Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: August 24, 2018

CASE NO.: 18-014

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: See Appendix 1 – Appellant List

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to comply with various work items in regards to a contamination of water from a wood waste landfill

Reference No.: 4375-ATZM9B

Property Address/Description: Lot 9 and 10, Concession 5, Bucke Township

Municipality: City of Temiskaming Shores

ERT Case No.: 18-014

ERT Case Name: Alizadeh v. Ontario (Environment, Conservation and Parks)

Heard: July 25, 2018 in Haileybury, Ontario

APPEARANCES:

Parties

Counsel/Representative^+^

Laila Alizadeh, Arash Missaghi and Mansteel New Liskeard Inc.

Arash Missaghi^+^

Grant Erlick

Self-represented

Director, Ministry of the Environment, Conservation and Parks

Mitchel Boughs

Hydro One Networks Inc.

Rosalind H. Cooper

Participant

Uniboard Canada Inc.

Rachel Cohen

Presenters

Maria McLean

Self-represented

William Megens

Self-represented

City of Temaskaming Shores

Douglas Walsh^+^

ORDER DELIVERED BY MARCIA VALIANTE

REASONS

Background

1Mansteel New Liskeard Inc. (“Mansteel”) owns a 38 hectare property located at 1107 Lakeshore Road South in Haileybury (“Site”), in the City of Temiskaming Shores (“City”). On the Site is an historic wood waste landfill, which includes systems for the management of leachate. Laila Alizadeh, Arash Missaghi and Grant Erlick are identified as current or former directors of Mansteel.

2The Site was sold to Mansteel in 2012 and existing environmental compliance approvals were transferred to it. In January 2013, Environmental Compliance Approval No. 2478-8YPHYE (“2013 ECA”) was issued by the Ministry of the Environment and Climate Change (now the Ministry of the Environment, Conservation and Parks (“MECP”)) to Mansteel, approving a leachate collection system, irrigation system, evaporation pond and leachate treatment system. In April 2014, the MECP issued Environmental Compliance Approval No. 5377-9CXPXG (“2014 ECA”) to Mansteel, approving modifications to the leachate evaporation pond and an aeration pond. The 2014 ECA revoked all previous approvals.

3In October 2013, a provincial officer with the MECP issued a Provincial Officer’s Order to Mansteel and Mr. Erlick requiring numerous work items to bring operations of the landfill and leachate management systems into compliance with the 2013 ECA. According to the MECP, Mansteel did not comply with the 2013 ECA, the 2014 ECA and the Provincial Officer’s Order. Mansteel was prosecuted and a court ordered Mansteel to complete the leachate collection system by November 15, 2016.

4The MECP alleges that the leachate management systems at the Site have still not been constructed in accordance with the 2013 and 2014 ECAs and the court order and that, as a result, toxic leachate is seeping from the landfill, leaking from the pumping stations, overflowing from the ponds, and then discharging into groundwater and surface water off-site. On March 22, 2018, Carroll Leith, MECP Director, issued Director’s Order No. 4375-ATZM9B to Mansteel, Ms. Alizadeh, Mr. Missaghi and Mr. Erlick (“Director’s Order”) requiring them to take numerous actions on the Site, including to manage the Site, repair and install equipment, and hire a professional engineer to oversee these actions. Mansteel, Ms. Alizadeh, Mr. Missaghi and Mr. Erlick (“Appellants”) appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”).

5A Pre-hearing Conference (“PHC”) was scheduled for July 25, 2018 in Haileybury. Further information regarding the proceedings leading up to the PHC is set out in the Tribunal’s Order issued on June 25, 2018 (see: Alizadeh v. Ontario (Ministry of the Environment and Climate Change), [2018] O.E.R.T.D. No. 38).

6Prior to the PHC, the Tribunal was informed that Ms. Alizadeh, Mr. Missaghi and Mansteel were no longer represented by counsel and that Mr. Missaghi would represent these Appellants at the PHC. The Tribunal was also provided with a court order that imposes restrictions on Mr. Missaghi contacting or communicating with Mr. Erlick. Therefore, two PHCs were held in sequence: the first regarding the appeals of Ms. Alizadeh, Mr. Missaghi and Mansteel; and the second regarding Mr. Erlick’s appeal.

Issues

7The issues at both PHCs were:

1. Whether to grant requests for status in the proceedings; and

2. Scheduling of the hearing.

Relevant Rules

8Rules 62 to 71 of the Tribunal’s Rules of Practice (“Rules”) address status requests and the roles in the proceeding:

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.

Co-operation of Parties

65. Parties shall co-operate with each other in matters such as scheduling, disclosure, procedure and agreements on uncontested facts to the fullest extent that is compatible with their interests.

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 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.

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.

Naming of a Presenter

69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, 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 or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

Role of a Presenter

70. A Presenter in a Hearing may:

(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;

(b) be questioned by the Parties;

(c) provide the Tribunal with a written statement as a supplement to oral testimony; and

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter's interests.

71. A Presenter 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) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(f) participate in a mediation, unless permitted to do so by the Tribunal;

(g) attend site visits unless permitted to do so by the Tribunal; and

(h) claim costs or be liable for costs.

Analysis and Findings

Issue 1: Whether to grant requests for status in the proceedings

9The Tribunal received several requests for status in the proceeding. The Tribunal granted these requests; the following are the reasons for those rulings.

