Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 20, 2021

CASE NO(S).: 21-015, 21-033

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

Appellant: Imperial Oil Limited

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

Subject of appeal: Environmental Penalty Order to pay for nine contraventions of s. 5(1) of O. Reg 530/18 – causing a discharge of more than 225 kilograms of sulphur dioxide

Reference No.: Environmental Penalty Order No. 235

Property Address/Description: 602 Christina Street South

Municipality: City of Sarnia

Upper Tier: County of Lambton

OLT Case No.: 21-015

OLT Case Name: Imperial Oil Limited v. Ontario (Environment, Conservation and Parks)

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

Appellant: Imperial Oil Limited

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

Subject of appeal: Environmental Penalty Order to pay for two contraventions of s. 5(1) of O. Reg 530/18 – causing a discharge of more than 225 kilograms of sulphur dioxide in a 24-hour period from an acid gas combustion equipment

Reference No.: Environmental Penalty Order No. 246

Property Address/Description: 602 Christina Street South

Municipality: City of Sarnia

Upper Tier: County of Lambton

OLT Case No.: 21-033

OLT Case Name: Imperial Oil Limited v. Ontario (Environment, Conservation and Parks)

Heard: June 17, 2021 by video hearing and August 18, 2021 in writing

APPEARANCES:

Parties	Counsel
Imperial Oil Limited	Michael Finley, Glen Jennings, and Abigail Green (summer student)
Director, Ministry of Environment, Conservation and Parks	Sylvia Davis
Aamjiwnaang First Nation	Scott Robertson
Vanessa Gray and Arnold Norman Yellowman	Bronwyn Roe, Zachary Biech, Ian Miron, and Haritha Popuri (summer student)

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (“CMC”) regarding appeals brought by Imperial Oil Limited under s. 140(1) of the Environmental Protection Act (“EPA”) regarding Environmental Penalty Order Nos. 235 and 246 (“Penalty Orders”) issued by the Director (“Director”), Ministry of Environment, Conservation and Parks (“MECP”) on January 21, 2021 and May 3, 2021, respectively. The Penalty Orders relate to emissions from the Appellant’s integrated fuels, chemicals manufacturing, and petroleum research facility (“Refinery”) located in Sarnia.

2At the CMC, the Tribunal addressed requests for Party status, the identification of issues and the preparation of a draft Procedural Order, opportunities for settlement discussions, and the setting of hearing dates.

Requests for Party Status

3At the CMC, the Aamjiwnaang First Nation, Vanessa Gray, and Arnold Norman Yellowman each requested Party status.

a. Aamjiwnaang First Nation

4Aamjiwnaang First Nation stated that the Refinery is located adjacent to its territory, which has been occupied by its members since time immemorial. It stated that pollution emitted from neighbouring industrial facilitates, including the Refinery, causes significant harm to human health and the environment. It stated that these emissions affect its members’ physical and mental health, and cultural life. It submitted that any decision that addresses the effectiveness of emission guidelines and levels of air pollution within Aamjiwnaang First Nation’s traditional territory directly impacts it. It submitted that Aamjiwnaang First Nation should be permitted to make submissions on the potential impacts on its members and collective Indigenous rights when the enforcement of regulations is challenged by emitters. It stated that it would provide evidence and submissions on the impact and harm posed by the Appellant’s emissions on the ability of its members to exercise their rights and it would provide an Indigenous perspective and context.

5The Director supports Aamjiwnaang First Nation’s request for Party status. It submitted that Aamjiwnaang First Nation would provide context to the interpretation of the applicable regulations, evidence on emissions impacts, and an important perspective on the issues.

6The Appellant submitted that Aamjiwnaang First Nation’s request for Party status raises general concerns regarding local air emissions, environmental regulation, and overall regulatory enforcement, which go beyond the specific issues raised in the appeal and are beyond the Tribunal’s jurisdiction to address. It submitted that the Director would address the concerns raised by Aamjiwnaang First Nation and its engagement as a Party is not necessary.

Findings

7Section 145 of the EPA provides the Tribunal with discretion regarding the granting of Party status in a proceeding brought under s. 140 of the Act. It states that the person requiring the hearing and the Director are automatically Parties. It also states that the Tribunal may grant Party status to any other persons specified by it. Rule 8.2 of the Tribunal’s Rules of Practice and Procedure states that the Tribunal may add a party to a proceeding if the person seeking status satisfies any applicable legislative tests necessary to be a Party and the person’s presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues.

