Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 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: February 21, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Sharon Baker, Steve Baker, Tyler Baker and Ssonix Products 2010 Inc.	J. Boily, A. Cormier
City of St. Catherines	J. Vince, A. Spitzig, R. Butler

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON FEBRUARY 21, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) of this matter. This is a matter under the Environmental Protection Act regarding a Cost Recovery Order (“CRO”).

2On January 12, 2023 there was an explosion and fire at the Appellant’s property located at 20 Keefer Road in the City of St. Catherines (“City”). The City issued a CRO for the emergency response, investigations, containment and to address the alleged spill of approximately 11.5 million litres of contaminated douse water. The Appellant’s are disputing the CRO in its entirety, or in the alternative, to lessen the amount payable.

3The Parties submitted a draft Procedural Order (“PO”) and Issues List (“IL”) prior to today’s CMC. Attached as Schedule 1 to this Decision is the draft PO and IL which has been reviewed and approved by the Tribunal.

PARTY AND PARTICIPANT STATUS REQUESTS

4The Tribunal received one Participant status request from Hina Ahmed, Director of the Ministry of Environment, Conservation and Parks. The Parties agreed that Ms. Ahmed’s organization does have an interest in this matter and is properly a Participant. The Tribunal granted Ms. Ahmed Participant status.

5Ms. Ahmed also made a request to provide written and oral submissions at the future Merit Hearing as a Participant Statement would not allow for the submissions to include any of the evidence heard. Neither Party objected to this request but asked that no new issues could be raised through these written and oral submissions.

6The Tribunal will grant Ms. Ahmed the ability to provide oral closing submissions but she is barred from raising any issues that the Parties have not raised. The Tribunal will leave the decision on whether to allow written submissions to the presiding Member at the Merit Hearing. If written submissions are requested from the Parties then the presiding Member may also allow Ms. Ahmed to provide written submissions, if they wish.

7The Tribunal received no further requests for Participant or Party status and no requests were made at today’s CMC.

MEDIATION

8Both Parties are open to Tribunal led mediation and will contact the Case Coordinator if they wish to pursue it.

NEXT STEPS

9The Appellant is expecting significant additional disclosure from the City. The draft PO provides the date for which the disclosure will be provided. The Appellant has concerns regarding whether all of the necessary disclosure will be provided; however, the City does not believe it will be an issue. The Appellant also raised a concern over amending the IL if the additional disclosure gives reason to.

10Both Parties also wished to set a 14-day Merit Hearing at today’s CMC. The Appellant believes they will likely call five witnesses and the City believes it will likely call six witnesses. These numbers are preliminary until disclosure is complete.

11To alleviate these concerns, the Tribunal will conduct a second CMC after the date disclosure is to be provided. This will allow the Parties to confirm if there are any disclosure issues, raise any possible amendments or additions to the IL based on the additional disclosure, and to provide an update as to possible resolution, if any.

SECOND CMC

12Upon request of the Parties, the Tribunal scheduled a second CMC on Monday, July 15, 2024 at 10 a.m. by video. No further notice is required for the second CMC.

13Parties and Participants are asked to log into the CMC at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/692665589

Access Code: 692-665-589

14Parties 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.

15Persons 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 as indicated above.

16Individuals 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 Video Hearing 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.

MERIT HEARING

17Upon request of the Parties, the Tribunal scheduled a 14-day Merit Hearing from Monday, November 25, 2024 and ending on Thursday, December 12, 2024 at 5 p.m. by video. No further Notice is required for the Merit Hearing.

18Parties and Participants are asked to log into the CMC at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/680885805

Access Code: 680-885-805

19Parties 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.

20Persons 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 as indicated above.

21Individuals 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 Video Hearing 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

22The Tribunal Orders that:

1. The date and particulars of the second Case Management Conference are set out above.
2. The date and particulars of the Merit Hearing are set out above.
3. Hina Ahmed is granted Participant status.

23No further Notice shall be provided.

24The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“A. Sauve”

A. SAUVE 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.

SCHEDULE 1

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)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The hearing will begin on November 25, 2024 at 10:00 a.m. through video link.

3. The parties’ initial estimation for the length of the hearing is 14 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to the Issues List unless the Tribunal permits.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. Disclosure: The parties shall provide all other parties a copy of every document that is in their possession, control or power relevant to the subject matter of the appeal (except privileged documents) on or before 90 days after the issuance of this Procedural Order.

10. Motion(s): Any party wishing to bring a motion shall do so in accordance with the Tribunal’s Rules, and shall not be required to do so until at least 60 days from disclosure, at the earliest.

11. Witness List: A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before 70 days before the start of hearing and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

12. Expert Witness Under Summons: Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. Witness Statements: On or before 60 days prior to the start of the hearing, the parties shall provide copies of witness and expert statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 23 below. Witness statements shall attach a copy of any document that the witness refers to in their witness statement and that the party intends to rely on at the hearing. Expert witness statements shall also include a list of any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Instead of a witness statement, an expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. Expert witness statements shall also include a copy of the expert’s Curriculum Vitae and the Acknowledgement of Expert Duty form signed by the expert.

