Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 21, 2023

CASE NO(S).: OLT-23-000104

PROCEEDING COMMENCED UNDER section 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, 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

Reference No.: 1-139396577

Property Address/Description: 490 York Road

Municipality/Upper Tier: City of Guelph, County of Wellington

OLT Case No.: 23-000104

OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)

Heard: in writing

APPEARANCES:

Parties

Counsel

Director, Ministry of the Environment, Conservation and Parks

Nadine Harris Madeline Ritchie

Sherwood Forest Investments (Guelph) Ltd.

Tamara Farber Vanessa De Sousa

DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision arises from a written motion (the “Stay Motion”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal by Sherwood Forest Investments (Guelph) Ltd. (the “Appellant”) concerning Director’s Order No. 1-139396577 (the “Order”) issued by the Ministry of the Environment, Conservation and Parks (“MECP”) prescribing certain 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, Guelph (the “Site”).

2The Order provides for nine (9) action items as follows:

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.

3The Appellant and MECP agree that Items 1 and 2 of the Order have been completed.

4At a prior case management conference held on March 1, 2023 (the “First CMC”), the Appellant requested an interim stay of Items 3 to 7 of the Order pending the outcome of the Stay Motion, as the dates for completion of such items were imminent and would occur prior to the Stay Motion. At a further CMC, which was subsequently scheduled for March 10, 2023 (the “Second CMC”), the Appellant requested an interim stay of Items 8 and 9 of the Order pending the outcome of the Stay Motion.

5At the First CMC, the Tribunal granted an interim stay of Item 3 pending the outcome of this Stay Motion, as the date for completion of Item 3 was imminent. The Tribunal found that a separate interim stay respecting Items 4 through 7 of the Order was unnecessary at the time, as the requirement for completion of such Items was only triggered following the completion of Item 3.

6At the Second CMC, the Tribunal dismissed the Appellant’s motion for an interim stay of Items 8 and 9 of the Order, provided however that the incorporation of “any newly installed groundwater monitoring wells necessary to address Recommendation No. 1 of the Work Plan” was stayed pending the outcome of the Stay Motion.

7The Appellant has now brought the Stay Motion to stay Items 3 to 7 of the Order (the “Stay”), pending the outcome of a hearing on the merits. The Stay Motion is opposed by the MECP.

LEGISLATION

8The principle legislation to be considered in connection with this matter is contained in s. 140(1) and s. 143(1) to (3) of the Environmental Protection Act (“EPA”), which read as follows:

Appeal of order

140 (1) A person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within fifteen days after service upon the person of a copy of the order, require a hearing by the Tribunal.

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. 2001, c. 17, s. 2 (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.

The powers of the Tribunal to grant relief of this nature are contained in s. 10 of the Ontario Land Tribunal Rules of Practice and Procedure (with subsection 10.3 specifically permitting motions to be held in writing in accordance with the terms thereof), and ss. 8 and 9 of the Ontario Land Tribunal Act which grant the Tribunal (i) the authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, subject to any limitations in applicable legislation; and (ii) to make such orders as are necessary or incidental to the exercise of its powers.

9In the event that the Tribunal determines that it has the authority to grant the Stay pursuant to s. 143 of the EPA, it must then consider whether the Stay should be granted based upon the test (“MacDonald test”) for granting a stay, as established by the Supreme Court of Canada in RJR MacDonald v Canada (A.G.) 1994 CanLII 117 (SCC), [1994] 1 SCR 311, which requires the moving party to establish each of the following:

(i) there is a serious issue to be decided at the hearing;

(ii) the moving party will suffer irreparable harm if the stay is not granted; and

(iii) the balance of convenience favours the granting of the stay pending the outcome of a hearing on the merits.

Issues

10Accordingly, the issues to be determined by the Tribunal with respect to this Stay Motion are as follows:

(i) whether the Tribunal has the authority to grant the Stay pursuant to Section 143 of the EPA; and

(ii) if the answer to the first issue is in the affirmative, whether the Stay should be granted based upon the MacDonald test, in consideration of the following factors:

(a) is there is a serious issue to be decided at the hearing in respect of this matter;

(b) will the Appellant suffer irreparable harm if the Stay is not granted; and

(c) whether the balance of convenience favours the granting of the Stay pending the outcome of a hearing on the merits.

