Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 21, 2025
CASE NO(S).: OLT-23-000590
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 274
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-23-000590
OLT Lead Case No.: OLT-23-000590
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 279
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000116
OLT Lead Case No.: OLT-24-000116
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 280
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000117
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 281
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000118
OLT Lead Case No.: OLT-24-000116
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 282
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000266
OLT Lead Case No.: OLT-24-000266
OLT Case Name: Ontario Graphite Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 283
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000319
OLT Lead Case No.: OLT-24-000266
PROCEEDING COMMENCED UNDER subsection 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Order of the Director
Description: An Environmental Penalty Order issued for contaminated water emitted from a former graphite mine
Reference Number: Penalty Order No. 284
Property Address: 2142 Forestry Tower Road
Municipality/UT: Kearney/Parry Sound
OLT Case No.: OLT-24-000320
OLT Lead Case No.: OLT-24-000266
Heard: January 13, 2025, by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Ontario Graphite Ltd.
Raivo Uukkivi Mathew Lakatos-Hayward
Director, Ministry of the Environment, Conservation and Parks
Nadine Harris Sarah Valair
MEMORANDUM OF ORAL DECISION DELIVERED BY GEORGE POLITIS ON JANUARY 13, 2025, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision and Order arises from the 4th Case Management Conference (“CMC”) on January 13, 2025, regarding proceedings brought under s. 100(4) of the Ontario Water Resources Act in Tribunal Case File No(s). OLT-23-000590, OLT-24-000116, and OLT-24-000266. The proceedings arise from the issuance of Environmental Penalty Orders by the Director, Ministry of the Environment, Conservation and Parks regarding contaminated water allegedly emitted from a former graphite mine located at 2142 Forestry Tower Road, in the Town of Kearney, District of Parry Sound.
2At the CMC, the Parties provided the Tribunal with an update on the status of the proceedings. The Parties stated that discussions for a settlement were ongoing. The Tribunal directed that the hearings be set.
3The Parties described the number of witnesses that each intended to call and advised the Tribunal that the given number of expected witnesses to testify, five days would be required for the Merit Hearing.
4The Parties filed a current draft Procedural Order and Issues List, which the Tribunal has now reviewed and approved as attached to this Decision as Attachment 1.
5The Tribunal recommended that the Parties request Tribunal-assisted mediation, which the Parties agreed to consider.
HEARING DETAILS
6The Tribunal scheduled the Merit Hearing by Video Hearing to be held on Monday, June 9, 2025, at 10 a.m. until Friday, June 13, 2025.
7Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/687587165
Access Code: 687-587-165
8Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is the same as mentioned above.
10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
11THE TRIBUNAL ORDERS THAT there will be no further notice and the member is not seized.
“George Politis”
GEORGE POLITIS
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.
ATTACHMENT 1
ISSUE DATE: OLT Case Nos. OLT-23-000590
OLT-24-000116, OLT-24-000117 and OLT-24-000118
OLT-24-000266, OLT-24-000319, and OLT-24-000320
PROCEEDING COMMENCED UNDER section 100 of the Ontario Water Resources Act, RSO 1990, c O.40
Appellant: Ontario Graphite Ltd.
Instrument Holder: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Environmental Penalty Orders #274, 279-284
Reference Numbers: 274, 279, 280, 281, 282, 283, 284
Property Address/Description: Kearney Graphite Mine Site
Municipality/Upper Tier: Town of Kearney, Parry Sound District
OLT Lead Case No.: OLT-23-000590
OLT Case Name: Ontario Graphite Ltd. v Ontario (Environment, Conservation and Parks)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The hearing will begin on June 9, 2025, at 10 am on GoToMeetings at the following link:
The length of the hearing is 5 days in total, commencing on June 9, 2025. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are found in Attachment 4.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues proposed by each party are set out in the Issues List attached as Attachment 2.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
Disclosure: The parties shall provide each other a copy of every document that is in their possession, control or power relevant to the subject matter of the appeal (except privileged documents) on or before February 17, 2025.
Witness List: A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other party a list of the witnesses and the order in which they will be called. This list must be delivered on or before March 17, 2025, and in accordance with paragraph 19 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Witness Statements: On or before April 14, 2025, the parties shall provide copies of witness and expert statements to the other party and to the OLT case co-ordinator in accordance with paragraph 19 below. Witness statements shall attach a copy of any document that the witness refers to in their witness statement and that the party intends to rely on at the hearing. Expert witness statements shall also include a copy of the expert’s Curriculum Vitae and the Acknowledgement of Expert Duty form signed by the expert.
