Canada: Northstar/ Baker Order: Government Doesn’t Have To Explain Its Case

Last Updated: July 17 2013
Article by Dianne Saxe

The Environmental Review Tribunal has ruled that the Director, Ministry of the Environment, doesn't have to specify its basis for imposing personal liability, by order, on the former directors and officers of two Northstar companies (Baker v. Director), at least not now. Despite uncontradicted evidence that the individuals affected cannot understand what, if anything, they are alleged to have done wrong to justify a $15 million cleanup order, and cannot identify which documents are relevant to the Order, the Tribunal refused to order the Director to give particulars of her case.

The Tribunal declined to follow civil, criminal and administrative cases about the right of a party to know the case against them, at an early stage. Instead, the Tribunal ordered both sides to produce all documents "relevant" to the Order. The Tribunal expressed some optimism that the exchange of documents will clarify what the case is about, by the time the hearing begins.

Here are the key excerpts from the decision, which should be posted soon on the ERT website:

"Refused particulars

- Tribunal accepts that principles set out in International Nickel should be considered when determining whether to exercise its discretion to order particulars. However, the timing of such an order must be considered in the context of the Tribunal's practice and procedure as an administrative tribunal. In this regard, the Tribunal finds that the Tribunal's process is not analogous to that of a proceeding before the civil or criminal courts.

[58] Consequently, although the Tribunal accepts that discovery is not a substitute for provision of particulars, the Tribunal does not accept that it ought to apply any presumption, which may exist under the procedural rules and practice of the civil or criminal courts, that particulars ought to be provided prior to the disclosure of relevant documents, as required under Rule 166.
[59] Because:

? the Tribunal's hearing is a new hearing, where the Tribunal may substitute its opinion for that of the Director;

? the Tribunal adjudicates in the public interest, and, therefore, requires complete evidence to assist the Tribunal in fulfilling its statutory mandate; and

? the parties may require disclosure to enable them to fully particularize the grounds and material facts on which they will rely at the main hearing;

the Tribunal finds that, in the normal course of events, all parties should first have the opportunity to obtain full disclosure of all relevant documents, before they are asked to state the particulars on which they will rely at the main hearing. The completion of this disclosure process and subsequent formulation of an issues list, often achieves the purposes of particulars, which, as stated in Preserve Mapleton, is to inform the other parties of the case they have to meet, determine the issues to be heard, limit the generality of the claim, make clear what is unclear, and allow the parties to determine whether an appeal discloses a legally valid case. Therefore, an order for provision of particulars would not be required. That this often occurs, is borne out by actual practice. As the Director has pointed out, there are very few Tribunal proceedings where an order for particulars has been required.
[60] The Appellants argue that provision of particulars can and should be ordered, prior to the disclosure of documents, because the Director is not restricted from amending the Director's case as the proceeding progresses. However, the Tribunal finds that this approach ought to be avoided. A party generally should not be required to provide particulars until that party is in a position to make an informed and final decision on what those particulars will be. Otherwise, multiple versions of the particulars may be produced. This approach would not promote the purposes stated in Rule 1, that the Tribunal's process be understandable for the parties, and that efficiency of the Tribunal's proceeding be assured.
...
[66] In summary, the lack of particularity asserted by the Appellants relates to the statutory grounds cited by the Director as authority for issuing the Director's Order, namely, s. 17, 18, and 93 of the EPA. Underlying this assertion is the undisputed fact that none of the Appellants were officers and/or directors of either corporation at the time the contaminants were initially discharged into the environment, nor did any of them personally own the Site or the contaminants. It is also not disputed that the Director relies on corporate registration records as the basis for the Director's conclusion that the Appellants had management or control of Northstar Inc. and/or Northstar Canada and the Site.
....
Re s. 17 – paras. 67-70.
The Appellants assert that the Director's Order does not provide sufficient particulars to answer the question: What is it that the Appellants have 'caused or permitted'?
...

