Cox Farms Ltd. v. Ontario (Environment and Climate Change), 2017 CanLII 49719

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

July 26, 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:

July 20, 2017 by telephone conference call

APPEARANCES:

Parties

Counsel

Cox Farms Ltd.

Kevin M. Thompson

Director, Ministry of the Environment and Climate Change

Alicia Gordon-Fagan

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 the continuation of 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. The Director agreed and consented to the stay.

9The Tribunal granted the consent stay orally and subsequently issued an Order, dated May 29, 2017 (“May 29, 2017 Order”), staying the operation of the Director’s Order until July 31, 2017.

10On July 20, 2017, the PHC was reconvened by TCC. Mr. Thompson provided an update on the events that had taken place since the previous TCC held on May 23, 2017. Mr. Thompson told the Tribunal that extensive on-site work has been done. He further advised that a report had been prepared and shared with the MOECC, but the MOECC had not had the time to completely review the report. Mr. Thompson requested a further continuation of the stay, until the end of August 2017, to allow for the review to be completed by the MOECC.

11The parties indicated that the requested continuation of the stay was on consent. The Tribunal orally granted the continuation of the stay on the TCC. These are the reasons for that decision.

Issue

12The issue is whether the Tribunal should grant a continuation of the stay of the Director’s Order, pending continuing negotiations by the parties to resolve the appeal. The specific issues are whether s. 143(2) and/or (3) of the Environmental Protection Act (“EPA”) prevent the Tribunal from issuing a stay in this case.

Relevant Legislation

13Environmental 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

14Section 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, as the Tribunal found in its May 29, 2017 Order, there is no requirement to monitor, record or report in the work ordered.

15Section 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 Appellant submits that a continuation of the stay for an additional month will not result in any of the impacts outlined in s. 143(3). The Director agrees.

16Based on the submissions of the parties, the Tribunal finds that s. 143(3) of the EPA does not prevent a continuation of the stay in this case.

17As noted in the Tribunal’s May 29, 2017 Order, given that the continuation of the stay is on consent, 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

18The Tribunal stays the operation of the Director’s Order until August 31, 2017, on consent of the parties.

19The PHC in this matter is adjourned and will reconvene by TCC on August 15, 2017 at 10 a.m.

Request for Continuation of Stay Granted

Pre-hearing Conference Adjourned

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“Marlene Cashin”

MARLENE CASHIN

MEMBER

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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