2127940 Ontario Limited v. Ontario (Environment, Conservation and Parks), 2019 CanLII 29093

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

April 1, 2019

CASE NO.:

18-026

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant:

2127940 Ontario Limited

Respondent:

Director, Ministry of the Environment, Conservation and Parks

Subject of appeal:

Order to perform work to remove all waste material from the Site with an Environmental Compliance Approval

Reference No.:

6712-ASYQ8S

Property Address/Description:

825 Quesnel Road

Municipality:

West Nipissing

ERT Case No.:

18-026

ERT Case Name:

2127940 Ontario Limited v. Ontario (Environment, Conservation and Parks)

Heard:

November 28, 2018 by telephone conference call, December 4, 2018 in Sturgeon Falls, Ontario and in writing

APPEARANCES:

Parties

Counsel/Representative+

2127940 Ontario Limited

Luc Lemieux +

Director, Ministry of the Environment, Conservation and Parks

Mitchel Boughs, Jon Bradbury and Catherine Bulman(Student)

DECISION DELIVERED BY MARLENE CASHIN AND MARCIA VALIANTE

REASONS

Background

1On November 15, 2017, Brent Trach, a provincial officer with the North Bay Area Office of the Ministry of the Environment and Climate Change (now the Ministry of the Environment, Conservation and Parks (“MECP”)), issued Provincial Officer’s Order No. 6712-ASYQ8S (“Provincial Officer’s Order”) to 2127940 Ontario Limited (“Appellant”). The Provincial Officer’s Order required the Appellant, by specified dates, to: cease the deposit of demolition waste on a site located at 825 Quesnel Road, West Nipissing (“Site”); remove all waste from the Site by an approved waste hauler and deposit the waste at an approved waste disposal site; provide written confirmation of the waste hauler’s name and registration number; and provide copies of receipts regarding the quantity and type of waste disposed of.

2Luc Lemieux, a principal of the Appellant, requested a review of the Provincial Officer’s Order by the MECP Director in accordance with s. 157.3 of the Environmental Protection Act (“EPA”). On May 4, 2018, MECP Director Carroll Leith confirmed the Provincial Officer’s Order and altered certain of the compliance dates (“Director’s Order”).

3The Appellant appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on May 17, 2018 and requested that a motion for a stay of the Director’s Order be heard. A stay motion was heard via telephone conference call (“TCC”) on June 14, 2018, and by an order of June 15, 2018, with reasons following on July 24, 2018, the Tribunal refused the Appellant’s request for a stay of the Director’s Order and dismissed the motion.

4On August 1, 2018, the Pre-Hearing Conference (“PHC”) in the matter was held in Sturgeon Falls. At that time, the parties told the Tribunal that some of the material had recently been removed from the Site, with just three large piles of waste remaining. The parties jointly asked that the Tribunal adjourn the PHC in order to allow for full compliance with the Director’s Order to take place. The Tribunal agreed to the adjournment.

5On September 18, 2018 the PHC resumed by TCC. The parties informed the Tribunal that further steps toward compliance with the Director’s Order had not occurred, and that mediation would not be helpful to the parties. The Tribunal, in consultation with the parties, scheduled dates for the hearing of the appeal and other procedural matters. These were confirmed by order of the Tribunal dated September 27, 2018.

6Two further TCCs were held: on November 7, 2018 to discuss witness statements and other documents to be filed with the Tribunal for the hearing of the appeal; and on November 28, 2018 to address the Director’s request (not opposed by the Appellant) that the parties be allowed to file written final submissions with the Tribunal approximately one month after the hearing of the appeal. The Tribunal consented to the request for written final submissions and set a schedule for the serving and filing of those documents.

7The hearing of the appeal took place on December 4, 2018, in Sturgeon Falls, Ontario. Filing of final written submissions was completed on January 31, 2019.

Issues

8The main issue is whether the Director had authority to issue the Director’s Order. The two sub-issues are:

1(a) whether the demolition debris at the Site is “waste” under the EPA and its regulations; and

1(b) whether the Appellant has established an unapproved “waste disposal site” by leaving the debris at the Site.

9Mr. Lemieux raised a further issue in final submissions as to whether costs should be awarded against the Director. This is addressed below as Issue 2.

Relevant Legislation and Regulations

10The relevant legislation is contained in s. 25, s. 27 and s. 40 of the EPA as well as Regulation 347, R.R.O. 1990, Reg. 347 (“Reg. 347”) and the schedules to Ontario Regulation (“O. Reg.”) 101/94. Excerpts of these are attached as Appendix 1 of this decision.

Discussion, Analysis and Findings

Evidence

Brent Trach

11Mr. Trach, the Provincial Officer with the North Bay Area Office of the MECP who issued the Provincial Officer’s Order, testified on behalf of the Director. His testimony was supported by documents in his affidavit sworn on June 12, 2018 (filed in response to the Appellant’s previous motion for a stay of the Director’s Order) (“Trach Affidavit 1”) and his affidavit sworn on November 9, 2018 (“Trach Affidavit 2”), which he adopted as evidence for the hearing.

12In his testimony, Mr. Trach explained that the debris on the Site, which is the subject of the Director’s Order, originated from the demolition of the Sunbeam Lodge, which was located on the western side of Quesnel Road, across the road from the Site (“Lodge Property”). He said that in mid-2017 the Appellant moved the demolition debris from the Lodge Property across the road to the Site. He testified that a Geowarehouse website property search, conducted by MECP staff, indicated that the Site is located at the address known as 825 Quesnel Road and is described as Property Identification Number (“PIN”) 490760742 PT LT CON B Springer, West Nipissing, District of Nipissing, Sturgeon Falls. It is located on the eastern side of Quesnel Road. The Lodge Property, although also municipally known as 825 Quesnel Road, has a different PIN: PIN 490760741. Both the Lodge Property and the Site were identified as being owned by the Appellant, 2127940 Ontario Ltd.

