Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 25, 2017

CASE NO.: 16-113

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicant: Hai Mei (Linda) Hong (File No. 16-113) Applicant: Ernie Lustig (File No. 16-114) Applicant: Golfdale Construction Limited (File No. 17-001)

Instrument Holder: Ingram Asphalt Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of leave to appeal: Amended Environmental Compliance Approval under section 20.3 of Environmental Protection Act, R.S.O. 1990, c. E.19, for the operation of a batch mix asphalt manufacturing facility

Reference No.: 6482-AF4SDA

Property Address/Description: 103 Ingram Drive

Municipality: City of Toronto

ERT Case No.: 16-113

ERT Case Name: Hong v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties	Counsel/Representative
Hai Mei (Linda) Hong	Self-Represented
Ernie Lustig	Self-Represented
Golfdale Construction Limited	John P. Conforzi
Director, Ministry of the Environment and Climate Change	Sylvia Davis
Ingram Asphalt Inc.	Harry Poch

ORDER DELIVERED BY JERRY V. DEMARCO

REASONS

Background

1This Order of the Environmental Review Tribunal (“Tribunal”) addresses two related motions to review (reconsider) an earlier decision of the Tribunal. The first motion is brought by Hai Mei (Linda) Hong and Ernie Lustig and the second by Golfdale Construction Limited (“Golfdale”); they will be collectively referred to as the “Applicants”.

2Both motions are in respect of a Tribunal decision dated February 27, 2017 (Hong v. Ontario (Environment and Climate Change), [2017] O.E.R.T.D. No. 10 (“Decision”)). The Decision dismissed the Applicants’ applications for leave to appeal Amended Environmental Compliance Approval No. 6482-AF4SDA (“ECA”). The ECA was issued by Ian Greason, Director, Ministry of the Environment and Climate Change (“MOECC”) to Ingram Asphalt Inc. (“Ingram”) under the Environmental Protection Act (“EPA”). The ECA amended and replaced Environmental Compliance Approval No. 8-3330-99-006 for the operation of a batch mix hot mix asphalt plant (“facility”) located at 103 Ingram Drive (“site”) in the City of Toronto (“City”).

3The Decision was rendered by a panel of the Tribunal (“Leave Panel”) following a written hearing pursuant to s. 38 to 41 of the Environmental Bill of Rights (“EBR”), s. 17 of Ontario Regulation 73/94, and Rules 46 to 60 of the Tribunal’s Rules of Practice (“Rules”). The Leave Panel found that the Applicants did not meet the first branch of the EBR leave test and, therefore, did not consider the second branch of the test.

4For the reasons set out below, the Tribunal concludes that it is not advisable to review the Leave Panel’s Decision.

Relevant Legislation and Rules

5The relevant legislative provision and Rules are as follows:

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

Power to review

21.2(1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.

Tribunal Rules

REVIEW OF ORDERS AND DECISIONS (RECONSIDERATION)

235. A Party may request a review of an order or decision.

236. Notwithstanding Rule 98, a Party making a request under Rule 235 shall serve and file a Notice of Motion and all supporting material within 30 days of the date of the making of the order or decision that is the subject of the request, except in the case of orders and decisions made under the Environmental Bill of Rights, 1993, in which case the request must be made within ten days.

237. Notwithstanding Rule 99, a Party who wishes to respond to a motion to review shall serve and file its submissions and all supporting material within ten days of the serving of the Notice of Motion and all supporting material under Rule 236.

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.

239. The Tribunal may grant the motion in whole or in part, based on the material filed and/or the record from the original Hearing, and may make procedural directions for the review.

240. The panel who issued the original order or decision shall not hear the motion to review, but may hear the review itself if so designated by the Chair.

241. The panel who heard the motion to review shall not conduct the review.

242. Following the review Hearing, the Tribunal may confirm, vary, suspend, or cancel the order or decision under review in whole or in part.

Issue

6The issue is whether it is advisable to grant the motion to review the Leave Panel’s Decision.

Discussion

Ms. Hong’s and Mr. Lustig’s Submissions

7Ms. Hong and Mr. Lustig take the position that it is advisable to review the Decision pursuant to Rule 238(b) on the basis that the Leave Panel made material errors of law or fact. They argue that the Leave Panel’s errors were such that the Tribunal would likely have reached a different finding on the reasonableness of the Director’s decision to issue the ECA under the first branch of the EBR leave test. They also argue that the Leave Panel should have proceeded to analyze the second branch of the EBR leave test (i.e., harm to the environment) because the Decision should have found that the first branch had been met.

