Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 15, 2021
CASE NO(S).: 20-068
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Jason Geil (File No. 20-068)
Appellant: Geil Style Enterprises Inc. (File No. 20-069)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to implement a monthly inspection, maintenance and reporting program to manage potential for any off-site adverse effects from the soils deposited on the site.
Reference No.: 1222-BTNKFB-1
Property Address/Description: 1943 Roseville Rd.
Municipality: North Dumfries
Upper Tier: Regional Municipality of Waterloo
ERT Case No.: 20-068
ERT Case Name: Geil v. Ontario (Environment, Conservation and Parks)
Heard: May 27, 2021 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Jason Geil and Geil Style Enterprises Inc. | Sean Biesbroek |
| Director, Ministry of the Environment, Conservation and Parks | Amanda Landre |
MEMORANDUM OF DECISION DELIVERED BY HUGH S. WILKINS ON MAY 27, 2021 AND ORDER OF THE TRIBUNAL
1On December 2, 2020, the Director, Ministry of the Environment, Conservation and Parks issued Director’s Order No. 1222-BTNKFB-1 requiring Jason Geil and Geil Style Enterprises to undertake work at the property located at 1943 Roseville Road, in North Dumfries, in the Regional Municipality of Waterloo.
2At a Case Management Conference (“CMC”) held on March 9, 2021, the Tribunal directed the exchange of documents and granted a request for Participant status made by Francisco Dominguez.
3On May 18, 2021, the Tribunal held a second CMC at which it addressed the identification of issues for the hearing, the preparation of a draft Procedural Order, opportunities for settlement discussions, and the setting of hearing dates.
4At the May CMC, the Parties stated that most of the relevant documents have been exchanged and they agreed to work together to prepare and file a finalised Issues List and draft Procedural Order. Subsequent to the CMC, the Parties filed these documents, which the Tribunal has now reviewed and approves.
5The Parties both expressed an interest in pursuing Tribunal-assisted mediation. The Tribunal described the procedure for requesting Tribunal-assisted mediation and encouraged the Parties to make promptly a formal request through the Tribunal’s Case Coordinator.
6The Tribunal scheduled a two-day hearing for October 2021.
ORDER
7The Tribunal approves the draft Procedural Order and Issues List appended as Appendix 1 to this Order and Decision.
8The Tribunal orders that the hearing of the appeal will commence by video hearing on Tuesday, October 12, 2021 at 10 a.m. Two days have been set aside for the hearing.
9The Tribunal’s Case Coordinator will provide the call-in details.
10This Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 - Draft Procedural Order and Issues List
Ontario Land Tribunal
Website: 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
CASE NO(S).: 20-068, 20-069
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Jason Geil (File No. 20-068)
Appellant: Geil Style Enterprises Inc. (File No. 20-069)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to implement a monthly inspection, maintenance and reporting program to manage potential for any off-site adverse effects from the soils deposited on the site.
Reference No.: 1222-BTNKFB-1
Property Address/Description: 1943 Roseville Rd.
Municipality: North Dumfries
Upper Tier: Regional Municipality of Waterloo
ERT Case No.: 20-068
ERT Case Name: Geil v. Ontario (Environment, Conservation and Parks)
- 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
The video hearing will begin on October 12, 2021 at 10 a.m. The Tribunal’s Case Coordinator will provide the details for connecting to the hearing.
The parties’ initial estimation for the length of the hearing is 2 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 parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. 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.
The order of evidence shall be as set out in Attachment 3 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.
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.
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
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 18, 2021 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.
Expert witnesses in the same field shall have a meeting on or before September 3, 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 Coordinator on or before September 27, 2021.
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.
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.
On or before September 3, 2021, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 22 below.
On or before September 3, 2021, 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.
On or before September 28, 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.
Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before October 1, 2021.
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 Coordinator, on or before October 1, 2021.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 28, 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.
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.
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 to Sample 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 1
Parties and participants identified at the case management conference
Parties:
Jason Geil & Geil Style Enterprises Inc. 1943 Roseville Road North Dumfries ON N1R 5S3
Counsel: Sean Aherne Biesbroek 42 College St Kitchener ON N2H 5A1 Tel: 519-742-1270 Fax: 519-742-6973 Email: sabiesbroek@gmail.com
Director, Ministry of the Environment, Conservation and Parks Clarissa Whitelaw, Acting District Manager Ministry of the Environment, Conservation and Parks Guelph District Office 1 Stone Rd W, 4th Floor Guelph ON N1G 4Y2 Tel: 519-767-8442 Email: clarissa.whitelaw@ontario.ca
Counsel: Amanda Landre Ministry of the Environment, Conservation and Parks Legal Services Branch 135 St. Clair Ave W, 11th Floor Toronto ON M4V 1P5 Tel: 647-267-3437 Email: amanda.landre@ontario.ca
Participants:
Francisco Dominguez 1953 Roseville Rd Cambridge ON N1R 5S3 Tel: 226-666-4782 Email: fxdoming@gmail.com
Attachment 2
Issues List
Did Jason Geil and/or Geil Style Enterprises Inc. contravene sections 14(1), 27(1), 40 and/or 41 of the Environmental Protection Act by accepting and storing large quantities of materials at 1943 Roseville Road?
Did the Ministry of the Environment violate the Applicants’ rights to unreasonable search and seizure, such that evidence should be excluded under section 24(1) and/or 24(2) of the Canadian Charter of Rights and Freedoms, or such that another appropriate and just remedy should be imposed by this Tribunal?
Is the Order under appeal ultra vires and outside the scope of the Environmental Protection Act, including in particular sections 196(1) and 157 of that Act, or is it otherwise inappropriate in the circumstances, such that it should be amended or rescinded?