SUBMISSIONS

11With regard to the first issue, the Appellant submitted that the Tribunal is authorized to grant a stay of the Order pursuant to s. 143(2) of the EPA, on the basis that (i) the Order is not of the nature set forth in s. 143(2)(a) or (b) of the EPA, and (ii) the granting of a stay in these circumstances would not 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, in each case contrary to s. 143(3) of the EPA. The Appellant also made reference to the submissions of its geoscientist, Tim Dickson of Ramboll Canada, who is of the view that chlorinated solvent impacts to soil and groundwater at the Site occurred several decades ago and migrated over time to their current latent extent. Mr. Dickson also indicated that volatile organic compound concentrations in groundwater at the Site have decreased significantly over time.

12The MECP concurred with the Appellant’s submissions that the Tribunal is authorized to grant a stay of the Order pursuant to s. 143(2) of the EPA, specifically stating that there is insufficient evidence at this time to meet the threshold test in s. 143(3) of the EPA.

13The Appellant has submitted that the contamination at the Site has migrated from a neighbouring property owned by the City of Guelph (the “City”) located to the west of the Site at 200 Beverly Street (the “City of Guelph Site”). The MECP has recently issued a Certificate of Property Use for the City of Guelph Site (the “CPU”). The Appellant is appealing the CPU in a separate proceeding (the “CPU Appeal”) and is critical of the CPU due to its failure to adequately address the potential migration of contaminants from the City of Guelph Site onto the Site and beyond. The Order was issued after the Appellant received leave from the Tribunal to commence the CPU Appeal.

14With regard to the first prong of the MacDonald test, regarding whether there is a serious issue to be adjudicated at a hearing, the Appellant submitted that there are several serious issues to be adjudicated in this matter, specifically (i) procedural fairness; (ii) collateral attack of an order of the Tribunal granting leave to commence the CPU Appeal; (iii) multiplicity of proceedings; and (iv) substantive elements associated with the order. The MECP did not contest the Appellant’s submissions in this regard.

15Concerning the second prong of the MacDonald test, regarding whether the moving party will suffer irreparable harm, the Appellant submitted that it will suffer irreparable harm if the Stay is not granted, as it will be required to incur substantial costs in the range of $150,000 to $200,000 to comply with the Order, most of which will be incurred before a hearing in respect of the Order can take place. In this regard, the Appellant has submitted that its resources are limited, the Site is its only property, and rental income is its only source of revenue. The Appellant also argued that it will suffer irreparable harm as a result of the divergence of its funds and consultant resources away from the CPU Appeal if it is required to comply with the Order. In addition, the Appellant submitted that its right to appeal the Order and certain aspects of its CPU Appeal regarding offsite investigations would be rendered moot in the absence of the Stay, as all or substantially all of the work set forth in the Order will have needed to be completed before a hearing can be held to determine the validity of the Order or the CPU, as applicable. Lastly, the Appellant noted that compliance with the Order would generate new information during the course of the CPU Appeal which may disrupt witness testimony and evidence and cause potential delays in such proceeding.

16The MECP disputed each of the Appellant’s contentions regarding the second prong of the MacDonald test and submitted that it did not adequately establish irreparable harm. In particular, the MECP noted that the Appellant has not provided any specific context surrounding its ability to fund the costs associated with the Order. In addition, the MECP noted that the Appellant’s cost estimate of $150,000 to $200,000 appeared to include costs associated with Items 8 and 9 of the Order which are not the subject of the requested Stay - although this was disputed by the Appellant in its reply. The MECP also made submissions regarding ongoing civil litigation to which the Appellant is party, pursuant to which it is seeking to recover damages for contamination at the Site, including with respect to compliance with applicable governmental orders. Finally, the MECP argued that the Appellant had not established irreparable harm through its submissions with respect to either (i) the divergence of funds and consultant resources from the CPU Appeal; or (ii) the rendering of its appeal of the Order or elements of the CPU Appeal as moot.

17In connection with the third prong of the MacDonald test, the Appellant submitted that it would suffer greater harm if the Stay is not granted than the harm which the public interest would suffer in the event that the Stay is granted. In support of its submissions, the Appellant referenced the “necessary diversion of both financial and human capital that would be required” to comply with the Order in the absence of the Stay.

