Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 20, 2024
CASE NO(S).: OLT-23-000886
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environment Protection Act, R.S.O. 1990, c. E. 19
Appellant: 2057183 Ontario Limited
Appellant: Harry Westendorp
Appellant: Pamela Poulin
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: Appeal to revoke the Director’s Order 1-212218246
Reference No.: 1-212218246
Property Address: 7811 County Road 6
Municipality/UT: Elizabethtown-Kitley/Leeds and Grenville
OLT Case No.: OLT-23-000886
OLT Lead Case No.: OLT-23-000886
OLT Case Name: Poulin v. Ontario (Ministry of the Environment, Conservation and Parks)
Heard: January 11, 2024, in writing
APPEARANCES:
Parties
Counsel
2057183 Ontario Limited
Leonard Levencrown
Director, Ministry of the Environment, Conservation and Parks
Isabelle O’Connor
DECISION DELIVERED BY WARREN MORRIS AND ORDER OF THE TRIBUNAL
1This Decision is to determine whether the above matter is properly before the Ontario Land Tribunal (“OLT”). The Appellants seek to appeal a Director’s Order that was issued in accordance with a settlement agreement and an OLT order directing an amendment of a prior Director’s Order.
BACKGROUND
2This matter relates to the storage of waste. The Ministry of Environment, Conservation and Parks (the “MECP”) had concerns and had issued a series of Orders under the Environmental Protection Act, including Director’s Order 1-131767953 issued on September 27, 2022 (“prior Director’s Order”). That Order contained 11 items. The Orderees were Pamela Poulin, Harold Westendorp and 2057183 Ontario Limited.
3The prior Director’s Order was appealed to the OLT. A hearing of the Appeal was scheduled for May 15 to 19, 2023. The Appellant, Harry Westendorp, attended the Hearing with counsel for the Appellants, Douglas Grenkie.
4On May 16, 2023, the MECP and the Appellants reached an agreement to settle the appeal. Minutes of Settlement were signed. Within the Minutes of Settlement was a term that stated that the minutes constituted full and final settlement and that the Appellants would not appeal any amendments to the Director’s Order made in accordance with the Minutes of Settlement.
5The Minutes of Settlement involved the revocation of the 11 items contained in the prior Director’s Order, and replaced them with seven new items that were fully prescribed. Included in the agreement was a statement that said, “Changes may be made to the text of the amended provisions of the Director’s order for the purposes of grammar, clarity, and enforceability but no changes may be made that alter the intent of any provisions of the Agreement set out in these Minutes of Settlement”.
6The OLT Ordered that the prior Director’s Order be amended by revoking the 11 items and replacing them with the seven new items. The decision was originally delivered orally on May 16, 2023 but was followed up by OLT Decision and Order OLT-22-004473 made by OLT Member S. deBoer issued on July 6, 2023. Paragraph 10 of the OLT Decision and Order explicitly set out the seven replacement items.
7In June of 2023, there was correspondence between the solicitors for the MECP and the Appellants with regard to the wording of the seven new items contained in the OLT Decision and Order. Mr. Grenkie, on behalf of the Appellants, approved the amended wording by signature on June 30, 2023.
8The MECP then issued a Director’s Order 1-1212218246 (“new Director’s Order”) signed on July 10, 2023 by Cathy Chisholm. This new Director’s Order contained the terms and conditions orally approved by the OLT on May 16, 2023, with the minor edits being approved by counsel for the Appellants. The new Director’s Order revoked the prior Director’s Order 1-131767953.
9The final two pages of the new Director’s Order 1-212218246 contained the heading “Appeal to the Ontario Land Tribunal Information”, and included standard information on how to appeal the Director’s Order, under the headings: Request for Hearing, Contact Information, Service Information and Additional Information (“appeal verbiage”).
10The Appellants appealed the new Director’s Order 1-212218246 to the OLT. By letter of September 13, 2023, the OLT sent a standard letter to the Parties acknowledging receipt of the Appeal. At this time, the Appellants were represented by new legal counsel, Leonard Levencrown.