10Hydro One Networks Inc. (“Hydro One”) requested Party status. Rosalind Cooper, counsel to Hydro One, stated that the company has been supplying power to the property but that, due to significant arrears in respect of one of the Appellants, it seeks to disconnect the power supply. However, according to Ms. Cooper, Hydro One was informed by the MECP that, because the leachate management systems on the Site depend on a continued supply of power, there is some potential risk to the environment if the power supply is disconnected. She submitted that Hydro One’s interests are directly and substantially affected by the hearing and its outcome, that it has a genuine interest in the proceeding, and that it can make a contribution to the Tribunal’s understanding of the issues. No party objected to Hydro One’s request. The Tribunal accepted the submissions regarding Hydro One’s interests and likely contribution to the proceeding. The Tribunal granted Party status to Hydro One.

11Uniboard Canada Inc. (“Uniboard”) requested Participant status. Rachel Cohen, General Counsel, stated that the company is the former owner of the Site and former operator of the landfill, that it sold the Site to Mansteel in 2012, and that it has knowledge of technical and legal issues that are raised by the Director’s Order. Ms. Cohen also stated that Uniboard was advised by the MECP that it may seek to impose liability on Uniboard for the same matters that are at issue in this proceeding. She submitted that Uniboard’s interests could be significantly affected by the proceeding and its outcome and that it has information that will assist the Tribunal in understanding the issues.

12The Director had no objection to Uniboard’s participation; however, Mr. Missaghi objected. He stated that Mansteel is involved in litigation with Uniboard and that he is concerned lest information provided in the course of this proceeding be misused by Uniboard in the litigation. Ms. Cohen replied that the two proceedings are distinct, that Uniboard is defending litigation initiated by Mansteel and that Uniboard’s interests are substantially affected by this proceeding. Mr. Missaghi expressed only a general and vague concern and, given that Uniboard’s interests are directly and substantially affected and that it has relevant information that is likely to be of assistance to the Tribunal in its understanding of the issues in this proceeding, the Tribunal granted Uniboard Participant status. The Tribunal notes that specific issues or objections regarding disclosure or evidence can be addressed as they arise in the course of this proceeding.

13Maria McLean requested Presenter status. Ms. McLean and her young children live on property adjacent to the Site. She has concerns regarding the potential for contaminants leaving the Site and entering Lake Temiskaming, as well as concerns regarding the pace of compliance with the actions required by the Director’s Order. No party objected to her request and, given her location and the nature of her concerns, the Tribunal granted her Presenter status.

14William Megens requested Presenter status. Mr. Megens owns property adjacent to the Site and also owns property through which Dickson Creek runs, which is the waterway that also runs through the Site. He has concerns regarding the effects of Site operations on groundwater and surface water quality. No party objected to his request and, given Mr. Megens’ location and the nature of his concerns, the Tribunal granted him Presenter status.

15The City, represented by Douglas Walsh, the Director of Public Works, requested Presenter status. Mr. Walsh stated that he has been in his position for many years and has direct knowledge of the Site, and that the City has an interest in the outcome of the proceeding. No party objected to the City’s request and, given that the City has a genuine interest in the subject matter of the proceeding and is likely to make a contribution to the Tribunal’s understanding of the issues, the Tribunal granted it Presenter status.

Issue 2: Scheduling of the hearing

16The parties agreed that the hearing will commence on October 24, 2018 and will continue for three days. The parties also agreed to a schedule for disclosure and the filing of witness statements and documentary evidence leading up to the hearing. Mr. Missaghi noted that he intends to retain counsel to represent him, Ms. Alizadeh and Mansteel at the hearing. The parties agreed that any issue regarding the impact on the conduct of the hearing of the restrictions on communication between the Appellants will be addressed immediately prior to the commencement of the hearing.

ORDER

17The Tribunal orders that:

a. Party status be granted to Hydro One;

b. Participant status be granted to Uniboard;

c. Ms. McLean, Mr. Megens and the City be granted Presenter status;

d. The Parties will provide to the other Parties a copy, electronically or in hard copy, of every relevant document in their possession, control or power, in accordance with Rule 166, by August 31, 2018;

e. The Appellants will serve on the other Parties, Participant and Presenters and file with the Tribunal their witness statements, prepared in accordance with Rule 170, and all documents on which they intend to rely at the hearing, by September 14, 2018;

f. The Director and Hydro One will serve on the other Parties, Participant and Presenters and file with the Tribunal their witness statements, prepared in accordance with Rule 170, and all documents on which they intend to rely at the hearing, by October 12, 2018;

g. The Participant and Presenters will serve on the other Parties, Participant and Presenters and file with the Tribunal their written statements by October 12, 2018;

h. The Appellants will serve on the other Parties, Participant and Presenters and file with the Tribunal reply evidence, if any, by October 19, 2018; and

i. The hearing will commence at 10 a.m. on October 24, 2018 in:

Old New Liskeard Council Chambers New Liskeard Community Hall 90 Whitewood Avenue New Liskeard, ON P0J 1P0

Party, Participant and Presenter Status Granted

Hearing Scheduled

Procedural Directions Ordered

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

Appendix 1 – Appellant List

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

Appendix 1

Appellant List

Appellant Name

File No.

Laila Alizadeh

18-014

Arash Missaghi

18-015

Mansteel New Liskeard Inc.

18-016

Grant Erlick

18-017