Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change), 2017 CanLII 81732

ISSUE DATE: November 29, 2017

CASE NO.: 17-025

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

Appellant: Hamilton Beach Brands Canada Inc. (File No. 17-025)

Appellant: Carillion Canada Inc. (File No. 17-026)

Appellant: Gerald Anthony DiRocco (File No. 17-027)

Appellant: 2441577 Ontario Inc. (File No. 17-028)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to produce and confirm commencement of implementation of an updated delineation work plan; to submit implementation reports; and to register a Certificate of Requirement

Reference No.: 4606-ACHP8H

Property Address/Description: 10 McFarland Drive, Picton

Municipality: County of Prince Edward

ERT Case No.: 17-025

ERT Case Name: Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties

Hamilton Beach Brands Canada Inc.

Carillion Canada Inc.

Gerald Anthony DiRocco

2441577 Ontario Inc.

Director, Ministry of the Environment and Climate Change

Counsel

Clifford Cole and Natalie Mullins

Peter Brady and Jessica Laham

Rosalind Cooper

Paul McCulloch and Jessica Rosenberg

DECISION DELIVERED BY JUSTIN DUNCAN AND MARCIA VALIANTE

REASONS

Background

1On April 12, 2017, Jim Mahoney, Director, Ministry of the Environment and Climate Change, issued Order No. 4606-ACHP8H (“Order”) under s. 18 of the Environmental Protection Act (“EPA”) to Carillion Canada Inc., Gerald Anthony DiRocco, Hamilton Beach Brands Canada Inc., and 2441577 Ontario Inc. (“Appellants”), as persons who own or owned, or who have or had management or control, of land and buildings at 10 McFarland Drive in Picton, Ontario (“Site”). The Order requires the Appellants to carry out specified work items with respect to the delineation of off-site contamination in the vicinity of the Site.

2On April 19, 20 and 21, 2017, the Appellants filed notices of appeal with the Environmental Review Tribunal (“Tribunal”). They also filed notices of allegation against a number of persons.

3In their notices of appeal, the Appellants each asserted as one ground of appeal that the Director lacked jurisdiction under s. 18 of the EPA to require that the work items in the Order be carried out by them. They requested an expedited hearing of a motion to challenge the Director’s jurisdiction. On May 23, 2017, the Tribunal held the first phase of the pre-hearing conference (“PHC”) by telephone conference call to discuss the scheduling of the jurisdictional motion. No requests for status as an added party, participant or presenter were made at the PHC.

4The jurisdictional motion was heard on June 15, 2017. On September 1, 2017, the Tribunal issued an order dismissing the motion. The Tribunal found that the Director had jurisdiction under s. 18 of the EPA to issue the Order (see: Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change), [2017] O.E.R.T.D. No. 42), thereby disposing of that ground of appeal.

5Notice of the second phase of the PHC was given on October 18, 2017 and scheduled to be held on November 21, 2017 in Picton to address scheduling of the hearing on the remaining grounds of appeal. On November 14 and 15, 2017, counsel for each of the four Appellants informed the Tribunal that they are withdrawing their remaining grounds of appeal on the basis that the requirements in the Order have been or will be substantially complied with in the coming months. They each noted that the withdrawals are on a without prejudice basis to them raising the same grounds in any future order that may be issued by the Director to them. They also stated that they are withdrawing the notices of allegation on a without prejudice basis. They requested that the Tribunal not proceed with the PHC. On November 16, 2017, the Director confirmed that he consents to the proposed withdrawal of the remaining grounds of appeal. The Tribunal has received no requests for party, participant or presenter status. Based on this information, the Tribunal cancelled the PHC.

Issues

6The issue is whether to dismiss the proceeding.

Relevant Legislation and Rules

7Rules 198 and 199 of the Tribunal’s Rules of Practice (“Rules”) apply where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered:

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

8Under Rule 199 of the Tribunal’s 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.

9The Appellants and the Director have confirmed with the Tribunal, in writing, that they agree to the withdrawal of the appeals and that the Order under appeal is not altered by a settlement agreement. Based on the submissions of the Parties, the Tribunal finds that Rule 199 applies.

DECISION

10The Tribunal dismisses the appeals.

Appeals Withdrawn

Appeals Dismissed

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

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Environmental Review Tribunal

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