Keswick Presbyterian Church v. Ontario (Environment and Climate Change), 2017 CanLII 3820

ISSUE DATE: January 20, 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

Appellants: 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: In writing

APPEARANCES:

Parties

Counsel

Regional Municipality of Peel

Marc McAree and Richard Butler

Director, Ministry of the Environment and Climate Change

Danielle Meuleman

ORDER DELIVERED BY HEATHER I. GIBBS AND BRUCE KRUSHELNICKI

REASONS

Background

1This order relates to an application by the Regional Municipality of Peel (“Peel” or “Region”) for costs as against the Director, Ministry of the Environment and Climate Change (“MOECC”) with respect to Peel’s successful motion to revoke Director’s Order No. 6411-9M2G78 (“2015 Director’s Order”) as against Peel, which the Environmental Review Tribunal (“Tribunal”) granted in its order dated September 13, 2016 (“Revocation Order”).

Background

2In March of 2009, the MOECC issued Certificate of Approval No. 6601-7P4J7C (“CofA”) to Greenpath Inc. for a waste disposal site located at 121 Watline Avenue, in Mississauga, Ontario (“Watline site”). Donald Constable and Mark Lawrence are, or were, directors or officers of Greenpath Inc. and Greenpath Eco Group Inc. (collectively, the “Greenpath parties”). The CofA authorized use of the Watline site for the processing of waste ash provided by Peel from its Algonquin Power Energy from Waste Facility.

3In 2009, the Keswick Presbyterian Church (“Church”) constructed a new building, driveway and parking lot on a property located at 23449 Woodbine Avenue, Town of Georgina in the Regional Municipality of York (“Church site”). The MOECC alleges that fill deposited on the Church site during construction was unprocessed waste ash from the Watline site.

4The Director issued the 2015 Director’s Order on November 9, 2015 to the Greenpath parties, Peel and the Church, requiring the removal of waste ash from the Church site. Peel, the Church and the Greenpath parties appealed the 2015 Director’s Order to the Tribunal.

5The 2015 Director’s Order replaced a Director’s order issued on August 13, 2013 (“2013 Director’s Order”). The 2015 Director’s Order requires essentially the same work to be done as the earlier order, but refers to additional sections of the Environmental Protection Act (“EPA”) (s. 18 and s. 43), and contains an additional allegation that the Region “had ownership and/or charge and control of the Waste Ash.” Peel had filed a motion to revoke the 2013 Director’s Order as it applied to Peel, but the motion was never heard. After the 2015 Director’s Order had been issued, and upon hearing submissions by the parties, the Tribunal revoked the 2013 Director’s Order and the appeals relating to it were dismissed (see the Tribunal’s decision dated January 5, 2016 in Case No. 13-110 (“Dismissal Decision”)).

6Peel then brought a motion for revocation of the 2015 Director’s Order as against it. The motion was heard orally on August 12, 2016. Participating in the motion were the Director and Peel, as well as the Ontario Waste Management Association and the City of Toronto, who together supported Peel’s position. The Tribunal issued the Revocation Order revoking the 2015 Director’s Order as it relates to Peel, on September 13, 2016.

7Following its successful motion, Peel applied for costs. Submissions were taken in writing. Only Peel and the Director participated in the costs application.

8For appeals such as this one under the EPA, costs may only be awarded by the Tribunal for “improper conduct” pursuant to s. 17.1 of the Statutory Powers Procedure Act (“SPPA”) and the Tribunal’s Rules of Practice (“Rules”) 217 and 218. Rule 217 tracks the wording of s. 17.1(2) of the SPPA and provides that, before costs may be awarded, the Tribunal must find that the “conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or… a Party has acted in bad faith.” Rule 212 explains the objectives of the costs rules, namely: to provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and to discourage unreasonable conduct.

9For reasons that follow, the Tribunal dismisses Peel’s application for costs.

