CITATION: Continental v. Min. of Environment, 2024 ONSC 5

COURT FILE NO.: DC-23-191-JR

DATE: 20240102

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Continental Imperial Exploration Ltd.

and Andrew Spylo Applicants/Responding Parties

AND

The Director, Minister of Environment,

Conservation and Parks for Ontario, Respondent/Moving Party

BEFORE: Justice L. Sheard

COUNSEL: Andrew Spylo and Contintental Imperial, Self-Represented

Sarah Valair and Kathleen Clements, Counsel for the Director, MECP

HEARD: November 29, 2023

ENDORSEMENT

Overview

[1] This litigation concerns lands at 152/153 Shanley St., Kitchener, Ontario (the “Lands”), formerly owned by Continental Imperial Exploration Ltd. (“Continental”). Andrew Spylo was the Director and President of Continental (collectively, the “Applicants”).

[2] The Applicants say that when the Lands were sold in 2019, the buyers agreed to be responsible for all orders issued by a governmental or regulatory body. For the purposes of these reasons, the buyers are identified as Shannondale Developments Ltd. (“Shannondale”).

[3] On July 21, 2020, after the sale of the Lands, the Director (the “Director”), (Ministry of the Environment, Conservation and Parks) (“MECP”) issued an order against the Applicants, as former owners of the Lands, and others, to take certain actions to address the risk associated with the contamination of the property (the “Director’s Order”).

[4] The Applicants sought to appeal the Director’s Order to the Ontario Land Tribunal (the “Tribunal”). The Director brought a motion to dismiss the appeal on procedural grounds, namely, that proper notice of the appeal had not been given to the Director as required by the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended, (the “EPA”).

[5] On December 30, 2022, the Tribunal granted the Director’s motion and dismissed the appeal on procedural grounds (the “Decision”). The Applicants sought to appeal and judicially review the Decision but failed to file the appeal or to serve and file the judicial review application within the timelines set out in s. 5(1) of the Judicial Review Procedure Act R.S.O., 1990, c J.1 (“JRPA”). To do so now, the Applicants require an order to extend the timelines.

Motions before the court

[6] The following two motions were before the court, and heard together:

1. A motion brought by the Applicants for an order under s. 5(2) of the JRPA extending the timelines to serve and/or file their appeal and their application for judicial review, together with other relief; and

2. A motion brought by the Director to dismiss the within application for judicial review (the “JR Application”) for delay.

(i) The Applicants’ motion:

(i) The Applicants seek:

(a) an order allowing Mr. Spylo, a non-lawyer, to represent Continental;

(b) leave to both appeal and bring an application for judicial review of the Decision;

(c) a stay of the Director’s Order and of the Decision;

(d) a stay of Continental’s appeal, pending the happening of certain events including the outcome of litigation between Continental and Shannondale concerning who, as between them, is responsible for the environmental contamination of the Lands;

(e) an order permitting Continental to present new evidence to the Panel hearing Continental’s application for judicial review and/or its appeal; and

(f) an order abridging the time, if required, to file any material associated with the Applicants’ application for judicial review and/or appeal.

(ii) The Directors’ motion:

(a) The Director seeks an order dismissing the JR Application.

Leave to represent Continental

[7] The Applicants have not been represented by counsel on the proceedings before this court.

[8] No submissions were made on the motions concerning Mr. Spylo’s request to represent Continental. However, the evidence establishes that Mr. Spylo is the president and director of Continental and that his and Continental’s interests in this litigation appear to be the same. I note also that the Director’s Order applies to Mr. Spylo, as Continental’s president and director and that he appears to have been the instructing person for Continental on related litigation. Finally, I conclude that refusal to grant leave would effectively bar Continental from access to justice on these motions.

[9] For these reasons, Mr. Spylo is granted leave to represent Continental on these motions.

Background

[10] The Director’s Order, Order No. 8363-BPMJK6, required Continental, as a former owner of the Lands, and Mr. Spylo, as the current director and president of Continental, to take certain actions with respect to the Lands in order to “prevent, decrease or eliminate an adverse effect that may result from the presence or discharge of a contaminant in, on or under the site”.

[11] The Applicants filed two Notices of Appeal from the Director’s Order: one dated February 7, 2021, and a second, dated June 25, 2021. The Director moved to dismiss both appeals on procedural grounds.

[12] The motions in writing were heard separately by the Tribunal. The parties were represented by counsel on both motions.