13Mr. Trach reviewed the timeline of the events leading up to the issuance of the Provincial Officer’s Order. He said that he responded to a complaint regarding waste being deposited on the Site on September 14, 2017, and spoke to Mr. Lemieux, who identified himself as the owner of the Site and said that he was demolishing the Sunbeam Lodge and moving the demolition material to the Site with the intention of recycling the materials. Mr. Lemieux indicated that he hoped to have the clean-up of the Site completed by fall 2017. At that time, Mr. Trach said, he observed debris, including pink fiberglass insulation, shingles, couches, mattresses, plastic, laminated wood, wood waste, painted wood, siding and other building materials, co-mingled in un-sorted piles on either side of a laneway leading to the back of the Site.

14Mr. Trach testified that there was no indication on September 14, 2017 that any of the wastes on the Site were being sorted or recycled. Therefore, he said, on September 20, 2017, he emailed Mr. Lemieux explaining that he suspected the Appellant was in violation of s. 40 of the EPA and asked that the materials be removed and deposited at an approved waste disposal site by October 13, 2017.

15A series of phone calls, emails and inspections took place between September 21, 2017 and November 21, 2017 which were described in Trach Affidavit 1 as follows:

15. On September 21, 2017 Mr. Lemieux called me in response to my email. He indicated that he was removing some of the waste but would not have it completed by the October 13, 2017 date I requested in my email. I asked if he could provide me with a timeframe for the removal of the waste. He did not provide me with a timeframe.

16. On October 6, 2017 I conducted another inspection at the Site and found no indication that waste was being removed from the Site. A series of photos of the Site and waste observed during my October 6, 2017 inspection are attached hereto as Exhibit “E”.

17. On October 25, 2017 I emailed Mr. Lemieux regarding the status of the removal of the waste from the Site and received no response to this email. The October 25, 2017 email to Mr. Lemieux is attached hereto as Exhibit “F”.

18. On November 3, 2017 I arrived at the Site to perform another inspection and met Mr. Lemieux. The demolition waste I had first observed on September 14, 2017 still remained at the Site. I informed Mr. Lemieux that it was my intention to issue him a Provincial Officer’s Order to remove the waste from the Site. He indicated that he would appeal my order. A series of photos of the Site and waste observed during my November 3, 2017 inspection are attached hereto as Exhibit “G”.

19. On November 15, 2017 I emailed Mr. Lemieux Provincial Officer’s Order 6712-ASYQ8S (the “POO”) to the email address Mr. Lemieux had provided me. In my email to Mr. Lemieux I asked that he respond back to me to confirm receipt of the Order, but I never received a response to my email. On November 21, 2017, I served a copy of the POO on Mr. Lemieux by regular mail, since I had not received a response confirming receipt of the Order I had emailed him on November 15, 2017. Attached and marked as Exhibit “H” is a copy of the issued POO.

16Mr. Trach testified that he was notified on December 1, 2017 that Mr. Lemieux had requested a review of the Provincial Officer’s Order. He said it is his understanding that the Director, Ms. Leith, spoke and corresponded with Mr. Lemieux regarding the request for review and status of the cleanup of the Site through January and February of 2018.

17Mr. Trach testified that on March 27, 2018 he received a telephone message from a resident who lives near the Site, saying that a fire had been observed on the Site the previous evening. The Fire Prevention Officer of the West Nipissing Fire Service confirmed for Mr. Trach that the Fire Service had responded to a fire at the Site the previous evening and extinguished the fire. Mr. Trach said he then went to the Site with the Fire Chief and Fire Prevention Officer, performed an inspection, and took photographs. Mr. Trach stated that he observed two waste piles at the Site that had been burned, and that shingles, window frames, wire, plastic and insulation had been burned in the fire. He provided photographs of the waste observed during that inspection in Trach Affidavit 1.

18Mr. Trach testified that he spoke by telephone to Victor Coelho, who is listed as an administrator of the Appellant on March 29, 2018, and he informed Mr. Coelho that waste had been burned at the Site contrary to the EPA. Mr. Coelho indicated that he did not know who was burning materials at the Site.

19Mr. Trach testified that on May 4, 2018, the Director confirmed the Provincial Officer’s Order and altered certain of the compliance dates.

20Mr. Trach further testified that, on May 22, 2018, he received a phone call from a resident who lives near the Site, informing him that the previous evening a backhoe was seen burying waste at the Site. The resident provided photographs of the backhoe on the Site, which Mr. Trach included in Trach Affidavit 1.

21Mr. Trach said he inspected the Site on May 24, 2018 and observed the same waste at the site that he had seen in previous inspections, and that “it appeared that some of the waste had been disturbed and flattened and then covered with soil”. Mr. Trach stated that a backhoe parked nearby appeared to be the same backhoe as the one in the photographs sent to him by the resident who had called him on May 22, 2018. Mr. Trach advised that he called Mr. Coelho regarding the burial of waste but was told that the waste was not being buried but would be recycled. When asked if he knew where the waste would be recycled, Mr. Coelho said he did not know. Mr. Trach said that he advised Mr. Coelho that it would be a violation of the EPA to bury the waste.

