Environment and Land Tribunals Ontario. Summaries of Decisions and Significant Orders of the Environmental Review Tribunal

Transcription

1 Environment and Land Tribunals Ontario Summaries of Decisions and Significant Orders of the Environmental Review Tribunal April 1, 2009 to March 31, 2010

2 Summaries of Decisions and Significant Orders Fiscal Year April 1, 2009 to March 31, 2010 Consolidated Hearings Act Re Nelson Aggregate Co. (Order) Environmental Bill of Rights, Protect Our Water and Environmental Resources v. Director, Ministry of the Environment (Decision) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Baker v. Directors, Ministry of the Environment (Order) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Beattie v. Director, Ministry of the Environment (Decision) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Decision) McRae v. Director, Ministry of the Environment (Decision) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Quinte West v. Director, Ministry of the Environment (Decision) Corporation of the City of Toronto v. Director, Ministry of the Environment (Decision).12 Scharfe obo Ramsayville Community Association v. Director, Ministry of the Environment (Decision) Sharfe obo Ramsayville Community Association v. Director, Ministry of the Environment (Decision) McIntosh v. Director, Ministry of the Environment (Decision) Environmental Protection Act Brander v. Director, Ministry of the Environment (Order) Reeves v. Director, Ministry of the Environment (Decision) Swanson v. Regional Municipality of York (Decision) Orgaworld Canada Ltd. v. Director, Ministry of the Environment (Decision) Greentowne Environmental Inc. v. Director, Ministry of the Environment (Decision)...18 Global Environmental Solutions Inc. v. Director, Ministry of the Environment (Decision).18 Tembec Industries Inc. v. Director, Ministry of the Environment (Order) Brander v. Director, Ministry of the Environment / Ontario Inc. v, Director, Ministry of the Environment (Decision) Inter-Recycling Systems Inc. v. Director, Ministry of the Environment (Decision)...21 The Corporation of the Village of Merrickville-Wolford v. Director, Ministry of the Environment (Decision) Grant v. Director, Ministry of the Environment (Decision) Tembec Industries Inc. v. Director, Ministry of the Environment (Order) Halton Recycling Ltd. v. Director, Ministry of the Environment (Decision) Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Order) Iannuzzi v. Director, Ministry of the Environment (Decision) i

3 Tudor v. Director, Ministry of the Environment (Decision) Buchan v. Director, Ministry of the Environment (Order) Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Order) D Andrea v. Director, Ministry of the Environment (Decision) Detox Environmental Ltd. v. Director, Ministry of the Environment (Decision) Cosford v. The Corporation of the City of London (Decision) Niagara Escarpment Planning and Development Act Cardozo v. Niagara Escarpment Commission (Decision) Stewart v. Niagara Escarpment Commission (Decision) Kocsis v. Niagara Escarpment Commission (Decision) Iafrate v Niagara Escarpment Commission (Decision) Tapper v. Niagara Escarpment Commission (Decision) Mustard v. Niagara Escarpment Commission (Decision) Koren v. Niagara Escarpment Commission (Decision) Colangelo v. Niagara Escarpment Commission (Decision) Gibson v. Niagara Escarpment Commission (Decision) Johnson v. Niagara Escarpment Commission (Decision) Ecker-Vanderploeg v. Niagara Escarpment Commission (Decision) Stewart v. Niagara Escarpment Commission (Decision) Russel v. Niagara Escarpment Commission (Decision) Roic v. Niagara Escarpment Commission (Decision) Van Vliet v. Niagara Escarpment Commission Ontario Water Resources Act Dios v. Director, Ministry of the Environment (Decision) Burbidge v. Director, Ministry of the Environment (Decision) Corporation of the Township of North Glengarry v. Director, Ministry of the Environment (Decision) Kagawong Power Incorporated v. Director, Ministry of the Environment (Decision)...44 Dautner v. Director, Ministry of the Environment (Decision) Safe Drinking Water Act Gentille v. Director, Ministry of the Environment (Decision) Hotrum v. Director, Ministry of the Environment (Decision) ii

