Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 08, 2026

CASE NO(S).: OLT-23-000630

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Steve Charest Appellant: King & Benton Canal Bank Regeneration Lands Inc. Respondent: Director, Ministry of the Environment, Conservation and Parks Subject: Order of the Director Description: To perform work to prevent or reduce the discharge of contaminants of concern (COCs) into the natural environment and to prevent impairment to the water Reference No.: 1-209410483 Property Address/Description: 65 Canal Bank Street Municipality/UT: Welland/Niagara OLT Case No.: OLT-23-000630 OLT Lead Case No.: OLT-23-000630 OLT Case Name: Charest v. Ontario (Environment, Conservation and Parks)

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

Request by: Steve Charest and King & Benton Canal Bank Regeneration Lands Inc. Motion for: Directions Heard: January 27 to 30, February 2, 4 to 5, and April 7, 2026 by video hearing

APPEARANCES:

Parties Steve Charest and King & Benton Canal Bank Regeneration Lands Inc. (“Appellants”)

Counsel Alessia Petricone-Westwood James Foy Candice Gomes

Parties Director, Ministry of the Environment, Conservation and Parks (“Director”)

Counsel Nadine Harris Shane Sukerman Isabelle O’Connor Daniella Mikanovsky (student-at-law)

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal by two Appellants, King & Benton Canal Bank Regeneration Lands Inc. (“K&B”) and Steve Charest (“Appellant Charest”), of Order No. 1-209410483 issued by Kim Groombridge on June 13, 2023 (“Director’s Order”) filed pursuant to section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (“EPA”) and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40 (“OWRA”). Ms. Groombridge is the Manager, Niagara District Office, West Central Region at the Ministry of the Environment, Conservation and Parks (“MECP”).

2The appeal concerns off-site discharge of stormwater from a property at 65 Canal Bank Street, in the City of Welland (“Site”).

3The Director’s Order to the Appellants provides as follows:

I order you, jointly and severally, unless otherwise indicated, to do the following:

Item No. 1 Compliance Due Date: June 13, 2023

Upon service of this Director’s Order and until notified in writing by the undersigned Director, the ORDEREES shall not discharge or cause or permit the discharge of SEWAGE into the NATURAL ENVIRONMENT, including into or in any WATERS from the SITE, unless in accordance with an ECA that has effluent limit criteria for the following [Contaminants of Concern or COCs]:

i. trivalent chromium (CrIII);

ii. hexavalent chromium (CrVI); and

iii. pH

Item No. 2 Compliance Due Date: June 20, 2023

Commencing on June 20, 2023, to prevent any off-SITE discharge, remove SEWAGE from the SITE using a Waste Management System that is authorized under the EPA to manage such SEWAGE (unless approved to pump directly to a Sewage Works), and deposit the SEWAGE at a Sewage Works or Waste Disposal Site(s) approved to accept the SEWAGE.

Item No. 3 Compliance Due Date: June 20, 2023

a) By June 20, 2023, submit written confirmation to the Director by email to environment.niagara@ontario.ca of the name and ECA number or EASR registration number of the Waste Management System(s) used/will be used to remove and transport the SEWAGE from the SITE and the Sewage Works’ or Waste Disposal Site’s name and ECA number that accepts/will accept the removed SEWAGE.

b) Within 3 days of any change to the Waste Management System(s), Sewage Works or Waste Disposal Site names and ECAs or EASR registration numbers confirmed in response to Item No. 3 a), submit written confirmation of the changes to the Director at environment.niagara@ontario.ca.

Item No. 4 Compliance Due Date: June 13, 2023

Upon service of this Director’s Order and until notified in writing by the undersigned Director, the ORDEREES shall ensure that at all times the Freeboard in the retention pond is at least 60cm.

Item No. 5 Compliance Due Date: June 13, 2023

Upon service of this Director’s Order, the ORDEREES shall conduct inspections of the SEWAGE WORKS at the SITE ("the inspections") at least once per week, and on each day when there is precipitation and on each day SEWAGE is removed from the SITE. The ORDEREES shall document the inspections in a written log that includes the following information at a minimum:

a) date and time of the inspection;

b) documented measurement of retention pond Freeboard;

c) documented inspection of the overflow ditch from the retention pond to assess for discharges from the retention pond, if the retention pond Freeboard is less than 30cm at the start of the inspection;

d) documented volumes of SEWAGE removed and dates of removal from the SITE to ensure a minimum 60 cm of Freeboard in the retention pond is maintained;

e) documented observations describing any spills, as defined in Part X of the EPA from the SEWAGE WORKS, including flows of SEWAGE through the retention pond overflow ditch;

f) date and time of any reports to the Spills Action Centre (1-800-268-6060), as required under the Part X of the EPA;

g) documented description of any action(s) taken to prevent, eliminate or ameliorate any adverse effect; and

h) printed name and signature of the person conducting the inspection.

Item No. 6 Compliance Due Date: June 23, 2023

Commencing on June 23, 2023, and on each Friday thereafter until notified in writing by the undersigned Director, the ORDEREES shall submit a weekly report to the undersigned Director at environment.niagara@ontario.ca that includes:

a) a summary of the inspections undertaken in the previous seven (7) days;

b) copies of the log required in Item 5; and

c) all documentation (i.e., manifests, bills of lading) showing the volume and means of SEWAGE removal and disposal in the previous seven (7) days.

Item No. 7 Compliance Due Date: June 13, 2023

Upon service of this Director’s Order, the ORDEREES and any other person with an interest in the SITE shall, before dealing with the SITE in any way, give a copy of this Director’s Order, including any amendments thereto, to every person who will acquire an interest in the SITE as a result of the dealing.

Item No. 8 Compliance Due Date: July 7, 2023

On or before July 7, 2023, provide to the undersigned Director by email at Kim.Groombridge@ontario.ca and at environment.niagara@ontario.ca an "Acknowledgement and Direction", prepared by legal counsel, completed as described in the 'Certificate of Requirement' section of the Reasons for the Response below.

Item No. 9

Within 5 days of receipt from the undersigned Director of a signed "Acknowledgement and Direction", register the Certificate of Requirement on title to the SITE in the appropriate land registry office.

Item No. 10

Within 2 days of registration of the Certificate of Requirement, provide written verification to the undersigned Director by email at Kim.Groombridge@ontario.ca and at environment.niagara@ontario.ca, a copy of the registered document together with a copy of the Parcel Register for the Property Identifier Number confirming the registration.

4The Director relied on section 157.3(5) of the EPA and section 16.4 of the OWRA to confirm and alter the underlying Provincial Officer’s Order, which is incorporated into, and forms part of, the Director’s Order.

5The Hearing was held over eight days, with final arguments being heard orally on April 7, 2026, based on the Appellants’ Closing Submission (February 17, 2026), the Director’s Closing Submissions (February 27, 2026), and the Appellants’ Reply Submissions (March 4, 2026).

