Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 10, 2021
CASE NO(S).: 17-032
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19
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: May 20, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Nipissing-Parry Sound Catholic District School Board | F.F. (Rick) Coburn and Katie Butler |
| Corporation of the Municipality of East Ferris | David N. Germain |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 20, 2021 AND ORDER OF THE TRIBUNAL
1The Nipissing-Parry Sound Catholic District School Board (“School Board”) filed an appeal of an order issued in April 2017 (“Municipal Order”) by the Corporation of the Municipality of East Ferris (“Municipality”) under s. 100.1 of the Environmental Protection Act (“EPA”). The Municipal Order directs the School Board to pay the costs and expenses incurred by the Municipality in relation to the clean-up of a spill of heating oil at the former St. Theresa School, which was located at 1990 Corbeil Road (“site”).
2On July 18, 2018, the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”), issued Director’s Order No. 0844-AWTHJ7 (“Director’s Order”) to the Municipality and the School Board requiring steps to be taken to clean up the spill. Item No. 3 of s. 2.1 of the Director’s Order requires the Municipality and the School Board to submit a remediation plan identifying off-site impacts of the oil spill, remediation measures to be taken, and additional action needed to prevent further off-site migration of contaminants. Both the Municipality and School Board appealed the Director’s Order to the Tribunal (Environmental Review Tribunal Case Nos. 18-039 and 18-040). The Parties retained environmental consultants and jointly submitted a remedial action plan in November 2019, which was approved by the Director. Their appeals of the Director’s Order were settled and dismissed in February and March 2020.
3At a status update telephone conference call in the present proceeding, held on April 29, 2021, the Parties informed the Tribunal that they had reached a proposed settlement of the present appeal as well.
4On May 20, 2021, the Tribunal convened a settlement hearing by video conference call to consider the proposed settlement.
ISSUES
5The issues to be addressed are whether the Tribunal should accept the proposed revocation of the Director’s Order and dismiss the proceeding under Rule 202 of the Environmental Review Tribunal’s Rules of Practice and Practice Directions (“Rules”).
EVIDENCE AND SUBMISSIONS
6At the settlement hearing, the School Board filed an affidavit sworn by Katie Butler, dated May 18, 2021. Ms. Butler is co-counsel representing the School Board. Her affidavit sets out the background to the proceeding and attaches the settlement agreement executed by the Parties. The settlement agreement is attached to this Order and Decision as Appendix 1.
7In its submissions, the School Board submits that the Parties are subject to the Director’s Order, the approved remedial action plan resulting from the MECP proceeding is in place, and there is no risk of environmental harm as a result of the proposed settlement. It submits that the proposed settlement facilitates the implementation of the remedial action plan and is in the public interest. It submits that the proposed settlement is between two public bodies and has been approved by them through their respective public processes. It submits that the reasonableness of the Municipality’s clean-up costs was considered by the Parties and the proposed settlement is consistent with the purpose of the EPA and its provisions in s. 100.1.
8The Municipality submits that the revocation of the Municipal Order is appropriate as the settlement agreement provides for the recovery of previous costs and the sharing of future remediation costs as well as assignment of future responsibilities for work at the site. It submits that the settlement agreement ensures compliance with the Director’s Order and is consistent with the purpose and provisions of the EPA. It submits that as the proposed settlement requires the School Board to pay for past pollution at the site, it reflects the polluter pays principle and the purpose of s. 100.1 of the EPA. It submits that the factors set out in s. 100.1(15) of the EPA have been addressed, there are no Participants or Presenters in this proceeding, and notice of the settlement hearing was properly served.
Analysis and Findings
9Under Rule 198, where a municipality proposes to revoke an order, which is the subject matter of a proceeding, the municipality must notify the Tribunal, other Parties, Participants, and Presenters of the proposed revocation. Several pre-hearing conferences have been held in this proceeding and no requests for Added Party, Participant, or Presenter status were made. As a result, there are no other Parties, Participants or Presenters in this proceeding. Given these circumstances, the Tribunal finds that the notification requirement in Rule 198 is satisfied.
10Rule 202 requires that the Tribunal consider whether a proposed revocation of an order is consistent with the purpose and provisions of the relevant legislation and whether it is in the public interest. It states:
- Where a Director, Risk Management Inspector or Official, Authority or municipality proposes to revoke a decision that is the subject of an appeal, the Tribunal shall consider whether the proposed revocation is consistent with the purpose and provisions of the relevant legislation and whether the proposed revocation is in the public interest. The Tribunal shall also consider the interests of Parties, Participants and Presenters. After the consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
11The purpose of the EPA is set out in s. 3. It is to provide for the protection and conservation of the natural environment.
12The Municipal Order was issued under s. 100.1 of the EPA. Section 100.1(1) of the EPA states:
100.1(1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.
13On an appeal of a municipal order made under s. 100.1, the Tribunal is to consider the following factors, as set out in s. 100.1(15) of the EPA:
100.1 (15) At a hearing by the Tribunal under this section, the Tribunal shall consider only,
(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,
(i) the owner of the thing that was discharged,
(ii) the person having charge, management or control of the thing that was discharged, or
(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or
(b) whether any of the costs or expenses specified in the order,
(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or
(ii) are unreasonable having regard to what was done.
14Based on the Parties’ submissions, the Tribunal finds that the proposed revocation of the Municipal Order is consistent with the purpose and provisions of the EPA and is in the public interest. The proposed settlement facilitates the implementation of the Director’s Order and provides for a reasonable way forward providing for the funding and assignment of responsibilities for continuing clean-up and rehabilitation work at the site. It also ensures cost recovery and the application of the polluter pays principle. Based on the evidence before the Tribunal and the submissions of the Parties, the Tribunal finds that the proposed settlement will facilitate the remediation of the site and there should be no risk of harm to the environment as a result of the proposed settlement. Based on the submissions of the Parties, the Tribunal also finds that the purpose and intent of s. 100.1(1) and the requirements in s. 100.1(15) have been addressed. The Tribunal finds that the proposed revocation of the Director’s Order is in the public interest and that the proceedings should be dismissed.
ORDER
15The Tribunal approves the proposed revocation of the Municipal Order and the Tribunal directs the Municipality to revoke the Municipal Order.
16The Tribunal orders that the proceeding is dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS MEMBER
Appendix 1 - Settlement Agreement
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