COVID-19 Update: Ontario Exempts Itself from Public Participation Law

By Richard Lindgren, CELA Counselrick_192x192

Citing the unprecedented nature of the COVID-19 pandemic, the Ontario government recently passed a regulation that temporarily exempts governmental proposals from having to comply with Part II of the Environmental Bill of Rights (EBR).

Part II is by far the most important component of the EBR since it establishes a mandatory public participation regime that is generally triggered whenever the provincial government is making environmentally significant decisions.

For example, if provincial officials are proposing to make, amend or revoke environmental laws, regulations, policies or instruments (e.g. licences, permits or approvals), then the EBR expressly requires these officials to provide public notice and comment opportunities.

Similarly, the EBR requires governmental decision-makers to consider the key environmental policies, principles and commitments set out in the Statements of Environmental Values (SEVs) developed by various ministries under the EBR.

However, the newly announced regulation suspends both of these important obligations under the EBR until 30 days after the provincial emergency declaration on COVID-19 has ended.

Before this new regulation was made, no public consultation was undertaken by the provincial government in relation to these sweeping exemptions. However, in its EBR information notice posted on April 3, 2020, the Ontario government indicated that the regulation was enacted “to respond to the COVID-19 outbreak.”

This information notice further stated that “we have temporarily exempted proposals for policies, acts, regulations and instruments from Part II of the EBR and removed the requirement to consider the SEVs so that we can expedite decision-making and implementation of measures to respond to the emergency.”

CELA acknowledges and appreciates the public interest need for timely and effective provincial action to mitigate the COVID-19 crisis and to protect public health and safety. However, we remain concerned that the new regulatory exemptions are overbroad and redundant in light of existing EBR provisions.

First, there is no attempt in the new regulation to carve out a time-limited exemption for provincial proposals that are directly related to Ontario’s response to COVID-19. Instead, all governmental proposals are wholly exempted from Part II of the EBR, even if they have no legal nexus or factual connection to the COVID-19 outbreak.

Second, when the EBR was first enacted in 1993, the Ontario Legislature built in an “emergency” exception to public participation as follows:

29. (1) Sections 15, 16 and 22 [public consultation] do not apply where, in the minister’s opinion, the delay involved in giving notice to the public, in allowing time for public response to the notice or in considering the response to the notice would result in,

(a) danger to the health or safety of any person;
(b) harm or serious risk of harm to the environment; or
(c) injury or damage or serious risk of injury or damage to any property.

Accordingly, if Ontario now proposes legislative, regulatory or administrative measures regarding COVID-19 that would otherwise trigger public notice/comment opportunities under the EBR, section 29 currently provides a ready-made emergency exception that allows such provincial actions to proceed without public consultation under the EBR.

CELA therefore remains unclear about the underlying rationale for, or the intended future use of, the new regulation that fully dispenses with all EBR public participation requirements in the foreseeable future.

In closing, CELA reiterates that it has no objection to fast-tracking necessary provincial initiatives that specifically address the adverse socio-economic impacts of the COVID-19 pandemic in Ontario. However, we trust that the COVID-19 crisis will not be used by the Ontario government as an excuse or pretext for broader environmental de-regulation efforts, as has occurred in other North American jurisdictions.