Ontario court sets November 13 deadline for Norfolk soil-testing work plan

Two utility contractors and a Norfolk County landowner must prepare and submit a soil-investigation work plan by November 13, 2026, after Ontario's Divisional Court dismissed their appeal from a refusal to pause the requirement.

The deadline is for a work plan, not completed soil testing or cleanup. The court did not decide that the land was contaminated, find anyone guilty of an offence or finally determine whether the Ministry's underlying order was lawful.

In Synergy Underground Utilities Inc. et al. v. Ontario (Environment, Conservation and Parks), 2026 ONSC 5655, released October 13, 2026, Justices Kurke, Bale and Maxwell held that the court had no jurisdiction to hear the appeal because the Ontario Land Tribunal's refusal of a stay was an interim, rather than final, decision. Justice L. Bale wrote the reasons.

Excess soil deposited at a Norfolk property

The appellants were Synergy Underground Utilities Inc., Underground Conduit Solutions Inc. and Matthew Ducharme, the property owner and president of Underground.

Synergy installs buried cables and pipes for municipalities and utility providers and transports soil excavated during that work. Underground provides excavation and utility-infrastructure services, including cable pulling and soil removal.

The case concerns a 49-acre, agriculturally zoned property in Norfolk County, where Underground operates its business. An excavated pit had been created by a previous owner. Synergy and Underground began placing excess soil in the pit around 2022.

The Ministry received an anonymous complaint in June 2024 about liquid excess soil being deposited there. A provincial officer inspected the property and then directed that deposits stop and that sampling be undertaken. All excess-soil deposits had voluntarily stopped by June 10, 2024, the reasons say.

The investigation later led to provincial-offence charges laid on January 6, 2026. According to the reasons, Ministry disclosure linked its concern to soil from a Rogers Communications installation project on Norfolk municipal road allowances between April 28, 2023 and June 5, 2024. Those charges were background to this appeal, not matters on which the Divisional Court determined guilt.

What the work plan must address

A provincial officer issued an order on January 19, 2026. After the appellants requested review, the Director confirmed it on January 30.

The disputed requirements, items 3 and 4, called for a qualified person to prepare a work plan characterizing the quality of any liquid excess soil on the land and for a copy to be submitted to the Ministry.

The plan must address field investigations; proposed sample numbers, locations and testing parameters; information needed for a soil-characterization report; and a timetable for carrying out the work. The November 13 deadline applies to preparing and submitting that plan. It does not require every investigation or test to be completed by that date.

The appellants appealed the Director's order to the Ontario Land Tribunal. The outstanding issues include whether the Director had authority to issue it, whether it is appropriate, whether the named parties were properly included, and whether its requirements and deadlines are reasonable and necessary to protect the environment.

As of the court's reasons, a 10-day tribunal hearing was scheduled to begin February 8, 2027. The Divisional Court's ruling did not resolve those underlying issues.

Why the court could not hear the stay appeal

The Tribunal heard the appellants' request to pause items 3 and 4 in March 2026 and refused it on April 15. In support of their request, the appellants submitted a GEMTEC expert report expressing the view that the deposited soil posed a low risk of being affected at a level of concern for the existing land use and applicable soil-quality standards. That was the appellants' expert opinion, not a court finding that the soil was safe.

The appellants then appealed the stay refusal to the Divisional Court. A judge temporarily paused the two requirements on June 16 while the court considered the matter.

The central obstacle was section 145.6 of the Environmental Protection Act. The court held that the legislation did not authorize an appeal from an interlocutory Tribunal decision. An interlocutory order leaves the substantive dispute or rights to relief unresolved.

The appellants argued that refusing a stay effectively forced them to comply with the very order they said the Ministry had no power to make. Once they prepared and disclosed the work plan, that step could not be undone, even if their challenge later succeeded.

The judges acknowledged that practical concern but explained that an order's legal nature, not its practical impact, determines whether it is final for appeal purposes. The Tribunal had not decided the underlying lawfulness of the Director's order. Its refusal to pause compliance therefore remained interlocutory, despite the potentially irreversible consequences of preparing and supplying the plan.

Concerns about the Tribunal's reasoning did not create jurisdiction

The court did not endorse every aspect of the Tribunal's stay analysis. It expressly shared some concerns about how the Tribunal described and applied the RJR-MacDonald framework for stays.

In a footnote, the judges explained that the framework involves three interconnected considerations rather than separate, watertight tests, and that strength in one factor can compensate for weakness in another. The overarching question is whether a stay serves the interests of justice.

Those concerns could not overcome the lack of appeal jurisdiction. The court dismissed the appeal, lifted the June interim stay and extended the time for compliance with items 3 and 4 to November 13, 2026.

It also fixed costs payable by the appellants to the Ministry at $35,000, including HST and disbursements, as agreed by the parties. That is a litigation-costs award, not a fine.

The immediate consequence is an obligation to produce the investigation plan while the challenge to the Director's order remains unresolved. The ruling illustrates the distinction between challenging an environmental order on its merits and appealing an interim refusal to suspend compliance.