ONTARIO - SF Partnership LLP - mr1.pdf · court file no. 07-cl-7162 ontario superior court of...

Court File No.: 07-CL-7162

ONTARIOSUPERIOR COURT OF JUSTICE

(Commercial List)

BETWEEN:

ROMSPEN HOLDINGS INC., UPPER CANADA PROPERTIES INC., ROMSPENINVESTMENT CORPORATION, and 1023877 ONTARIO INC.Applicants

-and-

1303862 ONTARIO INC., 2001824 ONTARIO INC., 1281126 ONTARIO INC,HALDIMAND-NORFOLK SANITARY LANDFILL INC., WILUAM COURTNEY, andSHARON CAMPBELL, ESTATE TRUSTEE OF THE ESTATE OF FRANCIS CAMPBELL

Respondents

MOTION RECORD(RETURNABLE TUESDAY NOVEMBER 27, 2007)

SOLOMON, GROSBERG LLPBarristers and SolicitorsSuite 1704, 55 University AvenueToronto, Ontario M5J 2H7

David Preger, LSUC #36870L(416) 366-7828 (telephone)(416) 366-3513 (fax)

CARSON GROSS CHRISTIE KNUDSENBarristers and SolicitorsSuite 600 - 10 Carison CourtToronto, Ontario M9W 6L2

David Rubin LSUC #20759Q

(416) 361-0900 (telephone)(416) 361-3459 (facsimile)

Solicitors for The Receiver, SF Partners Inc.

Court File. No.: 07-CL-7162


(Commercial List)

BETWEEN:

ROMSPEN HOLDINGS INC., UPPER CANADA PROPERTIES INC., ROMSPENINVESTMENT CORPORATION, and 1023877 ONTARIO INC.

Applicants

-and-

1303862 ONTARIO INC., 2001824 ONTARIO INC., 1281126 ONTARIO INC.,HALDIMAND-NORFOLK SANITARY LANDFILL INC., WILLIAM COURTNEY, andSHARON CAMPBELL, ESTATE TRUSTEE OF THE ESTATE OF FRANCIS CAMPBELL

Respondents

INDEX

Tab Document

Page No.

1. Notice of Motion dated November 26,2007 1-16

2. Affidavit of Gregory D. Ferraro sworn November 22, 2007 17-29

A Exhibit “A” - Copy of Curriculum Vitae 30.36

3. Affidavit of Romeo Di Battista, Jr. sworn November 23, 2007 37-48

A Exhibit “A” - Picture of protestors taken November 14, 2007 49-50

B Exhibit “B”- Picture of protestors taken November 14, 2007 51-52

-3-

C Exhibit “C”- Copy of letter from Carson Gross Christie Knudsen 53-55to Inspector Maclean, Ontario Provincial Policedated November 23, 2007

D Exhibit “D”- Picture of trucks unable to pass the inter- 56-57section taken November 20, 2007

E Exhibit”E”- Picture of trucks unable to pass the inter- 58-59section taken November 20, 2007

F Exhibit “F’- Picture of pick-up truck blocking first truck 60-61taken November 20, 2007

G Exhibit “G”- Copy of report by Karen Best in. the November 62-6621st, 2007 electronic edition of the DunnvileChronicle

4. Affidavit of Sophia Erum Zaidi sworn November 25, 2007 67-76

A Exhibit “A”- Copy of Affidavit of Anne Vallentin sworn 77-85July22, 2005

B Exhibit “B”- Copy of selected pages from the Cross- 86-91Examination of Anne Vallentin on her Affidavitsworn July 22, 2005

C Exhibit “C”- Copy of the Presentation to Haldimand 92-96Council in Committee from HALT datedNovember 22, 2004

D Exhibit “1)”- Copy of Affidavit of Anne Vallentin sworn 97-107February 28, 2005

E Exhibit “E”- Copy of E-mail from Mr. Tidball 108-132of Miller Thomson LLP to Carson GrossChristie Knudsen with attachments

F Exhibit “F”- Copy of Affidavit of Michelle Fernando 133-136Sworn August 29,2005

G Exhibit “G”- Copy of the Articles of Incorporation of HALT 137-141

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H Exhibit “H”- Copy of the article written by Bill Jackson 142-145Appearing in November 21,2007 editionof The Regional News This Week

Exhibit “I”- Copy of letter from Carson Gross Christie 146-152Knudsen to Johann Elizabeth (Jodi) Orr,Haldimand Against Landfill Transfersdated November 23, 2007

Court File No. 07-CL-7 162


COMMERCIAL LIST

BETWEEN:

ROMSPEN HOLDINGS INC., UPPER CANADA PROPERTIES INC., ROMSPENINVESTMENT CORPORATION and 1023877 ONTARIO INC.

Applicants- and *

1303862 ONTARIO INC., 2001824 ONTARIO INC., 1281126 ONTARIO INC.,HALDIMAND-NORFOLK SANITARY LANDFILL INC., WILLIAM COURTNEY and

SHARON CAMPBELL, ESTATE TRUSTEE OF THE ESTATE OF FRANCISCAMPBELL

Respondents

NOTICE OF MOTION

SF PARTNERS INC. (the “Receiver”), in its capacity as receiver of the assets and undertakings

of the Respondent, Haldimand-Norfolk Sanitary Landfill Inc. (“Haldimand”), will make a

Motion for Directions to a Judge of the Commercial List in open court, on Wednesday, the 28th

day of November, 2007, at 10:00 a.m, or as soon after that time as the Motion can be heard at

330 University Avenue, in Toronto, Ontario.

PROPOSED METHOD OF HEARING: The Motion is to be heard orally.

THE MOTION IS FOR:

1. An Order that service of the Receiver’s Motion Record and the Third Report by sending

copies in electronic format attached to an e-mail sent to John Tidball, at Miller Thomson

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002LLPütidball @millerthomson.com, Anne Vallentin [ava1lentingmail.com) and Johann

Elizabeth Orr also known as Jodi Orr[[email protected]) be validated as good and

sufficient service upon each of Haidimand Against Land Transfers, Anne Vallentin, and

Johann Elizabeth Off, also known as Jodi Off, respectively, upon all members of

Haldimand Against Land Transfers, as well as their servants, agents, or anyone acting

under their direction whose identity is unkriown(collectively, the “HALT Protesters”).


copies in electronic format attached to an e-mail sent to Aaron

Det1or[adetlorsympatico.ca], Brian Doolittle[ganowaexeculink.com), Hazel Hill

[email protected]), Rick Hill [email protected]] be validated as good and

sufficient service upon each of Haudenosaunee Confederacy Chiefs Council, Brian

Doolittle, Hazel, Hill, Rick Hill, Ruby Moatour, Philip Skye, Clyde Powless, as well as

their servants, agents, or anyone acting under their direction whose identity is

unknown(collectively, the “Six Nations Protesters”).


copies in electronic format attached to an e-mail sent to Harvin Pitch, Teplitsky Colson

LLP [hpitchteplitskycolson.com be validated as good and sufficient service upon each

of Romspen Holdings Inc., Upper Canada Properties Inc., Romspen Investment

Corporation, and 1023877 Ontario Inc.


copies in electronic format attached to an e-mail sent to Raymond M. Slattery, Minden

Gross LLP [[email protected]], Leo Klugleoklugattorneyon.aibn.com],

003

Michael Valente, Scarfone Hawkins LLP[[email protected], Michael Bordin, Evans

Sweeney Bordin LLP[[email protected]], C. Edward McCarthy, McCarthy &

Fowler[cemccarthy@,mountaincable.net], Robert J. van Kessel, Lawrence, Lawrence,

Stevenson LLP[[email protected], Christopher

[email protected]], and Ronald Carr, Attorney General of Ontario,

Crown Law Office — [email protected], respectively, be validated as good

and sufficient service upon each of:

(a) 2001824 Ontario Inc., 128 1126 Ontario Inc., and William Courtney;

(b) Garpen Enterprises Inc.;

(c) Donald Shropshall and Wayne Shropshall;

(d) Ronald 3. Faust, Edwin S. Lax, Estate of Hilda Shropshail, by its Estate

Trustees, Norman Albert Shropshall and Arthur Ronald Shropshall;

(e) R. F. Almas Company Ltd.;

(f) 1303862 Ontario Inc. and Sharon Campbell, Estate Trustee of the Estate

of Francis Campbell;

(g) Six Nations of the Grand River Territory Elected Band Council; and

(h) Ministry of the Environment and Her Majesty the Queen in right of the

Province of Ontario.

5. An order that service of the Receiver’s Motion Record and the Third Report by sending

copies by fax to 1-905-772-5815 addressed to Inspector David McLean, Detachment

-4- 004

Commander, Haldimand County be validated as good and sufficient service upon the

Ontario Provincial Police.

6. An Order, if necessary or required, that the time for service arid filing of the Receiver’s

Motion Record and the Third Report be abridged so that the Motion is properly

returnable on Tuesday, November 27, 2007 today and dispensing with further service

thereof.

