Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 20, 2023

CASE NO(S).: OLT-22-003181

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40, as amended

Appellant: Robert Zbroszczyk (Appeal No. 004343)

Appellant: 825678 Ontario Inc. (Appeal No. 004342)

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

Subject of appeal: Order to perform work with respect to sewage works to prevent discharge of sewage into Lake Ontario and protect human health

Reference No.: Director’s Order No. 1-101403589

Municipality: Quinte West

Upper Tier: Hastings County

OLT Case No.: OLT-22-003181

OLT Case Name: Zbroszczyk v. Ontario (Environment, Conservation and Parks)

Heard: September 22, 2022 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Director, Ministry of the Environment Conservation and Parks	Sarah Valair*, Amanda Landre* and Peter Hillson* (student-at-law)
825678 Ontario Inc. O/A Camp Barcovan Tent 7 RV Resort	Robert Zbroszczyk

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON SEPTEMBER 22, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On March 28, 2022, the Director (“Director”), Ministry of the Environment, Conservation and Parks (“Ministry”) issued Director’s Order No. 1-101403589 (“Director’s Order”) against 825678 Ontario Inc. It relates to sewage works at the Camp Barcovan Tent and R.V. Resort located at 133 Carter Road (“subject property”) in Quinte West.

2825678 Ontario Inc. and Robert Zbroszczyk (“Appellants”) appealed the Director’s Order.

3The Work Items in the Director’s Order are as follows:

Work Item No. 1 Compliance Date: 04/22/2022 By April 22, 2022, retain the services of a Qualified Consultant to prepare and submit a comprehensive assessment of the on-Site sewage system(s) servicing the Property and develop a report and Action Plan as required by Work Ordered Item No. 3.

Work Item No. 2 Compliance Date: 04/22/2022 By April 22, 2022, submit to the undersigned Provincial Officer written confirmation from the Qualified Consultant(s) that it has, or they have: (i) received a copy of the Order; (ii) been retained to carry out the work specified in Ordered Item No. 3; and; (iii) the experience and qualifications to carry out the work.

Work Item No. 3 Compliance Date: 06/30/2022 By June 30, 2022, ensure that the retained Qualified Consultant prepares and submits to the undersigned Provincial Officer for review and acceptance by the MECP, a report which shall include, but not necessarily be limited to, the following: (i) A detailed description of all installed sewage works at the Site and comparison to all existing permits or approvals previously issued under the Environmental Protection Act or Ontario Water Resources Act, if applicable; (ii) Assessment of the operational condition, treatment capacity and treatment efficacy of the all on-site sewage system(s) and their individual components that also identifies any deficiencies with the system(s); (iii) An accurate calculation of all the daily sewage flows generated on the property following the appropriate table(s) in the Ontario Building Code and/or applicable ministry guidelines for the design of on-site sewage works; (iv) An Action Plan, with an implementation schedule for any proposed work and/or remedial measures to address the identified deficiencies of the sewage system(s) and their individual components.

Work Item No. 4 Compliance Date: 05/06/2022 By May 6, 2022, develop and submit to the undersigned Provincial Officer written interim actions and/or procedures that will be implemented prior to the 2022 operating season to prevent saturated conditions until such time that the developed Action Plan required by Ordered Item No. 3 has been accepted by the Ministry and implemented fully, and upon receiving written acceptance of the actions or/procedures, commence implementing the actions and procedures and continue to do so until notified in writing by the undersigned Provincial Officer that it is no longer necessary to do so.

4On April 12, 2022, the Appellants appealed the Director’s Order and requested a stay of several of the Order’s work items pending the disposition of the appeal.

5On June 2, 2022, the Tribunal dismissed the Appellants’ request for a stay and amended the due dates in the Director’s Order.

6On September 22, 2022, the Tribunal heard the appeal on the merits by video hearing.

7On October 7, 2022, the Tribunal issued its Final Order in this proceeding effective September 22, 2022, with reasons to follow.

8This Decision sets out the reasons for that Final Order.

ISSUE

9The issue before the Tribunal is whether the Tribunal should confirm, alter or revoke the Director’s Order under s. 100(10) of the Ontario Water Resources Act (“OWRA”).

EVIDENCE AND SUBMISSIONS

Appellants’ Submissions

10The Appellants restricted themselves to making only submissions at the hearing. They did not provide evidence.

11Robert Zbroszczyk submitted that the Director has the onus to prove that the Director’s Order is reasonable and necessary. He said the appropriateness of the Director’s Order must be assessed taking into account the Appellants’ circumstances, including the costs of repairs to the system. He submitted that the Appellants’ septic system has generally been working satisfactorily. He submitted that the Appellants should be permitted to determine the best course of action and that it is premature to have the work items in the Director’s Order and/or an environmental compliance approval imposed on them. He said it would be unfair to require them to unnecessarily spend money on retaining a qualified person to do an assessment of the septic system, if they can fix it themselves. He submitted that the Appellants are taking actions to address mis-use of the septic system and the results of these actions should be assessed. He also submitted that the Appellants should be given the opportunity to determine whether it is more appropriate to get an environmental compliance approval for a new septic system instead of addressing the existing system.

