Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 22, 2018
CASE NO.: 18-012
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Frank Benincasa (18-012)
Appellant: BioNorth Technology Real Estate Ltd. (18-013)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Provincial Officer’s Order to carry out various work with respect to a commercial site owned by BioNorth Technology Real Estate Ltd.
Reference No.: 5633-AV9NPS
Property Address/Description: Lot 21, 22, Concession 15
Municipality: Township of Papineau-Cameron
Upper Tier: District of Nipissing
ERT Case No.: 18-012
ERT Case Name: Benincasa v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
Parties
Counsel/Representative⁺
Frank Benincasa
Self-represented
BioNorth Technology Real Estate Ltd.
Frank Benincasa⁺
Director, Ministry of the Environment and Climate Change
Jessica Rosenberg
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND GRAHAM REMPE
REASONS
Background
1Provincial Officer’s Order No. 5633-AV9NPS (“Order”) was issued on March 14, 2018 against BioNorth Technology Real Estate Ltd. (“BioNorth”), Frank Benincasa, Ana Yudi Benincasa, Basil Punit and Edward P. Tsang. The Order was issued by Ministry of the Environment and Climate Change (“MOECC”) Provincial Officer Victoria Thomas, pursuant to s. 157 of the Environmental Protection Act (“EPA”).
2The Order required that the orderees retain a consultant to address financial assurance obligations and implement surface and groundwater monitoring, testing and reporting requirements relating to a BioNorth property on Lots 21 and 22, Concession 15, in the Township of Papineau-Cameron.
3On March 19, 2018, the Order was served on Mr. Benincasa in his personal capacity and as a director of BioNorth.
4On March 29, 2018, Mr. Benincasa filed a written notice with the Environmental Review Tribunal (“Tribunal”), requesting “a review of current and past reporting requirements”. Mr. Benincasa evidently considered this to be an appeal of the Order to the Tribunal. On April 3, 2018, Mr. Benincasa confirmed by email to the Tribunal that he was filing appeals for both himself and BioNorth. The Tribunal opened appeal files on behalf of Mr. Benincasa and BioNorth.
5By email dated April 11, 2018, Jessica Rosenberg, counsel for the Director, advised the Tribunal that it was the position of the Director that “the Tribunal is without jurisdiction to hear this matter, as the Ministry never received a request for review under s. 157.3 of the Environmental Protection Act. The Director, therefore, did not make an appealable decision under s. 140 of the Environmental Protection Act”. Ms. Rosenberg went on to request that the appeals be dismissed under Rule 119 of the Tribunal’s Rules of Practice (“Rules”).
6By email of April 12, 2018, Mr. Benincasa responded, contesting the Director’s position on the jurisdiction of the Tribunal.
7The Tribunal Case Coordinator, by letter of April 13, 2018 to the parties, reviewed Rule 119 regarding the dismissal of a proceeding without a hearing, and invited any final submissions before the Tribunal considered whether to dismiss the proceeding under Rule 119. Both the Director and Mr. Benincasa provided brief further submissions on April 23, 2018.
Issue
8The issue is whether these appeals should be dismissed without a hearing; specifically, whether these appeals relate to matters outside the jurisdiction of the Tribunal or whether some aspect of the statutory requirements for bringing the appeals has not been met.
Relevant Legislation and Rules
140 (1) A person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within fifteen days after service upon the person of a copy of the order, require a hearing by the Tribunal.
(2) No failure or refusal to issue, amend, vary or revoke an order is an order.
157.3 (1) A person to whom an order under section 157, 157.1 or 157.2 is directed may, within seven days after being served with a copy of the order, request that the Director review the order.
(2) The request may be made orally, with written confirmation served on the Director within the time specified in subsection (1), or in writing.
(3) A written request for review under subsection (1) or a written confirmation of an oral request under subsection (2) shall include,
(a) the portions of the order in respect of which the review is requested;
(b) any submissions that the applicant for the review wishes the Director to consider; and
(c) for the purpose of subsection (7), an address for service by mail or by electronic facsimile transmission or by such other means of service as the regulations may prescribe.
(8) If, within seven days of receiving a written request for review or a written confirmation of an oral request for review, the Director does not make a decision under subsection (5) and give oral or written notice of the decision to the person requesting the review, the order in respect of which the review is sought shall be deemed to have been confirmed by order of the Director.
Tribunal’s Rules
- The Tribunal may, on its own initiative, dismiss a proceeding without a Hearing if:
(a) the proceeding relates to matters outside the jurisdiction of the Tribunal; or
(b) some aspect of the statutory requirements for bringing the proceeding has not been met.
