A. Chachula

The appellant First Nation appealed a costs decision of the Environmental Review Tribunal, arguing that the Tribunal erred by failing to apply the 'polluter pays' principle and by not considering the appellant's First Nation status when assessing whether the respondent's conduct was unreasonable.

The Divisional Court dismissed the appeal, holding that under section 17.1 of the Statutory Powers Procedure Act, costs are only awarded for unreasonable, frivolous, or vexatious conduct.

The Court found that the 'polluter pays' principle does not apply to costs considerations and that the Tribunal reasonably concluded the respondent's conduct in defending the appeal was not unreasonable.

The appellants appealed an Ontario Municipal Board (OMB) decision approving official plan and zoning by-law amendments for a proposed limestone quarry.

The appellants argued the OMB breached procedural fairness during a partial re-hearing and misapprehended evidence regarding at-risk turtles and noise levels.

The Divisional Court dismissed these grounds, finding the appellants had consented to the re-hearing process and that the OMB's evidentiary findings were reasonable.

However, the Court granted the appeal on one issue, finding the OMB erred in law by proposing noise mitigation measures that might require access to private lands without evidence of feasibility, and remitted that issue to the OMB.