CORRECTION NOTICE

OLT CASE NO(S).: OLT-22-004659

DECISION ISSUE DATE(S): May 23, 2024

CORRECTION NOTICE ISSUE DATE: June 19, 2024

RE: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)

Correction to: whom called the witness in paragraph [172].

Originally:

Expert witnesses called by the Director, notably Ms. Appleby…

Corrected to:

Expert witnesses called by the City, notably Ms. Appleby…

“Euken Lui”

EUKEN LUI REGISTRAR

Ontario Land Tribunal

Website: 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.

ISSUE DATE: May 23, 2024

CASE NO(S).: OLT-22-004659

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Appellant: Sherwood Forest Investments (Guelph) Ltd.

Appellant: 642762 Ontario Inc.

Instrument Holder: The Corporation of the City of Guelph

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

Subject of Appeal: Decision to issue a Certificate of Property Use under section 168.6 of Part XV.1 of the Environmental Protection Act for the intended future mixed commercial, community, residential, institutional and parkland use of the property

Reference No.: 7073-C7NLHC

Property Address/Description: 200 Beverley Street

Municipality/Upper Tier: City of Guelph, County of Wellington

OLT Case No.: OLT-22-004659

OLT Lead Case No.: OLT-22-004659

OLT Case Name: Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks)

Heard: December 4 to 20, 2023 (excluding December 19, 2023) and January 10 and 22, 2024 by video hearing

APPEARANCES:

Parties

Counsel

642762 Ontario Inc.

John Georgakopoulos Joanna Vince

Sherwood Forest Investments (Guelph) Ltd.

Tamara Farber Vanessa De Sousa

Director, Ministry of the Environment, Conservation and Parks

Nadine Harris Isabelle O’Connor Joanna Skrajny (student-at-law)

The Corporation of the City of Guelph

Allison Thornton Ian White (student-at-law)

Electrolux Home Care Products Canada Inc.

Barry Weintraub

DECISION DELIVERED BY DEBRA ARNOLD AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1By way of Tribunal Order issued October 28, 2022, 642762 Ontario Inc. and Sherwood Forest Investments (Guelph) Ltd. (collectively, the “Appellants”) were granted leave to appeal the decision of a Director of the Ministry of Environment, Conservation and Parks (the “Director”) to issue Certificate of Property Use No. 7073-C7NLHC dated April 20, 2022 (the “CPU”) pertaining to the property municipally known as 200 Beverley Street in the City of Guelph (“200 Beverley” or the “Guelph Property”) to the owner of 200 Beverley, being The Corporation of the City of Guelph (the “City”), with such appeals to be “in terms of the issues relating to migration of contaminated groundwater offsite” (the “Appeals”).

2A hearing on the merits of the Appeals was held by the Tribunal over fourteen days and included testimony of 14 witnesses, including 12 expert witnesses qualified to give opinion evidence with regard to subject matter relevant to the Appeals. Moreover, the following documents were entered as Exhibits in Evidence:

• Exhibit 1: Certificate of Property Use No. 7073-C7NLHC issued April 20, 2022
• Exhibit 2: Site Map depicting properties municipally known as 200 Beverley St., 10 Kingsmill Ave. and 490 York Rd., Guelph, Ontario

• Exhibit 3:

(a) Appellants’ Book of Witness Statements dated November 27, 2023 (P. Mauro, B. Langille, T. Jones, P. Gray, G. Ferguson, J. Ferraro, T. Dickson)

(b) Witness Statement of T. McIelwain dated October 4, 2023

(c) Reply Witness Statement of T. Dickson dated October 19, 2023

• Exhibit 4:

(a) Witness Statements of the Director dated October 5, 2023 (J. Volpato, S. Trimper and J. Burdon)

(b) Reply Witness Statements of the Director dated October 20, 2023 (J. Volpato and S. Trimper)

• Exhibit 5:

(a) Guelph Witness Statements and Reply Witness Statements Volume 1 (D. Marks, K. Appleby, T. McCarthy)

(b) Guelph Witness Statements Volume 2 (Exhibits of Witness Statements)

(c) Guelph Witness Statements Volume 3 (Supplementary Documents Referenced)

(d) Jacobs Additional Groundwater Monitoring Program Results to October, 2023

• Exhibit 6: Site Specific Geologic Interpretations (Page 9 of the PDF of the Appellants’ Book of Documents, Tab 306)
• Exhibit 7: AECOM 2016 Annual Groundwater Monitoring Report for 200 Beverley Street, Guelph, Ontario (Appellants’ Book of Documents, Tab 069)
• Exhibit 8: Letter from Counsel (Willms & Shier) for 642762 Ontario Inc. to MECP dated January 4, 2021, Re 200 Beverley and RSC Process Objection
• Exhibit 9: AECOM 2014 Annual Groundwater Monitoring Report for 200 Beverley Street, Guelph, Ontario (Appellants’ Book of Documents, Tab 051)
• Exhibit 10: AECOM 2012 and 2013 Annual Groundwater Monitoring Report for 200 Beverley Street, Guelph, Ontario (Appellants’ Book of Documents, Tab 057)
• Exhibit 11: AECOM 2015 Annual Groundwater Monitoring Report for 200 Beverley Street, Guelph (Appellants’ Book of Documents, Tab 060)
• Exhibit 12: AGAT Laboratories Certificate of Analysis Date Reported May 29, 2023 (Appellants’ Book of Documents, Tab 156)
• Exhibit 13: AGAT Laboratories Certificate of Analysis Date Reported August 24, 2023 (Appellants’ Book of Documents, Tab 160)
• Exhibit 14: 490 York Road, Guelph Site Location Map, Table 1 (Monitoring Well Installation and Groundwater Data dated May 2023) and Table 2 (Groundwater Analytical Results for VOCs) dated May 2023 (Appellants’ Book of Documents, Tab 158(1), (2) and (3))
• Exhibit 15: Email from J. Volpato (MECP) to S. Trimper (MECP) dated October 29, 2021 and Attachment “TSS Groundwater Request” written by J. Volpato (Appellants’ Book of Documents, Tab 117)
• Exhibit 16: Letter dated August 4, 2022 from S. Sangaraju (Director Subsection 168.4(3) EPA, MECP) to R. Russwurm (City of Guelph) acknowledging filing of Record of Site Condition B-404-1179978448 for 200 Beverley Street, Guelph
• Exhibit 17: Record of Site Condition B-404-1179978448 File Date August 4, 2022 and Certification Date March 11, 2020 for 200 Beverley Street, Guelph

The Appeals

3The Appellants were granted leave to appeal the CPU pursuant to the Environmental Bill of Rights Act (the “EBRA”) and, as such, the EBRA further provides that the appellate body has similar powers on consideration of the Appeals, and shall make its determination on the merits of the Appeals, on grounds similar to those that would apply to an appeal relating to the same proposal and of a similar nature brought by a person referred to in paragraph 2 of ss. 38(1) of the EBRA, being persons who have “a right under another Act to appeal from a decision whether or not to implement the proposal.” The City has a right under the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (the “EPA”) to appeal the decision of the Director to issue the CPU. Accordingly, the legislative authority of the Tribunal in its consideration of the merits of the Appeals are as set out in s. 145.2 of the EPA, specifically:

145.2(1)….a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

The Issues of the Appeals

4In the context of the legislative framework described above, the determination of the merits of the Appeals pertains to the following issues, as set out in the Procedural Order approved by Tribunal Order issued on March 31, 2023 (the “Issues List”):

1. Taking into account historic and present environmental conditions at, in, on, or under 200 Beverley Street, Guelph, Ontario (the “Guelph Property”) and any historic contaminant migration from 200 Beverley, is there risk of contaminant migration from the Guelph Property onto neighbouring properties, including 10 Kingsmill Avenue, Guelph, Ontario (“10 Kingsmill”) and 490 York Rd., Guelph, Ontario (“490 York”), and/or beyond?
2. Is there risk of an adverse effect at the offsite properties located at 10 Kingsmill, 490 York, or elsewhere, resulting from the migration of contamination from the Guelph Property? Was the adverse effect identified in the Risk Assessment accepted by the Ministry of the Environment, Conservation and Parks (“MECP”)?
3. Do the terms and conditions of the CPU provide sufficient safeguards to prevent, eliminate or ameliorate any potential adverse effect associated with the risk of contamination migrating offsite from the Guelph Property?
4. What, if any, terms and conditions should be added or altered in the CPU, to address the potential for adverse effects that have or may arise from the migration of contamination from the Guelph Property to neighbouring properties, including 10 Kingsmill and 490 York?
5. Should the Tribunal order that the CPU be altered?
6. Should the Tribunal order that the CPU be revoked?

The Guelph Property: 200 Beverley

5200 Beverley is comprised of approximately 5.2 hectares of vacant land that was historically used for industrial purposes and activities in various buildings and structures located on such property that are now demolished. The lands owned by the Appellants, being the lands owned by 642762 Ontario Inc. municipally known as 10 Kingsmill Avenue (“10 Kingsmill”) and the lands owned by Sherwood Forest Investments (Guelph) Ltd. municipally known as 490 York Road (“490 York”) are located adjacent to 200 Beverley and to each other such that all three properties have abutting property lines in certain locations.

6To facilitate future redevelopment of 200 Beverley, the City was required to comply with the requirements of the EPA as detailed below.

The CPU Under Appeal – Legislative Framework

7Section 168.3.1 of the EPA prohibits, among other things, the change of use of a property from industrial or commercial to residential or parkland use, or the construction of a building in connection with such change of use, unless, among other things, a record of site condition is filed in the Registry pertaining to the subject property. The record of site condition must be prepared in accordance with the criteria of s. 168.4 of the EPA and, in the case of 200 Beverley, include a risk assessment addressing certain contaminant exceedances found to exist at 200 Beverley. The risk assessment must be prepared in accordance with the EPA including most notably the requirements of Regulation 153/04, as amended, made under the EPA (the “Brownfields Regulation”).

8A risk assessment relating to 200 Beverley was accepted by the Director pursuant to s. 168.5 of the EPA by letter dated September 21, 2021 (the “Guelph RA”). In late 2021, the City applied for a CPU as required under the EPA in order to redevelop 200 Beverley in a manner that addresses the contaminant exceedances on 200 Beverley to ensure that risk management measures in relation to adverse effects of such contamination set out in the Guelph RA are implemented appropriately.

9The CPU was issued by the Director on April 20, 2022 pursuant to ss. 168.6(1) of the EPA, which states:

168.6(1) If a risk assessment relating to a property has been accepted under clause 168.5(1)(a), the Director may issue a certificate of property use to the owner of the property, requiring the owner to do any of the following things:

1. Take any action that is specified in the certificate and that, in the Director’s opinion, is necessary to prevent, eliminate or ameliorate any adverse effect that has been identified in the risk assessment, including installing any equipment, monitoring any contaminant or recording or reporting information for that purpose.
2. Refrain from using the property for any use specified in the certificate or from constructing any building specified in the certificate on the property.

10The Brownfields Regulation prescribes mandatory requirements for the preparation of a risk assessment and, as such, the Guelph RA contains the required Human Health Risk Assessment as well as a Risk Management Plan including risk management performance objectives and, to achieve those objectives, risk management measures on the “RA Property” (200 Beverley) that are designed to prevent, eliminate or ameliorate “any adverse effects on or off the [RA Property]” (s. 7(a)(i), Table 1, Sch. C of the Brownfields Regulation).

Evidence and Submissions of the Appellant, 642762 Ontario Inc. (“642”)

11Two witnesses, Peter-James Mauro and Brent Langille, were called by 642 and qualified as experts in the subject matter of hydrogeology, fate and transport of contamination in soil and groundwater in the environment and environmental site assessment under Ontario’s brownfields framework. In addition, 642 called Peter Gray, who was qualified as an expert in the subject matter of hydrogeology and geology, Thomas Jones, who was qualified as an expert in the subject matter of fate and transport of contamination in the environment, environmental site investigations and Records of Site Condition under Ontario’s brownfield framework, and Glenn Ferguson, who was qualified as an expert in the subject matter of risk assessments including risk assessments pursuant to the Brownfields Regulation, and toxicology.

12642’s expert witnesses Messrs. Mauro, Langille, Grey and Jones provided evidence that they reviewed and relied upon studies including groundwater and soil sample testing data that has been conducted and compiled with respect to 200 Beverley and were unanimous in their expert opinion that there is contamination in the groundwater and the soil on 200 Beverley.

13In this regard, Messrs. Mauro and Langille provided evidence that they reviewed the most recent groundwater sampling data carried out at 200 Beverley (completed in late 2022 and throughout 2023) and opined that “contamination well in excess of the Regulatory Standards [i.e. the Soil, Groundwater and Sediment Standards for Use under Part XV.1 of the EPA] is present on 200 Beverley”, with the highest concentrations of the contaminant known as chlorinated volatile organic compounds (“cVOCs”) and of particular note trichloroethylene (“TCE”) being detected in samples taken from the following wells located on 200 Beverley: OW24S, OW24D, OW18-1, OW18-11, OW13-29S, and OW13-39D. Moreover, they reviewed the soil samples and testing carried out as part of the Phase 2 Environmental Site Assessment (“ESA”) of 200 Beverley and testified that TCE at a concentration exceeding the Regulatory Standards was detected in six sampling locations. The highest TCE soil sample concentration was observed in the southeast area of 200 Beverley within the footprint of a former galvanizing building and the other five samples were obtained from locations within the eastern portion of 200 Beverley in the vicinity of the former galvanizing building and machine shop. Mr. Gray testified that TCE is a chemical that does not occur naturally in the environment and was commonly used for metals cleaning and degreasing in connection with activities associated with those former buildings during the operational period of a foundry (the “IMICO foundry”) at 200 Beverley from 1912 to 1989 (p. 5 of the MTE Report appended to the Gray Witness Statement).

14Messrs. Mauro and Langille opined that groundwater flows in a south-southeast direction from 200 Beverley to 10 Kingsmill in both the shallow groundwater table (overburden/upper bedrock interface area) and the (slightly deeper) Eramosa Formation. In this regard, they provided detailed geologic and hydrogeologic evidence including a bedrock top-of-surface contour map using available elevation data of subsurface boreholes along the east side of the Guelph Property, the western portion of 490 York and 10 Kingsmill and opined that this map demonstrates that the bedrock surface slopes downward from a high elevation at the northwest corner of 490 York to a low elevation in the southern portion of 10 Kingsmill. They opined that there is also a “narrow depression (or channel) extending from the western portion of 490 York and extends to the southeast below 10 Kingsmill” and that this bedrock surface depression “is expected to direct groundwater flow from 200 Beverley into the depressions (channel) and into a centralized location at 10 Kingsmill” (see p. 5 of the RWDI Review appended to the Mauro and Langille witness statements).

15Messrs. Gray and Jones opined similarly that the groundwater flow in the water table (overburden/upper bedrock surface) is from 200 Beverley to 10 Kingsmill. With regard to the deeper bedrock groundwater flow (the Eramosa Foundation), they opined that:

Mapping of the groundwater flow direction in this unit is more difficult, more variable and less reliable due to the vertical nature of the primary groundwater flow direction and the lesser number of monitoring wells installed, providing a fewer number of water level points in which to interpret between…The historical interpretations of deeper bedrock groundwater flow in the eastern area of 200 Beverley is based on a limited number of wells and is more variable, ranging from south, southeast, southwest, west and east; however, the predominant direction is southerly (see p. 4 of the MTE Report appended to each of the Gray and Jones witness statements).

16Messrs. Langille, Mauro, Gray and Jones were unanimous in their expert opinion that as a result of this direction of groundwater flow, and the identification of cVOC contaminants and most notably TCE in excess of the Regulatory Standards in the groundwater beneath the Guelph Property, there is contaminant migration – of particular concern TCE – from the Guelph Property to 10 Kingsmill. Messrs. Mauro and Langille provided evidence that cVOCs including TCE are known as dense non-aqueous phase liquids (“DNAPLs”) and in this regard opined:

DNAPLs are denser than groundwater and will sink through the soil overburden and the upper fractured portion of the bedrock surface to the depressed bedrock surface feature identified at 200 Beverley, into 10 Kingsmill Avenue (i.e. flow from high elevations to this low elevation and then follow the sloping surface – like surface water flowing from a yard into a ditch then downstream through that ditch) (see p. 5 of the RWDI Review appended to each of the Mauro and Langille witness statements).

17Mr. Gray and Mr. Jones opined that:

Very high concentrations of TCE and TCE degradation products are present in groundwater at the water table and in deeper bedrock near the southern boundary of 200 Beverley with 10 Kingsmill, including the highest concentrations measured at 200 Beverley at monitoring wells OW24S and OW24D. During the RWDI Subsurface Investigation at 10 Kingsmill, high concentrations of TCE and TCE degradation products were also identified in wells MW4S-16 and MW4D-16 [located on 10 Kingsmill], which are approximately 10m away and down-gradient from OW24S and OW24D. The concentrations of TCE are higher in wells OW24S and OW24D at 200 Beverley than OW24S and OW24D [sic] at 10 Kingsmill…..Based on the above it is MTE’s opinion that 200 Beverley is a source of contaminant mass to 10 Kingsmill and TCE and TCE degradation products have migrated and continue to migrate in groundwater onto 10 Kingsmill from [200 Beverley] (p. 8 of the MTE Report appended to each of the Gray and Jones Witness Statements).