7. An Order that the Third Report of the Receiver be approved.

8, An Order granting an interim and interlocutory injunction restraining the HALT

Protesters and the Six Nations Protesters from:

(a) interfering with the use of roadways known municipally as Brooks Road and

Ontario Provincial Highway #3[also known as Talbot Road], formerly in the

Township of North Cayuga, now known as the Corporation of. Haldimand

County, by the Receiver, its servants, agents, contractors or subcontractors or by

any motor vehicles carrying construction materials or waste to the Edwards

Landfill Site at 160 Brooks Road, Cayuga, Haldimand County;

in any way obstructing access to or free and unimpaired travel along the roadways

known municipally as Brooks Road and Ontario Provincial Highway #3also

known as Talbot Road], formerly in the Township of North Cayuga, now known

as the Corporation of Haldimand County by the Receiver, its servants, agents,

contractors or subcontractors or by any motor vehicles carrying construction

-5-

materials or waste to the Edwards Landfill Site at 160 Brooks Road, Cayuga,

Haldimand County;

(c) in any way preventing the Receiver, its servants, agents, contractors or

subcontractors, or any motor vehicles carrying constniction materials or waste to

the Edwards Landfill Site at 160 Brooks Road, Cayuga, Haldimand County from

using the roadways known municipally as Brooks Road and Ontario Provincial

Highway #3[also known as Talbot Road), formerly in the Township of North

Cayuga, now known as the Corporation of Haldimand County for the purpose of

entering or accessing the Edwards Landfill Site at 160 Brooks Road, Cayuga,

Haldimand County;

(d) interfering in any way with the Receiver’s management and operation of the

Edwards Landfill Site pursuant to the September 10, 2007 Order of Justice

Ledennan;

(e) interfering with the business, contractual or economic relationslips between the

Receiver and anyone in privity of contract with the Receiver; or

(f) ordering, aiding, abetting, counselling or encouraging in any manner whatsoever,

any person to commit the commission of the unlawful acts referred to in

subparagraphs (a) through (e) above, inclusive,

until the trial of any issue that may be directed by this Honourable Court or until such

time as this Honourable Court may direct.

-6- 006

9. An Order that the HALT Protesters and the Six Nations Protesters and any other person

having notice of this Order be restrained from hindering, interfering with, intimidating,

physically obstructing or otherwise impeding any of the operations of the Edwards

Landfill Site being carried on by the Receiver, its servants, agents, employees,

contractors or subcontractors relating to the receipt of waste until the trial of any issue

that may be directed by this Honourable Court or until such time as this Honourable

Court may direct.

10. An Order that the HALT Protesters and the Six Nations Protesters remove any vehicles

owned, placed or maintained by them across Brooks Roa4 or any other obstructions

placed on Brooks Road, owned and maintained by the Corporation of Haldimand County,

preventing access to the Edwards Landfill Site at 160 Brooks Road, Cayuga, Haldiniand

County.

11. An Order directing the Sheriff of Haldimand County forthwith to attend at the

intersection of Brooks Road and Ontario Provincial Highway #3 in Cayuga, Haldimand

County and at that time using all reasonable means, including the use of bullhorn or

loudspeakers, read aloud the provisions of any such injunction Order as set out above and

request that any HALT Protesters or Six Nations Protesters located at the said

intersection obey the provisions of any such injunction Order as set above.

11, An Order directing the Sheriff of Haldimand County forthwith after complying with the

requirements of the direction set out in paragraph 10 above, to remove any of the HALT

Protesters or Six Nations Protesters who refuse the request of the Sheriff to obey the

provisions of any such injunction Order as set out above.

- 007

12. An Order directing and requiring that any peace officer of the Ontario Provincial Police

shall, at the request of the said Sheriff of Haldimand County accompany the said Sheriff

and assist in the execution of any injunction Order as set out above, including assistance

to the said Sheriff of Haldimand County in carrying out any of the directions to the said

Sheriff of Haldimand County to remove any of the HALT Protesters or Six Nations

Protesters who refuse the request of the Sheriff to obey the provisions of any such

injunction Order as set out above.

13, AnOrderthat:

(a) the posting of any Court Order at the Municipal offices of the Corporation of

Haldimand County at 45 Munsee Street North, P.O. Box 400, Cayuga, Ontario;

(b) the sending of a copy of any Court Order in electronic format attached to an e

mail sent to John Tidball, at Miller Thomson LLPfjtidball @millerthoinson.eom),

Anne Vallentin avaflentingmail.conii and Johann Elizabeth Orr also known as

Jodi Orrjjorrlinetap.coni, and

(c) the sending of a copy of any Court Order in electronic format attached to an e

mail sent to Aaron Detlor[adetlorsympatico.caJ, Brian

Doolittle[ganowaexecu1ink.corn), Hazel Hill [[email protected]),

Rick Hill [[email protected])

shall be good and sufficient service upon the HALT Protesters and upon the Six Nations

Protesters.

14. Such further relief as counsel may advise and this Honourable Court pennit.

-8- 008

THE GROUNDS FOR THE MOTION ARE:

1. The Receiver was appointed by Order of Justice Lederman dated September 10, 2007.

2. Haldimand owns a landfill in Cayuga, Haldimand County, Ontario. The landfill was

purchased in 2001 and from 2001 through 2007, Haldimand proceeded through various

steps in order to obtain regulatory approval to operate the landfill.

3. In the fall of 2006, construction commenced on the landfill site in order to have it comply

with the current regulatory standards. The construction included, inter alia, digging a 30

foot hole over a landifil area of 4.5 acres and installing a liner in which waste leachate

would collect (the “Stage One Cell”).

4. The construction project experienced significant delays resulting in increased costs.

Additionally, on July 8, 2007, Frank Campbell, one of the principals of Haldimand, and

its directing mind, passed away.

5. At the of Mr. Campbell’s death, IThldimand was facing a financial crisis and was in need

of funding to complete construction and to post financial assurance for future compliance

with the operating conditions with the Ministry of the Environment. Various proposals

initiated by Haldimand’s shareholders to arrange the required funding were not

successful and construction came to a standstill.

6. By early September, 2007, the project was in a crisis state. Construction of the Stage

009

One Cell needed to be completed and other preconditions to commencing receiving new

waste still needed to be satisfied. These included completion of Brooks Road upgrade

work to the satisfaction of Haldimand County, the submission of a Site Preparation report

to the Hamilton District Office of the Ministry of the Environment, and the posting of a

letter of credit for $606,599.00 with the Director, Approvals Branch, Ministry of the

Environment.

7. The liner system for the Stage One Cell needed to be completed expeditiously as with the

onset of fall and the possibility of frost, it was necessary to protect the engineered clay

liner underlying the Stage One Cell from frost damage, failing which the integrity of the

clay liner would be compromised causing significant additional costs.

8. This was confirmed by Conestoga-Rovers & Associates Limited (“CRA”), the consulting

engineers since the inception of the project in 2001. CRA has confirmed that the cost to

replace the liner could be up to $3,000,000.00. It was determined that to protect the liner,

new, select waste would need to be received by approximately October 31, 2007. Based

on the need to finance and complete construction of the landfill and comply with

outstanding regulatory pre-conditions to the receipt of new waste, the Receiver was

appointed on September 10, 2007.

9. By Thursday, November 15, 2007:

a. all construction of the Stage One Cell had been completed;

b. all Brooks Road upgrades had been completed and the work accepted by

-10- - 010

Haidimand County;

c. a Site Preparation Report had been submitted to the Ministry of the Environment

satisfying all regulatory preconditions to the receipt of new waste.

10, The Landfill was finally able to receive waste on Friday, November 16th, 2007. Contractaal

arrangements had been made with several waste haulers to commence bringing in new

waste to the landfill.

11, However, by virtue of the inability to receive waste by November 1, 2007, the Receiver

initiated the preliminary steps to revise the requirement to commence the

“decommissioning” of historic waste on the site by November 1, 2007. The

decommissioning of the historic waste could not commence until the site was both capable

of receiving new waste and, a protective layer of select new waste approximately 1.5 — 2

metres in depth had been placed in the bottom of the Stage One Cell to protect the

underlying clay liner from frost damage and to serve as a base for the re-deposit of the non-

hazardous portion of the historic waste into the Stage One Cell,

12. On or about November 13, 2007, Haldirnand Against Land Transfers through its members

(the “HALT Protestors”) set up protest pickets at the intersection ofHighway #3 and Brooks

Road, in Cayuga, Haldimand County. Joining them were several members of the Six

Nations. The identities of the protesters, other than as reported in the local press, or as

discovered by the Receiver’s site manager, are unknown to the Receiver.

- 11 -

13. There was no interference with any operations by the Receiver until Friday, November 16th,

2007. On that day, and again on Tuesday, November 20, 2007, the Receiver had ananged

for waste trucks to bring waste in to the site to start the process of landfluing, but more

importantly, to start the covering of the bottom of the Stage One Cell to protect the

underlying clay liner from the risk of frost damage.

14. Both the HALT Protesters and the Six Nations Protesters joined in actively preventing waste

trucks from travelling along Brooks Road about 1.3 kilometres northward from Highway #3

to the Edwards Landfill Site,

15. The local detachment of Ontario Provincial Police was asked in writing on behalf of the

Receiver for assistance to maintain clear access to Brooks Road on the evening of Monday,

November 19, 2007.

16. When waste trucks were again prevented from travelling along Brooks Road on Tuesday,

November 20, 2007, OPP offlèers attended at the intersection of Highway #3 and Brooks

Road, but instead of directing the protesters to get off the road so that the tucks could pass,

directed the drivers of the trucks to back up their trucks and leave.

17. The Receiver through counsel made immediate attempts to try and meet with any organized

body to resolve the blockade A meeting was first offered for November 22’ or 23, 2007

but subject to a precondition that the Receiver could not meet - that the Ministry of the

Environment concede that it had failed to consult the Haudenosaunee Confederacy Chiefs

V .L

- 12 -

Council with respect to any development approvals involving the Edwards Landfill Site.