[13] On each motion, the Tribunal dismissed the appeal, determining that the EPA timelines had not been met and that, based on the facts, s.141 of the EPA did not give it jurisdiction to extend the timelines.

[14] The Decision relates to the dismissal of the Appeal filed February 7, 2021.

Applicants abandon their motion for an extension of time to appeal the Decision

[15] In his oral submissions on this motion, Mr. Spylo advised the court that the Applicants wished to abandon their request for an extension of time to file their Notice of Appeal of the Decision and seek only to pursue the relief required to allow their application for judicial review of the Decision to proceed.

[16] An extension of time had been required respecting the proposed appeal because, although the Applicants had served a Notice of Appeal (of the Decision) on January 30, 2023, within the statutory appeal period, they had not filed it with the Divisional Court in Hamilton. As a result, the Applicants required an order granting them leave to file the Notice of Appeal.

[17] Based on the oral submissions made on behalf of the Applicants, I consider the appeal to have been abandoned.

Proceedings before this Court

[18] It is worth emphasizing that the only proceeding properly before this court is the JR Application. It is dated March 15, 2023 and issued by the Hamilton (Divisional Court) on March 21, 2023.

[19] As the Notice of Appeal was never filed, it was not before this court. The Applicants had also served the Director with an application for judicial review dated January 19, 2023 (the “January 19 Application”), which was also not filed with the court.

[20] The Applicants’ motion asks for an abridgment of time to allow the Applicants to file “any material associated with the judicial review”. If leave is granted, I understand that the Applicants would amend the JR Application to incorporate the relief found in the January 19 Application.

[21] The relief sought in the JR Application reads as follows:

1. The applicant (sic) makes application for:

(a) For a stay of this proceeding pending the outcome of a matter between Continental Interior Exploration Ltd. and Shannondale Developments et al. in the Superior Court of Justice in Toronto Court File No. CV-22-00682361-0000 in that Shannondale Developments were contractually responsible concerning the subject property located at 152/153 Shanley Street, Kitchener, Ontario.

[22] The JR Application was not served on the Director, who first received notice of it in an email of April 13, 2023, sent by the Hamilton Civil Office [Divisional Court].

Continental v. Shannondale Litigation

[23] In their materials on this motion, the Director provided a copy of the Continental’s statement of claim, issued June 8, 2022, Ct. File No. CV-22-682361, commenced at Toronto, as against Shannondale, and others (the “Claim”). The Claim lists the law firm of Williams & Shier Environmental Lawyers LLP, as lawyers for Continental.

[24] Briefly, the Claim asserts that:

a) Continental bought the Lands on February 27, 1998 and sold the Lands on November 12, 2019, for $1,400,000 on an “as is, where is basis”;

b) the buyers had knowledge of the presence of environmental contamination on the Lands and of the Director’s Order; and,

c) the buyers agreed to be responsible for any orders, including the Director’s Order. Among other things, the Claim seeks a declaration that the defendants are jointly and severally liable for all Orders issued by a governmental or regulatory body relating to 152 Shanley St., including the Director’s Order.

[25] The Claim was defended by statement of defence dated February 16, 2023.

[26] The Claim alleges that Shannondale has not honoured its contractual obligation to assume Continental’s obligation to comply with the Director’s Order, and to thereby protect Mr. Spylo and Continental from steps that might be taken by the Director and/or the MECP to enforce the Director’s Order.

[27] Both the JR Application itself and the submissions made by Mr. Spylo make it clear that the stay of the enforcement of the Director’s Order until Continental’s litigation with Shannondale has concluded is one of the Applicants’ primary objectives.

Chronology of Events: Tribunal

[28] The Applicants claimed that they had not been served with the Director’s Order until January 28, 2021. The Director disputed that claim, asserting that service had been effected by August 3, 2020, at the latest. However, when calculating the time to bring an appeal from the Director’s Order, the Tribunal used January 28, 2021 as the date of service.

[29] Pursuant to ss.140(1) of the EPA[^1], a person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within 15 days after service upon the person of a copy of the order, require a hearing by the Tribunal.

[30] The Applicants filed a Notice of Appeal on February 7, 2021, which they sought to amend on February 11, 2021. The Director was not given notice of either. On June 25, 2021, a new appeal was filed, notice of which was given to the Director.

