Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: December 17, 2019
CASE NO.: 17-040 17-041 17-042 17-043
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Steven Monaghan (File No. 17-040)
Appellant: Ajax Auto Recyclers Ltd. (File No. 17-041)
Appellant: Ajax Recycling Depot Ltd. (File No. 17-042)
Appellant: Ajax Auto Wreckers (2003) Inc. (File No. 17-043)
Respondent: Corporation of the Town of Ajax
Subject of appeal: Order to pay costs and expenses in relation to the clean-up of a spill
Property Address/Description: 140-16 Dowty Road
Municipality: Town of Ajax
Upper Tier: Regional Municipality of Durham
ERT Case No.: 17-040
ERT Case Name: Monaghan v. Ajax (Town)
Heard: December 13, 2019 in writing
APPEARANCES:
Parties
Ajax Auto Recyclers Ltd., Ajax Recycling Depot Ltd., Ajax Auto Wreckers (2003) Inc., and Steven Monaghan
Counsel
Talia Gordner
Parties
Corporation of the Town of Ajax
Counsel
Cameron Murkar
ORDER DELIVERED BY LAURIE BRUCE
REASONS
Background
1On May 29, 2017, the Corporation of the Town of Ajax (“Town”) issued an order pursuant to s. 100.1 of the Environmental Protection Act (the “EPA”) to Ajax Auto Recyclers Ltd., Ajax Recycling Depot Ltd., Ajax Auto Wreckers (2003) Inc., and Steven Monaghan (the “Appellants”) directing them to pay $264,514.14 to the Town for costs and expenses incurred by the municipality in containing, cleaning and monitoring oily contamination found in a municipal storm channel at Westney Road and Fairall Street in the Town of Ajax (the “Order”). The Town alleged that on several occasions starting in or about April 2015 and continuing to 2017, the Appellants discharged contaminants from their property/operations at 140/160 Downty Road in Ajax into the storm sewer which drains into a storm channel/ditch and then into a tribuatary of Duffins Creek.
2The Appellants filed a notice of appeal with the Environmental Review Trubunal (“Tribunal”) on June 12, 2017 seeking that the Order be set aside on various grounds.
3The Town also filed a civil claim against the Appellants in the Superior Court of Justice and filed charges against the Appellants under the Town’s sewer-use by-law.
4The Tribunal held several Pre-hearing Conferences (“PHC”) in 2017 and 2018. No participants or presenters were added to the proceedings. A hearing of the merits was set for June 10-14, 2019.
5On March 11, 2019, the Tribunal received a letter submitted on behalf of the Appellants and the Town advising that they had reached a settlement with respect to the appeal before the Tribunal.
6The settlement terms as they relate to the proceeding before the Tribunal are that the appeal will be stayed pending the payment of the settlement funds within six months of March 6, 2019, without prejudice to the parties. The settlement included that the Tribunal would be advised once the settlement funds were paid and the Appellants would then withdraw their appeal; or in the alternative, if settlement funds were not paid, the parties would resume proceeding with the next steps in the appeal.
7On September 13, 2019, the Tribunal was advised that the settlement funds had been paid pursuant to the terms of the settlement agreement between the parties. The Appellants advised the Tribunal that they are withdrawing their appeal of the Order (Tribunal File Nos: 17-040, 17-041, 17-042, 17-043) on a without costs basis.
8On December 6, 2019, in response to a query from the Tribunal, the Town advised that the Order has been rescinded by the Town.
9The Tribunal has reviewed correspondence and submissions and has considered whether the proposed revocation was consistent with the purpose and provisions of the EPA and in the public interest in accordance with Rule 202 of the Tribunal’s Rules of Practice (the “Tribunal’s Rules”).
Relevant Legislation and Rules
10The following are the relevant provisions of the EPA and the Tribunal’s Rules:
Purpose of the Act
3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
The Tribunal’s Rules
Termination of Proceedings
- Where a Director, a Risk Management Inspector or Official or a municipality proposes to revoke the 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.
Issue
11The issue is whether to dismiss the appeal by accepting the proposed revocation of the Order and withdrawal of the appeal.
Discussion, Analysis and Findings
12Tribunal Rule 202 requires the Tribunal to consider whether the proposed revocation of an Order is: i) consistent with the purpose and provisions of the EPA; and ii) whether it is in the public interest. The Tribunal must also consider the interests of parties, participants and presenters. The Tribunal has the discretion either to continue with a proceeding or to dismiss it.
13In Part 3 of the Order, the Town describes the work that the Town did to isolate, monitor and remediate the contaminants (hydrocarbon fluids) discharged into the Town’s sewer system. The Order relates to the recovery of costs and expenses from the Appellants for the remediation that the Town already completed. Since the remediation has already occurred, there has been action to protect the environment which is consistent with the purpose and provisions of the EPA. Therefore, the revocation of this Order remains consistent with the purpose and provisions of the EPA.
14The Tribunal must also consider if the recovery of costs through a settlement agreement and the proposed revocation of the Order is in the public interest. The Town, which is responsible to its taxpayers and the public interest, concluded that the money recovered through the settlement agreement on balance is preferable to continuing with the Tribunal Hearing.
15The Tribunal has considered the parties’ submissions and finds that the proposed revocation is consistent with the purpose and provisions of the EPA and is in the public interest. The Tribunal revokes the s. 100.1 Order as against the Appellants and dismisses the proceedings arising from them pursuant to Tribunal Rule 202.
ORDER
16The Tribunal revokes the Town’s s. 100.1 Order as against the Appellants. In accordance with Tribunal Rule 202, the corresponding appeals (Tribunal File Nos. File Nos: 17-040, 17-041, 17-042, 17-043) are dismissed.
Order Revoked
Appeals Dismissed
“Laurie Bruce”
LAURIE BRUCE
MEMBER
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Environmental Review Tribunal A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248