Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: February 8, 2018

CASE NO.: 17-060

PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended;

Appellant: David Elstone

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Refusal of an Environmental Compliance Approval application for a Hauled Sewage Disposal Site and to amend an existing Environmental Compliance Approval’s expiry date

Reference No.: SI HL AH 09 15 001

Property Address/Description: 10538 ON-118 Highway, Lot 26, Concession 3

Municipality: Township of Algonquin Highlands

Upper Tier: County of Haliburton

ERT Case No.: 17-060

ERT Case Name: Elstone v. Ontario (Environment and Climate Change)

Heard: January 17, 2018 in Algonquin Highlands, Ontario

APPEARANCES:

Parties	Counsel/Representative+
David Elstone	Self-represented
Director, Ministry of the Environment and Climate Change	Jessica Rosenberg and Paul McCulloch
Township of Algonquin Highlands	John Ewart and Jessica Chapman (student-at-law)

Participants	Counsel/Representative+
Maple, Beech and Cameron Lakes Area Property Owners’ Association	Andy Muirhead+
Murray Adam	Self-represented
Bill Missen	Self-represented

ORDER DELIVERED BY JUSTIN DUNCAN AND HELEN JACKSON

REASONS

Background

1On September 21, 2017, the Director of the Ministry of the Environment and Climate Change (“MOECC”) refused a request by David Elstone (“Appellant”), owner of Haliburton Septic Pumping, to issue an Environmental Compliance Approval (“ECA”) for a Hauled Sewage Disposal Site located at 10538 ON-118 Highway, Township of Algonquin Highlands, Lot 26, Concession 3, County of Haliburton (“Site”), pursuant to s. 20.3 of the Environmental Protection Act (“EPA”). As part of the decision, the Director amended an existing ECA #SI HL AH 09 15 001 (“original ECA”) to extend the expiry date from September 30, 2017 to November 30, 2017.

2On October 4, 2017, the Appellant appealed the decision of the Director to the Environmental Review Tribunal (“Tribunal”), under s. 139(1)(c) of the EPA.

3On January 17, 2018, a Pre-hearing Conference (“PHC”) was held in Algonquin Highlands, Ontario. At the outset of the PHC, the parties provided an overview of their positions on the appeal.

4The Director explained that the Site was originally 0.87 hectare (“ha”) in size and the original ECA applied during the period of September 15, 2015 to September 30, 2017. The Appellant submitted a new application for a 1.61 ha Site. The application was posted on the Environmental Registry and 111 comments were received. Upon review, the Director decided to refuse the application, and also amended the original ECA to extend the expiry date to November 30, 2017.

5The Appellant explained that there is a sewage capacity crisis in the Township of Algonquin Highlands (“Township”) and that he requires the ECA in order to continue his operation.

6The Appellant also indicated that time was of the essence for determining the outcome of the appeal, because he would like to be prepared for the start of the sewage spreading season on May 1, 2018.

Requests for Status

7There were a number of requests for party and participant status that the Tribunal panel addressed at the PHC.

8The Township requested party status.

9Nancy Elstone, the Maple, Beech and Cameron Lakes Area Property Owners’ Association (“Association”), Murray Adam, a member of Our Grandchildren Matter Too… Save Maple Lake (“Save Maple Lake”), and Bill Missen all requested participant status.

10Nyle McIlveen and Steven Gagne had requested participant status prior to the PHC in writing to the Tribunal. During the PHC these individuals decided to withdraw their requests.

11Mary-Ann Denreyer had also requested status prior to the PHC in writing to the Tribunal. She indicated during the PHC that she wished to make a statement. She was advised by the Tribunal that she must request status in order to make a statement at the hearing which would take place at a later date. Ms. Denreyer declined to make a request for status.

12A number of persons provided their contact information so that they could be put on the mailing list in order to be kept informed of the proceedings.

13The Tribunal granted party status to the Township. Participant status was granted to the Association, to Mr. Adam, and to Mr. Missen. The Tribunal declined to grant status to Ms. Elstone at this time. The reasons for the Tribunal’s decision are set out below.

