Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 19, 2024
CASE NO(S).: OLT-24-000279
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant: AV Terrace Bay lnc.
Respondent: Ministry of Environment, Conservation and Parks
Subject: Order of the Director
Description: Appealing the Director's Penalty Order
Reference Number: Penalty Order No. 293
Property Address: 21 Mill Road
Municipality/UT: Terrace Bay/Thunder Bay
OLT Case No: OLT-24-000279
OLT Lead Case No: OLT-24-000279
OLT Case Name: AV Terrace Bay lnc. v. Ontario (MECP)
Heard: July 31, 2024 in writing
APPEARANCES:
| Parties | Counsel/Representative |
|---|---|
| AV Terrace Bay Inc. | Jonathon Clark |
| Ministry of Environment, Conservation and Parks | Sarah Kromkamp |
DECISION DELIVERED BY a. snowdon and david brown AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal concerns an appeal filed by AV Terrace Inc. (“Appellant”) pursuant to s. 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (“EPA”), relating to the issuance of Environmental Penalty Order No. 293 (“EP Order”) by the Director, Ministry of Environment, Conservation and Parks (“MECP”).
2The EP Order was issued on March 1, 2024 and was comprised of six penalties totaling $97,008.00. The Appellant filed an Appeal to the Tribunal on March 15, 2024.
3The Appellant submits that the MECP erred in law, lacked jurisdiction, acted beyond its powers, and refused to exercise the powers, or to properly consider the preventative and mitigative measures of the Appellant, in accordance with the EPA.
4In a letter dated April 19, 2024, the MECP stated that the Director has concluded that she must revoke the EP Order. The Director cites the reasons for the revocation being that there is no legal authority to issue the EP Order as the environmental penalties are not available for the contraventions which are the subject of the EP Order.
5The MECP is requesting that the Tribunal issue an Order dismissing the Appeal and the Director will then revoke the EP Order.
6The Appellant advised that they are in agreement that the EP Order should be revoked and the Appeal should not continue. The Appellant requested that the Tribunal’s Order includes direction to the Director to revoke the EP Order.
7The Tribunal convened this hearing pursuant to Rule 12.1 of the Tribunal’s Rules of Practice and Procedure to consider the settlement of the Appeal ensuring the revocation is consistent with the statutory requirements and in the public interest.
ANALYSIS AND FINDINGS
8The MECP, in their submission dated June 13, 2024 (Exhibit 1), submits that s. 182.1(1) of the EPA sets out that environmental penalties can only be issued in respect to specific contraventions set out in the regulations. The MECP directed the Tribunal to s. 4 of the Ontario Regulation 222/07 (“O. Reg. 222/07”) noting that an order may only be issued for a contravention that is described in Column 2 of Table 2 or 3, if the circumstances set out in Column 3 of the applicable Table apply.
9The EP Order described six contraventions, all related to Total Reduced Sulphur discharge exceedances, set out in s. 5 in Part II of the Pulp and Paper – Industry Standard developed under s. 38, Ontario Regulation 419/05 (“O. Reg. 419/05”). The MECP advised that non-compliance with O. Reg. 419/05 is not included in Table 2 or 3 of O. Reg. 222/07.
10Further, the EP Order references Item 1 of Table 2 of O. Reg. 222/07 which refers to a contravention of s. 14 of the EPA. This reference only applies to a discharge of contaminant to water or land and does not apply in this circumstance as the discharges referred to in the EP Order were in the air.
11The MECP concluded that the environmental penalties were not available for the discharges at issue and there was no legal authority for the EP Order. The EP Order is therefore not consistent with the statutory requirements and must be revoked.
12The Appellant provided a response, dated June 19, 2024 (Exhibit 2), to the MECP submission stating that the submissions from the MECP are a “fair and frank description of the law” as it relates to the issuance of Environmental Penalty Orders under the EPA. The Appellant is in agreement that the EP Order should be revoked.
13Section 145.2 (1) of the EPA sets out the Powers of the Tribunal when considering an Appeal filed under s. 140(1) of the EPA as follows:
145.2 (1) Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.
14The Tribunal, having considered the submissions, finds that the EP Order was based on a standard which was not listed in the Tables contained with O. Reg. 222/07. Further, the Tribunal finds that the discharge of the contaminant was not to the land or water as specified in the Regulation. Thus, the EP Order had no legal authority to be issued or assign penalties. The Tribunal finds that the EP Order does not meet statutory requirements of the EPA and therefore the EP Order should be revoked.
15The Parties each contend, and the Tribunal concurs, that an instrument made without legal jurisdiction is not in the public interest. The Tribunal finds that the revocation of the EP Order is in the public interest.
ORDER
16The Tribunal orders THAT the appeal is allowed in part and the Director’s Order No. 293 is revoked. In all other respects, the Tribunal Orders that the appeal is dismissed.
“A. Snowdon”
A. SNOWDON MEMBER
“David Brown”
DAVID BROWN 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.