Lafarge Canada Inc. v. Ontario Environmental Review Tribunal, 2008 CanLII 6870 (ON SCDC)

Court File and Parties

DIVISIONAL COURT FILE NO.: 451/07

DATE: 2008-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

LAFARGE CANADA INC.

Applicant

• and -

ONTARIO ENVIRONMENTAL REVIEW TRIBUNAL, SUSAN QUINTON on behalf of CLEAN AIR BATH, MARTIN HAUSCHILD and WILLIAM KELLEY HINEMAN on behalf of LOYALIST ENVIRONMENTAL COALITION, LAKE ONTARIO WATERKEEPER and GORDON DOWNIE, GORDON DOWNIE, GORDON SINCLAIR, ROBERT BAKER, PAUL LANGLOIS, JOHN FAY, MINISTRY OF THE ENVIRONMENT (ONTARIO), DIANE DAWBER, CHRIS DAWBER, HUGH JENNEY, CLAIRE JENNEY, MARK STRATFORD, JAMIE STRATFORD, J.C. SULZENKO, JANELLE TULLOCH, SANDRA WILLARD

Respondents

BEFORE: HIMEL J.

COUNSEL:

Gabrielle K. Kramer and Christel Higgs for the Industry Coalition for Environmental Fairness Inc. (Moving Party)

Rodney Northey for the Environmental Commissioner of Ontario (Moving Party)

Jonathan Davis-Sydor for Lafarge Canada Inc.

Richard D. Lindgren for Lake Ontatrio Waterkeeper and Gordon Downie

Joseph F. Castrilli for Gordon Downie, Gordon Sinclair, Robert Baker, Paul Langlois and John Fay

Hugh Wilkins and Marlene Cashin for the Loyalist Environmental Coalition

Isabelle M. O’Connor for the Directors, Ministry of the Environment

HEARD: February 19, 2008

E N D O R S E M E N T

1The Industry Coalition for Environmental Fairness Inc. (“ICEF”) brings a motion for leave to intervene as a party in a judicial review of a decision of April 4, 2007 of the Environmental Review Tribunal (“ERT”). That decision granted leave to several public interest groups and residents to appeal the decision of the Directors of the Ministry of the Environment appointed under the Environmental Protection Act issuing two certificates of approval to Lafarge Canada Inc. The decision appealed from is Dawber v. Ontario (Ministry of the Environment) made under Part II of the Environmental Bill of Rights, 1993. The approvals issued to Lafarge were a certificate of approval for air emissions and a certificate of approval for a waste disposal site which would allow Lafarge to use alternative fuels in its cement making operations at its plant in Bath, Ontario. Several local residents and groups applied to the tribunal for leave to appeal the decisions of the Directors. The Record of Proceedings before the tribunal consists of ten volumes of materials filed by the parties. In written reasons issued on April 4, 2007, the tribunal granted leave to appeal the decision. Lafarge applied to the Divisional Court for judicial review of the decision granting leave. The application raises questions of statutory interpretation of the test for leave to appeal provided under section 41 of the Environmental Bill of Rights. ICEF asks that it be given the right to intervene as a party in that judicial review, to file additional materials and to make oral argument. In the alternative, ICEF asks that it be added as a friend of the court.

2Gordon Miller, the Environmental Commissioner of Ontario, brings a motion for leave to intervene as a friend of the court. His interest is in assisting the court in interpreting the Statements of Environmental Values under Part II of the Environmental Bill of Rights and advising the court about the statutory mandate. If granted leave, the Environmental Commissioner also asks to be able to file documentary evidence at the judicial review. The Environmental Commissioner has obtained leave to intervene before the courts in other cases on two previous occasions.

FACTUAL BACKGROUND:

3ICEF is a coalition of industry organizations representing companies which rely on certificates of approval from the Environmental Review Tribunal for their daily operations. It takes the position that a decision of this court will have a significant effect on environmental approvals and, therefore, its members have a direct interest in the proceeding. It says it will be able to assist the court in appreciating the effect of the decision on the industry. The coalition was incorporated for the purposes of intervening in the judicial review and consists of four organizations: the Cement Association of Canada, Ontario Stone, Sand & Gravel Association, the Ontario Mining Association, and the Ontario Waste Management Association. The ICEF now represents over 600 industry sector companies. Each of the members participates in regulatory and public policy initiatives concerning governmental environmental strategies. The ICEF takes the position that the decision of the Environmental Review Tribunal has a potentially direct and adverse effect on members of ICEF in that it creates uncertainty and may lead to an impractical and prohibitive process for approvals.

