Smith v. Ontario (Environmental Review Tribunal), 2003 CanLII 21297 (ON SCDC)

COURT FILE NO.: 736/02

DATE: 20030318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, ARCHIE CAMPBELL and LANE JJ.

B E T W E E N:

ELLEN SMITH, CRAIG EDWARDS, ANGIE DESMARAIS, GILLES DESMARAIS, CARMEL GINGRAS, PAUL GINGRAS and RON ST. JEAN

Applicants

• and -

ONTARIO ENVIRONMENTAL REVIEW TRIBUNAL, DIRECTOR, MINISTRY OF THE ENVIRONMENT and INCO LIMITED

Respondents

Eric K. Gillespie and Richard D. Lindgren, for the Applicants

Isabelle M. O'Connor and Melissa McDonald, for the Respondent, Director, Ministry of the Environment

Doug T. Hamilton and Peter D. Brady, for the Respondents Inco Limited

HEARD: March 18, 2003

ARCHIE CAMPBELL J.: (Orally)

1The facts are set out in the factums.

2The operative words of the order granting leave "as requested by the applicants" must be read in the context of:

(i) the finding that the applicants had met the stringent s.41 test in respect of the first ground of appeal "that the order on its face exceeds the MOE's own absolute maximum guideline for nickel contamination in soil of 7,100 ppm" and

(ii) the limited relief requested in the applicants' letter of May 21, 2002.

3It was for the tribunal under s.41 of the Environment Bill of Rights to decide whether or not leave to appeal should be granted and on what grounds. Of the eight grounds in the application for leave to appeal, the tribunal granted leave on the first ground.

4The tribunal found it unnecessary to deal with the other 7 grounds in the application for leave to appeal.

5It is regrettable that the Director's order and the order granting leave to appeal were not more precisely drawn. The confusion in respect of the order and the proposed grounds of appeal, however, was cured when the tribunal revisited the matter on the later hearing of the motion to quash some four months later.

6Having granted leave on a limited basis, it was within the jurisdiction of the tribunal to quash ground 2 in the notice of appeal which was outside the question on which leave was granted. The tribunal has control of its own procedures within the limits of its statutory jurisdiction.

7Even before one gets to the underlying question of the subject matter of the order, the tribunal has jurisdiction under the statute to determine the basis on which leave to appeal is granted. It has the necessarily incidental jurisdiction to keep the appeal within the limits of the scope intended by the tribunal when granting leave.

8The applicant takes the position that once the s.41 test has been met in respect of one issue then the door is wide open to add any ground of appeal that does not meet the s.41 test. There is no authority for this proposition in the statute or in logic. Nothing in s.44 justifies the insertion of the words "of appeal" after the word "grounds". Nothing in s.44 defeats the stringent leave test required by s.41. It would defeat the stringent threshold test in s.41 to permit matters that do not meet s.41 to shelter under matters that do meet s.41.

9On this preliminary issue alone the application should be dismissed because it is no more than an attempt, contrary to s.43, to appeal the decision of the tribunal in respect of leave to appeal.

10On a more fundamental issue the tribunal has jurisdiction to decide what grounds of appeal are relevant to the scope of the Director's order appealed from and the "subject matter of the hearing". It is the duty of the tribunal, when its authority to entertain a particular ground of appeal is challenged, to decide whether or not that ground comes within the "subject matter of the hearing" within the meaning of s.144(1) of the E.P.A. as incorporated by reference into these proceedings through s.45 of the E.B.R.A.

11That is exactly what the tribunal did. By doing so, the tribunal did exactly what it was required to do by Re C. H. Lewis (Lucan) and Director of E.A. (1985), 50 O.R. (2d) 23 at p. 27.

12It is a task at the core of the appellate tribunal's specialized expertise to determine whether or not any particular ground of appeal such as ground 2 is relevant to the "subject matter of the hearing" and also within the basis on which the tribunal granted leave to appeal.

13The tribunal after argument and evidence on this preliminary interlocutory point of procedure held:

"that the order intends to and only deals with the health risk of ingestion of nickel and in particular the ingestion by toddlers…

…the order addressed the non-cancer endpoint and focused on ingestion.

…what the residents want to question is the Director's decision to issue an order that deals only with nickel ingestion. Like so many decisions the Director has made in the course of his investigation of this matter, that decision is not part of the order and not to be reviewed in this appeal."

14Nothing in Lucan prevents the tribunal from reading the Director's order contextually according to its obvious intention.

15It is the tribunal's view of the subject matter of the order and the relevance of the grounds of appeal that governs the scope and conduct of the appeal. If the tribunal's decision on leave to appeal was unclear any uncertainty was removed by its decision, after a hearing, to strike out ground 2. There is no appeal to this court from the decision of the tribunal to strike out any particular ground of appeal as irrelevant to the subject matter of the appeal. Absent extraordinary circumstances which do not apply here, judicial review does not lie against an appellate tribunal in respect of this kind of preliminary interlocutory procedural determination at the core of its specialized expertise. At the conclusion of the appeal hearing the applicants have a right of appeal to this court under s.144(2) on a question of law and a right of appeal to the Minister under s.144(3) on any matter other than a question of law.

16On the basis of prematurity alone the application should be dismissed.

17Even if judicial review were to lie against the tribunal under these circumstances, the standard of review, having regard to the nature of the decision and the expertise of the tribunal, is reasonableness. It was reasonably open to the tribunal to take the view that the order addresses only a soil intervention level and does not address ambient air issues regarding nickel contaminants that are being investigated at this stage as part of another process, the CBRA.

18The result is reasonable. The applicants concede that they cannot appeal the omission of lead from the order. Just as they cannot appeal the omission of lead from the order, so they cannot appeal the omission of airborne nickel from the order.

19A fundamental problem with the applicants' submissions is the insistence on reading the order, which is the basis of the hearing, without regard to its context. The order was made to address a small part of the overall soil contamination problem in the Port Colborne area, a part which the Director felt should be addressed before the completion of the on-going and larger study of the whole area.

20In that context, the order does not involve the issues raised by ground 2.

21Even if the standard is correctness, the decision survives that test.

22There was no denial of natural justice in the procedures followed by the tribunal. There was full notice and a full hearing. The tribunal's acknowledgement of the existence of the parallel CBRA process did not represent any delegation of authority to that process.

23For these reasons, the application is dismissed.

24In respect of costs, counsel have agreed that costs should be fixed in the amount of $1,000, payable to each respondent.