McGovern v. Ontario (Environment, Conservation and Parks), 2021 CanLII 122384

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2021

CASE NO(S).: OLT21-001176

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

Applicant: John McGovern

Instrument Holder: DMS Metals Ltd.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of leave to appeal: Decision to issue an Environmental Compliance Approval issued under Part II.1 of the Environmental Protection Act for a metal recycling facility

Reference No.: A-500-6097151023

Property Address/Description: 11967 Woodbine Avenue

Municipality: Town of Whitchurch-Stouffville

Upper Tier: Region of York

OLT Case No.: 21-001176

OLT Case Name: McGovern v. Ontario (Environment, Conservation and Parks)

Heard: In writing

APPEARANCES:

Parties

Counsel

John McGovern

Scott A. Stoll

Director, Ministry of the Environment,

Isabelle O’Connor

Conservation and Parks

DMS Metals Ltd.

Charles Birchall and Lauren Wortsman

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

Background

1DMS Metals Ltd. (“Approval Holder”) operates a metal recycling facility (“Facility”) located at 11967 Woodbine Avenue (“subject property”), in Gormley, in the Town of Whitchurch-Stouffville (“Town”). The operations at the Facility include material receiving, end-of-life vehicle processing, metal cutting, shredding, separation and sorting, and material storage and shipping.

2On August 17, 2021, Miroslav Ubovic, Director (“Director”), Ministry of Environment, Conservation and Parks (“MECP”), issued Environmental Compliance Approval No. A-500-6097151023 (“ECA”). The ECA regulates air and noise emissions from the Facility.

3On September 2, 2021, John McGovern (“Applicant”) filed an application under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”) seeking leave to appeal the Director’s decision to issue the ECA. The focus of his concerns is regarding noise and air emissions from the metal shredder (“shredder”) used at the Facility.

4The Applicant seeks leave to appeal the ECA to seek the following relief:

a. revoke the ECA in its entirety; or, alternatively,

b. vary the decision of the Director to issue the ECA by removing its provisions relating to the shredder and related infrastructure.

Evidence and Submissions filed regarding the Leave Applications

5The Applicant filed evidence and submissions, including an affidavit sworn by him, dated October 7, 2021, an affidavit sworn by Mark Levkoe, dated October 7, 2021, and letters prepared by Mr. Levkoe, dated September 2 and October 7, 2021. Mr. Levkoe is a professional engineer with experience in environmental noise assessments. He works at Valcoustics Canada Ltd,

6The Director responded with submissions and affidavit evidence, including affidavits sworn by Mahdi Zangeneh, dated October 1 and 29, 2021 and an affidavit sworn by Kathleen Spence, dated October 1, 2021. Mr. Zangeneh is a senior noise engineer in the Noise Approvals Unit of the MECP’s Approval Services Section, Environmental Permissions Branch. Ms. Spence is a senior air engineer in the Approval Services Section of the Environmental Permissions Branch of the MECP.

7The Approval Holder also filed responding submissions and evidence. These include a letter prepared by Michael Masschaele, who is an acoustic specialist with GHD, dated November 1, 2021. The Approval Holder also filed several technical reports, including an Acoustic Assessment Report, prepared by GHD, dated May 5, 2021 (“Acoustic Assessment Report”) and an Emission Summary and Dispersion Modelling Report, prepared by GHD, dated February 16, 2021 (“Emission Summary and Dispersion Modelling Report”).

1. Standing to Seek Leave to Appeal

8The test for standing to seek leave to appeal is set out in s. 38(1) of the EBR. It states:

38 (1) Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met:

1. The person seeking leave to appeal has an interest in the decision.

2. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

9Based on the materials before the Tribunal, there is no dispute that the Applicant is a resident of Ontario who made submissions during the MECP’s public consultation process and that he has an interest in the Director’s decision. The Director’s decision addresses whether to implement a proposal for an EBR Class I or II Instrument and the Approval Holder has a right to appeal the Director’s decision under s. 139 of the Environmental Protection Act (“EPA”).

