McCaig v. Ontario (Environment, Conservation and Parks), 2023 CanLII 28253

Ontario Land Tribunal

Issue Date: April 04, 2023 Case No(s).: OLT-22-003335

Proceeding commenced under subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellants: Don McCaig, 1767158 Ontario Inc. Respondent: Director, Ministry of the Environment, Conservation 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 associated with the waste in, on, or under the property Reference No.: Director’s Order No. 1-105666379 Property Address/Description: PART OF ROAD ALLOWANCE BETWEEN LOTS 43 & 44, CONCESSION STR SOUTHWOLD CLOSED BY BY-LAW #129 & 136; PART OF LOTS 42-45 CONCESSION STR SOUTHWOLD DESIGNATED AS PARTS 1 & 2, 11R-2455; SAVE & EXCEPT PART 1, 11R-8600; ST. THOMAS; PIN 35155-0148 (LT) Municipality: City of St. Thomas Upper Tier: Elgin County OLT Case No.: OLT-22-003335 OLT Case Name: McCaig v. Ontario (Environment, Conservation and Parks)

Heard: March 14, 2023 by Telephone Conference Call

Appearances:

Parties	Counsel
1767158 Ontario Inc. and Don McCaig	Paula Lombardi
Director, Ministry of the Environment, Conservation and Parks	Jon Bradbury

MEMORANDUM OF ORAL DECISION DELIVERED BY S. DIXON AND HUGH S. WILKINS ON MARCH 14, 2023 AND ORDER OF THE TRIBUNAL

BACKGROUND

1This Decision arises from a Case Management Conference (“CMC”) held on March 14, 2023 regarding appeals filed by 1767158 Ontario Inc. and Don McCaig (collectively, the “Appellants”) in response to Director’s Order No. 1-105666379 issued by the Ministry of the Environment, Conservation and Parks (“Respondent”) concerning the deposit and removal of waste at the property legally described as Part of Road Allowance between Lots 43 & 44, Concession Str, Southwold, closed by By-law Nos. 129 & 136; Part of Lots 42-45, Concession Str, Southwold, designated as Parts 1 & 2, 11R-2455; save and except Part 1, 11R-8600; St. Thomas; PIN 35155-0148 (LT).

ISSUES LIST, PROCEDURAL ORDER AND HEARING DATES

2At the CMC, the Parties discussed and came to a consensus on the finalization of a Draft Procedural Order and the identification of issues to be adjudicated at a hearing. The Tribunal has reviewed and approved a Procedural Order and Issues List based on these documents, attached as Schedule 1 to this Decision and Order.

3The Parties described the number and types of witnesses that they intend to call at a hearing. After considering this information and the attached issues, the Tribunal directed that a five-day hearing will be held by video commencing on Monday, July 31, 2023 at 10 a.m.

4Parties and Participants are asked to log on to the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

5Parties 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.

6Persons 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: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889. The access code is as indicated above.

7Individuals 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.

OPPORTUNITIES FOR SETTLEMENT

8The Parties advised the Tribunal that they continue to engage in settlement discussions and hope to reach a settlement in advance of the hearing. No Tribunal-assisted mediation was requested.

ORDER

9THE TRIBUNAL ORDERS THAT the Procedural Order and Issues List attached as Schedule 1 to this Decision and Order are approved.

10THE TRIBUNAL ORDERS THAT a hearing on the merits will commence by video hearing on Monday, July 31, 2023, commencing at 10 a.m. Five days have been set aside for the hearing.

11There will be no further notice.

12The Panel is not seized.

“S. Dixon”

S. DIXON

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE CHAIR

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.

SCHEDULE 1

OLT Case No.: OLT-22-003335

ONTARIO LAND TRIBUNAL

Proceeding commenced under subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellants: Don McCaig, 1767158 Ontario Inc. Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of appeal: Director’s Order to cease depositing, causing, permitting, or arranging for the deposit of waste at the Site; and to remove all waste materials from the Site using approved waste management systems and deposit said materials at an approved waste disposal site. Ministry Reference Number: 1-105666379-1A Property Address: PART OF ROAD ALLOWANCE BETWEEN LOTS 43 & 44, CONCESSION STR SOUTHWOLD CLOSED BY BY-LAW #129 & 136; PART OF LOTS 42-45 CONCESSION STR SOUTHWOLD DESIGNATED AS PARTS 1 & 2, 11R-2455; SAVE & EXCEPT PART 1, 11R-8600; ST. THOMAS; PIN 35155-0148 (LT) Municipality: City of St. Thomas Upper Tier Municipality: County of Elgin OLT Case No.: OLT-22-003335 OLT Case Name: McCaig 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 video hearing will begin at 10 a.m. on Monday, July 31, 2023, and will continue on each of August 1, 2, 3 and 4, 2023, subject to the Tribunal’s discretion to make changes to the hearing schedule. A virtual format hearing will be satisfactory to all parties.

3. The parties’ initial estimate for the length of the hearing is 5 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 the Issues List unless the Tribunal permits, and a party who requests changes may have costs awarded against it.