18Messrs. Langille, Mauro, Gray and Jones were unanimous in their expert opinion that as groundwater is flowing from 200 Beverley to 10 Kingsmill at the location of the groundwater monitoring wells OW24S and OW24D, the CPU erroneously classifies those wells as “upgradient”; instead, those wells should be classified as “downgradient” and, as such, subject to the applicable monitoring requirements and groundwater monitoring analytes and target concentrations provided for “downgradient” wells to address potential off site adverse effects of migrating contaminated groundwater.

19In cross-examination by the Director’s counsel, Mr. Mauro testified that he has reviewed no contour maps based on comprehensive York/Beverley/Kingsmill data collectively. Mr. Langille testified that their assignment was to review the CPU in terms of the boundary between 200 Beverley and 10 Kingsmill and there was “no consideration of 490 York.” Mr. Mauro testified that historically 490 York and 10 Kingsmill were used collectively by the Guelph Stove Company Ltd., with reference to documents including a 1960 Fire Plan (Appendix “F” of the RWDI Draft Enhanced Phase 1 ESA in Appellants’ Book of Witness Statements). He testified that there were multiple separate machine shops, enamelling and other buildings used as part of this Company’s business on both properties that may have entailed use of chlorinated degreasing solvents (of which TCE is one) and that the historical industrial practices in relation to use, storage and disposal of TCE that resulted in TCE escaping to the natural environment would have been similar on both 490 York and 10 Kingsmill.

20With reference to the 2017 RWDI Subsurface Investigation Summary Report (Appellants’ Book of Witness Statements), of which Mr. Mauro was a co-author, Mr. Mauro testified that his opinion at that time based on data collected as part of that Report was as follows (at p. 9):

Based on the inferred shallow groundwater flow direction at [10 Kingsmill], monitoring well MW5S-16 is downgradient of 490 York Rd. Based on the data, the elevated concentrations of TCE and its degradation products detected within the groundwater samples collected at MW5S-16 are migrating from 490 York Rd. ….Based on the data, the presence of TCE and its degradation products within the shallow and deep groundwater at [10 Kingsmill] is a result of migration from 200 Beverley and 490 York Road.

21Mr. Gray testified that he was retained to opine with respect to the geology and hydrogeology as between 200 Beverley and 10 Kingsmill only and did not review or analyze data nor provide an opinion on these matters with respect to 490 York including groundwater flow direction between 490 York and 200 Beverley and/or 10 Kingsmill.

22Mr. Langille testified that the fluctuations in TCE concentrations in the same monitoring wells of groundwater on the subject properties were due to a number of factors including the time of year of testing, e.g., the influx of surface water into the groundwater during the springtime, the “fairly flat” area between 200 Beverley and 10 Kingsmill, the highly fractured bedrock in which TCE will flow “in and out of”, and the slow flow of the groundwater at times.

23Messrs. Jones and Gray provided opinion evidence (MTE Environmental Opinion Report appended to each of their witness statements) that the geology is consistent beneath 200 Beverley, 10 Kingsmill and 490 York and described the fractured state of the bedrock as follows: “The upper few metres of bedrock in the area are highly weathered and fractured, and the bedrock becomes increasingly more competent and less fractured with depth below ground surface.” They further noted that: “Deeper bedrock groundwater flows through secondary porosity features including horizontal and vertical fractures, weathered bedding planes, oblique fractures, and vugular features. Groundwater flow occurring through secondary porosity features is referred to as fracture flow” (p. 3 of the Report).

24Messrs. Mauro and Langille provided evidence that the concentration level of TCE in both the shallow and deep groundwater on 200 Beverley exceeds the Regulatory Standards at levels “likely to cause an adverse effect to downstream (downgradient) properties such as 10 Kingsmill.” In this regard, they noted that “cVOCs are carcinogens, which are commonly known to be cancer-causing substances in humans” (p. 2 of the RWDI Report appended to their respective witness statements).

25In Mr. Jones’ opinion, “the approach taken in the Risk Assessment and the CPU to monitor offsite groundwater quality is not sufficient to protect 10 Kingsmill.” He testified that the “trigger targets” within the CPU that would require additional remediation options, feasibility studies and/or the implementation of a groundwater remedial action plan only occur if there is a “statistically significant increasing trend” and this will not occur if the (high) TCE concentrations simply remain constant over time. In Mr. Jones’ opinion, the current (high) TCE concentrations detected in the groundwater migrating from 200 Beverley to 10 Kingsmill (e.g., OW24S/D) “are a concern for vapour intrusion to buildings and thereby a potential human health risk to the receptors at 10 Kingsmill” (p. 9 of the MTE Report).

26Mr. Jones opined that the risk management measures of the CPU are inadequate to prevent, eliminate or ameliorate the potential for adverse effects on 10 Kingsmill. He opined that “it would be appropriate to require and implement Risk Management Measures in the southeastern area of 200 Beverley to prevent further off-site migration of VOCs to the extent practical rather than allowing continued migration of contaminants at high concentrations that result in an off-site vapour intrusion risk to 10 Kingsmill” (p. 10 of the MTE Report appended to the Jones Witness Statement).

27Dr. Ferguson (Ph.D. in Health Studies), provided evidence that:

TCE and its degradation daughter products are highly toxic via inhalation. TCE, beyond being a neurotoxicant (i.e., adversely affects the nervous system at elevated concentrations), is a known human carcinogen and a developmental toxicant capable of causing adverse effects to the unborn fetus if a pregnant woman were exposed to sufficient amounts during the sensitive prenatal development window. As such, this group of chemicals pose an important challenge from a risk assessment and risk management point-of-view, particularly when there is the potential for off-site groundwater migration to properties with no risk management measures in place to prevent inhalation exposures (paras. 23 and 24 of the Ferguson Witness Statement).

28Dr. Ferguson provided evidence that cVOCs (of which TCE is one) are:

relatively volatile compounds, hence the name, which results in their propensity to convert from soil and groundwater contamination into a gaseous form which can travel up through the soil into buildings above or near the contaminated media. As such, the primary health hazard arising from this type of contamination is potential inhalation of the chemicals by people living or working in buildings above cVOC-contaminated soil or groundwater (para. 21 of the Ferguson Witness Statement).

Dr. Ferguson testified that these vapours may travel vertically up through cracks in the foundations of buildings and also may “drift” horizontally up to 30 metres from 200 Beverley.

29Dr. Ferguson testified that he was not aware of any indoor air samples or subslab vapour testing being undertaken at 10 Kingsmill. Dr. Ferguson testified that in his opinion this testing is “not necessary at this time” because it is known that the shallow groundwater flowing onto 10 Kingsmill has TCE exceedances. Dr. Ferguson stated:

TCE and a number of its daughter products have been identified at the downstream property boundary sentinel wells on the 200 Beverley property at groundwater concentrations that significantly exceed the relevant Ministry generic groundwater standards. This means that TCE and its daughter products likely exist on downstream properties at levels that pose an inhalation health risk (para. 25 of the Ferguson Witness Statement).

30Mr. Jones also testified that to his knowledge no indoor air or subslab vapour testing has been conducted on 10 Kingsmill although in his opinion such testing would be “the next logical step.”

31Dr. Ferguson testified that none of the risk management measures included in the CPU with respect to the potential adverse effects of exposure to the contaminants (e.g., vapour intrusion mitigation systems) may be mandated for an off-site property under the legislative authority pertaining to a CPU. As such, Dr. Ferguson opined that:

the possibility to construct a barrier, such as a [permeable reactive barrier], along the downstream boundary should be considered as part of a detailed groundwater management plan produced by the City, in consultation with the surrounding stakeholders and the Ministry, and incorporated as a risk management measure in the CPU (para. 36 of the Ferguson Witness Statement).

32Mr. Jones provided evidence that there are “current and feasible options to address TCE contaminant migration at the water table and shallow bedrock that could be implemented at the southern boundary of 200 Beverley (e.g., injected or excavated PRBs [permeable reactive barriers].)” In cross-examination, Mr. Jones stated that he has experience with respect to one site at which a PRB was installed and understands that it requires the input of multiple experts and he has not explored these options further in relation to 200 Beverley and 10 Kingsmill.

33In closing submissions at the hearing, 642 submitted that the CPU is “so flawed” that it should be revoked. In the alternative, if the Tribunal decides not to revoke the CPU, then 642 submits that the CPU should be revised as follows:

1. the selection and labelling of upgradient and downgradient property boundary wells in Table 3E of the CPU must be revised to reflect the fact that groundwater is leaving the southern border of 200 Beverley and migrating to 10 Kingsmill. Consequently, OW24S and OW24D must be classified as downgradient property boundary wells in Table 3E as groundwater is flowing from 200 Beverley to 10 Kingsmill through those wells,
2. require the City to prepare and submit a plan to the Ministry to prevent or eliminate the contaminant migration from 200 Beverley onto 10 Kingsmill through boundary control measures (such as a permeable barrier to treat groundwater as it flows off of 200 Beverley, or injections to reduce the contamination at 200 Beverley that is flowing onto 10 Kingsmill or other technical options) within six months of the Tribunal’s decision,
3. the City and Ministry must then circulate the plan to 642 and any other interested parties for review and comment and engage in stakeholder consultation with those parties, and
4. within six months following stakeholder consultations, the City must implement the plan that considers and incorporates Ministry and stakeholder comments.

Evidence of the Appellant, Sherwood Forest Investments (Guelph) Ltd. (“Sherwood”)

34Sherwood called two witnesses in these proceedings: (a) Tim Dickson, who was qualified as an expert to provide opinion evidence in the subject matter of environmental site assessments under the Brownfields Regulation, characterization, remediation and management of chlorinated solvent impacted properties and contaminant fate and transport in soil and groundwater; and (b) John Ferraro, who is a director of Sherwood, to provide factual evidence.

35Mr. Dickson reviewed the documentation pertaining to the environmental condition of 200 Beverley and 490 York and opined that there is contaminant migration from 200 Beverley to 490 York. In forming this opinion Mr. Dickson provided evidence comprised of “well-pairing” the data from specific wells located on 200 Beverley and 490 York and opined that this data demonstrate groundwater flow is from higher elevations on 200 Beverley to lower elevations on 490 York. Mr. Dickson provided evidence regarding his analysis of the bedrock elevation data of the respective properties and summarized that contaminant transport and migration occurring in shallow groundwater will be from an area of “high elevation” (OW23 – 313.8 metres above sea level (“masl”) in the interior of 200 Beverley to OW24S/D (313.2 masl) along the eastern property boundary of 200 Beverley and then to well OW29S/D (312.9 masl) on 490 York (para. 19 of the Dickson Witness Statement). Mr. Dickson testified that “on a local/Site level, there could be areas of highs and lows in the bedrock surface elevation that can influence groundwater flow.”

36Mr. Dickson also provided evidence regarding more recent groundwater monitoring undertaken at 490 York in 2023 related to Director’s Order Number 1-139396577 that included the following findings and opinion (para. 14 of the Dickson Witness Statement):

• VOC groundwater impacts are present at 490 York and the data indicates that the measured VOC concentrations are stable to decreasing when compared to the 2021 sampling results.
• The concentrations of VOCs in groundwater decrease with distance away from the Guelph Property boundary.
• Groundwater at [490 York] flows in an easterly to southeasterly direction (both for shallow and deep screened monitoring wells) from the Guelph Property to 490 York which is consistent with the 2021 findings.
• Based on the findings, Ramboll’s opinion was (and remains) that the source of VOC impacts at the west side of 490 York and at the Guelph Property is located at the Guelph Property, likely associated with groundwater flow and surface water runoff from the numerous, and already identified VOC sources near to the common property boundary.

37Mr. Dickson further provided evidence that there will be a continuing groundwater monitoring program at 490 York and an annual report thereon filed with the MECP in accordance with the Director’s Order. Mr. Dickson also provided evidence that his firm is in the process of finalizing a Work Plan with the MECP in accordance with the Director’s Order to undertake a staged supplemental investigation program at 490 York that will:

further define the nature and extent of VOC contamination in soil and groundwater as well as groundwater flow directions in the shallow and deeper water-bearing zones beneath the site. The additional monitoring wells that will be drilled during the work will be incorporated into the on-going groundwater monitoring program, along with reporting requirements (pending appeal [of the Director’s Order]) (para. 14 of the Dickson Witness Statement).

38Mr. Dickson provided evidence that in his opinion (para. 19 of the Dickson Witness Statement):

Groundwater flow assessment and characterization work conducted to date along the eastern portion of the Guelph Property, particularly along the eastern property boundary, has not been robust and these data gaps do not allow for a thorough assessment of groundwater flow directions nor contaminant distribution. The eastern Site boundary is approximately 250 feet (75 m) long, and there are only four (4) well clusters have been installed to assess soil and groundwater contamination along the common property boundary. These wells are OW19, OW18I/II, OW13-39S/D, and OW24S/D. The next set of wells are OW22S/D, OW23S/D and OW14, which are approximately 130 ft (40 m) west of the east property boundary. Collectively, these seven well clusters serve a large area of approximately 28,000 sq. ft (2,600 square metres). There is also limited soil data from this area of the Site where historical operations suggest the likely usage, storage and handling of chlorinated solvents. It is noted that elevated TCE concentration in soil were measured at 35.4 ug/g from shallow soil sample BH18-207i located in the southeast corner of the Guelph property (Jacobs Phase Two ESA report).

39Mr. Dickson provided a detailed review of the data and studies that have been compiled over a number of years with respect to the subject properties and opined that:

the assessment of the groundwater flow directions from the contemporaneous groundwater monitoring completed in 2004 and from 2010 to 2016 indicate that groundwater flow is from [200 Beverley] towards 490 York. There has been no further contemporaneous groundwater monitoring events at the two properties since 2016. This lack of data does not allow for a current and more thorough assessment of flow directions between the properties. Additional contemporaneous groundwater elevation monitoring would include the 12 additional monitoring wells that were drilled at 490 York in 2021 along with wells at the Guelph Property. Given the consistent easterly to southeasterly groundwater flow direction that has been shown at 490 York between 2021 and 2023, it is my opinion that this additional data would further assist in confirming groundwater flow directions between the two properties (para. 25 of the Dickson Witness Statement).

40Mr. Dickson provided evidence that his firm (Ramboll) requested access to 200 Beverley in 2021 to collect contemporaneous groundwater samples for analysis and groundwater elevation data to provide “a meaningful assessment of groundwater flow directions and contaminant distribution in the vicinity of the common property boundary between [200 Beverley and 490 York]” but this request was denied by the City and the Ministry declined to order access (para. 14 of the Dickson Witness Statement).

41Mr. Dickson also testified that he did not look “in detail” at 10 Kingsmill including whether there is “robust” data as between 10 Kingsmill and 490 York. Mr. Dickson opined that the best way to resolve the issue of whether there is the potential for groundwater flow southwest to 10 Kingsmill from 490 York (including the potential for intervening flow through 200 Beverley) is through contemporaneous monitoring on all three properties. In cross-examination by the City, Mr. Dickson agreed that the groundwater monitoring required by the Director’s Order will improve all aspects of understanding the groundwater flow and that “more data is better, including from 10 Kingsmill.”

42With reference to the April 2021 Phase 1 ESA and the August 2021 Limited Phase 2 ESA pertaining to 490 York (in the Appellants’ Book of Witness Statements), Mr. Dickson provided evidence that 490 York was historically owned and operated by the Guelph Stove Company from approximately 1911 until it was sold in the 1960s. The Phase 1 ESA identified a number of on-site and off-site potentially contaminating activities (“PCAs”) which may have contributed to Areas of Potential Environmental Concern (“APECs”) related to potential VOC impacts of 490 York. For example, with reference to an on-site PCA and the 1960 Fire Plan, Mr. Dickson testified that there was a machine shop in respect of which chlorinated solvents were commonly used with “lax or non-existent” management practices. The Phase 1 ESA also identified a list of numerous other on-site PCAs relating to potential VOC impacts on the 490 York site including iron and steel manufacturing and processing, metal fabrication, paints manufacturing, processing and bulk storage, and storage, maintenance, fuelling and repair of equipment, vehicles, and material used to maintain transportation systems. In addition, the Phase 1 ESA identified a list of numerous off-site PCAs relating to potential VOC impacts to 490 York from properties including 200 Beverley, 10 Kingsmill, and multiple properties located north and northwest of 490 York on Victoria Road South.

