Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 21, 2025

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)

Heard: November 26 – 29, 2024, December 2–4, 6, 9–12, 2024, and January 30, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

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

Jessica Boily Adrian Cormier Taylor Rodrigues (articling student)

City of St. Catharines

Joanna Vince Richard Butler Amanda Spitzig Tanner Kyle* (Articling Student)

DECISION DELIVERED BY G. POLITIS AND F. LAVOIE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is a Merit Hearing for an appeal pursuant to s. 100.1(7) of the Environmental Protection Act, RSO 1990 c E.19 (“EPA”) commenced by Sharon Baker, Steve Baker, Tyler Baker, (collectively, the “Bakers”) and Ssonix Products 2010 Inc. (“Appellants”). The Appellants appeal a Municipal Cost Recovery Order (“MCRO”) issued by the City of St. Catharines (“City”) against them in relation to the prevention, elimination, or amelioration of a spilled pollutant at a hazardous waste facility located at 20 Keefer Road (“Subject Property”).

2The MCRO required the Appellants to pay the City $4,155,116.21, which the Appellants appealed to this Tribunal. The Appellants described the MCRO as a significant overreach because it included costs not related to the spill, not connected to an environmental purpose, unsupported by detailed accounting, and unreasonable, having regard to what was done. They also say the Bakers were not owners of, or in control of, the spilled pollutants or contaminants.

3The Subject Property, its facilities, and materials are owned by Ssonix Products 2010 Inc. (“Ssonix”). Ssonix received a variety of waste classes, including Hazardous wastes, and the facility serves as a transfer station under an Environmental Compliance Approval (“ECA”) issued by the Ministry of the Environment Conservation & Parks (“MECP”) on September 18, 2022.

4The Bakers are the sole directors and officers of Ssonix. Steve Baker is its President, Tyler Baker its Treasurer, and Sharon Baker its secretary. Ssonix also employed seven other employees not related to the Bakers.

THE SPILL

5On January 12, 2023, at approximately 6:30 a.m., Ssonix’s facilities exploded, and a fire ensued. As a result of the explosion and fire, several containers of hazardous waste were released and spilled at the Subject Property and beyond to neighbouring properties and the natural environment (the “Spill”). The City’s Fire Department were the first to respond. Later that day, the Office of the Fire Marshall (“OFM”), the MECP, the Ministry of Labour, Immigration, Training and Skills Development (“MOL”), and the Ontario Provincial Police (“OPP”) joined the response. The City also retained First Response Environmental (“FRE”), an emergency response contractor, to assist at the Subject Property. To suppress the fire, the City Fire Department applied approximately 11.5 million liters of douse water onto the Subject Property, which migrated onto the City lands (“Surrounding Lands”). Ryan Konkin, the only Ssonix employee at the Subject Property when the explosion and fire occurred, tragically died from this incident.

6The OFM and MOL took control of the Subject Property to carry out their respective investigations. They returned control of the Subject Property about a month later, on February 10, 2023. FRE’s work ended on February 13, 2023. Almost all of the costs in the MCRO relate to FRE’s work between January 12, 2023 and February 13, 2023.

SUBJECT PROPERTY AND SURROUNDINGS

7The Subject Property is in an industrial park east of the Welland Canal. On the west and east sides of the Subject Property, stormwater drainage ditches flow to the north and eventually outflow in Lake Ontario at Jones Beach and Happy Rolph’s farm, approximately 800 meters away. Around the Subject Property are commercial facilities to the east and southeast, agricultural land to the southwest and a greenhouse facility immediately to the north. Figure 1 below shows a map of the aforementioned features with the Subject Property outlined in red:

Figure 1: Map of Subject Property and Surroundings

ISSUES

8The issues raised by the Appellants for this appeal are as follows:

1. Whether the Corporation of the City of St. Catharines MCRO met the statutory requirements set out in s. 100.1(3) of the Act, and included:

a. a statement identifying the spill to which the order relates;

b. a description of things for which the municipality or local board incurred costs or expenses for the purpose of preventing, eliminating, or ameliorating of any adverse effects of the spill or to restore the natural environment following the spill;

c. a detailed account of the costs and expenses incurred doing the things; and

d. a direction that the person to whom the order is issued pay the costs and expenses to the municipality.

2. Was there a spill of a pollutant?

3. Whether each of the Orderees (Sharon Baker, Steve Baker, Tyler Baker and Ssonix Products 2010 Inc.) was, immediately before the discharge into the natural environment:

a. the owner of the thing that was discharged,

b. the person having charge, management or control of the thing that was discharged, or

c. the employee or agent of the person having charge, management or control of the thing that was discharged?

4. Whether any of the costs and expenses specified in the Order:

a. do not relate to things for which the Corporation of the City of St.Catharines incurred costs or expenses for the purpose of:

i. preventing, eliminating, or ameliorating any adverse effects, or

ii. restoring the natural environment?

b. Are unreasonable, having regard for what was done?

DECISION

9The Tribunal finds it cannot consider issues 1 and 2, in accordance with s. 100.1(15). For issue 3, the Tribunal holds Ssonix Products 2010 Inc. was the owner of the thing that was discharged, and Sharon Baker, Steve Baker, and Tyler Baker were persons having charge, management or control of the thing that was discharged. For issue 4, the Tribunal holds $116,628.57 was not related to a s. 100.1(1) purpose, and holds $350,778.55 was unreasonable, having regard for what was done.

10The Tribunal also ruled on motions before the hearing and other matters arising during and after the hearing. These reasons are set out at paragraphs 21 to 57 of this Decision.

11The Tribunal therefore allowed the appeal, in part, by revising the MCRO amount owing from $4,155,116.21 to $3,687,709.09.

THE HEARING

12The Merit Hearing was held over thirteen days with a total of nine witnesses testifying before the Tribunal.

13The following Exhibits were marked during the hearing as set out below:

Exhibit 1: Joint Document Book, Index & Volumes 1-7

Exhibit 2, Witness Statement of Chief Dave Upper

Exhibit 3: Reply Witness Statement of Chief Dave Upper

Exhibit 4: Witness Statement of Kristine Douglas

Exhibit 5: Witness Statement of Michael Ion

Exhibit 6: Reply Witness Statement of Michael Ion

Exhibit 7: Joint Witness Statement of Mitchell Gibbs and Steve Tylliros

Exhibit 8: Joint Reply Witness statement of Mitchell Gibbs and Steve Tylliros

Exhibit 13: Witness Statement of Fil Barillaro

Exhibit 14: Witness Statement of Gerry Parrott

Exhibit 15: Reply Witness Statement of Gerry Parrott

14Exhibits 9-12 were witness statements of the Bakers and a reply witness statement of Steve Baker. These were withdrawn by the Appellants with leave of the Tribunal, subject to the City’s amendment of Ms. Douglas’ witness statement.

WITNESSES

15The Tribunal qualified the following witnesses to provide opinion evidence as expert witness in their respective areas of expertise, as noted below.

16The City’s experts were:

a. Michael Ion, qualified to provide opinion evidence in the fields of (1) soil, groundwater, and surface water contamination, including responding to and investigating spills and other environmental events and (2) peer review on consultant fees and invoices for responding to such spills and environmental events;

b. Mitchell Gibbs, qualified to provide opinion evidence in the field of emergency response, including responding to explosions, spills, and fire and hazardous material containment; and

c. Steve Tylliros is qualified as an expert to provide opinion evidence in the field of emergency response, including responding to explosions, spills, and fire and hazardous material containment.

17The Appellants’ experts were:

a. Fil Barillaro, qualified to provide opinion evidence in the fields of (1) soil, groundwater, surface water and sediment contamination and (2) managing a spill response and investigation under the direction of the MECP and MOL;

b. Gerry Parrott, qualified as an expert to provide opinion evidence in the fields of: (1) soil ground water surface water and sediment contamination, (2) managing spill response, containment, and remediation projects, and (3) peer reviews of spill response, containment, and remediation efforts, including invoices and costs.

18The Tribunal heard testimony from the following fact witnesses called by the City:

a. Dave Upper, the Fire Chief for the City; and

b. Kristine Douglas, the Chief Financial Officer and Treasurer for the City.

19The Appellants called the following fact witnesses under summons:

a. Andrea Lloyd, a MECP Provincial Officer who attended the Subject Property following the incident; and

b. Shayne Chesney, an Industrial/Occupational Hygienist with Ontario Environment and Safety Network Ltd. who worked for FRE for the first few days of the incident and then for Ssonix thereafter.