Reply Witness Statements: On or before May 8, 2025, the parties shall provide copies of their reply witness statements (if any) to the other party and the OLT case co-ordinator in accordance with paragraph 19 below.
Meeting of Experts: Expert witnesses in the same field shall have a meeting on or before May 20, 2025, and use best efforts to try to resolve or reduce the issues for the hearing.
Agreed Statement of Facts and Issues: On or before seven days before the hearing, the parties shall file a Statement of Agreed Facts and Issues with the OLT case co-ordinator.
Joint Book of Documents or Additional Documents to be Relied on: If the parties are preparing a joint book of documents or have additional documents that they will be relying on at the hearing, the parties shall provide the joint book of document or the additional documents to the other party and the OLT case co-ordinator on or before seven days before the hearing.
Preliminary Hearing Plan: The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven days before the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in compliance with Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.
No adjournments or delays will be granted before or during the hearing except by motion to the Tribunal. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1
PARTIES & PARTICIPANTS
Parties
- Ontario Graphite Ltd.
CASSELS BROCK & BLACKWELL LLP
Suite 3200, Bay Adelaide Centre - North Tower
40 Temperance Street
Toronto, ON M5H 0B4
Raivo Uukkivi LSO #: 49932L
Tel: 416.860.6613
Email: ruukkivi@cassels.com
Matthew Lakatos-Hayward LSO #: 77707F
Tel: 416.350.6955
Email: mlakatoshayward@cassels.com
Director, Ministry of the Environment, Conservation and Parks (MECP)
Ministry of the Attorney Legal Services Branch
135 St. Clair Ave. West, 10th Floor
Toronto, ON M4V 1P5
Nadine Harris
Tel: 647-688-8724
Email: nadine.harris@ontario.ca
Sarah Valair
Tel: 416-605-8281
Email: sarah.valair@ontario.ca
ATTACHMENT 2
ISSUES LIST
The issues for the consolidated appeals as identified by the appellant are as follows:
Are the Orders unreasonable?
Are the Orders outside the Director’s Jurisdiction?
a. Do the Orders result in any meaningful protection of the Environment?
b. Do the Orders serve to address any genuine adverse environmental impact for which the appellant should be responsible?
Are the Orders contrary to principles of Procedural and Substantive Fairness (“Fundamental Justice”)?
Are some of the penalties that are the subject of the Orders statute-barred as having been issued outside the prescribed time limit?
The issues for the consolidated appeals as identified by the Director are as follows:
Did the appellant fail an acute lethality test in a ECA pertaining to a sewage works where a test is required contrary to O Reg 222/07, Table 2, section 12.1 on January 4, 23 and 29, 2023; March 8, 2023; May 3 and 10, 2023; and June 7, 2023?
Did the appellant exceed the polishing pond effluent limit in an ECA pertaining to a sewage works contrary to O Reg 222/07, Table 2, section 4.1 on January 27, 30 and 31, 2023; February 2-3, 6, 8, 10, 13, 15, 17, 20, 22, 24, 27 and 28, 2023; and March 1, 3, 6, 8, 10, 13, 15, 17, 20, 22, 27 and 31, 2023?
Should the Director have exercised her discretion pursuant to s. 7(2) of the Ontario Regulation 222/07 to reduce the administrative monetary penalties set out in Environmental Penalty Orders 274 and 279-284 further having regard to all the circumstances?
ATTACHMENT 3
ORDER OF EVIDENCE
Appellant
Director, Ministry of the Environment, Conservation and Parks
If reply becomes necessary, leave of the Tribunal will be sought
ATTACHMENT 4
DATE
EVENT
February 17, 2025
Disclosure of all relevant, non-privileged documents by all parties
March 17, 2025
Exchange witness lists
April 14, 2025
Exchange of witness statements and expert reports
May 8, 2025
Exchange of reply witness statements (if any)
May 20, 2025
Meeting of expert witnesses to take place by
June 2, 2025
Preliminary hearing plan filed with Tribunal
June 2, 2025
Agreed Statement of Facts and Issues
June 2, 2025
Joint document book filed with the Tribunal
June 9, 2025
Hearing commences
June 13, 2025
Hearing concludes