Leeds and Grenville (United Counties) v. Ontario (Environment and Climate Change), 2018 CanLII 32181

Environmental Review Tribunal / Tribunal de l’environnement

ISSUE DATE: April 12, 2018

CASE NO.: 17-072

PROCEEDING COMMENCED UNDER section 139(1)(e) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Corporation of the United Counties of Leeds and Grenville

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Notice of Suspension of conditions with respect to an Environmental Compliance Approval for the use and operation of a waste disposal site

Reference No.: A420009

Property Address/Description: Lots 14 and 15, Concession 4

Municipality: Township of Edwardsburgh/Cardinal

Upper Tier: United Counties of Leeds and Grenville

ERT Case No.: 17-072

ERT Case Name: Leeds and Grenville (United Counties) v. Ontario (Environment and Climate Change)

Heard: March 12, 2018 in Brockville, Ontario

APPEARANCES:

Parties Counsel/Representative+

Corporation of the United Counties of Leeds and Grenville Matt Benson and Tony Fleming

Director, Ministry of the Environment and Climate Change Paul McCulloch

Citizens Against the ED19 Dump Richard D. Lindgren and Jessica Karban (student-at-law)

Participant

Shawn Carmichael Self-represented

Presenters

1364269 Ontario Limited Phil Parent+

Clare Kinlin Self-represented

Township of Edwardsburgh/Cardinal Stephen F. Ault

Adrian Wynands Self-represented

ORDER DELIVERED BY JERRY V. DEMARCO

REASONS

Background

1This order arises from the Pre-hearing Conference (“PHC”) regarding an appeal by the Corporation of the United Counties of Leeds and Grenville (“Appellant”) against a Notice of Suspension of conditions for an Environmental Compliance Approval for a waste disposal site. The Notice of Suspension was issued by the Director, Ministry of the Environment and Climate Change on November 9, 2017, and was appealed by the Appellant to the Environmental Review Tribunal (“Tribunal”) on November 24, 2017. The suspended conditions relate to the construction and operation of the waste disposal site.

2The main matters that were addressed at the PHC were: 1) requests for status to participate, and 2) scheduling a preliminary motion to be brought by the Appellant.

Analysis and Findings

i) Status Requests

3Several requests for status were addressed at the PHC. Following discussions among the requesters and the parties, all but one request were resolved on consent. Having satisfied itself that the requesters met the relevant criteria in Rules 63, 66 and 69 of the Tribunal’s Rules of Practice, the Tribunal granted Participant status to Shawn Carmichael and Presenter status to 1364269 Ontario Limited (operating as KOA campground), Clare Kinlin, the Township of Edwardsburgh/Cardinal and Adrian Wynands. Mr. Carmichael and Mr. Wynands were given status to participate as individuals because the groups they seek to represent are not incorporated. In the case of Mr. Carmichael, his participation is understood to be on behalf of an unincorporated organization known as the Ontario Landowners Association, and for Mr. Wynands, his participation is understood to be on behalf of an unincorporated organization known as the Grenville Federation of Agriculture. The participant and presenters all must confine their participation to the matters that are within the scope of the appeal before the Tribunal. Some of those who sought status indicated an interest in participating in the preliminary motion to be brought by the Appellant. The Tribunal permits them to do so should they wish.

4Only one aspect of one status request was contested at the PHC. The incorporated organization known as Citizens Against the ED19 Dump (“Citizens”) sought full party status throughout the proceeding. The Appellant consented to the Citizens being granted party status in the main hearing, and participant status (but not party status) in the one-day hearing of a preliminary motion to be brought by the Appellant. The only question, therefore, was whether the Citizens would have participant status or party status for the motion. At the PHC, the Tribunal reserved its decision in that regard, but indicated that the Citizens would have participant status for the motion at a minimum. For the reasons set out below, the Tribunal has now determined that the Citizens shall be granted party status for the proceeding as a whole, including the preliminary motion.

5At the PHC, the Appellant acknowledged the Citizens’ interest in the proceeding but expressed a concern that the granting of party status for the motion would make the Citizens subject to the Tribunal’s costs rules such that the Citizens could potentially seek costs or be liable for costs in the motion. The Citizens emphasized that they have the requisite interest to be granted status and that the costs issue was not a major factor to consider given that the relevant Tribunal Rules restrict costs awards to various types of improper conduct.

