Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 9, 2018
CASE NO.: 16-110
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Matthew Posthumus (File No. 16-110)
Appellant: Agriculture Technology Incorporated (File No. 16-111)
Appellant: ARRRC International Inc. (File No. 16-112)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to submit an application for an environmental compliance approval for all air discharges and to perform various work at the site
Reference No.: 7215-AFDKW3-D
Property Address/Description: 329 County Road 34 E
Municipality: Town of Kingsville
Upper Tier: County of Essex
ERT Case No.: 16-110
ERT Case Name: Posthumus v. Ontario (Environment and Climate Change)
Heard: May 2, 2018 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Matthew Posthumus, Agriculture Technology Incorporated, and ARRRC International Inc. | John Georgakopoulos and Joanna Vince |
| Director, Ministry of the Environment and Climate Change | Justin Jacob, Rebecca Crangle and Hayley Valleau (Articling Student) |
DECISION DELIVERED BY JERRY V. DEMARCO AND WARREN MORRIS
REASONS
Background
1On November 29, 2016, Mike Moroney, Director with the Ministry of the Environment and Climate Change (“Ministry”) issued Director’s Order No. 7215-AFDKW3-D (“Director’s Order”) to Matthew Posthumus, Agriculture Technology Incorporated (“ATI”) and ARRRC International Inc. (“ARRRC”) (collectively, the “Appellants”). The Director’s Order relates to the processing of agricultural material by ATI at 329 County Road 34 E in the Town of Kingsville, County of Essex (“Site”). ARRRC is the registered owner of the Site. Mr. Posthumus is the Vice-President and Director of ATI, and the President and Director of ARRRC.
2The Appellants appealed the Director’s Order in its entirety to the Environmental Review Tribunal (“Tribunal”), primarily arguing that the Director lacked jurisdiction to issue the order. On January 19, 2017, on consent of the parties, the Tribunal issued an Order granting a stay of Item 3 of the Director’s Order (see: Posthumus v. Ontario (Environment and Climate Change), 2017 ONERT 3658).
3A Pre-hearing Conference (“PHC”) commenced on November 23, 2017 in Kingsville. At the PHC the parties informed the Tribunal that they were making progress on finalizing a proposed settlement. Some of the others in attendance at the PHC had indicated an interest in seeking status to participate in the proceeding. They did not object to the Tribunal adjourning the PHC in order to provide the parties more time to finalize the settlement, and adjourning the determination of any status requests by interested persons.
4The Tribunal scheduled the PHC to continue on January 22, 2018. The January 22, 2018 PHC was cancelled as the parties had not completed minutes of settlement (“MOS”). Throughout January and February 2018, the parties continued to advise the Tribunal, in writing, of settlement progress. Each time, the parties indicated that productive discussions had taken place and proposed further updates.
5On March 27, 2018, counsel for the Appellants informed the Tribunal in writing that the parties had reached an agreement on terms of settlement. In accordance with the Tribunal’s direction, the Director sent letters with the executed MOS to the interested persons in advance of the resumption the PHC by telephone conference call (“TCC”) on May 2, 2018.
6In addition to the parties and their counsel, several interested persons attended the PHC TCC on May 2, 2018, where the proposed settlement was considered by the Tribunal. At the conclusion of the PHC, the Tribunal accepted the proposed settlement for reasons to follow. These are the reasons for that decision.
Issue
7The issue is whether to accept the proposed MOS and dismiss the appeals pursuant to Rule 201 of the Tribunal’s Rules of Practice.
Relevant Rule
8Rule 201 outlines the steps the Tribunal must take in reviewing a settlement agreement:
- 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
9At the May 2, 2018 PHC, prior to hearing submissions from the parties, the Tribunal asked the interested persons whether they were seeking status to make submissions at the PHC, or whether they were listening in. Of the interested persons (which included the Town of Kingsville, the receiver for the two corporate appellants, counsel for the receiver, and several individuals) who participated in the May 2, 2018 PHC, all but two of them indicated that they were simply listening in to the proceedings. Bernhard Ladenthin and Garry Pozzo indicated that they had questions about the proposed settlement.
