powers Procedure Act

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

Tribunal Rules

7. During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.

8. The following persons are Parties for the purpose of the Rules:

(a) persons specified as Parties by or under the statute under which the proceeding arises;

(b) persons otherwise entitled by law to be Parties to the proceeding; and

(c) persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person's interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

84. A Party who requests that the Tribunal vary, revoke or provide other relief from the decision under appeal because of the alleged acts or omissions of a person who is not a Party to the appeal shall, if the acts or omissions of that person are known to the Party at the commencement of the proceeding, prepare a notice of allegation. A notice of allegation shall specify how the relief sought is related to the alleged acts or omissions of that person and shall not rely on different grounds or seek different relief than set out in the notice of appeal. The notice of allegation shall include the facts that the Party relies on in support of the allegation, how the allegations relate to the grounds and relief requested in the notice of appeal and the address, telephone number and fax number of the person against whom the allegation is made. The notice of allegation shall be served on that person and the Parties and shall be filed with the Tribunal together with proof of service with the first document the Party files with the Tribunal.

85. A Party who, during the course of a proceeding, requests that the Tribunal vary, revoke or provide other relief from the decision under appeal because of the alleged acts or omissions of a person who is not a Party to the appeal shall, within 5 days of learning of the person’s acts or omissions, serve that person and the Parties with a notice of allegation and file the notice with the Tribunal together with proof of service. A notice of allegation shall specify how the relief sought is related to the alleged acts or omissions of that person and shall not rely on different grounds or seek different relief than set out in the notice of appeal. The notice of allegation shall include the facts that the Party relies on in support of the allegation, how the allegations relate to the grounds and relief requested in the notice of appeal, and the address, telephone number and fax number of the person against whom the allegation is made.

86. If a motion is made before the Hearing commences, and the motion will be heard by way of an oral Hearing, a Hearing date shall be obtained from the assigned Case Coordinator or, if there is no assigned Case Coordinator, from the Tribunal Secretary, before the Notice of Motion is served.

87. The Tribunal may hear a motion made at the Hearing in accordance with any procedural orders of the Tribunal.

88. The Tribunal may determine when a motion will be heard.

Discussion, Analysis and Findings

9During the TCC on December 21, 2016, both the Director and the Church opposed the Moving Parties’ request to schedule a motion prior to the hearing. Greenpath Eco Group Inc. and Greenpath Inc. took no position on the motion. The Director submitted that: item 1 is not appropriate for a preliminary motion because the test on a motion to revoke is whether there is an issue that requires hearing, and much of the evidence relied upon by the Moving Parties requires determination by the Tribunal, which will happen at the hearing itself; items 2 and 4 are outside the jurisdiction of the Tribunal; and item 3 is unnecessary because the Director has already disclosed all notes and records relevant to this appeal. Ms. Meuleman submitted that Mr. Ursini will be called as a witness at the hearing, at which time the appellants would be free to cross-examine him on his evidence.

10The Church agreed with the Director’s submissions, and added that it appears the Moving Parties wish to argue the substance of the appeal in a motion.

11Mr. Hebel submitted on behalf of the Moving Parties that they have reason to believe there are documents relating to meetings and conversations between the Director, Mr. Cruz and Mr. Ursini that have not been disclosed. The Moving Parties believe that such meetings are relevant to the Director’s decision to remove Mr. Cruz from the Director’s Order. Mr. Hebel submitted that the Moving Parties have done their “due diligence” with respect to waste, and are highly prejudiced by the Director’s decision not to name Mr. Ursini, Mr. Cruz and Mr. MacLeod in the Director’s Order. He further submitted that the Moving Parties have reports on the substances at the Site, which show they could not have come from the Greenpath Facility, and stated that the Director’s Order does not take into consideration possible contamination from a neighbouring smelter.

12The Tribunal considered the submissions made by the parties and issued an oral disposition that no motion would be scheduled. Oral reasons were given, which are confirmed below.

Disclosure by the Director

13The Moving Parties have previously raised the concern throughout the lengthy preliminary stages of this appeal, that there are documents relating to meetings and conversations with Mr. Cruz and Mr. Ursini that were not disclosed. The Director has consistently stated that all relevant documents have been disclosed. On the TCC, Ms. Meuleman drew the Moving Parties’ attention to at least eight disclosed documents that respond to this concern. The Tribunal found that the Moving Parties provided no evidentiary support for their suspicion that there is something more to disclose and, therefore, nothing would be gained by spending time at a preliminary motion on this point. The Tribunal confirmed the general rule that documents that are not disclosed by a party prior to the hearing are generally not permitted into evidence at the instance of that party.

