SEJJ Environmental Solutions Inc. v. Ontario (Environment and Climate Change), 2017 CanLII 80040

ISSUE DATE: November 24, 2017

CASE NO.: 17-053

PROCEEDING COMMENCED UNDER section 139(2)(d) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: SEJJ Environmental Solutions Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Amendment of an Approval for the use and operation of a waste disposal site for the transfer and processing of solid non-hazardous waste

Reference No.: 0854-524QUQ

Property Address/Description: 115-117 Toryork Drive

Municipality: City of Toronto

ERT Case No.: 17-053

ERT Case Name: SEJJ Environmental Solutions Inc. v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties

SEJJ Environmental Solutions Inc.

Counsel

John Tidball

Parties

Director, Ministry of the Environment and Climate Change

Counsel

Isabelle O’Connor

ORDER DELIVERED BY JERRY V. DEMARCO AND MARCIA VALIANTE

REASONS

Background

1These reasons relate to a motion brought by SEJJ Environmental Solutions Inc. (“Appellant”) for an order waiving the requirements for the giving of notice to nearby property owners and the holding of a pre-hearing conference (“PHC”) by the Environmental Review Tribunal (“Tribunal”) to consider requests for status prior to the Tribunal considering a proposed settlement of the appeal.

2The Appellant has operated a solid waste transfer facility at 115-117 Toryork Drive in the City of Toronto (“Site”) for eight years under Amended Provisional Certificate of Approval (now “Environmental Compliance Approval”) (Waste Disposal Site) No. 0854-524QUQ, issued pursuant to the Environmental Protection Act (“EPA”) on November 5, 2009 (“ECA”). Between 2013 and 2016, compliance orders were issued by the Ministry of the Environment and Climate Change (“MOECC”) to the Appellant, and charges were laid and convictions entered against the Appellant and others in connection with operations at the Site during this period.

3The ECA was amended by Notice No. 1, issued on August 23, 2016 by Dale Gable, Director, MOECC, which suspended operations at the Site for receipt of waste, and by Notice No. 2 issued by the Director on September 8, 2016, which revoked that suspension and amended the ECA conditions. On July 11, 2017, the Director issued Notice No. 3, which further amended the ECA by suspending conditions permitting the receipt of waste and requiring the removal of all waste at the Site within 15 days.

4On July 26, 2017, the Appellant filed a notice of appeal of Notice No. 3 with the Tribunal. On July 31, 2017, the Tribunal’s Case Coordinator wrote to John Tidball, Appellant’s counsel, acknowledging receipt of the notice of appeal and requiring that certain information, including a list of the names and addresses of all property owners within 120 metres (“m”) of the boundary of the Site, a list of the names and addresses of other persons who should be notified of the proceeding, and available dates for the parties for a PHC, be provided to the Tribunal by August 14, 2017.

5On August 4, 2017, Mr. Tidball wrote to the Tribunal advising that the Appellant did not intend to pursue its appeal.

6On August 8, 2017, the Tribunal wrote to Mr. Tidball acknowledging the Appellant’s August 4 letter as a request to withdraw its appeal. By copy of that letter, the Tribunal also asked the Director whether he objected to the proposed withdrawal. The letter also asked the parties to address the considerations in Rules 201-202 of the Tribunal’s Rules of Practice (“Rules”) if those Rules applied. As of that point in time, the Tribunal was not aware of the nature of the proposed settlement between the parties. The parties later informed the Tribunal that the proposed settlement (referred to as Notice No. 4) involved, among other things, a revocation of the suspension imposed by Notice No. 3, which is the instrument under appeal.

7Isabelle O’Connor, counsel to the Director, wrote to the Tribunal on August 14, 2017, confirming that the Director did not object to the proposed withdrawal of the appeal. Ms. O’Connor stated that “Rule 202 would appear to apply” based on a “strict reading of the rules” but that the Director’s position was that the “Tribunal does not have any residual jurisdiction to require the continuation of a hearing where the parties have reached agreement and an appeal is withdrawn”. Nevertheless, she provided submissions on the applicable considerations set out in Rule 202 and submitted that the “proposed settlement is consistent with the purposes of the Environmental Protection Act and is in the public interest”.

