Environmental Law

Electrolux Home Care Products Canada Inc. brought a motion to be added as a Party to an appeal regarding a Certificate of Property Use issued for a neighbouring property.

Electrolux is a defendant in related civil proceedings concerning historic contamination.

The Director and the City opposed the motion.

The Tribunal found that Electrolux had a genuine interest in the proceeding because the issue of historic contamination was relevant to both the Tribunal appeal and the civil proceedings.

The Tribunal granted Electrolux Party status, limited to providing evidence and submissions on the specific issue of historic contamination, and required it to shelter under the appellants' issue without altering the existing procedural schedule.

At a Case Management Conference regarding an appeal of a conditional approval for a development permit under the Niagara Escarpment Planning and Development Act, the applicants for the permit sought and were granted party status on consent.

The president of the condominium corporation withdrew his request for party status, agreeing to participate as a witness instead.

The parties discussed the issues, including driveway location and drainage, and agreed to review revised development plans before scheduling a subsequent Case Management Conference.

The Ontario Land Tribunal held a Case Management Conference regarding an application for a Class 'A' license to permit the operation of a quarry above the groundwater level.

The Tribunal scheduled a further Case Management Conference for January 12, 2024, and a five-day hearing commencing April 29, 2024, both to proceed by video.

The moving parties sought costs against the Township of Clearview following the Township's withdrawal of its appeals regarding a development permit application and a Niagara Escarpment Plan amendment.

The moving parties argued that the Township's conduct, which included multiple adjournment requests and a failure to properly classify the environmental assessment, was unreasonable, frivolous, and vexatious.

The Township argued that the Tribunal was functus officio following the withdrawal.

The Tribunal held that it retained jurisdiction to award costs but dismissed the motions, finding that the Township's conduct did not meet the high threshold required for a costs award under the Tribunal's Rules of Practice and Procedure.

The appellants appealed a Director's Order regarding sewage works at a decommissioned industrial site intended for redevelopment.

The parties reached a settlement on the appellants' motion for an interim stay.

The Tribunal ordered that specific items of the Director's Order be stayed pending the disposition of the appeal on its merits, while other items remain in effect, and scheduled a Case Management Conference.

The Applicant sought leave to appeal the Director's decision to issue an Environmental Compliance Approval for a hot-mix asphalt plant to operate in conjunction with an existing quarry.

The Applicant argued the decision was unreasonable because the Director failed to properly consider the Statement of Environmental Values, cumulative effects, common law rights, and applicable guidelines.

The Tribunal found that the Applicant failed to demonstrate that no reasonable person could have made the decision, as the Director appropriately considered the relevant studies, policies, and mitigation measures.

The application for leave to appeal was dismissed.

The Ontario Land Tribunal issued a procedural order to govern the proceedings leading up to a 9-day video hearing scheduled to commence on April 9, 2024.

The appeal concerns a Director's Order issued under the Environmental Protection Act requiring work to prevent, decrease, or eliminate an adverse effect from a contaminant.

The procedural order sets out deadlines for disclosure, witness lists, witness statements, expert meetings, and the filing of a hearing plan.

The South Bracebridge Environmental Protection Group appealed the Town of Bracebridge's approval of an Official Plan Amendment and Zoning By-law Amendment to facilitate the development of a private school complex.

The Tribunal found that the proposed development is consistent with the Provincial Policy Statement and conforms with the applicable Official Plans, provided that the minimum buffer for wetlands and watercourses is increased from 15m to 30m.

The Tribunal also required the inclusion of a holding symbol that can only be lifted after site-specific environmental impact statements, including comprehensive amphibian and bat surveys, demonstrate no negative impacts on significant wildlife habitat.

The appeal was allowed in part to implement these amendments.

At a case management conference regarding an appeal of a Director's Order under the Environmental Protection Act, the Tribunal considered requests for party status from Electrolux Home Care Products Canada Inc., Florence Lane Residents Group Inc., and the City of Guelph.

Finding that all three entities had a genuine and direct interest in the proceeding and would assist the Tribunal, party status was granted to each.

The parties also provided an update on settlement discussions and a subsequent case management conference was scheduled.

The Tribunal convened a status hearing regarding the referral of the Minister's proposed transfer of two aggregate licences.

The proposed transferee requested direction on whether the parties' experts were required to meet at the subject lands to prepare a Statement of Agreed Facts.

The Tribunal declined to compel the parties to meet on the lands.

The appellant raised concerns about a late-filed witness statement from the proposed transferee that improperly included a confidential, without-prejudice settlement offer.

The Tribunal ordered the proposed transferee to file a revised witness statement removing the confidential letter and any references to it, and accepted the revised statement as reply evidence.

