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The Nuts, The Bolts And The Rest Of The Machinery: Background Paper for Presentation to: Environmental Law 2001: New Developments and The Sheraton Centre, Toronto, Ontario, September 20-21, 2001 David McRobert, In-House Counsel/Senior Policy Adviser Catherine McAteer, Student-at-Law Environmental Commissioner of Ontario 1075 Bay St., Suite 605 Toronto, ON M5S 2B1 T. 416-325-3377 Fax 416-325-3370 August, 2001 Contents I. Introduction II. History of the Environmental Bill of Rights III. Nuts and Bolts of the EBR
IV. The EBR and the Environmental Assessment Act V. Review of the Third Party Appeals under the EBR VI. ECO Annual and Special Reports VII. ECO Guidance to Ministries VIII. What is new at the ECO? IX. Proactive Strategies for Effective Operations X. Conclusion XI. Acknowledgments XII. Biographical Notes XIII. Appendices I. Introduction[1] In February 1994, the Ontario government proclaimed into law the Environmental Bill of Rights, 1993 (EBR). The proclamation of the EBR was intended to indicate a new era in environmental decision making -one of better public participation and greater accountability of government decision-makers. The purpose of the EBR is to make provincial government decision-making more transparent and accessible to all members of the public. It does this through a number of means, including:
Any resident of Ontario can use the rights and processes of the EBR. This includes corporations which have their head offices in Ontario and which are up to date in their corporate filings with the Corporations Branch of the Ministry of Consumer and Business Services (MCBS; formerly the Ministry of Consumer and Commercial Relations).[3] The EBR applies to 13 Ontario government ministries and was supposed to be phased into effect between May 1994 and 1998. As noted below, most parts of the legislation have now been implemented as planned. However, one important exception is that the Ministry of Natural Resources did not completed its work on its instrument classification regulation until July 2001. The implications of this situation are explained below.[4] The MOE is responsible for administering many parts of the EBR and operates the Registry. It has been subject to all of the provisions of the EBR since February 1, 1995.[5] Not all of the ministries are subject to the same provisions of the EBR. Moreover, the ministries each followed a different phase-in schedule for implementing the legislation. As new ministries are created and others are merged, the ECO tries to ensure that new or altered ministries involved in environmental work are prescribed under the EBR.[6] Besides the MOE, four other ministries are subject to Applications for Investigation (Part V of the EBR) — the Ministry of Natural Resources (MNR), the Ministry of Energy, Science and Technology (MEST), the Ministry of Northern Development and Mines (MNDM), and the MCBS.[7] These ministries plus the Ministry of Agriculture and Food and Rural Affairs (OMAFRA) and the Ministry of Municipal Affairs and Housing (MMAH) also are subject to Applications for Review (Part IV). Since 1998, the Ministry of Municipal Affairs and Housing is also covered by the application provisions contained in Part IV of the EBR. The EBR also creates the Environmental Commissioner of Ontario (ECO).[8] The idea for a position such as Commissioner was based in part on experience in New Zealand, where a Parliamentary Commissioner for the Environment was created in the late 1980s. The powers of the NZ Commissioner are broader than those of the ECO[9]; the ECO’s primary role is to review the implementation of the EBR by the prescribed ministries. Like the NZ Commissioner, the ECO is an independent officer appointed by an all-party committee of the Legislative Assembly of Ontario. The ECO cannot take sides in a dispute, but in reviewing ministry decisions we will determine whether a particular ministry has used its discretion properly and is complying with the EBR. The ECO expresses opinions on issues and decisions in an Annual Report, or in special reports made to the Legislature. In this respect, the position is similar to other officers of the Legislature, such as the Provincial Auditor, the Ombudsman and the Information and Privacy Commissioner.[10] Ontario is not the only jurisdiction that has established an environmental commissioner position.[11] For example, in the past 10 years environmental commissioners have been established in the following jurisdictions: the European Union, several states in Australia, and Germany. In late 1995, the federal government of Canada put the finishing touches to Bill C-83, An Act to Amend the Auditor General Act, creating a new position of Commissioner for the Environment and Sustainable Development within the office of the Auditor General of Canada. The most recent example is that of British Columbia, which passed an act in April 2001, creating the Commissioner for Environment and Sustainability based on the federal model.[12] Some of the reasons why governments have begun to appoint environmental commissioners have been outlined elsewhere.[13] As a general rule, the EBR does not apply directly to the decision making and program activities of the federal government of Canada or any municipal governments.[14] The EBR also does not apply to the indoor environment.[15] Environment is defined in the EBR as meaning “the air, land, water, plant life, animal life and ecological systems of Ontario,” and air is defined as “open air not enclosed in a building....” These provisions should tend to restrict the application of the EBR to environmental problems that arise out of discharges into the outdoor environment. The EBR was implemented at a particularly challenging juncture for a number of the ministries. Between 1996 and 1999, MOE and MNR sustained budget cuts in the range of 40 to 50 per cent and experienced dramatic changes in structure and function.[16] The situation was further complicated by the fact that the government dramatically altered the legal and regulatory regime related to the environment. For example, more than 60 per cent of the prescribed statutes and regulations under the EBR were amended to some degree between late 1995 and August 2001. The need for an environmental bill of rights was first expressed in Ontario in the 1970s when environmental issues became a greater part of the public consciousness.[17] Between 1979 and the late 1980s, nine private members’ bills were introduced in the Ontario Legislature based on the Michigan model for environmental rights legislation, the Michigan Environmental Protection Act,[18] enacted in 1970. The prospects of seeing such a bill become law increased when Ruth Grier was appointed Minister of the Environment after the election of the New Democratic Party in 1990. Rather than proceed with tabling a new law in the Legislature based on the Michigan model, in December 1990 Ms. Grier announced the establishment of an Advisory Committee on an Environmental Bill of Rights which was multi-sectoral, and included representation from business interests, environmental groups, labour and other stakeholders.[19] The advisory committee was unable to achieve any degree of agreement so Grier then appointed an EBR Task Force to develop an innovative statute on a consensus basis. The Task Force had representatives from the Ontario Chamber of Commerce, the Business Council on National Issues and the Canadian Manufacturers’ Association, two environmental groups and the Ontario government. The Task Force worked for more than one year and released a report in July 1992 which contained a draft EBR.[20] After public consultation on the Task Force Report and draft bill, the EBR was introduced for first reading May 31, 1993, and was proclaimed as a law on February 15, 1994. The main difference between the Ontario law and the environmental rights laws in US jurisdictions is that it is more difficult to go to court in Ontario. However, the Ontario law has increased rights to participate in government decisions as a quid pro quo. In sum, Ontario’s environmental regulation system now has some features characteristic of US federal laws and participation processes which allow for public notice and comment and increased access to courts and tribunals.[21] Although Ontario is not the only Canadian jurisdiction to enact environmental rights legislation, it has gone farther than other Canadian jurisdictions.[22] For example, prior to the enactment of the EBR, Ontario residents usually were not provided with an opportunity to comment on proposals for new factories or additions to facilities that would result in discharges to the environment.[23] In contrast, environmental participation and litigation rights in most European jurisdictions generally are viewed as meagre.[24] Thus, Ontario’s approach to environmental rights, which combines increased access to the courts and improved public participation, is viewed by some European lawyers as a model which might be worth adapting in other jurisdictions.[25] In addition, international organizations interested in promoting environmental protection through law reform, such as the European-based Environmental Law Network International, are following developments in Ontario with great interest.[26] III. Nuts and Bolts of the EBR This part of the paper provides a description of the basic rights and procedures established by the EBR. a. What You Need to Know About The Registry[27] Part II of the EBR establishes the Environmental Registry. The Registry is an Internet bulletin board of information about government proposals for environmentally significant policies, Acts, regulations and instruments such as orders and approval certificates. It also gives people electronic access to information on appeals of instruments, court actions and other information related to government environmental decision making. Ministries have to post environmentally significant proposals on the Registry so that the public can provide input on decisions before they are made. Once a proposal is placed on the Registry, a minimum 30-day comment period starts, and members of the public can submit comments to the ministry involved. Some examples of proposal files from the Registry are reproduced in Appendix 4 of this paper. The Registry has three main purposes: opening up the decision-making process, offering information to various sectors, including business, and making prescribed ministries more accountable for their environmental decisions. The Internet (URL) location for the Registry on the MOE’s Website is: http://www.ene.gov.on.ca/envision/env_reg/ebr/english/index.htm The concept of an "environmental registry" was first developed as part
of the federal Emergency Planning and Community Right-to-Know Act
of 1986 in the United States.[28]
This legislation requires certain categories of chemical manufacturing
facilities to calculate estimates of the releases of approximately 357
toxic chemicals into the air, water and land. These estimates must
be reported to the US Environmental Protection Agency and to the state
where the facility is located. Government agencies must enter this
information into the Toxics Release Inventory (TRI), a national on-line
database that is accessible to the public by computer. The Pollution
Prevention Act[29]
of 1990 expanded TRI reporting requirements.[30] Many individuals
and groups have begun to use data and information from the TRI to help
them map out patterns of environmental emissions from factories near
US communities. The EDF Chemical Scorecard, developed by the Environmental
Defence Fund, a large ENGO in the US, is one of the most interesting
applications of this technology.[31] It can be viewed
at the following URL:
The Canadian-based version of this website, http://www.pollutionwatch.org, was started in March 2001 and is administered by three Canadian ENGOs: the Canadian Institute for Environmental Law and Policy, Canadian Environmental Law Association, the Canadian Environmental Defence Fund with the assistance of the US-based Environmental Defense Fund.[32] This website provides Canadians with similar information to that provided to US residents by the EDF Chemical Scorecard. However, Canadian data often is two years old or more because of delays by Environment Canada in processing and repackaging the information submitted to it.[33] Since the early 1990s, a number of jurisdictions have implemented environmental registries or examined proposals for them. For example, the B.C. government has implemented registries under the Waste Management Act and the Environmental Assessment Act. The Canadian Environmental Assessment Act also establishes an Internet registry, which has operated since 1995. Part II of Canadian Environmental Protection Act (CEPA 1999) also establishes an Environmental Registry ("CEPA Registry").[34] The Registry is publicly accessible via the Internet through Environment Canada’s Green Lane Web Internet site at http://www.ec.gc.ca/ceparegistry and became operational in late March 2000. These developments suggest that the Registry concept will continue to be adopted by a number of jurisdictions as an effective approach to community right-to-know issues and environmental approvals.[35] In essence, the Registry established under the EBR provides “one-place-to-look” for members of the public who are concerned about the environment, and should encourage a consistent approach to minimal public consultation on environmental decision making by the ministries. Ontario residents can call the ECO at 1-800-701-6454 if they need help in accessing the Registry or finding a particular posting. You also can contact Scott Shaw, the Database Officer of the EBRO at (416) 314-2387 if you need assistance with use of the Registry. Evolution of the Registry The Environmental Registry has evolved a great deal over its history.[36] It began as a bulletin board service (BBS) that was accessible using a modem. People dialled up directly through an Ontario government access point maintained by the Management Board Secretariat. On April 1, 1998 the Registry was moved to the MOE website on the Internet, allowing the MOE to provide hypertext links to the full text of proposals.[37] In late 1999, the Ministry of Tourism, Culture and Recreation completed the public Internet access portion of its Network 2000 strategy. Accordingly, the ministry reports that now almost all Ontario library branches provide public Internet access. This means that Ontarians who do not have Internet access in their homes can access the Registry at their local library branch. In the spring of 2000, the Environmental Bill of Rights Office (EBRO) at the Ministry of the Environment began the process of redesigning the Registry Web site. The objective is to create a more user friendly site and to make use of newer web browser software technology.[38] To date, the MOE still has not officially launched its new Registry site. The ECO commends the MOE and the EBRO for investing the considerable time and resources needed to upgrade the Registry technically. The transfer of the Registry to the Internet reduced many of the technical barriers to posting proposals in an efficient and timely manner. Moreover, the Registry upgrades have enhanced the value of the system as a cost-effective means by which ministries can maximize public participation in environmental decision-making. The search engine has been significantly improved and many other positive changes have been made to the Registry system by the EBRO. During 2000-2001, Ontarians continued to make good use of the Registry. User sessions averaged between 2,500 and 3,000 per month for 2000 and the duration of user sessions continues to increase. What is on the Registry Approximately ninety-five per cent of the Registry postings are related to instrument approval applications that are submitted to the ministries. The MOE posts instrument notices under the following categories: approvals and permits; orders, instructions and directions; and pesticides classification. It is possible to search for a specific file or browse through all of the entries that apply to a particular location, date range, company name or subject area. Although the Registry gives the public the opportunity to comment on new proposals, most of Ontario’s environmentally significant instruments were already in operation before the EBR was enacted. The public cannot comment on existing instruments but may apply for a Review or Investigation in relation to them. Not all instruments have to be placed on the Registry. They must be classified and prescribed by regulations developed by the relevant ministry under the EBR, and they must be under laws that are prescribed under the EBR. I would estimate that MOE issues between 15-25,000 approvals,[39] permits, field orders and orders each year, and roughly 2,000 — or approximately ten per cent — are prescribed for posting on the Registry. There are three classes of instruments under the EBR. Class I instruments[40] require a minimum of 30 days notice and comment. Class II instruments[41] require the proponent to provide additional notice of the proposal (i.e. posting a sign or publishing a notice in a newspaper) and Class III instruments[42] require a full public hearing before a decision can be made. A summary of the types of instruments posted by MOE between November 1994 and December 1997 is presented in Table 1, reproduced at the end of this paper. The majority of the instruments posted were section 9 air approvals under the EPA (4013). Other frequent postings were for applications of permits to take water under s. 34 of the OWRA (953) followed by approvals for enlargements and applications to landfill sites (772) under section 27 of the EPA. Once the public has had an opportunity to comment on the proposal, the ministry then is required to post a notice of its decision on the Registry. This usually happens 45 to 50 days after the original application for a licence was submitted to the ministry by a proponent. The EBR requires the minister to consider the public comments made on proposals and indicate how she or he has done so when the decision is posted on the Registry. The ECO reviews how ministry officials considered public comments in making the final decision on a particular instrument, policy, regulation or Act. Many of the proposals that are posted on the Registry deal with instruments such as permits to take water (PTTWs). While these types of approval once were regarded as routine, the public is increasingly engaged in discussions about the impacts of some of these approvals and the Registry has raised public awareness on the cumulative effect of these approvals. Applications for PTTWs are one of the most common postings on the Registry, which has led to issues about competing rights and resource awareness.[43] The Registry Is A Success The Registry has been well used and is viewed as a success by the ECO, most stakeholders and the Ontario government.[44] The number of users is continuing to increase as the system becomes more user friendly and awareness of the Registry grows. From the perspective of business, the most interesting information on the Registry are the ministry decisions about proposals for instruments. The Registry allows viewers to see whether or not companies have received approvals on proposals for prescribed instruments and the reasons for the decision. From the perspective of the public, the opportunity to comment on ministry proposals provides a formal entry into what was once seen as “the backrooms of the ministries” by affording an opportunity to comment on prescribed instruments. Indeed, certain notices of instruments have drawn large numbers of comments.[45] One of the first such notices was the proposal by Petro-Canada Limited to expand operations at its Mississauga plant which would result in additional air emissions into the environment and received more than 1,000 public comments.[46] As noted in the ECO’s first annual report,[47] the level of participation in instrument decision making has been low. Indeed, the ECO estimates that approximately 1-2 per cent of the 8,000 instruments placed on the Registry since November 1994 have received comments from the public and other stakeholders. In contrast, many comments have been submitted on policies, acts and regulations that have been posted on the Registry. Business Concerns In its early days, some business people expressed concerns to the ECO that the Registry would add delays to the MOE approval process. According to MOE, the approval process now takes, on average, 45-50 days to complete for most normal approvals, and Registry posting and the ministry’s screening of applications takes place concurrently, not in a serial fashion. Other ministries have similar policies and procedures to expedite instrument approvals under their legislation and the ECO assumes that MNR will develop similar policies when staff begin to process instrument applications. Some business people also expressed concerns that the Registry would needlessly release proprietary information to the public and to competitors. Under ministry policies on public information, businesses are not required to release proprietary information they wish to keep confidential and can ask the ministry to keep it in a special secure location, separate from their public application files.[48] The scope of an applicant’s proprietary rights is limited under the Freedom of Information and Protection of the Privacy Act (FIPPA) to situations where the information is supplied in confidence and where the release of the information would harm the applicant’s commercial interests. A 1999 decision of the Information and Privacy Commissioner has clarified the scope of this confidentiality right.[49] The Impact of Regulatory Reform and Standardized Approvals The first version of the MOE regulatory review discussion paper,[50] released on July 31, 1996, contained a number of references to the approvals process at the MOE and the Registry. In sum, the paper suggested that certain instruments should be deleted from MOE’s IC regulation. At the end of 1997, the MOE posted its proposed amendments to its EBR instrument classification regulation (O. Reg. 681/94) on the Registry. As a result of comments received, expressing concern about a loss of public participation opportunities, the MOE decided not to remove instruments from O. Reg. 681/94. A second discussion paper released by MOE in November 1997 titled Better, Stronger and Clearer[51] outlined many changes to its regulations. However, it is not clear how these changes will mesh with other legal changes such as those contained in Bill 57, the Environmental Approvals Improvement Act, tabled in June 1996 and enacted as law in the summer of 1997.[52] For example, it is likely that the consequence of deemed approval systems and standardized approval regulations (SARs) would be to remove a number of water and air approvals now issued under the OWRA and the EPA from the current approvals process under the EBR. For example, permit by rule approvals for 3Rs facilities[53] under MOE’s 3R regulations[54] are not posted on the Registry. It appears likely that the MOE will apply the same approach to all or most deemed approvals and not post these on the Registry. In February 1998, the MOE posted a proposal which outlines 12 concepts for Standardized Approval Regulations (SARs) and two concepts for Approval Exemption Regulations (AERs). The proposed regulations will replace certain Cs of A required under the EPA and the OWRA with SARs and AERs. Instead of applying for individual Cs of A for activities that MOE describes as having “predictable, controllable and well-understood impacts on the environment,” proponents would be required to comply with prescribed conditions outlined in a SAR. MOE intends AERs to clarify the intent of the approval requirements under the EPA and OWRA by not requiring Cs of A for activities with insignificant environmental impacts. It is proposed that all SARs would have a condition requiring notification to the MOE if an activity is to proceed in accordance with the conditions in a SAR. It appears that the public notice and participation requirements of the EBR will not apply to approvals covered by the SARs, curtailing some existing environmental rights and ECO review. For example, many of the Cs of A replaced by SARs are currently air and waste site approval instruments prescribed under the EBR. According to the new proposals, the public will lose the opportunity for public notice and comment on the Registry, the right to seek leave to appeal of MOE decisions on Class I or II instruments, and the right to make an Application for Review requesting a new approval be issued. However, it appears that the right to make an Application for Investigation and the right to sue for harm to a public resource under the EBR will be preserved because the SARs will be prescribed regulations under the EBR. Thus, residents who believe that a contravention of the SARs or the AERs has taken place will be able to submit an Application for Investigation under the EBR. Streamlined approvals also are being implemented by the MNR for a number of licensing processes, including those under the Lakes and Rivers Improvement Act and the Public Lands Act. Moreover, a type of self-regulation system similar to the permit by rule system is also being implemented by the MNDM for the closure of mines and financial assurance under the Mining Act.[55] At present, it is unclear how these modified approvals systems will affect the public participation, transparency and accountability gains of the EBR. The ministries have stated that the public will have an opportunity to comment on the new approval systems when proposals for regulations are posted on the Registry. Information Notices on the Registry To promote development and use of the Registry, the ECO has encouraged the ministries to post some policies and plans on the Registry as “information notices” even when these were not required under the EBR. However, certain other proposals and decisions are posted incorrectly under this provision, since the EBR does not require ministries to consider public comments on information notices. For example, in our 1997 annual report the ECO noted that the MNR should have provided an opportunity for public comments on its decision not to enforce or administer an important provision of the federal Fisheries Act that safeguards fish habitat. Public feedback clearly indicated that people found this to be an environmentally significant decision with potentially far-reaching consequences for Ontario fish and waters. The ECO also has encouraged the ministries to take advantage of recent developments in information technology and ensure that, whenever possible, the ministries provide the full-text of proposals for policies, Acts and regulations on the Registry (or provide electronic links to Internet sites with the full text). Delays in Instrument Postings by MNR The EBR required the MNR to develop a proposal for its instrument classification regulation “within a reasonable time” after April 1, 1996.[56] As of early June 2001, MNR still had not completed work on its IC regulation. The delay in finalizing MNR’s IC regulation has been a major disappointment for the ECO, and we continue to press MNR to complete its IC regulation. This issue was the subject of an ECO Special Report entitled Broken Promises, which was released in June, 2001. For more details, see Appendices. The ECO was pleased that MNR responded by promulgating O. Reg. 261/01 in mid July 2001. To its credit, MNR voluntarily posted information notices about more than one hundred forest management plans on the Registry since 1997. These notices serve to inform Ontario residents about forest management planning and how forest companies and tree cutters will comply with laws and other requirements for sustainable forestry practices. Other Ministries Begin to Post Instrument Proposals in 1998 The MCBS (formerly MCCR) drafted its proposal for instruments and posted it in late June 1996 and again in December 1996. MCBS reported to the ECO that it had prepared the text and given it to the MOE in mid-1997 for inclusion in its environmental regulatory reform package, Better, Stronger, Clearer.[57] The proposed regulation was posted on the Environmental Registry on December 30, 1997, until February 13, 1998. The regulation creating MCBS’s list of prescribed instruments, O. Reg. 180/98, was filed on April 30, 1998 and came into force immediately. Examples of MCBS instruments under the Technical Standards and Safety Act (formerly the Gasoline Handling Act) that must be posted by the Technical Standards and Safety Authority [58] for public comment include variances from or permission to deviate from the provisions of the Liquid Fuels Code under the TSSA[59]. The same regulation also enacts MNDM’s instrument classification regulation.