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IMICO neighbours feel punished for wanting city held accountable

Owners of two properties adjacent to the city-owned former IMICO property appeal provincial order to mitigate soil and groundwater contamination
The former IMICO site at 200 Beverly St. Tony Saxon/GuelphToday file photo

Note: A city spokesperson insists there are no outstanding ministry orders regarding the municipally owned property at 200 Beverly St. and states all three properties have a history of industrial use, with the source of contamination not yet determined.

A pair of property owners believe they’re being punished for trying to force the province to hold the City of Guelph responsible for contamination flowing from the former IMICO property onto their property.

In filings with the Ontario Land Tribunal (OLT), which hears appeals for a variety of provincial legislation, the owners of 490 York Rd. and 10 Kingsmill Ave. want the tribunal to revoke a Ministry of the Environment, Conservation and Parks director’s order requiring them to investigate and mitigate soil and groundwater contamination.

They point to the neighbouring, city-owned property at 200 Beverly St. as the source of said contamination and argue that if the ministry forced the city to comply with previous orders on its property, there would be no need for such efforts on theirs.

None of the allegations have been tested or proven through formal processes.

"The ministry plans to defend the director’s orders that have been appealed to the Ontario Land Tribunal," spokesperson Lindsay David said via email in response to questions from GuelphToday. "It would not be appropriate to comment any further as these matters are before the tribunal."

In their appeals, the property owners say the director’s order is akin to what’s known as a SLAPP (strategic lawsuits against public participation), which can be meant to intimidate opponents, deplete their financial resources and deter others from participating in discussions on matters of public interest. 

They are prohibited by law.

“SLAPPs are lawsuits against individuals or organizations that speak out or take a position on an issue of public interest,” states the Kingsmill appeal. “If the ministry were a private party, the director’s order would be viewed as a SLAPP and would be stayed under Ontario's Protection of Public Participation Act, 2015 and Courts of Justice Act.” 

The director’s order was handed down Jan. 31.

The appellants believe it was issued in response to them being granted approval from the OLT last fall to appeal the ministry’s decision to issue a certificate of property use (CPU) to the city. 

A CPU identifies risk mitigation measures deemed necessary by ministry officials aimed at ensuring there are no adverse impacts from contaminants on site. 

The city’s CPU for 200 Beverly St., which is under appeal, requires the installation, inspection and maintenance of hard cap and fill cap barriers on the property; prohibiting construction without a soil vapour intrusion assessment and/or built with a vapour mitigation system; implement a groundwater monitoring program; and develop a health and safety plan for any intrusive activities that could potentially have contact with contaminants.

It further prohibits the planting of fruits and vegetables for consumption (unless in above ground containers isolated from surface conditions), as well as the use of groundwater in, on or under the property.

If upheld as-is, the CPU wouldn’t require the city to prevent contaminated groundwater from migrating onto their sites, the appellant's say.

“The apprehension of bias or retaliatory exercise of regulatory powers cannot be ignored in the context and timing of the CPU appeal,” states the appeal from Sherwood Forest Investments, which owns the property at 490 York Rd. “The director’s order, whether intentionally or not, appears to be retaliatory, unjust, and aimed at deterring or punishing Sherwood for its role in challenging the CPU in a public participation process.” 

No date for that appeal has been set. Nor has a hearing date been set for the director’s order appeal.

A deal to sell the land for redevelopment fell through in late 2020. That agreement was between the City of Guelph, Habitat for Humanity and Waterloo-based developer ARQi R&D Inc. It would have seen a variety of residential, light industry, micro retail, artisans, green space and affordable housing options planned.

The former International Malleable Iron Company (IMICO) property has been vacant since the 1980s. The City of Guelph took possession of the site in 1997.