4 The following are summaries of all Decisions and significant Orders released in fiscal year , except those cases where the Appellant, Applicant or Proponent withdrew before a Hearing. All references to the Tribunal s Rules of Practice and Practice Directions reflect those provisions that were in place at the time the Decision or Order was issued. Consolidated Hearings Act Re Nelson Aggregate Co. (Order) Pursuant to section 3 of the Consolidated Hearings Act ( CHA ), Nelson Aggregate Co. ( Proponent ) filed for a Hearing before a Joint Board regarding a proposal to extend its existing quarry for the purpose of extracting aggregate material in the City of Burlington. The consolidated matters included applications under the Niagara Escarpment Planning and Development Act ( NEPDA ), the Planning Act ( PA ), and the Aggregate Resources Act ( ARA ). The City of Burlington, a Party to the matter, brought a Motion for legal clarity on the key framework issues regarding the proposed undertaking and the approval matters before the Joint Board. The Joint Board first considered whether the scope of the undertaking should be amended to include the existing quarry. The Joint Board found that it did not have the jurisdiction to add other ARA matters regarding the existing quarry to this proceeding on its own initiative without there being an amendment to Reg The Notice of Undertaking referred to the presence of the existing quarry and the integration with the proposed extension which provided the context for the examination of whether the approvals sought for the extension should be granted. The Joint Board found that the applications already before it clearly allowed for the consideration of off-site impacts and the relationship of the proposed site with the existing quarry. The Board noted that if the applications were approved, the Joint Board could add terms and conditions to address off-site impacts. The Joint Board also considered whether it should order the Proponent to request an amendment to O. Reg. 96/08 to amend R.R.O. 1990, Regulation 171 ( Reg. 171 ) under the CHA, to include the existing quarry in the undertaking for purposes of the ARA. The Joint Board declined to make this order, for the following reasons. Since the existing quarry was already covered by two aggregate licences that addressed the extraction on the site, and the Proponent who would be applying for an amendment to its Site Plan, there was no hearing that was required or could be required under the ARA to trigger the inclusion of the existing quarry in this proceeding. A number of the undertakings listed in section 2 of Reg. 171 dealt with extensions to quarries that were also integrated with existing quarries and required site plan amendments, and were not added to Reg Additionally, the Joint Board considered the circumstances of this case, where it took two years for Reg. 96/08 to be enacted and that was on the agreement of all the Parties to the language proposed at the time the regulation was drafted. In the five years preceding the bringing of the Motion, none of the Parties raised any issues with the proposed wording of what became clause (g) of Reg The Joint Board further found that other Joint Boards have historically addressed extensions to quarries, and the fact that section 2 of Reg. 171 has only referred to extension properties, has not precluded Joint Boards from either hearing evidence regarding the existing sites or imposing conditions that may have bearing on the existing sites. What a Joint Board cannot do in this kind of situation is alter the existing licences on a property not listed in section 2. However, the Joint Board found that while the undertaking as described in Reg. 171 limited the ARA matter to be decided, this description did not limit the Joint Board from hearing evidence of the impacts of the proposed quarrying on the existing quarry and other off-site properties, nor did it prevent the Joint Board from imposing 1

5 relevant conditions. The Joint Board found that there was still the question of whether there were other hearings required under the statutes scheduled under the CHA that would warrant the Joint Board amending the Notice of Undertaking pursuant to section 6(4) of the CHA. The Joint Board agreed that the undertaking as prescribed in section 2 of Reg. 171 pertaining to the ARA did not restrict the Joint Board from amending the Notice of Undertaking to add the existing quarry to the description of the undertaking if it found that additional hearings were or may be required under scheduled legislation and if it found it was appropriate to do so. This question was addressed under issue two. The second issue under consideration was whether the Proponent was required to amend its Notice of Undertaking under section 6(4) of the CHA to add approvals including a Permit to Take Water ( PTTW ) under section 34 of the Ontario Water Resources Act ( OWRA ), a Certificate of Approval ( CofA ) to establish or alter sewage works under section 53 of the OWRA, and a CofA to discharge contaminants under section 9 of the EPA, in relation to either the proposed extension or the existing quarry. The Joint Board was asked to determine whether the Proponent should be required to amend its Notice of Undertaking under section 6(4) of the CHA to add an application for a Development Permit and a Niagara Escarpment Plan ( NEP ) amendment under the NEPDA in respect of the existing quarry. The Joint Board found that the CHA can apply to hearings that persons, other than a proponent, may trigger. In the case of a PTTW or CofA under the OWRA, an instrument holder may appeal the Director s decision and trigger a hearing, or a third party may trigger a hearing if Leave to Appeal is granted under the Environmental Bill of Rights, 1993 ( EBR ). The Joint Board found that it is the possibility of a hearing resulting from an appeal by an instrument holder that could trigger the application of the CHA. In this case, the Joint Board found it unnecessary to address considerations related to whether a third party may also trigger a hearing if granted Leave to Appeal under the EBR. The Joint Board declined to exercise its discretion under section 6(4) of the CHA to amend the Notice of Undertaking in relation to OWRA approvals. The Joint Board reasoned that the past practice had been for a proponent in pits and quarries applications to apply for OWRA permits and approvals after a Joint Board hearing. The requirement to obtain such permits and approvals had also been a condition imposed by Joint Boards in relation to quarry extension applications. The Joint Board found that the Proponent had been up front about obtaining a PTTW and CofA, none of the other Parties had raised this concern over the previous five years, and that the Joint Agency Review Team ( JART ) process did not raise the order of approvals as a concern. The Joint Board noted that water quality and quantity issues would be addressed in the proceeding before it, in the context of the ARA, NEPDA, and PA applications. Finally, the NEPDA requires that a Development Permit application be decided before other approvals are given, and if the Development Permit is refused, there would be no need for the Proponent to apply for a PTTW or CofA. Regarding the potential EPA and OWRA approvals in relation to the existing quarry site, the Joint Board found that there was no evidence presented suggesting that any additional OWRA approvals were required. The Joint Board also accepted that a CofA issued under section 9 of the EPA was not required at the existing quarry to permit the extension, and found that no hearing may be required under the EPA to trigger the operation of the CHA in respect of the existing quarry. Regarding potential Development Permit and NEP amendment approvals under the NEPDA for the existing quarry, the Joint Board found that it had received insufficient evidence and legal argument to reach a conclusion as to whether it should exercise its discretion under section 6(4) of the CHA and order the Notice of Undertaking to be amended to add these additional 2