RELEVANT LEGISLATION

20Appeals of Municipal Cost Recovery Orders are governed by section 100.1 of the EPA, set out below with relevant defined terms:

1 (1) In this Act, […] “adverse effect” means one or more of,

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business;

“contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect;

Purpose of Act

3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

91 (1)

“owner of the pollutant” means the owner of the pollutant immediately before the first discharge of the pollutant, whether into the natural environment or not, in a quantity or with a quality abnormal at the location where the discharge occurs, and “owner of a pollutant” has a corresponding meaning;

“person having control of a pollutant” means the person and the person’s employee or agent, if any, having the charge, management or control of a pollutant immediately before the first discharge of the pollutant, whether into the natural environment or not, in a quantity or with a quality abnormal at the location where the discharge occurs, and “person having control of the pollutant” has a corresponding meaning;

“pollutant” means a contaminant other than heat, sound, vibration or radiation, and includes any substance from which a pollutant is derived;

“spill”, when used with reference to a pollutant, means a discharge,

(a) into the natural environment,

(b) from or out of a structure, vehicle or other container, and

(c) that is abnormal in quality or quantity in light of all the circumstances of the discharge,

and when used as a verb has a corresponding meaning

Municipality’s Cost Recovery Order

100.1 (1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.

Contents

(3) An order under subsection (1) shall include,

(a) a statement identifying the spill to which the order relates;

(b) a description of things for which the Municipality incurred costs or expenses for a purpose referred to in subsection (1);

(c) a detailed account of the costs and expenses incurred in doing the things; and

(d) a direction that the person to whom the order is issued pay the costs and expenses to the Municipality.

What the Tribunal shall consider

100.1 (15) At a hearing by the Tribunal on an order under this section, the Tribunal shall consider only,

(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,

(i) the owner of the thing that was discharged,

(ii) the person having charge, management or control of the thing that was discharged, or

(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or

(b) whether any of the costs or expenses specified in the order,

(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or

(ii) are unreasonable having regard to what was done.

RULINGS ON MOTIONS, ETC

21The Parties each brought motions the week before the Merit Hearing began and the Tribunal convened a CMC on an urgent basis to decide when they would be heard. At the CMC, this Panel ordered that both motions be heard on the first day of the Merit Hearing.

22In addition, during the Merit Hearing, the Tribunal ruled on the following matters:

a. Appellants’ challenge of the qualification of Mr. Gibbs and Mr. Tylliros (Dec 2); and

b. Appellants’ withdrawal of the Bakers’ witness statements (Dec 3).

23Lastly, after the Merit Hearing, the Appellants requested the Tribunal’s intervention regarding a lien on the Subject Property. Lien NR680095 was registered by the City on the title to the Subject Property pursuant to s. 100.1(5) EPA. The Appellants argued the lien was a violation of the MCRO’s stay following its appeal pursuant to s. 100.1(12) EPA, and therefore unlawful and required to be discharged by the City immediately.

24Except for the request regarding the lien, the Tribunal ruled on all the above matters during the Hearing, with written reasons to follow with the decision on the merits. These rulings and reasons are set out below.

Appellants’ Motion for Stay or Other Relief in the Alternative

25The day before the merit hearing commenced, the Bakers were each charged with arson by negligence and causing death by criminal negligence (“related criminal proceedings”).

26The Appellants’ brought a motion for a stay of the appeal until the conclusion of the related criminal proceedings, and, in the alternative:

c. An order striking the Reply Witness Statement of Chief Upper (which included an OFM Report on cause of the fire and explosion) and parts of the Reply Witness Statements of Mr. Gibbs, Mr. Tylliros, and Mr. Ion;

d. An order adjourning the merit hearing; or

e. Such further and other relief as counsel may advise and the Tribunal may find appropriate in the circumstances.

27The Appellants referred to a number of authorities in its submissions for a stay pending related criminal proceedings, including: Stickney v Trusz, 1973 CanLII 423 (ON HCJ), [1973] OJ No. 2279 (“Stickney”), Gillis v Eagleson, 1995 CanLII 7190 (ON CTGD), [1995] 23 OR (3d) 164 (“Gillis”), ACI Brands Inc v Pow, 2014 ONSC 2784 (“ACI”), and Bour v Manraj, 1995 CanLII 7072 (ON CTGD), [1995] OJ No. 4890 (“Bour”).

28Stickney, which predates the Charter, stands for the propositions that: the discretion to stay an action should be exercised in extraordinary or exceptional cases; more than just concurrent “criminal and civil proceedings pending against a person arising out of the same facts” is required to show that extraordinary or exceptional case; and a party seeking a stay must show some specific or particular way in which they will be prejudiced in their criminal trial.

29The Appellants refer to Gillis and Bour as cases where stays were ordered. They say the Court in Gillis held the moving party must demonstrate that evidence produced by the civil process will somehow seep into the criminal arena to pollute the defence against the criminal charge, despite the protections against self-incrimination that apply in certain circumstances. They argue there are no protections against self-incrimination which would apply to protect evidence given in this Tribunal hearing from being used against the accused in a criminal proceeding. The Appellants submit use immunity under the Charter doesn’t apply to administrative proceedings, use immunity under the Evidence Act does not meaningfully protect the Bakers because they do not understand what may be incriminating at this stage, and the implied undertaking rule does not protect evidence once used in a hearing.

30The Appellants therefore urge the Tribunal to stay this matter until the completion of the criminal proceedings and say that, otherwise, the Tribunal would force the Bakers into making an impossible choice: provide testimony that could be used against them in a criminal proceeding or decline to give evidence and be unable to defend themselves from personal liability of the City’s order.

31A closer review of the authorities cited by the Appellants demonstrates why the Bakers have not met their burden to show why their matter is an extraordinary and exceptional case where the Tribunal should grant a stay.

32In Gillis, the Court granted a nine-month stay from oral examination for discovery in a civil action where the defendant, Mr. Eagleson, was facing outstanding U.S. criminal charges and a Law Society of Upper Canada complaint arising from the same set of facts. In granting this limited stay, the Court balanced that relief with the prejudice to the other party in the proceeding:

More significantly, on the facts of the case before me, Eagleson is, and was, a resident of Canada, charged with an offence that, at least in part, took place in Canada against a Canadian resident. It would be anomalous to deprive a Canadian resident of the protections that he would have been afforded if he had been charged under Canadian criminal law when that resident is charged in the United States for an offence apparently committed at least in part in Canada against a Canadian resident. In those unusual circumstances, and given the relatively modest delay that need be occasioned to the civil proceedings, Eagleson has persuaded me that, to the extent that relief can be given without unduly prejudicing Gillis's right to a speedy trial of the civil action, he is entitled to some relief from this court.

An order requiring a stay of any oral examination for discovery of Eagleson for a period of nine months balances the respective interests of Eagleson and Gillis. If circumstances change within the next nine-month period, Gillis may apply to vary this order to compel Eagleson to attend immediately at examinations for discovery. Otherwise, if the plaintiff is so advised, he may move the matter on for trial without prejudice to his right to examine Eagleson for discovery before the actual trial date, and to bring any motions incidental to that examination. In this manner, the case may be placed on the trial list so as not to experience any further delay after the conclusion of the criminal proceedings.

33In Bour, the other case where a stay was ordered, the Court reasoned that “an order staying the civil proceedings until all criminal proceedings are completed would cast too wide a net”. The Court instead ordered a stay of discovery in the civil action until after the preliminary inquiry, which was taking place a mere eleven days later.

34In both Gillis and Bour, the Courts showed restraint by granting stays fashioned to address the specific prejudices raised by parties seeking the stay while considering the impact the stay had on the other litigant.

35The specific prejudice the Appellants raise is that the Bakers’ Charter rights to a fair trial would be violated by pre-litigating the cause of and responsibility for the explosion, and to prevent the City from abusing the Tribunal’s process. According to the Appellants, the City is “the architect of circumstances” designed to force them to make a choice between giving testimony which could be used against them in a criminal proceeding, or give no evidence and be unable to defend themselves in this appeal. They conclude by saying that the City’s attempt to amend its Order with entirely new evidence on reply has now created a serious risk that the Bakers’ right to a fair trial and against self-incrimination cannot be protected if this hearing proceeds now, and this abuse must be addressed by a stay or indefinite adjournment.

36The Tribunal finds the Appellants’ arguments on the risk to the Bakers’ rights to a fair criminal trial unconvincing. The Appellants’ right to a fair criminal trial is not prejudiced by this appeal, which has a narrow scope under s. 100.1(15). Aside from the OFM report, which the Tribunal will address further below, the Appellants lacked specifics in how they would be prejudiced in their criminal trial. Frankly, the Appellants’ speculative aspersions on the City’s motivations in attaching the OFM report fell short of meeting their onus to show either abuse of process or prejudice.

