Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: September 05, 2019

CASE NO.: 19-002

PROCEEDING COMMENCED UNDER section 100(1) of the Ontario Water Resources Act, R.S.O. 1990, c. 019, as amended

Appellants: Sjonum Sristi Awalia (File No. 19-002) Philippe St-Cyr (File No. 19-003) 1866252 Ontario Limited (19-004)

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

Subject of appeal: Order to carry out work related to onsite Sewage Systems

Reference No.: 5108-B6KQG9-1

Property Address/Description: 4448 Guelph Line

Municipality: City of Burlington

Upper Tier: Region of Halton

ERT Case No.: 19-002

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

Heard: June 12, 2019 in Burlington, Ontario and in writing

APPEARANCES:

Parties | Counsel Sjonum Sristi Awalia, Philippe St-Cyr and 1866252 Ontario Limited | Derek Collins Director, Ministry of the Environment, Conservation and Parks | Sylvia Davis

ORDER DELIVERED BY MARLENE CASHIN

REASONS

Background

1This order provides the decision of the Environmental Review Tribunal (“Tribunal”) on a motion brought by Sjonum Sristi Awalia, Philippe St-Cyr and 1866252 Ontario Limited (“Appellants”) for an order for disclosure of documents in the possession of the Ministry of the Environment, Conservation and Parks (“MECP”), related to an appeal of Director’s Order No. 5108-B6KQG9-1 (“Director’s Order”).

2The Director’s Order, issued pursuant to the Ontario Water Resources Act, R.S.O. 1990, c. O.40 (“OWRA”), requires the Appellants to:

• retain the services of a Qualified Person to decommission an unapproved 9,000 litre septic tank at 4448 Guelph Line, Burlington, Ontario (“Site”);

• ensure that all sewage works are installed and operational in accordance with Environmental Compliance Approval No. 5131-757NNN (“ECA”); and

• provide confirmation including photographs to the Director of MECP, that the requirements of the Order have been completed.

3The documents sought by the Appellants pertain to the ECA, but specifically, the Appellants seek:

An order that the Ministry of Environment produce all records they have in their files relating to Environmental Certificate of Approval #5131757NNN which include but are not limited to all inspections and communication between the former owners of the property (Frank Moser Investments Inc.) and the Ministry of Environment.

4A Pre-hearing Conference (“PHC”) in the appeal of the Director’s Order referenced above, took place on June 12, 2019 in Burlington, Ontario. At that time, counsel for the Appellants informed the Tribunal that the Appellants had requested disclosure of the documents pertaining to the ECA from the MECP but had been refused on the basis that the documents sought were irrelevant to the appeal of the Director’s Order. Counsel for the MECP and the Appellants briefly outlined the basis for the disagreement on the relevance of the documents. The Appellants were directed to file a motion with the Tribunal, which would be heard in writing. The Tribunal, with consent of the Parties, scheduled dates for the motion materials to be served and filed. Motion materials were subsequently filed by the Parties and considered by the Tribunal.

5During the PHC, and on consent of the Parties, the Tribunal also scheduled dates for the hearing of the appeal and for procedural steps leading up to the hearing.

Issue

6The issue is whether the Tribunal should issue an order requiring that the MECP produce all of the records they have in their files related to the ECA.

Relevant Legislation and Rules

7The Rules of Practice and Practice Directions of the Environmental Review Tribunal (“Rules”), which address the disclosure of documents in a proceeding, are Rules 163-169 as follows:

Disclosure Ordered by Tribunal

163. The Tribunal may, at any stage of the proceeding, make orders for:

(a) the exchange of documents;

(b) the oral and written examination of a Party;

(c) the exchange of witness statements and reports of expert

witnesses;

(d) the provision of particulars;

(e) the provision of a common document book; and

(f) any other form of disclosure.

164. The Tribunal’s power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.

165. Rule 163 does not authorize the making of an order requiring disclosure of privileged information.

Disclosure of Documents

166. All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.

167. A Party shall provide all the documents that the Party intends to rely on at the main Hearing to the Tribunal and to all other Parties within the time ordered by the Tribunal.

168. A document produced for the first time during the course of the main Hearing shall be provided to the Tribunal in accordance with Rule 13.

169. All Parties shall provide without charge to all other Parties a copy of every relevant document discovered during the course of the proceeding.

Discussion, Analysis and Findings

Evidence and Submissions of the Appellants

8In support of their submissions that their motion for disclosure of ECA-related documents should be granted, the Appellants rely on:

• Environmental Certificate of Approval Number 5131-757NNN;

• Provincial Officer’s Report and Order dated December 20, 2018;

• the Director’s Order; and

• the Affidavit of Philippe St-Cyr dated June 19, 2019, with attached exhibits:

• email dated November 27, 2018, from Brian Cahill of Ministry of Environment (now MECP);

• email exchange between Nick Fowler and Philippe St-Cyr dated June 1, 2018; and

• letter from Kenneth Youngs to Robert Moser dated August 3, 2011.