6 approvals. The Joint Board was also concerned that in the five years leading up to the Motion, the Niagara Escarpment Commission ( NEC ) did not raise any issue with the approvals the Proponent would require under the NEPDA. The Joint Board concluded that the NEC should clarify its position and provide written reasons based on input from the NEC planners as to whether a Development Permit application and NEP amendment are required for the existing quarry in relation to the proposed extension where the sites are to be integrated by November 19, The Joint Board noted that it would consider the matter further at the Preliminary Hearing, and issue any related procedural directions that may be required. The final issue considered by the Joint Board was whether (a) the 1994 or 2005 NEP and (b) the 1997 or 2005 Provincial Policy Statement ( PPS ) applied to the decisions of the Joint Board. The Joint Board found that the 2005 NEP, as amended, applied to the NEPDA approvals before the Board. The definition of the NEP in section 1 of the NEPDA was read together with section 25(4) of the NEPDA to mean that any plan amendment and development permit approvals must be decided in the context of the most current NEP, read as amended. The Joint Board found that the Proponent did not have a vested or accrued right to have its applications considered under the 1994 NEP. The Joint Board applied Paletta, stating that an application under the NEPDA does not provide a vested or accrued right to approval at the time the NEP was amended, but only a mere hope or expectation that its applications might be approved. The Joint Board found that the Clergy principle did not apply to the applications under the NEDPA. The modified Clergy principle states that the statutory regime in place at the time of the application should be applied, except in rare circumstances, to provide fairness to the applicant. The Joint Board noted that the Clergy principle was developed by the Ontario Municipal Board for matters within its own jurisdiction, where there was no clear statutory provision determining the issue. In this case, sections 1 and 25(4) of the NEPDA were present to guide the Joint Board, thus the Clergy principle was not applicable. The Joint Board considered whether section 3(5) of the PA applied to approvals under the NEPDA, which would provide for guidance as to which transition provisions and policies were applicable. The Joint Board examined sections 13, 14 and 24 of the NEPDA and found that the NEPDA is a specialized piece of legislation dealing with development in the Niagara Escarpment Planning Area, and takes precedence over other statutes such as the PA when governing the Joint Board s decision-making in relation to development permits and NEP amendments. The Joint Board found that it was unnecessary to make a finding respecting the interpretation of section 3(5) of the PA and whether it applied to the decisions it had to make under the NEPDA. The Joint Board found that the 1997 PPS applied to the applications under the PA to amend Halton and Burlington Official Plans before the Board, by reading the plain language of the 2005 PPS, PA Regulation 385/04 sections 1.1, 1(6), and PA section 3(5). The Joint Board found that the key date for PA transition provisions is the date of the application, matter or proceeding, which commenced before March 1, 2005 such that the 1997 PPS applies. The Joint Board accepted that section 52 of the Legislation Act was not applicable in this case, because O. Reg. 385/04 was never revoked, replaced or amended. The Joint Board concluded that it must have regard to the 1997 PPS in relation to the Proponent s two applications to amend the Halton and Burlington Official Plans. The Joint Board found that the 2005 PPS applied to the Proponent s applications under the NEPDA, because the wording in the 2005 NEP mirrored the wording of the 2005 PPS, where in 3