22Mr. Trach testified regarding the potential harm resulting from the situation on the Site to the health and safety of individuals, the natural environment, plant and animal life. He said that as the Site is located in a grassy field and, in the event of another fire, the fire could spread and pose a danger to surrounding properties and residents. He provided evidence of an “Extreme” forest fire danger rating for the area, from a June 11, 2018 search he conducted, of the Forest Fire Information Map maintained by the Ministry of Natural Resources and Forestry. He also noted that the Site is adjacent to a commercial farm that offers access to the public to “pick your own” fruits and vegetables, and said that open burning of waste can be a concern because of the pollutants that end up in soil and water and on plants, which can then enter the food chain.

23Mr. Trach noted that the lack of control and security at the Site and the nature of the waste, with nails, sharp metal and other hazards, could pose a risk to wild animals, pets or children accessing the Site. Mr. Trach testified that the Site is located within 100 metres of the Sturgeon River, and that the North Bay MECP office had received several calls from concerned local residents about insulation that had blown into the River and concerns that the waste on the Site could have an impact on the local environment.

24Mr. Trach testified as to matters that took place after Trach Affidavit 1 had been sworn on June 12, 2018, and provided photographs and other documents in support of this evidence in Trach Affidavit 2. Mr. Trach said that he met with Mr. Lemieux at the Site on June 26, 2018. At that time, some of the waste from the Site was being placed in a container from Miller Waste Systems Inc. (“Miller Waste”) to be disposed of at an approved waste disposal site. He stated that he returned to the Site on July 17, 2018, at which time he observed that the remaining waste had been co-mingled with soil and consolidated into three large piles. He said that there were no waste containers visible at the Site at that time.

25Mr. Trach testified that he attended the PHC for this matter on August 1, 2018, at which time Mr. Lemieux provided him with an invoice from Miller Waste indicating that three containers of waste had been removed from the Site between June 22 and June 28, 2018. Following the PHC, he said, he inspected the Site in the company of Angela Whitely (MECP Supervisor) and Mitchel Boughs, counsel for the Director. He said that there were no noticeable changes to the size and contents of the three waste piles at the Site from those he had observed on July 17, 2018.

26In an email message sent to Mr. Lemieux on August 9, 2018, Mr. Trach repeated his message left in a voice mail message to Mr. Lemieux the day before, that the material remaining at the Site was waste, and therefore must be removed and disposed of in accordance with the Director’s Order.

27Mr. Trach said that on November 7, 2018, he inspected the Site once again and observed no noticeable changes to the three waste piles at the Site from what he observed during his previous inspection on August 1, 2018.

28In response to Mr. Lemieux’s questioning about the Site and the Lodge Property being one or two properties, Mr. Trach said in the beginning there was confusion about whether there was one property or two, given the existence of two PINs and the fact that the properties were on opposite sides of the roadway. Nevertheless, Mr. Trach said, regardless of whether there were one or two properties, the waste had to be removed. He stated that even if the materials had been left on the Lodge Property and not moved across the road to the Site, he would still have issued the Provincial Officer’s Order.

Carroll Leith

29Ms. Leith, District Manager of the Timmins District Office, which includes the North Bay Area Office of the MECP, and the Director in this matter, testified under summons by the Appellant.

30Under questioning by Mr. Lemieux, Ms. Leith said she did not recall when she first knew there was an issue regarding the two PINs. She said she did not make an assumption there were two properties involved; she was told that there were two properties. However, Ms. Leith stated, her primary focus was on the waste and whether it was being deposited on a site for which no Environmental Compliance Approval (“ECA”) had been issued. When asked at what point material becomes “waste”, Ms. Leith testified that it depends on the circumstances, but that one issue is the time it takes to separate the materials for recycling. She noted that, from her previous experience with larger demolition projects, specifically for 2,000 square metres or more, recyclable materials are separated immediately and plans, including a timeframe, for the removal of the remainder are required. She stated that with smaller demolition projects, removal of all materials is typically completed within a single season.

31In response to Mr. Lemieux’s questioning regarding not giving him a call back between January and May 2018 in response to his request for a review of the Provincial Officer’s Order, Ms. Leith said she was reviewing the information she had been provided with, and then became concerned when the fire on the Site happened in March 2018. Ms. Leith said that what she knew regarding the fire at the time she issued the Director’s Order, was what she had been told by the Provincial Officer, that a fire had occurred on the Site and that the fire department had responded.

32When asked by Mr. Lemieux if he had ever expressed to her any intention that the company would be leaving waste on the site, she said she did not think Mr. Lemieux had ever said he would not be removing the materials.

33Mr. Lemieux questioned Ms. Leith regarding her understanding of the Resource Recovery and Circular Economy Act. She said she was aware that manufacturers are asked when materials are being produced, if they are able to be recycled or diverted in some way. She was asked if she thinks training of government employees is failing in sharing information on the circular economy. Ms. Leith responded that messaging does go out to government staff regarding the Resource Recovery and Circular Economy Act, and she thinks the Ministry is making positive efforts in this regard. She was asked if, in the current situation, she or the Provincial Officer could have proposed actions to be taken other than removal of materials to a landfill. She said that perhaps her Order could have been clearer, but that hindsight is always an opportunity to learn.

34She reminded Mr. Lemieux and the Tribunal that when she issued the Director’s Order, she was of the opinion that the waste was being moved from one property to another. However, Ms. Leith said, when issuing the Director’s Order her primary focus was on the nature of the waste itself, not so much on the moving of it around the Site.