8The Tribunal wrote to the Appellant on August 23, 2017 noting that, under Rules 201 and 202, the Tribunal is required to consider the interests of parties, participants and presenters with respect to the proposed withdrawal of the appeal, as well as the public interest, and stating that the Tribunal would convene a PHC by telephone conference call (“TCC”) to determine whether there were requests for party, participant or presenter status, and if so to consider their interests. The Tribunal again asked the Appellant to provide the lists of names and addresses of potentially interested persons, by September 6, 2017.

9On September 6, 2017, Mr. Tidball wrote to the Tribunal agreeing with the Director that the Tribunal does not have jurisdiction to continue with the proceeding but also indicating that he understood the Tribunal’s position to be that it does have such jurisdiction under Rules 201 and 202. Mr. Tidball stated that he did not believe that any purpose can be served by giving notice of a PHC to nearby landowners and that the issues that caused the Director to suspend portions of the ECA did not involve the Appellant’s industrial neighbours in any way. He also noted that there are currently no other parties, participants or presenters and that there is no compelling reason to seek them out in a PHC. Mr. Tidball indicated that he would be happy to participate in a TCC if the Tribunal believed it needed more information beyond that in Ms. O’Connor’s August 14, 2017 letter. Mr. Tidball’s letter did not attach the list of names and addresses that had been twice requested by the Tribunal.

10The Tribunal convened a TCC with the Tribunal’s Associate Chair and counsel for the parties on September 19, 2017 to discuss a way forward. The parties were informed that the Tribunal’s standard practice is to schedule a PHC to consider a proposed settlement under Rules 201 and 202 and that such could be done by TCC. The Tribunal noted that, if the parties sought to waive the requirement for a PHC or waive the requirement to provide a list of names of persons to be notified of a PHC, then a motion demonstrating why such a course of action should be taken would be required. The parties were also informed that there was a line of Tribunal cases related to this issue (i.e., Giampaolo v. Ontario (Ministry of the Environment), [2010] O.E.R.T.D. No. 35 (“Giampaolo”) and Gold v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 34 (“Gold”)).

11On September 28, 2017, Mr. Tidball wrote to the Tribunal indicating that he had instructions to bring a motion to waive the requirement for a PHC and proceed to a settlement hearing. That same day, the Tribunal asked him whether the Appellant wished to have the motion heard in writing, by TCC or in person. Mr. Tidball elected to proceed with the motion in writing.

12On October 20, 2017, the Appellant filed a Notice of Motion and supporting materials seeking an order waiving the requirement for a PHC and proceeding directly to a settlement hearing. The Director provided submissions via email on October 27, 2017.

Issue

13The issue is whether to waive the requirements in Rules 27-28 and 126-132 and schedule a settlement hearing without any requirement to identify added parties, participants or presenters.

Relevant Rules

14The following are the relevant Rules:

Purposes of the Rules

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

These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
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.
The Tribunal may issue procedural orders for a proceeding that, if in conflict with these Rules, prevail over these Rules.
During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.
Following receipt of the Notice of Appeal, the Tribunal shall send the Appellant a letter specifying that, within 14 days of the date of the letter, the Appellant shall provide the Tribunal with:

(a) a list certified by the applicable municipality of names and addresses of all owners of property within 120 metres of the boundary of the property that is the subject of the decision or, in the case of an appeal of a renewable energy approval, the list of names and addresses referred to in Rule 31.

(b) a list of names and addresses of any other persons who should be notified of the proceeding because they may have an interest in the outcome;

(d) an indication that the Appellant has special needs that must be accommodated, if applicable.

Upon receiving service of the Notice of Appeal, the information that accompanies the Notice of Appeal and the information sent as a result of a request by the Tribunal, the Director, the Risk Management Inspector or Official, the Authority or the municipality shall, within ten days, file with the Tribunal a list of the names and addresses of any other persons whom the Director, the Risk Management Inspector or Official, the Authority or the municipality considers should be notified of the proceeding because they may have an interest in the outcome.

NOTICE OF HEARING AND PRE-HEARING CONFERENCE

The following persons shall receive a Notice of Hearing or a Notice of Pre-hearing Conference :

(a) those persons identified as Parties in the relevant statute;

(b) the persons identified in the lists provided to the Tribunal by the Appellant pursuant to Rule 27 (a) and (b), where applicable;

(c) the persons identified in the list provided to the Tribunal by the Director, Risk Management Inspector or Official, Authority or municipality, pursuant to Rule 28 or Rule 40(c), where applicable;

(d) the persons identified in the lists provided to the Tribunal by the Proponent pursuant to Rule 41 (b) and (c) or by the Director pursuant to Rule 31, where applicable;

(e) clerks of the upper and lower tier municipalities or single tier municipality in which the property is situated; and

(f) such other persons as determined by the Tribunal.