43Mr. Dickson opined that:

as a result of the widespread contamination present in soil and groundwater at the Guelph Property and the migration of this contamination from the Guelph Property to 490 York at concentrations that exceed the MECP generic SCS [Site Condition Standards], as well as the off-site Target Groundwater Monitoring Concentrations (“TGMC”) for (i) commercial offsite indoor air risk, (ii) off-site aquatic and potable water receptors and (iii) off-site construction or utility worker risk (as outlined in the final CPU), there is a known risk of an adverse effect to the offsite properties located at 490 York and 10 Kingsmill, in addition to other properties located between the Guelph Property and the Eramosa River, resulting from this off-site contaminant migration (para. 28 of the Dickson Witness Statement).

44Mr. Dickson opined that the risk management measures of the CPU are inadequate in relation to mitigating the adverse effect as they were developed on the basis that the monitoring wells that are located along the eastern property boundary of the Guelph Property are classified as “upgradient” in relation to 490 York when it is instead his opinion that these wells are “downgradient”, and that the VOC-impacted groundwater identified at 490 York has resulted from migration of VOC-impacted groundwater from the Guelph Property. On this basis, he opined that the terms and conditions of the CPU do not provide sufficient safeguards to prevent, eliminate or ameliorate potential adverse effect associated with the risk of contamination migrating offsite from the Guelph Property onto neighbouring properties, including 490 York.

45In Mr. Dickson’s opinion (para. 44 of the Dickson Witness Statement), the CPU should not be revoked provided that the terms and conditions of the CPU are amended to include risk management measures to prevent, eliminate or ameliorate adverse effects associated with the migration of contamination from the Guelph Property onto 490 York and 10 Kingsmill, including but not limited to:

a) Viable boundary mitigation control measures be implemented along the eastern and southern property boundaries of the Guelph Property to mitigate the migration of contamination from the Guelph Property onto 490 York and 10 Kingsmill. Boundary/barrier control monitoring, sampling, reporting and contingency requirements should be planned and included in the CPU for protection of off-Site receptors.

b) The groundwater monitoring programs currently outlined in the CPU for the Guelph Property should be amended to:

• correct the current monitoring well classifications (upgradient vs. downgradient);
• include additional monitoring wells for representation of conditions across the east portion of the Guelph Property;
• update groundwater trigger levels and target analyte list for protection of off-Site receptors; and,
• include contingency measures for wells along the eastern property boundary if monitoring indicates higher [contaminant of concern (“COC”)] concentrations in groundwater.
• the groundwater level triggers for the wells along the eastern property boundary should be those specified in Schedule A: Table 1E to be protective of off-Site receptors and to reduce the offsite risk of adverse effect (i.e. a lower “trigger” than the PSS currently prescribed for those wells per Schedule “A” – Table B.

46Mr. Ferraro testified that he is a director of Sherwood (the owner of 490 York). He provided evidence that in mid-January 2021, a MECP Provincial Officer required an action plan for Sherwood to conduct subsurface investigations on 490 York. Sherwood retained a consultant, Ramboll, to carry out this action plan and, as part of the proposed work plan submitted to the MECP with respect to this request, Ramboll recommended to the MECP that it undertake a joint groundwater study of existing wells on 200 Beverley and 490 York. Mr. Ferraro understood that:

the purpose of this [recommendation by Ramboll] was to obtain contemporaneous groundwater data to try to resolve uncertainties (to the extent the Ministry considered uncertainty existed) in groundwater flow direction and contaminant migration. Notably, this was in advance of risk assessment or CPU consideration [with respect to the Guelph Property].

Mr. Ferraro provided evidence that the City “refused to provide access” and “the Ministry opposed ordering Guelph to provide access” to complete such contemporaneous testing (see paras. 25 and 26 of the Ferraro Witness Statement).

47Mr. Ferraro provided evidence that Ramboll completed and submitted a Limited Phase 2 ESA to the Ministry in August 2021 and he understood its conclusion to be that groundwater sampling undertaken as part of that ESA “revealed chlorinated solvent impacted groundwater on the west side of the Sherwood Property migrating from the Guelph Property.” Subsequently, in May, 2022, Mr. Ferraro received and reviewed a technical memorandum prepared by Shawn Trimper of the MECP (see Appellants’ Book of Witness Statements) and understood that Mr. Trimper “determined that there was ‘significant uncertainty’ with respect to groundwater flow directions in relation to the boundary areas of the three sites that he was considering – the eastern portion of the Guelph property, the western portion of the Sherwood Property and the adjacent northwestern portion of the Kingsmill Property.” Mr. Ferraro testified that the MECP did not require or ask Sherwood to undertake any investigation between receiving the Phase 2 ESA in August 2021 and disclosing the Trimper Memo in May 2022. On November 30, 2022 a Provincial Officer’s Order was issued to Sherwood to require it to investigate subsurface issues arising from the discovery of VOC impacts in 2004 and the sampling in 2021. On January 31, 2023 the MECP’s Director issued Order No. 1-139396577 to Sherwood requiring Sherwood to submit a work plan for subsurface investigations of 490 York “stemming from the presence of VOC impacts” at 490 York. Mr. Ferraro provided evidence that “the rationale for the Director’s Order is stated to be a concern about an adverse effect with respect to the residential community based upon the presence of VOC impacts in groundwater in the area, including the Sherwood Property. While the Ministry has not identified impacts to any drinking water resources, it has expressed concern about the neighbourhood and specifically the risk of migration of TCE from the Sherwood Property” (para. 22 of the Ferraro Witness Statement). Mr. Ferraro provided evidence that Sherwood filed an appeal of this Order and it is pending before the Tribunal in a separate proceeding currently.

48Mr. Ferraro provided evidence regarding the expenditures that Sherwood has made in connection with the environmental issues pertaining to 490 York including responding to the MECP and the “ongoing and past retainer of environmental consulting experts.” Mr. Ferraro provided evidence that, in addition to the expenses incurred with respect to preparation of the Limited Phase 2 ESA (approximately $115,000), Sherwood has incurred additional expenses on environmental investigations in 2023 and ongoing in connection with the Director’s Order. In his Witness Statement, Mr. Ferraro further provided evidence that:

28. Most recently, Ramboll is preparing a Work Plan in accordance with Ontario Land Tribunal direction pending an appeal of the Director’s Order. The development and implementation of the Work Plan pursuant to the Director’s Order requires significant expense associated with drilling additional monitoring wells and the monitoring of groundwater quality and groundwater flow directions. The estimate I received from Ramboll for new investigative work is roughly $150,000. Sherwood’s source of income is rental income. The rental income is used to facilitate ongoing repairs which are needed given the age and stage of buildings. We need to divert funding from property repairs to address site investigations.

29. Sherwood is involved in a civil proceeding wherein 642762 Ontario Inc. has commenced a claim against Sherwood, Electrolux Home Care Products Canada Inc. (“Electrolux”) and the City of Guelph. Attached at Tab J is a copy of the Statement of Claim. The civil claim relates to migration of contamination from one or both of 200 Beverley and 490 York to 10 Kingsmill (owned by 642762 Ontario Inc.) Electrolux is the former owner of 490 York Road. The Plaintiff in the civil claim alleges property damage associated with contaminant migration from the Guelph Property onto the Sherwood Property and from the Sherwood Property onto 10 Kingsmill. The civil proceeding is still ongoing. There is no trial date set at this time. Also attached at Tab J is a copy of Sherwood’s Statement of Defence and Crossclaim in the civil proceeding.

49Mr. Ferraro testified that there is an “adverse effect” to 490 York in the form of “interference with the normal course of business” (one of the enumerated types of “adverse effect” included in the definition of “adverse effects” in ss. 1(1) of the EPA). Mr. Ferraro testified that cash flow that “should go to capital repair and replacement is instead going to pay for the environmental investigations.” Mr. Ferraro also expressed concern that “it is going to make it difficult to get tenants or they will lose tenants because the building is not kept up.”

50In cross-examination, Mr. Ferraro acknowledged that incurring expenses on the environmental investigations has not prevented Sherwood from obtaining and retaining tenants to date. Mr. Ferraro also acknowledged that Sherwood has incurred environmental investigation costs in connection with Sherwood’s defence in the civil proceeding commenced against it by 642 (the other Appellant in this proceeding) in 2017, separate and apart from the Guelph RA and the CPU.

51In closing submissions, Sherwood submitted that the CPU should be amended as follows:

• east side wells Table 3E – row 1 - remove the reference to upgradient and replace with downgradient and remove reference to Table B (PSS) for target concentrations and replace with offsite commercial target analytes (Table 1E, Column A);
• expand monitoring well network with respect to groundwater elevations to allow for ongoing assessment of groundwater flow directions (Mr. Dickson suggested wells about 1/3 of the way westerly from the east boundary). There are over 30 wells on the east side of the property – only 8 of which are identified for sampling in the CPU (and none of which are identified as “downgradient wells” in the CPU);
• include requirements for notification to adjacent owners of all sampling being conducted by Guelph;
• contingencies for mitigation measures should not be based on statistically significant increases in concentrations or continuing exceedances – OW24 and 13-39 have never not exceeded standards but on exceedances of the target. There is ample evidence that this trend of exceedances is continuing and a remedial action plan should be required;
• Mitigation measures should be investigated and pilot programs should be required and should include notification to adjacent or potentially affected landowners, and where appropriate offsite investigation by the instrument holder to determine feasibility; and
• further characterization is needed in the SE corner of the Guelph site.

Sherwood submitted that in the absence of mitigation measures being imposed to prevent, eliminate or ameliorate the risk of migration offsite, the CPU should be revoked.

Evidence and Submissions of Electrolux Home Care Products Canada Inc. (“Electrolux”)

52By way of oral decision on September 20, 2023 and Order issued December 8, 2023, the Tribunal granted Party status to Electrolux in these proceedings for the purpose of providing evidence and submissions relating to Issue No. 1 of the Issues List only and, in this regard, the Tribunal further ordered that Electrolux “may not raise new issues” and must “refrain from providing evidence that is repetitive or duplicative of that provided by the existing Parties.”

53Electrolux called one witness, Tom McIelwain, who was qualified as an expert to provide opinion evidence in the subject matter of environmental site assessments, fate and transport of contamination in soil, groundwater and surface water, and hydrogeology and geology.

54In his witness statement, Mr. McIelwain described the geology of the three subject properties as follows (at p. 6):

The Three Properties are underlain by a sequence of surficial coarse-textured (sand) fill material, followed by a natural sandy silt to silty sand soil, followed by weathered and fractured carbonate bedrock of the Guelph Formation, followed by much more competent bedrock of the Eramosa Formation, Vinemount member, to the depths investigated by GLL, Ramboll, Jacobs, RWDI and others.

55Mr. McIelwain testified that based upon his review of the list of Reports set out in Schedule 1 to his witness statement, he opined that:

on a balance of probabilities arising from the geologic and hydrogeological data collected over the years, the directions of shallow and deeper groundwater flow affecting the three properties are controlled by a bedrock and groundwater elevation high located in the central eastern portion of 200 Beverley Street that drives groundwater flow and contaminant migration from the groundwater high eastwards towards 490 York Road and southwards towards 10 Kingsmill Avenue.

With reference to Figure 4 of the 2016 WSP Report (one of the reviewed Reports), Mr. McIelwain testified that the bedrock elevation contours depicted thereon show that the highest points of the bedrock “ridges” are in the “bulls-eyes” found at monitoring wells OW19 and OW23 on 200 Beverley and the flow is southeast towards 490 York.

56Mr. McIelwain testified that if a DNAPL (of which TCE is one) were “released” to OW30D (on 490 York) then in his opinion it is unlikely that it would flow to OW24D (on 200 Beverley) because of gravity, i.e., it would not flow upward, although Mr. McIelwain further added that if the bedrock were “modified by specific fractures, then anything is possible.” Mr. McIelwain testified that fractures can be vertical and horizontal. He testified that if a contaminant spill occurred near OW24D (on 200 Beverley), then it could flow towards OW30D (on 490 York) because this is “downhill” according to the bedrock contours but he noted that in fractured bedrock there are other possible pathways. Mr. McIelwain also testified that TCE dissolves in water and in such case “behaves the same way as water” with regard to flow but TCE in pure form is denser than water so it sinks vertically.

57In his witness statement (at p. 8), Mr. McIelwain opined on the nature of groundwater migration within a fractured bedrock as follows:

The nature of groundwater migration within bedrock is primarily controlled by the secondary hydraulic conductivity afforded by the presence of continuous and discontinuous fractures, bedding planes, solution cavities and other structural and weathering features inherent to bedrock in general and carbonate bedrock in particular. The preferential migration pathways within fractured and weathered bedrock cannot be reliably predicted and even with extensive and expensive investigations, the actual migration pathways may be somewhat random from higher elevation to lower elevation, but over small areas, the small-scale pathways from the larger scale upgradient direction to the downgradient direction may be confusing and somewhat counterintuitive, always resulting in some degree of uncertainty.

58Mr. McIelwain provided evidence that “direct comparisons of water elevations and resultant horizontal hydraulic gradients (groundwater flow direction) between 200 Beverley and the 490 York Road Site and 10 Kingsmill Avenue could not be made” because the compared samples from each of the three properties upon which he based his opinion on shallow groundwater flow direction were not taken concurrently and further acknowledged that “seasonal water level variations occur within a given year and from year to year.” Mr. McIelwain provided evidence that comparing data from February 2020 (OW24S), August 2021 (MW29S, OW30S and MW21-3S) and December 2016 (MW4S-16) may not be “directly comparable” but “are expected to represent seasonally low water level periods on average” and opined that “[n]evertheless, the data strongly suggests that shallow groundwater flow is eastwards from 200 Beverley towards the 490 York Road Site and southwards from 200 Beverley Street towards 10 Kingsmill Avenue” (p. 5 of the McIelwain Witness Statement).

59In cross-examination, Mr. McIelwain noted that given the sampling data results reviewed within the reports and the historical industrial uses associated with the use of chlorinated solvents including TCE for all three properties, it is possible that there is a “co-mingled plume” of contaminants affecting the properties. He opined that there is a need to understand all three properties in order to develop an effective remediation plan for 200 Beverley. He agreed with the recommendation set out at p. 8 of the Memorandum of the MECP’s Shawn Trimper dated March 3, 2022 that additional investigation of 490 York and 10 Kingsmill as well as a joint groundwater monitoring and sampling programme for all three properties would be helpful in this regard. Mr. McIelwain testified in cross-examination that he has not reviewed the CPU but is aware that if there is a risk of adverse effects to off-site receptors then the Director has, in addition to issuance of a CPU, other powers including issuance of orders under the EPA to require mitigation of those adverse effects.

60In closing submissions, Electrolux submitted that the CPU should be amended to reflect a finding that 490 York is “downgradient” of 200 Beverley and contaminant migration in groundwater is flowing from 200 Beverley east onto 490 York and to the south onto 10 Kingsmill.

Evidence and Submissions of the Director, MECP

61The Director, Jeff Burdon, provided factual evidence in connection with his acceptance of the Guelph RA and issuance of the CPU.

62Mr. Burdon provided evidence that in early September 2021, he received a recommendation from the MECP’s review team that he accept the RA and, following consideration of the supporting information that the team provided to him to demonstrate that the RA was in compliance with all applicable statutory requirements including with respect to preparation of a Human Health Risk Assessment and an Ecological Risk Assessment and Risk Management Measures (the “RMMs”), and discussion of the recommendation with Jennifer Volpato, the District Engineer, Mr. Burdon accepted the Guelph RA on September 21, 2021.

63Mr. Burdon testified that upon acceptance of the Guelph RA, the Ministry began drafting a CPU for 200 Beverley to incorporate the RMMs as well as any additional conditions. He testified that the draft CPU was posted on the Environmental Review Registry (the “ERO”) for sixty days to provide opportunity for public comment and the Ministry received public comments including submissions from representatives of the owners of 490 York and 10 Kingsmill. Mr. Burdon provided evidence that he considered these public comments in consultation with Ms. Volpato and other Ministry staff over the period February to April 2022 and made nine specific changes to the CPU as detailed in his witness statement at Exhibit “D”.

64Mr. Burdon testified that after considering the ERO comments, the opinions of Ms. Volpato and Mr. Trimper, the Ministry’s Statement of Environmental Values and all applicable laws and policies, he was satisfied that it was appropriate to issue the Guelph CPU and did so on April 20, 2022 with the changes made to the draft CPU that was posted on the ERO and requiring the RMMs detailed in the Guelph RA and, in this regard, provided evidence that he based this decision on the following rationale (at para. 26 of the Burdon Witness Statement):

• The Guelph RA was completed for the Site by a Qualified Person (“QP”) [i.e. Katherine Appleby of Jacob Engineering Group Inc.] in accordance with the EPA, the Regulation and the Ministry’s guidelines and procedures. The Ministry’s review team reviewed the risk management measures proposed for the Site and concluded that they were protective of human health and the environment for the intended future mixed commercial, community, residential, institutional and parkland use of the property. The Guelph CPU relied on this conclusion.
• The issuance of the Guelph CPU makes the implementation and maintenance of risk management measures enforceable and binding on current and future property owners of the Site. These risk management measures will mitigate the potential impacts to human and ecosystem health from the presence of TCE contaminants at the Site.
• The Site does not appear to be the source of the TCE contamination on 10 Kingsmill and 490 York.
• There is significant uncertainty with respect to the groundwater flow conditions in the proximity to the shared boundaries of the Site, 10 Kingsmill and 490 York which will need to be resolved through a joint groundwater elevation monitoring and sampling program coordinated amongst the three properties once an equivalent level of investigation has occurred on all three properties.
• The Guelph CPU is not the appropriate instrument to require the owners of 10 Kingsmill and 490 York to undertake further ESA investigations on their properties. Instead, the Ministry will need to use its compliance and abatement tools to ensure this work is done.