35Under questioning by Mr. Boughs, counsel for the Director, Ms. Leith testified that she agrees that timely recycling means that recycling cannot go on forever, and materials cannot be left at an unapproved waste disposal site. When asked what the concern is with waste and recycling being co-mingled, Ms. Leith said that it adds further concern, because the materials degrade and have a larger effect on the environment because of the co-mingling. Regarding the plans put in place for larger sites referred to earlier, Ms. Leith agreed with the suggestion that making a plan with timelines is best done earlier in the process and this is the case for both larger and smaller demolition sites. She was asked why the fire at the Site made her more concerned than she had been previously. She responded that fires definitely pose a risk to human health, and that one problem with leaving materials on the Site is that they can leach out and affect groundwater. She also testified that putting waste in an area that is not a landfill can encourage others to add waste materials to that pile, which is one reason for creating proper landfills. Regarding personal waste being deposited on someone’s own land as opposed to another property, Ms. Leith said that the act of dumping the materials in piles on the Site constituted a deposit as per s. 40 of the EPA.

Luc Lemieux

36Mr. Lemieux, President of 2127940 Ontario Limited, testified on behalf of the Appellant. His testimony was supported by a package of materials originally submitted for the hearing of the stay motion, which included: the Provincial Officer’s Order; the Director’s Order; a Building Permit; photographs showing reclamation processing for various kinds of materials on the Site; tax documents and land registry documents regarding the Site; and photographs showing evidence of a fire on the Site (“Lemieux Documents”).

37Mr. Lemieux expressed his frustration with the situation regarding the “location issue”. He testified that from the time that the Provincial Officer’s Order was issued on November 21, 2017 until the day before the hearing began on December 4, 2018, the Director’s position was that, the locations, from which and to which he had moved materials across the road, were two properties and not one, despite Mr. Lemieux’s insistence all along that it was one property. Now, he said, the nature of the waste is the issue, not location.

38Mr. Lemieux explained that his company purchased the lands 12 years ago and has been gradually clearing them of the existing buildings for development of a high-end residential subdivision. He said they first demolished a cottage and garage and that waste from that demolition was brought to a waste disposal site. In the second year he said, they hired a contractor to demolish the foundation of a building called “the bar” and the contractor removed the materials. He stated that 80 percent of the docks located along the Sturgeon River were removed but that six docks remain. He testified that, when the company bought the property, they added Styrofoam insulation and siding to a building containing four two-bedroom units and six one-bedroom units which they rented out. Eventually, he said, heating bills and taxes were increasing so they decided to take that building down as well. He said they removed all doors and siding and other materials that they could salvage, and that process resulted in 30 to 40 percent of the building remaining.

39Mr. Lemieux explained that the reasons he moved the materials from the Lodge Site across the road, about 500 to 600 feet behind a treeline, were to keep them away from the river, and to not affect the visual appeal of the area while he continued to salvage recyclable materials. Then, he said, the Director’s Order was issued and everything stopped. He interpreted the Director’s Order as prohibiting him from recycling any more materials.

40Mr. Lemieux testified that he believes that the MECP simply did not understand the process that the Appellant intended to use to remove as much recyclable material as possible. He said that his partner invented a machine which could help with the sorting of recyclable materials and waste, and that the process involved creating rows approximately 50 feet long and with 8 feet between the rows to create firebreaks.

41Counsel for the Director reviewed with Mr. Lemieux many of the photographs Mr. Trach had taken of the Site and those that had been provided by the nearby resident, focusing on the three piles of waste that Mr. Trach says have remained essentially the same from July 17, 2018 to November 7, 2018.

42Regarding the fire that occurred on the Site he said that yes, there was a fire on the Site, but that lots of fires occur in the province and not all fires present a potential danger to the public.

43Under cross-examination by Mr. Boughs, Mr. Lemieux conceded that even though he maintained that all removal of materials on the Site had halted because of the Director’s Order, some materials had in fact, been removed since the Director’s Order was issued. When asked if he is planning to clean up the Site and remove the waste materials, Mr. Lemieux said he is, although when asked when he would have the work completed, Mr. Lemieux was unsure. He continued to maintain that, if the Director’s Order had not been issued, the Appellant could have removed everything from the Site a long time ago.

44In reviewing some of the photographs of the Site and the materials left on the Site, Mr. Lemieux said that most of the pink insulation has been taken off the Site to the dump and that, although the remaining materials are not covered, they cannot blow onto other nearby properties, with the exception of Styrofoam. He testified that there have not been any fires on the Site other than the one in March of 2018, but conceded that there is no signage to warn people, and no fences to keep children or animals off the Site. Regarding the covering of materials with soil, Mr. Lemieux said that there was some dirt on top of the first of the three piles of remaining materials, but that it was not meant to hide anything or to bury the materials permanently. When asked about the possibility that an amendment to the Director’s Order could allow for the materials to be removed, Mr. Lemieux estimated that it would take a maximum of three or four days for the work to be completed, but maybe less.

45Mr. Lemieux also testified, when questioned by Mr. Boughs, that he intends to demolish the remaining buildings on the Appellant’s lands as soon as the spring of 2019 and would like to follow a similar process for the recycling of the materials.

Director’s Submissions

46The Director takes the position that all three piles of debris left on the Site are “waste” due to the nature of the materials in those piles. No further use can be made of the debris, the Director says, and the materials are co-mingled and have broken down to the point that any further sorting and recycling by the Appellant is no longer feasible in any of the piles. However, in the alternative, the Director says, even if the Tribunal agrees with the Appellant that further recycling is possible in Piles 1 and 2 before what remains can be taken to landfill, all Parties agree that waste is present in all three piles.

47The Director’s position is that, given the nature of the remaining debris and the amount of time that has passed, the Site is currently or will eventually become a waste disposal site. As of the filing of final submissions, the Director says, the debris has been left on the site for 16 months. By simply being left where it is, the debris is “disposed of” at the Site at some point in time. This, the Director submits, is contrary to s. 27 of the EPA because no waste disposal ECA has ever been issued for the Site.

