Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 14, 2022
CASE NO(S).: OLT-22-003335
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellants: Don McCaig, 1767158 Ontario Inc.
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 associated with the waste in, on, or under the property
Reference No.: Director’s Order No. 1-105666379
Property Address/Description: PART OF ROAD ALLOWANCE BETWEEN LOTS 43 & 44, CONCESSION STR SOUTHWOLD CLOSED BY BY-LAW #129 & 136; PART OF LOTS 42-45 CONCESSION STR SOUTHWOLD DESIGNATED AS PARTS 1 & 2, 11R-2455; SAVE & EXCEPT PART 1, 11R-8600; ST. THOMAS; PIN 35155-0148 (LT)
Municipality: City of St. Thomas
Upper Tier: Elgin County
OLT Case No.: OLT-22-003335
OLT Case Name: McCaig v. Ontario (Environment, Conservation and Parks)
Heard: August 31, 2022 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1767158 Ontario Inc. and Don McCaig | Paula Lombardi |
| Director, Ministry of the Environment, Conservation and Parks | Jon Bradbury |
Memorandum of oral decision DELIVERED BY JENNIFER CAMPBELL ON AUGUST 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 an appeal by 1767158 Ontario Inc. and Don McCaig (collectively, the “Appellants”) concerning Director’s Order No. 1-105666379 (the “Order”) issued by the Ministry of the Environment, Conservation and Parks (the “Respondent”) regarding the deposit and removal of waste at the property located at Part of road allowance between Lots 43 & 44, Concession Str, Southwold closed by By-law Nos. 129 & 136; part of Lots 42-45, Concession Str, Southwold designated as Parts 1 & 2, 11R-2455; Save & except Part 1, 11R-8600; St. Thomas; PIN 35155-0148 (LT).
2The Order sets forth seven (7) action items (“Items”), as follows:
Item No. 1: By August 1, 2022, remove all Waste from the Site, transport the Waste via a Ministry approved waste management system or hauler, and deposit the Waste at a waste disposal site(s) approved to accept the waste.
Item No. 2: By April 19, 2022, submit written confirmation to the Provincial Officer of the name and Environmental Compliance Approval (“ECA”) number or Environmental Activity and Sector Registry (“EASR”) registration number of the hauler(s) used to haul the Waste from the Site.
Item No. 3: Commencing on April 19, 2022, and continuing every seven (7) days thereafter until all Waste is removed from the Site, submit to the Provincial Officer a copy of all receipts from the waste disposal site(s) that state the quantity deposited, the weight, and the type of waste disposed of at the Site.
Item No. 4: By April 8, 2022, cease depositing, causing, permitting, or arranging for the deposit of waste, including demolition waste, brick, corrugated cardboard, concrete, drywall, steel, and wood, at the Site.
Item No. 5: Within thirty (30) days of receipt of a certificate of requirement issued under s. 197(2) of the Environmental Protection Act, completed as described in Schedule “A” to the Order, register the certificate of requirement on title to the Site in the appropriate land registry office.
Item No. 6: Within ten (10) days of registration of the certificate of requirement, submit to the Provincial Officer a copy of the registered certificate and documentation confirming that the registration has been completed.
Item No. 7: Upon service of the Order, any information or documents that are required to be submitted to the Provincial Officer pursuant to the Order shall be submitted to the attention of Provincial Officer Jeff Mills via email to jeff.mills@ontario.ca with a copy to environment.london@ontario.ca, or via mail to the Ministry of the Environment, Conservation and Parks, 733 Exeter Road, London, ON, N6E 1L3.
3At a previous CMC held on July 6, 2022, the Parties had advised that significant progress had been made with respect to a potential settlement, and that of the seven (7) Items set forth in the Order, it was expected that the Parties would agree upon the terms of a stay order with respect to five (5) such Items (the “Stay Order”). Further, the Parties indicated that they expected to settle any remaining issues beyond those to be addressed pursuant to the Stay Order, which would negate the need for a hearing altogether.
4The Parties subsequently jointly filed a draft Stay Order on August 11, 2022, which proposed that (i) Items 1, 2, 3, 5 and 6 set forth in the Order be stayed pending the outcome or final resolution of this Appeal; and (ii) the Order be amended to include the following additional Items:
Item No 8: Upon service of this amended Order, before dealing with the Site in any way, provide a copy of this Order to every person who will acquire an interest in the Site as a result of the dealing.
Item No. 9: Upon service of this amended Order, before dealing with the Site in any way, provide written notice to the Provincial Officer of any person who will acquire an interest in the Site as a result of the dealing. The written notice shall include but is not limited to, the name, contact information and a summary of the nature of the interest they will acquire in the Site as a result of the dealing.
5All capitalized terms used in paragraphs 2 and 4 above and not otherwise defined herein have the meanings ascribed to such terms in the Order.
6The Parties confirmed that they were each in agreement with the terms of the draft Stay Order. Furthermore, the Parties jointly submitted as follows:
- the addition of Items 8 and 9 to the Order would provide adequate notice to any successors in interest of the Site, in lieu of the original Items 5 and 6 of the Order requiring the registration of a certificate of requirement on title and confirmation of such registration to the Provincial Officer;
- based upon preliminary consultancy work, the waste located at the Site consists solely of construction waste, and is principally comprised of asphalt, concrete and drywall; and,
- the Site is located in a rural area with limited access.
7Subsections 143(2) and 143(3) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (the “Act”), provide as follows:
Tribunal may grant stay
(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,
(a) an order to monitor, record and report; or
(b) an order issued under section 168.8, 168.14 or 168.20. 2001, c. 17, s. 2 (20).
When stay may not be granted
(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
8The Parties each agreed that there was no evidence of any waste at the Site, which would result in (a) danger to the health or safety of any person; (b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or (c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life, in accordance with s. 143(3) of the Act. Given the nature of the construction waste in question, and the rural location of the Site, the Tribunal accepts the submissions of the Parties in this regard.
ORDER
9On consent of the Parties to this Appeal, the Tribunal orders that Item Nos. 1, 2, 3, 5 and 6 of the Order are stayed pending the outcome or final resolution of this Appeal.
10On consent of the Parties to this Appeal, the Tribunal orders the Respondent to amend the Order to include the following Item Nos. 8 and 9:
11Item No. 8. Upon service of this amended Order, before dealing with the Site in any way, provide a copy of this Order to every person who will acquire an interest in the Site as a result of the dealing.
12Item No. 9. Upon service of this amended Order, before dealing with the Site in any way, provide written notice to the Provincial Officer or any person who will acquire an interest in the Site as a result of the dealing. The written notice shall include but is not limited to, the name, contact information and a summary of the nature of the interest they will acquire in the Site as a result of the dealing.
13The Tribunal further orders that the Parties advise the Tribunal by October 31, 2022, in the event that a further CMC, in respect of this Appeal, is required.
14There will be no further notice.
“Jennifer Campbell”
JENNIFER 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.