Director’s Evidence and Submissions

12John Crouter and Yuanyang Wei provided evidence on behalf of the Director. Mr. Crouter is the Provincial Officer who issued the Provincial Officer’s Report and Mr. Wei is a senior wastewater engineer with the Ministry. The Tribunal qualified Mr. Wei to provide opinion evidence as an expert in the design, operation, and maintenance requirements of sub-surface sewage disposal systems.

13Mr. Crouter described the condition of the septic system on the subject property. He stated that during his visits to the subject property in 2021 and 2022, he observed sewage ponding around the septic bed and evidence of saturation. He said the Director has made several requests to the Appellants to take steps to address these problems, but the Appellants have failed to do so. He said there was also a sewage spill on the subject property in July 2022. Mr. Crouter stated that the ponding and saturation conditions at the subject property constitute health and environmental risks. He said that given uncertainty over the root cause of the ponding and saturation, a proper assessment of the septic system is needed.

14Given the continuing nature of the problem, Mr. Crouter stated that in addition to the work items in the Director’s Order, the Appellants should undertake the following further actions at the subject property:

1. By September 23, 2022 and until such time as the Ministry approves an Action Plan with alternative interim measures, no sewage is to be directed to any sewage leaching bed. All septic tanks are required to be modified to serve as holding tanks by capping all outlets to the leaching beds.
2. By September 23, 2022, pump out all septic tanks and/or holding tanks. Pumping is to be conducted by a Ministry-approved waste hauler and taken to a Ministry-approved receiving site.
3. Beginning September 24, 2022, until the last day of the 2022 season, retain the services of a Ministry-approved waste hauler to inspect the levels in all tanks daily (or at a frequency agreed to by the District Manager) and to pump any tank where sewage levels reach 20 percent of the tank’s liquid depth or 0.3 metre freeboard, whichever is the most conservative level, and to take pumped waste to a Ministry-approved receiving site.
4. By May 1, 2023, equip each tank with a high-level alarm that has both visual and audible indicators and a trigger value set at either 20 percent of the tank’s liquid depth or 0.3 metres freeboard, whichever is the most conservative level.
5. Beginning on May 1, 2023, and on an ongoing basis and/or until such time as the Ministry approves an Action Plan with alternative interim measures, pump out each septic tank when the high-level value is triggered. Pumping is to be conducted by a Ministry-approved waste hauler and taken to a Ministry-approved receiving site.

15Mr. Crouter stated that these actions are reasonable and necessary given the conditions at the subject property. He said they would prevent further ponding and saturation at the subject property and ensure the protection of human health and the environment from the risks associated with the operation of the Appellants’ septic system.

16Mr. Wei stated that the Appellants’ documentation regarding the septic system and whether it has been properly maintained is incomplete. He said an assessment by a qualified person is needed to determine the system’s capacity and the reasons for its failure. He stated that, based on the information provided by Mr. Crouter, the septic system is not functioning properly resulting in ponding and saturation. He said sewage is breaking out of the septic bed and causing saturation and ponding issues. He said that during a breakout such as this, the area must be restricted from public access and the discharge of sewage into the septic bed must be halted. He said that without an assessment by a qualified person, it is impossible to determine the reasons for the system failure and breakout and impossible to identify an appropriate action plan to address the problems and the risks they pose. He opined that the repairs and monitoring proposals made by the Appellants are inadequate and that a proper assessment of the problem is needed before a solution is determined. He said that, in the meanwhile, the additional required items proposed by the Director are needed to protect human health and the environment. He opined that they are reasonable and necessary and ensure the protection of human health and the conservation, protection and management of local waters.

17The Director submitted that the evidence before the Tribunal is that the Appellants’ septic system has failed. The Director submitted that despite human health and environmental concerns, the Appellants have not taken the interim measures that are necessary to prevent the risk of harm from occurring. The Director submitted that the failed septic system has created risks to adjacent recreational waters and local drinking water supplies and that steps are necessary to prevent harm to human health and the environment. The Director submitted that based on the evidence before the Tribunal, the Appellants’ efforts to address the problem have failed. The Director submitted that it is in the public interest to order that the work items in the Director’s Order along with the additional requested work items be completed.

Analysis and Findings

18The purpose of the OWRA, as set out in s. 0.1 of the Act, is to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use in order to promote Ontario’s long-term environmental, social and economic well-being. In Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70, the Ontario Court of Appeal confirmed the wide scope of the application of the OWRA and the need to take preventative actions in order to achieve the OWRA’s objectives. It stated at paragraph 44:

[44] This court has noted that the OWRA “creates a wide ambit of protection for Ontario waters”: see R. v. Inco Ltd. (2001), 2001 CanLII 8548 (ON CA), 54 O.R. (3d) 495 (C.A.), at para. 53. As the court observed in Inco, this broad protection is necessary because the damage caused by pollution of waters may not be immediately apparent and impairment may be caused by the accumulation of pollutant materials over time: at para. 54.