9The Appellants, in their written submissions, provide the following reasons for submitting that it is appropriate for the Tribunal to order that MECP produce its entire file on the matter of the ECA:

The ECA (Schedule A) was issued in 2007. The Engineer’s report (Mr. Youngs letter, August 3, 2011 – Schedule D) indicating that the Works had been installed in the accordance with the ECA was received by the Ministry of the Environment (the MOE) on August 9, 2011 pursuant to the stamp on the letter. There is no apparent record of the MOE raising any concerns about the septic system until approximately 2018 which culminated in the Director’s Order (Schedule C) of January 2019. This Order I respectfully submit was a re-issuing or continuation of the ECA which allowed for some discretion by the owner stating at pg. 3 (para 4) that “The Owner shall ensure that upon installation of the proposed holding tank, two (2) existing on-site sewage systems will be decommissioned and removed if required”.

It is reasonable to suggest that Mr. Youngs letter was written after it was determined that the decommissioning and removing of the two on-site sewage systems was not required and also reasonable to think that the MOE would have some relevant records such as inspections, communications between the parties, etc. which are concurrent around the 2011 time period to confirm the conclusion of Mr. Youngs.

Additionally, Mr. Fowler made a comment to Mr. St-Cyr in May 2018 (Schedule D) which indicated that there was negligence in the manner in which the works were inspected under the ECA. Mr. Fowler’s comment suggests there must be some MOE records with respect to an inspection of the ECA works.

It is respectfully submitted that the MOE records with respect to the ECA are relevant since they will assist in determining what occurred in 2011 that prompted the letter to be written and whether the works set out in the ECA which forms the basis of the Director’s Order were in compliance at that time.

Evidence and Submissions of the Director

10The Director relies on her submissions and the evidence contained in the Affidavit of Provincial Officer, Nick Fowler, who issued the Provincial Officer’s Order that underlies the Director’s Order that is the subject of the appeal proceeding, sworn July 5, 2019 (“Fowler Affidavit”), which includes as exhibits:

• Incident report of Officer Cahill’s visits to the Site on October 25 and 26, 2017;

• Letter from Provincial Officer Scott Thompson dated September 12, 2018;

• Revised Design Report dated June 14, 2007 and email exchanges between Kenneth Youngs Engineering and the MOE (now MECP);

• Inspection report dated June 13, 2018 regarding the May 31, 2018 visit; and

• Engineering Assessment report by Bozena Manowski.

11The Director also relies on the facts as set out in the Provincial Officer’s Report No. 5108-B6KQG9 and the Director’s Order.

12Generally, the Director submits that the documents sought are irrelevant to the subject matter of the appeal, which the Director says is whether or not the Appellants are in compliance with the requirements of the ECA today, and says the request for the subject documents is nothing more than a “fishing trip”. The Director submits that it is clear from the Appellants’ motion materials that they are attempting a collateral attack on the ECA, which is an abuse of process and should not be allowed.

Discussion and Analysis

13Pursuant to Rule 163, the Tribunal has the jurisdiction to order that a party disclose documents that are in the possession, control or power of any party at any stage of a proceeding. Rule 165 however, says that the Tribunal may not make an order requiring the disclosure of privileged information. The ongoing obligation of the Parties to a proceeding is to provide a copy of “every relevant document” in their possession, control or power. In the current situation, the Director has not asserted a claim of privilege over any of the documents requested by the Appellants. The Director asserts, however, that the documents in question are not “relevant”.

14The onus is on a party requesting disclosure of specific documents, in this case the Appellants, to establish that the documents sought to be disclosed are relevant to the appeal. The Appellants assert that the documents they are seeking are relevant, as there is considerable difference of opinion surrounding the discussions that took place and the correspondence that was exchanged regarding the requirements of the ECA, as they were understood in 2011. The Appellants say that the documents they are seeking will assist in determining what occurred in 2011, and whether the works set out in the ECA which forms the basis of the Director’s Order were in compliance at that time. One of the issues to be determined, the Appellants assert, is what constitutes “compliance” with the ECA. In that case, documents relating to the ECA may well shed light on what the MOE and the property owner at the time believed would constitute compliance.

15The Director submits that the Appellants have presented insufficient evidence to show that the documents sought by the Appellants are relevant to the appeals and that an understanding of the requirements of the ECA in 2011 is irrelevant; the only relevant issue is whether or not the Appellants are in compliance with the requirements of the ECA today. The Director requests that the motion be dismissed as a result.

16The Director also submits that the motion is a collateral attack on the ECA and therefore an abuse of process, saying: “[i]t is clear from the Appellants’ motion materials and appeal materials that their real objection is with the ECA and not the Director’s Order” and “[t]he ECA was issued on July 26, 2007, and it is not possible to appeal the ECA at this late date”. The motion and the appeal itself, the Director submits, is a collateral attack on the ECA, which should not be permitted.

