Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 19, 2024

CASE NO(S).: OLT-23-000383

PROCEEDING COMMENCED UNDER section 91(1)(2) of the Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched. 1

Appellant: Mobius PRO Services Respondent: Deputy Registrar, Resource Productivity and Recovery Authority Subject of appeal: Decision and Order regarding contravention of sections 6(1) and 10 of O. Reg. 225/18: Tires Regulation Reference No.: RPRA-0002 OLT Lead Case No.: OLT-23-000383 OLT Case No.: OLT-23-000383 OLT Case Name: Mobius PRO Services v. Ontario (Resource Productivity and Recovery Authority)

PROCEEDING COMMENCED UNDER section 91(1)(2) of the Resource Recovery and Circular Economy Act, 2016, S.O. 2016, c. 12, Sched. 1

Appellant: YESS Environmental Services & Solutions Inc. Respondent: Deputy Registrar, Resource Productivity and Recovery Authority Subject of appeal: Decision and Order regarding contravention of sections 6(1) and 10 of O. Reg. 225/18: Tires Regulation Reference No.: RPRA-0005 OLT Lead Case No.: OLT-23-000383 OLT Case No.: OLT-23-000384 OLT Case Name: YESS Environmental Services & Solutions Inc. v. Ontario (Resource Productivity and Recovery Authority)

Heard: April 9, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
YESS Environmental Services & Solutions Inc. and Mobius PRO Services	Julie Lesage
Resource Productivity and Recovery Authority	Erica Richler

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WilKINs ON APRIL 9, 2024 AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1On April 9, 2024, the Tribunal convened a settlement hearing regarding appeals brought by YESS Environmental Services & Solutions Inc. and Mobius PRO Services (“Appellants”). The appeals were brought under s. 91(1)(2) of the Resource Recovery and Circular Economy Act (“RRCEA”). They are regarding the issuance of Compliance Order No. RPRA-0002 (to Mobius PRO Services) and Compliance Order No. RPRA-0005 (to YESS Environmental Services & Solutions Inc.) (together, “Compliance Orders”) by the Resource Productivity and Recovery Authority (“Authority”).

2On April 5, 2023, Marisa Luff, who is an Inspector with the Authority, issued Inspector’s Orders to the Appellants under s. 86 of the RRCEA. The Appellants requested reviews of the Orders under s. 87 of the RRCEA and, on April 19, 2023, the Deputy Registrar of the Authority issued the Compliance Orders under s. 87(6)(b) of the RRCEA, which, with some modifications, confirmed the Inspector’s Orders.

3On May 4, 2023, the Appellants appealed the Compliance Orders to the Tribunal.

4On August 18, 2023, the Tribunal convened a Case Management Conference at which the Parties indicated an interest in pursuing settlement discussions and, in December 2023, the Parties engaged in mediation in an effort to settle the appeals.

5On February 28, 2024, the Parties informed the Tribunal that they had reached a proposed settlement and the Tribunal scheduled a settlement hearing to consider it.

BACKGROUND

6The RRCEA sets out the framework for a system of resource recovery and waste reduction in the Province. The objectives of the RRCEA are achieved through the establishment of regulations setting out measures and standards. These include regulations on hazardous products, electronical and electronic equipment, batteries, blue box programmes, and tires.

7The Appellants are Producer Responsibility Organizations as defined under s. 1(1) of the RCCEA’s regulation on tires - Ontario Regulation 225/18 (“Tires Regulation”). They are companies retained by tire producers to carry out producer responsibilities. Among other things, they operate used tire collection and management systems.

8The Authority submits that the Compliance Orders were issued based on its determination that each Appellant had failed to meet the collection system requirements in the Tires Regulation. Specifically, the Authority had determined that the number of used tire collection sites required and the general collection requirements under s. 6 and s. 10 of the Tires Regulation had not been met.

9To address these issues, the Compliance Orders require the Appellants to do the following:

By July 30, 2023, you are required to take the following action:

1. Submit an external audit demonstrating a collection system that is compliant with the provisions outlined in sections 6 through 10 of the Tires Regulation.

By May 1, 2023, you are required to take the following actions:

1. Submit information regarding the auditor retained to complete the above-noted audit, including the company name, primary contact name, and primary contact information.

2. Submit a draft scope of work with detailed information regarding the scope of the above-noted audit.

By May 15, 2023, you are required to take the following action to the satisfaction of the inspector who is issuing the order:

1. Submit a final scope of work with detailed information regarding the scope of the above-noted audit.

10In their appeals, the Appellants’ assert, among other things, that they have complied with s. 6 of the Tires Regulation and that the Authority failed to produce evidence of any non-compliance with the performance requirements in s. 10 of the Tires Regulation. They allege that the audit requirements in the Compliance Orders are unwarranted.

11Based on the proposed settlement, the Parties request that the above provisions be replaced with text stating that:

[The Appellants] submitted data to [the Authority] that failed to demonstrate that its collection system has the required number of sites per community. In addition, a random inspection conducted by [the Authority] demonstrated that sites within [the Appellants’] collection system may not have met the general requirements relating to tire collection.

