Orin Enterprises Inc. v. Ontario (Environment, Conservation and Parks), 2024 CanLII 79144

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 13, 2024

CASE NO(S).: OLT-23-000646

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

Appellant: Orin Enterprises Inc. (File No. 008664)

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

Subject: Order of the Director

Description: To remove demolition waste on the Site and return the Site to the conditions prior to the depositing of the waste

Reference No.: 1-206866403

Property Address: 8788 11th Line (Jessica’s Auto Wreckers)

Municipality/Upper Tier: Essa/Simcoe

OLT Case No.: OLT-23-000646

OLT Lead Case No: OLT-23-000646

OLT Case Name: Orin Enterprises Inc. v. Ontario (Environment, Conservation and Parks)

Heard: August 8, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Orin Enterprises Inc. (the “Appellant”)

Luigi Iantosca, Ryan Hauk

Director, Ministry of the Environment, Conservation and Parks (the “Director”)

Sarah Valair Sarah Kromkamp

DECISION DELIVERED by gregory j. INGRAM AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1This proceeding relates to an appeal of the Director’s Order 1-206866403 dated June 21, 2023 (the “Order”) by Orin Enterprises Inc. The Order directs the disposal of waste at a salvage yard commonly known as Jessica’s Auto Wreckers at 8788 11th Line, Township of Essa (the “Site”).

2Three Case Management Conferences (“CMC”) have been held regarding this appeal, with the first occurring in July 2023, the second in November 2023 and the third in February 2024. At the first CMC, a stay Motion was granted on consent and at the second CMC, a Hearing was set to commence on September 16, 2024, for 10 days. A draft Procedural Order (“PO”) was presented, but there remained disagreement between the Parties on the exchange of affidavits and hearing venue, which resulted in the Tribunal scheduling a third CMC to take place following full disclosure. During the third CMC, several adjustments were made to the PO dates, including providing additional time for the exchange of witness statements. A final draft PO was submitted and approved following the CMC.

3In a related process, the Director also issued an Order (2702-BUTQ4L-1) pertaining to the same Site dated May 17, 2021, which incorporates a Provincial Officer’s Order, dated November 19, 2020, to Wesley Dass, 11705580 Canada Inc., Mario M. Cascio, Salvatore Pilieci, and Jessica Pilieci regarding the removal of waste. In this letter, the Director amended the compliance date from December 2021 to the end of June 2022 and amended the wording in the Order to reflect the requirement “to submit monthly update reports until such time as the Site is considered by the Ministry to be cleaned up.”

4On April 18, 2024, Wesley Dass and 11705580 Canada Inc. (“Brantford Recovery”) plead guilty to charges under the Environmental Protection Act related to the deposit of waste at the Site and non-compliance with Director’s Order No. 2070-BUTQ4L-1. Sentencing was adjourned until the fall so that Mr. Dass and 11705580 Canada Inc. could start to clean up the waste, which could then be taken into consideration on sentencing.

PRELIMINARY MATTER

5The Tribunal received a Supplementary Affidavit for Wesley Dass on Wednesday, August 7, 2024, at approximately 2:45 p.m., with a request that it be added to the Motion materials submitted by the Appellant. The email indicated that the document contained “pertinent information” and would be relied upon by Counsel in their submissions during the Hearing.

6Counsel for the Ministry of the Environment, Conservation and Parks (“MECP”) objected to the filing of the supplementary affidavit as it had only just received the document, and the request was contrary to the Ontario Land Tribunal’s Rules of Practice and Procedure (“OLT Rules”). Counsel requested that the Tribunal hear submissions on its admissibility prior to the scheduled proceedings on August 8, 2024, and not read it until this request was resolved.

7The Tribunal did not read the supplementary affidavit and heard submissions from both Parties regarding the “pertinent information” it contained.

8Counsel for the Appellant indicated that the “pertinent information’ was related to Mr. Dass removing more waste from the Site than the original affidavit indicated and that the updated affidavit provided a plan to remove an additional 100 truckloads from the Site this month. Counsel for MECP maintained that the new commitments occurred prior to the submission of the original affidavit and should have been included if it was important. The MECP also maintained that there is a required process to document debris removal, which had not been followed, so there was no way of confirming that any additional waste had been removed from the Site.

9Having reviewed all the materials previously submitted and heard submissions from the Parties on this matter, the Tribunal failed to see the relevance of the supplemental affidavit and denied the request. The OLT Rules set out timelines for the submission of materials in support of a fair and just process. Given the lateness of this submission and the nature of the additional information, allowing it would prejudice a fair process with little or no benefit to the Tribunal in making a decision on the Motion.

ORIN ENTERPRISES INC. MOTION

10The Appellant submitted a Notice of Motion (“NOM”) for an adjournment of the Hearing of the appeal of Director’s Order 1-206866403, which is currently scheduled to commence on Monday, September 16, 2024 (“Hearing”), as noted above. The NOM requests that the Hearing be adjourned and converted to a mediation or CMC based on the guilty plea and proposed remediation efforts of Brantford Recovery and Wesley Dass. The NOM also requested costs if the adjournment is opposed and applicable.

