Warmest congratulations to Clay Ruby for his latest public interest victory: preventing the destruction of a shared mature maple tree by one of the owners. Here is the decision in Hartley vs Cunningham, and the press release on this landmark tree ruling. Look for our analysis in next month’s Lawyers Weekly.

A big win for trees and tree lovers is a post from: Environmental Law and Litigation

The Divisional Court is grappling with a complex battle between two possibly overlapping First Nations over whether a Northern Ontario hydropower project is being lawfully evaluated under the Environmental Assessment Act and an agreement with three First Nations: Cree Nation (MoCreebec Council) v. Ontario. There is a conflict over the proper decision-making process for the project.

As Justice Molloy put it:

“[1] MoCreebec Council of the Cree Nation commenced a judicial review application in this Court by notice dated November 17, 2010. The application relates to a proposed hydroelectric generating project in the Moose River/James Bay area. The applicant was one of the parties to an agreement with the Ontario government in 1994 with respect to how the project was going to proceed. The applicant now contends that Ontario has failed to comply with its obligations under that agreement and under the Environmental Assessment Act. The application for judicial review seeks various forms of relief requiring Ontario to comply with those obligations and prohibiting further development that is not in compliance. In support of the application was filed the affidavit of Allan Jolly, the Acting Chief of the MoCreebec Council.

[2] Moose Cree First Nation is named as a party respondent in the application. Moose Cree brought a motion to strike various aspects of the judicial review application and portions of the supporting affidavit. .. From the perspective of the moving party, one principal issue remains: the capacity of MoCreebec to bring this application. I also have some concerns about the form of the proceeding itself.”

Moose Cree, which is defending the the Lower Mattagami project, will own up to 25% of it.

Although the case began in 2010, it is not yet clear whether the plaintiff, the “MoCreebec Council of the Cree Nation“, actually has legal status to sue. This will be argued before a full Divisional Court panel in October:

“[17] The capacity (or status) issue is by no means a simple matter factually or legally, and it is one with profound consequences for the MoCreebec Council, not just with respect to this application, but to their status generally. In light of the complexity of the issue, the inadequate state of the record before me at present, and the significant public policy issues raised, in my view it is preferable that this motion be heard by a three-person panel of the Divisional Court, rather than by a single judge…

[21] The moving party Moose Cree First Nation shall deliver a notice of motion and, if so advised, affidavit material by May 10, 2013. The notice of motion shall clearly setting out the precise relief sought and the grounds for taking that position. Affidavit evidence may also be filed, particularly with respect to the practical problems of having an application brought by MoCreebec with the Moose Cree as a respondent, given there may be some overlap between the membership of both groups, and any other issues that may be contentious relating to the capacity of the MoCreebec Council to sue.”

Cree in court battle over environmental assessment and waterpower is a post from: Environmental Law and Litigation

The Ministry of the Environment’s Modernization of Approvals process is starting to make a real difference: kudos to Marcia Wallace, Doris Dumais and the others involved. It still takes far too long to get many kinds of Environmental Compliance Approvals (often well over a year), but the backlog is decreasing, and some upcoming changes should really help. This is essential: the inordinate delays in obtaining approvals force many organizations to incur significant economic damage or break the law, every year. The more law-abiding organizations are, the more stressful they find these long approvals delays, and the more they detract from potential investment in Ontario.

About 2400 registrations have already occurred on the Environmental Activities and Sector Registry, the instant, permit-by-rule system for low risk, routine activities. (The registry has the additional benefit of creating a level playing field, by assuring consistent conditions for similar activities.) Not coincidentally, the number of annual applications for environmental compliance approvals has dropped by more than 2,000. The shift should continue as additional activities and sectors are added to the registry.

Now the Modernization process is shifting to the full scale Environmental Compliance Approvals. The MOE is already doing more to clarify what information is required in a good application for an Environmental Compliance Approval- a guide and technical checklist are available on line. By next spring, the entire application is expected to be filed online. This should automatically reject incomplete applications, and provide real-time tracking of all accepted applications; both should drive down wait times. On line applications should also improve public access to approvals and their supporting documents. Once the system works, of course; so far, IT challenges have created a barrage of headaches, including a brief “$10 Tuesday”, when all EASR registrations could be had for the bargain price of $10. That particular bug was fixed fast…

We hear that the Modernization of Approvals process is starting to trigger transformation across the ministry, and that other ministries are also looking to piggyback on the system. Morale among the review engineers is reportedly improving too, now that they are released from reviewing so many boring, routine applications, and from the tedious job of tracking down missing components from poor quality applications. Instead, they are spending more of their time using their technical skills on more challenging applications where a knowledgeable reviewer can make a difference.

I sometimes joke that I’d be out of business if the MOE were always fair and efficient, and we’ve never been busier. But the Modernization process is looking like a big step in the right direction. And that’s good news for anyone who cares about the environment that the MOE tries to protect. Including me.

Modernization of Approvals a big step in the right direction is a post from: Environmental Law and Litigation

The Ministry of the Environment’s attempt to impose unlimited personal liability on the directors of a parent company,  apparently because they were directors when historic contamination was discovered and/or being cleaned up on and near the land of a subsidiary, continues in front of the Environmental Review Tribunal. The Ministry has stated, in writing, that none of the former officers or directors caused the contamination. On Tuesday, the Tribunal began hearing motions (see Baker Notice of Motion) by some former officers and directors of Northstar Aerospace (Canada), owner of the contaminated site, and some former officers and directors of its parent company, Northstar Aerospace Inc.. The former officers and directors are seeking particulars of the Ministry’s case against them. Are they alleged to have been at fault in some way? If so, what is it that the Ministry says they did wrong? If their liability is alleged to be no-fault, what gives the ministry the right to impose a no-fault cleanup order on directors and officers of a parent company, who did nothing wrong personally, and whose company  did not own or operate the contaminated site?

The motion will continue on May 27.  The former officers and directors are appealing the cleanup order against them, saying that it is unconstitutional, issued without jurisdiction, and unfair.  To see the Order, click Director’s ORDER .

Northstar former directors case continuing before Tribunal is a post from: Environmental Law and Litigation

Ecojustice has intervened in an appeal before Ontario’s Environmental Review Tribunal, hoping that they will enforce a public trust in water resources.

