Poulin v. Ontario (MECP), 2023 CanLII 26260

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023

CASE NO(S).: OLT-22-004473

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

Appellant: 2057183 Ontario Limited

Appellant: Harry Westendorp

Appellant: Pamela Poulin

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject: Order of the Director

Description: Various works ordered including not to burn any waste wood materials at the site, the remove of all waste materials, and the installation of two monitoring wells in two different areas of the Site

Reference Number: 1-131767953

Property Address: 7811 County Road 6

Municipality/Upper Tier: Elizabethtown-Kitley, Leeds and Grenville

OLT Case No.: OLT-22-004473

OLT Lead Case No.: OLT-22-004473

OLT Case Name: Poulin v. Ontario (MECP)

Heard: March 7, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

2057183 Ontario Limited

J. Douglas Grenkie

Harry Westendorp and Pamela Poulin

Director, Ministry of the Environment, Isabelle O’Connor and

Conservation and Parks Victoria Kacer (student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON MARCH 7, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On October 7, 2022, Pamela Poulin, Harold Westendorp, and 2057183 Ontario Limited (“Appellants”) filed an appeal of Director’s Order No. 1-131767953 (“Director’s Order”) made on September 27, 2022 by Trevor Dagilis, Ministry of the Environment, Conservation and Parks (“MECP”) under s. 157.3 of the Environmental Protection Act¹ (“EPA”).

2The Director’s Order sets out 11 items requiring the Appellants to perform certain work and/or refrain from engaging in certain activities at 7811 County Road 6, in Elizabethtown-Kitley (“subject property”/”site”), as follows:

Item No. 1 Compliance Due Date: 09/27/2022

Starting on the day this Order is served, you are ordered not to burn, allow to be burned or cause to be burned any materials at the Site. This Order does not prohibit the burning of Natural wood materials at the Site so long as it is conducted inside of a dwelling or auxiliary building for the purposes of comfort heating.

Item No. 2 Compliance Due Date: 10/31/2022

By October 31, 2022 you are ordered to remove from the Site, through the use of a Ministry Approved or Registered waste hauler, all of the wood materials in Pile #1 as identified in the attached Area Map (Appendix 1). All of this Wood Material shall be brought to and deposited at a Ministry Approved Waste Disposal Site or a Ministry Approval Waste Transfer Station. Weight slips shall be obtained from the receiving site for each load of waste. Any wood material found in Pile #1 that are identified as Natural Wood may remain on the Site.

Item No. 3 Compliance Due Date: 11/04/2022

By November 4, 2022, you are ordered to submit copies of all weight slips received from the disposal of all waste materials in Pile #1 to the undersigned Director. These shall be submitted electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 4 Compliance Due Date: 09/30/2022

By September 30, 2022 you are ordered to have a Qualified Person complete the soils testing and full delineation of the area for Petroleum Hydrocarbons in the area where CM3 Environmental found "Heavy Weight Lube Oil" in its soil samples from June 2022. This area is further defined in the attached Area map (Appendix 1) as "Area #1".

Item No. 5 Compliance Due Date: 10/14/2022

By October 14, 2022 you are ordered to submit the sample results of the testing and delineation required by Work Item #4 and to submit the interpretation of those results completed by the Qualified Person electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 6 Compliance Due Date: 10/18/2022

By October 18, 2022 you are required to retain the services of a licenced well installer to install 2 monitoring wells at the Site. One monitoring well shall be in the area identified on the Area map (Provincial Officer's Order Appendix 1) as "Area #1". One monitoring well shall be in the area identified on the Area map (Provincial Officer's Order Appendix 2) as Area #2.

Item No. 7 Compliance Due Date: 11/08/2022

By November 8, 2022 you are ordered to have the retained licenced well installer, install a monitoring well in Area #1 and in Area #2 as identified on the attached Area maps (Appendix 1 and Appendix #2). The exact locations within "Area #1" and Area #2 as well as the depth of the wells shall be determined by the Qualified Person that was retained to complete all sampling on the Site.

Item No. 8 Compliance Due Date: 11/22/2022

By November 22, 2022 you are ordered to have the Qualified Person complete sampling of the installed monitoring wells. Sampling shall include samples taken for Metals; BTEX; PHC fractions F1 through F4 and any other parameters as determined by the Qualified Person.

