Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 27, 2023
CASE NO(S).: OLT-23-000104
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Sherwood Forest Investments (Guelph) Ltd. (File No. 007977)
Respondent: Director, Ministry of the Environment, Conservations 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
Reference No.: 1-139396577
Property Address/Description: 490 York Road
Municipality/Upper Tier: City of Guelph, County of Wellington
OLT Case No.: OLT-23-000104
OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)
Heard: March 10, 2023 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Director, Ministry of the Environment, Conservation and Parks | Nadine Harris, Madeline Ritchie, Victoria Kacer (articling student) |
| Sherwood Forest Investments (Guelph) Ltd. | Tamara Farber, Vanessa De Sousa |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MARCH 10, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On March 10, 2023, the Tribunal heard a Motion brought by Sherwood Forest Investments (Guelph) Ltd. (“Appellant”) seeking an interim stay of Director’s Order No. 1-139396577 (“Director’s Order”). The Director’s Order requires the Appellant to undertake actions to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant in, on or under the site located at 490 York Road, in City of Guelph.
2The Director’s Order requires the Appellant to undertake the following items:
Item No. 1 Compliance Due Date: 12/07/2022 By December 7, 2022, the Orderees shall retain the services of a Qualified Person, satisfactory to the Provincial Officer, to do the work specified in this Order.
Item No. 2 Compliance Due Date: 12/07/2022 By December 7, 2022, the Orderees shall inform the Provincial Officer of the name of the Qualified Person retained as required by Item No. 1 with details as to the qualifications and experience of the Qualified Person retained and confirm that a copy of this Order has been given to the Qualified Person.
Item No. 3 Compliance Due Date: 03/03/2023 By March 3, 2023, the Orderees shall have the Qualified Person retained, pursuant to Item No. 1 and submit to the Director, for acceptance, a Work Plan with timeliness to address Recommendation No. 1.
Item No. 4 Within 30 days of receipt of written notice of acceptance of the Work Plan from the Director, the Orderees shall implement the Work Plan.
Item No. 5 Upon implementation of the Work Plan, the Orderees shall submit to the Provincial Officer a monthly written Progress Report prepared by the Qualified Person documenting the progress of work.
Item No. 6 The Progress Report shall be submitted to the Provincial Officer within 15 days of the end of the calendar month being reported upon.
Item No. 7 Within 60 days of completion of the Work Plan, the Orderees shall submit to the Director a Final Report prepared by the Qualified Person that documents the work completed as required by the accepted Work Plan.
Item No. 8 Compliance Due Date: 03/03/2023 By March 3, 2023, the Orderees shall implement a Groundwater Monitoring Program.
Item No. 9 Compliance Due Date: 03/31/2024 By March 31, 2024, and annually thereafter, the Orderees shall submit to the Director an annual Groundwater Monitoring Report covering the previous year being reported upon.
3At a Case Management Conference (“CMC”) held on March 1, 2023, the Appellant and the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”) agreed that Items 1 and 2 of the Director’s Order had been completed. At the CMC, the Director consented to an interim stay of Items 3 to 7 of the Director’s Order pending the disposition of a Stay Motion to be brought by the Appellant addressing these items. The Parties were not able to agree on whether an interim stay of Items 8 and 9 should be ordered.
4This issue was addressed at the motion hearing on March 10, 2023 and is the subject matter of this Decision.
LEGISLATION
5Section 143(1) to (3) of the Environmental Protection Act sets out the Tribunal’s authority to stay a Director’s Order. It states:
No automatic stay on appeal 143(1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than, (a) an order to pay costs and expenses under section 99.1; (b) an order to pay the costs of work made under section 150; (c) an order to pay an environmental penalty; or (d) an order to pay an administrative penalty.
Tribunal may grant stay (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 (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.
EVIDENCE AND SUBMISSIONS
Appellant’s Evidence and Submissions
6The Appellant submits that Items 8 and 9 require the implementation of a Groundwater Monitoring Program and the submission to the Director of an annual Groundwater Monitoring Report. It submits that an interim stay of these items is permitted under s. 143 of the Environmental Protection Act. It submits that Items 8 and 9 are integral to the Work Plan requiring the Appellant to investigate and study the subject property. It submits that they are not part of ongoing tracking or collection of data regarding contamination on the subject property and do not constitute an order to monitor, record and report under s. 143(2)(a). The Appellant submits that the objectives of the Groundwater Monitoring Program are to evaluate the contaminants on the subject property and to report on that evaluation. It emphasizes that this is a study and not monitoring, recording, and reporting.
7In support of this position, the Appellant filed an affidavit affirmed by Tim Dickson on March 6, 2023. He is a geoscientist retained by the Appellant. He stated in his affidavit that the Work Plan required under Items 3 to 7 of the Director’s Order includes the investigation of soil and groundwater quality throughout the subject property and requires the monitoring of groundwater quality and flow directions at all existing and new monitoring wells in order to better understand groundwater flow patterns and contaminant distribution. He said that this study would be deficient if it did not include data from both existing and new wells. He said the new wells required as part of the Groundwater Monitoring Program and Report under Items 8 and 9 are integral parts of this study.