8In particular, Ms. Hong and Mr. Lustig submit that the Leave Panel failed to adequately consider City Zoning By-law No. 569-2013 (“ZBL 569-2013”), Chapter 591 – Noise (“Noise Code”) of the Toronto Municipal Code, and MOECC Guideline D-6 entitled “Compatibility Between Industrial Facilities and Sensitive Land Uses” (“Guideline D-6”). They state that an appeal of ZBL 569-2013 to the Ontario Municipal Board (“OMB”) is ongoing, and that the ECA allowing Ingram to operate the facility is in contravention of the by-law because an asphalt plant is not a permitted use thereunder. They also argue that the Director unreasonably issued the ECA without considering Ingram’s noise emissions in light of the Noise Code and the prohibition against discharge of noise as a contaminant under s. 14 of the EPA. They further state that the Director and the Leave Panel should have considered Guideline D-6, under which they argue Ingram’s Class III industrial facility asphalt plant would never have been allowed to operate given the “irreconcilable incompatibilities” with the sensitive land uses surrounding the site.

9Ms. Hong and Mr. Lustig argue that there is no evidence to show that Ingram’s past violations of its previous approval and the EPA will not recur under the ECA. They worry that the ECA allows for additional equipment, increased production and greater discharge despite their concerns about Ingram’s open storage, outdoor operations, and inadequate separation distance from surrounding properties. They also argue that the Director issued the ECA and the Leave Panel dismissed their leave applications by inappropriately relying on the Acoustic Assessment Report (“AAR”) and the Emission Summary and Dispersion Modelling (“ESDM”). They suggest that the AAR inappropriately ignores surrounding sensitive land uses as the closest point of reception based on Noise Guideline NPC-300, which they interpret as being incompatible with the Noise Code and the EPA. They also suggest that the ESDM contains inaccuracies in modelling and is inconsistent with Guideline D-6.

10As such, Ms. Hong and Mr. Lustig submit that the Leave Panel’s Decision dismissing their applications for leave to appeal the ECA contained material errors of law or fact, and should be reviewed.

Golfdale’s Submissions

11Golfdale’s submissions do not directly address any of the criteria in Rule 238. Its submissions are structured more like an annotated list of concerns with the Leave Panel’s Decision and the underlying Director’s decision than a motion to review. Golfdale takes the position that the Director’s review of the ECA application and ultimate decision to issue the ECA were unreasonable given public concerns about health impacts from Ingram’s facility and the lack of emission sampling and analysis. It states that the MOECC has not adequately addressed Golfdale’s tenants’ concerns about the emissions while unfairly expecting them to supply field data as evidence. Golfdale questions why the MOECC issued the ECA without consulting other government entities given Ingram’s previous violations. Golfdale argues that, under the circumstances, the MOECC and the Tribunal are responsible and liable should its tenants and other area residents develop chronic health problems related to Ingram’s emissions.

12Golfdale seeks sampling and analysis of Ingram’s emissions to “prove or disprove the conclusions of the dispersion model being used” as well as a schedule of any work and associated timelines for Ingram as required by the MOECC. It further requests continued emissions monitoring and analysis for potential health impacts to its tenants should Ingram be allowed to continue operations under the ECA.

The Director’s Submissions

13In response, the Director takes the position that the motions to review should be dismissed. The Director argues that the Applicants have not shown that it is advisable to grant a review of the Leave Panel’s Decision even under the lower threshold applicable to motions to review a decision dismissing an EBR application for leave to appeal (see: Miller v. Ontario (Ministry of the Environment), [2008] O.E.R.T.D. No. 27 (“Miller”) and Concerned Citizens of Brant v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 26 (“CCOB”)).

14The Director submits that the Applicants have merely reiterated their arguments from their original leave applications, which the Leave Panel already found did not meet the EBR leave test. Further, the Director argues that the Applicants have failed to show how any of the criteria under Rule 238 apply such that it is advisable to review the Decision. Regarding Rules 238 (a) to (c), the Director argues that nothing in the Applicants’ submissions provide evidence that the Leave Panel acted outside of the Tribunal’s jurisdiction; that the Leave Panel made a material error of law or fact such that the Tribunal would likely have reached a different decision but for that error; or that new evidence has arisen since the leave applications.

