Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 16, 2023
CASE NO(S).: OLT-23-000103
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: 642762 Ontario Inc. (File No. 007974)
Respondent: Director, Ministry of the Environment, Conservations and Parks
Subject of appeal: Order to perform work to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant
Reference No.: 1-139396623
Property Address/Description: 10 Kingsmill Avenue
Municipality/Upper Tier: City of Guelph, County of Wellington
OLT Case No.: OLT-23-000103
OLT Case Name: 642762 Ontario Inc. v. Ontario (Environment, Conservation and Parks)
Heard: August 2, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Director, Ministry of the Environment, Conservation and Parks
Nadine Harris
Madeline Ritchie
642762 Ontario Inc.
John Georgakopoulos
Bianca Salive
MEMORANDUM OF ORAL DECISION DELIVERED BY David Brown ON August 2, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Case Management Conference (“CMC”) in respect of an appeal filed by 642762 Ontario Inc. (the “Appellant”) pursuant to s. 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (the “EPA”), against Director’s Order No. 1-139396623 (the “Order”) issued by the Director(the “Director”), 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 10 Kingsmill Avenue.
2An Affidavit of Service sworn on July 4, 2023, was filed with the Tribunal attesting to the giving of notice of these proceedings in accordance with the directions of the Tribunal.
3The Tribunal received requests for Party Status from the City of Guelph (“City”), the Florence Lane Residents Group (“FLRG”), and Electrolux Home Care Products Canada Inc. (“Electrolux”) (collectively, the “Requestors”).
4Mr. Georgakopoulos responded that the Appellant does not oppose the requests for Party Status subject to the understanding that the Requestors are considered non-appellant parties as set out in the Tribunal’s Rules of Practice and Procedure (the “Rules”).
5Ms. Harris advised that the Director does not oppose the requests from the City and the FLRG.
6Barry Weintraub attended on behalf of Electrolux and explained that his client is seeking Party Status as they have been named in a civil lawsuit filed by the Appellant and the outcome of this Appeal will have a material impact on those proceedings. Mr. Weintraub advised that Electrolux wishes to be granted Party Status so that they might be afforded the opportunity to respond to any evidence that may be tendered by the Appellant or the Director, in the course of the proceedings, that might involve or prejudice his client. He noted that Electrolux does not have a specific interest in the Order other than how it impacts the current civil proceedings.
7Ms. Harris advised that the Director opposes the request from Electrolux as the interests of Electrolux are related to a separate matter before the Tribunal related to a Certificate of Property Use that was granted by the MECP to the City. The proceeding before the Tribunal relates to a Director’s Order and has no impact or relevance to Electrolux.
8Section 145(1) of the EPA authorizes the Tribunal to add parties to a proceeding and Rule 8.2 of the Rules provides that the Tribunal may add a party if it is deemed that their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding. Pursuant to the Rule 8.3 of the Rules, the Requestors were advised that they are considered non-appellant parties and as such, are not permitted to raise or introduce a new issue in the proceeding. For further clarification, the Requestors were advised that they must “shelter” under an existing issue that has been raised by the Appellant in this instance.
9The Requestors acknowledged that, should they be granted Party Status, Rule 8.3 of the Tribunal’s Rules will apply to their participation in the proceedings.
10Having considered the Requests for Party Status and the submissions of the Requestors and the Parties, the Tribunal finds that the participation of the three Requestors is necessary for the Tribunal to adjudicate effectively and completely on the issues in this proceeding. The Tribunal grants Party Status to the Requestors.
11The Parties submitted a draft Procedural Order (“PO”) which includes an Issues List (“IL”). The Parties requested a ten-day hearing for considering the merits of the Appeal.
12In consideration of the draft IL, the Tribunal noted that the Director has indicated concerns with two issues:
Issue 3: Is the Director’s Order an abuse of the Ministry’s regulatory power?
Issue 4: Is the Director's Order the equivalent of a strategic lawsuit against public participation and/or an attempt to prevent the public from exercising rights under the Environmental Bill of Rights, 1993?
13Mr. Georgakopoulos submitted that the issues reflect those issues identified in the Notice of Appeal and are sequential in nature in that the answer to each issue naturally leads to the consideration of the next issue.
14Ms. Harris proffered that the issues raised in Issue 3 and 4 are not matters that are within the jurisdiction of the Tribunal to adjudicate as set out in s. 145(2) of the EPA. The matters identified are not matters to be adjudicated in this proceeding. A hearing held under s. 145(2) of the EPA is a hearing de novo and the Tribunal is to hear the evidence and make a decision in place of the Director. The decision of the Director and any motives that the Director may or may not have had are not relevant to the Tribunal’s consideration of the appeal. The Tribunal is to make a decision based on the evidence and can order that the Director’s Order is to stand, be revoked, or be amended. Ms. Harris submitted that Issues 3 and 4 do not apply to this consideration and should be struck from the IL.
15Ms. Thornton advised that the City supports the position of the Director.
16The Tribunal advised that issues should be framed in a neutral context such that opposing parties would lead evidence to support their respective position relative to the issue identified. The Tribunal finds that the issues in question are framed in what the Tribunal considers a leading manner. The Tribunal, having reviewed the Notice of Appeal, notes that the issues were included within the Notice and finds that these are matters that are worthy of adjudication. The issues are to be revised to place the issue before the Tribunal in an appropriate form and directed the Parties to revise the issues to a neutral premise and provided specific direction to that effect for their consideration. The Tribunal recommended that Issue 3 could be revised to read, “Is the Director’s Order within the Ministry’s regulatory power?” and further recommended providing some additional context as to which section(s) of the EPA are relevant. Similarly, Issue 4 could be revised to read, “Does the Director's Order have appropriate regard for the Environmental Bill of Rights, 1993 in respect to the rights of the public?”.
17The Tribunal scheduled a further CMC by video hearing to finalize the PO and IL for Friday, October 20, 2023, at 10 a.m. and directed the Parties to provide a final PO and IL to the Tribunal on or before Friday, October 13, 2023.
18The Tribunal scheduled a nine-day hearing for the consideration of the merits of the appeal by video hearing commencing on Tuesday, April 9, 2024, at 10 a.m.
19The Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
Friday, October 20, 2023, at 10 a.m. (One-Day CMC Hearing)
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373
Audio-only access code 979-388-733
Tuesday, April 9, 2024, at 10 a.m. (Nine-Day Merit Hearing)
GoTo Meeting: https://meet.goto.com/278736685
Access code: 278-736-685
Audio-only telephone line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391
Audio-only access code 278-736-685
20Parties 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
21Persons 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.
22Individuals 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.
ORDER
23THE TRIBUNAL ORDERS THAT the City of Guelph, the Florence Lane Ratepayers Group, and Electrolux Home Care Products Canada Inc. are granted Party Status in these proceedings.
24AND THAT a further Case Management Conference is scheduled for Friday, October 20, 2023, at 10 a.m. by video hearing as set out in paragraphs 19 to 22 inclusive in this Order.
25AND THAT a hearing of the merits of the appeal is scheduled for nine days commencing Tuesday, April 9, 2024, at 10 a.m. by video hearing as set out in paragraphs 19 to 22 inclusive in this Order.
“David Brown”
DAVID BROWN
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.