Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 14, 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 the 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:
February 20, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Director, Ministry of the
Amanda Landre
Environment, Conservation and Parks
Jennifer Halajian
(“Director”)
1000054177 Ontario Inc.
Harpreet Gill*
Harpreet Gill
Crystal Dolson*
(“Appellant”)
MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON FEBRUARY 20, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On February 20, 2024, the Tribunal heard a Motion brought by 1000054177 Ontario Inc. and Harpreet Gill (“Appellant”) seeking a Stay of the Director, Ministry of the Environment, Conservation and Park’s (“MECP”) Order No.1-226836053 (“Director’s Order”). The Director’s Order requires the Appellant to undertake actions to prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant in, on or under the site located at 51 Notre Dame Street West, in the City of Greater Sudbury. The Appeal was filed pursuant to section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended.
2The Order provides for seven (7) 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.
3The Appellant has now brought a Motion for Stay of Order Items 1-7 of Director’s Order No. 1-238250453 dated October 17, 2023, and Provincial Officer’s Order No. 1-226836053 dated October 3, 2023.
4The Tribunal notes there is a hearing on the merits of the Appeal commencing Tuesday, May 21, 2024, at 10 a.m. by video, which was scheduled at a prior Case Management Conference.
5The grounds for the motion are: Environmental Protection Act ss. 7, 14(1), 140, 91(1)(3), 92(1)(2), 142(1), 147(1)(2)(3), 175(1), and 197(2)(3).
LEGISLATION
6Section 143(1) to (3) of the Environmental Protection Act sets out the Tribunal’s authority to stay a Director’s Order. It states:
No automatic stay on appeal
143(1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than,
(a) an order to pay costs and expenses under section 99.1;
(b) an order to pay the costs of work made under section 150;
(c) an order to pay an environmental penalty; or
(d) an order to pay an administrative penalty.
Tribunal may grant stay
(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,
(a) an order to monitor, record and report; or
(b) an order issued under section 168.8, 168.14 or 168.20.
When stay may not be granted
(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
SUBMISSIONS AND EVIDENCE
7The powers of the Tribunal to grant relief of this nature are contained in s. 10 of the Ontario Land Tribunal Rules of Practice and Procedure, and ss. 8 and 9 of the Ontario Land Tribunal Act, which grant the Tribunal (i) the authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, subject to any limitations in applicable legislation; and (ii) to make such orders as are necessary or incidental to the exercise of its powers.
8In the event that the Tribunal determines that it has the authority to grant the Stay pursuant to s. 143 of the Environmental Protection Act, it must then consider whether the Stay should be granted based upon the test (“MacDonald test”) for granting a stay, as established by the Supreme Court of Canada in RJR MacDonald v. Canada (A.G.) 1994 CanLII 117 (SCC), [1994] 1 SCR 311, which requires the moving party to establish each of the following:
(i) there is a serious issue to be decided at the hearing;
(ii) the moving party will suffer irreparable harm if the stay is not granted; and
(iii) the balance of convenience favours the granting of the stay pending the outcome of a hearing on the merits.
9A brief history on this matter was provided by Counsel for the MECP.
Appellant’s Evidence and Submissions
10It was the Appellant’s submission that the Motion for Stay of Order Items 1-7 was required to ensure that the Appellant would not need to incur further expenses to conduct offsite bore hole drilling. Counsel maintained that the Appellant is subject to a historical oversight of the MECP and Technical Standards and Safety Authority (“TSSA”). She argued that it was unfair for her client to bear the costs of what was a lack of environmental action prior to her client’s purchase of sale through the City’s tax sale of the property.
11The Tribunal reminded Counsel that the matter before the Tribunal was a Motion for Stay and not a hearing of the merits of the matter.
12Counsel did not bring forth at the hearing any documentary evidence filed in support of the Motion, however, the Tribunal noted that the documentary evidence referred to the Human Rights Code, and the Constitution Act, 1982 and Office of the Auditor General of Ontario Reports, none of which fall under the statutory jurisdiction of the Ontario Land Tribunal.
13Counsel seemed unaware that since the submission of the Motion her client and Mr. Gill had fully complied with Order Items 1-7 as of January 15, 2024, essentially, making the Motion unnecessary.
Director’s Evidence and Submissions
14The Director opposed the Appellants’ motion as the request to stay the items in the Order is effectively moot. The Tribunal heard that all seven items have recently been complied with by the Appellants. The Director stated that the preliminary nature of the Order items and the relative ease and expediency with which the Appellants have come into compliance establishes that they have not suffered irreparable harm.
15The Tribunal heard that groundwater samples collected from the monitoring wells at the Site as well as the adjacent property confirmed the presence of significant concentrations of petroleum hydrocarbons at both the Site and the adjacent property.
16The Order was only issued after the Appellants refused to retain a Qualified Consultant to prepare a work plan for the Site to remove the gasoline storage tanks and perform a soil and groundwater investigation. Counsel indicated that the measures in the Order are reasonable and necessary to prevent, decrease or eliminate an adverse effect that may result from the petroleum hydrocarbon contamination on or under the Site.
17An Affidavit executed on February 16, 2024, by Kerry Whitney attesting to Order Items 1-7 having been complied with by 1000054177 Ontario Inc. and Mr. Gill was received. An outline of dates as to when Order Items 1-7 were satisfied is as follows:
a. On December 6, 2023, Mr. Gill retained Pinchin Ltd. (“Pinchin”) to be his “Qualified Person”, satisfying Work Ordered Item Nos. 1 and 2.
b. On December 6, 2023, Mr. Gill registered the Certificate of Requirement issued under s. 197(2) of the Environmental Protection Act, on title to the Site satisfying Work Ordered Item Nos. 6 and 7.
c. On January 15, 2024, Pinchin advised MECP that they have a timeline for completing the “Underground Storage Tank Removal and Verification Soil Sampling Program”, and “Vertical and Lateral Delineation of Soil and Groundwater Impacts”. All work is scheduled to be completed by March 1, 2024, dependent on receiving landowner consent agreements between Mr. Gill and the Site neighbours. This work is proceeding as scheduled and satisfies Work Ordered Item Nos. 3 and 4.
18Having confirmed the above, Counsel to the MECP is satisfied that Order Items 1-7 have been complied with to the satisfaction of the Director.
FINDINGS AND ANALYSIS
19The Tribunal is satisfied that the Appellants have not suffered irreparable harm in complying with the seven Order items under Appeal therefore, the discretionary remedy of a Stay will not be granted.
ORDER
20THE TRIBUNAL ORDERS THAT the Appellant’s Motion for Stay is dismissed.
21This Member is not seized.
"D. Chipman"
D. CHIPMAN
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.