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, 2010 to December 31, 2010

2 Environmental Review Tribunal Summaries of Decisions and Significant Orders April to December 31, 2010 Consolidated Hearings Act 2 Re Nelson Aggregate Co. (Order) 2 Environmental Bill of Rights, Wylie v. Director, Ministry of the Environment (Decision Ontario Inc. v. Director, Ministry of the Environment (Decision) 4 Action Kagawong Watershed Association Incorporated v. Director, Ministry of the Environment (Decision) 6 Dalton v. Director, Ministry of the Environment (Decision) 7 Welch v. Director, Ministry of the Environment (Decision) 8 Moreau v. Director, Ministry of the Environment (Decision) 8 Environmental Protection Act 10 Canadian Environmental Services Inc. v. Director, Ministry of the Environment (Decision) 10 Ward v. Director, Ministry of the Environment (Decision) 11 Bayvista Industrial Inc. v. Director, Ministry of the Environment (Decision) Ontario Limited v. Director, Ministry of the Environment (Decision) 12 Fruition Manufacturing Limited o/a Maidstone Coffee Canada v. Director, Ministry of the Environment (Decision) 13 Tembec Industries Inc. v. Director, Ministry of the Environment (Order) 14 Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Decision) 15 Giampaolo v. Director, Ministry of the Environment (Decision) 17 Sunderani v. Director, Ministry of Environment (Decision) 18 Brander v. Director, Ministry of the Environment (Decision) 19 Strite Industries Limited v. Director, Ministry of the Environment (Decision) 20 Perron Freshmart Inc.v. Director, Ministry of the Environment (Decision) 20 Currie v. Director, Ministry of the Environment (Order) 21 1

3 R.A.P. Development Corporation v. Director, Ministry of the Environment (Decision) 22 Buchardt v. Director, Ministry of the Environment (Decision) 23 Niagara Escarpment Planning and Development Act 23 Anderchek v. Niagara Escarpment Commission (Decision) 23 Halfway Sand Pit Limited v. Niagara Escarpment Commission (Decision) 24 MacLeod v. Niagara Escarpment Commission, McKessock v. Niagara Escarpment Commission (Decision) 25 Citynski v. Niagara Escarpment Commission (Decision) 27 Demille v. Niagara Escarpment Commission (Decision) 28 Barlow v. Niagara Escarpment Commission (Order) Ontario Inc. v. Niagara Escarpment Commission (Decision) 30 Uzelac v. Niagara Escarpment Commission (Decision) 31 Farewell v. Niagara Escarpment Commission (Decision) 32 The Corporation of St. Saviour, The Brock Memorial Church et al v. Niagara Escarpment Commission (Order) 32 Ferndale Park Cottagers Co-Operative Ltd. v. Niagara Escarpment Commission (Decision) 33 Vasarinsh v. Niagara Escarpment Commission (Order) 34 Beatty v. Niagara Escarpment Commission (Decision) 36 Freestone v. Niagara Escarpment Commission (Decision) 37 Ranger v. Niagara Escarpment Commission (Decision 38 Chippewas of Nawash Unceded First Nation v. Niagara Escarpment Commission (Decision) 39 Ontario Water Resources Act 40 Greenspace Alliance of Canada s Capital v. Director, Ministry of the Environment (Decision) 40 Trent Talbot River Property Owners Association v. Director, Ministry of the Environment (Order) 41 Safe Drinking Water Act, Corporation of the Township of Essa v. Director, Ministry of the Environment (Decision) 42 Steinbach v. Director, Ministry of the Environment (Decision) 43 Consolidated Hearings Act Re Nelson Aggregate Co. (Order) Pursuant to section 3 of the Consolidated Hearings Act ( CHA ), Nelson Aggregate Co. ( Proponent ) filed an application for a Hearing before a Joint Board regarding a proposal to extend the Proponent s existing Burlington Quarry in the City of Burlington, Regional Municipality of Halton, for the purpose of extracting aggregate material. The Preliminary Hearing continued on February 8 and 9, 2010 in the Regional Municipality of Halton offices, Oakville. As a preliminary matter, the OSSGA submitted that an issue under consideration should be whether the processing in the existing quarry of excavated material from the expansion site is an urban use that could be precluded by section 6.1 (2.2) of the 2

