Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 08, 2023
CASE NO(S).: OLT-22-004659
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Appellant: Sherwood Forest Investments (Guelph) Ltd.
Appellant: 642762 Ontario Inc.
Instrument Holder: The Corporation of the City of Guelph
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of Appeal: Decision to issue a Certificate of Property Use under section 168.6 of Part XV.1 of the Environmental Protection Act for the intended future mixed commercial, community, residential, institutional and parkland use of the property
Reference No.: 7073-C7NLHC
Property Address/Description: 200 Beverley Street
Municipality/Upper Tier: City of Guelph, County of Wellington
OLT Case No.: OLT-22-004659
OLT Lead Case No.: OLT-22-004659
OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)
Heard: August 31, 2023 by telephone conference call and September 20, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 642762 Ontario Inc. | John Georgakopoulos and Joanna Vince (on August 31, 2023 only) |
| Sherwood Forest Investments (Guelph) Ltd. | Tamara Farber and Vanessa De Sousa (on August 31, 2023 only) |
| Director, Ministry of the Environment, Conservation and Parks | Nadine Harris (on August 31, 2023 only), Madeline Ritchie and Margaret McCloskey (articling student) |
| The Corporation of the City of Guelph | Alison Thornton and Ian White (articling student) |
| Electrolux Home Care Products Canada Inc. | Barry Weintraub |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON AUGUST 31 AND SEPTEMBER 20, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a status update call on August 31, 2023 and a motion hearing on September 20, 2023 relating to the appeals brought by 642762 Ontario Inc. and Sherwood Forest Investments (Guelph) Ltd. (together, “Appellants”) with respect to the issuance of Certificate of Property Use No. 7073-C7NLHC (“CPU”) by the Director (“Director”), Ministry of the Environment, Conservation and Parks. The CPU was issued to the Corporation of the City of Guelph (“City”) in relation to the property located at 200 Beverley Street (“subject property”) in Guelph.
Status Update Call
2At the status update call on August 31, 2023, the Tribunal heard a request from Electrolux Home Care Products Canada Inc. (“Electrolux”) to be added as a Party. Electrolux is the successor in interest to corporations that formerly owned the property located at 490 York Road, which is presently owned by the Appellant, Sherwood Forest Investments (Guelph) Ltd. (“Sherwood”), and part of 10 Kingsmill Avenue, which is presently owned by the Appellant, 642762 Ontario Inc. (“642762 Ontario”). These properties are adjacent to the subject property. Electrolux is a defendant in ongoing civil proceedings commenced by 642762 against the City relating to liability for local soil contamination.
3Electrolux’s request for Party status was opposed by the Director and the City.
4At the status update call on August 31, 2023, the Tribunal granted Electrolux status for the purpose of bringing a motion to become an Added Party and scheduled a video hearing of the motion itself for September 20, 2023.
Motion for Party Status
5Electrolux’s motion for Added Party status was heard by video hearing on September 20, 2023.
6Electrolux argued that given it is the successor in interest to corporations that formerly owned two of the properties that are possibly impacted by the CPU as well as its involvement in associated civil proceedings, it has a direct and genuine interest in the proceeding and should be added as a Party. It submitted that the Tribunal proceeding will address factual questions that are at the heart of the civil proceedings. Electrolux submitted that it will be directly impacted by the Tribunal’s decision on the merits as the Tribunal’s findings may be relevant to the civil proceedings. If granted party status, Electrolux submitted that it would call an environmental consultant as its sole witness at the hearing and it would abide by the existing due dates in the Procedural Order for this proceeding.
7The Director argued that Electrolux has not demonstrated a relevant and sufficient interest in the CPU or that it would fill a gap in the evidence provided by the existing Parties. The Director submitted that Electrolux had opportunities to seek leave to appeal the CPU under the Environmental Bill of Rights, 1993, but it failed to do so. The Director submitted that the addition of Electrolux at the present late stage of the proceeding would prejudice the existing Parties and require an additional day of hearing time. The Director noted that he is not a party to the civil proceedings and that those proceedings do not affect the subject property. The Director also submitted that the focus of the Tribunal proceeding is the protection of the environment and not on historic contamination or liability. The Director submitted that the Tribunal will not need to make a finding on historic contamination from 490 York Road or 10 Kingsmill Avenue or cross-migration in the present proceeding. The Director submitted that Electrolux has no direct interest in the CPU itself or whether the CPU is protective of the environment.
8The City submitted that Electrolux has not demonstrated that it has a proper interest in the CPU. It argued that the question of historic contamination in the present proceeding focuses on the subject property and not on the neighbouring parcels. It submitted that Electrolux has not shown that it would make a useful contribution to the hearing on the merits and that the Tribunal’s findings are distinct and would not impact the civil proceedings.
ANALYSIS AND FINDINGS
9The Tribunal notes that the issue of historic contamination is an issue in the Issues List in the Procedural Order for this proceeding. Issue No. 1 of the Issues List states:
- Taking into account historic and present environmental conditions at, in, on, or under [200 Beverley Street] and any historic contaminant migration from 200 Beverley, is there risk of contaminant migration from [200 Beverley Street] onto neighbouring properties, including [10 Kingsmill Avenue] and [490 York Road], and/or beyond?
10The Tribunal finds that this issue relating to historic contamination may be relevant to the civil proceedings and the outcome of the present proceeding may be relevant to issues that will be addressed in the civil proceedings. Furthermore, the Tribunal finds that Electrolux’s proposed evidence may assist the Tribunal in understanding the historic migration in the area and may be relevant to the present proceeding. On this basis, the Tribunal finds that Electrolux has a genuine interest in the proceeding, may be directly impacted by it, and will assist the Tribunal in making its decision.
11Due to the nature of the present proceeding, being an appeal under s. 41 of the Environmental Bill of Rights, 1993 for which leave was required, the Tribunal finds that Electrolux must shelter under the sole issue identified by the Appellants in the Issues List that relates to its interests, namely Issue No. 1 as set out in paragraph 9 above of this Decision. Electrolux may not raise new issues and cannot maintain the appeals if the Appellants settle or agree to no longer pursue Issue No. 1. The existing Procedural Order will govern this proceeding and new due dates will not be ordered to facilitate Electrolux. The Tribunal further directs Electrolux to refrain from providing evidence that is repetitive or duplicative of that provided by the existing Parties.
ORDER
12The Tribunal orders that Electrolux Home Care Products Canada Inc. is a Party in this proceeding for the purpose of providing evidence and submissions relating to Issue No. 1 of the Issues List contained in the Procedural Order for this proceeding.
13The Tribunal orders that Electrolux may not raise new issues and cannot maintain the appeals if the Appellants settle or agree to no longer pursue Issue No. 1 of the Issues List contained in the Procedural Order for this proceeding.
14The Tribunal further orders that the existing Procedural Order will govern this proceeding and new due dates will not be ordered to facilitate Electrolux.
15The Tribunal further orders that Electrolux is to refrain from providing evidence that is repetitive or duplicative of that provided by the existing Parties.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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.