As the Receiver could not meet this precondition and no other meeting was offered, by

Friday morning the Receiver determined that because of the delay in trying to arrange a

meeting, the Receiver could wait no longer and proceeded to have counsel book an

appointment for a Motion for Directions for Tuesday morning, i’ovember 27, 2007.

18. Shortly after booking the appointment but before any notice was sent out by e-mail, a

meeting was offered for Wednesday morning, November 28, 2007 by Aaron Detlor,

indicating that he represented the Haudenosaunee Development Institute, an arm of the

Haudenosaunee Confederacy Chiefs Council. Mr. Detlor further advised that he would be

prepared to meet the Receiver with representatives of the Haudenosaunee Development

Institute. He also indicated that neither the Haudenosaunee Confederacy Chiefs Council

nor the Haudenosaunee Development Institute had any role in directing individuals “who

may be peacefully exercising their rights” within the “Haldimand Tract”. The Receiver

understands that this is an area of about 950,000 acres 6 miles on either side of the Grand

River in Ontario which includes the landfill site and Brooks Road, Notwithstanding that

advice, the Receiver’s Site Manager was told on both days that waste inicks tried to travel

along Brooks Road that there would be no waste received at the site until a meeting with

Aaron Detlor was arranged.

19. Mr. Detlor further indicated in his e-mail on November 23’’, 2007 that the Court be advised

of “Haudenosaunee Confederacy Chiefs Council rights over the area in question”

1113- 13 -

20. The Receiver is unable to carry out its mandate to protect the assets of Haldimand because

of the inability to receive waste at the site. Further, both the HALT Protesters and the Six

Nations protesters are unlawfully interfering with waste contracts that the Receiver has

entered into with third parties,.

21. It is imperative that waste be received at the site to protect the liner system in order to

facilitate the commencement of any waste relocation work. Should receipt of waste not

commence immediately, the integrity of the clay liner will be jeopardized as construction of

the protective waste layer will likely not be able to be completed prior to frozen ground

conditions occurring.

22. With the receipt of waste being blocked, the Receiver is unable to receive any revenue —

essentially the Receiver’s mandate to manage the operation of the Site is frustrated.

23. Should frozen ground conditions occur, reconstruction of the clay liner would require

removal of the overlying leachate collection system, geotextile and geomembrane layers to

gain access to the underlying clay. The cost of this repair has been estimated by CRA to be

approximately $3,000,000.00. If such an additional expenditure is required to repair the

clay liner, this would rther imperil the rights of creditors and shareholders of Haldimand to

recover anything from the assets ofHaldimani

24. Section 47(2) of the Bankruptcy and Insolvency Act;

-14- 014

25. Section 101, 141(1) and 141(2) of the Courts ofJustice Act;

26. Rules 3.02(1), 16,04(1), 16.04(2), 16.04(3), 16.08, 40.01, 40.02(1) and 41.05 of the

Rules of Civil Procedure,

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

Motion:

1. The Third Report of the Receiver dated November 26, 2007;

2. The Affidavit of Gregory D. Ferraro sworn November 22, 2007;

3. The Affidavit of Romeo Di Battista, Jr. sworn November 23, 2007;

4. The Affidavit of Sophia Zaidi sworn November 25, 2007;

5. Such further and other material as counsel may advise and this Honourable Court may

permit.

November 26, 2007 SOLOMON, GROSBERG LLPBarristers & Solicitors55 University AvenueSuite 1704Toronto, Ontario1v15J 2H7

DAVID P. PREGERLSUC Registration No. 36870L

Tel: (416) 366-7828Fax: (416)366-3513E-mail: [email protected]

-15- O1

CARSON GROSS CHRISTIE KNUDSENBarristers & SolicitorsSuite 60010 Carison CourtToronto, OntarioM9W 6L2

DAVID RUBINLSUC Registration No. 20759Q

Tel: (416)361-0900Fax: (416) 361-3459E-mail: [email protected]

Solicitors for the Receiver, SF Partners Inc.

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Court File No.: 07-CL-7162


(Commercial List)

BETWEEN:

ROMSPEN HOLDINGS INC., UPPER CANADA PROPERTIES INC., ROMSPENINVESTMENT CORPORATION, and 1023877 ONTARIO INC.

Applicants

-and-

1303862 ONTARIO INC., 2001824 ONTARIO INC., 1281126 ONTARIO INC.,HALDIMAND-NORFOLK SANITARY LANDFILL INC., WILLIAM COURTNEY, andSHARON CAMPBELL, ESTATE TRUSTEE OF THE ESTATE OF FRANCIS CAMPBELL

Respondents

AFFIDAVIT OF GREGORY D. FERRARO

I, Gregory D. Ferraro, of the City of Waterloo, in the Province of Ontario, MAKE

OATH AND SAY AS FOLLOWS:

1. I am a professional Civil Engineer, licenced to practice in the Province of Ontario.

I am also a Principal in the engineering firm., Conestoga-Rovers and Associates (“CRA”),

based in Waterloo, Ontario. CRA has been involved since 2001 on behalf of Haldimand

Norfolk Sanitary Landfill Inc. (“HNSLI”) providing engineering and planning services for

the design, approval and development of the Edwards Landfill (the “Landfill”). I have

-2-

been the project manager and chief engineer for the Edwards Landfill project since the fall

of 2001. In that capacity, I have personal knowledge of much that has gone with respect to

the Landfill for the past seven years. With respect to historical information, I rely on the

research and investigation done by CRA staff and subcontractors to the extent that this

information has previously been set out in reports that CRA has filed with the Ministry of

the Environment as part of the approval and regulatory process on behalf of HNSLL

2. My curriculum vitae indicating my qualifications is attached as Exhibit “A” to my

affidavit. In addition to listing my project management experience and project design and

construction experience, my resume summarizes my published papers and presentations,

which include presentations of landfill leachate collection design systems for the Province

of Ontario, Ministry of the Environment Brampton Training Centre in April 1991, April

1993 and August 1996.

3. CRA was engaged to continue acting with respect to the Edwards Landfill by the

court-appointed receiver of HNSLI, SF Partners Inc.(the “Receiver”), towards the end of

September, 2007.

BACKGROUND

4. Landfilling commenced at the Edwards Landfill in 1959. The original application

-3-

for a Provisional Certificate of Approval ( “C of A”) was made on February 10, 1971.

Subsequently, a C of A was issued by the Ministry of the Environment and was renewed

periodically between the years of 1971 to 1980.

5. The waste from various municipalities in the vicinity of the Edwards Landfill

continued to be disposed of within the Landfill on an ongoing basis from 1959 to 1977.

Subsequent to 1977, waste disposal activities were carried out on an intermittent basis.

During the above time period, waste dispose of the Landfill was placed in unlined

trenches, excavated into native silty soils. Subsequent to filling the trenches, waste was

disposed of directly on the ground surface and covered with a layer of native soil. The

waste stream consisted of municipal waste that also included metal drums containing resin

from a local historic resin production facility.

6. Since 2001, CRA has prepared updated studies, a Design and Operations plan and

has been engaged in comprehensive public and agency consultation. Updated regulatory

approvals have also been pursued and obtained for the Landfill under both the Ontario

Environmental Protection Act and the Ontario Water Resources Act.

7. Requests by several members of the local community in Haldimand County that the

site be designated for an environmental assessment under the EnvironmentalAssessment Act

were considered by the Ministry of the Environment, Environmental Assessment and

-4-

Approvals Branch beginning in December, 2002 and finally rejected by a decision of the

Minister of the Environment made in January, 2004. The Landfill continued to proceed

under the approval process provided by the Environmental Protection Act.

8. Certain aspects of the updated Landfill Design and Operation Plan and increases in

the daily fill rate were subject to Applications for leave to appeal as well as appeals to the

Environmental Review Tribunal. An Application for judicial review of the decision of the

Director, Ministry of the Environment Approvals Branch was also subject to an Application

for judicial review launched in July, 2005, and dismissed in July, 2006.

9. The updated design of the Edwards Landfill Site required the construction of newly

lined landfill cells with a full drainage blanket and leachate collection systems. The historic

waste within the underlying trenches is required under the Development and Operation

Plan to be exhumed and relocated into the newly constructed lined cells as part of

recommencing Landfill operations. Regular water quality monitoring for ground water

and surface water quality within the Landfill area commenced in 2005.

CURRENT STATUS

10. The Edward Landfill is currently being developed in accordance with the conditions

stipulated in the updated Certificate of Approval. The Certificate of Approval has been

-5-

amended five times since 2001 as follows:

(a) Notice No. 1 - August 22, 2002;

(b) Notice No. 2- May 5, 2004;

(c) Notice No. 3 - February 10, 2005;

(d) Notice No. 4- January 9, 2007;

(e) Notice No. 5 - July 19, 2007,

11. The Landfill is approved to accept a maximum of 500 tonnes of non-hazardous

industrial-commercial-institutional waste per day.

12. The construction of the Landfill development works in accordance with the

approved updated Design and Operations Plan commenced in September, 2004. Initial site

preparation work was carried out from September, 2004 until March, 2005. At that pbint

in time, after the issuance of Notice No. 3, a number of proceedings before the

Environmental Review Tribunal and the Application for judicial review delayed further

construction progress until the proceedings were finally resolved and all litigation settled

in the late fall of 2006.