65Mr. Burdon provided evidence that approximately one month after issuance of the CPU, in May 2022, he communicated to the owners of 10 Kingsmill and 490 York the Ministry’s expectation for additional ESA work on their properties and for a joint groundwater monitoring and sampling program to be coordinated amongst the three property owners once this ESA work has been completed. Mr. Burdon provided evidence that orders under the EPA were issued to the owners of 10 Kingsmill and 490 York to complete additional ESA work on each property after he left his role at the Guelph District office in July 2022.

66Mr. Burdon testified that issuance of a CPU does not preclude other steps, for example amendments to the CPU, if the Director receives information that indicates such amendments are warranted.

67In cross-examination, Mr. Burdon testified that he did not review the subject documents that Ministry technical staff reviewed in formulating their conclusions, advice and recommendations to Mr. Burdon regarding 200 Beverley and concerns regarding subsurface contamination in the vicinity of this property, 490 York and 10 Kingsmill and whether it appeared that 200 Beverley was a source of TCE.

68In cross-examination, Mr. Burdon testified that there are no measures in the CPU to reduce or prevent any contaminant migration; however, there are “triggers” in the CPU pertaining to the results of groundwater monitoring requirements that would require mitigation if a contaminant exceeds the trigger value. Mr. Burdon testified that monitoring is the “front end” of risk management and if the monitoring data “points to the need to deal with offsite migration”, then the Director may take steps, including amendments to the CPU, to do so. Mr. Burdon testified that he considered this approach to be consistent with the Ministry’s Statement of Environmental Values, including with respect to the precautionary principle.

69Mr. Burdon provided evidence that he held the position of District Engineer with the Ministry’s Hamilton District Office for approximately eight years and during that time he “routinely dealt with complex brownfield/contaminated site issues” and was involved in over 50 RAs and associated CPUs. In cross-examination, Mr. Burdon testified that while in that District Engineer role, he never required a physical barrier as part of a CPU nor is he familiar with any site in which a physical barrier was required as part of a CPU.

70Counsel for the Director also called the witness Jennifer Volpato, the District Engineer who reviewed the RA and prepared the draft CPU together with the recommendation to the Director, Mr. Burdon, that Mr. Burdon issue the CPU. The Director sought to have Ms. Volpato qualified as an expert to provide opinion evidence on the subject matters of contaminated sites, groundwater contamination and remediation, and the brownfield scheme in Ontario. An issue was raised by the Appellants with respect to the weight that should be given to any opinion evidence that Ms. Volpato might provide with regard to the “sufficiency of her own work” in relation to her preparation of the draft CPU and recommendations relating thereto for consideration by the Director as well as her “independence” and “impartiality.”

71Ms. Volpato provided, as did all other expert witnesses providing evidence in these proceedings, a signed Acknowledgement of Expert’s Duty that was entered into evidence in these proceedings. This Acknowledgement includes the statement that Ms. Volpato acknowledges her duty to provide “opinion evidence that is fair, objective and non-partisan.” There was no evidence provided to the Tribunal that Ms. Volpato was unwilling or unable to comply with that duty. The Tribunal noted that the Appellants would have full opportunity to cross-examine Ms. Volpato on all aspects of her evidence including the basis for her expert opinion in the stated subject matters and any areas in which the Appellants may have concerns about the sufficiency of her work, compliance with applicable statutory requirements or otherwise. The weight to be given to expert opinion evidence is determined through a consideration of the expert’s evidence in its totality including – importantly – the substantive basis that the expert provides in support of any statements of opinion including the rationale, documentation, and data analysis. In view of all of the foregoing, the Tribunal qualified Ms. Volpato as an expert to provide opinion evidence on the subject matters of contaminated sites, groundwater contamination and remediation, and the brownfield scheme in Ontario and, as is the case with all expert evidence, would assess and weigh the evidence of Ms. Volpato in its totality.

72Ms. Volpato provided evidence that the highest concentrations of TCE in groundwater on all three properties – 200 Beverley, 10 Kingsmill and 490 York – “has been observed within groundwater sampled from the deeper bedrock monitoring wells at a depth approximately between 6.55 and 12 m below ground surface within the southeastern most portion of [200 Beverley], where all three properties connect in an irregular manner” which she referred to as the “Area of Interest” in her evidence. The Area of Interest is comprised of parts of the land of each of the three properties (see Exhibit C of the Volpato Witness Statement).

73Ms. Volpato provided evidence that recent groundwater sampling on 10 Kingsmill that was carried out by the owner’s consultant RWDI in late 2023 revealed that the largest TCE concentration at 10 Kingsmill to date is 2,200 micrograms per litre retrieved from MW4D-16 which is located on the 10 Kingsmill portion of the Area of Interest (see para. 2 of the Volpato Reply Witness Statement and the 2023 RWDI Report appended to the Mauro and Langille Witness Statements).

74Ms. Volpato provided evidence that recent groundwater sampling on 490 York was carried out by the owner’s consultant Ramboll in May and August of 2023 and the highest concentration of TCE was found in the sample from a monitoring well located on 490 York within the Area of Interest at MW21-3D, which had a concentration of 6,130 micrograms per litre in May 2023. The sample taken from MW21-3D in August 2023 had a concentration of 279 micrograms per litre (see para. 33 of the Volpato Reply Witness Statement and “Groundwater Analytical Results Table 2 of the Appellants’ Book of Witness Statements at Tab 07(B)25).

75Ms. Volpato further noted that this Ramboll groundwater data sampling also revealed:

an anomalously high concentration of vinyl chloride [“VC”] of 2,600 micrograms per litre in March 2023. This concentration was observed to decrease in August 2023 to 883 micrograms per litre. These observed concentrations of VC appear to be the highest on all three properties to date. Max concentration of VC on 200 Beverley was approximately 86 micrograms per litre in OW24D [located on 200 Beverley] in September 2011. Although this data appears to be an anomaly, this confirms that additional investigation on 490 York is warranted” (see para. 34 of the Volpato Reply Witness Statement).

76With reference to the most recent groundwater sampling undertaken on 200 Beverley by the owner’s consultant Jacobs in October 2023, Ms. Volpato noted that the highest concentration of TCE was found at OW13-39D at 678 micrograms per litre and this well is also located within the Area of Interest.

77Ms. Volpato provided evidence that groundwater flow direction has been “evaluated by all three properties to varying degrees individually but it is generally not well understood collectively across all three properties in the Area of Interest.” Moreover, Ms. Volpato opined (at paras. 83 and 84 of the Volpato Witness Statement):

Shallow groundwater flow directions are known to be influenced by topography, precipitation events and the presence of underground structures such as building foundations or footings and underground utilities.

Groundwater flow and the fate and transport of contamination in a fractured bedrock setting is highly complex and can be variable on a local scale.

78Ms. Volpato testified that in her opinion there is limited groundwater quality data with respect to 10 Kingsmill and 490 York. As such, Ms. Volpato opined that “groundwater flow direction collectively across all three properties in the Area of Interest is generally not well understood” and “groundwater flow and the fate and transport of contamination in a fractured bedrock setting is highly complex and can be variable on a local scale.” Ms. Volpato testified that to assist in determining the source(s) of the TCE in the Area of Interest, Director’s Orders have been issued to both the owners of 490 York and 10 Kingsmill to investigate those properties further, given that all three properties have a history of industrial uses associated with the use of TCE including inappropriate storage or disposal that led to contamination of the environment (see paras. 128 and 129 of the Volpato Witness Statement).

79Ms. Volpato testified that Wells OW24S and OW24D are categorized as “Upgradient Property Boundary Wells,” (i.e. groundwater entering 200 Beverley) currently. In cross-examination, however, Ms. Volpato testified that based on more recent data and analysis she opines that there is groundwater flow from 200 Beverley to 10 Kingsmill at the location of those wells.

80Ms. Volpato provided evidence (at paras. 103-107 of her Witness Statement) regarding the analysis with respect to risks of adverse effects to off-site receptors (including humans) that was undertaken in the preparation of the Guelph RA. Ms. Volpato provided evidence that a qualitative assessment of risks to off-site receptors was undertaken and the potential for primary potential health risks in the event of off-site migration of TCE in groundwater downgradient above Table 6 standards could not be ruled out and included:

a) Dermal contact or incidental ingestion of groundwater for utility and construction workers;

b) Dermal contact or ingestion of groundwater as potable drinking water;

c) Inhalation of TCE vapours from groundwater to indoor air, i.e. vapour intrusion into buildings, in residential or industrial/commercial buildings; and,

d) Inhalation of TCE vapours in outdoor air for construction and utility workers working in trenches if impacted groundwater has migrated off-site.

81Ms. Volpato went on to provide evidence that these potential off-site health risks were addressed in the Guelph RA through risk management measures (“RMMs”) included in the Risk Management Plan (the “RMP”), including but not limited to (at para. 108 of the Volpato Witness Statement):

a) implementing a soil and groundwater management plan during any intrusive activities potentially in contact with COCs in both soil and groundwater;

b) implementing a groundwater monitoring program on the Site to monitor groundwater quality entering and leaving the property that includes target concentrations and a contingency plan and reporting of results to the Director;

c) appropriately constructing and sealing new utility corridors installed on the Site to prevent preferential pathways that would enhance the off-site migration of impacted groundwater; and,

d) implementing a post construction groundwater monitoring plan on the Site that, if required, would monitor any potential impacts in groundwater flow directions and/or changes in groundwater quality due to the redevelopment of the Site.

82Ms. Volpato opined that “Potential for health risks identified in an RA in relation to the off-Site migration of TCE, and related breakdown products, above the Generic Standards, or any exceedances of the Generic Standards, may or may not indicate that an adverse effect is occurring or that there is the potential for an adverse effect” (para. 109 of the Volpato Witness Statement).

83Ms. Volpato provided evidence that the primary objective of the groundwater monitoring program is to determine if there is any substantial change in groundwater quality entering or leaving 200 Beverley. Ms. Volpato opined that the selection of boundary wells identified in the CPU are “appropriate” for this purpose due to their location and based on “what the Ministry knows about the direction of groundwater flow at this time” (para. 144 of the Volpato Witness Statement).

84Ms. Volpato testified that should future groundwater monitoring at the Site’s boundaries indicate a “statistically significant increasing trend” in groundwater concentrations that may result in the potential for off-site adverse effects, Guelph is required to submit a groundwater action plan to the Director. The action plan would require a detailed interpretation of the available data collected to date, along with recommendations for one or more of the following:

a. additional investigations/monitoring on or off the Site;

b. recommendations for the completion of a groundwater remedial option feasibility study; or

c. implementation of a groundwater remedial action plan which may include the implementation of additional remedial/mitigations measures as may be necessary. In this regard, Ms. Volpato noted that the RMP also specifies several remedial measures to be considered that include in-situ chemical or biological treatment, a hydrogeological or reactive barrier wall and hydraulic containment via a pump-and-treat system “just to name a few.”

85With respect to the criterion of “statistically significant increasing trend”, Ms. Volpato opined that “due to the complex nature of groundwater in fractured bedrock, variability in contaminant concentrations is a common occurrence and exceedances of the conservative target concentrations specified in ss. 4.2 (r) and identified in the CPU as Table 1E are expected to be observed from time to time” (para. 16 of the Volpato Reply Witness Statement). Ms. Volpato testified that the CPU requires that a statistical analysis be undertaken to determine if there is in fact an increasing trend in groundwater concentrations moving off-site or if the observed concentrations are just due to the variability that can be expected in this type of environment.

86Ms. Volpato further testified in cross-examination that offsite migration of TCE associated with this groundwater flow is “fluctuating” and is not at concentrations that would cause an adverse effect on 10 Kingsmill and an exceedance of the target concentrations does not lead to the conclusion that there is an adverse effect but rather that the situation warrants a “closer look” and analysis. Ms. Volpato opined that an exceedance of the Table 1E TCE target concentrations of the CPU are based on Table 6 Standards while the Table 2 Standards (less conservative than Table 6) is “more applicable for protection of indoor air risk related to industrial/commercial uses at 10 Kingsmill” (para. 15 of the Volpato Reply Witness Statement). Ms. Volpato testified in cross-examination that OW24D and OW24S have “consistently exceeded” the Table 2 maximum concentrations. She testified that the results of OW24D in this regard are “not relevant” in her opinion, however, as there is neither air in deep groundwater for TCE vapour to be created nor an indoor air pathway from the deep groundwater to receptors. She further opined in cross-examination that the CPU prescribes “action to be taken” if there is a “statistically increasing trend” in relation to groundwater concentration results that exceed the respective target concentrations of the CPU.

87In cross-examination, Ms. Volpato did not agree that there is a “data gap” with respect to the environmental conditions in the vicinity of OW24S and OW24D on 200 Beverley despite the fact that the highest concentration for TCE in groundwater on 200 Beverley was obtained in a sample from OW24D, in November 2015, with a concentration of 7,900 micrograms per litre, and a soil sample obtained in February 2020 from BH18-207i (in close proximity to OW24S/D and on 200 Beverley) had the largest TCE concentration of soil sample from 200 Beverley, at 35.4 micrograms per gram. Ms. Volpato opined that as the BH18-207i sample was obtained at a shallow depth, 0.15m to 0.76m, this was “well before [the detected TCE in the soil] would hit the shallow water table”, and OW17-108S is in close proximity and samples from that well met the MECP Table Standard.

88In cross-examination, Ms. Volpato testified that she reviewed the Ramboll Limited Phase 2 ESA in August 2021 (prior to the acceptance of the RA in September 2021) including its findings that both the shallow and deep groundwater flow directions are easterly within the northeastern corner of 490 York. She testified that she did not ask the consultant (Jacobs) preparing the RA to reconsider its opinion regarding flow direction and opined that the groundwater flow direction across the balance of 490 York is not known due to the limited nature of the groundwater well monitoring network “mostly along the property boundary [with 200 Beverley] that skews the data” that was utilized by Ramboll for this ESA. Ms. Volpato testified that she did not review previous data and reports, including the AECOM reports, to assist in interpreting the Ramboll data nor was a deeper well at 24D (to correspond to the well elevations of the 490 York wells) required by the MECP.

89Ms. Volpato opined that the groundwater flow in the Area of Interest is “not well understood” due to “data gaps” in the groundwater data provided to date with respect to 10 Kingsmill and 490 York and that the groundwater monitoring data collected pursuant to the Director’s Orders with respect to 10 Kingsmill and 490 York will assist in this regard. In cross-examination, Ms. Volpato agreed that the data of some wells, particularly in the Area of Interest (OW24, OW30 and OW 29) are not “comparable” in results because of differing depths at which these wells were drilled and samples taken. With that information, Ms. Volpato testified that the CPU may be amended as appropriate or other tools used pursuant to the EPA by the Director to address the results of such data collection and analysis.

90Shawn Trimper was called as a witness by the Director and qualified as an expert to provide opinion evidence in the subject matter of soil contamination as well as groundwater flow and contamination, with a special focus on the fractured bedrock environment.

91Mr. Trimper testified that in October, 2021 while he was in the role of “Groundwater Specialist”, he was requested by the District Engineer (Jennifer Volpato) to review documents submitted to the MECP with respect to the contamination at 200 Beverley, 490 York and 10 Kingsmill and provide expert opinion regarding the “potential source(s) of chlorinated solvent impacts identified at the three properties and provide recommendations as to what actions are required on the part of the three property owners to further resolve the potential source(s) of contamination.” As a result of that request, Mr. Trimper authored a memorandum addressed to Ms. Volpato dated March 3, 2022 (the “Trimper Memo”, see Exhibit “C” of the Trimper Witness Statement).

92Mr. Trimper provided evidence that:

overall, I concluded that 200 Beverley, 490 York and 10 Kingsmill all have a long history of industrial uses that are commonly associated with the use of chlorinated solvents, specifically TCE. Based on the duration, era, and types of these historical uses, the potential for some degree of TCE impacts from the historical activities on each of the three properties is very high and is supported by the existing information and data. Differentiating the contributions of contaminants from each of the properties is scientifically impractical; however, comprehensive assessment of all three properties is required to understand chlorinated solvent source(s), distribution and migration. This assessment is also required to understand offsite risks and to determine what actions may be required to address any identified offsite risks” (see para. 7 of the Trimper Witness Statement).

