Galli v. Ontario (Environment, Conservation and Parks), 2019 CanLII 57532

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 21, 2019

CASE NO: 19-017

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

Appellant: Carl Galli (File No. 19-017)

Appellant: Galli-Morwick Inc. (File No. 19-018)

Appellant: Glenrio Financing Limited (File No. 19-019)

Appellant: Edward Morwick (File No. 19-020)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject to appeal: Order requiring that one or more Qualified Person(s) be retained to do required work, to submit written confirmation from Qualified Person(s), and to submit a proposed Delineation Work Plan, and to submit a report regarding the work done to carry out the approved Delineation Work Plan.

Reference No.: 6535-B4KSGR-1

Property Address/Description: 451 Guelph Line

Municipality: City of Burlington

Upper Tier: Regional Municipality of Halton

ERT Case No.: 19-017

ERT Case Name: Galli v. Ontario (Environment, Conservation and Parks)

Heard: In writing

APPEARANCES:

Parties	Counsel
Carl Galli, Galli-Morwick Inc., Glenrio Financing Limited and Edward Morwick	Edward Morwick

DECISION DELIVERED BY JUSTIN DUNCAN

REASONS

Background

1This decision dismisses the appeals filed by Carl Galli, Galli-Morwick Inc., Glenrio Financing Limited and Edward Morwick (“Appellants”) from the decision of Tina Dufresne, Director of the Ministry of the Environment, Conservation and Parks, to issue Order No. 6535-B4KSGR-1, dated April 3, 2019 (“Director’s Order”) requiring them to undertake work to remediate groundwater contamination consisting of perchloroethylene, and related contaminants, at 451 Guelph Line, Burlington, Regional Municipality of Halton (“Subject Property”).

2The Appellants jointly filed a notice of appeal on or about April 8, 2019 with the Environmental Review Tribunal (“Tribunal”) challenging the Director’s Order on various grounds.

3Subsequent to receiving the Notice of Appeal, the Tribunal sent its standard appeal acknowledgement letter to the Appellants through their counsel on April 9, 2019. The acknowledgement letter requests that the Appellants provide five items of information to the Tribunal by April 24, 2019, in part, as follows:

In order to proceed with your appeal, the Tribunal requires the following information:

1. A list of the names and addresses of all owners of property within 120 metres of the boundary of the property which is the subject of the Director’s Decision. This information can be obtained from the Assessment Roll available from your local municipality. Attached is a certificate which is to be signed by the person who provides you with the list. You must provide signed certification with the list.

2. A list of the names and addresses of any other persons who should be notified of these proceedings because they may have a direct interest in the outcome.

3. Whether you require French language services.

4. Whether you have any special needs that must be accommodated.

5. Confirmation of available dates for all parties for the Pre-hearing Conference, Hearing and mediation, if applicable. Immediately upon receiving this letter, you should contact the legal counsel for the Ministry of the Environment, Conservation and Parks or any other legislated party to discuss potential mediation and hearing dates. The Tribunal offers mediation services following a Pre-hearing Conference.

The Tribunal requires that you file this information or any objections no later than April 24, 2019. Should this information or objections not be received by the deadline date, the Tribunal may decide not to process your appeal.

4Not having received a response from the Appellants by the April 24, 2019 deadline, the Tribunal wrote to counsel for the Appellants again on April 25, 2019 requesting the information set out in the April 9, 2019 letter be provided immediately and provided the Appellants the opportunity to seek an extension of time if necessary:

Please respond to this letter immediately and provide the information requested above. If you require additional time to provide the information requested, you should write to the Tribunal, with a copy to the Director’s Counsel, to request an extension of time.

5Once again, the Appellants failed to respond. The Tribunal wrote a third time to counsel for the Appellants on May 16, 2019 requesting the information set out in the April 9, 2019 letter and indicated that if the Tribunal did not receive a response from the Appellants by May 30, 2019, the Tribunal may dismiss the appeal pursuant to Rule 16 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”).

6On May 22, 2019, Edward Morwick, counsel for the Appellants emailed the Tribunal as follows:

In response to your questions using the same numerical order you have used:

1. You are able to obtain this information yourselves, so don’t waste my time with frivolous requests.

2. No such persons exist.

3. We do not require French language services. This should be obvious. I speak and write English rather well. I have written four books, as you likely know.

4. No special needs accommodations required.

5. Any date would suit us.

I hope you realize that our appeal will succeed. The Ministry hasn’t a leg to stand on. I should bring this matter to the attention of Premier Doug Ford.

