Hart v. Ontario (Environment and Climate Change), 2017 CanLII 78330

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: November 17, 2017

CASE NO.: 13-034

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

Appellants: See “Schedule 1 – Appellant List”

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 18(1) and 43 of the Environmental Protection Act, to carry out work with respect to waste material

Property Address/Description: 350 Wentworth Street North

Municipality: City of Hamilton

ERT Case No.: 13-034

ERT Case Name: Hart v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties

Counsel

John McGill Currie (deceased), Robert Labatt and Donald Rickerd

Renata Kis

Director, Ministry of the Environment and Climate Change

Nicholas Adamson

DECISION DELIVERED BY MARCIA VALIANTE

REASONS

Background

1On April 16, 2013, Geoffrey Knapper, Director, Ministry of the Environment and Climate Change, issued an Order (“Order”) to 20 persons, pursuant to s. 18(1) and s. 43 of the Environmental Protection Act (“EPA”). The Order relates to a site located at 350 Wentworth Street North in the City of Hamilton, where drums of waste materials were discovered behind a wall in the basement of a building.

2Nine individuals and companies, including Robert Labatt, Donald Rickerd and the estate of John McGill Currie (“Labatt, Rickerd and Currie”), appealed the Order to the Environmental Review Tribunal (“Tribunal”) in 2013. 815244 Ontario Inc., a company associated with Appellants Labatt, Rickerd and Currie, was named in the Order but did not appeal. In December 2015, six of the Appellants entered into a settlement agreement with the Director, under which they agreed that the action items in the Order would not change but the dates for compliance would be altered and in consequence those six Appellants would withdraw their appeals. This settlement agreement left the Order in force as against the Appellants Labatt, Rickerd and Currie and the other orderees until such time as the Order has been complied with to the satisfaction of the Director. Pursuant to the settlement agreement, the parties requested a stay of the Order as against the Appellants Labatt, Rickerd and Currie and the Director undertook not to attempt to enforce the Order as against 815244 Ontario Inc. unless the other orderees failed to comply. In an order issued on January 5, 2016, the Tribunal accepted the settlement agreement and dismissed the appeals of six Appellants, stayed the operation of the Order as against the Appellants Labatt, Rickerd and Currie and adjourned their appeals (see: Currie v. Ontario (Environment and Climate Change), [2016] O.E.R.T.D. No. 1).

3The altered compliance dates were not met and the Tribunal subsequently continued the stay of the Order as against the Appellants Labatt, Rickerd and Currie and held a series of status update telephone conference calls to monitor progress toward completion of the action items in the Order. On November 1, 2017, counsel for the Director informed the Tribunal that the action items have been completed to the satisfaction of the Director and he now proposes to revoke the Order as against the three remaining Appellants (i.e., Labatt, Rickerd and Currie) and 815244 Ontario Inc. He requested that the Tribunal dismiss the proceeding in accordance with Rule 202 of the Tribunal’s Rules of Practice (“Rules”). The Appellants Labatt, Rickerd and Currie consented to the proposed revocation and dismissal.

Issues

4The issue is whether to dismiss the proceeding under Rule 202.

Relevant Rule

5Rule 202 outlines the steps the Tribunal must take when considering a proposed revocation of an order and deciding whether to dismiss a 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

6The Director submits that the proposed revocation is consistent with the purpose and provisions of the EPA and in the public interest because the work in the Order has been completed. The Director also notes that the Order will not be revoked as against the other orderees.

7The purpose of the EPA is the “protection and conservation of the natural environment”. The Order required the orderees to retain a qualified person to assess the waste, to remove and dispose of the waste in accordance with applicable regulations, guidelines and standards and to remediate and decontaminate the affected building. Based on the information provided, the Tribunal accepts that all of the work required by the Order has been completed to the satisfaction of the Director. The Tribunal finds that the proposed revocation of the Order as against the three remaining Appellants Labatt, Rickerd and Currie is consistent with the purpose and provisions of the EPA and is in the public interest. There are no participants or presenters.

DECISION

8The Tribunal accepts the proposed revocation and dismisses the proceeding.

Revocation Accepted

Remaining Appeals Dismissed

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

Schedule 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

Schedule 1

Appellant list

1. John McGill Currie (13-041)

2. Robert Labatt (13-042)

3. Donald Rickerd (13-043)

4. Greg Hart (13-034) (Appeal Withdrawn)

5. Imco Technologies Inc. (13-037) (Appeal Withdrawn)

6. 836724 Ontario Limited (13-038) (Appeal Withdrawn)

7. Harbhajan Singh Tamber (13-035) (Appeal Withdrawn)

8. 1125906 Ontario Inc. (13-039) (Appeal Withdrawn)

9. Wim Van Ravenswaay (13-036) (Appeal Withdrawn)