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The Environmental Review Tribunal has reminded all potential appellants that they MUST correctly file their appeals, if they want their case to be heard. In Waterdown Gardens v MOE, a prolonged dispute between the Ministry and the company resulted in two separate orders suspending their certificate of approval. The company appealed the first suspension. During mediation by the ERT, they reached Minutes of Settlement with the MOE to allow them to reopen. Under the Minutes, the ERT retained jurisdiction, and either side could ask to reopen the mediation.

Unfortunately, the company did not completely comply with the settlement, and the MOE issued a second suspension order. The company, which was self represented, wrote to the MOE protesting that the issue was already before the ERT, and should be resolved there, under the first order. The MOE did not respond to the letter, and the company thought that meant the MOE had agreed to proceed under the first order. Thus, they did not file a formal appeal of the second order, and were shocked to discover that the MOE now considered their original appeal moot.

This month, the ERT agreed. They can’t hear an appeal from the second suspension, because no notice of appeal was filed on time. And they can’t, any more, hear the appeal from the first order, because it is moot. That is, the original appeal and the first order are irrelevant, because the certificate has now been suspended by the second order. Because of their misunderstanding of the legal process, Waterdown Gardens is out of luck.

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