The Court dismissed an application for judicial review of a decision of the Ontario Environmental Review Tribunal, which had granted leave to appeal the decisions of two Directors of the Ministry of the Environment granting Certificates of Approval under the Environmental Protection Act. The Tribunal’s decision was reasonable in that there was a proper basis for the Tribunal’s finding that the standard of proof for leave to appeal the Directors’ decision was less than a balance of probabilities. In addition, the Tribunal’s decision was reasonable in that there was a proper basis for the Tribunal to grant leave to appeal.
Administrative law – Decisions of administrative tribunals – Environmental Review Board – Ministerial decisions – Environmental issues – Judicial review – Appeals – Leave to appeal – Evidence – Standard of proof – Compliance with legislation – Standard of review – Reasonableness simpliciter
Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal),  O.J. No., 2460, Ontario Superior Court of Justice, June 18, 2008, S.N. Lederman, K.E. Swinton and W. Low JJ.
The Applicant owns and operates a cement manufacturing facility in Bath, Ontario. The Applicant developed a plan to use alternative fuels and, in December of 2003, applied to the Ministry for a Certificate of Approval (“CofA”) under the Environmental Protection Act, R.S.O. 1990, C. E. 19. This application related to the storage and usage of waste materials for the alternative fuel stream. In addition, in February 2004, the Applicant applied for a CofA to replace its existing certificates for all sources of air emissions at the plant.
The Environmental Bill of Rights, 1993, S.O. 1993, c. 28 (“EBR”) provides a process for ministries to develop a Statement of Environmental Values (“SEV”). In addition, the EBR requires the minister to take every reasonable step to ensure that the ministry SEV is considered whenever decisions that might significantly affect the environment are made in the ministry. In the SEV of the Ministry of the Environment, there are three guiding principles: the ecosystem approach, environmental protection, and resource conservation.
On December 21, 2006, two Directors of the Ministry of the Environment granted each CofA to the Applicant and a number of groups and individuals sought leave to appeal the decisions under s. 41 of the EBR. Section 41 provides that leave to appeal shall not be granted unless there is good reason to believe that no reasonable person, informed by the relevant law and government policies, could have made the decision. The second branch of section 41 requires that, for leave to be granted, the decision could result in significant harm to the environment.
The Tribunal granted the leave applications of several applicants. In doing so, the Tribunal first found the standard of proof, on an application for leave, was lower than a balance of probabilities. The Tribunal then examined the application for each CofA and granted leave to appeal.
The standard of review was reasonableness because the Tribunal is a specialized body, with expertise in environmental law and policy, and was considering questions of mixed fact and law in reviewing the Directors’ decisions. In addition, the interpretation of section 41 of the EBR is clearly within the statutory authority conferred on the Tribunal and, therefore, is not a true question of jurisdiction.
The Tribunal’s interpretation of section 41 of the EBR was reasonable because the Tribunal is not responsible for applying the balance of probabilities standard to the actual merits of the appeal. Therefore, the Tribunal was reasonable in finding that the standard of proof is lower than the balance of probabilities. This standard of proof applies to both branches of section 41 and requires the applicant to put forward a prima facie case. Therefore, the first branch of section 41 requires the leave applicant to put forth a prima facie case that no reasonable person could have made the decision. The second branch of section 41 requires the leave applicant to put forth a prima facie case that the decision could cause significant harm to the environment.
The Tribunal was reasonable in finding that leave should be granted because the Directors failed to apply the SEV. In the context of section 41 of the EBR, the SEV is a relevant government policy that guides the reasonable person inquiry. In addition, the Tribunal’s decision was reasonable because the Directors failed to consider the common-law rights of land owners, which are relevant to the Tribunal’s findings of serious risks of off-site harm. Finally, the Tribunal was reasonable in finding the Directors failed to take into account environmental consistency because only the residents of Bath, and not the rest of the province, would be exposed to the effects of the tire burning process. With respect to the second part of section 41, the Tribunal was reasonable in finding that the proposed tire burning activity could result in significant environmental harm.
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