Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks), 2023 CanLII 19218

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2023

CASE NO(S).: OLT-23-000104

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Sherwood Forest Investments (Guelph) Ltd. (File No. 007977)

Respondent: Director, Ministry of the Environment, Conservations 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

Reference No.: 1-139396577

Property Address/Description: 490 York Road

Municipality/Upper Tier: City of Guelph, County of Wellington

OLT Case No.: OLT-23-000104

OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)

Heard: March 1, 2023 by Telephone Conference Call

APPEARANCES:

Parties	Counsel/Representative*
Director, Ministry of the Environment, Conservation and Parks	Nadine Harris Madeline Ritchie Victoria Kacer (articling student) Aaron Todd* Jennifer Vopalto* Jacqueline Lamport*
Sherwood Forest Investments (Guelph) Ltd.	Tamara Farber Vanessa De Sousa

DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal by Sherwood Forest Investments (Guelph) Ltd. (the “Appellant”) concerning Director’s Order No. 1-139396577 (the “Order”) issued by the Ministry of the Environment, Conservation and Parks (“MECP”) prescribing certain actions 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 located at 490 York Road, in City of Guelph.

2The Order provides for nine (9) action items as follows:

Item No. 1 Compliance Due Date: 12/07/2022 By December 7, 2022, the Orderees shall retain the services of a Qualified Person, satisfactory to the Provincial Officer, to do the work specified in this Order.

Item No. 2 Compliance Due Date: 12/07/2022 By December 7, 2022, the Orderees shall inform the Provincial Officer of the name of the Qualified Person retained as required by Item No. 1 with details as to the qualifications and experience of the Qualified Person retained and confirm that a copy of this Order has been given to the Qualified Person.

Item No. 3 Compliance Due Date: 03/03/2023 By March 3, 2023, the Orderees shall have the Qualified Person retained, pursuant to Item No. 1 and submit to the Director, for acceptance, a Work Plan with timeliness to address Recommendation No. 1.

Item No. 4 Within 30 days of receipt of written notice of acceptance of the Work Plan from the Director, the Orderees shall implement the Work Plan.

Item No. 5 Upon implementation of the Work Plan, the Orderees shall submit to the Provincial Officer a monthly written Progress Report prepared by the Qualified Person documenting the progress of work.

Item No. 6 The Progress Report shall be submitted to the Provincial Officer within 15 days of the end of the calendar month being reported upon.

Item No. 7 Within 60 days of completion of the Work Plan, the Orderees shall submit to the Director a Final Report prepared by the Qualified Person that documents the work completed as required by the accepted Work Plan.

Item No. 8 Compliance Due Date: 03/03/2023 By March 3, 2023, the Orderees shall implement a Groundwater Monitoring Program.

Item No. 9 Compliance Due Date: 03/31/2024 By March 31, 2024, and annually thereafter, the Orderees shall submit to the Director an annual Groundwater Monitoring Report covering the previous year being reported upon.

3The Appellant and MECP agree that Items 1 and 2 of the Order have been completed. The Appellant proposes to bring a written motion to stay Items 3 to 9 of the Order pending the outcome of a hearing on the merits (the “Stay Motion”).

4The Appellant and MECP each confirmed that the following dates have been agreed upon for the exchange and submission of materials with respect to the Stay Motion, in each case, subject to amendment as may be agreed upon by the Appellant and MECP and advised to the Tribunal:

(i) Notice of motion and related motion materials to be filed by the Appellant on or prior to March 31, 2023;

(ii) Responding materials to be filed by the MECP on or prior to April 21, 2023; and,

(iii) Reply materials, if any, to be filed by the Appellant on or prior to April 28, 2023.

5At the CMC, the Appellant requested (i) an interim stay of Items 3 to 7 of the Order pending the outcome of the Stay Motion, as the dates for completion of such items are imminent and will occur prior to the Stay Motion; and (ii) a further CMC at which it proposed to bring a motion for an interim stay of Items 8 and 9 of the Order pending the outcome of the Stay Motion.

LEGISLATION

6The relevant legislation is contained in s. 140(1) and s. 143(1) to (3) of the Environmental Protection Act (“EPA”), which read as follows:

Appeal of order

140 (1) A person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within fifteen days after service upon the person of a copy of the order, require a hearing by the Tribunal.

No automatic stay on appeal

143 (1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than,

(a) an order to pay costs and expenses under section 99.1;

(b) an order to pay the costs of work made under section 150;

(c) an order to pay an environmental penalty; or

(d) an order to pay an administrative penalty.

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.

SUBMISSIONS

7The Appellant submitted that the Tribunal is authorized to grant an interim stay of Items 3 to 7, inclusive, of the Order pursuant to s. 143(2) of the EPA, on the basis that (i) such items are not of the nature set forth in s. 143(2)(a) or (b) of the EPA, and (ii) the grant of an interim stay in these circumstances would not 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 each case contrary to s. 143(3) of the EPA. The MECP concurred with the Appellant’s submissions, adding that although it did have concerns with regard to potential contamination at the site, those concerns did not rise to the thresholds set forth in s. 143(3) of the EPA.

8The MECP further noted that (i) it consented to an interim stay of Item 3 of the Order pending the outcome of the Stay Motion, and (ii) a separate interim stay respecting Items 4 through 7 of the Order was unnecessary as the requirement for completion of such items is only triggered following the completion of Item 3.

9The MECP submitted that the Tribunal does not have the authority to grant a stay of Items 8 or 9 of the Order on the basis that such items relate to a groundwater monitoring program and the Tribunal may not grant a stay of an order to monitor, record and report pursuant to s. 143(2)(a) of the EPA. The Appellant disagrees, and has requested a further CMC at which it will make submissions regarding this matter.

ORDER

10The Tribunal orders that Item 3 of the Order be stayed pending the outcome of the Stay Motion. For greater certainty, to the extent that any of the elements of Item 3 of the Order are incorporated in Item 8 of the Order, such elements are stayed pending the outcome of the Stay Motion, notwithstanding that they may also be incorporated in Item 8 of the Order.

11The Tribunal further orders that the Stay Motion proceed by written motion before the Tribunal, as follows (in each case subject to amendment as may be agreed upon by the Appellant and Ministry of the Environment, Conservation and Parks (“MECP”) and advised to the Tribunal):

(i) Notice of motion and related motion materials to be filed by the Appellant with the Tribunal on or prior to March 31, 2023;

(ii) Responding materials to be filed by the MECP with the Tribunal on or prior to April 21, 2023; and,

(iii) Reply materials, if any, to be filed by the Appellant with the Tribunal on or prior to April 28, 2023.

Questions prior to the Stay Motion may be directed to the Tribunal’s Case Coordinator having carriage of this case.

12The Tribunal orders that a further Case Management Conference (“CMC”) will be held by telephone conference call on March 10, 2023, commencing at 3 p.m. to consider the Appellant’s motion for an interim stay with respect to Items 8 and 9 of the Order (the “Further CMC”).

13Individual(s) are directed to call 416-212-8014 or Toll Free 1-866-500-5845 on the assigned date at the correct time. When prompted, enter the code 3507467 to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.

14The Tribunal orders that all final motion materials (including all responding materials and reply materials, if any) to be considered at the Further CMC, be filed by the Parties no later than March 8, 2023.

15This Member is not seized.

“Jennifer Campbell”

JENNIFER CAMPBELL MEMBER

Ontario Land Tribunal Website: 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.