1000054177 Ontario Inc. and Harpreet Gill v. Ontario (MECP), 2024 CanLII 59486

Ontario Land Tribunal

ISSUE DATE: June 17, 2024

CASE NO(S).: OLT-23-001041

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

Appellants: 1000054177 Ontario Inc. and Harpreet Gill

Respondent: Ministry of the Environment, Conservation and Parks

Subject: Order of the Director

Description: Appealing the Work Plan to remove underground fuel tanks and piping at a Gas Bar

Reference Number: 1-226836053

Property Address: 51 Notre Dame Street West

Municipality/UT: Greater Sudbury/Sudbury

OLT Case No.: OLT-23-001041

OLT Lead Case No.: OLT-23-001041

OLT Case Name: 1000054177 Ontario Inc. and Harpreet Gill v. Ontario (MECP)

Heard: May 21, 2024 by Video Hearing

Parties	Counsel/Representative*
1000054177 Ontario Inc. and Harpreet Gill (“Appellants”)	Crystal Dolson*
Director, Ministry of the Environment, Conservations and Parks (“Director”)	Amanda Landre Jennifer Halajian

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND A. SNOWDON AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The Appellants have appealed the Director’s Order No. 1-226836053, dated October 8, 2023 (“Director’s Order”), pursuant to section 140(1) of the Environmental Protection Act, R.S.O 1990, c. E.19 (“Act”) concerning a property at 51 Notre Dame Street West, Azilda (“Site”), in the City of Greater Sudbury (“City”). The Director’s Order confirmed a Provincial Officer’s Order following a request by the Appellants for a Director’s review.

2The Site was formerly a retail fuel outlet (“RFO”), which ceased operation in 2018. The Site was purchased on May 8, 2022 by the Appellant, 1000054177 Ontario Inc. for $160,700 following a municipal tax sale by the City. The Appellant, Harpreet Gill, is the sole director and officer of that entity.

DIRECTOR’S ORDER

3The Director’s Order (and the Provincial Officer’s Order) required the following seven actions to be done jointly and severally by the Appellants:

Item No. 1 Compliance Due Date: October 20, 2023

By October 20, 2023, retain the services of a Qualified Person to develop a proposed Work Plan as required by Work Ordered Item No. 3.

Item No. 2 Compliance Due Date: October 20, 2023

By October 20, 2023, submit to the undersigned Provincial Officer written confirmation from the Qualified Person(s) by email to kerry. whitney@ontario.ca that they have (1) received a copy of the Order, (2) been retained to complete the Work Plan as described in Work Ordered Item No. 3; and (3) the experience and qualifications to carry out such work.

Item No. 3 Compliance Due Date: November 17, 2023

By November 17, 2023, have the Qualified Person(s) prepare, for review and acceptance by the Ministry, a proposed Work Plan that shall include, at a minimum, the following:

1. Removal of the four (4) underground fuel tanks and piping from the ground;

2. A scope of work to document soil impacts in the floor and sidewalls of the tank excavation and to delineate the horizontal and vertical extent of groundwater and soil contamination at the Site including a site plan that identifies the locations of proposed boreholes and of existing and proposed monitoring wells; and

3. A proposed schedule for implementing the work described in the Work Plan.

Item No. 4 Compliance Due Date: November 17, 2023

By November 17, 2023, submit to the undersigned Provincial Officer the proposed Work Plan prepared by the Qualified Person(s) as required in Work Ordered Item No. 3 above.

Item No. 5 Upon service of this order, the Orderee and any other person with an interest in the Site shall, before dealing with the Site in any way, give a copy of this order, including any amendments thereto, to every person who will acquire an interest in the Site as a result of the dealing.

Item No. 6 Within 15 days of receipt of an acknowledgment and direction form signed by Kerry Whitney, Senior Environmental Officer enclosing a certificate of requirement, register the certificate of requirement issued under s. 197(2) of the EPA, on title to the Site, in the appropriate land registry office.

Item No. 7 Within 15 days of registering the certificate of requirement on title, provide to the undersigned Provincial Officer by email to kerry.whitney@ontario.ca written confirmation that the certificate of requirement has been registered on title as required by Item No. 6 by providing a copy of the registered document and of the parcel register for the property identifier number for the Site.

4The Director’s Order has now been complied with fully. The Director’s Order largely relates to establishing a Work Plan and registering the Order against title. The Appellants have been advised that if the implementation of the Work Plan is not completed on a voluntary basis, then the Ministry of the Environment, Conservation and Parks (“MECP”) may be required to issue another order. The implementation of the workplan is not before the Tribunal.