19In an appeal under s. 100(4) of the OWRA, the Tribunal stands in the shoes of the Director and is required to determine, based on the evidence before it, the appropriate actions, if any, that are required based on the public interest in implementing the above-noted environmental protection purposes of the OWRA.

20The Director submitted that the Appellants’ septic system has failed and presents a risk of causing harm to human health and the environment in terms of impacts to local drinking water and local recreational waters. Mr. Wei’s uncontradicted opinion evidence is that an assessment of the septic system by a qualified person is necessary in order to determine the causes of the septic system failure. His evidence is that the work items in the Director’s Order along with the additional work items proposed by the Director are reasonable and necessary and ensure the protection of human health and the conservation, protection and management of Ontario’s waters.

21Based on the evidence before it, the Tribunal finds that the work items in the Director’s Order along with the additional work items proposed by the Director are appropriate and will ensure the protection of human health and the conservation, protection and management of local waters in accordance with the requirements in the OWRA. It finds that the ponding and saturation found at the subject property represent risks to human health and the environment and that the work items in the Director’s Order along with the additional work items proposed by the Director will address these risks in accordance with the OWRA’s requirements.

22The Appellants raised concerns that it would be unfair to require them to unnecessarily spend money on retaining a qualified person to assess the septic system. They did not provide comprehensive evidence on the costs of complying with the work items or evidence regarding financial impacts on them. They also did not provide evidence demonstrating that the work items are unnecessary or unwarranted.

23The Tribunal finds that an assessment of the septic system by a qualified person along with the other work items in the Director’s Order and the additional work items proposed by the Director are fair, reasonable, and necessary.

ORDER

24The Tribunal orders that the Appeal is dismissed and Director’s Order No. 1-101403589 (“Director’s Order”), issued by the Director, Ministry of the Environment, Conservation and Parks on March 28, 2022, is hereby amended so that the Work Ordered in the Director’s Order is as follows:

1. By June 10, 2022, retain the services of a Qualified Consultant(s) to prepare and submit a comprehensive assessment of the on-Site sewage system(s) servicing the Property and develop a report and Action Plan as required by Work Ordered Item No. 3.
2. By June 10, 2022, submit to the undersigned Provincial Officer written confirmation from the Qualified Consultant(s) that it has, or they have: (i) received a copy of the Order; (ii) been retained to carry out the work specified in Ordered Item No. 3; and, (iii) the experience and qualifications to carry out the work.
3. By December 15, 2022, ensure that the retained Qualified Consultant(s) prepares and submits to the undersigned Provincial Officer for review and acceptance by the MECP, a report which shall include, but not necessarily be limited to, the following: (i) a detailed description of all installed sewage works at the Site and comparison to all existing permits or approvals previously issued under the EPA or OWRA, if applicable; (ii) assessment of the operational condition, treatment capacity and treatment efficacy of all on-Site sewage system(s) and their individual components that also identifies any deficiencies with the system(s); (iii) an accurate calculation of all the daily sewage flows generated on the property following the appropriate table(s) in the Ontario Building Code and/or applicable Ministry guidelines for the design of on-Site sewage works; (iv) an Action Plan, with an implementation schedule for any proposed work and/or remedial measures to address the identified deficiencies of the sewage system(s) and their individual components.
4. By June 29, 2022, develop and submit to the undersigned Provincial Officer written interim actions and/or procedures that will be implemented prior to the 2022 operating season to prevent saturated conditions until such time that the developed Action Plan required by Ordered Item No. 3 has been accepted by the Ministry and implemented fully, and upon receiving written acceptance of the actions or procedures, commence implementing the actions and procedures and continue to do so until notified in writing by the undersigned Provincial Officer that it is no longer necessary to do so.
5. By September 23, 2022 and until such time as the Ministry approves an Action Plan with alternative interim measures, no sewage is to be directed to any sewage leaching bed. All septic tanks are required to be modified to serve as holding tanks by capping all outlets to the leaching beds.
6. By September 23, 2022, pump out all septic tanks and/or holding tanks. Pumping is to be conducted by a Ministry-approved waste hauler and taken to a Ministry-approved receiving site.
7. Beginning September 24, 2022, until the last day of the 2022 season, retain the services of a Ministry-approved waste hauler to inspect the levels in all tanks daily (or at a frequency agreed to by the District Manager) and to pump any tank where sewage levels reach 20 percent of the tank’s liquid depth or 0.3 meters freeboard, whichever is the most conservative level, and to take pumped waste to a Ministry-approved receiving site.
8. By May 1, 2023, equip each tank with a high-level alarm that has both visual and audible indicators and a trigger value set at either 20 percent of the tank’s liquid depth or 0.3 meters freeboard, whichever is the most conservative level.
9. Beginning on May 1, 2023, and on an ongoing basis and/or until such time as the Ministry approves an Action Plan with alternative interim measures, pump out each septic tank when the high-level value is triggered. Pumping is to be conducted by a Ministry-approved waste hauler and taken to a Ministry-approved receiving site.

25Pursuant to Rule 24.3 of the Tribunal's Rules, this Order is effective on September 22, 2022.

“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.