[60] MMAH Instruments Certain decisions on official plan approvals made by the Minister of Municipal Affairs and Housing under the Planning Act are subject to the EBR notice and comment procedures. MMAH began to post these notices in the summer of 1999. More than 100 proposal notices for MMAH instruments were posted on the Registry during the ECO’s 2000-2001 reporting period (April 1, 2000 to March 31, 2001). In addition, nine notices of appeal for MMAH instruments were posted on the Registry during the ECO’s 2000-2001 reporting period. These appeals are launched by residents, companies or municipalities in relation to decisions made by the Minister. Keeping IC Regulations Updated It is important for ministries to update their instrument classification regulations when amendments are made to their legislation. In 1996, the MNDM made amendments to the Mining Act, which affect how instruments are posted on the Registry. The amendments were also to have been incorporated into MNDM’s section of the instrument classification regulation under the EBR. This did not take place, however, because the amended Act was not proclaimed into force until June 30, 2000. In August, 2000 MNDM posted a Registry exception notice that it intended to amend its instrument classification regulation and MOE implemented the changes in August 2001. B. Exception Notices There are exceptions to the EBR’s public participation requirements in cases of emergency[61] or where there has already been an equivalent public participation process, such as an environmental assessment process. In these cases the ministry claiming the exception is required to post an exception notice on the Registry. In contrast, there is no requirement to place on the Registry notice of proposals which are not environmentally significant, or which are predominantly administrative or financial in nature. While these proposals also are excepted from the EBR’s notice and comment procedures, the ministries are not required to post an exception notice. However, the ECO monitors the use of these exceptions by the ministries and reports to the Legislature on “unposted decisions” that have been improperly excepted from Registry posting. A table outlining the exceptions provided in the EBR is provided in Appendix 3 to this paper. Between November 1994 and December 1997, only 21 emergency exception notices and 10 equivalent public participation exception notices were placed on the Registry by the MOE. The vast majority of the emergency exceptions related to landfill sites seeking interim expansions or “emergency” certificates of approval.[62] In the ECO’s first annual report, the Commissioner noted that, while a lack of landfill space is certainly an urgent consideration for municipalities and MOE staff, it seems questionable that this number of exceptions is justified. As one commenter pointed out, “a lack of landfill capacity rarely occurs overnight.” These types of notices continue to be posted.[63] Another example of an emergency exception notice, posted in February 1996, involved a 3M Company plant in Smith Falls, Ontario. The exception was posted because of the failure of a baghouse in the plant, which posed a risk to the health and safety of workers in the plant. In several recent annual reports, the Commissioner has reviewed several dozen exception notices, and we have concluded that ministries have improved their use of exceptions in the past four years (i.e. between 1997 and 2001). However, in many cases ministerial discretion could often have allowed the use of the EBR public participation processes in order to provide greater transparency and to alert members of the public to the nature of ministers’ decisions. c. Instrument Holder Appeals and Company Obligations As previously noted, the approvals process for instrument holders and applicants has been modified by the EBR. In late 1994, the Ministry of Environment created a guidance document to assist applicants in preparing applications for instruments which are prescribed under the EBR.[64] This publication is available by calling the Environmental Bill of Rights Office at the MOE. Other guides also have been produced by the MOE in the past seven years, and these guides also provide information and guidance on how to meet the requirements of the EBR. In the event that an instrument holder or applicant decides to appeal a decision about a proposal for an instrument that is prescribed under the EBR, special requirements apply to the appeal. These include: Ø If a person (including a corporation) exercises their right to appeal under an Act, for example under the EPA,[65] they must provide notice of this almost immediately (within two days) to the Environmental Commissioner, who must “promptly” place the notice on the Registry. Ø An appeal can start only 15 days after the Commissioner has done this, unless the tribunal involved, for example the Environmental Appeal Board, decides that it is appropriate to start sooner. This additional time is intended to allow other people to become aware of the appeal proceeding by way of notice on the Registry. Ø Depending on the applicable rules of the particular tribunal, interested individuals or groups may be able to apply to become “parties” to the hearing. As of August 2000, the ECO has placed more than 180 notices on the Registry related to EPA appeals by instrument holders and applicants. Proponent appeals The ECO is required to post notices of appeals launched by proponents in relation to approvals they are seeking from a ministry or a disputed instrument. Under s. 47(1) of the EBR, proponents are required to make sure we get notice of their appeals. Until 1999, we posted approximately 30 notices of this type related to MOE instruments every year. These notices alert residents who may be concerned about a ministry decision on a prescribed instrument that there is an appeal. Under ss. 47(6) of the EBR, these residents can join an appeal hearing started at the request of an instrument holder. S. 47(6) codified a participation right that had been established by the Environmental Appeal Board in the 1980s and early 1990s. This type of citizen intervention in proponent appeals has not happened very much in the past couple of years but there have been cases where environmental groups have joined in these types of appeals. For example, in 1998 CELA tried to use this provision to participate in the NOVA appeal of MOE’’s revocation of its permit to take water. This was the famous PTTW that would have allowed a Sault Ste. Marie company to export Lake Superior water to the Middle East. My impression is that lawyers often advise their clients to withdraw controversial appeals at the ERT because of the rights available in s. 47(6). The Impact of Provincial Officer’’s Orders I raise this because I wanted to advise you that the number of instrument holder appeals on the Registry has declined by staggering amount in the past two years. This has happened because the MOE enacted Bill 82 back in late 1998. This legislation established a new type of MOE instrument, the Provincial Officers’’s order or the POO as we often call it at the ECO. These MOE orders are like their immediate predecessors, field orders. Because they are issued by MOE officers in the field, they don’’t have to be posted on the Registry for comment and are not prescribed instruments. Moreover, the appeal system for POOs is different. There is an initial appeal of a POO to the relevant MOE Director. If the applicant is unhappy with the Director’’s decision, then she can appeal the Director’’s decision to the Environmental Review Tribunal. As you probably know, MOE is relying on this POO power to a remarkable extent. The number of EBR prescribed orders (e.g. s. 17 & 18 of the EPA) posted on the Registry for comment has declined by a great degree. In the long term, this situation could significantly reduce public access to the ERT. My reading of s. 47 is that residents don’’t have the statutory right to join appeals on POOs. While the ERT rules of practice (see Rules 14 & 15) would appear to empower the ERT to allow residents to join an appeal on a POO, residents seeking to exercise appeal rights with respect to POOs would have to find out about the pending appeal by some other means than the Registry. For example, they could learn about the appeal by word of mouth or by reading the paper. They would be able to contac the ERT to learn about the appeal. Moreover, since residents don't have a statutory right under s. 47 of the EBR, they would have to convince the ERT to allow them to participate. Thus, there is some uncertainty as to whether residents will succeed in most cases. It remains to be seen whether the MOE will amend the EPA and OWRA to allow residents to join in appeals on controversial POOs as of right and require proponents to provide notice of their appeals to local residents living near the facility or operation subject to the appeal. It is conceivable that the MOE may do this eventually. It also should be noted that since 1997 most ERT appeals don't proceed to a full hearing, and the role of residents in pre-hearing mediations related to appeals is limited. The ERT has implemented policies which have reduced the number of appeals heard by a remarkable degree. For further discusion, see recent ERT annual reports. Since the MNR's new instrument classification regulation also exempts field orders from Registry notice and comment, it is conceivable that Ontario residents will lose analogous notice rights for proponent appeals related to MNR instruments. d. The SEVs All of the prescribed ministries are required to apply Statements of Environmental Values (SEVs) in making certain environmentally significant decisions and must post proposals for new environmentally significant policies and Acts on the Registry.[66] A ministry’s SEV [67] is an overarching policy statement detailing each ministry’s approach to environmentally significant decision making and it must be considered whenever an environmentally significant decision is made within a ministry.[68] Each SEV must: (a) explain how the purposes of this Act are to be applied when decisions that might significantly affect the environment are made in the ministry; and (b) explain how consideration of the purposes of this Act should be integrated with other considerations, including social, economic and scientific considerations, that are part of decision making in the ministry. The EBR required the ministers to draft their SEVs and post them on the Environmental Registry 90 days after the Act began to apply, that is, on May 15, 1994. The ministries allowed three months, until August 15, for public comment.[69] The ECO was invited to consult with the ministries as they finalized their SEVs. The development of the SEV was novel for those ministries that had limited previous experience with public consultation on environmental issues and lacked a clear vision as to how and why the EBR applied to their work. Time was running out and no further public consultation was possible in the time remaining before the legislated November 15, 1994 deadline when the ministries would have to begin to apply their SEVs.[70] In order to address the concerns expressed by the public and other stakeholders, the ministries agreed to review their SEVs between November 15, 1994 and November 14, 1995, undertake a public consultation on them, and report back to the ECO by November 15, 1995.[71] This did not alter in any way the obligation on ministries to consider their SEVs in making environmentally significant decisions between November 15, 1994 and November 14, 1995. However, the ministries refused to make further changes to their SEVs. The ministries began to apply their SEVs after November 15, 1994. Each SEV was reviewed in the first annual report released by the Environmental Commissioner in June 1996.[72] Since June 1996 when the ECO’s first annual report was released, several ministries, including OMAFRA, Management Board Secretariat, MMAH and the Ministry of Tourism, Culture and Recreation, have revised their SEVs or are planning to do so. In addition, MEST (created as a new ministry in late 1997) developed a SEV in late 1998. Any changes to the SEVs are regularly reviewed by the ECO in our annual reports. SEVs vs. Ministry Business Plans In the ECO’s 1997 annual report (and other subsequent reports), we noted that the business plans of all the prescribed ministries were posted on the Registry in 1997. This was an improvement over the previous year, when the plans were not posted. Unfortunately, there has been a decreasing recognition of the environmental aspects of the core business of ministries, despite requests by the ECO and the Management Board Secretariat to add environmental considerations into business planning. Ministries have deleted mention of the environment from the vision, mission statements, or strategic directions set forth in their 1997 and 1998 business plans. In fact, the only ministries to explicitly refer to their SEVs in their 1999-2000 business plans were the Ministries of the Environment, Natural Resources, and Health. The ECO encourages ministers to take the opportunity provided by the development of future business plans to incorporate environmental values and environmental health into the core business of their ministries.[73] As part of the 1999-2000 business planning process, each EBR ministry has been asked by the Management Board Secretariat to describe its strategy for honouring its SEV. e. Part IV - Applications for Review The EBR also allows any two residents of Ontario to apply for a Review of an existing policy or prescribed Act, regulation or instrument. Two residents can also apply for a Review of the need for a new policy, Act or regulation. Here are some features of the process: · The Review Application is sent to the Environmental Commissioner who must forward it to the relevant minister within 10 days. · The Review Application will be considered by the relevant minister who must decide within 60 days whether or not a review is warranted. · The minister must also give notice of the Application for Review to any person that the minister believes might have a direct interest in matters raised in the application. If someone submitted an Application for Review of an existing instrument such as a certificate of approval, for example, the instrument holder should be given notice by the minister that the Application has been made. ·
When deciding if the public interest does warrant a Review the
minister must consider if the decision was made in the previous five
years in a manner consistent with the public participation purpose in
this part of the EBR. If it was, it will probably be exempt
from Review.[74]
·
The ministry conducting the review must provide notice of a review
to any person or company that the minister considers ought to get notice
because they have a direct interest in matters raised in the application.[75]
·
The ECO reviews how each Application for Review was handled
by the ministry to ensure compliance with the EBR’s purposes
and its technical requirements.
For the purposes of Applications for Review,
the four most important MOE laws, namely the Environmental Assessment
Act (EAA), EPA, OWRA and the Pesticides Act,
are all prescribed. It should be noted that the Application provisions
are restricted with respect to the EAA.[76] In addition, Review applications
also can be made under seventeen other MNR, MOE, MNDM, and MCCR Acts
which are environmentally significant.[77] Applications also can be submitted
for new Acts and policies under the prescribed ministries.
As of August 2001, the ECO had received and
forwarded 440 Applications for Review to the ministries. Each year,
the ECO’s annual report contains discussions of a number of applications
that were received during the year on topics such as nuisance impacts,
air pollution, groundwater pollution and landfill management practices.
A complete list of all the Applications for Review (and Applications
for Investigation) received by the ECO in 2000-2001, and a short description
of how they were handled by the ministries, is included in the Supplement
of the ECO’s sixth annual report, which will be available at the ECO’s
web site next week. (The report and supplement also will be
available in paper and CD formats.)
f. Part V - Applications for
Investigation
The EBRalso provides an opportunity
for any two Ontario residents who believe that a prescribed Act, regulation
or instrument has been contravened to apply for an Investigation.
·
Two residents submit their Application for Investigation to the
Environmental Commissioner who forwards it to the appropriate minister.
The minister decides whether to investigate. The Investigation is performed
by the ministry.
·
Applications for Investigation must describe the allegation and
summarize the evidence supporting the allegation(s). Thus, Applications
for Investigation must be sworn by both applicants.
·
The ECO reviews how each Application for Investigation
was handled by the ministry to ensure compliance with the EBR’s
purposes and its technical requirements.
For the purposes of Applications for Investigation,
the EBR covers compliance with the EAA, EPA, OWRA
and the Pesticides Act, but also compliance with 14 additional
acts which are environmentally significant.[78]
The ECO also
is pushing to see that proposed legislation such as Bill 56 (Brownfields
Statute Law Amendment Act), Bill 81 (Nutrient Management Act)
and Bill 90 (Waste Diversion Act) are subject to various provisions
of the EBR, including Part II (notice and comment), reviews and
investigations.
In sum, the EBR provides an opportunity
for residents to address issues that have eluded other approaches.
Well-researched applications can lead to positive, and even unexpected
results. In one 1997 example, applicants alleged that their neighbours
straightened a river bank by adding outside fill to their property,
causing increased silting, erosion and flooding on the applicants’ property
and the destruction of fish habitat. MNR concluded that the alteration
was in violation of the federal Fisheries Act and initiated a
prosecution under that legislation. The MNR withdrew the charges after
the accused agreed to rehabilitate the stream back to its original condition.
As of August 30, 2001, the ECO had received
130 complete Applications for Investigation and forwarded them to the
MOE and the MNR. The applications covered a range of environmental
issues including alleged contraventions of laws, instruments, approvals
and regulations including or under the Fisheries Act (Canada),
the Crown Forest Sustainability Act, the OWRA, the
EAA and the EPA (e.g., leachate from landfills and
air pollution laws).
Overview of
2000-2001 Review and Investigation Applications
In 2000 and 2001 Ontario residents submitted
Applications to only three prescribed ministries, MNR, MMAH and MOE.
Approximately twenty-five applications were submitted between January
2000 and March 2001. Many applications dealt with matters receiving
wide public attention. For example, a number of applicants used EBR
Applications to press for the province to develop a comprehensive approach
to protection of the Oak Ridges Moraine. Other applications covered
a diversity of topics, including damage to a wetland caused by a landfill
and emissions caused by Ontario power plants.
All applications are reviewed in appendices
of the Supplement to the ECO’s recent annual reports. The majority of
Applications are denied but the record of ministries is improving.
In most cases, the ministry responses were thorough and provided a clear
rationale for denying the Application. In a small number of cases the
ministry responses were not helpful to the applicant in understanding
why the application was denied, and possibly, what other recourse might
be open for addressing the issues of concern.
g. Part VI - The Right to Sue
for Harm to a Public Resource
Most of the parts of the EBR previously
discussed are designed to promote greater political accountability on
the part of decision makers. Many stakeholders feel that political
accountability alone may not be enough to ensure that better decisions
about the environment are made.
The EBR
reflects this by containing new legal rights that increase public access
to the courts and provide an additional measure of judicial scrutiny
to contraventions of environmental laws that cause significant harm
to an Ontario public resource.
There are two general requirements that must
be met before plaintiffs can bring an action for harm to a public resource
under the EBR. First, the defendants must have contravened or
will imminently contravene, a prescribed environmental statute, regulation,
or instrument. If the defendants are acting in accordance with the law,
then they are immune from a harm to a public resource action, regardless
of whether there is some harm being caused.
Second, the plaintiff generally must first
apply for an EBR application for investigation into the alleged
contravention. An action may be brought if the plaintiff can demonstrate
that the ministry has failed to respond to the application for investigation
in a timely or reasonable manner. There is an exception where the delay
involved in complying with these steps would result in significant harm
to a public resource or where the plaintiff can establish that the defendant
will imminently contravene an environmental law.
If a court
finds the plaintiff entitled to judgment in an action under s. 84 of
the EBR, the court may:
·
grant an injunction;
·
order the parties to negotiate a restoration plan in respect of harm
to the public
resource and report to the court on the negotiations within a fixed
time;
·
make a declaration; and
·
make any other order, including an order as to court costs, that the
court thinks is
appropriate.
The court will not make an
award of damages under this section of the EBR.
Where the lawsuit would involve farmers who
may be protected against nuisance and civil lawsuits relating to odour,
noise and dust under the Farming and Food Production Protection Act,[79] an approval
is required from the Normal Farm Practices Protection Board before a
lawsuit can be brought.[80]
In addition, parties who undertake actions using the right to sue provisions
of the EBR are required to give the ECO notice so that they can
post notices about the actions on the Registry.
To date, the ECO has been advised of only
two harm to a public resource actions initiated under the EBR.[81] One involves an
illegal waste tire dump that the plaintiffs allege is leaking contaminants
into the subsoil, groundwater, and surface water in the surrounding
vicinity. They are demanding the dump be cleaned up and the contamination
remediated. The other case involves the District Board of Health Unit,
which issues a certificate of approval for a sewage system. The plaintiffs
allege that the certificate was issues negligently allowing excessive
amounts of contaminants, including phosphates and bacteria, to pollute
their property and the surrounding natural environment. Both cases
are described in greater detail below.
However, fewer than 120 Investigation Applications
have been screened or reviewed by the ministries (in response to Applications
for Investigation under Part V of the EBR), and these ministry
screenings are usually prerequisites for s. 84 actions.[82]
First Harm
to Public Resource Lawsuit Under the EBR
In February 1998, Karl and Vicki Braeker,
owners of a farm in Grey County, commenced legal proceedings against
Max Karge, the owner of a property adjacent to their farm and the Ontario
government in relation to an illegal tire dump on Karge’s land.[83] They allege that the illegal tire
dump on Karge’s property has contaminated the subsoil, groundwater,
and surface water in the surrounding vicinity, including their well
water. They also allege that the other two defendants (the Crown and
a numbered company) bear some of the responsibility for the situation.
In their Notice of Claim under the Proceedings Against the Crown
Act filed on February 5, 1998, the Braekers allege that the Ontario
government has been negligent in its monitoring, inspection and enforcement
activities related to the dump.
The February 1998 Notice of Claim seeks damages
to compensate the Braekers for loss, injury and harm caused by the government’s
regulatory negligence.[84] Moreover, the lawyer for the plaintiffs, Rick Lindgren
of the Canadian Environmental Law Association, invoked Part VI of the
EBR in support of his client’s action against the Crown. In
this case, an Application for Investigation had not been submitted under
the EBR. However, CELA relied on ss. 84 (6) of the EBR
which states that the requirement to first request an investigation
does not apply where the delay involved would result in harm or serious
risk of harm to a public resource.
The Notice of Claim states that more than
33,000 scrap tires were buried at the illegal dump in January 1991 by
the former owner of the property. The burial of the tires was supervised
by MOE staff. Over the past seven years the tires have been deteriorating
and leaching contaminants into the local groundwater, which feeds the
Braekers’ well at their farm. The Notice of Claim states that MOE testing
in 1994 revealed that the contaminants from the tires are toxic to fish
and other aquatic life. Moreover, in 1994 a groundwater specialist
at the MOE recommended that the tires be removed. Three years later,
the MOE still was unwilling to act on the problem. Meanwhile, further
testing done in 1997 found water at the site is contaminated with chemicals
in concentrations which greatly exceed levels permitted under the Provincial
Water Quality Objectives (PWQOs).
In March 1998, the Minister of the Environment
agreed to start removing the tires.[85] Work began in the summer of 1998. The tires will
be recycled at a cost of $40,000 for use in an asphalt mix to be applied
to roads in Grey County. However, the Braekers did not drop their action
against the province.
In addition
to section 84 of the EBR, the plaintiffs are relying upon a number
of other causes of action [including the common law causes such as trespass,
nuisance, strict liability and negligence as well as spill liability
(under Part X of the Environmental Protection Act), and contravention
of a municipal by-law]. They are seeking the following relief:
1. A declaration that the defendants are
unlawfully caused, permitted, or failed to stop the actual or imminent
contamination of the plaintiffs’ properties by contaminants emanating
from the illegal waste dump.
2. An interim and permanent injunction preventing
the use of the property for any use other than rural uses.
3. A declaration or injunction requiring
an environmental restoration plan to prevent, diminish or eliminate
harm to a public resource caused or likely to be caused by contaminants
emanating from the waste dump and to restore the site to its prior condition.
4. Damages in excess of $1 million.
The ECO continues to monitor this case and
we will provide updates in future ECO annual reports.
Second Harm
to Public Resource Lawsuit Under the EBR
In June 1999, Dr. John Brennan initiated
a harm to a public resource action against the Simcoe County District
Health Unit (SCDHU). In the early spring of 1999, Brennan had filed
seven applications for investigation under the EBR.
Brennan and his co-applicant are concerned
about sewage systems being used by Snow Valley Ski Resort. In one application,
they allege that the Simcoe County District Health Unit permitted sewage
systems at the Snow Valley Ski Resort which created an attenuation area
containing cold water fish habitat. The applicants also allege that
a consulting firm performed inaccurate calculations regarding nitrate
attenuation zones which resulted in approval of a sub‑standard
septic system. The MOE refused to undertake an investigation based
on this second EBR application.
This is the first time that an applicant
for an EBR investigation has decided to launch a harm to a public
resource action under s. 84 of the EBR. (The Braekers did not
apply for an EBR investigation prior to launching their action.)
It seems likely that, if their action proceeds, the Brennans will argue
the EBR investigations by the ministries (MOE and MNR) was inadequate.
The Brennans also are relying on the public nuisance provisions (s.
103 of the EBR) as another cause of action.
Summary of Claim
The Brennans issued a notice of action on
June 16, 1999, maintaining that the defendant breached its duty of
care to them and was negligent by issuing certificates of approval for
sewage systems at two chalets at the Snow Valley ski resort when the
sewage system designs were substandard and incapable of handling the
intended loads on the systems. The plaintiffs maintain that this breach
has caused a nuisance and is polluting the plaintiffs’ property.[86]
They are relying upon the following causes of action: negligence; private
nuisance; s. 103 of the EBR; and s. 84 of the EBR. The
plaintiffs also plead and rely upon the provisions of the OWRA,
the EPA, the Health Promotion and Protection Act, and
their regulations as amended.
