Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: September 11, 2017
CASE NO.: 17-032
PROCEEDING COMMENCED UNDER section 101.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Nipissing-Parry Sound Catholic District School Board
Respondent: Corporation of the Municipality of East Ferris
Subject of appeal: Order to pay in relation to the clean-up of a spill
Property Address/Description: 1990 Corbeil Road
Municipality: Municipality of East Ferris
Upper Tier: Nipissing District
ERT Case No.: 17-032
ERT Case Name: Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)
Heard: August 21, 2017 in North Bay, Ontario
APPEARANCES:
Parties
Counsel
Nipissing-Parry Sound Catholic District School Board
F.F. (Rick) Coburn
Corporation of the Municipality of East Ferris
David N. Germain
ORDER DELIVERED BY JUSTIN DUNCAN AND MARCIA VALIANTE
REASONS
Background
1On April 10, 2017, the Corporation of the Municipality of East Ferris (“East Ferris”) served an order (“Order”) on the Nipissing-Parry Sound Catholic District School Board (“School Board”) directing the School Board to pay $622,983.83 to East Ferris in relation to a spill and escape of heating oil from underground storage tanks located at the former St. Theresa School at 1990 Corbeil Road, East Ferris (“Site”).
2The School Board filed a notice of appeal with the Environmental Review Tribunal (“Tribunal”) on April 25, 2017 seeking revocation of the Order on various grounds.
3The Tribunal held a Pre-hearing Conference (“PHC”) on August 21, 2017. No additional persons sought status at the PHC. During the PHC, counsel for the parties provided an overview of their respective positions and jointly proposed a process by which the appeal should proceed.
4To begin, David Germain, counsel for East Ferris, explained that the School Board had removed the underground storage tanks in or about August 2000 and East Ferris subsequently purchased the Site from the School Board in 2009. Upon demolition of part of the school in late 2012, oil had been discovered in a septic tank and in surrounding soil. He explained that the oil plume is moving slowly away from the Site.
5According to Mr. Germain, since 2012, East Ferris has spent $622,983.83 on various activities related to the spill, including delineation work, a test pitting and monitoring program, surface and ground water sampling, well water sampling, and development of plans for the remediation of contaminated groundwater and soil. Many of these activities are ongoing.
6Mr. Germain explained that because East Ferris’ work is ongoing, expenses will continue to be incurred. He also explained that East Ferris does not currently have the resources to conduct the remediation work that will be necessary. Mr. Germain explained that East Ferris intends to ask the Tribunal to amend the Order, under s. 100.1(14) of the Environmental Protection Act (“EPA”), adding new costs or expenses that will be incurred by the municipality associated with the spill.
7On behalf of the School Board, Rick Coburn did not wish to add to the factual background provided by Mr. Germain, except to inform the Tribunal that East Ferris has commenced a civil action against the School Board, which is currently in abeyance until the appeal before the Tribunal has been resolved. Mr. Coburn also explained the basis for the School Board’s appeal.
Issues
8The issues are:
Whether to conduct the hearing in two phases; and
Whether to adjourn the PHC to a telephone conference call (“TCC”).
Discussion and Findings
Issue 1: Whether to conduct the hearing in two phases
9The relevant provisions of the EPA that assist in assessing whether to phase the hearing are:
Municipality’s order for costs and expenses
100.1 (1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment. …
What Tribunal may consider
(15) At a hearing by the Tribunal under this section, the Tribunal shall consider only,
(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,
(i) the owner of the thing that was discharged,
(ii) the person having charge, management or control of the thing that was discharged, or
(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or
(b) whether any of the costs or expenses specified in the order,
(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or
(ii) are unreasonable having regard to what was done.
10In terms of the issues on the appeal, the parties were in agreement that the appeal raises three main issues: (1) whether the Order is a nullity on the basis that it fails to specify the time of the spill and that the School Board was the owner or was in charge, management or control at that time; (2) whether the School Board was, immediately before the spill of oil, the owner or person having charge, management or control of the oil; and (3) whether any of the costs or expenses specified in the Order were incurred for a purpose unrelated to the purpose of the EPA, and whether the costs are unreasonable having regard to what was done.