11On September 15, 2023, MECP counsel Isabelle O’Connor sent a letter to the OLT stating that the OLT ought to dismiss the proceeding for being outside of the OLT’s jurisdiction, in that it would amount to the OLT hearing an appeal of a decision made by the OLT.
12On September 22, 2023, the Tribunal received a letter from Mr. Levencrown arguing that the Director revoked all previous orders and issued a new order, and the Appellants were given the right to appeal the new order as it is not a revised version of the original order. He also stated that the new Director’s Order revoked the prior Director’s Order and therefore, his client was not subject to any Director’s Order.
13On October 23, 2023, the OLT sent a letter informing the Parties that it was considering dismissing the Appeal without a hearing, and requested submissions within timelines outlined in the OLT’s Rules of Practice and Procedure (“OLT Rules”).
POSITIONS OF THE PARTIES
14In his submissions, Mr. Levencrown, on behalf of the Appellants, states that OLT Member S. DeBoer had ordered the prior Director’s Order to be amended – not for the Director to issue a new order - and thereby, the new Director’s Order would be a nullity. He submitted that by revoking the previous Director’s Order, there would no longer be any Director’s Orders in effect. Further, Mr. Levencrown contends that all orders affecting the site have been revoked and cannot be reinstated.
15On behalf of the MECP, Ms. O’Connor submits that the Director’s Order 1-212218246 is not a “new” Order but rather is the result of a continuing process that builds on the previous Director’s Order, and in which the Appellants participated and consented to. Ms. O’Connor is of the view that this Appeal is an attempt to resile from a settlement agreement that the Parties entered into in good faith, which was approved by the OLT. Ms. O’Connor concludes that the OLT does not have jurisdiction to hear this Appeal and to do so would be an abuse of process.
ISSUES
16Is the Director’s Order 1-212218246 a “new” order with fresh appeal rights that are within the jurisdiction of the OLT, or merely a continuation of a previous process?
17Given the fact that Member S. deBoer’s OLT Decision and Order OLT-23-004473 specifically ordered the previous Director’s Order is to be amended (as opposed to ordering a new order), does that render Director’s Order 1-212218246 a nullity?
18Another way to frame the issue would be: In circumstances where the parties have agreed to, and the Tribunal has ordered, the amendment of an existing Director’s Order by replacing previous terms and conditions, is there a substantial difference between amending an existing Director’s Order and issuing a new Director’s Order? The Tribunal finds that in the current situation, the answer is no.
APPLICABLE LEGISLATION AND RULES
19It is instructive to note that the Statutory Powers Procedures Act (“SPPA”), the Ontario Land Tribunal Act (“OLTA”) and the OLT Rules all contain provisions that permit the OLT to dismiss a proceeding without a hearing.
20Section 4.6(1) of the SPPA states:
Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,
(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal;….
21Similarly, section 19(1) of the OLTA states that:
…the Tribunal may……on its own initiative, dismiss a proceeding without a hearing,
(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
(d) in any circumstance listed in subsection 4.6(1) of the SPPA:
22Further, the OLT Rule 15.4(b) provides that the OLT may dismiss “…matters that are outside the jurisdiction of the Tribunal.”
23All of the SPPA, OLTA and the OLT Rules require that in such circumstances, the Tribunal shall provide notice to and allow submissions from the relevant Parties.
ANALYSIS AND FINDINGS
24For the reasons that follow, the Tribunal finds that it does not have jurisdiction to proceed with this appeal (s.4.6 SPPA and OLT Rule 15.4), and even if it did have jurisdiction, the appeal can be dismissed for having no reasonable prospect of success (s. 19 OLTA).
25In the normal course of events, when a Director’s Order is issued by the MECP, the orderees have a right to appeal to the OLT. In the current case, if the new Director’s Order were read in isolation, there is every reason to believe that the OLT would have jurisdiction to hear an appeal. However, the new Director’s Order was not created in a vacuum. The new order was made in response to an OLT Order, which was in turn issued on approval from a Minutes of Settlement agreed upon between the Parties.