The plaintiffs claim full compensation for
their losses from the defendant together with prejudgment and post-judgment
interest and costs on a solicitor and client scale. On July 16, 1999,
the plaintiffs issued a statement of claim setting out further details
of the action. The defendants filed a statement of defence on September
13, 1999, denying all of the plaintiffs’ allegations.
When does the
ECO post a Notice of a s. 84 Action on the Registry?
Section 87 of the EBR requires the
plaintiff in a harm to a public resource court action to bring a motion
to the court for directions relating to how notice of the action should
be given. Sub-section 87(2) states that the ECO shall promptly place
the notice on the Registry after it is forwarded to the ECO by the plaintiffs
and sub-section 87(1) indicates that the court may provide other forms
of notice. The ECO’s current interpretation of s. 87 is that the notice
forwarded to the ECO by the plaintiff must be approved by the court
before it can be loaded on the Registry.[87]
EBR Litigation
Rights Workshop
On May 25, 2000, the Environmental Commissioner
of Ontario hosted a workshop to examine the effectiveness of the
litigation rights contained in Ontario’s EBR. Invitations
to attend the workshop and a background paper on EBR litigation
rights were sent to a wide range of stakeholders. Fifty-six participants,
representing private companies, environmental groups, labour unions
and government ministries, attended the all-day workshop.
The purpose of the workshop was to provide
stakeholders with an opportunity to share their experiences with the
EBR’s litigation rights and their insights into the effectiveness
of those rights. Further details on the workshop are available at the
ECO Web site at www.eco.on.ca/english/publicat/index.htm
Evaluating
the Harm to a Public Resource Action Provisions
The May 2000 workshop participants concluded
is difficult to evaluate the effectiveness of Part VI of the EBR.
There is considerable evidence that the mere existence of the Part VI
has encouraged ministries to undertake systematic and thorough investigations
when they receive strong applications for investigations. Ministries
have done so in order to ensure they can provide evidence of reasonable
and timely investigations in the event that EBR applicants decide
to attempt to invoke s. 84 of the EBR, and to convince the ECO
that their handling of the applications has been adequate and appropriate.
The small number of actions relying on the
harm to a public resource provisions of the EBR may simply reflect
the fact that the legislation is only seven years old. There is, however,
some evidence that the conditions and the time, effort and resources
required to bring such an action may be too onerous for the average
plaintiff. This is especially true when one considers that the court
will not make an award of damages under this section of the EBR
and the plaintiffs will likely only recover some of their costs if the
action is successful. In contrast, some environmental groups have had
considerable success in bringing private prosecutions against polluters
using the Fisheries Act.[88]
Another challenge
facing someone who wishes to bring a harm to a public resource action
is the three defences available to the defendant under section 85 of
the EBR. If the alleged contravention is authorised by law, or
if the defendant acted with due diligence or on the basis of a reasonable
interpretation of the legal instrument, then they will not be held liable
under the legislation. It is difficult for a plaintiff to gain much
information about the strategy of defendants (and the nature of the
defence they intend to mount) until the discovery stage of the litigation,
which means there may be considerable risk in bringing an action.
Some strategies for reducing the barriers
to public resource actions have been suggested. Workshop participants
aid that it may be necessary to provide greater financial incentives
to potential plaintiffs, especially because harm to a public resource
actions may not be undertaken as a class proceeding under Ontario’s
Class Proceedings Act.[89]
h. Public Nuisance Provisions
The EBR also affords greater access
to the courts for public nuisance suits that can result in damage awards
— these will be brought using section 103 of the EBR.[90] Before the EBR, individuals
had limited access to the courts when it came to public nuisance activities
harming the environment.[91] Now any person who experiences direct economic or
personal loss because of a public nuisance causing environmental harm
may sue for damages or other personal remedies. (There is an exception
for farmers who may be protected against public nuisance lawsuits relating
to odour, noise and dust under the Farming and Food Production Protection
Act).[92]
A public nuisance
has been defined in one of the leading Canadian experts on tort law
in the following terms:
... a nuisance which is so widespread in
its range or so indiscriminate in its effect that it would not be reasonable
to expect one person to take proceedings on his own responsibility to
put a stop to it, but that it should be taken on as the responsibility
of the community at large.[93]
Generally the courts have held that a problem
affecting a number of properties and families will qualify as a public
nuisance.[94]
In one case, a noise problem at a speedway affecting seven or more families
was large enough to justify a public nuisance action.[95]
Section 103 of the EBR clarifies three
of the ambiguous areas of an environmental law action in public nuisance:
first, it eliminates the need for plaintiffs to get the Attorney General
to take the case or to get the consent of the Attorney General to undertake
a relator action[96];
second, it clarifies the nature of personal injuries that a plaintiff
is required to prove; and third, it specifies that the person does not
have to suffer unique economic damages or personal injuries.
Prior to the EBR, the ability of an
individual in Ontario to sue if a public nuisance harmed the environment
was limited, as he or she could sue only if certain conditions were
met. These were based on common law rules that the courts had developed
over time. These common law rules still apply in relation to public
nuisance actions outside Ontario.
For example, in a 1934 case called Fillion
v. New Brunswick International Paper Company, the Supreme
Court of Canada ruled that to bring a successful public nuisance action,
the plaintiff must prove that the damage caused outweighs the public
utility of the act causing the damage.[97]
Another important case, Hickey v.
Electric Reduction Company. of Canada Ltd.,[98] had a similar result. In this case,
Hickey, a commercial fisherman, alleged the defendant company discharged
poisonous material into Placentia Bay, Newfoundland, poisoning the fish
and rendering them of no commercial value. The court found that the
damage was not peculiar to the plaintiffs, and ruled that the discharge
was a nuisance to the public. Thus, it was not enough for the plaintiffs
to show that their business is interrupted or interfered with, by the
public nuisance.[99]
The EBR should eliminate this problem for Ontario plaintiffs,
as it states that direct economic losses are recoverable. This provides
a fundamental tool in environmental law as it allows citizens to hold
corporations accountable for all types of damage and the consequences
of that damage stemming from public nuisance harm to the environment.
In the past 20 years, some municipalities
have been able to secure agreements from a provincial Attorney General
(AG) to undertake relator actions in which the relator tries by an injunction
to stop a public nuisance or to force a public duty to be performed
or observed.[100] However, this
is very rare and I am unaware of recent cases in Ontario where the AG
has consented to relator actions for public nuisance cases. A 1983
example is Manitoba (Attorney General) v. Flight Adventure
Centres Ltd.[101]
where a public nuisance action was brought in the name of the Attorney
General by the Rural Municipality of Tache as relator. In this case,
the municipality asked the AG to sue the operator of a training school
and airfield for motorized hang gliders or “ultra light” planes, and
a prohibition on the activities was successfully obtained.
In summary, to sue in public nuisance in
most parts of Canada you have to: 1) show special damages, which is
often hard to do; or 2) secure an agreement with the Attorney General
of Canada or a provincial Attorney General to take on your case; or
3) get permission from the Attorney General of Canada or a provincial
Attorney General to undertake a relator action. S. 103 of the EBR
removes these requirements from the public nuisance cause of action
with the expectation that more individuals would be inclined to commence
a public nuisance action to protect the environment.
Thus far, the ECO is aware of only six actions
that have relied upon the EBR public nuisance provisions.[102] The first involves
nuisance impacts from a landfill site (discussed in greater detail below)
and the second case relates to contaminated drinking water.[103] Four other cases are described
below. Most of the other cases have been initiated as class actions,
which has resulted in delays due to procedural motions related to the
class certification process. Because of this the substantive elements
of some of the actions have not yet been addressed judicially.
First Public
Nuisance Case Filed in 1997
In February 1997 the first public nuisance
case relying on section 103 of the EBR was filed in the Ontario
Court of Justice in Whitby on behalf of 30,000 residents in Maple and
Richmond Hill by the Toronto law firm McGowan and Associates. These
residents are suing the City of Toronto on the grounds that odours,
noxious gas, debris and noise have emanated from the landfill since
it began operations in 1983 and these emissions have caused harm to
local residents.
The primary basis for this action is a class
action suit under the Class Proceedings Act.[104] Class action suits have been
possible since 1993 when the Class Proceedings Act was proclaimed
by the Ontario government.[105] In the Keele Valley suit, Toronto faces a $600
million claim, $500 million in compensatory damages and $100 million
in punitive damages. In addition, the plaintiffs are seeking an injunction
preventing Toronto from continuing to pollute the local environment.
On March 31, 1998, an Ontario Court (General
Division) judge, John Jenkins, ruled that this class action suit can
proceed. However, the court rejected a request for an injunction to
close the facility and suggested that a more appropriate remedy would
be for the plaintiffs to apply to ask a court to set aside the C of
A.[106]
The City of Toronto appealed the decision
to the Divisional Court. On December 17, 1998, the City was successful
with its appeal. The plaintiff then appealed to the Ontario Court of
Appeal, which dismissed the appeal on December 16, 1999 stating that
there was “no common issue to justify the certification as a class action
because the individual’s lives have been affected, or not affected,
in a different manner and degree.”[107]
ECO Intervention
in Hollick
The ECO appeared
as an intervener at the SCC in the Hollick appeal to clarify
issues surrounding the interpretation of the EBR.
On March 1, 2001, the ECO was granted intervener
status to the Supreme Court in the Hollick case. The ECO takes
no position on the merits of this particular case, but intervened because
the findings of the Ontario Court of Appeal related to the interpretation
of the EBR, and specifically, the EBR’s public nuisance
cause of action.
The ECO argues that the Ontario Court of
Appeal did not properly interpret and apply Section 103 of the EBR
and its relation to the Class Proceedings Act, 1992. In
drafting Section 103, the Task Force on the Ontario Environmental Bill
of Rights intended that this provision work together with the class
action legislation in order to facilitate public nuisance claims. The
Ontario government had recognized that class proceedings reform was
an integral part of environmental reform, given the expense and complex
nature of environmental claims brought by citizens of the province.
Often the only effective proceeding for these offences is a class proceeding.
The expense of such an individual claim as an impediment was a concern
for the framers of the EBR and remains a concern for the ECO,
but was not considered by the Court of Appeal.[108]
The ECO is concerned
that the Court of Appeal’s interpretation may deprive individuals who
have suffered as a result of a public nuisance causing environmental
harm of compensation from the court.
By intervening, the ECO hopes to provide
the court with valuable institutional knowledge regarding the legislative
history and purpose of the EBR, the intention of the framers
of the EBR, and the social and political context in which the
need for the EBR and Section 103 arose. The ECO has special
expertise and experience on the relevant issues and the experience of
Ontario residents in litigating environmental claims on an individual
basis, and believes that the issues raised by this action are important
for all residents of Ontario.
On June 13,
2001, the appeal was heard by the Supreme Court of Canada but a judgement
had not been released at the time this paper was written.
It may be some time before a decision is reached as to whether
the residents can proceed as a class and continue their claim, but the
ECO hopes to report on the Supreme Court’s decision in our 2001-2002
annual report.
Other Public
Nuisance Actions
Two recent class actions have used nuisance
as a cause of action in their claims for damages arising out of environmental
harm. Neither explicitly refers to s. 103 of the EBR; however
it seems likely that the plaintiffs would need to frame their actions
as public nuisance actions because dozens of families were affected
by the various defendants’ activities. This suggests that the ECO needs
to improve our education initiatives for lawyers who work in the area
of class actions for environmentally related damages.
A third case related to the July 1997 Plastimet
Fire also attempted to invoke s. 103 of the EBR as a cause of
action but the pleadings were poorly drafted and the judge ruled that
the action could not rely on s. 103 of the EBR.[109] The revised pleadings rely primarily
on negligence but also appear to rely on elements of both nuisance law
and the doctrine in Rylands v. Fletcher.
Pearson Case Launched
in March 2001<
In March 2001, Wilfred Pearson launched a
class action lawsuit against Inco Limited, the City of Port Colborne,
the Regional Municipality of Niagara, the District School Board of Niagara,
and the Niagara Catholic District School Board. Section 103 of the EBR
is listed as one cause of action. Mr. Pearson resides near Inco’s Port
Colborne refinery where Inco has operated a refinery producing nickel,
copper, cobalt and other precious metals since 1918.
The action was
commenced as a class proceeding under the Class Proceedings Act,
1992 on behalf of all persons who, since March 26, 1995, either
occupied or owned property or attended schools operated by the District
School Board of Niagara and the Niagara Catholic District School Board
within a defined surrounding area.
Mr. Pearson claims that Inco has discharged
and still does discharge hazardous contaminants into the air, water
and soil of Port Colborne, including soluble inorganic nickel compounds,
copper, cobalt, chlorine, arsenic and lead. He claims that nickel oxide,
a known carcinogen, is the most abundant contaminant emitted by Inco
and can now be found in quantities exceeding all accepted levels. To
compensate the class for the damage caused by the release of these contaminants,
the plaintiff is claiming $150 million for Inco’s alleged reckless
disregard for the health, safety and pecuniary interests of class members.
He is also claiming $600 million for the loss of use and value of their
property; damage to their physical and emotional health; and exposure
to known carcinogens and toxic substances. The plaintiff alleges that
the defendants were negligent, because they knew or ought to have known
of the release and effects of the contaminants, and that the defendants
failed to warn the class members or take any steps to remedy the damage
they suffered.
Since the claim was filed, Inco has stated
that it has been working with the City of Port Colborne and MOE to assess
whether any serious health issues exist in connection with the history
of the operation of its refinery. In addition, Inco states that it
has also been working with MOE concerning the landfill activities which
were conducted in the area dating back to the early 1900s and the possible
sources of such landfill. Although Inco has pledged to defend itself
vigorously, stating that a number of the plantiff’s allegations are
not supported by the facts, on April 25, 2001, the company announced
that it would voluntarily remediate the soils of 16 properties identified
by MOE and has voluntarily accepted responsibility for surface soil
nickel concentrations in the Port Colborne area. However, on May 2,
2001, MOE representatives visited about 180 houses advising residents
that it had discovered an error in how it determined which properties
would be cleaned up. If the current cutoff level is lowered, it is
possible that MOE may require Inco to clean up many additional properties
as well.
The progress of this case may be shaped by
the Supreme Court of Canada decision in the Hollick case. The
ECO will report on the progress of this case in a future report.
Shell Canada Case
Another recent
case that relies on the law of public nuisance is also a class action,
which was brought against Shell Canada Ltd. in April, 2000. On March 16,
2000, the release flare at the Shell Canada refinery went out causing
hydrocarbons, sulphur carbons, and hydrogen sulphide to be released
into the atmosphere. The gases spread throughout the County of Lambton,
affecting industry and residences.
The plaintiffs claim that the defendants
are liable under the law of nuisance, which includes public nuisance.
“The release of gases . . . caused an unreasonable interference with
the use and enjoyment of the plaintiffs’ land and caused a substantial
and unreasonable interference with the reasonable comfort and convenience
of the surrounding community”. In the alternative, they
claim that the defendants are liable in negligence.
This action was certified to proceed as a
class action in January, 2001 and was settled the same month. The claim
deadline for individuals wishing to identify themselves as members of
the affected class expired on March 13, 2001. The ECO has learned that
several hundred residents have made claims related to this class action.
Anderson et
al. v. Gulf et al.
On June 15, 2001, 34 plaintiffs commenced
legal proceedings against the defendant, Gulf Canada Resources Limited
(“Gulf”), the Province of Ontario and various defendants who acted as
senior employees and agents of the Province of Ontario, at various Regional
and District offices of the Ministry of the Environment (collectively
referred to as “Agents of MOE”). One of the grounds outlined, as a
basis for the 34 actions against Gulf, is nuisance, which includes the
law of public nuisance. This case is noteworthy because it was not
framed as a class action.
1. Claim against the defendant, GulfThe
plaintiffs, owners of lands in the District of Parry Sound, claim that
the defendant, Gulf is liable for contributing to the spill, discharge
and escape of gasoline into the soil and groundwater of the plaintiffs’
lands. Specifically, the plaintiffs allege that Gulf, directly or through
the original operator of Buchanan Service Station (who is now deceased)
allowed gasoline to spill, discharge and escape from Buchanan Service
Station during 1978 and 1979. The gasoline then migrated through the
soil and groundwater, contaminating the soil and groundwater used by
the plaintiffs. The plaintiffs allege that this petroleum product constitutes
a pollutant within the OWRA and the EPA.
Following the initial discovery of the spill,
discharge and escape of the gasoline from Buchanan Service Station it
is alleged that Gulf failed to promptly remove or require the removal
of the contaminated soil. This failure resulted in the continued contamination
of groundwater. It is further alleged by the plaintiffs that Gulf assumed
liability for the spill, discharge and escape of the gasoline through
its lax remediation efforts following the discovery of the initial contamination.
Between 1980 and 1988 Gulf, with the knowledge
of the Province of Ontario and the Agents of MOE, conducted tests which
revealed the presence of hydrocarbon levels in the residential properties
surrounding Buchanan Service Station. In 1989, it is alleged that Gulf,
with the knowledge of the Province of Ontario and the Agents of MOE,
made representations that the groundwater used by the plaintiffs was
clear of contamination. In 1992, Gulf installed a new well within 180
metres of the contaminated area. It is alleged that Gulf promoted that
water be supplied from this new well despite the alleged dangers posed
by such use. In 1995, Gulf and the Province of Ontario entered into
an agreement to release Gulf from any further legal responsibility arising
out of the contamination of the plaintiffs’ properties.
The plaintiffs
rely on the following causes of action against the defendant, Gulf:
* The plaintiffs claim that Gulf is strictly
liable for the spill, discharge and escape of the gasoline. The plaintiffs
plead and rely upon the doctrine from Rylands v. Fletcher
(strict liability for the escape of dangerous substances), the EPA,
and the OWRA.
* The plaintiffs claim that Gulf is liable
under the law of nuisance and trespass. It is alleged that the failure
to promptly remove or require the removal of the contaminated soil resulted
in continued contamination of the plaintiffs lands and thereby constitute
trespass and nuisance by Gulf.
* The plaintiffs claim that Gulf is liable for breach
of fiduciary duty. It is alleged that Gulf represented itself to the
plaintiffs as having the necessary expertise to address the problem
and protect the best interests of the plaintiffs. It is alleged that
the plaintiffs relied on this representation and Gulf thus owed a fiduciary
duty towards the plaintiffs, which it breached.
2. Claims against all defendants
The plaintiffs also allege that all defendants,
including Gulf, the Province of Ontario and MOE agents have breached
their duty of care and made fraudulent representations with respect
to the issues raised in their action. In 1996, an MOE official advised
the plaintiffs that the communal water supply met all requirements for
potable water in the Ontario Drinking Water Objectives. The
plaintiffs allege that this representation constitutes an act of conspiracy
carried out by the Province of Ontario to conceal the scale and magnitude
of the groundwater contamination. In addition, the Province of Ontario
transferred responsibility for the alleged offences to a Local Service
Board. It is claimed that this transfer of responsibility was a misuse
of legislation. Moreover, it is alleged that this transfer constituted
a failure to follow applicable procedures under the relevant environmental
legislation.
It is alleged
that all defendants represented to the plaintiffs that the new well
was viable and capable of providing adequate quantities of potable water
despite the defendants’ failure to conduct the appropriate environmental
assessments.
The plaintiffs
rely on the following causes of action against all the defendants.
* The plaintiffs claim that all the defendants
are liable under the law of negligence for breach of their respective
duties. It is alleged that Gulf is negligent in its proper maintenance
of records and documents pursuant to the provisions of the Gasoline
Handling Act and Regulations and in its various responsibilities
related to the remediation of the contaminated areas. It is alleged
that the Province of Ontario, as represented by the Agents of MOE, is
liable for the failure to carry out its obligations under applicable
environmental legislation and for the failure to follow applicable procedures.
* The plaintiffs also allege that the defendants
concealed and conspired to withhold the magnitude, nature and extent
of the ongoing groundwater and soil contamination from the plaintiffs,
and that they were misled into deferring the action now taken through
such fraudulent concealment from the plaintiffs.
Providing Notice
to the ECO
Although there is no requirement in the EBR
that the ECO post notices about public nuisance actions on the Registry,
the ECO has an agreement with MOE to post notices of these actions on
the Registry.[110]
The ECO also maintains files on these actions, because the Commissioner
has a duty to report to the Legislature each year on how s. 103 of the
EBR is used by the public. Thus, we would appreciate receiving
information about use of the s. 103 provisions in other cases.
The ECO also is monitoring all of these cases
and will report on developments in future annual reports. In addition,
the ECO, with the cooperation of the MOE, has posted information about
these actions on the Registry.
Evaluating
the Harm to a Public Nuisance Provisions
One of the difficulties of bringing an action
for public nuisance actions are the significant costs involved. To
succeed in complex environmental litigation, plaintiffs must invest
significant financial resources, time and effort in their case. If
they are unsuccessful, the plaintiffs may be ordered by the courts to
pay a substantial sum to the defendant. The prospect of paying the
costs of the polluter’s defence team often serves as a powerful deterrent
for would be plaintiffs. It is often unrealistic to expect plaintiffs
in these cases to have the same level of resources as the defendant,
usually a large corporation. In addition, the size of a damage award
may well in insufficient to be worth bringing an action. Damages in
public nuisance cases are significantly lower than personal injury suits
for which damage awards may be in the range of hundreds of thousands
or millions of dollars.
Many people who participated in a May 2000
workshop on the EBR Litigation Rights advised the ECO that the Right
to Sue for Public Nuisance provisions must be allied with class action
litigation in order to them to be effective.[111] A further barrier to exercising these rights under
the EBR is that of “judicial knowledge”. Many judges have never
even heard of the EBR or its public nuisance provisions. Moreover,
these provisions challenge a longstanding common law tradition, which
the judiciary may be reluctant to overturn.
It is also
important to note that s. 103 of the EBR places some restrictions
on who can use the provision to sue for public nuisance. The action
is limited to those persons “who have suffered or may suffer direct
economic loss or direct personal injury” as a result of a public nuisance
causing environmental harm. This limitation probably excludes those
plaintiffs whose only interest in bring an action for public nuisance
is protecting the environment.