11The Appellant provided the following grounds for the Motion:

1. Brantford Recovery and/or its Principal, Wesley Dass, have pleaded guilty with respect to the delivery of debris to the disposal Site and provided a plan to the MECP to remediate and remove the debris from the Site in a “reasonable amount of time.”

2. The Appellant will be prejudiced if an adjournment is not granted as the central issue to be addressed by the appeal “is to determine whether Orin is responsible for the removal of debris” from the Site, and now Mr. Dass has taken responsibility for the removal of the debris. The Appellant will incur further costs through this process even though the issue is already being addressed. The Appellant maintains that the MECP has not “acted expeditiously” and that there is no “irreparable harm” to the environment.

3. The balance of convenience favours granting the adjournment given Mr. Dass’s “proposed remedial plan to remove debris” from the Site. The Appellant contends that it will suffer “significant harm and prejudice [if required] to prepare for the Hearing given Mr. Dass’s cooperation with the Ministry.”

LEGISLATION

12The OLT Rules sets out criteria for considering a motion to adjourn an appeal in Rule 17:

17.5 Powers of Tribunal upon Adjournment Request:

The Tribunal may,

a. grant the request.

b. grant the request and fix a new date or, where appropriate, the Tribunal will schedule a case management conference on the status of the matter;

c. grant a shorter adjournment than requested;

d. deny the request, even if all parties have consented;

e. direct that the hearing proceed as scheduled but with a different witness, or evidence on another issue;

f. grant an indefinite adjournment, if the Tribunal finds no substantial prejudice to the other parties or to the Tribunal’s schedule and the Tribunal concludes the request is reasonable for the determination of the issues in dispute. In this case, a party must make a request, or the Tribunal on its own initiative may direct, that the hearing be rescheduled or resumed as the case may be;

g. convert the scheduled date to a mediation or case management conference; and

h. make any other appropriate order.

DIRECTOR, MINISTRY OF THE ENVIRONMENT, CONSERVATION AND PARKS, RESPONSE TO MOTION AND SUBMISSIONS

13The Director opposes the adjournment Motion and requests that it be dismissed. The Director maintains that it is in the public interest to proceed as scheduled as the Director’s Order under appeal is currently stayed on consent pending the outcome of the Hearing and added the following grounds for opposing the Motion:

1. The waste has been on the Site since 2020.

2. A 10-day Hearing has been scheduled since November 2023 to commence on September 16, 2024 with an approved PO.

3. It is in the public interest to proceed as the waste remains on the Site, and it is not anticipated that it will be removed any time soon given that the “Order …against Orin has been stayed, on consent, pending the resolution of the appeal.”

14Counsel for the Director, Sarah Valair, submitted that the Appellant must show that the adjournment is necessary to ensure that an adequate and fair hearing is possible. Counsel maintains that an “adjournment has no effect on the Appellant’s ability to respond to its appeal.”

15Counsel on behalf of the Director made the following additional submissions:

1. Another party accepting responsibility for cleaning up the Site is irrelevant as each company or individual named in the Order is required to “carry out the terms…until all Order requirements are fulfilled.” The Director’s Order was issued in 2021 and made against seven unique Parties.

2. There is no evidence to suggest that the clean-up will be completed by March, and the Order will not be removed until the Site is completely cleaned up. Repeated requests for confirmation of the retention of a Ministry-approved waste hauler have not been provided as recently as July 2024.

3. The Tribunal process has provided additional time for the Parties, and it can consider efforts by the Appellant to fulfill the Order during the Hearing in September.

4. MECP has provided disclosure of information on multiple occasions during this process.

5. Delaying the process is not in the public interest as there is still a sizable amount of debris on the Site, which has been there since 2020. An adjournment would also continue the “stay” agreed to by the MECP, which was agreed to pending the outcome of the Hearing.

6. The Appellant failed to “promptly” notify the Tribunal of the adjournment request even though Mr. Dass’s guilty plea, as the stated basis for the adjournment Motion, has been known for three months.

7. The Director will suffer prejudice should an adjournment be granted as one of the witnesses is scheduled to retire at the end of September, which will result in added costs to the MECP.

16Regarding costs, the Director requested $5000 be awarded should the Motion to adjourn be granted. Ms. Valair indicated during the proceedings that the Director would like to reserve the right to make submissions on this request until a decision is issued on the Motion.

ORIN ENTERPRISES INC. REPLY TO RESPONSE TO MOTION AND SUBMISSIONS

17The Appellant maintains that the Motion revolves around a single issue: whether the September Hearing should be adjourned given the guilty plea of Mr. Dass and the ongoing efforts of Mr. Dass and Brantford Recovery to remove the debris from the Site.

