Environmental Law - ODC

The applicants sought judicial review of a Ministry of the Environment decision approving an increase in sulphur production at a Suncor refinery, arguing the failure to conduct a cumulative effects assessment violated their Charter rights.

The respondents brought motions to strike the application as a collateral attack on prior approvals and to strike much of the applicants' affidavit evidence.

The applicants brought a cross-motion for a protective costs order.

The Divisional Court dismissed the motion to strike the application, finding it was not plain and obvious it would fail.

The court allowed the motion to strike evidence in part, striking improper expert opinion and unattributed hearsay, but leaving relevance determinations to the hearing panel.

The motion for a protective costs order was dismissed, as the applicants had pro bono representation and the narrow administrative issue did not meet the exceptional public importance threshold.

The applicant cottagers association sought judicial review of the Minister's decision to grant a pit licence to the respondent landowner under the Aggregate Resources Act.

The licence was issued based on a municipal confirmation that the pit was a legal non-conforming use.

The Divisional Court found that the confirmation was based on misinformation, as there was no evidence the property was used as a pit prior to the relevant zoning by-laws.

The Court held the standard of review was correctness and set aside the Minister's decision, referring the matter back for reconsideration.

The City of Kawartha Lakes appealed a decision of the Environmental Review Tribunal upholding a Ministry of the Environment order requiring the City to remediate environmental contamination on its property.

The contamination was caused by a furnace oil leak from an adjacent private property.

The City argued it was an innocent owner and the Tribunal erred by excluding evidence regarding who was at fault for the spill.

The Divisional Court dismissed the appeal, finding that the Tribunal's decision to exclude fault evidence was reasonable, as the Environmental Protection Act's primary purpose is environmental protection, and fault-finding is better suited for civil courts.

The applicant sought judicial review of the Director of the Ministry of the Environment's decision to issue a Renewable Energy Approval for a wind facility.

The applicant argued the Director failed to comply with regulatory requirements and denied procedural fairness.

The Divisional Court dismissed the application, finding that the applicant lacked both personal and public interest standing.

In the alternative, the court held that the Director's decision to dispense with strict compliance with notice requirements was reasonable, and the consultation process met the common law requirements of procedural fairness.

The applicant sought judicial review of a permit issued by the Minister of Natural Resources under the Endangered Species Act, which allowed for the disturbance of species at risk during the construction of a new bridge and parkway.

The applicant argued the Minister failed to apply the precautionary principle, improperly consulted experts, ignored relevant information, and was biased.

The Divisional Court dismissed the application, finding the Minister's decision was a matter of public policy entitled to broad deference, the statutory requirements for consultation and opinion-forming were met, and there was no reasonable apprehension of bias given the Minister's political and legislative functions.

The applicant sought judicial review of a decision by the Minister of Natural Resources granting a permit under the Endangered Species Act, 2007 for a highway project.

At the opening of the hearing, the respondents brought a preliminary motion to strike three affidavits filed by the applicant.

The Divisional Court granted the motion, striking two affidavits in their entirety and most of the third, emphasizing that judicial review is generally restricted to the record before the decision-maker.

The court noted that fresh evidence is only admissible in exceptional circumstances, which were not present, and criticized the parties for not resolving the evidentiary record prior to the hearing.

The defendants sought leave to appeal a motion judge's decision granting the plaintiffs' motion to amend their statement of claim to convert their individual environmental contamination action into a class proceeding.

The defendants argued the court lacked jurisdiction to convert an individual action to a class proceeding, applied the wrong test for the amendment, and improperly allowed the addition of potentially statute-barred claims.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that the court had jurisdiction, that the Rule 26.01 test for amendments applied, and that limitation period issues were best left for the certification stage.

The moving parties (defendants) sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

The underlying dispute involved the interpretation of an indemnity clause in an agreement of purchase and sale regarding environmental contamination discovered after closing.

The court found there was good reason to doubt the correctness of the motion judge's interpretation, satisfying the first branch of the test for leave to appeal under Rule 62.02(4)(b).

However, the court held that the interpretation of a specific agreement between specific parties did not raise issues of broad public importance.

As the second branch of the test was not met, the motion for leave to appeal was dismissed.

Sierra Club Canada brought a motion for an interlocutory injunction to halt demolition and construction activities for the Windsor-Essex Parkway, arguing the work would irreparably harm endangered species despite a permit issued under the Endangered Species Act.

The court dismissed the motion, finding no evidence of irreparable harm and that the balance of convenience favoured continuing the project with the permit's mitigation measures.

The respondent's cross-motion to dismiss the judicial review application for delay was adjourned to the panel hearing the application.

The moving party sought an interim injunction to halt the demolition of houses pending the hearing of an interlocutory injunction.