4Counsel on behalf of the respondents Lake Ontario Waterkeeper and Downie, Downie, Sinclair, Baker, Langlois and Fay and Hauschild and Kelley Hineman on behalf of the Loyalist Environmental Coalition take the position that the motion for leave to intervene brought by ICEF should be dismissed because the organization is a new association comprised of other associations which have no legal or proprietary interests in the subject matter of the judicial review brought by Lafarge. They do not have an interest in the lis between the parties and no genuine or direct interest in the outcome. None of the parties will be adversely affected by a judgment in the Lafarge application. In fact, they have no greater interest than any other member of the public. Furthermore, none of the moving parties have any particular expertise or special knowledge that would allow them to make a useful contribution to the judicial review. ICEF and its organizations have no track record and would only duplicate the argument already before the court. That would prejudice the parties by lengthening and expanding the proceeding, increasing the costs, and it would, in effect, give Lafarge as applicant a further opportunity for reply.

5Counsel for the Ministry of the Environment also opposes the request by ICEF to be added as a party but consents to the intervention of ICEF as a friend of the court on condition that it take the record as it is and file no additional evidence, that it not seek costs and that it not delay the proceedings which are scheduled to be heard on April 9 and 10, 2008.

6Gordon Miller, the Environmental Commissioner of Ontario applies for leave to intervene as a friend of the court. Counsel for the Ministry of the Environment consents to the intervention of the Environmental Commissioner as a friend of the court on condition he file no additional evidence, not seek costs and not delay the proceedings. Lafarge opposes the motion of the Environmental Commissioner for leave to intervene as a friend of the court because the case is of a private nature involving statutory interpretation of which the Commissioner does not have expertise and he will not provide any useful contribution to the court.

THE TEST ON A MOTION FOR LEAVE TO INTERVENE AS A PARTY:

7Rule 13.01(1) of the Rules of Civil Procedure provides that a court may grant leave to intervene as an added party to a person who is not a party to a proceeding if the person can demonstrate:

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

8The onus is on the applicant to demonstrate that the requirements of the rule are met. Where an applicant meets any of the criteria, the court is to consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. If there will be no such delay or prejudice, the court may exercise its discretion and add the applicant as a party on such terms as it considers just: Rule 13.01(2). In the case of Regional Municipality of Peel and Attorney General of Ontario v. Great Atlantic & Pacific Co. of Canada Ltd., 74 O.R. (2d) 164 (C.A.) at 167, the court outlined a number of factors to be considered on an application for intervention including: the nature of the case, the issues which arise and the likelihood that the applicant will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

9In Re Schofield and Ministry of Consumer and Commercial Relations, 28 O.R. (2d) 764 (Ont.C.A.), the court held on a motion for leave to intervene that even where there is no direct interest in the case, a party without an interest in the outcome can provide an advantageous and perhaps unique position to the court. Other decisions have held that where the party’s interest is no greater and will not be affected in any greater way than any other member of the general public, that is not a sufficient interest to support intervention: see Gould Outdoor Advertising v. London (City), 32 O.R. (3d) 355 (Gen.Div.). To be a party adversely affected by a judgment in the proceeding, the party must show it will be affected in a greater way than any member of the general public but the party need not show that the adverse effect is direct: see John Doe v. Ontario (Information & Privacy Commissioner), 7 C.P.C. (3d) 33 at 3 (Div.Ct.); United Parcel Service Can. Ltd. v. Ontario (Highway Transport Board), [1989] O.J. No. 1707 at 2. In deciding whether the proposed intervener would make a useful contribution, simply repeating the issues put forward by the main parties is not a useful contribution: Stadium Corp. of Ontario Ltd. v. Toronto (City), 10 O.R. (3d) 203 (Div.Ct.) reversed on other grounds, 1993 8681 (ON CA), 12 O.R. (3d) 646 (C.A.). The court must be satisfied that the applicant brings some special expertise to the issues and can show that it can make a useful contribution to the proceedings: Ethyl Canada Inc. v. Canada (Attorney-General) [1997] O.J. No. 4225 (Gen.Div.).