10The Tribunal finds that the Applicant satisfies the EBR s. 38(1) requirements for standing.

2. The Leave Tests

11Section 41 of the EBR sets out two tests that the Tribunal must address when adjudicating applications for leave to appeal: (1) the reasonableness test; and (2) the significant environmental harm test. Section 41 states:

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.

Each of these tests must be satisfied for leave to appeal to be granted. The Tribunal will address each of them below.

A. The Reasonableness Test

12Under the s. 41 reasonableness test, an Applicant must establish a prima facie case that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision that the Director made. The Tribunal must consider the manner in which the Director made the decision, what the Director considered, and the decision itself. The test is not whether the Director’s decision could have been improved, made in a different manner, or whether there is evidence in support of a different decision. There must be good reason to believe that the decision is outside the range of reasonable decisions that were possible given the facts and the applicable laws and policies.

a. The Applicant’s Application for Leave

13The Applicant submits that the issuance of the ECA by the Director was not reasonable for the following reasons:

1. the ECA permits the operation of the shredder and related equipment at the Facility, which cause excessive noise and air emissions;

2. an acoustic audit should have been required prior to the issuance of the ECA to evaluate noise levels at nearby receptors and require mitigation measures;

3. the ECA will result in non-compliance with the Fire Code; and

4. the Facility is not authorized under the applicable municipal planning requirements.

14The Tribunal will address these issues below.

Issue 1 Noise and Air Emissions

Applicant’s Evidence and Submissions

15The Applicant submits that the shredder generates excessive noise, which has resulted in numerous public complaints to the MECP, the Town, and the police. He submits that these noise emissions have impacted the normal use and enjoyment of neighbouring properties and created an ongoing adverse effect in contravention of the EPA. Several of the Approval Holder’s salvage storage piles are required under the ECA as noise barriers to mitigate noise emissions from the shredder. The Applicant submits that there have been explosions at the Facility and several of Approval Holder’s salvage storage piles have caught fire and emitted pollution into the environment. He submits that the noise, explosions, vibration, fires, dust, and odour emitted from the Facility constitute uninterrupted interference with the quiet enjoyment and use of neighbouring properties and have caused human suffering. Specifically, the Applicant raises concerns regarding:

• the need for better noise barriers and measures taken to prevent air and dust emissions;

• whether all of the noise barriers that were used in the Approval Holder’s noise modelling are subject to the ECA’s requirements;

• whether the location, composition, design, shape, and density of the noise barriers were properly modelled and then addressed in the ECA;

• whether the Approval Holder’s acoustic assessments were based on the predictable worst-case noise impact in accordance with the MECP’s Environmental Noise Guideline Stationary and Transportation Sources - Approval and Planning Publication NPC-300 (“NPC-300 Guidelines”);

• whether the Approval Holder’s modelling includes buildings or structures on the subject property that no longer exist;

• whether the height of the shredder was properly modelled to provide accurate information on noise emissions; and

• the appropriateness of the Facility’s operating hours.

16In his letters, Mr. Levkoe stated that given a lack of available information and inconsistencies in the Approval Holder’s materials, he could not confirm whether the Approval Holder’s assessments and proposed mitigation measures would result in compliance with the applicable MECP requirements. The Applicant submits that without this information, and based on inconsistences in the materials that he does have, no reasonable person could have made the decision to issue the ECA. He submits that the ECA fails to ensure that the Facility complies with applicable laws and fails to ensure that it does not cause adverse environmental effects.

Director’s and Approval Holder’s Evidence and Submissions

17Mr. Zangeneh stated that the objective of an acoustic assessment report is to assess the noise sources at a facility, assess off-site impacts at identified points of reception, and determine whether the sources comply with the MECP’s sound level limits set out in the NPC-300 Guidelines. He said the Guidelines set out criteria to ensure that a source of noise does not cause an adverse effect. He stated that in the present case, the Facility satisfies the requirements in the NPC-300 Guidelines.

