Synergy Underground Utilities Inc. v. Ontario (Environment, Conservation and Parks), 2026 CanLII 35720

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 15, 2026

CASE NO(S).: OLT-26-000141

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Synergy Underground Utilities Inc.

Appellants: Underground Conduit Solutions Inc. and Matthew Ducharme

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

Subject of appeal: Order to retain the services of a Qualified Person to carry out the work as described, prepare a Work Plan to characterize the quality of any Liquid Excess Soil at the Site

Reference No.: 1-1577876723

Property Address: 1115 Windham Road 12

Municipality/UT: Norfolk

OLT Case No.: OLT-26-000141

OLT Lead Case No.: OLT-26-000141

OLT Case Name: Synergy Underground Utilities Inc. v. Ontario (Environment, Conservation and Parks)

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Request by: Synergy Underground Utilities Inc., Underground Conduit Solutions Inc. and Matthew Ducharme

Motion for: Stay of the Requirements of the Director’s Order

Heard: March 25, 2026 by video hearing

APPEARANCES:

Parties

Counsel

Underground Conduit Solutions Inc. and Matthew Ducharme

Paula Lombardi

Synergy Underground Utilities Inc.

Matthew Bernier Raivo Uukkivi

Director, Ministry of the Environment, Conservation, and Parks

Nadine Harris Isabelle O’Connor Coco Xu (Articling Student)

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a motion hearing relating to an appeal brought pursuant to s. 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (“Act”), against Director’s Order No. 1-1577876723 (“Director’s Order”) issued by the Director, Ministry of the Environment, Conservation, and Parks (“Director”) on January 30, 2026. The appeal has been filed by Underground Conduit Solutions Inc. and Matthew Ducharme (together, “UCS”) and Synergy Underground Utilities Inc. (“SUU”). UCS and SUU are the “Appellants”. The appeal is regarding the management and transport of excess soils on the property located at 1115 Windham Road 12 in Norfolk Country (“Subject Property”).

2The Subject Property is located on the north side of Windham Road 12, west of Windham East Quarter Line Road.

3The Director’s Order directs the Appellants to retain the services of a qualified person to prepare a work plan to characterize the quality of liquid excess soil at the Subject Property. The Director’s Order consists of four items, which when met, will bring the Appellants and the Subject Property into compliance

ISSUES

4SUU has requested the following relief:

1. Under s. 143(2) of the Act, a stay of Item Nos. 3 and 4 of the Director’s Order in their entirety until the final disposition of the SUU appeal;

2. In the alternative, if the Tribunal denies the relief in subparagraph [4]1. above, extend the compliance deadline to complete Item Nos. 3 and 4 by three months to July 13, 2026, and amending Item 3 to require the provision of a timetable to implement the work plan to November 27, 2026; and

3. Such further and other relief as counsel may request and the Tribunal may allow.

5UCS has requested the following relief:

1. That a stay of the Director’s Order be issued under s. 143(2) of the Act, in its entirety, pending the final disposition of the UCS appeal;

2. In the alternative, if the Tribunal denies the relief in subparagraph [5]1. above, UCS requests an extension to the compliance deadline by a period of five months to September 12, 2026, and amending Item 3 to require the provision of a timetable to implement the Characterization Plan to November 27, 2026; and

3. Such further and other relief as counsel may request and the Tribunal may allow.

6The Tribunal has before it two stay motions requesting a stay of the Director’s Order Items (“Motions”). A copy of the Director’s Order can be found in Attachment 1 to this Decision.

EVIDENCE

7UCS submitted, and the Tribunal accepts, a 21-page Motion Record, marked as Exhibit 1, a 169-page Affidavit of Matthew Ducharme, marked as Exhibit 2, and an eight-page Reply Statement, marked as Exhibit 5.

8SUU submitted, and the Tribunal accepts, a 1115-page Motion Record, marked as Exhibit 3, and an 18-page Reply Statement, marked as Exhibit 6.

