Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 20, 2022
CASE NO(S).: OLT-21-001994
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. 002478)
Appellant: Andrew Spylo (File No. 002479)
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.: Director’s Order No. 8363-BPMJK6
Property Address/Description: 152/153 Shanley Street
Municipality: City of Kitchener
Upper Tier: Municipality of Waterloo
OLT Case No.: OLT-21-001994
OLT Case Name: Continental Imperial Exploration Ltd. v. Ontario (Environment, Conservation and Parks)
Heard: March 31, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Continental Imperial Exploration Ltd.
Joanna Vince and Giselle Davidian
Andrew Spylo
Director, Ministry of the Environment,
Kathleen Clements and
Conservation and Parks (“MECP”)
Ashley Qian (student-at-law)
Memorandum of oral decision DELIVERED BY WARREN MORRIS AND J. CAMPBELL ON MARCH 31, 2022 AND ORDER OF THE TRIBUNAL
1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal brought by Continental Imperial Exploration Ltd. and Andrew Spylo (collectively, the “Appellants”) of MECP Director’s Order No. 8363-BPMJK6 dated July 21, 2020. The Director’s Order relates to environmental concerns at 152/153 Shanley Street in Kitchener, Ontario.
2There were no new requests for Party or Participant status.
3The Parties provided some background to the appeal, particularly regarding a related appeal of the same Director’s Order that was disposed of by way of motion before Tribunal Member H. Wilkins on January 14, 2022. Apparently, the Appellants were originally self-represented when they made the current appeal in February of 2021. Subsequently, the same Appellants retained counsel who again filed an appeal of the same Director’s Order in June 2021. It was this second appeal made in June 2021 that was dismissed by Tribunal Member Wilkins for lack of jurisdiction.
4The Parties were asked to identify the issues to be adjudicated at a hearing. Both the Appellants and the MECP indicated that it was premature to be identifying issues for a hearing as preliminary matters need to be addressed.
5Counsel for the Appellants stated that as a preliminary matter, it sought a stay of the Director’s Order pending the hearing of the appeal. The Appellants are not currently in compliance with the Director’s Order. The Appellants sought timelines for a stay motion. Further, the Appellants requested that the Tribunal make an order for an interim stay of the MECP Director’s Order pending the determination of their stay motion, given the risk to their clients of being prosecuted for non-compliance with the Director’s Order.
6Counsel for the MECP stated that as a preliminary matter, it sought a motion to have the appeal dismissed for lack of jurisdiction due to time limitations. The MECP was requesting that a date be set for its jurisdiction motion prior to the Appellants’ stay motion since the stay motion would be unnecessary if the MECP motion was successful. The MECP also sought that its jurisdiction motion be heard in person as it believed it was important that the cross-examination of witness affidavits be before the Tribunal, as there are credibility issues that would not be adequately addressed by the written motion format. Further, the MECP believed an in-person (or video conference) motion would be preferrable to the written motion process since objections to questioning would be quickly resolved and the process would be more efficient. The MECP objected to the Tribunal considering the Appellants’ oral motion for an interim stay as the MECP was unprepared to respond to the motion, since no notice or even a mention of a motion for interim relief was ever communicated to the MECP by the Appellants.
7Counsel for the Appellants cited the Tribunal Rules of Practice and Procedure (“Rules”) as support for her preference that the motions be done in writing. The Appellants believe that it would be more efficient if the cross-examination of witnesses were done before a reporting service that could generate a transcript. Counsel for the Appellants also sought to have both the Appellants’ and the MECP’s motions considered concurrently (as opposed to the MECP’s motion to dismiss the appeal being adjudicated first).
8The Parties agreed that the issue for the Tribunal to determine at a jurisdictional motion is whether the Notice of Hearing was properly filed with the MECP and the Tribunal. More specifically, the Tribunal needs to determine when the Director’s Order was served, and what exactly was served on the MECP and the Tribunal.
ANALYSIS AND DECISION
9After brief deliberation, the Tribunal did not believe that this CMC was the proper forum to address the preliminary motions. The Tribunal was not prepared to entertain the oral motion for an interim stay of the MECP Director’s Order. The Tribunal encouraged the Parties to proceed with their respective motions in accordance with the Tribunal Rules, that being by way of Notice of Motion. If the motion was sought to be in person or by video conference, the Parties were instructed to contact the Case Coordinator as set out in Rule 10.2. Otherwise, Rule 10.3 provides that the moving party could request the motion be done in writing. If there was a dispute over whether the motion(s) be completed in writing versus in person or video conference, that decision would be made administratively by the Tribunal’s Duty Vice Chair.
10In order to give the Parties the opportunity to complete their respective motions, the Tribunal stated that it will adjourn the CMC to September 20, 2022 with the expectation that the Parties would provide a procedural order and issues list prior to the CMC.
ORDER
11The Tribunal will not make any orders nor give directions to the Parties regarding their respective motions.
12The Tribunal orders that a revised draft Procedural Order and Issues List be filed by the Parties to the Tribunal prior to September 20, 2022.
13The Tribunal orders that this Case Management Conference will continue by video hearing on Tuesday, September 20, 2022 commencing at 10 a.m.
14Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://meet.goto.com/765631861
Access Code: 765-631-861
15Parties are asked to set up the video hearing application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
16Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
17Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Hearing Office’s Case Coordinator having carriage of this case.
18There will be no further notice.
19These Members are not seized.
“Warren Morris”
warren morris
MEMBER
“J. Campbell”
J. campbell
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.