CITATION: Hong v. Ministry of the Environment and Climate Change, 2018 ONSC 1127
DIVISIONAL COURT FILE NO.: 271/17 DATE: 2018 02 15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERER, MATHESON and BALE JJ.
BETWEEN:
HAI MEI (LINDA) HONG
Hai Mei (Linda) Hong, acting in person
Appellant
– and –
MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE and INGRAM ASPHALT INC.
Sylvia Davis, for the Respondent, Ministry of the Environment and Climate Change
Harry Poch, for the Respondent Ingram Asphalt Inc.
Respondents
HEARD at Toronto: February 15, 2018
LEDERER J. (Orally)
[1] On December 16, 2016, the Director, Ministry of Environment and Climate Change issued an Environmental Compliance Approval to the respondent Ingram Asphalt Inc. allowing it to continue to operate a batch hot mix asphalt plant at 103 Ingram Drive, in the City of Toronto.
[2] The applicant, Hai Mei Hong resides and works at a property adjacent to the Ingram asphalt plant.
[3] On December 28, 2016, Hai Mei Hong filed an application for leave to appeal the decision of the Director approving the Environmental Compliance Approval.
[4] On February 27, 2017, after considering submissions of the parties to this application in company with those of two other applicants also seeking leave to appeal, the Environmental Review Tribunal found that the statutory test for leave to appeal was not met. The three applications for leave to appeal were dismissed.
[5] Hai Mei Hong and the other applicants brought motions asking the Environmental Review Tribunal to reconsider the dismissal of their applications for leave to appeal the approval of the Environmental Compliance Approval. On April 25, 2017, the Environmental Review Tribunal determined not to review the decision that had been made. It dismissed the motions seeking that review.
[6] Today, Mai Hei Hong asks this Court to judicially review the dismissal of her motion seeking leave to appeal and the refusal of her motion asking for a reconsideration of the dismissal. Hai Mei Hong proceeds on her own. The other applicants for leave to appeal are not here, and so far as the court is aware, have made no corresponding applications.
[7] A judicial review is not a rehearing (a hearing de novo) and is not an appeal. To succeed the party bringing such an application must satisfy the applicable standard of review. It has been established, through past cases, that the standard of review for the Environmental Review Tribunal is reasonableness:
Deference will usually result where a tribunal is interpreting its own statute or a statute closely connected to its function with which it will have particular familiarity.
(Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 54)
[8] When an issue involves an administrative body interpreting its own statute or a statute closely connected with its function, reasonableness is the presumptive standard.
[9] I turn first to the motion seeking leave to appeal. The test to be applied by the Environmental Appeal Tribunal is set by the Environmental Bill of Rights 1993 S.O. 1993, c. 28, section 41:
Leave to appeal a decision shall not be granted unless it appears to the appellate body that,
(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and
(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.
[10] The decision of the Environmental Review Tribunal made on February 27, 2017 reveals that it considered carefully each of the submissions made on behalf of the applicant and the others which joined with her at that time.
[11] The applicant expressed concern that Ingram Asphalt Inc. was not in compliance with the applicable zoning bylaw. There was an issue as to what zoning was in effect. A zoning appeal was, and may remain, before the applicable administrative tribunal, the Ontario Municipal Board. The Environmental Appeal Tribunal determined that it was appropriate for the Director to make a decision on the Environmental Compliance Approval. The fact that another decision-making entity may or may not make a decision that would require a company to comply with an additional or different law or by-law does not mean that the Director was required to wait for that decision to be made.
[12] The applicant submitted that Ingram Asphalt Inc. had violated the applicable “Noise Code” and, that in such circumstances, the Director acted unreasonably in issuing the Environmental Compliance Approval. The Environmental Review Tribunal accepted that the conditions present in the Environmental Compliance Approval would ensure that Ingram Asphalt Inc. would operate the facility in a manner that would prevent or alleviate adverse effects from noise.
[13] Guideline D-6 applies when there is a change in land use, for example when a new facility is proposed in close proximity to an existing sensitive land use. It deals with issues such as distance separation and other protective measures. The applicant objected to the approval of the Environmental Compliance Approval on the basis that the guideline was not being adhered to, and had not been followed at the time the asphalt plant first came into operation. In earlier cases, and in this case, the Environmental Review Tribunal has found that Guideline D-6 has no application where the Environmental Compliance Approval does not respond to a change in use.