9The Director submitted, and the Tribunal accepts, a 53-page Responding Motion Record, marked as Exhibit 4.

SUBMISSIONS

10Although there are two motions, the Appellants presented their evidence in a manner to minimize repetition/duplication of evidence and argument. This Decision will summarize those submissions together.

Background

11According to SUU, SUU was contracted by Rogers Communications to install fiber optics cable in Norfolk County between April 28, 2023 and June 5, 2024. SUU asserts that they were not the Project Leader, as defined by O.Reg. 406/19: On-Site and Excess Soil Management (“Reg406”).

12According to UCS, on or about March 2022, UCS began accepting liquid excess soil deposits at the Subject Property from SUU.

13According to the Director, over 700 loads of waste (excess liquid soil) of unknown contamination level were deposited in an excavation at the Subject Property.

14According to UCS, the excess liquid soil was hydrovac slurry from the SUU cable installation.

15According to the Director:

1. The area surrounding the Subject Property relies on private drinking water wells.

2. On June 5, 2024, Environmental Compliance Officer (“ECO”) O’Connor became aware of an anonymous complaint about vacuum trucks entering the Subject Property.

3. On June 6, 2024, ECO O’Connor inspected the Subject Property and met with Mr. Ducharme.

4. On June 7, 2024, ECO O’Connor visited the Subject Property again and instructed SUU to cease depositing liquid excess soil and to undertake a sampling program in cooperation with UCS. The SUU representative agreed to voluntarily undertake this work.

16According to UCS, on or about June 10, 2024, UCS informed SUU that they could no longer accept materials for deposit.

17According to SUU, all deposits to the Subject Property ceased by June 10, 2024.

18According to the Director:

1. On April 9, 2025, ECO O’Connor followed up with SUU because no results of the voluntary sampling program had been shared. He learned that no sampling had been undertaken. ECO O’Connor contacted Mr. Ducharme to request sampling be undertaken and Mr. Ducharme agreed to call a consultant to initiate the work.

2. On January 19, 2026, ECO O’Connor issued the Provincial Officer’s Order No. 1-1572672646 (“POO”) to SUU and UCS.

19According to UCS and SUU:

1. On January 26, 2026, UCS and SUU submitted requests for review of the POO to the Director.

2. On January 30, 2026, the Director issued the Director’s Order confirming the POO.

3. On February 13, 2026, UCS and SUU appealed the Director’s Order.

20According to SUU, on February 20, 2026, SUU confirmed compliance with Item Nos. 1 and 2 of the Director’s Order.

21According to UCS, on March 19, 2026, UCS confirmed compliance with Item Nos. 1 and 2 of the Director’s Order.

Tribunal Authority

22The Tribunal’s ability to grant a stay is under ss. 143(1) to 143(3) of the Act:

No automatic stay on appeal

143 (1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than,

(a) an order to pay costs and expenses under section 99.1;

(b) an order to pay the costs of work made under section 150;

(c) an order to pay an environmental penalty; or

(d) an order to pay an administrative penalty. 2005, c. 12, s. 1 (24); 2010, c. 16, Sched. 7, s. 2 (54).

Tribunal may grant stay

(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,

(a) an order to monitor, record and report; or

(b) an order issued under section 168.8, 168.14 or 168.20. 2001, c. 17, s. 2 (20).

When stay may not be granted

(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,

(a) danger to the health or safety of any person;

(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or

(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life. R.S.O. 1990, c. E.19, s. 143 (3); 2000, c. 26, Sched. F, s. 12 (12).

23All Parties agree that the Tribunal is not barred from granting a stay under s. 143 of the Act.

Stay Motion Tests

24The tests for granting a stay come from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 (“RJR-MacDonald”). The three tests are whether:

1. There is a serious issue to be determined;

2. Irreparable harm will ensue if the relief is not granted; and

3. The balance of convenience, taking into account the public interest, favours granting the relief.

Test 1 – Serious Issue

25SUU introduced Mississauga (City) v Ontario (Environment and Climate Change), 2017 CanLII 11501 (ON ERT), referring to paragraph [22] on the question of serious issue. They quoted that “the question of whether there is a serious issue to be decided by the Tribunal “has a very low threshold, intended only to rule out frivolous or vexatious claims.””