18Regarding the need for better noise barriers and measures to prevent air and dust emissions, Mr. Zangeneh stated that the ECA includes appropriate conditions to limit noise emissions. He stated that the Approval Holder’s noise model demonstrates that the noise barriers are a good means to mitigate the Facility’s noise emissions and the ECA’s Conditions No. 4.4 to 4.7 and 12 require the Approval Holder to comply with the MECP’s sound level limits. He stated that with the application of these conditions, there should not be any adverse effects caused by noise from the Facility. He said the Facility uses noise barriers because of the need for overhead access for shredder maintenance, which prevents its enclosure in a building. He reiterated that the required noise barriers and on-site infrastructure appropriately mitigate noise emissions. Mr. Zangeneh stated that the noise emissions from the shredder, with the ECA’s noise abatement measures in place, will be within applicable limits and will not likely cause adverse effects. He reiterated that for all the identified points of reception, the sound level limits are either at or below the NPC 300 Guidelines’ requirements. He also stated that the ECA requires the Approval Holder to have an independent acoustic audit performed at the subject property within six months of the issuance of the ECA, which will confirm the performance of the noise barriers. He said that by means of the audit, the Approval Holder will need to show compliance with the sound level limits at identified nearby points of reception

19Ms. Spence stated that the shredder’s air emissions were addressed in the Approval Holder’s Emission Summary and Dispersion Modelling Report and are in compliance with all applicable ministry limits in Ontario Regulation 419/05 on Air Pollution (Local Air Quality). She stated that the Approval Holder’s application was reviewed to determine compliance with the Regulation, which set outs contaminant Point of Impingement (POI) concentration limits in its Schedule 3. She said the Emission Summary and Dispersion Modelling Report’s findings were compared with the EPA’s regulatory standards and the MECP’s guidelines and it was found that the Report demonstrates that the Facility’s projected air emissions would comply with the applicable standards. She said the Approval Holder submitted a Best Management Practices Plan for the control of fugitive dust and that the ECA’s Condition No. 8 requires its implementation. She said the ECA’s Condition No. 7.1 requires the Approval Holder to implement procedures to minimize odour emissions and Condition No. 7.2 requires the Approval Holder to update procedures as necessary. She opined that, provided the Facility is operated in compliance with the ECA, it is unlikely that there will be adverse effects caused by the shredder’s air emissions.

20The Approval Holder submits that the existence of noise complainants regarding past activities at the subject property is not evidence that the Director’s decision to issue the ECA is unreasonable. It submits that the measurements and modelling undertaken in preparing the Acoustic Assessment Report demonstrate that, with the implementation of the Approval Holder’s noise abatement action plan, sound levels from the Facility will comply with the sound level limits in NPC-300. It also submits that based on its Emission Summary and Dispersion Modelling Report, the Facility can comply with the air pollution requirements in Ontario Regulation 419/05. It notes that the ECA sets out performance limits, operation and maintenance procedures, and record keeping and reporting requirements and requires that an independent acoustic audit be performed within six months of the issuance of the ECA.

21Regarding whether all of the noise barriers that were used in the Approval Holder’s noise modelling are subject to the ECA’s requirements, the Director submits that all of the noise barriers, including sea cans (shipping containers), are required in the Acoustic Assessment Report and incorporated by reference into the ECA’s requirements.

22Regarding whether the location, composition, design, shape, and density of the noise barriers were properly modelled and then addressed in the ECA, Mr. Zangeneh stated that the ECA’s Condition No. 4.5 requires that the barriers meet the Acoustic Assessment Report’s acoustic performance requirements and will need to remain in their designated locations and maintain appropriate densities. Regarding the geometry and density of the sound barriers, he stated that the barriers are continuous, do not have holes or gaps, and are in compliance with the MECP’s specifications for acoustic barriers. He said the ECA’s Condition No. 4.5 requires the Approval Holder to maintain the dimensions of the noise barriers. On behalf of the Approval Holder, Mr. Masschaele stated that given the weight and height of the storage piles, they will have the required densities.

