Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 23, 2021
CASE NO(S).: 19-035
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant: Pamela Poulin (File No. 19-035)
Appellant: Harold Westendorp (File No. 19-036)
Appellant: 2057183 Ontario Limited (File No. 19-037)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to provide written confirmation that all liquid industrial and hazardous wastes have been removed from the Site by an Approved Waste Hauler, to prepare and implement a Phase Two Environmental Site Assessment Action Plan, and to submit a Final Report
Reference No.: 5200-BB2KYP-1
Property Address/Description: 7811 County Road 6
Municipality: Elizabethtown-Kitley
Upper Tier: United Counties of Leeds and Grenville
ERT Case No.: 19-035
ERT Case Name: Poulin v. Ontario (Environment, Conservation and Parks)
Heard: June 16, 2021 by telephone conference call
APPEARANCES:
Parties
Pamela Poulin, Harold Westendorp and 2057183 Ontario Limited
Counsel
J. Douglas Grenkie
Parties
Director, Ministry of the Environment, Conservation and Parks
Counsel
Jon Bradbury
MEMORANDUM OF ORAL DECISION DELIVERED BY HELEN JACKSON AND ORDER OF THE TRIBUNAL
Background
1By Decision dated May 17, 2021, the Environmental Review Tribunal (“Tribunal”), now amalgamated with other Tribunals and continued as the new consolidated Ontario Land Tribunal (“OLT”/“Tribunal”) pursuant to s. 2 of the Ontario Land Tribunal Act, 2021, proclaimed in force on June 1, 2021, ordered the Director to amend the Director’s Order under the appeals noted above. By the Tribunal’s Decision of May 17, 2021, the Tribunal gave the parties until June 7, 2021 to provide submissions on proposed compliance deadlines for the work items required by the amended Director’s Order.
2By email to the Tribunal on June 7, 2021, the Appellants requested additional time beyond the June 7, 2021 date, to provide those submissions due to disruption to the Appellants’ ability to respond as a result of a devastating fire on another of the Appellants’ properties. In the Appellants’ submissions, they advised that Bruce Cochrane, a Qualified Person (“QP”), had been engaged to undertake the ordered work at the Site subject to the amended Director’s Order.
3In response to the Appellants’ request for additional time to provide submissions on compliance dates, the Director submitted by email of June 7, 2021, to the Tribunal that the Appellants had failed to respond to the Director’s previous correspondence of May 26, 2021, where the Director proposed compliance dates for the work items in the amended Director’s Order. In light of the lack of response by the Appellants to the Director’s communication to the Appellants, the Director submits that the Tribunal ought to order the compliance dates proposed by the Director in the draft amended Director’s Order that was provided to the Appellants by email on May 26, 2021.
4In order to resolve this remaining outstanding issue in the above appeals, the Tribunal directed the parties to attend a telephone conference call (“TCC”) on June 16, 2021, in order to hear further submissions with respect to the issue of compliance dates to be ordered in the amended Director’s Order yet to be issued.
TCC of June 16, 2021
5At the TCC of June 16, 2021, the parties provided submissions on the compliance dates that were proposed in the draft amended Director’s Order provided by email to the Appellants on May 26, 2021, and subsequently copied to the Tribunal on June 7, 2021. In that draft amended Director’s Order were the following proposed compliance dates for the work items, as summarized below:
- By June 7, 2019, provide written confirmation to the Director that all liquid industrial and hazardous wastes have been removed from the Site by a Ministry of the Environment, Conservation and Parks (“MECP”) approved waste hauler;
- By June 11, 2021, retain the services of a QP to prepare and implement a Phase 2 Environmental Site Assessment Action Plan and prepare a Phase 2 Environmental Site Assessment Final Report (“Phase 2”);
- By June 11, 2021, provide written confirmation to the Director from the QP that he or she has received a copy of the Director’s Order, has been retained to carry out the specified work, and has the experience and qualifications to carry out the work;
- By July 9, 2021, submit the Phase 2 Environmental Site Assessment Action Plan to the Director; and
- By September 24, 2021, complete all required work identified in the Phase 2 Environmental Site Assessment Action Plan and submit to the Director a copy of the Phase 2 Environmental Site Assessment Final Report.
6In the Tribunal’s Decision of May 17, 2021, the Tribunal acknowledged that Item 1 has been complied with.
7In his written submissions, Mr. Grenkie advised that Mr. Cochrane, a QP, has been retained by the Appellants to undertake the work at the Site subject to the Director’s Order under these appeals. In his oral submissions at the TCC, Mr. Grenkie further advised that Mr. Cochrane has had a preliminary visit of the Site.
8The Director advised that he is satisfied that Items 2 and 3 have been substantially complied with on the basis that a QP has been engaged by the Appellants and has had a preliminary visit of the Site. The Director expressed the view that compliance dates should be set for Items 4 and 5 as these items represent the substantive work that is required to be done at the Site resulting from the amended Director’s Order.
9Mr. Grenkie advised that Mr. Cochrane has also been retained to undertake work at the property owned by the Appellants that was subject to the fire. On behalf of the Appellants, Mr. Grenkie expressed the view that Mr. Cochrane is fully engaged with the work required at the Appellants’ other property because of the immediacy of the work required due to the fire. In order to allow Mr. Cochrane the time to attend to the work required at the Appellants’ property subject to the fire prior to attending at the Site involved in these appeals, Mr. Grenkie suggested the deadline for Item 4 should be delayed until the end of August and the deadline for Item 5 should be delayed until the end of October.
10The Director expressed concern that the work at the Site subject to these appeals should not be delayed on the basis of Mr. Cochrane’s schedule being tied up with the activities at the Appellants’ other property. He suggested that another QP may be available to conduct the work in a more timely fashion.
11The Tribunal agreed with the submission of the Director that if Mr. Cochrane is not able to do the work in a timely fashion, then it may be necessary for the Appellants to engage another QP. The Tribunal noted that it is appropriate to develop the Action Plan as required by Item 4 in a timely fashion to show good faith and confirm that the Appellants intend to complete the work required by the amended Director’s Order.
12Following discussion between the parties, the Director and the Appellants agreed upon a proposed compliance date for Item 4 of August 3, 2021. The parties further agreed upon a proposed compliance date for Item 5 of October 29, 2021. This date was selected with a view to having the field work completed by winter, to avoid the difficulties entailed with doing field work during the wintertime.
13The Tribunal is satisfied that these proposed amended compliance dates for Items 4 and 5 are appropriate. These dates will ensure that the work required by the amended Director’s Order will be achieved in a timely fashion, and prior to the winter season, when it is more difficult to do outdoor field work.
14The Tribunal directs the Director to issue the amended Director’s Order as previously directed by Tribunal Decision of May 17, 2021, with the following compliance dates:
- Item 1: June 7, 2019
- Item 2: June 11, 2021
- Item 3: June 11, 2021
- Item 4: August 3, 2021
- Item 5: October 29, 2021.
ORDER
15The Tribunal directs the Director to issue the amended Director’s Order as previously directed by Tribunal Decision of May 17, 2021, with the following compliance dates:
- Item 1: June 7, 2019
- Item 2: June 11, 2021
- Item 3: June 11, 2021
- Item 4: August 3, 2021
- Item 5: October 29, 2021.
Director Directed to Amend Director’s Order
“Helen Jackson”
HELEN JACKSON 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.