18The MECP disagreed with the Appellant’s submissions regarding the balance of convenience test, arguing that the granting of the Stay would substantially prejudice the public interest. As background, the MECP submitted that since 2020, four rounds of indoor air monitoring in residential properties downgradient of the Site have identified the presence of trichloroethylene (“TCP”) contamination inside of homes. The MECP further noted that TCE is a known carcinogen, is highly volatile, can evaporate from soil and groundwater and can migrate into buildings. The source of the TCE is currently unknown. In order to determine the source, and thereby better assess and mitigate health risks, the MECP argues that it requires fulsome investigations of properties which are upgradient from the residential community in question, which have a known history of commercial use of TCE and where TCE has been observed in soil and groundwater. The Site has been identified as one such potential source due to its location, industry history and known contamination. Accordingly, the MECP submitted that the work to be undertaken by the Order is critical in minimizing any delays in identifying the source of the TCE contamination, which will in turn directly impact the ability of the MECP to further assess and properly address the contamination in the downgradient community.

Analysis

Tribunal’s Authority to Grant Stay

1Evidence presented to the Tribunal supports the contention that the contamination at the Site is both historic and latent in nature. Further, although TCE has been found to be present in the indoor air of homes in the region, the Wellington-Dufferin-Guelph Public Health Unit (“Public Health”) has concluded that the known health risks associated with such findings are currently low. Accordingly, the Tribunal accepts the submissions of the Appellant and the MECP that the contamination at the Site does not presently rise to the threshold of posing danger to the health or safety of any person, as contemplated in s. 143(3)(a) of the EPA.

2No evidence was submitted to the Tribunal which indicates that the granting of the Stay would result in either (i) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or (ii) injury or damage or serious risk of injury or damage to any property or to any plant or animal life, contrary to either s. 143(3)(b) or s. 143(3)(c) of the EPA.

3Accordingly, the Tribunal finds that it is authorized to grant the Stay pursuant to s. 143(2) of the EPA on the basis that: (i) the Order is not of the nature set forth in s. 143(2)(a) or (b) of the EPA; and (ii) the granting of the Stay in these circumstances would not 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, in each case contrary to s. 143(3) of the EPA.

MacDonald Test

4As the Tribunal has determined that it has the authority to grant the Stay pursuant to s. 143 of the EPA, it must consider whether the Stay should be granted based on the three-prong test set forth in RJR MacDonald v Canada (A.G.). The onus is on the Appellant to establish that each element of this test has been met.

5The first prong of the MacDonald test requires an analysis of whether there is a serious issue to be adjudicated at a hearing. The Supreme Court in RJR MacDonald v Canada (A.G.) stated that this determination should be made on the basis of an extremely limited review of the case on the merits and that, as a general rule, the analysis will advance to the second and third prongs of the test unless the case on the merits is “frivolous or vexatious” or the constitutionality of the matter is purely a question of law. Thus, the threshold to be applied in determining whether a serious issue is to be adjudicated at a hearing is very low. In this regard, the Appellant denoted several serious matters which it is seeking to adjudicate at a hearing, which were not contested by the MECP. The Tribunal is not of the view that these issues raised by the Appellant are frivolous or vexatious in nature, and accordingly, the Tribunal finds that there are serious issues to be determined at the hearing, in satisfaction of the first prong of the MacDonald test.

6The Supreme Court of Canada in RJR MacDonald v Canada (A.G.) held that the second stage of the test, concerning whether the moving party will suffer irreparable harm in the absence of a stay, requires determination as to “whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if an eventual decision on the merits does not accord with the result of the interlocutory application”. The Court further held that the term “irreparable” refers to the nature of the harm suffered, rather than its magnitude, and consists of harm that either cannot be quantified monetarily or cannot be cured, normally because one party cannot collect damages from another.