Form and Content of Notice

A Notice of Hearing and a Notice of a Pre-hearing Conference shall include the following information:

(a) identification of the person initiating the proceeding;

(b) the address, telephone number, fax number and email address of the Tribunal;

(d) a reference to the statutory provision under which the proceeding is being held;

(e) a statement of the purpose of the proceeding;

(f) for oral proceedings,

(i) a statement of the time and place of the proceeding; and

(ii) a statement that if the person notified does not attend and identify herself or himself to the Tribunal, the Tribunal may proceed in that person's absence and the person is not entitled to any further notice of the Hearing;

(g) for Pre-hearing Conferences,

(i) a statement that a person who is not a Party to the proceeding and who wishes to participate should notify the Tribunal no later than seven days prior to the Pre-hearing Conference and that a request to participate may also be made at the Hearing provided that the proceeding has not been terminated in the interim;

(ii) a statement that if a person other than a Party does not attend the Pre-hearing Conference and identify himself or herself to the Tribunal or file written notice of his or her interest in the proceeding, the Tribunal may proceed in the person's absence and the person will not be entitled to any further notice in the proceeding, including Notice of the Hearing;

(iii) a statement that the Pre-hearing Conference and Hearing dates are peremptory to all Parties, Participants and Presenters and that the Tribunal may proceed in their absence and they will not be entitled to any further notice in the proceeding;

(iv) a statement that the Tribunal may make orders with respect to the conduct of the proceeding which will be binding on all present and future Parties, Participants and Presenters; and

(h) a statement that a person requiring French language services at the Hearing or Pre-hearing Conference should make the request to the Case Coordinator as soon as possible and no later than fourteen days before the Hearing or Pre-hearing Conference.

In addition to notice to Parties or other persons to whom notice must be given under these Rules, if the Tribunal considers it appropriate that the public be informed of the proceeding, the Tribunal may require that notice be given to the public:

(a) by publication on at least one occasion in a newspaper having general circulation in the locality of the property or facility that is the subject-matter of the Hearing; or

(b) in any other manner the Tribunal considers appropriate in the circumstances.

The public notice referred to in Rule 128 shall be published both in English and French in the areas of the province designated as bilingual in the French Language Services Act.

Giving Notice

Unless otherwise directed by the Tribunal:

(a) a Notice of Hearing shall be given at least 60 days before the main Hearing is to commence, or at least 45 days before the main Hearing is to commence, in relation to an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act; and

(b) a Notice of Pre-hearing Conference shall be given at least 30 days before the Pre-hearing Conference is to commence, or at least 15 days before the Pre-hearing Conference is to commence, in relation to an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

The Tribunal may require an appropriate Party to give notice at its own or another Party's expense, and may:

(a) provide directions for giving notice;

(b) approve the form and content of the notice; or

CONDUCT OF PRE-HEARING CONFERENCES

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;

(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.

TERMINATION OF PROCEEDINGS

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.
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

15The parties focus their submissions on the Tribunal’s Rules but do not directly address the relevant Tribunal cases.

16The Appellant submits that Rule 201 does not require the Tribunal to hold a PHC prior to considering a settlement agreement or withdrawal of an appeal, nor is there a compelling public policy reason to hold a PHC for the sole purpose of identifying other parties for a settlement hearing. The Appellant argues that the instances of non-compliance that led to Notice No. 3 were primarily related to waste storage limits and reporting requirements and thus were “regulatory in nature” and did not cause adverse environmental effects to neighbouring property owners or give rise to complaints from them. Thus, the Appellant submits, the only parties with any real interest in this proceeding are itself and the Director. It further submits that, in the current circumstances, giving notice of a PHC would inevitably cause confusion among neighbouring landowners and it is highly unlikely that the Tribunal would receive any requests for status, so that holding a PHC prior to a settlement hearing would not be efficient.

17The Director submits that, strictly speaking, this motion is unnecessary because once an appeal is withdrawn, there is no residual jurisdiction in the Tribunal to require continuation of a hearing, including by way of a PHC. In addition, the Director argues, no Rule requires that a PHC be held in every proceeding and Rule 132 states only that a PHC “may” be held to deal with certain enumerated issues. The Director submits that the main purpose of a PHC is to prepare for and streamline the hearing process but that, where the parties have settled the issues and the appeal is withdrawn, there is no need for a PHC.