PRELIMINARY MOTION

6The Appellants filed a motion which was heard at the commencement of the Hearing (“Motion”). The Tribunal ruled orally on the Motion and the following paragraphs are a Memorandum of the Tribunal’s Decision and Order on the Motion. The Appellants were seeking the following relief:

a. An Order to exclude all evidence, data, samples, commentary, or other documentation obtained by Environmental Compliance Officers (“ECO”) Sylvie Chartrand or, alternatively, to force ECO Chartrand as an adverse party witness and allowing the Appellants to cross-examine her according to Rule 53.07(5) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Courts of Justice Act) (“Rules of Civil Procedure”);

b. An Order to exclude ECO Michael Durst as a witness and to exclude all documentation by him as irrelevant to the appeal;

c. An Order to exclude witnesses during the hearing when other witnesses are testifying due to the ongoing prosecution against the Appellants arising from the Director’s Order under appeal.

7The Director opposed the Motion and requested that the Tribunal dismiss the Motion in its entirety. The Director alleged that, by bringing this Motion at a very late stage in the proceeding, the Appellants were attempting to achieve the adjournment of the hearing which they were unsuccessful in obtaining in November 2025.¹ In their Reply, the Appellants submitted that they were not seeking a delay or to obtain an adjournment. They stated that they were ready to proceed based on the draft Hearing Plan submitted to the Tribunal pursuant to its Procedural Order. The Hearing Plan sets out a time to consider the evidence of ECO Chartrand if the Tribunal’s directions result in the need to hear her evidence.

Exclusion of Chartrand and Durst Evidence

8With respect to the first ground of relief, the Appellants argued that the evidence submitted to the Tribunal is not the best evidence available and is unnecessary hearsay meant to shield ECO Chartrand from cross-examination. It was alleged that shielding ECO Chartrand from cross-examination prejudices the Appellants’ right to a fair hearing and would unfairly hinder the Appellant’s ability to test the veracity of foundational evidence upon which the Director relies.

9The Appellants claimed a high level of procedural fairness and natural justice because the Appellants have recently been charged by the MECP for failing to comply with the Director’s Order, which is at issue in the appeal before the Tribunal.

10It is further alleged by the Appellants that to allow other witnesses to give evidence in reliance of ECO Chartrand’s work on the matter for over two decades introduces hearsay evidence. The Appellants acknowledged that the Tribunal has discretion to admit hearsay evidence under section 15(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (“SPPA”) but submitted that the use of hearsay is unnecessary, and necessity and reliability have not been established by the Director. For them, admitting and relying on hearsay evidence during an administrative hearing constitutes a denial of natural justice and a breach of procedural fairness.² Shielding ECO Chartrand from cross-examination is improper in their view.

11With respect to ECO Durst’s evidence, the Appellants claimed that the evidence is irrelevant as he only became involved in a decade long matter almost two years after the Director’s Order was issued.

12The Tribunal agreed with the position of the Director with respect to the Chartrand and Durst evidence and found that the requested relief in relation thereto should be denied. The appeal before the Tribunal is an appeal de novo (new hearing) and the Director may advance, in this new hearing, the evidence which is, in the opinion of the Director, appropriate. There is no reason to conclude, at this stage, that the evidence of the Director is not relevant. The evidence to be considered appeared, at the start of the hearing, presumptively to be appropriate and relevant. The evidence would likely assist the Tribunal in exercising its powers under section 145.2 of the EPA and section 100(10) of the OWRA.

13Section 15 of the SPPA empowers the Tribunal to receive, consider, and act upon hearsay evidence. Section 15(1) of the SPPA operates to displace the presumption against hearsay in the general rules of evidence. Accepting relevant hearsay is the general practice of the Tribunal, including in environmental cases. This is not a civil, criminal, or quasi-criminal proceeding where the rules of hearsay are administered differently. Moreover, the cases advanced by the Appellants, in support of their position, are neither compelling nor binding on the Tribunal and are, in any event, entirely distinguishable.

14The Appellants’ blanket request to exclude all the ECO Chartrand and ECO Durst evidence fatally lacked specificity. The objection to the Director’s evidence was, moreover, premature and speculative, as objections should take place at the time the evidence is proffered. There is a high likelihood that, if the Tribunal were to exclude evidence at this stage, it would amount to an error in administrative law in the absence of an evidentiary context.³

15It is of course open to the Appellants to argue that the evidence should be given little or no weight, or that it is not relevant, when the Tribunal has been made aware of the entire case.⁴

16The Tribunal’s approach is consistent with section 12(2) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (“OLT Act”), which favours the adoption of practices and procedures that offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings. These principles are echoed at Rule 1.3 of the Tribunal’s Rules of Practice and Procedure (“OLT Rules”).

17Moreover, it is not up to the Appellants to dictate the witnesses and the evidence the Director may advance in this appeal. The Director also benefits from the principle of audi alterem partem.⁵

Summons of ECO Chartrand

18With respect to the alternative position, the Appellants submitted that they are entitled to call ECO Chartrand under summons. They alleged that there is a gap in the OLT Rules, and that pursuant to Rule 1.4 of the OLT Rules, reference should be had to section 10.1(b) of the SPPA and to Rules 53.07(2) and (5) of the Rules of Civil Procedure.

19It is factually established by the affidavit evidence on this Motion that ECO Chartrand’s responsibility for the Site has transitioned to ECO Durst. The Appellants have been aware of this since April 24, 2025 (paragraph 17 of Chartrand’s Affidavit (“Chartrand Affidavit”)). It was apparent to the Appellants that ECO Chartrand was not to be called as a witness since October 27, 2025, when her name was not included in the Director’s witness list through a process established under the Tribunal’s Procedural Order of September 24, 2025 (paragraph 24 of Chartrand Affidavit). The Appellants admit the case the Director intended to advance did not include hearing evidence from ECO Chartrand and that this became apparent when Witness Statements were exchanged in November 2025. The Tribunal saw no evidence that this change was done by the Director for an improper purpose. None should be inferred.

20The Tribunal agreed with the position of the Director with respect to a summons of ECO Chartrand and found that the requested relief in relation thereto should be denied. Whilst the Appellants are also entitled to benefit from the principle of audi alterem partem, they have failed to act upon this in a timely way. The Appellants could have acted for three months but have not done so. ECO Chartrand could have been added to their own witness list. She was not. The Appellants could have sought a summons at that time under Rule 13 of the OLT Rules. They did not. Witness Statements, pursuant to the Tribunal’s Procedural Order, were exchanged two months ago and it was too late for the Appellants to change their evidence at the start of the Hearing. The Appellants’ request at this stage would be highly prejudicial to the Director’s ability to put her case fairly and would amount to procedural unfairness, a right that benefits both Parties in this proceeding.

21In addition, no regard need be had to Rule 53.07(5) of the Rules of Civil Procedure as the Tribunal’s Procedural Order sets out how witnesses are to be identified and by whom they will be called. There is no gap in the OLT Rules that justifies having recourse to the Rules of Civil Procedure.