7In this regard, the Tribunal concludes that the Appellant has not provided detailed submissions as to the proportionate effect which such costs would have on the Appellant’s overall financial situation, although it did provide a description of its ongoing maintenance obligations at the Site and submitted that compliance with the Order would be very onerous from a financial point of view. However, the Tribunal notes that the extent of the costs is not determinative, as RJR MacDonald v Canada (A.G.) stipulates that “irreparable harm” is to be based on the nature of the harm in question, rather than its magnitude. Accordingly, the matter to be determined in this case is not necessarily the extent of the costs to comply with Items 3 to 7 of the Order, but whether, by their nature they constitute “irreparable harm” to the Appellant. In the context of whether the harm suffered is “irreparable”, the Appellant relied upon the fact that it would be unable to recover any of its costs against the MECP. In response, the MECP pointed to ongoing civil litigation to which the Appellant is party and pursuant to which it is seeking recovery against certain third parties of its damages associated with the contamination at the Site (including indemnification for any governmental orders issued in respect of the contamination at the Site). Both the Appellant and the MECP concurred in their submissions that there was no certainty of recovery pursuant to this litigation given that the claims remain ongoing. However, the uncertainty associated with the recovery process does not necessarily preclude the determination that the harm is not irreparable. The Supreme Court held as follows in RJR MacDonald v Canada (A.G.): “The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration.” Accordingly, although there remains uncertainty with respect to the nature and extent of recovery, the Appellant has claimed that it is entitled to indemnification and damages in the ongoing litigation. This position taken by the Appellant has the effect of undermining its argument that its costs are “irreparable”, as the prospect of recovery is not only possible but is being actively pursued by the Appellant.

8With respect to the divergence of funds and consultant resources from the CPU Appeal, the Tribunal concurs with the MECP’s submissions that there is insufficient evidence to establish irreparable harm in this regard. Specifically, the Tribunal is unable to determine the extent to which the allocation of funds and resources towards the Order would negatively impact the CPU Appeal. Further, the CPU Appeal is a matter which has been voluntarily undertaken by the Appellant, and thus any consequent obligations – financial or otherwise - are essentially self-imposed and cannot be relied upon to establish irreparable harm in the context of compliance with the Order.

9The Tribunal also considered the Appellant’s argument that both its appeal of the Order and certain aspects of the CPU Appeal would be considered moot in the absence of the Stay. The basis for this position is that the majority of the work required by the Order will have been completed prior to the opportunity to conduct a hearing regarding the validity of the Order and/or the CPU, as applicable. The Appellant referred to the decision of the Environmental Review Tribunal (“ERT”) in ArcelorMittal Canada Inc. v Ontario (Environment, Conservation and Parks), 2019 CanLII 62107 (ON ERT), which held that mootness is a valid concern and can rise to the level of irreparable harm. However, in ArcelorMittal Canada Inc. v Ontario (Environment, Conservation and Parks), the ERT also stated that “Not all cases where an order deadline falls before the hearing date will automatically qualify as showing irreparable harm based on mootness.” This is consistent with s. 143(1) of the EPA which provides that the commencement of a proceeding to appeal an order does not automatically result in a stay other than in specified circumstances. In other words, while the EPA sets forth an appeal process, it also contemplates ongoing compliance with the order which is the subject of the appeal in the intervening period. Furthermore, in this case, no evidence was submitted to the Tribunal regarding the timing for completion of the various elements of the Order and it is unclear the extent to which some or all of them would be completed prior to the scheduling of a hearing. Accordingly, while there may be certain circumstances where mootness would rise to the level of irreparable harm, there is no presumption of such in the context of an appeal under s. 143 of the EPA and the Tribunal does not find that the Appellant has discharged its onus to establish irreparable harm as a result of potential mootness in these circumstances.

10It is also worthy of note that the Appellant argued that compliance with the Order would generate new information during the course of the CPU Appeal which could disrupt witness testimony, evidence and timing of such appeal. The Tribunal does not find this argument compelling. Any new information derived from compliance with the Order would only assist in determining the true nature and source of the TCP and should be welcomed in order to further the identification and rectification of the contamination. Any consequent delays or inconveniences do not rise to the level of irreparable harm in this context.

11Given that the Tribunal has found that the Appellant has failed to discharge its onus to establish irreparable harm under the second prong of the MacDonald test, it is not strictly necessary to render a finding with respect to the third and final prong of the test, concerning the balance of convenience. However, the Tribunal wishes to do so as the Ontario Court of Appeal in Circuit World Corp. v. Lesperance 1997 CanLII 1385 (ON CA), [1997] CarswellOnt 1840 indicated that the three-part test should be assessed collectively, noting “The strength of one may compensate for weakness of another.”

