Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 14, 2022
CASE NO(S).: OLT-21-001044
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Continental Imperial Exploration Ltd. (File No. 001105)
Appellant: Andrew Spylo (File No. 001106)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant in, on or under the site
Reference No.: 8363-BPMJK6
Property Address/Description: 152/153 Shanley Street
Municipality: City of Kitchener
Upper Tier: Municipality of Waterloo
OLT Case No.: OLT-21-001044
OLT Case Name: Continental Imperial Exploration Ltd. v. Ontario (Environment, Conservation and Parks)
Heard: In writing
APPEARANCES:
Parties
Counsel
Continental Imperial Exploration Ltd.
Joanna Vince and Giselle Davidian
and Andrew Spylo
Director, Ministry of the Environment,
Kathleen Clements
Conservation and Parks
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
BACKGROUND
1This Decision arises from a motion initiated by the Tribunal under Rule 10.11 of the Tribunal’s Rules of Practice and Procedure (“Rules”) to determine the Tribunal’s jurisdiction to process an appeal brought under s. 140 of the Environmental Protection Act (“EPA”).
2On July 21, 2020, the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”) issued Order No. 8363-BPMJK6 (“Order”) under s. 18 and s. 196 of the EPA regarding the lands located at 152/153 Shanley Street in Kitchener. Continental Imperial Exploration Ltd. (“CIEL”) and Andrew Spylo are the Orderees (together “Orderees”).
3There is disagreement between the Director and the Orderees regarding when the Order was served on the Orderees. Based on the evidence set out in an affidavit sworn by Warren Karol, dated October 18, 2021, which was filed by the Director, the Director submits that numerous efforts were made to serve the Order on the Orderees. The Director’s attempts to serve the Order include:
On July 23, 2020, Mr. Karol sent an email attaching the Order to Mr. Spylo, but Mr. Spylo did not respond;
On July 23, 2020, Mr. Karol sent a text message attaching the Order to Mr. Spylo, but Mr. Spylo did not respond;
On July 29, 2020, Mr. Karol sent the Order by regular mail to CIEL and Mr. Spylo, but they did not respond;
On July 30, 2020, Mr. Karol left an envelope addressed to Mr. Spylo containing the Order with a tenant of a property owned by Mr. Spylo and directed that it be given to him, but Mr. Spylo did not respond;
On July 30, 2020, Mr. Karol left an envelope addressed to Mr. Spylo containing the Order with the office manager at Mr. Spylo’s place of work (not CIEL) and directed that it be given to him, but Mr. Spylo did not respond;
On July 30, 2020, Mr. Karol faxed the Order to Mr. Spylo at his business fax number, but Mr. Spylo did not respond;
On July 30, 2020, Mr. Karol gave a copy of the Order to Mr. Spylo’s son (Adam Spylo) at CIEL’s corporate address, but Mr. Spylo did not respond;
On August 4, 2020, Mr. Karol couriered the Order to CIEL and Mr. Spylo at CIEL’s corporate address, but it was not successfully delivered; and
On January 28, 2021, Mr. Karol personally served the Order on Mr. Spylo at his seasonal residence.
4The Orderees submit that they did not receive the Order and were not served until January 28, 2021.
5After they were served on January 28, 2021, the Orderees filed Notices of Appeal on February 7, 2021. That same day, they received electronic confirmations from the Tribunal regarding its receipt of the appeals.
6The Orderees submit that on February 11, 2021, they attempted to file amendments to their Notices of Appeal providing additional grounds for appeal; however, they submit that Mr. Spylo made a typographical error when entering the Tribunal’s email address and they was not successfully filed. They submit that subsequent to this, they were led to believe by the Director that the appeals had been refused and that the proceedings were ended.
7On June 25, 2021, the Orderees filed a new appeal of the Order, which is the subject matter of the present proceeding. The new appeal has the same subject matter as the February 7, 2021 Appeals.
8On September 22, 2021, the Tribunal sent correspondence to the Parties acknowledging receipt of the Notice of Appeal on June 25, 2021 and initiating the present motion in writing on the issue of the Tribunal’s jurisdiction to process the appeal.
9By means of the present motion, the Orderees seek an Order acknowledging that their appeals were properly filed on February 7, 2021 and allowing their Notices of Appeal to be amended and replaced with the June 25, 2021 Notice of Appeal. In the alternative, they seek an Order both extending the time for filing and accepting the June 25, 2021 Notice of Appeal.
