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An MOE order for financial assurance can be enforced even after the business has closed and been evicted from its premises, and even without a full hearing by the Environmental Review Tribunal. The ERT had enough evidence to know that the cleanup would cost much more than the existing financial assurance, so dismissed the operators’ appeal from the order as moot.

In Bodnar v. Director, Ministry of the Environment, a waste processing facility appealed two Director’s Orders. The First Order required the Appellants to limit their activities and improve their operations at the Site in a number of ways. The Second Order required the preparation and implementation of a decommissioning report, soil removal in the vicinity, and additional Financial Assurance of roughly $125,000 (in addition to the existing Financial Assurance of $145,405 under the facility’s Certificate of Approval).

Before the appeals were heard, the Appellants were evicted from the Site and the Director brought a motion to dismiss the appeals on the basis that they were now moot or without merit.

In a decision released in May 2012, the Environmental Review Tribunal granted the Director’s motion, applying the two-step test for mootness set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General): “First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.  Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.”

Applying the first part of the test, the Tribunal concluded that, as the Appellants no longer had authority to take any actions at the site, there was no longer a “present live controversy” that could be resolved through a hearing process. As a result, the majority of the grounds of appeal regarding required actions at the site were moot.

However, the Tribunal identified one important exception; the requirement for an additional Financial Assurance could not be considered moot “since it can be assumed that the Appellants remain subject to this requirement, irrespective of whether the Appellants have been evicted from the Site or not.” The Tribunal thus moved to the second part of the test and asked: Does the Appellants’ contention that the Director had no grounds to increase the amount of the Financial Assurance have legal merit?

Although the exact and final cost of waste removal and remediation of the Site were not submitted into evidence, the Tribunal found that it was clear from the evidence that the cost would be considerably more than the Financial Assurance required under the Certificate of Approval and concluded that “an additional Financial Assurance is needed and the cleanup of the Site is an environmental priority.” The Tribunal went on to note that “even if all of the additional or supplemental Financial Assurance as required by the Second Order is not needed, the monies will be returned to the Appellants.”

Based on these findings, the Tribunal concluded that this ground of appeal was without merit and granted the Director’s motion.

By Meredith James and Dianne Saxe

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