Nestle Canada Inc. (“Nestle”) runs Ontario’s largest water bottling operation. They pump groundwater from two different sets of wells in the Guelph area. Each well requires a Permit to Take Water (“PTTW”) from the Ministry of Environment (“MOE”) in order to operate.

Nestle recently had the PTTW for one of their wells renewed by the Ministry. The renewed permit contains new conditions that require reduced water takings during periods of summer drought1. Nestle appealed these conditions to the Environmental Review Tribunal (“ERT”).

Ecojustice intervened in the appeal on behalf of public interest groups and/or local citizens with a long history of opposing Nestle’s bottled water operations in the area – the Wellington Water Watchers (“WWW”) and the Council of Canadians (“CoC”).

While the Ministry of the Environment is the main party defending the conditions, they have agreed to a settlement of the appeal. Ecojustice is asking the ERT to continue the hearing, in order to prevent any settlement agreement from weakening the anti-drought conditions. Ecojustice argues that the principles of the public trust doctrine (“PTD”) provide an additional basis for upholding the original conditions. They  argue that the PTD operates both in addition to the OWRA (as a background principle of the common law which has not been extinguished by the statutory regime), and within the OWRA itself (as a principle aiding in the interpretation of the statute’s purpose and key permitting provisions). They say:

“? We live in an era of increasing pressures on freshwater resources due to population pressures, industry demands, and climate change. In such times our governments should recognize their duty to manage these resources as common resources for the benefit of the public, now and in the future.

o Freshwater resources are part of the commons. The government holds the resource in trust for the benefit of the public – now and in the future.

o Public rights to water should be given priority over private, commercial uses.

o One-off permitting decisions that approve large commercial uses without considering the long-term needs of the local community and environment could squander our endowment of freshwater.

o Water is a fundamental resource. The MOE should be lauded for the progressive conditions imposed in this case.

o Provincial governments are legally responsible for the protection of groundwater supplies. Ontario and other Great Lakes jurisdictions have committed to a precautionary approach in managing water.

o Water bottling businesses, including Nestle, must only be allowed to draw from Ontario’s public groundwater supplies under adequate conditions.”

Final submissions have been filed both for and against the motion to withdraw the appeal as part of a settlement agreement, and we await a decision from Member VanderBent. Here  are the submissions of the Ministry of Environment, Nestle, and Ecojustice.

Will Environmental Tribunal enforce public trust in water? is a post from: Environmental Law and Litigation

The Ontario Court of Appeal has upheld a decision of the Environmental Review Tribunal, refusing to allow an innocent landowner, City of Kawartha Lakes, to lead evidence about the actual polluters. Everyone agreed that the City was completely innocent of the fuel spill, which flowed onto municipal property through no fault of their own. But they were still ordered to clean it up.

The Court agreed that s. 157.1 of the Environmental Protection Act permits the Ministry of the Environment to issue no-fault orders to the owners of property requiring them to prevent, decrease or eliminate an adverse effect on the natural environment that may result from the presence of the contaminant on their property. In this case, that included the City. The City argued that, due to the “polluter pays” principle, the order should be directed against the actual polluters, instead of themselves.

“11….the Tribunal found that evidence of who was at fault for causing the spill should not be permitted.  It held that no evidence of the appellant’s innocence was necessary, since that was agreed, and evidence of who was at fault was not relevant since it would be of no assistance to the Tribunal in deciding whether the Director’s order to the appellant should be revoked or upheld.  …Evidence of others being at fault for the spill was simply irrelevant to the Tribunal’s task of determining whether the Act’s objective of environmental protection meant that the Director’s order should be upheld.  The Tribunal concluded that, despite this evidentiary ruling, in proceeding with its appeal, the appellant was entitled to argue that its status as an innocent owner together with the “polluter pays” principle should relieve it of the Director’s order.

[12]       On the appeal itself, the Tribunal explicitly considered the issue relating to the “polluter pays” principle.  It found that if environmental work was necessary, the environmental protection objective of the Act takes precedence over the “polluter pays” principle.  It concluded that it was not enough for the appellant to rely on its status as an innocent victimized owner without addressing how the legislative objective of environmental protection would be met if the Director’s order were revoked.  Since the appellant presented no evidence of an environmentally responsible solution in the event of revocation of the Director’s order, the Tribunal dismissed its appeal.”

The City argued, with considerable force, that they could not present evidence of “an environmentally responsible solution in the event the revocation of the Director’s order”, precisely because they were prevented from showing that the actual polluters could and should clean the contamination up.  Nevertheless, the Court agreed with the Tribunal:

“[19]       In this case, all agree that the appellant is innocent of any fault for the spill.  I agree with the Tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked.  That order is a no fault order.  It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

[20]       The tribunal had to determine whether revoking the Director’s order would serve that objective.  Deciding whether others are at fault for the spill is of no assistance in answering that question.  Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the Director’s order were revoked.  Indeed, by inviting the Tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective. ”

The City is therefore left to its existing lawsuit under section 100.1 of the Environment of Protection Act, which permits it to seek to recover its costs from persons who had control of the pollutant. And other innocent spill victims will now have to really think twice before calling the Ministry of the Environment.

Innocent owner Kawartha Lakes loses at Court of Appeal is a post from: Environmental Law and Litigation

Toxco Waste Management Ltd., of Trail, B.C., was ordered to pay $17,500 to the Environmental Damages Fund (EDF) by the Provincial Court of British Columbia after pleading guilty to importing waste lithium batteries exceeding the limit set out in its import permit. This action contravened the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (EIHWHRMR) of the Canadian Environmental Protection Act, 1999 (CEPA, 1999). No fine was imposed.

$17,500 penalty for importing hazardous batteries without permit is a post from: Environmental Law and Litigation

Access to some federal and provincial environmental monitoring data on air, water, land and biodiversity in the oil sands is now available through an online data portal (www.JointOilSandsMonitoring.ca). The portal is a result of the Joint Canada–Alberta Implementation Plan for Oil Sands Monitoring announced in February 2012.