It is difficult
to know whether the provisions in the EBR are being used to their
potential.
There are no statistics on the number of
public nuisance cases that were filed in the courts prior to the enactment
of the EBR.[112]
Increased awareness is one way to improve the effectiveness of the right
to sue for a public nuisance. Unfortunately, corporate behaviour usually
changes when there is a genuine risk of actions being brought against
them. Large settlements would also influence organisations to alter
the behaviour that leads to nuisances.
i. Protection from Employer Reprisals[113]
Employees are likely to have detailed knowledge
of the environmental activities of private sector companies and public
sector organizations. Employees who work at these places may know about,
have witnessed or even been forced to participate in spills, unsafe
practices or violations of environmental laws. They may also disagree
with the manner in which their employer intends to proceed with an environmentally
significant activity. Employees have the same rights as all Ontarians
to use the EBR. They can formally comment on a proposal, seek
leave to appeal a decision, or apply for a review or investigation.
The EBR encourages employees to use the public participation
provisions by providing safeguards for them if their employers retaliate
against them for exercising their EBR rights or for asking officials
to enforce environmental laws.[114] These safeguards
are often called the “whistleblower” provisions.
Before the EBR was enacted, the Ontario
government had recognized the importance of providing whistleblower
protection for employees who wanted to report on contraventions of environmental
laws. In 1983, the Ontario government amended the EPA to provide
whistleblower protection for employees who wanted to report violations
of the EPA, the Fisheries Act, the OWRA, the Pesticides
Act or the Environmental Assessment Act.[115] The EBR expands basic
whistleblower provisions in the EPA to apply to all acts, regulations
and instruments prescribed under the EBR. This means that employees
who may be aware of contraventions of prescribed acts such as the Crown
Forest Sustainability Act (MNR) or the Mining Act (MNDM)
are now protected from employer reprisals. It also protects employees
when they exercise any of their rights under the EBR, not just
for reporting a contravention.
The Environmental Bill of Rights Task Force
recommended that once the EBR was enacted, the EPA whistleblower
provisions should be repealed. However, this never occurred and both
the EPA and EBR provisions are now concurrently in effect.
It should be noted that the EPA does contain a general offence
provision.[116] It is arguable
that an employer who contravenes the whistleblower protections of the
EPA could be prosecuted under this section in addition to being
subject to a complaint filed with the Ontario Labour Relations Board.
The EBR does not contain a general offence provision. Therefore,
the EPA’s whistleblower provisions may provide a legal remedy
that the EBR does not.
Section 50 of the Occupational Health
and Safety Act (OHSA) also contains a whistleblower provision
that is analogous to the whistleblower provisions in the EBR
and the EPA. However, section 50 applies only to reprisals by
employers against employees who are complying with or seeking the enforcement
of the OHSA.[117]
The Canadian Environmental Protection Act also contains employee
protection provisions. Section 37 provides for an employee’s name to
be kept confidential upon making a report of the commission of an offence
and further provides protection to the employee from employer reprisals.
Up until this year, this section applied only to government employees.[118]
However, under the new CEPA that was partially proclaimed in
March 2000, the new employee protection provisions apply to all employees.[119]
Numerous federal laws in the United States
also include protection from employer reprisal provisions, including
the Clean Air Act, The Comprehensive Environmental Response,
Compensation and Liability Act (Superfund), and the Toxic Substances
Control Act. Each law contains its own administrative or judicial
rules to deal with complaints from employees who allege that they have
been disciplined as a result of disclosures they have made, or actions
that they have taken in accordance with the particular federal statute.
Like the EBR and the EPA, these provisions generally provide
for reinstatement and compensation for an employee who has been subjected
to retaliation.
Although they are worded differently, Part
VII of the EBR and Section 174 of the EPA achieve the
same purpose of affording protection from employer reprisals to employees
who comply with or seek the enforcement of environmental protection
legislation. Under both Acts an employee may file a complaint in writing
to the OLRB alleging that an employer has taken reprisals against the
employee on a prohibited ground. The EBR does not set out a
specific procedure for handling whistleblower complaints. The OLRB has
indicated to the ECO that the usual procedures for OLRB complaints would
apply. The OLRB ruled in 1985 that MOE may, with the consent of the
OLRB, participate in a hearing under the EPA provisions.[120] This may indicate that ministries would be allowed
to participate in a hearing conducted under the analogous provisions
in the EBR, although this would have to be decided on a case
by case basis.
Upon receiving a complaint, the OLRB may
authorize a labour relations officer to inquire into the complaint,
or the OLRB may hold an inquiry into the complaint, or both, or neither.
It is important to note that the wording of both the EBR and
the EPA is permissive with respect to whether the OLRB must conduct
an inquiry about a whistleblower dispute. Also, the OLRB's Rules of
Procedure allow the OLRB to dismiss an application without a hearing
where the application does not make out a case for the remedy requested.
Thus, it is possible that complaints filed with the OLRB under the EBR
or the EPA might be dismissed. If the Board completes an inquiry
and finds that there has been a reprisal against an employee, the Board
may make an order directing the employer to cease its reprisal, reinstate
the employee (with or without compensation), or compensate the employee
for lost earnings or other benefits.
The EBR whistleblower provisions have
not resulted in any applications to the OLRB. However, between 1983
and 2000, the OLRB has dealt with at least five whistleblower applications
under the EPA. In two cases, the employers were ordered to pay
lost earnings to employees who had provided information about their
employers’ improper activities to MOE.[121] The third case
was withdrawn. In a fourth case, a seasonal employee who had buried
tanks for his former employer was found not to be an employee at the
time the employer made inappropriate remarks to the employee about future
employment opportunities.[122] A fifth case was dismissed
by the OLRB in 1990 because of delays.[123] At least two additional complaints
under the EPA were received by the OLRB since 1989 for which
there are no decisions reported in the OLRB Reports.[124] These complaints
were settled, withdrawn, or dismissed without a hearing.
Why Have the
EBR Whistleblower Provisions Not Resulted in OLRB Applications?
It is difficult to assess how effective the
EPA and EBR have been because relatively few cases have
actually proceeded to a hearing. Some have argued that cases may never
arise because employers have changed their policies to encourage internal
whistleblowing, and refrain from retaliating against whistle blowers.
This type of argument would be bolstered by evidence about the growth
of awareness of environmental issues in many workplaces, and the increasing
adoption of environmental management systems such as ISO 14000 by companies.
My view is that rights such as the whistleblower
provisions in the EBR work to prevent reprisals against employees.
In this way they are like the provisions in the Ontario Human Rights
Code because a large percentage of the time the Code provisions
work reasonably well to encourage anti-discriminatory behaviour on the
part of employers and employees in workplaces.[125] The human rights cases that are
raised with the Ontario Human Rights Commission are those where the
prevention mechanisms did not work or the parties were unable to resolve
their dispute without the intervention of the OHRC. A key factor ensuring
the success of the prevention system is education of employees, employers
and their lawyers so they are all aware of their rights and obligations.
Similarly, the EBR provisions work in a preventive manner most
of the time and OLRB applications regarding reprisals against whistleblowers
are not required.
The ECO is aware of at least one application
for investigation that was filed by employees against their employer
(related to an alleged contravention of O. Reg. 102/94 of the 3R regulations).
The ECO is not aware of any reprisals against the employees who had
prepared and submitted that application. In this case, the application
resulted in compliance and enforcement actions by MOE. In the past
seven years, ECO staff have spoken to other employees who expressed
fear about potential reprisals, and notes in staff files show that copies
of the OLRB application forms were forwarded to these employees and
others. In addition, the ECO has conducted dozens of workshops about
the EBR with local labour councils, labour unions and locals,
and the Ontario Federation of Labour. However, no complaints have ever
been filed with the OLRB. It seems probable that some employees have
commented on proposals for instruments sought by their employers that
are posted on the Registry. However, it is impossible for the ECO to
track this kind of activity because individuals who provide comments
on proposals probably do not indicate that they are employed by proponents.
There is evidence that a growing number of
private corporations are establishing their own disclosure policies
to encourage employees to raise their concerns about illegality or wrongdoing
through internal mechanisms.[126]
These internal disclosure programs are usually developed as part of
the company’s code of ethics. In large companies, these programs may
include hotlines, ombudspersons and other formal investigation procedures.
Employees are encouraged to disclose wrongdoing through these channels.
In some cases, internal whistleblowers are provided with special recognition
by management. While many companies are known to have environmental
provisions in their codes of ethics, it is unclear how widespread this
type of practice could be. A crucial part of any of these disclosure
programs is a guarantee of protection for employees who, in good faith,
provide evidence of suspected wrongdoing to management. Companies prefer
internal whistleblowing because it gives management a chance to correct
the problem and avoid negative publicity. Employees also avoid some
of the stress associated with launching a public whistleblower action.
Another key issue to consider in analyzing
experience with the use of the whistleblower provisions under the EBR
is the current power relationship between Ontario employers and employees.
Some observers argue that employees feel that it is unrealistic to challenge
employers because they fear the repercussions of doing so on long-term
job security and career advancement. The situation has been exacerbated
by declining job opportunities in certain sectors, and a growing shift
by employers toward hiring workers on a contract or part-time basis,
making them feel more vulnerable. Some of the consequences of whistleblowing
can be extremely daunting and include:
·
Negative publicity for the employer and/or the whistle
blower.
·
Career advancement will be severely limited, either by
the former employer if the complainant is reinstated or by a new employer
if the new employer worries about a future similar episode.
·
The whistleblowing actions may cause serious physical and
emotional upheaval for many employees and the employer and poison workplace
relationships.
·
Pursuing a complaint at the OLRB will require time and
energy and the complainant will not be compensated until the end of
the hearing.
The statutory provisions in the EBR
may thus be perceived as ineffective by potential whistleblowers. In
particular, the remedies they provide, such as reinstatement and/or
back pay, may be viewed as weak in comparison to the potential consequences
the whistle blower may suffer.
In unionized workplaces, collective agreements
often contain provisions related to employee whistleblowing about occupational
health and environmental issues. These collective agreements may contain
extensive procedures for employees to raise concerns about management
or workplace practices with members of a Joint Health and Safety Committee
(made up of workers and managers) or an Environment Committee. In these
types of unionized workplaces, employees are more likely to use these
processes than rely upon the EBR whistleblower provisions to
backstop public complaints they make to the MOE or MNR about their employers’
problematic activities.
Summary
In trying to understand why the whistleblower
provisions have not been used, some have argued that employer compliance
with environmental laws has improved, decreasing the need for whistleblowing.
On the other hand, it may be that the whistleblower provisions are ineffective
for the range of reasons outlined above.
IV. The EBR and the Environmental Assessment Act
Ontario also has a comprehensive law in place
with respect to environmental assessment for large and medium size public
sector projects. When the Ontario government proclaimed the Environmental
Assessment Act[127] (EAA) in 1976, it was heralded
as one of the most progressive environmental assessment laws in the
western world. Subsequent laws, policies and regulations designed to
encourage public participation such as the Intervenor Funding Project
Act,[128]
served to further enhance and increase public participation in environmental
assessment and planning in Ontario.
The EBR Task Force recommended that
the new regime in the EBR be designed to complement this existing
process. Thus, the EBR is designed to allow for exceptions to
public participation when equivalent participation has been undertaken
under the EAA or other Acts and programs.
The relationship between the Environmental
Bill of Rights and the EAA is one of the most complex facets
of the EBR. For the purposes of this paper, I will just briefly
review the highlights.
The MOE and the EAA are prescribed
for the purposes of Part II of the EBR. However, postings on
the Environmental Registry will only be required for policies and regulations
related to the EAA or amendments to the EAA. Before the
Bill 76 amendments to the EAA, any exemption of an undertaking
from the environmental assessment process was deemed a regulation for
the purposes of the EBR and was subject to the public participation
provisions in Part II.[129] Bill 76 amended
the EAA to create a new form of exemption that is called a Declaration
Order. To the credit of the MOE, staff continued to post these types
of exemptions and declaration orders for public comment even though
it appears there was no legal requirement to do so. Fortunately, this
gap in legal authority will be corrected soon. Under a proposal for
an amendment to O. Reg. 73/94 posted on the Registry in late 1997, declaration
orders and exemptions made under s. 29 of the EAA before January
1, 1997 will be deemed to be regulations for the purposes of the EBR
and its regulations. Thus, if this proposed amendment to O. Reg. 73/94
is promulgated, the MOE will continue to post these types of exemptions
and declaration orders for public comment.
Instruments arising out of, or related to,
the implementation of decisions regarding individual or class EAs under
the EAA are excluded from the Registry posting process, including
the appeal process provided for Class I and II instruments. Denials
of bump-up requests also are excluded. However, the MOE must consider
its Statement of Environmental Values in making decisions under the
EAA. The Environmental Commissioner reviews the implementation
of the EBR and compliance of the MOE with the requirements of
the EBR, the use of the Registry and the exercise of discretion
of the minister under the EBR, in relation to the EAA.
The MOE is prescribed for the purposes of
Part IV of the EBR. Therefore, the EAA, its policies
and regulations will be subject to an Application for Review.[130]
However, only exemption regulations and declaration orders that are
made after November 15, 1994 will be subject to Reviews. However, designation
regulations can be subject to Applications for Review whether or not
these were made before November 15, 1994.
The EAA is a prescribed Act for the
purposes of Part V of the EBR. Therefore, contraventions of
the EAA or its regulations could be subject to an Application
for Investigation.[131]
Part VI of the EBR, dealing with the
right to sue, does apply in relation to the EAA based on the
fact that it is a prescribed Act under Part V. Moreover, Part VII of
the EBR makes provision with respect to employer reprisals on
prohibited grounds. The prohibited grounds make reference to an employee's
actions in relation to prescribed policies, Acts, regulations and instruments.
The EAA is a prescribed Act for these purposes and a regulation
or instrument under the EAA is also prescribed for these purposes.
The Impact
of Bill 76
On June 21, 1996, the Minister of the Environment
and Energy tabled Bill 76, Environmental Assessment and Consultation
Improvement Act (EACIA) in the Legislature. According to a ministerial
statement made at the time, the key goals of the new law are to make
the EAA “less costly, more timely and more effective”
according to the MOE’s June 13, 1996 press release. The government
also has undertaken some needed reforms that the ministry feels will
“modernize and strengthen” the EAA.[132]
Bill 76 was proclaimed as law in late December 1996.
Under a Deadline regulation made under the
EACIA, the terms of reference (TOR) for all proposed EAs will
be placed on the MOE’s Website for 28 days.[133] In discussions
with ECO staff in the fall of 1996, the MOE staff stated that the proposed
TORs would be posted as information items under s. 6 of the EBR.
The decision makers would then have a few weeks to review public comments
and make a decision on whether to accept the proposed TOR document for
an EA.
Initially (in Fall of 1996), MOE advised
the ECO that proposed TORs would be posted as proposals on the Registry
or as information items under s. 6 of the EBR. However, later
MOE decided to use the MOE’s EA Branch Website for posting notices about
proposed TORs. This MOE decision suggests that the MOE intends to maintain
maximum flexibility in developing its consultation programs for proposed
TORs and also will limit the ability of the ECO to review MOE decisions
on proposed TORs.
V. Third Party Appeals Under The EBR
The EBR allows third parties without
traditional appeal rights to appeal these instrument decisions. To
launch a leave to appeal application, third parties must apply to the
appeal body within 15 days of notice of the decision being posted on
the Environmental Registry. The appeal body is the one which would
hear a traditional appeal of that instrument.[134]
Because ministry decision makers are required to hold a public hearing
on Class III instruments before they are approved, leave to appeal applications
can only be brought in relation to Class I and Class II instruments
under the EBR.
Leave to appeal
will not be granted to a third party applicant by an appeal board unless
the person applying has a direct interest and can meet the following
two-pronged test set out in section 41 of the EBR:
1. No reasonable
person (i.e., ministry decision maker), having regard to the
law and the relevant government policies, could have made that decision;
and
2. The decision being appealed could result
in significant harm to the environment.
As of June 1, 2001 the Environmental Review
Tribunal (and its predecessor, the Environmental Appeal Board)[135] had received 35
applications for leave to appeal.[136]
Nine have been granted, twenty-one have been rejected, and five were
withdrawn before the leave to appeal determination was made.
Ten appeal
applications were initiated during the reporting period for 1999/2000.
Six were denied and four were granted. Two appeals, commenced when applicants
were granted leave in 1997 and 1998 were withdrawn during the reporting
period.
It should be kept in mind that more than
11,000 decisions made by the MOE since November 1994 have been subject
to the leave to appeal provisions of the EBR. This means that
the appeal rate is 0.25 percent or two and one-half decisions out of
a thousand decisions. I think that this is a lower rate than many people
had expected.
A summary of
three of the most interesting leave to appeal applications that have
been launched to date appears below. The remaining decisions are summarized
in Appendix 4.
The Petro-Canada
Leave Applications
In June 1996, the EAB released its decision
in an application for leave to appeal two instruments prescribed under
the EBR — an EPA s. 9 air approval and an OWRA
s. 53 (1) sewage approval, both issued to Petro-Canada. Five separate
individuals or groups appealed decisions on both instruments. The
EAB addressed 15 separate issues in this matter. The Board granted
leave to appeal the air certificate of approval on two grounds:
1. It was unreasonable of the Director to
issue an approval for which no application was made. The Director,
in granting the certificate of approval, allowed more than what was
requested in the original application, and provided for expansion of
the Petro-Canada plant, instead of only providing for some new heaters.
However, the Board only allowed leave to appeal the certificate of approval
portion which related to SO2 (sulphur dioxide) emissions,
because evidence showed the facility’s compliance with these to be marginal.
2. It was unreasonable of the Director to
limit the retention time for keeping records of maintenance, repair,
monitoring and recording activities related to the certificate of approval
to two years, because this condition was applied as a generic, “boiler
plate” provision, and the Director did not determine what was necessary
in the public interest in this case, contrary to MOE policy.
In its decision, the EAB made a number of
interesting comments related to the success of the EBR, the role
of the Environmental Commissioner and difficulties found in the appeal
process. In this case the Board also moved away from the balance of
probabilities standard of proof used in earlier decisions, and followed
the less stringent standard of proof for granting leave to appeal under
the EBR used in the Barker decision, described above.
Board Notes
that “EBR raises standard of protection”
The Board also noted in the Petro-Canada
decision that the main value of the EBR’s appeal provisions is
the opportunity it provides to Ontario residents to make submissions
and have them considered by the Director in making a decision, rather
than the right to obtain leave to appeal, because this is so difficult
to obtain. The right to seek leave to appeal is useful primarily as
a safeguard to ensure that Directors do give serious consideration to
meritorious submissions. The Board stated that “judged by this criterion
the process mandated by the EBR might be considered a substantial
success in this case.... the EBR raises the standard of protection
accorded to the public” [emphasis added] (p. 67).
The Board also commented that reviewing the
adequacy of the public participation process is the Commissioner’s function,
and that the Board cannot address flaws in the public consultation process
that do not bear directly on the correctness of the decision. The Board
also noted that making orders reducing emissions from the existing facility
is not the Director’s duty under the current C of A process, and that
such requests should be made to the Environmental Commissioner rather
than to the Director or Board. By this the Board appeared to be referring
to the Application for Review process under the EBR, which allows
two Ontario residents to apply for a review of a prescribed instrument,
such as an existing certificate of approval for air.
The Board noted the problems which can be
caused by the written hearing process under the EBR, and discussed
the difficulties in meeting the EBR’s 30-day decision framework
when thousands of pages of evidence must be sifted through. Other problems
included vague and inappropriate answers from Petro-Canada and the MOE,
and information which became available to the Board and the applicants
in stages.
In the initial stages of the hearing that
commenced in August 1996, it appeared that the environmental groups
were going to be out-manouvered (and outspent) by the lawyers for Petro-Canada.[137] Fortunately the
matter settled; on January 9, 1997, the parties announced that a settlement
of the dispute had been reached.[138] Lawyers for Petro-Canada contend that all the environmental
groups were desperate to settle because they had run out of funds for
the hearings. However, some observers argue that Greenpeace had to threaten
to bring an American expert from California to testify that Ontario’s
air pollution standards were hopelessly outdated to motivate MOE and
Petro-Canada to settle the case.
Dombind Order
Challenged by Federation of Ontario Naturalists and Others
In May 1999, the Federation of Ontario Naturalists
and other groups and Ontario residents[139] challenged an order issued concerning
the use of Dombind as a dust suppressant.[140]
The order was issued by the Brian Ward, the MOE Director for Eastern
Region to Norampac Inc. on May 4, 1999 pursuant to s.18 of the EPA.
It requires the company to eliminate the use of Dombind as a dust suppressant
over a period of time.
The appellants
sought leave to appeal the decision of the Director on the grounds that
the order doesn’t ensure that the use of Dombind will be phased out
by the end of the year 2000 or that the terms and conditions regarding
the application of Dombind as a dust suppressant on roads will be adequately
enforced. There is no assurance that adequate monitoring and reporting
concerning the composition of Dombind and its impact on roads will be
carried out. They also claimed that the Director lacked the necessary
authority to issue an order which permits persons to use Dombind without
issuing Certificate of Approval to either Norampac or the Applicator.
In a decision issued in late August, the
Board granted the Leave to Appeal application for one of the stated
grounds - whether the requirements and conditions for the application
of Dombind as a dust suppressant as set out in the MOE Order provide
an adequate means of enforcement. Leave to Appeal on all other grounds
was denied.
The Board first considered whether Dombind
poses a potential harm to the environment, noting that the reasonableness
of the Director’s decision depends upon whether it could result in significant
harm to the environment. After considering the various positions of
the parties, the Board concluded that Dombind could harm the environment
if its use is not effectively controlled.
After finding that Dombind does pose a potential
risk to the environment, the Board found that the Director did not exceed
his legal authority in issuing the Order under s. 18 of the EPA.
The Board found that while the Order does not refer to a fixed deadline,
it does set out a precisely structured schedule for the design, development,
and implementation of an alternative management strategy. Similarly,
the Board concluded that the Applicants’ concern that the Order fails
to provide for an adequate monitoring and reporting program is rectified
by the establishment of the interim Monitoring and Reporting Plan subsequent
to the issuance of the Order.