22The summons issued administratively by the Deputy Registrar of the Tribunal, on January 19, 2026, was quashed by the Tribunal, and the Appellants were directed not to serve the summons on ECO Chartrand. The Tribunal noted that the summons was requested by the Appellants seven days after they filed the Motion. Moreover, they did so inexplicably on an ex parte basis, (i.e., without copying the Director) even though ECO Chartrand’s participation as a witness had been a live issue between the Parties since January 12, 2026, when they discussed the draft Hearing Plan. The Director became aware of the summons on the first day of the Hearing, when the Tribunal made inquiries about the summons.

Exclusion of Witnesses while Other Witnesses Testify

23With respect to excluding witnesses from the hearing during the testimony of others, the Appellants noted that the OLT Rules are silent on this point and that recourse may be had, pursuant to Rule 1.4 of the OLT Rules, to Rule 52.05(1) of the Rules of Civil Procedure. The first appearance date, with respect to the provincial offence, was set for February 12, 2026 before the Ontario Court of Justice (Exhibit W of Affidavit of Steve Charest sworn on January 12, 2026). The Appellants claimed that it will be prejudicial at the Tribunal hearing, and potentially at the prosecution hearing, to allow the witnesses to listen to the testimony of others because witnesses at the Tribunal hearing may be called as witnesses in the Director’s prosecution.

24The Tribunal agreed with the position of the Director with respect to the exclusion of witnesses and found that this requested relief should be denied. Witness exclusion orders are discretionary and are an exception to the ‘open court’ principle set out in Rule 22.1 of the OLT Rules. They are very rare in Tribunal proceedings. In this instance, the Appellants’ blanket request was inappropriate for the following reasons.

25First, such orders are entirely inappropriate with respect to expert witnesses, except in the most unusual circumstances, because expert witnesses testify principally with respect to opinion evidence, not factual evidence. They are subject to an acknowledgement of their duty before the Tribunal as experts, and they are encouraged to meet and exchange on their professional opinions with a view to find areas of agreement.⁶ The exclusion of Dr. Khan and the Appellants’ four proposed experts is thus inappropriate.⁷

26Second, witness exclusion orders cannot apply to witnesses that are parties because they have an inherent right to be present at a hearing.⁸ As a result, neither the Appellant Charest nor the Director should be excluded. The Appellants admitted this when the Motion was heard.

27The Tribunal noted that once the ‘expert witness filter’ and the ‘party filter’ are applied, the exclusion order sought by the Appellants at the start of the Hearing would only be in respect of ECO Durst.

28Third, where exclusion orders have been issued before the Tribunal, it is on consent of the parties or to protect the integrity of the evidence before the Tribunal. The Appellants’ grounds for exclusion of witnesses were based entirely on a different proceeding which is not before the Tribunal. The purpose of an exclusion order is to preserve the integrity of the evidence of witnesses in the same proceeding.

29Fourth, the Appellants did not provide any explanation of the alleged prejudice, especially given that witnesses would no longer be bound by an exclusion order once they have testified. From then on, and well before the provincial offence proceeding scheduled for February 12, 2026, the evidence could be reported to them.

30For all the above reasons, the Tribunal was not persuaded that it should exercise its discretion to exclude any witnesses from the Hearing while other witnesses testified.

Conclusion on Preliminary Motion

31Accordingly, the Motion was denied in its entirety at the start of the hearing, and an appropriate Order is set out at the conclusion of this Decision.

BACKGROUND

32The Site is a property of approximately 170 acres and includes a landfill with an area of at least 40 acres.⁹

33Since about 1907, Union Carbide established a graphite production and calcium carbide plant on the Site. Union Carbide eventually merged with Electro Metals Ltd. and Union Carbide Canada Limited continued alloy production on the Site until 1964. From that time, full production was dedicated to graphite and carbon production. The Site was subsequently sold to GrafTech Canada Inc.

34During the historical industrial operations at the Site, products and by-products, such as slag, ferroalloy, and graphite, were deposited 1 to 2 meters deep throughout the Site and 15 to 20 metres deep in the landfill.

35When rain and snow precipitation contacts the historically deposited wastes, contaminated stormwater is generated. The Contaminants of Concern (“COCs”) in the resulting stormwater include chromium, phosphorous, sulfate, unionized ammonia, phenols, aluminium, iron, manganese, vanadium, uranium, and zinc. The untreated stormwater also has a high pH level.

36A sewage work has operated on the Site for many decades. It collects the stormwater through a series of surface ditches and the Union Street Pumphouse, which transmits the stormwater to a retention pond on the southwest corner of the Site.

37The Appellants are not currently discharging from the Site.

38K&B has a history of redeveloping brownfield properties in Ontario. It purchased the Site in 2017 and plans to extract and process material on the Site for reuse, including in electric vehicle batteries. It also intends to redevelop and sell portions of the Site.

POSITION OF THE PARTIES

39The Appellants submit that the Director’s Order should be revoked. First, they argue that the Director did not have jurisdiction to issue the Director’s Order because: (a) there is no evidence that COCs in the stormwater discharged from the Site have caused an adverse effect; (b) there is limited potential that the COCs in the stormwater discharged from the Site will cause an adverse effect; and (c) the Director does not have authority under the EPA to approve an amendment to an Environmental Compliance Approval (“ECA”) for Sewage Works at the Site, given that the authority rests with the MECP’s Director of Client Services and Permission Branch (“Permission Branch”). Second, the Appellants maintain that certain items in the Director’s Order are unnecessary, redundant, and simply reiterate the Appellants’ regulatory and common law reporting and disclosure obligations. Third, they contend that there is no legal basis to issue the Director’s Order against the Appellant Charest personally because K&B owns the Site, the Sewage Works ECA is not issued to the Appellant Charest, and it is K&B that operates the Sewage Works at the Site.

40In the alternative, the Appellants pressed the Tribunal to amend the Director’s Order to add a term into the Director’s Order that would stipulate that once K&B obtains an amended ECA, with discharge limits for CrIII, CrVI, and pH, the Director’s Order would be revoked.

41The Director maintains that the Director’s Order should be confirmed in its entirety. The Director submits that that the Site is a highly contaminated property and that the stormwater contains elevated levels of COCs, including hexavalent chromium, which is a hazardous substance under Ontario environmental policy and a toxic substance under the Canadian Environmental Protection Act, 1999, 1999 S.C., c. 33 (“CEPA 1999”). The Director asserts that stormwater from the Site is inadequately treated. The Director contends that the Director has the jurisdiction to issue the Director’s Order under both the EPA and the OWRA to protect the natural environment, including Ontario’s waters, from inadequately treated contaminated stormwater from the Site. The Director reasons that confirming the Director’s Order is consistent with the environmental protection purposes of the EPA and the OWRA, and with the precautionary, science-based approach contained in the MECP’s Statement of Environmental Values. The Director underscores that the Director’s Order allows the discharge of stormwater into the environment, but only if it is effectively treated for key COCs. This can be achieved by using either a third party’s mobile Sewage Work with its own ECA or upgrading the existing Sewage Works at the Site with a corresponding amendment to K&B’s ECA.

