Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 16, 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.: OLT-23-000104
OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)
Heard: September 26, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Director, Ministry of the Environment, Conservation and Park
Nadine Harris
Isabelle O’Connor
Margaret McCloskey (articling student)
Sherwood Forest Investments (Guelph) Ltd.
Tamara Farber
Vanessa De Sousa
Electrolux Home Care Products Canada Inc.
Adrienne Zaya
Barry Weintraub
Florence Lane Residents Group Inc.
Mark Zwawinski*
City of Guelph
Allison Thornton
Ian White (articling student)
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a case management conference (the “CMC”) of 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 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 (i) 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; and (ii) a further CMC which was subsequently scheduled for March 10, 2023 (the “Second CMC”), at which the Appellant brought a motion for 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 a subsequent written motion to be held (the “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 subsequently brought the Stay Motion to stay Items 3 to 7 of the Order, pending the outcome of a hearing on the merits. The Stay Motion was opposed by the MECP. On July 21, 2023, the Tribunal issued a decision denying the Stay Motion.
8At the CMC, (i) each of Electrolux Home Care Products Canada Inc. ("Electrolux"), Florence Lane Residents Group Inc. (“Florence Lane”) and the City of Guelph (the “City”) requested Party Status; (ii) the Parties discussed the identification of issues to be adjudicated at a hearing; and (iii) the Parties provided an update to the Tribunal regarding settlement discussions.
STATUS REQUESTS
9Electrolux submitted that its request for Party status was in order to permit it to address any issues concerning the Site and a neighbouring property located at 10 Kingsmill Avenue, as Electrolux is the successor company to a former owner of both properties. Electrolux is also a Party in two related matters currently before the Tribunal, namely OLT-23-000103 and OLT-22-004659, and it is party to a civil lawsuit in respect of the Site. Its request for Party status was unopposed. The Tribunal found that Electrolux has a genuine and direct interest in the proceeding, will be impacted by the Tribunal's decision, and will assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds to add Electrolux as a Party and granted it Party status, as requested.
10Florence Lane is a collective of residents of the community located downgradient from the Site and submitted that its request for Party status was in order to permit it to address any issues concerning contamination from the Site and its impact on such downgradient communities. Florence Lane is also a Party in OLT-23-000103. Its request for Party status was unopposed. The Tribunal found that Florence Lane has a genuine and direct interest in the proceeding, will be impacted by the Tribunal's decision, and will assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds to add Florence Lane as a Party and granted it Party status, as requested.
11The City is the owner of 200 Beverley Street which neighbours the Site. The City submitted that its request for Party status was in order to permit it to address any issues relating to 200 Beverley Street as well as to address questions regarding the conduct of the City as raised in the appeal. Its request for Party status was unopposed. The Tribunal found that the City has a genuine and direct interest in the proceeding, will be impacted by the Tribunal's decision, and will assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds to add the City as a Party and granted it Party status, as requested.
SETTLEMENT DISCUSSIONS AND ISSUES
12The Parties provided an overview of their discussions regarding settlement, indicating that some discussions had been commenced which may lead to the resolution of certain issues. The Parties advised that they would prefer to continue discussions and defer consideration of a draft procedural order (“PO”) and issues list to another CMC.
SCHEDULING OF NEXT CMC
13The Parties then discussed the scheduling of a further CMC to consider a draft PO and issues list. The Tribunal scheduled a subsequent CMC on Monday, October 30, 2023, at 10 a.m. by video.
ORDER
14The Tribunal orders that each of Electrolux, Florence Lane, and the City is a Party in this proceeding.
15The Tribunal orders that a subsequent CMC will be held by video hearing on Monday, October 30, 2023, at 10 a.m.
16Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/344779885
Access code: 344-779-885
17Parties 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
18Persons 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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is 344-779-885.
19Individuals 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.
“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.