Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
January 08, 2019
CASE NO(s).:
15-148 and
15-158
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
Appellants:
See Appendix 1 – Appellant List (15-148)
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of appeal:
Order to maintain environmental protection measures and to assess and report on environmental conditions regarding steel mill and mining operations
Reference No.:
7313-A44LL6
Property Address/Description:
Site 1: 105 West Street
Site 2: McLeod Mine adjacent to the Magpie River
Site 3: Goudreau Mine approx. 35 km northeast of Wawa
Municipality:
Site 1: Sault Ste. Marie
Site 2: immediately north of Wawa
Site 3: Aguonie Township
Upper Tier:
District of Algoma
ERT Case No.:
15-148
ERT Case Name:
Ghosh v. Ontario (Environment, Conservation and Parks)
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
Appellants:
See Appendix 2 – Appellant List (15-158)
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of appeal:
Order to maintain environmental protection measures and to assess and report on environmental conditions regarding steel mill and mining operations
Reference No.:
7313-A44LL6, Amendment No. 1
Property Address/Description:
Site 1: 105 West Street
Site 2: McLeod Mine adjacent to the Magpie River
Site 3: Goudreau Mine approx. 35 km northeast of Wawa
Municipality:
Site 1: Sault Ste. Marie
Site 2: immediately north of Wawa
Site 3: Aguonie Township
Upper Tier:
District of Algoma
ERT Case No.:
15-158
ERT Case Name:
Ghosh v. Ontario (Environment, Conservation and Parks)
Heard:
June 22, July 27 and August 29, 2016, February 10, April 25, July 27, and October 31, 2017, and February 13, June 15, September 12 and November 19, 2018 by telephone conference call
APPEARANCES:
Parties
Counsel
Essar Steel Algoma Inc., Essar Mumbai and Company Officers
Douglas F. Harrison, Patrick G. Duffy and Patrick J. Corney
Company Directors
Jennifer Teskey
Director, Ministry of the Environment, Conservation and Parks
Nadine Harris and Justin A. Jacob
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN
REASONS
Background
1On November 9, 2015, Essar Steel Algoma Inc. (“Company”) and certain of its related entities filed for protection under the Companies’ Creditors Arrangement Act (“CCAA”). The Ontario Superior Court of Justice approved a $200 million financing agreement to allow the Company to operate as a going concern while restructuring its debt. On the same day, the Director of the Ministry of the Environment and Climate Change (now the Ministry of the Environment, Conservation and Parks (“MECP”)) issued an initial Director’s Order (No. 7313-A44LL6) to the following Orderees: the Company; a related entity identified as "Essar Mumbai"; Kalyan Ghosh, Jatinder Mehra, Naresh Kothari and Kishore Mirchandani, directors of the Company (“Company Directors”); and Rajat Marwah, Pramod Kumar Shukla, David James Rennie and J. Robert Sandoval, officers of the Company (“Company Officers”). The initial Director’s Order was amended on November 15, 2015 (“Amendment No. 1”). The initial Director’s Order and Amendment No. 1 are referred to collectively as the “Order”.
2The Order relates to the following three sites in Northern Ontario, all owned by the Company: a steel mill located at 105 West Street, Sault Ste. Marie, Ontario; the McLeod Mine property located adjacent to the Magpie River, immediately north of Wawa, Ontario; and the Goudreau Mine located approximately 35 km northwest of Wawa in Aguonie Township.
3The Order is a preventative measures order issued under s. 18 of the Environmental Protection Act, intended, according to the Director, “to prevent, decrease or eliminate the risk of harm to the environment in response to the risks related to the Company’s insolvency.”
4All of the Orderees appealed both the initial Director’s Order and Amendment No. 1 to the Environmental Review Tribunal (“Tribunal”). A complete list of the Appellants is included in Appendices 1 and 2 to this order. A Pre-hearing Conference (“PHC”) regarding the appeals was held on January 28, 2016. No requests for participant or presenter status were made at that time.
5On December 18, 2015, prior to the PHC, the Tribunal had issued, by oral disposition on the consent of all parties, an interim stay on a motion brought by the Company Directors, of s. 2.9 of the Order as it applied to the Company Directors. On January 28, 2016, the Tribunal heard stay motions brought by the Company Directors and by the Company and the Company Officers. In an order issued February 2, 2016, the Tribunal confirmed the interim stay, and further stayed s. 2.9 of the Order, insofar as that section applies to the Company Directors, and s. 2.11 of the Order, insofar as that section applies to the Company and the Company Officers, until the disposition of the appeals. On April 12, 2016, the Tribunal provided reasons for granting the Company Directors’ interim stay and stay motions, and granting in part the Company and Company Officers’ stay motion.
6During a telephone conference call (“TCC”) on May 20, 2016, on consent of all of the parties, the Tribunal by oral disposition issued a stay of s. 2.11 of the Order as it applies to the Company Directors, until the disposition of the appeals. The Tribunal issued written reasons for this disposition on June 20, 2016.
7All of the stays noted above remain in place. Further information on these appeals can be found in orders of the Tribunal dated February 2, 2016, April 12, 2016 and June 20, 2016.
8Since the spring of 2016, the parties have been engaged in discussions that they hope will result in a settlement of the appeals, in the context of the ongoing CCAA proceedings. Given the positive progress in the discussions, in March 2016 the Tribunal vacated the hearing dates, which had been previously set for the appeals. The Tribunal has continued to allow time for settlement discussions to occur, but has required that status updates from the parties, by way of TCC, take place regularly as needed and has granted a series of adjournments. Counsel for the parties, listed in the Appearances section above, have attended some or all of these TCCs. During the TCCs prior to April 25, 2017, the Tribunal Panel consisted of Marlene Cashin and Heather Gibbs; since April 25, 2017, the Panel has consisted of Marlene Cashin and Maureen Carter-Whitney.
9The most recent TCC took place on November 19, 2018. At that time, the parties advised that a purchase agreement for the sale of the Company had been approved under the CCAA proceedings, and the transaction was progressing towards closing but some conditions remained to be satisfied. The parties requested a further extension of time in order to finalize a settlement agreement by the next TCC. The Tribunal agreed.
ORDER
10The Tribunal confirms that the appeal proceedings related to the Order are adjourned to a TCC with the parties to be held on January 29, 2019 at 9 a.m.
Status Update Telephone Conference Call Scheduled
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Marlene Cashin”
MARLENE CASHIN
MEMBER
Appendix 1 – Appellant List (15-148)
Appendix 2 – Appellant List (15-158)
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 (15-148)
Appellant Name
File No.
Kalyan Ghosh
15-148
Jatinder Mehra
15-149
Naresh Kothari
15-150
Kishore Mirchandani
15-151
Pramod Kumar Shukla
15-152
Rajat Marwah
15-153
David James Rennie
15-154
J. Robert Sandoval
15-155
Essar Steel Algoma Inc.
15-156
Essar Mumbai
15-157
Appendix 2
Appellant List (15-158)
Appellant Name
File No.
Kalyan Ghosh
15-158
Jatinder Mehra
15-159
Naresh Kothari
15-160
Kishore Mirchandani
15-161
Pramod Kumar Shukla
15-162
Rajat Marwah
15-163
David James Rennie
15-164
J. Robert Sandoval
15-165
Essar Steel Algoma Inc.
15-166
Essar Mumbai
15-167