Reprint (Ontario Bar Association – Environews – January, 2009)
by Kaitlyn Mitchell
The Environmental Bill of Rights, 1993 (“EBR”) (1) was enacted to protect the environment by giving Ontario residents meaningful ways in which to participate in environmentally significant government decision-making, and by increasing government accountability. One of the means provided to hold the government accountable is to allow citizens to seek leave to appeal decisions made by the Ministry of the Environment (“MOE”) regarding the granting of certain permits and certificates of approval.
Leave is to be granted where an applicant has an “interest” in the decision at issue (EBR, section 38), and is able to meet the stringent leave to appeal test by demonstrating to the Environmental Review Tribunal (“Tribunal”) that there is good reason to believe that no reasonable person, having regard to relevant law and policy, could have made the decision, and the decision could result in significant harm to the environment (EBR, section 41). An applicant has only 15 days from the date a decision is posted online to gather and submit the evidence necessary to meet this burden of proof.
Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) (2)
In June 2008, the Ontario Divisional Court denied an application for judicial review brought by Lafarge Canada Inc. At issue was an April 2007 decision of the Tribunal to grant a number of citizens and groups leave to appeal two certificates of approval issued to Lafarge by the MOE under the Environmental Protection Act. (3) The certificates allowed Lafarge to burn “alternative fuels” such as tires, pelletized municipal waste, and meat and bone meal waste at its plant in Bath, Ontario.
As explained by Barry Spiegel in the November 2008 edition of Environews, (4) one of the main reasons behind the Tribunal’s decision that the section 41 EBR leave test had been met was its findings with respect to the application of the MOE’s Statement of Environmental Values (“SEV”). Prescribed ministries are required to develop SEVs under section 7 of the EBR to describe how the ministries will apply the EBR’s purposes when they make environmentally significant decisions. The Tribunal found that there was good reason to believe that no reasonable person, having regard to the MOE’s SEV and the precautionary principle and ecosystem approach it embodies, would have made the decision to issue the certificates in question. The Tribunal found that there was good reason to believe that no reasonable person would have issued the certificates without considering the cumulative environmental health effects of the proposed alternative fuels project. Further, expert evidence adduced by the applicants satisfied the Tribunal that the potentially harmful contaminants that would be released as a result of the project could result in significant harm to the environment within the meaning of section 41(b) of the EBR.
Before the Divisional Court, both Lafarge and the MOE Directors argued that the Tribunal’s decision should not stand because, inter alia, the section 41 leave test should have been applied in a manner that required the applicants to prove both unreasonableness and potential environmental harm on a balance of probabilities. Another argument advanced by Lafarge and the Directors was that the Directors were not required to consider the SEV when issuing the impugned certificates because they alleged that the ministry’s SEVs are only required to be directly considered when decisions are made regarding Acts, regulations, and policies.
The Court held that the Tribunal was not only reasonable, but correct in its determination that the standard of proof under section 41 is less than a balance of probabilities. That is, at the leave stage an applicant must establish a prima facie case, demonstrating that there is sufficient foundation to proceed with an appeal. Regarding the application of the SEV – a point on which the Environmental Commissioner of Ontario intervened in the proceedings – the Court upheld the Tribunal’s finding that the Directors’ failure to consider the precautionary approach and the cumulative ecological impacts of the impugned approvals meant that their decisions to issue the approvals were unreasonable because they failed to take into account the SEV. (5)
Subsequently, Lafarge sought leave to appeal the Divisional Court’s decision to the Ontario Court of Appeal. In its responding factum, the MOE supported Lafarge on a number of the grounds raised. Interestingly, it chose not to seek leave to appeal the Divisional Court’s findings with respect to the application of the SEV to decisions on environmentally significant instruments.
On November 26, 2008, the Ontario Court of Appeal denied Lafarge’s motion for leave to appeal with costs without written reasons. (6) Thus, the Divisional Court’s decision stands as the leading case in this province on the leave to appeal provisions of the EBR, and on the role of SEVs.
Lafarge subsequently announced it will abandon its efforts to burn tires and other “alternative fuels” at its facility in Bath. In December 2008, Lafarge obtained the MOE Directors’ consent to revoke the certificates of approval and obtained an order from the Tribunal dismissing the proceeding. (7) Thus, the appeal hearing before the Tribunal, which would have determined the “merits” of the impugned certificates, will not go forward. The citizens and groups who were granted leave have, however, announced their intention to seek an order from the Tribunal awarding them their costs incurred to date.
Implications of the Decision on the Approvals Process
The Divisional Court decision has significant implications for the MOE’s future conduct in its approvals process. Notably, it suggests that in accordance with the SEV, decisions as to whether or not to issue approvals should be made in a precautionary manner that considers cumulative environmental effects. However, on October 30, 2008, the MOE released a revised SEV, which contains no reference to instruments whatsoever. In the EBR Registry posting for the decision related to these new SEVs, the Ministry notes that it is developing tools “to support the application of the ecosystem approach, including consideration of cumulative environmental effects, to environmentally significant decision-making.” (8)
The revised wording of the SEV is consistent with the MOE’s position before the Divisional Court in the Lafarge case. However, section 11 of the EBR is clear that the Minister has a duty to ensure the SEV is considered whenever decisions that might significantly affect the environment are made within the Ministry. Decisions on Class I and II instruments are inherently environmentally significant (EBR, section 20). As noted by the Divisional Court,9 there is no exclusion under section 11 of the EBR for Directors when they are deciding whether or not to implement proposals for such instruments.
When making environmentally significant decisions on instruments, Directors should act in a precautionary manner, requiring that new practices and technology – such as Lafarge’s “alternative fuels” project – are shown to be safe for the environment and human health before they are approved, whether as a pilot project or on a permanent basis. Directors should also consider the cumulative environmental effects of proposals before they decide whether or not to issue an approval. Only by ensuring that the SEV is considered in all environmentally significant decision-making can we truly protect the environment and the health of humans and other animals in this province.
Importantly, by discouraging potentially harmful activities, the MOE can ensure that those new practices and technologies used in Ontario are actually of the sort that will assist in the transition to a truly green economy – a transition that is desperately needed in this time of economic crisis. Disguising unproven and environmentally harmful technology in sheep’s clothing will do nothing to effect the change that is needed at the present time.
It is when the government fails to protect the environment and the health of Ontario residents that utilization of the leave to appeal provisions of the EBR becomes necessary. Though the section 41 leave test is stringent, it is important that the bar not be set so high that the rights provided cannot be exercised and access to justice is denied. The Divisional Court’s decision in the Lafarge case stands as an important affirmation of the meaningful nature of the public’s participatory rights under the EBR.
Kaitlyn Mitchell is a lawyer with the Canadian Environmental Law Association
1 S.O. 1993, c. 28.
2 (2008), 36 C.E.L.R. (3d) 191 (Ont. Div. Ct.).
3 R.S.O. 1990, c. E.19.
4 See Barry Spiegel, “Environmental Review Tribunal Decision Alarms Industry and Challenges Ministry of the Environment” Environews, Volume 18, No. 1 (November 2008).
5 Supra note 2 at para. 60.
6 Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, leave to appeal refused, M36552 (November 26, 2008).
7 Baker v. Directors, Ministry of the Environment, December 22, 2008, Environmental Review Tribunal, Case Nos.: 07-009 to 07-016.
8 EBR Registry Number PA05E0016, online: http://www.ebr.gov.on.ca.
9 Supra note 2 at para. 56.