4 NEPDA. The Joint Board found that this issue was not before the Joint Board for determination. As a result, the Joint Board ruled that it need not hear any oral submissions from the OSSGA on this issue. The Joint Board found that, given the position of all the Parties, should Nelson be successful in obtaining the approvals it is seeking from this Joint Board, section 6.1 (2.2) of the NEPDA cannot be relied upon to preclude the issuing of the approvals. The first issue under consideration was whether the Joint Board should amend the Proponent s Notice of undertaking under section 6(4) of the CHA to add (1) an application for a NEP amendment under the NEPDA and/or (2) an application for a Development Permit under the NEPDA in relation to activities proposed to take place on the existing quarry, including the processing of aggregate, in relation to the proposed extension. The Joint Board found that the NEPDA and NEP required that the Proponent apply for a NEP amendment for the expansion of the quarry, as the expansion did not constitute a permitted use under Part 1.9 Mineral Resource Extraction Area of the NEP. The second issue under consideration was whether the Proponent required a Development Permit for the relocation of the crusher on the existing quarry. The Joint Board noted that the matter before it was the proposed extension of the quarry and the main issues to be decided in the Motion were whether any additional approvals were necessary for activities taking place at the existing quarry that were related to the proposed extension. As the relocation of the crusher had already taken place in conjunction with the current extraction activities at the existing quarry, the Joint Board found that it did not have jurisdiction to make any findings regarding the issue of whether a development permit was required for the crusher. The third issue under consideration was whether considerable weight should be given to the NEC s interpretation of the NEPDA, Reg. 828 and the NEP. The Joint Board found that there was no evidence of any administrative guides or rulings to assist the public on the meaning of the legislation or the regulation, there was no established practice as to how the relevant legislation and policies are interpreted by the NEC in the circumstances of the Nelson proposal, and the issues before the Joint Board were novel. The Joint Board therefore concluded that no deference should be given to the NEC s interpretation of the NEPDA, Reg. 828 and the NEP. The Joint Board granted the NEC s Motion to amend the Notice of Undertaking under section 6(4) of the CHA to add an application for a NEP amendment under the NEPDA, and an application for a Development Permit under the NEPDA in relation to activities proposed to take place on the existing quarry, including the processing of aggregate, which relate to the proposed extension. The Joint Board also amended the Notice of Undertaking to add an approval for a Development Permit in respect of the existing quarry in relation to aggregate extracted from the proposed extension for the transport, processing and stockpiling of aggregate material on the existing quarry; any construction of a building, structure or facility, other than a berm; any activities in relation to the operation of the asphalt plant in relation to the production of aggregate from the proposed extension on the existing quarry; and any operation of a road construction waste materials recycling and processing use. The Joint Board noted that if the Proponent was successful in obtaining its approvals from the Joint Board, section 6.1 (2.2) of the NEPDA could not be relied upon to preclude the issuing of the approvals. Order Released: April 23, 2010 (Case No.: ) 3

5 Environmental Bill of Rights, 1993 Wylie v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Shawn Wylie ( Applicant ) applied to 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, to issue a Certificate of Approval ( CofA ) to Solaris Energy Partners Inc. ( Instrument Holder ) for thirty 1-megawatt power collection modules to be utilized as part of the operation of a solar energy farm located at lots in St. Eugene, East Hawkesbury Township, United Counties of Prescott and Russell. The CofA was also appealed by a Corporate Applicant (see Case No.: ). The Applicant brought a Motion to be removed as an Applicant without costs, and to continue his participation as a member of the Corporate Applicant. The Director consented to the Applicant s Motion to withdraw his Leave to Appeal application without costs. The Instrument Holder brought a Cross-Motion for security for costs, in effect requesting that the Tribunal force the individual to continue with an application he commenced but no longer wished to pursue, in order to ensure that, in the event that another Applicant is successful, the Instrument Holder may eventually be able to pursue costs. The Tribunal noted that there is no provision in the applicable legislation that restricts an Applicant from withdrawing an application for Leave to Appeal under the EBR, although it could be concluded that section 47(7) gives considerable discretion to the Tribunal to permit a party to withdraw. The Tribunal declined to force the Applicant to continue with his application, because any procedural rights that the Instrument Holder had with respect to the application filed by the Applicant continued with regards to the Corporate Applicant, who had virtually the same case and supporting materials. The Tribunal also found that ordering an Applicant to continue with a Leave to Appeal application conflicts with one of the purposes of section 2 of the EBR, which is to provide a means by which residents of Ontario may participate in the making of environmentally significant decisions by the Government. The Tribunal noted that forcing Ontarians to continue with an appeal they no longer wish to pursue would send a chilling message to potential applicants. The Tribunal allowed the withdrawal of the application and dismissed the application for Leave to Appeal without costs. Decision Released: April 1, 2010 (Case No.: ) Ontario Inc. v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Ontario Inc. ( Applicant ) applied to 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 ), to issue a Certificate of Approval ( CofA ) to Solaris Energy Partners Inc. ( Instrument Holder ) for thirty 1-megawatt power collection modules to be utilized as part of the operation of a solar energy farm located at lots in St. 4