Some Alberta oil sands monitoring data now public is a post from: Environmental Law and Litigation

The $18 billion award given in Ecuador against Chevron for environmental damage won’t be enforced by seizing Chevron Canada, according to Justice David Brown. The epic legal battle to enforce this, allegedly fraudulent, judgment has now spread around the globe. Plaintiffs brought the original Ecuador lawsuit in 1993 against Texaco Inc for pollution and health damage left after four decades of oil extraction, not all of it by Texaco. Chevron, which has never operated in Ecuador, inherited the case when it acquired Texaco in 2001, despite a $40 million cleanup and settlement signed with the Ecuador government. Chevron has counterattacked with vehemence, including a New York lawsuit to have the award declared a fraud. The plaintiffs’ lawyers are now seeking leave to withdraw from the New York case, due to non-payment of their fees. Instead, the plaintiffs are trying to seize Chevron assets, wherever they may be found. Judge Brown summarized the Canadian status in Yaiguaje v. Chevron Corporation, 2013 ONSC 2527.

“[2] In 2011 the plaintiffs, residents of Ecuador, obtained a judgment in an Ecuador trial court which required the defendant, Chevron Corporation, to pay damages of approximately $18 billion. The trial judgment was upheld by an Ecuadorean intermediate court of appeal which, the parties agreed, turned the trial judgment into a final judgment for purposes of recognition and enforcement (the “Judgment”).

[3] In 2012 the plaintiffs commenced an action in this Court seeking recognition and enforcement of the Judgment. The plaintiffs sued not only the judgment debtor, Chevron Corp., but also one of its indirectly-held subsidiaries, the defendant, Chevron Canada Ltd. .. both defendants have brought motions to … stay this action ….”

Parent company doesn’t own subsidiary’s assets

Justice Brown granted the stay, on the ground that Chevron Corp. has no assets in Canada. Its wholly owned but indirect subsidiary, Chevron Canada, does have assets here, but the assets of a subsidiary do not belong to the parent company. “[88] …. By way of my “bottom-line”, I accept the following submission made by Chevron in its factum:

117. [B]ecause Chevron Corp. does not have assets here, and there is no reasonable prospect that it will do so in the future, there is no prospect for any recovery here. To allow the Plaintiffs’ academic exercise to take place in the Ontario judicial system would, therefore, be an utter and unnecessary waste of valuable judicial resources …

Let me explain why I have reached my conclusion….

[93] …under Canadian law, a shareholder in a corporation does not possess a legal or equitable interest in the assets of the company….Accordingly, the plaintiffs’ bald pleading that Chevron beneficially owns the assets of Chevron Canada is inconsistent with the basic principles of Canadian corporate law.

[95] …(iv) The fact that a parent corporation operates a number of world-wide companies as an integrated economic unit does not mean that separate legal entities will be ignored absent some compelling reason for lifting the corporate veil. Ontario courts have not adopted the “group enterprise theory” of corporate liability.  I adopt, as an accurate statement of the law prevailing in Ontario on this point, the following statements by the United Kingdom Court of Appeal in Adams v. Cape Industries Pic.: There is no general principle that all companies in a group of companies are to be regarded as one. On the contrary, the fundamental principle is that “each company in a group of companies … is a separate legal entity possessed of separate legal rights and liabilities … ” Our law … recognizes the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities.”

Chevron Ecuador case- no enforcement in Canada is a post from: Environmental Law and Litigation

In Wainfleet Wind Energy Inc. v. Township of Wainfleet (2013 ONSC 2194), Ontario’s Superior Court of Justice found the Township’s anti-wind by-law invalid for vagueness and uncertainty.      Wainfleet Wind Energy (WWE) applied to the MOE for approval of its 5-turbine wind farm project in the Township. The province requires wind turbines (IWT) to be set back at least 550 metres from noise receptors and sets a maximum for noise of 40 dBA at the nearest noise receptor.
Under the Municipal Act, 2001, a municipality may pass by-laws concerning the health, safety and well-being of persons. As well, it can prohibit and regulate matters that are or could become or cause public nuisances, and prohibit or regulate noise or vibration. The Township passed a by-law requiring a minimum 2 kilometre setback from any “property” (as defined in that by-law) for turbines, with a 32 dB maximum noise at the nearest property. If enforceable, the by-law would have blocked WWE’s project. WWE sought a declaration that the by-law be quashed or does not apply to the project.

The by-law defined “property” as property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes.  

Judge Reid noted that none of these definitions were clear: how vacant land was defined; who was an inhabitant, and whether an inhabitant could live on the vacant land, or only in a dwelling or structure. Also, he pondered whether an “inhabitant” would include animals, birds, insects, and plants…and what about migratory birds? Finally, he concluded: [40]

… The definition is unintelligible. No developer could reasonably measure its risk in building an IWT on any particular site. There is simply no logical and reasoned way that a court can grasp the definition sufficiently to perform its required interpretive function.

He therefore ruled the bylaw invalid:

Summary:

[58] For the reasons noted above, by-law 013–2012 enacted by the Council of the Corporation  of the Township of Wainfleet is invalid and without force and effect as a result of  vagueness and uncertainty. This determination arises from the definition of “property”  contained in the by-law and on the agreement of the parties that the indemnification  provisions of the by-law were an invalid exercise of municipal power.

[59] If the by-law was otherwise valid, and if the applicant is successful in securing approval  for its wind power generating facility on terms that are in conflict with the by-law, the  by-law would be without effect pursuant to subsection 14(1) of the Municipal Act, 2001.

[60] If the by-law was otherwise valid, there would have been a conflict between the by-law and provincial legislation if evidence established that the effect of the by-law was to  prohibit IWT development anywhere within the Township. In that event, the by-law would be without effect pursuant to subsection 14(2) of the Municipal Act, 2001.

[61] The enactment of the by-law was not outside the Township’s municipal authority.

By Jackie Campbell and Dianne Saxe

Wainfleet’s anti-wind turbine by-law invalid is a post from: Environmental Law and Litigation

At this week’s meeting of the Eco Babes, a group of women in the sustainability professions agreed to work together to build support for public transit in the Greater Toronto Area. If you’d like to help, read on.

I’m writing to ask all of you to join us in committing to take action against gridlock in Toronto by supporting Metrolinx and the Big Move.  From the torontoist article of March 18,

“Ontario’s newly installed premier, Kathleen Wynne, has made it clear that her government does back new revenue tools and will make them a priority; there are many city councillors in Toronto who feel the same way. Nonetheless, the sheer number of governments that need to be involved in any regional plan (including both the minority provincial government and all of the GTA municipalities), and the reluctance most politicians have thus far shown to risk voter wrath by making the case for increased taxes and levies, will make it a real challenge to move forward.”