[31] The Director moved before the Tribunal for an order dismissing the Appeal filed June 25, 2021, on the basis that the Tribunal did not have jurisdiction to process the appeal, which was filed beyond the EPA timelines. In response, the Applicants sought an order allowing them either to replace the February 7, 2021 Notice of Appeal with that filed on June 25, 2021, or, alternatively, extending the time to file the June 25, 2021 Notice of Appeal.

[32] The motion was heard in writing. All parties were represented by counsel.

[33] On January 14, 2022, the Tribunal granted the motion brought by the Director and dismissed the Appeal filed on June 25, 2021, for lack of jurisdiction. The Tribunal’s determined that it did not have authority under the EPA to extend the time to serve and file a Notice of Appeal except as provided under s.141.

[34] The Tribunal found that under s.141 it had authority to extend the time to serve and file a Notice of Appeal where it was just to do so because the appellant had not received notice of the order or decision. However, the evidence before the Tribunal was that Mr. Spylo and Continental had received notice of the order by January 28, 2021. The Tribunal therefore concluded that it did not have authority to extend the time to file the Notice of Appeal.

[35] The Tribunal dismissed the appeal commenced June 25, 2021.

The Decision

[36] In late 2022, the motion in writing respecting the Notice of Appeal filed on February 7, 2021was heard by the Tribunal. On this motion, the Director sought the dismissal of the appeal on the basis that notice of it had not been provided to the Director until June 25, 2021. All parties were represented by counsel.

[37] On December 30, 2022 the Tribunal issued the Decision, dismissing the appeal filed February 7, 2021.

[38] In the Decision, the Tribunal concluded that, even accepting that Continental and Mr. Spylo were not served with the Director’s Order until January 28, 2021, they had provided “no evidence to establish that” the Director had been provided with notice of the [February 7, 2021] appeal prior to June 25, 2021, which was well beyond the 15-days required by s. 140 (1) of the EPA.

[39] In dismissing the February 7, 2021 appeal, the Tribunal held that its authority under s.141 the EPA to extend the time to serve the and file a Notice of Appeal was limited to cases in which appellants “had not received notice of the order or decision”. As Continental and Mr. Spylo acknowledged receiving the Director’s Order on January 28, 2021, the Tribunal concluded that s.141 of the EPA did not apply, and it had no authority to extend the time limits.

Motions before this Court

[40] As noted above, at the hearing before this court, the Applicants abandoned their request to extend the time to appeal from the Decision. Without that relief, the appeal cannot proceed and is, in effect, abandoned.

[41] What is left to be decided on the motions is whether to grant the balance of the relief sought by the Applicants to extend the time for them to file (and amend) the January 19 Application, which was served in time, but not filed or issued by the court, or to grant the Director’s motion to dismiss the JR Application, which was filed (issued) beyond the 30-day time limit and has never been formally served.

Chronology of Events: Divisional Court

[42] As noted above, the JR Application was issued by the Divisional Court at Hamilton on March 21, 2023.

[43] On April 13, 2023, in response to a request made by counsel for the Director for copies of all documents filed, the Hamilton Divisional Court office provided the Director with a copy of the JR Application. This was the first notice to the Director of the JR Application.

[44] On April 17, 2023, counsel for the Director wrote to Mr. Spylo alerting him to the apparent error in the materials filed. Specifically, counsel advised Mr. Spylo that the [Applicants’] Notice of Appeal and Appellants’ Certificate respecting evidence needed to be filed with the Divisional Court at Hamilton; a notice of abandonment of the JR Application was required; and the Appeal needed to be perfected within 30 days or within such other deadline as the parties might agree.

[45] On April 24, 2023, the parties were advised by the Hamilton Trial Coordinator that a case conference would be scheduled before me, in my capacity as Administrative Judge of the Divisional Court in Central South Region.

May 26, 2023 Case Conference

[46] A case conference was held on May 26, 2023. Mr. Spylo attended on behalf of the Applicants and the Director was represented by counsel. An endorsement released following the case conference (the “May 26 Endorsement”) provided, in part:

1. Mr. Spylo believes that he had filed a Notice of Appeal dated January 30, 2023, and an Application for judicial review dated January 19, 2023, both in respect of the Decision;

2. Mr. Spylo was advised that none of the Notice of Appeal, the Notice of Application for judicial review; the appellant’s certificate respecting evidence; nor a copy of the Decision had been filed with the court; and

3. as a result of the failure to file these materials, there is no pending appeal, and the only proceeding before the court is the JR Application [issued March 21, 2023] which seeks only a stay of the JR Application - which relief makes no sense unless read with the January 19 Application;

4. Mr. Spylo blames his lack of filing on the information and direction he had been given by the Divisional Court office in Toronto. Counsel for the Director took issue with that explanation, asserting that she had told Mr. Spylo about the filing requirements;

5. to determine what Mr. Spylo was told by the court office, he is ordered to provide opposing counsel and this court with copies of his communications with the court offices.