42The Director asserts that the MECP has been working with K&B since it purchased the Site in 2017 to address the ongoing contaminated stormwater management issues. The Director is of the view that many issues have remained unaddressed and that the stormwater issues have been exacerbated by Site activities, including extensive exploratory test pitting, movement of fill material, and demolition work. For the Director, these activities have caused previously vegetated areas on the Site to be stripped of vegetation, thus further exposing deposited wastes to precipitation and snow melt. The Director considers that K&B has made many commitments to the MECP to improve the Sewage Works, but most of these commitments have not been kept. As a result, the Director concluded that decisive action was required to prevent improperly treated sewage from entering the environment. This resulted in the issuance of the Director’s Order.

43The Director does not dispute that the risk of adverse effects to, or impairment of, drinking water from the discharge at the Site is low.

SCOPE OF THE APPEAL

44The appeal grounds set out in the Appellants’ Notice of Appeal are as follows:

a. There is no jurisdiction for Items 1, 2, 3, 5(d), and 6(c) in the Director’s Order because there is no adverse effect, impairment of water, or public interest concern resulting from the discharge of COCs in the stormwater at the Site, and

b. Items 7, 8, 9, and 10 are unnecessary and will hamper development at the Site and are therefore contrary to the public interest.

45In their Closing Submission of February 17, 2026, submitted after the end of the Hearing, the Appellants added to the grounds of appeal, including as follows:

a. There is no jurisdiction to issue the Director’s Order in its entirety (not just Items 1, 2, 3, 5(d), and 6(c));

b. There is no legal basis to issue the Director’s Order against Appellant Charest personally;

c. Items 5(e), (f), and (g) of the Director’s Order are unnecessary and redundant;

d. The Director’s Order is unworkable because the Director does not have authority under the EPA to approve an ECA; and

e. The Director’s Order is unfair, especially to Appellant Charest.

46The Director submits that those grounds are outside the jurisdiction of the Tribunal on this appeal.

47Pursuant to section 142(2) of the EPA and section 101(2) of the OWRA, except with leave of the Tribunal, an appellant is not entitled to appeal a portion of the order or rely on a ground that is not in an appellant’s notice of appeal.

48The Tribunal agrees with the Director. Given that the Appellants have neither sought nor obtained leave of the Tribunal at, or prior to, the Hearing, the grounds set out in paragraph [45] are not before the Tribunal as they were not in the Appellants’ Notice of Appeal. The Director advanced that the Tribunal should not rule on the added grounds and that it should restrict its decision to the two grounds included in the Appellants’ Notice of Appeal. Nevertheless, for clarity, the Tribunal has reached conclusions on the Appellants’ additional grounds, based on the alternative arguments advanced by the Director.

EVIDENCE

49The Tribunal heard and considered the evidence of the following individuals:

a. Robert J. Watters (Dr.), the President and Chief Executive Officer of Watters Environmental Group Inc., who was retained by the Appellants and testified as a factual witness;

b. Dave McLaughlin, the owner and Principal Scientist with Cotyledon Environmental Consulting, who was retained by the Appellants and qualified by the Tribunal to provide opinion evidence in the field of ecology;

c. Jason Cole, a Technical Discipline Manager (hydrology and hydrogeology) at SLR Consulting (Canada) Ltd., who was retained by the Appellants and qualified by the Tribunal to provide opinion evidence in hydrogeology and hydrology;

d. Majd Alkatan, an Environmental Engineer with JSR Engineering Inc., who was retained by the Appellants and qualified by the Tribunal to give opinion evidence in assessment and remediation of contaminated sites;

e. Steve Charest, a Director and Officer of K&B, who testified as a factual witness;

f. Michael Durst, an ECO employed by the MECP (Niagara District Office), who testified on factual and technical matters within the limits of his professional experience;

g. Kim Groombridge, Manager, Niagara District Office, West Central Region, MECP who testified on factual and technical matters within the limits of her professional experience; and

h. Mohammad Sajjad Khan (Dr.), the acting Senior Wastewater Engineer in the Permission Branch of the MECP, who was qualified by the Tribunal to provide opinion evidence in surface water, wastewater, and hydrology.

50The individuals qualified to provide expert opinion evidence adopted their Written Witness Statements and Reply Witness Statements (if any), with such added minor corrections as required and noted during their oral evidence.

51A considerable amount of hearing time was consumed by debates as to whether a given witness ought to be qualified to provide opinion evidence in a proposed field of expertise, as well as to the appropriate descriptions of the fields of expertise. The Appellants often proposed fields that were unnecessarily verbose. In addition, proposed experts attached curriculum vitae to their Witness Statements that were drafted for other purposes, such as marketing their services, rather than demonstrating to the Tribunal their field of relevant expertise. The Tribunal had to make two rulings with respect to proposed opinion evidence.

Qualification of Dr. Watters

52First, the Appellants sought to qualify Dr. Watters to provide opinion evidence “in environmental science, specializing in integrating technical disciplines to solve complex environmental issues, including soil, ground water and surface water contamination in the environment”. The Director objected to the qualification as being too broad. The Director submitted that Dr. Watters was not an engineer, was not a toxicologist, was not a surface water specialist, had no expertise in stormwater, and the primary focus of his experience was with respect to environmental due diligence for real estate transactions and financing. Having considered the submissions of the Appellants, the Tribunal did not rule at the start of his oral evidence whether to qualify him in the requested field and proceeded on hearing his evidence as a factual witness. There were no objections during his oral evidence in chief alleging that he was advancing opinion evidence.

53After his evidence in chief and his cross-examination, but before his re-examination, the Tribunal ruled on the Appellants’ request to qualify him to provide opinion evidence in the requested field. The Tribunal found that, whilst Dr. Watters had broad and extensive experience, and understood scientific and technical evidence, the Appellants did not ultimately persuade the Tribunal that he had the required level of expertise to support the proposed qualification in the field advanced by the Appellants.

Qualification of Mr. McLaughlin

54Second, the Appellants proposed to qualify Mr. McLaughlin to provide opinion evidence in the field of “environmental investigation, including the analysis of environmental data trends”. The Director objected to this field of qualification because it was too broad. Counsel for the Director submitted that the proposed field was equivalent to seeking to qualify an expert in the field of medicine generally, rather than a precise discipline such as oncology or orthopedic surgery. In addition, for the Director, the witness’ proposed area of expertise was not relevant.

55The Parties were unable to find common ground on an agreed upon field of expertise on the margins of the Hearing.

56Ultimately, based on this impasse, the Tribunal qualified Mr. McLaughlin to provide opinion evidence in the field of ecology. The Tribunal specified that ecology is a branch of biology that deals with the relation of organisms (life forms) to one another and to their physical surroundings. For the Tribunal, expertise in ecology included the expertise in appropriate methods to evaluate data in that field. However, it was open to the Director to make submissions on the weight (if any) that should be given to Mr. McLaughlin’s opinion evidence.

