Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 05, 2024
CASE NO(S).:
OLT-23-000590
OLT-24-000116
OLT-24-000266
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 274
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-23-000590
OLT Lead Case No.: OLT-23-000590
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 279
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000116
OLT Lead Case No.: OLT-24-000116
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 280
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000117
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 281
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000118
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 282
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000266
OLT Lead Case No.: OLT-24-000266
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 283
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000319
OLT Lead Case No.: OLT-24-000266
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 284
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000320
OLT Lead Case No.: OLT-24-000266
Heard: June 25, 2024 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Ontario Graphite Ltd.
Peter McCague*
Director, Ministry of the Environment, Conservation and Parks
Nadine Harris
Sarah Valair
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JUNE 25, 2024 AND ORDER OF THE TRIBUNAL
1The Tribunal convened a Case Management Conference (“CMC”) on June 25, 2024 regarding proceedings brought under s. 100(4) of the Ontario Water Resources Act in Tribunal Case Nos. OLT-23-000590, OLT-24-000116, and OLT-24-000266. The proceedings arise from the issuance of Environmental Penalty Orders by the Director, Ministry of the Environment, Conservation and Parks (“Director”) regarding contaminated water allegedly emitted from a former graphite mine located at 2142 Forestry Tower Road (“subject property”), in the Town of Kearney, District of Parry Sound.
2At the CMC, the Director requested that the proceeding in Tribunal Case No. OLT-23-000590 move forward, its existing September 2024 hearing dates be confirmed, and dates in the Procedural Order for that proceeding be updated. The Appellant requested that the three proceedings be consolidated and that new hearing dates for the consolidated proceedings be scheduled.
3The Tribunal found that given that the nature and subject matter of the three proceedings are similar and address the same property and parties, the three proceedings should be consolidated to ensure an efficient process and avoid the risk of inconsistent decisions. It ordered that the three proceedings be consolidated and it scheduled hearing dates for October 2024 for the hearing on the merits of the three consolidated proceedings.
4The Parties discussed possible ways forward and means to narrow or resolve the issues, keeping in mind the need for action to be taken on the ground to eliminate or reduce the risk of environmental contamination from the subject property. The Parties agreed to engage in discussions and to appear again before the Tribunal in late August to provide an update on those discussions and to further discuss the pathway forward.
5Subsequent to the CMC, the Parties filed with the Tribunal a revised draft Procedural Order and Issues List, which takes into account the consolidation of the proceedings and the new hearing dates. The Tribunal has reviewed the revised draft Procedural Order and Issues List and approves it as attached to this Order and Decision as Attachment 1.
6The Tribunal scheduled a further CMC to be held on Wednesday, August 28, 2024 at 10 a.m. by video hearing. It also scheduled the consolidated hearing on the merits for five days commencing on Monday, October 21, 2024 at 10 a.m. Parties are asked to log into these sessions at least 15 minutes before the start of the event to test their video and audio connections:
Wednesday, August 28, 2024 at 10 a.m. - One Day CMC https://global.gotomeeting.com/join/979388733 Access code: 979-388-733 Audio-only telephone line: [Toll-Free-1-888-299-1889 or +1 (647) 497-9373] Audio-only access code: 979-388-733 Monday, October 21, 2024 at 10 a.m. - Five-Day Merit Hearing https://global.gotomeeting.com/join/442599157 Access code: 442-599-157 Audio-only line: [Toll-Free] 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: 442-599-157
7Parties and observers 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.
8Persons 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.
9Individuals 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 CMC 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.
10The previously scheduled September 4 to 6, 2024 hearing dates for the appeal in Tribunal Case No. OLT-23-000590 are cancelled.
ORDER
11THE TRIBUNAL ORDERS that the proceedings in Tribunal Case Nos. OLT-23-000590, OLT-24-000116, and OLT-24-000266 are consolidated.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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.
ATTACHMENT 1
OLT Case Nos.: OLT-23-000590
OLT-24-000116
OLT-24-000266
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 274
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-23-000590
OLT Lead Case No.: OLT-23-000590
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 279
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000116
OLT Lead Case No.: OLT-24-000116
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 280
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000117
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 281
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000118
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 282
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000266
OLT Lead Case No.: OLT-24-000266
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 283
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000319
OLT Lead Case No.: OLT-24-000266
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 284
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000320
OLT Lead Case No.: OLT-24-000266
PROCEDURAL ORDER
- 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
The hearing will begin on October 21, 2024 at 10 a.m. on GoToMeetings at the following link: : https://global.gotomeeting.com/join/442599157. The Access code is 442-599-157. Audio-only line: [Toll-Free] 1-888-455-1389 or +1 (647) 497-939. Audio-only access code: 442-599-157
The length of the hearing is 5 days in total. It will run from October 21 to 25, 2024. 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. The procedural order deadlines are found in Attachment 4.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues proposed by each party are set out in the Issues List attached as Attachment 2.
