ISSUE DATE: September 18, 2024
CASE NO(S).: OLT-23-000825
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40
Appellant: 1000251411 Ontario Inc.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Description: Appeal of Director’s Order to perform work with respect to sewage works
Reference No.: Director’s Order No. 1-225767755
Property Address/Description: 4133 Hwy 101 W. (Pine Ridge Motel and Trailer Court)
Municipality/UT: City of Timmins/District of Cochrane
OLT Case No.: OLT-23-000825
OLT Lead Case No.: OLT-23-000825
OLT Case Name: 1000251411 Ontario Inc. v. Ontario (Environment, Conservation and Parks)
Heard: August 14, 2024 by Video Hearing
| Parties | Counsel/Representative* |
|---|---|
| 1000251411 Ontario Inc. and Harpreet Gill (“Appellants”) | Crystal Dolson* |
| Director, Ministry of the Environment, Conservation and Parks (“Director”) | Sarah Kromkamp Coco Wang (Summer Student) |
DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1The Appellants have appealed Director’s Order No. 1-225767755 pursuant to s. 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O. 40, as amended (“Act”) concerning a property at 4133 Highway 101 West (“Site”), in the City of Timmins/ District of Cochrane. The Director’s Order (“DO”) confirmed a Provincial Officer’s Order (“POO”) following a request by the Appellants for a Director’s review.
2The Site has a motel with 16 rooms and one private residence and a trailer park with 18 lots. The Site was purchased on August 12, 2022 by the Appellant, 1000251411 Ontario Inc., for $820,000. The Appellant, Harpreet Gill, is the sole director and officer of that entity.
3The main issue that led to the issuing of the POO and DO is the failing illegal sewage systems at the Site which need to be brought into compliance prior to the installation of a proposed new drinking water well.
DIRECTOR’S ORDER
4The DO (and the POO) required the following five actions to be done jointly and severally by the Appellants:
Item No. 1 Compliance Due Date: September 29, 2023
The Orderees shall retain the services of a Qualified Consultant to carry out the Work required by Item No. 2, 3, 4, and 5 in this Order.
Item No. 2 Compliance Due Date: October 13, 2023
The Orderees shall submit to the undersigned Provincial Officer written confirmation from the Qualified Consultant that they have, (1) received a copy of the Order; (2) been retained to carry out the Work specified in Item No. 3, 4, and 5; and (3) the experience and qualifications to carry out the Work.
Item No. 3 Compliance Due Date: June 14, 2024
The Orderees shall have the retained Qualified Consultant provide all supporting documentation required to make application for an Environmental Compliance Approval, to the undersigned Provincial Officer to commence pre-submission consultation for the Sewage Works ECA with the Ministry.
Item No. 4 Compliance Due Date: October 15, 2024
The Orderees shall submit a complete application complete with required supporting documentation for a private communal sewage works Environmental Compliance Approval (ECA) to service the Site in accordance with the instructions set out on the Ministry's website at https://www.ontario.ca/page/environmental-compliance-approval.
Item No. 5 Compliance Due Date: October 15, 2024
The Orderees shall provide written confirmation to Provincial Officer Naomi Howard by email to naomi.howard@ontario.ca that a completed application has been submitted in accordance with Ontario Regulation 255/11 Applications for Environmental Compliance Approvals and the instructions set out on the Ministry's website at: https://www.ontario.ca/page/environmental-compliance-approval.
5The DO largely relates to establishing a workplan and applying for an Environmental Compliance Approval (“ECA”). The implementation of the workplan is not before the Tribunal.
ISSUE
6The sole issue on this de novo appeal is whether the DO, which confirmed the POO, should be confirmed, altered, or revoked pursuant to sections 16 and 16.1 of the Act. To be specific, sections 16 and 16.1 of the Act are below:
16 (1) A provincial officer may issue an order to any person that the provincial officer reasonably believes is contravening or has contravened,
(a) a provision of this Act or the regulations;
(b) a provision of an order, notice, direction, requirement or report made under this Act, other than an order under section 84 or 106.1 or an order of a court; or
(c) a term or condition of a licence, permit or approval made under this Act.
16.1 (1) A provincial officer who reasonably believes that it is in the public interest to do so may issue an order to any person who owns, manages or has control of a facility, including a sewage works or water works, that may discharge material into any water or watercourse that may impair the quality of water.
ANALYSIS
7The Director submitted a lengthy Book of Witness Statements, which was marked as Exhibit 1. The Director presented the extensive evidence of two witnesses. First, Naomi Howard, the Provincial Officer who had knowledge of the matter, testified with respect to the evidence set out in Officer Howard’s Witness Statement dated July 3, 2024, and included within Exhibit 1. Second, George Lajeunesse, the Acting Director (and Provincial Officer) at the time the DO was issued, testified with respect to the evidence set out in Officer Lajeunesse’s Witness Statement dated July 3, 2024 and included within Exhibit 1.
8By contrast, the Appellants presented no witnesses of their own. The Director’s evidence was uncontradicted and remained unassailed through the Appellant’s cross-examination.