[47] The May 26 Endorsement also confirmed Mr. Spylo’s advice that he wished to proceed with both an appeal and an application for judicial review. In respect of the latter, Mr. Spylo sought to rely on the Notices of Application dated January 19 and March 15, 2023. However, he also confirmed that he did not wish the Appeal or the judicial review Application to be heard until the litigation with Shannondale was complete. As leave to late-file the Appeal as well as the January 19 Application was required, Mr. Spylo was ordered to serve and file any motion for leave within 30 days of June 2, 2023 [i.e. by July 3, 2023].

[48] The record before me on the motions includes the following emails:

(a) Email dated June 1, 2023, from the Hamilton Civil Office to counsel for the Director confirming that the only document filed by Mr. Spylo and/or Continental was the (issued) JR Application; no affidavit of service of that or any other proceeding had been filed;

(b) Emails dated June 1, 2023 (purportedly in compliance with the order set out in the May 26 Endorsement), sent to the Hamilton Court office on behalf of Mr. Spylo, forwarding emails exchanged between Mr. Spylo and the Divisional Court office at Toronto showing that on January 31, 2023, the Toronto Divisional Court Office advised that Mr. Spylo’s materials needed to be filed with the Hamilton Divisional Court.

[49] These emails contradict Mr. Spylo’s claim that he followed the directions given to him by the court. For example, Mr. Spylo has not yet filed the January 19 Application.

July 7, 2023 Case Conference

[50] A further case conference was held on July 7, 2023. At this case conference Mr. Spylo asserted that he had served and filed his motion record to seeking leave or an extension of time to deliver the Appeal and January 19 Application. The Director disputed that assertion, advising that she had no record of service of the Motion Record. In addition, the court file itself contained no record that a motion had been filed.

[51] Among the materials filed on this motion, is an Affidavit of Service sworn by Mr. Spylo dated October 19, 2023 in which he states:

On June 30th, 2023, I did serve the Respondents with a copy of my Motion Record dated June 30th, 2023, a copy of my Amended Motion Record dated June 30th, 2023, a copy of my Supplementary Affidavit sworn on September 21st, 2023, and a copy of my Responding Record to Directors Motion (Supplementary Affidavit) sworn on October 18th, 2023, by email, and by uploading to the Divisional Court in Hamilton’s portal.

[52] This Affidavit of Service is, at best, unclear, and, at worst, misleading, as to the dates on which the materials were served.

[53] Based on the record, I do not accept Mr. Spylo’s statement made to me on July 7, 2023, that he had delivered his motion record.

[54] I do accept the submission of counsel for the Director that Mr. Spylo had not served his motion materials by July 7, 2023, or within 30 days of June 2, 2023 as he had been ordered to in the May 26, 2023 Endorsement.

[55] On the record before me, I find that service of the Motion Record was not effected until July 11, 2023 (after the July 8, 2023 case conference), when Mr. Spylo emailed the Director an “Amended Motion Record Final”, returnable August 24, 2023.

[56] It is also clear from the record before me, that Mr. Spylo did not file the Motion Record within the timelines as ordered in the May 16 Endorsement. Instead, on July 11, 2023, Mr. Spylo emailed a copy of his Amended Motion Record to the Trial Coordinator. She advised him that his motion had to be filed, through the portal, and that her office did not accept materials for filing.

[57] Despite the clear direction from the Trial Coordinator, Mr. Spylo did not then file the Amended Motion Record.

[58] The parties agreed to adjourn the Applicants’ motion to October 5, 2023. However, on August 22, 2023, when Mr. Spylo emailed his Motion Confirmation Form to the Trial Coordinator, confirming the adjournment to October 5, 2023, the Trial Coordinator again advised him that the Motion Record had not been filed.

[59] Based on Mr. Spylo’s Affidavit of Service October 19, 2023, I conclude that the Amended Motion Record was not filed with the court until October 19, 2023,.

[60] The above demonstrates that Mr. Spylo failed to meet the filing timelines set out in a court order and that he failed to act upon the clear direction given to him by the Trial Coordinator. I conclude that the Trial Coordinator was trying to assist him with information about filing requirements, and that the Affidavit of Service is an apparent attempt to mislead the court concerning service.

