Gold v. Ontario (Environment and Climate Change), 2017 CanLII 45977

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

July 13, 2017

CASE NO.:

17-035

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:

Kenneth L. Gold (File No. 17-035)

Appellant:

Fenix Parts Canada, Inc. (File No. 17-036)

Appellant:

Goldy Metals Incorporated (File No. 17-037)

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Order to cease all receiving and processing of end-of-life vehicles until a plan to recommence such operations in an environmentally safe manner is accepted by the Director

Reference No.:

5634-ALBP9R-1

Property Address/Description:

1216 Sewells Road

Municipality:

City of Toronto

ERT Case No.:

17-035

ERT Case Name:

Gold v. Ontario (Environment and Climate Change)

Heard:

June 29, 2017 by telephone conference call

APPEARANCES:

Parties

Counsel

Fenix Parts Canada, Inc.

F.F. (Rick) Coburn

Goldy Metals Incorporated

Harry Poch

Kenneth L. Gold

Harry Poch

Director, Ministry of the Environment and Climate Change

Jon Bradbury, Mitchel Boughs and Catherine Bulman (law student)

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY

REASONS

Background

1On April 27, 2017, Kevin Webster, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 5634-ALBP9R-1 (“Director’s Order”) to Fenix Parts Canada, Inc. (“Fenix”), and to Goldy Metals Incorporated and Kenneth L. Gold (“Goldy Parties”). The Director’s Order relates to a site at 1216 Sewells Road in the City of Toronto (“Site”). The Site is also the subject of a separate Order issued to Goldy Metals Incorporated by the Director in 2013, which is also under appeal (Case No. 13-068) to the Environmental Review Tribunal (“Tribunal”).

2The Director’s Order requires that the orderees cease all receiving and processing of end-of-life vehicles at the Site, effective April 13, 2017, until the Director has accepted a plan to recommence such operations in an environmentally safe manner. The Director’s Order confirms the compliance date and amends and clarifies the actions required by a Provincial Officer’s Order issued April 13, 2017 in response to a fire at the Site on April 6, 2017.

3On May 11, 2017, Fenix and the Goldy Parties (together, “the Appellants”) appealed the Director’s Order to the Tribunal, and gave notice that they would be seeking a stay of the Director’s Order pending the Tribunal’s disposition of their appeals.

4The Tribunal has not yet conducted a Pre-hearing Conference (“PHC”) in this matter under Rules 126 to 137 of the Tribunal’s Rules of Practice (“Tribunal Rules”).

5At the request of the Appellants, the Tribunal scheduled a hearing of the stay motion to take place on July 7, 2017. The Tribunal also directed, on consent of the parties, a schedule for the filing of materials and cross-examinations prior to the stay motion hearing date.

6On June 27, 2017, Rick Coburn, counsel for Fenix, wrote to the Tribunal by email, on behalf of the parties, to request that the Tribunal schedule a conference call to hear joint submissions from the parties requesting an order adjourning the stay motion hearing scheduled for July 7, 2017, as well as related procedural requirements, and establishing a date after July 10, 2017 for Tribunal-assisted mediation.

7The Tribunal convened a telephone conference call (“TCC”) on June 29, 2017. The following parties participated in the call: Mr. Coburn, on behalf of Fenix; Harry Poch, counsel for the Goldy Parties; Jon Bradbury and Mitchel Boughs, co-counsel for the Director, as well as Catherine Bulman, a law student; and Jacquelyn Stevens, counsel for the Toronto and Region Conservation Authority (“TRCA”) as an observer. The TRCA is a participant in the related appeal (Case No. 13-068).

8After hearing the submissions of the parties during the TCC, the Tribunal provided an oral disposition with reasons to follow, which are set out below. The Tribunal granted the request, on consent of the parties, to adjourn the stay motion hearing scheduled for July 7, 2017, without prejudice to the moving parties’ ability to revive the stay motion at a later date. The Tribunal refused the parties’ request to provide Tribunal-assisted mediation services prior to conducting the PHC in this matter. The Tribunal noted, however, that this did not preclude the parties from continuing their negotiations nor from engaging a private mediator prior to the PHC.