18Counsel for the Appellant, Luigi Iantosca, maintains that the decision to adjourn “hinges on the guilty plea” and the condition that Mr. Dass return and report to the Court in September prior to sentencing in October.

19The Appellant contends that the Tribunal has the authority to grant the requested relief and relies on the following from the OLT Rules as the basis of this position:

Rule 17.5:

f. Grant an indefinite adjournment, if the Tribunal finds no substantial prejudice to the other parties or to the Tribunal’s schedule and the Tribunal concludes the request is reasonable for the determination of the issues in dispute. In this case, a party must make a request, or the Tribunal on its own initiative may direct, that the hearing be rescheduled or resumed as the case may be;

g. Convert the scheduled date to a mediation or case management conference;

Rule 1.3:

1.3. These rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

20Orin also suggested that Section 21 of the Statutory Powers and Procedure Act be relied on by the Tribunal in determining whether to adjourn the Hearing:

Section 21. A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

21In support of its position, the Appellant maintained that:

1. The MECP will face no prejudice with an adjournment.

2. Mr. Dass’s guilty plea and proposed remediation settle the matter before the Tribunal.

3. Ms. Aloy’s affidavit provides “unsatisfactory evidence” to “uphold the Hearing dates as being in the public interest.”

4. The unavailability of a witness issue is not supported by affidavit evidence and is not a legitimate reason not to adjourn.

5. There is a risk of “adjudicating the same issues, based on the same evidence and at the same time,” which should be avoided.

MATERIALS BEFORE THE TRIBUNAL ON MOTION

22The materials before the Tribunal on this Motion are the following:

1. Exhibit 1: Orin Enterprises Inc. Motion Record, dated July 22, 2024

a. Affidavit of Wesley Dass

b. Affidavit of Mike Allen

c. All attached exhibits

2. Exhibit 2: Director’s Response to Motion, dated July 29, 2024

a. Affidavit of Joanna Aloy

b. All attached exhibits

3. Exhibit 3: Orin Enterprises Inc. Reply to Response to Motion, dated August 1, 2024

ISSUE

23The central issue in this Motion Hearing is whether the guilty plea of Mr. Dass and the ongoing Court proceedings necessitate the adjournment of the Appeal process launched by the Appellant with the Tribunal in order to “offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings?” (OLT Rules, Rule 3.1)

ANALYSIS AND FINDINGS

24The Tribunal has carefully considered the written evidence before it and the submissions of Counsel and denies the Motion to Adjourn. It also directs that the Hearing proceed as scheduled for Monday, September 16, 2024, as per the approved PO. The Appellant has not convinced the Tribunal that its Motion should be granted.

25The Tribunal finds that while the guilty plea of Mr. Dass is new information, the decision to adjourn does not “hinge” on it as suggested by Counsel for the Appellant. The Tribunal finds that proceeding with the scheduled Hearing maintains procedural fairness for both Parties and complies with the agreed upon and approved PO. Paragraph 26 of the PO states that “no adjournments or delays will be granted before or during the hearing except for serious hardship or illness.”

26The Tribunal accepts the Director’s submission that it is in the public interest for this matter to proceed, given that the Order issued by the Director is “stayed” pending the outcome of the Hearing.

27The Tribunal finds that based on the evidence before it and the submissions from counsel, there is no prejudice to any party by denying the Motion and proceeding. There have been three CMCs to support planning for the Hearing, a decision to grant a “stay” of the Director’s Order by the Tribunal with the consent of the Director, and submission date changes to the PO prior to its final approval.

28The Tribunal concurs with the Director’s Counsel that submitting the NOM three months after Mr. Dass’s guilty plea was avoidable and, while not meeting the Tribunal’s standard of “last minute,” was very late and not helpful to the agreed-upon process. The Tribunal notes that Counsel for the Appellant indicated that Mr. Dass’s guilty plea was key to initiating the Motion and, thus, rejects the notion that the Appellant relied solely on the Director’s Counsel to notify them of the plea outcome.

29The Tribunal acknowledges the submissions from both Parties regarding the credibility of witness affidavits and has weighted them accordingly. Given the nature of the submissions heard during these proceedings, the issues are best dealt with during the Hearing scheduled for September and in accordance with the agreed-upon exchange of witness statements in the PO.

30Both Parties expressed an interest in seeking costs dependent on the outcome of this decision. The Tribunal directs the Parties to Rule 23 of the OLT Rules should either Party elect to seek costs related to this matter.

31The Tribunal notes that both Parties indicated a willingness to participate in mediation and encourages them to initiate and/or continue deliberations toward a resolution of this matter.

ORDER

32THE TRIBUNAL ORDERS THAT:

1. The Motion to Adjourn is dismissed, and

2. The 10-day Hearing to commence on Monday, September 16, 2024, shall proceed as scheduled and in accordance with the approved Procedural Order.

“Gregory J. Ingram”

GREGORY J. INGRAM

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.