26SUU contends that the serious issues to be decided include:

1. SUU did not contravene s. 40 of the Act because soils on the Subject Property are not a waste and are authorized under the Reg406;

2. The Director does not have jurisdiction to issue the Director’s Order to SUU because SUU does not have charge, management, or control, and any soils on the Subject Property are not a contaminant;

3. The Director’s Order is an abuse of process and ought to be quashed on the grounds that it is not consistent with applicable law; and

4. The Director’s Order is not necessary or advisable to protect the natural environment, and upholding the Director’s Order against SUU undermines the administration of the Act and Reg406.

27UCS contends that the serious issues to be decided include:

1. The Appellants are not the project leader, as defined by Reg406;

2. The Subject Property is not the project area, as defined by Reg406;

3. The County By-law Officer specifically permitted the deposit of the soil material on the Subject Property for the purposes of remediation;

4. There is no adverse effect and there continues to be no adverse effects arising from the deposit of the soil on the Subject Property;

5. The materials are not classified as “waste”;

6. The Ministry of the Environment, Conservation, and Parks Compliance policy has not been met;

7. The ECO delayed the issuance of the POO, confirming that there was, and continues to be, no immediacy to the issues and concerns being raised by the Director;

8. The Director’s Order is an abuse of process, duplicative, unnecessary, and risks UCS not being afforded a fair trial; and

9. The Director’s Order is not necessary or advisable to protect the natural environment and upholding the Director’s Order against UCS is contrary to the provisions of the Reg406.

28The Director agreed that the threshold for determining a serious issue is low and is intended to rule out frivolous and vexatious claims. The Director disputes the grounds of the Appellants but conceded that, for the purposes of the Motions, the Appellants’ appeals raise a serious issue to be determined at a hearing.

Test 2 – Irreparable Harm

Costs

29SUU stated that RJR-Macdonald states that “Irreparable refers to the nature of the harm suffered rather than its magnitude”. SUU stated that the cost of compliance is unrecoverable.

30The Appellants explained that the cost of the work plan required by the Director’s Order, without any means to recover its costs, is irreparable harm. SUU submitted, in Exhibit 3, a cost breakdown from Shannon Hunt, Senior Environmental Consultant at GEMTEC, showing that the workplan will be $44,360.00 (“Work Plan”).

31The Director stated that UCS has failed to provide an estimate of the costs of complying with Item Nos. 3 and 4 of the Director’s Order. They also stated that SUU has provided a cost estimate for work that goes well beyond what is required by Item Nos. 3 and 4 of the Director’s Order. The Director said that this is evident in the Work Plan that includes “the plan for the Site to continue to operate as a reuse Site”. The Director stated that this Work Plan proposal states that it “includes a work plan”, therefore indicating that a work plan has already been prepared.

32The Director pointed to the cost breakdown supplied by SUU. The estimate for the Sampling and Analysis Plan (“SAP”) is estimated to cost $2,400.00. The Director stated that there is no evidence that this cost is onerous for the Appellants or that they do not have the financial resources to comply.

33SUU introduced NexCycle Industries Ltd. v Ontario (Environment, Conservation and Parks), 2020 CanLII 7821 (ON ERT), and highlighted paragraph [46] where it states: “The test does not require an evaluation of how onerous the cost is for an appellant, but whether it is recoverable…”. The Appellants agreed that the inability to recover costs is irreparable harm.

34SUU referred to RJR-MacDonald where it states that irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” In this matter, the Appellants assert that there is no basis to recover costs against the Director and that there is no realistic probability that the Appellants could recover costs against each other.