48The Director further submits that the remaining debris should be removed to landfill by an approved waste hauler. Mr. Lemieux gave evidence that he could sort through the first two of the piles and remove any additional recyclable materials within a few days after the snow has melted and the site is accessible in the spring of 2019. Therefore, the Director submits, it is reasonable for the Appellant to finish any final sorting and recycling and remove all remaining debris from the Site by the end of July 2019.

Appellant’s Submissions

49The Appellant submits that the Director did not have authority to issue the Director’s Order and that the mistake in thinking that there were two properties between which the debris was being moved set about a chain reaction in the demolition process. Mr. Lemieux said that MECP officials stated that, because the Appellant had moved the mixed materials from one location to another, it was all waste, therefore he could not recycle any of the materials, and it would all have to be sent to an approved landfill site.

50Mr. Lemieux submits that the Appellant knew the MECP was wrong, and it asked for a review of the Provincial Officer’s Order to get a clear and concise ruling on the matter. He says the Appellant proceeded to clean the recyclable materials at the Site while it waited for the ruling on the review.

51Mr. Lemieux submits that the Director knew or should have known that the Director’s Order was made in error, and that whether the error was made consciously or unconsciously “it should be struck down with prejudice”.

52Regarding the complaints by neighbours, the Appellant submits that despite the fact that numerous neighbours were concerned with its activities, nobody showed up or wrote to voice their concerns at the PHC or the Hearing.

53The Appellant submits, in response to the Director’s concern that it would abandon the property, that in April of 2018 it paid off the remaining mortgage balance and the total taxes owing on the property in excess of $700,000. As it has been estimated that the balance of the clean-up would take a few days to complete, the Appellant submits, it would be “ludicrous” for it to abandon the property.

54The Appellant says that, when Ms. Leith was questioned at the hearing, she said that the Appellant did not have the right to bring its own demolition waste to the local landfill without a licence. The Appellant says it would be another error in law to force it to get a licence to haul its own waste with its own equipment, since the local landfill site has monthly tipping free days when local businesses can bring their own waste to the landfill and that the majority of those businesses are unlicensed to haul demolition waste.

55Regarding the remaining three piles of materials on the Site, the Appellant submits that it would “separate the remaining wood, copper, steel and waste, the remaining could be grinded and the balance could be processed and used as fill at the local landfill site.”

56The Appellant requests of the Tribunal a “clear and concise approach” to undertakings involving future demolition of other buildings for property development. Specifically the Appellant asks:

• what time frame is acceptable to do the work?

• what materials can we recycle or divert?

• can we transport our own waste with our own equipment without a license?

Analysis and Findings

Sub-issue Issue 1(a): whether the demolition debris at the Site is “waste” under the EPA and its regulations

57There is no real dispute between the parties that debris remaining on the Site today is “waste” requiring disposal, even if at the time the lodge was demolished at least some of the debris did not fall within the definition of “waste”. Mr. Lemieux argues that, at the time the Director’s Order was issued, the material did not fall within the definition of “waste”.

58Under s. 25 of the EPA, “waste” is defined to include “ashes, garbage, refuse, domestic waste, industrial waste, or municipal refuse and such other materials as are designated in the regulations.” Reg. 347 exempts recyclable materials, identified in the schedules to O. Reg. 101/94, from the requirements of Part V of the EPA and the Director cites the Ontario Court of Justice decision in Philip Enterprises Inc. v. Ontario (MOEE), [1997] O.J. No. 6422 (“Philip”), in support of her position that the term “waste” has been interpreted as excluding residual materials where there is an intention and ability to make further use of them or recover their economic value. Further, Reg. 347 designates certain materials from the demolition of a building, specifically brick, corrugated cardboard, concrete, drywall, steel and wood, as wastes from the time they leave a demolition “site”. “Site” is defined in s. 1 of Reg. 347 to mean “one property and includes nearby properties owned or leased by the same person where passage from one property to another involves crossing, but not travelling along, a public highway.” Although the Director originally believed that the demolition debris had left the demolition “site”, she now concedes that this was not the case and has abandoned that as a basis for her decision to issue the Director’s Order.

59In the Philip decision, the court stated, at para. 28, that an expressed intention to recover materials for sale and the value of those materials must be “objectively viewed in context”, adopting the approach followed in a decision from the Ontario General Division, Kermecho Co. v. Ontario (Minister of the Environment), 1992 O.J. 1791. Invoices from Mr. Lemieux indicate that copper piping, steel shred and aluminum were removed and sold in September 2017, but no evidence was provided of the removal and sale of any recyclable materials after that date; the only evidence of material removed after that date is the removal by Miller Waste in June 2018 of material that required landfilling. Although Mr. Lemieux expressed his intention to continue to remove and sell recyclable materials from the remaining piles of debris, he provided no objective evidence to demonstrate that there is any recyclable material having any economic value remaining on the Site. Mr. Trach’s statements, based on his experience, and the evidence from Mr. Trach’s repeated inspections of the Site indicate that the nature of the materials remaining after September 2017 do not appear to contain recyclable materials and are co-mingled with waste to such an extent that recycling would be impractical if not impossible. However, even if there are some materials which may still be able to be recovered for recycling, all parties agree that each pile includes some amount of waste requiring disposal, and that Pile No. 3 is composed exclusively of waste.

60The Tribunal finds that the demolition debris at the Site comes within the meaning of “waste” in the EPA and Reg. 347.