Hence, in this case, the Tribunal accepts that the Director should be entitled to the disclosure required under Rule 166, in order for the Director to answer this question.
...

the Tribunal finds that the common definitions of the terms "cause" and "permits", are sufficiently clear on their face, to allow the Appellants to determine relevancy.

Re s. 18 – paras. 71-75

The Appellants submit that the Director's Order does not specify the bases supporting the Director's assertion that the Appellants are persons who had management or control of the Site or any undertaking in relation to remediation work referenced in the Director's Order.
...
[72] In response, the Director relies upon Currie v. Ontario (Ministry of the Environment) (2011), 60 C.E.L.R. (3d) 91 ("Currie ") and cases cited therein to support the Director's assertion that there is well established Tribunal jurisprudence which presumes that an officer or director of a corporation had management or control of a corporation's undertaking or property for purposes of an order issued under s. 18 of the EPA, unless the officer or director demonstrates otherwise. The Tribunal notes that the determination of this issue is a matter for the main hearing. At that time, the Tribunal will consider how the findings in Currie and the cases cited therein, should be applied in this case. However, for purposes of identifying documents to be disclosed under Rule 166, the Tribunal accepts that Currie does describe established jurisprudence regarding the interpretation of the terms "management" and "control". As such, this jurisprudence should guide the parties' decisions regarding which documents are relevant for purposes of disclosure.

...

[74] The Tribunal finds that the analysis in Currie and cases cited therein provides considerable guidance respecting the meaning and scope of the terms "management and "control" as used in s. 18 of the EPA. As such, the Tribunal finds that the Director's Order, when read in conjunction with this jurisprudence, provides sufficient clarity to allow the Appellants to determine relevancy for purposes of providing disclosure under Rule 166. In this regard, the Tribunal notes that the Director's Order does not rely on the status of the Appellants as directors and officers of the corporations, as the sole basis for asserting that they had management or control. Part 2.3 of the Director's Order also states:
Northstar's publicly released Annual Reports for 2008, 2009 and 2010 estimated that the future cost of the remediation of pollution related to the Site amounted to several million dollars. Nevertheless, the funding of such future work was not secured by Northstar or Northstar Canada through a trust account or other means.

[75] In further support of this conclusion, the Tribunal notes that the discussion of the terms "management" and "control" in Currie and the cases cited therein, underscores that these are fairly general terms that can have application in varied circumstances. This reinforces the Tribunal's conclusion that it is reasonable to expect that, in this case, the parties will require the broad disclosure required under Rule 166, in order to make informed decisions respecting the particulars on which they will rely at the hearing.

Re s. 93 – paras. 76 – 77

[77] The Appellants submit that the Director's Order does not specify the bases supporting the Director's assertion that the Appellants are persons who had control of the pollutant. The Tribunal finds that the common definition of this term is sufficiently clear on its face, to allow the Appellants to determine relevancy. Furthermore, the Tribunal also notes the term "control" is used in both s.18 and 93 of the EPA. Whether this term should be interpreted synonymously in both sections, is a question to be decided at the main hearing. Certainly, it is arguable that it could be so interpreted. Consequently, the Tribunal finds that the findings in Currie and the cases cited therein respecting the term "control" should guide the parties' decisions regarding which documents are relevant for purposes of disclosure, as it relates to the particulars on which they will rely at the main hearing in respect of s. 93 of the EPA. For these reasons, the Tribunal finds that its analysis and conclusion in respect of s.18, also apply to s. 93.

Tribunal rejects submission that if particulars are not provided, will result in unnecessary and expensive document production.

Conclusion
[84] The Tribunal expects that, upon completion of disclosure under Rule 166, the parties will co-operate in providing any necessary statements or clarification of any of the matters falling within the definition of "particulars" under the Tribunal's Rules. However, any party should be able to make a future request for provision of particulars, if necessary. Consequently, the Tribunal's dismissal of the Appellants' motions requesting particulars, is made without prejudice to a future request for provision of particulars, once the disclosure required under Rule 166 has been completed."

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