35SUU stated that s. 99(2) of the Act is the only statutory compensation available to private parties but only as a direct result of a spill of a pollutant that causes, or is likely to cause, an adverse effect, or for the cost to comply with an order or direction of Part X of the Act. SUU asserted that soil at the Subject Property is not a spill and the Director’s Order was not issued under Part X. UCS agreed with this assessment.

36The Director stated that s. 99 of the Act is only one avenue for cost recovery. They stated that civil causes of action may also be available, as UCS was contracted by SUU, and SUU was contracted by Rogers Communications. The Director stated that the Appellants only speculated as to why they would not be able to recover damages from each other or from Rogers Communications without any evidence to support this speculation.

37The Director asserted that the Appellants have not proven that they would suffer irreparable harm, as the test is whether harm to the Appellants’ interests could not be remedied via the results of a hearing of the merits. The Director stated that an unsubstantiated claim of a risk of harm is insufficient to meet the burden.

38The Director stated that it is an incorrect assumption of UCS to assert that the Tribunal should only consider costs that can be recovered against either the Director or SUU.

39The Appellants stated that the decisions (642762 Ontario Inc. v. Ontario (Environment, Conservation and Parks), 2023 CanLII 66863 (ON LT) (“642762”); Currie v. Ontario (Director Ministry of the Environment), 2010 CarswellOnt 8177 (“Currie”); Baker v. Ontario (Ministry of the Environment), 2013 CarswellOnt 6508 (“Baker”); Tembec Industries Inc. v. Ontario (Ministry of the Environment), 2009 CarswellOnt 3979 (“Tembec I”); and Braun v. Ontario (Ministry of the Environment), 2008 CarswellOnt 8218 (“Braun”)) that the Director is relying on to support their position that the Tribunal may consider cost recovery against parties not named in the Director’s Order, are not applicable for the following reasons:

1. 642762 and Baker were engaged in active court proceedings that addressed liability and cost recovery.

2. Tembec I had no solvent orderees against whom claims could be made.

3. Claims for cost recovery in Currie and Braun were only against other orderees.

Mootness

40SUU stated that, if they comply with Item Nos. 3 and 4, it will render their appeal moot and be a breach of procedural fairness. SUU introduced ArcelorMittal Canada Inc. v. Ontario (Environment, Conservation and Parks), 2019 CanLII 62107 (ON ERT) (“ArcelorMittal”), which states in paragraph [37]:

… the Appellants submit that once they disclose the information sought, the appeals will be rendered moot. … The Tribunal finds that the mootness of the Appellants’ appeals is a valid concern and rises to the level of harm that can be qualified as irreparable. Not all cases where an order deadline falls before the hearing date will automatically qualify as showing irreparable harm based on mootness. However, in this situation, where the document production order deadline for compliance falls before the date of a hearing deciding if and which documents ought to be produced, mootness equates to irreparable harm…

41The Director stated that, in ArcelorMittal, the Tribunal found that the mootness of that appellant’s appeal was a valid concern, but added that “[n]ot all cases where an order deadline falls before the hearing date will automatically qualify as showing irreparable harm based on mootness”.

42SUU introduced Quiring v. Ontario (Director, Ministry of Environment), 2011 CarswellOnt 15096 (“Quiring”), noting at paragraph [11]:

The Appellants submit that the short timeline and substantial cost for complying with the Order will cause them irreparable harm, and that without a stay of the Order, their appeal will be rendered moot. The Director does not dispute this submission. The Tribunal agrees that the Appellants will experience irreparable harm without a stay of the Order

43The Appellants argued that, having to comply with Item Nos. 3 and 4 to produce the work plan prior to the hearing of the appeal is effectively denying them their right of appeal and is irreparable harm.

