Sims Group Recycling v. Minister of the Environment and Waste Diversion Ontario, 2013 ONSC 209

1The applicant requests an adjournment of its judicial review application in order to cross- examine on responding material, said to be critical to the merits of the application. A foundation stone of the applicant’s case is that the change in the tendering criteria within an approved waste management plan constitutes a “material change” to that plan, requiring written approval by the Minister. No such approval has been given. All counsel agree that certain preliminary issues ought to be addressed before ruling on the adjournment request.

2In our opinion, for the following reasons, this case is not amenable to judicial review and the application is quashed.

3The application for judicial review challenges the Minister’s alleged failure to act under s.27 of the Waste Diversion Act, 2002. Waste Diversion Ontario (“WDO”) is named as a party in this application, but the applicant does not claim that it exercised any statutory power of decision, nor is there any request for relief against WDO.

4WDO is a non-Crown corporation created under the Waste Diversion Act, 2002. It is responsible for developing, implementing, operating, monitoring and supervising waste diversion programs. Once the Minister has approved the waste diversion program, WDO must seek approval of any “material change” to that program. The Minister and the Ministry of the Environment otherwise have little or no role to play in the actual implementation and execution of various waste diversion programs that are in effect.

5In this case, the impugned decision at the heart of the applicant’s complaint is a decision by Ontario Electronic Stewardship (“OES”) regarding changes to the evaluation of scoring criteria in the supply tendering process. OES is a non-Crown and not-for-profit corporation responsible for the operation of the waste diversion program for waste electrical and electronic equipment (“WEEE”). OES does not exercise any statutory power of decision on its own. It acts in concert with WDO, as a separate entity and with a different mandate and different responsibilities. OES is not a party to this judicial review application.

6In its factum on this application, the applicant seeks the following relief:

(a) An order or orders in the form of a declaration:

(i) Declaring that the Minister erred in interpreting the Act as not requiring him to enforce, or by failing to cause WDO to enforce, the WEEE Program Plan approved by the Minister;

(ii) Declaring additionally or in the alternative, that the Minister acted unreasonably by exercising his or her discretion in a manner that resulted in a failure to enforce, or by failing to cause WDO to enforce, the WEEE Program Plan approved by the Minister.

(b) An order in the nature of mandamus:

(i) Directing the Minister to intervene to cause WDO to comply with the approved WEEE Program Plan and to properly follow the approved WEEE Program Plan with no material changes.

7It is a basic principle that a court ought not to make an order that is incapable of enforcement. The orders sought in the factum are vague and convoluted and beyond the powers of this Court to enforce.

8In the course of argument, counsel for the applicant submitted, as an alternative, that the Court should issue an order by way of mandamus directing the Minister to determine whether the changes to the Plan at issue here constituted a “material” change in the program within the meaning of s. 27 of the Act. Counsel further submitted that this Court should first define for the Minister what would constitute a “material change” under s. 27.

9It is not an appropriate role for this Court to determine in advance what should constitute “material change” to a waste diversion program. A decision as to what would be “material” in any given situation is a mixed question of fact and law. In the context of this case and this legislation, such a decision is policy-laden and multi-faceted and squarely within the policy-making functions of government. It is beyond the jurisdiction of this Court.

10In any event, it would only be open to this Court to order the Minister to decide whether a change was material if in fact there was an existing duty under the Act on the Minister to make such a decision. We do not believe such a duty exits.

11There has been no exercise of a statutory power of decision, nor any refusal to exercise a statutory power of decision in circumstances wherein the Minister was obliged to make such a decision. WDO did not ask for the Minister’s approval of any “material change” to the previously approved waste diversion program for waste electric and electronic equipment. The applicant’s case with respect to the Minister is based on the flawed assumption that the Minister has a duty to require WDO to seek the Minister’s approval under s. 27 of the Act. Though s. 27 of the Act prohibits WDO from making a material change to the waste diversion program in place without the written approval of the Minister, the Minister has no statutory obligation to intervene by directing WDO on how to exercise its mandate, much less to supervise an operational decision of OES.

12WDO was not exercising a statutory power when it failed to characterize the tendering changes made by OES as a “material change” within the meaning of s. 27 of the Act. The applicant has no standing to challenge that decision by WDO. WDO’s statutory duty under s. 27 of the Act is a duty to the Minister, not the applicant. Neither respondent in this proceeding is an administrative tribunal and neither made any decision about the rights, entitlements or privileges of the applicant.

13The applicant’s submission that the Minister has a duty to “intervene” under s. 27 misconstrues the language and purpose of s. 27. This section does not authorize or require an exercise of statutory power. Rather, it prohibits WDO from making a material change to the program without the written approval of the Minister. Because s. 27 does not impose any obligation on the Minister to intervene, it does not give the applicant any right to request that the Minister consider whether a change in the program is “material.”

14We also note that the applicant has an alternative remedy; the ability to challenge the lawfulness of the revised tender process by an action for damages and/or declaratory relief.

15Moreover, to grant the relief sought by the applicant would be prejudicial to other third parties who participated in the service supply process and it could create chaos in the marketplace given the passage of time.

MOLLOY J.

COSTS

16The application is quashed for oral reasons delivered by Aston J. Costs are fixed in the amount of $15,000 payable by the applicant to the respondent Minister of the Environment and $30,000 to the respondent Waste Diversion Ontario, both inclusive of taxes and disbursements.