15Regarding Rules 238 (d) and (e), the Director notes that Ingram will be relying on the Decision to move forward with its operations, and the Decision is not under appeal or judicial review. Lastly, under Rule 238(f), the Director suggests that the public interest in the finality of the Decision outweighs any prejudice to the Applicants, particularly since the amendments included in the ECA requiring “further, more stringent, monitoring and mitigation measures to reduce noise, dust and odour” will address their concerns. The Director takes the position that the ECA as issued will protect the public and the environment and ensure compliance with relevant legislation and guidelines.

Ingram’s Submissions

16Like the Director, Ingram takes the position that it is not advisable to review the Leave Panel’s Decision. Ingram argues that the Applicants’ submissions “are not a proper motion” as they have simply reargued their original positions from their leave applications, which were thoroughly considered by the Leave Panel. Further, Ingram submits that the Applicants’ submissions “do not address if, let alone how, the ERT decision did not meet the legislated leave to appeal tests.”

Analysis and Findings

The Review Rules in General

17As set out in CCOB at para. 67 (citing Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 55), the “Tribunal’s power to order a review is a discretionary power to be used only rarely.” At paras. 68 and 116 of CCOB, the Tribunal stated:

As noted in Miller, at para. 18, “any number of reasonable outcomes might be under consideration in a proceeding”. Therefore, the review motion panel should not find that a review is advisable simply because it would have reached a different decision. It is not the role of the panel hearing a review motion to merely substitute its decision for that of the original panel and grant a review hearing too readily. Rather, the power to review should only be used in exceptional circumstances.

The Tribunal finds that, in main hearings and leave to appeal hearings, it is often the case that there is more than one viable outcome for the Tribunal to consider. Just as a court would defer to a specialized tribunal’s decision to choose one preferred option from a range of reasonable alternatives, one Tribunal panel reviewing a decision of another Tribunal panel under Rule 235 should consider the motion to review in a manner that offers considerable deference to the original panel, which examined the evidence and submissions in depth. This deferential approach is reflected in the wording of the Rules and the relevant case law discussed above (i.e., Trent Talbot, Miller, and Baker).

The Review Rules and the Threshold for Reviewing EBR Leave Decisions

18Miller and CCOB are the only two Tribunal cases dealing with a motion to review a decision made by the Tribunal on a leave application under the EBR. In its previous decisions on motions to review, the Tribunal has applied a higher threshold to EBR decisions that are not final determinations and a lower threshold to those that are final and that have no right of appeal. Miller involved the dismissal of a leave application, thereby effectively ending the litigation at an early stage. A lower threshold applied in that case. CCOB involved the granting of leave in part, such that the leave decision did not finally settle the substance of the matters raised in the review motion. A higher threshold applied there.

19The Decision subject to the within motions to review dismissed the leave applications and ended the litigation. As noted in CCOB at para. 76:

A dismissal of a leave application, as in Miller, is the clearest example of where the lower threshold applies as the substantive decision subject to the leave application becomes final.

20Where a leave application was dismissed, as in Miller and the current case, the lower threshold for review applies because such a decision ends the case before the Tribunal and there is no right of appeal regarding decisions on leave applications under the EBR. As such, the Tribunal will analyze the Applicants’ motions, including assessing the considerations set out in Rule 238, using the lower threshold for review.

21As noted in Miller at para. 41, the same factors are considered under both thresholds, “but the Tribunal’s approach to deciding on the advisability of a review should be different” when the lower threshold applies. That is, the Tribunal would be more likely to exercise its discretion and determine that it is advisable to grant a review when the lower threshold applies (i.e., for those cases where the decision subject to the review motion is a final determination and there is no right of appeal), as the consequences resulting from a dismissal of the review are more significant than they are in other cases (see CCOB, at para. 71).

The Applicants’ Submissions within the Context of the Rule 238 Considerations

22Rule 238 states that the Tribunal may consider any relevant circumstances in deciding on the advisability of a review. The Rule goes on to list six considerations that the Tribunal may consider. As noted in CCOB at para. 80:

Generally speaking, the first three considerations in Rule 238 are examples of situations where the Tribunal will consider ordering a review hearing. The last three considerations “are not grounds for review per se, but rather relevant considerations for a panel hearing a Motion to review to examine in determining whether a review is warranted” (Trent Talbot, at para. 191)… Advisability is to be determined in the context of all relevant factors listed in Rule 238 and any other relevant considerations.