18The Director further submits that Rules 201 and 202 require the Tribunal to consider the interests of parties, participants and presenters, but only those who have that status at the time the appeal is settled. To conduct a PHC for the sole purpose of inviting members of the public to seek status in a matter that has been settled is, in the Director’s submission, not supported by the Tribunal’s Rules and is not conducive to the early resolution of disputes or the economic use of the Tribunal’s or the parties’ resources.

19Rule 132 of the Tribunal’s Rules states that a PHC may be held to deal with a range of issues. Rules 27 and 28 require the statutory parties to provide the Tribunal with lists of persons who may have an interest in the proceeding, who will then be given notice of hearing events in accordance with Rules 126 to 131; however, it is clear that this requirement can be waived, in accordance with Rule 5 (see also Rules 6-7), if the Tribunal determines that it is “appropriate in the particular circumstances”. As set out in Gold, the usual practice of the Tribunal is to hold a PHC to consider status requests where a proposed settlement alters the decision under appeal, but the Tribunal has the discretion to depart from that practice where appropriate. Paras. 23 and 24 of Gold state:

Under 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.

Rule 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).

20The issue on this motion is whether it is appropriate in the circumstances of this proceeding to dispense with notice and the PHC to consider status requests and to proceed directly to a consideration of the proposed settlement. The instrument under appeal suspended certain conditions of the ECA while the proposed settlement involves, among other things, a revocation of the suspension (the other aspects of the proposed settlement that do not relate to Notice No. 3 are not relevant to this proceeding). It is thus clear that the settlement agreement either alters the decision under appeal for the purposes of Rule 201 or revokes a decision under Rule 202. In either case, the considerations for the Tribunal are the same. At least two of the relevant considerations under Rules 201 and 202 (i.e., the “public interest” and the “interests of Parties, Participants and Presenters”) may be informed by persons who, at a PHC, seek status in a proceeding.

21The primary argument of both parties is that giving notice to nearby property owners and holding a PHC to consider status requests is not appropriate in the circumstances. However, the Director also takes the position that the Tribunal lacks jurisdiction to continue a hearing once a proceeding is settled and an appeal is withdrawn or a decision revoked in accordance with Rules 201 or 202 (a position agreed with but not pursued by the Appellant). Neither party provides submissions on this argument. The Tribunal notes that its jurisdiction under Rules 201 and 202, to proceed with a hearing once a settlement agreement has been reached and the Appellant proposes to withdraw an appeal or the Director proposes to revoke a decision, was affirmed in previous Tribunal decisions, including Giampaolo and Johnson v. Ontario (Ministry of the Environment), [2006] O.E.R.T.D. No. 5. The Tribunal has been given no reason to depart from those Rules or the reasoning from earlier Tribunal cases and adopts the conclusion in Giampaolo that the Tribunal has the jurisdiction set out in Rules 201 and 202.

22The Director argues that the Tribunal’s Rules do not support the convening of a PHC for the sole purpose of seeking out others who may wish to participate; rather, it is only those with status on the date of a settlement agreement who need to have their interests considered.

23Under Rule 201, where there is 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 is required to review the settlement agreement and consider whether it is consistent with the purpose and provisions of the legislation and in the public interest. In addition, the Tribunal is required to consider the interests of parties, participants and presenters before deciding whether to continue or dismiss the proceeding. In Giampaolo, the Tribunal stated, at paras. 26-27:

To the extent that the nearby residents may be affected by the main Parties’ proposed resolution of the appeals, it is important that their interests be considered with regard to issues that fall within the subject matter of the appeals…

In appropriate circumstances, the Tribunal can exercise its discretion to proceed with a hearing instead of accepting an initial proposed settlement that has the effect of altering the decision under appeal, even if the settlement agreement involves all those who were considered parties at the time the agreement was reached. To fulfil its role under public welfare statutes, the Tribunal needs to assess proposed agreements with due regard to the relevant legislation and effects on participants, presenters and the public interest.