37Beyond the Appellants’ lack of specificity of the prejudice to their criminal trials, there are other factors militating against the Appellants’ request for a stay. Firstly, the Appellants did not address the considerable prejudice to the City if their relief was granted. Gillis and Bour make clear that even if the Appellants had successfully proved prejudice to their criminal trials, which the Tribunal rules they have not done, a stay of this proceeding until the conclusion of the related criminal proceedings would “cast too wide a net”.

38In this case, the obvious prejudice to the City on a stay of this appeal would be the delay of the City’s reimbursement of the disputed MCRO amounts, if any were ultimately upheld by the Tribunal. This is also the Appellant’s second motion seeking an adjournment of the merit hearing: the Appellants brought a motion on September 12, 2024, before a panel, differently constituted, to adjourn the merit hearing “until the City [had] made complete and intelligible production”.¹ That panel ordered further productions, but denied the adjournment.²

39Secondly, the City is willing to remove the OFM report. The Tribunal finds that ordering the OFM report struck addresses the bulk of the Appellants’ concerns while also avoiding the prejudice to the City from a stay of the appeal.

40Accordingly, the Tribunal grants the motion, in part, by ordering the OFM report appended to Chief Upper’s Reply Witness Statement be struck. The rest of the Appellants’ requested relief is denied.

City’s Motion for Partial Summary Judgment

41The City’s motion relies on certain admissions found in Steve Baker’s Witness Statement (before it was withdrawn by the Appellant), Mr. Parrott’s Witness Statement, and Rules 20 and 51.06 of the Rules of Civil Procedure, RRO 1990, Reg 194 to seek an Order that:

a. The Tribunal confirms that:

i. The explosion and fire of January 12, 2023, at 20 Keefer Road, St. Catharines, and the release of materials onto the ground and into the air at 20 Keefer Road and neighbouring lands was a “spill”, pursuant to Part X of the EPA.

ii. The explosion and fire of January 12, 2023, at 20 Keefer Road, St. Catharines, and the release of materials onto the ground and into the air at 20 Keefer Road and neighbouring lands caused “adverse effects” pursuant to s. 1(1) of the EPA.

iii. In response [sic] the explosion and fire of January 12, 2023, at 20 Keefer Road, St. Catharines, and the release of materials onto the ground and into the air at 20 Keefer Road and neighboring lands, the City of St. Catharines incurred costs and expenses to prevent, eliminate or ameliorate adverse effects and to restore the natural environment, pursuant to s. 100.1 of the EPA.

iv. That Ssonix Products 2010 Inc. and Steve Baker were, immediately before the Spill, owners of the thing that was discharged, a person having charge, management and control of the thing that was discharged and/or an employee or agent of the person having charge, management or control of the thing that was discharged.

b. The Ssonix Products 2010 Inc. and Steven Baker (jointly and severally) shall reimburse the City of St. Catharines $918,324.33, payable within 60 days, having conceded that the amount is reimbursable and supported.

c. The remainder of the hearing before the Tribunal will deal with any remaining issues for the remaining appellants, and the quantum of remaining costs and expenses incurred by the City of St. Catharines.

42The main problem with the City’s motion is that Steve Baker never admitted to being personally liable for the MCRO order. At paragraph 109 of his withdrawn witness statement, Steve Baker said:

“I understand that the City incurred costs to address the spill from the Property on January 12, 2023 when Ssonix was unable to direct those response activities directly. I expect that there is some amount of money that Ssonix should be responsible to pay to the City to compensate it for those costs.”

43The Tribunal finds that Steven Baker’s admissions did not include personal liability for the spill, which is fatal to the relief sought by the City.

44Furthermore, the City is asking the Tribunal to exercise its discretion under Rule 1.4 of the OLT Rules and Procedure to adopt or follow the procedures set out in the Rules of Civil Procedure. In their motion materials, they refer to Rule 20 as applicable with some modification, and then quote subrule 20.01(1), which says a plaintiff can move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in a statement of claim once a defendant has delivered their statement of defence or served a notice of motion. But Rule 20 consists of nine rules including, for example, Rule 20.03 requiring parties on a motion for summary judgment to serve and file factums, which was not done. In this Panel’s view, if the Tribunal were to exercise its discretion to follow the procedure from the Rules of Civil Procedure, it would not be fair to cherry-pick one rule (20.01) and ignore the remaining rules governing summary judgment (20.02 – 20.09).

45Accordingly, the Tribunal denies the City’s motion for partial summary judgment.

Appellants’ Challenge of Qualification of Mr. Gibbs and Mr. Tylliros

46The Appellants objected to Mr. Gibbs’ and Mr. Tylliros’ qualification as expert witnesses. In their Brief of Legal Argument for Use on Voir Dire, they argue they each lack the independence to be qualified as expert witnesses and should instead testify as “participant experts”. Participant experts form their opinions based on their participation in the underlying events, rather than because they were engaged by a party to the litigation to form an opinion. In Westerhof v Gee Estate, 2015 ONCA 206 (“Westerhof”) at para 60, the Ontario Court of Appeal held participant experts could give opinion evidence without complying with rule 53.03 of the Rules of Civil Procedure, setting out requirements for introducing the evidence of expert witnesses at trial.

47The Appellants submit that the involvement of Mr. Gibbs and Mr. Tylliros in the spill response and self-interest in justifying their respective invoices means they are not independent or impartial. They submit courts have found “experts in similar positions” could not be qualified, referring to MM v RM, 2016 ONSC 7003 and Barker v Barker, 2019 ONSC 5906, as such instances.

48Westerhof does not assist the Appellants – Mr. Gibbs and Mr. Tylliros have signed their acknowledgment of experts’ duty forms and are both aware and willing to carry out their primary duty to be fair, objective and non-partisan. The Appellants have not shown a realistic concern that the proposed expert witnesses are unable or unwilling to fulfill their duty to the Tribunal.

49Moreover, the “similar experts” cases the Appellants refer to are anything but. In MM v RM, the Court did not qualify a proposed expert who had been a party’s accountant for “three almost four decades”, and held, among other things, that “it is impossible to untangle this longstanding work and suggest that his opinion is now somehow impartial”.³ In Barker v Barker, the Court noted “fully half” of the proposed expert’s career had been related to experiences at the maximum-security mental hospital during the period relevant to the litigation. In comparison, Mr. Gibbs and Mr. Tylliros only spent about a month dealing with the Spill and were not the foundation for the information at issue in the litigation. The nature and extent of the connection with the litigation or party thereto is entirely different.

50Applying the not particularly onerous threshold requirement from White Burgess⁴, the Tribunal qualifies both Mr. Gibbs and Mr. Tylliros as experts in the field of “emergency response including responding to explosions, spills, fires, and hazardous material containment”.

51A final point of contention is the manner in which these experts will testify. The City proposes to have Mr. Gibbs and Mr. Tylliros testify together as a panel, which they say would be more efficient by avoiding duplicative evidence. The Appellants oppose the request and say they should testify individually. The Appellants argue it is important for the Tribunal to hear discrepancies in their testimony which would be more difficult to ascertain with a panel.

52The Tribunal directed each witness to testify individually, rather than as a panel. The Tribunal is not convinced a panel will be more efficient in the circumstances.

Appellants’ Withdrawal of the Bakers’ Witness Statement

53Following the Tribunal’s ruling denying the Appellants’ request for a stay pending related criminal proceedings, Ms. Boily obtained instructions from her clients and sought to withdraw the Bakers’ witness statements on the fifth hearing day, on December 2, 2025. To save hearing time, the Tribunal directed Parties’ counsel to find some common ground and return with a proposal the next morning. They were unable to reach an agreement. The Parties ask the Tribunal to rule on whether they can be withdrawn, and on what terms.

54Put simply, the Appellants say they are prejudiced by the Bakers not testifying but having their witness statements remain in evidence. The City says they are prejudiced if the Bakers withdraw their witness statements because they relied on those statements in preparing their case. The Appellants consent to only the last paragraph of Steve Baker’s witness statement be kept, set out below:

“109. I understand that the City incurred costs to address the spill from the Property on January 12, 2023 when Ssonix was unable to direct those response activities directly. I expect that there is some amount of money that Ssonix should be responsible to pay to the City to compensate it for those costs. I do not believe I should be held personally responsible to pay those costs and I do not believe that all of the more than $4 million incurred was for an environmental purpose or that it was reasonable to incur $4 million in costs considering what FRE did.”

55The City says they are relying on more than just the above paragraph, and had proposed an agreed statement of facts to replace the portions of the Bakers’ witness statements they needed. As the Appellants did not consent to that approach, the City proposes that it instead be granted leave to amend Kristine Douglas’ witness statement to add those admissions they needed.

