Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
CORRECTION NOTICE
OLT CASE NO(S).: 17-032
DECISION ISSUE DATE(S): June 10, 2021
CORRECTION NOTICE ISSUE DATE: June 28, 2021
RE: Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)
Correction to: last sentence of paragraph [14], on page 5 of the Decision
Originally: The Tribunal finds that the proposed revocation of the Director’s Order is in the public interest and that the proceedings should be dismissed.
Corrected to: The Tribunal finds that the proposed revocation of the Municipal Order is in the public interest and that the proceedings should be dismissed.
“Becky Fong”
BECKY FONG
REGISTRAR
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.
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](https://www.canlii.org/en/on/laws/stat/rso-1