44The Director stated that complying with the Order while disputing the Order does not constitute irreparable harm. The Director cited Baker at paragraph 59:

59 … Despite their argument, the Tribunal finds that there is no authority in the EPA for Appellants to demand a resolution of their appeals before they become legally responsible for complying with the Order. With the 1990 amendments to the EPA, the Legislature deliberately chose to impose responsibility on an orderee during the interim period pending the resolution of an appeal unless and until the Tribunal stays the order. Thus, the Appellants became legally responsible for carrying out the Order from the start, and have failed to meet many of the deadlines. There is no suggestion or evidence that the Appellants are unable to carry out this work. …

45The Director highlighted that here the Appellants are not entitled to have the issues of their appeal resolved before they are required to comply with the requirements of the Director’s Order.

46SUU further submitted that as there is an ongoing parallel prosecution underway, and if the Tribunal orders them to comply, the work plan may be used by the Crown. UCS explained further that they are also involved in the parallel prosecution and have the right to a fair trial, which may be prejudged or have evidence used against them if they comply with Item Nos. 3 and 4 prior to a hearing of the merits.

47The Director stated that there are sufficient protections available to safeguard the rights of the Appellants against self-incrimination and ensure a fair trial. The Director introduced The Corporation of the Town of Ajax v. Ajax Auto Recyclers Ltd. et al., 2018 ONSC 2385, at paragraph [10]:

10One concern of the defendants is that any statements they may make or documents tendered by them in the ERT proceeding may be used in the OCJ prosecution thereby violating their rights to be protected against self-incrimination in the OCJ prosecution. The defendants have not satisfied me on a balance of probabilities that this concern will cause prejudice to the defendants in the OCJ prosecution. There are several protections available to the defendants which protect their rights against self-incrimination. In particular, I refer to the Ontario Evidence Act,[4] s. 9, the implied undertaking rule, the deemed undertaking rule (Rule 30.1.01), and sections 14 and 15 of the Statutory Powers Procedure Act.[5] If this action is temporarily stayed as earlier discussed and the ERT proceeding continues, I am satisfied that those protections alone are sufficient to address the defendants’ concerns and protect their rights against self-incrimination in the OCJ prosecution.

48SUU cited Retirement Homes Regulatory Authority v. Moore, 2024 ONCA 585 (“Moore”), at paragraph [18], where the Ontario Court of Appeal held that the legal safeguard was to apply for a stay of the administrative proceeding, as SUU is doing in this matter.

49The Appellants contend that the ECO has admitted to sharing information with Crown Investigators, which should not have occurred after the commencement of the investigation.

50The Director clarified that the Provincial Officer indicated that he received information from the investigator, in advance of issuing the POO and not that he provided information to the investigator after the charges were laid. The Director stated that the Appellants have provided no evidence to support the claim that the work plan will be shared with the Crown for use in the prosecution and no evidence that sharing the work plan would cause irreparable harm.

51The Director contends that there is no overlap between the issues in the Motions and the issues in the prosecution. They state that the Appellants are not being prosecuted for not complying with the Director’s Order. In the parallel prosecution, the Crown will need to prove beyond a reasonable doubt that SUU deposited waste on land that was not an approved waste disposal site (contrary to s. 40 of the Act) and that UCS used, operated, or established a waste disposal site without an Environmental Compliance Approval (contrary to s. 27(1) of the Act). The issue of the stay is whether the Appellants should be required to prepare a work plan in advance of having the appeals heard. The Director asserts that deciding on the stay will not predetermine the issues of the prosecution. Furthermore, the Director states that the offences that the Appellants are charged with pre-date the Director’s Order and the deadline for the work plan.

52SUU argued that there is overlap between the prosecution and the Director’s Order as the charges laid against SUU are under s. 40 of the Act, for the same alleged deposit subject to the Director’s Order, which is also justified by the same alleged contravention.

53The Director disagreed with the position of the Appellants and stated that they have not shown that complying with Item Nos. 3 and 4 will cause irreparable harm.

Test 3 – Balance of Convenience

54SUU submits that the Tribunal must determine who will suffer the greater harm. They contend that the public interest will not suffer. They state that, based on the preliminary work by Shannon Hunt, it would take 25 years for any contamination (if present) in the soil to reach groundwater. They assert that this supports that there is no urgency to this matter and that the situation will not rapidly change.