EVIDENCE AND Submissions
10The Orderees filed an Affidavit sworn by Mr. Spylo, dated October 6, 2021, which reviews the steps that he and CIEL took in filing their appeal materials on February 7, 2021 and the steps he took to amend them. It attaches confirmations received from the Tribunal on February 7, 2021 confirming the Tribunal’s receipt of the February 7, 2021 Appeals. The Orderees submit that the February 7, 2021 Appeals were filed within the time required under the EPA and the Tribunal should confirm that the February 7, 2021 Appeals are valid. They submit that in the present circumstances, given Mr. Spylo’s unsuccessful attempt to file amendments on February 11, 2021 and his belief that the appeals had been refused, the Tribunal should allow the Notices of Appeal to be amended and replaced or, alternatively, to extend the time for filing them under s. 141 of the EPA and accept the June 25, 2021 Notice of Appeal.
11The Director submits that the Tribunal should dismiss the motion on the basis that it does not have authority to process the June 25, 2021 Appeal. The Director submits that the Tribunal’s authority to extend the time for filing an appeal under s. 141 of the EPA arises only in cases where service did not give actual notice of the Order. The Director submits that this is not the case in the present circumstances.
Findings
12The subject matter of the present proceeding before the Tribunal is the appeal filed on June 25, 2021 forming Tribunal Case No. OLT-21-001044. Based on the evidence before the Tribunal, the Orderees were served with the Order on January 28, 2021 or before. Based on this, the Tribunal finds that the June 25, 2021 Appeal was not filed in accordance with the 15-day deadline required under s. 140(1) of the EPA and the statutory requirements for bringing the proceeding have not been met.
13The Tribunal does not have the authority under the EPA to extend the time to serve and file a Notice of Appeal, except under s. 141. Under that section, the Tribunal may extend the time to serve and file a Notice of Appeal where it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision. There is no evidence of such circumstances in the present case. Based on Mr. Spylo’s evidence, he and CIEL had notice of the Order by January 28, 2021.
14Under Rule 15.4(c), the Tribunal may, on its own initiative, and without a hearing event, dismiss a matter where the statutory requirements for bringing the proceeding have not been met. Before dismissing a matter, the Tribunal shall provide notice to the Parties and allow them to make written submissions on the issue. Rule 15.4 states:
15.4 The Tribunal may, on its own initiative and without a hearing event, dismiss a matter by adjudicative order where:
a. the initiating matter is frivolous, vexatious or is commenced in bad faith;
b. the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or
c. some aspect of the statutory requirements for bringing the proceeding has not been met.
Before dismissing a matter, the Tribunal shall provide appropriate notice of the intended dismissal to the party who has initiated the proceeding and any appropriate statutory parties to the proceeding. All parties who receive such notice may make written submissions on the dismissal within the timelines set out in Rule 10.
15In the present case, the Tribunal raised the issue of jurisdiction and its ability to process the appeal, provided notice of the jurisdictional issue to the Parties by means of correspondence, dated September 22, 2021, and provided the Parties an opportunity to make written submissions through the present motion initiated by the Tribunal.
16The Tribunal only has the powers and authority that are granted upon it by statute. If the Tribunal does not have statutory authority, then it is not authorized to process an appeal. Given the Tribunal’s finding that the statutory requirements for bringing the proceeding have not been met, the Tribunal finds that it does not have the statutory authority to process the appeal and the proceeding in Tribunal Case No. OLT-21-001044 should be dismissed.
17The Tribunal notes that the appeals that were sent to the Tribunal on February 7, 2021 were filed and have the same subject matter as the appeal in Tribunal Case No. OLT-21-001044. Those proceedings are distinct from the proceeding presently before the Tribunal. Steps have not yet been taken by the Tribunal in those proceedings for the scheduling of a Case Management Conference (“CMC”) or other procedural steps, but the undertaking of those steps will be forthcoming.
18Issues in the February 7, 2021 Appeal proceedings regarding whether the Orderees were properly served before January 28, 2021, whether the February 7, 2021 Appeals are valid appeals, and whether the February 7, 2021 Appeals may be amended are matters that can be raised in those proceedings, preferably at the first CMC.
19The Tribunal will request the Tribunal Registrar to take steps to advance the Tribunal process regarding the February 7, 2021 Appeal proceedings and to have a CMC promptly scheduled.
ORDER
20The Tribunal orders that the motion brought by CIEL and Andrew Spylo is dismissed and that the proceeding in Tribunal Case No. OLT-21-001044 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.```