Ontario Land Tribunal
Tribunal ontarien de l'aménagement du territoire
ISSUE DATE: June 17, 2024
CASE NO(S).: OLT-24-000428
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: P & R Contracting Inc.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of Appeal: Order to remove the excavator from the property and to perform work to prevent, manage and remediate any spills or contaminant impacts to the environment when removing the excavator
Reference No.: 1-308664615
Property Address/Description: A flood plain of a tributary of McKellar Creek, west of Deadhorse Road in the Nipigon-Geraldton District (Crown land)
Municipality/Upper Tier: Thunder Bay District
OLT Case No.: OLT-24-000428
OLT Lead Case No.: OLT-24-000428
OLT Case Name: P & R Contracting Inc. v. Ontario (Environment, Conservation and Parks)
Heard: June 4, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| P & R Contracting Inc. ("Appellant") | Rene Larson |
| Director, Ministry of the Environment, Conservation and Parks ("Director") | Nadine Harris |
MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON JUNE 4, 2024
INTRODUCTION
1The Appellant has appealed Director's Order No. 1-308664615 ("Order") pursuant to section 140(1) of the Environmental Protection Act, R.S.O 1990, c. E.19 ("Act").
2The Appellant had rented out an excavator to Fred Paatz, who abandoned it semi-submerged on a flood plain of a tributary of McKellar Creek, west of Deadhorse Road in the Nipigon-Geraldton District. The Order was directed jointly to both the Appellant, as the owner of the excavator, and to Mr. Paatz, as the renter who had management and control of it.
3Upon filing its appeal, the Appellant indicated that it would be seeking a Stay of the Director's Order.
4Mr. Paatz did not appeal.
5As a result of ongoing discussions with Biigtigong Nishnabeg and the Department of Fisheries and Oceans, as well as to ensure the least intrusive removal, the consideration of spring flows and the lower water levels in August, the Provincial Officer accepted the revised compliance date for the Mitigation Plan required pursuant to Item 3 of the Order. The new date is the end of June 2024, rather than of Wednesday, May 15, 2024.
STAY BY JOINT SUBMISSION
6At a first Case Management Conference ("CMC"), Counsel for the Director indicated that the Director would be open to consent to a stay, so long as Mr. Paatz continues to comply with the Order.
7Counsel for the Parties informed the Tribunal at the CMC that they intended to file with the Tribunal joint consent submissions with respect to the Motion to Stay. They did so on May 30, 2024. Their joint submissions were marked as Exhibit 1.
CONCLUSION
8Counsel for the Director submitted that: (a) the Tribunal has the jurisdiction to grant a stay under section 143(2) of the Act; and (b) no harm enumerated at section 143(3) of the Act would result from the staying the Order if Mr. Paatz continues to comply with the Order.
9Given section 143 of the Act, the joint submission of the Parties, and the three-part test in RJR MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), [1994] 1 SCR 311, the Tribunal concludes that it would be appropriate to stay the Order until the final disposition of the appeal.
10The Director reserved the right to request that the stay be lifted at any point if Mr. Paatz stops complying with the Order. If it becomes necessary, Counsel for the Director indicated that notice of the request to lift the stay will be provided to the Tribunal and the Appellant. Both the Director and the Appellant would then provide submissions to assist the Tribunal.
ORDER
11THE TRIBUNAL ORDERS THAT the stay of Director's Order No. 1-308664615 is granted until final disposition of the appeal.
"Jean-Pierre Blais"
JEAN-PIERRE BLAIS
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.