Issues

[14] The issues are whether: i) party status should be granted to the Township; and, ii) participant status should be granted to: a) Ms. Elstone; b) The Association; c) Mr. Adam; and d) Mr. Missen.

Relevant Rules

15The relevant Rules of Practice (“Rules”) of the Tribunal are:

Naming of a Party

62. The following persons are Parties for the purpose of the Rules: (a) Persons specified as Parties by or under the statute under which the proceeding arises; (b) Persons otherwise entitled by law to be Parties to the proceeding; and (c) Persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. 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.

Role of a Party

64. A Party to the proceeding before the Tribunal may: (a) Bring motions; (b) be a witness at the Hearing; (c) be questioned by the Parties; (d) call witnesses at the Hearing; (e) cross-examine witnesses; (f) make submissions to the Tribunal, including final argument; (g) receive copies of all documents exchanged or filed by the Parties; (h) participate in a mediation; (i) attend site visits; and (j) claim costs or be liable to pay costs where permitted by law.

In proceedings other than those under section 142.1 of the Environmental Protection Act, a person granted Party status under Rule 62(c) may raise an issue that has not already been raised by persons referred to in Rule 62(a) and (b) with the permission of the Tribunal.

Naming of a Participant

66. 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 t 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.

Role of a Participant

67. A Participant in a Hearing may: (a) be a witness at the Hearing; (b) be questioned by the Parties; (c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing; (d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and (e) attend site visits.

68. A Participant in a Hearing may not: (a) raise issues that have not already been raised by a Party; (b) call witnesses; (c) cross-examine witnesses; (d) bring motions; (e) participate in a mediation, unless permitted to do so by the Tribunal; and (f) claim costs or be liable for costs.

Discussion, Analysis and Findings

Issue 1: Whether party status should be granted to the Township

16John Ewart, legal counsel for the Township, requested that the Township be granted party status in the appeal. Mr. Ewart indicated that the Site is within the Township boundaries and the Township has concerns regarding the operation of the Site and the potential for impact to adjacent lands. He indicated that the Township intends to call evidence at the hearing and would like to participate in any settlement discussions to be held. The parties did not object to the Township’s request for party status.

17The Tribunal finds that the Township’s interest in the appeal satisfies the considerations set out in the Tribunal’s Rules, in that its interests may be directly and substantially affected by the hearing or its result. The Township also has a genuine interest in the subject matter of the proceeding, and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. As such, the Township is granted party status in this matter and, as a party, may participate in settlement discussions.

Issue 2: Whether participant status should be granted

Nancy Elstone

18Ms. Elstone, the spouse of the Appellant, initially sought participant status at the PHC. In a discussion with the Tribunal it was determined that she intends to provide a statement in support of the Appellant’s case. The Tribunal determined that it is not necessary for Ms. Elstone to be granted participant status but that she could simply be called as a witness for the Appellant. The Tribunal indicated that if she was not satisfied with this approach, a request for participant status could be made again at a later date prior to the hearing.

Maple, Beech and Cameron Lakes Area Property Owners’ Association

19Andy Muirhead appeared as representative of the Association. He explained that the Association is an incorporated body that was established more than 40 years ago and includes property owners in the southern portion of the Township in its membership. He explained that the geographic focus of its work includes the Site. He stated that the Association has been involved in discussions and interactions on the issue of sewage spreading at a number of sites for several years and has been engaged in assessing the present Site. He stated that the Association supports the Director’s decision to refuse the application. He indicated that he has authorization from the Board of Directors of the Association to speak on behalf of the Association. There were no objections to the request for participant status.

20The Tribunal finds that the Association’s interest in the appeal satisfies the considerations set out in the Tribunal’s Rules. The Association has a genuine interest in the subject matter of the proceeding, and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. As such, the Association is granted participant status on the appeal.

Murray Adam

21Mr. Adam is a member of Save Maple Lake. Mr. Adam indicated that the group is not an incorporated body so he appears in his personal capacity on behalf of the membership. He indicated that the members of the group generally surround the Site, and deal with the Site on a day-to-day basis. He stated that the group is concerned about the potential contamination of groundwater wells on estate lots and shoreline properties downgradient of the Site.