7 making NEP amendments, the decision should be consistent with the PPS. The Joint Board found that the NEP had precedence over the PPS in the case of any conflict, by referring to sections 13, 14 and 24(3) of the NEPDA, section 4.9 of the 2005 PPS, the Divisional Court s reasons in Paletta, and the Joint Board s reasons in Dufferin Aggregates. With respect to the Proponent s application for a license under the ARA, the Joint Board found that it was the NEPDA approvals that took precedence. Thus if the Development Permit or the NEP amendment applications were turned down, an ARA license could not be issued, pursuant to section 24(3) of the NEPDA. If the NEPDA approvals were granted, an examination of the 2005 PPS would have already occurred. Any remaining issues would be considered under the PA and ARA licencing. The Tribunal issued its procedural orders accordingly. Order Released: October 29, 2009 (Case No.: ) Environmental Bill of Rights, 1993 Protect Our Water and Environmental Resources v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Protect Our Water and Environmental Resources Inc. Halton Hills ( POWER ), Stephen Lister and Kathy Lister ( Applicants ) filed applications with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment ( MOE ), under section 34 of the Ontario Water Resources Act. The Director issued an Amended Permit to Take Water (Groundwater) ( PTTW ) to St. Lawrence Cement Inc. for water-taking at the Acton Quarry in the Town of Halton Hills. The Tribunal found that the Applicants had an interest in the Director s decision and had standing to seek Leave to Appeal pursuant to section 38 of the EBR. In regard to whether all or some portions of the Reply filed by the Applicants should be expunged, the Tribunal allowed Reply materials which provided context in order to modestly expand on some of the points made in the Leave application. The Tribunal found that certain employee statements submitted by the Applicants had limited weight since the Tribunal had no way of understanding the context, background or implications of those statements. The Tribunal considered whether the Applicants satisfied the two-part test for Leave to Appeal under section 41(a) and (b) of the EBR. Under section 41(a), Applicants must establish that there is good reason to believe that no reasonable person could have made the decision with regard to relevant law and policies. Under section 41(b), Applicants must establish that it appears that the decision could result in significant harm to the environment. Under part one of the test, the Tribunal found that the updates to the MOE s Statement of Environmental Values ( SEV ) did not alter the findings in the Tribunal s earlier Lafarge decision, which established that the Director must consider the SEV before making a decision regarding a Class I or Class II instrument. There was evidence from the Director as to how the SEV was considered by reviewing the relevant law, regulations and guidance material. The Tribunal found that it did not appear that there was good reason to believe that the Director s decision to issue the PTTW failed to properly consider the MOE SEV. Continuing under part one of the test, the Tribunal considered whether the Director had regard for the Applicants common law right of protection against adverse well impacts, and whether the Director had imposed conditions or measures to protect them. Examining the evidence, the 4

8 Tribunal found that it did not appear that there was good reason to believe that the Director s decision to issue the PTTW failed to have regard for the Applicants common law rights. The Applicants argued that the terms and conditions set out in the PTTW were inadequate to prevent significant environmental harm, and thus, the Director acted in an unreasonable manner in issuing the PTTW. Examining the evidence, the Tribunal found that it did not appear that there was good reason to believe that the Director s decision to issue the PTTW failed to have regard for the terms and conditions incorporated into the PTTW. The Tribunal recognized that inadequate conditions of an instrument may form the basis for satisfying the first branch of the section 41 test in the EBR, but the onus remained on the Applicants to satisfy this test. Given the Tribunal s findings with respect to the first part of the test for Leave to Appeal, it was not necessary to consider section 41(b). The application for Leave to Appeal was denied. Decision Released: June 3, 2009 (Case Nos.: /08-125/08-126) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Greenspace Alliance of Canada s Capital ( Applicant ) filed an application with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal the Director s Decision to issue a Permit to Take Water ( PTTW ) to Findlay Creek Properties Ltd. ( Instrument Holder ) pursuant to section 34 of the Ontario Water Resources Act. The PTTW authorized the Instrument Holder to take water from several sources at different times within a ten-year period. The Applicant brought a Motion to stay the PTTW pending the outcome of the Leave to Appeal application. This issue had not come before the Tribunal in any previous case. The issue on the Motion was whether the Tribunal had jurisdiction to grant such a stay. There were no provisions in the EBR expressly giving the Tribunal jurisdiction to grant stays pending decisions on Leave to Appeal applications. The Applicant submitted that the Tribunal could grant such stays pursuant to the Statutory Powers Procedure Act and the Tribunal Rules of Practice and Practice Directions. The Tribunal found that the case turned on the proper interpretation of section 121(1)(s) of the EBR, which made an express reference to stays pending Leave to Appeal decisions. Section 121(s) confers the power on the Lieutenant Governor-in-Council to make regulations, providing for stays pending decisions on applications for leave to appeal. The reference to stays pending leave decisions in section 121(1)(s) confirmed that the Legislature turned its mind to the issue of stays and how they should be handled. The Tribunal noted that in O.Reg. 73/94, the Lieutenant Governor-in-Council provided regulations for some of the other matters addressed in section 121, but had not yet adopted a regulation providing for stays pending decisions on applications for Leave to Appeal. The Tribunal found that it did not have the authority to order stays pending Leave to Appeal, in the absence of a regulation providing for them. The Tribunal found that the Legislature had given express authority to the Tribunal to make determinations on applications for Leave to Appeal, but the power to order stays pending that determination was within the discretion of the Lieutenant Governor-in-Council to regulate. Thus, the Tribunal found that the Legislature did not intend for the Tribunal to exercise the power to order stays under its general authority to determine its procedures or to issue interim orders, and could only do so if the Lieutenant Governor-in-Council had exercised its discretion and adopted a regulation authorizing them. 5

