Orin Enterprises Inc. v. Ontario (Environment, Conservation and Parks), 2024 CanLII 25605

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2024

CASE NO(S).: OLT-23-000646

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended

Appellant: Orin Enterprises Inc. (File No. 008664)

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

Subject: Order of the Director

Description: To remove demolition waste on the Site and return the Site to the conditions prior to the depositing of the waste

Reference No.: 1-206866403

Property Address/Description: 8788 11th Line (Jessica’s Auto Wreckers)

Municipality/Upper Tier: Essa/Simcoe

OLT Case No.: OLT-23-000646

OLT Lead Case No.: OLT-23-000646

OLT Case Name: Orin Enterprises Inc. v. Ontario (Environment, Conservation and Parks)

Heard: February 14, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Director, Ministry of the Environment, Conservation and Parks (the "Director" or "Respondent")	Isabelle O’Connor, Sarah Valair, Sarah Kromkamp and Jake Shaw*
Orin Enterprises Inc. (the "Appellant")	Luigi Iantosca

MEMORANDUM OF ORAL DECISION DELIVERED BY WARREN MORRIS ON NOVEMBER 14, 2023 AND ORDER OF THE TRIBUNAL

1This Case Management Conference ("CMC") relates to an appeal of the Director’s Order 1-206866403 dated June 21, 2023 (the "Order"). The Order relates to the disposal of waste at a salvage yard known as Jessica’s Auto Wreckers, in the Township of Essa.

2This CMC is the third CMC in this matter. At the first CMC, which was held on July 27, 2023, a stay motion was granted on consent.

3At the second CMC, which was held on November 14, 2023, a Hearing date was set to commence on Monday, September 16, 2024, for ten days. A draft Procedural Order and draft Issues List had been prepared, however, there were a number of items that the Parties did not agree upon. The Parties did agree that full disclosure would be provided by no later than Friday, January 19, 2024. There was disagreement on whether the exchange of affidavits of documents was required, as the Appellant was of the view that the Rules of Civil Procedure should apply. There was also disagreement regarding the hearing venue. The Appellant stated a preference for an in-person hearing in Toronto, whereas the Respondent desired the hearing to be by video. The Tribunal Member did not make any orders with respect to the application of the Rules of Civil Procedure, the need for an affidavit of documents, nor the format or location of the hearing. The Tribunal Member foresaw the need for a further CMC to take place after full disclosure had taken place after which time the actual issues in dispute may become more clear, as well as the procedural issues. The Tribunal Member encouraged the Parties to continue their efforts to finalize the Procedural Order, and that any remaining procedural issues in dispute could be addressed at the next CMC.

4At this third CMC, the Respondent’s Counsel Isabelle O’Connor indicated that she will be passing carriage of this file to her colleague. Prior to this CMC, a revised draft Procedural Order (including Issues List) was filed with the Tribunal. The Parties indicated to the Tribunal Member that although they had made good progress on finalizing the Procedural Order, the Parties disagreed on one significant item, which was whether or not there would be Examinations for Discovery. Mr. Iantosca stated his intention to bring a motion for an order to allow the Appellant to examine a Ministry of the Environment, Conservation and Parks ("MECP") employee. The MECP position was that examinations were unnecessary and that any information the Appellant was looking to obtain through examinations would likely be disclosed via witness statements. Ms. O’Connor acknowledged that the current draft Procedural Order required the delivery of witness statements to occur by Monday, July 8, 2024, which would not give the Appellant sufficient time prior to the Hearing to conduct examinations, if necessary. Ms. O’Connor suggested that the delivery of witness statements could be moved forward to the end of March. Mr. Iantosca objected to requiring the witness statements be moved forward to the end of March for two reasons. First, Mr. Iantosca stated that his examinations should take place prior to the delivery of witness statements, and he had provided Ms. O’Connor with case law to support this proposition. Secondly, Mr. Iantosca stated that he did not believe that he could prepare his witness statements by the end of March, which is more than three months prior to the date agreed upon in the Procedural Order. Ms. O’Connor’s response was that the case law provided by Mr. Iantosca was not applicable as it concerned an expropriation matter. Ms. O’Connor was not fixed on the end of March as a date for witness statement delivery and was open to extending that date in order to accommodate Mr. Iantosca.

5The Tribunal Member reminded the Parties of Rule 1.3 of the Ontario Land Tribunal’s ("OLT") Rules of Practice and Procedure ("OLT Rules") that makes reference to the "…best opportunity for a fair, just, expeditious and cost-effective resolution …", a theme that repeats in the OLT Rules. As such, the Tribunal Member requested that the CMC be held down for 15 to 20 minutes to allow Mr. Iantosca some time to assess how long it would take to prepare his witness statements, and to propose a date that would provide him sufficient time for preparation, while also allowing him ample time to schedule a motion for examinations for discovery, in the event he does not receive the information he is looking for in the Respondent’s witness statements. Mr. Iantosca came back with a date of April 19, 2024, as a delivery date for witness statements, which all of the Parties agreed to.