Sub-issue 1(b): whether the Appellant has established an unapproved “waste disposal site”’ by leaving the debris at the Site

61Section 25 of the EPA defines “waste disposal site” as follows:

“waste disposal site” means,

(a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and

(b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a);

62Mr. Lemieux’s position is that the debris is being temporarily stored on the Site so that recyclable materials can be removed; the Director’s position is that the length of time it has taken to accomplish this removal has gone beyond temporary storage and should now be treated as a deposit of waste on the Site. While the early stages of Mr. Lemieux’s processing of the demolition debris for the purpose of removing recyclable materials may not have been a deposit of waste, the extended time taken to accomplish this has not been justified. Mr. Lemieux argues that issuance of the Director’s Order, which required removal of the remaining materials for disposal, precluded further processing of recyclables. However, the evidence indicates that Mr. Trach first encouraged and eventually ordered the Appellant to take timely action to complete clean-up of the Site. Nothing prevented Mr. Lemieux from doing so. He requested a stay of the Director’s Order, but this was refused by the Tribunal. Thereafter, Mr. Lemieux did contract for the removal of some of the waste, leaving behind the remnants of the original pile of debris, which have been left unattended since. Given the time that has elapsed and the lack of action on the part of the Appellant, the Tribunal finds that the remaining piles of waste constitute a “deposit” of waste on the Site.

63The evidence shows that no ECA has been issued for the Site. Therefore, to allow the waste to remain at the Site is to establish a waste disposal site in contravention of s. 27 of the EPA, which states in part:

27 (1) No person shall use, operate, establish, alter, enlarge or extend a waste management system or a waste disposal site except under and in accordance with an environmental compliance approval.

64As well, s. 40 of the EPA forbids the disposal of waste as follows:

No person shall deposit, or cause, permit or arrange for the deposit of, waste upon, in, into or through any land or land covered by water or in any building that is not a waste disposal site for which an environmental compliance approval or renewable energy approval has been issued or a registration under Part II.2 is in effect and except in accordance with the terms and conditions of the approval or the regulations made for the purposes of Part II.2.

65The Tribunal finds that the Appellant has established an unapproved waste disposal site by leaving demolition debris at the Site.

Issue 2: Whether Costs Should be Awarded Against the Director

66In his written submissions served and filed on January 24, 2019, Mr. Lemieux raised two issues for the first time: a request for costs and an allegation of abuse of power by Ministry staff. The Director submits that abuse of power (or process) was not raised as a ground of appeal in this matter, otherwise the Director would have led evidence and addressed such an allegation at the hearing. Although not raised in accordance with the Tribunal’s Rules of Practice and Practice Directions (“Rules”), the Director did make submissions on these two issues in its “Reply Submissions of the Director”, which was served and filed on January 31, 2019. As such, the Tribunal has decided to address these issues now.

67Regarding the Appellant’s request for costs, Mr. Lemieux referred to the circumstance whereby the Director abandoned one of its original positions. Mr. Lemieux said: “[t]he original order and subsequent order given by the Director that we were moving the mixed recycling materials from one location to another was a material error in law and confirmed at the hearing by the representatives of MOEE [MECP].” The Appellant is asking for costs related to reimbursement for two legal opinions it obtained on that issue. Pursuant to Rule 225, by s. 17.1 of the Statutory Powers Procedure Act, “the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.”

68In Wiggins v. Ontario (Environment and Climate Change), 2018 8110 (ON ERT), (“Wiggins”) a recent decision of this Tribunal, where the Director changed a position in the middle of the hearing, the Tribunal found that the Appellants had not established that this conduct was unreasonable, saying:

The Tribunal recognizes that changing a position without notice (see Rule 225(b)) could amount to improper conduct, but it must also be recalled that a “witness has a duty to change his or her opinion where circumstances, such as the receipt of new information, require it” (see s. 9(f) of the Tribunal’s Practice Direction for Technical and Opinion Evidence). Similar considerations may apply to a party. A party should not steadfastly adhere to an unsupportable position once evidence arises that undermines that position out of fear that changing a position will necessarily lead to a costs award against it. A party is clearly entitled to re-evaluate its position in an appeal proceeding as the evidence unfolds. Therefore, the Tribunal finds that the Director acted responsibly in changing its position during the course of the proceeding based on the evidence that came to light.

69The Tribunal sees no reason, in this case, to depart from the guidance set out in Wiggins on a change of position by a party. The Tribunal accepts that the abandonment by the Director of the issue that waste was moved from one property to another, as opposed to, moved from one location to another on one property, was reasonable in light of the fact that the mistake became apparent as evidence was revealed and further opinions were sought.

70With regard to the allegation by the Appellant that there has been an abuse of power by MECP staff in this matter, the Tribunal has reviewed the evidence contained in Trach Affidavits 1 and 2, the Lemieux Documents, and the oral evidence that it has heard in both the Motion Hearing held on June 14, 2018 and in the main Hearing held on December 4, 2018. It has also reviewed the written submissions of the parties with regard to this issue.

71The Tribunal declines to order costs in this matter. There has been no evidence provided that the Director’s decision to abandon her position prior to the hearing of the matter was made unreasonably or for any other reason than as a result of the re-evaluation of that position as more evidence or opinion came to light. Regarding the allegation of abuse of power by MECP staff, the Tribunal finds that there is no evidence to support such an allegation.

