Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 27, 2023
CASE NO(S).: OLT-21-001731 (Formerly 20-015)
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and [sub]section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant: David Bartlett (File No. 20-015) Appellant: James Bartlett (File No. 20-016) Appellant: N.M. Bartlett Inc. (File No. 20-017) Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation Reference No.: 5841-BCVQ4K-1 Property Address/Description: 4509 Bartlett Road Municipality: Town of Lincoln Upper Tier: Regional Municipality of Niagara OLT Case No.: OLT-21-001731 Legacy Case No.: 20-015 OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: David Bartlett (Appeal No. 001166) Appellant: James Bartlett (Appeal No. 001167) Appellant: N.M. Bartlett Inc. (Appeal No. 001168) Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation Reference No.: 1-41636588 Property Address/Description: 4509 Bartlett Road, R.R. #1 Municipality: Town of Lincoln Upper Tier: Regional Municipality of Niagara OLT Case No.: OLT-21-001067 OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)
Heard: March 23, 2023 by Telephone Conference Call (“TCC”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| David Bartlett, James Bartlett and N.M. Bartlett Inc. | Jennifer Danahy |
| Director, Ministry of the Environment, Conservation and Parks | Nicholas Adamson |
MEMORANDUM OF ORAL DECISION DELIVERED BY WARREN MORRIS AND GREGORY J. INGRAM ON MARCH 23, 2023 AND ORDER OF THE TRIBUNAL
BACKGROUND
1This Decision arises from a Case Management Conference (“CMC”) status update by TCC held regarding the appeals filed by N.M. Bartlett Inc., James Bartlett, and David Bartlett (“Appellants”) in relation to Director’s Order No. 5841-BCVQ4K-1 (“Director’s Order”) issued by the Director, Ministry of the Environment, Conservation and Parks (“MECP”) under s. 140(1) of the Environmental Protection Act and s. 100(4) of the Ontario Water Resources Act. The Director’s Order requires the Appellants to perform stormwater management and soil and sediment remediation work at the property located at 4509 Bartlett Road (“site”), in the Town of Lincoln.
2CMCs were held in October 2021, January 2022 and on November 22, 2022, regarding this case. A 14-day hearing was scheduled for October 11 to October 28, 2022, which was subsequently cancelled at the Parties’ request since settlement discussions were moving forward in a positive direction. At the November 2022 CMC, the Parties confirmed that considerable settlement progress was being made. It was reported that since the hearing cancellation, five experts from each side had met for two meetings and additional meetings were scheduled. They indicated that there was ongoing soil sampling and testing which required analysis. The Parties requested that a further status update be scheduled for the week of March 20, 2023. The Tribunal Members expressed concern that the Parties may not be any further ahead by March 2023 but was assured by Nicholas Adamson, Counsel for the MECP, that the existing Director’s Orders were not stayed and continue to impose requirements with deadlines.
CURRENT STATUS
3The purpose of this CMC was to receive an update from the Parties, and if settlement did not appear likely, to set a new hearing date and timelines for a Procedural Order (“PO”) including an Issues List (“IL”).
4Mr. Adamson, Counsel for the Director of MECP, provided an overview of the actions taken by the two Parties since the last CMC. He indicated that there have been three meetings involving five experts from each Party related to ongoing collection, testing and analysis of pertinent information. These meetings have occurred partly on consent and partly required by the order. He emphasized scheduling meetings involving this many specialized experts has been very difficult and requires time and flexibility. He indicated that they have another meeting of the experts scheduled for the end of March.
5Mr. Adamson reported that the Parties are finding their way forward with agreements on a number of items while also being able to narrow where they stand in areas of disagreement. Specifically, he shared that the Appellants submitted a remediation plan related to the south-east corner of the property and that they have created a draft on points of agreement by the experts.
6Mr. Adamson requested that the Tribunal grant a further ninety-day adjournment before scheduling another CMC to allow for additional expert meetings to occur. He opined that scheduling a hearing at this time would shift the focus of the experts away from the cooperative collection and analysis of important information needed for settlement, and turn their focus toward preparing for an adversarial hearing. He also noted that the Appellants submitted a new draft plan, which should help to refine the focus.
7Jennifer Danahy, Counsel for the Appellant, concurred with Mr. Adamson with respect to the positive progress they have made and felt that scheduling a hearing would not be helpful at this stage of the process. It was her contention that allowing more time would give the Parties a better understanding of what is happening at the site. She noted that they are carrying out work where there has been agreement which has been very helpful to moving forward. She confirmed that her client has no problem completing work where there is mutual agreement and felt that they are currently on a productive, cooperative path.
8The Parties were asked to further comment on what outcome the Tribunal would expect if they were given additional time as requested.
9Mr. Adamson indicated that the MECP and the Appellants are confident that this process will narrow issues for a hearing. He noted that the new information being gathered has changed the understanding of what is going on at the subject property but could not confirm if a full settlement would be possible or just narrow the issues.
10Ms. Danahy added that their goal is full settlement and acknowledged that they continue to narrow the issues through the positive interaction between the Parties, which is much less contentious than at the beginning of this process. Ms. Danahy agreed with the Director of the MECP in suggesting that scheduling a hearing would stop the progress they are currently making.
DISPOSITION
11The Tribunal will schedule another CMC at the Parties’ request. In addition, the Parties will provide a written update to the Case Coordinator by Friday, June 30, 2023, on their progress toward a settlement. In addition, the Parties will, on or before Friday, September 15, 2023, indicate if they are prepared to move to a Settlement Hearing in which case the CMC will be converted to a Settlement Hearing. If the matter continues to be contested then it is expected that a Draft PO and IL will be provided to the Case Coordinator by Friday, September 15, 2023, and Parties are to finalize the PO with IL at the CMC and set a Hearing date.
ORDER
12The Tribunal orders that the next Case management Conference (“CMC”) for OLT 21-001731 (Legacy File No. 20-015) and OLT-21-001067 will occur on Monday, October 2, 2023, beginning at 9:30 a.m. via Telephone Conference Call.
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 1219634# 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 the Parties provide a written update through the Case Coordinator by Friday, June 30,2023, on their progress towards a settlement.
15THE TRIBUNAL ORDERS that the Parties indicate on or before Friday, September 15, 2023, if they are prepared to convert the CMC to a Settlement Hearing. If the matter continues to be contested, it is expected that a Draft Procedural Order and Issues List be provided to the Case Coordinator in anticipation of finalizing them at the CMC and setting a Hearing date.
16These Members are not seized.
17There will be no further notice.
“Warren Morris”
WARREN MORRIS MEMBER
“Gregory J. Ingram”
GREGORY J. INGRAM 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.