THE TEST ON A MOTION TO INTERVENE AS A FRIEND OF THE COURT:

10Rule 13.02 provides as follows:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

11The role of the friend of the court has been described as having historical roots derived from a position of impartiality or altruism: see Peixeiro et al. v. Haberman, 20 O.R. (3d) 666 (Gen.Div.) at 672. If the party has a private interest, that neutral friend of the court role is not appropriate. The traditional view established in England saw the intervention as friend of the court in a much more limited capacity while the American model has seen a more expanded role of the amicus shifting from friend to advocate: see David Scriven and Paul Muldoon, “Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure”, (1986) 6 Adv. Q. 448. In Authorson v. Canada, 147 O.A.C. 355 at 356-7 (C.A.), Chief Justice McMurtry wrote at paras. 8-9:

Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to restrict submissions….Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.

12In considering whether to grant intervener status, the court must consider whether the intervening party will make a useful contribution to the resolution of the dispute. Where there is no evidence or argument presented that is substantially different from the parties, the court may deny the motion to intervene as a friend of the court: see Stadium Corp. of Ontario Ltd. v. Toronto (City), supra.

13The mandate of the friend of the court is prescribed under Rule 13.02 as “rendering assistance to the court by way of argument”. While an intervening party may become involved in the fact finding process, a friend of the court participates by way of argument only: see Halpern v. Toronto (City) Clerk, 51 O.R. (3d) 742 at para. 12. In their article, “Intervention as Friend of the Court”, David Scriven and Paul Muldoon suggest that the Canadian approach, and specifically Ontario’s, has been to find a middle ground with friend moving towards advocate in public interest cases.

DECISION:

1. The Motion to Intervene by ICEF:

14On an application for leave to intervene as a party, the onus is on the moving party to demonstrate that the Rule 13.01 criteria are satisfied. Here, the Directors of the Ministry of the Environment support Lafarge in its position on the motion. The respondent public interest groups and residents support the tribunal’s approach. For a number of reasons, I do not consider that it is appropriate to grant the application for intervention.

15First, the case in which the ICEF seeks to intervene is a judicial review before the Divisional Court. The review is of the leave to appeal decision granted by the tribunal of the Directors of the Ministry of the Environment. The review will be of the tribunal’s decision based on the record that was before it. Only in exceptional circumstances will additional evidence be admitted and only to the extent that it shows jurisdictional error: see Re Keeprite Workers’ Independent Union and Keeprite Products Ltd., 29 O.R. (2d) 513 at 521. The ICEF requests that it be permitted to file two affidavits concerning the impact of the decision on the environmental approvals system and the process for obtaining certificates of approval. In my view, those issues are not relevant to the matters that were before the tribunal when it made its decision. The record before the tribunal is substantial already. The issue is whether the tribunal erred in law and misapplied the test for leave to appeal.

16Second, the ICEF has not established that the organizations of which it is comprised have an actual direct interest in the outcome of the subject matter. There is no evidence showing how they will be adversely affected by any judgment. Counsel argues that the members of ICEF will be affected by the outcome because they will be exposed to significant financial risk and uncertainty in the certificate approval process. While the case may affect members in a general way because the member companies are involved in the field and are affected by Environmental Review Tribunal decisions in their operations, frankly it cannot be shown that they will be any more affected than any other general member of the public. In addition, they have not shown that there is a common question of law or fact with the questions in issue.

17I am not satisfied that the ICEF would make a useful and distinct contribution if permitted party status in the judicial review. Its position is no different than that advanced by Lafarge. ICEF may suggest that it has a role which transcends the dispute between the immediate parties as public interest group interveners, but it has no track record in fulfilling that function and demonstrating what it brings to the table. ICEF has no special expertise as a group aside and apart from the knowledge of its individual members. Finally, it is not able to demonstrate that its intervention will not unduly delay or prejudice the determination of the rights of the parties to the proceeding: see Halpern v. Toronto (City) Clerk, supra, at para.6.