Item No. 9 Compliance Due Date: 12/14/2022

By December 14, 2022, you are ordered to submit the results from the sampling events of monitoring wells #1 and #2, as well as interpretation of those results as provided by the Qualified Person that completed the sampling. The submission shall be done electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 10 Compliance Due Date: 10/31/2022

By October 31, 2022, you are ordered to have removed from the site all waste including dimensional lumber, press board, particle board, plywood and any other manufactured wood products that are located in the pile identified as Pile #2 in the attached area map (Appendix #1). These materials are to be removed from the Site with the services of a Ministry Approved or Ministry Registered Waste Hauler. All of the wood waste shall be brought to and deposited at a Ministry approved waste disposal site or a Ministry approved waste transfer station. All Natural Wood (as defined in the Order) found in this pile shall be moved to a different location to allow for future soil sampling in the area directly underneath the current pile location.

Item No. 11 Compliance Due Date: 11/04/2022

By November 4, 2022, you are ordered to submit electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca , or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6 all weight tickets form the Ministry approved waste disposal or waste transfer site where materials from Pile #2 were disposed of. The tickets shall show the date of disposal, type of waste disposed of, and the amount of waste from each load delivered.

3The Appellants brought the present Motion, seeking a stay of all 11 items in the Director’s Order pending the disposition of the appeal. They take the position that there is no need for any of the items in the Director’s Order which they consider to be overly restrictive and unwarranted. It was submitted that the requested stay poses no risk of discharge of any contaminants to the natural environment and no risk whatsoever to any person, property, or the environment. It was further submitted that, in the absence of a stay, irreparable harm will result not only to the Appellant but to all farmers in Ontario, who could ultimately be forced to undertake examinations and assessments of their properties at the behest of the MECP, without any evidence of contamination or risk thereof on their properties. Finally, it was argued that the balance of convenience favours the granting of a stay, as prohibiting the burning of anything outside on a farm in the absence of any evidence of contamination or risk thereof is unduly restrictive.

4The Respondent Director opposes the motion, taking the position that:

a) the Tribunal is prevented from granting a stay of items 6-9 of the Director’s Order by operation of statute; and,

b) the remainder of the items in the Director’s Order ought not to be stayed, as either: there is a risk of impairment to the natural environment or, the Appellant has not met the three-part test for interlocutory relief, as set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC)(“RJR-MacDonald”).

5The following materials were before the Tribunal for consideration:

• Appellant’s Notice of Motion, dated December 5, 2022;

• Affidavit of Harold Westendorp, affirmed December 5, 2022;

• Affidavit of Bruce Cochrane, affirmed December 5, 2022;

• Phase Two Environmental Site Assessment Drum Area by Bruce Cochrane (CM3 Environmental), dated October 7, 2022

• Respondent Director’s Book of Affidavits, including:

o Affidavit of Trevor Dagilis, affirmed December 19, 2022

o Affidavit of Chris Raffael, affirmed December 20, 2022;

• Reply Affidavit of Bruce Cochrane, affirmed January 5, 2023;

• Appellant’s Factum, dated February 3, 2023;

• Respondent Director’s Factum, dated February 16, 2023; and,

• Respondent Director’s Book of Authorities, dated February 16, 2023

ISSUE, LEGISLATION AND TEST TO BE MET

6The only issue is whether a stay of the Director’s Order, pending the disposition of the appeal, should be granted. To decide upon that issue, the Tribunal first looks to s. 143(2) and 143(3) of the EPA to determine if it has the jurisdiction to make such an order. The following are the relevant provisions of the EPA:

Tribunal may grant stay

143 (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.

When stay may not be granted

143 (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.

7The onus is on the party seeking to rely upon the foregoing (in this instance, the Respondent Director) to establish that the Tribunal may not grant a stay under s. 143(2) and/or s. 143(3).

8In the event the Tribunal is not precluded from granting by operation of statute, it then proceeds to consider the following three-part test in RJR-MacDonald:

a) whether there is a serious issue to be decided;

b) whether the Appellants will suffer irreparable harm if the stay is not granted; and

c) whether the balance of convenience, taking into account the public interest, favours refusal of the stay.

9The onus is on the Appellants to demonstrate that their circumstances meet all three parts of the test in order for a stay to be granted.

