Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 11, 2024
CASE NO(S).: OLT-21-001731 (Formerly 20-015)
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant: David Bartlett (File No. 20-015)
Appellant: James Bartlett (File No. 20-016)
Appellant: N.M. Bartlett Inc. (File No. 20-017)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation
Reference No.: 5841-BCVQ4K-1
Property Address/Description: 4509 Bartlett Road
Municipality: Town of Lincoln
Upper Tier: Regional Municipality of Niagara
OLT Case No.: OLT-21-001731
OLT Legacy Case No.: 20-015
OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: David Bartlett (Appeal No. 001166)
Appellant: James Bartlett (Appeal No. 001167)
Appellant: N.M. Bartlett Inc. (Appeal No. 001168)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation
Reference No.: 1-41636588
Property Address/Description: 4509 Bartlett Road, R.R. #1
Municipality: Town of Lincoln
Upper Tier: Regional Municipality of Niagara
OLT Case No.: OLT-21-001067
OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)
Heard: February 16, 2024 by video hearing ("VH")
APPEARANCES:
| Parties | Counsel |
|---|---|
| David Bartlett, James Bartlett and N. M. Bartlett Inc. ("Appellants") | Jennifer Danahy |
| Director, Ministry of the Environment, Conservation and Parks ("Director") | Nicholas Adamson |
MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON FEBRUARY 16, 2024 AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1This Appeal arises following the issuance of Order No. 5841-BCVQ4K-1 ("Order No. 1") and Order No. 1-41636588 ("Order No. 2") by the Director, Ministry of the Environment, Conservation and Parks ("MECP"), under section 140(1) of the Environmental Protection Act and section 100(4) of the Ontario Water Resources Act. The Director's Orders require the Appellants to perform stormwater management and soil and sediment remediation work at the property known municipally as 4509 Bartlett Road, in the Town of Lincoln ("site").
2Order No. 1 required interim mitigation and monitoring measures, and that the Appellants formulate a Delineation Plan ("DP") for the property. The Order was all but complied with except the Parties remained in dispute regarding the scope of the DP. The Parties participated in Tribunal-led mediation, however, the Director issued Order No. 2, which specified the scope of the DP and its required implementation. Order No. 2 was appealed to the Tribunal, as the Parties continued to disagree as to the scope of the delineation work. A 14-day hearing was scheduled for October 11 to October 28, 2023, which was subsequently cancelled, at the request of the Parties, since settlement discussions were moving in a positive direction. As the Tribunal was assured that the existing Director's Orders were not stayed and continue to impose requirements with deadlines, the Tribunal agreed to the request by the Parties to permit further time for settlement discussions. During that time, there were a series of meetings between the Parties that also included individuals who were experts in soil contamination, sediment contamination, a hydrologist who was also an engineer with expertise in investigating contaminated sites, a hydrologist with expertise in tracking down studies to determine sources of contamination, along with five experts provided by the Appellants.
3The series of meetings with experts allowed the Parties to come to an agreement on a more focused and revised DP. Since all of Order No. 1 was effectively complied with apart from the requirements surrounding the DP, it is only Order No. 2 that requires an amendment as part of a settlement. As the Parties have consented to a revised DP, an amendment is required to the Director's Order No. 2 that would specify the scope and implementation of the agreed upon DP. Also, the Order originally required that the Appellants submit a revised Storm Water Management Plan ("SWMP") for the property and apply for a new Environmental Compliance Approval, to incorporate the new revised SWMP. The Parties have agreed to remove this requirement from the Order, through the Director's amendment, to allow for a re-evaluation of the site by MECP post-delineation work. The Tribunal was further assured by Counsel for the MECP that several mitigation measures are in place and enforced until such time as the delineation work is completed.
4Disposition of the matter has come before the Tribunal as a settlement motion. The Tribunal confirms that it has received, reviewed and considered the following materials and submissions:
i. Settlement Submission, received February 15, 2024; ii. Status Update from MECP, received August 12, 2022; and, iii. the Parties' oral submissions in support of the settlement.
DECISION AND ORDER
5The Tribunal understands that the aforementioned evidence of the Parties reflects revisions to the Orders before the Tribunal that were reached through the cooperative efforts of the Parties.
6The Tribunal accepts the submissions from the Ministry of the Environment, Conservation and Parks, and the Appellants as presented and similarly finds that the subject Orders, as revised, conform with the Environmental Protection Act and the Ontario Water Resources Act, and are in the public's best interest.
7THE TRIBUNAL ORDERS THAT:
The Appeal is allowed, in part, and on the settlement of the Appeals, the Tribunal directs the Director, Ministry of the Environment, Conservation and Parks, to issue an amendment to the Director's Order No. 1-41636588, as is approved, set out in Attachment 1; and,
The Tribunal dismisses the Appeal of Director's Order No. 5841-BCVQ4K-1.
"J. Innis"
J. INNIS 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.
ATTACHMENT 1