14. Participant Statements: On or before at least 60 days before the start of the hearing, participants shall provide copies of their written participant statement to the parties and to the OLT case co-ordinator in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. Reply Witness Statements: On or before at least 45 days before the start of the hearing, the parties shall provide copies of their reply witness statements (if any) to the other parties and the OLT case co-ordinator in accordance with paragraph 23 below.

16. Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before at least 30 days before the start of the hearing and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, the experts in the same field must prepare and sign a document identifying areas of agreement, dispute and the outstanding issues in their field that will be addressed at the hearing. All documents prepared/exchanged and all discussions between expert witnesses are confidential and without prejudice, with the exception of the signed agreement which will form part of the Statement of Agreed Facts and Issues in paragraph 18 below.

17. Visual Evidence: If the hearing should proceed in-person, on or before at least 15 days before the start of the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Agreed Statement of Facts and Issues: On or before at least 20 days before the start of the hearing, the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.

19. Joint Book of Documents: The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before at least 20 days before the start of the hearing.

20. Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before at least 10 days before the start of the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

21. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

22. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

23. All filings shall be submitted electronically, unless the hearing is to proceed in-person, in which case hard copies will also be filed. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

24. No adjournments or delays will be granted before or during the hearing except by motion or request to the Tribunal. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES & PARTICIPANTS

Parties

1. The Corporation of the City of St. Catharines

Willms & Shier Environmental Lawyers LLP 1 Toronto Street, Suite 900 Toronto, ON M5C 2V6

Richard Butler Tel: 416-862-4837 Email: rbutler@willmsshier.com

Joanna Vince Tel: 416-862-4830 Email: jvince@willmsshier.com

Amanda Spitzig Tel: 416-862-4823 Email: aspitzig@willmsshier.com

2. Sharon Baker, Steve Baker, Tyler Baker and Ssonix Products 2010 Inc.

Gowling WLG (Canada) LLP Barristers and Solicitors 100 King Street West 1 First Canada Place Toronto, ON M5X 1G5

Jessica Boily Tel: 416-862-4683 Email: jessica.boily@gowlingwlg.com

Adrian Cormier Tel: 416-814-5696 Email: adrian.cormier@gowlingwlg.com

Participant Status Request

1. Director, Ministry of the Environment, Conservation and Parks (MECP)

Sarah Valair Senior Counsel, Legal Services Branch Ministry of the Environment, Conservation and Parks 135 St. Clair Avenue West, 10th floor Toronto, ON M4V 1P5 Tel: 416-605-8281 Email: Sarah.valair@ontario.ca

ATTACHMENT 2

ISSUES LIST

The issues for this appeal are as follows:

1. Whether the Corporation of the City of St. Catharine’s cost recovery order met the statutory requirements set out in s. 100.1(3) of the Environmental Protection Act, and included:

   1. a statement identifying the spill to which the order relates;
   2. a description of things for which the municipality or local board incurred costs or expenses for the purpose of preventing, eliminating, or ameliorating of any adverse effects of the spill or to restore the natural environment following the spill;
   3. a detailed account of the costs and expenses incurred doing the things; and
   4. a direction that the person to whom the order is issued pay the costs and expenses to the municipality.

2. Was there a spill of a pollutant?

3. Whether each of the Orderees (Sharon Baker, Steve Baker, Tyler Baker and Ssonix Products 2010 Inc.) was, immediately before the discharge into the natural environment:

   1. the owner of the thing that was discharged,
   2. the person having charge, management or control of the thing that was discharged, or
   3. the employee or agent of the person having charge, management or control of the thing that was discharged?

4. Whether any of the costs and expenses specified in the Order:

   1. do not relate to things for which the Corporation of the City of St. Catharines incurred costs or expenses for the purpose of: i. preventing, eliminating or ameliorating any adverse effects, or ii. restoring the natural environment?
   2. are unreasonable, having regard for what was done?

ATTACHMENT 3

ORDER OF EVIDENCE

1. The Corporation of the City of St. Catharines
2. Sharon Baker, Steve Baker, Tyler Baker, and Ssonix Products 2010 Inc.

ATTACHMENT 4

MEANING OF TERMS

A Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A Participant is an individual, group or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Subsection 33.2 of the Local Planning Appeal Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written Evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual Evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A Witness Statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An Expert Witness Statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A Participant Statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses is usually:

• direct examination by the Party presenting the witness;
• direct examination by any Party of similar interest, in the manner determined by the Tribunal;
• cross-examination by Parties of opposite interest;
• re-direct examination by the Party presenting the witness; or
• another order of examination mutually agreed among the Parties or directed by the Tribunal.

1396-5226-1386, v. 1