13. Construction of the Stage One Cell commenced in or about early September, 2006.

As a result of the settlement of the proceedings before the Environmental Review Tribunal,

an agreement was reached with the Corporation of Haldimand County to carry out an

-6-

upgrade to Brooks Road, between Highway #3, the main access highway to the south of

the Landfill, and the Landfill site itself, approximately 1.3 kilometres north of Highway #3

on Brooks Road. Construction work - the excavation of the Stage One Cell, installation of

the liner system and leachate collection system proceeded from September, 2006 and

throughout 2007, although some delays due to inclement weather were incurred in the

construction, until the sudden passing of Frank Campbell, the President of HNSLI, on July

8, 2007.

14. After the passing of Frank Campbell, a period of inactivity occurred at the Landfill.

Execution and completion of the Landfill development works was temporarily

discontinued. By September 10,2007, the date of appointment of the Receiver, the Brooks

Road upgrade had been partially completed and the construction of the Stage One Cell was

nearly complete.

15. At the time of the appointment of the Receiver, the C of A had a number of

conditions that had to be complied with prior to the acceptance of any new waste for the

Landfill. These primary conditions included:

(a) completion of the construction of the Stage One Cell;

(b) completion and acceptance of the Brooks Road upgrades by Haldimand

County;

(c) the posting of financial assurance with the Approvals Branch of the Ministry

-7-

of the Environment in the amount of $606,599.00.

16, Other C of A conditions still required to be met at or about the time of the

appointment of the Receiver were the installation of additional bedrock monitoring wells

as well as the installation of further monitoring wells ordered by the Ministry of the

Environment (the “MOE”) to be installed on private property outside of the Landfill as part

of the ongoing surface water and ground water monitoring program required under the

CofA.

17. Another C of A condition required to be met prior to the receipt of waste was the

preparation and submission of a Site Preparation report to the MOE, detailing all of the

inspection and testing carried out on the Stage One Cell liner system to verify quality

control and proper installation.

18. By Thursday, November 15, 2007:

(a) all construction of the Stage One Landfill had been completed;

(b) all Brooks Road upgrades had been completed and the work had been

accepted by Haldimand County;

(c) the Receiver had successfully negotiated with an adjoining landowner to the

south permission to install monitoring wells on the property with those wells

being installed on Wednesday and Thursday November 14t1 and 15th, 2007;

-8-

(d) the Receiver had successfully negotiated an Encroachment Agreement with

Haldimand County, which permitted the installation of three well nests in

the road allowance on Brooks Road as part of the monitoring program

required by the MOE. The installation of these wells was not a precondition

to the acceptance of waste and work is progressing on the installation of

those wells with the installation expected to be complete by the end of

November so that water samples from these wells can be included as part of

the end of November water sampling monitoring program to form part of a

report to the MOE; and

(e) the Site Preparation Report had been submitted to the MOE.

19. Unfortunately, the delays in completing the construction of the Landfill and the

Brooks Road upgrades and the resultant delay in the commencement of the receipt of

waste have created a significant risk with respect to the protection of the newly constructed

liner systems. Liner components of potential concern include the geotextiles with the

allowable exposure time to sunlight and the clay liner with respect to frost damage from

the oncoming winter season.

20. To provide the necessary protection to the liner systems, a 1.5 to 2.0 metre layer of

newly imported waste is required to be placed across the entire base of the Stage One Cell.

The layer of waste also provides the necessary platform for the placement of the historical

-9-

waste to be relocated as part of the decommissioning program. The layer equates to 34 to

40 working days of importing waste at a rate of 500 tonnes per day, taking into account

winter weather conditions. Should frost damage to the liner system occur there would, of

necessity, be a deferral of the waste relocation work as there would be no place within the

Landfill to which any exhumed, non-hazardous waste could be relocated without an

operating cell.

21. The MOE has been adamant that the relocation of the historic waste must commence

in 2007. As a result, the Ministry amended the date for the commencement of the

relocation of the historical waste to occur by November 1, 2007. Unfortunately, as I already

indicated, due to delays in the construction and the delay in receiving waste, this has not

occurred. The Certificate of Approval also contains a requirement that a detailed site

decommissioning plan be submitted 30 days after the commencement of the receipt of

waste. To date, no waste has been received. The detailed plan cannot be completed

properly with insertion of estimated benchmark dates as the Landfill has still not been able

to receive waste and protect the liner system with a layer of waste. The historical waste,

having decomposed for at least 30 years, is not suitable for direct placement on the leachate

collection and liner system.

22. CRA has engaged in discussions with the MOE with respect to submitting a revised

timetable for the commencement of the relocation of the historic waste. As part of this

-10-

process, a presentation must first be made to the Public Liaison Committee so that there

is public consultation and input with respect to any proposal. After that occurs, a formal

amendment to the C of A can be sought by the Receiver to change the date for the

commencement of the relocation of the historic waste.

23. I understand from the exchange of e-mail between the Receiver or its counsel and

the chairman of the PLC, Dave Glenney, that dates originally proposed by the Receiver on

November 6, 2007 [the date of the last meeting of the PLC] for mid-November were not

suitable to the other PLC members. I understand that Dave Glenney proposed December

4, 2007 as a proposed date for this meeting but unfortunately, I am not available that

evening due to other commitments. I advised the Receiver and its counsel that I would be

available either the evening of December 3rd or 6, 2007 for this special meeting of the PLC

or alternatively, I could make the presentation at the next regularly scheduled PLC meeting

on December 11th, 2007. 1 understand that to date, there has been no further response from

Dave Glenney with respect to scheduling this PLC meeting.

24. At the present time, waste is still not being received at the site. Should frost damage

occur to the liner system, the waste relocation work which more suitably should be carried

out during the winter season to minimize odour impacts on the public, would not be able

to be carried out until the liner system was repaired at a significant cost. This work will

now need to be delayed, in my opinion, until the winter months, beginning in November

-11—

or December 2008. In the meantime, until any formal amendment to the C of A, the

Landfill will remain in a non-compliance situation with respect only to the condition that

site remediation commence by November 1, 2007, although the C of A is internally

inconsistent in that there is a separate condition that only requires the submission of a

detailed site decommissioning plan 30 days after the site is available to receive waste. For

the Landfill, this date was only November 16, 2007.

25. In my discussions with representatives of the Approvals Branch during the period

of time approval for the redevelopment of the Landfill was being sought from the MOE,

all discussions involving the site decommissioning were carried out on the basis the site

decommissioning obligation was completely independent and not in any way linked to the

right to receipt of new waste. There was never and still is no requirement in the C of A that

site decommissioning occur prior to the receipt of new waste.

26. I believe that when the MOE changed the C of A by issuing Notice #5 in July, 2007,

it had been contemplated by HNSLI and CRA at the time and the MOE that the receipt of

new waste was imminent so that the imposition of an absolute deadline by the MOE to the

commencement of site decommissioning was not viewed as a problem in any way, with

new waste expected at the time to be received either at the end of July or by August, the

detailed site decommissioning plan could be completed within 30 days of the site being

available to receive waste and site decommissioning could start by November 1, 2007.

-12-

27, Unfortunately, the death of the principal of HNSLI, Frank Campbell led to delays

that, coupled with the current inability to receive new waste at the Landfill made

compliance with that obligation not feasible.

28. It is imperative that waste be received at the site to protect the liner system in order

for the project to be able to be restored to a compliance situation to facilitate the

commencement of any waste relocation work.

29. Should receipt of waste not commence immediately, construction of the protective

waste layer will likely not be able to be completed prior to frozen ground conditions

occurring that will jeopardize the integrity of the clay liner.

30. Should frozen ground conditions occur, reconstruction of the clay liner would

require removal of the overlying leachate collection system, geotextile and geomembrane

layers to gain access to the underlying clay. I can only estimate what this additional cost

would entail but a reasonable estimate of having to do all this work to reconstruct the clay

liner and then reinstall the geotextile, geomembrane and leachate collection system would

be in the range of approximately $3,000,000.00. This does not include the additional cost

in responding to any regulatory action taken by the MOE against the site as a result of any

non-compliance arising from the current inability to commence the relocation of historic

waste by November 1, 2007.

-13-

SWORN BEFORE ME at the City of )Waterloo, in the Province of Ontario )this 22nd day of November, 2007 )

COMMISSIONE for taking affidavits ) Gre ory D. Ferraro(Abha Romkey)

EDUCATION

GREGORY D. FERRARO, B.E.Sc., P Eng.

University of Western Ontario, Civil Engineering, 1983Conestoga College, Civil Engineering Technology, 1978

EMPLOyMENT

1999-Present

1991-99

1990-91

1986-89

1984-85

1983

1982-83

1980-81

1979

1978

1978

AFFILIATIONS

Professional Engineers Ontario (PEO),Professional Engineers and Geosdentists of British Columbia (APEGBC)Solid Waste Association of North America (SWANA)

PROFILE OF PROFESS1ONALACTIVJTTES

Env&onmental Report Preparztion• Phase land II Environmental Site Assessment Reports• Remedial Investigation Reports• Remedial Action Plan Reports• Remedial Construct-ion Reports• Landfill Site Annual Progress and Monitoring Reports• Landfill Site Closure Plans• Landfill Site Desi and Operation Plans and Reports

B.E.Sc.

C.E.T,

This Exhibit reteryed to in theaffidavitsworn before me, this

Conestoga-Rovers & Associates day of ‘O6( ..