93Mr. Trimper opined that this comprehensive assessment has not occurred to date, stating (at paras. 8-10 of the Trimper Witness Statement):

(a) The level of environmental assessment completed on the three properties is “not consistent.” In particular, the environmental conditions of 10 Kingsmill and 490 York have not been adequately assessed in areas where potentially contaminating activities were historically conducted.

(b) The groundwater flow and contaminant migration in the fractured bedrock setting below and surrounding 200 Beverley are “extremely complex and can be highly variable, particularly on a more localized scale.”

(c) The complexity is “further exacerbated” because TCE is a dense non-aqueous phase liquid (“DNAPL”) and as such is denser than water and has limited solubility in water. As such, TCE migration in the subsurface is extremely complex and is “controlled largely by the slope and orientation of the bedrock surfaces and fractures which can result in migration in directions contrary to the flow of groundwater, particularly in the vicinity of source areas where the contaminants were released.”

94Mr. Trimper opined that there is “robust” assessment completed at 200 Beverley but additional environmental assessment on 490 York and 10 Kingsmill is required in order to “adequately understand that distribution and migration of TCE contamination, and to assess potential sources on these properties.” In this regard, Mr. Trimper provided evidence that:

(a) At 490 York, two Phase II ESAs have been completed to date (in 2004 and 2021). In total 16 boreholes and 16 monitoring wells have been installed but the completed assessments have been limited to the northwestern portion of the property and have not assessed all Potentially Contaminating Activities (“PCAs”) and Areas of Potential Environmental Concern (“APECs) identified in those studies; and

(b) At 10 Kingsmill, two “intrusive subsurface investigations” have been completed to date (in 2015 and 2016). In total 10 boreholes and 9 monitoring wells have been installed on the property and have not assessed “adequately” all PCAs and APECs on the property including that only one borehole was installed beneath an existing building located on the northwest corner of the property that was historically used as a machine shop (at which activities were historically associated with the use of TCE).

95Mr. Trimper provided evidence that he “did not disagree” with the conclusion of the MTE Report (prepared for the owner of 10 Kingsmill) that groundwater flow is from 200 Beverley to 10 Kingsmill at the water table in a southerly direction, ranging from southeast, south and southwest”; however, he opined that “some small scale and localised complexity appears to exist that is less well understood.” Moreover, Mr. Trimper noted that the MTE Report provided no opinion about groundwater flow from 490 York and opined that “the data suggests that groundwater is also flowing from 490 York onto 10 Kingsmill, and potentially flowing across 200 Beverley near the confluence of the shared property boundaries, from 490 York onto 200 Beverley [and through to 10 Kingsmill]” (para. 15 of the Trimper Reply Witness Statement). Mr. Trimper testified that there could be “sloshing around” of groundwater at the shared boundary of the three properties given that it is a fairly flat area in bedrock elevation.

96Mr. Trimper disagreed with the opinion of Mr. Dickson that groundwater flow direction is easterly from 200 Beverley to 490 York and, to support his counter opinion, Mr. Trimper referred to Figure 2 of the April 2012 AECOM Report upon which he inserted red arrows perpendicular to the groundwater elevation contours depicted in this Figure in order to illustrate the corresponding direction of groundwater flow in the area of the shared boundary being southerly from 490 York to 200 Beverley. Mr. Trimper opined that Mr. Dickson’s opinion is based on “pairing” of certain wells located on each of 200 Beverley and 490 York and Mr. Trimper opines that “pairing” is insufficient to determine groundwater flow direction; in Mr. Trimper’s opinion a minimum of three monitoring wells is required to “provide a rudimentary understanding of the groundwater gradient and flow direction” and “the monitoring wells must all be screened within the same hydrogeological unit and hydraulically connected and cannot be oriented in a straight line” (para. 32 of the Trimper Witness Statement).

97Moreover, Mr. Trimper disagreed with Mr. Dickson’s opinion that the decreasing TCE trends from samples taken from 200 Beverley and 490 York more recently support the opinion that groundwater (including TCE) is migrating easterly from 200 Beverley to 490 York. Mr. Trimper opined that the decreasing TCE concentrations are not “well understood or known” and could be the result of mechanisms such as the dissolution of residual DNAPL present in a particular area, temporal changes in groundwater flow conditions, increased degradation of the dissolved phase plume or a combination of these mechanisms (para. 24 of the Trimper Reply Witness Statement).

98Mr. Trimper also disagreed with Mr. McIelwain’s opinion that the shallow and deep groundwater flow direction is easterly from 200 Beverley to 490 York. Mr. Trimper provided evidence that in the case of the shallow groundwater, Mr. McIelwain does not compare contemporaneous data samples from the properties and, as such, the “highly variable nature of groundwater levels” at different times of the year and different years cannot be compared in order to form conclusions about groundwater flow direction. In the case of the deep groundwater, Mr. Trimper opined that Mr. McIelwain appears to base his opinion on historic opinion (as presented in the 2004 Waterloo Geoscience Report) that there is a “sloping bedrock ridge on the east site [sic] of 200 Beverley” while more recent data regarding bedrock elevations indicates that the previously identified sloping bedrock ridge may actually be a bedrock trough, as has been presented by RWDI [consultant retained by 10 Kingsmill owner].” Moreover, Mr. Trimper opined that Mr. McIelwain’s opinion appears to be based also on the opinion that there is a groundwater mound on 200 Beverley and “a very small number [of] and selected groundwater flow assessments” while in Mr. Trimper’s opinion “no such groundwater mound and flow conditions have been routinely identified in other more comprehensive groundwater flow assessments which suggest instead the presence of groundwater mound on 490 York” (paras. 29 and 30 of the Trimper Reply Witness Statement).

99Mr. Trimper opined that a joint groundwater monitoring and sampling programme in respect of all three properties should be undertaken in order to “develop a more comprehensive understanding of groundwater flow conditions and contaminant distributions at specific points in time, particularly near the property boundaries” (para. 11 of the Trimper Witness Statement).

100Mr. Trimper provided evidence that the groundwater sampling data to date indicate that the bulk of the contaminant mass is located within the deeper bedrock unit and opined that this is likely because TCE, being a DNAPL, “would have migrated vertically downward through the more heavily fractured and permeable shallow bedrock until it reached the deeper less fractured and less permeable rock where the DNAPL would have accumulated. The higher permeability and higher groundwater flow rates in the shallow bedrock would be expected to have resulted in faster dissolution of the DNAPL present in the shallow bedrock in comparison to the deep bedrock” (para. 73 of the Trimper Witness Statement).

101Mr. Trimper also provided evidence that the groundwater sampling data to date “shows that concentrations have improved considerably since 2016 at those monitoring wells located on 200 Beverley Street near the shared property boundaries and opined that as the highest level of impact is now located on 490 York, this provides “some evidence to suggest the most significant remaining source is located on this property.” Mr. Trimper opined that “[a]dditional assessment on 490 York is required to determine if the depleted source zone extends further northeast.” Mr. Trimper also provided evidence that the most recent groundwater sampling results “indicate that the concentrations of contamination on 200 Beverley in the area of their shared boundary are now similar (or lower) than those located on 10 Kingsmill” but noted that recent data does not exist for 10 Kingsmill to make a proper comparison (para. 74 of the Trimper Witness Statement).

102Mr. Trimper provided evidence that the data setting out the “maximum groundwater concentrations of select VOCs” (including TCE) provided in the RWDI Report indicates a concentration of 260 micrograms per litre at MW5S-16, a monitoring well located in the southeasterly area of 10 Kingsmill and opined that this elevated concentration “does not appear to extend from the source zone near the shared boundaries, indicating an alternative source” which may be on 10 Kingsmill or the southern portion of 490 York and opined that “additional assessment of 10 Kingsmill and 490 York would be required to confirm whether a secondary source(s) is present and where it is located” (para. 75 of the Trimper Witness Statement).

103Mr. Trimper provided evidence that in his opinion the concentrations of TCE detected in soils on the three sites are “relatively minor and do not constitute gross impacts or the presence of residual DNAPL.” He opined that “it is very plausible that any TCE present in the source zone may have volatilized in many instances” and “it is difficult to identify the source zone based on soil quality.” He opined that soil samples are helpful in relation to determining if an active source is present within soils and provides additional information that can be used to inform about possible source zone(s).

104In cross-examination, Mr. Trimper opined that it would not be useful to obtain additional soil samples in the immediate vicinity of Wells 24S and 24D because the TCE concentration is higher in 24D than 24S.

105In cross-examination, with reference to his March, 2022 Memo (Ex. C of the Trimper Witness Statement), Mr. Trimper opined that differences in monitoring well construction including the well depths and screen lengths can greatly influence the usefulness of the resulting data. Mr. Trimper agreed that there might need to be new wells drilled on 200 Beverley with the appropriate screen length in order to obtain useful data in connection with the data obtained through contemporaneous groundwater sampling and monitoring on the other two properties.

106In cross-examination, Mr. Trimper opined that there is uncertainty with respect to groundwater flow direction at the boundary between 490 York and 200 Beverley. He testified that he “can’t confirm” the contours on 490 York are extensions of the contours on 10 Kingsmill and noted that the area is “very flat” and within the range of a surveyor’s error. Mr. Trimper opined that the information from 2004 that indicated a sloping bedrock surface southeast from 200 Beverley is “outdated” as more recent data (presented by RWDI, the consultant retained by 642) “indicates the presence of a more complex bedrock trough, as opposed to the historically contemplated sloping bedrock surface” (para. 20 of the Trimper Reply Witness Statement). Mr. Trimper opined that it is more likely than not that groundwater flows southwest from 490 York, “clips the corner” of 200 Beverley and then flows onto 10 Kingsmill, with reference to Figure 2 from the April 2012 AECOM Report (Exhibit A to the Trimper Reply Witness Statement) depicting the shallow groundwater contour maps and from which the local groundwater flow direction (perpendicular to the contours) is southerly from 490 York onto 200 Beverley.

107In closing submissions, counsel for the Director submitted that the CPU should be confirmed as issued by the Director, except only that Schedule “A”: Table 3E of the CPU should be amended to reflect that OW24S and OW24D are “both upgradient and downgradient property boundary wells.”

Evidence and Submissions of the City of Guelph

108The City called David Marks as a witness, who was qualified as an expert to provide opinion evidence in the subject matter of hydrogeology, contaminant fate and transport in groundwater and VOC remediation.

109Mr. Marks provided evidence that the site characterization process at 200 Beverley was completed in accordance with the Brownfields Regulation and “relied on over 100 investigative locations including 52 boreholes, 76 test pits and 95 monitoring wells. The investigative depths ranged from less than 1.25 m below ground surface to a depth of 33 m below ground surface.” Mr. Marks opined that there is a “highly fractured bedrock environment” discerned through the investigation of 200 Beverley, with “core descriptions and photographs from the deepest boreholes (as shown in the 2016 WSP Report) indicating “that the greatest fracture intensity occurs in the Stone Road and upper Reformatory Quarry Member” and “decreases substantially” with depth into the Goat Island Formation. Mr. Marks opines that “[a]ccordingly, groundwater flow and contaminant migration will predominantly occur in the upper shallow aquifer.” Mr. Marks further opined that the regionally shallow groundwater movement will “generally reflect the surface topography” which in his opinion is southwards from a topographical high located north of 200 Beverley (near Grange Street and Victoria Road) to the Eramosa River located south of the three subject properties (paras. 21 and 22 of the Marks Witness Statement).

110Mr. Marks opined that studies and investigations carried out on various occasions starting in 1999 (Gartner Lee Limited) and through data collected and compiled in annual reports undertaken by AECOM including water level monitoring at wells located on 490 York from 2010 to 2016 demonstrate that groundwater flow is in a “south to south-southwesterly direction, indicating that groundwater from the west corner of 490 York Road flows onto 200 Beverley Street, and then on to 10 Kingsmill Avenue (see para. 24 of the Marks Witness Statement).

111Mr. Marks opined that the interpretation of the 2017 RWDI groundwater levels data collected at 10 Kingsmill “indicates that groundwater in the Overburden and Bedrock Contact Zone generally flows in a southerly direction and that both 200 Beverley Street and 490 York Road are located upgradient of 10 Kingsmill Avenue” (para. 25 of the Marks Witness Statement).

112Mr. Marks disagreed with the interpretation of groundwater flow direction set out in the 2021 Ramboll Study obtained by the owner of 490 York (i.e. groundwater in the Overburden and Bedrock Contact Zone flows in an easterly direction from 200 Beverley to 490 York) and opined that this interpretation is incorrect because:

a) It “does not correlate with the regional conditions (topography) that control groundwater flow and the water level collected at 200 Beverley and 10 Kingsmill, both of which indicate a southerly flow direction”;

b) It is based on interpreted groundwater contours that “are based on data collected from monitoring wells on 490 York only and…fails to account for water level data in monitoring wells located on 200 Beverley and 10 Kingsmill”; and

c) Mr. Dickson’s [of Ramboll] analysis “was completed using pairs of wells, one located on 200 Beverley and the other located on 490 York. Groundwater flow direction can not be determined using only two wells. [The Brownfields Regulation] (Section 23 of Schedule E) requires the installation of a minimum of three wells, not placed in a straight line, to interpret horizontal flow” (para. 5 of the Marks Reply Witness Statement).

113Mr. Marks provided opinion evidence that, based on the reports and studies made available for these proceedings, the site characteristics of 490 York and 10 Kingsmill have not been full examined or assessed. In this regard, Mr. Marks provided evidence as follows (paras. 18 and 19 of the Marks Witness Statement):

18. The site characterization process at 490 York Road relied on 16 monitoring wells with investigative depths ranging from 4.27 m bgs to a depth of 12.2 m bgs and was reported to have been completed in “general accordance with the Canadian Standards Association CAN/CSA-Z769-00 Phase II Environmental Assessment standard” (Ramboll 2021 pg. 1). Since the site characterization was not completed in accordance with O. Reg. 153/04 (as amended) [ i.e. the Brownfields Regulation], potentially contaminating activities, associated areas of potential environmental concern and compounds of potential concern at 490 York Road have not been fully examined.

19. The site characterization process at 10 Kingsmill Avenue relied on 10 boreholes and nine monitoring wells, with investigative depths ranging from 3.1 m bgs to a depth of 12.3 m bgs. The investigation was reportedly completed “in consideration of the Canadian Standards Association Standard Z769-00 [CSA Standard] and, where applicable, the Ministry of Environment and Climate Change [MOECC] Ontario Regulation 153/04 for Records of Site Condition [O. Reg. 153/04]. The investigation was completed as a due diligence measure to identify potential environmental liabilities” (RWDI 2021 pg. 1). Since the site characterization was not completed in full accordance with O.Reg. 153/04 (as amended) [i.e. the Brownfields Regulation], potentially contaminating activities, associated areas of potential environmental concern and compounds of potential concern at 10 Kingsmill Avenue have not been fully assessed.

114Mr. Marks provided evidence that the available TCE data pertaining to 490 York and 10 Kingsmill were collected from monitoring wells located around the property boundary edges and not within central industrial areas and opined that those latter areas are a possible source or area of higher TCE concentrations. In Mr. Marks’ opinion, the distribution of TCE in the groundwater at 490 York and 10 Kingsmill have not been fully characterized (see para. 35 of the Marks Witness Statement).

115Mr. Marks opined that the TCE concentration profiles of some of the specific borehole soil samples collected on 490 York and 10 Kingsmill suggest that there was a “release” of TCE on those properties (paras. 31 and 32 and Figure “Exhibit 2” of the Marks Witness Statement).

116Mr. Marks opined that the TCE concentration detected in groundwater samples collected on the three subject properties at monitoring wells “in close proximity to each other” at the common boundary of these three properties “suggest that a common source is likely possible” (paras. 33 and 34 and Figure “Exhibit 3” of the Marks Witness Statement). Further, as TCE was detected in concentrations above the Table 2 SCS in groundwater samples collected from two wells located on the east side of 10 Kingsmill immediately to the south of the common property boundary of 490 York (MW5S-16 and MW5D-16), Mr. Marks opined that “these exceedances suggests that a [TCE] source may be present on the uncharacterized east side of 490 York Road” (para. 34 of the Marks Witness Statement).

117In cross-examination, Mr. Marks testified that given the history of uses at 200 Beverley, this property “could be a source of TCE” (detected on 10 Kingsmill) and groundwater is flowing from 200 Beverley towards 10 Kingsmill. Mr. Marks testified that looking at data from all three subject properties would be beneficial to better understand the source(s) of contamination and groundwater flow.

118The City also called the witness Tania McCarthy who was qualified as an expert to provide opinion evidence in the subject matters of environmental site assessment in accordance with the Brownfields Regulation, fate and transport of contamination in soil and groundwater and Records of Site Condition, save and except that groundwater flow and migration of DNAPLs within the fractures of deeper, more competent bedrock is not within Ms. McCarthy’s expertise (para. 13(c) of the McCarthy Witness Statement).

