Cox Farms Ltd. v. Ontario (Environment and Climate Change), 2017 CanLII 34399

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

May 29, 2017

CASE NO.:

16-105

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

Appellant:

Cox Farms Ltd.

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Order to ensure proper cover is established over fibreglass waste buried in a gravel pit

Reference No.:

6465-AC9QXS-1

Property Address/Description:

Lot 28, Concession 6

Municipality:

Township of Guelph/Eramosa

Upper Tier:

County of Wellington

ERT Case No.:

16-105

ERT Case Name:

Cox Farms Ltd. v. Ontario (Environment and Climate Change)

Heard:

February 9, 2017 in Rockwood, Ontario and April 18, 2017 and May 23, 2017 by telephone conference call

APPEARANCES:

Parties

Counsel

Cox Farms Ltd.

Kevin M. Thompson

Director, Ministry of the Environment and Climate Change

Sylvia Davis and Joslyn Currie (articling student)* (*February 9, 2017 only)

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN

REASONS

Background

1These are reasons of the Environmental Review Tribunal (“Tribunal”) for granting a request by Cox Farms Ltd. (“Appellant”) for a stay of a director’s order pending the resolution of an appeal.

2On October 31, 2016, Amy Shaw, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 6465-AC9QXS-1 (“Director’s Order”) to the Appellant. The Director’s Order applies to a site located at Lot 28, Concession 6 in the Township of Guelph/Eramosa, County of Wellington (“Site”). Under a related field order issued in 1995, above-ground fibreglass waste was removed from the Site in 1997; additional fibreglass waste remains buried on the Site.

3The Director’s Order requires that the Appellant, by May 31, 2017: ensure that proper cover is maintained over fibreglass waste buried in a gravel pit on the Site to limit the potential for future airborne releases of fibreglass; provide written notification to the MOECC that proper cover has been established over the waste; and submit a site plan to the MOECC that shows a delineated waste area determined by a qualified environmental consultant.

4The Appellant filed a notice of appeal of the Director’s Order on November 14, 2016.

5The Tribunal commenced a Pre-hearing Conference (“PHC”) in this matter on February 9, 2017 in Rockwood, Ontario. Several neighbours of the Site attended the PHC as observers but they did not request formal status in the appeal. At the PHC, the parties advised the Tribunal that it would be premature to set dates for the hearing. The Appellant had begun the process of complying with part of the Director’s Order, and the Director was satisfied with what the Appellant had done as of that date to move toward full compliance.

6At the request of the parties, the PHC was adjourned for two months to allow the Appellant further time to retain a qualified consultant to proceed with delineation of waste at the Site.

7The PHC was continued by telephone conference call (“TCC”) on April 18, 2017, at which time Kevin M. Thompson, counsel for the Appellant, provided an update on the status of the work being done to delineate the waste. The parties requested that the PHC be further adjourned to allow that work to continue. The PHC was scheduled to continue by TCC on May 23, 2017.

8During the May 23, 2017 TCC, the Appellant requested a stay of the Director’s Order in its entirety for a period of approximately two months, until the end of July 2017. Noting the compliance date of May 31, 2017 for the work items in the Director’s Order, Mr. Thompson advised that additional time would be required for further investigations and negotiations by the parties directed towards resolving the appeal.

9The parties indicated that the requested stay was on consent. Because the stay request was on consent, Mr. Thompson made the request during the TCC without bringing a formal motion for a stay.

10The Tribunal granted the consent stay, as set out below.

Issue

11The issue is whether the Tribunal should grant a stay of the Director’s Order, pending continuing negotiations by the parties to resolve 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.

Relevant Legislation

12Environmental 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.

Discussion, Analysis and Findings

13While the Tribunal has authority under s. 143(2) of the EPA to stay the operation of certain decisions and orders, s. 143(2)(a) provides that the Tribunal may not stay the operation of an order to monitor, record or report. Both the Director and the Appellant agree that s. 143(2)(a) does not apply to the Director’s Order in this matter because there is no requirement to monitor, record or report in the work ordered. The Director’s Order requires the Appellant to establish proper cover over waste, notify the MOECC that it has done so and submit to the MOECC a site plan delineating the waste. The Tribunal finds that none of the work ordered constitutes an order to monitor, record or report under s. 143(2)(a) of the EPA.

14Section 143(3) of the EPA prohibits the Tribunal from staying the operation of an order if 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 injury or damage or serious risk of injury or damage to any property or to any plant or animal life. The Director submits that a brief stay of two months will not result in any of the impacts outlined in s. 143(3). The Appellant agrees, noting that the current situation on the Site has existed over decades.

15Based on the submissions of the parties, the Tribunal finds that s. 143(3) of the EPA does not prevent it from issuing a stay in this case.

16Given that the stay is on consent of all parties, it is not necessary to analyze the elements listed in Rule 110 of the Tribunal’s Rules of Practice relating to evidence and submissions in support of a motion for a stay.

ORDER

17The Tribunal stays the operation of the Director’s Order until July 31, 2017, on consent of the parties.

18The PHC in this matter is adjourned and will reconvene by TCC on July 20, 2017 at 10 a.m.

Request for Stay Granted

Pre-hearing Conference Adjourned

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“Marlene Cashin”

MARLENE CASHIN

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