.. 20OAssociate, Conestoga-Rovers & AssociatesProject Manager, Conestoga-Rovers & Associates A CommisSioner for Taking AffidavitsProject Coordinator, Conestoga-Rovers & AssociatesProject Engineer, Conestoga-Rovers & AssociatesDesign Engineer, Grand River Conservation AuthorityConstruction Superintendent, Muer Construction LimitedResident Inspector, Kilborn Engineering LimitedHydraulic Research Technician, Department of Environment, Canada Centre for InlandWaters

Materials Insector, Dominion Soils Investigation LimitedForeman, J.G. Goetz Construction

CONESTOGA-R0vERS & ASs0cLA.TESPAcE I

GIEGoR’ 0. Faao

Litigation Support Activities• Response to regulatory orders• Technical support at environmental hearings, mediation, and arbiftations• Expert testimony• 2004 Compliance Plan McDougall Landfill, McDougall, Ontario• 2004 Action Plan including updated Operations Plan and Attenuation Zone Design for CanexLandfill, Salmo, British Columbia• 2004 Phase I and It Environmental Site Assessment of 44 dry waste lndfills and transfer stations

Selected Project Management Experience’• 2003 Preparation of Terms of Reference for Optimization and Development Plan, Thunder BayLandfill, Thunder Bay. Ontario• 2003 Remedial Action Plan, Creston Landfill, Cres ton, British Columbia• 2003 Long-Term Expansion, Environmental Assessment and On-Site Leachate Treatment, McDougallLandfill, Ontario Landfill• 2002/2003 Updated Design and Operation Plan, Hydrogeologic Assessment and Fill RateAmendment, Edwards Landfill, Cayuga, Ontario• 2002/2003 Technical Support — Mediation proceedings, former wood treatrnerit facility Burnaby;British Columbia

2000/2001 Bedrock Remedial Action Plan, Commerce Plaza Development Site, Ottawa, Ontario1999/2001 Ground Extraction System and Site Specific Groundwater Risk Evaluation, formerRockwell Manufacturing facility, Guelph, Ontario

• 2001 Detailed Site investigation and Remediation Plan, Canex Landfill, Salmo, British Columbia• 2000/2001 Leachate Management Plan, Tre Monti Landfill, Imola, Italy• 2000 Phase I and II Environmental Site Assessment, LaFarge Construction Materials aggregateextraction, quarries, asphalt plants, bulk storage, and wharf facilities (150k sites) Or&tario, Quebec• 1999/2000 Environmental Assessment, Mayer Landfill Site expansion, Township of Champlain.Ontario

* 1999 Landfill Closure Plan, Castel San Lorenzo and Camerota Landfills, Salerno, italy• 1998/2000 Peer Review - Remedial Investigation and Site Decotimissioning, former Sunoco bulk fuelstorage facility, Ottawa, Ontarioa 1998/2000 Remedial Investigation and Site Decommissioning, former bulk fuel storage facility, Portof Montreal, Montreal, Quebec• 1997/2000 Peer Review - Remedial Investigation and Site Decommissioning, former CGC/GeneralChemical Roofing Mifi, Vancouver, British Columbia.• 1998 Engineering Evaluation — Long Term Expansion Alternatives, Mayer Landfill Site, Township ofChamplain, Ontario• 1997/98 EPA Hydrogeologic Assessment, Design and OperationPians and Reports, Town ofMarathon Waste Management Plan Study• 1997/98 EPA Design and Operation Plan - Inter Recycling Landfill, Sarnia, Ontario• 1997 Phase I. and II Environmental Site Assessments, St. Mary’s Cement Corporation Facilities, cementplants, redimix plants, trucking facilities, Ontario, Michigan, Wisconsin, Ohio and New York

CQNESrOGA-ROvERS & AssOcIATESPAGE 2

GRscoRYD.FEIuao

• 1996/97 EPA Hydrogeologic Assessment, Design and Operation Plans and Reports, Districts ofKearney, Perry and McMurrich Waste Management System Planning Study• 1996/97 Phase I Environmental Site Assessments, CN Rail Properties, Michigan• 1996/97 Remedial Investigation and Site Decotrunissioning, CGC Rock Wool Manufacturing Plant,Weston, Ontario‘ 1996 Phase I and II Environmental Site Assessments, Public Storage Facilities, Quebec, Ontario,Alberta and British Columbia• 1995 Interim Design and Operation Plan, West Garafraxa Landfill, Township of West Garafraxa• 1995 Asbestos Survey, Metro Toronto Housing Authority, over 4030 Housing and CommunityBuildings• 1995 EA TaskS Hydrogeologic Assessment of Candidate Sites for Districts of Kearney, Perry andMcMurrich Waste Management Planning Study• 1995 Phase I and II Environmental Site Assessments, Natrel Inc. dairy and frozen food productionplants, Quebec

1994195 EA Exemption Request and Interim Expansion, Mayer Landfill Site, Township of WestHawkesbury, Ontario• 1994/95 Design arid Operation Plan, Milistream Landfill, Victoria, British Columbia1994 Site Design and Development Works, Petrolia Landfill Site, Petrolia, Ontario• 1994 Site Decommissioning, FMG Timbe4ack Forestry Equipment Manufacturing Plant, Brantford,Ontario

• 1993/94 Environmental Impact Study and Remedial Plan, Mayer LandfIll Site, Township of WestHawkesbury, Ontario• 1993/94 Leachate Collection System and Clay Liner Design and Construction, NE4 Cell. WateriàoLandfill Site• 1993 Groundwater Collection and Pumping System Design and Construction, Town of KincardineLandfill Site• 1993 Gas Management Plan, Minnies Pit Landfill, District of Mission, British Columbia• 1992/93 Remedial Design and Construction, Buried Waste Containment including securecontainment facility and ambient air monitoring, Uniroyal Chemical Ltd., Elmira, Ontario• 1992 Soil Remediation Design and Construction for Holophane Canada Inc. Plant Site, Ste. Hyacinthe,Quebec• 1992 Phase I Final Cover Works Design and Construction, Valentine Avenue Landfill Site, Kincardine,Ontario

• 1991/92 EA Exemption Request and EPA Interim Expansion for the Town of Kincardine, ValentineAvenue Landfill Site, Kincardine, Ontario• 1991 /92 Hydrogeologic Investigation; Design and Operation Plans for the Village of Erin LandfillSite, Erin,. Ontario• 1990/91 EPA Design and Development Plans and Report for the Region of Waterloo Landfill SiteNorth and South Expansion Areas, Waterloo, Ontario• 1991 Groundwater Collection and Treatment System and Low Permeable Cover Design andConstruction for Perro Industrial Products Plant Site in Oakville, Ontario• 1989/90 Sarnia Leachate Treatment Facifity Construction for 20,000 Igpd chemical, biological andphysical treatment of leachate including aeration and facilitation lagoons, Sarnia, Ontario

CoNEsToGA-Rovs &c ASSOCIATESPAGE 3

—

GRsGowD.Piuuao

1990 Final Cover Works, Sarnia Landfill Site Works include placement of landfill final cover,construction of stormwater pond and closure of leachate recirculation lagoons, Sarnia, Ontario• 1990 Sludge Lagoon, City of Sarnia Wastewater Treatment Plant. Works include HDPE lined lagoonwith sludge dewatering system, Sarnia, Ontario• 1989 South Side Leachate Collection System, Region of Waterloo Landfill Site, Waterloo, OntarioSelected Environmental Site Assessment Experience• Ashwarren International Inc., bulk chemical storage terminal, Bath, Ontario• Karbomont, carbon black manufacturing facility, Montreal, East, Quebec• Waterous Detroit Diesel Allison, heavy equipment sales, servicing and repair facilities, Edmonton andCalgary, Alberta• Wajax Industries Ltd., forestry equipment sates, servicing and repair facility, Delta, British Columbia

BPCO Inc., pulp and paper and roofing mill, Edmonton, Alberta, LaSalle, Quebec• Hart Chemical Limited, detergent additive manufacturing facility, Guelph, Ontario• Hoechst Canada Inc., polymer manufacturing facility, Varennes, Quebec• Cascade Inc., pulp and paper and roofing mill, Joliette, Quebec• Uniroyal Goodrich, tire manufacturing plant site (Strange Street), Kitchener, Ontario• Wagner Canada, brake shoe manufacturing plant site, Stratford, Ontario

Stackpole Corporation. nickel gear and bearing manufacturing plant, Stratford, Ontario• Hendrickson Canada Ltd., leaf spring manufacturing plant, Stratford, Ontario• Nestlé Canada Inc., pet food production plant, Oakville, Ontario• Electrohome Motor Division, electric motor manufacturing plant site, Cambridge, Ontario• J. I Case, farm implement manufacturing plant, Harnilton, Ontario• Kirsch, window hardware manufacturing and warehouse plant site, Woodstock, Ontario• Nacan Products Ltd, adhesives manufacturing plant site, Toronto, Ontario• Cooper Tools, file manufacturing plant, Port Hope, Ontario• Twinpak Inc., paper and plastic bag manufacturing plant, Cap de la Madeliene, Quebec• Champion Spark Plug, sparkplug manufacturing plant, Windsor, Ontario

Glopak Inc., polyethylene film and bag manufacturing plant, St. Leànard, Quebeca Natrel Inc., ice.crearn production plant, Montreal North, Quebec• Diversey Jamaica Ltd., chemical blending and distribution plant, Kingston, Jamaica

Project DesigniConstruction ExperienceResponsibilities include design, approvals, preparation of tender documents, contract administrationand/or construction supervision for:• Municipal and Industrial Landfills