[61] While far from determinative on this motion, Mr. Spylo’s conduct is a factor to be considered when determining whether to exercise the court’s discretion in favour of the Applicants.

Evidence put forth by Mr. Spylo and Continental

[62] While not controversial and fully supported by the evidence, the chronology of events set out above was largely taken from the materials put forth by the Director.

[63] I refer below to the evidence put forth by the Applicants in the affidavits sworn by Mr. Spylo dated June 30, and September 21, 2023.

[64] In his June 30, 2023 affidavit, Mr. Spylo addresses his personal circumstances at the time he was served with the Director’s Order on January 2021. He states that at that time he was isolated at the family cottage due to the Covid-19 lockdown, awaiting major surgery, and that he filed his appeal of the Director’s order “in a timely fashion”.

[65] Mr. Spylo also asserts that the Director rejected his appeal, which, he says, the Director did not have authority to do. He says that there was “procedural interference” in his appeal to the Tribunal by employees of the MECP, who secured an undertaking from the Tribunal that no action would be taken on Mr. Spylo’s appeal.

[66] These are serious accusations.

[67] These explanations appear to have been raised, at least in part, with the Tribunal on the motion brought to dismiss the appeal, on which Mr. Spylo was represented by counsel.

[68] Mr. Spylo also offers some background to the pollution or environmental contamination found on the Lands, which, he says, existed dating back to the 1940s. Mr. Spylo asserts that when the Director’s Order was made, the Director failed to mention that the Lands were under the “exclusive possession and control” of another company and that during his “limited tenure”[^2] of the Lands, the advice given by Dr. John Cherry, retained to investigate the site, was that the site ought not to be disturbed as to do so could spread contamination to the surrounding properties. Reference to advice given by Dr. Cherry is hearsay and inadmissible as evidence on this motion.

[69] Mr. Spylo explains that in 2019, he was approached by Shannondale to purchase the Lands on an “as is where is” basis and that Shannondale agreed to assume responsibility for the environmental concerns on the Lands.

[70] Mr. Spylo advises that he had no knowledge that there was “anything amiss or wrong” with his sale to Shannondale until he was served with the Director’s Order, which required him to commence monitoring the surrounding properties immediately. Mr. Spylo states that he was then approaching the age of 76 years and suffering from health problems.

[71] Mr. Spylo confirms that he and Continental retained counsel to oppose the Director’s Order and to advance an appeal before the Tribunal.

[72] Mr. Spylo offers no independent evidence to support or corroborate the serious allegations he makes that there was some interference between the MECP and Shannondale that led to assurances given by the Tribunal that no action would be taken on Mr. Spylo’s appeal.

[73] Mr. Spylo asserts that he has found it impossible to obtain any information from court staff via telephone and, as a result, he had to arrange transportation to travel from where he lives in Kincardine, Ontario to the Hamilton Court office. This allegation is contradicted by the emails exchanged by and on behalf of Mr. Spylo with the Hamilton Court office and the Divisional Court in Toronto.

[74] Finally, Mr. Spylo repeats his request for a stay of his proceedings (the [now abandoned] appeal and the JR Application) pending the outcome of the litigation with Shannondale. At para. 19 of his June 30, 2023 affidavit, Mr. Spylo asserts that there is no prejudice to the MECP as Shannondale has embarked on a multi-million-dollar development of the Lands and is better able to monitor any contamination than is Mr. Spylo who describes himself as “a pensioner…who can barely walk, hear, feel and drive to monitor any contamination...”

[75] In his affidavit of September 21, 2023, Mr. Spylo asks, in part, that his motion be amended to include a request that the Director’s Order be stayed or dismissed on the grounds of fraud, wilful negligence, tortious interference and collusion.

[76] In this affidavit Mr. Spylo:

a) makes allegations against MECP personnel, members of the Tribunal and individuals related to Shannondale Developments;

b) makes claims respecting undertakings given by Crown counsel acting on the prosecutions in Provincial Offences Court;

c) offers conclusions he has drawn from Shannondale’s statement of defence; and

d) makes claims of his ill-health and of the financial burden he has suffered to respond to or defend against the Director’s Order and/or to enforce the terms of sale that Mr. Spylo says imposed obligations upon Shannondale.

[77] Notably absent from the evidence put forth by Mr. Spylo are specifics concerning why he did not serve and file his JR Application as he directed by court personnel or why he failed to comply with the timelines and steps that he was ordered to do by this court.