57The Tribunal considers that counsel for the Appellants failed to understand the distinction between a witness’ experience and their field of expertise for the purpose of recognizing that an individual can provide opinion evidence in a proceeding. Experience relates to time spent in a field or area. It is a quantitative assessment. By contrast, expertise is a qualitative assessment, as it relates to deep and refined mastery in a discipline. Expertise often implies academic or professional credentials but may also include mastery gained through significant work experience. A combination of education, publications, professional credentials, and work experience will lead to the conclusion that an individual has mastered an area, and thus, has a field of expertise. An expert witness should apply that expertise to the facts of the case and then provide an opinion for the Tribunal’s consideration. For the Tribunal, a field of expertise ought to be a generally recognized discipline. Moreover, the field of discipline should not be confused with the task for which they were retained by a party (i.e. the reason for which they have been called to testify in support of a party’s position). Unfortunately, Counsel for the Appellants sought to have individuals qualified to provide opinion evidence in verbose fields or areas based on the scope of their evidence (i.e. their task) rather than based on the nature of their expertise. The Appellants’ attempted approach impaired the efficiency of the Hearing.

Impartiality of Dr. Khan

58The Appellants contended that Dr. Khan’s opinion evidence should be given little weight by the Tribunal because he lacked impartiality and independence, and because he acted as an advocate. They pointed to his Memorandum, dated August 10, 2024, in which he wrote:

I applaud the local district office of the Ministry for taking decisive action to prevent discharge of heavily contaminated stormwater from the site into the natural environment by issuing a Director’s order.

59They also underscored that, under cross-examination, Dr. Khan “saluted” the MECP for taking a position to protect the environment, and that he was personally supportive of the MECP’s efforts.

60The Director urged the Tribunal to dismiss the Appellants’ position with respect to the weight to be given to Dr. Khan’s evidence.

61The Tribunal finds that there are not sufficient grounds to place little weight on the evidence of Dr. Khan. He signed, and reasserted orally, his Acknowledgement of Expert’s Duty to provide the Tribunal fair, objective, and non-partisan opinion evidence. The Appellants did not challenge, at any point during the evidentiary stage of the Hearing, his understanding of his expert’s duty to the Tribunal, nor did they challenge his qualifications to provide expert opinion evidence. This is sufficient to establish that the threshold level of impartiality has been met.¹⁰

62Moreover, having heard his evidence, the Tribunal considers his evidence to have been forthright and direct. He neither exaggerated nor evaded questions. His evidence was presented in a fair, objective, and non-partisan manner, and he professionally reassessed his opinion in some respects when he considered the evidence of Mr. Cole, the Appellants’ expert. The Tribunal saw no indication that Dr. Khan’s evidence would have changed if he had been called by a person or entity other than the Director. There certainly was no evidence that there was a realistic concern that he was unable or unwilling to comply with his duty as an expert.¹¹

63In addition, the Tribunal notes that in Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town) (“South Bruce”) the Ontario Court of Appeal, in a decision that is binding on this Tribunal, found that an expert witness’s concerns, which mirrors the legislative goal, does not undermine their evidence.¹² Pardu J.A. stated that “[o]ne would not think, for example, of disqualifying a neonatologist as an expert witness because he or she was devoted to the welfare of newborn babies or wrote a report while on parental leave”.¹³ Dr. Khan’s statements similarly reflects the goals of the relevant legislation to protect the Ontario’s natural environment. This does not raise issues of impartiality and thereby does not result in less weight being given to his evidence solely on that basis. The Tribunal also notes the concurring opinion of Lauwers J.A. in South Bruce, who wrote “perfectly impeccable impartiality or independence is rarely possible and is not the standard”.¹⁴

64Contrary to the Appellants’ position, Dr. Khan’s evidence should be given considerable weight. His evidence was complete, considered, persuasive, and stayed within his field of expertise.

Adverse Inference due to Absence of ECO Chartrand

65The Appellants contended that the Director’s Order was based on surface water samples collected by ECO Chartrand at the Site in March 2023 and April 2023. They argued that the Tribunal should draw an adverse inference because the Director did not call ECO Chartrand to testify, particularly with respect to the collected samples.

66Quite apart from the Appellants’ failure to articulate the precise inference the Tribunal should draw, the Tribunal agrees with the Director that the decision cited by the Appellants is unhelpful. Canadian Environmental Services Inc. v. Ontario (Director, Ministry of the Environment) is not binding on the Tribunal and is not persuasive as it is distinguishable on the facts.¹⁵ ECO Chartrand was not on the Director’s witness list and a witness statement from her was not included in the Director’s final package of Witness Statements provided on November 26, 2025. The Director chose to call the evidence of ECO Durst as he is currently the ECO dealing with the Site. The case of Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks), cited by the Director on this point, is far more persuasive and pertinent.¹⁶ In that case the Director failed to call a retired MECP employee to testify. The employee had authored some of the documents referred to at the hearing. The Member declined to draw an adverse inference requested by one of the appellants in that case because the hearing of the appeals was de novo in nature and “is not a forensic review of ‘what was reviewed and why decisions were made’”.¹⁷

67Accordingly, the Tribunal will not draw any adverse inference because ECO Chartrand did not testify. It was never the intention of the Director to have ECO Chartrand to testify.

ISSUES

68This appeal raises the following issues:

a. Does the issuance of a preventive measures order under section 157.1 of the EPA require that there be an actual adverse effect?

b. Does the issuance of a preventive measures order under section 16.1 of the OWRA require that there be actual impairment of the quality of the water?

c. Have the Appellants established that the risk of adverse effects to, and impairment of the aquatic environment, from the contaminated stormwater at the site is minimal?

d. Are the elements of the Director’s Order appropriate?

e. Is the Director’s Order workable?

ANALYSIS

69Pursuant to section 145.2(1) of the EPA and section 100(10) of the OWRA, the Tribunal’s hearing of this appeal is a hearing de novo. The Tribunal steps into the shoes of the Director and may confirm, alter, or revoke all or part of the Director’s Order. In other words, the Tribunal’s role is to determine what, if anything, it ought to do with respect to the Director’s Order. The onus is on the Appellants to satisfy the Tribunal, on a balance of probabilities, that their grounds of appeal have been established and that their requested relief should be granted.

70Contrary to the position advanced by the Appellants¹⁸, the test is not whether the Tribunal is of the view that the Director’s Order should have been issued. Clearly, the Tribunal’s statutory jurisdiction is not a review of the Director’s decision at the time it was made. It is a hearing de novo, not some form of judicial review. In exercising its jurisdiction, the Tribunal may consider the most up-to-date and relevant information, even if that information relates to events, conduct, or other evidence after June 13, 2023 (i.e., the date of the Director’s Order). The Tribunal is not constrained by only those facts leading up to the issuance of the Director’s Order. This in no way undermines the Appellants’ appeal rights since what is being appealed is the Director’s Order. It is the Director’s Order which is “the subject of the appeal” and not the underlying facts that persuaded the Director to issue her Director’s Order. There is no “moving target” and there is no review of “the Appellants’ conduct writ large”, as submitted by the Appellants.¹⁹ No irrelevant evidence was introduced by the Director, and all the evidence the Director intended to rely on was disclosed through the extensive exchange of Witness Statements in a manner consistent with the Tribunal’s Procedural Order.