6 Eugene, East Hawkesbury Township, United Counties of Prescott and Russell. The CofA covers all potential sources of noise emissions related to the operations on the Site. The Applicant is a numbered company composed of a group of individuals who own property in the vicinity of the Site. The Director brought a Motion to strike the Applicant s Reply. The Tribunal expunged certain paragraphs of the Applicant s Reply and supporting documents due to irrelevance and new information. The Tribunal found that some of the paragraphs in question were directly relevant to the Response materials and permitted them to remain in the Reply. The Applicant brought a Cross-Motion to amend its Reply and Leave application. The Tribunal denied the Applicant s Motion to amend the Leave application to add new information, because the proposed new information was irrelevant to the decision under appeal. The Tribunal found that the Applicant had standing to seek Leave to Appeal pursuant to section 38 of the EBR, because the Applicant was an Ontario corporation composed of several individuals who lived and worked in the vicinity of the Site. The CofA was classified as a Class I instrument, and the Instrument Holder had a right under the EPA to appeal the Director s decision. In assessing whether the Applicant satisfied the first branch of the Leave test under section 41(a) of the EBR, the Tribunal considered whether there was lack of notice or procedural fairness, whether there was lack of regard for law or policy, and whether there were inadequate terms and conditions in the CofA. The Tribunal found that the Director s decision was straightforward, as it only dealt with one emission. The Tribunal found that the 30-day posting of the instrument on the Environmental Registry constituted adequate notice. The Tribunal found that the Director allowed for procedural fairness when making his decision, as the process was open for the public to submit reports and question the submitted reports, but no comments had been received on the Registry. The Tribunal found that the Director had regard for relevant law and policy regarding noise emissions when making his decision. The Tribunal found that the Applicants did not provide evidence that the terms and conditions of the CofA were inadequate, or explain how the conditions were inadequate such that no reasonable person could have made the decision. The Tribunal found that the Applicants did not satisfy the first branch of the Leave to Appeal test under section 41(a) of the EBR. The Tribunal also found that there was no evidence provided regarding possible harm to the environment, and thus the Applicant failed to meet the second branch of the Leave test under section 41(b) of the EBR. The Tribunal dismissed the application for Leave to Appeal. Because the Tribunal denied Leave to Appeal and inclusion of certain grounds in the Leave application, it was not necessary to evaluate the Applicant s and Instrument Holder s Cross-Motions for cross-examination. The Instrument Holder brought a Cross-Motion for security for costs. The Tribunal considered whether costs should be awarded to the Instrument Holder, pursuant to section 17.1 of the Statutory Powers Procedure Act ( SPPA ) and Rules 217 and 218 of the Tribunal s Rules of Practice. The Tribunal found that routine cost awards in Leave to Appeal proceedings would be contradictory to the purpose of the EBR, which is to facilitate public participation in environmental decision-making. The Tribunal found that the Applicant had not engaged in unreasonable, frivolous, or vexatious behaviour, as it had standing to seek Leave and had genuine concerns about noise emissions from the Site. The Tribunal noted that unsuccessful applications are not equivalent to bad faith, unreasonable, frivolous or vexatious conduct. The Tribunal declined to award costs. 5

7 Decision Released: April 1, 2010 (Case No.: ) Action Kagawong Watershed Association Incorporated v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Action Kagawong Watershed Association Incorporated ( Applicant ) applied to 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, to issue an Amended Permit to Take Water dated March 9, 2010 ( 2010 PTTW ) to Kagawong Power Incorporated ( Instrument Holder ). The PTTW permits the Instrument Holder to take water from the Kagawong River for the production of hydroelectric power. Previously, the Director had issued a Permit to Take Water dated June 10, 2009 ( 2009 PTTW ) to the Instrument Holder. The Instrument Holder subsequently appealed the issuance of the 2009 PTTW and the Applicant was granted Party status in the appeal. The Applicant was limited in its participation to the issues raised regarding the conditions under appeal by the Instrument Holder and a proposed settlement agreement between the Instrument Holder and the Director to amend the 2009 PTTW. In the result, all Parties, including the Applicant, supported the proposed settlement agreement. In a decision dated March 5, 2010, the Tribunal confirmed the acceptance of the settlement and ordered the Director to amend the conditions in the 2009 PTTW as outlined in the settlement agreement. The Director subsequently issued the amended 2010 PTTW reflecting the amended conditions as ordered by the Tribunal. On March 25, 2010, the Applicant applied for Leave to Appeal the 2010 PTTW. The Tribunal considered whether it had jurisdiction to consider the Leave to Appeal application. The Tribunal first considered whether the 2010 PTTW was subject to the notice requirements set out in section 22 of the EBR requiring the Minister to give notice of a Class I, II or III proposal for an instrument under consideration. The Tribunal found that the 2010 PTTW was not a proposal under consideration, and thus the notice requirements of the EBR did not apply. The 2010 PTTW was not a new permit, but was the same 2009 PTTW with the amended conditions as ordered by the Tribunal and a revised number. In issuing the 2010 PTTW, the Director was only fulfilling the requirements as set out by the Order of the Tribunal, and although the 2010 PTTW had a new number, it clearly stated that it was an amended PTTW. The Tribunal held that the mere re-numbering of a PTTW does not necessarily create new substantive rights. The Tribunal then considered whether, nonetheless, section 32(1)(a) of the EBR would apply to exempt the 2010 PTTW from the section 22 notice requirements. The Tribunal found that the term project used in section 32(1) could include activities that are subject to the requirement of a Director s approval, and as such, the issuance of the 2010 PTTW could be considered a step towards implementing a project. Further, the Tribunal found that the 2010 PTTW could be considered a project approved by a decision made by a tribunal, as it was issued by the Director to ensure consistency with the settlement agreement in accordance with the Tribunal s Order. The Tribunal also found that there was an opportunity for public participation. The Applicant had been a Party to the earlier appeal of the 2009 PTTW and had agreed to the settlement agreement. The Applicant 6