DECISION

10The Motion for a stay of the Director’s Order is dismissed in its entirety. While the Tribunal is not persuaded that it lacks the jurisdiction to stay any items therein by operation of statute, the Appellants have nevertheless failed to meet their onus to demonstrate that they satisfy the three-part test for interlocutory relief, as set out in RJR-MacDonald.

BACKGROUND

11There is a relatively lengthy history to this matter and, for context, the Tribunal has summarized what it considers to be the pertinent parts thereof below. The site, owned by the Appellant 2057183 Ontario Limited, is roughly a 320-acre farm located in a rural area. The Appellants, Pamela Poulin and Harold Westendorp, reside in the house located thereon. Since approximately 2017, the MECP has been concerned about a large amount of what it considers waste materials stored there illegally and improperly, given that the subject property is not licenced under the EPA to receive, process or deposit waste. The materials of concern include, but are not limited to: wood, scrap metal, asphalt, concrete, old vehicles and liquids stored in barrels.

12On May 9, 2019, Trevor Dagilis issued Director’s Order No. 5200-BB2KYP-1 (“Order No. 5200”) under s. 157.3(5) of the EPA in relation to the subject property requiring the Appellants, inter alia, to: provide written confirmation that all liquid industrial and hazardous wastes had been removed from the site by an MECP approved waste hauler; retain the services of a qualified person (“QP”) to prepare and implement a Phase 2 Environmental Site Assessment Action Plan (“Action Plan”) and Final Report; and to complete all required work identified in the Action Plan.

13On appeal², the Environmental Review Tribunal (“ERT”) upheld Order No. 5200 finding, inter alia, the quantity and types of materials stored at the site exceeded what is normally present at a farm property and there was a credible risk of contamination to underlying soil and groundwater from the range and bulk of materials stored on the farm property in the open air. As such, the Appellants were required to conduct “a Phase 2 investigation to identify the presence and extent of soil and groundwater contamination in the two areas where material has been and still is stored at the site”.

14In accordance with the ERT’s ruling, the Appellant 2057183 Ontario Limited, hired a QP (Bruce Cochrane, CM3 Environmental). On August 4, 2021, Mr. Cochrane submitted an Action Plan to the Director, which was reviewed by MECP hydrogeologist Thomas Guo who, as part of his review conducted a site visit on September 24, 2021, and thereafter advised that the QP should submit a revised Action Plan to the MECP for review. Mr. Guo determined that the Action Plan, as submitted, was incomplete given a lack of investigation into groundwater impacts and recommended two monitoring wells be installed for this purpose. Based on the foregoing, Provincial Offences Officer Chris Raffael informed the QP that the Action Plan could not be accepted without the installation of at least two groundwater monitoring wells, noting that more wells might be required based upon soil sampling results.

15No wells were installed and, in communications between Mr. Cochrane and Officer Raffael, Mr. Cochrane indicated he was of the view that there was no requirement for the MECP to review and/or accept the Action Plan. He later submitted a Phase 2 Environmental Site Assessment for the subject property on October 29, 2021, which was again reviewed by Mr. Guo, who considered it to be incomplete and again recommended monitoring wells be installed and a revised plan be submitted for review. In further communications with the QP throughout 2021 and 2022, the MECP has consistently maintained the position that wells need to be installed and groundwater monitoring needs to be undertaken.

16During the same period that the appeal of Order No. 5200 was before the ERT, Harold Westendorp and 2057183 Ontario Ltd. were charged and prosecuted under the EPA for offences relating to the depositing of wastes at the site. Although sentencing is pending, on November 25, 2021, Justice of the Peace (“JP”) Seymour of the Ontario Court of Justice found Mr. Westendorp and 2057183 Ontario Ltd. guilty of:

deposit of the following wastes at 7811 County Road 6: steel in the scrap metal pile, the wood pile, the stacked lumber, the barrel of oil, the pile of gravel and mixed debris and the yellow bags and exposed tiles located under the orange tarp.

17With respect to the wood pile and stacked lumber noted above, JP Seymour rejected arguments put forward by the defendants that such material should not be categorized as waste because it falls under specific exemptions for either wood waste or reuse, as set out in EPA Regulation 347.