Let’s give our politicians some real feedback about what we want them to do.

We agreed to contact our elected representatives to ask them to commit to the discussions of how to fund the Big Move – and to ask them to support new revenue tools to get the job done.  These tools should be dedicated, efficient, transparent & accountable, regional, fair, and sustainable.
Here’s what to do:
1.  Go to the Civic Action’s Your 32 campaign and pledge to get your politicians moving. The pledge will automatically send a letter to your chosen politicians, letting them know that you support new revenue tools to fund regional transit. http://your32.com/   The nice thing about the site is that it also gives you a list of your local politicians so that you can call or email your councillor and MP to reinforce the message.

2.  Call or email your councillor and MP to reinforce the message.  Personal contact from you will have more impact than a form letter.  Dianne suggests calling and asking them how they are planning to act on this, tell them what you would like them to do; and to get back to you with their response by a specific date.  Here is the directory of local city councillors:  http://app.toronto.ca/im/council/councillors.jsp   And here’s where you can get contact info for your MPP.  http://www.ontla.on.ca/lao/en/getting-involved/contact-an-mpp/the-mpp-as-elected-representative.html

3.  Ask your friends to do the same.

4.  Post a comment, letting us know what you have done, so that we can all pat you on the back.

I’ve done all four. Will you?

Easy useful things to support public transit, now is a post from: Environmental Law and Litigation

The City of Kawartha Lakes has appealed to the Ontario Court of Appeal from a Ministry of the Environment Order, which imposed cleanup liability on the City for contamination it did not cause. The City argues that the MOE should have imposed those cleanup costs on the polluters, meaning either those who caused the spill, or were negligent in cleaning it up, or the province itself for its lax regulation of the oil tank and/or of the original polluter’s cleanup. The City says the s. 157.1 order against it was unfair and contrary to the polluter pays principle. They argue that the Environmental Review Tribunal and Divisional Court were wrong in preventing the City from calling evidence about those at fault for the contamination. This prevented them from trying to persuade the Tribunal that the Order against the City should be revoked in favour of a cleanup order against those at fault.

The province responded that it is entitled, at its discretion, to impose such liability on non-polluters who are without fault of any kind. The province says that its duty to protect the environment requires this power, and that it properly exercised its discretion to do so in this case. (The MOE had already issued a cleanup order to the Gendrons, based on their contravention of the EPA. The Gendrons had exhausted their insurance coverage, and had announced their intention to stop their cleanup.) The province argues that the Legislature deliberately intended to authorize no fault orders to the innocent, and that those who receive such orders are free to seek compensation in other ways. (Whether or not such “other ways” really work in practice.)

Here are the City of Kawartha Lakes’ factum, the MOE Director’s Factum, and the Gendrons’ factum, the homeowners whose oil tank was the source of the original spill.

One of the key issues argued was whether the MOE Director must consider the polluter pays principle when issuing cleanup orders to innocent non-polluters. The MOE says its officers apply its Compliance Policy and its Statement of Environmental Values when choosing whether to issue no-fault orders to non-polluters, but should not consider the polluter pay principle when actually issuing such orders. Fairness to an innocent non-polluter is, they say, only one of many factors they must balance, and not the most important one.

The appeal was argued yesterday before a panel of Justices Rosenberg, Goudge, and Tulloch. Their decision was reserved.

The Gendrons strongly support the Ministry’s attempt to impose liability on the City. A separate lawsuit is ongoing in which the City seeks to recover its cleanup costs from:

•  the Gendron’s, [the homeowners];
•   Thompson Fuels [the fuel supplier];
•   Her Majesty the Queen [the Minister of Environment];
• TSSA, [the province’s Technical Standards and Safety Authority];
•     DL Services [the remediation contractor retained by Farmers and/or Pepper to remediate the spill at the Gendron property];
•  Pepper [the insurance adjuster retained by Farmers to provide adjusting services in connection with the spill];
•   Farmers [the Gendron’s insurers]; and,
•   Granby [the fuel tank manufacturer].

A summary judgment motion by the defendants was dismissed, except that the City’s statutory claim under Part X of the EPA was dismissed. The court ruled that none of Farmers, Pepper or DLS could be considered the “owner of the pollutant” or a person with “control” of the pollutant, because none of them had anything to do with the oil  before it was spilled.

Kawartha Lakes appeal heard by Court of Appeal is a post from: Environmental Law and Litigation

Three different international treaties regulate international aspects of of hazardous materials and wastes. This week, staff and delegates working on the three treaties are meeting together to coordinate their efforts.

The three coordinated meetings are:

The eleventh meeting of the Conference of the Parties to the Basel Convention (BC COP11) on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,

The sixth meeting of the Conference of the Parties to the Rotterdam Convention (RC COP6) on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and

The sixth meeting of the Conference of the Parties to the Stockholm Convention (SC COP6) on Persistent Organic Pollutants (POPs).

Canada implements all three conventions through the Canadian Environmental Protection Act.

The second simultaneous extraordinary meetings of the Conferences of the Parties to the three conventions (ExCOPs2) began this week in Geneva, Switzerland.

Key issues to be considered by the simultaneous meetings include: joint activities among the conventions; progress on enhancing cooperation and coordination among the Basel, Rotterdam and Stockholm conventions; and identifying new concrete areas where synergies can be achieved.

Coordinating international laws on hazardous materials and waste is a post from: Environmental Law and Litigation

Canada’s environmental review process for projects such as oil and gas pipelines did not have backlogs or other unreasonable delays that would justify the timelines imposed by the federal government last year, according to a study in the respected Canadian Journal of Fisheries and Aquatic Sciences.

Researchers in the University of Toronto’s Department of Ecology and Evolutionary Biology, led by PhD student. Derrick (Dak) de Kerckhove, analysed  tens of thousands of environmental reviews. Before the massive changes in last year’s Omnibus Bills, environmental reviews for most small projects were processed within a year, while most larger projects were processed within two years. They concluded that environmental reviews were surprisingly efficient before the changes, and commensurate with the risks posed by different kinds of projects. If the Conservatives had wanted to improve efficiency without reducing environmental protection, there were much better options available, such as standardized review templates, and good data and analysis of any delays.