6. The order of evidence shall be as follows:

a. Opening statements

b. Appellants’ witnesses:

1. (expert) Joe Rothfisher (Engineer, GHD Group)
2. (expert) Ryan Hern (Engineer, Development Engineering (London) Limited
3. TBD (representative of 1767158 Ontario Inc.)

c. Director’s witnesses:

1. Joe Gordon (Kettle Creek Conservation Authority)
2. Nathan Bokma (City of St. Thomas)
3. Jeff Mills (MECP Environmental Officer)
4. Pierre Adrian (MECP Director)
5. (expert) TBD (MECP Hydrogeologist/Surface Water Expert)

d. Appellants’ reply evidence (if any)

e. Closing arguments

7. 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.

8. 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. 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 phone number as soon as possible.

9. 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

10. On or before May 31, 2023, the parties are to exchange copies of all relevant documents over which privilege is not being asserted along with a list itemizing the documents with document title/description and date. There is a continuing disclosure obligation to provide all relevant non-privileged documents up until the release of the Tribunal’s decision on the appeal.

11. On or before June 7, 2023, any 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. Any 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.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided to all other parties at the time indicated in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. 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 and provide it to all other parties at the time indicated in paragraph 14 below.

14. On or before June 14, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

15. On or before June 26, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before June 30, 2023, the parties shall provide copies of any visual evidence they intend to use at the hearing to the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. On or before June 30, 2023, any expert and/or technical witnesses in the same field shall have a meeting and use best efforts to try to resolve or reduce the issues for the hearing. The parties and their legal representatives may attend but are not permitted to participate in the expert/technical witness meeting(s). Within 10 days of the expert/technical witness meeting, the participating witnesses must prepare and provide to the parties a summary of the issues and facts upon which they have reached agreement and a summary of the remaining issues and facts with a brief description of the witnesses’ differing views on those facts and issues.

18. On or before July 12, 2023, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within 14 days after the evidence is received and in accordance with paragraph 24 below.

20. The parties shall cooperate to prepare a joint document book which can be shared with the OLT case co-ordinator at least 10 days before the first scheduled hearing date.

21. Any person wishing to change written evidence, including witness statements, must make a motion in writing to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules of Practice and Procedure. The Tribunal may hear the motion together with the appeal.

22. 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 first scheduled hearing date that the written evidence will not form part of their record.

23. On or before July 21, 2023, the parties shall file a preliminary hearing plan with the Tribunal 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.

24. All service and filing of materials required to be provided, submitted, exchanged, served or filed under this order shall be provided electronically. Additional copies of materials may be provided in hard copy. Electronic copies may be provided by email, an electronic file sharing service for documents that exceed 35MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules of Practice and Procedure.

25. Adjournment requests will be considered and decided by the Tribunal on a case-by-case basis. Rule 17 of the Tribunal’s Rules of Practice and Procedure shall apply to any such request.

The Panel is not seized.

So orders the Tribunal.

Attachment 1

Parties and Participants

A. Parties:

Appellants: 1767158 Ontario Inc. and Don McCaig 32 Gladstone Avenue St. Thomas, ON N5R 2L5

Appellants’ Counsel: Paula Lombardi Siskinds LLP 275 Dundas Street, Unit 1 London, ON N6B 3L1 Tel: (519) 660-7878 Email: paula.lombardi@siskinds.com

Respondent: Pierre Adrien, Director/District Manager Ministry of the Environment, Conservation and Parks London District Office 733 Exeter Road London ON N6E 1L3

Respondent’s Counsel: Jon Bradbury Ministry of the Attorney General Legal Services Branch, Ministry of the Environment, Conservation and Parks 135 St. Clair Ave W, 10th Floor Toronto ON M4V 1P5 Tel: (416) 705-5063 Email: jon.bradbury@ontario.ca

B. Participants: None

Attachment 2

Issues List

Issues as agreed by the parties:

1. Whether the requirements of the Director’s Order are reasonable to address any alleged contravention of section 40 of the Environmental Protection Act (the “EPA”).

a. Was there a contravention of section 40 of the EPA?

b. Are the ‘fill’ materials at issue properly characterized as ‘waste’, as that term is defined in the Order and the EPA?

c. Are the ‘fill’ materials at issue exempt from designation as ‘wastes’ under Ontario Regulation 347?

d. Should the ‘fill’ materials at issue be classified as recycled materials?

2. Whether the requirements of the Director’s Order are necessary or advisable so as,

a. To prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property; or

b. To prevent, decrease or eliminate an adverse effect that may result from,

i. the discharge of a contaminant from the undertaking, or

ii. the presence or discharge of a contaminant in, on or under the property.

c. Was there any significant likelihood of any adverse effect resulting from placement of the ‘fill’ materials at issue on the subject property.

3. Whether the placement of fill and related activities at the subject property are considered a ‘normal farm practice’ as that term is defined in the Farming and Food Production Protection Act and the Provincial Policy Statement, 2020.

a. Whether the placement of fill and related activities intended to protect against the ongoing gully erosion in numerous areas throughout the subject property to preserve the soil adjacent to the cropped tableland falls within the definition of ‘normal farm practices.’

4. Is the Order overly and unnecessarily broad in its scope and application?