56Following a short recess, the Tribunal allowed the Appellants to withdraw the Bakers’ witness statements, and the City is permitted to amend Ms. Douglas’ witness statement to include paragraphs from the withdrawn witness statements which the City needs to rely on. The Tribunal directed the City to include a pinpoint to the witness statement and paragraph number from which additions originated, and that the selection of paragraphs to retain be done judiciously. For example, the Tribunal explained this was not an invitation for the City to append all three Bakers’ witness statements to Ms. Douglas’. This approach is grounded in the Tribunal’s control of its own process, with a view to a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

The City’s Lien on the Subject Property

57On June 9, 2025, Ms. Boily wrote to the Tribunal requesting relief for what she characterized as the City’s registration of an “unlawful lien” on the Subject Property. Ms. Boily submitted that because this appeal was before the Tribunal and within the Tribunal’s jurisdiction, Ssonix seeks the Tribunal’s and not the Ontario Superior Court’s direction. Ms. Boily did not indicate how the matter of a lien on the Subject Property would be within the Tribunal’s jurisdiction, and for that reason, the Tribunal rejects this unsubstantiated request. In any event, now that this decision is issued, the MCRO stay pursuant to s. 100.1(12) is lifted, and the request is moot.

SUMMARY OF EVIDENCE

58The Tribunal heard testimony from several witnesses who played key roles in the underlying events throughout the month-long response to the fire, explosion, and subsequent Spill that is the subject of the MCRO. The Tribunal also heard extensive evidence from expert witnesses opining on the invoices and supporting documentation related to the costs and expenses that were incurred by the City in responding to the Spill.

The Invoices

59Most of the amount the City ordered the Appellants to pay is found on two invoices from FRE. Invoice #7878 for “Off-Site Work” shows a balance due of $1,861,864.09. Invoice #7879 for “On-Site Work” shows a balance due of $1,548,183.25. Each balance due is itemized into amounts owing for “response units & trailers”, “project labour”, “equipment charges”, “materials/consumables”, “subcontracting, rentals, unique expenses and misc consumables”, “generators and electrical supply”, “overhead/profit 10% + 5% on Cost+ Items Only” and “12.5% FEIF”. Together, these invoices account for 82% of the amount owing from the appealed MCRO.

Figure 2: Invoice #7878 (Off-Site Work)

Figure 3: Invoice #7879 (On-Site Work)

Chief Upper’s Testimony

60Chief Upper testified that he arrived at the scene shortly after 7 am on the morning of January 12, 2023. Mr. Upper noted that when he arrived on the scene, they had a medical component. He went on to describe the suppression plan for the fire. He stated that his first crews were setting up ground monitors for defensive positions. Mr. Upper stated that there was a lot going on, including the evacuation of the nearby residents. He stated that one of the main concerns with the fire was the movement of the plume of smoke and the current weather conditions regarding the direction of the wind.

61Chief Upper testified that he called Deputy Chief DeJong to confirm if anyone had tried to contact the main Key Holder. He testified that they engaged FRE as the Hazardous Material Response team. He noted that the fatality at the scene was removed and dealt with by the Emergency Medical Services (“EMS”) when they arrived in the early hours of the event. He testified that they contacted the MECP to monitor the air quality and sampling of the materials and the set up of three Zones:

a. Hot Zone with full Personal Protection Equipment (“PPE”);

b. Warm Zones which are for a non-deck location; and

c. Cold Zones where the level of PPE is dropped and not required.

62Chief Upper stated that he contacted the City’s Recreation Team and began the evacuation of 100 to 200 people to the north of the Surrounding Lands. The witness testified that no information or logs of chemicals were provided to him by Steve Baker, but he noted that Steve Baker provided him with some general guidance as to what was on the site at the Subject Property. The witness testified that on January 13, 2023, at 9:00 am the OFM hosted a meeting at the Fire Station upstairs at the Headquarters, where they drew up a map of the site on a 2 x 3 feet paper with Steve Baker. The map illustrated the buildings and where certain materials and their types i.e., flammable or combustibles were involved.

The OFM Investigation

63Mr. Gibbs and Mr. Tylliros are employees of First Response Environmental 2012 Inc. (“FRE”.) FRE held a contract with the City for emergency environmental response services, entered on February 14, 2013. The City’s Fire Department contacted FRE about an hour into the incident to respond to the spill. The witnesses testified that on January 12th, 2023, in the late afternoon, the OFM seized control of the Subject Property and access was closed off for everyone’s safety. Their evidence was that FRE would provide decontamination and technical labour to enable the OFM to conduct its investigation safely. They testified that they were taking direction from the OFM, but that FRE was retained by the City. For example, they testified that the OFM chose to investigate the Aerosol storage bay on the Subject Property and required FRE’s assistance to do so.

64In her testimony, MECP Provincial Officer Lloyd stated that the OFM and MECP did not have overlapping roles and that the OFM was concerned with the Subject Property onsite and that MECP was concerned with the Surrounding Lands off site.

65At the onset of her testimony, Officer Lloyd explained her role when spills occur, from compliance with environmental legislation to who is obligated to respond to a spill. Officer Lloyd also stated that the OFM, the Ministry of Labour and the OPP were conducting their respective investigations at the Subject Property. She also stated that the OFM and FRE were working together to enter the Hot Zone to collect evidence while moving waste around to contain it properly. Under cross-examination, she agreed that the OFM asked for things the MECP did not ask for, and had the OFM not been on site, the clean-up could have been quicker.

66Chief Upper testified that they had most of the fire under control by 3:00 pm and that the OFM wanted to start their investigation on January 13, 2023. Mr. Upper testified that a lot of waste was moved to 18 Keefer Road and was later returned to the site after the handover. The witness also testified that he issued an emergency order regarding the demolition of certain parts of the structures at 20 Keefer Road.

67Fire Chief Upper testified that the Fire Department facilitated the OFM’s investigation and that he had daily meetings and communications with OFM, MECP and TSSA for onsite gas issues. He went on to say that FRE was retained by the City and removed the chemicals and debris under the OFM’s direction for their investigation. The witness testified that on January 31, 2023, the City retained an outside consultant named Michael Ion from EFI due to the high costs involved with this event regarding the expensive environmental services.

The Review of Invoices by Mr. Ion and Mr. Parrot

68Mr. Ion was retained a week after the incident to assist the City with reviewing FRE’s work expertise to the City. Mr. Ion was later engaged as the Project Manager by the City on February 1st, 2023. During cross-examination, Mr. Ion was asked why the invoices were allocated by “on-site” and “off-site”. He testified that he did not know why the invoices were prepared this way, and repeatedly stated this was the way it was allocated “from a file review perspective” or “from a response perspective”. He could not recall any emails that were exchanged or any decisions that were documented regarding the invoice allocation.

69Mr. Ion explained his methodology in reviewing the invoices as follows. He first established the industry unit rate average from comparables. He then compared the unit rates invoiced to the calculated industry unit rate average to detect costs which could be adjusted through a reduction. To complete these tasks, Mr. Ion reviewed the following:

a. the hours or days invoiced for equipment against field notes, waste disposal documents, waybills, log sheets, or other documents to identify possible discrepancies in time entry, number of personnel, or hours,

b. disposal documentation for discrepancies in disposal volumes, weights, or rates applied versus the average industry disposal rates for the area

c. the quantity and rates for consumables invoices (e.g., PPE, tools, fuel and absorbent materials), and

d. the methodology employed by the contractor to assess if the approach taken was reasonable and appropriate given the conditions and the scope.

70Mr. Parrott was retained by the Appellants a year after the incident. Mr. Parrot opined that for his evaluation of the costs, he used two main categories, non-environmental and environmental. He stated that his benchmark was s.100(1) of the EPA. Mr. Parrott stated that he utilized back up documents, descriptions, and a detailed account of costs to determine whether they were reasonable or unreasonable. He categorized expenses as either “Not Reimbursable”, “Potentially Reimbursable - Not Supported”, and “Reimbursable”. Regarding costs charged by FRE, OPP, or other entities, which were related to OFM investigation work, Mr. Parrott opined those were “non-environmental” and “not reimbursable”. He testified that he cannot include costs for emergency personnel in s. 100.(1) of the EPA as Environmental costs. The witness also stated that he uses his expertise to determine which services are considered for s. 100(1) EPA purpose.

The Role of the MECP

71In her testimony Officer Lloyd stated that her main role was to ensure that there was a plan in place for the containment and clean up of the spill. Officer Lloyd stated that she was in the Spill Action Center, the command center for the MECP where she was able to manage the containment measures being implemented on the Surrounding Lands. In her testimony Officer Lloyd emphasized the conditions of the spill and the large amounts of douse water applied by the firefighters to supress the fire.

