Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 01, 2024

CASE NO(S).: OLT-23-000949

PROCEEDING COMMENCED UNDER subsection 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellants: Sharon Baker, Steve Baker, Tyler Baker, and Ssonix Products 2010 Inc.

Respondent: The Corporation of the City of St. Catharines

Description: Order to pay costs and expenses issued in relation to the prevention, elimination or amelioration of a spilled pollutant

Property Address: 20 Keefer Road

Municipality/Upper Tier: St. Catharines/ Niagara

OLT Case No.: OLT-23-000949

OLT Lead Case No.: OLT-23-000949

OLT Case Name: Baker v. St. Catharines (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Sharon Baker, Steve Baker, Tyler Baker, and Ssonix Products 2010 Inc.

Request for: Order requiring the City of St. Catharines to deliver an affidavit of documents

Heard: September 12, 2024, by video conference

APPEARANCES:

Parties Counsel/Representative*

Sharon, Steve & Tyler Baker And Ssonix Products 2010 Inc. Jessica Boily, Adrian Cormier

City of St. Catharines Richard Butler Amanda Spitzig Joanna Vince Tanner Kyle* (Articling Student Wilms & Shier)

Director, Ministry of the Environment, Conservation and Parks Sarah Valair MECP Student* (observing)

MEMORANDUM OF ORAL DECISION DELIVERED BY DOUGLAS S. COLBOURNE AND JACKIE DENYes given ON THURSDAY, SEPTEMBER 12, 2024 and decision on matters reserved.

PROCEDURAL BACKGROUND

1The Tribunal’s Decision following the Case Management Conference (“CMC”) on July 15th, 2024, ordered the following:

a. A Motion for additional disclosure particulars is set for September 12, 2024, at 10 a.m.;

b. Appellant’s Notice of Motion materials to be filed by August 21, 2024; and

c. City’s Response to Motion materials to be filed by August 30, 2024.

THE APPELLANTS MOTION

2The Tribunal received the following documents which will be filed as Exhibits on this Motion as follows:

1. Appellants’ Notice of Motion filed August 21, 2024, for September 12, 2024, Notice of Motion for Discovery;

2. City of St. Catharine’s Responding Record and Book of Authorities filed September 3, 2024;

3 (a) Appellants’ Reply Submissions/Affidavit of Cindy Cecy, Law Clerk filed September 6, 2024;

4. Appellants’ Reply Submissions/Affidavit of Ms. Gretel Best, Law Clerk;

5. Appellants’ Expert - Affidavit of Gerry Parrott, Professional Geoscientist with BlueFrog Environmental filed September 6, 2024; and

6. Appellants’ Book of Authorities filed September 6, 2024;

7. City’s objection to Appellants’ filing of Reply Materials via e-mail dated September 9, 2024; and

8. Appellants’ response to City’s objection via email dated September 9, 2024.

9. Respondent’s Affidavit of Joe K. Ng, Law Clerk dated September 3, 2024.

3Ms. Valair, on behalf of Ministry of the Environment, Conservation and Parks (“MECP”), indicated while the Ministry is not planning to participate today, she would remain as a Participant for the hearing.

4As set out by the CMC order, the Tribunal Panel convened a hearing on September 12, 2024, to deal with the filings as well as the new motion on behalf of the Appellants’/Owners (“Orderees”) who requested the following ("Motion"):

a. An Order under Rule 9.1 (Order for Discovery) and, as a result, Rule 17.3 (Adjournment of the hearing dates);

b. An Order requiring the City of St. Catharines (the “City”) to deliver an affidavit of documents;

c. An Order specifying the scope of relevance and privilege; and

d. An Order adjourning the hearing now scheduled to commence on November 25, 2024, until the City has made complete and intelligible production.

5The City opposes the Motion.

HISTORICAL BACKGROUND

6On January 12, 2023, there was an explosion and fire at the Orderee’s property located at 20 Keefer Road in the municipality of St. Catharines. The City issued a Cost Recovery Order to the Appellants in the amount of $4,155,116.21 for City incurred expenses inter alia the emergency response, environmental investigations, containment and to address spill of approximately 11.5 million litres of contaminated douse water.

