Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
December 19, 2016
CASE NO.:
16-100
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Applicant:
Jack Hellinga (File No. 16-100)
Applicant:
Harry Wells (File No. 16-101)
Instrument Holder:
Port Colborne Quarries Inc.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of leave to appeal:
Permit to Take Water issued under section 34.1 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Reference No.:
7645-AAYS3Y
Property Address/Description:
Lots 20, 21 and 24, Concession 2, Geographic Township of Humberstone
Municipality:
City of Port Colborne
Upper Tier:
Regional Municipality of Niagara
ERT Case No.:
16-100
ERT Case Name:
Hellinga v. Ontario (Environment and Climate Change)
Heard:
In writing
APPEARANCES:
Parties
Counsel
Jack S. Hellinga
Self-represented
Harry Wells
Self-represented
Port Colborne Quarries Inc.
Jody E. Johnson
Director, Ministry of the Environment and Climate Change
Sarah Kromkamp
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY
REASONS
Background
1On June 17, 2016, Belinda Koblik, Director at the Ministry of the Environment and Climate Change (“MOECC”) issued amended Permit to Take Water No. 7645-AAYS3Y (“PTTW”) to Port Colborne Quarries Inc. (“PCQ”) under s. 34.1 of the Ontario Water Resources Act. The purpose of the PTTW is to amend a previous permit to take water in order to increase the total daily water taking at PCQ’s site from 8,640,000 litres to 25,466,400 litres. The site is located at Lots 20, 21 and 24, Concession 2, Geographic Township of Humberstone, Port Colborne in the Regional Municipality of Niagara.
2Notice of the Director’s decision to issue the PTTW was posted on the Environmental Registry (“Registry”) on October 5, 2016 under Registry No. 012-7449.
3On October 21, 2016, the Environmental Review Tribunal (“Tribunal”) received applications from Jack S. Hellinga and Harry Wells (“Applicants”) seeking leave to appeal the PTTW under the Environmental Bill of Rights, 1993 (“EBR”).
4On October 25, 2016, the Tribunal wrote to the Applicants acknowledging receipt of their applications for leave to appeal. The Tribunal advised the Applicants that, as it appeared that their applications were received beyond the 15 day statutory deadline provided for in s. 40 of the EBR, the Tribunal may not have jurisdiction to process the applications.
5The Tribunal provided an opportunity for the parties to make written submissions before making a determination as to whether to exercise its authority to dismiss the proceedings. The Tribunal gave the Applicants the opportunity to file written submissions by November 7, 2016, and gave the Director and PCQ the opportunity to file written submissions by November 10, 2016.
Issues
6The issues are:
whether the applications for leave to appeal were made later than the 15 day statutory deadline under s. 40 of the EBR;
if the answer to Issue 1 is yes, whether the Tribunal has jurisdiction to extend the time to file the leave to appeal applications; and
how the Tribunal should address the Applicants’ proposed conditional withdrawal of their applications.
Relevant Legislation and Rules
7Environmental Bill of Rights, 1993
- An application for leave to appeal under subsection 38 (1) shall not be made later than the earlier of,
(a) fifteen days after the day on which the minister gives notice under section 36 of a decision on the proposal; and
(b) fifteen days after the day on which notice relating to the proposal is given under section 47.
Rules of Practice of the Environmental Review Tribunal (“Rules”)
In computing time periods under an Act, a regulation, these Rules, or an order or decision of the Tribunal, “days” shall be calendar days. Where the time for doing anything under an Act, these Rules, or an order of the Tribunal expires on a Holiday, or on a day when the Tribunal is not open during its regular hours of business as set out in the table below, the time is extended to include the next day the Tribunal is open during its regular hours of business. A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens. A period of time described as beginning or ending on, at or with a specified day includes that day. A period of time described as beginning before or after a specified day excludes that day.
The Tribunal may, on its own initiative, dismiss a proceeding without a Hearing if:
(a) the proceeding relates to matters outside the jurisdiction of the Tribunal; or
(b) some aspect of the statutory requirements for bringing the proceeding has not been met.
- Before dismissing a proceeding on its own initiative, the Tribunal shall give notice of its intention to dismiss the proceeding to:
(a) all Parties to the proceeding if the proceeding is being dismissed for reasons referred to in clause (a) of Rule 119; or
(b) the Party who commenced the proceeding if the proceeding is being dismissed for any other reason.
- The notice of intention to dismiss a proceeding shall set out the reasons for the dismissal and inform the Parties of their right to make written submissions to the Tribunal with respect to the dismissal. A Party may make submissions within ten days from the date of the notice of intention to dismiss a proceeding.
