Alizadeh v. Ontario (Environment, Conservation and Parks), 2018 CanLII 96168

Tribunal de l’environnement

ISSUE DATE: October 11, 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: September 27, 2018 by telephone conference call and in writing

APPEARANCES:

Parties	Counsel
Director, Ministry of the Environment, Conservation and Parks	Nadine Harris

ORDER DELIVERED BY MARCIA VALIANTE

REASONS

Background

1This Order relates to a motion brought by the Director, Ministry of the Environment, Conservation and Parks (“MECP”), to dismiss the appeals of Mansteel New Liskeard Inc. (“Mansteel”), Laila Alizadeh and Arash Missaghi (collectively the “Mansteel Appellants”). The Director’s motion to dismiss relates only to the Mansteel Appellants and not the fourth appellant, Grant Erlick.

2Mansteel owns a 38-hectare property 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. Ms. Alizadeh, Mr. Missaghi and Mr. Erlick are identified as current or former directors of Mansteel.

3The MECP alleges that the leachate management systems at the Site were not constructed in accordance with environmental compliance approvals issued in 2013 and 2014 and with a court order and that, as a result, toxic leachate is seeping from the landfill, leaking from the pumping stations, overflowing from the ponds, and from there 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 specific steps to manage the Site, repair and install equipment, and hire a professional engineer to oversee these actions. The Mansteel Appellants and Mr. Erlick appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”). Further background on the Site and the proceedings to date can be found in the Tribunal’s Orders issued on June 25, 2018 (see: Alizadeh v. Ontario (Environment and Climate Change), 2019 62106 (ON ERT), 2018 60434 (ON ERT)) and August 24, 2018 (see: Alizadeh v. Ontario (Environment, Conservation and Parks), 2018 80802 (ON ERT)).

4A Pre-hearing Conference (“PHC”) was scheduled for July 25, 2018 in Haileybury. Prior to the PHC, the Tribunal was informed that the Mansteel Appellants were no longer represented by legal counsel and that Mr. Missaghi would represent them 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 Mansteel Appellants’ appeals; and the second regarding Mr. Erlick’s appeal.

5At the PHCs, the Tribunal granted Party status to Hydro One Networks Inc. and Participant status to Uniboard Canada Inc., the City, Maria McLean and William Megens. The parties agreed that three days should be set aside for the hearing and that the hearing would commence on October 24, 2018. The parties also agreed to a schedule for disclosure and the service and filing of witness statements and documentary evidence to be relied on at the hearing. Mr. Missaghi told the Tribunal that he intended to hire legal counsel to represent the Mansteel Appellants at the hearing, but that in the meantime he would continue to represent them. The schedule was confirmed in the Tribunal’s Order issued on August 24, 2018.

6On September 18, 2018, the Director sent an email to the Tribunal stating that, despite repeated requests, the Mansteel Appellants had not complied with the Tribunal’s Order to provide disclosure by August 31, 2018 and witness statements by September 14, 2018. The Director requested a telephone conference call (“TCC”) be set to discuss the scheduling of a motion to dismiss their appeals. On September 19, 2018, the Tribunal’s Case Coordinator sent an email to the parties noting the Tribunal Member’s availability and requesting that they provide their availability for a TCC. None of the Mansteel Appellants responded to that request. On September 21, 2018, the Case Coordinator sent another email to the parties requesting them to provide their availability for a TCC by September 24, 2018 at 2 p.m., failing which the Tribunal would schedule a TCC. That email also called the parties’ attention to Rule 16 of the Tribunal’s Rules of Practice (“Rules”). None of the Mansteel Appellants responded to that email. The Tribunal scheduled a TCC for September 27, 2018 and gave notice to the parties.

7The Tribunal held the TCC on September 27, 2018. None of the Mansteel Appellants attended. The Tribunal directed a schedule for the hearing in writing of the Director’s motion to dismiss the appeals of the Mansteel Appellants, which was communicated by email to the Mansteel Appellants. The Director filed motion materials on October 1, 2018. The Mansteel Appellants filed no responding materials by the date due, October 5, 2018. When following up by email to the Mansteel Appellants on October 9, 2018 using the email addresses provided to the Tribunal for communication purposes, the Case Coordinator received a response that the email to Mr. Missaghi was “rejected by the recipient e-mail system” and received no other response.

Issue

8The issue is whether to dismiss the appeals of the Mansteel Appellants.