8 could have filed an application for Leave to Appeal with respect to the 2009 PTTW, but instead chose to participate by obtaining Party status in the Instrument Holder s appeal. The Tribunal therefore found that section 32(1)(a) was applicable to exempt the 2010 PTTW from the notice requirements. The Tribunal further noted that this exemption would apply regardless of whether the 2010 PTTW was considered a new or an amended instrument. The Tribunal concluded that the requirements of section 38(1) of the EBR had not been met with respect to the Applicant s Leave to Appeal application, and therefore, the Tribunal did not have jurisdiction to hear the application. Accordingly, the application for Leave to Appeal was dismissed. Decision Released: June 14, 2010 (Case No ) Dalton v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993, Donna Dalton, Karen and Paul Dubord, Darlene Goddard, Brenda Johnson of Environment Hamilton, Paul and Christine Martin, Barb Teichman and Wayne McGill, and Mike and Sue Sinden ( Applicants ) applied to 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, to issue a Certificate of Approval ( CofA ) to Ontario Inc. operating as Baresa Kitchen s ( Instrument Holder ). The CofA authorized the discharge of air emissions from two paint booths and a dust collector used in the production and finishing of wooden cabinets and furniture at a site in Hamilton, Ontario. The Applicants, with the exception of Environment Hamilton, live in the neighbourhood immediately adjacent to the Site. The grounds for Leave to Appeal raised by the Applicants related to the potential for odour, noise, and air emissions from the Instrument Holder s facility and the alleged failure of the Director to impose adequate conditions to control these impacts. On consent of all the parties, the Tribunal twice granted the Director an extension of the deadline for filing a response to the application to allow the parties to engage in settlement discussions. On September 10, 2010, the Director informed the Tribunal that amendments had been made to the CofA, which were agreed to by all parties. The amendments added new conditions designed to minimize noise, odour and air emissions and establish a complaints recording procedure. The Applicants informed the Tribunal that their concerns had been adequately addressed by the amendments and they wished to withdraw their application for Leave to Appeal. All parties consented to the proposed withdrawal of the application. The Tribunal found that the serious concerns raised by the Applicants had been sufficiently addressed in the amended CofA. The Tribunal found that the amendments introduced more stringent conditions regarding operations and odour and noise control at the Site. Further, the complaints response procedure would provide the public with a means to advise the Instrument Holder of complaints and to require quick action in response with a focus on preventing the recurrence of future incidents. The Tribunal thereby accepted the Applicants proposed withdrawal of the application for Leave to Appeal and dismissed the application. Decision released: September 28, 2010 (Case No.: to ) 7

9 Welch v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), David Welch ( Applicant ) applied to the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment ( MOE ), under section 9 of the Environmental Protection Act ( EPA ), to issue a Certificate of Approval ( CofA ) to Ontario Ltd. ( Instrument Holder ) for air emissions from a crematorium located in Sudbury, Ontario. The Applicant s standing to seek Leave to Appeal was not contested by the Director or the Instrument Holder, and the Tribunal found that the Applicant had standing under the EBR. The Applicant was a resident of Ontario who had commented on the application for the CofA, and therefore, he had an interest in the decision. The decision to issue the CofA was a decision to implement a Class I proposal thereby requiring notice under section 22 of the EBR, and the Instrument Holder had a right to appeal the decision under the EPA. In assessing whether the Applicant had satisfied the first branch of the Leave test under section 41(a) of the EBR, the Tribunal considered whether the decision to grant the CofA was inconsistent with MOE Guideline D-6. The Tribunal noted that Guideline D-6 states that it is intended to be applied in the land use planning process to prevent or minimize future land use problems. The Tribunal found that the issuance of a CofA is not a land use planning decision, and therefore, Guideline D-6 is not intended to apply to decisions to issue CofAs. The Tribunal found that Guideline D-6 is not one of the policies developed to guide decisions referred to in section 41(a), and therefore the first branch of the test for Leave was not satisfied on these grounds. On the Applicant s second ground of appeal, the Tribunal noted that the Applicant was not arguing that the Director had failed to consider, incorporate or reflect relevant laws and policies in his decision, bur that those laws or policies were inadequate. The Tribunal referred to prior case law which stated that the laws and policies that apply to the Directors decisions are not themselves the subject of the test under the first branch of section 41. The Tribunal therefore concluded that the first branch of the test for Leave was not met based on the Applicant s second ground of appeal. Accordingly, the Tribunal found that the Applicant had not satisfied the first branch of the section 41 test. As an Applicant must establish both branches of the test for Leave, the Tribunal found that it was unnecessary to consider the second branch of the test. The Tribunal dismissed the application for Leave to Appeal. Decision released: November 1, 2010 (Case No.: ) Moreau v. Director, Ministry of the Environment (Decision) Pursuant to section 38 of the Environmental Bill of Rights, 1993 ( EBR ), Lorna Moreau, representing the Sooties Group ( Applicant ) applied to the Environmental Review Tribunal ( Tribunal ) for Leave to Appeal a decision of the Director, Ministry of the Environment ( MOE ), under section 9 of the Environmental Protection Act ( EPA ), to issue an Amended Certificate of Approval ( CofA ) to ArcelorMittal Dofasco Inc. ( Instrument Holder ). The CofA was a Basic Comprehensive Certificate of Approval 8

