Environment and Land Tribunals Ontario
Summaries of Decisions and
Significant Orders of the
Environmental Review Tribunal
April 1, 2010 to December 31, 2010
0
Environmental Review
Tribunal
Summaries of Decisions and Significant Orders
April 1 2010 to December 31, 2010
Consolidated Hearings Act 2
Re Nelson Aggregate Co. (Order) 2
Environmental Bill of Rights, 1993 4
Wylie v. Director, Ministry of the Environment (Decision 4
2216122 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) 12
1214459 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
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) 28
1002671 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, 2002 42
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 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.: 08-030)
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.: 09-124).
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.: 09-123)
2216122 Ontario Inc. v. Director, Ministry of the Environment (Decision)
Pursuant to section 38 of the Environmental Bill of Rights, 1993 (“EBR”), 2216122 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. 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.