Director’s Evidence and Submissions
8The Director disagrees. The Director argues that Items 8 and 9 require monitoring, recording and reporting and cannot be stayed due to the restrictions in s. 143(2)(a) of the Environmental Protection Act. The Director submits that the purpose of the Director’s Order is to better understand where contamination is coming from in order to inform further action. The Director submits that Items 8 and 9 do not constitute a study to determine whether contamination exists, but are to monitor the contamination, record its movements, and report back to the Director. The Director submits that Item 8 requires the Appellant to carry out groundwater monitoring using the 18 existing monitoring wells on the subject property, and any additional groundwater monitoring wells that that are drilled as part of the Work Plan. Item 9 then requires the Appellant to report on the results.
9In support of the Director’s arguments, the Director filed an affidavit affirmed by Jennifer Volpato on March 8, 2023. She is a professional engineer who works as a District Engineer for the MECP. She stated that Items 8 and 9 do not require the Appellant to undertake new investigations at the Site or install new wells. These are required under the Work Plan set out in Items 3 to 7 of the Director’s Order and are distinct from the Groundwater Monitoring Program and Report required under Items 8 and 9. She stated that new wells to be installed under the Work Plan will be included in the Groundwater Monitoring Program, but the Groundwater Monitoring Program and the Groundwater Monitoring Reports are not contingent upon the completion of the Work Plan. She said the Groundwater Monitoring Report is an independent reporting obligation for the existing wells and any new wells that may be installed. She said it is distinct from the Final Report required under the Work Plan.
FINDINGS AND ANALYSIS
10The determination of whether an interim stay may be granted regarding Items 8 and 9 is contingent on whether these items constitute an order to monitor, record and record, or whether they constitute a study. If they constitute an order to monitor, record, and record, then a stay is not permitted pursuant to s. 143(2)(a) of the Environmental Protection Act.
11Previous cases before the Tribunal have found that studying is akin to undertaking an investigation while monitoring is akin to the ongoing tracking of data; however, there can be overlap (see Rocha v. Director (Ministry of the Environment), [2014] O.E.R.T.D. No. 51 (“Rocha”), at paragraphs 27 and 45). To determine whether the work required in Items 8 and 9 constitutes an investigation or the ongoing tracking of data, it is valuable to examine what the Groundwater Monitoring Program is intended to do. The Groundwater Monitoring Program for the subject property is defined in the Provincial Officer’s Order, dated November 30, 2022, issued by Provincial Officer Jacqueline Lamport. It describes the Program in the following manner (emphasis added):
"Groundwater Monitoring Program" means a monitoring program for all existing on-site groundwater monitoring wells and must include the following key components, at minimum: (a) be overseen by the Qualified Person; (b) include the measurement of groundwater levels, the measurement of DNAPL, and the collection of groundwater samples at all existing on-site groundwater monitoring wells, and any newly installed groundwater monitoring wells necessary to address Recommendation No. 1 as part of the Work Plan; (c) the measurement of groundwater levels, the measurement of DNAPL, and the collection of groundwater samples shall occur on a quarterly basis (every three months in the spring, summer, fall and winter) for the first year and then semi-annually (every six months in the spring and fall) thereafter; (d) the groundwater samples shall be submitted to an accredited laboratory and analyzed for TCE and related breakdown products at minimum; and, (e) the Groundwater Monitoring Program shall occur for a minimum of two years and until written approval to discontinue the Groundwater Monitoring Program from the Provincial Officer is received by the Orderees.
As underlined above, the Program focuses on existing monitoring wells. Some new wells may be added, but the emphasis is on monitoring, recording, and reporting data from the existing wells. Based on the evidence before it, the Tribunal finds that the objectives of Items 8 and 9 include the need to track data and record and report to the Director using existing wells rather than to investigate or study the area.
12It is not disputed that there has been monitoring, recording and reporting in the past on the subject property using the existing wells. The Director has determined that more monitoring is required. As noted in Rocha, at paragraph 27, there can be some overlap between monitoring and studying. In other words, there may be a studying component to the monitoring work such as the collection of data from new wells. Monitoring is an important tool for providing information on whether remedial or preventative actions are needed. In the present case, this information informs the Director on making decisions on what actions, if any, must be taken to protect the health and safety of people in the area, prevent the impairment of the quality of the natural environment, and prevent injury or damage to any property or to any plant or animal life due to presence of the contamination. The purposes of Items 8 and 9 are to facilitate this process.
13Regarding the collection of data from new wells, the Tribunal finds that as Items 3 to 7 have been stayed on an interim basis, the issue of drilling new wells under the Work Plan has not been resolved. Monitoring, recording and reporting from those new wells obviously cannot be undertaken until the issues under Items 3 to 7 are resolved.
14The Tribunal finds that Items 8 and 9 as they relate to the existing wells on the subject property constitute an order to monitor, record, and report and, pursuant to s. 143(2)(a) of the Environmental Protection Act, they cannot be stayed.
ORDER
15The Tribunal orders that the Appellant’s motion for an interim stay is dismissed, in part. The Tribunal denies the Appellant’s request for an interim stay of Items 8 and 9 of the Director’s Order and, for greater clarity, orders that reference to “any newly installed groundwater monitoring wells necessary to address Recommendation No. 1 as part of the Work Plan” in the definition of Groundwater Monitoring Program is stayed pending the outcome of the Stay Motion.
“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.