119Ms. McCarthy opined that based on the data collected from multiple investigations since 1999 by various consultants (Gartner Lee, AECOM, Decommissioning Consulting Services), including AECOM reports from 2010 to 2016 which included data from 490 York, the shallow groundwater flow has:

generally been shown to be flowing from the north to the south-southeast, following the northeast [200 Beverley] and southwest 490 York property line. Through this 20-year dataset, shallow groundwater flow does not appear to be flowing east towards 490 York from the Guelph Property and therefore it is inferred that contaminant migration does not occur from [200 Beverley] to 490 York (para. 30 of the McCarthy Witness Statement).

120Ms. McCarthy provided evidence of the studies and sampling undertaken with respect to 200 Beverley and opined that there is a “very robust data set” with respect to 200 Beverley but “limited data” with respect to 490 York and 10 Kingsmill. Ms. McCarthy opined that “additional data” with respect to those latter two properties “would aid in finding where the potential source or sources [of contaminants of concern] are located, and determining if there is a larger plume or DNAPL present that may contribute to ongoing elevated concentrations” (para. 37 of the McCarthy Witness Statement).

121Ms. McCarthy provided evidence that the Phase One ESA for 200 Beverley identified, as required by the Brownfields Regulation, “off-property Potentially Contaminating Activities” and, as such, identified through historic records that there were past uses (Guelph Stove Company and Guelph Engineering Co.) with the potential for chlorinated solvent use on the adjacent properties at 490 York and 10 Kingsmill. Ms. McCarthy provided evidence that:

the use of chlorinated solvents was fairly ubiquitous in the industrial sectors from around the 1940s, corresponding to the period when the former industrial activities were present on all three properties. Machine shops specifically are located on both 10 Kingsmill and 490 York adjacent to the shared property boundary, which as noted in Section 3.1, page 5 of the Environmental Opinion report appended as Exhibit C to both Peter Gray’s and Thomas Jones’ witness statements, “TCE was a common solvent used for parts degreasing by machine shops” (para. 8 of the McCarthy Reply Witness Statement).

Ms. McCarthy provided evidence of the locations of these machine shops with reference to a copy of the 1960 Fire Insurance Plan appended to her Witness Statement.

122Ms. McCarthy provided evidence that the 2021 Limited Phase 2 ESA completed by Ramboll regarding 490 York evaluated only 3 of the 11 APECs identified in the Ramboll 2021 Phase 1 ESA. Ms. McCarthy provided evidence that the Ramboll Phase 1 ESA identified 9 APECs due to onsite PCAs and 2 APECs due to offsite PCAs, with 5 of these APECs considered site-wide APECs. The Ramboll Limited Phase 2 ESA evaluated only the 2 APECs in the western portion of 490 York and at the property boundaries to assess the offsite sources only. Ms. McCarthy opined that “the limited locations [of the monitoring wells on 490 York]” do not characterize soil and groundwater within the onsite APECs or provide groundwater and soil information from the central and east portion of the property. Ms. McCarthy testified that in her opinion it is “very difficult” to remediate contaminated groundwater effectively if the source(s) of contamination are not identified.

123Ms. McCarthy opined that “additional data is required prior to implementing any possible remedial measures due to the more complex site conditions of shallow bedrock and TCE-contaminated groundwater within the limited fractures of the deeper bedrock” (para. 38 of the McCarthy Witness Statement). Ms. McCarthy provided opinion evidence that “implementing any groundwater remediation without additional information could have a low potential for success and likely cause a change in groundwater flow conditions and possibly an unexpected or unwanted change in the contaminant migration if not fully understood” (para. 38 of the McCarthy Witness Statement). Ms. McCarthy testified that in her opinion remediation without the additional information on all three properties could make the situation worse and noted, as an example, that a permeable reactive barrier could push contamination into areas that are not contaminated currently.

124Ms. McCarthy testified that she has experience with CPUs pertaining to other properties in which groundwater monitoring results were utilized to identify a source of contamination such that remediation could occur and, in addition, through “other regulatory tools”, soil vapour testing and indoor air sampling was required on the lands and buildings of adjacent properties. Ms. McCarthy also testified in cross-examination that “other regulatory tools”, such as abatement orders, are available with respect to 200 Beverley if determined to be warranted and the accepted RSC (RA) does not preclude such tools being used.

125In cross-examination, Ms. McCarthy agreed that 490 York could be a source of TCE contamination in the groundwater. Ms. McCarthy confirmed that her expertise qualifies her to provide opinion evidence regarding the migration of contamination and not groundwater flow direction; she did not interpret the groundwater contour maps nor was she involved in the decisions regarding designation of monitoring wells as “upgradient” or “downgradient” in the CPU. Ms. McCarthy testified that in her opinion there was not a “data gap” in the southeastern corner of 200 Beverley (including in the vicinity of OW24S and OW24D) and noted that the Brownfields Regulation refers to using the property boundary as a limit. Ms. McCarthy testified that additional data from 10 Kingsmill would assist in interpreting data from 200 Beverley that is immediately adjacent to the property line with 10 Kingsmill.

126The City also called the witness Katherine Appleby who was qualified as an expert to provide opinion evidence in the subject matter of site assessment and risk assessment under the Brownfields Regulation. More specifically with regard to “adverse effects” as defined by the EPA, Ms. Appleby was qualified to opine on adverse health effects (human and ecological health) and not the other types of “adverse effects” set out in the definition of “adverse effects” in ss. 1(1) of the EPA.

127Ms. Appleby provided evidence that the Guelph RA identified that there is the potential for an adverse effect to occur at offsite properties located hydraulically downgradient of the Guelph Property and, as such, the contaminant of concern (COC), receptor, and pathway combinations where potential offsite risk could occur were identified in Table 4-41 (human health) and Table 5-12 (ecological health) of the RA, all in accordance with the requirements of the Brownfields Regulation for a RA. Ms. Appleby opined that only adverse human health effects and adverse ecological health effects are contemplated in RAs completed under the Brownfields Regulation.

128Ms. Appleby opined that “an adverse effect to human or ecological health can only occur when a receptor, a chemical, and a complete route of exposure (pathway) are all present. If one of these elements is absent or incomplete, an adverse effect cannot occur. However, there is an important distinction that the presence of all three components does not guarantee that an adverse health effect will occur, only that the conditions are present for a potential adverse health effect to occur” (para. 15 of the Appleby Witness Statement).

129Ms. Appleby opined that for RA reports completed in accordance with the Brownfields Regulation they are required to qualitatively discuss the potential for adverse effects to occur to offsite receptors and it is not appropriate to quantify the potential or risk for an adverse effect to occur to offsite receptors because the specific subsurface conditions offsite are not investigated during the completion of a RA under the Brownfields Regulation and, as such conditions are therefore unknown, “there is a degree of uncertainty with respect to the statements made regarding the potential for risks to occur offsite” (para 18 of the Appleby Witness Statement).

130Ms. Appleby provided evidence that the RA qualitatively assessed the potential for offsite adverse effects in two ways:

(a) In the context of the onsite results. For example, if there was a potential for an adverse effect to occur onsite, it was assumed that a potential adverse effect could also occur offsite for the same media/receptor combination(s), if similar offsite exposure pathway(s) were considered “complete”; and

(b) By comparing onsite concentrations in soil and groundwater to MECP-derived generic, risk-based concentrations. For example, if the concentration of an onsite groundwater COC was greater than a MECP-derived value specific to a receptor located offsite, then it was assumed that a potential adverse effect could occur to that offsite receptor (para. 17 of the Appleby Witness Statement).

131Ms. Appleby opined that the evaluation of the potential for offsite adverse effects was approached in a “conservative” manner in the preparation of the RA. In this regard, Ms. Appleby provided evidence that the more conservative Table 6 Site Condition Standards were used in this evaluation even though the less conservative Table 2 SCSs would be the applicable Table with respect to 10 Kingsmill and 490 York and, indeed, the latter Table 2 SCSs were selected by each of the Appellant’s expert witnesses as appropriate for their respective properties given that those properties are categorized as “industrial/commercial/community” land use and the bedrock appear to be greater than 2 metres in depth over the majority of both properties based on available information, referring to the 2017 RWDI Report data (10 Kingsmill) and the 2021 Ramboll Report and the 2017 AECOM Report (490 York) (para. 18 of the Appleby Witness Statement).

132Ms. Appleby provided evidence comparing the Table 2 and Table 6 SCSs, noting that while the Tables are equivalent by land use for soil, the groundwater SCS (applicable to all land uses) are lower (more conservative) under Table 6 than Table 2 for the applicable COCs. Specifically, Ms. Appleby provided evidence that “of the 30 groundwater COCs identified [for 200 Beverley], the Table 2 SCS range from 1.2 to 10 times higher than the Table 6 SCS for the following analytes: anthracene, benzene, 1,1-dichloroethylene, n-hexane, naphthalene, petroleum hydrocarbons (PHC) F1, tetrachloroethylene, 1,1,1-trichloroethane, trichloroethylene (TCE), and zinc.” (para. 18 of the Appleby Witness Statement). Further, Ms. Appleby provided evidence regarding the different (more conservative) assumptions that must be used in accordance with the Brownfields Regulation including that “for human health indoor inhalation pathways, the Table 6 SCS were derived ‘with the assumption that no soil might be present between the bedrock and the basement’. The Table 2 SCS were derived assuming ‘sufficient space for biodegradation to occur between the bedrock…and a building above’ (MECP 2011)” (para. 18 of the Appleby Witness Statement).

133Ms. Appleby opined that the “conservative assumptions” (as described above) utilized in the RA are reflected in the Risk Management Plan including the Groundwater Monitoring Program (“GMP”) that is required under the CPU. Specifically, these “conservative assumptions form the criteria used to evaluate whether an offsite adverse effect has the potential to occur”. Ms. Appleby opined that the sampling data of concentrations of groundwater COCs at the boundaries of 200 Beverley in shallow water indicated a lower potential for adverse effects to occur offsite than onsite and “therefore, the GMP was proposed to further evaluate the potential for offsite adverse effects” (para. 18 of the Appleby Witness Statement).

134Ms. Appleby testified that in her opinion the shallow water is the primary exposure risk because air is present and volatilization may occur whereas air is not present in deep groundwater to facilitate volatilization. Ms. Appleby provided opinion evidence that it is inappropriate to conclude from “a comparison of the deep groundwater concentrations directly to generic MECP values protective of indoor air inhalation” that an adverse effect “is occurring or likely to occur” because in her opinion there must be consideration of whether the shallow groundwater concentrations in the same area are lower, and whether there is a “complete route of exposure from deep groundwater to indoor air (especially when downward hydraulic gradients have been demonstrated to be present)” (para. of the Appleby Reply Witness Statement).

135Ms. Appleby provided evidence that to address the potential for adverse effects via potentially complete offsite pathways, the accepted GMP as proposed in the Risk Management Plan (“RMP”) in the RA (and incorporated in the CPU) classified the monitoring wells into three categories, based on the understanding of the Site conditions and use of a Conceptual Site Model (“CSM”) that was developed using monitoring data collected at 200 Beverley between 2018 and 2020. Based on this, she provided evidence (see para. 18(g) of the Appleby Witness Statement) that the monitoring wells in the GMP are classified into three groups:

i. Wells on the northeastern boundary – to provide an indication of contaminants entering the property to assess potential changes to assumptions and to inform other aspects of the GMP and VI [vapour intrusion] mitigation requirements for future onsite buildings.

ii. Shallow Wells on the southeastern property boundary – to assess the potential for adverse impacts via the groundwater to indoor air pathway at downgradient offsite properties, as well as downgradient aquatic receptors in a surface water body and subsurface workers.

iii. Deep wells on the southeastern property boundary – to assess the potential for adverse impacts via the groundwater to downgradient aquatic receptors in a surface water body and the potable groundwater pathway.

136Ms. Appleby provided evidence that the GMP also requires monitoring of other site characteristics, in addition to concentrations of COCs, that, in her opinion will “continue to inform and confirm the CSM understanding. These include the presence of nonaqueous phase liquids (NAPL) and groundwater flow characteristics, thereby allowing continued MECP review of the CSM and changes, if needed, to be made within the context of the CPU GMP” (para. 18 of the Appleby Witness Statement).

137Ms. Appleby provided evidence regarding that there was an iterative process through which the potential risks of adverse effects were reviewed and accepted as part of the consideration of the Guelph RA by the Director. Specifically the RA including the RMP was prepared and submitted by Guelph’s consultant (Jacobs) to MECP and was reviewed by both MECP staff (at the Standards Development Branch and the local District Office) as well as an external peer review provided by an environmental engineering/consulting firm with expertise in RAs that was pre-qualified by the MECP to assist with the review of pre-submission forms (PSF) and RAs submitted under the Brownfields Regulation. Additional information was requested and received by the MECP from the City’s consultant. Three draft versions of the RA were submitted to MECP, revised in each version to address the issues identified by the MECP in its “Notice of Circumstance” which attaches a Schedule “A” containing the comments on the RA that must be specifically addressed before the RA can be accepted by the MECP (para. 20 of the Appleby Witness Statement).

138Ms. Appleby provided evidence that upon the acceptance of the Guelph RA, the MECP’s Procedures for the use of Risk Assessment under Part XV.1 of the EPA document (July 2020 [Draft]) states that “other regulatory and compliance tools also may be required to address other aspects of redevelopment for many properties, including….vi. Abatement and addressing off-site impacts” (see paras. 20 and 21 of the Appleby Witness Statement).

139Ms. Appleby opined that once an RA meets the requirements of the Brownfields Regulation and is accepted, the owner of the subject property (in this case, the City) may proceed in accordance with the terms and conditions of a CPU issued in accordance with this RA. Ms. Appleby opined that:

if the potential for offsite impacts has been identified in the RA, the MECP has additional tools available, outside of the CPU and O. Reg. 153/04 process, to address these concerns. These two processes should not be conflated, as that would undermine the purpose and intent of O. Reg. 153/04 [the Brownfields Regulation] for the ‘revitalization of abandoned industrial land or other underutilized and often contaminated lands, generally known as brownfield sites’ (see para. 21 of the Appleby Witness Statement).

140Ms. Appleby opined that the GMP in the CPU “is the typical first step” and provides “a logical tiered framework for decision-making with respect to the actions needed to prevent, eliminate or ameliorate an adverse effect on offsite properties.” She provided evidence that the data collected at the CPU-stipulated minimum intervals will be reviewed by the MECP and must continue until such time as the Director approves revocation of those requirements. Ms. Appleby provided evidence that the GMP includes the following elements:

(a) Measuring of groundwater levels, monitoring of residual NAPL, and sampling of groundwater from select locations.

(b) Laboratory analysis of groundwater samples.

(c) Interpretation of the groundwater results with respect to the Target Groundwater Quality Concentrations (TGQC).

(d) Interim reporting to the MECP in the event of TGQC exceedance(s), including trend analysis, and the completion of a Groundwater Action Plan (GAP).

(e) Implementation of the GAP, as required.

(f) Annual reporting with submission to the MECP.

141Further, Ms. Appleby provided evidence that if a GAP is required then, per ss. 4.2(r)(vii)(4) of the CPU, the GAP must include recommendations for one of more of the following:

(a) any additional investigation/ monitoring on or off Property as may be required;

(b) recommendations for the completion of a groundwater remedial option feasibility study; or

(c) the implementation of a groundwater remedial action plan which may include the implementation of additional remedial/mitigation measures as may be necessary (see paras. 24 and 25 of the Appleby Witness Statement).

142Ms. Appleby provided evidence that the City has proceeded with implementation of the GMP and, as a result of analysis of the collected data detecting concentrations greater than the “target groundwater quality concentrations” set out in the CPU, the City has submitted and received approval from the Director to implement a GAP “including increased groundwater monitoring frequency at select monitoring wells locations and the placement of absorbent socks in three monitoring wells to passively remove NAPL” and opined that these actions “demonstrate that the current requirements of the CPU are effective to prevent, eliminate or ameliorate any potential adverse effect in a tiered manner” (see para. 32 of the Appleby Witness Statement).

143Ms. Appleby opined that the CPU is a “living document” and noted that Part 5.6 of the CPU states: “Notwithstanding the issuance of the CPU, further requirements may be imposed in accordance with legislation as circumstances require”.

144Ms. Appleby provided evidence that in addition to the requirements of the CPU, the Director also “has the ability to invoke an action using their Abatement and Enforcement Tools. The filing of the RSC for the Guelph Property [the RA] does not preclude the MECP from issuing an order to the property owner of the Guelph Property.” Ms. Appleby cited ss. 168.7(3) of the EPA and opined that “the “protections” from orders afforded by an RSC are not applicable “if, after the certification date, any of the contaminant moved from the property to which the record of site condition relates to another property” (see para. 29 of the Appleby Witness Statement).

