Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 29, 2024

CASE NO(S).: OLT-24-000473

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40

Appellant: 2643302 Ontario Inc.

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

Subject of appeal: Work ordered to prevent or reduce the risk of a discharge of a contaminant, namely sediment, into the natural environment from the undertaking on the property; Work ordered to prevent a discharge of material, namely sediment, into the tributaries of the Port Britain Creek that may impair the quality of water

Reference No.: Provincial Officer’s Order No. 1-206049963

Property Address/Description: 2600 County Road 2

Municipality/Upper Tier: Port Hope/Northumberland

OLT Case No.: OLT-24-000473

OLT Lead Case No.: OLT-24-000473

OLT Case Name: 2643302 Ontario Inc. v. Ontario (Environment, Conservation and Parks)

Heard: July 24, 2024, in writing

Parties and Counsel

2643302 Ontario Inc. Counsel: Jaskaran Sandhu

Director, Ministry of the Environment, Conservation and Parks Counsel: Shane Sukerman

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

1On May 3, 2024, 2643302 Ontario Inc. (“2643302”) filed a request for a hearing before the Tribunal regarding the issuance of Provincial Officer’s Order 1206049963 (“Order”) under s. 157.1 of the Environmental Protection Act (“EPA”) and s. 16.1 of the Ontario Water Resources Act (“OWRA”). The Order requires the cessation of active farming on specified fields on lands located at 2600 County Road 2 in Port Hope.

2Upon receipt of the request for a hearing, the Tribunal identified issues regarding whether it has jurisdiction to proceed with a hearing and it requested the Parties to provide submissions in this regard.

EVIDENCE AND SUBMISSIONS

Director’s Evidence and Submissions

3The Director, Ministry of the Environment, Conservation and Parks (“Director”) submits that the Tribunal does not have jurisdiction to conduct a hearing. The Director submits that the matter should be dismissed under Rule 15.4 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

4In support of his position, the Director filed an affidavit sworn by Jon Harris, dated June 27, 2024. Mr. Harris is the Environment Compliance Officer who issued and served the Order. In his affidavit, he stated that he served the Order on 2643302 by regular letter mail and by email to 2643302 on March 28, 2024. He stated that counsel for 2643302 was copied on the email attaching the Order.

5Mr. Harris states that the Order requires that certain fields must not be used for farming until 2643302 and its director, Yu Rui Zhu, have complied with a Sediment Control Action Plan. The Order requires that those fields must be maintained with cover crop to prevent erosion or offsite environmental impacts until written notice stating otherwise is given by the Ministry of the Environment, Conservation and Parks (“MECP”).

6The Director submits that the Order was properly served by regular letter mail and by email to 2643302 on March 28, 2024. In response, 2643302 sent a request for review of the Order on April 12, 2024 to the Director. The Director submits that this was 15 days after the Order was issued on March 28, 2024 and 10 days after it was deemed served by mail on April 2, 2024. The Director submits that s. 157.3 of the EPA and s. 16.4 of the OWRA require an Orderee to make a request for review within seven days of service of an Order. He submits that 2643302 did not comply with this statutory requirement and, as a result, the Director did not undertake a review of the Order.

7The Director submits that on April 18, 2024, he sent an email informing 2643302 that its request for review was filed after the statutory seven-day review period had expired.

8The Director submits that on June 21, 2024, 2643302 sent correspondence to the Tribunal alleging that it received the Order on April 4, 2024. The Director submits that 2643302 has not provided any evidence demonstrating that it in fact received the Order on that date or on what grounds the time for requesting a review should be extended under s. 182(2) of the EPA and s. 106(2) of the OWRA.

9The Director submits that he considered the April 12, 2024 request for review, satisfied himself regarding the sufficiency of service of the Order, and found that the seven-day period for requesting a review expired on April 9, 2024. The Director further submits that if 2643302 in fact only received the Order on April 4, 2024, it was still out of time when it made its request for review on April 12, 2024.

10The Director submits that the April 12, 2024 request for review was received after the seven-day period and under s. 157.3 of the EPA and s. 16.4 of the OWRA, the Director did not have jurisdiction to review the Order.

11The Director submits that s. 140(1) of the EPA and s. 100(4) of the OWRA state that only an Order issued by a Director can be appealed to the Tribunal. As there was no Director’s Order issued in this case, the Director submits that the Tribunal does not have the jurisdiction to conduct a hearing and 2643302’s request for a hearing should be dismissed.

