Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 29, 2024
CASE NO(S).: OLT-23-000949
PROCEEDING COMMENCED UNDER subsection 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellants: Sharon Baker, Steve Baker, Tyler Baker, and Ssonix Products 2010 Inc.
Respondent: The Corporation of the City of St. Catharines
Description: Order to pay costs and expenses issued in relation to the prevention, elimination or amelioration of a spilled pollutant
Property Address: 20 Keefer Road
Municipality/Upper Tier: St. Catharines/ Niagara
OLT Case No.: OLT-23-000949
OLT Lead Case No.: OLT-23-000949
OLT Case Name: Baker v. St. Catharines (City)
Heard: November 22, 2024 by Video Hearing
APPEARANCES:
Parties/Participants*
Counsel
Sharon, Steve & Tyler Baker and Ssonix Products 2010 Inc.
Jessica Boily Adrian Cormier Taylor Rodrigues (Articling Student)
City of St. Catharines
Joanna Vince Richard Butler Amanda Spitzig Tanner Kyle (Articling Student)
Director, Ministry of the Environment, Conservation and Parks*
Sarah Valair Hannah Mariah West (Articling Student)
MEMORANDUM OF ORAL DECISION DELIVERED BY F. LAVOIE AND G. POLITIS ON NOVEMBER 22, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a second Case Management Conference (“CMC”) for an appeal pursuant to subsection 100.1(7) of the Environmental Protection Act, RSO 1990 c E.19 (“EPA”) on November 22, 2024, commenced by Sharon Baker, Steve Baker, Tyler Baker and Ssonix Products 2010 Inc. (“Appellants”). The proceeding arises from the issuance of a Municipal Cost Recovery Order by the City of St. Catharines (“City”) in relation to the prevention, elimination, or amelioration of a spilled pollutant at a hazardous waste facility located at 20 Keefer Road (“Subject Property”).
CITY’S AND APPELLANTS’ MOTIONS
2The CMC was scheduled on an urgent basis to deal with preliminary matters prior to the Merit Hearing scheduled to commence on Monday, November 25, 2024. Both the City and Appellants had filed Notice of Motions with the Tribunal on November 19, 2024, and November 21, 2024, respectively.
3The City’s Motion seeks, among other things, an order for the following:
a. Confirming that the explosion and fire of January 12, 2023, at the Subject Property, and the release of materials onto the ground and air at the Subject Property and neighbouring lands was a “spill”, pursuant to Part X of the EPA;
b. Confirming the incident described immediately above caused “adverse effects” pursuant to s. 1(1) of the EPA;
c. Confirming Ssonix Products 2010 Inc. and Steve Baker were, immediately before the Spill, owners of the thing that was discharged, a person having charge, management, and control of the thing that was discharged and/or an employee or agent of the person having charge, management or control of the thing that was discharged; and
d. That Ssonix Products 2010 Inc. and Steven Baker, jointly and severally, reimburse the City of St. Catharines $918,324.33, payable within 60 days, having conceded that the amount is reimbursable and supported.
4In other words, the City’s Motion seeks just under a quarter of the $4,155,116.21 Cost Recovery Order from two of the four Appellants. The Merit Hearing would then deal with the remaining issues for the remaining Appellants and the quantum of the approximately three-quarters remaining of the total Cost Recovery Order.
5The Appellants’ Motion seeks, among other things, an order for the following:
a. A stay of these proceedings until the conclusion of the related criminal proceedings;
b. In the alternative, an Order striking the Reply Witness Statement of Chief Upper and portions of the Reply Witness Statements of Mitchell Gibbs, Steve Tylliros, and Michael Ion; or
c. In the further alternative, an Order adjourning the Merit Hearing.
6At the CMC, the Tribunal sought submissions from the Parties on its proposal to grant relief from subrules under Rule 10 of the Tribunal’s Rules of Practice and Procedure (“Rules”), pursuant to Rule 1.6 of the Rules, for both Motions. Both Motions were well under the 15 days required by Rule 10.5 of the Rules, and neither Party had responded to the other’s Motion.