Relevant Rules

9Rules 16 and 111(d) of the Tribunal’s Rules are relevant to this issue:

Non-compliance

If a Party or Participant

(a) fails to comply with these Rules, an Order or a written request from the Tribunal, or an undertaking;

(b) causes undue delay;

(d) does not provide, within the time permitted by the Tribunal, a response to an appeal or application which was served on him or her;

the Tribunal may:

(a) deem the Party or Participant to have accepted all of the material facts set out in materials provided by another Party or Participant;

(b) determine that the Party or Participant is not entitled to present evidence or make submissions;

(d) decide the matter based solely on the materials before it;

(e) dismiss the proceeding; or

(f) make any other order it considers appropriate.

Motions for Dismissal

A Party bringing a motion to dismiss a proceeding shall specify the basis for the motion, which may include that:

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;

(d) another Party has caused undue delay or has not complied with orders, undertakings, written requests from the Tribunal or these Rules.

Discussion, Analysis and Findings

Submissions of the Director

10The Director submits that pursuit of an appeal at the Tribunal requires a degree of responsibility and diligence on the part of an appellant. Relying on the Tribunal decision in Rouleau v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 51 (“Rouleau”), she argues that, for a motion to dismiss to succeed, there must be a lack of regard for the Tribunal’s Rules which demonstrates that an appellant is not willing to carry out its responsibilities as a party. The Director also cites Cassidy v. Ontario (Ministry of the Environment), [2006] O.E.R.T.D. No. 22 (“Cassidy”), where the Tribunal held that Rule 16 makes it clear that dismissal of a proceeding for non-compliance is envisioned when there is continuing non-compliance. The Director argues that, by repeatedly failing to comply with the Tribunal’s Order and failing to respond to communications from the Director and the Tribunal, the Mansteel Appellants have shown a lack of regard for the Tribunal’s Rules, which demonstrates an unwillingness to carry out their responsibilities as appellants.

11The Director submits that the Mansteel Appellants’ failure to comply with their obligations to provide disclosure and witness statements prejudices the Director’s ability to prepare for the hearing and know the case she will have to meet. Morrison v. Ontario (Ministry of the Environment), [2001], O.E.R.T.D. No. 32 (“Morrison”) and Rosenfeld v. Ontario (Ministry of the Environment), [2013] O.E.R.T.D. No. 23 (“Rosenfeld”) are cited as cases where the Tribunal dismissed appeals for similar failures. The Director argues that the rulings in Keswick Presbyterian Church v. Ontario (Environment and Climate Change), 2016 47160 (“Keswick 1”) (ON ERT) and 2016 72282 (“Keswick 2”) (ON ERT), are distinguishable because in those cases, the Tribunal found that the self-represented appellant continued to respond to communications, appear at hearing events, and show an intent to proceed and, rather than dismiss the appeals, the Tribunal issued orders to address deficient disclosure. The Director argues that, absent any justification for the Mansteel Appellants’ failure to comply or any indication they intend to proceed, it is not in the public interest to extend deadlines for compliance in the circumstances of this case.

12The Director further submits that dismissing the appeals would be in the public interest because the Mansteel Appellants continue to be out of compliance with the Director’s Order and they have failed to respond to communications from MECP staff, including an email from Senior Environmental Officer Larry McCormack, respecting a recent visit to the Site where he observed that the leachate pumping stations were not operating. By dismissing the appeals, the Director argues, the Director’s Order will be confirmed as against the Mansteel Appellants and the MECP can use the other tools available to it to protect the environment.

Analysis and Findings

13In numerous decisions, including in Rouleau at para. 16, the Tribunal has noted that the pursuit of an appeal “requires a degree of responsibility and diligence on the part of an appellant”.

14Rule 16 outlines the Tribunal’s options for responding to a party’s or participant’s non-compliance with Tribunal Rules, Orders or requests. Both Rules 16 and 111 contemplate that an appeal may be dismissed when a party has not complied. While dismissal is one option, the Tribunal stated in Cassidy, at para. 46, that dismissal of a proceeding for non-compliance is “undertaken only when attempts to encourage compliance through procedural orders have failed,” and dismissal “is envisioned when there is a case of continued noncompliance” (emphasis added). In Cassidy, the Tribunal considered the purpose of the legislation under which the application for leave to appeal was being brought, the Environmental Bill of Rights, 1993, to promote public participation and, at para. 47, stated that “[t]he prejudice resulting from non-compliance with the Rules is another key consideration in this type of Motion.” In that case, the Tribunal found that there were only “technical” breaches of the Rules and that none of the breaches resulted in any prejudice to the other parties, and as a result did not dismiss the application.