11With respect to the first issue, counsel informed the Tribunal that they had discussed the failure of the Order to identify the date of the spill or to identify who was the owner or the person having charge, management or control at that date. Mr. Germain undertook to provide particulars regarding these matters, by way of letter, by mid-September. Mr. Coburn was content to await such correspondence before deciding whether a motion would be necessary.
12Once particulars of the spill are provided, the School Board intends to pursue its appeal by contending that it was not the owner or the person having charge, management or control of the oil at the time of the spill and that the activities of East Ferris, following its assumption of ownership of the Site in 2009, caused or contributed to the spill and to the extent of the environmental impacts.
13The parties were in agreement that, if the School Board is successful in proving these contentions, a hearing on the remaining issues regarding the purpose and reasonableness of costs and expenses incurred by East Ferris will become unnecessary. They submitted that a phased hearing, divided between the issues of responsibility for the spill, which tracks with the considerations in s. 100.1(15)(a) of the EPA, and the purpose and reasonableness of the costs and expenses, which tracks with the considerations in s. 100.1(15)(b) of the EPA, would be efficient in the circumstances, potentially saving significant public resources.
14The Tribunal agrees with the parties that, should the School Board be successful in showing that it was not the owner or in charge, management or control of the oil at the time of the spill, it will be unnecessary to consider issues relating to specific costs incurred by East Ferris. The Tribunal further agrees that to divide the hearing between these issues would help assure the efficiency of the proceeding. As a result, the Tribunal orders that the hearing be conducted in two phases.
15The issues to be addressed in the first phase will be whether the School Board was the owner or the person having charge, management or control of the heating oil immediately before the spill and therefore whether the Order is properly directed to the School Board. The issues to be addressed in the second phase of the hearing, if it is necessary, will be whether any of the costs and expenses incurred by East Ferris were for a purpose referred to in s. 100.1(1) of the EPA and whether the costs and expenses incurred were unreasonable having regard to what was done.
Issue 2: Whether to adjourn the PHC to a TCC
16Mr. Coburn explained that, in addition to the need to wait until mid-September for particulars from Mr. Germain as outlined above, the School Board’s consultants are currently reviewing the Order and the various testing results and reports attached to the Order in schedules. He explained that this review will be completed in mid-September and will assist in defining the specific issues and the scope of the evidence that will be raised during the first phase of the hearing. He requested that the PHC be adjourned to a TCC in mid-October. Mr. Germain consented to this request.
17In light of the circumstances regarding the need for particulars and the technical review, as well as the request for the adjournment being on consent and there being no other parties, participants or presenters, the Tribunal agrees that a short adjournment of the PHC is appropriate and will help ensure the integrity of the Tribunal’s process.
18On the basis of a joint request by the parties, the Tribunal scheduled the continuation of the PHC to be held by TCC on October 17, 2017 at 10:00 a.m.
19The purpose of the TCC will be: for the parties to detail the specific issues they intend to pursue in the first phase of the hearing, to request Tribunal-assisted mediation, if desired, and to identify the number of witnesses and the length of the first phase of the hearing; and for the Tribunal to determine a schedule of events for the first phase of the hearing, including dates for disclosure of documents, filing of documents, witness lists and witness statements, dates to hear motions, and the dates and location of the hearing.
ORDER
20The Tribunal orders that:
- The hearing will be conducted in two phases as follows:
Phase 1 will address whether the School Board was the owner or the person having charge, management or control of the heating oil immediately before the spill and therefore whether the Order is properly directed to the School Board.
Phase 2 will address whether any of the costs and expenses incurred by East Ferris were for a purpose referred to in s. 100.1(1) of the EPA and whether the costs and expenses incurred were unreasonable having regard to what was done.
- Continuation of the PHC is scheduled to take place by TCC on October 17, 2017 at 10:00 a.m. to discuss matters relating to Phase 1 of the hearing.
Procedural Directions Ordered
Continuation of Pre-hearing Conference Scheduled
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
“Marcia Valiante”
MARCIA VALIANTE
VICE-CHAIR
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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