23Where the Applicants have taken issue with particular passages of the Decision that simply summarize the position of a party (e.g., Golfdale’s concerns about paras. 59, 65, 75 and 76 of the Decision), the Tribunal has determined that it is not necessary to analyze those passages, as they are simply the Leave Panel’s summaries of submissions. As well, in regards to the argument by Ms. Hong and Mr. Lustig that the Leave Panel’s choice of summarizing only the most relevant submissions (see para. 12 of the Decision) constitutes an error because the Decision’s summary leaves out some important submissions, the Tribunal has reviewed the Decision and the alleged deficiencies in the summaries of the submissions therein and found no error in that regard. It is open to a panel, especially on a leave application, to provide a brief summary of the most relevant submissions and no error was committed by the Leave Panel in that regard (see also CCOB at para. 92). Finally, where the Applicants on this motion have failed to tie a particular argument to alleged errors in the Leave Panel’s Decision, the Tribunal has determined that it is not necessary to analyze those submissions in depth. Therefore, the submissions by the Applicants analyzed below are the ones that appear to the Tribunal to be most germane to Rule 238, in particular Rule 238(b).

Rules 238 (a) and (c): Jurisdiction and New Evidence

24Rule 238(a) addresses “whether the Tribunal acted outside its jurisdiction”. The Applicants do not make any specific allegation that the Tribunal acted outside its jurisdiction. The Director argues that the Applicants failed to provide any evidence that the Tribunal acted outside its jurisdiction. The Tribunal finds that none of the submissions of the Applicants, regardless of whether Rule 238(a) is specifically mentioned, raise any issue regarding this factor. Consequently, this provision will not enter into the Tribunal’s analysis of whether it is advisable to review the Decision.

25Rule 238(c) addresses “whether there is new evidence admissible under the conditions of Rule 234”, which requires that such evidence is material to the issues, is credible, could affect the hearing result, and was either not in existence or not obtainable at the time of the hearing for reasons beyond the requesting party’s control. The Director states that no new evidence has been raised by the Applicants and argues that the motion materials merely reiterate the Applicants’ original positions in seeking leave to appeal. The Tribunal finds that none of the submissions of the Applicants, regardless of whether Rule 238(c) is specifically mentioned, raise any issue regarding this factor. Consequently, this provision will also not enter into the Tribunal’s analysis of whether it is advisable to review the Decision.

Rule 238(b): Material Error of Law or Fact

26Rule 238(b) addresses “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”. The motion brought by Ms. Hong and Mr. Lustig specifically alleges that the Tribunal made a wrong decision that was based on material errors of fact and law. While Golfdale’s arguments do not make specific reference to any rule, the Tribunal has considered Golfdale’s submissions under Rule 238(b) as it appears to be the closest fit to its list of concerns with the Decision.

27The Leave Panel, at para. 28 of the Decision, summarized the task before it in a leave to appeal application under the EBR:

The Tribunal notes that, at this stage, it is not its role to decide the merits of the appeals sought, but to determine only whether the statutory test set out in s. 41 of the EBR has been met, by focusing on those aspects of the evidence and argument directly relevant to the Leave Test. The Tribunal notes that both questions in the test must be answered in the affirmative, in order for leave to appeal to be granted.

28For the purposes of the specific matters raised in this motion to review, the relevant questions before the Leave Panel involved the leave to appeal test set out in s. 41 of the EBR, which states:

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.

29Under Rule 238(b), the Tribunal on the within motion is now tasked with determining whether the Applicants have shown that the Decision contains a material error of law or fact in how it addressed the EBR leave to appeal test. If an error was made, the Tribunal must also determine whether the Leave Panel would likely have reached a different decision but for that error.

Municipal Zoning and OMB Proceeding

30As summarized above, Ms. Hong and Mr. Lustig allege an error of law in respect of the Decision’s treatment of issues relating to zoning and an appeal before the OMB. They question what the Director will do if the OMB decision results in the facility becoming a prohibited use. Golfdale questions why the MOECC is not waiting to grant approval until the “other issues are properly resolved”.