18As for the test for intervention as a friend of the court under Rule 13.02, I turn to whether the organization can make a useful contribution to the resolution of the case without causing injustice to the immediate parties. I find that ICEF’s interests are identical to those of Lafarge Canada Inc. which is a member of two of the associations comprising the ICEF. The ICEF submits that it has through its members developed institutional knowledge on the issue of environmental approvals and the use of alternative fuel technologies to reduce greenhouse gases on a provincial, national and international level. Representing a wide spectrum of industries affected by the Environmental Review Tribunal’s decisions on certificates of approval, the ICEF says it can contribute to the process by offering a broad industry perspective in a way that is more than simply repeating the issues put forward by the parties. Frankly, I am not persuaded that the ICEF which was constituted for this very litigation, has experience in bringing a unique perspective to the court which will not otherwise be adequately represented through the other parties. In conclusion, ICEF has not shown that it has a sufficient interest in the case, that it can make a useful contribution which will be of assistance to the court and that it will not cause delay or prejudice by the intervention.

2. The Motion to Intervene by the Environmental Commissioner:

19The Environmental Commissioner takes the position that he has a specific interest in the litigation which is not to address the outcome of the judicial review but to assist the court in interpreting the role of the Statements of Environmental Values under Part II of the Environmental Bill of Rights and on the statutory mandate generally. As an independent non-partisan officer of the Ontario Legislative Assembly, he makes annual reports to the legislature and represents the public on environmental protection matters. The application for judicial review brought by Lafarge asserts that the tribunal erred in law by misinterpreting and misapplying the test for leave to appeal under section 41 of the Environmental Bill of Rights. In that decision, the tribunal made references to the Statements of Environmental Values which have not been before a court in the past. If granted leave to intervene, the Commissioner also asks to be permitted to file a factual record of existing public documents (approximately 100 pages) and to make submissions on the role of the Statements of Environmental Values and the leave to appeal test.

20In Pearson v. Inco (2005) 21 C.E.L.R. (3d) 270 (Ont.C.A.), Justice Doherty dismissed a motion for leave to intervene brought by the Environmental Commissioner as a party. He was of the view that the material sought to be filed by the Commissioner would not add anything to the record that would assist in the resolution of the dispute. However, he went on to apply Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada) and considered whether the applicant would be able to make a useful contribution to the resolution of the case without causing injustice to the immediate parties. While he was not satisfied that the Commissioner would make a useful contribution as it related to substantive issues, he was of the view that he could bring a broader perspective on the appeal from the costs order which might assist in the resolution of that part of the appeal. He granted intervener status as a friend of the court on the costs issue on condition that the Commissioner consolidate the factum and make submissions with other interveners.

21In the case before me, although the Commissioner argues that he would bring a broad policy perspective to the court on a matter involving the interpretation of the Environmental Bill of Rights which is a public concern. I am not satisfied that he has met his onus in demonstrating that he would make a useful contribution to the resolution of the case without causing injustice to the parties. He asks to file lengthy materials which will have to be reviewed by the parties. If he is allowed to file them, the other parties may wish to file responding materials. The case is already set for a two day hearing in April. The evidence before the court involves ten volumes of materials. The positions of the parties are being argued fully. The Environmental Commissioner has not demonstrated that the role he seeks to play will provide a different perspective from the applicants, that it will enhance the knowledge of the court or that it will assist in the resolution of the dispute. In fact, if he is granted intervention status as a friend of the court, it is likely that the parties to the litigation will suffer prejudice.

RESULT:

22For the reasons outlined, I find that the ICEF has failed to provide sufficient grounds for being granted status to intervene as an added party or as a friend of the court. The motion for leave to intervene as a party and, in the alternative, the motion for leave to intervene as a friend of the court brought by ICEF are dismissed. The motion for leave to intervene as a friend of the court brought by the Environmental Commissioner is also dismissed.

23Having received the submissions of the parties on costs, (the Respondents Lake Ontario Waterkeeper and Gordon Downie and Gordon Downie, Gordon Sinclair, Robert Baker Paul Langlois and John Fay and Martin Hauschild and William Kelley Hineman on behalf of the Loyalist Environmental Coalition being the only parties seeking costs fixed at $3,000), I exercise my discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure and decline to make any order of costs in circumstances where the issues are of a public interest nature.