9 The Tribunal found that it did not have the jurisdiction to grant such stays, and dismissed the Motion. Order Released: June 4, 2009 (Case Nos.: and ) Baker v. Directors, Ministry of the Environment (Order) Pursuant to section 38(1) of the Environmental Bill of Rights, 1993 ( EBR ), Susan Quinton on behalf of Clean Air Bath, Martin Hauschild and William Kelley Hineman on behalf of Loyalist Environmental Coalition, Lake Ontario Waterkeeper and Gordon Downie, Paul Langloie and John Fay ( Applicants ), filed applications with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal two Certificates of Approval ( CofAs ) issued by two Directors, Ministry of the Environment ( MOE ). The Directors had issued the CofAs to Lafarge Canada Inc. ( Lafarge ) pursuant to section 9 of the Environmental Protection Act ( EPA ). The first, an amended CofA, permitted Lafarge to operate a Portland cement manufacturing facility. The second, a Provisional CofA, permitted Lafarge to operate a waste-disposal site. Both CofAs related to property in Loyalist Township in the County of Lennox and Addington. The Tribunal granted Leave to Appeal to the Applicants on April 4, Pursuant to Rule 50 of the Tribunal s Rules of Practice, the Tribunal allowed the Applicants to appeal the Directors decisions in their entirety. In September 2007, Lafarge sought to judicially review the Leave decision, and sought an adjournment of the Tribunal Hearing until the final disposition of its Judicial Review application. The adjournment was granted until September The Divisional Court dismissed the judicial review application and upheld the decision of the Tribunal. Lafarge s application for leave to appeal to the Court of Appeal of Ontario was dismissed. After Lafarge s request for leave had been denied, it requested that the Directors revoke both of the CofAs. The Directors agreed, and Lafarge requested a termination of the Tribunal proceeding. As none of the other Parties opposed Lafarge s request, the Tribunal dismissed the proceeding in December of The issue in this Tribunal Order involved the Applicants application for an award of costs against Lafarge incurred during the course of the entire proceeding. Section 17.1 of the Statutory Powers Procedure Act ( SPPA ) and Rule 217 of the Tribunal s Rules of Practice state that costs can only be ordered if the conduct or a course of conduct of a Party has been unreasonable, frivolous, vexatious, or if the Party has acted in bad faith. The Applicants sought costs on the basis that Lafarge had acted unreasonably, on several grounds. The Applicants also asserted that these individual instances of impugned conduct, when considered together, clearly demonstrated that Lafarge engaged in an unreasonable course of conduct during the course of this proceeding, even if the Tribunal did not find any of the individual instances to be unreasonable. The grounds included Lafarge s delay in requesting an adjournment pending the resolution of its judicial review application; delay in advising the Tribunal and other Parties that the Hearing would not proceed if the judicial review application was unsuccessful; delay in requesting that the Hearing be dismissed; submitting unmeritorious arguments to oppose the Applicants; failure to comply with procedural deadlines as ordered by the Tribunal; and failure to provide adequate explanation for various refusals to comply or co-operate with procedural and evidentiary arrangements agreed to by the Parties. The Tribunal found that in determining whether conduct is unreasonable, the Tribunal must apply the actual wording in section 17.1(2) of the SPPA and interpret it in light of the purposes of that Act. Accordingly, the Tribunal found that in order to award costs, it must find that the impugned conduct interfered with the Tribunal s ability to secure a just, most expeditious and 6

10 cost-effective determination of the proceeding. However, in keeping with Rule 218 of the Tribunal s Rules Practice, the Tribunal found it will only award costs in rare instances. The Tribunal reviewed all allegations of unreasonable conduct against Lafarge. The Tribunal found that there was one instance of unreasonable conduct, where Lafarge to failed to comply with procedural deadlines issued in the Tribunal Order of February 8, Although the Tribunal found that there was one instance of unreasonable conduct, this alone did not meet the required standard to warrant a costs award. Accordingly, the Tribunal dismissed the application for costs. Order Released: June 16, 2009 (Case Nos.: to ) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Pursuant to section 38 of the Environmental Bill of Rights, 1993, Greenspace Alliance of Canada s Capital and Sierra Club of Canada ( Applicants ) filed an application with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment ( MOE ). Under section 34 of the Ontario Water Resources Act, the Director issued a Permit to Take Water ( PTTW ) to Findlay Creek Properties Ltd and Ontario Limited ( Instrument Holders ) for water-taking in the City of Ottawa. The Director brought a Motion for an Order to expunge submissions and affidavit material from the Applicants Reply, on the ground that it constituted an improper Reply which was not in accordance with Rule 47 and the common law. The Director argued that the Reply was inappropriate because the Applicants were splitting their case; it did not flow directly from the Director s response; it contained information not within the Director s knowledge but which was prejudicial to the Director s position; and that it constituted a collateral attack on a previous decision issued by another agency which was irrelevant to this case and beyond the authority of the Tribunal. The Tribunal examined whether the Applicants had split their case by introducing the challenged material in the Reply. The test for proper Reply was set out in the Tribunal decision Tomagatick, which is whether the issue could have been reasonably anticipated and thus included in the original application for Leave to Appeal, whether the issue flowed directly from the Director s Response, or whether the material amplified or clarified a position on an issue the Applicants advanced in their initial application. The Tribunal noted that it would have been helpful if the Applicants had submitted a Reply that included challenges to the rationale used by the Director in issuing the PTTW, amplifications of the Applicant s experts earlier submissions, or challenges to explanations provided in the Director s Response. The Tribunal found that there was nothing that the Applicants pointed to in the Director s Response that revealed any new information which would justify such a Reply. The Tribunal found that raising new issues for the first time in a Reply was unfair to the other Parties if a chance to respond was not given. The Tribunal found that certain paragraphs of the Applicants Reply and the entire supporting Affidavit did not constitute proper Reply and should be expunged. The Tribunal thus granted the Director s Motion. The Instrument Holders submitted that the Applicants submissions constituted an abuse of process, as they were using the Leave to Appeal process to challenge decisions made by federal agencies over a decade prior. The Tribunal found that the Applicants submitted the challenged material in order to attempt to counter the reasonableness of the Director s decision 7