- 1989 Leachate Treatment Facility, Sarrda Landfill, Sarnia, Ontario. Works include design oflagoons, yard pipe systems, and. pump station. Coordinate contract administration andconstruction supervision1987/1988 West Side Leachate Collection System, Waterloo Landfill Site, Waterloo, Ontario,Works included groundwater collection system, preparation of landfill expansion area liner,forcernain, pump station, truck loading facility, and. miscellaneous site works

CONESTQGA-RovEas & ASSOCIATESPAGE 4

GREGORY D, FERano

1987 Landfill Gas Control System Incineration Plant for Keele Valley Landfill, Maple, Ontario.Works included condensate removal system, blower system and building, incinerators andmiscellaneous compound works1987 Landfill Development Project .. Phase I for Canada Cement Lafarge, Woodstock, Ontario.Works included placement of final cover, grading and surface water works1986 Leachate Collection System for Bayview Park Landfill, Burlington, Ontario. Works includedgroundwater collection system, pumping stations, forceniains, gravity sewer system, includingbore and jacking installation and landfill surface improvements1986 LandfIll Gas Control System Collection Header for Keele Valley Landfill, Maple, Ontario.Work included Dual HDPE pipeline, valve chambers, condensate removal chamber andmiscellaneous site works1988 Landfill Gas Control and Incinerator System for Marathon County Landfill, Wausau,Wisconsin

Assisted in 1986 design for Remedial Action Plan, Chem-Dyne Site, Hamilton, Ohio (GeneratorsGroup). Design includes a groundwater extraction system, groundwater reinlection system and alow permeability composite natural and synthetic cover over site of contaminants1986 Leachate Collection System andpreparation of tender documents for Sarnia Landfill, Sarnia,Ontario. Design included groundwater collection system, clay control berm and cutoff keyContract with Grand River ConservatIonAuthority to designsite services for 1985 Canadian BoyScout amboree including potable water pumping stations, reservoirs and appurtenances, roadsand power

Hazardous Waste Remedial Works1988 Remedial Action Construction for Nestle Enterprises Limited, Aylmer Ontario. Workincluded removal and off-site disposal of lead contaminated soils, site demolition and restorationworks

• 1986/1988 Pottersburg Creek Watershed Remedial Action Construction, London, Ontario. Worksincluded design and construction of containment facilities for the securement of PCBcontaminated sediment and soils, wastewater treatment plant, leachate control and pumpingsystem, and miscellaneous remedial works1985 Pottersburg Creek Remedial Action, London, Ontario. Works included containment for PCBcontaminated soils, design of limits of excavation, contaminated material removed andtransportation, stonnwater diversions, health and safety program, and acting Resident ProjectEngineer for the 1985 program1984 Westinghouse Canada, London, Ontario. Remedial action construction for the constructionof a secure disposal vault, including excavation and disposal of PCB contaminated soils1984 Veisicol Chemical Corporation, St. Louis, Michigan. Construction of 225,000 cubic yard lowpermeable clay cover over secured chemical plant site, including borrow pit management andambient air monitoring

PuLlSHED PAPERS

• ‘Pottersburg Creek Watershed PCE Remediation”, paper presented at the Joint Annual Conference,APCA/PcAO, Hamilton, Ontario, April 27-29; 1986 (with A.J. Crutcher)

• Pottersburg Creek Watershed PCB Rernediation’, paper presented at 33rd Ontario Industrial WasteConference, Toronto, Ontario, June 15-18, 1986 (with A.J. Crutcher)

CoNESToGA-Rovs AssocL.tts PAct 5

GREGORY D. FERRARO

• Managing the Collection, Treatment, and Disposal of Leachate from Planned and Existing LandfillSites” paper presented at Hazardous Waste Management, Toronto. Ontario, June 15, 1990 (withJ. Pawley and Aj. Crutcher).• “Landfill Leachate Collection System Design” presentation at Ministry of the Environment LandfillDesign Course, Brampton Training Centre, Ministry of the Environment, Ap!il 1991 (withAj. Crutcher)

“Landfill Leachate Collection System Design’ presentation at Ministry of the Environment LandfillDesign Course, Brampton Training Centre, Ministry of the Environment, April 1993 (withA.J, Crutcher)• “Control of Groundwater tmpact from Wastewater Treatment Plant Lagoon Leakage”, presented atUniversity of Toronto, Faculty of Applied Science & Engineering Continuing Engineering Education Program,Toronto, Ontario, November 2, 1993• “Landfill Leachate Collection System Design” presentation at Ministry of the Environment LandfillDesign Course, Brampton Training Centre, Ministry of the Environment, August 27, 1996• ‘Control of Groundwater Impact from Wastewater Treatment Plant Lagoon Leakage”, presented atUniversity of Toronto, Faculty of Applied Science & Engineering Continuing Engineering Education Program,Toronto, Ontario, October 17, 1996• ‘The Use of Technical Experts and High Tech Tools in Alternate Dispute Resàlution”, paper presentedat American Bar Association Toxic Tort and Environmental Law and Corporate Counsel Committees 9thAnnual CLE Spring Meeting, March 30, 2002 (with F.A. Rovers)• ‘The Consultants Role in Civil Actions”, paper presented at the Environmental Law CLE Conference,The Canadian Bar Association, Toronto, Ontario, April 5-6, 2002 (with F.A. Rovers)• “Phase I Environmental Site Assessments, A Consultants Perspective on Protocols arid Pitfalls’, paperpresented at the Environmental Law in Ontario conference, Toronto, Ontario, February 19-10, 2004k

CONESTQGA-RovEas & ASsoCIATESPAGE 6

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Court File No: 07-CL-7162


(Commercial List)

BETWEEN:

ROMSPEN HOLDINGS INC. UPPER CANADA PROPERTIES INC., ROMSPENINVESTMENT CORPORATION, and 1023877 ONTARIO INC.

Applicants

- and -

1303862 ONTARIO INC., 2001824 ONTARIO INC., 1281126 ONTARIO INC.,HALDIMAND-NORFOLK SANITARY LANDFILL INC., WILLIAM COURTNEY, and

SHARON CAMPBELL, ESTATE TRUSTEE OF THE ESTATE OF FRANCISCAMPBELL

Respondents

AFFIDAVIT OF ROMEO DI BATTISTA, JR.

1. I, Romeo Di Battista, Jr. of the City of Toronto, MAKE OATH AND SAY AS

FOLLOWS:

2. 1 have been involved in the waste business for the past 10 years. My family has

been involved in the waste, remediation and construction business for about 30

years.

3. About 3 years ago, we established a corporation by the name of Waste Excellence

Inc. to take over and run a waste transfer station in the City of Vaughan on Keele

Street, just north of Major MacKenzie Road.

4. I have experience in waste remediation contracts as well as large, earth moving

projects where our companies have brought in significant amounts of soil and

earth for such clients as local conservation authorities.

5. In or about the middle of September 2007, I was retained by the Receiver of

Haldimand-Norfolk Sanitary Landfill lnc.(”HNSLr), SF Partners Inc., (the

“Receiver”) in the capacity of site manager and project manager coordinating

construction trades in order to finish the construction of the Edwards Landfill

Site (the “Laridfffl”).

6, I was also retained to coordinate the obtaining of contracts with waste haulers in

order to start bringing in new waste to the Landfill once the construction was

completed and all required regulatory preconditions had been satisfied.

7. By November 15, 2007, all construction and other work necessary to be done at

the Landfill site, prior to the receipt of waste, were complete. Pursuant to

3

instructions received from the Receiver, I made arrangements for three waste

haulers to start bringing in new waste to the Landfill.

8. My own corporation, Waste Excellence Inc., was going to send in some waste

from its transfer station to complement the waste being received from three

independent waste haulers so that the maximum daily fill rate of 500 tonnes per

day could be achieved. This was to take place on a temporary basis until I was

able to complete negotiations with other local waste haulers.

9. On November 15, 2007, I was advised by the Receiver that because the last

regulatory hurdle, the delivery of a Site Preparation Report to the Hamilton

District office of the Ministry of Environment(”MOE”) was being forwarded that

day, waste could start to be received at the Landfill on Friday morning,

November 16, 2007.

10. 1 believe that starting about Tuesday morning, November 13, 2007, a number of

individuals began picketing on the north side of Highway #3 in Cayuga, Ontario,

at its intersection with Brooks Road. The Edwards Landfill Site is about 1.3

kilometres north of this intersection along Brooks Road. On this day, and on

November 14th and November 15th, there was no interference with the operations

of the Landfill by any individuals on Brooks Road, likely due to the fact that no

4

trucks bringing in new waste or any construction materials were due to come to

the Landfill on those days.

11. On Wednesday, November 14th, 2007 while in Cayuga, I took some pictures of

the protestors at the intersection of Highway #3 and Brooks Road. Annexed as

Exhibits “A” & “B” are two such pictures.

12. 1 was not at the Landfill site on Thursday November 15, 2007, as I was making

preparations for the receipt of new waste on Friday, November 16, 2007 but I was

in contact with my employees at the site. They did not advise me of anything

untoward happening on Thursday November 15th, 2007.

13. On Friday morning, November 16th, 2007, I was at the Edwards Landfill Site. I

had made arrangements for four to five waste trucks carrying new waste to come

from both a local hauler and from Waste Excellence Inc.