8When deciding requests for Party status in environmental matters, the Tribunal in the past has considered whether the hearing and its result may directly and substantially affect the person’s interests, whether the person has a genuine interest in the subject matter of the proceeding, and whether the person is likely to make a relevant contribution to the Tribunal’s understanding of the issues. The consideration of these factors assists in the Tribunal’s determination of whether the person’s presence is necessary to enable it to adjudicate effectively and completely.

9In the present case, the Tribunal finds that Aamjiwnaang First Nation satisfactorily addresses these factors. The Tribunal finds that given its location in close proximity to the Refinery, the alleged health and environmental effects of emissions, and the role of penalty orders in addressing emissions, Aamjiwnaang First Nation’s interests may be directly and substantially affected by the hearing and its result. Given its location and past engagement in health and environment issues in the area, the Tribunal finds that Aamjiwnaang First Nation has a genuine interest in the subject matter of the proceedings. Also, based on the issues outlined by Aamjiwnaang First Nation and the context that it can provide, the Tribunal finds that Aamjiwnaang First Nation is likely to make a relevant contribution to the Tribunal’s understanding of the issues. The Tribunal finds that Aamjiwnaang First Nation satisfies the applicable legislative tests necessary to be a Party and its presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues. It grants Party status to Aamjiwnaang First Nation as requested.

b. Vanessa Gray and Arnold Norman Yellowman

10Ms. Gray and Mr. Yellowman also sought Party status. They submitted that Ms. Gray is a non-resident member of Aamjiwnaang First Nation, who works on community awareness issues regarding emissions, spills reporting, and environmental matters and Mr. Yellowman lives in the Aamjiwnaang First Nation and is directly impacted by emissions from the Refinery, which affect his health and quality of life. Ms. Gray and Mr. Yellowman submitted that a narrow interpretation of the applicable regulations by the Tribunal would directly and substantially affect their individual rights and interests in protecting their health and the environment. As Ms. Gray has done work relating to health and environment issues in the community and Mr. Yellowman lives close to the Refinery, they argued that they both have longstanding genuine interests in the regulation of local air quality. They submitted that they would not expand from the Appellant’s issues and would focus on harm caused by the Refinery’s emissions, cumulative impacts, and operations at the Refinery.

11The Director supports their requests for Party status. The Director submitted that their local perspectives would assist the Tribunal in making its decision.

12The Appellant submitted that neither Ms. Gray nor Mr. Yellowman has sufficient interest in the matters under appeal for them to be granted Party status. It submitted that the appeal addresses technical issues relating to the functioning of the Refinery and the fairness of the Penalty Orders. It argued that their proposed engagement as Parties would not assist the Tribunal in adjudicating the appeals. It submitted that Ms. Gray and Mr. Yellowman would expand the issues to address the impacts of pollution in general and raise unrelated concerns regarding the Refinery. It submitted that Ms. Gray and Mr. Yellowman do not have a direct and substantial interest in whether Penalty Orders are fair, whether constitutional rights were violated, or how the applicable regulations should be applied. It argued that the amount of the penalties have no effect on their interests and the existing Parties would address their concerns.

Findings

13The Tribunal finds that given Ms. Gray’s engagement in the community in health and environmental issues and Mr. Yellowman’s residence in close proximity to the Refinery, their interests would be directly and substantially affected by the hearing and its result and that each has a genuine interest in the subject matter of the proceedings. Also, based on the concerns outlined by Ms. Gray and Mr. Yellowman, and noting that they submit that they will not expand from the issues raised by the Appellant, the Tribunal finds that Ms. Gray and Mr. Yellowman are likely to make a relevant contribution to the Tribunal’s understanding of the matters before it. The Tribunal finds that Ms. Gray and Mr. Yellowman satisfy the applicable legislative tests necessary to be Parties and their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues. It grants Party status to Ms. Gray and Mr. Yellowman as requested.

Issues Identification and Preparation of a draft Procedural Order

14At the CMC, the Parties agreed to finalize an Issues List and draft Procedural Order. They subsequently filed finalized drafts on August 18, 2021. The Tribunal has reviewed and approves the proposed Issues List and Procedural Order.

Opportunities for Settlement Discussions

15The Parties expressed interest in pursuing settlement discussions or mediation. The Tribunal encourages the Parties to engage in discussions to either narrow or resolve the issues and, if agreed to among the Parties, it encourages them to request Tribunal-assisted mediation.