23Regarding whether the Approval Holder’s acoustic assessments were based on the predictable worst-case noise impact in accordance with the NPC-300 Guidelines, Mr. Zangeneh stated that the NPC-300 Guidelines use conservative assumptions when performing noise assessments and addresses site-specific details and sound propagation parameters. He stated that the area surrounding the Facility falls under the acoustical classification of Class 2 Area (Urban), which is an area with an acoustical environment that is dominated by man-made noise during the day and by natural sound at night. Mr. Zangeneh confirmed that the operating times in the acoustic assessments represent the predictable worst-case operation of the Facility. He stated that the predictable worst-case hour will be confirmed through the acoustic audit process. The Director submits that the Applicant has provided no evidence that the Approval Holder has exceeded its approved rate of production or that any such exceedance would impair compliance with the ECA’s conditions and sound level limits. Mr. Masschaele added that some of the equipment used at the Facility only operates on a part-time basis and time weighting was used to determine the predictable worst-case impact, in accordance with NPC-300.

24Regarding buildings on the subject property, Mr. Zangeneh stated that their existence and location have been confirmed in the field by GHD. Mr. Masschaele stated that the Approval Holder’s modelling used the existing buildings and equivalent partial line of sight to reflect actual noise emissions around the shredder to estimate how sounds will be propagated and how it generates noise in different directions.

25Regarding whether the height of shredder was properly modelled, Mr. Zangeneh stated that he understands that the shredder’s height was provided by GHD based on measurements taken during field visits. Mr. Masschaele stated that the part of the shredder that generates most of the noise is low to the ground, which is reflected in the Approval Holder’s modelling.

26Regarding the number of noise barriers, Mr. Zangeneh stated that all 11 barriers on the subject property are required under Condition No. 4.5 of the ECA, which stipulates that noise control measures must met the requirements in the Approval Holder’s Acoustic Assessment Report. He stated that two noise barrier storage piles were built to shield the shredder, but the other nine pre-existing barriers were also used in the noise modelling and will remain in place. Mr. Masschaele stated that the salvage storage piles that are required for noise abatement and compliance were included in the noise abatement action plan.

27Regarding the Facility’s operating hours, Mr. Zangeneh said the ECA’s conditions restrict the hours of operation at the Facility and that operating times will be confirmed through the required independent audit. He stated that provided that the ECA’s conditions are complied with, there should not be adverse noise effects caused by the shredder’s operation.

28The Director submits that an explosion was recently reported to the MECP and will be addressed as a compliance matter. The Director submits that this has no bearing on the issue to be determined by the Tribunal on leave to appeal. The Approval Holder submits that if there is an explosion at the Facility, it is required to immediately contact the MECP and to undertake an assessment of the cause of the explosion. It acknowledged that there was an explosion at the shredder on October 25, 2021 and stated that the MECP was contacted. It submits that the ECA addresses the prevention of explosions and sets out steps to be taken, if they occur.

Analysis and Findings

29The Applicant expresses a variety of concerns regarding noise and air emissions from the shredder; however, as demonstrated in the responses provided by the Director and Approval Holder, each of these concerns was considered and addressed by the Director when making the decision to issue the ECA and is addressed in the ECA. The Applicant submits that there is insufficient information available to confirm that the Approval Holder’s assessments and proposed mitigation measures satisfy the MECP’s sound level limits and that there are inconsistencies in the Approval Holder’s materials; however, the Tribunal finds that through the responses filed by the Director and Approval Holder, these concerns are properly addressed.

30The Tribunal finds that based on the submissions and evidence before it, the Director addressed each of the concerns raised by the Applicant when making the decision and considered the applicable regulatory and policy requirements. The Tribunal finds that the Applicant has failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in regard to the Facility’s noise and air emissions.