12They also request that the proposed revised Compliance Orders contain operational text stating:

By September 14, 2023, you are required to take the following action:

1. Submit a report including the following:
   1. Accessibility compliance – an agreed-upon procedure to perform specific tests related to the required number of community sites and provide the results to RPRA.
   2. Operational compliance – an agreed-upon procedure to perform specific tests related to s.10 of the Ontario Regulation 225/18 requirements and provide the results to RPRA.

ISSUES

13Rule 12.1 of the Tribunal’s Rules of Practice and Procedures (“Rules”) states:

12.1 The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.

14The issues before the Tribunal are whether the proposed revised Compliance Orders satisfy the applicable statutory requirements and are in the public interest. To make these determinations, the Tribunal must assess whether the proposed revised Compliance Orders properly address the provincial interest objectives set out in s. 2 of the RRCEA, comply with s. 6 and s. 10 of the Tires Regulation, and are in the public interest.

EVIDENCE

15At the settlement hearing, Noah Gitterman, who was the Deputy Registrar of the Authority at the time of the issuance of the Compliance Orders, presented evidence on behalf of the Authority.

16Mr. Gitterman testified that the proposed revised Compliance Orders are consistent with the provincial interests set out in s. 2 of the RRCEA. He stated that the proposed revised Compliance Orders will facilitate compliance with the Tires Regulation, ensure fairness to consumers, and facilitate cooperation among entities involved in tire resource recovery and waste reduction activities. He said the proposed revised Compliance Orders support efforts to ensure compliance with s. 6 and s. 10 of the Regulation and are in the public interest. He said they help to achieve the goals of the RRCEA and ensure that people have access to places in their community where they can drop off used tires for recycling in support of the RRCEA’s goals and objectives.

ANALYSIS AND FINDINGS

17Based on the evidence before it, the Tribunal finds that the proposed revised Compliance Orders facilitate compliance with s. 6 and s. 10 of the Tires Regulation and are in the public interest in that they implement strategies to ensure that the number of tire collection sites in a community meets the needs of the community. They also help ensure that the operational collection requirements under the Tires Regulation are addressed. As required under s. 10 of the RRCEA, the Tribunal has had regard to the provincial interest objectives set out in s. 2 of the RRCEA. By requiring reporting on procedures for accessibility and operational compliance, the Tribunal finds that the proposed revised Compliance Orders will facilitate compliance with s. 6 and s. 10 of the Tires Regulation and will help to achieve the objectives set out in s. 2 of the RRCEA. The Tribunal notes that under the terms of the settlement, if the proposed revised Compliance Orders do not result in compliance with s. 6 and s. 10 of the Tires Regulation, the Authority may bring about, after September 1, 2024, further actions to ensure compliance with those provisions.

18The Tribunal notes that the revised Compliance Orders vary the Compliance Orders, dated April 19, 2023, and they do not constitute new Orders.

ORDER

19THE TRIBUNAL ORDERS THAT:

1. The appeals of Mobius PRO Services and YESS Environmental Services & Solutions Inc. are allowed, in part; and,

2. RPRA Compliance Order No. RPRA-0002 (to Mobius PRO Services), and Compliance Order No. RPRA-0005 (to YESS Environmental Services & Solutions Inc.), both dated April 19, 2023, are varied, as attached to this Order as Attachments 1 and 2 respectively, as follows:

NATURE OF CONTRAVENTION

[Mobius/YESS] submitted data to RPRA that failed to demonstrate that its collection system has the required number of sites per community. In addition, a random inspection conducted by RPRA demonstrated that sites within [Mobius’/YESS’s] collection system may not have met the general requirements relating to tire collection. [Mobius/YESS] has failed to meet the collection system requirements outlined in the Tires Regulation, specifically relating to the number of sites required per community and to the general requirements of collection sites.

REQUIRED ACTION

By September 14, 2023, you are required to take the following action:

1. Submit a report including the following:
   1. Accessibility compliance – an agreed-upon procedure to perform specific tests related to the required number of community sites and provide the results to RPRA.
   2. Operational compliance – an agreed-upon procedure to perform specific tests related to s.10 of the Ontario Regulation 225/18 requirements and provide the results to RPRA.

By July 30, 2023 , you are required to take the following action:

1. Submit an external audit demonstrating a collection system that is compliant with the provisions outlined in sections 6 through 10 of the Tires Regulation.

By May 1, 2023 , you are required to take the following actions:

1. Submit information regarding the auditor retained to complete the above-noted audit, including the company name, primary contact name, and primary contact information.

2. Submit a draft scope of work with detailed information regarding the scope of the above- noted audit.

By May 15, 2023 , you are required to take the following action to the satisfaction of the inspector who is issuing the order:

1. Submit a final scope of work with detailed information regarding the scope of the above-noted audit.

“Hugh S. Wilkins”

HUGH S. WILKINS VICE-CHAIR

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

ATTACHMENT 2