Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 24, 2018
CASE NO.: 17-040
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Steven Monaghan (File No. 17-040)
Appellant: Ajax Auto Recyclers Ltd. (File No. 17-041)
Appellant: Ajax Recycling Depot Ltd. (File No. 17-042)
Appellant: Ajax Auto Wreckers (2003) Inc. (File No. 17-043)
Respondent: Corporation of the Town of Ajax
Subject of appeal: Order to pay costs and expenses in relation to the clean-up of a spill
Property Address/Description: 140-16 Dowty Road
Municipality: Town of Ajax
Upper Tier: Regional Municipality of Durham
ERT Case No.: 17-040
ERT Case Name: Monaghan v. Ajax (Town)
Heard: April 16 and May 8, 2018 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Ajax Auto Recyclers Ltd., Ajax Recycling Depot Ltd., Ajax Auto Wreckers (2003) Inc., and Steven Monaghan | Talia Gordner |
| Corporation of the Town of Ajax | Cameron Murkar |
ORDER DELIVERED BY JUSTIN DUNCAN, GRAHAM REMPE AND MARCIA VALIANTE
REASONS
Background
1On May 29, 2017, the Corporation of the Town of Ajax (“Town” ) issued an order pursuant to s. 100.1 of the Environmental Protection Act to Ajax Auto Recyclers Ltd., Ajax Recycling Depot Ltd., Ajax Auto Wreckers (2003) Inc., and Steven Monaghan (“Appellants”) directing them to pay $264,514.14 to the Town in relation to costs and expenses incurred by it in containing, cleaning and monitoring oily contamination found in a municipal storm channel at Westney Road and Fairall Street (“Order”).
2The Appellants filed a notice of appeal with the Environmental Review Tribunal (“Tribunal”) on June 12, 2017 seeking that the Order be set aside on various grounds.
3The Town has also filed a civil claim in the Superior Court of Justice (“Superior Court”) against the Appellants in relation to the contamination. Charges have also been filed against the Appellants under the Town’s sewer-use by-law.
4The Tribunal held a Pre-hearing Conference (“PHC”) on September 13, 2017 and continued the PHC by telephone conference call (“TCC”) on October 4 and 23, 2017. During these PHC appearances, the parties raised the issue as to the appropriate order in which the three proceedings should be heard. The parties jointly requested an adjournment of this proceeding so that the Appellants could bring a motion before the Superior Court to address this issue.
5In an order dated November 17, 2017, the Tribunal granted the parties’ request to adjourn the appeal. In that Order, the Tribunal stated at paras. 12 and 16:
[12] The only factor militating against an adjournment in these circumstances is the possible impact of the adjournment on the integrity of the Tribunal’s process and the public interest in the delivery of the Tribunal’s services in a just, timely and cost-effective manner...
[16] Nevertheless, despite this concern, the Tribunal finds that, on balance, an adjournment to permit the Appellants to bring their motion in the Superior Court is appropriate in the circumstances. Refusing the adjournment would not address the concern discussed above and the court may provide guidance on the matter. There is no evidence of environmental harm resulting, the parties consent, and no other parties are affected.
6The appeal was adjourned to a TCC scheduled on February 8, 2018 to follow the hearing of the motion before the Superior Court. The Appellants’ motion in the Superior Court, seeking a stay of the civil proceeding and a stay of this appeal pending the resolution of the by-law prosecutions, was heard on January 31, 2018.
7During the February 8, 2018 TCC, the parties advised the Tribunal that Justice Salmers of the Superior Court had reserved his decision on the motion and had advised that a decision would most likely not be rendered until late March or early April. During the TCC, for the same reasons as those set out in the Tribunal’s November 17, 2017 Order, the Tribunal continued the adjournment to a further TCC to be held on April 16, 2018.
8Justice Salmers released his Endorsement on April 13, 2018. He ordered that the action in the Superior Court be temporarily stayed and that the request to stay the Tribunal proceeding be dismissed. During the TCC held on April 16, 2018, Talia Gordner, counsel for the Appellants, requested a two-week adjournment in order to seek instructions about whether to apply for leave to appeal Justice Salmers’ order. Cameron Murkar, counsel for the Town, consented and the Tribunal scheduled a further TCC for May 8, 2018.
9On May 8, 2018, during the TCC, Ms. Gordner advised the Tribunal that the Appellants have filed a notice of motion for leave to appeal Justice Salmers’ order in the Divisional Court. She requested a further adjournment pending the resolution of that motion. Ms. Gordner advised that she expected a decision on the motion by mid-August.
10Mr. Murkar consented to the adjournment. The parties relied on their earlier submissions with respect to the considerations relevant to adjournments in Rules 104 and 105 of the Tribunal’s Rules of Practice. For the same reasons as those set out in the Tribunal’s November 17, 2017 Order, the Tribunal granted the adjournment to a further TCC to be held on August 23, 2018.
ORDER
11The Tribunal orders:
a. The appeal is adjourned to August 23, 2018;
b. The parties shall appear at a TCC on August 23, 2018 at 11 a.m.;
c. Should the Appellants’ motion for leave to appeal in the Divisional Court be determined prior to August 23, 2018, the Appellants shall notify the Tribunal forthwith and shall seek direction with respect to the continuation of this proceeding; and
d. Should the Appellants’ motion for leave to appeal in the Divisional Court not be determined by August 22, 2018, the Appellants shall contact the Tribunal and seek direction with respect to the continuation of this proceeding.
Adjournment Granted
Procedural Directions Ordered
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
“Graham Rempe”
GRAHAM REMPE
MEMBER
“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