Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 26, 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:
June 10, 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 JUSTIN DUNCAN, HELEN JACKSON AND HUGH S. WILKINS
REASONS
Background
1This Order follows a Pre-hearing Conference (“PHC”) with respect to two appeals that have been 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”) from an April 2017 order issued by the Corporation of the Municipality of East Ferris (“East Ferris”) pursuant to s. 100.1 of the Environmental Protection Act (“EPA”), directing 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 (“Municipal Order”). The spill occurred 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. At the first 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.
3The 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, in response to the same spill of heating oil at the former St. Theresa School and migration of heating oil beyond the Site.
4At an October 29, 2018 PHC held to consider both appeals, and at the request of the School Board and on consent of the other parties, the Tribunal consolidated the two proceedings. The Tribunal also scheduled a four week hearing to commence on September 3, 2019 and scheduled an additional PHC to take place on April 2, 2019 in order for the parties to provide an update to the Tribunal on the progress of their discussions and to discuss next steps on the appeals.
5During the April 2, 2019 PHC, the parties had requested that the September 3 to 13, 2019 hearing dates be vacated on the basis that they were engaged in settlement discussions on the Director’s Order appeals and that the remaining two weeks be maintained for the purpose of Phase one of the Municipal Order appeal.
6A further PHC took place on June 10, 2019 at which time the parties advised the Tribunal that they continue to engage in settlement discussions on the Director’s Order appeals and have a mediation session scheduled to take place on July 15, 2019. The Director advised that the MECP will not take part in the Municipal Order hearing. During the PHC, the Tribunal established various dates relating to the Municipal Order appeal, including confirmation of the hearing dates, and directed the parties to provide an update on their discussions on the Director’s Order appeals, as set out in the Order below.
ORDER
7The Tribunal orders that the following schedule shall govern phase one of the Municipal Order appeal:
The parties are to file a final Issues List and Agreed Statement of Facts (if any) by July 15, 2019.
The parties are to advise the Tribunal by July 15, 2019 whether two weeks remain necessary for the hearing of Phase one.
The parties are to exchange and file their List of Witnesses, together with an indication of the order in which the evidence is anticipated to be called by July 29, 2019.
The parties are to exchange and file their Witness Statements, including copies of any expert reports, and Acknowledgment of Expert’s Duty forms by August 12, 2019.
The parties are to exchange and file Reply Witness Statements, if any, by August 30, 2019.
The hearing is rescheduled to commence on September 16, 2019 at 10 a.m., at a location to be determined.
8The Tribunal also directs the parties to provide an update to the Tribunal on the status of the Director’s Order appeals following their July 15, 2019 mediation session, with a proposal for next steps by way of communication to the Tribunal’s Case Coordinator.
Procedural Directions Ordered
Hearing Rescheduled
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
“Helen Jackson”
HELEN JACKSON
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
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