Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 18, 2018
CASE NO.: 17-073
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Northwood Recycling & Energy Inc. (Receiver of)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to carry out various work with respect to a Waste Disposal/Transfer Site
Reference No.: 6573-ASRK9Y-1
Property Address/Description: 1515 Thornton Road North
Municipality: City of Oshawa
Upper Tier: Regional Municipality of Durham
ERT Case No.: 17-073
ERT Case Name: Northwood Recycling and Energy Inc. (Receiver of) v. Ontario (Environment and Climate Change)
Heard: April 27, 2018 in Whitby, Ontario
APPEARANCES:
Parties
Counsel/Representative+
Northwood Recycling & Energy Inc. (Receiver of)
John Georgakopoulos and Matthew Gardner
Director, Ministry of the Environment and Climate Change
Nadine Harris, Steven Succi and Hayley Valleau (Student)
Participants
Corporation of the City of Oshawa
Carlton Thorne
Ummah Foundation of Durham
Muhammad Mansoor+
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARCIA VALIANTE
REASONS
Background
1On November 17, 2017, Celeste Dugas, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Order No. 6573-ASRK9Y-1 (“Director’s Order”) under s. 157.3(5) of the Environmental Protection Act (“EPA”) to Northwood Recycling & Energy Inc. (“Northwood”). The Director’s Order, which relates to work ordered at a waste disposal/transfer site at 1515 Thornton Road North (“Northwood Facility”), in the City of Oshawa (“City”), altered and confirmed Provincial Officer’s Order No. 6573-ASRK9Y, issued November 3, 2017.
2On December 1, 2017, Rosen Goldberg Inc., the Receiver for Northwood (“Appellant”), filed a notice of appeal of the Director’s Order with the Environmental Review Tribunal (“Tribunal”). The Appellant was appointed a receiver of certain assets, including the Northwood Facility, pursuant to the Order of The Honourable Justice Penny of the Ontario Superior Court of Justice, dated October 19, 2015 (“Court Order”). The notice of appeal states that the Appellant filed this appeal to reserve its rights, notwithstanding its position that the Director’s Order is a nullity and stayed by the Court Order, and its position that the Tribunal cannot exercise jurisdiction over this appeal unless the Director moves for and receives an order from the Court that lifts the stay.
3The Tribunal held a Pre-hearing Conference (“PHC”) on April 27, 2018 in Whitby, Ontario. The following counsel appeared for the parties at the PHC: counsel for the Appellant, John Georgakopoulos and Matthew Gardner; and counsel for the Director, Nadine Harris, Steven Succi and Hayley Valleau, articling student. The following individuals also attended the PHC to seek Participant status: Carlton Thorne, counsel for the City; and Muhammad Mansoor, representing the Ummah Foundation of Durham (“Ummah Foundation”). These status requests are dealt with below. The parties also requested, on consent, to continue the PHC at a later date to provide the parties with an opportunity to attempt to resolve this matter.
Issues
4The issues are:
Whether the Tribunal should grant Participant status to the City and the Ummah Foundation; and
Whether the Tribunal should grant a joint request by the parties to continue the PHC.
Relevant Legislation and Rules
5The relevant provisions of the Tribunal’s Rules of Practice (“Tribunal Rules”) are as follows:
Naming of a Party
- In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:
(a) a person's interests may be directly and substantially affected by the Hearing or its result;
(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and
(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.
Naming of a Participant
- The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, 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 would be. A person who may otherwise qualify as a Party may request Participant status.
Discussion, Analysis and Findings
Issue No. 1: Whether the Tribunal should grant Participant status to the City and the Ummah Foundation
6Mr. Thorne stated that the City was requesting Participant status in order to provide the Tribunal with evidence from a City by-law enforcement officer about numerous complaints received regarding odour, debris and other issues at the Northwood Facility, and about the City’s related enforcement activities.
7Mr. Mansoor is a Director of the Ummah Foundation, which is an incorporated nonprofit religious organization serving the Muslim community in north Oshawa. The Ummah Foundation is located just south of the Northwood Facility. Mr. Mansoor raised a number of concerns about the Northwood Facility, relating to odour, airborne dust and debris, and soil contamination.
8Neither the Appellant nor the Director objected to the City and the Ummah Foundation receiving Participant status.
9Rule 66 of the Tribunal Rules provides for the naming of Participants in a proceeding where they would otherwise qualify as Parties under Rule 63, or where their connection to the subject matter is more remote than a Party’s would be. The Tribunal was satisfied that the City and the Ummah Foundation both met the requirements to be participants, and granted Participant status as requested.
Issue No. 2: Whether the Tribunal should grant a joint request by the parties to continue the PHC
10Mr. Gardner advised that the Appellant had filed a motion with the court respecting the jurisdictional issue, that the parties had exchanged motion materials, but that the motion had been adjourned sine die to allow for settlement discussions between the parties. The parties jointly requested that the Tribunal set a date for a continuation of the PHC to provide time for additional discussions about a possible resolution of this matter. Ms. Harris undertook to keep the participants apprised of any progress in the settlement discussions.
11The Tribunal agreed that, in the circumstances, an adjournment of the PHC is warranted to permit discussions among the parties to continue, to see if the issues in the appeal can be resolved. An adjournment of the PHC for several weeks will not interfere with the ability of the Tribunal to deliver its services in a timely way. Therefore, the Tribunal scheduled a continuation of the PHC by telephone conference call (“TCC”), as set out in the Order below. If by then the parties have resolved the issues in the appeal, the PHC can be converted into a settlement hearing. Otherwise, the Tribunal expects the parties to be prepared to schedule the hearing, and the steps leading to the hearing, at that time.
ORDER
12The Tribunal orders that:
a. Participant status is granted to the City and the Ummah Foundation.
b. A continuation of the PHC shall be held on June 18, 2018, at 10 a.m. by TCC.
Requests for Participant Status Granted
Continuation of Pre-hearing Conference Scheduled
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Marcia Valiante”
MARCIA VALIANTE
VICE-CHAIR
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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