55UCS states that the Director has not provided any evidence supporting an allegation of environmental harm.

56The Director responded that the expert evidence provided in Shannon Hunt’s Affidavit stated that it is not possible to know if the deposited soils “carry contaminants in excess of applicable concentrations” as “no testing has been carried out”. The Director contends that the lack of testing does not mean there is no risk of harm.

57UCS asserts that there has not been information or documentation submitted by the Director to support any claim that there is any risk to human health and/or the natural environment. They submit that, despite the Subject Property being located in a Significant Groundwater Recharge Area, the Director has not engaged in, nor required any sampling on the Subject Property.

58The Director contested this by stating that the Director does not engage in soil sampling where there is a responsible party to carry out the work.

59SUU contested the evidence provided by ECO O’Connor, stating that he provided evidence that was opinion evidence without submitting a curriculum vitae or an Acknowledgement of Expert’s Duty form. The evidence in question relates to when excess liquid soil is permitted at the Subject Property, opinions on the nature of soils, the direction of water flow, contaminants in soils, and Ms. Hunt’s cost estimates. SUU requests that this evidence be given no weight.

60SUU highlighted that the Director stated that Item No. 3 of the Director’s Order requires a SAP, however, SUU stated this is not consistent with Reg406. SUU asserted that a qualified person must prepare an Assessment of Past Uses before they can prepare a SAP.

61The Director stated that the Director’s Order is focused on developing a work plan and not implementation of the work plan.

62SUU introduced Citizens Against Melrose Quarry v. Ontario (Environment and Climate Change), 2015 CanLII 21960 (ON ERT), at paragraph [50] to support granting a stay to permit a hearing of the merits to occur:

The Tribunal finds that the balance of convenience favours the lifting of the stay for a limited time period, pending the hearing of the appeal, which is scheduled to begin next month. At that time, a full consideration of the evidence and issues in dispute can take place. While it is in the public interest to protect the water resources that are the subject matter of the appeal, the balance of convenience favours the Permit Holder in these circumstances. As noted above, there is no serious risk of impairment from a time-limited lifting of the stay to remove the existing water in the Quarry. What the Appellant has shown is that there could be harm, particularly over the long-term. It has not shown that there will be impairment or serious risk of impairment of waters in the short-term (i.e., harm during the short period between now and the upcoming hearing and disposition of the appeal).

63SUU stated that the harm to the public interest is lacking specificity and is presumed.

64The Director stated that the balance of convenience favours denying the Motions. The Director cited RJR-MacDonald, which states at page 364:

In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

65The Director stated that they are charged with protecting the public interest.

66The Director introduced Hart v. Ontario (Ministry of the Environment), 2013 CarswellOnt 10209 (“Hart”) at paragraphs 28-29:

28 The Director emphasizes the uncertainty associated with the situation on the Site, in particular, the lack of an understanding of the total amount of waste materials located within structures on the Site, and of the nature and toxicity of those wastes. It is also unknown how long those wastes have been in place. This is important because, until the assessment is carried out, the Director does not know whether there is migration of contamination from the structures into the environment and therefore whether there are adverse effects, or imminent risk of adverse effects, occurring.

29 The Tribunal agrees with the Director that there is some urgency in having the assessment carried out. Even if the assessment reveals no imminent threat of environmental harm or adverse effects, at the moment the basic facts of the situation are simply unknown. The responsibility of the MOE to protect the environment through application of the EPA is an important component of the public interest and delay of many months will interfere with that objective. … In the meantime, the Tribunal finds that the balance of convenience favours the Director. The public interest in having the assessment.

67The Director stated that, when there is a lack of information on the amount and nature of the waste, which means that the Director does not know whether there is migration or contamination into the environment, and therefore, whether adverse effects or imminent risk are occurring, there is a public interest in having the assessment carried out promptly. The Director reiterated that 700 truck loads of waste were deposited at the Subject Property and the potential environmental impact and impact to drinking water wells is unknown. The Director asserts that the lack of evidence of potential impact is because the waste was deposited without being characterized.

