Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 09, 2024
CASE NO(S).: OLT-23-001041
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19
Appellant: 1000054177 Ontario Inc.
Respondent: Ministry of Environment, Conservation and Parks
Subject: Order of the Director
Description: Appealing the Work Plan to remove underground fuel tanks and piping at a Gas Bar
Reference Number: 1-226836053
Property Address: 51 Notre Dame Street West
Municipality/UT: Greater Sudbury/Sudbury
OLT Case No: OLT-23-001041
OLT Lead Case No: OLT-23-001041
OLT Case Name: 1000054177 Ontario Inc. v. Ontario (MECP)
Heard: December 1, 2023 by Telephone Conference Call
APPEARANCES:
Parties
Counsel/Representative*
Director, Ministry of the Environment, Conservation and Parks
Amanda Landre*
Jennifer Halajian*
1000054177 Ontario Inc.
Harpreet Gill
Crystal Dolson
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL ON DECEMBER 1, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a case management conference (the “CMC”) of the Ontario Land Tribunal (the “Tribunal”) in respect of a stay motion (the “Stay Motion”) concerning an appeal by 1000054177 Ontario Inc. (the “Applicant” or “Appellant”) concerning Director’s Order No. 1-226836053 (the “Order”) issued by the Ministry of the Environment, Conservation and Parks (“MECP”) prescribing certain actions to prevent or reduce the risk of a discharge of a contaminant into the natural environment or to prevent, decrease or eliminate an adverse effect that may result from the discharge of a contaminant from, or the presence or discharge of a contaminant in, on or under the site located at 51 Notre Dame Street West, in City of Greater Sudbury (the “Site”).
2At the CMC, the Parties discussed suitable dates for the Stay Motion and the exchange of motion materials in connection therewith, and the Appellant requested an interim stay pending the outcome of the Stay Motion as further described below.
3The Order provides for seven action items as follows:
Item No. 1 Compliance Due Date: October 20, 2023
By October 20, 2023, retain the services of a Qualified Person to develop a proposed Work Plan as required by Work Ordered Item No. 3.
Item No. 2 Compliance Due Date: October 20, 2023
By October 20, 2023, submit to the undersigned Provincial Officer written confirmation from the Qualified Person(s) by email to kerry.whitney@ontario.ca that they have (1) received a copy of the Order, (2) been retained to complete the Work Plan as described in Work Ordered Item No. 3; and (3) the experience and qualifications to carry out such work.
Item No. 3 Compliance Due Date: November 17, 2023
By November 17, 2023, have the Qualified Person(s) prepare, for review and acceptance by the Ministry, a proposed Work Plan that shall include, at a minimum, the following:
Removal of the four (4) underground fuel tanks and piping from the ground;
A scope of work to document soil impacts in the floor and sidewalls of the tank excavation and to delineate the horizontal and vertical extent of groundwater and soil contamination at the Site including a site plan that identifies the locations of proposed boreholes and of existing and proposed monitoring wells; and
A proposed schedule for implementing the work described in the Work Plan.
Item No. 4 Compliance Due Date: November 17, 2023
By November 17, 2023, submit to the undersigned Provincial Officer the proposed Work Plan prepared by the Qualified Person(s) as required in Work Ordered Item No. 3 above.
Item No. 5 Upon service of this order, the Orderee and any other person with an interest in the Site shall, before dealing with the Site in any way, give a copy of this order, including any amendments thereto, to every person who will acquire an interest in the Site as a result of the dealing.
Item No. 6 Within 15 days of receipt of an acknowledgment and direction form signed by Kerry Whitney, Senior Environmental Officer enclosing a certificate of requirement, register the certificate of requirement issued under s. 197 (2) of the EPA, on title to the Site, in the appropriate land registry office.
Item No. 7 Within 15 days of registering the certificate of requirement on title, provide to the undersigned Provincial Officer by email to kerry.whitney@ontario.ca written confirmation that the certificate of requirement has been registered on title as required by Item No. 6 by providing a copy of the registered document and of the parcel register for the property identifier number for the Site.
4The Appellant initially submitted that Items 1 and 2 of the Order had been completed, and requested an interim stay of Items 3, 4, 6 and 7 of the Order pending the outcome of the Stay Motion. The MECP subsequently disputed that Items 1 and 2 of the Order had been completed, following which the Appellant amended his position to request an interim stay of all Items of the Order pending the outcome of the Stay Motion (the “Interim Stay”).
5The Appellant was offered guidance and multiple opportunities at the CMC to submit evidence in support of his request for the Interim Stay. In response, the Appellant argued, amongst other matters, that he wanted to “return” the Site to the government in lieu of complying with the Order, that the MECP was not providing him with sufficient assistance, and that he intended to sell or donate the Site to a third party in order to avoid compliance with the Order. The Appellant also stated that he refused to comply with Items 6 or 7 of the Order under any circumstances.
6The MECP opposed the Applicant’s motion for the Interim Stay on the basis that: (i) the Appellant had failed to make any substantive submissions in support of the Interim Stay; (ii) the Items set forth in the Order are very preliminary in nature and are neither difficult nor costly to satisfy; and (iii) no evidence of irreparable harm to the Appellant has been presented that would result from compliance with the Order.
7Significant efforts were made by both the Tribunal and the MECP to direct the Appellant to the applicable legislation and processes that are applicable to a motion for an interim stay in the current proceedings, and the Appellant was advised on several occasions that he may benefit from the advice of counsel in this matter. However, despite multiple opportunities, the Appellant failed to make any substantive submissions in support of his motion for an Interim Stay at the CMC. Accordingly, the Tribunal denied the Appellant’s motion for the Interim Stay.
8The Parties then proceeded to discuss their respective availability for the Stay Motion, based upon which the Tribunal set dates for the Stay Motion and for the exchange of motion materials by the Parties. As a courtesy to the Appellant, the Tribunal offered to set a hearing date as soon as possible to minimize the amount of time during which the Appellant would remain in default under the Order, however the Appellant refused any hearing dates in January 2024 as well as various dates in February 2024. After extensive discussions, the Appellant agreed to schedule the Stay Motion on February 20, 2024, and was reminded again that as his request for the Interim Stay had been denied, he would remain in default under the Order pending the outcome of the Stay Motion (subject to any steps he may take to bring himself into compliance during that period) and accordingly, he remained liable for any applicable consequences as a result of such default.
SCHEDULING OF STAY MOTION
9With the agreement of the Parties, the Tribunal scheduled a hearing for the Stay Motion on Tuesday, February 20, 2024, at 10 a.m. by video.
10Parties 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:
https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
11Parties 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
12Persons 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) 497-9391. The access code is as indicated above.
13Individuals 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.
14The Tribunal set the following dates for exchange of motion materials in respect of the Stay Motion:
(i) Delivery of Appellant’s Materials to MECP: on or prior to 5 p.m. on Friday, February 9, 2024;
(ii) Delivery of MECP’s materials to the Appellant: on or prior to 5 p.m. on Friday, February 16, 2024; and,
(iii) Delivery by each of the Appellant and the MECP of their respective materials to the Tribunal on or prior to 5 p.m. on Friday, February 16, 2024.
ORDER
15The motion for the Interim Stay is denied.
16There will be no further notice.
17This Member is not seized.
"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.