31Starting at para. 85, in a section entitled “Issuance of ECA while City Zoning By-law No. 569-2013 Under Appeal”, the Decision analyzed the arguments put forward by the Applicants and determined that the first branch of the EBR leave test had not been met. At para. 86, the Decision states:

The Tribunal finds that it was appropriate for the Director to make a decision on the ECA in the circumstances present here. The fact that another decision-making entity may or may not make a decision that could 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 in this case.

32The Leave Panel made this finding after analyzing the issue and considering the arguments put forward by the parties, which it summarized at paras. 30-32 and 61-62 of the Decision. The arguments now put forward by the Applicants are not significantly different from what they submitted previously and do not demonstrate any error of law or fact in the Decision. As regards the question from Ms. Hong and Mr. Lustig regarding what the Director may do if one particular scenario results from the OMB proceeding, the Tribunal is satisfied that the Director has the appropriate legislative authority to deal with the results of such a scenario in the future and that the Leave Panel made no error in its findings respecting that issue.

Compliance with the Noise By-law and the EPA

33As summarized above, the Applicants raise issues and make arguments about compliance with municipal noise by-laws as well as the EPA. Starting at para. 88, in a section entitled “Violation of the Toronto Municipal Code”, the Decision analyzed the arguments put forward by the Applicants and determined that the first branch of the EBR leave test had not been met. At para. 89, the Decision stated:

…Ms. Hong and Mr. Lustig have presented their concerns but the Tribunal has not received evidence that the terms and conditions in the ECA will not reduce noise to acceptable levels. Instead, the evidence from the Director suggests that the conditions will ensure that Ingram will operate the facility in a manner that prevents or alleviates adverse effects from noise.

34With respect to the EPA in particular, in a section entitled “Violation of the EPA”, the Leave Panel found at para. 97:

The ECA does not relieve Ingram from any obligation to comply with other applicable legal requirements. The Applicants have provided evidence of past violations of the EPA, related to the Ingram facility. The Director states that “past events are not evidence that conditions in an amended environmental compliance approval will not be effective in reducing the problems they were intended to address”. The Tribunal accepts the Director’s submission that past events are not evidence that the ECA amending Environmental Compliance Approval No. 8-3330-99-006 will not be effective going forward, in achieving compliance with the EPA.

35The Leave Panel made the above findings after analyzing the issue and considering the arguments put forward by the parties, which it summarized at paras. 33-36, 63-68, 72-76, 80 and 83 of the Decision. The Applicants’ arguments on this motion do not differ significantly from what they submitted previously to the Leave Panel. As well, they do not demonstrate any error of law or fact in the Decision. The Decision was dealing with an amendment to an instrument where such amendment was intended to address compliance issues. Moreover, if future compliance issues do arise, despite the Director’s efforts to address them in the amendment, then appropriate enforcement action can still be taken by the MOECC.

MOECC Guideline D-6

36As summarized above, the Applicants raise issues regarding MOECC Guideline D-6. Three sections of the Decision (paras. 37-41, 69-71 and 91-96) are dedicated to summarizing the submissions respecting Guideline D-6 and analyzing this issue.

37The Leave Panel ultimately found Guideline D-6 to be inapplicable to the circumstances of this case. At para. 92, it stated:

Whether or not members of the community had the opportunity to appeal the decision to issue the original Certificate of Approval, as raised by Ms. Hong and Mr. Lustig, and whether or not Guidelines D-1 and D-6 applied at the time that it was issued, are not factors determinative of the situation existing today. It is clear that the Ingram facility has been existing and operating in close proximity to its neighbours for many years, and it therefore follows that the application for the ECA did not involve a “new sensitive land use” or a “new facility” (emphasis added) as described by Mr. Merza.

38As indicated above, the Leave Panel clearly noted that it was not presently addressing what guidelines may have been applicable at the time the original Certificate of Approval for the facility was being considered in 1999. The current situation before the Leave Panel involved revisions to an approval for a facility that has been in operation at this location for many years.

39In determining the applicability of Guideline D-6 to the present situation, the Leave Panel considered three other cases where a similar question was raised. At para. 95, the Leave Panel concluded:

While the Tribunal is not bound by previous Tribunal and Environmental Appeal Board decisions, the Tribunal has heard no evidence or submissions to suggest that the findings in the above-cited cases were incorrect. The Tribunal, therefore, adopts the reasoning in RACPI, Welch and Wong-Tam, and accepts Mr. Merza’s explanation that Guideline D-6 does not apply to situations where a sensitive land use or a facility already exists and there is no new land use proposal for which approval is sought.