7In response to Mr. Morwick’s email, the Tribunal provided copies of Rules 16 and 27 to the Appellants and wrote, in part:

The Tribunal acknowledges receipt of Mr. Morwick’s email dated May 22, 2019 in response to our letter of May 16, 2019. In order to schedule the Pre-hearing Conference in this matter, the Tribunal still requires the list of names and addresses of the property owners within 120 metres of the subject property. This information was not provided in Mr. Morwick’s email of May 22, 2019. The requirement of the appellants to provide this information is specifically outlined in Rule 27 of the Tribunal’s Rules of Practice and Practice Directions…

In order to proceed with the next steps in this proceeding, the Tribunal requires the appellants to respond to item one from its earlier letters, specifically the appellants must provide:

A list of the names and addresses of all owners of property within 120 metres of the boundary of the property which is the subject of the Director’s Decision. This information can be obtained from the Assessment Roll available from your local municipality.

Attached is a certificate which is to be signed by the person who provides you with the list. You must provide signed certification with the list.

Please be advised, if the Tribunal does not receive this information from the appellants by June 10, 2019, the Tribunal may dismiss the appeals pursuant to Rule 16 of the Rules of Practice and Practice Directions.

8To date, the Appellants have not complied with the multiple Tribunal directions to provide a list of the names and addresses of all owners of property within 120 metres of the boundary of the Subject Property.

Issue

9The issue before the Tribunal is whether to dismiss the appeals under Rule 16 for the Appellants' failure to comply with the directions of the Tribunal.

Relevant Legislation and Rules

10The following sections of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) are relevant here as they confer the power on the Tribunal to establish its Rules and apply them:

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

25.0.1. A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

25.1(1). A tribunal may make rules governing the practice and procedure before it.

11The following Tribunal Rules are also relevant, with Rules 27 and 28 establishing the requirement for parties to provide a list of property owners within 120 metres and other interested persons who may have an interest in the outcome of the appeal and with Rule 16 establishing the power on the Tribunal to dismiss an appeal for a party’s failure to comply with a direction given by the Tribunal:

16. If a Party or Participant

(a) fails to comply with these Rules, an Order or a written request from the Tribunal, or an undertaking;

(b) causes undue delay;

(c) does not attend a Hearing or mediation of which he or she was given notice; or

(d) does not provide, within the time permitted by the Tribunal, a response to an appeal or application which was served on him or her;

the Tribunal may:

(a) deem the Party or Participant to have accepted all of the material facts set out in materials provided by another Party or Participant;

(b) determine that the Party or Participant is not entitled to present evidence or make submissions;

(c) proceed in the Party’s or Participant’s absence without any further notice to him or her;

(d) decide the matter based solely on the materials before it;

(e) dismiss the proceeding; or

(f) make any other order it considers appropriate.

27. Following receipt of the Notice of Appeal, the Tribunal shall send the Appellant a letter specifying that, within 14 days of the date of the letter, the Appellant shall provide the Tribunal with:

(a) a list certified by the applicable municipality of names and addresses of all owners of property within 120 metres of the boundary of the property that is the subject of the decision or, in the case of an appeal of a renewable energy approval, the list of names and addresses referred to in Rule 31.

(b) a list of names and addresses of any other persons who should be notified of the proceeding because they may have an interest in the outcome;

(c) an indication that the Appellant requires French language services, if applicable; and

(d) an indication that the Appellant has special needs that must be accommodated, if applicable.

28. Upon receiving service of the Notice of Appeal, the information that accompanies the Notice of Appeal and the information sent as a result of a request by the Tribunal, the Director, the Risk Management Inspector or Official, the Authority or the municipality shall, within ten days, file with the Tribunal a list of the names and addresses of any other persons whom the Director, the Risk Management Inspector or Official, the Authority or the municipality considers should be notified of the proceeding because they may have an interest in the outcome.

Discussion, Analysis and Findings

12In this case, the Appellants have not only ignored multiple directions of the Tribunal to provide a certified list of the names and addresses of all owners of property within 120 metres of the boundary of the Subject Property, Mr. Morwick’s email can only be described as contemptuous of the Tribunal’s process in characterizing the Tribunal’s repeated requests for the list as frivolous and a waste of time.

13The Tribunal has made the Rules in accordance with its powers under the SPPA. At the core of Rules 27 and 28 is the fulfilment of part of the Tribunal’s public interest mandate; that is, to ensure that persons with an interest in or who may be affected by a decision under appeal have notice of and a subsequent opportunity to seek status in the appeal.

14The certified list requested of the Appellants is required to process the appeals and provide notice to nearby property owners. The Tribunal finds that it is not appropriate to proceed to the next stages of these appeals without this important information. The Appellants not only have rights under the Rules but they have responsibilities, including the requirement to comply with a direction of the Tribunal. The Appellants have demonstrated a lack of regard, if not contempt, for the Rules which demonstrates that they are not willing to carry out their responsibilities as Parties to these appeals.

15In the circumstances, I find that the Appellants have had ample opportunity to comply with the direction of the Tribunal and were put on notice that failure to comply by June 10, 2019 could result in their appeals being dismissed.

16As a result, in these circumstances the Tribunal finds that it would be appropriate to dismiss the appeals under Rule 16.

DECISION

17In accordance with Rule 16, the Tribunal dismisses the appeals.

Appeals Dismissed

“Justin Duncan”

JUSTIN DUNCAN

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