11 and not in order to launch a collateral attack. The Tribunal did not agree that the Applicants Reply constituted an abuse of process. Order Released: June 29, 2009 (Case Nos.: /09-032) Beattie v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), J. Stewart and Georgina Beattie, Theresa and Danny Civitarese, Giuseppê and Onorina Miceli, Anthony and Laura Giomo, Lynda Lukasik on behalf of Environment Hamilton, and Marlene Cassidy, George Cassidy, Steven Cassidy, and Tamara McLelland ( Applicants ) filed applications with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment. Under section 9 of the Environmental Protection Act ( EPA ), the Director issued a Certificate of Approval (Air) ( CofA ) to Imperial Precast Corp. approving cement storage silos, fuel above ground storage tanks, heaters, an HVAC unit, and an indoor furnace, as well as requiring a Best Management Practices Plan to control fugitive dust emissions respecting its operations (the Facility ) located in the City of Hamilton. The issue in this matter was whether the Applicants met the two-part test for Leave to Appeal under section 41 of the EBR. Under the first branch of the test, the Applicants argued against the reasonableness of the scientific and technical basis of the decision. The Tribunal found that the Director had clearly contemplated fugitive dust emissions and the CofA included conditions to address this consideration. The Tribunal recognized the uncertainty inherent in allowing the Best Practices Management Plan to be developed after a CofA is issued. The Tribunal found that the Applicants had not established any significant deficiency in the regulatory controls and record retention practices set out in the CofA which would lead the Tribunal to conclude that it appears that no reasonable person could have made the decision to issue the CofA on the terms and conditions imposed by the Director. The Tribunal noted that a noise assessment was to have been completed as a condition of the CofA, but no acoustic assessment had yet been completed. This raised a serious question as to whether it appeared that a reasonable person would have issued the CofA prior to completion of the acoustic assessment. However, the Tribunal found that there was flexibility in the CofA to address any noise concerns if they became evident. The Tribunal found that the Director had conducted a reliable professional assessment regarding compliance with the Noise Guideline prior to issuing the CofA, and that the Applicants had not provided evidence regarding the potential impact of noise from the Facility. The Tribunal urged the Director to require completion of an acoustic assessment as soon as possible. The Tribunal found that the Applicants arguments regarding loss of enjoyment of normal use of property were too general. The Applicants had provided no evidence to suggest that the proposed operations at the Facility presented concerns that could not be adequately addressed under the general reporting obligations under section 15 of the EPA; no evidence to indicate that emission levels had the potential to cause harm or material discomfort or an adverse effect on health; and no evidence to establish that there were specific concerns regarding surface water pollution that should have been addressed in the CofA. In conclusion, the Tribunal found that the Applicants had not established that it appeared that there was good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision to issue the CofA. Given the Tribunal s findings with respect to the first part of the test for Leave to Appeal, it was not necessary to consider the 8