145Ms. Appleby opined that:

given the current uncertainty regarding the source of chlorinated solvents in groundwater, the complex nature of dense nonaqueous phase liquid (DNAPL) migration in fractured bedrock, and the groundwater flow direction(s) in the area where the three subject properties adjoin, it is my opinion that it is premature to assign the burden of implementing a solution to mitigate contaminant migration in this area solely on the owner of the Guelph Property when these data gaps exist. The current approach employed by the MECP; that is, to seek additional environmental information from both the 490 York and 10 Kingsmill properties, to reduce the uncertainty regarding source, DNAPL migration, and groundwater flow direction, is prudent and appropriate (para. 8 Appleby Reply Witness Statement).

146In cross-examination, Ms. Appleby testified that the October 2023 data for OW24-S and MW19-137S exceeded the maximum target groundwater concentration target of 0.5 micrograms per litre as set out in Schedule “A” Table 1E of the CPU.

147In cross-examination, Ms. Appleby testified that she did not consider the risk of adverse effect to offsite receptors on 490 York because that property is considered “upgradient” and she relied on this upgradient determination that was made by hydrogeologists as part of the Phase 2 ESA for 200 Beverley. She testified that although the “trigger” for a remedial options feasibility study pertaining to data collected along the eastern boundary of 200 Beverley with 490 York is with respect to adverse impacts to receptors on 200 Beverley, she would “flag” exceedances for further consideration with respect to 490 York as well.

148In closing submissions, the City submitted that the Appeals should be dismissed without any amendment to the CPU, although the City did not oppose the Director’s submission that the CPU be amended to reflect that OW24S and OW24D are “both upgradient and downgradient” wells.

Analysis and Findings

149It was undisputed by any of the Parties and the Tribunal finds that the hearing on the merits of the Appeals was limited in the Tribunal’s decision to grant leave for the Appeals to “issues relating to migration of contaminated groundwater offsite” and the hearing in this regard was de novo as prescribed by s. 145.2 of the EPA, specifically:

145.2(1)….a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

150Accordingly, the Tribunal “stands in the shoes of the Director” and “determines on the basis of the evidence before it what is appropriate in the circumstances”¹ subject to the subject matter of the Appeals, i.e., “issues relating to migration of contaminated groundwater offsite”, and the legislative authority of the Director prescribed by s. 168.6(1) of the EPA, specifically:

168.6(1) If a risk assessment relating to a property has been accepted under clause 168.5(1)(a), the Director may issue a certificate of property use to the owner of the property, requiring the owner to do any of the following things:

1. Take any action that is specified in the certificate and that, in the Director’s opinion, is necessary to prevent, eliminate or ameliorate any adverse effect that has been identified in the risk assessment, including installing any equipment, monitoring any contaminant or recording or reporting information for that purpose.
2. Refrain from using the property for any use specified in the certificate or from constructing any building specified in the certificate on the property.

151Within the above-noted legislative context, the following is the analysis and findings of the Tribunal with respect to each of the Issues of the Issues List, prefaced by the Tribunal’s consideration of concerns raised by the Appellants regarding the evidence of certain witnesses called by the Director and the City.

152At the proceedings, the Tribunal considered the submissions of the Parties including 642’s objection to the qualification of Ms. Volpato as an expert witness given her role and involvement in the preparation and issuance of the CPU. As noted above, the Tribunal qualified Ms. Volpato as an expert witness, finding that Ms. Volpato had signed and provided in evidence the Acknowledgement of Expert’s Duty including to provide opinion evidence that is “fair, objective and non-partisan.” In accordance with the caselaw² the burden of proof is then on the objecting party to provide evidence that there is a “realistic concern” that the expert’s evidence should not be received because the expert is “unable and/or unwilling to comply with that duty” and no evidence was provided to the Tribunal in this regard. As described above in this Decision, the Tribunal qualified Ms. Volpato as an expert witness in the requested subject matters. 642 had full opportunity to cross-examine Ms. Volpato with regard to the “sufficiency of her work” and the Tribunal carefully considered this evidence obtained on cross-examination as part of its careful consideration of all of the evidence in these proceedings.

153In closing submissions, the Appellants made submissions regarding the weight to be given the evidence of the witnesses called by the Director and the City who were involved in the authoring of reports and documents including the CPU and the related documents (Phases One and Two ESAs and the Guelph RA). Counsel for 642 submitted that “little or no weight” should be given to the following witnesses’ evidence given their work on the foregoing reports and documents: (a) Ms. Volpato’s evidence regarding the sufficiency of the CPU; (b) Ms. McCarthy’s evidence regarding the sufficiency of the Phase One and Phase Two ESA work (noting that that Guelph RA and the CPU both “hinge on” that ESA work being “done correctly”; and (c) Ms. Appleby’s evidence regarding the sufficiency of the RA and the RMMs contained therein, which form the basis for the CPU. In addition, 642 submitted that the Tribunal should take into account that Ms. Volpato, Mr. Trimper and Mr. Burdon are employees of the MECP when considering the appropriate weight and value of their evidence.

154Expert witnesses must “provide an adequate pathway for their conclusion” and “less weight is given to an expert opinion that fails to set out the specific pathways used in reaching a conclusion in terms of data, assumptions and analyses, etc.”³ The Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co.⁴ stated (at para. 54): “At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert witnesses.”

155In these proceedings, the Tribunal is satisfied that the evidence of the above-noted witnesses was not outweighed by the risk of the dangers materializing that are associated with expert witnesses. All of these witnesses provided signed Acknowledgements of Expert’s Duty in evidence before the Tribunal and there was no evidence provided to the Tribunal that any of the above-noted witnesses were unable or unwilling to comply with their duty. The Appellants elicited evidence on cross-examination of these witnesses pertaining to the evidentiary “pathways” (and any perceived “missing links” or “data gaps”) in connection with the contributions of those witnesses to the subject documents. In view of the foregoing, the Tribunal finds that the employee/employee relationship of these witnesses does not affect the weight to be given the evidence of these witnesses. Consideration of the substantive basis (or “pathway”) and rationale of the expert opinion informed the weight to be given the respective evidence of the expert witnesses by the Tribunal in these proceedings.

156642 also submitted that an adverse inference should be drawn by the Tribunal from the failure of the Director to call another employee, Mr. Connelly (the author of certain documents pertaining to 200 Beverley including documents included in expert reports entered into evidence by 642) who is apparently retired. Further, 642 submitted that an adverse inference should be drawn from the Director’s failure to call the external peer review experts (from its “Vendors of Record” roster) in relation to the Guelph RA and the Phase Two ESA, and the hydrogeologist who signed the Phase Two ESA for 200 Beverley. 642 submitted that such witnesses may have had evidence regarding issues with these documents and could provide evidence on “what was reviewed and why decisions were made.”

157The hearing of the Appeals is de novo in nature. The above-noted persons do not hold “key evidence with respect to an issue”⁵ because the hearing on the merits of the Appeals is not a forensic review of “what was reviewed and why decisions were made.” There is no missing “key evidence” as a result of those persons not testifying at these proceedings (and as such may be distinguished from the facts of Canadian Environmental Services, supra). Instead, a de novo hearing was held on the merits of the Appeals at which the Tribunal “stands in the shoes of the Director” and hears the evidence of all of the Parties including expert witnesses called by the Appellants who were qualified to provide the Tribunal with expert opinion evidence on what, if anything, the Tribunal ought to do with respect to the CPU in the context of the Leave to Appeal and the Issues List. For the foregoing reasons, the Tribunal declines to draw the adverse inference requested by 642.

Issue #1: Taking into account historic and present environmental conditions at, in, on, or under 200 Beverley Street, Guelph, Ontario (the “Guelph Property”) and any historic contaminant migration from 200 Beverley, is there risk of contaminant migration from the Guelph Property onto neighbouring properties, including 10 Kingsmill Avenue, Guelph, Ontario (“10 Kingsmill”) and 490 York Rd., Guelph, Ontario (“490 York”), and/or beyond?

158The relevant expert witnesses of each of the Parties all provided similar evidence regarding the complexity of the fractured bedrock environment on which 200 Beverley, 10 Kingsmill and 490 York are located and, as stated by the Appellant 642 “voluminous documentary evidence adduced from groundwater elevation measurements over approximately 30 years.” Despite this quantity of groundwater and soil sampling data, there was evidence from multiple expert witnesses who opined that the quality or usefulness of this data in making conclusive opinions about the direction of groundwater flow (and any contaminants migrating within that groundwater flow that might result in an adverse effect that was identified in the RA) was inadequate in some respects, citing deficiencies including the lack of data collected from all three subject properties contemporaneously, at the same depth on each property and at appropriate locations in relation to each other that might serve to determine flow as between 200 Beverley,10 Kingsmill and 490 York based on comprehensive York/Beverley/Kingsmill data collectively. Moreover, in the Area of Interest (referred to above) that is comprised of lands of each of the three subject properties at their shared boundary location, multiple expert witnesses referred to the complexity of the “fairly flat” and highly fractured bedrock in which TCE will “flow in and out of” at times and the groundwater flow will vary seasonally.

159Despite the above limitations, there was consensus of opinion amongst expert witnesses called by 642, the Director and the City that there is evidence upon which to base expert opinion that at there is “downgradient” groundwater flow at the location of OW24S and OW24D from 200 Beverley to 10 Kingsmill. The expert witnesses of the Director and the City further opined that this downgradient flow emanates from 490 York, flows onto 200 Beverley, and then on to 10 Kingsmill. The expert witnesses of 642 expressed no opinion on this latter point, testifying that their respective retainers for these proceedings did not include consideration of 490 York although in cross-examination, Mr. Mauro provided limited evidence on this point with reference to a 2017 Report which he co-authored in which he opined that based on the inferred shallow groundwater flow direction of MW5S-16 on 10 Kingsmill, this location is downgradient of 490 York and contaminants in the groundwater samples of 10 Kingsmill are the result of migration from 200 Beverley and 490 York.

160The Tribunal finds that the evidence of the expert witnesses supports a finding on a balance of probabilities that OW24S and OW24D are “downgradient” and, in addition, that OW24S and OW24D may remain classified also as “upgradient” in the CPU on account of the evidence that the groundwater at these wells is flowing from the upgradient 490 York, on to and through 200 Beverley to downgradient 10 Kingsmill. As such, the CPU at Schedule “A”: Table 3E: Proposed Groundwater Monitoring Program Summary should be amended so that OW24S and OW24D are identified, in addition to the existing classification as “upgradient”, as “downgradient” in each of the classifications pertaining to “Downgradient Property Boundary Wells (Groundwater exiting [200 Beverley]) – Shallow Wells” and “Downgradient Property Boundary Wells (Groundwater exiting [200 Beverley]) – Shallow Wells” and “Downgradient Property Boundary Wells (Groundwater exiting [200 Beverley]) – Deep Wells.”

161In view of the finding that OW24S and OW24D should be classified as both “upgradient” and “downgradient” and the evidence in these proceedings regarding the TCE exceedances found in the groundwater sampling data of OW24S and OW24D, the Tribunal finds that there is a risk of contaminant migration from 200 Beverley to 10 Kingsmill; however, the evidence did not establish on a balance of probabilities that groundwater flow from 200 Beverley constitutes the only potential source or risk of any TCE exceedances found on 10 Kingsmill. The Tribunal finds that the preponderance of evidence established that historic industrial activities associated with the use of chlorinated solvents were carried on at 10 Kingsmill, as well as 490 York, which may constitute sources of any contaminants on or under 10 Kingsmill and 490 York. The Tribunal accepts the evidence of expert witnesses, including Mr. Trimper and Mr. Marks, who opined that additional environmental assessment of 10 Kingsmill and 490 York is necessary to determine the extent, source(s) and impact(s) of contaminants on these latter properties.

162With regard to 490 York and consideration of the expert opinion evidence including reference to available current data provided at these proceedings, the Tribunal finds on a balance of probabilities that the classification of the wells located along the eastern boundary of 200 Beverley as “upgradient” is appropriate and the CPU should not be amended to reclassify any of those wells as “downgradient.” In reaching this finding, the Tribunal notes in particular the evidence of Mr. Trimper including his depiction of groundwater flow direction based on the groundwater elevation contours data set out in the April 2012 AECOM Report as well the evidence of Mr. Marks based on both the 2010 to 2016 AECOM Reports containing data from 490 York and 200 Beverley and the 2017 RWDI Subsurface Investigation of 10 Kingsmill. While both Mr. Dickson and Mr. McIelwain opined that the predominant flow of groundwater is from 200 Beverley to 490 York, the Tribunal finds that there are substantive weaknesses in the basis for this opinion as detailed above in the evidence of Mr. Marks and Mr. Trimper. Given the foregoing, the Tribunal finds that the preponderance of evidence established that there is not a risk of contaminant migration from 200 Beverley to 490 York.

Issue #2: Is there risk of an adverse effect at the offsite properties located at 10 Kingsmill, 490 York, or elsewhere, resulting from the migration of contamination from the Guelph Property? Was the adverse effect identified in the Risk Assessment accepted by the MECP?

163Pursuant to ss 168.6(1) of the EPA, the Director (and the Tribunal pursuant to these proceedings) has legislative authority to prescribe in the CPU that the owner take any action that, in the opinion of the Director (and the Tribunal pursuant to these proceedings) is “necessary to prevent, eliminate or ameliorate any adverse effect that has been identified in the risk assessment.” [emphasis added]

164Although the definition of “adverse effect” in ss. 1(1) of the EPA “means one or more” of seven enumerated effects including at (h) “interference with the normal conduct of business,” the mandatory requirements for a risk assessment set out in Schedule C of the Brownfields Regulation include only the assessment of “human health and ecological risks” of adverse effects. In this regard, the qualified person who provides the mandatory certification with respect to the risk assessment must certify, among other things, their opinion that “the contaminants of concern are unlikely to pose a human health or ecological risk greater than the level of risk that was intended in the development of the applicable full-depth site conditions standards for those contaminants” as long as the RA property satisfies the assumptions and any recommended risk management measures specified in the RA.

165The RA does not identify any potential risk of the adverse effect of “interference with the normal conduct of business” and the Brownfields Regulation does not require assessment of such risk in a risk assessment. There was no legislative authority or caselaw provided to the Tribunal that would stand for the proposition that the CPU may compel action(s) to be taken with respect to adverse effects not identified in the RA.

166The RA did not identify any risk of adverse effect to off-site receptors on 490 York. As determined under Issue #1 of these proceedings above, the monitoring wells located along the eastern boundary of 200 Beverley adjacent to 490 York were identified as “upgradient” of 200 Beverley and accordingly the groundwater monitoring prescribed by the RA is in relation to groundwater flow entering 200 Beverley to determine if there are exceedances of the prescribed property specific standards (and concern about potential adverse effects thereby occurring on 200 Beverley) and the Guelph RA does not identify any risk of adverse effect with respect to 490 York.

167For the foregoing reasons, the Tribunal finds that there is no risk of adverse effect at 490 York in respect of which the CPU should include action(s).

168The Guelph RA identified a potential risk of adverse effect to off-site receptors at 10 Kingsmill, specifically with respect to the risk of inhalation of vapours of contaminants of concern, most notably TCE (a known carcinogen) at concentrations exceeding regulatory standards by indoor commercial workers at 10 Kingsmill (“10 Kingsmill Workers”). The RA undertook a “qualitative” and not a “quantitative” assessment in this regard and, as such, assessed the “possibility” of this risk, specifically:

[T]he potential for an offsite exceedance of the applicable generic MECP standard for several parameters cannot be ruled out. As these parameters have a [Property Specific Standard] greater than the Table 6 [Site Condition Standards] and can potentially be mobile in groundwater, they have the potential to pose a risk to downgradient offsite property. Groundwater monitoring is proposed on Site for these parameters.

169The expert evidence was consistent and the Tribunal finds that the risk for contaminant vapour intrusion is greater from shallow groundwater than deep groundwater as, in the latter circumstances, there is no air to facilitate volatilization.

170With regard to the shallow groundwater monitoring wells that are downgradient from 200 Beverley to 10 Kingsmill (including, as determined above in Issue #1 to include OW24S), expert evidence was provided with reference in particular to the more recent (2023) groundwater sampling results from MW19-137S and OW24S which detected TCE in excess of the Table 1E TGMCs. The evidence including data results from 2022 and 2023 demonstrated that TCE levels in samples of some wells fluctuate. Expert witnesses including Mr. Langille opined that these fluctuations are due to a number of factors including the seasonal time of testing, the “fairly flat” area between 200 Beverley and 10 Kingsmill and the highly fractured bedrock in which TCE will flow “in and out of” at times. Other relevant wells, for example OW09-1, had TCE concentrations below the TGMCs in all samples taken in 2023.

171Expert witnesses called by the Appellants including Dr. Ferguson opined that as TCE and its breakdown products have been detected at concentrations exceeding the Table 1E TGMCs within downgradient wells adjacent to the 10 Kingsmill boundary therefore TCE and its breakdown products likely exist on downstream properties at levels that pose an inhalation health risk.