Issue

10The issue is whether the Director should be ordered to pay costs to Peel in relation to its appeal of the 2015 Director’s Order and its successful revocation motion as granted in the Tribunal’s Revocation Order.

Relevant Legislation and Rules

11The following provisions of the SPPA and the Rules are relevant here:

SPPA

17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4).

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

Rules of Practice

A costs award refers to the reimbursement of reasonable and eligible expenditures incurred by a Party for participation in a proceeding before the Tribunal. The objectives of the Tribunal’s costs Rules are to: provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and to discourage unreasonable conduct.
The Party seeking a costs award bears the burden of proof and must demonstrate that any requested costs are:

(a) directly and necessarily incurred in relation to the proceeding before the Tribunal;

(b) reasonable in the circumstances;

(d) consistent with the principles and criteria outlined in these Rules.

When filing a costs application with the Tribunal, the Party seeking a costs award shall provide:

(a) an explanation of how the requirements in Rule 217 (a), (b) and (d) have been met;

(b) a summary statement of hours and fees for each lawyer and consultant, supported by time dockets, invoices and a detailed description of the activity; and

(c) a summary statement of disbursements for each lawyer or consultant supported by corresponding invoices or receipts. Where invoices or receipts are not obtainable for good reasons, the Tribunal may accept a written record of individual disbursements and associated dates.

Under section 17.1 of the Statutory Powers Procedure Act, the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.

This power applies to all proceedings before the Tribunal except proceedings under the Oak Ridges Moraine Conservation Act, 2001, proceedings under the Greenbelt Act, 2005 and Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act, unless the Niagara Escarpment Plan amendment proceeding is brought under the Consolidated Hearings Act.

It is expected that this power will only be used in the rare case where a Party’s conduct warrants such an award. In determining an award of costs under this Rule, the Tribunal may consider, among other things, the conduct of the requesting Party as well as whether the Party against whom a costs award is sought:

(a) failed to attend a Hearing or to send a representative when properly given notice, without contacting the Case Coordinator;

(b) failed to co-operate, changed a position without notice, or introduced an issue or evidence not previously mentioned;

(d) failed to comply with the Tribunal’s Rules or procedural orders;

(e) caused unnecessary adjournments or delays or failed to prepare adequately for Hearings;

(f) failed to present evidence, continued to deal with irrelevant issues, or asked questions or acted in a manner that the Tribunal determined to be improper;

(g) failed to make reasonable efforts to combine submissions with Parties of similar interest;

(h) acted disrespectfully or maligned the character of another Party; and,

(i) knowingly presented false or misleading evidence.

The Tribunal is not bound to order costs when any of the instances listed in Rule 225 occurs nor does the Tribunal have to find that one of the instances occurred in order to conclude that the conduct of a Party has been unreasonable, frivolous or vexatious or that a Party has acted in bad faith. The Tribunal will also consider whether the issues respecting the conduct of such a Party can be addressed by a denial or reduction of costs in its favour rather than a costs award against it.

Discussion

12Peel argues that the Director engaged in unreasonable conduct as described in s. 17.1(2) of the SPPA by failing to withdraw the 2015 Director’s Order against Peel, and then opposing the Region’s motion to revoke that order. Peel argues that, despite the Region having no role and no knowledge about an illegal deposit of waste ash at the Church site, and the Director being aware “at all times” of the identity of the parties responsible for the deposit of waste, the Director nonetheless tried to “download onto the Region financial responsibility for the removal of waste that was illegally deposited by others.” Peel argues that the Director is attempting to delegate responsibility as Ontario’s environmental regulator for waste onto the Region, and in so doing brought confusion and uncertainty to Ontario’s waste industry.

13Peel argues that the Director should not be permitted to amend an order that is before the Tribunal (i.e., the 2013 Director’s Order), for the sole purpose of improving the likelihood of the Director’s success in defending that order on a motion to revoke (i.e., by issuing the 2105 Director’s Order).