The Board accepted the Applicants’ assertion
that the Order fails to provide an adequate enforcement mechanism for
the rules regarding the application of Dombind as a dust suppressant.
The Board found that the language of the Order provides far to wide
a scope to applicators to evade their responsibilities to ensure that
Dombind is not applied to any point which is within 50 metres of any
water or watercourses. Furthermore, the Board also found that those
who apply Dombind, such as municipalities or other persons responsible
for the maintenance of the roads, driveways and parking lots to which
dust suppressant is to be applied, would not qualify as owners, managers
or controllers of an undertaking or property. Therefore, the Board
decided that there was some doubt that the Order could be enforced against
these applicators.
The Board concluded that the Director acted
unreasonably in failing to provide for adequate enforcement of the rules
for the application of Dombind as a dust suppressant and that this failure
could cause significant environmental harm. The Board granted leave
to appeal on this sole ground accordingly.
On October 20, 1999, the Environmental Appeal
Board allowed the appeal in part. The Board accepted the minutes of
settlement signed by the parties and dated September 23, 1999. The
Board ordered that Appendix I to the Director’s Order be deleted and
replaced with the conditions agreed to by the parties.[141]
Any remaining issues raised by the appeal were dismissed.
According to
press reports in the summer of 2001, Norampac continues to dispute the
terms of the revised MOE Director’s order.
The Tay River
Leave Application
In September
2000, a small group of local residents, along with the Council of Canadians,
sought to challenge a permit to take water issued to OMYA (Canada) by
the MOE.
OMYA, a Perth
area calcium carbonate processing facility, plans to expand its facilities
over the next ten years and will require a gradual increase in water
for use in operations and in calcite slurry products. The company is
projecting water requirements rising to 4,500 cubic metres per day by
2009. As a preparatory step, it applied for a ten-year permit to take
water from the Tay River, including a proposal to construct a pumping
station at the Tay River 1,500 metres south of the plant site. (The
river flow and water levels are controlled by Parks Canada using a dam
structure at Bob's Lake.)
The proposal
for the PTTW prompted 283 comments from agencies, organizations and
the general public. The submissions were grouped into specific concern
areas such as potential impacts on water levels in upstream lakes, impacts
on aquatic habitat in the Tay River, water volumes requested and possible
impacts on downstream users, insufficient data and supporting technical
information, monitoring requirements and concerns about the removal/export
of water from the Tay River.
As a result,
the Ministry permit was issued as a two-phase permit over the ten-year
term, with special conditions attached addressing monitoring, field
investigation and reporting requirements. It allows the company to take
up to 1,483 m3/day (less than one-third the quantity requested),
until it has been demonstrated to the satisfaction of the MOE and other
regulatory agencies that more can be drawn without causing negative
impacts on the river and on upstream lakes. The initial permitted taking
is based OMYA's projected process water requirements up to the end of
2003. During this period, the company will be required to install and
operate a gauging station to measure flows in the Tay River, and to
stop taking water if the flow drops below 1 m3/second.
The second phase
of the permit will allow OMYA to take up to 4,500 m3 of water
per day. Before increasing its consumption, however, the company must
conduct field investigations of the aquatic environment to determine
the potential impacts of its increased water taking and submit a report
to the MOE. Based on the results of the investigation and subsequent
review by the MOE and other agencies involved in regulating the Tay
River, the Ministry reserves the right to refuse or limit the increase
in water taking.
The leave to
appeal application filed by the residents claims that the consumptive
water use sought by the company is unsustainable, that the Director's
decision was based on insufficient data, and that the Director failed
to use a watershed approach in making the decision, failed to obtain
important river and watershed data before granting the PTTW and granted
the company permission to take more water than it requested, thus failing
to protect environmental quality and foster the efficient use and conservation
of resources.
The applicants
also claimed that the Director based his decision on insufficient data
and that there was a lack of independence in the important functions
of study, recording and monitoring. Finally, the Director failed to
follow MOE’s Statement of Environmental Values.
In granting
the leave to appeal, the Tribunal found that all of the applicants had
identified the central issue of whether the decision was based on sufficient,
pertinent data on the Tay River watershed. If there are such information
gaps, the Board noted that the Director would have reason to be uncertain
about the consequences of the water taking and his decision could result
in significant harm to the environment. The Board concluded that it
was was reasonable for the Director to issue a PTTW for the taking of
water in the absence of sufficient, pertinent data about the watershed.
The ERT found that the absence of this information creates a degree
of uncertainty about impacts on the aquatic habitat of
the Tay River
which raises the possibility of significant harm to the environment.
The appeal hearing related to this PTTW commenced
in June, 2001 before the ERT in Perth, Ontario. The hearing was suspended
in July 2001 after the ERT panel member hearing the appeal, Pauline
Browes, requested that the hearings be stopped for personal reasons.
The hearing is scheduled to resume in September 2001.
Table 1 - ECO
Leave to Appeal Statistics (As of June 1, 2001)
Number of instruments
appealed (leave to appeal) per year:
1995 - 6
1996 - 7
1997 - 2
1998 - 4
1999 - 8
2000 - 7
2001 - 2 (as of June 1, 2001)
Total Applications
for Leave received by ECO: 41
21 involved single application/single
instrument
1 instrument was appealed
by 4 LTA applicants
1 instrument was appealed
by 7 LTA applicants
Total Number
of Instruments Involved: 35
(This is the
generally accepted answer to the question “how many leave to appeal
applications has the ERT received?”)
Of the 35 instruments
appealed, the results are:
5 withdrawals before leave
to appeal determination made
21 leave to appeal applications
denied
9 leave to appeal applications
granted
0 leave to appeal applications
pending
Of the 9 leave
to appeal applications granted:
8 were settled or the appeal
was withdrawn
a hearing has been started
on the ninth (Tay River)
It is noteworthy that the Environmental Commissioner,
Gord Miller, was summoned as a witness by the Council of Canadians,
one of the parties to the hearing. He testified about groundwater management
issues for one day in late June 2001. Most officers of the Ontario
Legislature (including the Ombudsman, the Auditor and the Information
and Privacy Commissioner) have non-compellability provisions in the
legislation creating their office. However, the EBR lacks this
type of provision. Thus, the Commissioner felt that he was under an
obligation to assist the Tribunal in its deliberations.
Thirty-Day
Decision Deadline Rule
Under s. 17 (4) of O. Reg. 73/94, appeal
tribunals must decide whether to grant leave to appeal within 30 days
after the date the leave application is filed. In the ECO’s 1994-1995
Annual Report the Commissioner noted that this 30-day time-line had
proved too short for the first leave applications. In these cases,
the Board sends written notice to the Environmental Commissioner to
advise that the 30-day time-line will not be met. The 30-day time-line
is often difficult to meet due to delays requested by the parties, the
complexity of issues to be decided, unavailable information and large
amounts of background documentation.
To reduce time delays, in May 1996 the Environmental
Appeal Board developed new rules of practice.[142] The package included
a new rule on EBR applications which addressed some facets of
the difficulties the Board had experienced in meeting the general 30
day decision deadline. It does so by setting out clear procedures for
filing, allowing communications between parties by fax, and having written
hearings where possible. The 1996 rules and practice directions have
addressed and clarified some of the problems raised in the first EBR
appeals. These rules were revised and updated slightly in the fall
of 1998 and are available at the Internet site for the Board.
Conclusion
on LTAs
This review of leave applications show that
the test for leave under the EBR is a difficult, but not impossible,
one to meet. Applicants must show that their application has raised
a “prima facie case” or serious question concerning environmental harm.
In making a leave to appeal application, applicants can ensure that
their submissions will be considered by the Director whose decision
is being questioned, and in some cases may be granted a full right to
appeal an instrument using the EBR. The ERT also appears to
have recognized that the EBR creates new opportunities for public
participation but that the law also has the potential to increase the
workload of public agencies and delay proponents seeking to obtain approvals
that are subject to third party appeals. Accordingly, ERT has taken
the view that the public interest must be balanced with the rights of
instrument holders in a fair and efficient manner. Thus, the public
should be granted an opportunity to influence decisions but not in a
manner that will delay projects that contribute to economic development
in Ontario communities.
VI.
Annual and Special Reports
The Environmental Commissioner of Ontario
produced five annual reports and four special reports between May 1994
and August 2001. This document summarizes these 10 reports. The full
text of all the ECO annual reports and the two recent special reports
can be accessed and viewed at the ECO’s home page on the Internet: see
www.eco.on.ca A summary of the
ECO reports appears in Appendix 3 of this paper.
Common Elements
and Themes of ECO Annual Reports
The annual reports released between June
1996 and July 2001 contain a number of common elements and themes, reflecting
both the ECO’s legal mandate and the interests of the first Commissioner,
Eva Ligeti, the Interim Commissioner Ivy Wile and the second Commissioner,
Gord Miller. The common elements and key themes are described below.
1. Reviews of Ministry Decision Making
One of the most important aspects of the
ECO’s mandate is the review of the environmental decisions made by ministries
after they consider public comments made on their proposals posted on
the Environmental Registry. This review allows the ECO to examine a
ministry’s compliance with its SEV and to assess whether the ministry
is applying the purposes of the EBR and integrating environmental,
economic, scientific and social factors in its decision making. To
determine Ministry compliance with the requirements of the EBR
we:
Øreview all
registry notices (proposals and decisions) for policies, Acts and regulations
and a sample of instrument decisions.[143]
Øreview information postings to ensure the ministries are using
this option appropriately;
Øreview environmentally significant decisions made by ministries
for potential non-compliance with the EBR; and
Øreview how public comments were considered in decision making.
2. Detailed Reviews of Decisions
Each year the Commissioner and his staff
carry out detailed reviews of important ministry decisions on new policies,
Acts and regulations that will have a significant impact on Ontario’s
environment.
3. Ministry Use of the Registry
The ECO is required to monitor and report
on how the ministries use the Registry. All ECO annual reports have
noted that the quality of the information on the Registry affects the
public’s ability to comment on proposals and, if necessary, to use other
rights, such as the right to appeal certain government decisions on
licences and permits.[144]
4. Unposted Decisions
Each year, the ECO reviews environmentally
significant proposals and decisions that were not posted by the ministries
on the Environmental Registry, in order to confirm that the public participation
rights under the EBR have been respected. When it comes to
our attention that ministries have not posted proposals on the Environmental
Registry that are potentially environmentally significant, we review
them to determine whether the public’s participation rights under the
EBR have been respected. Some of these decisions are subsequently
posted on the Registry in response to the ECO’s inquiries, restoring
the public’s rights of notice and comment. In some cases the ministry
responsible conveys to the ECO a legitimate rationale for not posting
the decision on the Registry (for example: the decision is not environmentally
significant; the decision is not made by a ministry but by a related
non-prescribed agency; or the decision falls within one of the exceptions
in the EBR). In other cases the decision remains classified
as “unposted” with the ECO disagreeing with the ministry’s position.
In each annual report, the ECO describes nearly all of the unposted
decisions we reviewed, the rationale given by each ministry for not
posting them on the Registry, and a brief commentary by the ECO.
Since 1995, the ministries have continually
improved their performance in this area. This year, the trend towards
more Registry notices and fewer unposted decisions continued. However,
there were still some major, environmentally significant decisions made
by other ministries that were not posted.
5. Reviews of the Handling and Disposition
of Applications
The ECO is required to report to the Legislature
on ministry handling and disposition of Investigations and Reviews that
are made to seven prescribed ministries. Some themes raised in recent
applications are discussed above.
6. Use of the Appeal and Litigation Rights
The ECO is required to review and report
to the Legislature on how the public and environmental groups use their
new appeal and legal rights under the EBR.
7. Stories about Public Participation in
Decision Making
The reports
feature stories where the public participation opportunities provided
by the EBR contributed to better environmental protection.
VII.
ECO Guidance to Ministries
To help ministries comply with the EBR,
the ministries can request that the Environmental Commissioner provide
guidance on how to interpret the legislation. In the past seven years,
the ECO has provided an extensive amount of advice to the ministries
on a wide range of compliance issues. Two of our main guidance initiatives
are summarized below.
a. First Guidance
Document
In late August 1996, the ECO released a guidance
document on Registry notice and comment procedures with respect to policies,
Acts and regulations in response to questions from ministry staff on
interpreting these provisions of the EBR.[145] The ECO suggests that, to participate
meaningfully in decision-making, the public needs adequate time
and adequate information and that ministries should do their
best to provide this. The guidance document also recommends a framework
to assess whether a ministry should conduct additional consultation
on a particular proposal. The framework is based on the EBR
requirements that the complexity and level of public interest in a decision
should guide ministries in determining the required level of public
participation.
b. Second Guidance
Document
In November 1997, the ECO released a discussion
paper on the application of exceptions.[146] This paper is a response to the
fact that the Environmental Bill of Rights allows ministers to
except proposals from the public participation requirements if certain
conditions are met. Ministry staff have requested guidance from the
ECO on how to interpret these provisions on dozens of occasions. The
ministries have developed very different interpretations of the requirements
for posting proposals on the Environmental Registry, along with different
posting procedures. To help ministries comply with the EBR notice
and public comment provisions, the Environmental Commissioner proposes
a four-step process to assess whether a proposal for a policy, Act,
regulation or instrument should be posted on the Environmental Registry
for public comment or as an exception.[147]
After receiving and considering comments from ministries and other
stakeholders, the Environmental Commissioner issued a guidance document[148]
which clarifies how the ECO will evaluate ministry activities related
to the use of exceptions pursuant to the EBR.
VIII. What’s New At The ECO
Feedback from the public, company managers
and environmental professionals is welcomed by the ECO on our activities,
and on any other issues related to the EBR. If anyone would
like to make written submissions on particular issues, our office would
be most appreciative of these.
a. The ECO Multi-Stakeholder Advisory
Committee
In the first
quarter of 2000, the Environmental Commissioner of Ontario established
a Multi-Stakeholder Advisory Committee. The ten members of the Committee
are drawn from a cross-section of Ontarians who are concerned about
the environment and sustainability. They will be able to provide a broad
range of knowledge, experience and expert advice to support the activities
of the Commissioner and his office. The Multi-Stakeholder Advisory Committee
members serve as individuals acting in their own right and are appointed
by the Commissioner for a three-year term.
b. The ECO Recognition Award
In 2000, for
the first time, the Environmental Commissioner of Ontario is formally
recognizing ministry programs and projects that either best meet the
goals of the EBR or are considered best internal EBR practices.
The ECO asked the 13 ministries prescribed under the EBR to submit
programs and projects that met either of these criteria. Four responded
to our request with a total of 12 projects for the ECO to choose from.
An arm's length panel reviewed the submissions and made suggestions
for the one that should be selected for inclusion in our 1999-2000 annual
report.
As a result of this process, the ECO was
pleased to recognize the efforts of the staff of the Ministry of Municipal
Affairs and Housing in educating professionals and the public in order
to minimize the impacts of smaller on-site sewage systems more commonly
known as septic systems. In 1998, MMAH assumed responsibility for administering
the regulatory framework covering septic systems. This responsibility
included amending the Building Code Act and the Ontario Building Code
to include new design, construction, inspection, operation and maintenance
standards . In order to ensure the proper installation, approval and
maintenance of high quality septic systems, MMAH developed a certification
and training program for septic contractors and inspectors.
The development
of the certification/licensing framework was intended to increase the
technical competency of those who construct, approve and inspect septic
systems. By raising the level of knowledge and ensuring technical proficiency
by requiring each person to pass an MMAH-administered examination, the
ministry expects the result to be higher quality septic systems through-out
the province. By extension, this should also mean fewer negative impacts
on the natural environment associated with improperly installed systems,
reduced septic system failure rates over the longer term, an increased
ability for contractors and inspectors to identify and correct problems,
and more certainty for property owners when they engage qualified installers.
The winner of ECO’s recognition award for
2000-2001 will be announced in late September 2001.
c. MOE addresses Late Decision Notices
The ECO has repeatedly urged MOE to ensure
that decision notices are posted within a reasonable period after a
decision is made. In the spring of 2001, the MOE determined that there
were 1,200 Instrument Proposal Notices on the Environmental Registry
without Decision Notices. In many cases, the instruments had been issued
to proponents between 1997 and 2000. The Ministry has identified over
1,200 such instruments. Each of these instruments was originally posted
by the Ministry of the Environment.
On August 2 , 2001, the Ministry of the Environment
began to clear up this backlog of notices. In order to manage the impact
to residents that use the Environmental Registry to keep track of current
issues, these notices will be posted each Thursday afternoon and will
be clearly identified as an old file. The MOE has made a commitment
to the ECO that it will not allow a repeat of this situation.
D. Registry
Download Service
You may now obtain a complete copy of all
Environmental Registry notices for any given date. (This does not include
PDF or Word documents that are linked by hypertext links to the notices.)
You can use this information to create your own analyses and reports
organized by location, activity, or other determinant. You may download
the entire Registry for a particular date in two database formats (either
a zipped text file or a zipped Microsoft Access file). To access this
service, visit the ECO web site and follow the links.[149]
E. ECO Highlights of the Registry and
the MOE’s EA Branch Website
ECO staff prepare summaries of some Acts,
regulations, policies and instruments that are currently posted on the
Registry that you may find interesting. To access this service, visit the ECO web
site and click on the icon titled “What’s New”
IX. Proactive Strategies For
Effective Operations
The EBR is a complex law. The ECO
was established to assist the public in trying to use it. There are
services and information on the EBR that are available from the
ECO. For example, the ECO produces numerous publications, such as
fact sheets, that are available free of charge to the public.
With respect to proactive strategies and
minimizing delays for approvals on instruments proposals, the EBR
works best when companies undertake early consultations with the public
on proposals.[150]
Thus, the ECO encourages lawyers and company managers to consider how
early public input can help to reduce controversy about proposals and
the likelihood a third party appeal to an appeal body such as the Environmental
Review Tribunal.
The ECO also encourages lawyers and company
officials to review the provisions in the law with respect to mediation
and enhanced public participation. In our view, government and industry
officials and lawyers could be making better use of these provisions.[151] The ECO encourages ministries to draft guidelines
for enhanced public consultation on controversial instrument approvals.
Ideally, these guidelines should describe how the concerns of residents
would be documented, considered and addressed and how residents would
be kept updated on new developments. At a minimum, ministries should
routinely contact known interested parties as soon as long-awaited decisions
are made on controversial instruments. This would go beyond the minimal
requirement of Registry posting, but it would be good public service,
would not be very onerous, and might avoid more time-consuming adversarial
approaches such as appeals and applications. MOE is already proposing
to notify municipalities once waste management Cs of A. are approved[152]; local residents deserve such notification as well.
Finally, the Commissioner and his staff regularly
meet with industry representatives and environmental groups to discuss
their concerns about issues within the ECO’s jurisdiction. In addition,
our office has a network of business representatives and a network for
environmental groups.[153] These groups often make us aware
of their specific concerns about EBR implementation in the ministries
or other issues they think the Commissioner should be aware of, and
we then investigate them further.
X. Conclusion
The EBR is now more than seven years
old, and since the mid-1990s it has played an important role in promoting
transparent government decision making and accountability. The new
rights and responsibilities in the legislation require politicians,
policy-makers, lawyers, activists, and citizens to rethink the way they
look at environmental matters. The EBR enables Ontarians to explore
new ways to resolve environmental issues and to promote positive measures
like waste reduction, energy and water conservation, and green industry
development. Indeed, the legislation is designed to ensure provincial
government officials are fully accountable for the decisions they make.
It is clearer than ever that both careful
review and measured reform of existing environmental safeguards are
required. While the current climate of fiscal restraint may suggest
otherwise, environmental protection and sustainability are achievable
and necessary — necessary to retain what we currently enjoy and necessary
for future environmental quality as well as economic development and
competitiveness.
Transparent environmental decision making
and adequate opportunities for public input into environmental decisions
can help to ensure that environmental quality is safeguarded. The EBR
provides ministries in the Ontario government with some tools to achieve
these goals and to demonstrate their commitment to environmental protection.
Conversely, failure to provide the public with adequate information
and opportunities to review and comment on changes to environmental
protection will produce poorer results and will damage public confidence
in the government’s commitment to protecting the environment.
XI. Acknowledgments
The authors
gratefully acknowledge the valuable contributions to this paper by various
ECO staff including: Karen Beattie, Legal Analyst, Laura Shaw, Policy
and Legal Officer and Maureen Carter-Whitney, Policy and Legal Officer.
XII. Biographical Notes
David McRobert
is In-House Counsel and Senior Policy Advisor at the Environmental Commissioner
of Ontario. He joined the ECO in October 1994. David holds a BSc
(Biology) from Trent University (1980), and a Master’s degree in Environmental
Studies (MES) from York University (1984). He graduated with his LLB
from Osgoode Hall Law School (1987) and was admitted to the Ontario
Bar in 1990. He also is completing work on a Master of Law (LLM) thesis
at Osgoode Hall Law School.
David was a senior policy advisor in the
Waste Reduction Office in the Ontario Ministry of the Environment between
1991 and 1993. Before joining the MOE, he coordinated research and
advocacy on waste management and global warming at Pollution Probe from
1989 until July1991. David also has worked for the Workplace Health
and Safety Agency in Toronto, the Ontario Round Table on Environment
and Economy, the Ministry of Labour and the Ministry of the Attorney
General. In the past 15 years he has published numerous articles and
reports on a range of environmental issues, presented a number of conference
papers. For the past nine years he has taught a course on environmental
law and policy to undergraduate students in the Faculty of Environmental
Studies at York University. He also has taught environmental law in
the LLM program at Osgoode Hall Law School and in the Environmental
Studies program at the University of Toronto.
Catherine McAteer
is a summer student at the Toronto office of Fasken
Martineau DuMoulin LLP. She was seconded to the ECO in Summer 2001.
Catherine obtained
a degree in geological engineering in 1998 and will graduate from law
school at Queen’s University in May 2002.