Conclusions

72In summary, the Tribunal finds that, because the debris is waste and it has been deposited without an ECA, the Director had authority to issue the Director’s Order. As a result, the Tribunal finds that the Director’s Order should be upheld and the remaining waste removed from the Site in accordance with the Director’s Order. As noted by the Director, the Appellant never said that he will not remove the waste materials from the site at some point. This was confirmed by Mr. Lemieux for the Appellant. However, given that the dates for the removal of the waste have long passed, the remaining concern is what is a reasonable timeframe for the removal of the waste.

73The Director provided the Tribunal with proposed amendments to the Director’s Order to address this timing concern. These proposed amendments provide for a final recycling opportunity, a timeline for the Appellant to complete those steps, and the removal of all remaining waste from the Site by July 31, 2019.

74The Tribunal agrees that the proposed amendments to the Director’s Order, as set out in Appendix 2 of this decision, would provide an appropriate means and a reasonable timeframe for ensuring that the Appellant is able to clean up the Site in a timely way.

75The Appellant has requested that the Tribunal also provide it with a “clear and concise approach” to undertakings involving future demolition of other buildings for property development. Specifically, the Appellant has asked: “what time frame is acceptable to do the work; what materials can we recycle or divert”; and “can we transport our own waste with our own equipment without a license?”

76Although the Tribunal appreciates the Appellant’s wish for certainty in its future activities regarding demolition projects, the Tribunal does not consider it appropriate in the circumstances to provide such direction. This direction is more appropriately provided by the MECP and it may be advisable for the Appellant to speak with the MECP about an appropriate plan for any future demolition work so that the challenges set out in this situation do not arise again. Each project will be different, depending on the size of the building(s), materials involved, etc. As such, different considerations and regulations may be appropriate in different fact situations.

DECISION

77The Tribunal orders that the Director amend the Director’s Order as set out in Appendix 2 of this decision. The appeal is dismissed.

Director Ordered to Amend Order

Appeal Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

Appendix 1 – Relevant Legislation and Regulations

Appendix 2 – Amendments to the Director’s Order

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 Tribunals Ontario - Environment and Land Division

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Relevant Legislation and Regulations

Environmental Protection Act, R.S.O. 1990, c. E.19

PART V

WASTE MANAGEMENT

Definitions

25 In this Part,

“operator” means the person in occupation or having the charge, management, or control of a waste management system or a waste disposal site;

“owner” includes,

(a) a person that is responsible for the establishment or operation of a waste management system or waste disposal site, or

(b) the person that owns the land in or on which a waste disposal site is located;

“waste” includes ashes, garbage, refuse, domestic waste, industrial waste, or municipal refuse and such other materials as are designated in the regulations;

“waste disposal site” means,

(a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and

(b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a);

“waste management system” means any facilities or equipment used in, and any operations carried out for, the management of waste including the collection, handling, transportation, storage, processing or disposal of waste, and may include one or more waste disposal sites.

Approval, waste management system or waste disposal site

27(1) No person shall use, operate, establish, alter, enlarge or extend a waste management system or a waste disposal site except under and in accordance with an environmental compliance approval.

Exception, prescribed activities

(1.1) Subsection (1) does not apply to a person who is engaging in an activity at a site if the activity has been prescribed by the regulations for the purposes of subsection 20.21 (1), unless one of the following circumstances applies:

1. An environmental compliance approval in respect of the activity engaged in at the site has been issued before the day when a regulation prescribing the activity for the purposes of subsection 20.21 (1) comes into force, and the approval has not ceased to have effect as determined under section 20.17.

2. Subject to subsection (1.2), the Director has issued an order under section 20.18 in respect of the activity at the site.

Same

(1.2) If a registration under Part II.2 is in effect in respect of an activity engaged in at a site when the Director issues an order under section 20.18 in respect of the activity, subsection (1) applies only once the Director has removed the registration from the Environmental Activity and Sector Registry established under Part II.2.

Prohibition as to deposit of waste

40 No person shall deposit, or cause, permit or arrange for the deposit of, waste upon, in, into or through any land or land covered by water or in any building that is not a waste disposal site for which an environmental compliance approval or renewable energy approval has been issued or a registration under Part II.2 is in effect and except in accordance with the terms and conditions of the approval or the regulations made for the purposes of Part II.2.

R.R.O. 1990, Regulation 347 General — Waste Management, under the Environmental Protection Act, R.S.O. 1990, c. E.19

Definitions

1.(1) In this Regulation,

“municipal waste” means,

(a) any waste, whether or not it is owned, controlled or managed by a municipality, except,

(i) hazardous waste,

(ii) liquid industrial waste, or

(iii) gaseous waste, and

(b) solid fuel, whether or not it is waste, that is derived in whole or in part from the waste included in clause (a);

“site” means one property and includes nearby properties owned or leased by the same person where passage from one property to another involves crossing, but not travelling along, a public highway;

Designation and Exemption of Wastes

2.(1) The following are designated as wastes:

4. Material that consists solely of waste from one or more of the categories set out in Schedule 1, 2 or 3 of Ontario Regulation 101/94 and that either,

i. has been separated from other kinds of waste at the source of the material, or

ii. comes from a waste disposal site.

13. Municipal waste.

(2) The following materials from the time they leave a construction site or a demolition site are designated wastes:

1. Brick.

2. Corrugated cardboard.

3. Concrete.

4. Drywall.

5. Steel.

6. 6. Wood.

(3) A designation set out in subsection (2) does not apply to material leaving a construction site or demolition site that is being delivered,

(a) to the vendor of the material for resale as construction material;

(b) to permanent premises of the person undertaking the construction or the person on whose behalf the construction is undertaken, for use as construction material by or for the person; or

(c) to permanent premises of the person undertaking the demolition or the person on whose behalf the demolition is undertaken, for use as construction material by or for the person.