[14] The applicant expressed concern that in the past Ingram Asphalt Inc. had breached the requirements of the Environmental Protection Act R.S.O. 1990, c. E. 19, s. 14(1) which says:
Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.
[15] As with the submission that Ingram Asphalt Inc. had breached the “Noise Code”, the Environmental Review Tribunal accepted that past events are not evidence that the Environmental Compliance Approval and the conditions it included would not be effective in the future in achieving compliance with the Environmental Protection Act.
[16] In respect of each of these submissions and others made by the applicant, the Environmental Review Tribunal found that there was no reason to believe that the decision of the Director to issue the Environmental Compliance Approval was unreasonable, that is to say there was no good reason to believe that no reasonable person, having regard to the relevant law and government policies developed to guide decisions of this kind, could have made the decision.
[17] Having found that the first prong of the test set by the Environmental Bill of Rights, s. 41 had not been met and that the two standards it puts in place were conjunctive (for leave to appeal both need to be satisfied) the Environmental Review Tribunal determined not to proceed with the second part of the test. It was within its rights to do so.
[18] In the proceeding before this court the applicant has done nothing other than repeat the submissions made to the Environmental Review Tribunal. Certainly the determination it has made is within the range of available reasonable outcomes. There is no basis for it to be quashed or set aside or leave to appeal the decision of the Director granted.
[19] I turn now to the motion requesting that the Environmental Review Tribunal reconsider its refusal to grant leave to appeal. In this case the test is set by the Rules of Practice of the Environmental Review Tribunal, Rule 238:
In deciding whether it is advisable to review all or part of its order or decision, the Tribunal may consider any relevant circumstances including:
(a) whether the Tribunal acted outside its jurisdiction;
(b) whether there is a material error of law or fact such that the Tribunal would likely have reached a different decision but for that error;
(c) whether there is new evidence admissible under the conditions of Rule 234;
(d) the extent to which any person or any other Party has relied on the order or decision;
(e) whether the order or decision is under appeal or is the subject of a judicial review application; and
(f) whether the public interest in finality of orders and decisions is outweighed by the prejudice to the requester.
[20] In its decision of April 25, 2017, the Environmental Review Tribunal carefully reviewed each of the factors found within the rule. In particular, in respect of sub-paragraph (b) it reviewed each of the specific objections raised by the applicant (municipal zoning and the OMB proceeding, compliance with the Noise By-law and the Environmental Protection Act, Guideline D-6). The Environmental Review Tribunal concluded that no material error had been shown to have been made and that the arguments on the review were largely a reiteration of some of the arguments from the leave to appeal motion. In its “Overall Conclusion” the Environmental Review Tribunal determined that it was not advisable to review the decision of the panel that had considered the motion for leave to appeal.
[21] Again, nothing has been shown to this Court that would demonstrate that this was not one of the reasonable alternatives available to the Environmental Review Tribunal.
[22] The application for judicial review is dismissed.
[23] At the outset of the hearing consideration was given to the objection of both the Director and Ingram Asphalt Inc. to fresh evidence being introduced in a supplementary record provided in respect of this application for judicial review. Even if this material is accepted, it would have no impact on the decision being made.
[24] I have endorsed the Application Record as follows: “At the outset of this proceeding, the style of cause was amended to reflect the proper responding party, The Director, Ministry of the Environment and Climate Change. The Order is made. The application for judicial review is dismissed. No costs.”
___________________________ LEDERER J.
I agree
MATHESON J.
I agree
BALE J.
Date of Reasons for Judgment: February 15, 2018
Date of Release: March 20, 2018
CITATION: Hong v. Ministry of the Environment and Climate Change, 2018 ONSC 1127
DIVISIONAL COURT FILE NO.: 271/17 DATE: 2018 02 15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, MATHESON and BALE JJ.
BETWEEN:
HAI MEI (LINDA) HONG
Appellant
– and –
MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE and INGRAM ASPHALT INC.
Respondents
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: February 15, 2018
Date of Release: March 20, 2018