Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: November 22, 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: Goldy Metals Inc. (File No. 17-036)
Appellant: Fenix Parts Canada Inc. (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: November 9, 2017 in Toronto, Ontario
APPEARANCES:
Parties Kenneth L. Gold Goldy Metals Incorporated Fenix Parts Canada, Inc. Director, Ministry of the Environment and Climate Change
Counsel Harry Poch Harry Poch F.F. (Rick) Coburn Jon Bradbury and Mitchel Boughs
Participant Toronto and Region Conservation Authority
Counsel Jacquelyn Stevens
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND WARREN MORRIS
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 ongoing appeal to the Environmental Review Tribunal (“Tribunal”) in relation to an order issued to Goldy Metals Incorporated by the Director in 2013 (Case No. 13-068).
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. The Tribunal scheduled a hearing of the stay motion for July 7, 2017.
4At the request of the parties, the Tribunal convened a telephone conference call (“TCC”) on June 29, 2017. At the TCC, after hearing the submissions of the parties, the Tribunal provided an oral disposition, with reasons that followed in an order issued July 13, 2017 (see: Gold v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 34). The Tribunal granted the request, on consent of the parties, to adjourn the stay motion hearing, without prejudice to the moving parties’ ability to revive the stay motion at a later date. The Tribunal denied the parties’ request to provide Tribunal-assisted mediation services prior to conducting the Pre-hearing Conference (“PHC”), and scheduled the PHC for August 9, 2017.
5The Tribunal convened the PHC on August 9, 2017, at which the Toronto and Region Conservation Authority (“TRCA”), through its counsel Jacquelyn Stevens, requested and was granted participant status. The Tribunal also granted an adjournment of the PHC to September 13, 2017 by TCC, when it was anticipated that the parties would advise the Tribunal of any updated information as well as their proposed next steps, such as requesting Tribunal-assisted mediation or proceeding with a settlement.
6On September 13, 2017, the PHC continued by TCC, with a Tribunal panel constituted of Vice-Chair Marcia Valiante and Member Marlene Cashin. The parties indicated that considerable progress had been made in their discussions, specifically with respect to revisions to the operation plan required by the Director’s Order. The Director required additional time to review the proposed operation plan. Since the parties were not in a position of settlement, the Tribunal proceeded to set a mediation date of October 26, 2017, as well as an in-person continuation of the PHC on November 9, 2017 to serve as a date to present a possible settlement. The Tribunal also directed the parties to report to the Tribunal no later than 5 p.m. on October 13, 2017 to indicate whether the parties intended to proceed with the mediation, and if not, to provide an update on the status of settlement discussions.
7On October 13, 2017, the parties provided a status update indicating that progress was being made with respect to the operation plan.
8On October 20, 2017, the parties requested that the Tribunal cancel the October 26, 2017 mediation date and inquired about the mediator’s availability on November 9, 2017, in the event that they did not reach a resolution by that date. The parties undertook, if they reached a settlmement prior to that date, to notify the Tribunal and request that it proceed with the PHC and a settlement hearing. The Tribunal granted these requests and also scheduled a continuation of the PHC for December 8, 2017, if needed.
9On November 7, 2017, the parties confirmed that they no longer required the services of the Tribunal mediator and would address the Tribunal at the continuation of the PHC on November 9, 2017.
10On November 9, 2017, the following counsel appeared at the continuation of the PHC: Rick Coburn, for Fenix; Harry Poch, for the Goldy Parties; Jon Bradbury and Mitchel Boughs, for the Director; and Ms. Stevens, for the TRCA. In writing on November 8, 2017 and at the PHC, Mr. Coburn informed the Tribunal that the Director had confirmed that Fenix’s revised operation plan was in compliance with the requirements of the Director’s Order and that Fenix may recommence receiving and processing of end-of-life vehicles at the Site. The Appellants advised of their intention to withdraw their appeals and the stay motion, and requested that the Tribunal issue a decision dismissing the proceeding.
11Mr. Coburn submitted that the notification requirements under Rule198 of the Tribunal’s Rules of Practice (“Tribunal Rules”) had been complied with, and that the Director’s Order had not been altered. The Appellants, with the consent of the Director, requested that the Tribunal issue a decision under Rule 199 dismissing the proceeding, including the stay motion. Ms. Stevens, counsel for the TRCA, the only participant, had no objections.
12The Tribunal, having considered the submissions of the parties, gave an oral decision dismissing the appeals and the outstanding stay motion and cancelling the continuation of the PHC scheduled for December 8, 2017. The purpose of this decision is to confirm that oral decision.
Issues
13The issue is whether the appeals shall be dismissed because the proposed withdrawal of the appeals is agreed to by all parties and the Director’s Order is not altered.
Relevant Rules
14The relevant provisions of the Tribunal Rules are as follows:
Termination of Proceedings
A Proponent or Applicant who proposes to withdraw an application, an Appellant who proposes to withdraw an appeal, or a Director, Risk Management Inspector or Official, Authority or municipality who proposes to revoke a decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.
Discussion, Analysis and Findings
15Under Rule 199 of the Tribunal Rules, the Tribunal shall dismiss an appeal where there has been a proposed withdrawal that has been agreed to by all parties, and the decision under appeal is not altered.
16The Appellants and the Director have confirmed with the Tribunal that they consent to the withdrawal of the appeals and related stay motion, and that the Director’s Order under appeal is not altered by a settlement agreement. As noted above, there are no added parties or presenters in the proceeding. The TRCA, with participant status, has no objections.
17Based on the submissions of the parties, the Tribunal finds that Rule 199 applies and dismisses the appeals.
DECISION
18The appeals of Director’s Order No. 5634-ALBP9R-1, as well as the stay motion, brought by Fenix Parts Canada, Inc., Goldy Metals Incorporated and Kenneth L. Gold, are dismissed.
Appeals Withdrawn
Appeals Dismissed
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Warren Morris”
WARREN MORRIS
MEMBER
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