71Accordingly, the Tribunal rejects the Appellants’ submission that the Director’s evidence is irrelevant to the extent that it post-dates the Director’s Order. Their position not only defies common sense, by exclusion of the most recent evidence of actual or potential risk to the environment, it also fails to reflect the important distinction in administrative law between a review of a decision and an appeal de novo. The position of the Appellants is even more puzzling as their own evidence extensively covered events which occurred after June 13, 2023.²⁰ Moreover, the Appellants readily admit that not all the Director’s evidence is about the conduct to the Appellants after the Director’s Order was issued. They only allege that the Director’s evidence was “much”, or “predominantly”, in relation to conduct after June 13, 2023.²¹

A. Does the issuance of a preventive measures order under [section 157.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html#sec157.1_smooth) of the [EPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html) require that there be an actual adverse effect?

72The Appellants maintain that, pursuant to section 157.1 of the EPA, there must be evidence of an actual adverse effect before the Director can exercise her authority to issue a preventive measures order.

73The Director submits that the Provincial Officer, and subsequently the Director, had the authority under both sections 157.1(1)(a) and (b) to issue a preventive measures order requiring action to prevent discharge or prevent adverse effect that may result from the presence or discharge of contaminants.

74The Tribunal finds that the Appellants’ interpretation of section 157.1 of the EPA is inconsistent with the plain language of that section, which provides:

157.1 (1) A provincial officer may issue an order to any person who owns or who has management or control of an undertaking or property if the provincial officer reasonably believes that the requirements specified in the order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property.

[Emphasis added]

75The Appellants’ interpretation has the effect of completely overlooking the word “may” in section 157.1(1)(b) of the EPA. Moreover, such an interpretation does not further the environmental purpose of the EPA. Section 3(1) of the EPA states that the purpose of the EPA “is to provide for the preservation and conservation of the natural environment”.

76The Director explained that the Provincial Water Quality Objectives (“PWQOs”) set the desirable quality of water to protect all forms of aquatic life and all aspects of aquatic life cycles during indefinite exposure to water. They are scientifically derived using aquatic chronic toxicity data for fish, amphibians, invertebrates, and aquatic plants. In the case of hexavalent chromium, Ontario has adopted the Federal Environmental Quality Guideline (“FEQG”).

77The evidence established that there is waste, containing contaminants, that has been deposited on the Site for many decades. Precipitation enters into contact with that waste, thus generating stormwater. The annual monitoring reports submitted by the Appellants show that the stormwater on the Site is heavily contaminated with COCs. Elevated concentrations of contaminants in surface water on and adjacent to the Site include elevated pH, heavy metals (including chromium), ammonia, and phenols.²² After the current treatment method (which includes a retention/settling pond, peat filter, and CO₂ addition), the concentrations of contaminants significantly exceed the levels set in the PWQOs and the FEQG for the protection of freshwater aquatic life. Dr Khan testified that certain parameters, including trivalent chromium, hexavalent chromium, and total chromium, exceeded aquatic life and human health guidelines’ values “by several orders of magnitude”.²³ The presence of hexavalent chromium (CrVI) is particularly critical as it is a hazardous substance. The Sewage Works at the Site are insufficient to properly treat the contaminants found in surface water on the Site. Specifically, hexavalent and trivalent chromium concentrations in the stormwater leaving the sewage works are a concern and are within the range considered to be toxic to fish and benthic invertebrates.²⁴

78ECO Durst testified that K&B has taken actions that have increased the risk of untreated contaminated stormwater discharging from the Site and that, without concrete action to address the management of contaminated stormwater at the Site, he is concerned that an uncontrolled discharge will become unavoidable.

79Accordingly, the Tribunal finds that a preventive measures order under section 157.1 of the EPA is justified because the Director’s evidence supports the conclusion that an adverse effect may result from the presence or discharge of the COCs. Moreover, the Tribunal is not persuaded by the Appellants’ attempt to minimize the importance of the PWQOs by describing them as mere guidance documents and not law.

80In addition, the Tribunal also finds that the evidence established that there is a discharge of contaminants into the natural environment from stormwater at the Site²⁵, and a preventive measures order requiring action is permitted under section 157.1(1)(a) of the EPA as it is necessary and advisable to prevent such discharge.

B. Does the issuance of a preventive measures order under [section 16.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o40/latest/rso-1990-c-o40.html#sec16.1_smooth) of the [OWRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o40/latest/rso-1990-c-o40.html) require that there be actual impairment of the quality of the water?

81The Appellants similarly made an argument that, under the OWRA, actual impairment of the quality of the water must be present for a preventive measures order to be made under section 16.1 of the OWRA.

82The Tribunal agrees with the Director that the jurisdiction to issue a preventive measures order under section 16.1 of the OWRA does not require that there be actual impairment of the quality of the water. It is sufficient that a potential discharge into “any” water or watercourse “may” impair the quality of water. Section 16.1 of the OWRA refers to water generally, and not necessarily the quality of the water where the discharge is occurring. This interpretation is consistent with the plain reading of the OWRA and aligns with its purpose, set out at section 0.1 of the OWRA, which is the conservation, protection, and management of Ontario’s water.

83The evidence set out above, with respect to the EPA, establishes that the monitoring and chronic toxicity data support the conclusion that the discharge of stormwater from the Site may impair the quality of water and its aquatic life.

84In addition, section 1(3)(e) of the OWRA has a deemed impairment provision, which has been met in this case. The quality of the water may be deemed impaired by the discharge of materials into the water because peer-reviewed scientific publications indicate that the material or derivative causes injury to, or interference with, organisms that are dependent on aquatic ecosystems. The FEQG was derived from the May 2018 publication of the Environment and Climate Change Canada publication, which is a compilation of peer-reviewed chronic toxicity studies for hexavalent chromium. The Appellants’ suggestion that the authors of every peer-reviewed publication need to be called as witnesses in this proceeding is unreasonable and ignores section 15(1) of the SPPA and section 12(2) of the OLT Act relating to hearsay and ‘fair, just and expeditious’ Tribunal proceedings.

C. Have the Appellants established that the risk of adverse effects to, and impairment of, the aquatic environment from the contaminated stormwater at the Site is minimal?

85Based on the evidence of Mr. McLaughlin, the Appellants submit that the risk of a potential impact to the natural environment is minimal. The Appellants rely on Castonguay Blasting Ltd. v. Ontario (Environment) (“Castonguay”)²⁶ and Ontario v. Canadian Pacific Ltd. (“Canadian Pacific”)²⁷ in support of their position that adverse effect must be conceivable and not trivial.

86It is unclear for the Tribunal how this “minimal” allegation was relevant to the Tribunal’s statutory jurisdiction for an appeal commenced pursuant to section 140(1) of the EPA and section 100(4) of the OWRA as the word “minimal” is nowhere in the relevant sections of these statutes. Moreover, the cases of Castonguay and Canadian Pacific are entirely distinguishable as they related to different provisions of the EPA, to quasi-criminal prosecutions, and to unrelated factual situations.

87Nevertheless, the Tribunal considers the Appellants’ arguments below.