Issue 2 Acoustic Audit

Applicant’s Evidence and Submissions

31The Applicant submits that where an installation is already in place, an audit should be required prior to the issuance of the ECA. He submits that in the present case, the Approval Holder did not provide the Director with the best available information regarding the shredder’s performance, including field information. He submits that his information could have been provided through the completion of an acoustic audit prior to the ECA’s issuance. He submits that given the numerous public complaints regarding the operation of the shredder and the Approval Holder’s ability to conduct an acoustic audit, an audit should have been required prior to the issuance of the ECA. He submits that this would have either confirmed compliance with the acoustic requirements or demonstrated the potential for non-compliance (and allowed for the inclusion of further restrictions or additional noise mitigation measures).

32The Applicant submits that the Approval Holder did not accurately provide the Director with information on the volume of materials to be shredded. He submits that the shredder is not a standard piece of equipment with known noise emissions and modelling is likely to be less reliable than an audit. He submits that an acoustic audit based upon actual volumes at the worst-case hour would have properly related noise to volume. He submits that the ECA’s conditions do not ensure that the modelled acoustic performance will be achieved during the Approval Holder’s operations.

33The Applicant also submits that based on past non-compliance with MECP requirements at the Facility, the number of noise complaints relating to the Facility, and the fact that the Acoustic Assessment Report was revised numerous times, a reasonable person would have required the Approval Holder’s acoustic model to be verified through an audit prior to the issuance of the ECA. He submits that if the Approval Holder’s mitigation measures were effective, there would not have been noise complaints. The Applicant submits that the Director’s failure to do this means that the best information was not made available.

Director’s and Approval Holder’s Evidence and Submissions

34Mr. Zangeneh stated that an acoustic audit demonstrates whether a facility is operating in compliance with sound level limits at designated points of reception. He stated that these audits are undertaken after the commencement of operations at a facility and after required noise abatement measures have been implemented. He stated that this allows the audit to assess whether a noise abatement plan is working and whether compliance with sound level limits are being achieved under an ECA’s conditions. As a consequence, he stated that there would be no benefit in conducting an audit prior to the issuance of an ECA. The Director submits that the Applicant has failed to identify any applicable guideline or policy that requires an audit prior to the issuance of an ECA and that the MECP’s practice is to only require audits after an ECA is issued. The ECA’s Condition No. 12 requires that an independent acoustic audit must be undertaken within six months of the issuance of the ECA. The Director submits that if the audit finds that the ECA’s sound level limits are being exceeded, the Approval Holder must prepare a new acoustic assessment report with additional noise control measures and an ECA amendment application is required (along with a further acoustic audit).

35The Director submits that the Applicant’s allegation that the Approval Holder’s modelling is unreliable is not supported. Mr. Zangeneh stated that the measurement of the shredder’s sound levels through an audit or field verification does not provide information on the full potential of noise emissions. He said the measurements can be affected by external contaminants such as traffic noise, other industrial noise, and natural sounds. He said that modelling provides a more reliable representation of noise impacts and is not exposed to external contaminants. He stated that the Approval Holder’s modelling results will be assessed in the independent acoustic audit that will be undertaken.

36The Approval Holder submits that the requirement in the ECA’s Condition No. 12 for an independent acoustic audit reflects a proactive approach to monitoring taken by the Director and is not unreasonable. The Approval Holder submits that it had field verifications done regarding all significant noise sources, including the shredder, to assess impacts and they confirmed that, with the implementation of the noise abatement action plan for the Facility, noise emissions would be in compliance with the NPC-300 Guidelines.

Analysis and Findings

37The Applicant has raised concerns that an acoustic audit should have been completed prior to the issuance of the ECA. The Director submits that an audit must be conducted after the issuance of an ECA so that it can determine whether, with its mitigation measures in place, the ECA’s sound level limits are being exceeded. If they are, an approval holder must prepare a new acoustic assessment report with additional noise control measures and an ECA amendment application is required. The Approval Holder submits that it had field verifications completed for all significant noise sources at the Facility, including the shredder.