14. The first truck, from Norfolk Disposal Services Limited, arrived early in the

morning. This truck could not make the turn into Brooks Road as the individuals

protesting along the side of Highway #3, at its intersection with Brooks Road,

blocked the roadway and would not allow the truck to turn into Brooks Road.

5

15. Ontario Provincial Police (“OPP”) officers attended at this intersection and

subsequently came down to the office at the Landfill site to speak to me. I was

advised by the OPP officers that they had orders from their superiors not to get

involved in the dispute. I asked the OPP officers if they could move the

protesters off the intersection of Highway #3 and Brooks Road to permit the

truck to come down Brooks Road, I was advised in response that their orders

were to keep the peace. The OPP officers subsequently told me to have the truck

get off Highway #3 as a that point in time the driver was trying to park on the

shoulder because he could not turn into Brooks Road.

16. Later that morning, two more trucks were denied access to Brooks Road and had

to continue to drive along ,Highway #3 as the OPP officers would not permit the

trucks to stop on Highway #3.

17. After the third truck was denied access, OPP officers brought a woman, whose

name was given to me as “Ruby” [and from a newspaper report in the Dunnville

Chronicle on November 21, 2007, appears to be identified as one Ruby Montourl

down to the Landfill site with another individual who I understood to be a

representative of HALT (Haldimand Against Land Transfers), At this time,

Ruby indicated that we would not be permitted to get waste in until we arranged

6

for a meeting with her people. I understood this to be a reference to

representatives of the Six Nations of the Grand River. During this conversation

there was specific mention made of an individual named Aaron Detlor, who I

was advised was the lawyer representing some of the protestors. I was provided

with Aaron Detlor’s phone number and called him and left a message, but

couldn’t reach him.

18. I understand that Aaron Detlor responded subsequently in email to the solicitors

for the Receiver.

19. No attempt was made to bring in new waste for the balance of the day on Friday,

November 16, 2007 or on Saturday, November 17th, 2007. It was my intention to

try and meet with Aaron Detlor over the week-end to try and resolve any issues

the protesters had so that new waste could be brought in for Monday. By

Monday morning, however, the situation had still not been resolved as no

meeting could be arranged with Aaron Detlor. I had arranged for trucks to be on

standby possibly in order to bring in waste on Monday afternoon but as no

meeting could be arranged, I cancelled any arrangements to try and bring in new

waste for Monday afternoon.

7

20. On instructions from the Receiver, I understand counsel for the Receiver ‘sent a

letter to Ontario Provincial Police Detachment Commander, Inspector David

McLean, on Monday evening, November 19, 2007, to advise that the site would

be open for business on Tuesday morning, November 20, 2007, and that waste

disposal trucks would be coming to the Landfill site. A specific request was

made for assistance from the OF? so that access to Brooks Road from Highway

#3 was available. Annexed hereto and marked as Exhibit “C” to my affidavit is a

copy of the letter sent by counsel for the Receiver with which I was copied.

21. On Tuesday morning, November 20th, 2007, I was present at the Landfill site first

thing in the morning when the site opened up for business,

22. The first two waste trucks scheduled to bring in new waste to the Landfill site

managed to turn from Highway #3 into Brooks Road but before they could

proceed much further than the intersection, one of the protestors got into a pick

up truck, drove ahead of the two waste trucks and parked it in the middle of

Brooks Road preventing the trucks from proceeding further. Annexed hereto

and marked as Exhibits “D” and “E” respectively are pictures taken that morning

of the trucks not being able to proceed past the intersection.

8

23. The protestor who parked his truck in the middle of Brooks Road refused to

move his pick-up truck. Annexed hereto and marked as Exhibit “F” to my

Affidavit is a picture of the pickup truck blocking the first truck after the second

truck had already backed out.

24. After some minutes, OPP officers arrived but would not ask the protestors to

move the truck to permit the waste trucks to continue down Brooks Road despite

my requests. I was, again, advised by OPP officers that they were simply there

to keep the peace if there was a fight and that they were waiting for further

instructions from the Detachment Commander, Inspector McLean.

25. During this time, “Ruby” and two male protestors approached me and advised

me that “if I ever wanted to bring trash in here, get the trucks out of here - you

have to meet with Aaron, you have to meet with Mr. Detlor”.

26. I was also advised that if the trucks were not removed immediately, Ruby would

contact additional people and bring another 50 people to the site and we would

“never get trash in here”.

9

27, I asked Ruby if we could agree that if the trucks backed up we could set up an

immediate meeting to discuss the situation with Mr. Detlor. I was advised, in

response, that until the trucks backed up and left the site, there would be no

discussions about any meetings.

28. The trucks eventually backed up and again I was advised by Ruby that “there

would be no more garbage here until there was a meeting”. I also received

assurances that there would be a meeting.

29. On Wednesday, November 22nd, 2007, due to the events of Friday, November

26th, 2007 and Tuesday, November 20th, 2007, 1 made no arrangements to try and

bring in any waste that day. However, I did receive a call from a woman who

identified herself to me as “Ruby” on my cell phone who indicated that she was

calling to try and receive some assurance from me that there was not going to be.

any waste brought in that day. She indicated that because of the inclement

weather she wanted confirmation so that any protestors out on Brooks Road did

not have to remain out in the rain.

.30. When I tried to raise the subject of having a meeting to try and discuss the

situation, I was advised that she couldn’t arrange a meeting this week but she

4

10

assured me that a meeting could be arranged for early next week. However, she

could not provide me with any day, time or place for any such meeting.

31. Ruby called me yesterday to advise that I could have a meeting with the HDI

and Aaron Detlor but not until Wednesday, November 28, 2007 at 2:00 p.m..

32. I have also tried to bring in gravel trucks because there is a small bit of additional

work that needs to be done to some of the interior roadways in the Landfill. One

gravel truck that tried to access the site on Friday was also blocked.

33. It was my assessment of the situation from viewing the protestors on the site on

Friday, November 16th, 2007, that there were approximately 20 members of

HALT and approximately six to eight members of the Six Nations of the Grand

River blocking the road.

34. It was my perception on Tuesday morning, when I did go down to the

intersection to try and see if anything could be resolved, that there were about

eight to ten HALT members blocking access to Brooks Road and four to five

members of the Six Nations of the Grand River.

11

35. I was advised by my employees at the Landfill site yesterday, as I did not attend

the site, that approximately eight to ten persons in total were on Brooks Road at

Highway #3.

36. I have also seen a copy of the report by Karen Best in the Wednesday, November

21st, 2007 electronic edition of the Dunnville Chronicle, published by Osprey

Media and apparently posted by Osprey Media to its website sometime

Wednesday evening or early Thursday morning. I have reviewed this report.

While I do not personally know any of the individuals referred to in the report

whether members of HALT or members of the Six Nations of the Grand River,

the reference to events that occurred on Friday November 16th, 2007 and Tuesday

November 20th, 2007, appear to me to be substantially correct. A copy of this

report is attached to my affidavit as Exhibit “G”

37. It is from this report that I believe that the “Ruby” I have been speaking to may

in fact be one and the same as the Ruby Montour identified as the spokesperson

for Six Nations community members.

38. The report also identifies Phillip Skye as being a participant in the blockade. I

did in fact also speak to Mr. Skye on Friday November l6th, 2007.

L

12

39. I make this affidavit in support of an injunction restraining any protestors from

blocking access to Brooks Road so that the waste contracts that I have arranged

on behalf of the Receiver with waste haulers can be honoured and trucks

permitted access to the Edwards Landfill Site along Brooks Road from Highway

#3,

SWORN BEFORE ME at the City of )Toronto, in the Province of Ontario )this 23rd day of November 2007 )

A Commissioner for taking affidavits )Romeo Di Battista, Jr.(David Rubin)

This Exhibit ,.J referred to in theaffidavitsworn before me, this-day 2O,.O

/& IU%A Commissioner for Taking Affidavits

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A Commissioner for Taking Affidavits

CARSON GROSS CHRISTIE KNUDSEN8ARR ISTERS AND SOLICITORS

DAVID RUBINPROFESSIONAL CORPORATION

Direct [email protected]

DELWERED BY FAX TO: 1-905-772-5815

November 19, 2007

Ontario Provincial PoliceHaldimand DetachmentP.O. Box 14872 Highway #54Cayuga, ON NOA lEO

Attention: inspector David Maclean

Dear Inspector Maclean:

Re: Edwards Landfill Site- access to Brooks Road at Highway #3, Cayuga.

Our File No. 2960a

We act as counsel to SF Partners Inc., the court-appointed Receiver of Haldimand-Norfolk Sanitary

Landfill Inc. (the Edwards Landfill Site).

I am writing to confirm the voice mail message I left with you after our earlier conversation thisafternoon. I have confirmed with the Receiver that no waste trucks wifi be making any attempt todeliver any waste to the site today.

The Receiver has indicated, however, that the site will be open for business in the morning. Theoperator of the site will be doing some work on the site, which involves bringing in gravel tocomplete some of the internal roadways at the site.

In addition, a waste disposal truck from Norfolk Disposal Services Limited, a localwaste contractor,

is expected to bring waste to the site sometime between 7:00 and 7:30 tomorrow morning.

The site operator is also bringing in two trailer loads of waste sometime between 8:30 and 9:00 a.m.tomorrow morning.

I would appreciate if the Ontario Provincial Police could lend all possible assistance in ensuring thatfree and open access to Brooks Road from Highway #3 is available to the drivers of these trucks.