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.
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 the phone number as soon as possible.
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
Disclosure: The parties shall provide each other a copy of every document that is in their possession, control or power relevant to the subject matter of the appeal (except privileged documents) on or before August 16, 2024.
Witness List: A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other party a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 30, 2024 and in accordance with paragraph 19 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.
Witness Statements: On or before September 13, 2024, the parties shall provide copies of witness and expert statements to the other party and to the OLT case co-ordinator in accordance with paragraph 19 below. Witness statements shall attach a copy of any document that the witness refers to in their witness statement and that the party intends to rely on at the hearing. Expert witness statements shall also include a copy of the expert’s Curriculum Vitae and the Acknowledgement of Expert Duty form signed by the expert.
Reply Witness Statements: On or before September 27, 2024, the parties shall provide copies of their reply witness statements (if any) to the other party and the OLT case co-ordinator in accordance with paragraph 19 below.
Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before October 4, 2024 and use best efforts to try to resolve or reduce the issues for the hearing.
Agreed Statement of Facts and Issues: On or before October 11, 2024, the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.
Joint Book of Documents or Additional Documents to be Relied on: If the parties are preparing a joint book of documents or have additional documents that they will be relying on at the hearing, the parties shall provide the joint book of document or the additional documents to the other party and the OLT case co-ordinator on or before October 11, 2024.
Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 11, 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.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in compliance with 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.
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 October 10, 2024 (at least 7 days before the hearing) that the written evidence is not part of their record.
All filings shall be submitted electronically and in hard copy. 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 Rule 7.
No adjournments or delays will be granted before or during the hearing except by motion to the Tribunal. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Name of Member: Hugh Wilkins
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1
PARTIES & PARTICIPANTS
Parties
- Ontario Graphite Ltd.
c/o
Peter McCague Tel:(416)302-2477 Email: peter.mccague@summitnorth.ca
- Director, Ministry of the Environment, Conservation and Parks (MECP)
Ministry of the Attorney General Legal Services Branch
135 St. Clair Ave. West, 10th Floor
Toronto, ON M4V 1P5
Nadine Harris
Tel: 647-688-8724
Email: nadine.harris@ontario.ca
Sarah Valair
Tel: 416-605-8281
Email: sarah.valair@ontario.ca
ATTACHMENT 2
ISSUES LIST
The issues for the consolidated appeals as identified by the appellant are as follows:
Are the Orders unreasonable?
Are the Orders outside the Director’s Jurisdiction?
a. Do the Orders result in any meaningful protection of the Environment?
b. Do the Orders serve to address any genuine adverse environmental impact for which the appellant should be responsible?
Are the Orders contrary to principles of Procedural and Substantive Fairness (“Fundamental Justice”)?
Are some of the penalties that are the subject of the Orders statute-barred as having been issued outside the prescribed time limit?
The issues for the consolidated appeals as identified by the Director are as follows:
Did the appellant fail an acute lethality test in a ECA pertaining to a sewage works where a test is required contrary to O Reg 222/07, Table 2, section 12.1 on January 4, 23 and 29, 2023; March 8, 2023; May 3 and 10, 2023; and June 7, 2023?
Did the appellant exceed the polishing pond effluent limit in an ECA pertaining to a sewage works contrary to O Reg 222/07, Table 2, section 4.1 on January 27, 30 and 31, 2023; February 2-3, 6, 8, 10, 13, 15, 17, 20, 22, 24, 27 and 28, 2023; and March 1, 3, 6, 8, 10, 13, 15, 17, 20, 22, 27 and 31, 2023?
Should the Director have exercised her discretion pursuant to s. 7(2) of the Ontario Regulation 222/07 to reduce the administrative monetary penalties set out in Environmental Penalty Orders 274 and 279-284 further having regard to all the circumstances?
ATTACHMENT 3
ORDER OF EVIDENCE
Appellant
Director, Ministry of the Environment, Conservation and Parks
Reply, if necessary
ATTACHMENT 4 SUMMARY OF DATES
DATE
EVENT
August 16, 2024
Disclosure of all relevant, non-privileged documents by all parties
August 30, 2024
Exchange witness lists
September 13, 2024
Exchange of witness statements and expert reports
September 27, 2024
Exchange of reply witness statements (if any)
October 4, 2024
Meeting of expert witnesses to take place by
October 11, 2024
Preliminary hearing plan filed with Tribunal
October 11, 2024
Agreed Statement of Facts and Issues
October 11, 2024
Joint document book filed with the Tribunal
October 21, 2024
Hearing commences
October 25, 2024
Hearing concludes