Administrative law – Decisions reviewed – Minister – Approval process – Environmental matters – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness
Sorflaten v. Nova Scotia (Minister of Environment),  N.S.J. No. 91, 2018 NSSC 55, Nova Scotia Supreme Court, March 20, 2018, J.L. Chipman J.
The applicants sought judicial review of the Minister of Environment’s decision to approve a cement plant by the respondent LaFarge. LaFarge had conducted a variety of public consultations about the plant, which intended to burn whole tires mid-kiln but also to use pieces of scrap tires at the hottest area of the kiln. The Minister, in approving the project, stated he was “satisfied that any adverse effects or significant environmental effects of the undertaking can be adequately mitigated through compliance with the attached terms and conditions.”
The applicants argued that the decision of the Minister was unreasonable, it lacked supporting evidence, and because he failed to consider relevant factors listed by the Environment Act, SNS 1994-95. The court reviewed the Dunsmuir test on reasonableness along with recent Supreme Court of Canada jurisprudence on adequacy of reasons (Dunsmuir v New Brunswick, 2008 SCC 9; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62; Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34). The court further affirmed that it is not the Court’s role to review scientific and technical evidence, nor to resolve ambiguities. The court ought not to second guess the Minister’s interpretation of the evidence.
The applicants differentiated between the burning of whole tires and tire debris, and say that the evidence before the Minister pertained only to the latter, but that the approval was given primarily to the former. Their argument relied in large part on the fact that the primary scientific report provided by the respondent did not consider the issue of burning whole tires. The court did not accept the argument, as there was substantial other material before the court that referenced whole tire burning, and because the report itself implied tires need not be shredded if used with a cement kiln, which was the respondent’s plan. The court therefore held there was evidence before the Minister to support his decision.
On the second issue, the applicants argued the Minister had not considered enumerated factors with respect to whole tires instead of shredded tires. The court reviewed the purpose of the Environment Act, which is not solely to “protect” the environment. The court held “the polycentric goals make environmental regulation subject to the greatest deference from the Court.” The fact that the Minister did not make specific recommendations in reference to certain enumerated grounds did not mean he did not consider those factors.
The court dismissed the application, holding there was evidence before the Minister to make the decision, and that involving as it did a consideration and evaluation of the risks, the decision was reasonable.
This case was digested by Kelsey A. Rose, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Kelsey A. Rose at email@example.com.
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