10Following submissions from the parties, Mr. Ladenthin and Mr. Pozzo on an appropriate manner to proceed with the settlement hearing, the Tribunal directed, on consent, that the interested persons pose their questions and then listen to the submissions of the parties, including answers from the parties to the questions posed by Mr. Ladenthin and Mr. Pozzo. The Tribunal would then permit the interested persons to indicate whether they wished to proceed with a request for status prior to the Tribunal making a decision on the proposed settlement or whether they were satisfied with the answers to their questions and thus not proceeding with status requests.
11Mr. Ladenthin had two questions: (1) he sought clarification for the definition of “Vine Materials”, in particular the meaning of “…associated fruit and vegetables…” as set out in paragraph 5(d) of the MOS, and (2) he questioned how the Director would ensure there are no adverse affects in the future. Mr. Pozzo’s question related to whether the MOS and the Director’s Order would apply to other entities operating on the Site. He sought confirmation that the Order would run with the land, regardless of the ownership, and not just apply to the named Appellants.
12Counsel for the Director, Justin Jacob, submitted the operations at the Site have changed and parts of the original Director’s Order are no longer relevant. He submitted that the proposed settlement was consistent with the purpose and provisions of the relevant legislation and in the public interest. He stated that the Director has not received any odour complaints since 2016. Mr. Jacob confirmed that no new vine material or associated matter, such as loose vegetables (including, for example, a truckload of cucumbers), can be brought to the Site. Item 6 of the MOS provides a clear procedure that must be followed should the Appellant wish to receive vine materials. The amended Director’s Order obliges the Appellant to ensure that there are no adverse effects and preserves the authority of the Director to continue to regulate the Site. Mr. Jacob stated that the Ministry has the usual enforcement tools at its disposal. Mr. Jacob further stated that future owners of the Site would be bound by the amended Director’s Order since they would be considered a “successor or assignee of the person” to whom the Order was directed, as set out in s. 19(1) of the Environmental Protection Act (“EPA”).
13Counsel for the Appellants, John Georgakopoulos, submitted that the withdrawal of the appeals and the acceptance of the MOS are in the public interest since the MOS ensure that there will be no adverse effects from odours. Mr. Georgakopoulos stated that the parties worked to ensure there are no adverse effects, which is consistent with the purpose and provisions of the relevant legislation.
14After hearing the submissions of the parties, Mr. Ladenthin and Mr. Pozzo confirmed that they were satisfied their questions had been answered and they were not seeking status.
15The parties agree that the appeal should be resolved in accordance with the attached MOS. There are no other parties, participants or presenters. The parties submit that the MOS are in the public interest because they reflect a cooperative effort to improve the terms and conditions of the Director’s Order, to the benefit of the parties and the public. This removes the need for a hearing of the appeal, saving the parties’ and the Tribunal’s resources. The parties commendably responded to the interested persons’ concerns and answered their questions in the course of their submissions.
16The Tribunal is satisfied that the amended Director’s Order would be binding on successors and assignees by virtue of s. 19(1) of the EPA. Based on the contents of the proposed settlement, the parties’ submissions, and the applicable legislation (including s. 19(1) of the EPA), the Tribunal finds that the MOS are consistent with the purposes and provisions of the applicable legislation and are in the public interest in accordance with Rule 201.
DECISION
17The Tribunal accepts the withdrawal of the appeals and dismisses the appeals under Rule 201.
18The Tribunal directs the Director to issue an Amended Order pursuant to the Minutes of Settlement, which are attached as Appendix 1 to this decision.
Appeals Withdrawn
Appeals Dismissed
Director Directed to Amend Order
“Jerry V. DeMarco”
JERRY V. DEMARCO
EXECUTIVE CHAIR
“Warren Morris”
WARREN mORRIS
MEMBER
Appendix 1 – Minutes of Settlement
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
Appendix 1
Minutes of Settlement