Findings

17The Director cites Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] S.C.J. No. 41 (“Globe and Mail”) to support her submission that the Appellants’ request for additional disclosure is a “fishing trip”. In Globe and Mail, a Supreme Court of Canada case that dealt with testimonial compulsion, and not with the production of documents as is the case here, LeBel J. for the Court, noted that “in civil litigation proceedings, the presumption is that all relevant evidence is admissible”, and said regarding relevance that, “[t]he threshold test of relevance plays, as it does in many other contexts, an important gatekeeping role in the prevention of fishing expeditions.” No definition of “relevant” is provided, and nor is any further explanation of what a “fishing expedition” might look like.

18However, the Tribunal finds that the word “relevant” in the context of the Rules, should be given its common and everyday meaning; that being pertinent to or related to something. In this case, the Tribunal must decide if the disclosure documents sought are pertinent to or related to the Appellants’ issues or grounds for appeal. There is considerable disagreement between the Parties as to the meaning of the letter from the previous owner, Mr. Youngs, dated August 3, 2011, which states that “the works have been installed in accordance with the requirements of the above Certificate of Approval dated July 26, 2007”. While the Appellants suggest that it is reasonable to believe from this letter that the decommissioning and removal of the pre-existing septic systems was not required, the Director says that whether or not construction of the works was completed, the two pre-existing septic systems on the Site remain unapproved under the OWRA. There is also disagreement between the Parties about the wording of the ECA itself, which states at paragraph 3 of section 4 that “[t]he owner shall ensure that upon installation of the proposed holding tank, two (2) existing on-site sewage systems will be decommissioned and removed if required.” While the Tribunal is not deciding on the scope of the appeal or the merits of the appeal on this motion, it seems more likely than not that the disclosure documents that are being sought in this situation, are pertinent to or related to the Appellant’s grounds for appeal, which seem to be that there was no requirement by the MECP that the prior owner decommission the pre-existing septic systems, and therefore the current owner is not culpable, as the sewage is being directed “as it was when we purchased the property.”

19As noted in the Globe and Mail case however, and the Tribunal agrees that, whether or not a request for disclosure constitutes a “fishing expedition” should also be considered when deciding on relevance. Here, the Tribunal understands the term fishing expedition in the context of disclosure, as meaning a request for documents that does not provide enough specificity to indicate the relevance of the request, and which could result in a disclosure of documents that is much too broad to be relevant to the appeal.

20In the case at hand, the Appellants have asked for documents relating to a specific Environmental Certificate of Approval (#5131757NNN) and have mentioned specifically that inspections and communications between the former owners of the property (Frank Moser Investments Inc.) and the Ministry of Environment should be included. The Tribunal finds in this situation, that the Appellants have provided enough specificity in their request, that being, documents relating to the ECA at issue in this case, to show that it is not engaging in a “fishing expedition”.

21The Tribunal also finds that although the Director submits that “it is clear from the Appellants’ motion materials that they are attempting a collateral attack on the ECA, which is an abuse of process and should not be allowed”, it is not clear to the Tribunal from the evidence and submissions on this motion, that this is the Appellant’s intent.

Conclusions on Motion for Disclosure

22Therefore, having reviewed the evidence and submissions of the Parties, the Tribunal finds that, with regard to the relevance of the documents sought by the Appellants, the evidence weighs in the Appellants’ favour.

23The Tribunal finds that the documents sought by the Appellants are more likely than not to be relevant documents, in a discussion of whether the pre-existing septic systems were properly decommissioned by the previous owner and whether or not that has any significance in this appeal, and therefore should be disclosed.

Scheduled Steps in the Proceeding

24At the PHC held on June 12, 2019, on consent of the Parties, the Tribunal set a schedule for the hearing of this appeal and the steps leading up to the hearing, as set out in the order below.

ORDER

25The Tribunal grants the Appellants’ motion for an order requiring that the MECP disclose all records they have in their files relating to Environmental Certificate of Approval #5131757NNN, which include but are not limited to all inspections and communication between the former owners of the property (Frank Moser Investments Inc.) and the Ministry of Environment (now MECP), except those documents over which privilege is claimed.

26The Tribunal orders the following schedule for the proceeding:

• Exchange of relevant documents between the Parties on or before July 3, 2019;

• Witness list of the Appellants to be served and filed with the Tribunal on or before July 15, 2019;

• Witness list of the Director to be served and filed with the Tribunal on or before July 29, 2019;

• Appellants’ Witness Statements and all documents to be relied on, to be served and filed with the Tribunal on or before August 19, 2019;

• Director’s Witness Statements and all documents to be relied on, to be served and filed with the Tribunal on or before September 9, 2019;

• Reply Witness Statements to be served and filed with the Tribunal on or before September 23, 2019;

• Joint Issues List to be filed with the Tribunal on or before September 27, 2019; and

• Hearing to take place on October 2, 3, 4, 7, 8 and 9, 2019 at a place and time to be set by the Tribunal.

Motion for Additional Disclosure Granted

Procedural Dates Scheduled

“Marlene Cashin”

MARLENE CASHIN

MEMBER

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