40In CCOB, at para. 172, the Tribunal noted:

…the Tribunal is not bound by stare decisis but does rely heavily on its accumulated jurisprudence. This enables each case to be decided on its merits according to the purposes and provisions of the relevant legislation while also providing an appropriate level of predictability and certainty to those affected by Tribunal decisions.

41In this motion, Ms. Hong and Mr. Lustig question why the Leave Panel followed the three cases cited in para. 95 of the Decision given the unique facts of this case. Despite the local circumstances being different in the present case as compared to the situations in the cited cases, the particular aspect of those three cases that was followed by the Leave Panel was similar to the current case. In particular, the Leave Panel had to determine whether the guideline applied when a facility was already in place. In this regard, the Leave Panel stated at para. 94:

Despite the differences in the facts of the three cases, each considered a Director’s alleged failure to either consider or apply Guideline D-6 in issuing an approval under s. 9 of the EPA, and whether the Director acted unreasonably in not doing so. In each case, the Tribunal found that Guideline D-6 is not intended to apply to decisions to issue approvals such as an Environmental Compliance Approval (or its predecessor, a Certificate of Approval).

42Given that the Leave Panel was provided with no evidence or submissions to suggest that the findings in the three cases cited in para. 95 of the Decision were incorrect, the Tribunal on this motion finds no error in how the Decision analyzed and applied those cases or the facts of this case with regard to the applicability of Guideline D-6.

Technical Reports

43The Applicants question the accuracy and approach of some of the technical reports underlying the ECA application. Ms. Hong and Mr. Lustig challenge the Leave Panel’s reliance on the evidence of two senior engineers with the MOECC and the conclusion it reached at para. 102 of the Decision (where it found that the first branch of the EBR leave test had not been met). At para. 99 of the Decision, the Leave Panel stated:

On a leave to appeal application, the onus is on the Applicant to show that 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. Although the Applicants, in particular Golfdale on behalf of its tenants, have expressed frustration with the dispersion modeling data and conclusions made based on them, the Tribunal accords more weight to the evidence of Mr. Merza and Mr. Mercer, both of whom are senior MOECC engineers, that in their professional opinions, the conditions included in the ECA will protect the public and the environment, and will ensure that Ingram complies with relevant legislation and with MOECC Guidelines and Publications.

44The Applicants appear to misunderstand that the onus is on applicants seeking leave to appeal under the EBR. Ms. Hong and Mr. Lustig state that the Director is required to prove that the results in the technical reports are correct. Golfdale states that it can only hypothesize as to what may come about at this point. Golfdale also states that if this is going to be the final decision of the Tribunal then the Tribunal is “taking on the responsibility and liability” should residents or tenants develop health problems. It appears that Golfdale misconstrues the nature of a leave to appeal application under the EBR. A leave decision by the Tribunal is made on the basis of what the parties put forward; an applicant will not succeed by simply raising concerns about a decision without meeting the leave test. In a leave proceeding, the Tribunal is not making a final conclusion on what will result from a decision by the MOECC nor giving any approval or facility a ‘clean bill of health’. It is simply assessing whether an applicant has met the leave test. Given the Director’s evidence in support of the issuance of the ECA, it was open to the Leave Panel to rely on that evidence, especially where the Applicants did not provide sufficient evidence to show that the leave test had been met. The Tribunal finds no error in this part of the Leave Panel’s analysis.

45Nevertheless, the Tribunal urges the Director to monitor the facility closely to determine if the modelling done in the reports is accurate in practice and to work with the Applicants to address any further concerns they may have in this regard. Golfdale states: “All we are asking for is empirical validation of the chemical composition and levels of the emissions from the asphalt plant to the dispersion model”. Golfdale correctly notes that the MOECC has the authority and resources to perform sampling so as to avoid a potentially serious situation in the future. It states that it would be better to err on the side of caution. Golfdale also puts forward what it believes to be a reasonable approach for the Director to follow.