The applicant appealed the Township's failure to make a decision on a Zoning By-law Amendment application to permit an aggregate pit on prime agricultural land.

Prior to the hearing, the parties reached a settlement endorsing the application.

Based on uncontroverted expert evidence in land use planning and air quality, the Tribunal found the amendment consistent with the Provincial Policy Statement and in conformity with the Growth Plan and applicable Official Plans.

The Tribunal allowed the appeal in part and amended the Zoning By-law to permit the extraction operation subject to a holding symbol and rehabilitation requirements.

The Ontario Land Tribunal held a second Case Management Conference regarding an appeal by 2374868 Ontario Ltd. against the Township of Puslinch's failure to make a decision on a zoning by-law amendment application.

The amendment sought to permit a vacuum truck soil and aggregate transfer and processing facility.

The Tribunal granted participant status to three individuals, directed revisions to the Joint Issues List to remove duplicative or non-jurisdictional wording, and scheduled a 12-day video hearing on the merits for July 2024.

The Appellants appealed a decision and order regarding contraventions of the Tires Regulation under the Resource Recovery and Circular Economy Act, 2016.

At the first Case Management Conference, the Appellants requested a five-day hearing, which the Respondent opposed.

The Tribunal declined to schedule hearing dates without a draft Procedural Order and Issues List.

The Tribunal scheduled a further Case Management Conference and directed the parties to submit a Draft Procedural Order and Issues List.

The Tribunal convened a status hearing regarding the proposed transfer of two aggregate licences from the appellant to the property owner.

The appellant requested the Tribunal direct the Ministry to rescind the proposed transfer and cancel the upcoming hearing, arguing that the property owner's correspondence indicated it would no longer accept the transfer.

At the hearing, the property owner clarified that it still wished to proceed with the transfer and the hearing to pursue its claim for compensation.

The Tribunal confirmed the hearing would proceed as scheduled and made no determination on its jurisdiction to award compensation at this stage.

The appellant brought a motion to stay the requirements of a Director's Order pending the resolution of its appeal regarding the removal of demolition waste.

At the Case Management Conference, the Director consented to the stay, noting no concerns regarding the prohibitions in section 143(3) of the Environmental Protection Act.

The Tribunal granted the motion on consent without the need for a motion hearing.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

The appellant appealed summary conviction findings under the Fisheries Act arising from a highway washout that deposited debris into fish-bearing waters and damaged fish habitat.

The appellant argued the trial judge erred in rejecting a due diligence defence and in concluding that a highway and culvert constituted a “work or undertaking” under the Act, and further argued that the Kienapple principle should bar convictions on both counts.

The court held that the trial judge made no palpable and overriding error in rejecting the due diligence defence and properly applied the relevant factors.

It further held that maintaining road infrastructure constitutes “carrying on a work or undertaking” for the purposes of s. 35 of the Fisheries Act and that the two offences addressed distinct statutory purposes.

The appeal was dismissed.

Following prior reasons for judgment on a summary judgment motion limited to the issue of possession, the court convened to settle the form of order and address case management issues.

The court clarified that the plaintiff’s claim relating to contaminated soil and debris had not been dismissed and ordered that the reference in the draft order suggesting otherwise be deleted.

The plaintiff was directed to serve an amended statement of claim clearly articulating the causes of action, material facts, and relief sought against each defendant, with corresponding timelines for amended defences and related pleadings.

The court also scheduled completion of remaining discoveries, struck the jury notice by consent, adjourned the previously scheduled trial date, and set a new trial date.

The plaintiffs sought leave to amend their Fresh As Amended Statement of Claim to add a claim in nuisance against a defendant related to environmental contamination of a former foundry property, and to increase damages claimed.

They also sought leave to file late expert appraisal reports relating to alleged “stigma damages.” The court held that the proposed nuisance claim was not legally tenable because the alleged contamination originated on the plaintiffs’ own property and was caused by prior operators, not the defendant’s conduct.

The court further found that permitting the late expert reports would cause undue delay and prejudice, as the reports were served more than two years after the pre-trial conference and shortly before a lengthy scheduled trial.

Leave to amend the pleadings to add the nuisance claim and to file the expert reports was denied, although minor amendments to increase the damages amounts were granted on consent.

The applicant sought an order compelling a cottage owners association to modify a trail on Crown land that had been improved pursuant to work permits issued by the provincial natural resources ministry.

The applicant alleged that the association had effectively constructed an unauthorized road rather than improving an existing trail, threatening the semi-closed status of a remote lake and potential vehicle access.

The court held that the appropriate remedy would have been judicial review of the ministry’s permitting decisions rather than an equitable order against the association.

The evidence demonstrated the association complied with the permits and that the trail was restricted to ATVs and snowmobiles, with no evidence of use by cars or trucks.

The application was therefore dismissed.