68SUU stated that Reg406 allocated responsibility for the soil characterization to the Project Leader (which SUU asserts is not SUU). SUU asserts that there is no public interest in forcing others to carry out a Project Leader’s obligations.

69The Appellants stated that the Director took 10 months to follow up on the initial request for testing and a further eight months to issue a POO.

70The Director stated that, contrary to the Appellants’ assertions that the Director was delayed in responding to the deposit of the liquid excess soil, the background record does not show this.

ANALYSIS AND FINDINGS

Tribunal Authority

71This matter does not fall under the applicable sections listed in s. 143(1) of the Act, nor involve an order to pay an environmental or administrative penalty. The Director’s Order does not direct the Appellants to monitor, record, or report, nor was the Director’s Order issued under ss. 168.8, 168.14 or 168.20 of the Act. None of the Parties have provided evidence of danger to the health or safety of any person, a serious risk to the quality of the natural environment, nor a risk of injury or damage to any property, nor to plant or animal life. The Tribunal finds that there is nothing barring the Tribunal from granting a stay under s. 143 of the Act.

Test 1 – Serious Issue

72All Parties have agreed, or conceded, that there is a serious issue to be determined in this matter. The Tribunal finds that the first test under RJR-MacDonald is met and there is a serious issue to be decided.

Test 2 – Irreparable Harm

73SUU has submitted a cost breakdown of compliance with Director’s Order Item Nos. 3 and 4. UCS has not submitted any cost analysis. Neither of the Appellants have shown any evidence or submission that the cost of complying with the Director’s Order is onerous.

74The Appellants have argued that the crux of irreparable harm is not in the costs but in the recovery of those costs. They have provided reasoning as to why costs could not be recovered from each other, from the Director, or under s. 99(2) of the Act. The Director has suggested that civil actions could be used for cost recovery. The Tribunal finds that the magnitude of the costs and the difficulty in recovery of those costs do not constitute irreparable harm in this matter.

75Next, the Appellants argued that complying with the Director’s Order prior to a hearing of the merits would render their appeal moot, as in ArcelorMittal and Quiring. In Baker, it was stated that it is not required to have a hearing before compliance with an order. However, the Tribunal finds that mootness is a valid concern and rises to a level of harm that can be qualified as irreparable if compliance with a Director’s Order is required, prior to a hearing of the merits.

76With respect to the Crown prosecution, the Appellants have indicated that complying with the Director’s Order may impact a parallel prosecution that is underway. The Appellants have stated that producing a work plan, as required by Item No. 3 of the Director’s Order, may result in that information being shared with the Crown which would result in a prejudged prosecution. Sufficient safeguards exist under the Ontario Evidence Act (s. 9) and Statutory Powers Procedure Act (ss. 14 and 15) to protect against self-incrimination and to permit a fair hearing. The Ontario Court of Appeal, in Moore, stated that applying for a stay of an administrative proceeding is also a valid, legal safeguard. However, even though the Director’s Order and the prosecution are under the same section of the Act, the Tribunal does not see how the two matters overlap. The appeal before the Tribunal deals with the development of a work plan to assess potential environmental risk, while the prosecution is relating to the deposit of waste. The Tribunal finds that the issue of mootness with respect to the parallel prosecution does not constitute irreparable harm.

Test 3 – Balance of Convenience

77The Appellants have stated that, based on preliminary work by Ms. Hunt, there is little urgency to complying with the Director’s Order. The Director responded that, without knowing the extent and level of potential harm to the environment, it is not possible to determine the level of urgency required. While the Director may consider the length of time between voluntary agreement to sample and follow up by ECO O’Connor appropriate, the Tribunal finds it does not project urgency.