STAY REQUESTS

5The Appellants had previously requested both an Interim Stay and a Stay. The Tribunal, by panels differently constituted, dismissed both those Stay requests by Decisions issued on January 9, 2024 and March 14, 2024 respectively.

PRELIMINARY MATTER

6The Tribunal’s Title of Proceedings (“TOPs”) previously indicated that 1000054177 Ontario Inc. was the sole Appellant. The Appeal Form filed with the Tribunal was ambiguous. On careful reading of the Appeal Form, and with the agreement of all the Parties, the Tribunal directed that the TOPs has been amended to reflect that both 1000054177 Ontario Inc. and Harpreet Gill had jointly and properly filed appeals against the Director’s Order.

ISSUE

7The sole issue on this de novo appeal is whether the Director’s Order, which confirmed the Provincial Officer’s Order, was properly issued pursuant to section 157.1 of the Environmental Protection Act. To be properly issued, an Order: (a) must be issued to a person who owns property or who has management or control of a property; and (b) is “necessary or advisable” to achieve the objectives in section 157.1(1) (a) or (b) of the Act.

ANALYSIS

8The Parties submitted a lengthy Agreed Statement of Fact, which was marked as Exhibit 1.

9The Appellants presented no witnesses at the Hearing.

10By contrast, the Director presented the extensive evidence of two witnesses. First, Kerry Whitney, the Provincial Officer who had knowledge of the matter, testified with respect to the evidence set out in Officer Whitney’s Witness Statement dated April 5, 2024, and marked as Exhibit 3. Second, Peter Wideman, a licensed professional engineer, testified with respect to the evidence set out in Witness Wideman’s Witness Statement dated April 5, 2024 and marked as Exhibit 6. Witness Wideman was qualified by the Tribunal to provide expert evidence in industrial contamination, site assessment and remediation. The document referred to in these two Witness Statements were cross referenced and set out in the Joint Document Book, which was marked as Exhibit 2.

11The Director’s evidence was uncontradicted and remained unassailed through the Appellants’ ineffective cross-examination.

12Considering the evidence presented, the Tribunal finds that at the time the RFO stopped operating in 2018, four underground single-wall fuel storage tanks remained on the Site. On November 29, 2019, the Technical Standards and Safety Authority (“TSSA”) issued a report to the then owner of the Site, 1141435 Ontario Ltd. (operating as Mikes Gas Bar), which required the removal of the fuel from the storage tanks, as well as the removal of the tanks and the piping. The TSSA also required the preparation of an assessment by a qualified person, which would delineate the full extent of all petroleum impacts on the soil and the groundwater (together, the “TSSA Orders”).

13The TSSA Orders were not responded to by 1141435 Ontario Ltd. or its owner Michel Nault. After Michel Nault’s death on April 8, 2018, no one came forward to administer the estate or claim entitlement to the estate. The only assets appears to have been the shares and interest in 1141435 Ontario Ltd.

14In November 2020, the MECP became aware that petroleum hydrocarbons were believed to have migrated from the former RFO to adjoining lands and became the lead agency given in the off-site contamination. Site visits in October and November 2021 by Officer Whitney and Witness Wideman, as well as analysis of samples from monitoring wells, confirmed the continued presence of fuel in the tanks and the presence of petroleum hydrocarbons on the Site and the adjacent property.

15In December 2022, following the tax sale in May 2022, the MECP notified the Appellant Gill of the existence of the TSSA Orders.

16Witness Wideman testified, and the Tribunal accepts the evidence and finds that a fuel spill at the former RFO is likely the source for fuel impacts observed along the Site boundary with the adjacent lands. The contaminant plume in both the soil and the groundwater is not delineated and as such, it is unknown how far the impacts extend.

17Officer Whitney testified, and the Tribunal accepts the evidence and finds that the Appellants were non-responsive or slow to respond to the MECP’s concerns between August 2022 and October 2023. Officer Whitney asserted that it was thus necessary and advisable to issue the Provincial Officer’s Order on October 8, 2023 to the Appellants to prevent, decrease or eliminate an adverse effect that may result from the presence of petroleum hydrocarbon contaminants in, on or under the Site. The Tribunal accepts that it continues to be so necessary and advisable for the protection of the environment.

18In their final written argument, the Appellants made arguments which were difficult to understand.

19Firstly, the Appellants seem to contest those elements of the Director’s Order which, in their view, requires a “clean up” of the Site. However, the Tribunal notes that although the Director’s Order may lay the groundwork for an eventual “clean up”, it currently relates primarily to the creation of a work plan and the registration of the Director’s Order against title.