18Officer Raffael conducted an inspection of the site on July 7, 2022, during which he took samples from two boards in a pile of dimensional lumber to determine if there were any chemicals of concern in or on same. Sample results indicated that both dimensional boards were pressure treated, both had a paint coating and one of those coatings contained lead paint. In subsequent communications with Mr. Cochrane, Mr. Raffael was made aware that it was the intention of the Appellants to shred and use for landscaping, or alternatively burn, some of the wood materials stored at the site.

19Provincial Officer’s Order No. 1-129705576 (“POO”) containing the 11 items noted at paragraph 2 (above) was issued by Officer Raffael on September 9, 2022. Following a request for review by the Appellants, Director Dagilis issued the impugned Director’s Order on September 27, 2022, which confirmed the POO and amended some of the compliance dates therein.

Submissions of the Appellants

20The Appellants take the position that all 11 items in the Director’s Order are unnecessary and should be stayed pending the disposition of the appeal. They rely, primarily, upon the evidence of Mr. Cochrane who, at paragraphs 23-25 of his Affidavit, opines:

In my expert opinion there is no danger to the health and safety of any person with respect to the current status of the property at 7811 County Road 6.

In my expert opinion there is no impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it.

In my expert opinion the status quo of the property at 7811 County Road 6 will not cause any injury or damage or serious risk of injury or damage to any plant or animal life and or result in a drinking water health hazard in the case of an order under the Clean Water Act 2006.

21It was noted that the Appellants and the QP disagree with the finding by JP Seymour that Regulation 347 of the EPA does not apply to exempt some of the wood materials at the site from being categorized as waste. Counsel for the Appellants noted that the QP is of the view that the materials stored on the subject property contain good wood products that can be repurposed, sold, or used to construct a building. Moreover, it was submitted that Mr. Westendorp and 2057183 Ontario Limited have the right to appeal the Court’s decision once the proceedings have concluded and, as such, JP Seymour’s finding ought not to be considered determinative in any way in this proceeding and, more specifically, in the context of this Motion.

22With respect to the requirements to install wells and conduct groundwater monitoring, it was noted that the QP’s opinions are directly at odds with the opinion of the MECP hydrogeologist and the previous finding of the ERT that there is a risk of groundwater contamination on the site. Mr. Cochrane’s evidence is that he sampled and tested the dimensional lumber at the site on June 13, 2022 and results showed the wood was not pressure treated. He also sampled soil from the area in which the dimensional lumber was stored near the liquid in barrels and found no evidence of impact from pressure treated wood. Although he acknowledged that a small amount of soil from the area where the liquid in barrels was stored was contaminated with petroleum hydrocarbon (“PHC”), Mr. Cochrane indicated that when he identified the PHC impacted soil, the Appellant company promptly reacted and removed the soil in the Fall of 2022. As noted in paragraph 20 of his Affidavit, he did not recommend installation of monitoring wells because of the unlikely presence of PHC impacts in groundwater and the cost for the work.

23It was submitted, with respect to items 6-9 of the Director’s Order, that s. 143(2)(a) is inapplicable and the Tribunal is not precluded from ordering a stay, because these items do not constitute an order to “monitor, record and report” but rather, to simply “study and report”. It was submitted that these items in the impugned Director’s order are akin to those which were at issue in Currie v. Ontario (Director, Ministry of the Environment), 2010 CarswellOnt 8177 (“Currie”), where the ERT granted a stay of similar work items pertaining to groundwater, finding that they did not fall under s. 143(2)(a) because they amounted to an order to “study and report”. This is because the wording and context of that order suggested that the real nature of the requirements at issue were to investigate the “state of affairs”, as opposed to tracking or continually assessing the extent of the migration or the contamination.

24With respect to the three-part test for interlocutory relief, it was submitted that there is no need for groundwater monitoring wells or any further work/testing over and above what has already been completed, as the QP has confirmed there is no evidence whatsoever of contamination (or risk thereof) at the site. As such, it was argued that refusal of a stay would result in irreparable harm to the Appellants and all area farmers, because requiring such work to be done would essentially empower the MECP, at any time and without any evidence of negative results, to force farmers into completing assessments and other work on their properties. It was further submitted that the question of “whether the MECP should have the ultimate say” is a serious issue to be determined at a hearing.

