The Nuts, The Bolts And The Rest Of The Machinery:
A Guide To And Update On Ontario’s Environmental Bill of Rights

Background Paper for Presentation to:

Environmental Law 2001: New Developments and
Current Issues to Comply in Today’s Environment

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


I.     Introduction

II.   History of the Environmental Bill of Rights

III.  Nuts and Bolts of the EBR

a. What You Need to Know About The Registry
b. Exceptions
c. Instrument Holder Appeals and Company Obligations
d. The SEVs
e. Applications for Review
f. Applications for Investigation
g. Right to Sue for Harm to a Public Resource
h. Public Nuisance
i. Whistleblower Rights

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:

1. Establishing an Environmental Registry, and allowing members of the public to comment on environmentally significant new laws, regulations, instruments and policies;

2. Allowing residents to launch third party appeals of decisions about prescribed instruments[2];

3. Allowing residents to submit Applications for Review of environmentally significant laws, policies and instruments to prescribe ministries;

4. Allowing residents to submit Applications for Investigation of contraventions of prescribed Acts, regulations and instruments to prescribe ministries;

5. Establishing a new right to sue if someone is breaking a prescribed law, or is not following the terms of a prescribed instrument and is thus causing significant harm to a public resource;

6. Modifying the standing rules to allow residents to sue in public nuisance if they experience environmental harm; and

7. Creating protection from employers reprisals for employees who use the processes of the EBR or seek to protect the environment. 

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:

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,, 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 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

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.


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  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
(as amended by Ont. Reg. 482/95)]


Statement Of Environmental Values Proposals For Policies and Acts Proposals For Regulations &Instruments Application For Review Application For Investigation Court Action

Environment and Energy

   Nov. 15/94

Aug. 15/94

 Nov. 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



Agriculture, Food and Rural Affairs




 April 1/96



Culture, Tourism and Recreation







Economic Development and Trade




























Management Board Secretariat














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

[32]The Pollution watch site is linked to, and may also be viewed at, the following URL:

[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,  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: <>

[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 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‑>

[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.  


[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

[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

[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 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.