14Peel argues that the Director’s unreasonable conduct included: failing to act in a timely manner to order the responsible parties to remediate the Church site; changing her position (i.e., replacing the 2013 Director’s Order); and introducing an issue (i.e., delegation of the Director’s role as regulator onto the Region) not previously mentioned.

15Peel argues that its costs relating to the revocation motion are eligible as part of a “proceeding before the Tribunal”, under Rule 212, because “proceeding” is defined by the Rules to include a hearing and “refers to all matters before the Tribunal in respect of an appeal, application or referral.” Peel submits that the Director cannot use the MOECC counsel’s appropriate behaviour during the proceeding as a “shield”, since counsel’s actions were directed by the Director at all times.

16Peel argues that the Director forced the Region to spend substantial public funds defending its reputation publicly, and that it ought to be reimbursed for those expenses.

17The Director submits that all of the grounds raised by Peel relate to the Director’s decision to issue the 2015 Director’s Order, and not to the conduct of the Director in the course of the appeal, and on this basis they are outside the Tribunal’s jurisdiction. The Director submits that her conduct throughout this proceeding has at all times been as a reasonable party, fully engaged in the course of the appeal, and that she has sought to make decisions that promote fair, efficient and reasonable use of all parties’ resources throughout the proceedings.

18To the extent Peel argues that the Director’s actions in withdrawing the 2013 Director’s Order and issuing the 2015 Director’s Order delayed the Tribunal’s determination of the substantive issues on appeal, the Director submits that the issue has already been determined. The Tribunal denied a previous request for costs by Peel in the context of the 2013 Director’s Order. In so doing, the Tribunal found that such delay would not impede the Tribunal’s ability to make a just and cost-effective determination of the issues. (See Peel (Regional Municipality) v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 16 at para. 48 (“Prior Costs Order”)).

Analysis and Findings

19The test for awarding costs in a proceeding before the Tribunal involves a three-step analysis, as described in the case of Johnson v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 20 (“Johnson”) at paras. 22 to 24. First, the Tribunal determines the threshold issue of whether a party has engaged in unreasonable, frivolous or vexatious conduct or acted in bad faith. If there is such a finding, the second step is to consider whether it should award costs in the particular circumstances, since the Tribunal is not bound to order costs. The third step is determining the amount of costs and to whom they should be paid.

20Thus, the first step is to determine whether the Director has engaged in unreasonable, frivolous or vexatious conduct or acted in bad faith. In this case, Peel does not allege that the Director acted in bad faith, but only that her conduct was unreasonable.

21In Johnson, the Tribunal analyzed the types of conduct that are pre-requisites for a costs award. It determined that vexatious and bad faith conduct entail an element of improper motivation, while “unreasonable” casts the widest net (at para. 31). The Tribunal found that whether conduct was unreasonable should be considered in the context of the purpose of the EPA, and the impact on the other parties and on the Tribunal proceedings. In Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 55 (“Baker”), the Tribunal stated that an objective measure of what is “unreasonable” is “whether the conduct or course of conduct interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of the proceeding before it” (at para. 91).

22To the extent Peel argues in this costs application that the Director caused delay in determining the substance of the appeal by revoking the 2013 Director’s Order and issuing the 2015 Director’s Order, the Tribunal has already ruled on the argument. In the Prior Costs Order, the Tribunal stated at para. 48 (emphasis added):

The effect of the amount of time the Director took to reach a decision and issue a new order has been to delay the final resolution of the substantive issues in the appeals, that is, the determination of whether material should be removed from the Site and who should be responsible for doing so. This delay means that final resolution of the issues has not been particularly expeditious because of the Director’s action. Nevertheless, this delay does not mean that the Tribunal will be unable to achieve a just and cost-effective resolution of the issues, which will occur in the context of the appeals of the 2015 Director’s Order. As the Tribunal stated in its order dismissing this proceeding, dated January 5, 2016, at para. 26:

The public interest in environmental protection is unaffected by the revocation of one order and issuance of a new order on substantially the same terms. There is also a public interest in having issues resolved in a just, expeditious and cost-effective manner. There could be some delay in the resolution of the legal issues, and thus continued uncertainty for the waste industry as well as the parties, if this proceeding is dismissed and the new appeals are not heard in a timely way. However, delay could be minimized through procedural directions by the Tribunal in the proceeding regarding the 2015 Director’s Order. The hearing in that proceeding will be held in any event and holding only one hearing would reduce the potential for duplication of evidence between two hearings.