6In addition to changing the date of witness statement delivery, there were a number of other adjustments made to the draft Procedural Order during the CMC. Ms. O’Connor agreed to redraft the Procedural Order, circulate the revisions, and file the final Procedural Order with the Tribunal no later than February 21, 2024.

7Attached hereto as Schedule 1 is the approved Procedural Order.

ORDER

8The Tribunal orders that:

1. a ten-day hearing is to take place from Monday, September 16 to Friday, September 27, 2024 at 10 a.m. The default format for these hearings are by way of video, however, this format is being ordered without prejudice to the Appellant; The Tribunal Member is not seized and no further notice will be given;

2. the Procedural Order attached as Schedule 1 is approved.

"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.

SCHEDULE 1

CASE NO(S).: OLT-23-000646

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended

Appellant: Orin Enterprises Inc. (File No. 008664)

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

Subject of appeal: To remove demolition waste on the Site and return the Site to the conditions prior to the depositing of the waste

Reference No.: 1-206866403

Property Address/Description: 8788 11th Line (Jessica’s Auto Wreckers)

Municipality/Upper Tier: Essa/Simcoe

OLT Case No.: OLT-23-000646

OLT Lead Case No.: OLT-23-000646

OLT Case Name: Orin Enterprises Inc. 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 16th, 2024, at 10 a.m. Orin Enterprises Inc. will provide a written request to the assigned Case Coordinator for an in person hearing to take place at the Ontario Land Tribunal, 655 Bay Street, 16th Floor, Toronto, Ontario by February 23, 2024.

3. The parties’ initial estimation for the length of the hearing is 7-10 days. 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.

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

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

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 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. The parties shall provide all other parties a copy of every document in their possession or control relevant to the subject matter of the appeal (except privileged documents) on or before January 19, 2024.

10. Documentary production is to include an Index.

11. Any party wishing to bring a motion for production of documents and/or examination of a witness shall bring a motion by delivering a motion record and written argument by May 31, 2024. Any responding motion record or written argument shall be delivered by June 21, 2024. There is no cross-examination permitted on affidavits in support of the motion. Written argument shall not exceed twenty (20) pages in length. The Tribunal will determine when and if oral submissions are to be made.

12. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered April 19, 2024, and in accordance with paragraph 25 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.

13. Expert witnesses in the same field, if any, shall have a meeting on or before July 31, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator by August 30th, 2024.

14. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 16 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

15. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 16 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 16 below.

16. On or before April 30, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 25 below. 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.

17. On or before April 30, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 25 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

18. On or before July 23rd, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. On or before August 27th, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 25 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

20. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence, including expert reports and witness statements, on or before 45 days prior to the start of the hearing and in accordance with paragraph 25 below.

21. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, by September 6th, 2024.

22. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See 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.

23. 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 at least 7 days before the hearing that the written evidence is not part of their record.

24. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 6th, 2024 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.

25. All filings shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. 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 the Rule 7.

26. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1

Party	Party Status	Counsel / Representative
Orin Enterprises Inc.	Appellant (Moving Party)	Torkin Manes LLP Barristers & Solicitors 151 Yonge Street, Suite 1500 Toronto, ON M5C 2W7 Ryan Hauk (56796W) rhauk@torkinmanes.com T: 416-643-8810 Luigi Iantosca (83040T) liantosca@torkinmanes.com T: 437-253-2748
Director, Ministry of the Environment, Conservation and Parks	Respondent (Responding Party)	Legal Services Branch 10-135 St Clair Ave W Toronto, ON M4V 1P5 Sarah Valair (48432E) Sarah.Valair@ontario.ca T:416 605 8281 Sarah Kromkamp (61579R) Sarah.A.Kromkamp@ontario.ca T:647 649 0904

Attachment 2

ISSUES LIST

1. Are the materials found at the property municipally known as 8788 11 Line, Township of Essa, and also known as Part Lot 31, Concession 10, Township of Essa and legally described as Property Identity Number (PIN) 58101-0008R (the "Disposal Site") considered "waste" as defined under s. 25 and R.R.O. 1990, Reg. 347 under the Act?;

2. Is the material found at the Disposal Site from the Crosstown project at 844 Don Mills Road (the "Project"), and if not, were there other projects whereby materials were delivered to the Disposal Site?;

3. Did Orin Enterprises Inc. ("Orin") deposit, cause, permit or arrange for the deposit of any materials to the Disposal Site in accordance with section 40 of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the "Act"); and

4. Should Orin, be responsible for clean up the materials found at the Disposal Site pursuant to the EPA and its regulations?.

Attachment 3

ORDER OF EVIDENCE

1. Orin Enterprises Inc.
2. Director, Ministry of Environment, Conservation and Parks
3. Orin Enterprises Inc., in Reply

40279.0029/30544306_.1