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Few people, however innocent, can afford to appeal environmental orders, if they must also comply with the order throughout the appeal, with little chance of recovering what they will have spent. A recent decision of the Ontario Environmental Review Tribunal (ERT) shows how difficult it has become to obtain a stay pending appeal of environmental orders, with no immediate prospect of improvement.

In Rocha v. Director, Ministry of Environment, the ERT again refused to issue a stay, pending appeal, of a doubtful Director’s Order issued to an individual under the Ontario Environmental Protection Act (EPA). The Order required an advisor to the property owner, who was also a mortgagee not in possession, to personally conduct indoor air sampling and other work relating to a TCE plume in Oakville, Ontario. The work is expected to cost $80,000-$150,000, and much of it would be spent before the appeal is likely to be completed. There was no suggestion that Mr. Rocha was any way at fault in creating the contamination.

Mr. Rocha argued that the Director’s Order should not apply to him because he was never in “management or control” of the property under EPA section 157. If he is right, the order against him is invalid. If he is forced to spend the money anyway, Mr. Rocha said, he will be irreparably harmed, since he will not be able to recover the lost funds from the owner or other relevant parties.

Everything is an order to monitor, record or report

The ERT denied Mr. Rocha’s application for a stay. Under section 143(2) of the EPA, the ERT has no jurisdiction to stay an order to “monitor, record and report” findings to the Ministry. The ERT decided that all the work required under the Order, such as delineating the TCE plume, was either “monitoring, recording or reporting” under the EPA, or ancillary to that type of work.

Balance of convenience

The ERT also ruled that, even if it had the jurisdiction to grant a stay, it would not have granted one to Mr. Rocha. ERT Rule 110 requires the party seeking a stay to satisfy the common law test set out in RJR-MacDonald Ltd. v. Canada (Attorney General), [1994] 1 S.C.R. 331, namely: whether there is a serious issue to be tried; whether irreparable harm will result if the stay is denied; and whether the balance of convenience, including effects on the public interest, favours the granting of a stay.

The ERT agreed that Mr. Rocha had raised a serious issue, whether or not Mr. Rocha had “management or control” of the property under EPA section 157. However, it ruled that he would not suffer irreparable harm from having to comply with the order pending appeal, because he had not proven that he would be unable to recover the cost from the owner and other relevant parties. (Although, if the property owner had money, why did the Ministry issue an order to Mr. Rocha at all?)

The ERT’s key finding is that, “where groundwater contamination is present and spreading,” the balance of convenience favoured making Mr. Rocha pay for the work immediately, without hearing his appeal first. The ERT held that this third stage of the stay analysis, dealing with the balance of convenience, including effects on the public interest, “will often be determinative of a stay motion in cases before the ERT due to the nature of the legislation with which the ERT deals.”

In other words, according to the ERT, the “public interest” in getting environmental work done immediately is more important than whether there is a sound legal basis for making a particular person pay for it. And therefore environmental orders will rarely be stayed pending appeal, especially relating to contaminated sites.

This decision should further increase the difficulty of finding investors willing to invest in contaminated sites in Ontario, or in businesses that own such sites. Given the substantial evidence of the environmental and economic importance of encouraging the redevelopment and revitalization of such sites, will the benefit of the ERT’s decisions outweigh their harm to the natural environment and the people of Ontario?

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