6The Appellant’s upcoming motion will look at the interplay of the Environmental Assessment Act (“EAA”) (which confers wide discretion on the Tribunal in terms of costs awards) and the Environmental Protection Act (“EPA”) (which confers narrow discretion for costs). Nevertheless, the appeal itself was brought under the EPA. Therefore, the narrow costs rules will apply. So long as the parties do not engage in improper conduct in the motion, then no costs will be awarded in the motion. As noted by the Citizens, costs awards by the Tribunal in respect of proceedings to which the narrow costs jurisdiction applies are exceedingly rare. The Tribunal fully expects all parties to conduct themselves reasonably in the motion. The Tribunal finds that this satisfactorily addresses the Appellant’s concerns about the Citizens being granted party status in the motion. Given that the Citizens’ interest in the proceeding and history of involvement in the steps leading up to the issuance of the Notice of Suspension are not contested, the Tribunal is satisfied that the Citizens meet one or more of the criteria set out in Rule 63. Therefore, the Citizens are granted party status for the proceeding as a whole.

ii) Scheduling of Preliminary Motion

7The Appellant has not yet provided its Notice of Motion for the preliminary question it seeks to raise. Nevertheless, the Appellant was able to provide a general summary of the question for the motion based on some of the grounds set out in its Notice of Appeal. The Tribunal understands that the motion will seek an answer to a question about whether the Director had the authority to issue the Notice of Suspension under the EPA given past approval for the waste disposal site under the EAA. The Appellant will provide further details in its upcoming motion. At the PHC, the parties appeared to differ on whether the question to be posed was a pure question of law or jurisdiction. The Tribunal clarified that, regardless of the answer to that question, the Appellant was entitled to bring its motion and that preliminary motions before the Tribunal do not have to be restricted to pure questions of law anyway. If the Tribunal feels that it can and should answer the question in the motion based on the materials that are filed, then it will dispose of the motion as a preliminary question as requested by the Appellant. If not, it may be dealt with in conjunction with the main hearing.

8As requested, the Tribunal will set aside one day for argument on the motion. At the motion, any party, participant or presenter may argue that the motion should be granted or denied based on the materials filed. It is also open to any party, participant or presenter to argue that the motion should be adjourned to the main hearing because there is insufficient evidence to dispose of the motion as a preliminary question. Based on the limited information presently available, it would be premature for the Tribunal to determine now whether the Appellant’s question can be properly answered in a preliminary motion.

9Following direction from the Tribunal at the PHC, the parties agreed to the schedule for the motion as set out in the Order below.

ORDER

10The Tribunal grants party status to Citizens Against the ED19 Dump, participant status to Shawn Carmichael and presenter status to 1364269 Ontario Limited, Clare Kinlin, the Township of Edwardsburgh/Cardinal and Adrian Wynands. All of them shall confine their participation to matters within the scope of the appeal.

11The following deadlines shall apply to the preliminary motion being brought by the Appellant:

1. The Appellant shall serve and file its Notice of Motion, including basic facts in support of the motion, by April 16, 2018;

2. The Appellant shall serve and file all affidavit evidence for the motion by April 30, 2018;

3. The responding parties shall serve and file all affidavit evidence for the motion by May 14, 2018 (should any participant and presenter also wish to file evidence for the motion, then the May 14, 2018, deadline will also apply);

4. Any cross-examination of affidavits shall be undertaken by the parties only and shall take place in the week of May 22, 2018;

5. All parties and any participant and presenter wishing to participate in the motion shall serve and file written argument (i.e., facta) by June 15, 2018;

6. The preliminary motion will be heard on Monday, June 25, 2018 at 10 a.m.:

Council Chambers 1 King Street West, Brockville, ON K6V 7A5

7. The PHC is adjourned to a date to be determined after the hearing of the preliminary motion.

Requests for Status Granted

Procedural Directions Ordered

Pre-hearing Conference Adjourned

“Jerry V. DeMarco”

JERRY V. DEMARCO EXECUTIVE CHAIR

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