Environment and Land Tribunals Ontario
Summaries of Decisions and
Significant Orders of the
Environmental Review Tribunal
April 1, 2009 to March 31, 2010
Summaries of Decisions and Significant Orders
Fiscal Year April 1, 2009 to March 31, 2010
Consolidated Hearings Act 2
Re Nelson Aggregate Co. (Order) 2
Environmental Bill of Rights, 1993 2
Protect Our Water and Environmental Resources v. Director, Ministry of the Environment (Decision) 2
Greenspace Alliance of Canada’s Capital v. Director, Ministry of the Environment (Order) 2
Baker v. Directors, Ministry of the Environment (Order) 2
Greenspace Alliance of Canada’s Capital v. Director, Ministry of the Environment (Order) 2
Beattie v. Director, Ministry of the Environment (Decision) 2
Greenspace Alliance of Canada’s Capital v. Director, Ministry of the Environment (Decision) 2
McRae v. Director, Ministry of the Environment (Decision) 2
Greenspace Alliance of Canada’s Capital v. Director, Ministry of the Environment (Order) 2
Quinte West v. Director, Ministry of the Environment (Decision) 2
Corporation of the City of Toronto v. Director, Ministry of the Environment (Decision)…………………………………………………………………………………………….2 Scharfe obo Ramsayville Community Association v. Director, Ministry of the Environment (Decision) 2
Sharfe obo Ramsayville Community Association v. Director, Ministry of the Environment (Decision) 2
McIntosh v. Director, Ministry of the Environment (Decision) 2
Environmental Protection Act 2
Brander v. Director, Ministry of the Environment (Order) 2
Reeves v. Director, Ministry of the Environment (Decision) 2
Swanson v. Regional Municipality of York (Decision) 2
Orgaworld Canada Ltd. v. Director, Ministry of the Environment (Decision) 2
Greentowne Environmental Inc. v. Director, Ministry of the Environment (Decision) 2
Global Environmental Solutions Inc. v. Director, Ministry of the Environment (Decision)…………………………………………………………………………………………….2 Tembec Industries Inc. v. Director, Ministry of the Environment (Order) 2
Brander v. Director, Ministry of the Environment / 1197338 Ontario Inc. v, Director, Ministry of the Environment (Decision) 2
Inter-Recycling Systems Inc. v. Director, Ministry of the Environment (Decision) 2
The Corporation of the Village of Merrickville-Wolford v. Director, Ministry of the Environment (Decision) 2
Grant v. Director, Ministry of the Environment (Decision) 2
Tembec Industries Inc. v. Director, Ministry of the Environment (Order) 2
Halton Recycling Ltd. v. Director, Ministry of the Environment (Decision) 2
Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Order) 2
Iannuzzi v. Director, Ministry of the Environment (Decision) 2
Tudor v. Director, Ministry of the Environment (Decision) 2
Buchan v. Director, Ministry of the Environment (Order) 2
Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment (Order) 2
D’Andrea v. Director, Ministry of the Environment (Decision) 2
Detox Environmental Ltd. v. Director, Ministry of the Environment (Decision) 2
Cosford v. The Corporation of the City of London (Decision) 2
Niagara Escarpment Planning and Development Act 2
Cardozo v. Niagara Escarpment Commission (Decision) 2
Stewart v. Niagara Escarpment Commission (Decision) 2
Kocsis v. Niagara Escarpment Commission (Decision) 2
Iafrate v Niagara Escarpment Commission (Decision) 2
Tapper v. Niagara Escarpment Commission (Decision) 2
Mustard v. Niagara Escarpment Commission (Decision) 2
Koren v. Niagara Escarpment Commission (Decision) 2
Colangelo v. Niagara Escarpment Commission (Decision) 2
Gibson v. Niagara Escarpment Commission (Decision) 2
Johnson v. Niagara Escarpment Commission (Decision) 2
Ecker-Vanderploeg v. Niagara Escarpment Commission (Decision) 2
Stewart v. Niagara Escarpment Commission (Decision) 2
Russel v. Niagara Escarpment Commission (Decision) 2
Roic v. Niagara Escarpment Commission (Decision) 2
Van Vliet v. Niagara Escarpment Commission 2
Ontario Water Resources Act 2
Dios v. Director, Ministry of the Environment (Decision) 2
Burbidge v. Director, Ministry of the Environment (Decision) 2
Corporation of the Township of North Glengarry v. Director, Ministry of the Environment (Decision) 2
Kagawong Power Incorporated v. Director, Ministry of the Environment (Decision) 2
Dautner v. Director, Ministry of the Environment (Decision) 2
Safe Drinking Water Act 2
Gentille v. Director, Ministry of the Environment (Decision) 2
Hotrum v. Director, Ministry of the Environment (Decision) 2
ii
The following are summaries of all Decisions and significant Orders released in fiscal year 2009-2010, 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. 171. 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. 171. 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. 171. 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 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 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, 2009. 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.