9Considering the evidence presented, the Tribunal finds that although there is only one sewage system that was approved by the Ministry of the Environment in 1988, there are three sewage systems in operation on the Site. The sewage system approved for the Site included a single septic tank and was designed for a capacity of less than 10,000 Litres per day (“L/day”) to service three trailers. No information on the capacity of the other sewage systems was presented.
10Officer Howard explained that based on the maximum potential occupancy of the Site, according to the Building Code Act, 1992 s. 8.2.1.3, the sewage system capacity needs to be between 19,100 and 25,400 L/day.
11Officer Howard testified, and the Tribunal accepts a chain of emails between the Appellants and the Director, showing that the Appellants were aware on April 27, 2023 that at least two sewage systems were failing and that they needed to be remediated, repaired, and/or removed prior to the installation of a proposed new drinking water well.
12The Appellants were informed on May 15, 2023 by Valerie Reid, a Senior Environmental Officer, that a qualified professional would need to be hired to assess the sewage systems, design a new system, and apply for an Environmental Compliance Approval (“ECA”) prior to any construction on the sewage systems taking place. Officer Howard informed the Appellants on June 23, 2023, that it is a violation of s. 53 of the Act to operate, establish, alter, extend or replace the failing sewage systems without an ECA. As stated in s. 16(1) of the Act, an order may be issued for any violation of the Act. Officer Howard offered to issue a POO allowing the Appellants to install temporary holding tanks for collecting sewage while the Appellants worked towards the ECA.
13On July 28, 2023, Harnoor Gill, on behalf of the Appellants, agreed that a POO would be useful in providing a framework to come into compliance but requested that the order not include making the temporary holding tanks a requirement due to unknown costs. An updated draft of the Order was sent by email for the Appellants to review on July 31, 2023. The Appellants failed to respond to the Director’s requests for updates on the proposed draft order. On August 8, 2023, Provincial Officer’s Order No. 1-224531779 was issued.
14A site inspection, by Officer Howard on June 23, 2023, revealed that one septic tank was in the general area indicated by the Appellants, additional tanks were not able to be located, and the presumed location of the leaching beds was overgrown with vegetation. An inspection of the located tank showed that it was made of wood and was rotting. Officer Howard explained that the area over the leaching beds was overgrown with vegetation, which can allow sewage to pond on the surface and could result in sewage being washed away from the Site due to precipitation events.
15Officer Howard testified that the Site is 825 metres from the Matagami River, which is a source of water protected for the City of Timmins’ drinking water supply, that there is a creek between the Site and the Matagami River, that there is a drinking water well on the Site, as well as drinking water wells on the properties to the east and west of the Site. All of the above may be at risk, due to the Site’s failing sewage systems, which supports the issuance of the POO under s. 16.1(1) of the Act. The Tribunal, in this respect, is guided by Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70 at paragraph 43-44:
43 The purpose of the OWRA, as the application judge recognized, is "to provide for the conservation, protection and management of Ontario's waters and for their efficient and sustainable use, in order to promote Ontario's long-term environmental, social and economic well-being": OWRA, s. 0.1. It does this by prohibiting the discharge of pollutants that can impair water quality and by the regulation of sewage disposal and sewage works, among other operations.
44 This court has noted that the OWRA "creates a wide ambit of protection for Ontario waters": see R. v. Inco Ltd. (2001), 2001 CanLII 8548 (ON CA), 54 O.R. (3d) 495 (Ont. C.A.), at para. 53. As the court observed in Inco, this broad protection is necessary because the damage caused by pollution of waters may not be immediately apparent and impairment may be caused by the accumulation of pollutant materials over time: at para. 54
16Officer Lajeunesse testified, and the Tribunal accepts, that the Appellants asked for a review of the POO at an impromptu meeting on August 14, 2023, at the Timmins District Office. The Appellants sought several changes to the POO including:
i. to have Harpreet Gill’s name removed from the POO;
ii. to have the POO rescinded and any further orders issued solely to 1000251411 Ontario Inc. and not to Harpreet Gill;
iii. to stay the POO;
iv. to amend or revoke the POO, due to financial reasons;
v. to correct the description of the property; and,
vi. to have an onsite meeting.
17Officer Lajeunesse declined to remove Harpreet Gill from the order as he is the sole director of the Corporation and has management and control of the Site. Lajeunesse’s decision was based on the Compliance Policy: Ministry Policies: Naming of Persons in Control Documents in Appendix 1 of the Ministry’s Compliance Policy, Applying Abatement and Enforcement Tools (“MCP”). The Tribunal finds support for this in Alizadeh v. Ontario (Environmental, Conservation, and Parks), 2019 CarswellOnt 10687 at paragraph 26-28 and in 1000054177 Ontario Inc. and Harpreet Gill v. Ontario (MECP), 2024 CarswellOnt 9691 at paragraph 26.
Alizadeh v. Ontario (Environmental, Conservation, and Parks), 2019 CarswellOnt 10687, Paragraph 26-28:
26 … The first step "includes jurisdiction over the person, i.e., whether the person named in the order has 'management or control', and jurisdiction over the subject matter, i.e., the 'undertaking or property' at issue" (Rocha, para. 27). In this case, the only jurisdictional dispute is over whether Mr. Erlick had "management or control of the property or undertaking" that is the subject of the Director's Order.