2643302’s Submissions

122643302 submits that the Director has unfairly exercised his discretion by refusing to consider its request for review the Order. It submits that it has acted in good faith and has made efforts to address the issues that give rise to the Order. It submits that it has adhered to the requirements and deadlines set by MECP.

132643302 submits that communications with MECP have continued and maintenance and inspections, including evaluations after significant events, have been conducted. It submits that any delays are due to changes requested by MECP. It submits that the September 9, 2024 compliance date in the Order has not passed, additional measures are not appropriate, and the Order imposes undue hardship on it. It submits that use of the affected fields is crucial to its livelihood and the Order is impacting income generation. 2643302 submits that it has made financial commitments to address the Director’s concerns, including regulating sediment leakage, and it has engaged in dialogue to develop a comprehensive action plan. It submits that arbitrary alterations and revisions to MECP requirements have created unrealistic and burdensome standards and, despite its efforts to align with Ministry standards and accommodate changes, any additional measures required by the Director would be unjustified and unreasonable.

142643302 submits that it made a good faith effort to appeal the Order and that it only became aware of the Order on April 4, 2024. It submits that its request for a review or a hearing was submitted on April 10, 2024 and the Director had jurisdiction to entertain the request for review.

ANALYSIS AND FINDINGS

15For the reasons that follow, the Tribunal finds that 2643302 failed to make a request to the Director to review the Order during the requisite time period as required by statute and, given that there is no Director’s Order to be appealed, the Tribunal does not have the authority to hold a hearing under s. 140(1) of the EPA or s. 100(4) of the OWRA.

16Section 157.3 of the EPA addresses the review of Orders made under ss. 157 to 157.2. It states:

157.3 (1) A person to whom an order under section 157, 157.1 or 157.2 is directed may, within seven days after being served with a copy of the order, request that the Director review the order.

(2) The request may be made orally, with written confirmation served on the Director within the time specified in subsection (1), or in writing.

17Section 16.4 of the OWRA contains similar language. It states:

16.4 (1) A person to whom an order under section 16, 16.1, 16.2 or 16.3 is directed may, within seven days after being served with a copy of the order, request that the Director review the order. Manner of making request (2) The request may be made orally, with written confirmation served on the Director within the time specified in subsection (1), or in writing.

18Section 182(2) of the EPA and s. 106(2) of the OWRA state that service by regular letter mail is deemed to be made on the fifth day after mailing. They have identical wording stating:

Where service is made by mail, the service shall be deemed to be made on the fifth day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control receive the notice or order until a later date.

19Based on Mr. Harris’ uncontested evidence, the Order was mailed and emailed to 2643302 on March 28, 2024. The Tribunal finds that under 182(2) of the EPA and s. 106(2) of the OWRA, service was deemed to have been made on April 2, 2024. As required under s. 89(1) of the Legislation Act, the counting of time regarding statutory due dates is based on calendar days. Given that 2643302’s request for review was not received by the Director until April 12, 2024, the Tribunal finds that 2643302 missed the statutory due date for making a request for review of the Order. Even if the request was sent on April 10, 2024, as alleged by 2643302, it still missed this due date.

202643302 has not provided any evidence or submissions establishing that it did not, acting in good faith, through absence, accident, illness or other cause beyond its control receive the Order until after April 2, 2024. It simply states that the Order did not come to its attention until April 4, 2024. Based on this, the Tribunal finds that the exceptions in s. 182(2) of the EPA and s. 106(2) of the OWRA regarding the deeming of service do not apply.

21Provincial Officer Orders cannot be directly appealed to the Tribunal. Section 140(1) of the EPA and s. 100 of the OWRA restrict such appeals to appeals of Director’s Orders.

22Rule 15.4(b) and (c) of the Tribunal’s Rules state that the Tribunal may dismiss a matter where its subject matter is outside the Tribunal’s jurisdiction or where applicable statutory requirements for bringing the proceeding have not been met. It states:

15.4 The Tribunal may, on its own initiative and without a hearing event, dismiss a matter by adjudicative order where:

b. the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or

c. some aspect of the statutory requirements for bringing the proceeding has not been met.

23In the present case, the Tribunal finds that there is no Director’s Order upon which an appeal can be based under s. 140(1) of the EPA or s. 100(4) of the OWRA and pursuant to Rule 15.4 of the Tribunal’s Rules, 2643302’s request for a hearing should be dismissed.

ORDER

24THE TRIBUNAL ORDERS THAT 2643302’s request for a hearing is dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

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.