72Officer Lloyd stated that due to the fire, contamination was released into the air resulting, from the plume of smoke on the site. She went on to say that emergency measures were firsthand dealing with an Evacuation Order and evaluating what was being implemented at the site by FRE and Fire Chief. There was a lot of work being done by applying absorbents, berms, and marine booms to contain and divert the spill to avoid the pollutants from entering Happy Rolph’s Farm ponds and Lake Ontario. Many of the ditches were also filling up with the runoff of the pollutants from the Subject Property.

Provincial Officer’s Order

73At the onset of her testimony, Officer Lloyd stated that the Appellants and Ssonix were the owners of the spill and that they had care and control of the spill until the City and the OFM took control of the scene The witness stated that she issued a Provincial Officer’s Order on February 3rd for a Qualified Person to assess impacts by means of putting a plan together to stop further contamination and migration. Ms. Lloyd described the contents of the Order including its provisions (Exhibit 1, TAB 63-64.)

Director’s Order

74Officer Lloyd stated that a second order was a Director’s Order issued on February 17, 2023, due to a review from the Appellants to have Sharon Baker removed. The witness stated that the only orderees to remain were Tyler and Steve Baker and Ssonix due to their role as managers and in control with respect to Ssonix.

Qualified Person

75The Appellants witness Mr. Barillaro was engaged on behalf of Ssonix around January 18, 2023. The witness was retained as the Qualified Person (“QP”) to assess the environmental impacts of the fire and spill. Mr. Barillaro testified that he and Shayne Chesney of OESN were retained later to assist Ssonix in complying with orders issued by the MECP. The witness stated that the site was still under the control of the Office of the OFM and that he was denied access to the Subject Property. Mr. Barillaro stated that he prepared and provided the requested Immediate Action Plan to the MECP on January 23, 2023. On January 24, the OFM granted access to Mr. Barillaro to take samples at sites outside the main site. Mr. Barillaro stated that he was provided access on January 24, 2023, on the Ssonix site with an escort from the MECP. The witness testified that this was the only time until February 10, 2023, that he was permitted to perform work on the Subject Property.

76Mr. Barillaro opined that during the handover of the Subject Property back to Ssonix, that he provided direction on the containment plan to maintain its compliance, but he understood that additional clay had to be brought in to reinforce the berms to protect the watercourse. He also stated that he included the City’s earlier results with his analysis of the sampling to determine over time whether conditions were getting better or worse. He testified that his results were cleaner over time. Mr. Barillaro testified that following the handover of the site back to Ssonix, that he submitted an Environmental Impact Assessment Workplan (“EIAW”) on March 10, 2023. Mr. Barillaro testified that the MECP provided some comments on his EIAW and that he resubmitted the final plan that was approved by MECP on March 27, 2023.

THE SCOPE OF SUBSECTION 101.1(15) APPEALS

77Before engaging in an analysis of the issues, some context as to the scope of s. 100.1(15) appeals is of assistance.

78In Technical Standards and Safety Authority v Kawartha Lakes (City), 2016 CanLII 12963 (ON ERT) (Kawartha Lakes Motion), the Tribunal conducted a fulsome analysis on s. 100.1(15) and ruled the scope of these hearings were confined to the enumerated considerations in that provision:⁵

51Having regard to the applicable principles of statutory interpretation and the analysis set out above, the Tribunal reaches the following conclusions regarding the scope of the evidence that should be considered in s. 100.1 appeals. Section 100.1 provides a summary mechanism for municipalities to recover clean-up costs from those who owned or controlled a pollutant that was spilled. In s. 100.1 proceedings, the Tribunal’s ambit of considerations is clearly circumscribed by the wording of s. 100.1(15). The Tribunal will look into only: 1) issues relating to ownership or control of the “thing” (i.e., the pollutant, which in this case is the heating oil) immediately before the discharge, and 2) issues involving the relation of the incurred costs to s. 100.1(1) and the reasonableness of those costs having regard to what was done. The Tribunal finds that it should not hear evidence or argument regarding grounds that do not fall within the wording of s. 100.1(15)(a) or (b). Otherwise, it would be ignoring the “shall consider only” directive from the Legislature. The Tribunal has consistently abided by the “shall consider only” wording in proceedings under s. 145.3(2) (see, for example, Starnino and 569006 Ontario) and finds that the approach of confining the scope to only the listed considerations should also apply to s. 100.1 proceedings. While the scope of s. 145.3(2) is even narrower than s. 100.1(15) (in that ownership and control are not listed in the former), the general approach of confining the proceedings’ considerations only to the listed items is what the Tribunal finds was intended by the inclusion of the “shall consider only” wording in both provisions. Given that the provisions are drafted in a similar “shall consider only” manner, the Tribunal’s interpretation and application of them should be consistent.

69The following conclusions emanate from the above analysis. If the evidence shows that the orderee was within the classes of persons listed in s. 100.1(15)(a)(i) to (iii) (i.e., those with ownership or control) and the costs are not ones that fall within the classes set out in 100.1(15)(b)(i) and (ii) (i.e., costs that are unrelated to the clean-up work or are unreasonable having regard to the work), then the order should be upheld. Section 100.1(15) does not ask the Tribunal to conduct a wide-ranging new hearing or to consider substituting its discretion for that of the municipality. It is a summary mechanism to look at the specific questions set out in s. 100.1(15). Thus, after considering the evidence relating to the questions set out in s. 100.1(15), the Tribunal will intervene only if:

• the s. 100.1 order was directed to a person who does not fall within the list set out in s. 100.1(15)(a) (which would lead to a revocation);

• some or all of the costs do not relate to things for which the municipality incurred costs for a purpose set out in s. 100.1(1) (which would lead to a revocation or alteration, depending on whether all or some of the costs are unrelated); or

• some or all of the costs are unreasonable having regard to what was done (which would lead to a revocation or alteration, depending on whether all or some of the costs are unreasonable).

70Absent the above circumstances, the order will stand. There is no residual set of considerations that the Tribunal will examine in considering whether to revoke or alter a s. 100.1 order.

79This Panel concurs with the Tribunal’s holding on the scope of s. 100.1(15) appeals in Kawartha Lakes Motion.

ANALYSIS AND FINDINGS

Issue 1: Did the MCRO meet the statutory requirements set out in s. 100.1(3)?

80The Appellants submit that the City did not meet the requirements in s. 100.1(3) of the EPA. They say that “where a municipality’s failure to meet these obligations prevents the Tribunal from answering the questions it must answer on appeal (as set out in s. 100.1(15)), those costs should be excluded from the order”, citing the merit decision of Kawartha Lakes at paragraph 103.⁶

81The Appellants submit that the MCRO contained an insufficient description of the things that were done for which the City incurred costs or expenses to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment. They also submit that there was no detailed account of the costs and expenses incurred in doing the things included with the MCRO. The MCRO did not include invoices, but instead included a summary chart which listed invoice numbers and amounts. Some invoices were provided in September and October 2023. Additional invoices and back-up documents were provided in May and August 2024. They maintain many of the documents that could act as a sufficient description, but a detailed account has never been provided.

82The Appellants say that the description of things and the detailed account of costs must “connect the dots [between each other]” and that “the information was not correlated with the Order’s narrative”. They claim the City did not do so, but do not specify what dots are not connected, or what is missing from the description of the things done. They simply characterize the City’s description of things in the MCRO as “short narrative about the directions given to, activities and responsibilities of FRE and EFI, broken down into weekly or monthly periods.”

83The City submits that the prescriptive language of s. 100.1(15) appeals does not include an assessment of the s. 100.1(3) requirements. Nonetheless, they respond that they have met the s. 100.1(3) requirements through their description of things in the MCRO and the detailed account of costs from the cost summary and the invoices for costs claimed.

84The Tribunal agrees with the City that s. 100.1(15) appeals do not include an assessment of the s. 100.1(3) statutory requirements. This is what Kawartha Lakes held, which this Panel endorses.⁷ The Appellant’s citation of paragraph 103 of Kawartha Lakes does not stand for the proposition they urge the Tribunal to accept. In that paragraph, the Tribunal refused to add 5 out of 10 new invoices proposed to be added to the City’s Order pursuant to s. 100.1(14) of the EPA. It did not hold that a s. 100.1(3) deficiency necessarily leads to an exclusion of the costs from an unamended order. Though the Appellants repeatedly cited Kawartha Lakes in their submissions, they inexplicably omitted the Tribunal’s holding in Kawartha Lakes that it does not have the jurisdiction to consider s. 100.1(3) as a separate issue in addition to those enumerated in s. 100.1(15).