10 covering all air emissions at the Instrument Holder s steel-making facility in Hamilton, Ontario ( Facility ). The CofA was one among a series of four interrelated approvals issued to the Instrument Holder, including an Altered Air Standards Approval. The Tribunal found that the Applicant, as an individual, had standing to seek Leave to Appeal under section 38 of the EBR because she is a resident of Hamilton who owns a home close to the Facility and who participated in at least some of the public consultation regarding the four approvals. In addition, the CofA is a Class I instrument and the Instrument Holder has a right to appeal from the Director s decision under the EPA. However, the Tribunal found that the Sooties Group, which Ms. Moreau purported to represent, did not have standing to bring an application for Leave to Appeal. As the Applicant provided no information about the group, the Tribunal found that there was insufficient information to determine whether the Sooties Group had an interest in the decision. As a preliminary issue, the Tribunal considered the claims made by the Director and the Instrument Holder that the Applicant had raised issues that amounted to a collateral attack on the Altered Standards Approval. The Tribunal found that it had no jurisdiction to directly consider the appropriateness of the other three approvals in relation to the test for granting Leave to Appeal. The Tribunal found that although some parts of the Applicant s submissions were primarily focused on the Altered Standards Approval, this was to be expected given the coordinated development and integrated nature of the four instruments. The Tribunal found that it could consider the submissions of the Parties regarding the Altered Standards Approval process, but only to the extent that they were relevant to the decision to issue the CofA. The Tribunal then considered whether the Applicant had met the first branch of the test for Leave to Appeal under section 41 of the EBR. The Tribunal noted that the MOE s Statement of Environmental Values ( SEV ) is one of the government policies that the Director must have regard for in the decision making process and that the SEV places a priority on preventing pollution and minimizing the creation of pollutants. The Tribunal found that the SEV s direction to give priority to pollution prevention does not prevent the Director from ever approving a new facility or the expansion of an existing facility on the ground that absolute levels of pollution will increase. Rather, it requires the Director to have regard for feasible methods that will avoid or minimize the generation of pollutants. The Tribunal found that given the circumstances and the context of the CofA, in conjunction with the Altered Air Standards Approval and other MOE regulations and policies, the Director s approach was consistent with the goal of preventing or minimizing the creation of pollutants. The Tribunal found that the MOE Guideline for the Implementation of Air Standards in Ontario ( GAISO ) was a policy developed to guide decisions of the kind at issue with the Facility, but that it was only indirectly related to the CofA approval. The Tribunal found that the term improvement over business as usual includes improvements in the operations of a facility and is not exclusively focused on whether emissions of a given contaminant will be reduced. The Tribunal found that the evidence demonstrated that there would be improved operations at the Facility over the existing conditions. The Tribunal noted that the MOE s SEV requires the Director to consider cumulative effects on the environment and use a precautionary, science-based approach in its decision making. The Tribunal found that there was sufficient evidence to establish that 9

11 the Director had considered the cumulative effects of emissions from the facility in issuing the CofA and had incorporated these considerations in the conditions of the CofA. Further, the Applicant had provided virtually no evidence to support her claim that the Director had failed to consider the cumulative effects when making the decision to issue the CofA. The Tribunal also found that there was evidence that the Director had used a precautionary, science-based approach in making the decision to issue the CofA, and no evidence was presented by the Applicant to suggest otherwise. The Tribunal concluded that there did not appear to be good reason to believe that, having regard to the GAISO and the SEV requirements to prevent or minimize pollutants, consider cumulative effects and use a precautionary science-based approach, the Director s decision to issue the CofA was one no reasonable person could have made. Therefore, the Tribunal found that the Applicant had not met the first branch of the test for Leave to Appeal under section 41 of the EBR. The Tribunal noted that since both branches of the test for Leave must be met, it was unnecessary to consider the second branch of the test. The Tribunal also found that it was unnecessary to consider the issue of whether to lift the automatic stay that would be applied if Leave to Appeal was granted. The Tribunal dismissed the application for Leave to Appeal accordingly. Decision released: November 16, 2010 (Case No.: ) Environmental Protection Act Canadian Environmental Services Inc. v. Director, Ministry of the Environment (Decision) Pursuant to section 139 of the Environmental Protection Act ( EPA ), Canadian Environmental Services Inc. ( Appellant ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to the Revocation of a Provisional Certificate of Approval Waste Management System (the CofA ) issued by the Director, Ministry of the Environment ( MOE ) under section 39 of the EPA to the Appellant, whose head office was located in the City of Pickering. The Director revoked the CofA on the ground that the Appellant was being run by the Lootawon family, who is connected to several prior waste management convictions, and that the CofA was obtained by supplying misinformation to the Ministry. As such, the Director was of the opinion that the Appellant would not operate its waste management system with integrity and in accordance with the law; this was not in the public interest. Shawn Hanniff, the sole director of the Appellant company, argued that the CofA should be reinstated, as the Lootawons were not involved with the company and the Appellant had not violated any waste regulations or been accused of causing any environmental harm. On the day that Shawn Haniff was scheduled to testify at the Hearing, he was present but refused to testify. The Tribunal found that the Director s revocation of the CofA should be upheld. The Tribunal evaluated the voluminous amount of evidence presented and found that the Appellant company was being controlled by the Lootawons. The Tribunal found that the evidence of the Director was straightforward, reliable, consistent and credible, while the Appellant s evidence was vague, contradictory, and unsupported by documentation such as business records or financial records. The Tribunal found that the Director 10