Discussion, Analysis and Findings
Issue 1: Whether the applications for leave to appeal were made later than the 15 day statutory deadline under s. 40 of the EBR
Submissions
8Mr. Wells submits that his application to seek leave to appeal was made on October 19, 2016, 14 days after notice of the Director’s decision to issue the PTTW was posted on the Registry on October 5, 2016. He asserts that there a difference between the legal definitions of “made” and “received”, stating that: “made” is the past tense of “make”, which means “to cause to exist or happen; bring about; create, to bring into existence by shaping, modifying, or putting together material, constructing, to cause to be or become, to compose, to prepare”; and “received” is the past tense of “receive”, which means “to take, acquire or get possession of.” Based on these definitions, Mr. Wells contends that his application for leave to appeal satisfies s. 40 of the EBR in that the application was “made” on October 19, 2016.
9Mr. Wells notes that the Registry notice, which has been updated to reflect the applications for leave to appeal, indicates that the applications were received on October 19, 2016. Mr. Wells therefore submits that the date the Tribunal received his application should not limit its jurisdiction to process the application.
10Mr. Hellinga did not provide submissions on the issue of whether his application for leave to appeal was made later than the 15 day statutory deadline.
11PCQ submits that the last day for the Applicants to submit an application for leave to appeal was October 20, 2016, noting that the 15 day period to apply for leave to appeal is triggered the day after the Director’s notice of decision is posted on the Registry. PCQ notes that the Tribunal received the applications from both Applicants on October 21, 2016, and submits that they missed the 15 day time limit to make an application for leave to appeal under s. 40 of the EBR.
12PCQ states that the law is clear that the latest possible day for the Applicants to have filed their applications was 15 calendar days after October 5, 2016, noting that Rule 15 of the Tribunal’s Rules states that, in computing time periods under the EBR, “days” shall be calendar days. PCQ further cites the Tribunal’s decision in Scharfe o.b.o. Ramsayville Community Association v. Ontario (Director, Minister of the Environment), [2009] O.E.R.T.D. No. 61 (“Scharfe”), at para. 23, confirming that the 15 day limit is counted using calendar days, including Saturdays and Sundays, and that holidays that occur during the 15 day limit do not extend that time period.
13The Director agrees with PCQ’s submission that the Tribunal’s Rules provide that “days” shall be calendar days, to be counted by excluding the day on which the first event, in this case notice, occurs but including the day on which the second event, in this case filing, occurs. The Director further notes that Rule 15 is consistent with s. 89 of Ontario’s Legislation Act, which governs the calculation of time in interpreting legislation. Therefore, the Director asserts that, since the PTTW was posted on the Registry on October 5, 2016, the deadline for filing an application for leave to appeal the PTTW was October 20, 2016, 15 calendar days from the posting.
14Regarding the interpretation of the word “made” in s. 40 of the EBR, the Director states that, in the context of this provision, the Tribunal has consistently interpreted it to mean made to the Tribunal (Miller v. Ontario (Director, Ministry of the Environment), [2008] O.E.R.T.D. No. 27 (“Miller”) at paras. 34 & 35; Green v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 65 (“Green”) at para. 43).
15The Director addresses Mr. Wells’ argument that his application was made on October 19, 2016 because the Registry lists the “Date Notice of Leave to Appeal received” as October 19, 2016. Noting that the Tribunal did not receive the application until October 21, 2016, the Director cites a similar issue in Green, where there was an inconsistency between the "Date Notice of Leave to Appeal received" as stated on the Registry and the date that the Tribunal actually received the notice. The Director submits that, in reaching the conclusion in the Green matter that the applications were not made within the statutory timeframe, the Tribunal held that the Registry posting did not alter the fact that the applications were received late by the Tribunal and that “in any event, data entered on the Registry cannot override statutory requirements” (Green, at para. 44).
Analysis and Findings
16Given that the notice of the Director’s decision to issue the PTTW was posted on the Registry on October 5, 2016, the Tribunal accepts that the last day of the 15 day period to file a leave to appeal application following the notice being posted was October 20, 2016. As noted above, the Tribunal received the leave to appeal applications from both Applicants on October 21, 2016. Rule 15 of the Tribunal’s Rules clearly states that days are to be computed as calendar days, regardless of weekends or holidays.
17Regardless of when the Applicants sent their applications, the use of the mandatory language “shall not be made later than” the 15 day leave to appeal application period, in s. 40 of the EBR, requires that the applications be received by the Tribunal within the 15 day limit. This was affirmed in the Tribunal’s decision in Miller, in which the Tribunal found, at para. 35, that:
the responsibility lies with the applicant to ensure that the application is made to the appellate body within 15 days. While it might have been even clearer if section 40 had included the words "made to the appellate body", the Tribunal concludes that the making of an application under section 40, as it reads in its full context, must mean making it to the appellate body.
18Regarding the submission by Mr. Wells that the Registry notice states that the applications were received on October 19, 2016, the Tribunal agrees with the Director’s submission that the Tribunal has addressed this situation in the Green case, where the Registry notice had listed a different date as the “Date Notice of Leave to Appeal received” than the date upon which the Tribunal received the applications. In Green, at para. 44, the Tribunal determined that although the information in the Registry notice was correct in relation to the office of the Environmental Commissioner of Ontario, this did not alter the fact that the Tribunal had received the applications late. The Tribunal in Green held that data entered on the Registry cannot override statutory requirements.