24The Tribunal disagrees with the Director that in every case only the interests of those with status on the date a settlement is reached need to be considered. To accept the Director’s argument would mean that whenever an appeal is brought to the Tribunal but settled prior to a PHC being convened, the Tribunal would be precluded from identifying and hearing from potentially interested persons and would thereby be hampered in being able to fulfil its mandate of considering the public interest and the interests of persons beyond the statutory parties. Notice of the PHC may be the first time that other persons are made aware of the appeal. It is at the PHC when the Tribunal first identifies and gives status to added parties, participants and presenters, on the basis of a personal or genuine public interest. If the Tribunal were to by-pass these steps whenever an appeal is settled, it would have no reliable way of knowing if there were any persons other than the statutory parties who might have an interest in the terms of the settlement and who could contribute to its understanding of the impact of the settlement on individuals and the broader public interest. Therefore, the Tribunal finds that, when considering a proposed settlement under Rules 201 and 202, it is not limited to considering the interests of the parties, participants and presenters who have been given status as of the date of the proposed settlement agreement, but has authority to convene a PHC to, among other things, determine whether status should be granted to interested persons.

25The Appellant argues that the Tribunal’s usual practice should be waived, that notice should not be given and a PHC to consider status requests should not be held, in light of the particular circumstances of this case. It bases its argument for a waiver on the facts that Notice No. 3, which suspended certain operations on the Site, was not prompted by complaints from its neighbours or any adverse environmental effects, that the modifications to the ECA are “regulatory in nature”, and that, because the immediately neighbouring lands are used solely for industrial or commercial purposes, it is highly unlikely that any person would seek status in this proceeding. The Appellant relies on the affidavit of Nivedhya Ramaswamy, in which she states that there are approximately 20 properties within 120 m of the Appellant’s property, all of which are used for industrial or commercial purposes, with the nearest residential properties being approximately 500 m away.

26In Gold, in considering whether to waive the requirement for a PHC prior to providing Tribunal-assisted mediation, the Tribunal stated, at para. 20, 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.

27Two of the purposes of the Tribunal’s Rules are, as set out in Rule 1, “to provide a fair, open, accessible and understandable process for Parties and other interested persons” and “to facilitate and enhance access and public participation.” In previous cases, the Tribunal has addressed why these purposes are important. In Detox Environmental Ltd. v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 6 (“Detox”), at para. 21 the Tribunal recognized that “it is important to foster public scrutiny of, and participation in, hearings affecting public interest matters such as those involving the environment.” The Tribunal also stated, at para. 22:

Public notification and participation are important aspects of sound environmental decision-making and administrative law proceedings affecting the public interest. Fostering public involvement not only assists those affected by Tribunal proceedings, but also leads to well-informed decisions. This, in turn, helps the Tribunal better accomplish the public interest in environmental protection set out in the EPA’s purpose section.

28Further, in Krek v. Ontario (Ministry of the Environment), [2007] O.E.R.T.D. No. 75, the Tribunal held, at paras. 19-20:

The entitlement to notice directly affects the substantive rights of persons interested in the subject matter of the appeal. They cannot participate in the process unless they are aware the appeal is taking place. This participation is important, given that the purpose of the Environmental Protection Act is to provide for the protection and conservation of the natural environment. Their views often differ from those of the Director and the Appellant, thereby providing additional insights respecting the issues to be determined in the appeal.

In light of these considerations, there must be very compelling reasons to waive or depart from the provisions of Rule 27.

29In Gold, the Tribunal observed, at para. 21, that providing an opportunity to participate “helps to ensure the protection of the public interest and a more effective and durable outcome.” Providing the opportunity for participation in or observation of Tribunal proceedings, even if it is not ultimately pursued by interested persons, also facilitates transparency and public trust in the work of the MOECC and the Tribunal. This also furthers the openness objective of the Tribunal’s Rules.

30In determining whether it is appropriate to waive the requirement of notice and the convening of a PHC in a particular case, the Tribunal should not attempt to predict whether any of the persons entitled to receive notice under its Rules will seek to participate. The Tribunal agrees with the comments made in Detox, where at para. 30 the Tribunal stated that “the ultimate purpose of Rule 27(a) is to allow neighbours the opportunity to observe and participate; it is not to provide a mechanism for predicting which appeals might give rise to status requests.” The Tribunal has no reliable way to make an accurate prediction, so even when it seems unlikely that any person will seek status in a given case, as appears to be the case here based on the Appellant’s submissions, the use of that low of a standard for waiving notice would inevitably exclude some would-be intervenors in some cases, given the volume of cases the Tribunal hears. If the Tribunal were to guess wrong, the effect would be to deny the right to participate to an interested person who may be able to contribute to its understanding of the issues and inform its appreciation of the public interest.