3.(1) The following wastes are exempted from Part V of the Act and this Regulation:

7. Material set out in subsection (2).

(2) The material referred to in paragraph 7 of subsection (1) is any of the following:

1. Municipal waste, hazardous waste or liquid industrial waste, other than used or shredded or chipped tires, if,

i. the waste is transferred by a generator for direct transportation to a site to be wholly used at the site in an ongoing agricultural, commercial, manufacturing or industrial process or operation that,

A. is used principally for functions other than waste management, and

B. does not involve combustion or land application of the waste, or

ii. the waste is not processed organic waste from a composting facility and is transferred by a generator for direct transportation to a site,

A. to be promptly packaged for retail sale to meet a realistic market demand, or

B. to be offered for retail sale to meet a realistic market demand.

2. Municipal waste, consisting solely of waste from a single category of waste set out in Schedule 1, 2 or 3 of Ontario Regulation 101/94, transferred by a generator and destined for,

i. a waste disposal site that, but for the exemption in section 5 of Ontario Regulation 101/94, would be a municipal waste recycling site to which Part IV of that regulation applies and that is located at a manufacturing establishment that uses all the output, other than residues, of the site, or

ii. a site for use at the site in an ongoing agricultural, commercial, manufacturing or industrial process or operation used principally for functions other than waste management if the process or operation does not involve combustion or land application of the waste.

13. Waste that is to be processed and used at the same site where it is generated, if,

i. neither the processing nor the use of the waste involves combustion or land application of the waste, and

ii. the waste is not PCB waste, soil or a soil mixture.

(3) Despite subsection (1), material that is referred to in subparagraph 1 i or paragraph 6, 9, 10 or 11 of subsection (2) is exempt from Part V of the Act and this Regulation only if the carrier has in his or her possession while transporting the material a document from the owner or operator of the site to which the material is being transported that,

(a) indicates that the owner or operator of the site to which the material is being transported agrees to accept the material;

(b) specifies the use that will be made of the material; and

(c) if the paragraph of subsection (2) that refers to the material refers to an ongoing process or operation, stipulates that the process or operation is ongoing at the time the material is being transported.

ONTARIO REGULATION 101/94

RECYCLING AND COMPOSTING OF MUNICIPAL WASTE

Schedule 1

BLUE BOX WASTE

PART I

BASIC BLUE BOX WASTE

1. Aluminum food or beverage cans (including cans made primarily of aluminum).

2. Glass bottles and jars for food or beverages.

3. Newsprint.

4. Polyethylene terephthalate bottles for food or beverages (including bottles made primarily of polyethylene terephthalate).

5. Steel food or beverage cans (including cans made primarily of steel).

PART II

SUPPLEMENTARY BLUE BOX WASTE

1. Aluminum foil (including items made from aluminum foil).

2. Boxboard and paperboard.

3. Cardboard (corrugated).

4. Expanded polystyrene food or beverage containers and packing materials.

5. Fine paper.

6. Magazines.

7. Paper cups and plates.

8. Plastic film being,

i. linear low density or low density polyethylene grocery bags or bags used for food or beverages, and

ii. linear low density or low density polyethylene used for wrapping products.

9. Rigid plastic containers being,

i. high density polyethylene bottles used for food, beverages, toiletries or household cleaners (including bottles made primarily of high density polyethylene), and

ii. polystyrene containers used for food or beverages (including containers made primarily of polystyrene).

10. Telephone directories.

11. Textiles (not including fibreglass or carpet).

12. Polycoat paperboard containers, being containers made primarily of paperboard and coated with low density polyethylene or aluminum, and used for food or beverages.

Schedule 2

RECYCLABLE WASTE OTHER THAN BLUE BOX WASTE

1. Glass.

2. Leather.

3. Leaf and yard waste.

4. Metal.

5. Paper (including products made from paper).

6. Plastic.

7. Textiles.

8. The following household appliances: refrigerators; freezers; stoves; ovens; clothes washers; clothes dryers and dishwashers.

Schedule 3

RECYCLABLE WASTE OTHER THAN BLUE BOX WASTE THAT CANNOT BE COMMINGLED

1. Brick and Portland cement concrete.

2. Drywall (unpainted).

3. Wood (not including painted or treated wood or laminated wood).

Appendix 2

Amendments to the Director’s Order

Item No. 2

By July 31, 2019, 2127940 Ontario Ltd. shall remove all waste from the site by a waste hauler with an Environmental Compliance Approval (“ECA”) or an Environmental Activity and Sector Registry (“EASR”) issued by the Ministry, and shall deposit the waste at a waste disposal site(s) (landfill) approved to accept the waste or at another site(s) approved to accept recyclable waste in accordance with the Environmental Protection Act, R.S.O. 1990, c. E.19 and all applicable regulations.

Item No. 3

By August 15, 2019, 2127940 Ontario Ltd. shall provide written documentation to the Provincial Officer of any and all of the following information:

• The name and ECA number or EASR registration number of the waste hauler(s) used to haul the waste from the Site;

• Documentation, as may exist, that confirms recyclable waste was accepted by a site(s) in accordance with the Environmental Protection Act, R.S.O. 1990, c. E.19 and all applicable regulations;

• All receipts from the waste disposal site(s) that state the quantity of waste deposited and the type of waste disposed of at the waste disposal site(s) (landfill).

Item No. 4

By August 31, 2019, 2127940 Ontario Ltd. shall provide the Provincial Officer with a copy of a report documenting the location of the site(s) that accepted the recyclable waste and any other materials that were not disposed of at the waste disposal site(s) (landfill) and a description of the quantity of type of materials deposited at the site(s).