15In Keswick 1, the Tribunal distinguished Morrison, where, in addition to disregarding procedural orders, the appellant had failed to appear and could not be contacted. The Tribunal noted that the appellants in Keswick 1 had consistently appeared, had indicated an intention to proceed with the appeal, and had disclosed some relevant documents. In Keswick 2, a second motion to dismiss following a final opportunity to provide full disclosure, the Tribunal stated, at para. 24:

Dismissal of an appeal prior to hearing the merits of the appeal is the most significant of all remedies [in Rule 16] as it revokes the party’s right to pursue its appeal. As such, when contemplated as a penalty for procedural defects, dismissal should only be ordered in the clearest of cases.

There, the Tribunal considered several factors as relevant to determining how to respond to non-compliance, including: whether the party acknowledged its obligations and attempted to comply with an order; whether the party misunderstood its obligations or showed wilful disregard for them; and whether there was prejudice to the other parties in light of the stage of the appeal process. In Keswick 2, the Tribunal did not dismiss the appeals, but ordered that the appellants and their witnesses could not rely on any documents at the hearing that had not been disclosed by the date of that order.

16In other cases, including Morrison and Rouleau, the Tribunal has dismissed appeals where appellants have failed to comply with procedural orders and failed to attend hearing events. For example, in Rosenfeld, the appellant failed to comply with a procedural order to provide a statement of his intent to proceed with his appeal and failed to disclose any relevant documents. The Tribunal found that the appellant was not prepared to diligently pursue his appeal and ordered that the appeal be dismissed, stating at para. 20 that the appellant’s

…lack of action indicates that he is not willing or able to carry out his responsibilities as an appellant. Without information regarding whether [he] intends to pursue his appeal (and if so, which issues will be raised), and without disclosure of relevant documents, the Director and the Municipality cannot properly prepare for a hearing.

17In this case, Mr. Missaghi attended the PHC as the representative of all of the Mansteel Appellants. He agreed to the schedule that was proposed for disclosure and for the service and filing of witness statements and documents to be relied on at the hearing and agreed to the timing and length of the main hearing. He stated that he expected to retain new legal counsel for the hearing, but no notification of his having done so has been received by the Tribunal or the other parties. Since the PHC, Mr. Missaghi (both on his own behalf and as representative of the other Mansteel Appellants) has made no effort to fulfil his obligations with respect to disclosure of documents or filing of witness statements and has failed to respond to requests by the Director to comply with those obligations. He has also failed to respond to all communications from the Tribunal following the PHC. The Case Coordinator sent emails to Mr. Missaghi and Ms. Alizadeh with respect to the Director’s request for a TCC and the scheduling of this motion. Neither responded to these requests and neither, personally or through a representative, attended the TCC held to discuss the scheduling of this motion. No response to the Director’s motion, in any form, has been received by the Tribunal. Thus, the Tribunal finds that the Mansteel Appellants have failed to comply with the Rules by failing to attend a “hearing”, which is defined to include motions, have failed to comply with the August 24, 2018 Order of the Tribunal, and have failed to respond to requests from the Tribunal directed at them, despite ample opportunity to do so.

18The Mansteel Appellants have provided no indication that they intend to proceed with their appeals and have taken no action since the PHC to diligently pursue them. This is unlike the circumstances in Keswick 1 and Keswick 2, where the representative appellant continued to appear and continued to indicate his intent to proceed, and more closely resembles the circumstances in Rouleau, Morrison and Rosenfeld.

19The main hearing is less than two weeks away. The date for the filing of the Director’s witness statements is mere days away. With no disclosure and no witness statements from the Mansteel Appellants, the Director, the other Parties and the Participants are prejudiced in their ability to prepare for the hearing.

20The Tribunal finds that, in light of all of the circumstances, it is appropriate to dismiss the appeals of the Mansteel Appellants under Rule 16.

ORDER

21The Tribunal dismisses the appeals brought by Laila Alizadeh (Case No. 18-014), Arash Missaghi (Case No. 18-015) and Mansteel New Liskeard Inc. (18-016).

22The appeal by Mr. Erlick (Case No. 18-017) is unaffected by this Order.

Appeals Dismissed (Case Nos. 18-014, 18-015 and 18-016)

“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