Ontario Graphite Ltd. v. Director, Ministry of the Environment, Conservation and Parks, 2024 CanLII 19659

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 05, 2024

CASE NO(S).: OLT-23-000590

PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Ontario Graphite Ltd.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject: Order of the Director

Description: An Environmental Penalty Order issued for water emitted from a former graphite mine which exceed the contaminated level

Reference No.: Penalty Order No. 274

Property Address/Description: 2142 Forestry Tower Road

Municipality/Upper Tier: Kearney/Parry Sound

OLT Case No.: OLT-23-000590

OLT Lead Case No: OLT-23-000590

OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)

Heard: November 30, 2023 by Video Hearing (“VH”) January 25, 2024 in writing

APPEARANCES:

Parties

Counsel

Ontario Graphite Ltd. (“Appellant”)

Bryan Buttigieg

Director, Ministry of the Environment, Conservation and Parks (“Respondent”)

Sarah Valair Nadine Harris Joanna Skrajny (student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON NOVEMBER 30, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing is the first Case Management Conference (“CMC”) conducted in this Appeal, which has been brought pursuant to Section 100(4) of the Ontario Water Resources Act. The Appellant appeals from the Environmental Penalty Order of the Director regarding exceedances and toxicity found in water emitted from a tailings pond in violation of the terms of its Environmental Compliance Approval.

PROCEDURAL ORDER

2Counsel for the Appellant, Mr. Buttigieg, had filed a draft Procedural Order (”PO”) with the Tribunal’s Case Coordinator in advance of the CMC. The Tribunal reviewed the draft PO with all Counsel and directed that certain amendments be made to the draft PO and Mr. Buttigieg undertook to file a revised draft PO incorporating the amendments.

MEDIATION

3The Tribunal noted that there was no provision in the draft PO respecting Mediation and raised the possibility of Mediation with Counsel. Mr. Buttigieg advised that his client would welcome the opportunity to Mediate the issues in the Appeal, expressing his client’s concern regarding the costs of the Appeal. Counsel for the Respondent, Ms. Harris advised the Tribunal that her client would not agree to a Mediation and Mr. Buttigieg responded by requesting that the Tribunal direct a Mediation. Co-counsel for the Respondent, Ms. Valair, objected that the Tribunal had no such authority.

4The Tribunal found the intransigence of the Respondent’s Counsel with respect to mediation to be troubling, in view of the Tribunal’s mandate to pursue the best opportunity for the fair, just, expeditious and cost-effective resolution of proceedings before it.

5Rule 1.4 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”) provides:

The Tribunal may at any time in a proceeding before it make orders and direct practices that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding and may exercise any of its powers under the OLT Act, the SPPA, or any other applicable legislation.

6Section 12(2) of the Ontario Land Tribunal Act (“OLT Act”) provides:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of proceedings.

7Rule 18.2 of the Rules provides:

A party or parties may request that the Tribunal conduct a mediation of any issue raised in a proceeding. Prior to the Tribunal granting this request, the Chair or designate, or alternatively, a mediator approved by both the Char and the Ministry of the Attorney General, will conduct a mediation assessment to determine whether the issue or proceeding is suitable for mediation. If the Chair, designate, or approved Mediator determines that mediation should proceed, then the Tribunal will convene a mediation with the participation and consent of two or more parties.

8As the Tribunal is mandated to make orders and direct practices and procedures that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of proceedings before it, the Appellant is directed to file a Request for Mediation in writing with the Tribunal’s Case Coordinator. Information respecting the procedure to be followed is available on the Tribunal’s website under the tab “Mediation”, and the Sub-tab “Mediation for Environmental, Mining, Planning and Heritage Matters”.

9Following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a three-day Hearing on the Merits by VH was agreed upon, commencing on Wednesday, September 4, 2024, to Friday, September 6, 2024.

10The Tribunal has subsequently received and reviewed the updated draft of the PO, Parties & Participants List, Issues List and Order of Evidence. The fixed dates for the Merit Hearing are now provided in the PO appended to this Decision as Schedule 1, and the coordinates for the Hearing are set out below in this Decision.

11Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal, and the Parties & Participants List, Issues List, the Order of Evidence and the Schedule of Dates and appended hereto as Attachments 1, 2, 3 and 4 respectively.

HEARING – september 4 TO september 6, 2024

12For the three-day VH, commencing at 10 a.m. on Wednesday, September 4, 2024, and continuing to Friday, September 6, 2024, the Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/558205565

Access Code: 558-205-565

13Parties, witnesses and observers 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

14Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

15Individuals 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.

Other Matters

16There will be no further notice with respect to the Hearing event and the Member is not seized.

ORDER

17The Appellant is directed to file a Request for Mediation in writing with the Tribunal’s Case Coordinator.

18Appended to this Decision as Schedule 1 is the PO, and as Attachments 1, 2, 3 and 4 are the Parties & Participants List, Issues List, the Order of Evidence and the Schedule of Dates, which will now govern all further pre-hearing procedural requirements and the Hearing of the Appeal.

19The Tribunal so Orders and provides these Case Management Conference directives for the purposes of the case management of this Proceeding.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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.