85If the Tribunal is wrong in holding it lacks jurisdiction to consider s. 100.1(3) in this appeal, the Tribunal finds the City’s MCRO met those requirements. Reviewing the MCRO, the Tribunal finds it includes a “description of things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection [100.1(1)]”. More than half of the 12-page MCRO describes the things which were done. It lists 63 things which were done, categorized by who did them (the Fire Department, FRE, and EFI), and when (broken down into weekly periods for FRE). Though the City did not initially include invoices referred to in the MCRO cost summary, those invoices were provided shortly thereafter on September 26, 2024, as the Appellants indicate in their Notice of Appeal. In any event, the cost summary appended to the MCRO accounted for every dollar the Appellants were ordered to pay and identified who invoiced the City, the invoice number, and a description. The Tribunal therefore finds that the MCRO provided a detailed account of the costs and expenses incurred in doing the things.

Issue 2: Was there a Spill of a Pollutant?

86The Appellants submit the Spill is not what the City identified at paragraph 11 of the MCRO, set out below:

“11 As a result of the explosion and fire on January 12, 2023, Pollutants (as defined in the EPA) were released and spilled at 20 Keefer Rd., within the Ssonix Facility and beyond to neighbouring properties and the natural environment (collectively referred to as the “Spill”).”

87The Appellants contend the City has adopted a “slightly different definition” of the Spill in their closing submissions, because it includes “smoke from the burning containers of flammable materials and the release/explosion of aerosol containers” and distinguishes the “on-site spill” from the “off-site spill”.

88The Appellants also argue the “evidence is that the Spill was the combination of douse water and waste discharging into nearby ditches”. It is unclear from the Appellants’ submissions on what legal basis they challenge the municipality’s statement identifying the Spill to which the order relates.

89The City responds that it has not changed its definition of the Spill from the MCRO. They submit it is the Appellants who are attempting to redefine the Spill by suggesting that it was the combination of douse water and pollutants discharging into the nearby ditches. The rest of their submissions refers to the evidence of Officer Lloyd, Mr. Parrot, and others which corroborates the Spill as identified in the MCRO.

90In the Tribunal’s view, the Appellants’ argument to redefine the Spill as contaminated douse water is meritless. It is not open for the Appellants to challenge the City’s statement identifying the Spill to which the order relates – the Tribunal will only consider the issues enumerated in s. 100.1(15). The EPA required the MCRO to include “a statement identifying the spill to which the order relates”, which the City did. The MCRO unambiguously identifies the Spill as the Pollutants released and spilled from the explosion and fire at the Subject Property. The douse water the City’s Fire Department later applied when responding to the explosion and fire is not part the Spill as identified in the MCRO.

Issue 3: Whether each of the Orderees was, immediately before the discharge into the natural environment, the owner of the thing that was discharged, the person having charge, management or control of the thing that was discharged, or the employee or agent of the person having charge, management or control of the thing that was discharged.

91The Appellants submit the MCRO “must be revoked as against Steve, Sharon and Tyler Baker”. Without reference to any authorities, they say that the onus was on the City to establish its jurisdiction to issue the MCRO against the Bakers.

92The Appellants’ position is that only Ssonix should remain on the MCRO. They say Ssonix is the registered owner of the Subject Property and the assets there, is the holder of the ECA permitting the operation of the waste business, and the owner of wastes accepted as the operator of the waste disposal site.

93Conversely, the Appellants submit none of the Bakers had control of a pollutant at the time of the first discharge. They argue that it was established in Midwest Properties Ltd v Thordarson, 2015 ONCA 819, that there is no presumption at law that officers and directors of a corporation have management and control of a pollutant simply because that pollutant is owned by or managed and controlled by the corporation. The finding that a corporate principal, director or officer is a “person in control of a pollutant” depends on the facts.

94With respect to Sharon Baker, they say there is no evidence she had any day-to-day management of Ssonix. They point to the fact that the MECP revoked their s. 157.1 order against Sharon Baker, and say “the MECP concluded she did not have management or control over the corporation”. They conclude that, other than her role as officer and director, there are no facts that could support that Sharon Baker was in control of a pollutant at the time of its first discharge.

95Regarding Steve Baker and Tyler Baker, the Appellants submit the fact they did not challenge the s. 157.1 MECP order is not determinative, because it is a different and broader scheme. They argue that even if Steve Baker and Tyler Baker are presumed to be in management and control of the corporation or the “undertaking” of cleaning up the Property, the City cannot demonstrate they were persons in control of the pollutant at the relevant time.

96The Appellants refer to Montague v Ontario (Ministry of the Environment), 2005 CanLII 6379 (Div Ct) in submitting the Tribunal must determine what was being managed or controlled, in determining who had management or control. They say that in this appeal, the what is the pollutant “immediately before the first discharge of the pollutant, whether into the natural environment or not, in a quantity or with a quality abnormal at the location where the discharge occurs”. They then refer to Gendron v Thompson Fuels, 2017 ONSC 4009 at paragraph 422 where the Court held the phrase “immediately before” incorporates a requirement that there be no intervening act between “charge, management or control” and the discharge of the pollutant. The Court ruled that once the oil was delivered to Mr. Gendron’s leaking oil tank, Thompson Fuels lost control of the oil. The Appellants submit that even if Steve Baker or Tyler Baker could be shown to have control of the waste at the Property before the explosion and fire, that explosion and fire was an intervening act that led to a loss of control.

97The City agrees that Ssonix is the owner of Subject Property and the pollutants, but submits the Bakers were also owners of the pollutants immediately before the Spill. They rely on the ECA which says that “Owner” and “Applicant” mean Ssonix Products Ltd., including its officers, employees, agents and contractors. They say that each of the Bakers were officers, directors, and employees of Ssonix, and therefore “Owners” of the Pollutants that were spilled.

98In the alternative, the City submits the Bakers at all material times had charge, management or control of the pollutants or were employees or agents of the person having charge, management or control, immediately before the Spill. They say the Bakers are active directors and officers of Ssonix, with day-to-day charge, management and control of Ssonix, the facility at the Subject Property, and the Pollutants. Indeed, Steve Baker, Tyler Baker, and Sharon Baker are President, Treasurer, and Secretary of Ssonix, respectively, on the corporate profile report and certificate of incorporation for Ssonix. They submit that this establishes a presumption the Bakers were in “management and control” of Ssonix and the Pollutants immediately before the Spill, that the onus then shifts to the Appellants to prove they were not persons having charge, management or control of the thing that was discharged, or the employee or agent of the person having charge, management or control of the thing that was discharged. They say the Bakers have not met that burden.

99The City relies on several decisions to argue that Officers and Directors are presumed to have management and control.⁸ None of those decisions dealt with the “management and control” in the context of a s. 100.1(15) appeal: they were proceedings commenced under EPA s. 140(1), appealing a s. 18 Director’s order, and a judicial review of a “plugging order” issued pursuant to the Oil, Gas and Salt Resources Act, RSO 1990, c P.12.

100The City submits that because the Bakers did not testify in this hearing, they presented no evidence of their work and role at Ssonix to displace the presumption of management and control. The City says they have therefore failed to present a “very convincing case” to rebut the longstanding presumption that officers and directors have management and control of the undertaking, which they say is the Ssonix facility and Pollutants.

101The City says that evidence relating to the Bakers includes that they were named in the s. 157.1 Order, and though Sharon Baker was removed pursuant to a Director’s Order, it was done in settlement of the review and not on the basis Sharon Baker had no management or control of the undertaking. They add that multiple witnesses gave evidence of Steve Baker’s and Tyler Baker’s involvement the day of the Spill, including that:

a. Officer Lloyd testified Tyler Baker provided his contact information and identified he was an employee/operator of the Subject Property, and answered questions about some the chemicals and quantities there;

b. Chief Upper testified that Steve Baker helped construct a map of the facility at the Subject Property and the Pollutants located within; and

c. Mr. Gibbs and Mr. Tylliros testified to conversations with Steve Baker and Tyler Baker regarding inventory at the Subject Property.

102The City concludes by saying that all of the Bakers can be said to have exercised a level of involvement above that of the director in Currie, which was an appeal of a s. 18 order. They say that the director in Currie had entered the site once, was a passive investor, had no knowledge of the business with the exception of the one meeting he attended with the Ministry of Environment, but was nevertheless found to have management or control.

Findings

103Since the Parties agree that Ssonix owned the Subject Property and its Pollutants, the Tribunal finds that Ssonix was “an owner of the thing that was discharged” per s. 100.1(15)(a)(i).

104Turning to the Bakers, the Tribunal cannot agree with the City that the Bakers are owners of the thing was discharged on the basis of a definition of “owner” found in the ECA. The ECA clearly indicates that those definitions are “for the purpose of this environmental compliance approval”, the EPA defines “owner of the pollutant” without mentioning ECAs, and Part II.1 of the EPA on ECAs has no provisions regarding an “owner of the pollutant”.