19Therefore, the Tribunal finds that the applications for leave to appeal in this matter were made later than the 15 day statutory deadline under s. 40 of the EBR.
Issue 2: If the answer to Issue 1 is yes, whether the Tribunal has jurisdiction to extend the time to file the leave to appeal applications
Submissions
20Mr. Wells further submits that a 15 time day period does not allow the public sufficient time to become aware of the posting and take the necessary steps to obtain relevant documents and information and to obtain advice, in order to seek leave to appeal. He states that he has not yet received a copy of the PTTW that he requested from MOECC in response to the Registry notice posted on October 5, 2016. It is his position that his leave to appeal application was made within the required time period and complies with s. 40 of the EBR.
21Mr. Hellinga did not provide submissions on the issue of whether the Tribunal has jurisdiction to extend the time to file the leave to appeal applications.
22PCQ submits that the Applicants are statute-barred from seeking leave to appeal the Director’s decision to issue the PTTW and that the Tribunal has no jurisdiction to consider or grant the application. Because the Tribunal received the applications from the Applicants on October 21, 2016, one day after the 15 day limit ended, PCQ asserts that the Tribunal has no jurisdiction to extend the 15 day limit to accept the Applicants’ applications. PCQ cites previous decisions, including Scharfe at para. 24, in which the Tribunal has held that it only has the powers and jurisdiction granted to it by statute and does not have the jurisdiction to relax a statutory requirement such as the 15 day limit.
23The Director submits that the Tribunal does not have the jurisdiction to consider these applications because the Applicants have missed the statutory deadline for filing applications for leave to appeal the PTTW, and the Tribunal has no jurisdiction to extend this deadline and consider the applications.
24Regarding Mr. Wells’ argument that the 15 day limitation period does not allow the public sufficient time to prepare and file an application for leave to appeal, the Director indicates that these arguments cannot override the statutory limitation period. The Director asserts that the Tribunal has consistently found that it has no inherent or statutory jurisdiction to extend the limitation period beyond the 15 days set out in s. 40 of the EBR, citing Miller at para. 31 and Green at para. 46.
Analysis and Findings
25Given the Tribunal’s finding that the Applicants’ applications for leave to appeal were made later than the 15 day statutory deadline under s. 40 of the EBR, the Tribunal now addresses the issue of whether it has jurisdiction to extend the time to file the leave to appeal applications.
26As PCQ and the Director submit, the Tribunal’s previous case law on this question (including the decisions in Scharfe, Miller and Green) is clear. The Tribunal has only the powers and jurisdiction granted to it by statute. The Tribunal does not have the inherent or statutory jurisdiction to extend the time limit by which it must receive an application for leave to appeal beyond the 15 day period required in s. 40 of the EBR.
27Regarding Mr. Wells’ submission that a 15 time day period does not allow members of the public sufficient time to respond, the Tribunal notes that the requirements governing leave to appeal applications in the EBR are determined by the Legislature. The role of the Tribunal is to act within its jurisdiction under the EBR.
28Therefore, the Tribunal finds that it does not have jurisdiction to extend the time to file the leave to appeal applications.
Issue 3: How the Tribunal should address the Applicants’ proposed conditional withdrawal of their applications
Submissions
29Mr. Wells also makes submissions regarding a proposed conditional withdrawal of his leave to appeal application. Similarly, Mr. Hellinga proposed a conditional withdrawal of his application for leave to appeal.
30PCQ submits that the Tribunal should not engage in an analysis of the information put forward by the Applicants to support the requested conditional withdrawal of each application, stating that the issues raised deal with the activity regulated by the PTTW and any related enforcement issues, and are irrelevant to the leave to appeal applications and outside the jurisdiction of the Tribunal on these applications.
31The Director notes that the Applicants both indicate terms for conditionally withdrawing their applications with respect to certain assumptions. However, the Director states that she is not able to comment on the accuracy of these assumptions and further states that this information is irrelevant to whether the Tribunal has the jurisdiction to hear these applications for leave to appeal, and therefore should be disregarded by the Tribunal in determining this preliminary issue.
Analysis and Findings
32The Tribunal has reviewed the proposals from the Applicants concerning the proposed conditional withdrawal of their applications for leave to appeal. The Tribunal has also considered the submissions of the parties regarding these proposals.
33The Tribunal finds that the Applicants’ submissions concerning the proposed conditional withdrawal of their applications are not relevant to the decision before the Tribunal in this matter, which is whether the Tribunal has jurisdiction to consider the applications for leave to appeal that were received from the Applicants on October 21, 2016. As a result, the Tribunal will not address the Applicants’ proposed conditional withdrawal of their applications.
DECISION
34The applications for leave to appeal are dismissed for lack of jurisdiction.
Applications for Leave to Appeal Dismissed for Lack of Jurisdiction
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248