Harry J. Dahme

R.W. Tomlinson Limited brought a motion for costs against Keep Napanee Great (KNG) following KNG's unsuccessful application for leave to appeal an Environmental Compliance Approval for a mobile concrete batching plant.

Tomlinson argued KNG's conduct was unreasonable and in bad faith, seeking over $32,000.

KNG, a self-represented community group, brought a counter-motion for $2,000 in costs, alleging Tomlinson's motion was an intimidation tactic.

The Ontario Land Tribunal dismissed both motions, finding that KNG's procedural missteps as a self-represented litigant did not amount to clearly unreasonable or bad faith conduct warranting costs.

The Tribunal also found Tomlinson's motion, while unsuccessful, was not an abuse of process based on the information it had at the time.

The City of Mississauga appealed a Director's Order requiring it to investigate and clean up street sweepings deposited at various sites.

The parties reached a settlement wherein the City completed sampling and assessment demonstrating the sweepings posed no unacceptable risk, and the site owners consented to leaving the materials in place.

The Ontario Land Tribunal found the settlement satisfied the statutory requirements of the Environmental Protection Act and the public interest, approved the withdrawal of the appeal, and revoked the Director's Order.

The appellants appealed a Director's Order requiring them to develop and implement measures to address contamination from a former manufactured gas plant.

The parties reached a settlement agreement involving the revocation of the original order, the issuance of a new order specifying risk management measures for the affected properties, and the withdrawal of the appeals.

The Environmental Review Tribunal found the settlement consistent with the Environmental Protection Act and in the public interest, approved the withdrawal of the appeals, and directed the issuance of the new order.

The plaintiff appealed a master's decision dismissing its motion under Rule 32.01 for intrusive testing on the defendant's adjacent property to investigate environmental contamination.

The master found that the proposed testing would not be probative because the plaintiff's construction had already altered the soil and groundwater conditions, and that the prejudice to the defendant outweighed any benefit.

The Superior Court of Justice dismissed the appeal, finding no error of law or palpable and overriding error of fact in the master's exercise of discretion.

The appellant, owner of a commercial property in Windsor, Ontario, sought leave to amend its statement of claim in a second action to add a claim for breach of statutory duty under the Environmental Protection Act.

The motion judge refused the amendment on the grounds that it was statute-barred under the Limitations Act, 2002 and constituted an abuse of process.

The Court of Appeal upheld the decision, finding that the claim was clearly statute-barred and that the proposed amendment would constitute an entirely new cause of action against different parties.

The court noted that the appellant had the option to amend its statement of claim in the first action instead.

The appeal was dismissed, and costs were fixed at $30,000 inclusive.

Strathan Corporation sought leave to amend its statement of claim in a second action (Second Strathan Action) to include a new claim for breach of statutory duty causing environmental contamination under the Environmental Protection Act.

The defendants opposed, arguing the proposed amendments were statute-barred by the Limitations Act, 2002, untenable at law, and an abuse of process given a prior action (First Strathan Action) already addressing environmental contamination.

The court dismissed Strathan's motion, finding the new claim was a distinct cause of action, statute-barred by the two-year limitation period (as Strathan knew of the environmental claim since 2009 when it commenced the First Strathan Action), and constituted an abuse of process by attempting to graft a duplicative claim onto a separate action.

The court also rejected the argument that the Real Property Limitations Act applied.

The appellants appealed a Director's Order regarding contamination associated with a former manufactured gas plant site.

The parties requested a further adjournment of the appeals to allow for continued discussions and the implementation of work plans.

The Tribunal granted the adjournment, finding it fair and reasonable as progress was being made and there was no immediate threat to human health or the environment.

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 Mohawks of the Bay of Quinte (MBQ) brought a motion to review an earlier Tribunal order that dismissed their application for costs against Waste Management of Canada Corporation.

MBQ argued that the Tribunal erred in law by failing to consider their unique circumstances as a First Nation at the first stage of the costs analysis (determining whether conduct was unreasonable).

The Tribunal dismissed the motion, finding no error of law in the original panel's application of the three-stage costs analysis under the Statutory Powers Procedure Act and the Tribunal's Rules.

The appellant appealed a Director's Order regarding waste street sweepings under the Environmental Protection Act.

Following an agreement between the parties, the Environmental Review Tribunal ordered the Director to amend the Order to reflect new completion dates for specific work items.

The City of Mississauga appealed a Director's Order requiring it to take various actions regarding street sweepings delivered to private properties between 2004 and 2011.

The City sought a stay of the Order pending the appeal.

The Director consented to a stay of the items requiring physical investigations and remedial work, but opposed staying the items requiring the City to share information and conduct a forensic audit to identify affected properties.

Applying the RJR-MacDonald test, the Tribunal found no statutory bar to a stay and a serious issue to be tried.

However, the Tribunal held the City failed to demonstrate irreparable harm to its reputation or from potential litigation.

The Tribunal also found the balance of convenience and public interest favoured denying the stay for the disputed items to ensure affected property owners receive proper notice and information.

The stay was granted in part on consent and dismissed for the disputed items.

The City of Mississauga appealed a Director's Order regarding waste street sweepings and sought an interim stay pending the disposition of a stay motion.

The Director consented to the interim stay.

The Environmental Review Tribunal found no statutory bar under sections 143(2) or 143(3) of the Environmental Protection Act and granted the interim stay on consent.

The appellants appealed a Director's Order requiring them to develop and implement measures to prevent adverse effects from the discharge of contaminants at a former manufactured gas plant site.

The parties agreed to two work plans and requested an adjournment of the hearing to allow for the implementation of these plans and to amend the compliance dates in the Director's Order.

The Tribunal found the adjournment request fair and reasonable under Rule 105 and granted the adjournment to June 2017 for a status update.

The Concerned Citizens Committee of Tyendinaga and Environs appealed conditions of an Amended Environmental Compliance Approval issued to Waste Management of Canada Corporation for the closure of the Richmond Landfill Site.

The Tribunal considered the final wording of the conditions, rejecting an additional sentence proposed by the appellant regarding the delineation of leachate-impacted groundwater as redundant.

The Tribunal also granted an extension of time for the instrument holder to complete required work.

The appeal was allowed in part, and the Director was ordered to amend the Environmental Compliance Approval.

The instrument holder, Waste Management of Canada Corporation, requested an extension of a deadline set out in an interim order regarding an Environmental Compliance Approval for a landfill site.

The extension was needed to complete unanticipated additional drilling and testing for groundwater monitoring wells.

The Tribunal granted the request, noting the reasonable explanation and lack of objections from other parties, and ordered the Director to amend the ECA accordingly on an interim basis.

The Mohawks of the Bay of Quinte (MBQ) brought a motion for costs in an ongoing environmental appeal.

Due to an objection by Waste Management of Canada Corporation regarding mediation confidentiality, MBQ requested that the motion be deferred until after the main hearing.

The Tribunal granted the adjournment and ordered that the motion materials be marked confidential pending the hearing of the motion.

The applicant sought an adjournment of its application for judicial review to develop new evidence.

The Divisional Court addressed preliminary issues and exercised its discretion under the Judicial Review Procedure Act to decline to hear the application.

The court found the matter was not a review of a quasi-judicial decision, primarily concerned commercial interests, would require the court to perform a trial function, and that the applicant lacked standing.

The application was quashed without a determination on the merits.