88First, Mr. McLaughlin opined, based on a statistical review, that background conditions around the Site had to be considered when assessing the impact of treated stormwater discharged from the Site into the natural environment. He relied on reports that slag materials containing COCs were frequently used in construction projects in the area and that contaminant concentrations that exceed the PWQOs were routinely found in off-site locations. Second, based on his Adverse Ecological Impact Assessment, Mr. McLaughlin concluded that the municipal roadside ditches were environmentally degraded and impoverished, did not support fish habitat and the plant species identified are those typically found in dry waste sites. In Mr. McLaughlin’s opinion, without habitats for Daphenia magna (water flea) or fish, there was no way of measuring an impact to the natural environment. Those species are generally used to judge environmental impairment.

89The Director maintained that Mr. McLaughlin did not follow established environmental policies and practices in conducting his assessment and that his analysis was fundamentally flawed since he included station S-12 in the upstream data sampling, which was heavily impacted by the adjacent landfill.

90For the following reasons, the Tribunal has largely disregarded Mr. McLauglin’s evidence.

91Although he admitted on cross-examination that the removal of data from the S-12 station would result in a significant decrease in chromium concentration in the upstream data set (50%), he did not carry out the statistical analysis under this revised dataset. His statistical analysis is therefore flawed.

92Moreover, the Tribunal prefers the evidence of Ms. Groombridge and Dr. Khan that the receiver to be appropriately considered is the Welland River, which Mr. McLaughlin neither assessed nor observed.²⁸ For him, the receiving environment is the ditch along Townline Road. The ditch is a dry ditch with limited ecological significance outside the periods of heavy precipitation or snow melt. Therefore, under the MECP’s surface water discharge policies, additional assessments are required downstream where there is continuous stream flow (i.e., the secondary receiver). The Appellants admitted that additional assessments may be required to confirm the discharge will not impact aquatic life or other water uses downstream where there is continuous stream flow (i.e., the secondary receiver).²⁹ However, in their view, this was not a “requirement”.

93The Tribunal also disregarded Mr. McLaughlin’s analysis of historical acute toxicity testing. He reviewed 40 test results conducted between 1999 and 2025. However, his analysis is overwhelmingly based on an acute toxicity methodology rather than the chronic toxicity methodology contained in the Canadian Council of Ministers of the Environment 2007 Protocol (“Protocol”). Mr. McLauglin admitted on cross-examination that he was not familiar with the technical procedure of the Protocol (Procedure B-1-5), as well as the precise steps involved. The Tribunal prefers the evidence of Dr. Khan that adverse effects are assessed by determining the potential for long-term harm to growth, reproduction, and survival of all aquatic life, including fish, benthic invertebrates, amphibians, and aquatic plants using chronic toxicity methodology.³⁰ Absence of adverse effects cannot be demonstrated by solely passing acute toxicity tests as those tests only evaluate whether a discharge is acutely lethal (based on survival/mortality rates) on test organisms, namely Daphenia magna and rainbow trout, after a period of exposure from 48 to 96 hours. Chronic toxicity assessment involves longer exposure and requires upstream and downstream monitoring in the receiving environment, which has not been conducted.

94In addition, the Tribunal has put very little weight on the evidence of Mr. McLaughlin. Although he was qualified to provide opinion evidence in the field of ecology, it was apparent that Mr. McLaughlin’s education background and publications related to forestry, and this did not extend to surface water and stormwater. For the most part, his background did not relate to fish, amphibians, invertebrates, or water plants. He is neither a mathematician nor a statistician.

95Accordingly, the Tribunal finds that the Appellants have not established that the risk of adverse effects to, and impairment of, the aquatic environment from the contaminated stormwater at the Site is minimal.

D. Are the elements of the Director’s Order appropriate?

96The Appellants also raised some issues with respect to elements of the Director’s Order. The Appellants’ original Notice of Appeal only raised certain matters. Without leave of the Tribunal, they are additionally challenging other requirements of the Director’s Order. The original and the additional issues will be considered seriatim.

Hamper Development

97The Appellants’ original Notice of Appeal only challenged the necessity of Items 7, 8, 9, and 10 on the basis that these items will hamper the development at the Site and are therefore contrary to the public interest. The Tribunal is not persuaded by the position of the Appellants. They have provided no evidence that the content of the Director’s Order will hamper the development of the Site, despite having the burden of proof on this appeal.

Order Jointly and Severally against Appellant Charest

98The Appellants also sought to have revoked the Director’s Order against Appellant Charest personally on a number of grounds, including that he does not own the Site, the Sewage Works ECA is not issued to him, and he relies on consultants. The Appellants’ position is without merit in both fact and law. Section 157.1 of the EPA and section 16.1 of the OWRA grant the authority to issue an order to a person who has the management and control of the undertaking or property. Mr. Charest has been the sole director and officer of K&B since 2017, when it was incorporated. He testified that he is the president and secretary of K&B. The evidence also demonstrates that he is involved in almost every aspect of the management of the Site and the Sewage Works, and many consultant reports are addressed to him. Appellant Charest’s evidence clearly demonstrated that he is the directing mind of K&B. The Tribunal finds that Mr. Charest has the management and control of the operations at the Site, including the Sewage Works, and should remain named in the Director’s Order jointly and severally. The Tribunal is not persuaded by the allegation that this is somehow unfair.

Unnecessary and Redundant

99The Appellants submit that specific items in the Director’s Order are unnecessary and redundant because they simply codify existing regulatory and disclosure obligations and are duplicative of common law obligations to persons who will acquire an interest in all or part of the Site. The Tribunal is not persuaded by the position of the Appellants. The obligation to report spills at section 92 of the EPA are not identical to the Items in the Director’s Order. The authority for ordering Items 7 to 10 of the Director’s Order is clearly found at section 197 of the EPA and section 103 of the OWRA. These Items are particularly important to avoid the Site being dealt with by persons who have not received a copy of the Director’s Order, and to make the Director’s Order binding on future owners of the Site.

E. Is the Director’s Order workable?

100The Appellants have suggested that the Director’s Order is not workable because the Director does not have the authority under the EPA to approve an ECA amendment for the Site.

101It is not in dispute that Ms. Groombridge is not a Director with authority to approve an ECA amendment. Such an amendment, pursuant to section 20.3(1)(c) of the EPA, would be considered by the MECP’s Permission Branch. However, the Tribunal finds that the Appellants’ position is based on a shockingly misleading premise, which flies in the face of the Director’s evidence, which has been on the record of this proceeding since November 25, 2025.³¹ At paragraph 99 of their Closing Submissions, they state that Item 1 of the Director’s Order requires the Appellants to cease discharging stormwater unless in accordance with an ECA that has effluent limit criteria for CrIII, CrVI, and pH.

102Item 1 does not require K&B itself to hold the ECA for the Site. Obtaining an amendment to the Site’s current Sewage Works ECA is only one of many options available to the Appellants. The ECA can be held by a third party, by using a mobile treatment system, that already has an appropriate ECA. The contaminated stormwater can also be removed from the Site using a waste management system that is authorized under an appropriate ECA to manage such sewage, or it can be discharged to the municipal sewer in accordance with a sewer use permit. The Director’s Order does not require the Appellants to retain sewage at the Site. The Director’s Order is not dependent on which Director has authority to issue or amend the Sewage Works ECA and is thus fully workable.