Disclosure of Director’s Costs of Proceedings to Date

14Mr. Hebel submitted that the Moving Parties would like to have the information referenced above for use outside these proceedings, and argued that Ontario taxpayers should generally be entitled to know the amount spent by the Director in litigation. Ms. Meuleman submitted that this request is outside the jurisdiction of the Tribunal because it is wholly irrelevant to the issues for determination in the appeal.

15The Tribunal Rules provide that all documents relevant to the issues in the appeal are to be disclosed to the other parties prior to the hearing. The Moving Parties did not provide any evidence or submissions that tied the requested information in any way to the appeal, and the Tribunal finds that it is not relevant. Given the irrelevance of the information, the requested relief would therefore not be the subject of a Tribunal order, and thus is not an appropriate subject of a motion.

Request to Name Additional Parties

16Tribunal Rule 62 provides that parties to an appeal are persons specified as parties under the relevant statute, persons otherwise entitled by law to be parties, and persons who request and are granted party status under Tribunal Rule 63. Tribunal Rules 84 and 85 provide that parties who make allegations against a non-party must notify those persons so they can decide whether or not to become involved in the appeal in some manner.

17In this case, the Moving Parties have made allegations against Mr. Cruz, Mr. Ursini and Mr. MacLeod, none of whom is named in the Director’s Order. None of the three has requested status in this appeal. Notices of Allegation were not sent to all of them prior to the TCC, although Mr. Hebel confirmed that they will be sent shortly.

18The Tribunal found that the appropriate procedure is for the Moving Parties to provide Mr. Cruz, Mr. Ursini and Mr. MacLeod with Notices of Allegation, at which time they can determine how to respond.

19Insofar as the Moving Parties are seeking to have the Tribunal find that Mr. Cruz, Mr. Ursini or Mr. MacLeod are responsible for the environmental clean-up of the Site, either in addition to or instead of the Moving Parties, the Tribunal found that this is the remedy the Moving Parties are seeking from a hearing. As noted below, any issue which would require hearing and determining contested facts and issues is not properly the subject of a preliminary motion.

Revocation of the Director’s Order as it Applies to the Moving Parties

20The legal test relating to a preliminary request to revoke a Director’s order, prior to hearing the appeal, was fully discussed in the Tribunal’s September Order. Paragraph 22 of that order concludes:

[A]s stated in Ultramar Ltd., revocation at an early stage will only take place in the clearest of cases. The test to be met by the moving party in a motion to revoke the Director’s Order is whether there is no serious issue requiring a hearing.

21The materials filed by the Moving Parties in support of the revocation motion demonstrate that the Tribunal would not be able to decide the motion without deciding issues that require a hearing. Many paragraphs in the Notice of Motion discuss the underlying facts relating to the Director’s Order, as they are understood by Mr. Lawrence and Mr. Constable. Those facts are contested by the Director. The Moving Parties state, for example, that based on testing they had performed on the Site they believe the ash-fill on the Site did not emanate from Greenpath Inc. or its related companies. Whether or not the material deposited on the Site emanated from Greenpath Inc. or its related companies is a question that requires a hearing. Similarly, whether or not Mr. Constable or Mr. Lawrence had direct involvement with, or responsibility for, the transfer of ash-fill to the Site, as disputed between the Parties, requires that factual findings be made by the Tribunal following a hearing.

22The Tribunal found that the issues raised by the Moving Parties are not appropriate for a summary motion to revoke; rather, the most effective and efficient way to resolve this dispute is to proceed to the scheduled hearing.

ORDER

23The request to schedule the motion is dismissed.

24Any remaining Notices of Allegation must be served and filed by February 24, 2017.

25A further TCC is scheduled for March 22, 2017, at 12:30 p.m.

Request to Schedule Motion Dismissed

Procedural Directions Ordered

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

Appendix 1 – Appellant List

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Appellant List

Appellant Name	File No.
Keswick Presbyterian Church	15-169
Donald Constable	15-170
Mark Lawrence	15-171
Greenpath Inc.	15-172
Greenpath Eco Group Inc.	15-173
The Regional Municipality of Peel	15-174 (Appeal allowed)