20Secondly, the Appellants seem to suggest that the situation at the Site was not urgent because the MECP took “almost one year” for research and due diligence. They submitted that this was not an acceptable time frame. In the same sense, the Appellants argued that the MECP should have pressed the contamination issue earlier with the estate of Michel Nault using Rule 9.02 of Rules of Civil Procedure, which provides for the appointment of a litigation administrator in civil matters, where the estate of a deceased person has no executor or administrator. The Tribunal is not persuaded that the time taken to perform the MECP’s research and due diligence nor the MECP’s decision to address the matter with the Appellants undermines the uncontroverted evidence of the Director’s two witnesses to the effect that the Director’s Order was necessary and advisable in the circumstances. The Appellants were and are the current owner and manager of the Site when the Director’s Order was issued and now when it is being challenged before this Tribunal. The hypothetical suggestion that another person or entity could have been the target of the Director’s Order is irrelevant. Moreover, the Tribunal agrees with Counsels for the Director that section 157.1 of the Act provides broad authority to issue preventative measure orders and that there is no time limitations within which to issue such orders.

21Thirdly, the Appellants seem to submit that Item 3 of the Director’s Order should not have been ordered because the owner of the adjoining property, Claudette Therrien/425825 Ontario Ltd. (“Adjoining Owner”), was aware of the likely contamination since October 2016 and had not taken all necessary steps to rectify the situation. This, in their submission, included initiating a conversation with Michel Nault and 1141435 Ontario Limited, the owner of the Site at that time. Based on the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B and caselaw¹, the Appellants seem to be arguing that the Adjoining Owner is barred from an environmental claim because the potential impact on adjoining property was discovered as early as October 2016.

22The Tribunal finds this argument to be entirely without merit for the purposes of the proceeding currently before the Tribunal. The matter before the Tribunal relates to the validity of the Director’s Order and not a real or apprehended claim by the Adjoining Owner against the Appellants. The Director’s Order makes mention of neither the adjoining property nor the Adjoining Owner. Moreover, the Limitations Act has no application in this proceeding with respect to the validity of the Director’s Order, which is a matter of administrative law and not a civil cause of action such as a claim in damages based in tort or contract law.

23Finally, based on events before the tax sale, the Appellants made a cryptic argument to the effect that the MECP should have been responsible for the remediation. The Tribunal finds no support for the Appellants’ position based on the legislation cited relating to brownfield and municipal tax sales.

24The Tribunal notes that there was no evidence advanced by the Appellants to establish that the Appellants were not aware of MECP’s investigation and the presence of petroleum hydrocarbon contaminants before the tax sale. In any event, the evidence accepted by the Tribunal establishes that the Appellants were aware of the situation as early as December 2022, which provided them ample time to address the issue without the need for a Provincial Officer’s Order or the Director’s Order. Moreover, the Appellant Gill benefitted from insurance coverage from the Chicago Title Insurance for the items provided in the 2019 TSSA Orders and made a successful claim against the insurer.

CONCLUSION

25Based on the above, the Tribunal concludes that the Director’s Order was properly issued and met all the relevant statutory requirements.

26The Appellant 1000054177 Ontario Inc. was and is the owner of the site, and Appellant Gill, as the company’s sole director and officer, had and has the management and control of the property. A Director’s Order for the Site was properly directed to them. It is irrelevant that the Appellants were not at the origin of the contamination.²

27Moreover, the expert evidence of Witness Wideman clearly establishes that it is necessary and advisable for the protection of the environment, as a first step, to put into place a work plan to implement remedial actions and thus, address contamination from the erstwhile RFO operations. The corrective actions set out in the Director’s Order were entirely reasonable considering Officer Whitney’s evidence establishing the Appellants’ lack of diligence in addressing the contamination issues. Accordingly, the Appellants are unsuccessful in their appeal.

ORDER

28THE TRIBUNAL ORDERS that the appeals are dismissed, and Director’s Order No. 1-226836053 is confirmed.

"Jean-Pierre Blais"

JEAN-PIERRE BLAIS

MEMBER

"A. Snowdon"

A. SNOWDON

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. 1Albert Bloom Limited. v. London Transit Commission, 2021 ONSC 6674 (OntCA), 2021 ONCA 74; Crombie Property Holdings Ltd. v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16.
2. 2Kawartha Lakes (City) v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 59 (Ont ERT) at paragraphs 79 and 87, aff’d 2012 ONSC 2708, 2013 ONCA 310.