12The third prong of the MacDonald test requires consideration of the “public interest” in the context of the harm suffered by the MECP, as explained by the Supreme Court as follows:

In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility.Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

13In this case, it is clear that the MECP is charged with the duty of promoting or protecting the public interest, and the Order has been issued pursuant to that responsibility. Accordingly, in considering the balance of convenience test involving the MECP, consideration must be given to whether the granting of a stay would cause more harm to the public interest than the failure to grant such a stay would cause to the moving party, and in most cases it should be assumed that “irreparable harm to the public interest would result from the restraint of that action”. In Baker v. Ontario (Director, Ministry of the Environment) [2013] O.E.R.T.D. No. 21, the Tribunal quoted the above language from RJR MacDonald v Canada (A.G.) and confirmed its applicability to a stay motion of an order issued under the EPA. Accordingly, the starting point for the Tribunal is to assume that the Stay would result in irreparable harm to the public interest. The query then becomes whether, on a balance of convenience, the Appellant would suffer greater harm if the Stay is not granted.

14There can be no doubt that the Appellant will suffer harm in the event that the Stay is not granted, both in terms of time and financial commitment to comply with the Order pending an outcome of a hearing on the merits. However, the Tribunal does not consider such harm to outweigh the harm that would be suffered by the public interest if the source of the TCE is not identified and managed as efficiently as possible. TCE is highly volatile and a known carcinogen and the Tribunal accepts the submissions of the MECP that compliance with the Order is imperative to the identification of the source of the TCP and consequent assessment and management of risks to the downgradient community. In this regard, the Appellant challenged the findings and recommendations of MECP expert Jennifer Volpato regarding the presence of TCE on the basis that (i) there is no urgency to identify the source of the TCE as the MECP has known about the contamination for several years without taking action with respect either the Site or certain neighbouring properties; (ii) the results of the groundwater monitoring program mandated by the Order should be received and assessed before finalizing the balance of the work plan required by the Order; and (iii) the Order does not accurately reflect the source of the contamination, which the Appellant submits is flowing from a neighbouring property at 200 Beverly Street. The Tribunal has considered these submissions and reviewed the cross-examination of Ms. Volpato and the Appellant’s witness Mr. Dickson in this regard. Although the Tribunal agrees that the MECP has been aware of contamination in the area for several years, Ms. Volpato stated that it was not until 2022 that the MECP concluded that TCE soil vapour intrusion from upgradient contaminated properties such as the Site could not be ruled out in the downgradient residential community. Accordingly, the Tribunal does not agree that past inaction or delayed action on the part of the MECP prior to 2022 is indicative of the urgency of the work now required by the Order, based upon currently available information. Furthermore, the Appellant made multiple submissions regarding the requirements (or lack thereof) and other data available with respect to neighbouring properties. These neighbouring properties are all subject to their own individual considerations to which the Tribunal is not privy, and the Tribunal finds that the extent to which they may be impacted by contamination and/or remediation does not have any direct bearing on the Stay Motion. In response to the other challenges to Ms. Volpato’s report:

(i) no expert evidence was presented which supported the Appellant’s contention that the results of the groundwater monitoring program were necessary in order to determine the balance of the work program, and accordingly, the Tribunal is unable to make any findings in this regard; and

(ii) the Appellant’s argument that the source of the contamination is 200 Beverley Street was undermined by the evidence of its geoscientist Mr. Dickson, who testified that the source may indeed be located at the Site which has not been fully investigated.

15While the available evidence does not currently identify the Site as the conclusive source of the TCE vapours in neighbouring homes, the matter is still concerning and, on a balance of convenience, favours the taking of such actions as will assist in identifying the source and extent of such contamination as soon as practicable. Thus, although the Tribunal has already found that the Appellant has not discharged its onus to establish irreparable harm, pursuant to the second prong of the MacDonald test, even if such irreparable harm is assumed, the Tribunal is of the view that the Appellant has not discharged its onus of establishing that the failure to grant the Stay would cause more harm to the Appellant than the harm that would be caused to the public interest in the event the Stay is granted, as considered on a balance of convenience.

ORDER

16The Tribunal orders that the Stay Motion be denied.

17This Member is not seized.

“Jennifer Campbell”

JENNIFER CAMPBELL

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.