Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 11, 2021

CASE NO(S).: 21-022

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

Appellant: 7069367 Canada Inc.

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

Subject of appeal: Order to retain the services of a Qualified Person(s) to assess the extent of groundwater impacts on and off-Site, and to assess the potential risk of Contaminants of Concern to receptors in the Residential Neighbourhood

Reference No.: 4260-BHDQHR

Property Address/Description: 587 Third Line

Municipality: Town of Oakville

Upper Tier: Regional Municipality of Halton

ERT Case No.: 21-022

ERT Case Name: 7069367 Canada Inc. v. Ontario (Environment, Conservation and Parks)

Heard: May 28, 2021 by video hearing

APPEARANCES:

Parties

Counsel

7069367 Canada Inc.

Gabrielle Kramer and Barbora Grochalova

Director, Ministry of the Environment, Conservation and Parks

Isabelle O’Connor, Madeline Ritchie and Jayden Rae (summer student)

Tamlann Investments Ltd.

Colin Léger

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 28, 2021 AND ORDER OF THE TRIBUNAL

1The Director, Ministry of the Environment, Conservation and Parks (“MECP”), issued Order No. 4260-BHDQHR ("Director’s Order") against 7069367 Canada Inc. (“Appellant”), Tamlann Investments Limited (“Tamlann”), Ambi Corporation, Geoin Investments Inc., and C and 3S Investments Limited (together, “Orderees”) on February 12, 2021. It was issued under s. 18 and s. 196 of the Environmental Protection Act. The Director’s Order addresses the presence and migration of contaminants on the property located at 587 Third Line (“subject lands”) in the Town of Oakville.

2On April 8, 2021, the Tribunal held a telephone conference call at which it issued a partial stay of the Director’s Order on consent.

3On May 28, 2021, the Tribunal held a Case Management Conference (“CMC”) at which it addressed the identification of Parties and Participants, the identification of issues for the hearing, the preparation of an Issues List and draft Procedural Order, opportunities for settlement discussions, and the setting of hearing dates.

4At the CMC, the Tamlann Investments Inc. requested Party status. Tamlann is an Orderee under the Director’s Order and former owner of the subject lands. It submitted that it is cooperating with the MECP and has taken steps to comply with the items in the Director’s Order. It submitted that it has a direct interest in the proceedings and would be impacted if the Appellant were found not to be subject to the Order. It submitted that it has retained an environmental consultant and would make a relevant contribution to the proceeding. It also submitted that it does not intend to expand on the issues raised by the Appellant. The Appellant objected to Tamlann’s request for Party status. It submitted that the Director’s Order applies severally to the Orderees and Tamlann does not have an interest in whether the Appellant complies with the Order, which is the focus of the appeal. It submitted that Tamlann also does not own land in the vicinity of the subject lands. It submitted that Tamlann’s interests are independent of the Appellant’s obligations and that if it were granted status, it should be limited solely to issues related to work being carried out under the Director’s Order. The Director submitted that she does not object to Tamlann’s request for status provided that Tamlann does not expand the scope of the appeal. The Tribunal found that as an Orderee undertaking the work required under the Director’s Order who has retained an environmental consultant to address the contamination in question, Tamlann’s interests will be directly and substantially affected by the Hearing or its result, it has a genuine interest in the subject matter of the proceeding, and it is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding. The Tribunal granted Tamlann’s request for Party status.

5Erectoweld Limited (“Erectoweld”) requested Participant status at the CMC. Erectoweld owns a light industry facility across the street and downgradient from the subject lands. It has concerns regarding the migration of contaminants. None of the Parties opposed Erectoweld’s request and the Tribunal granted it Participant status.

6The Parties agreed to work together to finalize and file with the Tribunal an Issues List and draft Procedural Order. Subsequent to the CMC on June 10, 2021, the Parties filed a finalized Issues List and draft Procedural Order, which the Tribunal has now reviewed and approves.

7The Parties expressed an interest in pursuing Tribunal-assisted mediation. The procedure for requesting Tribunal-assisted mediation is for the Parties to write to the Tribunal’s Case Coordinator setting out the request and describing why the dispute is appropriate for mediation. The Tribunal encouraged the Parties to make the request promptly.

8The Parties described the evidence and witnesses that they each intend to produce at the hearing and they requested the setting of hearing dates. The Tribunal scheduled a seven-day hearing for October 2021.

ORDER

9The Tribunal approves the draft Procedural Order and Issues List appended as Appendix 1 to this Order and Decision.

10The Tribunal orders that the hearing of the appeal will commence by video hearing on Monday, October 18, 2021 at 10 a.m. Seven days have been set aside for the hearing.

11The Tribunal’s Case Coordinator will provide the details for connecting to the hearing.

12This Member is not seized.

Procedural Directions Ordered

Hearing Dates Scheduled

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.

Appendix 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

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

Appellant: 7069367 Canada Inc.

