Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 23, 2021 CASE NO.: 20-050
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28
Applicant: See Appendix 1 – Applicant List Instrument Holder: Northern Disposal and Sanitation Respondent: Director, Ministry of the Environment, Conservation and Parks Subject of leave to appeal: Decision to issue an Environmental Compliance Approval under Part II.1 of the Environmental Protection Act for a hauled sewage site Reference No.: 19-NOR-97288 Property Address/Description: 878 Highway 592 Municipality: Township of Perry Upper Tier: District of Parry Sound ERT Case No.: 20-050 ERT Case Name: Beemer v. Ontario (Environment, Conservation and Parks)
APPEARANCES:
Parties Applicants (as listed in Appendix 1) Counsel/Representative Charles Kazaz
Parties Director, Ministry of the Environment, Conservation and Parks Counsel/Representative Sylvia Davis
HEARD: By written submissions
ADJUDICATOR: Hugh S. Wilkins, Member
DECISION
1This Decision addresses a request for costs arising from applications for leave to appeal an approval under s. 38(1) of the Environmental Bill of Rights, 1993.
2On November 27, 2020, Environmental Compliance Approval No. 19-NOR-97288 (“Approval”) was issued by Angela Whiteley, Director (“Director”), Ministry of Environment, Conservation and Parks (“MECP”) to Northern Disposal and Sanitation. The Approval facilitates the construction of a hauled sewage disposal facility on the property located at 878 Highway 592 in Emsdale in the Township of Perry.
3On December 14, 2020, an application for leave to appeal the granting of the Approval was filed with the Tribunal by the individuals listed in Appendix 1 (“Applicants”) to this Order.
4On January 14, 2021, the Director revoked the Approval.
5On February 1, 2021, based on the Director’s revocation of the Approval, the Tribunal dismissed the Applicants’ applications for leave to appeal.
6On March 1, 2021, the Applicants filed a request for costs arising from their applications for leave to appeal the Approval.
7For the reasons set out below, the Tribunal orders that the request for costs is dismissed.
Relevant Legislation and Rules
8The relevant legislation and Rules applicable to the request for costs are the following:
Statutory Powers Procedure Act
17.1(1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.
(2) A tribunal shall not make an order to pay costs under this section unless,
(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and
(b) the tribunal has made rules under subsection (4).
(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).
(4) A tribunal may make rules with respect to,
(a) the ordering of costs;
(b) the circumstances in which costs may be ordered; and
(c) the amount of costs or the manner in which the amount of costs is to be determined.
Tribunal’s Rules of Practice and Practice Directions (“Rules”)
COSTS
A costs award refers to the reimbursement of reasonable and eligible expenditures incurred by a Party for participation in a proceeding before the Tribunal. The objectives of the Tribunal’s costs Rules are to: provide consistency and predictability in the awarding of costs by outlining relevant principles and evaluation criteria; to encourage responsible conduct in proceedings; and to discourage unreasonable conduct.
A wide authority to award costs applies to proceedings under the Consolidated Hearings Act and the Environmental Assessment Act and to proceedings under sections 20.15 and 36 of the Environmental Protection Act and section 74 of the Ontario Water Resources Act. A limited authority to award costs in situations of improper conduct applies to all proceedings before the Tribunal except Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act and proceedings under the Oak Ridges Moraine Conservation Act, 2001 and Greenbelt Act, 2005.
Under section 17.1 of the Statutory Powers Procedure Act, the Tribunal may only order costs to be paid if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.
This power applies to all proceedings before the Tribunal except proceedings under the Oak Ridges Moraine Conservation Act, 2001, proceedings under the Greenbelt Act, 2005 and Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act, unless the Niagara Escarpment Plan amendment proceeding is brought under the Consolidated Hearings Act.
It is expected that this power will only be used in the rare case where a Party’s conduct warrants such an award. In determining an award of costs under this Rule, the Tribunal may consider, among other things, the conduct of the requesting Party as well as whether the Party against whom a costs award is sought:
(a) failed to attend a Hearing or to send a representative when properly given