[78] Given the abandonment of the Appeal, leaving to be decided only whether to extend the time limits relevant to the JR Application, only portions of Mr. Spylo’s affidavits remain relevant.

The Law

[79] The law applicable to the issue before the court is set out in the Director’s factum, referenced below.

Statutory Authority: Timelines and Authority to Extend Timelines

[80] The JRPA was amended in 2020 to require that an application for judicial review be brought within thirty (30) days of the date of the decision sought to be reviewed. Sections 5(1) and 5(2) prescribe the timelines, and the authority to extend the timelines:

5(1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

5(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

[81] Sections 5(1) and 5(2) were considered by Divisional Court in Wahbi v Ontario College of Teachers, 2023 ONSC 3713. At paras. 14 and 15, the Court stated:

[14] The decision to extend time is discretionary; however, two mandatory conditions must be met: (1) there must be “apparent grounds for relief”, and (2) no substantial prejudice or hardship will result to any other person affected by reason of the delay. Even when these conditions are met, an order extending time is not automatic. The court has discretion, and may consider factors such as the length and reasons for the delay. The onus of meeting the conditions, and of satisfying the court that an extension should be granted, is on the moving party: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Jonker v.

Township of West Lincoln, 2023 ONSC 1948 at paras. 34-36.

[15] The “apparent grounds for relief” condition requires the Court to examine the substantive merits of the application. This is not a high test, but is at least higher than the test to strike a pleading. The test ensures that, even when there is no prejudice caused by delay alone, an extension will not be granted in a case that has no chance of success.

First Part of the Test: Are There Apparent Grounds for Relief?

[82] In determining whether to grant this discretionary remedy, the court must consider not only the length and reasons for the delay but also assess “the substantive merits of the application for judicial review.

[83] The onus rests on the Applicants to establish that there are “apparent grounds” for the relief sought. The Court may not grant leave to commence an application for judicial review unless it is satisfied that there are apparent grounds for relief, even where there is otherwise no substantial prejudice or hardship caused by the delay.”: Jonker v. Township of West Lincoln, 2023 ONSC 1928, at para 35.

Allegations of wrongdoing by the MECP: Hearsay and unsupported by the Evidence

[84] In his evidence and submissions, Mr. Spylo appears to blame the Director’s Order and the Decision on the “tortious interference, obstruction, fraudulent misrepresentation” of the MECP whose actions were “part of a broader scheme by the Respondents to undermine their appeal [the Applicants’] to the land Tribunal and ultimately render them [the appeals] statute-barred”.

[85] At paragraph 12 of Mr. Spylo’s October 19, 2023 affidavit, he describes that when he sold his interest in the Lands, he advised the MECP that the purchaser would take over all matters related to the environmental issues. The last sentence reads: “Instead of being praised I am being attacked by four lawyers and the Ministry’s Investigator Warren Korol in three different court cases concerning the same issue all because of the tortious interference by Warren Korol” and the MECP.

[86] In his factum, Mr. Spylo advances a serious accusation of “tortious interference” by Mr. Korol, referring to paragraph 13 of his October 19, 2023 affidavit, which reads:

13. I subsequently contacted Shannondale and was advised that Warren Korol from the Ministry wanted me to monitor the surrounding properties and not Shannondale and the Ministry’s law superseded my contractual agreement. I was advised by my son Adam Spylo and verily believe that Shannondale was sued by an automotive shop in the area because Shannondale’s development caused contamination to the automotive site. Furthermore, Shannondale had settled the matter financially. These actions confirmed Shannondale’s acknowledgement to their responsibilities to the offsite contamination pursuant to the Agreement of Purchase and Sale with the Defendants. These facts were never disclosed by the Warren Korol or the Ministry. (sic)

[87] Paragraphs 12 and 13 of Mr. Spylo’s October 19, 2023 affidavit are replete with hearsay and bald allegations, which are not supported by any independent or corroborative evidence. Other examples of improper and unsupported allegations are found in the Applicants’ factum. For example, the first paragraph under Part III of the factum contains new allegations of fraud and conspiracy, that, again are not found in the evidentiary record, reads, in part:

“the Applicants interpret the Ministry’s position as attempting to justify actions they consider to be tortious interference, obstruction, fraudulent misrepresentation and the issuance of a draconian order. They perceive these actions as part of a broader scheme by the Respondents to undermine their appeal to the land Tribunal and ultimately render them statute-barred the Applicants emphasize that these alleged illicit activities occurred without their knowledge, and they contend that the Land Tribunal and the Divisional Court were also unaware of these developments. This interpretation underlies the Applicant’s belief in the conspiracy against them, which they argue significantly impacted the fairness and integrity of the legal process.”

