Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
July 13, 2018
CASE NO.:
13-068
PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant:
Goldy Metals Incorporated
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of appeal:
Order to carry out work with respect to the discharge of contaminants associated with the operation of an auto wrecking business
Reference No.:
6363-94MJT9-1
Property Address/Description:
1216 Sewells Road
Municipality:
City of Toronto
ERT Case No.:
13-068
ERT Case Name:
Goldy Metals Incorporated v. Ontario (Environment, Conservation and Parks)
Heard:
April 18, May 18, August 28, October 16 and December 7, 2017, and January 17, March 9, April 12, April 30 and June 26, 2018 by telephone conference call
APPEARANCES:
Parties
Counsel
Goldy Metals Incorporated
Harry Poch
Director, Ministry of the Environment, Conservation and Parks
Jon Bradbury and Mitchel Boughs
Participant
Toronto and Region Conservation Authority
Jacquelyn Stevens
DECISION DELIVERED BY MARCIA VALIANTE
REASONS
Background
1The Appellant, Goldy Metals Incorporated, owns a 4.3 hectare property at 1216 Sewells Road (“Site”), located in the north-east part of Toronto, formerly in the City of Scarborough. An automobile recycling business is operated on the Site under the name Standard Auto Wreckers. The Site is regulated in part by the Toronto and Region Conservation Authority (“TRCA”) and is adjacent to lands that were owned and managed by the TRCA and the province and that have recently been incorporated into the Rouge National Urban Park, managed by Parks Canada.
2On June 7, 2013, Rod Adams, Director, Ministry of the Environment (now known as the Ministry of the Environment, Conservation and Parks (“MECP”)), issued Director’s Order No. 6363-94MJT9-1 (“Director’s Order”) to the Appellant requiring a range of remedial actions. On June 20, 2013, the Appellant filed a notice of appeal of portions of the Director’s Order to the Environmental Review Tribunal (“Tribunal”) that require the Appellant, by specified dates, to retain the services of a qualified person to design a stormwater management system to meet certain specified standards and to submit an application for an environmental compliance approval (“ECA”) for the construction and operation of this stormwater management system.
3The Director’s Order is the third in a series of orders issued to the Appellant resulting from a spill of petroleum contaminants from operations on the Site that entered the Little Rouge Creek (“Creek”), which flows through a flood plain intersecting the Site. Detailed background on the spill, remediation and the other orders can be found in the decision of the Tribunal in Case No. 10-130 (Goldy Metals Inc. v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 28) and in the Order of May 3, 2017 in this proceeding (Goldy Metals Inc. v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 25).
4The Pre-hearing Conference (“PHC”) in this proceeding was held in September of 2013. At that time, the TRCA was granted Participant status. Since then, the Tribunal has repeatedly adjourned the PHC and has held a series of more than 30 telephone conference calls (“TCCs”) to review the progress of the Appellant in complying with the Director’s Order. Persons observing on the TCCs included Infrastructure Ontario, the City of Toronto and, more recently, Parks Canada.
5The Appellant’s progress toward compliance has been quite slow, with numerous delays, but over this time the Director and the TRCA continued to consent to this approach. The most significant delay has been in finalizing the design of the stormwater management system to meet the requisite standards. This necessitated detailed technical review and comments by the MECP and the TRCA, and response and re-design by the Appellant’s consultants. The design was ultimately finalized in March of 2018.
6At a TCC held on June 26, 2018, the parties advised the Tribunal that, on May 4, 2018, the TRCA had approved the Appellant’s application for a permit to construct a stormwater management facility in accordance with the final design, pursuant to Ontario Regulation 166/06. The permit was revised and re-issued on June 1, 2018 to correct a typographical error. At the TCC, the parties further advised the Tribunal that the ECA application process had been completed and an Instrument Proposal Notice and draft ECA for the stormwater management system had been posted on the Environmental Registry on June 5, 2018, for a 45-day comment period. The parties requested time to seek instructions on how to proceed with the appeal.
7On June 28, 2018, Harry Poch, Appellant’s counsel, wrote to the Tribunal advising that the Appellant was withdrawing its appeal and confirming that the Director’s Order has not been altered by a settlement agreement. On the same day, Jon Bradbury, counsel for the Director, wrote to the Tribunal confirming that the Director is satisfied that the Appellant “is now in compliance with the portions of the Order which are under appeal… We agree to the proposed withdrawal of the appeal in these circumstances.” Mr. Bradbury also confirmed that the Director’s Order has not been altered by a settlement agreement or otherwise.
Issue
8The issue is whether the Tribunal shall issue a decision dismissing the appeal.
Relevant Rules
9Rules 198 and 199 of the Tribunal’s Rules of Practice address the termination of proceedings. They read as follows:
A Proponent or Applicant who proposes to withdraw an application, an Appellant who proposes to withdraw an appeal, or a Director, Risk Management Inspector or Official, Authority or municipality who proposes to revoke a decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.
Findings
10The parties confirm that the Appellant has effectively complied with the items in the Director’s Order that were under appeal. The Appellant’s proposed withdrawal of the appeal has been agreed to by the Director and is not objected to by the Participant TRCA. Both parties confirm that the Director’s Order has not been altered by a settlement agreement.
DECISION
11In accordance with Rule 199, the Tribunal dismisses the appeal.
Appeal Withdrawn
Appeal Dismissed
“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