CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-004659

DECISION ISSUE DATE(S):

March 31, 2023

CORRECTION NOTICE ISSUE DATE:

April 28, 2023

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

Correction to: the Appearances List - to reflect the correct name of legal counsel for numbered company – 642762 Ontario Inc.

Originally:

Corrected to:

Parties Counsel

642762 Ontario Inc. John Georgakopoulos and

Joanna Wice

Parties Counsel

642762 Ontario Inc. John Georgakopoulos and

Joanna Vince

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

March 31, 2023

CASE NO(S).:

OLT-22-004659

PROCEEDING COMMENCED UNDER subsection 41 of the Environmental Bill of Rights, 1993, R.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:

February 27 and March 6, 2023 by video hearing

APPEARANCES:

Parties

Counsel

642762 Ontario Inc.

John Georgakopoulos and Joanna Wice

Sherwood Forest Investments (Guelph) Inc.

Tamara Farber and Vanessa De Sousa

Director, Ministry of the Environment, Conservation and Parks

Nadine Harris, Madeline Ritchie, and Victoria Kacer (articling student)

The Corporation of the City of Guelph

Alison Thornton

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON FEBRUARY 27 AND MARCH 6, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal held a Case Management Conference (“CMC”) on February 27 and March 6, 2023 regarding 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.

2At the CMC, the Tribunal addressed the preparation of a draft Procedural Order and Issues List, the identification of opportunities for settlement discussions, and the scheduling of a hearing. There were no requests for Party or Participant status.

3Prior to the CMC on February 27, 2023, the Parties filed a preliminary draft Procedural Order and Issues List; however, the Parties were unable to agree on the wording of several issues or on the length of time needed for the hearing.

4At the February 27, 2023 CMC, the Tribunal heard submissions on proposed wording of the issues and it provided comments. It asked the Parties to engage in further discussions in the hope of them reaching agreement. The Tribunal reconvened the CMC on March 6, 2023 at which the Parties reported that agreement had been reached on the wording of all of the issues except one. The disagreement was concerning the proposed wording of Issue No. 2 on whether there is a risk of an adverse effect at the Appellants’ properties or elsewhere resulting from the migration of contamination from the subject property. The Director and the City wished to insert language regarding the question of whether any such adverse effect is identified in the associated Risk Assessment. Noting that the threshold for including an issue on an Issues List is low, the Tribunal found that the proposed language elaborates on a relevant issue and the language proposed by the Director and the City should be included.

5At the CMC on February 27 and on March 6, 2023, all of the Parties expressed an interest in pursuing settlement discussions, including the possibility of Tribunal-assisted mediation. The Director stated that the utility of mediation will be determined once the Parties have completed disclosure. The Tribunal very strongly encourages the Parties to pursue settlement discussions and, should the Parties agree, request Tribunal-assisted mediation by sending a written request to the Tribunal’s case coordinator.

6At the March 6, 2023 CMC, the Parties identified the types of witnesses that they each intend to call and provided estimates regarding the amount of time needed for each witness. Based on these submissions, the Tribunal scheduled a 12-day hearing to commence in December 2023.

7The Tribunal directed that the hearing shall be held by video hearing commencing on

Monday, December 4, 2023 at 10 a.m.

https://meet.goto.com/278736685 Access code: 278-736-685

8Parties 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

9Persons 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.

10Parties and Participants 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.

11Individuals 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 Tribunal’s Case Coordinator having carriage of this case.

ORDER

12The Tribunal approves the Procedural Order and Issues List attached as Attachment A to this Order and Decision.

13This Member is not seized.

14There will be no further notice.

“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.

ATTACHMENT A

OLT Case No.: 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 Number:

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)

1. 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

2. The hearing will begin on Monday, December 4, 2023 at 10 a.m. by video hearing.

3. The parties’ initial estimation for the length of the hearing is 12 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

7. 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.

8. 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

9. 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 90 days before the start of the hearing.

10. 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 70 days before the start of hearing 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.

11. 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.

12. Witness Statements: On or before 60 days prior to the start of the hearing, 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.

13. Participant Statements: On or before at least 60 days before the start of the hearing, 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.

14. Reply Witness Statements: On or before at least 45 days before the start of the hearing, 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.

15. Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before at least 30 days before the start of the hearing and use best efforts to try to resolve or reduce the issues for the hearing.

16. Visual Evidence: If the hearing should proceed in-person, on or before at least 15 days before the start of the hearing, 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.

17. Agreed Statement of Facts and Issues: On or before at least 15 days before the start of the hearing, the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.

18. 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 at least 15 days before the start of the hearing.

19. Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before at least 15 days before the start of the hearing 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.

20. 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.

21. 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.

22. 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.

23. No adjournments or delays will be granted before or during the hearing except by motion to the Tribunal. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized. So orders the Tribunal.

ATTACHMENT 1 PARTIES & PARTICIPANTS

Parties

1. 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

2. Sherwood Forest Investments (Guelph) Ltd.

Miller Thomson LLP Barristers and Solicitors Scotia Plaza

40 King Street West, Suite 5800

P.O. Box 1011

Toronto, ON M5H 3S1

Tamara Farber

Tel: 416-595-8520

Email: tfarber@millerthomson.com

Vanessa De Sousa

Tel: 416-595-2997

Email: vdesousa@millerthomson.com

3. 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: 647-688-8724

Email: nadine.harris@ontario.ca

Madeline Ritchie

Tel: 647-649-0904

Email: madeline.ritchie@ontario.ca

4. 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: 519-822-1260 Ext. 2438

Email: allison.thornton@guelph.ca

ATTACHMENT 2 ISSUES LIST

The issues for this appeal of the CPU are as follows:

1. Taking into account historic and present environmental conditions at, in, on, or under 200 Beverley Street, Guelph, Ontario (the “Guelph Property”) and any historic contaminant migration from 200 Beverley, is there risk of contaminant migration from the Guelph Property onto neighbouring properties, including 10 Kingsmill Avenue, Guelph, Ontario (“10 Kingsmill”) and 490 York Rd., Guelph, Ontario (“490 York”), and/or beyond?

2. Is there risk of an adverse effect at the offsite properties located at 10 Kingsmill, 490 York, or elsewhere, resulting from the migration of contamination from the Guelph Property? Was the adverse effect identified in the Risk Assessment accepted by the MECP?

3. Do the terms and conditions of the CPU provide sufficient safeguards to prevent, eliminate or ameliorate any potential adverse effect associated with the risk of contamination migrating offsite from the Guelph Property?

4. What, if any, terms and conditions should be added or altered in the CPU, to address the potential for adverse effects that have or may arise from the migration of contamination from the Guelph Property to neighbouring properties, including 10 Kingsmill and 490 York?

5. Should the Tribunal order that the CPU be altered?

6. Should the Tribunal order that the CPU be revoked?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Appellant – 642762 Ontario Inc.

2. Appellant – Sherwood Forest Investments (Guelph) Ltd.

3. Director, Ministry of the Environment, Conservation and Parks

4. The Corporation of the City of Guelph

5. Reply by the Appellants

Document #: 2313038