172Expert witnesses called by the City, notably Ms. Appleby, opined that an adverse effect to a person (including off-site persons such as the 10 Kingsmill Workers) can only occur if there is a “complete route of exposure (pathway) between the contaminant at a concentration of concern and the receptor (person) and, if so, it is not a “guarantee” of an adverse health effect but only that the conditions are present for an adverse health effect to occur.”

173The Tribunal accepts the opinion evidence of Ms. Appleby with regard to the need for there to be a “complete route of exposure”. Ms. Appleby’s evidence was compelling that the presence of TCE in groundwater at concentrations exceeding the applicable TGMCs alone does not lead to the conclusion that there are TCE vapours within the building(s) of 10 Kingsmill or its outdoor air nor, if so, at concentrations to represent an adverse health effect to the persons working in the building(s). There was insufficient evidence provided to the Tribunal that such “complete routes of exposure” exist on 10 Kingsmill. There was evidence that the building closest to the boundary with 200 Beverley is used for the storage of vehicles and 10 Kingsmill has paved areas around the building. Dr. Ferguson testified that these vapours may travel vertically up through cracks in the foundations of buildings although he also testified that he has not visited 10 Kingsmill and had no specific evidence regarding any potential “routes” in this regard.

174The Tribunal heard no evidence of any air sample testing or data in relation to 10 Kingsmill including any data that would demonstrate air or vapour concentrations of contaminants that exceed prescribed regulatory standards within the building(s) of 10 Kingsmill. Expert witnesses for the owner of 10 Kingsmill (the Appellant, 642), Mr. Jones and Dr. Ferguson, testified that they were unaware of any such testing being undertaken at 10 Kingsmill. Mr. Jones testified that it would be “the next logical step” while Dr. Ferguson testified that such testing was “not necessary at this time.” This lack of evidence was baffling to the Tribunal, given the concerns expressed by these expert witnesses for the health of the 10 Kingsmill Workers.

175The expert evidence was consistent in opinion that the concentration level of TCE is a factor in assessing the likelihood of an adverse effect, i.e., a higher concentration level of TCE within the groundwater (particularly the shallow groundwater) may increase the risk and concentration of volatilized TCE being created at levels that pose an adverse effect if there is “a complete route of exposure.” There was no conclusive evidence that a test result detecting TCE below the TGMCs in any given month or months was determinative that there would not be a future test at which the TCE concentration would be above the TGMCs (as demonstrated by the data from testing at MW19-137S in late 2022/2023).

176Given the foregoing, the Tribunal finds that there is a risk for a potential adverse effect as described above with respect to persons at 10 Kingsmill such that it is appropriate that the CPU contain actions required of the City with respect to 200 Beverley to prevent this potential adverse effect. The Tribunal is mindful that it has inserted the word “potential” deliberately and will provide elaboration on this point in its findings with respect to Issue #3 below.

Issue #3: Do the terms and conditions of the CPU provide sufficient safeguards to prevent, eliminate or ameliorate any potential adverse effect associated with the risk of contamination migrating offsite from the Guelph Property?

Issue #4: What, if any, terms and conditions should be added or altered in the CPU, to address the potential for adverse effects that have or may arise from the migration of contamination from the Guelph Property to neighbouring properties, including 10 Kingsmill and 490 York?

177Given that Issues #3 and #4 are closely intertwined, the Tribunal provides its findings and analysis on these Issues together.

178The CPU includes requirements for the City to maintain certain shallow and deep groundwater monitoring wells on 200 Beverley including along its boundaries and periodic sampling and testing analysis of groundwater from these wells in order to assess, among other things, contaminant (including TCE) concentration amounts in these samples. These sample test results are compared to the TGMCs set out in Schedule “A” of the CPU and the applicable TGMCs are prescribed for specific monitoring wells set out in Table 3E. The test results from “upgradient” monitoring wells are compared to Table B (Property Specific Standards) while the test results from “downgradient” monitoring wells are compared to Table 1E TGMCs also (significantly lower maximum concentration targets than Table B).

179As determined with respect to Issue #1 above, the Tribunal finds that the CPU should be amended to reflect that monitoring wells OW24S and OW24D are both “upgradient” (in relation to 490 York) and “downgradient” (in relation to 10 Kingsmill) and, as such the test samples of those monitoring wells will also be compared to Table 1E TGMCs with respect to being protective of off-site receptors on 10 Kingsmill.

180Ms. Appleby provided evidence that the TGMCs set out in Table 1E including in relation to “commercial offsite indoor air risk”, i.e., relevant for the 10 Kingsmill Workers, utilize the MECP Table 6 Site Condition Standards. Ms. Appleby provided evidence that the Table 6 Site Condition Standards are “more conservative” than the Table 2 SCS which, consistent with the evidence of expert witnesses called by 642, would be the more appropriate Table to use for assessment, i.e., the Table 6 SCS sets a lower maximum permitted contaminant concentration in groundwater than the Table 2 SCS.

181The groundwater monitoring program required by the CPU includes oversight by a Qualified Person (within the meaning of the EPA), testing of samples by an accredited laboratory and reporting of results to the Director. In the event that any of the test results exceed the applicable TGMCs, the City must provide written notice to the Director and undertake a “confirmatory groundwater monitoring program.” If this confirmatory program identifies, among other things, that the groundwater concentrations continue to exceed the applicable TGMCs of Table 1E within the Downgradient Property Boundary Wells and a “statistically significant increasing trend” using Mann-Kendall methods (or similar analysis) is observed then the City must submit a proposed Groundwater Action Plan to the Director which includes recommendations pertaining to any additional investigation/monitoring “on or off” the Guelph Property, the completion of a groundwater remedial option feasibility study and/or the implementation of a groundwater remedial action plan which may include the implementation of additional remedial/mitigation measures as may be necessary. The City is required to implement the Groundwater Action Plan upon receiving written approval from the Director. In this regard, it is noted that ss. 168.6(2) of the EPA stipulates that the CPU shall not require the owner of the subject property to take any action that would have the effect of reducing the concentration of a contaminant on, in or under the property to a level below the level that is required to meet the standards specified for the contaminant in the RA (and incorporated into the CPU).

182The Appellants submitted that the threshold of a “statistically significant increasing trend” in order to trigger the requirement for a Groundwater Action Plan is inadequate as opined by various expert witnesses called by them including Mr. Jones who opined that given the overall trend of contaminant concentrations are likely constant or decreasing at the subject Downgradient Wells on 200 Beverley, it is unlikely that this threshold will “ever get triggered.”

183The Tribunal finds that the preponderance of evidence establishes that the “statistically significant increasing trend” is an appropriate pre-condition to trigger the requirement for a Groundwater Action Plan. The expert evidence with reference to groundwater sample test results demonstrated that there are fluctuations in the TCE concentrations and therefore it is reasonable to not require a Groundwater Action Plan unless there is a statistically significant increasing trend. Moreover, at the current (2023) TCE concentrations (of which OW24S and OW24D have the most significant exceedances), the risk of an adverse effect on 10 Kingsmill is “potential” only as no evidence was provided at the proceedings of an actual adverse effect (e.g., through indoor air sample testing results from building(s) at 10 Kingsmill) and there was insufficient evidence to find that there is a likelihood of an adverse effect, such as through evidence including analysis of the “complete route of exposure.”

184The expert evidence of all Parties included a consistent theme, that being the complexity of the geological and hydrogeological circumstances of the three subject properties, the various “data gaps” in groundwater monitoring (including locations and depths of monitoring wells, variability in seasonal times of sampling) and the need for a joint contemporaneous groundwater monitoring and sampling programme on all three properties in order to better understand these conditions and groundwater flow (containing any contaminants of concern) in order to develop appropriate remediation and mitigation measures. As such, the Tribunal concurs with the submission of Sherwood that the CPU should be amended to include the requirement that the City provide advance notification to the owners of 490 York and 10 Kingsmill of all sampling being undertaken on 200 Beverley in order that these property owners may endeavour to undertake contemporaneous sampling on their respective properties. The expert evidence supported the finding that analysis of this contemporaneous sampling would assist in determining groundwater flow direction and, consequently, whether any actions need to be taken to “prevent, eliminate or ameliorate any adverse effect identified in the RA.”

185Sherwood also submitted that the CPU should be amended to expand the monitoring well network on 200 Beverley to “allow for ongoing assessment of groundwater flow direction”; however, the Tribunal finds that the evidence at these proceedings established on a balance of probabilities that the CPU as issued includes a required monitoring well network on 200 Beverley that was designed in accordance with the requirements of the Brownfields Regulation and the RA and provides sufficient data for the purposes of the objectives of the CPU. The Tribunal finds that there was a preponderance of evidence to demonstrate that to the extent that there are “data gaps” currently, they exist not on 200 Beverley but rather on 490 York and 10 Kingsmill and in particular on the portions of those properties located within the “Area of Interest” where the three properties share boundaries. In closing submissions counsel for all of the Parties acknowledged, and the Tribunal concurs, that the legislative authority in relation to a CPU pursuant to the EPA does not include authority to compel off-site environmental investigations. The Tribunal heard evidence that the MECP has more recently issued Orders pursuant to the EPA against the owners of 10 Kingsmill and 490 York to undertake environmental investigations of their respective properties and that the data and analysis gleaned from such investigations may warrant some future further action by the Director in the opinion of the Director at that time with respect to any or all of the three properties including with respect to the CPU.

186The Tribunal finds that the preponderance of evidence in these proceedings established that no terms and conditions should be added or altered in the CPU to address the potential for adverse effects through actions such as installation of a permeable reactive barrier, injections, or other technical options at the boundary of 200 Beverley and 10 Kingsmill with the objective of reducing the contaminant concentration in the groundwater flowing from 200 Beverley 10 Kingsmill. The Tribunal finds that implementation of any of these options at this time creates an unreasonable risk of creating more environmental harm and has a low potential for success at reducing any contaminant concentration migrating in groundwater towards 10 Kingsmill. In this regard, the Tribunal notes the opinion evidence of Ms. McCarthy that any such “technical option” in a highly fractured bedrock environment has a low potential for success and, moreover, would likely cause a change in groundwater flow conditions that could cause an unexpected or unwanted change in the contaminant migration if not fully understood, including pushing contamination into areas that are not contaminated currently. Ms. Volpato and Mr. Trimper similarly opined that until a comprehensive groundwater sampling and monitoring program is implemented at all three subject properties and a better understanding gleaned from the resultant data, any barrier measures could cause greater harm. With respect to “injections”, Ms. Volpato opined that the high pressure necessary for injections could create new pathways for contaminants to migrate to areas not contaminated currently.

187The Tribunal finds that the preponderance of evidence established that the terms and conditions of the CPU, including the groundwater monitoring program (with the amendments detailed above and summarized in Issue #5 below) and the requirements to implement a Groundwater Action Plan if “triggered” by monitoring test results, provide sufficient safeguards to prevent, eliminate or ameliorate any potential adverse effect associated with the risk of contamination migrating offsite from 200 Beverley.

Issue #5: Should the Tribunal order that the CPU be altered?

188In summary, as detailed above, the Tribunal finds that the CPU should be altered as follows:

a) Schedule “A”: Table 3E: Proposed Groundwater Monitoring Program Summary shall be amended to add “OW24S” to the Location “Downgradient Property Boundary Wells (Groundwater exiting RA Property) – Shallow Wells” and to add “OW24D” to the Location “Downgradient Property Boundary Wells (Groundwater Exiting RA Property) – Deep Wells”; and

b) Section 4.2 r) Groundwater Monitoring Program shall be amended to add the following sentence to subsection (v): The City shall provide advance written notification to the owners of 490 York and 10 Kingsmill of all dates on which groundwater testing will be undertaken on 200 Beverley in an effort to facilitate the opportunity for these property owners to undertake contemporaneous sampling on their respective properties.

189The Tribunal finds that, on a balance of probabilities, no other alterations to the balance of the CPU are necessary with respect to actions that are “necessary to prevent, eliminate or ameliorate any adverse effect that has been identified in the risk assessment” as it pertains to the subject matter of Leave granted for the Appeals, namely issues relating to the migration of contaminated groundwater offsite.

190There was evidence from multiple expert witnesses that the CPU is, in the words of Ms. Appleby, “a living document.” Under the current known environmental conditions of 200 Beverley and surrounding area including 10 Kingsmill and 490 York, the Tribunal finds that the preponderance of expert evidence heard in these proceedings demonstrated that the groundwater monitoring programme of the CPU is a reasonable and appropriate “front end” of risk management with respect to migration of contaminants both entering and exiting the Guelph Property. Further action may be taken as and when necessary, as determined through analysis of the regularly collected monitoring data. Pursuant to provisions of the CPU and the EPA, the Director may, on the initiative of the Director or on application by the owner of the subject property, alter any terms and conditions in the CPU or impose new terms and conditions or revoke the CPU. As such, the CPU may be amended by the Director if, for example, new data, particularly with respect to 10 Kingsmill and 490 York, warrant amendments in the Director’s opinion. There was evidence that the Director has issued Orders with respect to both of those latter properties which include requirements to carry out additional environmental investigations and data collection. There was evidence that once that additional data is available to the Director, the Director also has an array of legislative tools under the EPA with respect to addressing the analysis of such data and any adverse effects identified through such analysis.

Issue #6: Should the Tribunal order that the CPU be revoked?

191The Tribunal finds that the CPU should not be revoked. Leave to Appeal was granted with respect to “issues relating to the migration of contaminated groundwater offsite” and, as such, only those provisions relevant to such issues were under consideration by the Tribunal in these proceedings. The balance of the CPU was not the subject of these proceedings nor any evidence put before the Tribunal.

192Moreover, with respect to the relevant provisions of the CPU pertaining to issues relating to the migration of contaminated groundwater offsite, the Tribunal finds that the preponderance of evidence established that such provisions of the CPU (save and except the two amendments detailed earlier in this decision) are reasonable, appropriate, and consistent with the provisions of the EPA, the Ministry’s Statement of Values and applicable caselaw.

193The Appellant 642 cited ss. 3(1) of the EPA: “The purpose of this Act is to provide for the protection and conservation of the natural environment” and submitted that the Tribunal has a duty to further the public interest in the environmental protection purpose of the EPA and must put this purpose at the forefront of its considerations.⁶ The Tribunal concurs with this submission and finds that the CPU (as amended pursuant to this Order) reflects this purpose in a reasonable and precautionary manner. The CPU addresses adverse effects identified as potential in the RA through imposition of a regimen of scheduled groundwater monitoring and sampling analysis against conservative target analyte levels for downgradient wells, prompt reporting to the Director and detailed requirements for a groundwater action plan to be developed and implemented promptly as and when required. Revocation of the CPU would eliminate the foregoing precautionary actions.

194The Appellant 642 also referred to the Supreme Court of Canada decision in Spraytech v. Hudson⁷ including its recognition of the “precautionary principle” (as defined in the Bergen Ministerial Declaration on Sustainable Development, 1990), i.e., environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.⁸ 642 also referred the Tribunal to the Ministry’s Statement of Environmental Values (the Environmental Bill of Rights, 1993) with reference to its incorporation of the precautionary principle: “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment.”

195The Tribunal finds that the CPU is consistent with the precautionary principle. There are precautions within the CPU designed to monitor and take action as and when warranted based on groundwater monitoring data and expert analysis. The Tribunal finds that the CPU (as amended below) imposes appropriate and reasonable precautionary requirements in an effort to proactively detect and avert serious or irreversible damage.

ORDER

196The Tribunal orders that the Appeals are allowed, in part, and the Certificate of Property Use is hereby confirmed, save and except only that it is altered as follows:

a) Schedule “A”: Table 3E: Proposed Groundwater Monitoring Program Summary shall be amended to add “OW24S” to the Location “Downgradient Property Boundary Wells (Groundwater exiting RA Property) – Shallow Wells” and to add “OW24D” to the Location “Downgradient Property Boundary Wells (Groundwater Exiting RA Property) – Deep Wells”; and

b) Section 4.2 r) Groundwater Monitoring Program shall be amended to add the following sentence to subsection (v): The City shall provide advance written notification to the owners of 490 York and 10 Kingsmill of all dates on which groundwater testing will be undertaken on 200 Beverley in an effort to facilitate the opportunity for these property owners to undertake contemporaneous sampling on their respective properties.

“Debra Arnold”

DEBRA ARNOLD

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.

Footnotes

1. 1Concerned Citizens of Brant v. Ontario (Environment and Climate Change), 2017 CarswellOnt 5213, at para. 16
2. 2White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (SCC) at para. 48
3. 3Lewis v. Director Ministry of the Environment, 2013 CarswellOnt 15895 (Ontario ERT)
4. 42015 SCC 23, 2015 (SCC)
5. 5Canadian Environmental Services Inc. v. Ontario (Director Ministry of the Environment), 2010 CarswellOnt 2091 (Ontario ERT)
6. 6See, for example, Corporation of the City of Kawartha Lakes v. Director, Ministry of Environment, Case No. 09-007 (Ontario ERT)
7. 7114957 Canada Ltee (Spraytech) v. Hudson, 2001 SCC 40 (SCC)
8. 8Spraytech, supra, para. 31