25On the issue of balance of convenience, counsel for the Appellants acknowledged the MECP’s public interest mandate as being a significant factor to be considered at this stage of the test. However, it was submitted, based upon the opinion and conclusions of the QP who tested the materials at the site, there is no reason to believe granting a stay would result in any negative effects or be contrary to the public interest in any way. Moreover, it was argued that prohibiting the burning of any materials on a large farm property is unduly restrictive and, based on all the foregoing, even when one considers the public interest, the balance of convenience favours the granting of a stay of all 11 items in the Director’s Order.

Submissions of the Director

26The Tribunal was reminded to keep in mind the history and context of the matter before it including, but not limited to, the fact that the subject property is not a licensed waste disposal site and, that in 2021, the ERT found the amount of materials stored at the site exceeds what would normally be found at a farm and that there was a credible risk of contamination of soil and groundwater. The Tribunal was also referred to the finding of fact and law made by JP Seymour in November of 2021, that all of the wood materials at the site are waste and are not exempt as wood waste or for reuse under EPA Regulations. Against this backdrop, the Tribunal was urged to dismiss the Appellants’ request for relief in its entirety.

27It was submitted that the Tribunal lacks the jurisdiction to grant a stay of items 6-9 in the Director’s Order because, taken together, these constitute an order to monitor, record and report as set out in s. 143(2)(a). It was noted that Order No. 5200, which was upheld by the ERT on appeal, sought to address potential contamination of soil and groundwater from the storage of waste materials at the site and, with respect to the Director’s Order presently under appeal. The Respondent Director submitted that the requirement to install wells for the purpose of monitoring for contamination of groundwater from materials stored on site flows from the broader monitoring program initially envisaged to take place as part of the preparation of the Phase 2 ESA required under the First Director’s Order and the results of the monitoring are to be recorded and reported to the Director.

28While the Director acknowledged that PHC contaminated soil had been removed from the site, it was noted that no testing of the groundwater has occurred and, despite the ERT’s previous finding of a credible risk of contamination to both the soil and groundwater, the Appellants have, to date, resisted the installation of monitoring wells. Exhibit G to the Affidavit of Chris Raffael is a Memorandum from MECP hydrogeologist Mr. Guo, following his review of the Phase 2 ESA submitted by Mr. Cochrane. It is noted therein that,

Shallow bedrock at this site represents a sensitive hydrogeological setting. It is my opinion that the groundwater may have been contaminated by the presence of waste materials. Although soil sampling completed by CM3 did not identify impacts, I am concerned that contaminants may have migrated into the bedrock in areas with thin/no soil in areas not assessed by CM3. As such, it is my opinion that at least two monitoring wells should be installed on each of the APEC [Area of Potential Environmental Concern] Areas A and B to determine if the shallow groundwater in the bedrock formation has been impacted. Shallow groundwater from these monitoring wells should be sampled for the full list of COCs [Chemicals of Concern] (list).

29Despite the view of the Appellants that groundwater monitoring is unnecessary, the Director’s position is that a complete environmental site assessment includes groundwater monitoring and, based upon the recommendations of Mr. Guo and the previous decision and order of the ERT, the only way to determine whether liquid wastes and/or any other wastes stored at the site have resulted in groundwater contamination is by installing wells, monitoring and recording of the presence or discharge of contaminants and reporting monitoring results to the Respondent Director.

30With respect to soil testing, although the Respondent Director noted that some soil testing has been conducted, substantially satisfying the work required in items 4 and 5, it was submitted that those items should not be stayed. This is because there were errors in the initial soil testing conducted as the wrong area of the site was sampled and more testing is required to ensure no further contamination has resulted from the continued storage of wastes at the site.

31With respect to Item 1, which prohibits the burning of any materials at the site, the Respondent Director takes the position that s. 143(3)(b) operates to prevent the Tribunal from granting a stay, as burning materials without knowing what coatings or treatments are in and/or on those materials poses a serious risk of impairment to the quality of the natural environment through the release of contaminants into the air. The Tribunal’s attention was drawn to the Affidavit of Officer Raffael, which indicates that during his inspection of the subject property on July 7, 2022, he observed a large pile of dimensional lumber, some of which had visible paint and/or stain on it, and laboratory results from that pile revealed that the boards sampled were pressure treated and one of the coatings contained lead paint.