26Regarding the first issue above, the Appellants argue that the new Director’s Order is a new order, distinct from the previous one, and thus, subject to new appeal rights. However, the MECP contends that the new order is a continuation of the previous process, resulting from a settlement agreement endorsed by the OLT, and thus, not subject to appeal rights.
27Nowhere in the Appellant’s submissions was there any claim that the seven provisions contained in new Director’s Order was different in substance or intent from any of the provisions in the Minutes of Settlement or in the OLT Decision and Order. Had the MECP added additional terms and conditions that were not part of the OLT order, the Appellant may have been successful in distinguishing the new Order from the old. However, there are two features of the new Director’s Order that might distinguish it from an amended order, as ordered by the OLT. First, there was a new Director’s Order number. Secondly, there was template appeal verbiage regarding appeal rights. The Tribunal finds that the new order number and verbiage, in the circumstances, is a distinction without a substantive difference, and therefore, the new Director’s Order satisfies the OLT Order to amend. To allow this appeal to proceed would lead to the Appellant being granted the right to appeal provisions which were previously agreed to and approved by the OLT. This would be an absurd result. To grant such rights would undermine the meaning of Minutes of Settlement by opening up the agreements to being appealed by parties changing their minds. The Tribunal concurs with the MECP’s position that the issuance of the new Director’s Order is fundamentally an extension of the previous process, as evidenced by the settlement agreement and upon the Tribunal’s approval thereof. It does not confer new appeal rights and falls within the scope of the prior settlement agreement and OLT Decision and Order.
28Regarding the second issue, the Appellants assert that the revocation of the prior Director’s Order renders it a nullity. Conversely, the MECP argues that the revocation was a procedural decision necessary for implementation, and the new order maintains the substance of the approved settlement agreement. The Tribunal acknowledges the Appellants’ concern regarding the revocation of the prior Director’s Order. However, it finds that such a revocation was a procedural necessity to effectuate the settlement agreement and did not alter the substance of the Tribunal’s direction. The Tribunal agrees with the MECP that the new Director’s Order is a valid continuation of the prior process, consistent with the Tribunal’s direction and the settlement agreement.
29In the Appellants’ submissions, Mr. Levencrown states that the Appellants’ former counsel was misled by receiving the new order as he had assumed that the changes agreed upon previously would be incorporated into the existing order as opposed to a new order. While a new order number in itself would not be misleading, the inclusion of the appeal verbiage might be. The MECP explained its reason for not removing the appeal verbiage as being the inflexibility of the MECP’s software to amend boilerplate provisions in its orders. The Tribunal is sympathetic to the Appellants being confused by the incorrect appeal verbiage. The MECP ought to be embarrassed to have included such verbiage in what was basically a consent order. However, the Tribunal sees little, if any prejudice, to the Appellants when it should have been obvious that you cannot appeal provisions that you agreed to. The boilerplate appeal rights were included by the MECP in error.
CONCLUSION
30In light of the foregoing analysis, the Tribunal finds that the new Director’s Order is a continuation of the previous process and does not confer new appeal rights. Moreover, the revocation of the prior order was a procedural step necessary for the implementation of the new Director’s Order and did not render the new order a nullity. Since the new Director’s Order is valid and considered to be substantively the same as an amended order, the Tribunal cannot hear an appeal of its own order, particularly when the order was made on consent. Therefore, the Tribunal dismisses the appeal for lack of jurisdiction in accordance with section 4.6 of the Statutory Powers Procedures Act and Rule 15.4(b) of the Tribunal’s Rules of Practice and Procedure. The Tribunal further dismisses the appeal for having no reasonable prospect of success in accordance with section 19 of the Ontario Land Tribunal Act.
“Warren Morris”
WARREN MORRIS
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.