78While preliminary evidence may suggest that the risk of contamination to groundwater and drinking wells is low, when questioned by the Tribunal, it was evident that the preliminary work used a municipal well more than a kilometre from the Subject Property for the wellhead protection delineation and it did not account for the multiple private drinking water wells that are within 250 metres of the Subject Property. Protecting drinking water sources is in the public interest. The Tribunal finds that the balance of convenience is in the public favour.

79The Appellants have stated that it isn’t possible to complete a SAP without first completing an Assessment of Past Use, as it is required under Reg406. The Director has stated that the POO and Director’s Order don’t ask for an Assessment of Past Use. The POO was issued under s. 157.1 of the Act and cites s.40 of the Act as its justification. Section 157.1 of the Act gives broad authority to order compliance tasks to “prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property”. The Tribunal finds that the balance of convenience is with the Director in their mandate to protect the environment, and through this, the public interest.

Requested Relief

80The RJR-MacDonald tests are conjunctive. If one fails, they all fail. In this matter, the Parties have shown that:

1. There is a serious issue to be determined;

2. Costs, cost recovery, and compliance ahead of the parallel prosecution do not rise to the level of irreparable harm;

3. Compliance prior to a hearing of the merits does rise to the level of irreparable harm; and

4. The balance of convenience favours the Director and the public interest.

81The Motions do not meet the tests in RJR-MacDonald.

82The Appellants have requested alternative relief in the form of extended deadlines to comply with Item Nos. 3 and 4. SUU has requested a compliance date of July 13, 2026 for Item Nos. 3 and 4, with an amendment to Item No. 3(d) to November 27, 2026. UCS has requested a compliance date of September 12, 2026 for Item Nos. 3 and 4, with an amendment to Item No. 3(d) to November 27, 2026. The Director has opposed both of these requests, stating that extending the deadlines would prevent any subsequent clean-up (if required) into 2027. Implementation of the work plan (or any actions beyond the work plan) is not before the Tribunal.

83The Tribunal only has information from SUU’s expert, who estimated that the requirements of Item No. 3 will take approximately nine weeks to complete. The Tribunal finds that it is appropriate to amend the deadlines by nine weeks. These dates will apply for both SUU and UCS.

84The amended dates are:

1. For Item Nos. 3 and 4: June 18, 2026; and

2. For the proposed implementation timetable for the work plan required by Item No. 3(d): October 30, 2026.

ORDER

85The TRIBUNAL ORDERS that the motion brought by Underground Conduit Solutions Inc. and Matthew Ducharme to request a stay of Item Nos. 3 and 4 of Director’s Order No. 1-1577876723 is denied.

86The TRIBUNAL ORDERS that the motion brought by Synergy Underground Utilities Inc. to request a stay of Item Nos. 3 and 4 of Director’s Order No. 1-1577876723 is denied.

87THE TRIBUNAL ORDERS THAT the motion requests for alternative relief:

1. Sought by Underground Conduit Solutions Inc. and Matthew Ducharme to extend the deadline for compliance with Item Nos. 3 and 4 of Director’s Order No. 1-1577876723 to September 12, 2026, and amending Item 3 to require the provision of a timetable to implement the work plan to November 27, 2026, is granted in part;

2. Sought by Synergy Underground Utilities Inc. to extend the deadline for compliance with Item Nos. 3 and 4 of Director’s Order No. 1-1577876723 to July 13, 2026, and amending Item 3 to require the provision of a timetable to implement the work plan to November 27, 2026, is granted in part; and

3. The compliance due dates for Item Nos. 3 and 4 of Director’s Order No. 1-1577876723 are amended to June 18, 2026, and the date in Item No. 3(d) of Director’s Order No. 1-1577876723 is amended to October 30, 2026.

88The Tribunal provides the following Directions:

1. The Parties are to contact the Case Coordinator by Wednesday, April 22, 2026 to schedule a Case Management Conference (“CMC”).

2. The Parties are to file a Procedural Order and Issues List prior to that CMC in accordance with the Tribunal’s Rules of Practice and Procedure.

“A. Snowdon”

A. SNOWDON

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.