12 discharged her onus of proof, and the Appellant had not provided sufficient evidence to meet its onus of proof. The refusal of Mr. Haniff to testify led the Tribunal to draw an adverse inference against the Appellant, as Mr. Haniff was the person in the best position to rebut the Director s claims about the involvement of the Lootawons. A failure to provide this testimony amounted to an implied admission that the evidence of that witness would be contrary to the Appellant s case, or at least would not support it. The Tribunal also drew an adverse inference from the failure of the Appellant to call Mr. Lootawon as a witness in the proceeding, after he had already signed a witness statement and appeared on the list of witnesses. The Tribunal noted that it would be reasonable to draw an adverse inference from the Appellant s failure to provide supporting documentation, such as business or financial records, but did not draw or rely on this inference. The Tribunal found that the use and operation of this particular waste management system was not in the public interest. The public interest test is not defined in the EPA, but past Tribunal decisions have established that operating in the public interest includes compliance with the requirements of environmental legislation, and the provision of accurate information to the MOE by a CofA applicant or holder. The Tribunal found that the Lootawons had consistent and prolonged disrespect for the law regarding waste management, thus it would not be in the public interest to permit them to be involved in waste management activities. The Tribunal found that false information was provided to the MOE on behalf of the Appellant, specifically in relation to the Appellant s business address, vehicle registrations and paperwork, which were intended to mislead the MOE about the involvement of the Lootawons. The Tribunal concluded that the Director s revocation of the CofA was justified. The Tribunal found that the absence of accusations of environmental harm by the Appellant should not be treated as a mitigating factor, because if the Lootawons are controlling the Appellant company, the company is vulnerable to activities such as unlawful dumping. The Tribunal found that an immediate revocation of the CofA was in the public interest, as opposed to alternative remedies, such as a temporary suspension or altered conditions in the CofA. The Tribunal accordingly dismissed the appeal and upheld the Director s decision to revoke the CofA. Decision Released: April 8, 2010 (Case No.: ) Ward v. Director, Ministry of the Environment (Decision) Pursuant to section 140 of the Environmental Protection Act ( EPA ), Stephen C. Ward ( Appellant ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to an Order issued by the Director, Ministry of the Environment, under section 157.3(5) of the EPA regarding a Site Assessment and Monitoring Program for a contaminated property ( Site ) located in the City of Toronto. The Appellant is the sole director of Investments Limited, which is the registered owner of the Site. The Appellant appealed to request that the Tribunal amend the Director s Order to remove him as a named Orderee in his personal capacity. The Preliminary Hearing took place on November 26, By correspondence dated April 16, 2010, the Parties advised the Tribunal that they had agreed to the withdrawal of the appeal. Counsel for the Director advised that the terms of the Director s Order had been carried out to the Director s satisfaction. The Parties did not seek to alter the Director s Order. 11