Listen to his interview with CBC Radio’s As It Happens.

Mr. Kerckhove’s work was the first of its kind. If so, what science were the Conservatives using when they changed  the law last year? Anecdotes from proponents…

Did Conservatives mislead country on environmental assessment “delays”? is a post from: Environmental Law and Litigation

The Ontario Ministry of the Environment is seeking public comment on a proposed regulation to allow landfill gas power generating facilities to register in the Environmental Activity and Sector Registry (EASR).  The Registry is a much easier, quicker way to get environmental permission to build and operate a project, in comparison to the often slow, painful process of seeking an Environmental Compliance Approval.

Eligible projects must have a name plate capacity less than or equal to 10 megawatts. Other criteria include: being located on landfill sites, and meeting setback distances to the landfill property line to account for air and noise emissions. Various operating requirements are also proposed, such as maximum discharge velocity from exhaust stacks, noise attenuation measures, notification to neighbouring properties, local municipalities and service boards, and the documentation of routine maintenance, inspections, and environmental complaints, as applicable.

The proposed regulation only addresses activities related to the landfill gas power generation facility. All other aspects of the landfill site will continue to be subject to Environmental Compliance Approvals, as required. The proposed regulation is in response to the Ministry of Energy’s Feed-In Tariff (FIT) Program Two-Year Review.

See Environmental Activity and Sector Registry (EASR) Regulation for Landfill Gas Power Generating Facilities (Environmental Protection Act, R.S.O. 1990) EBR Registry Number: 011-8592

Landfill gas electricity may be eligible for permit by rule in Ontario is a post from: Environmental Law and Litigation

Press coverage of the Fairview Wind decision last week was wrong. And no one could check, because the decision in Wiggins v Wpd wasn’t made available for people to see what it actually said.

Did Justice Healey really accept as fact last week that wind farms decrease property values, as some press reports suggested? No, she absolutely did not. Nor did she open a new door to future anti-wind lawsuits. That’s not what happened at all. Instead, the Fairview Wind judge just applied a standard legal test. Even if she assumed that the anti-wind evidence was true, the plaintiffs would still have no case. She therefore granted a motion for summary judgment, and threw the anti-wind case out.

For more details, we are republishing an explanatory post by

Ben Thibault, Pembina Institute

‘On Monday, the Ontario Superior Court of Justice released a decision dismissing claims that opponents of wind power brought against the Fairview Wind Farm in Clearview Township. Basically, the plaintiffs (several residents in Clearview Township who oppose the wind farm) sought damages and an injunction against the wind farm developer. The court’s decision brings an end to the case, deciding that a full trial wasn’t even necessary, because the plaintiffs were “unable to show that a trial is needed to determine whether the plaintiffs have a cause of action at this time,” (paragraph 5).

In lawyer speak, the Honourable Madam Justice Healey granted “summary judgment,” dismissing all of the plaintiffs’ claims. She decided this because the wind farm was not under construction — in fact, it hadn’t even obtained regulatory approvals. So, under the law, the plaintiffs had no claim. This is what the defendants (the wind farm developer and the site’s landowners) argued and what the court accepted.

“…Did the court really accept as fact that wind farms decrease property values? The short answer is a resounding ‘no.’”

But if you’ve heard any news about this case, it is likely from the anti-wind organizers that have spun a different story, leaving many wondering: did the court really accept as fact that wind farms decrease property values?

The short answer is a resounding “no.”

Unfortunately, the spin from the lawyer for the wind opponents and the misunderstanding of a vocal anti-wind group have misconstrued the judge’s reasons to their benefit, engaging in two significant mischaracterizations, which media coverage has perpetuated (e.g., see here and here). The wind developer has issued a press release to try to help repair these before they spread further, but here are the basics.

First: does the court’s decision open a door to claims?

 

“It now seems clear that as soon as a project is approved residents can start a claim.” — Eric Gillespie, lawyer for the plaintiffs.

 

 

More and more of these can be seen spinning in Ontario — as can the lawyers of their opponents.

This mischaracterization is based on Justice Healey’s statement that her decision dismissing all of the claims before her was “without prejudice to the plaintiffs’ rights to commence an action for identical or similar relief when and if the Fairview Wind Project receives the necessary approvals to be constructed,” (paragraph 6).

The reality is that courts do not decide issues that are hypothetical, only the specific issues before them. This is a central feature of our legal system.

And it’s an important one. Courts recognize that deciding issues or cases that are only in the abstract, without concrete facts, is a dangerous way of making decisions; it’s best to leave those decisions to the case when, and if, one actually comes.

So, when the court says that this decision is “without prejudice” to a potential future case, it is really just restating a rule that binds its actions anyway. Its decision on the issue before it was based on the simple fact that the planning stage of the wind farm was too early for the plaintiffs to have a legitimate claim. But such a decision cannothave impact on a later claim.

Justice Healey didn’t really need to say it, but judges often make this comment. I have worked closely with judges and I’ve seen it quite often. It makes it explicitly clear what the law already requires (I think it also takes the sting out of losing).

But Mr. Gillespie’s assertion that a “door has been opened” isn’t totally surprising — his firm has been busy bringing a lot of cases (at least 10) against wind farms over the last few years. And, as he says in his own words, based on his characterization of the court’s statement, “We can definitely expect more claims now that this door has been opened.”

Second: does the court accept, as fact, the plaintiff’s evidence that wind farms reduce property values?

 

“Wind corporations and politicians have been saying for many years that wind turbines don’t devalue property. … This is a court finding that they do, even before a project has been approved and constructed.” — Mr. Gillespie.

 

“The judge accepts unreservedly that property value is lost for neighbours of these power projects based on the evidence. He [sic] also accepted that the possibility of adverse health effects from the environmental noise.” — Jane Wilson, Wind Concerns Ontario president.

 

“An Ontario court says that landowners near a proposed wind farm have suffered diminished property values.” — John Spears, Toronto Star.

These mischaracterizations are based on the following statement from Justice Healey (the sound bite that Mr. Gillespie’s firm used in its press release is emphasized):

“Even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exists today the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution of property values to any tortious conduct.”

In reality, the “sound bite” (emphasized in the quote above) demonstrates a bit of an unfortunate choice of words that can be misleading when taken in isolation. But we need to read this statement in context.

