Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 13, 2021
CASE NO(S).: 16-109
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant: Corporation of the City of Mississauga Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of appeal: Order to perform various work with respect to waste street sweepings Reference No.: 3506-A8QGC3 Property Address/Description: Cayuga Site, Selkirk Site, and Other Sites Municipality: Various municipalities OLT Lead Case No.: 16-109 OLT Case No.: 16-109 OLT Case Name: Mississauga (City) v. Ontario (Environment, Conservation and Parks)
Heard: July 16, 2021 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Corporation of the City of Mississauga | Harry Dahme, Liane Langstaff, Abby Green (summer student) |
| Director, Ministry of the Environment, Conservation and Parks | Isabelle O’Connor |
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On November 30, 2016, the Director, Ministry of the Environment, Conservation and Parks (“MECP”), issued Director’s Order No. 3506-A8QGC3 (“Director’s Order”) to the City of Mississauga (“City”). The Director’s Order requires the City to undertake steps to disclose materials and investigate, sample, assess, report on, and clean up material swept from the City’s streets from 2004 to 2011 and deposited at the sites identified in the Provincial Officer's Report regarding this matter, dated November 28, 2016 (“sites”). The City appealed the Director’s Order.
2In August 2019, the Parties informed the Tribunal that they had reached a proposed settlement. The proposed settlement is set out in Minutes of Settlement, dated August 7, 2019 (“Minutes of Settlement”) and Terms of Reference, dated August 7, 2019 (“Terms of Reference”). The proposed settlement includes a process for sampling, data collection, assessment, reporting and addressing any contaminants that may be in the street sweepings deposited at the sites. As part of the proposed settlement, the City would undertake the above-noted measures and, on their completion to the satisfaction of the Director, withdraw its appeal. Correspondingly, the Director would agree to having the Director’s Order revoked on the completion of these measures to his satisfaction. On August 30, 2019, the Tribunal determined that the proposed settlement was acceptable and it adjourned the appeal to allow the Parties to undertake the measures. It directed the Parties to provide regular updates on the status of the appeal, which the Parties did.
3On July 5, 2021, the Parties informed the Tribunal that the City had completed the measures set out in the Minutes of Settlement and Terms of Reference and that no further action is required to fulfill the requirements in the Director’s Order. They proposed on consent that the City withdraw its appeal and the Tribunal revoke the Director’s Order.
4On July 16, 2021, the Tribunal held a settlement hearing at which it addressed the completion of the proposed settlement.
ISSUES
5Under Rule 12.1 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”), the issues to be addressed by the Tribunal when considering a proposed settlement are whether all statutory requirements and the public interest are satisfied. Based on these considerations, the Tribunal will determine whether to revoke the Director’s Order and whether to continue with or dismiss the proceeding.
Submissions and Evidence
6In support of the proposed settlement, the Director submitted that the street sweepings were located, sampled and analyzed and that the measures undertaken by the City demonstrate that the street sweepings do not pose an unacceptable risk to human health or the environment. The Director submitted that this satisfies the requirements in the Director’s Order that were made pursuant to s. 18 of the Environmental Protection Act (the “EPA”) on the prevention or reduction of the risk of a discharge of a contaminant into the natural environment and prevention, decrease or elimination of adverse effects. The Director further submitted that the owners of the sites have consented to having the street sweepings remain in place and that the requirements in the Director’s Order made pursuant to s. 43 of the EPA on the removal of waste and restoration of site conditions have been satisfied. The Director submitted that the process has been transparent, the site owners have been properly notified, were provided with the relevant reports, and have consented to leaving the street sweepings in place, and that public health authorities have been kept informed. The Director submitted that the proposed settlement is in the public interest.
7Loralyn Wild, who is a District Manager with the MECP, provided fact evidence in support of the proposed settlement on behalf of the Director. Ms. Wild stated that the City has complied with the applicable EPA requirements as required under the Director’s Order. She stated that the street sweepings have been located, sampled and analyzed and pose no appreciable risk to human health or the environment. She stated that the EPA’s provisions have been complied with and the proposed revocation of the Director’s Order is consistent with s. 18 and s. 43 and the purposes of the EPA.
8The Appellant supports the proposed settlement, withdrawal of the appeal, and revocation of the Director’s Order.
ANALYSIS AND FINDINGS
9Rule 12.1 of the Tribunal’s Rules sets out the Tribunal’s powers and the factors to be addressed when considering a proposed settlement prior to a hearing event. It states:
12.1 The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.
10Based on Rule 12.1, if all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving a proposed settlement, with any necessary amendments. In considering the statutory provisions and the public interest, the Tribunal must determine whether the outcome of the proposed settlement is consistent with the purpose and provisions of the applicable legislation. This informs the Tribunal on whether the instrument or decision in question should be confirmed, altered, or revoked under s. 145.2(1) of the EPA and whether to continue with or dismiss the proceeding.
11The applicable statutory requirements in the present case are found in s. 3, s. 18 and s. 43 of the EPA. Section 3 sets out the Act’s purpose, which is to provide for the protection and conservation of the natural environment. Section 18 addresses the prevention or reduction of the risk of a discharge of a contaminant into the natural environment and the prevention, decrease or elimination of adverse effects. Section 43 addresses the removal of waste and restoration of site conditions.
12Based on Ms. Wild’s uncontradicted evidence, the Tribunal finds that the proposed settlement satisfies all of the applicable statutory requirements in the EPA and is in the public interest. The Tribunal finds that the street sweepings have been located, sampled and analyzed and pose no appreciable risk to human health or the environment. It finds that the measures undertaken by the City are consistent with s. 3 and s. 18 of the EPA in that they provide for the protection and conservation of the natural environment. Based on the results of the assessment of the sites and the consent of the owners of the sites to leave the street sweepings in place, the Tribunal finds that the provisions in s. 43 of the EPA have also been addressed. Based on the evidence of Ms. Wild, the Tribunal finds that the proposed settlement complies with all applicable statutory requirements, is consistent with the purpose and provisions of the EPA, and is in the public interest.
13Based on the proposed settlement, the Tribunal accepts the proposed withdrawal of the appeal. It finds that the Director’s Order should be revoked and the proceeding should be dismissed.
ORDER
14The Tribunal orders that the appeals are allowed, in part, and it revokes the Director’s Order.
15The Tribunal orders that the proceeding is dismissed.
“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.