Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 30, 2023
CASE NO(S).: OLT-23-000103
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Applicant and Appellant: 642762 Ontario Inc. (File No. 007974)
Respondent: Director, Ministry of the Environment, Conservations and Parks
Subject of appeal: Order to perform work to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant
Reference No: 1-139396623
Property Address/Description: 10 Kingsmill Avenue
Municipality/Upper Tier: City of Guelph, County of Wellington
OLT Case No.: OLT-23-000103
OLT Case Name: 642762 Ontario Inc. v. Ontario (Environment, Conservation and Parks)
BEFORE:
Dale chipman MEMBER Monday, the 30th day of October, 2023
THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on April 9, 2024.
“Euken Lui”
EUKEN LUI REGISTRAR (A)
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.
Attachment A
Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 30, 2023
CASE NO(S).: OLT-23-000103
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: 642762 Ontario Inc. (File No. 007974)
Respondent: Director, Ministry of the Environment, Conservations and Parks
Subject of appeal: Order to perform work to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant
Reference No: 1-139396623
Property Address/Description: 10 Kingsmill Avenue
Municipality/Upper Tier: City of Guelph, County of Wellington
OLT Case No.: OLT-23-000103
OLT Case Name: 642762 Ontario Inc. v. Ontario (Environment, Conservation and Parks)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
- The video hearing will begin on Tuesday, April 9, 2024 at 10:00 a.m. through the following video link:
https://meet.goto.com/278736685
Audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389.
Access code: 278-736-685
Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at https://global.gotomeeting.com/install or a web application is available: https://app.gotomeeting.com/home.html
The parties’ initial estimation for the length of the hearing is 9 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
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.
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
Disclosure: The parties shall provide all other parties a copy of every document that is in their possession, control or power relevant to the subject matter of the appeal (except privileged documents) on or before December 11, 2023.
Witness List: 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. This list must be delivered on or before January 30, 2024 and in accordance with paragraph 22 below. 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.
Expert Witness under Summons: 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 12 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 paragraph 12 below.
Witness Statements: On or before February 9, 2024, the parties shall provide copies of witness and expert statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below. Witness statements shall attach a copy of any document that the witness refers to in their witness statement and that the party intends to rely on at the hearing. Expert witness statements shall also include a copy of the expert’s Curriculum Vitae and the Acknowledgement of Expert Duty form signed by the expert.
Participant Statements: On or before February 9, 2024, participants shall provide copies of their written participant statement to the parties and to the OLT case co-ordinator in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Reply Witness Statements: On or before February 26, 2024, the parties shall provide copies of their reply witness statements (if any) to the other parties and the OLT case co-ordinator in accordance with paragraph 22 below.
Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before March 11, 2024 and use best efforts to try to resolve or reduce the issues of the hearing.
Visual Evidence: If the hearing should proceed in-person, on or before March 25, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Agreed Statement of Facts and Issues: On or before March 25, 2024, the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.
Joint Book of Documents or Additional Documents to be Relied on: If the parties are preparing a joint book of documents or have additional documents that they will be relying on at the hearing, the parties shall provide the joint book of document or the additional documents to the other parties and the OLT case co-ordinator on or before March 25, 2024.
Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 25, 2024 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.
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.
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.
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 the Rule 7
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 2
LIST OF PARTIES AND PARTICIPANTS
PARTIES
642762 Ontario Inc.
Willms & Shier Environmental Lawyers LLP 1 Toronto Street, Suite 900 Toronto, ON M5C 2V6 John Georgakopoulos Tel: 416-862-4826 Email: jgeorgakopoulos@willmsshier.com
Joanna Vince Tel: 416-642-4830 Email: jvince@willmsshier.com
Director, Ministry of the Environment, Conservation and Parks (MECP)
Ministry of the Attorney General Legal Services Branch 135 St. Clair Ave. West, 10th Floor Toronto, ON M4V 1P5 Nadine Harris Tel: 416-212-4998 Email: nadine.harris@ontario.ca
The Corporation of the City of Guelph Corporate Services
Legal, Realty and Court Services City Hall, 1 Carden Street Guelph, ON N1H 3A1 Allison Thornton Tel: 519-822-1280 Ext. 2438 Email: allison.thornton@guelph.ca
Electrolux Home Care Products Canada Inc
Weintraub Erskine Huang LLP 365 Bay Street, Suite 501 Toronto, ON M5H 3V1 Barry Weintraub Tel: 416-597-5402 Email: barry.weintraub@wehlitigtation.com
Adrienne Zaya Tel: 416-306-8026 Email: adrienne.zaya@wehlitigation.com
Florence Lane Residents Group Inc.
c/o Matthew Soltys Tel: 519-837-2062 Email: mfsoltys@gmail.com Email: florencelaneresidentsgroup@gmail.com
ATTACHMENT 2
ISSUES LIST
The Appellant’s issues for this appeal are as follows:
Did the Director have jurisdiction to issue the Director's Order?
Was the work required in the Director's Order already completed by 642762 Ontario Inc.?
Is the Director's Order a proper exercise of Director powers?
Should the Tribunal confirm, alter or revoke the Director's Order?
Should the Tribunal order the Director to take action any action with respect to the Director's Order?
ATTACHMENT 3
ORDER OF EVIDENCE
Appellant - 642762 Ontario Inc.
Respondent - Director, Ministry of the Environment, Conservation and Parks
Reply by the Appellant
Added Parties – Electrolux, City of Guelph and Florence Lane Residents Group (order of presentation to be determined closer to the hearing)
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.