12 second part of the test under section 41(b) of the EBR. The Tribunal denied the applications for Leave to Appeal. Decision Released: July 9, 2009 (Case Nos.: to ) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Greenspace Alliance of Canada s Capital and Sierra Club of Canada ( Applicants ) filed applications with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment, under section 34 of the Ontario Water Resources Act. The Director issued a Permit to Take Water ( PTTW ) to Findlay Creek Properties Ltd. and Ontario Limited ( Instrument Holders ) for water-taking during construction of a primarily residential subdivision known as Findlay Creek Village in the City of Ottawa. The Instrument Holders submitted a Motion for Costs, stating that the Applicants were re-litgating issues and thus initiating a proceeding that was frivolous and vexatious. The Tribunal found that the Applicants had standing to seek Leave to Appeal under section 38 of the EBR. The Tribunal found that the Applicants met the first branch of the Leave test under section 41(a) in part, under three grounds. First, the Tribunal agreed with the Applicants that there was little in the record about any studies that support water takings from the Miscellaneous Ponded Areas and nothing that assessed their volume or potential impacts on groundwater recharge, flows in Findlay Creek or on the natural functions of the ecosystem. The Tribunal found that it would have been appropriate for the Director to consider imposing conditions for monitoring and mitigation to ensure the protection of the natural functions of the ecosystem, as required by the Water Taking and Transfer Regulation ( WTTR ). The Tribunal found that the Applicants had shown that it appears that there is good reason to believe that no reasonable person, having regard for the WTTR, would have made the decision to permit the surface water takings from the Miscellaneous Ponded Areas. Next, the Tribunal agreed with the Applicants that the removal of trigger levels from Monitors 10-03A and B may not adequately ensure protection of the functions of the ecosystem under the PTTW Monitoring Plan such that there appears to be good reason to believe that no reasonable person would have made the decision to remove them. Lastly, the Applicants criticized Condition 4.8 of the PTTW, which provides that if the monitoring program indicates an adverse impact is occurring or has occurred in Findlay Creek, the Instrument Holders must analyze it and submit a report to the Director within seven days of discovering the impact. The Tribunal agreed with the Applicants that there is no guidance in this condition to indicate to the Instrument Holders when it might be triggered. The Tribunal found that the Applicants had shown that it appears there is good reason to believe that no reasonable person, having regard for the WTTR, would have made the decision to include Condition 4.8 as currently worded in the PTTW. Under the second branch of the Leave test under section 41(b), the Tribunal found that there was a lack of evidence to justify the Director s decision in part, and a great deal of uncertainty about what the potential impacts of issuing the PTTW could be. The Tribunal found that the Applicants had provided sufficient evidence to demonstrate that it appears that there could be significant harm to the environment as a result of the Director s decision to issue the PTTW. 9

13 In regard to whether costs should be awarded to the Instrument Holders, the Tribunal found that the Applicants submissions and conduct were not frivolous, vexatious, or unreasonable. Leave to Appeal was granted in part, and the request for costs was denied. Decision Released: July 29, 2009 (Case Nos.: /09-032) McRae v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Ken McRae ( Applicant ) filed an application with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision by the Director, Ministry of the Environment under section 34 of the Ontario Water Resources Act ( OWRA ) to issue a Permit to Take Water ( PTTW ) to Thomas Cavanagh Construction Limited ( Instrument Holder ) for the purposes of water-taking from the Henderson Quarry Sump located in the City of Ottawa, Ontario. The Tribunal found that the Applicant had standing to seek Leave to Appeal, pursuant to section 38 of the EBR. The Applicant resided in the municipality within which the quarry was located and thus had an interest in the decision, and the Instrument Holder had a right to appeal the Director s decision if the PTTW had been refused. The Tribunal found that the Applicant had satisfied the first branch of the Leave to Appeal test under section 41(a) of the EBR, as there was good reason to believe that no reasonable person, having regard to the relevant law and government policies, could have made the decision to issue the PTTW without considering a proponent s history of environmental non-compliance. Under section 4(2)(4)(ii) of Ontario Regulation 347/04 made under the OWRA, the Director is to consider any matters that the Director considers relevant. The Tribunal accepted the Applicant s argument that since the Instrument Holder had a poor record of compliance with previous environmental approvals, it could be expected to violate the conditions of this PTTW. The Tribunal found that environmental violations under any statute reveals the regard with which a proponent views its legal obligations and reflects the likelihood that the proponent is likely to commit further violations in the future. The Tribunal found that a company s entire environmental compliance history is relevant, not just its history under the provision being applied by the Director in deciding whether to issue a permit or approval. In this case, the Director had not taken the Instrument Holder s history of non-compliance into account in deciding whether to grant this PTTW. The Tribunal found that it would be unreasonable for the Director to disregard the compliance record of a proponent before issuing a PTTW, and that the first branch of the Leave to Appeal test under section 41(a) of the EBR was satisfied. The Tribunal found that the Applicant failed to meet the second branch of the Leave to Appeal test under section 41(b) because there was little evidence that water-taking under the PTTW could cause significant environmental harm to the wetland. The Tribunal dismissed the application for Leave to Appeal. Decision Released: August 21, 2009 (Case No.: ) Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Order) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Greenspace Alliance of Canada s Capital and Sierra Club of Canada ( Applicants ) filed applications with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment, under section 34 of the Ontario Water Resources Act. The Director 10