The Receiver of Haldimand-Norfolk Sanitary Landfill Inc., SF Partners Inc., is acting under theauthority of a court order as Receiver and Manager of the site. A copy of the order is enclosed withthis letter. The order gives the Receiver the authority to both complete the construction of the site,which is now done, and, of course, to protect any of the assets under its jurisdiction. At the present

10 CARI.SON COURT SUITE 600 TORONTO CANADA M9W 61.2 — TEL 416-361-0900 FAX 416-361-3459

time this involves bringing in waste to protect the clay liner within the cell so that it will not bedamaged by any lasting frost.

We certainly appreciate your assistance in this regard.

Yours very truly,

CARSON GROSS CHRISTIE KNUDSEN

QbA LL(electronically generated signature)

per: David RubinPROFESSIONAL CORPORATION

DR/lw

Enclosure

cc. Brahm Rosen (delivered by fax)cc. Romeo Di Battista, Jr. (Delivered by fax)cc. Gregory Ferraro (delivered by fax>

CARSON GROSS CHRISTIE KNUDSEN

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sprey Media - Dunaville Chronicle - Print Version Story ID 786400 http:/fwww.dunnvillechronicle.conu/webapp/sitepageslprintable.asp?pap...

[io1CHELSEA

iCHRON1CLEPrinted from www.dunnvillechronicle.com web site Thursday, November 22, 2007 - © 2007 Dunnville Chronicle

County and Six Nations residents prevent garbage deliveries; United over fasttracked government approvals

BY KAREN BEST Chronicle Staff Writer

Wednesday, November21, 2007 - 05:00

Local News- Just after 7 a.m. on Nov. 16, a truck driver found his route to the Edwards Landfill blocked by two dozen people fromtwo communities along the Grand River.

One of the six Ontario Provincial Police officers assigned that day to the protest at Brooks Road and Highway 3 spoke tothe driver.

Officers earlier told members of Haldimarid Against Landfill Transfers (HALT) and of Six Nations that they would advisegarbage haulers that they will not be going into the dump near Cayuga.

When two more trucks signalled to turn onto Brooks Road. Shoulder to shoulder HALT member Jody Orr and Six Nationscitizen Phillip W. Skye stood in front of them holding signs bearing the slogan HALT the Dump.

The scene captured a shared commitment to prevent landfiiling of institutional, commercial and industrial waste in a dumpestablished in 1959 before environmental protections were in place. In 1991, the Ontario Ministr of the Environmentbranded the dump as the rural landfill posing the highest hazard to humans.

Today landfill guidelines exist but, as HALT found out, they can be handled in an unexpected manner. On Nov. 13, HALTmembers began an active protest because they believed the inherent protection of approval conditions was flouted by theministry and SF Partners senior vice-president Brahm Rosen. In September, he became the receiver of the dumpcorporation, Haldimand Norfolk Sanitary Landfill mc, when it went into receivership due to debts totalling $10 million.

Among many of the 100 conditions listed in the dump’s amended certificate of approval, originally issued in May 2004, isCondition 30. It requires decommissioning a historic waste section that contains drums of toxic materials. Required by theOntario Superior Court of Justice to comply with th approval certificate, the receiver did not meet a Nov. ‘1 deadline forfiling a decommissioning plan or the initiation of decommissioning. He asked for an extension that could put off clean upfor a full year. Before any decisions were made on the request, the ministry was ready to allow delivery of new waste,HALT noted.

‘We are particularly objecting to the ministry allowing garbage to go in while thedunip operator is non compliant withcondition 30,’ said HALT co-chair Anne Vallentin of the ministry’s bypass of a condition extremely important to thecommunity.

From the beginning, residents were told that reactivation of the Edwards Landfill was a good project because existingcontaminants would be removed, HALT said in an issued statement.

Demonstrator•Janet Fraser said the community’s understanding was the old waste would be cleaned up before garbagewas trucked in. Dave Bruce, who lives across the road from the intersection, said the ministry is not looking after theenvironment. If residents failed repetitively to comply with legal requirements, they would be be in jail, he added.

HALT does not want the garbage here and if the peaceful protest does not succeed, they will be creative with their nextmove, Vallentin confirmed.

DOWNTOWN TORONTO

of 3 11/22/07 5:41 AM

sprey Media - Dunnville Chronicle- Print Version Story ID 786400 http:J/www.dunnvillechronicle.com/webapp/sitepageslprintahle.asp?pap...

When Six Nations community members learned last week about HALT’s intentions, several decided to join them.

Spokesperson Ruby Montour said they came out because the receiver and the province had not contacted

Haudenosaunee Development Institute, which was established in September by the Confederacy Chiefs council to deaf

with development in the Haldimand Tract.

“This is Haudenosaurree land and we don’t approve dumping of garbage on there. This is our territory, We have

jurisdiction,” said Montour. We feel the only things going into this site will be your trucks removing your filthy waste.”

From 6 a.m. to just after 1 p.m. on Nov. 16, HALT and Six Nations members held up HALT the Dump signs to passing

motorists. Many beeped in support. Some Six Nations residents camed the purple Haudenosaunee flag.

Last Friday, dump project manager Romeo OiBattista Jr. said Edwards Landfill was ready and approved to take waste. “I

feel bad for everybody but (garbage) is part of life. lts waste we produce every day,” he added refusing to comment on

what action might be taken if the protest continued.

Later he told HALT members that no trucks would arrive that day and on Saturday. On Monday, trucks stayed away but

on Tuesday morning, two turned onto Brooks Road while protesters were away from the intersection. Clyde Powless of

Six Nations pulled his pick up truck in front of them blocking their passage. Two OPP cruisers arrived and officers

conferred with ministry officer Jason Ryan. After about an hour, the trucks left.

This situation solidified protesters’ resolve to stand guard on the road. “We will keep coming out. They have to deal with

Six Nations and HALT. We are a set now,” said Montour.

Both Montour and Skye expressed concerns about water contamination. Skye said the two groups stand as one on a

global issue related to the supply of drinkable water. The last thing responsible government should be doing is polluting it,

he added.

“The government is obviously not listening...They have to clean (the old waste> up,” said Montour. “When we stand

together as one voice, they have to listen.”

Because this project was fast tracked, there are unanswered questions about the groundwater contamination plume from

historic waste and whether it can be cleaned up, said Skye accusing the Ontario government of placing economics before

responsibility to future generations. He also noted that this project moved ahead without respect for land rights

negotiations underway between Six Nations, and the provincial and federal governments.

Prior to the joint demonstrations by HALT and people of Six Nations, formal notice asking for dump activity to cease was

issued by Aaron Detlor, a lawyer who is acting as an administrative assistant to the HDI.

On Nov. 14, he emailed a letter to the receiver and Ontario environment minister John Gerretsen advising them that their

plans to open the dump was an infringement of Haudenosaunee rights. He directed them to contact HDI.

Activity in Edwards Landfill including the receipt of garbage is contrary to both Canadian and Haudenosaunee law, he

continued. “We reserve the right to take such steps as we deem necessary to ensure the rights of the Haudenosaunee

are preserved and protected,” Detlor stated.

The letter also asked for the Ontario government to acknowledge its failure to consult with the Confederacy and its

obligation to do so. After receiving such a confirmation, the Confederacy council will meet with provincial officials to

discuss how consultation will be dealt with going forward.

In an interview, Detlor commented on the impact to county residents. “We’re also very concerned that the people of

Haldimand County be protected and that their interests be respected which to date has not been done by the province of

Ontario,” he said.

Throughout demonstrations wove a tangible theme of unity. “(Six Nations) stewardship and approach to land is very

important and we’re very concerned about the environment and Land,” said Orr. “I’m delighted to welcome our brothers

and sisters from Six Nations in this struggle over the environment. We share a common cause.”

“I appreciate the opportunity to work together,” concurred Vallentin.

For Skye. it was an honour. He said the Haudenosaunee seek and maintain relationships and promote peace through

common goals. This one event can serve as a message to Canada that differences can be put aside, he continued: “Ifs

important that we stand together showing solidarity on what matters the most,” he said.

Over more than two years, HALT has been in discussions with Six Nations and has made presentations to the

of 3 I1/22/075:4IAM

sprey Media - Dunnvulle Chronicle Print Version - Story ID 786400 http://www.dunnvillechronicte.com/webapplsitepages/printable.asp?pap...

Confederacy and elected councs. Dialogue continues.

During demonstrations, ministry provincial officer Jason Ryan was on location due to the very remote possibility thatgarbage would received. Under a commitment to the community, he or another provincial officer will be on the site toensure that new waste is of an acceptable nature, he said. By early next year, a fuiltime ministry inspector, whose wageswill be paid by the dump operator, will be posted at the site as ordered in an approval condition,

Ryan offered the ministrys position on approval certificate compliance. Under a binding requirement, the owner mustremove all hazardous waste. The ministry is working with the receiver to ensure a schedule and appropriate time frame isset for compliance to the outstanding condition on decommissioning, he said.

Conditions for accepting waste and decommissioning are on two separate tracks and are not chronological, added Ryan.

For the OPP, the demonstrations were monitoring assignments not policing issues, said OPP media spokesperson PaulaWright. “Anyone has the right to peacefully and lawfully protest,” she added. “As they do so, our role is again to ensuresafety and the peace is kept” app were assisting in the turning trucks around for safety purposes, said Wright.ID- 786400

@2007 Osprey Media. All Rights Reserved. This materia’ may not be published, broadcast rewritten, or redistributed.

of 3 11/22107 5:41 AM

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