Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 26, 2024

CASE NO(S).: OLT-23-000630

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Steve Charest

Appellant: King & Benton Canal Bank Regeneration Lands Inc.

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

Subject: Order of the Director

Description: To perform work to prevent or reduce the discharge of contaminants of concern (COCs) into the natural environment and to prevent impairment to the water

Reference No.: 1-209410483

Property Address/Description: 65 Canal Bank Street

Municipality/Upper Tier: Welland/Niagara

OLT Case No.: OLT-23-000630

OLT Lead Case No: OLT-23-000630

OLT Case Name: Charest v. Ontario (Environment, Conservation and Parks)

Heard: January 15, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Director, Ministry of the Environment, Conservation and Parks

Isabelle O’Connor and Courtney Barnes

King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest

John Georgakopoulos and Raeya Jackiw

MEMORANDUM OF ORAL DECISION DELIVERED BY A. MASON ON JANUARY 15, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Decision arises from a Case Management Conference (“CMC”) held on January 15, 2024, regarding an appeal filed by King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest (together, “Appellants”) in response to Director’s Order No. 1-209410483 (“Order”) issued by the Ministry of the Environment, Conservation and Parks (“Respondent”) on June 13, 2023, relating to sewage works on the lands located at 65 Canal Bank Street (“Subject Lands”), in the City of Welland. The Order was appealed on June 28, 2023, under s. 140 of the Environmental Protection Act and s. 100(4) of the Ontario Water Resources Act.

2On August 17, 2023, the Tribunal heard a request by the Appellant for an interim stay of Work Items 1 to 3, 5(d), 6(c), and 7 to 10 and a stay pending the disposition of the appeal. On consent of the Parties, an interim stay of Work Items 8-10 was granted and Work Items 1-7 were not stayed pending the hearing of a stay motion to follow.

3On October 19, 2023, the Parties requested the Tribunal convert the scheduled stay motion to a settlement hearing for the stay motion and such request was granted by the Tribunal. In its Decision on that Hearing Event dated November 9, 2023, the Tribunal ordered that Work Items 8, 9 and 10 of the Order were stayed pending disposition of the appeal on its merits; and that with respect to Work Item 7, the Appellant would provide 30 days notice to the Director before a third party acquires the Subject Lands, pending disposition of the appeal on the merits.

NOTICE

4An Affidavit of Service sworn on December 14, 2023, attesting to giving notice for this proceeding was marked as Exhibit 1.

PROCEDURAL ORDER AND ISSUES LIST

5The Tribunal was provided with a draft Procedural Order (“PO”) and Issues List (“IL”) in advance of the CMC.

6While the Parties were in agreement with respect to the IL, there was no consensus on the order of evidence to be set out in Attachment 3 of the PO. Based on the submissions of the Parties, the Tribunal finds that to ensure a fair and efficient process, the Appellant shall bring its case first, with the Respondent to follow with its case and the Appellant shall have a right of reply.

7The PO and IL at Schedule 1 attached to this Decision shall govern these proceedings.

HEARING DATES

8The Parties discussed the number and type of witnesses that they intend to call at a hearing. After considering this information and the attached issues, the Tribunal directed that a five-day hearing will be held by video commencing on Monday, November 4, 2024 at 10 a.m.

9Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/692665589

Access code: 692-665-589

10Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line:(Toll Free) 1 (888) 299-1889 or +(647) 497-9373. The access code as indicated above.

12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

13THE TRIBUNAL ORDERS THAT the Procedural Order and Issues List attached as Schedule 1 to this Decision and Order are approved.

14THE TRIBUNAL ORDERS THAT a hearing on the merits will commence by video hearing on Monday, November 4, 2024, commencing at 10 a.m. Five days have been set aside for the hearing.

15There will be no further notice.

16The Member is not seized.

“A. Mason”

A. MASON MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE 1

Procedural Order

CASE NO(S): OLT- 23-000630

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. 19, as amended and subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Steve Charest

Appellant: King & Benton Canal Bank Regeneration Lands Inc.

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

Subject: Order of the Director

Description: To perform work to prevent or reduce the discharge of contaminants of concern (COCs) into the natural environment and to prevent impairment to the water

Reference No.: 1-209410483

Property Address/Description: 65 Canal Bank Street

Municipality/Upper Tier: Welland/Niagara

OLT Case No.: OLT-23-000630

OLT Lead Case No: OLT-23-000630

OLT Case Name: Charest v. Ontario (Environment, Conservation and Parks)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, November 4, 2024 at 10:00 a.m. by videoconference.

3. The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

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

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and telephone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. The parties are to exchange copies of all relevant documents in their possession or control, over which privilege is not being asserted on or before Monday, July 8, 2024, along with a list itemizing the documents with document title/description and date.

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Tuesday, August 6, 2024, and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before Monday, October 7, 2024 and use best efforts to try to resolve or reduce the issues for the hearing.

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

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.

14. On or before Thursday, September 5, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below. Documents referred to in a witness statement and upon which the witness wishes to rely at the hearing must be attached to the witness statement if not previously disclosed pursuant to paragraph 9 above. Expert witness statements shall also include a copy of the expert’s Curriculum Vitae and the Tribunal’s Acknowledgement of Expert Duty form signed by the expert.

15. On or before Thursday, September 5, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before Monday, October 21, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before Monday, October 21, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator reply witness statements (if any) by Friday, September 20, 2024 and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday, October 28, 2024.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal by Monday, October 28, 2024 that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, October 25, 2024, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically, and in hard copy if required by the Tribunal. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Tribunal’s Rule 7.

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

This Member is not seized.

So orders the Tribunal.

Attachment 1 – Parties

Appellants

King & Benton Canal Bank Regeneration Lands Inc.

Steve Charest

Willms & Shier Environmental Lawyers LLP 1 Toronto Street, Suite 900 Toronto, ON M5C 2V6

John Georgakopoulos Tel: 416-862-4826 Email: jgeorgakopoulos@willmsshier.com

Alessia Petricone-Westwood Tel: 416-642-4874 Email: apetricone-westwood@willmsshier.com

Respondent

Director, Ministry of the Environment, Conservation and Parks

Ministry of the Attorney General Legal Services Branch 135 St. Clair Ave. West, 10th Floor Toronto, ON M4V 1P5

Isabelle O’Connor Tel: 416 705 5097 Isabelle.oconnor@ontario.ca

Courtney Barnes Tel: 437-223-3563 Courtney.barnes@ontario.ca

Attachment 2 – Issues List

1. Should Items 1, 2, 3, 5(d), 6(c), 7, 8, 9, and/or 10 of Director’s Order No. 1-209410483 dated June 13, 2023 be altered or revoked?

2. In the alternative to Issue #1, should the entire Director’s Order No. 1-209410483 dated June 13, 2023 be altered or revoked?

Attachment 3 – Order of Evidence

1. Appellants - King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest

2. Director, Ministry of the Environment, Conservation and Parks

3. Reply by Appellants