Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: December 16, 2019
CASE NOS.: 18-039 17-032
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Corporation of the Municipality of East Ferris (File No. 18-039)
Appellant: Nipissing-Parry Sound Catholic District School Board (File No. 18-040)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to perform work to clean up an oil spill
Reference No.: 0844-AWTHJ7
Property Address/Description: 1990 Corbeil Road
Municipality: Municipality of East Ferris
ERT Case No.: 18-039
ERT Case Name: East Ferris (Municipality) v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER section 101.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Nipissing-Parry Sound Catholic District School Board
Respondent: Corporation of the Municipality of East Ferris
Subject of appeal: Order to pay in relation to the clean-up of a spill
Property Address/Description: 1990 Corbeil Road
Municipality: Municipality of East Ferris
Upper Tier: Nipissing District
ERT Case No.: 17-032
ERT Case Name: Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)
Heard: November 14, 2019 and December 9, 2019, by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Corporation of the Municipality of East Ferris | David N. Germain |
| Nipissing-Parry Sound Catholic District School Board | F.F. (Rick) Coburn |
| Director, Ministry of the Environment, Conservation and Parks | Sylvia Davis |
ORDER DELIVERED BY HELEN JACKSON
REASONS
Background
1This matter relates to two appeals that were consolidated through a previous Order of the Environmental Review Tribunal (“Tribunal”).
2The first appeal, assigned Tribunal Case No. 17-032, was filed by the Nipissing-Parry Sound Catholic District School Board (“School Board”). The School Board appeals an April 2017 order (“Municipal Order”) issued by the Corporation of the Municipality of East Ferris (“East Ferris”) pursuant to s. 100.1 of the Environmental Protection Act (“EPA”). The Municipal Order directs the School Board to pay $622,983.83 to East Ferris for costs and expenses the municipality incurred in relation to a spill of heating oil at the former St. Theresa School, 1990 Corbeil Road, East Ferris (“Site”). The Site was formerly owned by the School Board and is now owned by East Ferris.
3At the first Pre-hearing Conference (“PHC”) relating to the Municipal Order, held on August 21, 2017, the Tribunal agreed to divide the hearing of this appeal into two phases, with the first phase to consider the issue of responsibility for the spill and the second phase to consider the purpose and reasonableness of the costs and expenses incurred by East Ferris. The first phase of that appeal was heard on September 19, 2019. The Decision of the Tribunal has not yet been issued on the first phase of that appeal.
4The second appeal was filed by East Ferris and the School Board from Director’s Order No. 0844-AWTHJ7 (“Director’s Order”) and these appeals were assigned Tribunal Case Nos. 18-039 and 18-040. The Director’s Order was issued to East Ferris and the School Board by Carroll Leith, Director, Ministry of the Environment, Conservation and Parks (“MECP”) on July 13, 2018, pursuant to s. 17, 18 and 196 of the EPA. The Director’s Order relates to the same spill of heating oil at the former St. Theresa School and the migration of heating oil beyond the Site. The Director’s Order requires the completion of several work items related to: the continued operation of a trench/barrier system; development of a remediation plan for off-Site impacts; continued sampling and monitoring of groundwater, surface water and residences in the vicinity of the Site; and reporting of results and progress in remediation.
5This Order provides procedural direction in relation to the second appeal (i.e. the Director’s Order appeal).
6The parties engaged in Tribunal assisted mediation in an effort to resolve and scope the issues in this second appeal. A PHC was held by telephone conference call (“TCC”) on November 14, 2019 where the parties indicated that full resolution of the issues had not been achieved and therefore they wished to prepare for a hearing. A further TCC was scheduled for December 9, 2019, at which time the parties indicated that one issue remained, which they would continue to attempt to resolve. The parties indicated that an Agreed Statement of Facts was finalized, and that it was appropriate to set a one day hearing in early March 2020. Should the parties resolve the remaining issue, the hearing could be converted to a settlement hearing.
7Based upon the above and on the consent of the parties, the Tribunal established a one day hearing date, with filing dates as described below. The parties are to advise the case coordinator should resolution of the final issue occur.
ORDER
8The Tribunal orders that the following schedule shall govern the Director’s Order appeal:
The parties are to file an Agreed Statement of Facts and a description of the remaining issue by January 31, 2020.
The School Board is to file their Witness Statements, including copies of any expert reports, and Acknowledgment of Expert’s Duty forms by January 31, 2020.
East Ferris and MECP are to file their Witness Statements, including copies of any expert reports, and Acknowledgment of Expert’s Duty forms by February 14, 2020.
The School Board’s Reply material, if any, is to be filed by February 21, 2020.
A one day hearing is scheduled for March 2, 2020 starting at 10 a.m.
The hearing will be held at the Tribunal’s offices at 655 Bay Street, Toronto, Ontario.
9No further notice of the hearing will be given.
Procedural Directions Ordered
Hearing Scheduled
“Helen Jackson”
HELEN JACKSON
MEMBER
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Environmental Review Tribunal
A constituent tribunal of Tribunals Ontario - Environment and Land Division
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