Courts make “findings of fact” at trial on issues that are before it. That is not what this was. For the defendants to win on their summary judgment request — to have the case dismissed without needing to determine the facts at trial — they had to show a legal reason to dismiss the case that is not based on facts. The defendants’ position was that the law does not recognize a legal claim when the allegedly harmful development doesn’t even have the necessary approvals.

“… Even accepting their evidence, the plaintiffs still lost,”When they undertake a summary judgment decision, courts often engage in a useful mental exercise that basically goes like this: if the defendants in the case want the case dismissed without having to try the facts, they could show that they would win, under the law, regardless of what the real facts are. The best way to test this is to accept the other side’s version of the facts then see if they could ever possibly win on this claim. If not, everyone (including the overtaxed judicial system) saves time by ending the case right then and there.

It’s clear that this is what the court was doing, if you read Justice Healey’s reasons (i.e., all of them): “the court was invited by the [wind farm defendants] to take the plaintiffs’ evidence as proven in order to place the plaintiffs’ cases at their most favourable for the purpose of these motions,” (paragraph 8). Because this is what the court agreed to do, the court then went on to review the plaintiffs’ evidence — not by accepting it as “the truth” or its own findings of the facts, but by considering it, for the purposes of this useful mental exercise, as the only evidence on which to base its decision. And even accepting their evidence, the plaintiffs still lost – end of the road.

Conclusion

So, did the court make a “finding” or “accept unreservedly” that wind farms reduce property values? No. It undertook a thought experiment, suggested by the defendants, in order to show that there was no way the plaintiffs could ever win this case, even if their version of facts was accepted.

Does the fact that the court accepted this evidence for the purposes of this exercise impact the evidence on property values in the future? Again, no. Any plaintiff that relies on this judgment to show that wind farms cause losses in property values is setting themselves up for failure. Various people can spin this decision to convince the public — in particular, potential future litigants — that the court did something that it did not actually do, but no future judge will fall prey to that mistake.

Perhaps this decision will embolden opponents to bring legal challenges to wind farms, but that would be in error. This decision opens no new door to legal claims against wind farms, nor does it bolster the acceptance of the wind opponents’ “evidence” in the courts. It does, however, open the door for Mr. Gillespie to attract new clients.

All that can be said about this decision is that wind energy opponents lost in court on a claim brought at this early stage of a wind farm’s development — end of story.”

Thank you very much, Ben, for this clear and thorough explanation.

Who has seen the spin? Wind opponents wrong about Fairview Wind decision is a post from: Environmental Law and Litigation

We want to add our voice to those congratulating and thanking Premier Wynne for stepping in to rescue the world class environmental research station, the irreplaceable Experimental Lakes Area that the federal government shuttered. How can the federal government expect to make good environmental decisions without science: Guesswork? Special interests? Political contributions? Is it as bad as we think?

Experimental Lakes Area: well done, Premier Wynne! is a post from: Environmental Law and Litigation

We have written several times about the Supreme Court of Canada’s decision in AbitibiBowater v. Newfoundland, in which insolvency law trumped environmental orders. Today, we want to tell you more about the rule the court laid down, and why it is likely to have perverse consequences. In short, the Supreme Court ruled that environmental orders can jump the insolvency queue, and take priority over other creditors, but only when the province is NOT likely to pay for the work itself. For a brief video explanation, click here.

As mentioned last time, the facts were extreme. When Abitibi Bowater announced their intention to close their last paper mill, Newfoundland expropriated virtually all of their assets in the province, without compensation.

Abitibi Bowater sought protection under the federal companies’ creditors’ arrangement. The CCAA judge issued a claims bar order, to collect all financial claims against the company, and began the complex process of allocating the remaining assets among the many claimants.

Meanwhile, Abitibi filed a NAFTA (North American Free Trade Agreement) claim against Canada for the expropriation. Newfoundland’s Toronto lawyers commissioned studies to show that the expropriated assets were contaminated, thus creating a cleanup cost claim to offset the NAFTA claim. Not all of the contamination had been caused by Abitibi.

Newfoundland then ordered Abitibi, by unrealistic dates, to remediate all the contamination. The trial judge ruled that the orders were a cash grab, and were not intended to ensure Abitibi’s compliance with applicable environmental laws in ongoing operations. On one property, the province did some emergency work and put other work out to tender. However, the trial judge found no evidence that the province would implement the rest of the Orders, should Abitibi fail to do so.

The question that came to the Supreme Court was whether Newfoundland should be able to use these cleanup orders to jump ahead of other creditors as against Abitibi’s other assets: those not affected by or adjacent to the contamination AND not already expropriated by the province.

Unfortunately, in my view, the Supreme Court did not give a useful answer to this question. According to all three judgements (the majority and 2 dissents), the pivotal factor is the likelihood that the province will pay for the cleanup itself, if the insolvent entity does not do so. Justice Deschamps ruled that it had to be “likely”; the chief justice said that it had to be a virtual certainty. Justice LeBel agreed with Justice Deschamps on the legal test, but held that the province might not itself spend the money that it was attempting to extract from Abitibi. In this, he was almost certainly correct.

The Supreme Court’s focus on whether the province will pay for the cleanup, is, in my view, unhelpful. First, it will rarely apply: the court seemed to be unaware that provincial governments almost never cleanup abandoned private contamination. Rather than spend their own money, the provinces often ignore contaminated sites (especially the thousands that have escheated to the Crown) or impose liability on increasingly innocent parties, like the City of Kawartha Lakes.

Second, the rule is perverse, because it discourages the provinces from intervening, at public expense, in those extreme cases where we most need them to intervene. Equally, it encourages the secured creditors to refuse to make funds available, in the hope that the provincial taxpayer will pick up the bill.

Third, this rule pays no attention to Parliament’s actual language, especially its decision to provide provinces with a super priority over the contaminated site and adjacent lands, to secure these very expenses, and NOT over other corporate assets.

Fourth, the Abitibi example will make the test puzzlingly hard to apply.

We agree with Justice LeBel: we can’t understand why, under the test articulated by Justice Deschamps, Newfoundland couldn’t enforce most of its orders against the post- restructuring Abitibi. It is a sad irony that Justice Deschamps held these orders to be provable claims, on the ground that Newfoundland will pay for the work itself, when the evidence was largely to the contrary, and Newfoundland has not actually done so.