Issues

9The issues are:

1. whether the Tribunal should adjourn the stay motion scheduled for July 7, 2017; and

2. whether the Tribunal should grant the joint request by the parties to provide Tribunal-assisted mediation prior to the PHC.

Relevant Legislation and Rules

10The relevant provisions of the Tribunal Rules are as follows:

Tribunal Rules

Purposes of the Rules

1. The purposes of these Rules are: to provide a fair, open, accessible and understandable process for Parties and other interested persons; to facilitate and enhance access and public participation; to encourage co-operation among Parties; to assure the efficiency and timeliness of proceedings; and to assist the Tribunal in fulfilling its statutory mandate.

Interpretation

4. These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

5. If it considers it appropriate in the particular circumstances, the Tribunal may depart from these Rules or may waive any provision of these Rules other than a provision which is also found in a statute or regulation.

CONDUCT OF PRE-HEARING CONFERENCES (RULES 132-137)

132. A Pre-hearing Conference may be held to deal with issues such as the following:

(a) identifying Parties, Participants and Presenters, and the scope of their participation in the Hearing;

(b) determining the length, schedule and location of the Hearing;

(c) determining whether the Hearing will be conducted orally, electronically or in writing;

(d) hearing preliminary motions;

(e) identifying, defining or narrowing issues;

(f) establishing dates for the exchange among Parties of all documents relevant to the proceeding and in the possession, control or power of a Party, except for those documents that are privileged;

(g) establishing dates for the exchange among Parties and filing with the Tribunal of all documents, witness lists, witness statements and resumes of any expert witnesses that the Party intends to rely on at the main Hearing;

(h) where applicable, establishing dates for the exchange among all Parties and filing with the Tribunal of a common document book;

(i) establishing facts or evidence that may be agreed on;

(j) the settlement or withdrawal of any or all of the issues;

(k) scheduling Tribunal-assisted mediation;

(l) determining the order of presentation of evidence and submissions; and

(m) any other matters that may assist in the just and expeditious disposition of the proceeding.

MEDIATION (RULES 156-161)

General

156. Mediation, as further detailed in the Tribunal’s Practice Direction for Tribunal Appointed Mediators, may be held for the purpose of attempting to reach a settlement or simplification of the issues. The Tribunal will offer to provide mediation services after the Pre-hearing Conference. A member of the Tribunal who conducts the mediation shall not preside at the Hearing unless all Parties consent.

TERMINATION OF PROCEEDINGS (RULES 198-206)

201. Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

202. Where a Director, Risk Management Inspector or Official, Authority or 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.

Discussion, Analysis and Findings

Issue No. 1: Whether the Tribunal should adjourn the stay motion scheduled for July 7, 2017

11Mr. Coburn provided joint submissions on behalf of the parties, noting that there is only one operative provision in the Director’s Order, which states:

Effective April 13, 2017, cease all receiving and processing of end-of-life vehicles at the Site, until the undersigned Director has accepted a plan to recommence such operations in an environmentally safe manner.

12Mr. Coburn gave the following overview of the discussions between Fenix and the Director concerning an Operation Plan (“Plan”):

• Fenix submitted a draft Plan to the Director on May 4, 2017;

• The Director provided Fenix with comments on the Plan on June 9, 2017;

• On June 21, 2017, the Director filed an affidavit on the stay motion stating that he had provided comments back to Fenix and “should they provide a more robust and detailed plan indicating that they have appropriate and sufficient environmental controls in place,” he would approve temporary operations commencing as set out in the Director’s Order; and

• Dan Gmitro, on behalf of Fenix, filed a reply affidavit on June 27, 2017 containing an updated Plan in response to the Director’s comments.

