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Ontario’s Environmental Review Tribunal has refused to allow a developer to completely change its proposed grounds for seeking leave to appeal an Environmental Compliance Approval given to an existing industry, under the Environmental Bill of Rights and the Environmental Protection Act.

The developer, Brimley Progress Developments, wants to build residential condominiums right next door to an existing heavy industry. This is the sort of short-sighted development that has been choking employers in urban areas across Ontario. More than 15 years ago, the Ministry of the Environment issued guidelines about the need for buffer spaces between industry and residences. However, the Ontario Municipal Board doesn’t enforce the guidelines, and now neither does the MOE.

In this case, the developer sought leave to appeal the industry’s Environmental Compliance Approval on the grounds of noise. Months later, the developer acknowledged that its concerns about noise had been satisfied, but then tried to raise new grounds of appeal: water vapor and particulates. The developer had never raised these grounds with the MOE Director before the ECA was issued, or within the 15 days in which it was allowed to seek leave to appeal.

The Tribunal ruled that it does have the power to allow an applicant to change its grounds for seeking leave to appeal an ECA, even after the expiry of the 15 day limitation period. However, it decided not to exercise this power in the developer’s favour, where the developer “appears to have turned to the question of air emissions and the ESDM report as an afterthought once the period for filing an application had expired.”

The Tribunal also ruled that an applicant for leave to appeal has a right to review the documents supporting the ECA application, but cannot compel the Instrument Holder to disclose its internal files.

“The applicant’s burden when applying for leave is to provide a substantial and relevant information base without the benefit of discovery. The fact that the Instrument Holder may be in possession of information that it has not released to the applicant is not by itself a sufficient reason to order disclosure of that information. Applicants may expect to be provided with the documents and information relied upon by the Director in reaching his decision, but they have no prima facie right to the disclosure of additional information in the hands of instrument holders.”

Environmental Review Tribunal Order: 12-145
Brimley Progress Development Inc. v. Director, Ministry of the Environment

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