103ECO Durst testified that, although several alternative disposal options are available to reduce the stormwater at the Site, none have been utilized. For him, the Appellants must begin removing contaminated stormwater offsite via the options available to allow themselves time to obtain an amended the Sewage Works ECA for an appropriate collection and treatment system.

ALTERNATIVE RELIEF

104The Appellants requested that the Tribunal grant their appeal and revoke the Director’s Order in its entirety. However, in the alternative, the Appellants submitted that, if the Tribunal did not grant the principal relief requested, the Tribunal should amend the Director’s Order and add a provision that would stipulate that, once K&B obtains an amended ECA with discharge limits for CrIII, CrVI, and pH, the Director’s Order would be revoked.

105The Tribunal finds that it is not appropriate to grant the alternative relief as it is not supported by the evidence presented at the Hearing. Moreover, if the hypothetical future event were to come to pass, the Appellants could request that the Director amend her Director’s Order if it is deemed appropriate.

CONCLUSION

106Having reviewed the extensive evidentiary record and considered the submissions of the Parties, the Tribunal concludes that it is appropriate to dismiss the appeal and to confirm the Director’s Order. Both section 157.1 of the EPA and section 16.1 of the OWRA permit preventive measures. Actual adverse effect and actual impairment of the quality of the water are not required. The Site is a highly contaminated property, and the Director has persuaded the Tribunal that the legislative test to issue the Director’s Order has been met. The existing Sewage Works is not effective at reducing levels of COCs to the values for the protection of freshwater aquatic life. Twenty years of monitoring data establishes that stormwater exceeds aquatic life guideline values by several orders of magnitude, including for trivalent chromium, hexavalent chromium, and total chromium.

107The Tribunal places considerable weight on the written and oral evidence of ECO Durst, Ms. Groombridge, and Dr. Khan. None of their evidence was successfully challenged on cross-examination. By contrast, Appellant Charest’s and Mr. Alkatan’s oral evidence was not persuasive and illustrated gaps in their knowledge about documents referred to in their own Witness Statements. For the reasons noted above, Mr. McLaughlin’s evidence was afforded very little weight.

108The MECP has been working with K&B to address the ongoing concern with respect to safe and appropriate management of contaminated stormwater for a considerable period. It is important to recall that the Director’s Order itself was issued nearly three years ago. The Director expressed her frustration because of what was described as a trail of broken promises and unfulfilled commitments by the Appellants to upgrade the Sewage Works. Commitments have not resulted in concrete action, and many issues have remained unaddressed. Moreover, as described by ECO Durst, activities on the Site have exacerbated the situation.

109The Appellants have also been frustrated by the process to amend the Sewage Works ECA. They state that they are committed to amending that ECA. They have had many consultations with the MECP and conducted a pilot feasibility study. Yet, the amendment has not yet crystalized.

110While frustration on both sides provides a background to this appeal, the sole issue before the Tribunal is whether to confirm the Director’s Order in whole or in part, based on the relevant evidence and the statutory test. The Tribunal finds that the Appellants have not successfully met their burden on this de novo appeal, and the Director’s Order remains unchanged.

ORDER

111UPON MOTION to the Tribunal by Steve Charest and King & Benton Canal Bank Regeneration Lands Inc. (“Appellants”) for an order excluding certain evidence and for an order to exclude witnesses during the hearing when other witnesses are testifying, THE TRIBUNAL ORDERS THAT the Motion is denied in its entirety and the summons issued administratively by the Deputy Registrar of the Tribunal, on January 19, 2026, is quashed, and the Appellants are directed not to serve the summons on Sylvie Chartrand.

112THE TRIBUNAL FURTHER ORDERS that the appeal is dismissed and the Director’s Order No. 1-209410483 is confirmed.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS VICE-CHAIR

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. 1Charest v. Ontario (Environment, Conservation and Parks), 2025 CanLII 119045 (ON LT).
2. 2Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083, at paragraph 47.
3. 3Connor Homes v. Director, 2021 ONSC 3195, at paragraphs 61 and 62.
4. 4Starson v. Swayze 2003 SCC 32, [2003] 1 S.C.R. 722, at paragraph 115.
5. 5Baker v. Canada 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paragraph 22.
6. 6Auto Workers’ Village (St. Catharines) Ltd. v. Blaney, McMurty, Stapells, Friedman, 35 O.R. (3d) 29 (ON SC), 1997 CanLII 12264, at page 6.
7. 7As it turned out, only three of the Appellants’ four proposed expert witnesses were ultimately qualified to provide opinion evidence.
8. 8Liu Estate v. Chau, 69 O.R. (3d), 2004 CanLII 8234 (ON CA), at paragraphs 27 and 28.
9. 9The Appellants describe the landfill as having an area of 40 acres (16.2 hectares), but the Director describes the area as 19.3 hectare (47.7 acres).
10. 10White Burgess Langile Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paragraph 47.
11. 11Ibid. at paragraph 48.
12. 12Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 161 OR (3d) 436, at paragraphs 60 and 61.
13. 13Ibid. at paragraph 61.
14. 14Ibid. at paragraph 77.
15. 15Canadian Environmental Services Inc. v. Ontario (Director, Ministry of the Environment), 2010 CarswellOnt 2091 (Ont. E.R.T.), at paragraph 115.
16. 16Sherwood Forest Investments (Guelph) Ltd. v. Ontario (Environment, Conservation and Parks), 2024 CanLII 48182 (OLT), at paragraphs 156-157.
17. 17Ibid. at paragraph 157.
18. 18Closing Submissions of the Appellants, at paragraph 119.
19. 19Reply Submissions of the Appellants, at paragraphs 9 to 10.
20. 20See for instance Mr. Alkatan’s Witness Statement, at paragraphs 28 and 29; Mr. Charest Witness Statement, at paragraphs 30 to 32 and 38 to 40. As noted earlier in the Decision, the Appellants also rely on a Memorandum, dated August 10, 2024, to attack the impartiality and independence of Dr. Khan.
21. 21Closing Submissions of the Appellants, at paragraph 119; Reply Closing Submissions of the Appellants, at paragraph 10.
22. 22Kim Groombridge’s Witness Statement, dated November 25, 2025, at paragraph 16.
23. 23Dr. Khan’s Witness Statement, dated November 24, 2025, at paragraph 21.
24. 24Kim Groombridge’s Witness Statement, dated November 25, 2025, at paragraph 20.
25. 25Dr. Watters’s Witness Statement, dated September 25, 2024, at paragraph 19.
26. 262013 SCC 52, [2013] 3 SCR 323.
27. 271995 CanLII 112 (SCC), [1995] 2 SCR 1031.
28. 28Dr. Khan’s Reply Witness Statement, dated December 9, 2025, at paragraph 24.
29. 29Closing Submissions of the Appellants, at paragraph 80.
30. 30Dr. Khan’s Reply Witness Statement, dated December 9, 2025, at paragraphs 3 and 4.
31. 31Ms. Groombridge’s Witness Statement, dated November 25, 2025, at paragraph 78.