SCHEDULE 1

OLT Case No. OLT-23-000590

PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Ontario Graphite Ltd.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject: Order of the Director

Description: An Environmental Penalty Order issued for water emitted from a former graphite mine which exceed the contaminated level

Reference No.: Penalty Order No. 274

Property Address/Description: 2142 Forestry Tower Road

Municipality/Upper Tier: Kearney/Parry Sound

OLT Case No.: OLT-23-000590

OLT Lead Case No: OLT-23-000590

OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)

PROCEDURAL ORDER

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 September 4, 2024 at 10 am on GoToMeetings at the following link: https://meet.goto.com/558205565 . Access Code: 558-205-565

3. The length of the hearing is 3 days in total. It will run from September 4 to 6, 2024 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. The procedural order deadlines are found in Attachment 4.

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

5. The issues proposed by each party are set out in the Issues List attached as Attachment 2.

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 each other 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 April 2, 2024.

10. Preliminary Motion: Any party wishing to bring a motion for production of documents shall bring a motion by delivering a motion record and written argument by 5 weeks before the start of the motion hearing. Any responding motion record or written argument shall be delivered 2 weeks before the start of the motion hearing. There is no cross-examination permitted on affidavits in support of the motion. Written argument shall not exceed twenty (20) pages in length. The motion is to be scheduled to be heard upon request.

11. Witness List: A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other party a list of the witnesses and the order in which they will be called. This list must be delivered on or before May 24, 2024 (100 days before the start of hearing) and in accordance with paragraph 20 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. Witness Statements: On or before June 5, 2024 (90 days prior to the start of the hearing), the parties shall provide copies of witness and expert statements to the other party and to the OLT case co-ordinator in accordance with paragraph 20 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 copy of the expert’s Curriculum Vitae and the Acknowledgement of Expert Duty form signed by the expert.

13. Reply Witness Statements: On or before July 5, 2024 (60 days before the start of the hearing), the parties shall provide copies of their reply witness statements (if any) to the other party and the OLT case co-ordinator in accordance with paragraph 20 below.

14. Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before August 2, 2024 (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.

15. Agreed Statement of Facts and Issues: On or before August 19, 2024 (at least 15 days before the start of the hearing), the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.

16. Joint Book of Documents or Additional Documents to be Relied on: If the parties are preparing a joint book of documents or have additional documents that they will be relying on at the hearing, the parties shall provide the joint book of document or the additional documents to the other party and the OLT case co-ordinator on or before August 19, 2024 (at least 15 days before the start of the hearing).

17. Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 19, 2024 (at least 45 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.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in compliance with 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.

19. 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 by August 22, 2024 (at least 7 days before the hearing) that the written evidence is not part of their record.

20. All filings shall be submitted electronically and in hard copy. 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 Rule 7.

21. No adjournments or delays will be granted before or during the hearing except by motion 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. Ontario Graphite Ltd.

Miller Thomson LLP Barristers and Solicitors Scotia Plaza 40 King Street West, Suite 5800 P.O. Box 1011 Toronto, ON M5H 3S1

Bryan Buttigieg Tel: 416-305-3705 Email: bbuttigieg@millerthomson.com

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

Ministry of the Attorney General Legal Services Branch 135 St. Clair Ave. West, 10th Floor Toronto, ON M4V 1P5

Nadine Harris Tel: 647-688-8724 Email: nadine.harris@ontario.ca

Sarah Valair Tel: 416-605-8281 Email: sarah.valair@ontario.ca

ATTACHMENT 2

ISSUES LIST

The issues for this appeal as identified by the appellant are as follows:

1. Is the Order unreasonable?

2. Is the Order outside the Director’s Jurisdiction?

a. Does the Order result in any meaningful protection of the Environment?

b. Does the Order serve to address any genuine adverse environmental impact for which the appellant should be responsible?

1. Is the Order contrary to principles of Procedural and Substantive Fairness (“Fundamental Justice”)?

2. Are some of the penalties that are the subject of the Order statute barred as having been issued outside the prescribed time limit?

The issues for this appeal as identified by the Director are as follows:

1. Did the appellant fail an acute lethality test in a ECA pertaining to a sewage works where a test is required contrary to O Reg 222/07, Table 2, section 12.1 on January 4, 23 and 29, 2023?

2. Did the appellant exceed the polishing pond effluent limit in an ECA pertaining to a sewage works contrary to O Reg 222/07, Table 2, section 4.1 on January 27, 30 and 31, 2023?

3. Should the Director have exercised her discretion pursuant to s. 7(2) of the Ontario Regulation 222/07 to reduce the administrative monetary penalties set out in Environmental Penalty Order 274 further having regard to all the circumstances?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Appellant

2. Director, Ministry of the Environment, Conservation and Parks

3. If reply becomes necessary, leave of the Tribunal will be sought

ATTACHMENT 4 SUMMARY OF DATES

DATE

EVENT

April 2, 2024

Disclosure of all relevant, non-privileged documents by all parties

5 weeks before the start of the motion hearing

Delivery of motion record and written submissions for preliminary motion (if needed)

2 weeks before the start of the motion hearing

Deliver of responding motion record and responding written submissions (if needed)