Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality), 2018 CanLII 4431

Tribunal de l’environnement

January 31, 2018

17-032

PROCEEDING COMMENCED UNDER section 101.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant:

Nipissing-Parry Sound Catholic District School Board

Respondent:

Corporation of the Municipality of East Ferris

Subject of appeal:

Order to pay in relation to the clean-up of a spill

Property Address/Description:

1990 Corbeil Road

Municipality:

Municipality of East Ferris

Upper Tier:

Nipissing District

ERT Case No.:

17-032

ERT Case Name:

Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)

Heard:

October 17, 2017, January 8, 2018 and January 22, 2018 by telephone conference call

Parties

Counsel

Nipissing-Parry Sound Catholic District School Board

F.F. (Rick) Coburn

Corporation of the Municipality of East Ferris

David N. Germain

REASONS

Background

1This Order provides reasons for the granting of the parties’ request to adjourn this proceeding.

2On April 10, 2017, the Corporation of the Municipality of East Ferris (“East Ferris”) served an order (“Municipal Order”) on the Nipissing-Parry Sound Catholic District School Board (“School Board”) directing the School Board to pay $622,983.83 to East Ferris in relation to a spill and escape of heating oil from underground storage tanks located at the former St. Theresa School at 1990 Corbeil Road, East Ferris (“Site”). The Municipal Order was issued pursuant to s. 100.1 of the Environmental Protection Act (“EPA”).

3The School Board filed a notice of appeal with the Environmental Review Tribunal (“Tribunal”) on April 25, 2017 seeking revocation of the Municipal Order on various grounds. The Tribunal held a Pre-hearing Conference (“PHC”) on August 21, 2017. In an order issued September 11, 2017, the Tribunal agreed to conduct the Hearing in two phases and adjourned the PHC to a telephone conference call (“TCC”) on October 17, 2017 to discuss matters relating to Phase 1 of the Hearing.

4A TCC was held on October 17, 2017. At that time, procedural directions for disclosure and development of a common issues list were given, hearing dates were established and continuation of the PHC to another TCC on January 8, 2018 was directed.

5At the continuation of the PHC on January 8, 2018, the parties informed the Tribunal that the Ministry of the Environment and Climate Change (“MOECC”) had indicated that it was considering the issuance of a Director’s order against both of them with respect to remediation of the Site resulting from the same spill that is at issue in this proceeding. The parties were scheduled to discuss the matter again with the MOECC on January 17, 2018 and requested that the PHC be continued following that discussion, at which time they would report to the Tribunal on the status of any order and the implications for this proceeding. Mr. Coburn on behalf of the School Board also indicated his intention to bring a motion challenging the qualifications of East Ferris’ expert witness. The Tribunal directed that both matters be heard in person on January 22, 2018 and confirmed a schedule for the exchange of motion materials and for the exchange and filing of witness statements and documents to be relied on in the main Hearing. Subsequently, Mr. Coburn notified the Tribunal that the School Board did not intend to proceed with the motion and a TCC was held instead.

6During the TCC on January 22, 2018, the parties reported on their discussions with the MOECC regarding the proposed Director’s order and its timing. The parties advised the Tribunal that the MOECC had decided to issue, within the next several weeks, a Director’s order against them. The parties jointly requested an adjournment of this proceeding in anticipation that they would seek to consolidate or coordinate this matter with any appeals filed with the Tribunal in relation to the MOECC Director’s order. The Tribunal granted the request to adjourn the proceeding.

Issue

7The issue is whether to adjourn this proceeding.

Relevant Rules

8Adjournments are addressed in Rules 104 and 105 of the Tribunal’s Rules of Practice (“Rules”):

Motions for Adjournment

A Party seeking an adjournment shall provide evidence and submissions in support of the motion respecting:

(a) whether the other Parties consent to the request and the date suggested for the commencement or continuation of the Hearing;

(b) detailed reasons for the request, including, if appropriate, affidavit evidence;

(d) any urgency for the request because of the public interest;

(e) any inconvenience to other Parties, Participants and Presenters due to the adjournment; and

(f) any other factors relating to the considerations listed in Rule 105.

In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

Discussion, Analysis and Findings

9When deciding whether to grant a request for an adjournment, the Tribunal may consider the matters in Rule 105. The parties made similar submissions with respect to relevant matters under Rule 105.

10The parties seek an adjournment until the matter of the MOECC Director’s order is determined. They noted that, during their discussions on January 17, 2018, the MOECC confirmed it will issue a Director’s order and will provide them with a draft order by the end of January 2018, followed by two weeks for them to respond to the draft order before it goes through the required procedures for issuance. The parties anticipate that one or both of them will appeal such an order to the Tribunal. They stated that, if there are appeals, the issues and evidence will overlap with the issues and evidence that will be presented in this proceeding and the parties may seek to combine those appeals with this proceeding or have the Tribunal hear the proceedings at the same time. They submitted that waiting until these issues are known would be a cost-effective and efficient way to proceed. They expect these issues will be known by early April of 2018.

11The parties also noted that they both consent to the adjournment, that there are no other persons who would be affected and no participants or presenters in this proceeding. They also submitted that an adjournment would not cause or contribute to any existing or potential risk of environmental harm because remedial work is ongoing at the Site, which is anticipated to be addressed in the MOECC Director’s order.

12The Tribunal granted the parties’ request and ordered that the proceeding be adjourned to a TCC to be held on April 12, 2018 at 9 a.m. The Tribunal agrees that a short adjournment is appropriate to allow a period in which to sort out whether the MOECC will issue a Director’s order, the content of such an order, whether one or both of the parties will appeal, and the implications of any appeal for this proceeding. Both parties consent to the adjournment and there are no participants or presenters who will be inconvenienced or adversely affected. An adjournment will not interfere with the ability of the Tribunal to deliver its services in a just, timely and cost-effective manner. The Municipal Order at issue in this proceeding relates only to the recovery of East Ferris’ costs, which is stayed automatically under s. 100.1(12) of the EPA, and not to an environmental clean-up order. Thus, there is no reason to believe that an adjournment will cause or contribute to any existing or potential risk of environmental harm.

ORDER

13The Tribunal orders that the proceeding be adjourned to a TCC to be held on April 12, 2018 at 9 a.m. At that time, the parties will advise the Tribunal on the status of the MOECC Director’s order and whether they intend to appeal that order, and the Tribunal will determine matters related to the continuation of this proceeding.

14The Tribunal further orders that the procedural directions previously given regarding scheduling of the exchange and filing of witness statements and documents, and the scheduling of hearing dates are vacated.

Adjournment Granted

Procedural Directions Ordered

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

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Environmental Review Tribunal

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