32Officer Raffael’s evidence is that, due to exposure to the elements over time and rot through age, discolouration of wood materials stored at the site has occurred, making it impossible to visually tell if a single piece of dimensional lumber is pressure treated. Since it would be overly burdensome to test every board, he is of the opinion the burning of wood should be prohibited until the dimensional wood products have been removed from the site, so as to ensure any potentially harmful chemicals impregnated into the wood and/or applied as a coating thereon are not released into the environment.

33It was submitted that even if the Tribunal finds it is not precluded from ordering a stay of items 1 and 6-9 by operation of statute, a stay should not be granted because the Appellants have failed to discharge their onus to demonstrate that they meet the three-part test for interlocutory relief. This is because the materials and arguments put before the Tribunal in support of the present Motion fail to raise a serious issue for a hearing; provide no evidence whatsoever that harm of any sort would result to the Appellants if a stay is not granted (despite the requirement to establish harm of an irreparable nature); and fail to provide any evidence that the balance of convenience favours the granting of a stay.

34With respect to the test in RJR-MacDonald specifically, counsel for the Respondent Director submitted that the Appellants have not raised a serious issue but, rather, are attempting to relitigate previous findings of both the ERT and the Ontario Court of Justice and are resisting compliance with the law, as the requirements of the impugned Director’s Order deal with matters previously determined in the context of those proceedings.

35With reference to the case of Baker v. Director (Ministry of the Environment), 2013 CarswellOnt 6508 (“Baker”), it was noted that unsubstantiated claims of a risk of harm are insufficient to meet the burden to prove, on a balance of probabilities, that irreparable harm will occur if a stay is not granted. Counsel for the Director noted that the Appellants did not put any evidence before the Tribunal to establish that complying with the items therein would result in harm of any kind, but rather made vague and unsubstantiated claims in this regard. Given the lack of evidence of irreparable harm and the public interest mandate of the MECP, it was submitted that the balance of convenience favours the Respondent Director and the Tribunal should dismiss the present Motion in its entirety.

ANALYSIS AND FINDINGS

Is the Tribunal precluded from ordering a stay by operation of statute?

36As previously mentioned, it is the Respondent Director who bears the onus of demonstrating that the Tribunal is precluded from ordering a stay by operation of statute. With respect to items 6-9, the Tribunal was not persuaded that the items constitute an order to monitor, record and report, as set out in s. 143(2)(a). In so finding, the Tribunal took guidance from Currie (supra), wherein it was found that s. 143(2)(a) did not apply where the purpose of the items at issue was to investigate the state of affairs, or to “study and report”, as distinct from an order to “monitor, record and report”, which would involve a continual tracking or assessment of the extent of migration.

37It would appear, from the analysis in Currie, that an order to “monitor, record and report” relates to a situation where it is already known that contamination has, in fact, occurred and the purpose of the work ordered is to evaluate the scope of such contamination. In this instance, it is not yet known whether the groundwater at the site is, in fact, contaminated. The intent of items 6-9 appears to be to investigate the previously identified risk so as to confirm whether there has, in fact, been any groundwater contamination from the materials stored at the site. Based on the foregoing, the Tribunal is of the view that items 6-9 amount to an order to study and report as distinct from the situation contemplated under s. 143(2)(a).

38With respect to item 1, although the Respondent Director argued the granting of a stay is precluded under 143(3)(b), the Tribunal was not persuaded that there is evidence of impairment or a serious risk of impairment to the quality of the natural environment for any use that can be made of it, as required under that subsection. Specifically, the Respondent Director failed to provide specific evidence of impairment or evidence on the degree of risk of impairment that could be caused by the burning of materials at the site. The Tribunal notes that where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation; however, as the Tribunal was not provided with specific evidence on this Motion that there is a threat of serious irreversible damage by the burning of the materials in question, it is accordingly unable to find that the Respondent Director has discharged its evidentiary burden in this regard.

RJR-MacDonald – the three-part test

39Having found that a stay is not precluded by operation of statute, the Tribunal turns its mind to the three-part test for interlocutory relief, as set out in RJR-MacDonald and finds the Appellants have failed to meet their onus to establish that they satisfy same.

40At paragraphs 54-55 of RJR-MacDonald, the Court notes that there are no specific requirements which must be met to satisfy the first part of the test on whether there is a serious issue to be decided; that the threshold is low; and, if the application is neither vexatious nor frivolous, the trier of fact should move on to consider the balance of the test.

