Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 04, 2018
CASE NO.: 17-060
PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended;
Appellant: David Elstone
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Refusal of an Environmental Compliance Approval application for a Hauled Sewage Disposal Site and to amend an existing Environmental Compliance Approval’s expiry date
Reference No.: SI HL AH 09 15 001
Property Address/Description: 10538 ON-118 Highway, Lot 26, Concession 3
Municipality: Township of Algonquin Highlands
Upper Tier: County of Haliburton
ERT Case No.: 17-060
ERT Case Name: Elstone v. Ontario (Environment and Climate Change)
Heard: March 6 and 16, 2018 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
David Elstone
Kelly Gravelle
Director, Ministry of the Environment and Climate Change
Jessica Rosenberg and Wendy Nigh (student-at-law)
Township of Algonquin Highlands
John Ewart and Jessica Chapman (student-at-law)
Participants
Maple, Beech and Cameron Lakes Area Property Owners’ Association
Charlie O’Connor+ and Andy Muirhead+
Murray Adam
Self-represented
Bill Missen
Self-represented
ORDER DELIVERED BY JUSTIN DUNCAN AND HELEN JACKSON
REASONS
Background
1On September 21, 2017, the Director of the Ministry of the Environment and Climate Change (“MOECC”) refused a request by David Elstone (“Appellant”), owner of Haliburton Septic Pumping, to issue an Environmental Compliance Approval (“ECA”) for a Hauled Sewage Disposal Site located at 10538 ON-118 Highway, Township of Algonquin Highlands, Lot 26, Concession 3, County of Haliburton (“Site”), pursuant to s. 20.3 of the Environmental Protection Act (“EPA”). As part of the decision, the Director amended an existing ECA #SI HL AH 09 15 001 (“original ECA”) to extend the expiry date from September 30, 2017 to November 30, 2017.
2On October 4, 2017, the Appellant appealed the decision of the Director to the Environmental Review Tribunal (“Tribunal”), under s. 139(1)(c) of the EPA.
3On January 17, 2018, a Pre-hearing Conference (“PHC”) was held in Algonquin Highlands, Ontario. At that PHC, the Parties provided an overview of their positions on the appeal; Party status was granted to the Township of Algonquin Highlands (“Township”) and Participant status was granted to those noted above in the appearances section. At the PHC, the Appellant indicated that time was of the essence as, should his appeal be successful, he wished to be ready to resume his operation on May 1, 2018 as that is the start of the sewage spreading season.
4The Parties indicated that they were amenable to Tribunal-assisted mediation on the appeal, but further indicated that they wished that the process for the preparation for a hearing not be suspended for mediation. As such, the Parties jointly requested that dates be set for a hearing and for mediation so that the two processes could be conducted in parallel.
5The Tribunal’s Order issued February 8, 2018 provided the overview and reasons for granting status in this matter; set the dates for disclosure and filing of witness statements necessary to proceed to a hearing; set a five-day hearing; and scheduled a telephone conference call (“TCC”) for March 6, 2018 to provide the Tribunal with an update on the mediation and the issues to be resolved at the hearing. The Parties were directed to consult the Case Coordinator to set a date for the mediation.
6At the TCC held on March 6, 2018, the Tribunal was advised that the mediation was productive and that the Parties wished to continue their discussions with a view to settling the matter. At the request of the Parties, the Tribunal vacated filing dates set in the February 8, 2018 Order in order to allow the Parties time to focus on their settlement discussions. A further TCC was scheduled for March 16, 2018 in order for the Parties to provide an update as to whether they had reached a settlement and to determine dates for any filings that will become necessary.
7At the March 16, 2018 TCC, the Tribunal was advised that the Parties expected to reach a settlement agreeable to all the Parties. The Director indicated that the Parties agreed that the tentative settlement should be provided to the Participants in order that the Participants understand the terms of the settlement. The MOECC committed to arranging a meeting with the Participants in late March with the purpose of explaining the settlement, and to obtain comments from the Participants prior to the Parties signing the settlement agreement.
8With the view that the Parties expect to execute a settlement agreement shortly, the Parties requested that the Tribunal retain one of the five hearing days to hear evidence from the Parties in support of the settlement, and any evidence and submissions from the Participants. April 13, 2018 was retained as the one hearing day in this matter and the remaining hearing dates were vacated. The Appellant requested that this one-day hearing be held at a location in Peterborough in order to reduce costs of travel for legal counsel and any experts. On the basis of a previous direction given by the Tribunal that at least one hearing day would be held in Algonquin Highlands and on the basis of a request for accommodation received from an individual involved in the appeal, the Tribunal directed that the hearing will be held in Algonquin Highlands. The Tribunal directed that the start time on Friday, April 13 will be 10:30 a.m. The hearing will take place at:
Stanhope Firefighters' Community Hall 1095 North Shore Road Algonquin Highlands, ON K0M 1J1
9The purpose of the April 13, 2018 appearance before the Tribunal will be for the Parties to present any evidence and submissions in support of the settlement they have reached and for the Participants to provide any evidence and submissions they may have in relation to the proposed settlement. As mentioned by counsel for the Director during the TCC, it appears that Rule 201 of the Tribunal’s Rules of Practice applies as follows:
- 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.
10In preparation for April 13, 2018, and at the request of the Parties, the Tribunal directed that the Appellant, the Director and the Township are to serve and file any materials they intend to rely on in support of the settlement by April 6, 2018.
11The Tribunal also directed that the Participants are to file any witness statements and the documents they intend to rely on at the hearing by April 10, 2018.
12Should the Parties require a TCC prior to the hearing, they are directed to make arrangements through the Tribunal’s Case Coordinator.
ORDER
13The Tribunal directs that the hearing be conducted in accordance with the following schedule, as may be varied by agreement of the Parties, and confirmed by the Tribunal:
April 6, 2018
The Director, the Township, and the Appellant are to serve and file any material in support of the settlement
April 10, 2018
The Participants are to serve and file witness statements and documents to be relied on at the hearing
April 13, 2018
A one-day hearing of the appeal
Procedural Directions Ordered
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
“Helen Jackson”
HELEN JACKSON
MEMBER
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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