Fifth, nothing in the “will the province pay?” test answers the central question: why, and to what extent, should this particular environmental action take priority over the legitimate financial rights and expectations of the other creditors, on top of the super priority created by Parliament? Nor does it recognize that not all environmental requirements are the same.

This post was written for Hazardous Materials Management Magazine.

Why the Supreme Court decision in AbitibiBowater won’t work is a post from: Environmental Law and Litigation

The Ontario Environmental Review Tribunal has dismissed an appeal from an individual ordered to clean up the  historic contaminated site of a bankrupt company in Brighton, Ontario. Bruce Cooey’s father owned Cooey Metal Products Ltd., which owned and operated  an factory in Brighton, Ontario, between 1941 and 1989. The site was contaminated, the company became insolvent and the site was abandoned. The family’s lawyer, Simon Morris Rosenfeld, sat on the board from 1982 until the company was dissolved in 1994. Mr. Cooey ended up as the registered owner of the land, but without the money to clean it up.

In 2000, the Ontario Ministry of the Environment tried to force Bruce Cooey to clean up the site. After an exhaustive review of his (lack of) finances, they abandoned the effort as futile. By 2009, the site had still not been cleaned up, and the MOE issued a new clean up order.  This time the order was addressed to Bruce Cooey and to the lawyer, Simon Rosenfeld, who had been a director 15 years before.

In 2011, the Ministry agreed to withdraw the order against Mr. Rosenfeld “on the basis that Mr. Rosenfeld is not involved in the ownership, management or control of the Site, as is required for the issuance of an order under section 157.1 of the EPA.” Mr. Cooey continued with his appeal against the Order, apparently representing himself. The ERT has now dismissed his appeal, on the grounds that he failed to comply with their procedural directions.

So now the Ministry has a clean up Order  in force against Mr. Cooey. But if he doesn’t have the money to comply, what’s next? Will they prosecute him for not complying with the order, and add fines to what he owes? Will they put him in jail for not having the money to clean up his father’s mess? (Do we still have debtor’s prison in Ontario?) And then what will they do about the site?

We need a coherent policy for dealing with contaminated sites owned by individuals or organizations who don’t have the money to clean them up. And we don’t have one.

Debtors’ prison for bankrupt contaminated sites? is a post from: Environmental Law and Litigation

Inside Climate News, a small online non-profit devoted to covering the changing climate, has won one of the most prestigious prizes in journalism. Three Inside Climate reporters received the National Reporting Pulitzer Prize for coverage of pipeline regulation and the hazards of tar sands oil.

The prize is awarded each year “for a distinguished example of reporting on national affairs, using any available journalistic tool”. The 2013 prize was “awarded to Lisa Song, Elizabeth McGowan and David Hasemyer of InsideClimate News, Brooklyn, N.Y., for their rigorous reports on flawed regulation of the nation’s oil pipelines, focusing on potential ecological dangers posed by diluted bitumen (or “dilbit”), a controversial form of oil.”

Inside Climate News is exciting and infuriating to read. It is well-written, knowledgeable and passionate. Alison Redford must have cringed at its punchy coverage of her trip to Washington to plead for the Keystone pipeline, coupled with their slideshow of the Exxon spill of “Canadian tar sands oil” in Mayflower, Arkansas. For an interview with one of the authors, click here.

We’ve added it to our links page.

Pulitzer Prize for Reporting to Inside Climate News is a post from: Environmental Law and Litigation

Happy 43rd Earth Day!

Earth Day was designed to get everyone involved in environmental protection and celebration, but leaves the details up to each person’s imagination and creativity. (Thank you Google for your daily doodle.) I picked up litter, mulched vulnerable young trees, and filled in a pothole in our park. I plan to show those trees to my grandchildren some day. What about you?

Happy Earth Day is a post from: Environmental Law and Litigation

Thank you to everyone who has expressed their concern about our family members in Boston and at the Marathon. We have been fortunate, and are counting our blessings.
We express our condolences to the families of all those killed, and our best wishes for a swift healing to those injured.

Thank you for your concern is a post from: Environmental Law and Litigation

The Ontario government argued in Superior Court on April 18 that former corporate directors and officers have presumptive, unlimited, personal, no-fault liability to orders to pay all environmental costs associated with the assets of their former corporation, or of the subsidiaries of that corporation.

Northstar Aerospace (Canada), which is now bankrupt, owned 695 Bishop Street, Cambridge, Ontario, an industrial site with a substantial historic chlorinated solvent plume (TCE) that flows under part of the Bishop Street community. It spent close to $20 million to investigate, manage and remediate the contamination, under MOE supervision, until it ran out of money in 2012. The parent company, Northstar Aerospace Inc., also became insolvent. It was publicly traded and had a US head office, and many of the former directors are US residents.

The Ontario Ministry of the Environment (MOE) tried to force both companies to pay for the rest of the cleanup, by issuing administrative orders just before the companies claimed Companies Creditors Arrangers Act CCAA protection. Then the MOE asked the court to block the distribution to secured creditors of the proceeds of the marketable assets of both companies, other than the contaminated property itself.  Justice Morawetz of the Superior Court (Commercial List) ruled that the proceeds properly belonged to a secured creditor, which had priority over the MOE under federal insolvency laws (CCAA and BIA). (This decision is under appeal to the Ontario Court of Appeal, and will be argued in June.)   Under the CCAA and BIA,  ministry has a super priority over the contaminated site, but this has been of little value since no one will buy the site.

The MOE also filed a claim for the cleanup costs in the corporate insolvency proceedings, but there was no money left for any of the many unsecured creditors. The MOE was equally unsuccessful in seeking access to a corporate reserve that had been set aside for certain post-filing claims against the former officers and directors.

The Ministry of the Environment took over the cleanup itself for several months after the bankruptcy. In November, the MOE ordered the former officers and directors of both Northstar Canada, and the parent company, Northstar Inc., to personally pay for about ten more years of cleanup work. Note: the order does not claim that the TCE contamination occurred while any of the officers or directors were involved with either company. It may pre-date them all.

The order is under appeal to the Environmental Review Tribunal, which has ordered the former officers and directors to pay the cleanup cost (exceeding $100,000/month), at least until the appeal is complete. (We act for one of the former directors at the ERT).