7At the second CMC, the Tribunal heard submissions from Ms. Boily alleging continued deficiency in the City’s productions and requesting a written motion and date to seek disclosure of additional documents. As well, Ms. Boily requested an adjournment of the November 2025 hearing dates to consider the significant delay as a result of alleged incomplete disclosure by the City.

8Mr. Butler, on behalf of the City, indicated at that time that over 1300 documents have been provided to date and that he would continue to update the Orderees with the provision of invoices from Environmental Services and external contractors, if any. He noted, the notion that there is another “flood of documents” to be disclosed is simply not the case.

MOTION

9The Parties provided approximately two hours of oral submissions with opportunity for both sides to be heard.

10Ms. Best and Ms. Cecey identified in their Affidavits examples of formatting problems regarding the exchange of E-discovery documents between the Parties being illegible or missing pages. Mr. Parrott identified in his Affidavit that invoices received from the City and primarily from First Response Environmental Inc. who had the vast number of invoices, lacked meaningful description of the work performed and he could not complete his mandate that requires that he review the costs claimed by the City in order to provide an opinion on their purpose and their reasonableness, having regard to work performed.

11Mr. Butler cited acute prejudice to the City as the Orderees, at the July 15th CMC made no request to make Reply Submissions and therefore the CMC order remained silent. He suggested the Orderees are case splitting by strategically presenting some affidavits and holding back evidence on others in an effort to case split. He stated Mr. Parrott had been in receipt of supporting documents since January of 2024.

12Addressing the allegation of ‘case splitting’, Ms. Boily submitted that their office brought the Motion on behalf of the Orderees for production of documents. However, she submitted, the City chose to respond to the Motion as though it was a request for adjournment. As a result, the Orderees put forward Reply submissions and Mr. Parrot’s Affidavit that deals with prejudice. She suggested that the Reply and Affidavits of Ms. Cece and Mr. Parrott are entirely proper and not an effort to case split.

13Ms. Boily acknowledged that while the CMC order does not list a date for Reply, it also does not say “no Reply is allowed.” She further submitted it was up to Mr. Butler to have raised the issue of Reply at the CMC. She submitted the right of Reply is allowed.

14On the issue of late filing of Reply materials, Ms. Boily relied on Rule 10.3 of the Ontario Land Tribunal Rules of Practice and Procedure.

“The moving party shall serve a notice of written motion within 15 days of receipt of this notice. Parties wishing to respond to a written motion shall serve a response within 7 days of the date of the moving party’s notice of written motion. A moving party may reply to a response within 3 days of the date of the written response.”

15Ms. Boily clarified the remedy she seeks in this Motion is an adjournment of the scheduled Merit Hearing until they have received full disclosure of all legible and relevant, unredacted documents in the City’s power, possession, or control and that the Orderees are not seeking a formal examination for discovery at this stage.

16Mr. Butler indicated the City has made disclosure of over 1500 documents to date and they will continue to produce documents in this matter as they may arise. He assured Ms. Boily that the City has produced all relevant documents in its power, possession, and control. He objects to the adjournment of the November hearing as the dates were set in February of this year and submits the City has made full disclosure. He asserts the Orderees have everything they need to attend a hearing and respond to the reasonableness of the amount spent by the City in remediation.

17The Tribunal queried as to the most efficaciousness way to obtain the relevant documents. Ms. Boily suggested a sworn affidavit of documents by the City would indicate that final production is made. She also asks for the removal of redaction in privilege documents and that the documents be provided in a format agreed upon ensuring the documents are legible and understandable.

18Ms. Boily requests confirmation from the City that there is to be no further disclosure forthcoming and requested the City further agree to an order prohibiting and restricting further disclosure at the hearing. Mr. Butler argued there is no such obligation even in civil litigation. Mr. Butler reminded the Tribunal that there is no request before the Tribunal for such an order.

