Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 11, 2019
CASE NO.: 16-058
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Union Gas Limited (File No. 16-058)
Appellant: Coca-Cola Refreshments Canada Company (File No. 16-059)
Appellant: Rosart Properties Inc. (File No. 16-060)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to undertake work with respect to contaminants
Reference No.: 4280-A8JQEX
Property Address/Description: Site 1) 1565 Barton Street East Site 2) 1575 Barton Street East Site 3) 360 Strathearne Avenue North
Municipality: City of Hamilton
ERT Case No.: 16-058
ERT Case Name: Union Gas Limited v. Ontario (Environment, Conservation and Parks)
Heard: In writing
APPEARANCES:
Parties
Counsel
Union Gas Limited
Leonard Griffiths
Coca-Cola Refreshments Canada Company
Patrick G. Duffy
Rosart Properties Inc.
Peter Pickfield
Director, Ministry of the Environment, Conservation and Parks
Isabelle O’Connor
ORDER DELIVERED BY JERRY V. DEMARCO AND MARCIA VALIANTE
REASONS
Background
1This Order relates to a request for the continuation of a stay.
2On April 19, 2016, the Director, Ministry of the Environment, Conservation and Parks, issued Order No. 4280-A8JQEX (“Director’s Order”) against AVX Corporation, Union Gas Limited, Coca-Cola Refreshments Canada Company and Rosart Properties Inc. (“Rosart”) pursuant to s. 17, 18, and 196 of the Environmental Protection Act (“EPA”). The Director’s Order relates to the presence and migration of contaminants on three properties located in Hamilton, Ontario: (1) 1565 Barton Street East, (2) 1575 Barton Street East, and (3) 360 Strathearne Avenue North.
3Pursuant to s. 140 of the EPA, Union Gas Limited, Coca-Cola Refreshments Canada Company and Rosart (“Appellants”) filed notices of appeal with the Environmental Review Tribunal (“Tribunal”). AVX Corporation did not appeal the Director’s Order.
4On June 17, 2016, the Tribunal issued an Order staying portions of the Director’s Order, as against the Appellants, until December 31, 2016 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2016 37491 (ON ERT)). In addition, the proceeding was adjourned on request of the parties until September 30, 2016.
5A status update telephone conference call (“TCC”) took place on September 30, 2016, at which time the parties requested that the proceeding continue to be adjourned because action was being taken on a without-prejudice basis in response to the Director’s Order. A further status update TCC was scheduled and took place on February 9, 2017, at which time the parties requested a further adjournment, as well as continuation of the stay until the next TCC. The Director consented to these requests. Subject to the same conditions as set out in its June 17, 2016 Order, the Tribunal issued an order on February 27, 2017 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2017 11499 (ON ERT)) granting the requested continuation of the stay until the next TCC, scheduled for May 9, 2017.
6A further status update took place during the TCC on May 9, 2017. Peter Pickfield, counsel to Rosart, explained to the Tribunal that work was progressing on the conceptual site model, that a revised report had been circulated, and that meetings were being held to discuss the report and work plan with the goal of finalizing the conceptual site model in the near future. The Appellants requested a further adjournment to another TCC and a further continuation of the stay. The Director consented. Union Gas Limited also requested that the stay be continued to a date four weeks following the date of the next TCC to allow time for the parties to prepare for carrying out the Director’s Order in the event the Tribunal does not grant a continuation of the stay at that TCC. The other Appellants agreed to that request. Subsequent to the TCC, the Director informed the Tribunal by email that he also consented to that request. Subject to the same conditions as set out in its June 17, 2016 Order, the Tribunal issued an order on May 30, 2017 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2017 34386 (ON ERT)) granting the requested continuation of the stay until September 28, 2017 and scheduling the next TCC for August 31, 2017.
7Subsequently, the Tribunal held several TCCs where it was informed of the progress being made toward finalizing the conceptual site model and the work plan, and at each TCC ordered a continuation of the stay, each time subject to the same conditions as set out in its June 17, 2016 Order. The following Orders were issued:
a. an order dated September 8, 2017 granting the requested continuation of the stay until October 27, 2017 and scheduling the next TCC for September 29, 2017 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2017 59192 (ON ERT));
b. an order dated October 5, 2017 granting the requested continuation of the stay until December 28, 2017 and scheduling the next TCC for November 30, 2017 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2017 65450 (ON ERT));
c. an order dated December 7, 2017 granting the requested continuation of the stay until March 28, 2018 and scheduling the next TCC for February 28, 2018 (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2017 83925 (ON ERT));
d. an order dated March 23, 2018 granting the requested continuation of the stay until August 28, 2018, scheduling the next TCC for July 31, 2018 and directing the Director to write to the Tribunal by July 3, 2018 informing it whether a TCC should be held on that date. The order further directed that if no TCC was to be held on July 31, 2018, the next TCC would be held on February 14, 2019 and the stay would be continued to March 14, 2019 if the Director consented. (see: Union Gas Limited v. Ontario (Environment and Climate Change), 2018 25525 (ON ERT)).
e. an order dated July 13, 2018 continuing the stay to March 14, 2019 and scheduling the next TCC for February 14, 2019 (see: Union Gas Limited v. Ontario (Environment, Conservation and Parks), 2018 65911 (ON ERT)); and
f. an order dated February 25, 2019, granting the requested continuation of the stay until May 20, 2019, scheduling the next TCC for April 18, 2019 and directing the Director to write to the Tribunal by April 4, 2019 informing it whether a TCC should be held on that date. The order further directed that if no TCC was to be held on April 18, 2019, the next TCC would be held on June 19, 2019 and the stay would be continued to July 19, 2019 if the Director consented (see: Union Gas Limited v. Ontario (Environment, Conservation and Parks), [2019] O.E.R.T.D. No. 10).
8On April 4, 2019, Isabelle O’Connor, counsel to the Director, wrote to the Tribunal advising that a TCC was not required on April 18, 2019 and consenting to the continuation of the stay until July 19, 2019.
Analysis and Findings
9In its previous orders, the Tribunal found that it was not precluded under s. 143(2) or 143(3) of the EPA from issuing a stay of s. 3.1.1, 3.1.2, 3.2.1, 3.2.2, 3.3.1 and 3.5.1 of the Director’s Order as against the Appellants. Based on these findings and parties’ submissions that there has been no change in circumstances, the Tribunal finds that it is not precluded under s. 143(2) or 143(3) of the EPA from granting a continuation of the stay of these items in the Director’s Order.
10As was the case with the earlier orders, the requested continuation of the stay is on consent of all parties and has the effect of extending some of the deadlines in the Director’s Order. The Tribunal finds that there is no need to engage in a detailed analysis of Rule 110 of the Tribunal’s Rules of Practice (“Rules”).
11Subject to the same conditions set out in its earlier orders, the Tribunal grants the requested continuation of the stay, until four weeks following the next TCC.
ORDER
12The Tribunal orders that:
a. Sections 3.1.1, 3.1.2, 3.2.1, 3.2.2, 3.3.1 and 3.5.1 of the Director’s Order are stayed as against the Appellants until July 19, 2019;
b. The Director or the Appellants may seek a removal or modification of this Order on 15 days’ notice to the other parties and in accordance Rule 108 of the Tribunal’s Rules; and
c. A status update TCC will be held on June 19, 2019 at 10 a.m.
Request for Continuation of Stay Granted
Procedural Directions Ordered
“Jerry V. DeMarco”
JERRY V. DEMARCO
ASSOCIATE CHAIR
“Marcia Valiante”
MARCIA VALIANTE
VICE-CHAIR
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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