Appendix 4
Examples Of Notices from
the Environmental Registry
Table 1: Registry Statistics, MOE Instrument
Postings
November 15,
1994 - December 31, 1997
Proposal Type
Quantity
EPA, s. 7
9
EPA, s. 9
4013
EPA, s. 10
9
EPA, s. 17
12
EPA, s. 18
35
EPA, s. 27
772
EPA, s. 31
1
EPA, s. 43
9
EPA, s. 44
4
EPA, s. 46
11
EPA, s. 136
2
OWRA, s. 31
15
OWRA, s. 32
8
OWRA, s. 34
953
OWRA, s. 52(6)
8
OWRA, s. 53(1)
179
OWRA, s. 53(3)
13
OWRA, s. 61
83
OWRA, s. 91
1
Pestcides Act, Reg. 914
27
Total Instruments
8,127
Table 1: EBR Implementation
Schedule [Based on Ont. Reg. 73/94
Ministry
Environment
and Energy
Nov. 15/94
Aug. 15/94
Nov. 15/94
Feb.1/95
Aug.15/94
Aug. 15/94
Natural Resources
"
April 1/95
April 1/96
April 1/96
April /96
April 1/96
Northern
Development and Mines
"
"
April 1/96
April 1/96
April 1/96
April 1/96
Consumer
& Comm. Relations
"
"
April 1/96
April 1/96
April 1/96
April 1/96
Municipal
Affairs
"
"
April 1/98
April 1/98
NA
NA
Agriculture,
Food and Rural Affairs
"
"
NA
April 1/96
NA
NA
Culture,
Tourism and Recreation
"
"
NA
NA
NA
NA
Economic
Development and Trade
"
"
NA
NA
NA
NA
Health
"
"
NA
NA
NA
NA
Housing
"
"
NA
NA
NA
NA
Labour
"
"
NA
NA
NA
NA
Management
Board Secretariat
"
"
NA
NA
NA
NA
Transportation
"
"
NA
NA
NA
NA
Ministry
of Energy, Science and Technology (proposed)
?
?
?
?
?
?
[1]Some sections in this paper are based
on the following conference paper: D. McRobert, “The Nuts and Bolts
of Ontario’s Environmental Bill of Rights: An Update”, Background
Paper for Environmental Law, Regulation and Management, Canadian
Institute Conference, Hotel Plaza II, Toronto, October 28 & 29,
1996. This paper is available from the author.
[2]Instruments include things such as permits, approvals, licences,
authorizations, directions or orders, that are prescribed by regulations
made under the EBR.
[3]As of August 2001, several corporations and individuals representing
corporate interests had made applications under the EBR for
reviews of particular laws and regulations which the applicants believe
are outdated or inappropriate.
[4] See
infra, p. 22.
[5]
The Energy portfolio of the former Ministry of Environment
and Energy was transferred to the Ministry of Energy, Science and
Technology after a Cabinet shuffle in early October 1997. For the
sake of clarity, the abbreviation MOE is used throughout this paper.
[6]At the end of April 1998, the EBR
began to apply to the Ministry of Energy, Science and Technology (MEST).
The change came about when the Ministry of Environment (MOE) filed
a new regulation (O. Reg. 179/98) amending O. Reg. 73/94, the General
Regulation under the EBR. The creation of MEST in October
1997 reflects the desire of the Ontario government to ensure that
the main goals of its energy policy -- to end Ontario Hydro’s electricity
monopoly and set up a competitive electricity market -- are achieved.
The current Minister of Energy, Science and Technology is the Honourable
Jim Wilson.
[7] These ministries
became subject to Applications for Investigation on April 1, 1996.
The MCBS is the new name (as of February 2001) for the Ministry of
Consumer and Commercial Relations.
[8]
Eva Ligeti was Ontario’s first Environmental Commissioner and
she was appointed in May 1994 for a five-year term. An Interim Commissioner,
Ivy Wile, was appointed for a three and a half month term on August
18, 1999. In December 1999, Gord Miller was appointed as the full
time Commissioner and he assumed his duties on February 1, 2000.
[9] For additional
discussion, see various essays contained in Gary Hawke (ed.), Guardians
for the Environment (1997). Wellington, New Zealand: Institute
for Policy Studies.
[10]
For further discussion, see ECO, “Independence, Accountability
and Transparency: The Role of the ECO,” Background Paper for Public
Participation and the Environment: Five Years of the EBR in Ontario,
February 15, 1999. Available on ECO’s web site.
[11]
For further information, see Eva Ligeti, Environmental Commissioner
of Ontario, Comments and Recommendations on Bill C-83, An Act to
Amend the Auditor General Act, Brief Presented to the Standing
Committee on Environment and Sustainable Development, House of Commons
of Canada, October 5, 1995.
[12]The position of Commissioner for Environment and Sustainability was created
by Bill 7 – Environment and Sustainability Statutes Amending Act,
2001.The Bill contained amendments to the Auditor General Act,
including Part 3, which allows for the appointment of a Commissioner,
sets out the terms and conditions of employment and duties, and describes
how reports will be made to the Legislative Assembly. The process
has been stalled, however, by a change in government shortly after
the bill was passed. In a personal communication with the author,
a source with the BC government said that they were awaiting word
and direction from the new administration: Personal Communication
to D. McRobert from Ted Shelton, Advisor in the BC Ministry of the
Water,
Land and Air Protection (WLAP), the successor to
Environment,
Lands and Parks, June 2001.
[13]
See Comments and Recommendations on Bill C-83, supra
note 3. Another relevant source is: Gary Hawke (ed.), Guardians
for the Environment (1997). Wellington, New Zealand: Institute
for Policy Studies.
[14]
In some cases, municipalities must seek an approval from a
provincial ministry and in these circumstances, certain aspects (e.g.,
the Registry posting requirements discussed below) of the EBR
may apply.
[15]
Consequently, indoor air quality is not captured under the
EBR. Indeed, the Task Force which presented the draft EBR
in July 1992 to the former Minister of the Environment, the Honourable
Ruth Grier, decided that the primary role of the EBR was to
protect the natural environment and that this included only open air.
The Task Force could not reach a consensus on indoor air. They recommended
further study to determine the best approach for dealing with indoor
air and suggested that it might require further consideration by government.
For the Task Force discussion, see Government of Ontario, Report
of the Task Force on the Ontario Environmental Bill of Rights: Supplementary
Recommendations (Toronto: Queen's Printer, 1992).
[16]For
additional information, see Government of Ontario, Doing Better
for Less: Introducing Ontario’s Business Plans (Toronto: Queen’s
Printer, May 1996). The business plans set out in this document illustrate
the dramatic changes that are under way in both the MNR and MOE, as
well as the other ministries prescribed for certain parts of the EBR,
such as the MCCR and the MNDM. The 1997 ministry business plans
are available on the Home Page for the Management Board Secretariat
and have been summarized in Registry postings. For critical comments
on the ministry business plans and comparisons between the Statements
of Environmental Values required by the EBR and the business
plans, see the ECO’s 1996 and 1997 annual reports, discussed infra.
[17] D. Estrin and J. Swaigen (eds.), Environment on Trial: A Guide to Ontario
Environmental Law and Policy, 3rd Ed. (Toronto: Emond Montgomery,
1993) at 796-97. The first edition of this book released in 1974 contained
one of the first comprehensive statements on the need for an EBR
in Ontario.
[18]Mich.
Comp. Laws Ann. 691, 1201-1207. For discussions of the MEPA, see:
J.L. Sax and R.L. Conner, “Michigan’s Environmental Protection Act
of 1970: A progress Report” (1972), 70 Michigan Law Review
1003-91; J. Sax, MEPA --Ten Years Later” (November-December 1980),
Michigan Environs 6; and D.K. Slone, “The Michigan Environmental
Protection Act: Bringing Citizen-Initiated Environmental Suits Into
the 1980s” (1984-85), vol. 12, No. 27 Ecology Law Quaterly
291.
[19]
P. Muldoon & R. Lindgren, The Environmental
Bill of Rights: A Practical Guide (Toronto: Emond Montgomery Publications
Limited, 1995) at 9-10.
[20] Government of Ontario, Report of the Task Force on the Ontario Environmental
Bill of Rights. (Toronto: Queen's Printer, 1992).
[21]W.M.
Glenn, “Ontario’s Environmental Registry: Plugging Into Your Rights,”
Occupational Health and Safety Canada, November/December 1995.
Glenn describes the recent evolution of environmental decision making
in the following terms:
Since the early 1970s, the dawn of the modern environmental era,
Ontario’s bureaucrats have quietly plotted their strategies in the
proverbial smoke-filled back rooms of the Ministry of Environment.
Almost every regulation, approval, order and prosecution was drafted
in private and then sprung fully-formed on a (largely) unsuspecting
public.
On occasion, a few “concerned stakeholders” — the usual faces from
the big industry associations and prominent environment groups — were
invited to voice their opinions and serve as a surrogate for wider
public consultation. And of course a proponent could always talk
to somebody in the approvals branch, or a polluter to an enforcement
officer. In recent years, the more momentous initiatives, such as
the 3Rs regulations or the industrial discharge standards, have received
a greater public airing.
But it wasn’t
until February, 1994, with the enactment of the province’s Environmental
Bill of Rights, that every member of the Ontario public was formally
invited into those (now smokeless) back rooms.
Glenn may be overstating the case. However, the general point is
well put.
[22]
Other Canadian environmental rights legislation includes Quebec’s
Environmental Quality Act, the Yukon’s Environment Act
and the Northwest Territories’ Environmental Rights Act. The
Quebec provisions, enacted in 1978, provide a limited right to go
to court and do not really provide a wide range of environmental rights.
Some concepts from the Yukon’s law were integrated into Ontario’s
EBR. In 1992, Alberta created its Environmental Protection
and Enhancement Act (EPEA) and this law provides expanded rights
to go to court to obtain injunctive relief and to seek damages: see
ss. 210 and 211 of the EPEA. In addition, Manitoba has adopted
new procedures guaranteeing public input into new regulations and
a systematic review of existing regulations. In late 1994 British
Columbia proposed an Environmental Protection Act (which would
have included an electronic registry) and in 1993 Saskatchewan proposed
a Charter of Environmental Rights and Responsibilities. Neither
the BC proposal nor the Saskatchewan bill was implemented. In addition,
the federal government amended the Auditor General Act in late
1995 to create a petition right that is similar to the right to apply
for a review contained in Ontario’s EBR. Moreover, a federal
Commissioner for the Environment and Sustainable Development
established under the auspices of the Auditor General reviews how
federal departments handle petition applications. In the summer of
1999, the federal government also revamped the Canadian Environmental
Protection Act 1) to establish new rights similar to those contained
in the EBR, and 2) create a federal Environmental Registry
for certain activities.
[23]
MOE practices varied widely. For additional background, see
Appendix 1.
[24]
For a selection of papers discussing environmental rights
in Europe, see: Martin Fuhr and Gerhard Roller (eds.), Participation
and Litigation Rights of Environmental Associations in Europe: Current
Legal Situation and Practical Experience, Vol. 1. (New York:
Verlag, 1991).
[25] For
example, the proceedings of a 1994 conference on environmental rights
held in Germany contain two paper which discuss Ontario’s EBR.
Sandy Walker, “Ontario’s Environmental Bill of Rights”, at 20-32;
and Paul Stein, “Citizen Rights and Litigation in Environmental Law:
An Antipodean Perspective on Environmental Rights”, at 271-280; In:
Sven Deimann and Bernard Dyssli (eds.), Environmental Rights: Law,
Litigation and Access to Justice (London: Cameron May, 1995).
[26]
Personal Communication, Sven Deimann, member
of the Environmental Law International Network, May 13, 1996.
[27]For further discussion on the Registry and how it is working,
see David McRobert, “Integrating Public Commentary And Participation
Into Environmental Decision Making: The Implications Of Ontario’s
Environmental Bill of Rights, 1993,” Paper For Presentation
To Legal Perspectives In Environmental Management, Society Of Environmental
Toxicology And Chemistry, SETAC ‘95 World Congress, Vancouver,
B.C., November 1995.
[28]42
U.S.C. para. 11001.
[29]
42 U.S.C. para. 13101.
[30]
N. Zimmermann et al., “Community Right to Know: Improving Public
Information About Toxic Chemicals” (1995), 5 Journal of Environmental
Law and Practice 95 at 97-8.
[31]
Using information available from a range of sources including
the US EPA’s TRI, this free service allows individuals to get information
on pollution loads and health hazards for 17,000 polluting facilities
in the US and covers more than 2,000 counties and every US state.
With a few clicks of a mouse, a user can find out which companies
are the top polluters and the types of chemicals they release. The
system uses a health-based ranking system so that toxic chemicals
are weighted and ranked in terms of severity of health hazards. (The
TRI and the National Pollutant Release Inventory in Canada have been
criticized by industry for failing to do this kind of weighting.)
For more information, see Environmental Defence Fund, “Giant Step
For Public’s Right-to-Know About Chemical Hazards,” Press Release,
April 15, 1998. Available on the Internet at http://www.edf.org
[32]The Pollution watch
site is linked to, and may also be viewed at, the following URL: http://www.pollutionwatch.org/home.jsp
[33]According
to Pollutionwatch, “the information about toxic chemical releases
that Environment Canada makes available to the public under NPRI is
always at least two years old, and it can be nearly three years old.
Part of the reason is that it takes Environment Canada a full year
to process the data, after it has received reports from all the facilities
that are required to submit them. Speeding this process up would give
the public a more up-to-date picture of pollution in each local area.
It would also have the advantage of giving credit more promptly to
those facilities that have reduced their pollution releases.” See
Pollutionwatch, http://www.pollutionwatch.org/home.jsp
Downloaded August 13, 2001.
[34]
The CEPA amendments were consistent with recommendations
made by the Standing Committee on Environment and Sustainable Development
in June 1995. See Government of Canada, Environmental Protection
Legislation Designed for the Future: A Renewed CEPA. Government Response
to Recommendations of the Standing Committee on Environment and Sustainable
Development In Its Fifth Report, It’s About Our Health! Towards Pollution
Prevention -- CEPA Revisited. (Ottawa: Ministry of Supply and
Services, December 1995).
[35]For
a recent review of environmental registry systems and databases in
Canada, the US and other jurisdictions, see: Toshi Takishita, Environmental
Registry Systems in Canada, the United States and Other Jurisdictions,
A Report Prepared for the Environmental Commissioner of Ontario, April
1997. Mr. Takishita did this report as a placement from Innis College,
University of Toronto.
[36]In its first three
years of operation, the Registry faced many problems. Many have been
resolved. Among them:
1. People still find technology intimidating. The Environmental
Registry requires access to a computer and a basic level of computer
skill. Overcoming this fear of new technology takes time and requires
enhanced education efforts.
2. The Registry pre-supposes familiarity with the Environmental
Bill of Rights, its legal definitions and processes. ECO publications,
including Ontario's Environmental Bill of Rights and You, have
attempted to address this in part by providing easy-to-read guides
to the legislation and to use of the Registry.
3. Responsibility for the Registry was initially shared among various
bodies. Section 121 (e) of the EBR envisioned the promulgation
of a regulation that would recognize a single person or body to "establish
and operate the Registry." The ECO pointed out that clarifying
roles and responsibilities for the Registry would make for greater
accountability and consistency in operating the system. In 1997,
the Ministry of Environment and Energy agreed to oversee both the
Registry's technical and administrative sides.
4. Some Registry users complained about the technical problems caused
by its inexpensive, off-the-shelf bulletin board program and the way
the system was implemented. This complaint should be addressed by
the new Internet based system.
[37] For a complete history of the development of the Registry, see D. McRobert,
“Nuts and Bolts 1998” available from the ECO.
[38]One concern with the upgrades was that some users with earlier
version browsers or low speed modems might have trouble accessing
the site. To address this, the Registry will still be compatible with
3.0 level browsers, 28.8 kbps modems and low resolution screens.
[39]This is a recent estimate by the author. In 1993, the MOE
estimated that it issued more than 120,000 approvals each year. However,
nearly 80,000 of these pertained to septic system approvals. With
the passage of Bill 152, the Services Improvement Act, in late
1997, these approvals were shifted from the EPA to the Building
Code Act and are administered by municipalities and delegated
organizations on behalf of the Ministry of Municipal Affairs and
Housing (MMAH). Thus, allowing for other changes in the work of the
MOE, the author estimates that MOE probably administers about 15,000
to 25,000 approvals, orders and other instruments each year.
[40]Under Reg. 681/94, the following MOE instruments
are classified as Class I instruments: most air approvals under s.
9 of the EPA; approvals under s. 46 of the EPA for use
of former disposal sites; and water taking permits under s. 34 of
the OWRA.
[41]
Under Reg. 681/94, the following MOE instruments issued under
the EPA are classified as Class II instruments: control orders
under s. 7; stop orders under s. 8; remedial measures under s. 17;
preventive measures under s. 18; orders to remove waste under s. 43;
approvals under s. 44 for waste sites and systems; orders related
to spills under s. 97 and orders about financial assurance under s.
136; most approvals for waste systems and sites under s. 27; approvals
under s. 10 programs; emergencies under s. 31; and directions under
s. 94 of the EPA for spills and clean-ups. The following MOE
instruments issued under the OWRA are classified as Class II
instruments: orders under s. 31 (sewage discharges), s. 32 (related
to impairment of water quality), s. 52(2) (related to water works
undertaken without approvals), s. 53(3) (sewage works undertaken without
approvals) and s. 92 (discharge of sewage into sewage works). In
addition, directions under ss. 52(3) and 52(6) (for water works undertaken
without approvals), s. 61 (sewage works to be kept in proper repair),
s. 62(2) (implementation of a MOE report), s. 91 (related to sewage
disposal), s. 34(7) (well leak), and most approvals setting limits
for discharges of specific contaminants under s. 53(1) are all Class
II OWRA instruments.
[42]
Under Reg. 681/94, the following MOE instruments
are classified as Class III instruments: waste systems and site approvals
under s. 27 of the EPA where a hearing is required by s. 30;
approvals for sewage works under s. 53(1) of the OWRA; and
approvals for public water or sewage service under s. 74(2) of the
OWRA.
[43]
For additional background, see the ECO’s recent brief to the
Wakerton Inquiry on the PTTW program: ECO, Ontario's Permit to
Take Water Program and the Protection of Ontario's Water Resources
- Brief to the Walkerton Inquiry, Jan. 2001. See: <www.eco.on.ca/english/publicat/index.htm>
[44]See, for example, Len Griffths and John
Nicholson, “Environmental Registry offers free and easy access to
the information highway”, The Lawyers Weekly, August 11, 1995,
p. 11.
[45]For the complete text of the Petro-Canada
Registry file, see Appendix 1 of D. McRobert,
“The Nuts and Bolts of Ontario’s Environmental Bill of Rights:
An Update”, Background Paper for Environmental Law, Regulation
and Management, Canadian Institute Conference, Hotel Plaza II,
Toronto, October 28 & 29, 1996.
[46]This
May 1995 proposal attracted comments from more than 531 people during
the 30-day comment period and another 548 letters after the comment
period had ended. In response to the public comments on the proposal,
the MOE carried out an extensive review of all available data and
relevant resources that went beyond the normal C of A application
review. The overwhelming public response to the Registry posting
prompted several meetings between representatives of the public, the
MOE, the City of Mississauga and Petro-Canada. However, the public
comments did not significantly change the terms of the certificate
that the MOE issued. As a result, a number of third parties appealed
the decision on this instrument, and were granted leave to appeal
on two issues in June 1996 (see the discussion of Third Party Appeals
below). The successful leave application then prompted the MOE to
negotiate some further amendments to the s.9 certificate; these changes
were posted on the Registry as an information item in early August
1996.
[47]Environmental
Commissioner of Ontario, Opening the Doors to Better Environmental
Decision Making: 1994/95 Annual Report of the Environmental Commissioner
of Ontario. (Toronto: ECO, 1996)
[48]
Requests to maintain confidentiality are
reviewed by the ministry and staff in its Legal Services Branch to
ensure they are valid.
[49]
The case arose in 1997 when Gay Lea Corporation applied for
approval to build a new emissions stack and the MOE posted a notice
of the C of A application on the Registry. A neighbour to the plant,
who has an interest in developments due to prior incidents, wanted
to comment on the posting and asked for the application itself (which
included expected emissions data). The Ministry told him to file a
freedom of information request.
The Ministry of the Environment’s Freedom of Information Office approved
the request; but Gay Lea appealed to the Information and Privacy Commissioner
(IPC). The Canadian Environmental Law Association acted for the resident
at the appeal. After a lengthy appeal, the IPC rejected the appeal,
ordered the release of the data and told the government it should
not require citizens to seek, through the FOI process, information
that should be readily accessible.
Theresa McClenaghan, CELA counsel told the
IPC in her submissions that "insisting on the use of FOI legislation
rather than directly releasing the application material was an egregious
process that threatened to circumvent the EBR. The EBR promises the
people of Ontario they will have an opportunity to comment on all
applications posted on the EBR Registry."
Adjudicator David Goodis of the IPC said,
in his appeal decision, that there is a compelling public
interest in disclosure and that "disclosure of relevant
information is crucial." His decision essentially instructs
ministries subject to the EBR not to tell members of the public
who want to comment on applications posted on the Registry to seek
the applications themselves through the Freedom of Information
and Protection of Privacy Act. The IPC agreed with CELA that insisting
people seek information through the FOI process would render the EBR
meaningless because, relative to the time it takes to process FOI
requests, EBR comment periods are short. The ECO intervened
in this case to assist the IPC in reviewing the EBR. Additional
background on the ECO intervention is contained in the ECO’s 1998
annual report at p. 195-96.
[50]Ontario Ministry of Environment and Energy, Responsive
Environmental Protection: A Consultation Paper and Responsive
Environmental Protection: Technical Annex (Toronto: Queen’s Printer,
1996).
[51]
Ontario Ministry of Environment, Better,
Stronger, Clearer: Environmental Regulations for Ontario (Toronto:
Queen’s Printer, 1997).
[52] In June
1997, the Ontario government enacted Bill 57, Environmental Approvals
Improvement Act. Section 2 of Bill 57 expands the powers of Cabinet
to make regulations exempting any contaminant, facility, person, etc.,
from any provision of the EPA or its regulations, and prescribing
conditions for such exemptions. Similar provisions are established
with respect to the Ontario Water Resources Act and the
Pesticides Act. In effect, Bill 57 enables Cabinet to create
a “deemed approvals” regime to replace the need for EPA and
OWRA certificates of approvals in certain cases. MOE calls
this “standardized approvals” and claims it will cut red tape and
lessen its workload. Some stakeholders have criticized this broad
approach to approvals as giving Cabinet too much power and discretion
to issue exemptions, and have raised concerns about uncertainty in
the decision-making process and the fairness of the resulting decisions.
