Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
August 03, 2021
CASE NO(S).:
21-030
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Appellant:
Federation of Tiny Township Shoreline Associations (File No. 21-030)
Appellant:
Corporation of the Township of Tiny
(File No. 21-031)
Instrument Holder:
CRH Canada Group Inc.
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of appeal:
Decision to issue a Permit to Take Water from a source pond, issued under section 34.1 of Ontario Water Resources Act for the washing of aggregates at the Teedon Pit
Reference No.:
6258-BRDJ2M
Property Address/Description:
Lots 79 and 80, Concession 1
Municipality:
Original Township of Tiny
Upper Tier:
County of Simcoe
ERT Case No.:
21-030
ERT Case Name:
Federation of Tiny Township Shoreline Associations v. Ontario (Environment, Conservation and Parks)
Heard:
In writing
APPEARANCES:
Parties
Counsel
Federation of Tiny Township Shoreline Associations
J. Castrilli and R. Nadarajah
Corporation of Tiny Township
S. Hahn
Director, Ministry of the Environment,
I. O’Connor and M. Ritchie
Conservation and Parks
CRH Canada Group Incorporated
J. Kahn and M. Jorgensen
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
Background
1The Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”), issued Permit to Take Water No. 6258-BRDJ2M to CRH Canada Group Inc. (“Instrument Holder”) on January 13, 2021. It was amended on January 19, 2021 to remedy a typographical error.
2On April 19, 2021, the Tribunal granted leave to appeal the Director’s decision under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”) to the Federation of Tiny Township Shoreline Associations (“FOTTSA”) and the Township of Tiny (“Township”).
3Pursuant to the granting of leave, FOTTSA filed its appeal of the Director’s decision on April 26, 2021 and the Township filed its appeal on May 4, 2021.
4Section 42(1) of the EBR imposes an automatic stay of the operation of an instrument under appeal until the disposition of the appeal unless the Tribunal orders otherwise. On April 29, 2021, the Instrument Holder requested a motion hearing for the removal of the automatic stay. It also sought the interim lifting of the automatic stay pending the disposition of the motion.
5On May 3, 2021, the Tribunal held a telephone conference call at which it scheduled the hearing of the motion. During the call, the Parties requested, and the Tribunal granted, the interim lifting of the automatic stay pending the disposition of the Instrument Holder’s motion.
Proposed Settlement of the Motion for the Removal of the Automatic Stay
6On May 31, 2021, the Parties informed the Tribunal that they had reached a proposed settlement of the motion for the removal of the automatic stay, subject to the following conditions:
- Sump Pond
a. Sump Pond Water Levels: The high-level float control on the Sump Pond shall be maintained at least 0.3 metres below the elevation of the lowest point of the orifice of the catch basin in the Sump Pond berm for the duration of this Order.
b. Inspections for Sump Pond Berm: For the duration of this Order, the condition of the Sump Pond’s retention berm shall be assessed daily by staff of the Instrument Holder, and when appropriate by a qualified engineer. Any changes and/or repairs to the berm shall be approved in advance by MECP, reported to the MECP within 24 hours of having been undertaken, and recorded in the Annual Report.
c. Sump Pond Water Quality Monitoring:
i. The Instrument Holder shall immediately commence monthly water quality monitoring of the Sump Pond and the small unnamed downstream pond to establish water quality. The parameters to be tested shall include metals, anions, turbidity, and total suspended solids (“TSS”).
ii. One baseline sample shall be taken before washing commences on a Monday morning after a weekend with no washing activity.
iii. Subsequent samples shall be taken at the end of a midweek day with normal aggregate washing activity. The sampling frequency shall be monthly for the first three months, then quarterly for the duration of this Order.
- Well Sampling
a. Residents who have historically complained of water quality impacts shall be contacted, and if they are still experiencing turbidity-related water quality issues and they agree to provide access then they shall be included in a surveillance program including regular monthly laboratory testing of well water quality for metals, anions, turbidity and TSS, and such other testing as the Instrument Holder deems appropriate. When water quality testing of residents’ wells is done, results shall be provided to the respective residents as soon as they come back from the laboratory.
b. If the Instrument Holder receives a complaint from a new residence pertaining to well water quality impacts, the Instrument Holder shall, subject to access being granted and possible, test the water quality of the complainant’s well (with the parameter list including metals, anions, turbidity, and TSS as soon as possible after receiving the complaint, report the results to the complainant and the MECP forthwith, and follow up with monthly monitoring (for the duration of this Order).
- Record of Complaints
a. A complete record of complaints received (whether directly or through the MECP) shall be compiled and maintained by the Instrument Holder.
Submissions
7On May 31, 2021, the Parties filed joint submissions and on June 11, 2021, they filed a draft Order. The Parties submit that under s. 42(1) of the EBR, the Tribunal has broad authority to lift an automatic stay. The Instrument Holder and the Director submit that lifting the automatic stay would not result in: danger to the health or safety of any person; impairment or serious risk of impairment to any waters or any use of waters; or injury or damage or serious risk of injury or damage to any property or to any plant or animal life. FOTTSA and the Township support these submissions, subject to the conditions being met as set out in paragraph [6] above.
Findings
8As noted in the Tribunal’s decision regarding the interim lifting of the automatic stay, dated May 11, 2021 (see Federation of Tiny Township Shoreline Associations v. Ontario (Environment, Conservation and Parks), 2021 CanLII 41840 (ON ERT), at paragraphs 12-13), ss. 45 and 46 of the EBR states that the Tribunal has similar powers on appeal and is to use similar procedures to those that would be applied if the Instrument Holder had filed an appeal of the decision. In this case, the applicable statutory provisions are in s. 100(3) and (4) of the Ontario Water Resources Act (“OWRA”).
9Section 102(3) of the OWRA sets out public interest considerations that are to be addressed on requests for stays of s. 100 appeals. Section 102(3) of the OWRA states:
102(3) The Tribunal shall not stay the operation of a direction, order, report or decision if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of any waters or any use of waters; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
Taking into account the direction provided in ss. 45 and 46 of the EBR, the intent of ensuring environmental protection under s. 42(1) of the EBR, and the public interest nature of the considerations in s. 102(3) of the OWRA, these considerations should be addressed by the Tribunal when making a decision on whether to lift an automatic stay.
10The Tribunal has broad authority and discretion under s. 42(1) of the EBR to grant the proposed lifting of the automatic stay. The Tribunal finds that there are no statutory requirements restricting the Tribunal from lifting the automatic stay and the proposed conditions are reasonable and will address the public interest concerns set out in s. 102(3) of the OWRA. Based on the submissions of the Parties, the proposed conditions will ensure that the proposed lifting of the automatic stay will not result in danger to the health or safety of any person, impairment or serious risk of impairment of any waters or any use of waters, or injury or damage or serious risk of injury or damage to any property or to any plant or animal life. Given that the motion is on consent, the Tribunal will not specifically address each of the related stay tests in RJR – MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Based on the submissions before it and the consent of the Parties, the Tribunal grants the request for the lifting of the automatic stay subject to conditions, as requested.
ORDER
11The Tribunal grants the Instrument Holder’s request for the lifting of the automatic stay, subject to the conditions set out in paragraph [6] above.
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.