Mr. Coburn noted that the other parties acknowledge that the Director will require time to review the updated Plan, potentially seeking additional information from the Appellants, and to consider whether to approve the Plan, which would make hearing the scheduled stay motion unnecessary.

13The other parties confirmed their agreement with Mr. Coburn’s submissions on this issue, requesting that the Tribunal adjourn the stay motion, without prejudice to the ability of the moving parties to revive the stay request in the future.

Findings on Issue No. 1

14The parties make this adjournment request on consent and they have made progress towards a negotiated agreement about the contents of the Plan. The Tribunal finds that it is appropriate to adjourn the stay motion hearing scheduled for July 7, 2017, without prejudice to the moving parties reviving the stay motion at a later date.

Issue No. 2: Whether the Tribunal should grant the joint request by the parties to provide Tribunal-assisted mediation prior to the PHC

15Mr. Coburn said the parties agree that the process of reaching agreement on the Plan would best be pursued through formal mediation, and, therefore, they seek Tribunal-assisted mediation. He submitted that Rule 156 of the Tribunal Rules does not prohibit Tribunal-assisted mediation in advance of the PHC. Mr. Coburn noted that the parties are, on their own initiative, asking the Tribunal to provide assistance through mediation, and distinguished their request from a situation in which the Tribunal offers mediation after the PHC under Rule 156.

16Mr. Coburn further submitted that the Tribunal’s assistance with mediation prior to the PHC would not prejudice members of the public because mediation is confidential and only involves the parties to a matter. He noted that there would be a continued public process through the PHC, unless the parties reached a resolution resulting in the Director revoking the order and bringing the matter to an end. Mr. Coburn asserted that providing Tribunal-assisted mediation prior to the PHC would not be contrary to Rule 156, and would be in keeping with the spirit and intent of providing an expeditious process.

17Mr. Poch agreed that it would be useful for the parties to enter into Tribunal-assisted mediation at an early stage because they would have the benefit of a mediator with knowledge and experience in the subject matter. He noted that any added parties could be brought into the process at the PHC. It was Mr. Poch’s submission that the Tribunal should take a liberal approach in interpreting the Tribunal Rules in this instance.

18Mr. Bradbury submitted that, given the Tribunal’s discretion to control its own process, it could provide Tribunal-assisted mediation before the PHC, notwithstanding Rule 156. He acknowledged that another option would be to schedule the PHC without prejudice to the moving parties bringing back their stay motion if the Tribunal is not prepared to deviate from Rule 156.

Findings on Issue No. 2

19Rule 156 of the Tribunal Rules states that the Tribunal will offer to provide mediation services after the PHC, which is typically held following at least 30 days’ notice given in accordance with the Tribunal Rules. The list of issues that may be dealt with at a PHC are set out in Rule 132 and include: (a) identifying parties, participants and presenters, and the scope of their participation in the Hearing; and (k) scheduling Tribunal-assisted mediation. Conducting the PHC prior to offering Tribunal-assisted mediation ensures that all persons potentially affected by a proceeding are given an opportunity to seek status in the matter. Regarding Mr. Coburn’s submission that mediation involves only the parties to a matter, the Tribunal notes that some parties may not be identified until the PHC. Furthermore, the Tribunal Rules do allow participants and presenters to participate in a mediation, where permitted to do so by the Tribunal.

20The parties request early mediation assistance to promote an expeditious process. One of the purposes listed in Rule 1 of the Tribunal Rules is to assure the efficiency and timeliness of proceedings. Other listed purposes include: to provide a fair, open, accessible and understandable process for parties and other interested persons; and to facilitate and enhance access and public participation. The Tribunal has a broad responsibility to take into account the public interest. Providing an open and accessible process, and facilitating and enhancing access and public participation are fundamental to fulfilling this responsibility. Rule 4 requires that the Tribunal Rules be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. The Tribunal notes that it must take into consideration all of the various objectives set out in Rules 1 and 4 as well as the broad public interest purposes of the applicable legislation. The goal of providing an expeditious, cost-effective, efficient and timely process must be balanced with that of ensuring a just determination of every proceeding on its merits and protecting the public interest.