27 Many decisions of the Tribunal (and its predecessor, the Environmental Appeal Board ("EAB")) address the question of "management" and "control" in s. 18 and s. 157.1 of the EPA. As summarized in Rocha, the terms are not defined in the EPA, but the common meaning of "manage" is "organize; regulate; be in charge of (a business, etc.)" and the meaning of "control" is "the power of directing, command", or alternatively, "the power of restraining". The Tribunal has held that the important issue is control of the activities relevant to the order under appeal. In Rocha, at para. 22, the Tribunal stated: "Where the undertaking is dealing with environmental issues, whether a person had the ability to influence or take preventive or corrective action but failed to do so is particularly relevant. Control includes both the power to make things happen and the power to prevent them from happening ..."
28 The Tribunal has also held that management or control is not limited to formal legal control in the hands of corporate officers and directors but can also include de facto control. Where those with formal legal control of a corporation deny their involvement, the Tribunal puts the onus on them to make a "convincing case".
1000054177 Ontario Inc. and Harpreet Gill v. Ontario (MECP), 2024 CarswellOnt 9691, Paragraph 26:
26 The 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.
18Further to this, Officer Lajeunesse did not rescind, stay, or revoke the POO and opted to leave both 1000251411 Ontario Inc. and Harpreet Gill named in the order. The Appellants cited “financial limitations” impacting their ability to secure investors in support of having Harpreet Gill’s name removed from POO. As stated in Appendix 1 of the MCP, financial hardship is not grounds to remove a person from a control document. Financial hardship can be used to schedule compliance dates and the types of compliance requirements. According to s. 5 of Guideline F-14: Economic Analysis of Control Documents on Private Sector Enterprises and Municipal Projects, an ordered person can provide documentation for their financial hardships so that the Director can take them into consideration when issuing/reviewing an order. Officer Lajeunesse testified that the Appellants did not provide any financial documentation or information for consideration. The Tribunal is further guided by Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment), 2009 CarswellOnt 7495 at paragraph 69, which states that the priority of the legislation is on environmental protection and secondary factors, such as financial factors, are subordinate to the overarching purpose of the legislation and are not an excuse for jeopardizing environmental integrity. The Appellants directly stated that the cost of compliance will “cost hundreds of thousands of dollars”, however the quote for the work to come into compliance from Pinchin Ltd., the consultants contacted by the Appellants, which was shared with the Director via email, indicates the costs to be $10,900.00. The Tribunal finds the argument, from the Appellants, that the DO work is cost prohibitive to be without merit.
19Officer Lajeunesse’s review of the POO resulted in:
i. a revision in the property description;
ii. declining the onsite meeting request as it was deemed unnecessary; and,
iii. an amendment of the compliance dates to allow more time to comply.
20Officer Lajeunesse issued the DO on August 18, 2023.
21The Appellants directly stated that they have begun the work required by the DO for Items 1 and 2, although Pinchin Ltd., the consultant for the Appellants, in an email to the Director, has indicated that they have not been retained and merely supplied a quote for the work. The compliance deadline for Item 3 has passed without being completed. The Appellants have stated that they intend to close the Site and remove all the occupants by November 30, 2024. They feel that, if the Site is to be closed and no sewage system is remaining in use, the DO should be revoked or altered.
22Both of the Director’s witnesses have stated that if the illegal sewage systems continue to be operated in the meantime, if the illegal sewage systems remain on the Site, or the potential occupancy of the Site is greater than the capacity of the approved sewage system, the DO should be confirmed and the Site should be brought into compliance.
23The Tribunal notes that there was no evidence advanced by the Appellants to establish that the Appellants were not aware of the steps and the need to address the failing sewage systems. The evidence accepted by the Tribunal establishes that the Appellants were aware of the situation as early as April 2023, which provided them ample time to address the issue without the need for a POO or the DO. Moreover, the Appellants’ claim that the Site is being closed so the Order should not be enforced was found to be without merit, as the Site is currently in non-compliance with the DO and will continue to be as long as the sewage systems are being operated without receiving an ECA and/or completing the necessary work to bring the sewage systems into compliance.
CONCLUSION
24The evidence of Officer Howard and Officer Lajeunesse clearly establishes that the Appellants are operating illegal failing sewage systems and intend to alter or remove those systems and are therefore in violation of s. 53 of the Act. Under s. 16 and s. 16.1 of the Act, a Provincial Officer’s Order can and should be issued to bring the Site into compliance. 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 the failing sewage systems. The corrective actions set out in the DO were found to be entirely reasonable, considering Officer Howard’s evidence establishing the Appellants’ lack of diligence in addressing the illegal and failing sewage systems. Accordingly, the Appellants are unsuccessful in their appeal.
Order
25THE TRIBUNAL ORDERS that the appeal is dismissed, and the Director’s Order No. 1-225767755 is confirmed.
“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.