13 The Tribunal found that the withdrawal of the appeal was in accordance with Rule 191 of the Tribunal s Rules of Practice. The Tribunal dismissed the appeal. Decision Released: April 19, 2010 (Case No.: ) Bayvista Industrial Inc. v. Director, Ministry of the Environment (Decision) Pursuant to section 140 of the Environmental Protection Act ( EPA ), Bayvista Industrial Inc., 2R Services Inc., Peter Weinwurm, and Lou Bodnar ( Appellants ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to an Order issued by the Director, Ministry of the Environment ( MOE ), under section of the EPA, regarding the receipt and storage of waste at the hazardous waste facility located in Barrie ( Site ). The Order also required the segregation of certain wastes at the site, moving hazardous wastes indoors, and providing reports to the MOE that the requirements of the Order had been complied with. The Order required implementation of certain security measures for the Site, the retaining of a qualified expert to undertake an inventory of the type and amounts of wastes stored at the Site and the removal to an off-site location of some excess wastes stored at the Site. The Parties engaged in mediation through the Tribunal s services, and reached a settlement agreement. The Tribunal member who conducted the mediation considered whether the settlement agreement was consistent with the purpose and provisions of the relevant rules and was in the public interest, pursuant to Rules 158 and 193 of the Tribunal s Rules of Practice. The Settlement Agreement stated that, without prejudice or admission of liability, the Appellants (other than Bayvista) would undertake certain activities to comply with the CofA. The Director agreed that once the requirements had been met, the Tribunal could amend the compliance dates to match the dates upon which compliance was actually achieved. The Appellants would then withdraw their appeals. The Tribunal found that as the Parties Settlement Agreement resolved all of the issues raised in the Notices of Appeal and the Director was satisfied that there had been full compliance with the Order, the Settlement Agreement was consistent with the purpose and provisions of the relevant legislation and was in the public interest. The Tribunal accepted the settlement agreement, varied the Director s Order, accepted the withdrawals of the appeals, and dismissed the appeals. Decision Released: April 30, 2010 (Case Nos.: /08-141/08-143/08-144) Ontario Limited v. Director, Ministry of the Environment (Decision) Pursuant to section 140 of the Environmental Protection Act ( EPA ), Ontario Limited, Peter Weinwurm, and Lou Bodnar ( Appellants ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to an Order issued by the Director, Ministry of the Environment ( MOE ), under section of the EPA, regarding the receipt and storage of waste at the Site in Midland. The Order required the Orderees to cease accepting waste at the Site until they received written permission to do so from the MOE, to retain a security company to record vehicular traffic entering or leaving the Site, and to immediately notify the Barrie District 12

14 Office or the Spills Action Centre of any vehicles carrying waste entering or leaving the Site if not previously authorized by the MOE. The Order further required the Orderees to retain a consultant to conduct an inventory of waste being stored on-site, and to transfer excess waste off-site. The Parties participated in mediation through the Tribunal s services, and reached a Settlement Agreement. The Settlement Agreement indicated that, without prejudice or admission of liability, the Appellants would implement security services at the Site. The Appellants agreed to have their consultant do follow up work, including an independent inventory of wastes on the Site. The Director agreed to review the additional information. If it fulfilled the requirements of the Settlement Agreement, and if the Appellants otherwise complied with the terms and conditions of the Settlement Agreement, then the Director agreed to notify the Tribunal that the Appellants had fully complied with the Director s Order, and further request that the Tribunal amend the compliance dates to match the dates upon which compliance was actually achieved. The Parties agreed that data collection regarding a precipitate produced by one of the treatment processes should be conducted for six months. The Tribunal member who conducted the mediation considered whether the Settlement Agreement was consistent with the purpose and provisions of the legislation and was in the public interest, pursuant to Rules 158 and 193 of the Tribunal s Rules of Practice. The Parties acknowledged that the Settlement Agreement resolved all of the issues raised in the Notices of Appeal. The Director agreed that the requirements as set out in the Settlement Agreement had been met, and advised the Tribunal that the Appellants had fully complied with the Director s Order to the satisfaction of the Director. The Parties agreed that the purpose in changing the compliance dates in the Director s Order was to confirm that there was no period of non-compliance with the Director s Order. Because the Parties had addressed the concerns giving rise to the Director s Order, and the Director was satisfied that there had been full compliance, the Tribunal found that the Settlement Agreement was consistent with the purpose and provisions of the relevant legislation and was in the public interest. The Tribunal accepted the Settlement Agreement, varied the Director s Order, accepted the withdrawal of the appeals, and dismissed the appeals. Decision Released: May 3, 2010 (Case Nos.: /08-145/08-146) Fruition Manufacturing Limited o/a Maidstone Coffee Canada v. Director, Ministry of the Environment (Decision) Pursuant to section 139 of the Environmental Protection Act ( EPA ), Fruition Manufacturing Limited o/a Maidstone Coffee Canada ( Appellant ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to a Certificate of Approval (Air) issued by the Director, Ministry of the Environment, under section 9 of the EPA, regarding a coffee roasting facility located in the City of Hamilton. The CofA addressed the prevention, treatment and management of stack emissions from coffee roasters. The Parties arrived at a partial settlement agreement in July The remaining issue concerned a condition imposing an odour limit. In order to resolve this remaining issue, the Appellant required time to get its operations up and running so that it could conduct emissions tests on the new equipment. Upon completion of the 13