21While the Tribunal does have the discretion to control its process and depart from its Rules in appropriate circumstances, as stated in Rule 5, it is the Tribunal’s practice not to provide Tribunal-assisted mediation prior to the day of the PHC, when other interested persons have been identified and given the opportunity to seek status. This practice helps to ensure the protection of the public interest and a more effective and durable outcome. As noted above, the parties are not precluded from negotiating or from hiring a private mediator at an earlier stage than the PHC if they believe that will assist in their negotiations.

22With respect to Mr. Coburn’s assertion that Tribunal-assisted mediation in advance of the PHC could result in the Director revoking the order and ending the matter, the Tribunal wishes to highlight Rules 201 and 202 of the Tribunal Rules. Under Rule 201, the Tribunal is required to review any settlement agreement that would alter the decision under appeal, where there is a proposed withdrawal of an appeal, to consider whether such an agreement is consistent with the purpose and provisions of the relevant legislation and in the public interest. Similarly, under Rule 202, the Tribunal is required to consider whether a proposed revocation of the Director’s decision is consistent with the purpose and provisions of the relevant legislation and in the public interest.

23Under Rules 201 and 202, the Tribunal must consider the interests of participants and presenters as well as the interests of the parties. Additional parties, participants and presenters are not granted status prior to the PHC. As a result, the PHC must take place before the Tribunal is able to consider a proposed withdrawal of an appeal or revocation of an order.

24Rule 132(j) provides for the settlement or withdrawal of any or all of the issues at the PHC. If the parties reach a settlement agreement prior to the PHC, they may present that settlement to the Tribunal at the PHC in accordance with Rule 132(j).

25In conclusion, the Tribunal denies the parties’ request to provide Tribunal-assisted mediation services prior to conducting the PHC in this matter. The Tribunal will follow the process, set out in Rule 156, of offering to provide mediation services after the PHC to ensure that any added parties who are not among the initial parties to the proceeding have the opportunity to participate in negotiating the settlement agreement.

Schedule

26The parties asked that the Tribunal schedule a further status update TCC prior to July 21, 2017 to provide the Tribunal with an update concerning the status of negotiations among the parties and advise the Tribunal whether they wish to proceed to Tribunal-assisted mediation or to a stay motion hearing. The Tribunal has scheduled a status update TCC for July 19, 2017 at 2 p.m., as set out in the order below.

27Recognizing the parties’ efforts to reach a resolution as soon as possible, the Tribunal indicated that it is possible for the Tribunal to conduct a mediation session to follow immediately after the PHC, on the same day. As discussed during the June 29 TCC, the Tribunal will arrange for a mediator to be available should the parties wish to begin the mediation immediately following the PHC.

28The Tribunal has scheduled the PHC to take place on August 9, 2017 at 10 a.m., as set out in the order below.

ORDER

29The Tribunal orders that:

1. The stay motion hearing scheduled for July 7, 2017 is adjourned, without prejudice to the moving parties’ ability to revive the stay motion at a later date.

2. The request by the parties to provide Tribunal-assisted mediation prior to the Pre-hearing Conference is denied.

3. A status update telephone conference call is scheduled to take place on July 19, 2017 at 2 p.m.

4. The Pre-hearing Conference is scheduled to take place on August 9, 2017 at 10 a.m., at

Environment and Land Tribunals Ontario

655 Bay Street, Hearing Room 16-3

Toronto, ON

Stay Hearing Adjourned

Request to Provide Tribunal-Assisted Mediation Prior to the PHC Denied

Status Update and Pre-hearing Conference Scheduled

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

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Environmental Review Tribunal

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