Discussion and Analysis
9Mr. Benincasa’s submissions of April 12, 2018 were largely based on his view of the impracticality or unreasonableness of the seven-day limitation on making a request for the Director to review a Provincial Officer’s order. Mr. Benincasa submitted that there was nothing in the EPA that made a request for review mandatory. In his later submissions of April 23, 2018, he indicated (for the first time) that he had tried to call the MOECC on March 19 and 20, 2018 and had left messages. Apparently, though, nothing was sent in writing to the Director until Mr. Benincasa sent an email on April 13, 2018, to which he said he received a response on April 23, 2018. Mr. Benincasa stated in his April 23rd submission that he found the EPA “confusing”. He also made the following statement in his April 23rd submission: “to allow 7 additional days for the director to respond and if there is no response in 7 days then it would only be fair that we be granted a tribunal hearing”. He asked to be granted a Tribunal hearing.
10The Director submitted that s. 157.3 of the EPA provides for the process to request a review of a Provincial Officer’s order, requiring that any such request be made within seven days of service and that the request be made in writing, or orally with written confirmation of the oral request to the Director. The Director pointed out that the Order itself, at pages 4-5, included instructions on how a request for a review could be made to a Director.
11The Director submitted that neither a written request, nor an oral request with written confirmation, for a review of the Order had been made within the seven-day limit. The Director understood that Mr. Benincasa may have tried calling the MOECC, but the MOECC had no record of such a phone call. The Director further submitted that, in any event, the Director received no written confirmation of any request for a review within the seven-day limit and, without a request, the Director never made a decision under s.157.3, nor was there deemed confirmation of the Order, and the Director therefore did not make a decision which could be appealed under s. 140 of the EPA. The Director stated that only those orders that are confirmed or deemed confirmed by order of the Director may be appealed to the Tribunal, and the statutory requirements for bringing a proceeding had not been met in this case.
Findings
12Appeals to the Tribunal are governed by specific statutory requirements. These requirements must be followed in order for the Tribunal to have jurisdiction over a matter.
13Mr. Benincasa and BioNorth seek to appeal the Order under s. 140 of the EPA. That section, however, provides only for an appeal from “an order of the Director”. It does not provide for an appeal from a Provincial Officer’s order. The Tribunal agrees with the Director’s submissions as to the interpretation of the s. 140 appeal right. That right arises only in relation to a Director’s order, and not a Provincial Officer’s order such as the Order in question here.
14A Provincial Officer’s order may be reviewed by a Director, if a review is properly requested under s. 157.3. That request must be in writing, and it must be made within seven days of service of the order. The EPA and the Order itself both clearly set out this procedure. Pages 4-5 of the Order reflect the requirements of s. 157.3 of the EPA, specifying that, if an orderee wished to have the Order reviewed by a Director (in this case, the Director of the MOECC’s Timmins District office), a written request was required within seven days of service of an order. In this case, the Order was served on March 19, 2018 and no written request for review by the Director was made within seven days of that date.
15If a review is properly requested, the Director may confirm or amend a Provincial Officer’s order by an order. It is only this order that may be appealed to the Tribunal. If the Director does not respond to a written request, a Director’s order is deemed to have been made seven days after the request. Such a deemed order is also subject to an appeal to the Tribunal.
16The Tribunal finds that, in this case, Mr. Benincasa and BioNorth made no written request (or oral request confirmed in writing) within seven days for a review of the Order by the Director, as required under s. 157.3 of the EPA. Therefore, there was no review undertaken by the Director. More significantly, there was no Director’s order (actual or deemed) which could be the subject of an appeal. Accordingly, the Tribunal has no jurisdiction over this proceeding.
17Mr. Benincasa’s submission that nothing in the EPA requires that a review be requested is correct. There is no obligation to seek a review; however, if an orderee elects not to seek a review within the time limit, it is not open to the orderee to subsequently appeal a Provincial Officer’s order directly to the Tribunal.
18Rule 119 of the Tribunal’s Rules allows the Tribunal to dismiss a proceeding without a hearing where the proceeding relates to matters outside the jurisdiction of the Tribunal or where some aspect of the statutory requirements for bringing the proceeding has not been met. In this case, the Tribunal finds that the statutory requirements in s. 157.3 of the EPA have not been met and, therefore, dismisses the proceeding without a hearing.
DECISION
19The Tribunal dismisses the appeals in accordance with Rule 119 of the Tribunal’s Rules.
Appeals Dismissed
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Graham Rempe”
GRAHAM REMPE
MEMBER
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