[53] Ont. Reg. 101/94.
[54] Ont. Reg. 101/94, 102/94, 103/94, 104/94 and 105/94.
[55]MNDM
staff took more than 4.5 years to complete work on the regulations
that had to be promulgated under the Bill 26 amendments to the Mining
Act. MNDM staff advised the ECO in 1998 that their work was delayed
by central agencies because of concerns about the long-term implications
of the new financial assurance regime.
[56]
The MNR posted a preliminary proposal for a regulation in March
1997, but it was not well received. MNR staff undertook significant
changes to both the regulation and the text of the posted proposal,
and its proposal was re-posted in November 1997. The MNR is to be
commended for undertaking two notice and comment periods on its instrument
classification regulation. However, MNR’s delay in finalizing its
IC regulation has prevented Ontarians from using the EBR fully
with respect to MNR permits and approvals. For example, Ontario residents
have been unable to ask for reviews of older permits for aggregate
operations, or apply for investigations of contraventions related
to conditions of these permits because these types of instruments
are not yet prescribed under the EBR.
[57]
Ontario Ministry of Environment, Better, Stronger, Clearer:
Environmental Regulations for Ontario (Toronto: Queen’s Printer,
1997).
[58]
In 1996, the Ontario government enacted Bill 54, the Safety
and Consumer Statutes Administration Act. Among other things,
Bill 54 creates the Technical Standards and Safety Authority (TSSA).
In 1997, the MCCR delegated its responsibilities for administering
the Gasoline Handling Act and complying with the EBR
to the TSSA. The TSSA’s delegated EBR responsibilities include:
posting notices under Part II of the EBR, SEV consideration, and conducting
investigations under Part V.
[59]
For example, a company could apply for a variance from sub-section
4(5) of the Gasoline Handling Code. This sub-section requires that
a proponent install at a facility or on a tank vehicle shall be approved
in accordance with the requirements of the Code and the manufacturer’s
instructions, and shall be appropriate for the service for which it
is intended.
[60]Examples of MNDM instruments under
the Mining Act that must be posted for public comment include:
·
a proposal to lease surface rights under ss. 84(1) of
the Mining Act;
·
a proposal to grant permission to cut and use trees under
ss. 92(5) of the Mining Act;
·
a proposal to require changes to a mine closure plan
under ss. 142(2) of the Mining Act; and
·
a proposal for an order requiring the performance of
a rehabilitation measure from an accepted mine closure plan under
ss. 145(2) of the Mining Act.
[61] These instruments are only issued "...where,
in the opinion of the Director, an emergency situation exists by reason
of:(a)danger to the health or safety of any person;(b)impairment or
immediate risk of impairment of the quality of the natural environment
for any use that can be made of it; or(c)injury ordamage or immediate risk of injury or damage
to any property or to any plant or animal life,and the emergency situation
will be alleviated by the use, operation, establishment, alteration,
enlargement or extension of a waste disposal site, the Director may
issue a certificate of approval therefor without requiring the Environmental
Assessment Board to hold a hearing...."
[62]
As such, the MOE claims these instruments automatically fall
into section 29 (Emergency Exception) of the EBR, excluding them from
public consultation under section 22 of the EBR and any Leave to Appeal
provisions under section 38 of the EBR because a delay in issuing
this approval could pose a risk to the health and safety of the residents
in an affected municipality.
[63]
For example, in early 2000 the MOE posted a notice that it had granted
the Seguin Landfill site, which is approved for disposal of solid,
non-hazardous municipal waste an emergency certificate of approval.
According to the Registry notice, this site has been operating under
an emergency certificate of approval since June 10, 1999, serving
the Municipality of East Hawkesbury. The proponent has applied for
an extension to the current certificate of approval while long term
disposal options are being examined. A temporary approval is hereby
granted for one month. The owner and the municipality have been told
to look into other options.See EBR Registry Number: IA00E0039<
[64]
Environmental Bill of Rights Office, MOE,
The Requirements of the Environmental Bill of Rights for Prescribed
Instruments: Guide for Applicants (Toronto: EBRO, MOE, 1994).
[65]Ontario's Environmental Appeal Board
is created by provisions of the EPA, and its primary responsibility
is to hear appeals from decisions made by the Director. For instance,
where the Director issues a control order against a person, that person
may appeal any provision of that order to the Environmental Appeal
Board. In both the EPA and OWRA, the right to appeal
a Director's decision is extended to only the person named in the
approval or order; appellate rights are not extended to third parties
such as adjoining neighbours or public representatives. Prior to the
EBR, if a decision was appealed by an instrument holder or
project proponent, any third party could intervene and become a party
at the appeal hearing with the Board's permission. This informal
right was codified in section 47 of the EBR. A hearing by
the Appeal Board is a new (de novo) hearing and the Board may confirm,
alter or revoke the action of the director who is the subject matter
of the hearing. The EPA provides any party to a hearing with
the right to appeal aBoard's decision on a question of law to the Ontario Divisional
Court. Any matter other than questions of law may be appealed to the
Minister of Environment. The MOE receives a few of these appeals
each year.
[66]All
the prescribed ministries that existed as of November 1994 have had
to apply their Statements of Environmental Values (SEVs) since November
15, 1994 and have had to post proposals for new environmentally significant
policies and Acts on the Registry since April 1, 1995. The Ministry
of Energy, Science and Technology developed its SEV in 1998 and has
applied it since January 30, 1999.
[67]The current ministry SEVs are available for viewing and downloading
at the Homepage of the Environmental Bill of Rights Office of the
MOE: see www.ene.gov.on.ca/envision/ebr. A package containing the
original SEVs is available: see Environmental Commissioner of Ontario,
Ontario’s Environmental Bill of Rights: Statements of Environmental
Values for 14 Government Ministries. (Toronto: ECO, November 1994).
[68]Background information on the SEVs is contained in: Eva Ligeti,
Environmental Commissioner of Ontario, Overview of the Environmental
Bill of Rights, Paper Presented to New Rights and Remedies
Under the Environmental Bill of Rights, Canadian Bar Association
Continuing Legal Education Program, December 8, 1994.
[69]
In total only 57 separate submissions were received. After
the public comments were received, the Ministry of Environment and
Energy hosted a single two and one-half hour meeting of all the groups
and individuals who had commented on all SEVs (those whose comments
were specific to a ministry were not invited to this meeting). Based
on the written comments received and the oral presentation at the
SEV commenter's meeting, at least six common themes were found to
be running through the responses of all sections. These themes were:
1. The SEVs lacked clear indication of how
they will apply each purpose of the EBR as listed in subsections
2(1) and 2(2) to all decision-making processes that significantly
affect the environment.
2. They lacked a statement expressing each ministry's commitment
to a timely process of SEV review. In the ECO’s, this process must
be open and systematic, with interactive public consultations. The
Environmental Registry should be used in the ongoing process; draft
and redrafted SEVs should be posted on the Registry to allow for maximum
input from the public of Ontario.
3. They lacked a statement that each ministry will proactively
encourage public consultation and establish additional rights of public
participation as per clause 5 in subsection 8(3) of the EBR.
4. They lacked consistent definitions and terminology
across all ministries. Accordingly, the ECO has recommended that
if a particular ministry must use its own definitions of certain terms,
it should explain how its definitions differ from the shared meaning
of those terms.
5. They lacked clear statements which will permit verification
that decisions and actions taken by each ministry reflect, and are
consistent with, the values of the EBR. This is necessary
in view of the fact that clause 5 in subsection 58(2) of the EBR
requires that the ECO’s report to the Legislative Assembly contain
information on a ministry's compliance with its SEV.
6. They also lacked a clear explanation of how each ministry
will apply EBR values in its decision-making and policy-making
processes and they will integrate the purposes of the EBR with
other considerations, including social, economic, and scientific.
[70]
In sum, the ministries were provided with a 9-month period
in the EBR to develop their SEVs. In comparison, under Bill
C-83, the new federal legislation requiring federal departments to
prepare sustainable development strategies (SDSs), federal departments
were provided with two years to develop their SDSs.
[71]
This consultation process does not appear to have been a great
success. The ministries did not make a great effort to engage the
public. The public did not really get interested. So even though
some of the ministries sent out several hundred copies of packages
which included discussion papers and other material, only a handful
of people commented on the packages. The ECO reviewed some of the
problems with this process and the SEVs and commented on it in the
ECO’s first annual report released in June 1996.
[72]
Environmental Commissioner of Ontario, Opening the Doors
to Better Environmental Decision Making: 1994/95 Annual Report of
the Environmental Commissioner of Ontario. (Toronto: ECO, 1996).
The analysis, contained in the annual report and the supplement to
the report, examines the stated environmental values of Ontario ministries
and evaluates them in terms of specific criteria based on the EBR.
The report recommends that all of the ministries establish practical,
in-house action plans for managing environmental aspects of their
mandates. To enhance accountability, the report also suggests that
there should be measurable goals to help ministries track and report
on progress. The public’s ability to participate meaningfully, and
the success of the EBR, depends on the ministries’ willingness
to be accountable in this way.
[73]As reported in the 1997 ECO annual report, the ministries have responded by
stating that although these links are not always explicitly described
in their public business plans, consideration of their SEV commitments
form an integral part of their business planning process.
[74]EBR, s. 68.
[75]
EBR,
s. 66(1).
[76]
For a discussion of the EAA and
the EBR, see Part IV of this paper, infra.
[77]
The other prescribed Acts for Review Applications are: the
Aggregate Resources Act; the Conservation Authorities Act;
the Crown Forest Sustainability Act, the Endangered Species
Act, the Energy Efficiency Act; the Environmental Bill
of Rights; the Game and Fish Act; the Technical Standards
and Safety Act; the Lakes and Rivers Improvement Act; the
Mining Act; the Niagara Escarpment Planning and Development
Act; the Oil, Gas and Salt Resources Act; the Pesticides
Act; the Planning Act; the Provincial Parks Act;
the Public Lands Act and the Waste Management Act.
[78]
The other fourteen prescribed Acts for
Investigation Applications are: the Aggregate Resources Act;
the Conservation Authorities Act; the Crown Forest Sustainability
Act, the Endangered Species Act, the Energy Efficiency
Act; the Fisheries Act (federal); the Fish and Wildlife
Conservation Act; the Lakes and Rivers Improvement Act;
the Mining Act; the Oil, Gas and Salt Resources Act;
the Pesticides Act; the Provincial Parks Act; the Public
Lands Act; the Technical Standards and Safety Act and the
Waste Management Act.
[79]
In June 1997, the Minister of Agriculture, Food and Rural Affairs
tabled Bill 146, the Farming and Food Production Protection Act.
Bill 146 replaced the Farm Practices Protection Act, passed
in 1988. The Farm Practices Protection Act protected farmers
from nuisance lawsuits for odour, noise or dust resulting from normal
farm practices. Bill 146 extends the nuisance categories to include
flies, light, smoke and vibration, and contains other expanded protections
of farmers’ rights.In addition, under Bill 146 no municipal by-law can restrict a normal farm practice.
[80]This was confirmed by a recent Ontario
Court of Appeal decision: Pyke v. Tri-Gro (2001), OCA Docket No. C32764,
August 3, 2001. In the late 1990s, a group of homeowners on and near
Heron Rd. in the town of Whitby (they all live within about a mile
of the site) sued a mushroom producer called Greenwood Mushroom Farm
(GMF) in private nuisance. In 1993, GMF purchased its present farm
site on Heron Rd. for $1.1 million, and invested another $4.1 million
in capital improvements and equipment. Many of the neighbours in the
rural area had already owned their homes for some time - some as long
as 50 years - when GMF set up operations in what now looks like a
medium-size light industrial complex. At trial, one neighbour, who
had lived in her home for 41 years, said that in all her years on
the property she had never smelled anything "so dreadful, objectionable,
and repugnant" as the odour from the GMF. Another described the
odours as "decaying animals, cow manure, musty, rancid, rotten
shrimp or fish, putrid, overpowering, really obnoxious." After
a lengthy consideration of the purpose of the FFPPA, and the legislative
debates in which they were introduced, Justice Ferguson said that
the mushroom farm operators were aware of the potential effect of
the composting operations on neighbours and should not have started
composting in the area. He ruled that the protections available for
normal farm operations were not available to Greenwood. They far exceeded
accepted customs and standards established by similar mushroom farms,
he said, and GMF was not operating in a manner consistent with proper
and acceptable customs and standards of similar agricultural operations.
Justice Ferguson awarded $263,500 in damages,
divided up among 16 plaintiffs in amounts ranging from $10,000 to
$35,000. Based on his interpretation of the law, he concluded that
he did not have the power to grant an injunction to prohibit the composting
operation. In a 2-1 decision, the OCA upheld the
decision of Justice Ferguson. The Court also ruled that
applicants must first apply to NFPPB before they can launch anuisance action.
[81]
Braeker at al. v.The Queen et al., action filed in Otnario
Superior Court, Owen Sounds, July 27/1998, File no. 3332/98; Brennan
v. Board of Health for the Simcoe County Health Unit, action filed
in Ontario Superior Court, Barrie, July 16/1999, File no. 99-B222.
[82]
Sub-section 84(2) of the EBR states that an action may
not be launched unless an Application for Investigation has been submitted
and the plaintiff did not receive a response within a reasonable time
or has received a response that is not reasonable. An exception to
this rule is provided by sub-section 84(6) which states that ss. 84(2)
does not apply where the delay in complying (by preparing an Application)
would result in significant harm to a public resource.
[83]
This case is directly related to a series of Environmental
Appeal Board decisions on the Karge case: see Re: Karge (1996),
21 CELR (N.S.) 5 (Ont. Env. Appeal Board). In these two decisions,
the Ontario's Environmental Appeal Board ruled on the liability of
an innocent lender. Karge, a farmer living on a property adjacent
to Braeker, sold his farm to a young couple and took back a second
mortgage. The purchasers did not pay the mortgage, but they did devastate
the farm. They damaged the house, cut down the woodlot, sold off buildings,
and illegally brought in mounds of tires. A neighbour alerted the
MOE when there were 15,000 tires. The purchasers brought in another
15-20,000 tires during the time that the MOE visited the site and
wrote letters. The MOE then allowed the purchaser to bury the tires
on the farm, without notice to the mortgagee and over the neighbours'
objections. This appears to have raised the cost of removing the tires
from $30,000 to more than $140,000, more than the total value of the
farm. Shortly thereafter, the purchaser disappeared. To protect what
was left of the farm, the farmer incorporated a company to buy certain
rights from the first mortgage. Neither he nor the company formally
took possession of the farm, but he did (to keep the house insured)
put tenants on the property, at a net loss.
The MOE prosecuted the purchaser; a large fine was imposed, but not
collected. The MOE then ordered the farmer to dig up and dispose of
the tires. Karge appealed. In its decision, the Board agreed that
the farmer had "charge and control" of the farm, because
he had selected tenants, paid expenses and collected rent. However,
he was innocent, especially in contrast to the MOE. The EAB therefore
made a tentative ruling that the farmer should not be further victimised.
He does have to pay for removal of the tires from the site, but only
out of any net profits he may make from the land, after recovering
his mortgage. He would not have to pay to dig the tires up and clean
them.
The MOE tried to persuade the EAB to change this ruling. The Appeal
Board agreed to consider changing its ruling if the MOE would clarify
its policies regarding the open-ended liability imposed on mortgagees
for the payment of clean-up costs. Supplementary reasons were issued
in May 1997: see Re: Karge (1997), 23 CELR (N.S.) 299 (Ont.
Env. Appeal Board) In its supplementary reasons, the EAB found that
the MOE must act fairly when making these types of orders. The mortgagee,
Mr. Karge, is now appealing the EAB decision to the Divisional Court
in an attempt to have it overturned.
[84]
Rick Lindgren, CELA, Letter to the Dianne
Dougall, Director, Crown Law Office - Civil, Ministry of Attorney
General, January 30, 1998.
[85]
Roberta Avery, “Sterling Agrees to have
buried tires removed,” Toronto Star, March 17, 1998, p. A8.
[86] Specifically, the plaintiffs
claim that:
1) their property has experienced significant increases in the levels
of nitrates in their water supply;
2) that the level of phosphates, coliform and other microorganisms
in the ground and surface water on the plaintiffs’ property has increased
significantly;
3) that the pollutants have caused the Plaintiffs’ well water supply
and the ground water used by them and other landowners in the area
to become unsafe for human consumption; and
4) the pollution to the ground water has damaged the environment
and has reduced the value of the plaintiffs’ property.
[87]In
November 1998 the ECO received notice of the Braekers’ action against
the Ontario government and other parties and ECO staff posted a summary
of the claim on the Registry in early December 1998. In June 1999,
an issue arose related to the timing of the posting of the notices
of section 84 actions. Some parties, including the MOE, suggested
that a s. 84 notice is placed on the Registry only after the text
of the notice has been approved by the court. A number of commentators
who have written about the EBR have interpreted the provisions as
requiring that the ECO post a notice when the court action is first
launched. In July 1999, the ECO agreed to remove the Registry notice
for the Braeker action until this issue has been addressed by the
courts. The
December 1998 notice was removed and replaced by a new notice explaining
that the original notice was removed at the request of one of the
parties.
[88]
In September 2000, a Justice of the Peace in Hamilton convicted
the City of Hamilton for contravening the federal Fisheries Act. With
legal representation from the Sierra Legal Defence Fund (SLDF) and
investigative assistance from the Environmental Bureau of Investigation
(EBI), the private prosecution was commenced in 1999 by local resident,
Lynda Lukasik. The City of Hamilton was also convicted of violating
Ontario's Water Resources Act as a result of a separate charge relating
to the same contaminated site and laid by the Investigation and Enforcement
Branch (IEB) of Ontario's Ministry of the Environment. (MOE). The
City pleaded guilty to both of these charges and was fined $150,000
for the MOE charge and $300,000 for the privately prosecuted Fisheries
Act charges, for a total of $450,000 in fines. Pursuant to the mandatory
fine-splitting provisions of the Fisheries Act, one half the fine,
($150,000) was awarded to Lynda Lukasik who commenced the Fisheries
Act private prosecution.
The agreed statement of facts read into
Court established that during June, July and August, 1999, on six
separate days, PCB and ammonia contaminated leachate was discharged
into Red Hill Creek from the City's Rennie Street public works yard.
These discharges were acutely toxic to aquatic life and all of the
test animals were killed in lab tests. Red Hill Creek flows into Hamilton
Harbour which is a heavily polluted "Area of Concern" under
the Great Lakes Water Quality Agreement between Canada and the U.S.
Both ammonia and PCBs have been identified as contaminants of concern
in the harbour. For further information about this case, see the EBI
web site: <www.e‑b‑i.net/ebi/Hamilton/press_sep_00.html>
[89]As noted below, class actions provide a method for reducing
the financial pressures of litigation.
[90]Environmental Bill of Rights, S.O. 1993, c.28, s. 103. Section
103 provides the following:
(1) No person who has
suffered or may suffer a direct economic loss or direct personal injury
as a result of a public nuisance that caused harm to the environment
shall be barred from bringing an action without the consent of the
Attorney General in respect of the loss or injury only because the
person has suffered or may suffer direct economic loss or direct personal
injury of the same kind or to the same degree as other persons.
[91]
For an excellent summary of public nuisance law in Canada,
see Mario Faieta et al., Environmental Harm: Civil Actions and
Compensation. (Toronto: Butterworths, 1996); pp. 43-64.
[92]Environmental Bill of Rights, S.O. 1993, c.28, s. 103(2).
[93]A. Linden, Canadian Tort Law, 4th Ed. (Toronto: Butterworths,
1988) at p. 493.
[94]
In Attorney-General v. P.Y.A.
Quarries, [1957] 2 Q.B. 169 (CA), Romer L.J. stated:
...any nuisance is “public” which materially affects the reasonable
comfort and convenience of life of a class of Her Majesty’s subjects.
The sphere of the nuisance may be described generally as “the neighborhood”;
but the question whether the local community within that sphere comprises
a sufficient number of persons to constitute a class of the public
is a question of fact in every case. It is not necessary, in my judgment,
to prove that every member of the class has been injuriously affected...
(at p. 184).
Later he
states:
Some public nuisances (for example, the pollution of rivers) can
often be established without the necessity of calling a number of
individual complainants as witnesses. In general, however, a public
nuisance is proved by the cumulative effect which it is shown to have
had on people living within its sphere of influence. In other words,
a normal and legitimate way of proving a public nuisance is to prove
a sufficeiently large collection of private nuisances. (at p. 187)
[95]
British
Columbia (Attorney General) v. Haney Speedways Ltd. (1963), 39 D.L.R. (2d) 48 (B.C.S.C.).
[96]As
Faieta et al., supra note 56, points out at 55, these are uncommon
today. For a recent example, see Manitoba (Attorney General)
v. Flight Adventure Centres Ltd. (1983), 22 Man. R. (2d) 142
(Q.B.). This action was brought in the name of the Attorney General
by the Rural Municipality of Tache as relator.
[97]Fillion v. New Brunswick International Paper
Company [1934], 3 D.L.R. 22, 8 M.P.R. 89(S.C.C.). In the case, the plaintiff, a commercial
fisherman, complained the defendant’s mill polluted the waters of
Restigouche River, where the plaintiff conducted his fishing operation.
He claimed the resulting interference caused $2800 in damages. The
court ruled the licences granted to the plaintiff did not give him
the exclusive right to fish in any particular part of the river.
Therefore, he was considered a member of the general public. Furthermore,
because he did not own the dead fish the damage suffered by Fillion,
in comparison to the rest of the community was merely in degree, not
in kind. Because there was no difference in the quality of damage,
the action was dismissed. The court also held that the proper person
to bring such a case was the Attorney General, based on the information
of a plaintiff.
[98]Hickey v. Electric Reduction Company of Canada
Ltd, (1970) 21 D.L.R. (3d) (S.C. Nfld) at 369. The defence argued
the damages claimed were too remote in law. The court ruled economic
loss without direct damage is not usually recoverable by law. Thus,
the Hickey case indicated that interference with business from public
nuisance does not constitute a direct damage and therefore does not
meet the special damage requirement necessary to maintain a private
cause of action. Therefore, economic losses could not be recovered.