46It must be recalled that the EBR leave stage is different from the “new hearing” that takes place after leave is granted. In a new hearing, where a party puts forward an approach that the Tribunal prefers over that which was taken or proposed by the Director, the Tribunal is not required to defer to the Director even if the Director’s approach was reasonable. Rather, the Tribunal can substitute its opinion for that of the Director. At the leave stage, however, applicants must meet the two-part test set out in the EBR in order to obtain a new hearing. It is not enough for applicants to simply put forward a reasonable approach to a situation without also showing that “it appears… that, (a) there is good reason to believe that no reasonable person… could have made the decision; and (b) the decision… could result in significant harm to the environment” (EBR, s. 41).

47As the Tribunal has stated before, there are often several reasonable approaches to addressing environmental issues. Demonstrating that one approach is reasonable does not necessarily mean that all other approaches are unreasonable. The Decision notes the Director’s argument in this regard at para. 75:

The Director says that while the Applicants may have preferred a different approach, they have not shown that there appears to be good reason to believe that the approach adopted, or that the decision made by the Director in following that approach, does not fall within the range of reasonableness in these circumstances.

48In this case, the Leave Panel, at para. 102 of the Decision, expressly concluded that the Director’s approach was reasonable:

The Tribunal acknowledges that the Applicants’ concerns in this matter have been brought forward in a genuine and non-frivolous manner. However, the Tribunal finds that including conditions that mandate a Mitigation Plan, additional monitoring, a Noise Abatement Action Plan and an Acoustic Audit, among others, represents a reasonable approach to preventing environmental harm and addressing the ongoing concerns of the Applicants in this case.

49Though the Applicants have not met the leave test or shown that the Decision contains an error in regards to its reliance on the technical reports, Golfdale is correct that the MOECC can take further steps to respond to the Applicants’ concerns. It appears that at least some of the Applicants’ concerns may be addressed by further testing and reporting combined with open communication with nearby residents. The Tribunal urges the Director to take the appropriate steps, via the new conditions in the ECA (see para. 101 of the Decision) and any other means, to respond to the concerns and frustrations identified by members of the community.

Second Branch of the EBR Test

50Ms. Hong and Mr. Lustig challenge the Leave Panel’s decision to forego an analysis of the second branch of the EBR leave test regarding environmental harm because it found that the first branch had not been met. There is no error in this regard. Both branches must be met in order for leave to appeal to be granted. As the Leave Panel committed no error in its analysis of the first branch, it cannot be said that it committed an error by electing not to analyze the second branch, which was effectively moot at that point in the Leave Panel’s analysis.

Conclusion Regarding Rule 238(b)

51The Applicants have not shown that any material error was made. Rather, their review arguments are largely a reiteration of some of their arguments from the leave stage or expressions of concern regarding particular passages in the Decision or aspects of the ECA. As noted above, a motion to review is not an opportunity for a party to simply reargue its case. Looking at the Leave Panel’s reasons as a whole alongside the Applicants’ submissions on this motion, the Tribunal concludes under Rule 238(b) that the Applicants have failed to demonstrate any material error of law or fact that would likely have changed the result.

Rules 238 (d) to (f)

52Given that the Applicants have not raised any grounds for review under Rules 238 (a) and (c) and have not been successful on their grounds favouring a review under Rule 238(b), it is not necessary in these circumstances to address the criteria in Rules 238 (d) to (f) that could weigh against a review.

Overall Conclusion

53The Applicants have not demonstrated that any of the factors that weigh in favour of a review under Rule 238 apply to the Decision. Having considered the relevant factors in Rule 238 under the lower threshold applicable in this case and having reviewed the submissions made by the parties, the Tribunal concludes that it is not advisable to review the Leave Panel’s Decision.

54As noted above, the Applicants raise what they consider to be significant concerns regarding the operation of the facility at the site. The Leave Panel’s Decision simply analyzed whether the Applicants met the EBR leave test and this order on the review motion simply analyzes whether a review of that Decision is advisable. In both cases, the Applicants have not been successful in meeting the relevant tests. However, the Applicants may raise with the relevant enforcement authorities their concerns about whether the operation of the facility is in compliance with relevant municipal and provincial standards. As well, this order does not prevent the Applicants from requesting from the MOECC that further studies be undertaken or that compliance action be undertaken if violations occur. The Tribunal encourages the parties to maintain an open dialogue with a view to resolving their differences.

ORDER

55The motions for review are dismissed.

Motions Dismissed

“Jerry V. DeMarco”

JERRY V. DEMARCO

ASSOCIATE CHAIR

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Environmental Review Tribunal

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