19Mr. Butler agreed the appropriate relief on this Motion is the sworn affidavit of documents which resolves the majority of Ms. Boily’s motion. Mr. Butler further indicated he could provide that to the Appellants’ by “tomorrow” (Monday the 16th of September 2024). The City asserts the next steps would be the exchange of witness statements. The Parties agreed to push back the dates for exchange of witness statements to 30 days before the November hearing.

20As the Tribunal began summing up the submissions heard this date, Ms. Boily asked if the Tribunal was refusing to hear the Motion this date as this matter seems to have been decided on submissions despite the failed attempts by the parties to “broker a deal”, in Ms. Boily’s words.

21It was the opinion of Mr. Butler that given that both sides filed substantial evidentiary and legal arguments in their Book of Documents and in oral submissions for approximately two hours during this Motion, that the Motion has been heard.

22Ms. Boily objected to the conduct of this Motion citing procedural fairness to the Orderees to have all the relevant unredacted documents before them and for reasons of judicial economy at the upcoming hearing. Mr. Butler stressed the need for the November hearing to proceed as scheduled as his client has expensed well over four million dollars in public funds as a result of the explosion and fire and there is prejudice to the City in continuing to delay on the basis the Orderees believe there are more documents outstanding.

23Mr. Butler argued the Orderees did not seek a restrictive order from filing further disclosure and that request should not form part of any order today. He indicated the City is not prepared to engage in “hypotheticals.”

FINDINGS:

24The Tribunal relies on its ability to control its own process and the principles of natural justice and procedural fairness and therefore finds that all Parties are under obligation to provide ongoing disclosure throughout in an effort to avoid “trial by ambush”.

25The Tribunal further finds the request by Counsel for the Orderees to prohibit and/or restrict the City from producing any further disclosure is not consistent with the case law submitted as part of this Motion. The Tribunal refers to, inter alia, the case of Markee Developments Inc. v. Toronto (City) 2023 CanLII 50942 found at page 65 of the Respondents Book of Documents filed on this Motion:

“…common practice that proposals are revised and even during the course of the hearing in response to evidence tendered, issues raised, and questions posed by the Tribunal. [Emphasis added] It is further argued that the Tribunal has inherent jurisdiction to approve a modified proposal based on the evidence heard.”

26The Tribunal finds, despite objection by the City, that the Appellants/Orderees are permitted to file their Reply Submissions pursuant to Rule 10.3 as a moving Party may reply to a response within three days of the date of the written response and does not constitute late service of material.

27The Tribunal finds that the Orderees are not case splitting by providing further Affidavits to request clarifying information for their law clerks and experts to peruse in an attempt to prepare their case.

28The Tribunal finds that pursuant to Rule 9.1 an order for Examination for Discovery has been dealt with. Ms. Boily indicated a “formal” Rules of Civil Procedure Order for Discovery is not what the Appellants were seeking at this stage of the proceeding but rather they were seeking further productions from the City. The consent by the City to produce the affidavit of documents forthwith has now resolved the issue of production of documents.

THE TRIBUNAL ORDERS THAT:

29The City of St. Catharines is required to deliver and produce in legible and searchable format, by Monday, the 16th of September 2024, an affidavit of documents as defined in the Procedural Order issued on February 29, 2024, that includes all relevant documents in the City’s power, possession, or control related to the costs and expenses sought by the City in the Order including those falling within the following categories:

a. All invoices, receipts, account ledgers and statements related to costs sought under the Order;

b. All documents and correspondence originating from or involving First Response; and

c. All documents and correspondence between the City and its consultants, including EFI Global Inc. and Sedgwick Canada Inc

30The hearing dates remain in place and the hearing shall commence on Monday, November 25, 2024, for 14 days. All witness statements to be provided on or before Monday, October 28, 2024.

“Douglas S. Colbourne”

DOUGLAS S. COLBOURNE

VICE CHAIR

“Jackie Denyes”

JACKIE DENYES

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.