[88] I give no weight to these very serious and inflammatory allegations. They are not supported by any reliable, independent, or corroborated evidence, and are inconsistent with the record before this court.

[89] The record before me does not allow me to make any factual findings concerning what the MECP and/or its investigator did or ought to have done and I make no such findings. On the same basis, I reject arguments advanced in the Applicants’ factum that are based on bald assertions, not grounded in the evidence. I give no weight to any factual allegations that are based on events not found in the evidence before this court and cloaked as “submissions” in the Applicant’s factum. Examples of this can be seen at paras. 14, 15, 16, 17, 18, 20, of the factum.

Failure to address the basis of the Decision: Lack of Jurisdiction

[90] Separately, and more importantly, the Applicants’ arguments focus on the merits of their appeal from the Director’s Order but fail to address whether the Tribunal acted reasonably and correctly in concluding that it did not have jurisdiction to hear the appeal, which was not heard or decided on its merits.

[91] Specifically, the Applicants have failed to reference any statutory or other authority that might challenge the Tribunal’s determination that it lacked jurisdiction to hear the appeal; it is the merits of that issue that the Applicants needed to address, both through evidence and legal argument: Yan v. Law Society of Ontario, 12023 ONSC 1290.

[92] Even if the JR Application were to be read together with the January 19 Application, it would not assist the Applicants, who have provided no reliable evidence nor any legal authority to put into question the Tribunal’s determination of its lack of authority. Also, in the Decision, the Tribunal states that in finding that notice of the February 7, 2021 Notice of Appeal had not been given to the Director in time, it relied on Mr. Spylo’s own affidavit in which he admitted that the Director did not receive notice of the appeal as required by s. 140(1) of the EPA by reason of the typographical error made by Mr. Spylo when entering the Director’s address.

No Evidence of Procedural Unfairness

[93] The Director submits that there is no evidentiary foundation to any allegation made by the Applicants that the hearing before the Tribunal was procedurally unfair because they were denied the opportunity to make submissions to the Tribunal. I accept and agree with those submissions.

Relief requested in the JR Application is Circular

[94] Notwithstanding any reference in these reasons to the January 19 Application, the only proceeding before this court is the JR Application in which the relief sought is limited to a stay of that very proceeding.

[95] The Director submits, and I agree, that the relief requested in the JR Application – a stay of the proceeding itself – is circular and an “absurdity” and for that reason, the JR Application has no merit.

[96] In the Amended Notice of Motion and in submissions, the Applicants have requested that the JR Application, the Decision, and the Director’s Order be stayed, pending the outcome of unrelated actions. The request for that relief must be taken into account when assessing the overall merits of the JR Application and is also a factor to consider when determining if this court should exercise its discretion in favour of the Applicants.

Conclusion: No Apparent Grounds for Relief

[97] For the reasons set out, I conclude that the Applicants have failed to establish that there are “apparent grounds for relief” or that there is merit to the JR Application and I find that the JR Application has no chance of success.

Other considerations: Length and Reasons for Delay

[98] While my conclusion above is sufficient to determine the motion, I also consider the length of and reasons offered for the delay, factors which may be considered as noted in Wahbi.

[99] As noted, the January 19 Application has not yet been filed, so that delay is ongoing. The JR Application was filed on March 15 and issued on March 21, 2023; a delay of approximately six weeks beyond the 30-day filing deadline under s. 5(1) of the JRPA. I do not consider that to be an overly lengthy delay.

[100] However, the Applicants do not provide any meaningful explanation or reasons for the delay in serving or filing the JR Application. The explanation offered by Mr. Spylo, that he did as directed by the court offices, is contradicted by the emails he exchanged with the court, and also by the information provided by counsel for the Director. Mr. Spylo’s claim that ill-heath and old age caused him to delay filing is also unsatisfactory as he fails to explain how those prevented him from meeting the filing deadlines.

Second Part of the Test: Will substantial prejudice or hardship result by reason of the delay?

[101] Again, although failure to meet the first part of the test is enough to determine the motion, I have also considered the second part of the test set out in s. 5(2): Will substantial prejudice or hardship result to any other person affected by reason of the delay?