Scheduling the Hearing

16The Parties outlined the number of witnesses that each will produce at the hearing and provided estimates on the amount of time needed for the hearing. The Tribunal scheduled a 11-day hearing for April 2022.

ORDER

17The Tribunal orders that Aamjiwnaang First Nation, Vanessa Gray, and Arnold Norman Yellowman are Parties in these proceedings.

18The Tribunal approves the Issues List and Procedural Order attached as Schedule 1 to this Order and Decision.

19The Tribunal orders that the hearing will commence by video hearing on Monday, April 4, 2022, at 10 a.m. Eleven days have been set aside. The Case Coordinator will advise the Parties of the call-in details for the hearing.

20There will be no further notice.

21This Member is not seized.

“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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Schedule 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: Imperial Oil Limited

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

Subject of appeal: Environmental Penalty Order to pay for nine contraventions of s. 5(1) of O. Reg 530/18 – causing a discharge of more than 225 kilograms of sulphur dioxide

Reference No.: Environmental Penalty Order No. 235

Property Address/Description: 602 Christina Street South

Municipality: City of Sarnia

Upper Tier: County of Lambton

OLT Case No.: 21-015

OLT Case Name: Imperial Oil Limited v. Ontario (Environment, Conservation and Parks)

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

Appellant: Imperial Oil Limited

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

Subject of appeal: Environmental Penalty Order to pay for two contraventions of s. 5(1) of O. Reg 530/18 – causing a discharge of more than 225 kilograms of sulphur dioxide in a 24-hour period from an acid gas combustion equipment

Reference No.: Environmental Penalty Order No. 246

Property Address/Description: 602 Christina Street South

Municipality: City of Sarnia

Upper Tier: County of Lambton

OLT Case No.: 21-033

OLT Case Name: Imperial Oil Limited v. Ontario (Environment, Conservation and Parks)

PROCEDURAL ORDER

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The video hearing will begin on Monday, April 4, 2022 commencing at 10 a.m. The Case Coordinator will advise the parties of the call-in details for the hearing.

3. The parties’ initial estimation for the length of the hearing is 11 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.

4. The parties identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

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. The Parties shall provide each other with disclosure of relevant documents that are not privileged on or before August 20, 2021.

10. 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. The Appellant shall provide its list and expert Curriculum Vitae(s) and qualifications on or before September 30, 2021. The other Parties will provide their lists, expert Curriculum Vitae(s),and qualifications on or before October 20, 2021 in accordance with paragraph 23. 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.

11. Expert witnesses in the same field shall have a meeting on or before March 1, 2022 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 March 21, 2022.

12. 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 paragraphs 14 and 15 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.

13. 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 14 and 15 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 paragraphs 14 and 15 below.

14. On or before January 7, 2022, the Appellant 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 23 below.

15. On or before February 4, 2022, the other 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 23 below.

16. On or before March 17, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. 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 23 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before March 17, 2022.

19. 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 April 1, 2022.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 1, 2022 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.

23. 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 Rule 7.

24. 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

LIST OF PARTIES

1. Imperial Oil Ltd.
2. Director, Ministry of the Environment, Conservation and Parks
3. Aamjiwnaang First Nation
4. Vanessa Gray and Arnold Norman Yellowman

ATTACHMENT 2

ISSUE LIST

1. Was the Refinery’s Sulphur Recovery Unit operating in a normal manner for the purposes of s. 5 of Ontario Regulation 530/18 during the periods of sulphur dioxide discharge that are now subject to Environmental Penalty Orders 235 and 246?
2. Should the Director have exercised his discretion pursuant to s. 7(2) of the Ontario Regulation 222/07 to reduce the administrative monetary penalties set out in Environmental Penalty Orders 235 and 246 because the penalties are, by their magnitude, punitive in nature having regard to all the circumstances?
3. Should contraventions 3 and 4 of Environmental Penalty Order 235 be combined?
4. Do Environmental Penalty Orders 235 and 246 violate s. 11(d) of the Canadian Charter of Rights and Freedoms?

ATTACHMENT 3

PRELIMINARY ORDER OF EVIDENCE

1. Imperial Oil Ltd.
2. Director, Ministry of the Environment, Conservation and Parks
3. Aamjiwnaang First Nation
4. Vanessa Gray and Arnold Norman Yellowman
5. Imperial Oil Ltd. (reply, if any)

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.