105Despite the Bakers deciding not to testify at the hearing, the Tribunal is satisfied based on the extensive evidentiary record that, on a balance of probabilities, Steve Baker, Tyler Baker, and Sharon Baker each were, immediately before the discharge into the natural environment, persons having charge, management or control of the thing that was discharged, in accordance with s. 100.1(15)(a)(ii) of the EPA.

106Indeed, the Tribunal finds Steve Baker, Tyler Baker, and Sharon Baker were the natural persons who managed and controlled not only Ssonix, but also Ssonix’s assets – most importantly, the facility and pollutants contained within. Ssonix is a small company with about a dozen employees and controlled by the Bakers collectively. There was no evidence that anyone else was in charge, management and control of the pollutants at the Subject Property.

107Although the Tribunal disagreed the ECA deems the Bakers “owners” of the pollutants, the ECA requires officers of Ssonix - which all three Bakers are – to abide by its terms and conditions. Conditions 23 to 27 under the heading “Waste Storage and Spill Protection” are germane to the issue of management and control of the pollutants:

WASTE STORAGE AND SPILL PROTECTION

23. The Owner shall ensure that all waste on-site is handled and stored in accordance with the Ministry guideline entitled "Guidelines for Environmental Protection Measures at Chemical Storage Facilities" updated January 2016, as amended from time to time.

24. The Owner shall ensure that all wastes contained in the storage tanks and containers are chemically compatible.

25. The Owner shall regularly inspect and maintain in good working order all waste storage tanks and containers in order to prevent leakage. In the event of any loss of containment integrity, the Owner shall immediately take all necessary remedial action to contain and clean-up any spill or discharge, and restore containment integrity.

26. The Owner shall regularly inspect the spill containment system to ensure that the integrity of the system is maintained at all times. Any deficiencies in this regard shall be rectified immediately.

27. The Owner shall ensure that no waste is stored at the Site for more than 180 days from the date of receipt without the written authorization of the District Manager.

(emphasis added)

108The conditions above show Ssonix and the Bakers were required to be in “charge, management or control” of the pollutants through the specific terms and conditions of the ECA.

109This accords with the evidence from the City’s witnesses, which the Tribunal accepts, that Steve Baker and Tyler Baker knew what wastes were at the Subject Property and where they were stored within. For example, Steve Baker drew a map for Chief Upper to identify the locations of waste inside the building.

110Finally, the Appellants’ own Notice of Appeal says Steve Baker and Tyler Baker were employed by Ssonix and were involved in the day-to-day waste receiving, storage, processing and shipping operations at the Subject Property.

111In conclusion, the Tribunal finds the Bakers were persons having charge, management or control of the thing that was discharged, immediately before the discharge into the natural environment.

112The Tribunal will now address the Appellants’ endmost submission for this issue that the explosion and fire was an intervening act that led to a loss of control.

113The Tribunal rejects the Appellants’ intervening act argument. The Appellants never raised this ground in their Notice of Appeal, nor sought leave to rely on this ground. Accordingly, by operation of subsection s. 100.1(10) of the EPA, the Appellants cannot rely on this ground. When questioned by the Tribunal on this point, Ms. Boily maintained that the Notice of Appeal raised this ground by stating the Bakers did not have control or management of those materials. Paragraphs 47 and 48 of the Notice of Appeal shows that the Appellants raised two grounds for why the Bakers were not proper orderees – the pollutant was the douse water which the Fire Department controlled, and in the alternative, if the pollutant was waste from the facility, Ssonix alone had charge management and control of it. It is clear that the Appellants are raising a novel ground which is absent from their Notice of Appeal.

Issue 4: Do the City’s Costs Relate to a Purpose from Section 100.1(1)?

114The Parties agree that costs claimed by a municipality in a cost recovery order must be incurred for the purpose of preventing, eliminating or ameliorating any adverse effects from the Spill, or to restore the natural environment. Adverse effects are defined in the EPA, as set out earlier at paragraph 20 of this Decision.

115The City submits that in considering purpose, the Tribunal should apply the very broadly defined term of adverse effects in the EPA. They cite the Tribunal’s decision in CN Rail⁹ which allowed the recovery by the MECP costs of sampling and public relations staff time by holding they were related to a purpose (in that case, under s. 99.1 EPA). The City argues Mr. Parrot looked at whether costs could be considered “environmental” or “remediation work”, instead of assessing if they were related to “adverse effects”. They also refer to Kawartha Lakes¹⁰, where the Tribunal found that costs of staff travel and communication costs related to a purpose set out in s. 100.1(1).

116The City’s position is that all of the costs and expenses itemized in the MCRO were incurred for the purposes of either preventing, eliminating or ameliorating any adverse effects, or to restore the natural environment, as set out in s. 100.1(1) of the EPA. They say the witnesses’ testimony demonstrates the immense amount of work carried out in response of the Spill, and the purposes of the work that was done.

117The City also argues that there are numerous issues with the evidence of Mr. Parrot. First, they say he failed to consider the context of the witness statements in categorizing costs, which inflates the amounts he says ought to be “Not Recoverable”. Second, as mentioned earlier, they say he applied an overly narrow lens by disregarding the purpose of preventing, eliminating, or ameliorating any adverse effects. For example, the City says that this analysis miscategorized costs for standby paramedic and ambulance personnel, deconstruction of the main fire occupancy building, labour for the rapid intervention team (“RIT”), and Site Security for the Subject Property. Third, the City criticizes Mr. Parrot’s evidence as generally unreliable by failing to be informed: he did not do a site reconnaissance, field assessment, sampling or analyses of environmental media, or interviews with any party involved in the matter. The City submits that, given these concerns, little or no weight should be given to his evidence.

118The Appellants respond that Mr. Parrot is highly qualified and has extensive experience in peer reviewed spills for insurers and law firms. The Appellants submits the Tribunal should prefer Mr. Parrot’s evidence over that of Mr. Ion, who they say has never worked on a spill as large as this and did not provide an expert report. They claim that Mr. Parrot considered the adverse effects in his report.

119The Appellant submits that invoices should not be paid until sufficient back-up for labour and equipment costs is provided, such as work orders or a daily log with details such as the equipment and personnel with the time, location and work completed. They say that subcontractor costs such as GFL were generally allocated to “Potentially Reimbursable, Not Supported”, because of this.

120The Appellants’ other issues with respect to the purpose of the costs and expenses are:

a. Misleading waste disposal documentation, because it was not a disposal site invoice but a spreadsheet with the name and logo of another company owned by FRE’s owner;

b. Missing Descriptions and Accounts for frac tanks equipment rented by FRE, vehicles and trailers used by FRE such as vac trucks, no daily task summary for invoice 8185, and missing invoices for evacuation and public meeting costs;

c. Costs unrelated to the Spill such as the demolition and structural engineering costs for the damaged building on the Subject Property, the evacuation and public meeting costs, costs to prevent future spills and handling hazardous materials;

d. Costs related to the OFM investigation such as bankers’ boxes used to seize files from the Subject Property, office trailer, bathroom and generator, firefighter overtime wages, meals, and supplies, security company securing the Subject Property, FRE’s costs to decontaminate the police trailer and to assist the OFM investigation at the Property, and standby paramedic and ambulance services during the OFM investigation.

121The Appellants argue that the hazards the OFM investigators faced on the Subject Property does not imbue FRE’s work with the purpose of preventing adverse effects. They explain FRE’s work was required because the OFM needed to investigate, therefore the purpose of FRE’s presence was to permit and assist that investigation. The Appellants do acknowledge, however, that there is no question that FRE did some work at the Subject Property, such as putting down spill absorbent pads, tarp containers and right leaking totes.

122Lastly, the Appellants submit that costs to manage the City’s financial, regulatory and other liabilities are not recoverable. This would include the costs for the City’s retained law firm, and insurance adjustor.

Findings

123The Tribunal agrees with the Appellants that the costs for the law firm and insurance adjuster should be removed – neither relates to the purpose of preventing, eliminating or ameliorating any adverse effects from the spill, or to restore the natural environment.

124The Tribunal generally agrees with the City’s submissions that Mr. Parrot’s methodology inflates the amounts he opines are “Not Reimbursable”. By way of a singular example, in Appendix D titled “Bluefrog Cost Analysis” of his Expert Report dated October 28, 2024, Mr. Parrot categorized only $44,916.26 as “Reimbursable” out of more than $1 million in costs on invoice # 7879 for “on-site” work by FRE. In the aggregate, his original October 28, 2024, opinion was that $918,342.33 was reimbursable, $1,260,571.05 was potentially reimbursable, and $1,981,602.79 was not reimbursable. When Mr. Parrott testified, he revised his assessment based on his review of the evidence heard during the hearing, which resulted in an even lower reimbursable amount of $513,969.73, with the new potentially reimbursable costs at $1,703,577.67, and $1,937,568.77. In its closing submissions, the Appellant oddly characterized those changes as “favourable to the City”, though they almost halved the amount categorized as reimbursable.

