More than 40 years ago, Mr. Justice McRuer’s Royal Commission Inquiry into Civil Rights concluded that no one should be subject to government discretion without a right of appeal. Ever since, this has been a central feature of Ontario administrative law. But in regulation 419/05, the new air regulation under the Environmental Protection Act, it has been forgotten.
The Ministry of the Environment interprets Reg. 419/05 as giving the Director a vast, untrammelled discretion to control how the regulation is applied, regardless of the facts or the accuracy of the of the Director’s approach. Although the consequences for affected companies can be very substantial, no reasons need be given, and there is no appeal. This is unreasonable and unfair. In accordance with legal principles established by Chief Justice McRuer, the Director should be obliged to give reasons, and his/her decisions should be subject to appeal to the Environmental Review Tribunal.
The proposed new section 13.1 will make the problem worse. It expressly gives the Director power to make ad hoc decisions on the application of the models, without giving any justification; again, there is no appeal.
Decisions on modelling details may seem too technical to worry about, but they allow the Director to find many organizations in breach of the regulation, with potentially enormous consequences. They do matter.