23There is no allegation that the new appeals, and in particular Peel’s motion to revoke the 2015 Director’s Order, have not been proceeding in a timely way. The Tribunal has therefore already determined that the Director’s decision to issue the 2015 Director’s Order was not unreasonable through causing delay.

24The Dismissal Decision of January 5, 2016, which related to the 2013 Director’s Order, is also cited in the passages above. In the Dismissal Decision, the Tribunal was required under Rule 202 to consider whether the proposed revocation was “consistent with the purpose and provisions” of the EPA, whether it was in the public interest, and to consider the interests of the other parties and participants (at para. 22). The Tribunal found at para. 26 of the Dismissal Decision that the public interest in environmental protection is unaffected by the revocation of one order and issuance of a new order.

25Peel also argues in this costs application that the Director was unreasonable in “changing her position” by issuing the 2015 Director’s Order on separate jurisdictional grounds and “removed unhelpful admissions”. As noted above, however, the Tribunal found in the Dismissal Decision that the Director’s decision to revoke the 2013 Director’s Order and issue the 2015 Director’s Order complied with the requirements of Rule 202. The Tribunal therefore finds in this proceeding that the Director’s actions cannot be considered unreasonable for purposes of a costs award.

26The question in this application for costs is whether Peel has established that the Director’s conduct has been unreasonable in the course of the appeal of the 2015 Director’s Order. In other words, has the Director’s conduct interfered with the Tribunal’s ability to achieve a just, expeditious and cost-effective resolution of the issues? The Tribunal finds that it has not.

27Peel appears to agree, at para. 5 of its reply submissions, that the “proceeding” for which costs are requested “began with the Region’s filing of a Notice of Appeal on December 1, 2015.” However, the conduct that Peel alleges to be unreasonable (i.e., “bolstering” the Director’s case, and failing to name Tony Cruz as an orderee) relates to the decision to issue the 2015 Director’s Order as drafted. The Tribunal does not agree that the Director’s failure to name Mr. Cruz as an orderee, after the Region filed a Notice of Allegation against him, constitutes unreasonable conduct. It merely indicates that the Director had a different position from the Region on the substantive matters in the appeal. Unlike court proceedings, where costs often “follow the cause”, costs before the Tribunal are not meant to address whether a party has won or taken the correct position, but rather whether a party’s course of conduct has been reasonable in taking a position.

28The Tribunal agrees with the submissions of the Director that there is no allegation that the Director delayed Peel’s ability to bring its preliminary motion, was uncooperative, or took a position in the course of the appeals that was at odds with the position as set out in the 2015 Director’s Order. In other words, there is no allegation that the Director’s conduct – other than advancing a position that Peel disagreed with – was improper or unreasonable.

29Peel also argues that the Region “ought to be reimbursed” for public funds that it was forced to spend defending its reputation. However, the Tribunal’s jurisdiction to issue costs awards in an appeal such as this one is limited under the SPPA to situations where the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith. There is no suggestion the Director’s conduct was frivolous, vexatious or in bad faith. The Tribunal finds the Director’s conduct in the course of this proceeding was not unreasonable. There are, therefore, no grounds on which to order reimbursement of Peel’s costs.

ORDER

30The Tribunal dismisses Peel’s application for costs.

Application for Costs Dismissed

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

“Bruce Krushelnicki”

BRUCE KRUSHELNICKI

EXECUTIVE 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)