Joseph F. Castrilli

The applicants, environmental advocacy organizations, brought applications for judicial review challenging the failure of various Ontario Ministers to conduct public consultations under the Environmental Bill of Rights, 1993 (EBR) before enacting the COVID-19 Economic Recovery Act, 2020.

The applicants argued that the Ministers acted unreasonably by failing to post proposed amendments to several statutes on the Environmental Registry.

The Divisional Court dismissed most of the challenges, finding the Ministers' decisions reasonable or shielded by retroactive legislation.

However, the court granted the application in part, issuing a declaration that the Minister of Municipal Affairs and Housing acted unreasonably and unlawfully by failing to post proposed amendments respecting Ministerial Zoning Orders under the Planning Act prior to implementation.

This decision addresses motions for leave to intervene and to file records in a constitutional reference concerning the Greenhouse Gas Pollution Pricing Act.

The motion judge granted leave to intervene to twelve parties, including three Attorneys General as of right and nine additional parties seeking discretionary leave.

The judge declined to grant leave to one individual applicant.

The decision also addresses the scope of factums, oral argument time allocation, and the relaxed approach to supplementing the record in constitutional references as a court of first instance.

The applicant sought judicial review of a decision by the Environmental Review Tribunal granting several respondents leave to appeal the Ministry of the Environment's issuance of Certificates of Approval for the use of alternative fuels, including tires, at a cement plant.

The Divisional Court held that the Tribunal's decision to grant leave was reasonable.

The Tribunal correctly interpreted the test for leave under s. 41 of the Environmental Bill of Rights as requiring a standard of proof lower than a balance of probabilities.

Furthermore, it was reasonable for the Tribunal to conclude that the Ministry Directors should have considered the Statement of Environmental Values, common law rights, and environmental consistency, and that the project could result in significant harm to the environment.

The application for judicial review was dismissed.

On a judicial review application, certain respondents moved to strike an exhibit to an affidavit submitted by the Ministry of the Environment.

The exhibit, which detailed a delegation of authority under the Environmental Bill of Rights, was tendered to show that the Minister's obligations had not been delegated.

The Divisional Court granted the motion and struck the exhibit, holding that it was not part of the record before the tribunal and that the rare circumstances permitting the supplementation of the record on judicial review, such as showing jurisdictional error, did not apply.

The moving party brought a motion to a panel of the Divisional Court to set aside a previous decision refusing leave to intervene as a friend of the Court in an application for judicial review.

The underlying application involved certificates of approval granted under the Environmental Bill of Rights.

The Court treated the motion as a hearing de novo due to the moving party refining his position.

Finding that the case engaged matters of public concern and that the moving party had special knowledge and expertise regarding the statement of environmental values, the Court granted leave to intervene.

The Industry Coalition for Environmental Fairness Inc. (ICEF) and the Environmental Commissioner of Ontario brought motions for leave to intervene in a judicial review of an Environmental Review Tribunal decision.

The underlying judicial review concerned the test for leave to appeal under the Environmental Bill of Rights regarding certificates of approval issued to a cement company.

The court dismissed both motions, finding that ICEF lacked a direct interest and would not make a useful contribution without causing delay, and that the Environmental Commissioner's proposed intervention would not provide a different perspective from the existing parties and would likely prejudice them.