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

Subject of appeal: Order to retain the services of a Qualified Person(s) to assess the extent of groundwater impacts on and off-Site, and to assess the potential risk of Contaminants of Concern to receptors in the Residential Neighbourhood

Reference No.: 4260-BHDQHR

Property Address/Description: 587 Third Line

Municipality: Town of Oakville

Upper Tier: Regional Municipality of Halton

ERT Case No.: 21-022

ERT Case Name: 7069367 Canada Inc. v. Ontario (Environment, Conservation and Parks)

Procedural Order for Video Hearing

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, October 18, 2021 commencing at 10 a.m. The Tribunal’s Case Coordinator will provide the details for connecting to the hearing.

3. The parties’ initial estimation for the length of the hearing is 7 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the Case Management Conference are set out in Attachment 3 (see Attachment 2 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 4. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 5 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 24, 2021 (55 days prior to the hearing date) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before September 24, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before October 1, 2021 (at least 15 days prior to the start of the hearing).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before September 10, 2021 (a minimum of 38 days before the hearing date), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before September 10, 2021 (a minimum of 38 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before October 1, 2021, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 8, 2021 (no later than 10 days prior to the hearing).

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before October 15, 2021.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 17, 2021 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1 to Procedural Order

Summary of Procedural Dates

EVENT

DATE

List of witnesses and order in which they will be called to be provided to the Tribunal

Tuesday, August 24, 2021

Copies of witness statements and expert witness statements or reports to be exchanged with all other Parties and filed with the Tribunal

Friday, September 10, 2021

Written participant statement of the Participant to be provided to the Parties

Friday, September 10, 2021

Preliminary Hearing Plan to be filed with the Tribunal

Friday, September 17, 2021

Meeting of expert witnesses in the same field to occur

Friday, September 24, 2021

Statement of Agreed Facts and Issues to be filed with the Tribunal

Friday, October 1, 2021

Copies of visual evidence to be provided to all other Parties

Friday, October 1, 2021

Joint Document Book to be provided to the Tribunal

Friday, October 8, 2021

Password-protected documents which may be used on cross-examination to be provided to the Tribunal and all other Parties

Friday, October 15, 2021

Hearing

October 18 to 26, 2021 (7 days)

Attachment 2 to Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

Attachment 3 to Procedural Order

Parties and Participants

Parties

1. 7069367 Canada Inc. (Appellant)

Gabrielle Kramer and Barbora Grochalova

Borden Ladner Gervais LLP

Bay Adelaide Centre - East Tower

22 Adelaide Street West

Toronto, ON M5H 4E3

Phone: 416.367.6113 / 416.367.6707

Email: gkramer@blg.com / bgrochalova@blg.com

2. Director, Ministry of the Environment, Conservation and Parks (Respondent)

Isabelle O’Connor and Madeline Ritchie

Ministry of the Environment, Conservation and Parks

Legal Services Branch

135 St Clair Avenue West, 10th Floor

Toronto, ON M4V 1P5

Phone: 416.705.5097 / 647.649.0904

Email: isabelle.oconnor@ontario.ca / madeline.ritchie@ontario.ca

3. Tamlann Investments Ltd.

Peter Pickfield and Colin Léger

Garrod Pickfield LLP

9 Norwich Street West

Guelph, ON N1H 2G8

Phone: 519.837.0500

Email: pickfield@garrodpickfield.ca/ cleger@garrodpickfield.ca

Participant

1. Erectoweld Limited

Ralph Cuervo-Lorens

McMillan LLP

Brookfield Place, Suite 4400

181 Bay Street

Toronto, ON M5J 2T3 Phone: 416.865.7880 Email: ralph.cuervo-lorens@mcmillan.ca

Attachment 4 to Procedural Order

Issues List

1. Whether 7069367 Canada Inc. owns or has management or control of an undertaking or property in, on or under which may be found the presence of a contaminant (as defined in the subject Director’s Order No. 4260-BHDQHR);

2. Whether the Director’s Order as against 7069367 Canada Inc should be struck or modified as counter to the principles of fairness and to the policies of the Ministry of Environment, Conservation and Parks (“MECP”), specifically, whether 7069367 Canada Inc should be relieved from carrying out the terms of the Director’s Order for reasons that:

a. 7069367 Canada Inc has voluntarily cooperated with MECP and has undertaken numerous investigations as requested;

b. The imposition of the Director’s Order will cause undue financial hardship on 7069367 Canada Inc;

c. The MECP failed to undertake its obligation to ensure a response in 1987, arising from an incident that is understood to have occurred in 1986;

3. Whether the prior owners and operators failed to discharge their obligations with respect to the Subject Property, and if so, whether that is a reason to strike or modify the Director's Order as against 7069367 Canada Inc;

4. Whether the environmental protection objectives of the Environmental Protection Act will be met should the Director’s Order be struck or modified as against 7069367 Canada Inc;

5. Whether the MECP lacked jurisdiction to issue the Director’s Order;

6. Whether the requirements of the Director’s Order are necessary or advisable in light of prior testing that found no adverse health effects arising from the presence of contaminants at the Residential Property.

Attachment 5 to Procedural Order

Order of Evidence

1. 7069367 Canada Inc.

2. Director, Ministry of the Environment, Conservation and Parks

3. Tamlann Investments Ltd.

4. 7069367 Canada Inc. in reply, if any