22The Tribunal advised Mr. Adam that because Save Maple Lake is unincorporated, the group could not be granted status; however, Mr. Adam could be granted status to speak on behalf of the concerns of the group. There were no objections to his request for participant status.

23The Hearing Panel finds that Mr. Adam has an interest in the appeal that satisfies the considerations set out in the Tribunal’s Rules. As such, Mr. Adam is granted participant status on the appeal.

Bill Missen

24Mr. Missen is also a member of Save Maple Lake. He expressed concern that the scientific process has broken down for sewage spreading sites, and he is concerned about the effect of the Site’s operation on wildlife, the residents, and the local aquifer. There were no objections to his request for participant status.

25The Tribunal finds that Mr. Missen has an interest in the appeal that satisfies the considerations set out in the Tribunal’s Rules, and therefore Mr. Missen is granted participant status on the appeal.

Scheduling Matters

26The parties jointly requested that dates be set for a hearing and for mediation, as soon as possible.

27The parties indicated that they were amenable to mediation on the appeal, but further indicated that they wished that the process for the preparation for a hearing not be suspended for mediation in order that no time be lost, should the matter proceed to a hearing. The Tribunal directed that the two processes could proceed in parallel.

28The Tribunal directed the parties to contact the Tribunal’s Case Coordinator in order to schedule mediation with a Tribunal Mediator at a mutually agreeable date. Mr. Ewart indicated that his offices could be made available to host the mediation. Procedural directions for the mediation process will be provided by the Tribunal Mediator once a mediation date has been set.

29In preparation for the hearing, at the request of the parties, the Tribunal directed that the Appellant, the Director and the Township are to exchange disclosure simultaneously on February 23, 2018 in accordance with Rule 166 of the Tribunal’s Rules. Disclosure does not need to be filed with the Tribunal.

30By agreement of the parties, the Tribunal also directed that the Director, the Township, and the participants are to serve and file witness statements and the documents they intend to rely upon at the hearing by March 9, 2018. The Appellant is to serve and file witness statements and documents he intends to rely upon at the hearing by March 20, 2018. If there are any reply witness statements and documents, these are to be served and filed by March 27, 2018.

31Counsel for the Director also offered to seek to prepare an Agreed Statement of Facts to be provided to the Tribunal prior to the hearing.

32At the request of the parties, a five-day hearing was scheduled for April 3, 4, 11, 12 and 13, 2018. The Tribunal directed that the start time on April 3 and 11 will be 10:30 a.m. The location of the hearing venue was not finalized during the PHC.

33The parties agreed to prepare a detailed schedule for the hearing prior to the commencement of the hearing and consult with the participants to ensure their availability on specific dates. The parties are to provide the schedule to the Tribunal prior to the commencement of the hearing.

34The parties also requested a telephone conference call (“TCC”) be held following the mediation but prior to the submission of the witness statements in order to provide the Tribunal with an update on the remaining issues to be resolved at the hearing. The parties were directed to make arrangements for a TCC through the Tribunal’s Case Coordinator.

ORDER

35The Township of Algonquin Highlands is granted party status.

36The Maple, Beech and Cameron Lakes Area Property Owners’ Association is granted participant status.

37Murray Adam is granted participant status.

38Bill Missen is granted participant status.

39The Tribunal directs that the proceeding be conducted in accordance with the following schedule, as may be varied by agreement of the Parties, and confirmed by the Tribunal:

February 23, 2018 The Parties’ exchange of disclosure

To be determined Telephone conference call with Parties and the Tribunal

March 9, 2018 The Director, the Township, and participants file witness statements and documents to be relied on at the hearing

March 20, 2018 Appellant files witness statements and documents to be relied on at the hearing

March 27, 2018 Reply witness statements and documents, if any, to be filed by the Director and the Township

April 3, 4, 11, 12 and 13, 2018 Five-day hearing of the appeal

Party Status Granted

Participant Status Granted

Procedural Directions Ordered

Hearing Dates Set

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

“Helen Jackson”

HELEN JACKSON

MEMBER

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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