[99]Ibid.
[100] I.H.
Jacob, ed., Bullen and Leake and Jacob’s Precedents of Pleadings,
12th ed., (London: Sweet and Maxwell, 1975) at 768 defines
a relator action as “an action in which a relator tries by an injunction
to prevent any interfering with or infringing of a public right, to
stop a public nuisance or to force a public duty to be performed or
observed. The relator brings this action in the Attorney-General’s
name after obtaining leave to do so.”
[101](1983), 22 Man. R. (2d) 142 (Q.B.)
[102]There is no requirement to serve the ECO with a statement
of claim when commencing an action for public nuisance, therefore
there may be other EBR actions currently before the Ontario
courts that the office is unaware of.
[103]Grace v. The Corporation of the Town of Fort Erie et al., action filed in Ontario Court (General Division), Welland,
August 22, 1997, File No. 8684/97; Hollick v. the Corporation of
the Municipality of Metropolitan Toronto, action filed in Ontario
Court (General Division), Whitby, February 3, 1997, File No. 78604/97.
[104]
S.O. 1992, c. 6.
[105]
Under the legislation, the suits must be certified appropriate
by the court. If the action meets the test, notices are published
and people potentially identified as class members may identify themselves
to the plaintiff lawyer, or, for any reason, opt out of the class.
[106]
“Landfill suit can proceed,” Toronto
Star, April 1, 1998, p. B2.
[107] Hollick v. Metropolitan Toronto (Municipality) (1999), 32 C.E.L.R. (N.S.)
1 (O.C.A.) at para. 22.
[108]For the Court of Appeal decision,
see Hollick v. Metropolitan Toronto (Municipality) (1999),
32 C.E.L.R.S. (N.S.) 1 (Ont. C.A.)
[109]In October 1997, Jay Cotter commenced an action under the Class Proceedings
Act for a plastics fire that occurred on July 9, 1997 in the City
of Hamilton. The defendants included Plastimet and Plastimet’s owner
Jack Lieberman, the owner of the property Frank Levy, the Province
of Ontario, the former City of Hamilton, the former region of Hamilton-Wentworth,
and various tenants and former tenants of the building.
The fire began at Plastimet, a plastics recycling plant in the City
of Hamilton that stored polyvinyl chloride (PVC) and other recyclable
materials. The fire continued for four days causing devastation to
the property and releasing dioxins, acids, and other chemicals into
the air. Smoke from the fire was seen within a radius of at least
80 kilometres. Once it was extinguished, the property continued to
emit noxious odours and various toxic contaminants into the atmosphere.
Residents in the vicinity of the fire were evacuated and a voluntary
evacuation order was issued covering other areas of the City of Hamilton.
The incident resulted in contamination of the water, soil, vegetation
and land and premises in and around the property. Prior to the fire
in 1997, the company had been cited by the Hamilton Fire Department
with a number of Ontario Fire Code violations and at the time of the
fire had yet to install a sprinkler system and prepare a fire safety
plan.
In addition to bringing an action for negligence
against the defendants, the plaintiffs relied on public nuisance law
to support their claim. Although they do not refer to s. 103 of the
Environmental Bill of Rights explicitly, the plaintiffs claim
“that the owners of Plastimet, their servants, agents, or employees
brought substances onto the property which, if they escaped, would
cause interference with the enjoyment and use of neighbouring properties
and/or would cause injury to neighbourhood occupiers”.
The class
was certified after several amendments to the plaintiffs’ statement
of claim in October, 2000. The parties settled in May, 2001 for $3.9
million. Some 9,400 claimants who were living in a designated area
around the plant during the four-day fire will receive $200 each.
In addition, there is a contingency fund of $500,000.00 for extraordinary
or unanticipated claims and $850,000.00 for business losses. The claim
deadline for individuals wishing to identify themselves as members
of the affected class is the end of 2001.
[110]
If there is a public nuisance action, the ECO normally posts
a notice of it within a few days after receiving the plaintiff’s statement
of claim.
[111] EBR Litigation Rights Workshop Meeting Report. May 25, 2000. This issue is
presently before the Supreme Court of Canada in the Hollick
case.
[112]“The EBR Litigation Rights: A Survey of Issues and Six-Year Review” A
Background Paper for the EBR Litigaton Rights Workshop. May
25, 2000. Online: ECO website http://www.eco.on.ca/english/publicat/litigat3.pdf
[113]This section was taken from the background paper for the EBR Litigation
Rights Workshop held May 25, 2000. “The EBR Litigation Rights:
A Survey of Issues and Six-Year Review”. Online: ECO website http://www.eco.on.ca/english/publicat/litigat3.pdf.
[114]See Part VII of the EBR, section 104 to 116.
[115] See Environmental Protection Act, R.S.O. c. E. 19, s. 174.
[116] EPA, s.
186.
[117]
In 1998-99, the OLRB reported there were 87 new whistleblower
complaints and 50 complaints pending related to alleged non-enforcement
of OHSA. See Ontario Labour Relations Board, Annual Report
for 1998-1999 (Toronto: Queen’s Printer, 1999). Four applications
were granted, 61 were settled, 17 were dismissed, and 11 were postponed
indefinitely during the OLRB reporting period. The remaining complaints
are pending for the year 1999-2000.
[118] Canadian Environmental Protection Act, R.S.C. 1985 c. 16 (4th Supp.), s. 37(4).
[119]There are a number of employer reprisal provisions in the new CEPA. See,
for example, Canadian Environmental Protection Act, S. C. 1999,
section 16.
[120]
Kraan v. Custom Muffler Ltd. (1985), O.L.R.B. Reports, October 1985,
1461.
[121]
Mohindra v. Bakelite Thermostats Ltd.,
[1990] O.L.R.B. Rep.; and Allan Marshall and Varnicolour Chemical
Ltd. (Re), 1991, O.L.R.B. Special Report, p. 711. In Mohindra,
the company was ordered to pay the complainant full compensation for
all earnings lost between the date he was fired and the date he obtained
new employment.
[122]
Duxbury & Valliancourt Construction Ltd.
(Re) (1995), 18 C.E.L.R. (N.S.) 49. In this case, a loader operator
was laid off and replaced by an employee with more seniority but less
experience as an operator. Some time later, the complainant told
an MOE investigator that he had buried tanks for his employer. The
employer was later charged and convicted of related environmental
offences. Before his trial, the owner of the company told the complainant
that future work would depend on what happened at trial. The complainant
brought a s. 174 complaint to the OLRB. The application was dismissed
by the OLRB because there was no employment relationship at the time
the complainant gave his statements to the MOE investigator. For
further discussion, see Ramani Nadarajah, “Whistle Blowers: Seasonal
Employees and Their Rights Under the EPA,” Intervenor,
September/October 1995, p. 4,8.
[123]
Armtec Inc. (Re), April 12, 1990, unreported (O.L.R.B.).
[124]
Ontario Labour Relations Board, Annual Report for 1992-1993
and 1993-1994 (1995). Toronto: Queen’s Printer.
[125] The Code also works to prevent disputes between various other actors in Ontario
society (e.g., tenants and landlords).
[126]Marcia Miceli and Janet P. Near, Blowing the Whistle (Boston: Lexington
Books, 1992).
[127] R.S.O.
1990, c. E.18.
[128] R.S.O.
1990, c. I.13. This law expired on March 31, 1996 and the Ontario
government decided not to extend the Intervenor Funding Project further.
[129]
The amendments to the EAA in Bill 76 changed the name
of these documents (for exemptions issued after January 1, 1997) to
“declarations” instead of exemption orders and regulations.
[130]The following decisions made under the EAA are subject
to applications for review:
1. A regulation for an exemption order made after November 15, 1994
under s. 29 of the EAA (before the EAA was amended by
Bill 76).
2. A declaration order made under section 3 of Bill 76, which amends
the EAA. The Bill 76 amendments began to apply after January
1, 1997. A declaration order is an order issued by the Minister of
theEnvironment
which allows an undertaking or class of undertakings to proceed without
an environmental assessment. These orders were previously known as
exemption orders.
3. A designation of a private undertaking under the EAA is
subject to review whether or not the designation regulation was issued
before or after November 15, 1994.
4. A prescribed instrument such as section 27 waste site approval
that was issued to a proponent as part of a decision to implement
an approval under the EAA, whether or not that instrument was
issued before or after November 15, 1994.
The following
decisions are not subject to applications for review:
1. Most approvals or decisions made under the EAA by the
minister such as a denial of a bump-up request. [A bump-up request
is used where an undertaking is subject to a class environmental assessment.
Under the EAA, a person may request that the Minister of the
Environment “bump-up” the undertaking to a full environmental assessment.]
These decisions and approvals are not prescribed instruments and
I would suggest that they cannot be characterized as policies under
the EBR. Thus, they are not caught under the EBR.
2. Decisions on the need for a new exemption under the EAA.
3. Any approvals or decisions issued under the EAA if issued
on or before November 15, 1994 if the approvals involve:
- an individual
undertaking
- a class
of undertakings
- an individual
exemption.
[131]
Regulations under the EAA, including exemptions for
undertakings, are subject to Investigation Applications even if made
prior to the phase-in date for Applications for Investigation (ie.
For MOE, this date was August 31, 1994). As with Applications for
Review, prescribed instruments (Classes I, II or III) arising from
EAA approvals will be subject to Applications for Investigation
despite having been excepted from the process of Part II of the EBR.
Conditions attached to the approval of an EA that are not met will
not be subject to an investigation unless they involve a prescribed
instrument. There is nothing which prohibits an Investigation concerning
a prescribed instrument related to an EA approval which predates the
phase-in date for Applications for Investigation
[132]
The Ontario government claims that some of the benefits of
the new legislation include the following: 1) a full environmental
assessment will still be required; 2) the public’s right to say early
in the process will be ensured; 3) strict timelines will be imposed
up front for all key steps in the decision-making process; 4) Ontario’s
EA process will be harmonized with federal EA rules; and 5) the role
of Class EAs in the EA process is clarified.
[133]
See Proposed Timelines Regulations Related to Bill 76, MOE’s
EACIA. Date posted on Registry: July 22, 1997. (Registry #
RA7E0010.P)
[134]
For example, the appeal body for decisions on instruments
under the Environmental Protection Act is the Environmental
Review Tribunal.
[135] In
late 2000, the Ontario Government enacted the Environmental Review
Tribunal Act. This Act slightly altered the powers of the Board and
changed the name to ERT.
[136]
Since the Petro-Canada leave to appeal
application involved appeals of two instruments, it is counted as
two applications by the ECO, although several individuals were requesting
the appeals.
[137]The
leave applicants faced two opposing parties: the Legal Services Branch
of the MOE, whose role it was to defend the decision of the Director
to grant the certificate of approval, and the instrument-holder, Petro-Canada,
which was defending the terms of the certificate of approval. They
guessed that the appeal would involve a hearing before the EAB that
could last for months, with expert witnesses that would need to be
examined and cross-examined by lawyers for the various parties to
the application. Since the test for leave to appeal under the EBR
is so stringent, lawyers for the MOE and instrument-holders knew that
they must take any appeal seriously, because appellants have a serious
case to meet, in order to be granted leave to appeal. Frequently,
respondents in an appeal resort to tactics that can stall a hearing
and run up the applicants’ legal bills.
Three of the five original applicants filed appeals of the certificate
of approval with the EAB (the other applicants dropped out of the
proceedings). Greenpeace joined forces with Sierra Legal Defence
Fund (SLDF), a non-profit environmental advocacy organization that
provides free legal services to citizens and groups with environmental
concerns, and a citizens’ group applicant, Residents Against Company
Pollution (RACP), hired a private law firm to represent it. One individual
applicant continued to appear on her own behalf. Petro-Canada was
represented by a large Toronto law firm.
In the time between the granting of leave to appeal and the commencement
of the actual appeal hearing, the respondents brought seven procedural
motions, each of which required appearances by counsel, and some of
which required expert affidavit testimony. In addition, there was
a huge amount of correspondence among all the lawyers, and some attempts
at negotiating a settlement. These proceedings were extremely costly.
Indeed, RACP ran out of money shortly after the hearing began and
had to let their lawyers go. Some of the members of RACP continued
to be present at the hearing, unrepresented by legal counsel, but
were certainly not as effective as they had been with counsel. Luckily,
Greenpeace was able to obtain funding from the Greenpeace Charitable
Foundation to pay for the scientific research and detailed evidence
necessary to support their case, since SLDF did not have a budget
for this. One of the experts testifying for Greenpeace had to be
flown in from California. He gave affidavit evidence on sulphur dioxide
emissions that turned out to be crucial in the final terms of settlement
between the parties.
The hearing itself began on November 28, 1996 and lasted 19 days,
before the parties and the EAB finally agreed to a settlement. The
hearing had been scheduled to continue for ten more days, had it not
settled. During the hearing, the EAB heard testimony from expert
witnesses describing the potential environmental impacts of Petro-Canada’s
manufacturing processes.
[138] Among
the terms of this settlement, Petro‑Canada has committed to
do the following:
1. Make modifications to its facility to reduce sulphur dioxide (SO2)
emissions during normal operations by directing the Sour Water Stripper
Overhead through the Sulphur Recovery Unit (SRU). These modifications
will mean that emissions from the SRU stack are between 20 to 65
grams per second, and that the SO2 concentration at a point
of impingement is 158 micrograms per cubic metre or less.This level
will be significantly below the regulatory limit of 830 micrograms
per cubic metre.
2. Restrict the burning of bunker oil as fuel for the
boilers in the existing facility; the sulphur level of the oil will
not exceed 1.75%.
3. Control and minimize SO2 emissions during
abnormal operating conditions by developing procedures for the timely
correction of upsets that lead to the discharge of SO2
into the environment, and install an alarm to indicate SO2
concentrations in excess of 158 micrograms per cubic metre.
4. Report on the status of SO2 emission
controls to the Public Liaison Committee.
5. Provide $250,000 in funding for research into airshed
management.
[139]The applicants for leave included: L.R.L. (Ric) Symmes (representing
the Federation of Ontario Naturalists), Wendy Moore (representing
the Federation of Ontario Cottagers’ Association), Manfred Koechlin
(representing the Quinte Watershed Cleanup), Eileen Conroy, Charles
Potter, Pat Potter, Maureen Reilly, Wilgard Schiffers, Abby Shukster,
and Myrna Wood.
[140]
In December 1993, MOE signed a five-year letter of agreement
with Domtar’s pulp mill in Trenton, permitting the use of its black
liquor as a dust suppressant on rural roads. The letter of agreement
assumed that Domtar would soon undertake a major plant expansion,
including a new recovery boiler which would use up the black liquor
as fuel. This plant expansion did not occur, and instead, the plant
approximately doubled its production of black liquor. The mill now
produces nearly 100 million litres of this waste material each year.
Domtar called the material “Dombind” and offered it free to about
70 rural municipalities in the region.
Dombind is water soluble, and according to MOE’s application guidelines,
should not be applied within 50 metres of a waterway to prevent toxicity
to aquatic life. The ministry received complaints that the spreading
trucks were not staying far enough away from rivers and creeks.
There have also been numerous complaints over the past five years
about the smell, look and stickiness of the material. A number of
townships stopped using the material, citing environmental concerns.
The World Wildlife Fund launched a campaign against the spreading
of Dombind onto roads, and urged MOE not to renew its letter of agreement
with the company.
Then in December 1998, three former Ontario ministers of the Environment
(Bradley, Grier and Harry Parrot, 1979-82) jointly signed a letter
urging the current Minister of the Environment to end the practice
of spreading this material on roads.
Shortly afterwards,
the MOE announced that it intends to phase out the practice over the
next two years, because the company was producing increasing amounts
of the material and because of potential for long-term environmental
impairment. In early 1999 the company said that the decision to not
allow the spreading of its black liquor on rural roads threatens the
future of its Trenton mill, including as many as 140 local direct
jobs and 300 secondary jobs, because of the added cost of managing
this waste.
On March 22, 1999, Domtar announced it was going to sue the environmental
group, WWF, that had made allegations against Dombind for libel and
slander. The groups said that sticky, brown liquid is toxic. The
three former environment Ministers were named in the suit.
[141]
Some
of the conditions agreed upon include:
Ø
Dombind
containing greater than 5 parts per million (ppm) of polychlorinated
biphenyls (PCBs) shall not be applied as a dust suppressant.
Ø
Dombind
shall not be applied to any point which is within 50 metres of any
water including a spring, lake, pond, reservoir, marsh, bog, fen or
area of standing water or watercourse (including an artificial watercourse
and an intermittent watercourse)
Ø
Dombind
shall not be applied to any point that is within a minimum of 15 metres
of a water well.
Ø
Dombind
shall not be applied in such a manner that could result in its deposit,
either directly or indirectly, into waters frequented by fish.
Ø
Dombind
shall not be applied to a dust suppression site(s) during rainfall
or snow events.
Ø
Dombind
shall only be applied to dust suppression site(s) between April 15
and October 31 of any year.
[142]In May 1996, the Environmental Appeal
Board (as it then was) released new rules of practice and guidelines
for evidence. One of these rules related to applications for leave
to appeal under the EBR, and addresses some of the problems and issues
raised by the first five applications. Rule 14 of the May
1996 rules addresses a number of procedural matters relating to appeals
under the EBR.. Some of the sub-rules re-state what is set
out in the EBR and its regulations. Issues addressed in Rule
14 include:
· how appeals will be made (in writing, unless the Board directs otherwise)
· faxed communications are acceptable, where feasible
· service and filing of leave to appeal applications on the Environmental Commissioner,
Director and instrument holder
· the contents of the application for leave and any additional information required
· evidence required for leave applications
· how the Director and instrument holder may respond
· how delay in filing responses must be handled, including giving the applicant
an opportunity to respond
· how the Board will make its decisions within the legislated deadline,
and the process where it is unable to do so because of unusual circumstances
These provisions have been incorporated into the revised Rules and
Practice Directions that were released by the merged Environmental
Assessment and Appeal Board in October 1998.
[143]The ECO reviews all instrument decisions where the public
has made comments to determine whether the ministries have considered
the public comments.
[144]
In the first annual report, the Commissioner
recommended that all ministries continue to improve the quality and
value of the information posted on the Registry by clearly and accurately
summarizing proposals, giving enough information, identifying additional
public consultation opportunities and explaining how comments affected
the decision.
[145]
Environmental Commissioner of Ontario, Implementing the
Environmental Bill of Rights: Environmental Registry Notice And Comment
Procedures: A Guidance Document. (Toronto: Environmental Commissioner
of Ontario, August 1996).
[146]
Environmental Commissioner of Ontario, Implementing the
Environmental Bill of Rights: Exceptions. A Discussion Paper.
(Toronto: Environmental Commissioner of Ontario, November 1997).
[147] In the document, the Commissioner recommends that ministries take these four
steps to help achieve the goals of the EBR:
Step 1: Determine if a potential decision is environmentally
significant
Step 2: If it is, develop a proposal considering the ministry’s
Statement of Environmental Values (SEV)
Step 3: Determine if the public should have an opportunity to
comment on the proposal
• Is the proposal prescribed for public comment under the EBR?
• For policies and Acts, does the minister or his/her delegate
believe that the public should have an opportunity to comment on the
proposal before implementation?
• Do any of the exception provisions of the EBR apply?
Step 4: Provide public notice of the proposal or exception if
required by the EBR
• If none of the exception provisions apply, provide notice
of the proposal and the opportunity for public comment on the Environmental
Registry and by any other means as required by the Environmental
Bill of Rights.
• If the proposal is an emergency or equivalent public participation
exception, provide notice of the exception to the public and the Environmental
Commissioner on the Environmental Registry and by any other means
as required by the EBR.
• If the ministry decides not to post the proposal for public
comment, and there is no requirement to post as an exception notice,
then consider whether an information notice should be posted.
[148]
Environmental Commissioner of Ontario, Implementing the
Environmental Bill of Rights: Exceptions. A Guidance Document.
(Toronto: Environmental Commissioner of Ontario, June 1998).
[149]This service, established in
February 2001, is provided by the ECO for research and information
purposes only. The official version of the notices is available on
the Registry site maintained by the MOE at www.ene.gov.on.ca/envision/ebr.
All attempts have been made to ensure that the information provided
by this service is accurate and up-to-date.
[150]
Len Griffths and his colleagues at Tory, Tory, Deslauriers
& Binnington made the following comment in early 1996:
Under the EBR ... a business can benefit from involving members
of the public at an early stage of new projects. This should improve
your chances of obtaining necessary permits and approvals for a project,
because those members of the public who will be most directly affected,
and who will likely receive notice of your project in the EBR’s
Registry, will already be involved. Indeed, they may have become
your allies (neutrality is a more modest and achievable goal).
SeeLeonard
Griffiths, Cara Clairman and John Nicholson, Tory, Tory, Deslauriers
& Binnington, “Environmental Bill of Rights: Ramifications for
Companies.” Paper presented to the Canadian Institute, January
31, 1996. Toronto, Ontario.
[151]
On this point, see Janet Bobechko, “New Approaches to Old Problems
- Settling Environmental Disputes: What Does Mediation and Arbitration
Offer?,” Paper for Canadian Bar Association, 1996 Institute of
Continuing Legal Education, Changing Environments: A Practical Guide
To Recent Developments, January 27, 1996.
[152]See ECO-LOG
Week Vol. 26, No.25, June 26, 1998; p. 2: “Ontario seeks
to counter claims by coalition report” “The MOE maintained that it
is working to improve notification procedures to municipalities.
It said it will continue to follow its current policy of circulating
applications received for waste management C.s of A. to municipalities,
and will enhance this policy by sending a second notification once
the application has been approved. The Ministry also plans to add
a provision pertaining to facilities that will come under a waste
management Standardized Approval Regulation, requiring the facility
owner to notify the municipality prior to the startup of new operations.”
[153]
The ECO Business Network includes representatives of many of
Ontario’s largest industries including the Canadian Chemical Producers
Association, the Canadian Manufacturers Association, the Ontario Forest
Industries Association, the Ontario Mining Association, and the environment
industries sector. The ECO’s ENGO network has representatives of more
than 20 different public interest groups in Ontario.
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