41As this appeal is at a relatively early stage, the Parties have not yet established a detailed list of issues for a hearing. Without, in any way, presupposing what the actual list of issues will include, the Tribunal would note that, based upon the arguments and evidence submitted in the context of this Motion, there is some dispute amongst the Parties with respect to whether the Action Plan is required to be reviewed and/or accepted by the MECP. The foregoing relates to the question posed by counsel for the Appellants with respect to whether the MECP has “the ultimate say”, given the Parties’ disagreement with respect to:

1. whether it is necessary to install monitoring wells at the site, in light of the opinion of the QP, that there is no risk whatsoever to persons, property or the environment from contamination; and,

2. whether there are materials at the site that have been improperly found to be waste (requiring removal), in light of the opinion of the QP that the materials on site include good wood products that can be repurposed, sold or otherwise used in the reconstruction of a building at the Subject Property and ought not to be categorized as waste.

42Based on the above, the Tribunal finds that there is a serious issue to be decided at a hearing and the first part of the test in RJR-MacDonald is met.

43As previously noted, the onus is upon the Appellants to establish that they meet all three parts of the test for interlocutory relief. To demonstrate that part two of the test is met, there is a requirement to provide specific evidence that irreparable harm will, in fact, occur if a stay is not granted. The ERT has consistently held that an unsubstantiated claim or proof of a risk of irreparable harm is not sufficient to meet this part of the test for a stay.³

44In support of the Motion, the Appellants provided the Tribunal with no evidence of any harm whatsoever, let alone irreparable harm. No financial data or other evidence relating to the cost of complying with the Director’s Order was presented. With respect to this part of the test, counsel for the Appellant simply offered an unsubstantiated assertion that the Appellants and the farming community, in general, would suffer irreparable harm because refusal of a stay would, in effect, amount to giving the MECP carte blanche to order examinations and assessments of farm properties without any evidence of contamination/risk of contamination thereon.

45In the absence of any specific evidence to establish that refusal of a stay will result in irreparable harm, the Appellants have failed to meet the test for interlocutory relief set out in RJR-MacDonald and, as such, it is unnecessary to go on to consider the third part of the test. However, the Tribunal would note, briefly, that it agrees with the submissions of the Respondent Director and finds that, in this case, the balance of convenience favours refusal of a stay based upon the public interest mandate of the MECP, which is charged with protecting the environment, and the lack of any evidence that the Appellants will suffer irreparable harm if a stay is not granted.

NEXT STEPS

46At a previous hearing event held for the purpose of scheduling the present Motion, upon request by the Parties, the Tribunal also scheduled a five-day video hearing commencing on Monday, May 15, 2023, at 10 a.m. The Parties were directed to attend a Telephone Conference Call (to be scheduled through the assigned Case Coordinator following the hearing of this Motion) in order to finalize a Procedural Order and Issues List for the May 15, 2023 hearing.

47In light of the fact that the motion was heard in advance of a first Case Management Conference (“CMC”), the Tribunal now revises its previous direction. The next hearing event will be a CMC held by video hearing on Tuesday, April 11, 2023. At the CMC, the Tribunal will identify Parties and Participants, review a draft Procedural Order (“PO”) and Issues List (“IL”), which the Parties are directed to submit no later than two days prior to the CMC.

ORDER

48The Tribunal orders that:

a) The Motion, by 2057183 Ontario Limited, Harold Westendorp and Pamela Poulin, for a stay of Director’s Order No. 1-131767953, is dismissed in its entirety;

b) The next hearing event will be a Case Management Conference, to be held by video hearing on Tuesday, April 11, 2023. Notice of the foregoing, including call-in/connection details will be provided by the Case Coordinator;

c) A five-day video hearing remains scheduled to commence on Monday, May 15, 2023 at 10 a.m.; and,

d) This Member is not seized for any of the above noted hearing events.

“S. Braun”

S. braun

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.

Footnotes

1. 1R.S.O. 1990, c. E. 19, as amended.
2. 2Poulin v. Ontario (Environment, Conservation and Parks), 2021 CanLII 44073 (ON ERT).
3. 3See, for example, Baker (supra), Mad Term II Inc. v. Ontario (Ministry of the Environment) 2011 CarswellOnt 6145 and Limoges v. Ontario (Director, Ministry of the Environment) 2007 CarswellOnt 9729.