The court dismissed the motion, finding that the moving party failed to establish irreparable harm, noting that pre-screening of the properties had found no snakes.

The court also found that the balance of convenience favoured the responding party, as the demolition plans had been public for some time and the moving party could have sought relief earlier.

The Attorney General for Ontario brought a motion to strike the affidavits of Dr. Robert McMurtry, submitted by the responding party in an application for judicial review challenging wind turbine setback regulations.

The moving party argued the affidavits were irrelevant, contained hearsay, and that the affiant lacked expert qualifications.

The court declined to strike the affidavits in their entirety, leaving issues of relevance, hearsay, and expert qualifications to the panel hearing the merits.

However, the court struck references to studies post-dating the adoption of the regulation, as they could not have informed the regulatory decision.

The appellants appealed a decision of the Ontario Municipal Board (OMB) refusing to order a joint board under the Consolidated Hearings Act (CHA) for a proposed golf course and residential development on the Oak Ridges Moraine.

The Divisional Court held that the OMB correctly determined it lacked jurisdiction to order a joint board because the potential hearings under the Ontario Water Resources Act were exempt under the applicable regulations.

Furthermore, the Court found that the OMB had the discretion under s. 24(2) of the CHA to refuse to order a joint board and made no error in exercising that discretion.

The appeal was dismissed.

The Town of Oakville appealed a decision of the Normal Farm Practices Protection Board that stayed a zoning by-law against the respondents, who were growing crops on contaminated former refinery lands zoned industrial.

The Divisional Court allowed the appeal, finding that the Board failed to provide adequate reasons for its decision, thereby denying natural justice.

Furthermore, the Court held as a matter of law that 'farming' is a land use, not a 'normal farm practice', and the Farming and Food Production Protection Act cannot be used to introduce a new agricultural use on land where farming is prohibited by a valid zoning by-law.

The moving party sought leave to appeal a decision of the Ontario Municipal Board (OMB).

The OMB had ruled it lacked jurisdiction to award costs after a licence application for aggregate removal and the subsequent ministerial referral were withdrawn.

The Divisional Court dismissed the motion for leave to appeal, finding the OMB correctly determined that under the Aggregate Resources Act, its jurisdiction was limited to the issues specified in the referral and it had no authority to review the pre-referral process or award costs in these circumstances.

The appellant appealed an OMB decision regarding an application by the respondent.

After leave to appeal was partially granted, the lake in question was reclassified as under threshold, rendering the appeal moot.

The respondent subsequently withdrew her application before the OMB.

The parties sought costs for the leave motion, perfection of the appeal, and the appearance.

The Divisional Court ordered no costs, finding that the appeal became moot through external circumstances and no fault of the respondents.

The applicant sought leave to appeal a decision of an Ontario Municipal Board Review Panel that ordered a rehearing of a property severance application.

The original Board had denied the severance due to concerns about water quality and phosphorous levels in Lake Waseosa.

The Review Panel ordered a rehearing, finding the original Board applied the wrong standard and failed to properly apply the precautionary principle.

The Divisional Court granted leave to appeal on three questions of law: whether the OMB's Rules apply to a s. 43 Review Panel decision, whether the Review Panel erred in finding the original Board applied the wrong test, and whether the Review Panel erred regarding the precautionary principle.

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.

The applicants sought judicial review of a decision by the Environmental Review Tribunal to quash one of their grounds of appeal.

The tribunal had previously granted leave to appeal a Director's order regarding nickel contamination in soil on only one of eight proposed grounds.

The Divisional Court dismissed the application for judicial review, finding that the tribunal had the jurisdiction to limit the scope of the appeal to the ground on which leave was granted.

The court also held that the application was premature, as it challenged an interlocutory procedural decision, and that the tribunal's decision was reasonable.

The applicants sought judicial review of a Hearing Officer's decision declaring jurisdiction to proceed with a hearing regarding an amended Plan for the Niagara Escarpment Planning Area.

The applicants argued that an investigation and survey under s. 3(2) of the Niagara Escarpment Planning and Development Act was a condition precedent to amending the Plan following a boundary alteration.

The Divisional Court dismissed the application, holding that the statutory requirement for an investigation and survey only applied when the Area was originally established, not for subsequent boundary amendments.

The appellant appealed an Ontario Municipal Board (OMB) decision which held that the commercial taking of water was not a 'use of land' under the Planning Act and therefore outside its jurisdiction.

The Divisional Court allowed the appeal, finding that the extraction of water using piping and pumps constitutes a use of land.

The Court held that the OMB erred in law by refusing to consider the water taking aspect of the proposed operation and directed a rehearing to consider the entire application for official plan and zoning by-law amendments.