Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: September 21, 2018
CASE NO.: 17-073
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Northwood Recycling & Energy Inc. (Receiver of)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to carry out various work with respect to a Waste Disposal/Transfer Site
Reference No.: 6573-ASRK9Y-1
Property Address/Description: 1515 Thornton Road North
Municipality: City of Oshawa
Upper Tier: Regional Municipality of Durham
ERT Case No.: 17-073
ERT Case Name: Northwood Recycling and Energy Inc. (Receiver of) v. Ontario (Environment, Conservation and Parks)
Heard: June 18 and September 14, 2018 by telephone conference calls
APPEARANCES:
Parties Northwood Recycling & Energy Inc. (Receiver of) Counsel/Representative^+^ John Georgakopoulos and Matthew Gardner
Parties Director, Ministry of the Environment, Conservation and Parks Counsel/Representative^+^ Nadine Harris and Steven Succi*
Participants Corporation of the City of Oshawa Counsel/Representative^+^ Carlton Thorne
Participants Ummah Foundation of Durham Counsel/Representative^+^ Muhammad Mansoor^+^**
*September 14 only **June 18 only
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND MARCIA VALIANTE
REASONS
Background
1On November 17, 2017, Celeste Dugas, Director, Ministry of the Environment, Conservation and Parks (“MECP”), issued Order No. 6573-ASRK9Y-1 (“Director’s Order”) under s. 157.3(5) of the Environmental Protection Act (“EPA”) to Northwood Recycling & Energy Inc. (“Northwood”). The Director’s Order, which relates to work ordered at a waste disposal/transfer site at 1515 Thornton Road North (“Northwood Facility”) in Oshawa, Ontario, altered and confirmed Provincial Officer’s Order No. 6573-ASRK9Y, issued November 3, 2017.
2On December 1, 2017, Rosen Goldberg Inc., the Receiver for Northwood (“Appellant”), filed a notice of appeal of the Director’s Order with the Environmental Review Tribunal (“Tribunal”). The Appellant was appointed a receiver of certain assets, including the Northwood Facility, pursuant to the Order of The Honourable Justice Penny of the Ontario Superior Court of Justice, dated October 19, 2015 (“Court Order”). The notice of appeal states that the Appellant filed this appeal to reserve its rights, notwithstanding its position that the Director’s Order is a nullity and stayed by the Court Order, and its position that the Tribunal cannot exercise jurisdiction over this appeal unless the Director moves for and receives an order from the Court that lifts the stay.
3The Tribunal held a Pre-hearing Conference (“PHC”) on April 27, 2018 in Whitby, Ontario. At that time, as confirmed in its Order dated May 18, 2018, the Tribunal granted Participant status to the Corporation of the City of Oshawa (“City”) and to the Ummah Foundation of Durham (“Ummah Foundation”) and adjourned the PHC to be continued at a telephone conference call (“TCC”) on June 18, 2018 in order to permit the Parties an opportunity to resolve the issues in the appeal.
4At the TCC held on June 18, 2018, the Parties advised the Tribunal that the Appellant was making significant progress in complying with the work items in the Director’s Order and, therefore, a hearing might not be necessary. They jointly requested additional time for the Appellant to achieve full compliance with the Director’s Order. The Tribunal directed that the PHC be adjourned to a TCC on September 14, 2018.
5On September 13, 2018, Nadine Harris, counsel for the Director, wrote to the Tribunal informing it that the Parties had reached a settlement and requesting that it revoke the Director’s Order and dismiss the proceeding. The Tribunal wrote to the Parties and Participants advising them that it would consider the proposed settlement under Rule 202 of the Tribunal’s Rules of Practice (“Rules”) at the TCC on September 14, 2018.
Issues
6The issue is whether to revoke the Director’s Order and dismiss the proceeding.
Relevant Legislation and Rules
7Environmental Protection Act:
Purpose of Act
3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
8Rule 202 of the Rules deals with a proposed revocation of an order and dismissal of a proceeding:
- Where a Director, Risk Management Inspector or Official, Authority or municipality proposes to revoke a decision that is the subject of an appeal, the Tribunal shall consider whether the proposed revocation is consistent with the purpose and provisions of the relevant legislation and whether the proposed revocation is in the public interest. The Tribunal shall also consider the interests of Parties, Participants and Presenters. After the consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Discussion, Analysis and Findings
9The Director advised that, following an inspection by MECP staff, all work items in the Director’s Order have been implemented and full compliance achieved. Thus, the Director submitted, revocation of the Director’s Order and dismissal of the proceeding are consistent with the purpose and provisions of the EPA and in the public interest. The Director stated that the proposed settlement had been discussed with the Participants.
10The Appellant requested revocation of the Director’s Order in its entirety, stating that revocation is necessary to facilitate bringing Northwood out of receivership. It submitted that the proposed settlement achieves the purpose of the EPA and avoids the diversion of resources into a hearing, which is in the public interest.
11The City submitted that it has no objection to the proposed settlement. It stated that it wanted to ensure compliance with the Director’s Order and is satisfied with the Director’s assurance that compliance has been achieved.
12No representative of the Ummah Foundation attended the September 14 TCC. Following the TCC, the Tribunal received an email from Muhammad Mansoor, representative of the Ummah Foundation, stating that he had called in at the appointed hour and waited for a minute but hung up because there was no one else on the line, thinking he had called at the wrong time. It appears that Mr. Mansoor did not wait for the moderator to join the call. When he did not call in, Nadine Harris, counsel for the Director, emailed him, but received no response. The Tribunal Members noted his absence and waited for him to join the call, but then went ahead with the TCC in his absence.
13In his email, Mr. Mansoor wrote that he has a concern about debris along the fence line between the Ummah Foundation’s property and the Northwood Facility. Both he and the Appellant stated that they were in discussions in an effort to resolve this concern informally. The Appellant stated that this issue is outside of the issues addressed in the Director’s Order, and thus outside of the issues relevant to this proceeding. In his email, Mr. Mansoor did not object to the proposed settlement.
14The Tribunal has considered the submissions of the Parties and the Participants. It accepts the assurance of the Director and the Appellant that the Director’s Order has been fully complied with. No objections to the proposed settlement were brought forward. The settlement is without prejudice to the Director’s jurisdiction to issue future orders. The Tribunal finds that the proposed settlement is consistent with the purpose and provisions of the EPA and is in the public interest.
DECISION
15The Tribunal orders that:
a. Director’s Order No. 6573-ASRK9Y-1, Appendix 1 to this Order, is revoked in its entirety; and
b. This proceeding is dismissed.
Director’s Order Revoked
Proceeding Dismissed
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Marcia Valiante”
MARCIA VALIANTE
VICE-CHAIR
Appendix 1 – Director’s Order No. 6573-ASRK9Y-1
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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