Provincial Offences Act Proceedings Against Continental and Mr. Spylo

[102] The Director filed the affidavit of Joanna Aloy, a business professional employed by the MECP, in support of the Director’s motion to dismiss the JR Application. In her affidavit, Ms. Aloy states that there are proceedings in the Provincial Offences Court arising from Mr. Spylo and Continental’s failure to comply with the Director’s Order and that granting leave to late file an appeal from the Director’s Order could have an impact on the prosecution, potentially delaying it beyond the Jordan threshold of 18 months.[^3]

[103] The Director submits that prejudice is presumed from delay and that in this case, delay would cause actual prejudice, given the effect of the JR Application upon the enforcement of the Director’s Order and the real possibility that delaying the prosecution beyond the Jordan threshold could jeopardize the prosecution, resulting in harm to the public interest. I agree.

[104] The evidence is unchallenged that the Applicants have not complied with the Director’s Order, which requires them to take certain actions with respect to the Lands to address further environmental contamination.

[105] It appears that at the heart of his submissions is Mr. Spylo’s assertion that the MECP is wrong to pursue him and Continental and is interfering with their contract with Shannondale - a multi-million-dollar company – choosing instead, to pursuing Mr. Spylo, a 76-year-old pensioner, who is in ill-health. That assertion can be given no weight given that the Applicants have failed to provide any evidence to support them, not even providing a copy of the contract.

[106] I do not accept that seeking to enforce the environmental protections contemplated by the EPA can be considered prejudicial or tortious. Furthermore, dismissing the Applicants’ motion will not prevent them from defending the proceedings in the Provincial Offences Court nor prevent Continental from pursuing its remedies against Shannondale and the other defendants named in the Claim.

[107] By contrast, the record before this court readily supports the submissions put forth by the Director concerning the likely prejudice that would occur if the Applicants’ motion were granted, and the time to bring an application for judicial review were extended.

Conclusion

[108] I have considered the two-part test under s. 5(2) and the factors relevant to the court’s exercise of the discretionary relief sought by the Applicants. I conclude that the Applicants have not met the onus on them: I am not satisfied that there are apparent grounds for relief and that no substantial prejudice will result to any person affected by reason of the delay.

[109] I conclude that the Applicants’ motion should be dismissed and that that the Director’s motion should be granted.

Orders Made

[110] The JR Application is dismissed.

[111] Although not properly filed, the January 19 Application is also dismissed, with prejudice.

Costs

[112] Costs are to follow the event: the Director is entitled to costs of their successful motion and to the costs of successfully opposing the Applicants’ motion, including the costs incurred to defend the Applicants’ motion to extend the time for filing the Appeal, which relief was abandoned in the course of the hearing of this motion.

[113] I would urge the parties to attempt to reach an agreement on costs. If they are unable to do so, then costs submissions shall be made as follows:

1. Within 21 days of the date of the release of this decision, the Director shall serve and file their written costs submissions, not to exceed three pages, double-spaced, together with their draft bill of costs, and copies of any relevant offers to settle.

2. Within 14 days of the service upon them of the Director’s costs submissions, the Applicants shall serve and file their responding submissions, not to exceed three pages, double-spaced, together with their draft bill of costs, and copies of any relevant offers to settle.

[114] Submissions are to be served and filed, via email, through the trial coordinator at elisabeth.illes@ontario.ca , who is asked to forward them to my attention.

[115] If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and costs will not be determined by the court.

Justice L. Sheard

Date: January 2, 2024

CITATION: Continental v. Min. of Environment, 2023 ONSC 5 COURT FILE NO.: DC-23-191-JR

DATE: 2024/01/02

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Continental Imperial Exploration Ltd. And Andrew Spylo

Applicants/Responding Parties

• and -

The Director, Minister of Environment, Conservation and Parks for Ontario

ENDORSEMENT

L. Sheard J.

DATED: January 2, 2024

[^1]: This section is found in Part XIII of the EPA, entitled “Appeals to Tribunal”.

[^2]: The Claim says that the Lands were bought in 1998 and sold in 2019. There is no evidence to support or explain Mr. Spylo’s assertion that he had a “limited tenure” of the Lands.

[^3]: In R. v. Jordan, 2016 SCC 27 the Supreme set a ceiling of 18 months for cases going to trial in the provincial court, and that if the delay exceeds the ceiling, the Crown must establish the presence of exceptional circumstances, failing which the delay is unreasonable and a stay will follow.