Environmental Bill of Rights “Leave to Appeal” Test Remains a Significant Hurdle to ECA Appeals

Written by on November 15, 2018. Posted in Environmental litigation and enforcement

The Environmental Review Tribunal (“ERT” or “Tribunal”) released a decision in Freshway Investments Inc. v. Ontario (MECP) on November 5, 2018 denying an application for leave to appeal an Environmental Compliance Approval (“ECA”) for a Waste Disposal Site in York Region, Ontario (the “Site”).

This decision confirms once again that while the Environmental Bill of Rights, 1993, S.O. 1993, c.28 (“EBR”) creates a private right of appeal for ECAs (and other environmental approvals), the Act’s “leave to appeal” test is a significant hurdle for any would-be appellant.

The ECA in question was issued by the Ministry of the Environment, Conservation and Parks (”MECP”) to a soil recycling company on September 6, 2018.

The ECA allows the company to operate a Waste Disposal Site to process non-hazardous excess soil and soil slurry (soil that has been diluted/mixed with water in a hydro-excavation process that uses pressurized water and an industrial strength vacuum to excavate soil).

The Appellant argued, among other things, that: (1) the ECA conflicts with the City’s zoning by-law because a waste-transfer and processing facility is not a permitted use, (2) the conditions of the ECA (hours of operation, maximum volumes etc…) are insufficient to address possible nuisances, and (3) the ECA fails to prevent processing of contaminated soils.

Environmental Bill of Rights Appeals:

In Ontario, there is no automatic right to appeal an ECA or other environmental approval issued to another person or entity.  One must get the ERT’s permission to bring an appeal (i.e. to get “Leave to Appeal”).

Applications for Leave to Appeal are heard by the ERT in writing, and the applicant must satisfy two legal tests:

(1) the s.38(1) Standing test, and

(2) the s. 41 Leave to Appeal test.

Only if the applicant can successfully meet both tests will they have the right to bring an appeal before the ERT.

  1. Standing Test: standing simply means that a person has a sufficient connection to the challenged decision such that it is appropriate to allow them to appeal the environmental instrument. The Section 38(1) Standing Test requires the would-be appellant to prove that:

    i.     They are persons resident in Ontario (this includes corporate “persons”);
    ii.      The environmental instrument is appealable (it must be a Class I or II instrument under O. Reg 618/94, and require public notice be posted on the on-line Environmental Registry under Section 22 of the Act);
    iii.      The would-be appellant has “an interest” in the decision (simply exercising the right to comment when public notice is posted on the Environmental Registry is sufficient to demonstrate “an interest”); and
    iv.      Another person must has the right to appeal the instrument decision under another statute (the entity that receives the ECA has a right of appeal under 139 of the Environmental Protection Act).

With respect to ECAs, this Standing Test is generally easily met by most would-be appellants. In the case at hand, the ERT had no difficulty in finding that the Applicant, a company operating in Ontario that had made submissions during the public comment period, had met the standing requirement.

  1. Leave to Appeal Test: the Section 41 Leave to Appeal test reads:

Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

Both elements must be met.  That is, the decision must have been unreasonable AND there must be the possibility that it could result in significant harm to the environment.  This test has proven to be a significant hurdle for would-be appellants.

The Leave to Appeal test was explained in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), [2008] O.J. No. 2460 (Div. Crt.), at para. 45 as follows:

At the leave to appeal stage, the appropriate standard of proof is an evidentiary one, i.e., leading sufficient evidence to establish a prima facie case, or showing that the appeal has “preliminary merit”, or that a good arguable case has been made out, or that there is a serious issue to be tried. Although worded differently, all of these phrases point to a uniform standard which is less than the balance of probabilities, but amount to satisfying the Tribunal that there is a real foundation, sufficient to give the parties a right to pursue the matter through the appeal process.

In this case, the ERT found that this burden had not been met with respect to showing that the decision to issue the ECA was unreasonable.

  1. With respect to the municipal zoning issues, the ERT ruled that it was “not unreasonable” for the Director to rely on City staff’s position that a waste processing use is permitted on the site as a “legal non-conforming use”. Relying on previous ERT decisions, the Tribunal concluded that “zoning was found to be a relevant consideration for the Director, but the Director is not bound by zoning” (paras. 72-73).
  2. With respect to the adequacy of the conditions setting out hours of operation and limits on the types and amounts of waste, the Tribunal found that “the Applicant has provided no evidence that the inclusion of these conditions in the ECA is unreasonable”, and that the “nuisance concerns have been explicitly and quite extensively addressed in the ECA” (para. 78).
  3. Finally, regarding the Applicant’s submission that the conditions of the ECA will not adequately prevent processing of contaminated and/or hazardous waste, the ERT found that the ECA explicitly prohibits the company from accepting hazardous and/or contaminated material.

On this basis, the ERT ruled that the Applicant had not meet the first element of the Leave to Appeal test because they had “not established that it appears that no reasonable person could have made the decision to issue the ECA with the conditions that were included”.

As both branches of the Leave Test under s. 41 of the EBR must be satisfied in order for leave to be granted, and the first branch was not satisfied, the Tribunal concluded that it is not necessary for the Tribunal to analyze the second branch: whether the ECA could result in significant harm to the environment.