Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: August 31, 2018

CASE NO.: 18-024

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: Corporation of the City of Thunder Bay (File No. 18-024)

Appellant: Robert Whiteside (File No. 18-025)

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

Subject of appeal: Amendment of terms and conditions of a Permit to Take Water

Reference No.: 4321-6RVR23

Property Address/Description: Current River/Boulevard Lake Part of Mining Location 7 Savigney’s Survey

Municipality: City of Thunder Bay

ERT Case No.: 18-024

ERT Case Name: Thunder Bay (City) v. Ontario (Environment, Conservation and Parks)

Heard: July 12, 2018 in Thunday Bay, Ontario and July 19, 2018 by telephone conference call

APPEARANCES:

Parties Corporation of the City of Thunder Bay

Counsel Rodney Northey and Patty Robinet*

Parties Director, Ministry of the Environment, Conservation and Parks

Counsel Nadine Harris*, Paul McCulloch** and Mitchel Boughs**

Parties Robert Whiteside

Counsel Therin Rhaintre and Eric Zablotny** (Student)

*July 12 only ** July 19 only

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARCIA VALIANTE

REASONS

Background

1On April 30, 2018, Carrie Hutchison, Director, Ministry of the Environment, Conservation and Parks, issued Amended Permit to Take Water No. 4321-6RVR23 (“Amended PTTW”) to the Corporation of the City of Thunder Bay (“City”), pursuant to s. 34.1 of the Ontario Water Resources Act. The Amended PTTW amends the terms and conditions of a permit to take water issued in 2006 in response to an application submitted by the City. The Amended PTTW authorizes the taking of water into storage by the Boulevard Lake Dam in order to create the reservoir known as Boulevard Lake and stipulates how the water taken into storage may be released. Robert Whiteside owns and operates a power generation facility that uses water from Boulevard Lake, under a lease agreement between him and the City.

2On May 15, 2018, the City filed an appeal of the Amended PTTW to the Environmental Review Tribunal (“Tribunal”) and, on the same date, filed a Notice of Allegation against Mr. Whiteside and the Current River Hydro Partnership. On May 16, 2018, Mr. Whiteside filed an appeal of the Amended PTTW. Both the City and Mr. Whiteside requested a stay and an interim stay of the Amended PTTW. On May 18, 2018, the Tribunal acknowledged receipt of both appeals, and provided notice of a jurisdictional issue with respect to Mr. Whiteside’s appeal, specifically, that he may not have standing to appeal the Amended PTTW and that his appeal may have been received beyond the 15-day appeal period.

3On May 25 and June 1 and 11, 2018, the Tribunal held telephone conference calls (“TCCs”) to address the status of the appeals and matters of scheduling. During these TCCs, the parties indicated that the request for an interim stay/stay was subject to ongoing discussions between the parties. Following discussions during those TCCs, the Tribunal scheduled a Pre-hearing Conference (“PHC”) and a motion to be brought by the City regarding the Director’s jurisdiction.

4Regarding the jurisdictional issue with respect to Mr. Whiteside’s appeal, the Tribunal invited the parties to make submissions in writing. Between June 13 and 20, 2018, the parties filed written submissions on the issue of Mr. Whiteside’s status in the proceeding. On June 25, 2018, the Tribunal issued an order dismissing Mr. Whiteside’s appeal but also granting him Party status in the proceeding commenced by the City as of June 25, 2018. The Tribunal provided reasons for its June 25, 2018 Order in an Order issued on July 9, 2018.

5The PHC was held on July 12, 2018 and the following counsel appeared: Rodney Northey and Patty Robinet for the City; Nadine Harris for the Director; and Therin Rhaintre for Mr. Whiteside. No one appeared at the PHC to seek status in the matter.

6Prior to the commencement of the PHC on July 12, 2018, the Tribunal received correspondence from Ms. Rhaintre, stating that Mr. Whiteside was not in agreement with a proposal by the City and the Director concerning a stay on consent. The City undertook to provide the Tribunal with correspondence outlining the terms of a proposed stay. At the City’s request, the Tribunal scheduled a continuation of the PHC by TCC for July 19, 2018 to address the stay.

7At the PHC, the Tribunal confirmed the dates of August 8 and 9, 2018 to hear the City’s motion regarding the Director’s jurisdiction, as well as a schedule for the exchange of materials between the parties and filing of materials with the Tribunal prior to the motion.

8The parties also proposed to the Tribunal mutually agreeable dates for the exchange and filing of materials, including a joint book of documents, and for the hearing. The Tribunal confirmed the dates as set out in the Order below.

9On July 13, 2018, the City wrote to the Tribunal to advise that the City and the Director had agreed on the terms of a stay of certain elements of the Amended PTTW pending the resolution of the City’s jurisdictional motion.

10On July 19, 2018, the Tribunal held a continuation of the PHC by TCC, which was attended by Mr. Northey for the City, Paul McCulloch and Mitchel Boughs for the Director, Ms. Rhaintre and Eric Zablotny, a student, for Mr. Whiteside. Ms. Rhaintre advised that the terms of the stay proposed by the City and the Director did not address Mr. Whiteside’s concerns and that he would not consent. While there was discussion of possibly scheduling a stay motion, the parties were not in a position to do so at that time.

ORDER

11The Tribunal orders that:

a. Disclosure of relevant documents between the parties shall take place by September 21, 2018;

b. The City and Mr. Whiteside shall serve on the other parties, and file with the Tribunal, witness statements and documents to be relied on at the hearing by October 19, 2018;

c. The Director shall serve on the other parties, and file with the Tribunal, witness statements and documents to be relied on at the hearing by November 9, 2018;

d. The City and Mr. Whiteside shall serve on the other parties, and file with the Tribunal, any reply materials by November 16, 2018;

e. The hearing is scheduled for nine days and shall commence on November 26, 2018 at 10 a.m. and continue on November 27 to 30, and December 18 to 21, 2018 at a venue in Thunder Bay to be determined.

Procedural Directions Ordered

Hearing Scheduled

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“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