15 Appellant s emission tests, the Director was satisfied that the results of the tests suggested that the facility was likely to operate without odour concerns. The Parties reached a settlement agreement on a modified CofA. The Tribunal considered whether the settlement agreement was consistent with the purpose and provisions of the EPA, was in the public interest, and was in the interests of the Parties, pursuant to Rule 193 of the Tribunal s Rules of Practice. Counsel for the Director submitted that the amended CofA was consistent with the provisions of the EPA because it had been established that emissions would meet the one odour unit limit; and the continuing underlying requirement for the Appellant s compliance with section 14(1) of the EPA, prohibiting the discharge of a contaminant into the environment if the discharge may cause an adverse effect. Counsel for the Appellant agreed with these submissions and further noted that at the time that the CofA had been issued, there was no comparable standard for coffee roasting facilities that could be used, in advance of the Appellant s own equipment being installed and running. The Tribunal found that the proposed modified CofA was consistent with the EPA and in the public interest, and protected the interests of the Parties. The Tribunal accepted the settlement agreement, ordered the Director to amend the CofA, accepted the withdrawal of the appeal, and dismissed the appeal. Decision Released: May 13, 2010 (Case No.: ) Tembec Industries Inc. v. Director, Ministry of the Environment (Order) Pursuant to section 140 of the Environmental Protection Act ( EPA ), Tembec Industries Inc. ( Appellant ) filed an appeal with the Environmental Review Tribunal ( Tribunal ) of a decision made by the Director, Ministry of the Environment, to issue a Director s Order ( Order ) under sections 17, 18 and 132 of the EPA. The Order required the Appellant to complete certain work, including the taking of representative samples, reporting the results of the sampling, and submitting a plan to the Director to delineate and prevent migration of PCB contamination in relation to the Marathon Pulp Inc. mill site in Marathon, Ontario. The Tribunal granted, in part, the Appellant s motion for an interim stay in an Order dated May 11, A Motion for a stay of parts of the Director s Order pending disposition of the appeal was held on June 8, Under Rule 101(a), the Tribunal first addressed the Parties submissions on the relevant statutory tests under sections 143(2)(a) and 143(3) of the EPA. On the threshold issue relating to onus, the Tribunal declined to reconsider its general practice, which places the onus on the party seeking a finding that a particular exception applies. Consistent with prior Tribunal decisions, the Tribunal found that the Director had the onus of showing that a statutory bar under section 143(2)(a) or 143(3) of the EPA applied. The Tribunal noted that although the Moving Party did not have the onus of proof, it was expected to provide evidence on the issue. In determining the applicability of section 143(2)(a), the Tribunal indicated that it would look at the substance of an order to determine whether any provisions, on their own or taken together, required monitoring, recording and reporting. The Tribunal further noted that a stay of a study component of an order could be granted even if the monitoring, recording, and reporting portions could not be stayed. The Tribunal found that Parts 2.4(a) and (b) and the related aspects of Parts 2.5 and 2.6 of the Order constituted an 14

16 order to monitor, record and report, and thus the Tribunal was barred from further considering a stay of those parts of the Order. The Tribunal then considered whether it would be barred by section 143(3) of the EPA from granting a stay for the Parts of the Order not subject to section 143(2). The Tribunal found that most of the evidence of risk associated with the stay of the Order related to the monitoring and reporting provisions, which were caught under section 143(2)(a). The Tribunal found that the evidence of risk associated with the stay of the remaining parts of the Order, Parts 2.4 (c) and (d), was limited. The Tribunal noted that a serious risk to the environment would be present if PCBs were to migrate through the groundwater to Jellicoe Cove. However, the Tribunal found that the available evidence showed only a mere possibility of migration to the lake during the relatively short period of the stay, and thus fell short of the serious risk and danger thresholds in section 143(3). The Tribunal concluded that there was insufficient evidence to prove that a stay of Parts 2.4(c) and (d) was barred by section 143(3). The Tribunal noted that if a Party s understanding of the risk associated with controlling the discharges changed, the stay matter could be brought back to the Tribunal. The Tribunal proceeded to the three-part test for a stay summarized in RJR-MacDonald Ltd. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and Rules 101(b) to (d) of its Rules of Practice. The Tribunal found that there was a serious issue to be tried. The Tribunal found that the Appellant would suffer irreparable harm from having to expend significant funds that it would be unlikely to recover in order to comply with the parts of the Order that were the subject of the stay request. The Tribunal noted that where a contaminant of great concern is at issue and where there is significant uncertainty about the extent of any risk, the balance of convenience favours an approach where uncertainty is reduced through the implementation of a monitoring program. However, for Parts 2.4(c) and (d) of the Order, the Tribunal found that the balance of convenience favoured the Appellant, as a stay of these provisions would result in little harm to the Director or the public interest. The Tribunal noted however that if there were a material change in circumstances as a result of the carrying out of the monitoring program, new evidence could lead to a change in the balance of convenience and the Tribunal would lift the stay accordingly. The Tribunal granted a stay of the Order for Parts 2.4 (c) and (d) and the related aspects of Parts 2.5 and 2.6. Order Released: June 17, 2010 (Case No.: ) Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Decision) Pursuant to section 140 of the Environmental Protection Act ( EPA ), the Corporation of the City of Kawartha Lakes ( Appellant ) filed for a Hearing before the Environmental Review Tribunal ( Tribunal ) with respect to an Order issued by the Director, Ministry of the Environment ( MOE ) under sections 157.3(5) and of the EPA. The Order required the Appellant to complete clean-up and remedial work in relation to a furnace oil spill that took place in Kawartha Lakes, Ontario. The original spill of furnace oil occurred at a private residence; however, the oil subsequently entered the Appellant s municipal storm sewer system and culverts and was being discharged into Sturgeon Lake, the shoreline of which is owned by the Appellant. 15