125Further to the already serious concerns the Tribunal finds with regards to the reliability of the allocation of costs by Mr. Parrott, the Tribunal finds Mr. Parrot’s opinion ventured beyond assisting the Tribunal with his expertise. This was by design – page 3 of his Expert Report sets out his instructions from counsel and the questions he was asked to answer as part of his retainer:

4.0 COUNSEL INSTRUCTIONS

I was retained to provide an independent, objective, and unbiased opinion in relation to the matters within my expertise based on my review of relevant material and documents provided by Gowling. I was asked specifically to respond to the questions posed by Gowling that are listed below.

1. Has sufficient information and documentation been provided to enable you to form an opinion on the below questions, or is there additional information which is required to answer the below questions?

2. Do the costs and expenses claimed for relate to things for which the City incurred costs or expenses for the purpose of preventing, eliminating or ameliorating any adverse effects (as defined in the Environmental Protection Act) of a spill of a pollutant or restoring the natural environment due to the spill of a pollutant?

3. Are the costs and expenses reasonable, having regard to what work was actually done?

(emphasis added)

126The latter two questions are the very questions which the Tribunal is to decide in accordance with s. 100.1(15)(b). In this Panel’s view, how to interpret the EPA provisions, and apply them to the costs in the MCRO are questions of law, for which expert opinion evidence is not admissible. However, even if his opinion evidence is admissible on the determination of how the costs should be treated under the s.100.1(15) regime, as mentioned earlier, this Tribunal would reject his overall opinion that less than a quarter of the costs incurred are reimbursable.

127Having considered the testimony of each witness, the invoices, and the supporting documentation, the Tribunal finds all other costs relate to the purpose of preventing, eliminating or ameliorating any adverse effects from the Spill, or to restore the natural environment.

128The evacuation and public meeting costs relate to preventing adverse effects from the Spill – this was a serious incident, and authorities sought to prevent harm or material discomfort to any person and the impairment of the safety of any person, among other adverse effects. However, the Tribunal notes there is no invoice to corroborate the “live stream $2148.43” description under the “other expenses category.” The Tribunal will therefore reduce this amount from the MCRO.

129The Tribunal is otherwise satisfied with the supporting evidence with respect to costs incurred by the City. With respect to costs from FRE’s on-site work, which would have included preventing adverse effects to OFM investigators and others at the Subject Property, the Tribunal finds that this relates to a purpose of preventing adverse effects. The Appellants’ concerns with FRE’s on-site work and the significant role the OFM took in controlling the Subject Property will instead be relevant at the next stage in assessing whether the costs are reasonable, having regard to what was done.

130In conclusion, the Tribunal finds the MCRO costs relate to the purpose of preventing, eliminating or ameliorating any adverse effects from the Spill, or to restore the natural environment, except for the following amounts:

a. Willms & Shier Environmental Lawyers Invoices 47153, 47597, and 47420 for $50,111.14, $18,609.75, and $30,370.25, respectively, totaling $99,091.14

b. Sedgwick’s (City’s Adjuster) three invoices for $3,432.00, $7,172.00, and $4,785, respectively, totaling $15,389.00.

c. Other Expenses - live stream for March 8, 2023, public meeting without supporting invoice, totalling $2,148.43.

Issue 5: Were the Costs Reasonable Having Regard to What Was Done?

131The Parties agree that assessing reasonableness does not involve simply identifying the lowest cost path – it requires an assessment of the work done and an analysis of whether the level of expenses falls within the range of reasonable cost alternatives that were available to fully accomplish the purposes of the work being done.¹¹

132The Appellant says some of the costs were unreasonable, arguing there was a need for a project manager to have reigned in costs. They say Mr. Ion was retained late, kept no notes of personnel or equipment used, no photographs, and very little by way of information as to his review of the invoices.

133The City responds that it took efforts to contain costs as much as possible. They refer to Chief Upper’s evidence, where he recounted his concerns that the costs of the response would be significant and endeavoured to carry out the work responsibly.

134The Tribunal is not convinced that Chief Upper’s concerns on controlling costs were shared by decision-makers at the City. Ms. Douglas’ witness statement stands in contrast:

25 The City did not have the internal expertise to direct [FRE} on the environmental measures required during the emergency situation, and due to the emergency situation, [FRE] was taking direction from the [OFM], and there was not the ability to engage in budget discussions with [FRE] about the costs of environmental emergency response…

135The situation described above was corroborated by the evidence of Mr. Gibbs and Mr. Tylliros that activities at the Subject Property “took place under the direction of the OFM pursuant to the OFM’s on-site investigation”. As found earlier, preventing adverse effects against the OFM relates to a s. 100.1(15) purpose. The question to be answered at this stage is whether incurring those costs was reasonable, having regard to what was done.

136The Tribunal finds that what was done (for on-site work) was preventing adverse effects, specifically, harm or material discomfort to or an adverse effect on the health of any person from the pollutants on-site. One alternative for fully accomplishing the purpose of preventing those adverse effects from pollutants on-site to persons would have been to prevent access to the Subject Property altogether. Given this simpler and less costly alternative, it was not reasonable to provide ongoing support for an entire month to the OFM investigation, even if for a prescribed purpose. The Tribunal notes that, had the City paid closer attention to the tasks and costs FRE was incurring at the direction of the OFM, this outcome may have been avoided.

137Since FRE’s on-site work must be adjusted for costs incurred which were unreasonable having regard to what was done, the Tribunal finds it appropriate to remove the “Project Labour” totalling $350,778.55 from the on-site invoice (# 7879). This approach accounts for the fact it would be difficult to untangle what tasks were related to preventing adverse effects on the OFM investigators and what tasks were related to other purposes such as remediation.

138This Panel does not find any further revisions to the costs on the basis of unreasonableness are justified in the circumstances.

SUMMARY OF RELIEF REQUESTED BY THE PARTIES

139The Appellants ask for an Order revoking the MCRO as against Steve Baker, Tyler Baker, and Sharon Baker, and amending the MCRO as against Ssonix in the revised amount of $490,376.73.

140The City requests an Order dismissing the Appellants’ appeal and upholding the City’s MCRO against the Appellants, with costs to the City.

CONCLUSION

141The MCRO directed the Appellants to pay the City $4,155,116.21. The Tribunal upheld all Appellants as Orderees. From the amount owed, $116,628.57 is to be deducted on account of not relating to a purpose referred to in subsection (1), being the sum of items listed at paragraph 130 of this decision. Also to be deducted is $350,778.55, on account of being unreasonable, having regard to what was done. Following these deductions, the revised amount owed by the MCRO is $3,687,709.09.

ORDER

142THE TRIBUNAL ORDERS THAT the appeal is allowed in part and the City of St. Catharines’ Municipal Order dated 11 September 2023 (“MCRO”) as against the Appellants is amended by revising the amount owing to $3,687,709.09.

“George Politis”

GEORGE POLITIS

MEMBER

“F. Lavoie”

F. LAVOIE

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.

Footnotes

1. 1Baker v St. Catharines (City), 2024 CanLII 97542 (ON LT) at paras 4, 15.
2. 2Baker, ibid at paras 29-30.
3. 3MM v RM, 2016 ONSC 7003 at paras 8, 16.
4. 4White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 at para 49.
5. 5Technical Standards and Safety Authority v Kawartha Lakes (City), 2016 CanLII 12963 (ON ERT) (Kawartha Lakes Motion) at paras 51, 69-70.
6. 6Technical Standards and Safety Authority v Kawartha Lakes (City), 2016 CanLII 41685 (ON ERT) (Kawartha Lakes) at paragraph 103.
7. 7Kawartha Lakes supra note 6 at paras 65, 79.
8. 8Alizadeh v Ontario (Environment, Conservation and Parks), 2019 CanLII 62106; Currie v Ontario (Director, Ministry of the Environment), [2011] OERTD No 26; and Bilodeau v Her Majesty The Queen in the Right of Ontario, 2022 ONSC 1742 (Div Ct).
9. 9Canadian National Railway Company v Ontario (Environment and Climate Change), 2017 CanLII 66327 at para 47 (CN Rail).
10. 10Kawartha Lakes supra note 6 at paras 97, 114.
11. 11Kawartha Lakes, supra note 6 at para 114.