31Moreover, there may be any number of reasons why neighbouring landowners and others entitled to notice might wish to observe, or seek status in, this proceeding, which would not necessarily be apparent to the Appellant or the Tribunal. This is no less so in an area with industrial and commercial uses. Industrial neighbours have requested party or participant status in Tribunal proceedings. For example, in RPL Recycling and Transfer Limited v. Director (Ministry of the Environment), [2006] O.E.R.T.D. No. 61, the industrial neighbour of a waste transfer station was granted status based on its interest in securing a dust-free environment for its process.

32In this case, the Appellant characterizes the ECA amendments as “regulatory in nature” and states that the MOECC received no complaints about the Appellant’s operations, yet the Tribunal notes that Notice No. 3 provides:

Possible environmental outcomes from the Company’s continued non-compliance include the following: litter, vermin and dust impacts both on and off the Site, as well as stormwater exceedances in total suspended solids, biochemical oxygen demand, metals and petroleum derived contaminants due to leachate generated by the outdoor storage of waste and other materials stored outside at the Site [emphasis added].

In other words, even if one could characterize the nature of the ECA amendments as being merely “regulatory” and for that reason of little interest to anyone beyond the statutory parties, the conditions that led to the MOECC’s repeated concerns with the operations on the Site have the potential for adverse impacts on nearby lands and the natural environment in the vicinity of the Site. Knowledge of such conditions or concerns about adverse impacts may be of sufficient interest for one or more persons to seek to participate in or observe a proceeding.

33Thus, even if the Appellant is correct that it is highly unlikely that anyone will seek status in this proceeding, the public interest mandate of the Tribunal weighs heavily toward providing an opportunity for those with a potential interest to observe or seek status.

34The parties argue that convening a PHC at this stage would be inefficient and would not make economic use of the Tribunal’s and the parties’ resources. Two of the purposes set out in Rule 1 are “to encourage co-operation among Parties” and “to assure the efficiency and timeliness of proceedings”. As stated in Gold, these purposes must be balanced with the purposes promoting participation. Balancing the significant prejudice to potentially affected or interested persons that would result from their exclusion from the settlement hearing against the comparatively small efficiency gains that would accrue from waiving notice, the Tribunal elects to err on the side of providing notice. The Tribunal notes, however, that its consideration of the proposed settlement will be confined only to those aspects of the proposed settlement that are within the scope of this proceeding and will not include those aspects of the proposed settlement that do not relate to the appeal of Notice No. 3.

35In balancing the various purposes in this context, the Tribunal should, as a practical matter, use the flexibility in its procedures to determine a process that best enables it to fulfil all of these purposes to the greatest extent possible. For example, Rule 132(j) provides that a PHC may be held to deal with “the settlement or withdrawal of any or all of the issues”. This would allow the Tribunal in this case to address the settlement and withdrawal of the appeal at a PHC where it also considers any status requests. The notice of the PHC can state that one of the matters to be dealt with at the PHC will be the proposed settlement. The Tribunal can also hold the PHC by TCC, as has been done in many cases, and was the manner proposed by the Tribunal in this case. This would assure efficiency and timeliness of the proceeding as well as providing notice and an opportunity to participate or observe to persons other than the statutory parties. The Tribunal determines that such an approach best addresses all of the purposes of the Tribunal’s Rules in the context of the public interest nature of the environmental legislation at issue.

36In conclusion, the Tribunal finds that it has authority to convene a PHC to provide an opportunity for potentially-interested persons to request status, prior to considering a proposed settlement agreement under Rules 201 and 202. The Tribunal further finds that waiving Rules 27-28 and 126-132 is not appropriate in the circumstances of this proceeding.

ORDER

37The Tribunal orders that:

a. the Appellant’s Motion is dismissed;

b. the Appellant shall provide the Tribunal, by December 8, 2017, with a list of names and addresses of all owners of property within 120 m of the boundary of the Site and a list of names and addresses of any other persons who should be notified of the proceeding, in accordance with Rule 27; and

c. the parties shall provide the Tribunal, by December 8, 2017, with available dates for the convening of a PHC TCC to consider, among other things, any requests for status and the proposed settlement.

Motion Dismissed

Procedural Directions Issued

“Jerry V. DeMarco”

JERRY V. DEMARCO

ASSOCIATE CHAIR

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

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Environmental Review Tribunal

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