14 issued a Permit to Take Water ( PTTW ) to Findlay Creek Properties Ltd. and Ontario Limited ( Instrument Holders ) for water-taking during construction of a primarily residential subdivision known as Findlay Creek Village (the development ) in the City of Ottawa. Leave to Appeal was granted in part on July 29, The Instrument Holders requested a determination as to whether the automatic stay under section 42 of the EBR applied only to those portions of the PTTW for which Leave to Appeal was granted. Examining its jurisdiction, the Tribunal found that section 42 of the EBR provides that the granting of Leave to Appeal stays the operation of the decision pending the disposition of the appeal, unless the Tribunal orders otherwise. The provision does not mention partial leaves or partial stays. The Tribunal found that in the event of Leave to Appeal being granted on limited grounds, section 42 of the EBR applies to stay the operation of the decision being appealed in its entirety, but the Tribunal has the authority to vary the application of the stay in each case, if the appropriate criteria are met. The Tribunal examined whether the stay should be lifted. The Tribunal found that the onus is on the Party seeking to have a stay lifted to demonstrate that the criteria in Rule 101 of the Tribunal s Rules of Practice are satisfied. Namely, whether there is a serious issue to be decided, whether irreparable harm will result if relief is not granted, and whether the balance of convenience, including effects on the public interest, favours granting the relief requested. The Tribunal examined each of the water sources, and found that there were sufficient grounds to lift the stay with respect to groundwater takings from Source 1 on the condition that the trigger levels in monitoring wells 03-10A and B were reinstated pending disposition of the appeal. There was no serious issue to be tried other than these two conditions, and there was unlikely to be irreparable harm to the environment in the short-term if groundwater takings continue and Condition 4.8 remained in its present form. Leave to Appeal was not granted with respect to Sources 2 and 3, so the Tribunal found there was no serious issue to be tried with respect to these takings. The Tribunal also noted that there was evidence of a serious risk of long-term harm to the environment if the stay was not lifted with respect to Sources 2 and 3. Leave to Appeal had been granted with respect to Source 4, so the Tribunal found that there was a serious issue to be tried. There was also evidence of irreparable harm if the stay remained in place and the potential for environmental harm if water taking was allowed from Source 4. The Tribunal found there were not sufficient grounds to support lifting the stay with respect to watertakings from Source 4. The Tribunal ordered that, pending disposition of the appeal, the stay of the PTTW be lifted with respect to water-takings from Source 1 with conditions, and from Source 2 and 3. The stay with respect to Source 4 remained in effect. Order Released: August 28, 2009 (Case Nos.: /09-032) Quinte West v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights 1993 ( EBR ), the Corporation of the City of Quinte West ( Applicant ) filed an application with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision by the Director, Ministry of the Environment under section 34 of the Ontario Water Resources Act ( OWRA ) to issue a Permit to Take Water ( PTTW ) to Michael Wade Construction Co. Limited ( Instrument Holder ) for the purposes of golf course irrigation from a well and two ponds located in the City of Quinte West. 11

15 The Tribunal found that the Applicant had standing to seek Leave to Appeal pursuant to section 38 of the EBR. The Applicant was a municipal corporation and thus a legal person. The PTTW authorized water-taking in the City of Quinte West, and therefore the Applicant had an interest in the decision. Under section 100 of the OWRA, had the Director refused to issue the PTTW, the Instrument Holder would have had the right to appeal the decision. The Tribunal found that the Applicant met the first part of the Leave to Appeal test under section 41(a) of the EBR, on the ground that the Director omitted to assess the effects of potential sources of contaminants, such as fertilizers, pesticides and herbicides, within the area of influence on shallow well water supply. The Tribunal found that the Ministry of the Environment s Statement of Environmental Values ( MOE SEV ) required a precautionary, science-based approach, in its decision-making in order to protect human health and the environment. The Director s conclusion that there was no prospect of contamination from these chemical sources as a result of water-taking under the PTTW was not based on scientific evidence of any kind. The Tribunal found that EBR section 41(a) was satisfied, as it appeared there was good reason to believe that no reasonable person, having regard to the relevant law and policies, could have come to the conclusion that there would be no contamination to local wells from fertilizers, pesticides or herbicides as a result of water-taking under the PTTW without having considered relevant scientific evidence. The Tribunal found that the second branch of the Leave to Appeal test under EBR section 41(b) was also satisfied, on the ground that water-taking pursuant to the PTTW could result in contamination of neighbouring wells with fertilizers, pesticides and herbicides, and had the potential to cause significant environmental harm. In light of the uncertainty, the Tribunal took a precautionary approach and presumed the existence of environmental risk in absence of proof to the contrary. The Tribunal granted the Applicant Leave to Appeal the Director s decision to issue the PTTW in part. Decision Released: September 28, 2009 (Case No.: ) Corporation of the City of Toronto v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), the Corporation of the City of Toronto ( Applicant ) filed an application with the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment ( MOE ). The Director decided to issue a Certificate of Approval Air under section 9 of the Environmental Protection Act to New Sabby Concrete and Supplies Inc. with respect to an existing cement batch plant (the Site ) located in the City of Toronto. The Tribunal examined whether the Applicant had standing to seek Leave to Appeal, pursuant to section 38 of the EBR. The Tribunal found that the Applicant had an interest in the proceeding, since the Site was within the City s boundaries. The City had submitted a comment in response to New Sabby s application for a CofA during the public comment period, evidencing its interest in the decision. The City was granted Party status in a related appeal by New Sabby. The Tribunal found that the Applicant satisfied the EBR section 38 test and had standing to seek Leave to Appeal. The Tribunal then considered whether the Applicant met the two-part test for Leave to Appeal under section 41 of the EBR. The Tribunal found that the Applicant met the first part of the section 41 test on the ground that the Director did not consider whether the Instrument Holder was in compliance with the MOE s publication NPC-205 entitled Sound Level Limits for 12