Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: October 22, 2018

CASE NO.: 18-022

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

Appellant: Estate of Lai Chew Chong (File No. 18-022)

Appellant: Estate of Chiu Lam Lau (File No. 18-023)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to comply with various work items in regards to concerns of contamination

Reference No.: 3567-AQRTT4-1

Property Address/Description: 3761 Lakeshore Blvd. West

Municipality: City of Toronto

ERT Case No.: 18-022

ERT Case Name: Chong Estate v. Ontario (Environment, Conservation and Parks)

Heard: By telephone conference call on September 14, 2018 and in writing

APPEARANCES:

Parties Estate of Lai Chew Chong Estate of Chiu Lam Lau Director, Ministry of the Environment, Conservation and Parks

Counsel/Representative Owen Chong Eppie Lau Domenico Polla

Presenters Valerie Walton (Self-represented) Vali Khadivi (Self-represented) 1521851 Ontario Inc. (Joanna Vince)

DECISION DELIVERED BY MARLENE CASHIN

REASONS

Background

1On April 6, 2018, the Director, Ministry of the Environment, Conservation and Parks (“MECP”) issued Director’s Order No. 3567-AQRTT4-1 (“Director’s Order”), confirming the actions required in a Provincial Officer’s Order dated November 6, 2017, but altering the dates for compliance to allow for sufficient time to carry out the work outlined in the Director’s Order. The Director’s Order concerned compliance with various work items related to contamination at the site of a former dry-cleaning operation known as Crown Cleaners, located at 3761 Lakeshore Blvd. West, Toronto, Ontario (“Site”).

2On April 20, 2018, Owen Chong and Eppie Lau, representatives respectively of the Estate of Lai Chew Chong and the Estate of Chiu Lam Lau, owners of the Site (“Appellants”), appealed to the Environmental Review Tribunal (“Tribunal”).

3On July 26, 2018, the Parties advised the Tribunal that they had reached a settlement agreement, and provided written submissions related to the agreement.

4On September 14, 2018, a Pre-hearing Conference was held by telephone conference call (“TCC”), in conjunction with a Settlement Hearing, at which time the Tribunal granted Presenter status in the proceeding to two individuals, and one corporation.

5During the TCC, the Tribunal heard the submissions of the Parties and the Presenters in relation to the settlement.

6The Tribunal considered the Parties’ submissions, the settlement materials that were filed prior to the TCC, and the submissions of the Presenters, and issued an oral decision as requested by the Parties: ordering that the dates set out in the document of Fisher Environmental Ltd. dated July 5, 2018, attached to this Order as Appendix 1, shall replace the relevant compliance dates set out in the Director’s Order; accepting the withdrawal of the appeals by the Appellants; and dismissing this proceeding. These are the reasons for the Tribunal’s decision.

Issues

7The issues are:

• whether to grant requests for presenter status; and
• whether to accept the proposed settlement and dismiss the appeals pursuant to Rule 201 of the Rules of Practice of the Environmental Review Tribunal (“Rules”).

Relevant Rules and Legislation

8Environmental Protection Act (“EPA”)

Purpose of Act 3. (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

9Rules

Naming of a Presenter 69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

TERMINATION OF PROCEEDINGS 201. 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.

Discussion, Analysis and Findings

Issue 1: Whether to grant requests for presenter status

10The three requests for presenter status all came from neighbouring landowners of the Site: Valerie Walton, Vali Khadivi, and 1521851 Ontario Inc.

11It was clear to the Tribunal that the status requests from the neighbours were made in an effort to gain more information about the Director’s Order, and to have the opportunity to provide information to the Tribunal regarding the situation from the neighbours’ points of view.

12The Tribunal found that Ms. Walton’s, Mr. Khadivi’s, and 1521851 Ontario Inc.’s interests in the appeal satisfy the considerations set out in the Tribunal’s Rules, in that their interests may be directly and substantially affected by the hearing or its result. They have a genuine interest in the subject matter of the proceeding, and they are likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

Issue 2: Whether to accept the proposed settlement and dismiss the appeals pursuant to Rule 201

13Rule 201 sets out the steps the Tribunal must take in reviewing a settlement agreement that alters the decision under appeal and deciding whether to dismiss an appeal.

14Counsel for the Director, Domenico Polla, explained that the Director has agreed that the dates proposed by Fisher Environmental Ltd. on behalf of the Appellants, for a work schedule regarding contaminant delineation at the Site, are acceptable. Mr. Polla explained that the Appellants intend to withdraw their appeals in accordance with the agreement between the Parties.

15The Director submitted that the settlement agreement is consistent with the purposes and provisions of the EPA, and is in the public interest, in that the change of dates for compliance with the Director’s Order will not change any of the requirements of the Director’s Order except to allow for the Appellants to have slightly more time to undertake the steps they have already begun in order to clean up the Site.

16Counsel for the Director confirmed that compliance with most of the items included in the Director’s Order had already occurred, and noted that an adjustment to the compliance dates, such as those contained in the Work Schedule proposed by the Appellants, had been anticipated by the Director’s Order on page 4, where the Director said:

I have established the new compliance dates. It is understood however, that if a compliance date will be unachievable then the Orderees, at least seven days in advance, can request an extension to a compliance date by forwarding to the undersigned Director a request for extension, together with the reason therefor. Upon receipt of such a request I will amend the Director’s Order as may be appropriate.

17Mr. Chong, on behalf of the Estate of Lai Chew Chong, and agreed to by Ms. Lau on behalf of the Estate of Chiu Lam Lau, concurred with the submissions made by counsel for the Director, and submitted that the Appellants have always intended to comply with the Director’s Order and were in fact complying with it, but simply required more time.

18Responding to questions from Presenters Ms. Walton and Mr. Khadivi, the Director indicated that new orders could be issued in the future if necessary. Having asked clarifying questions of the Director and the Appellants, those Presenters did not object to the agreement between the Parties. Counsel for 1521851 Ontario Inc. stated that, if the Tribunal were to approve the settlement agreement as proposed, there would be no objection from her client.

19Having considered the Parties’ and the Presenters’ submissions, including the written correspondence of the Parties, the Tribunal is satisfied that the settlement agreement is consistent with the provisions and purpose of the EPA and is in the public interest. As a result, the Tribunal finds that the proceeding should be dismissed in accordance with Rule 201.

DECISION

20The Tribunal orders that:

a. Presenter status is granted to Valerie Walton, Vali Khadivi, and 1521851 Ontario Inc.; and

b. the Director is directed to replace the relevant compliance dates set out in Director’s Order No. 3567-AQRTT4-1 with the dates set out in the document of Fisher Environmental Ltd. dated July 5, 2018, attached to this Decision as Appendix 1.

21The Tribunal accepts the withdrawal of the appeals by the Appellants and dismisses the proceeding.

Requests for Presenter Status Granted

Director Directed to Amend Director’s Order

Appeals Withdrawn

Appeals Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

Appendix 1 – Fisher Environmental Ltd. document dated July 5, 2018 – “Work Schedule for Contaminant Delineation at 3761 Lakeshore Boulevard West, Etobicoke, Ontario”

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