The former officers and directors say the MOE has no jurisdiction to require them to pay for the corporate cleanup. They also made a motion to the Superior Court to have the validity of the MOE Order determined as part of the insolvency proceedings. It is this venue motion that was argued April 18.

The Crown factum for this motion is attached: Crown Responding Factum -venue motion. It suggests that the officers and directors’ liability does not require any proof of fault, but flows from the mere fact that they were officers and directors. It claims that the officers and directors have a difficult onus of proving they lacked personal management or control of the assets of the corporation and of the subsidiary of the corporation, and, if not, can be ordered to pay unlimited amounts to cleanup anything associated with those assets, even after bankruptcy. Section 18  orders have no limitation period and no financial limits. Here is a key excerpt from the Crown factum:

“(i) The Former D&Os’ Liability is independent of the CCAA Entities’ Liability and is not dependent on Fault

87. Under the EPA, the MOE Director is empowered to issue orders against past owners, occupants and persons who were in charge, management or control of an undertaking, property or source of a contaminant.

88. The EPA specifically permits the Director to make various orders that impose obligations and personal liabilities upon persons who (i) cause or permit the discharge of a contaminant into the natural environment and/or (ii) had management or control of an undertaking or property from which a contaminant was discharged. EPA, ss. 17, 18(1), 18{2) and 196(1).

89. It is the MOE’s position that the Former D&Os had management and control of Northstar Canada and Northstar Inc. during the period from 2003 to 2012 such that they must have been informed and aware of the environmental issues arising from the TCE contamination. Hess and Yuen had management and control of the two corporations during the Post-Filing Period. Corporation Point in Time Reports for Northstar Canada and Northstar Inc. – Exhibit “5″ to Exhibit “43″ to Sinnadurai Affidavit, MOE’s Motion Record, Tabs 5 to 43.

 90. Section 18 of the EPA applies not only to persons who currently own, manage, or control undertakings or property but also to those who previously held such a status. The EPA provisions capturing past owners, managers and controllers are retrospective and apply to persons holding that status before 1990 when the provisions were passed. Sheridan v. Ontario (Ministry of Environment and Energy), [1994] O.E.A.B. No. 56 at 12, MOE’s Book of Authorities, Tab 16.

91. In Currie v. Ontario (Ministry of the Environment) (“Currie”), the ERT quoted with approval from the decision of the Divisional Court in Ontario (Ministry of the Environment and Energy, Southern Region) v. 724597 Ontario Inc. (c.o.b. Appletex) which confirmed the Ontario Environmental Appeal Board’s interpretation of “management and control”. “Control” includes de facto control and control of the purse strings through means other than direct or daily participation in the corporation or its business. “Management” is not restricted to how the business was conducted as an 34 operating entity, but includes how the property was decommissioned when the business was abandoned. Currie v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 26 at para. 76, MOE’s Book of Authorities, Tab 17.

92. The ERT in Currie also confirmed that directors who have been named in a Director’s order under section 18(1) of the EPA bear the onus of proving that they did not have management or control of the corporation whose operations caused the environmental contamination.”

Justice Morawetz reserved his ruling on the motion.

Unlimited personal no fault liability for directors and officers? is a post from: Environmental Law and Litigation

Petition Alert: Oppose Bill 39 and speak out in support of renewable energy in Ontario!

Here is an important notice, from the Toronto Renewable Energy Cooperative and Solarshare, about how to support renewable energy.

The Conservative Party has introduced a Bill to revoke the Green Energy Act and the FIT Program. It was tabled on March 26th and is set to be debated, and then put to a vote regarding whether it gets a Second Reading on Thursday April 18, 2013. (see a summary of the Bill at the end of this e-mail).

It’s important we collectively raise the pro-renewables voice around the province today!

What you can do:

1. Call or visit your MPP’s constituency office before April 18th 2013 to communicate your objection to Bill 39!
2. Sign petition “Ontario MPPs: We support renewable energy in Ontario” https://www.change.org/en-CA/petitions/ontario-mpps-we-support-renewable-energy-in-ontario then forward this email to contacts and share on Facebook and twitter

While many do not believe this Bill will pass, we do believe the government is watching to see the extent to which Ontarians support green energy by how vocal they are in opposition to this Bill.

The best ACTION to take at this time is to CALL YOUR MPP or visit their constituency office in person and share with them that you are a member of their constituency with a community power project under development that engages and benefits a significant number of other local citizens. If you’re not sure who your MPP is, here is how you can find out here: http://fyed.elections.on.ca/fyed/en/form_page_en.jsp

Summary of Bill 39:

• The Bill enacts a new Act to deal with industrial wind turbines.
• No person is allowed to install or operate an industrial wind turbine unless authorized by a by-law of the municipality where the turbine is located. The installation or operation of industrial wind turbines is entirely prohibited in the Niagara Escarpment Planning Area or the Oak Ridges Moraine Conservation Plan Area.
• The Bill amends the Electricity Act, 1998 to prohibit the Ontario Power Authority (OPA) from entering into contracts for the procurement of electricity supply or capacity derived from renewable energy sources unless the price for the supply or capacity does not exceed the price that would be payable if the supply or capacity were derived from non-renewable energy sources.
• The Bill terminates the feed-in tariff program that the OPA has developed to procure energy from renewable energy sources.
• The Bill amends the Green Energy Act, 2009 to allow municipalities, by by-law, to restrict the use of goods, services and technologies designed to promote energy conservation and to restrict activities with respect to renewable energy projects, renewable energy sources or renewable energy testing projects.
• The Bill amends the Planning Act to reverse the effect of the amendments made to the Act by Schedule K to the Green Energy and Green Economy Act, 2009. Those amendments exempted renewable energy undertakings from the normal application of the Planning Act, including policy statements, provincial plans, official plans, demolition control by-laws, zoning by-laws and development permit regulations and by-laws.

See the tabled Bill here: http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session2/b039.pdf

Please contact  TREC/ SolarShare if you have any questions or concerns.

Sent by TREC Services on behalf of SolarShare Co-op.
401 Richmond Street West, Toronto, ON  M5V 3A8
Unsubscribe dsaxe@envirolaw.com

Keep green energy, oppose Bill 39 is a post from: Environmental Law and Litigation

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 vapour 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

Environmental Tribunal blocks afterthought grounds for leave to appeal is a post from: Environmental Law and Litigation