7The Parties consented to the Tribunal’s use of Rule 1.6 of the Rules to provide relief to all Parties from subrules under Rule 10.
8The Tribunal asked the Parties for submissions as to when each Motion would be heard. For the City, Mr. Butler advised that they would be ready for their Motion to be heard on the first day of the Merit Hearing. For the Appellants, Ms. Boily was ready to proceed at this CMC. The City objected, noting that the Appellant’s Notice of Motion was deemed to have been served today, having been served electronically after 4:30 p.m. on November 21, 2024.
9The Tribunal finds, naturally, that it would be unfair to the City to hear the Appellants’ Motion with virtually no notice to the City. The Tribunal directs both Motions to be heard on the first day of the Merit Hearing.
ONE-DAY ADJOURNMENT OF MERIT HEARING
10Counsel to the Appellant, Ms. Boily, requested a one-day adjournment of the Merit Hearing, with a new start date of Tuesday, November 26, 2024. Ms. Boily provided reasons for this adjournment but requested that these reasons be kept confidential. The City consented to this request.
11Having heard Ms. Boily’s reasons, the Tribunal is of the view that they are intimate personal matters for which the desirability of avoiding disclosure thereof in the interests of the persons affected outweighs the desirability of adhering to the principle that hearings be open to the public. Accordingly, pursuant to Rule 22.1 of the Rules and section 9(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S.22, the portion of the hearing where these reasons were provided was held in the absence of the public, and particulars withheld from this Decision.
12The Tribunal granted the one-day adjournment of the Merit Hearing, with a new start date of Tuesday, November 26, 2024.
MATTERS RELATING TO THE PROCEDURAL ORDER
13The Tribunal sought submissions from the Parties regarding the status of the Hearing Plan and Joint Book of Documents, both of which were required to be submitted on or before November 18, 2024, pursuant to the Procedural Order.
14With regard to the hearing plan, Counsel for the City, Ms. Vince, proposed that the joint witness statement of Mr. Gibbs and Mr. Tylliros be heard as a panel. Ms. Boily objected to having them as a panel based on her view that Mr. Gibbs and Mr. Tylliros are solely participant experts and that it would be more appropriate to deal with this issue during the hearing. Ms. Vince advised that her proposal for a panel benefited the Appellants from a procedural fairness perspective by allowing those two individuals to be cross-examined at the same time.
15Given the Parties’ disagreement as to the form of these two witnesses’ testimony, the Tribunal directs the Parties to provide two hearing plans no later than Tuesday, November 26, 2024, each addressing the alternative scenarios.
16With regard to the Joint Book of Documents, the Tribunal received from the Parties a Joint Book of Documents consisting of over one thousand individual files, which were not sequentially ordered in the Tribunal’s information system. In order to ensure an efficient hearing, the Tribunal directs the Parties to resubmit the Joint Book of Documents as one or multiple volumes no later than Tuesday, November 26, 2024.
ORDER
17THE TRIBUNAL ORDERS the following:
The Merit Hearing is adjourned by one day until Tuesday, November 26, 2024, and reasons for the adjournment are withheld pursuant to Rule 22.1 of the Tribunal’s Rules of Practice and Procedure ;
The Tribunal grants exception from Rule 10 for each Party’s Motion, pursuant to Rule 1.6 of the Tribunal’s Rules of Practice and Procedure;
The Parties will provide two hearing plans, no later than November 26, 2024, each addressing the alternative scenarios of hearing from a panel or two witnesses, Mr. Mitchell Gibbs and Mr. Steve Tylliros;
The Parties will provide a Joint Book of Documents as one or multiple volumes.
The two Motions will be heard on the first day of the Merit Hearing, being Tuesday, November 26, 2024, at 10 a.m.
18This Panel is seized.
“F. Lavoie”
F. LAVOIE
MEMBER
“George Politis”
GEORGE POLITIS
MEMBER
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.