38The Tribunal finds that the Director’s approach is reasonable and satisfies applicable regulatory and policy requirements. The Tribunal finds that the requirement in the ECA’s Condition No. 12 that an independent audit must be conducted within six months of the issuance of the ECA is consistent the MECP’s practice and policies. The Applicant has failed to point to any applicable law, regulation, or policy that would require an audit prior to the finalization of the terms and conditions of an ECA. The Tribunal finds that there is good reason for this. The objective of an audit is to determine whether the terms and conditions in an ECA are effective in ensuring compliance with applicable noise limits. It is difficult to do that prior to the finalization of the terms and conditions. Moreover, the evidence before the Tribunal is that the Approval Holder had the Facility’s noise emissions field verified prior to the issuance of the ECA and that this data was considered in the preparation of its Acoustic Assessment Report. The Tribunal finds that the Applicant has failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

Issue 3 Fire Code

39The Applicant states that he witnessed a fire at the subject property on September 22, 2020 and he submits that the ECA’s conditions conflict with requirements in the Fire Code (Ontario Regulation 213/07). Referring to the ECA’s preamble, he submits that the ECA is subject to all other applicable Acts and regulations, which, he submits, include the Fire Code. He submits that s. 3.5.2.1 of the Fire Code, which addresses salvage shops and yards, requires that piles in a salvage yard that include combustible salvage must be at least 3 metres (“m”) from property lines and not more than 3 m in height and 100 square metres in area. He submits that the Approval Holder is using piled end of life vehicles as noise barriers for the shredder. He submits that s. 6.3 of the Acoustic Assessment Report states that the south storage pile must be maintained at a height of 10 m and the east storage pile must be 12 m high to block the line of sight from the shredder. He submits that these heights are inconsistent with the requirements in the Fire Code and that compliance with the ECA would result in the Approval Holder violating the Code. He submits that the ECA must require that the barriers are constructed of non-combustible materials. He also submits that the piles are larger in area than permitted under the Fire Code and pose risks to the community.

Director’s and Approval Holder’s Evidence and Submissions

40The Director submits that the issue of whether the Approval Holder is in violation of the Fire Code is for the local Fire Department to determine and is beyond the authority of the Director to decide. With regard to s. 3.5.2.1 of the Fire Code, which sets out requirements for the height and location of combustible piles in salvage yards, the Director submits that there is no evidence that the piles in question include combustible salvage or do not comply with the Fire Code. The Director submits that the ECA requires the Approval Holder to comply with the noise abatement action plan as set out in its Acoustic Assessment Report, which requires that the noise barrier storage piles in question must be permanent and have specified minimum heights. The Director submits that, provided the noise barriers do not contain combustible material, compliance with both the ECA and the Fire Code is possible and it is the Approval Holder’s responsibility to ensure that this is done. The Director does not disagree that there have been fires and explosions at the Facility, but submits that there is no convincing evidence that the noise barriers that shield the shredder contain combustible materials or were part of the fires. The Director submits that the Fire Code is not included as a law or policy developed to guide the Director’s ECA decisions.

41The Approval Holder submits that it complies with the storage pile requirements in both the ECA and the Fire Code and that the noise barrier storage piles in question consist entirely of non-combustible products. It submits that it will continue to work with the local Fire Department to ensure ongoing Fire Code compliance. It submits that compliance with the ECA’s noise abatement requirements do not result in non-compliance with the Fire Code. The Approval Holder acknowledged that there was a fire at the subject property on September 20, 2020, but submits that the fire was not connected to the operation of the shredder. It submits that the ECA is subject to all other applicable requirements, which, it submits, include the Fire Code.

Analysis and Findings

42The Tribunal finds that based on the language in the ECA’s preamble, the ECA is subject to all other applicable Acts and regulations, including the Fire Code. It finds that compliance with the Fire Code is required under the ECA. This includes ensuring that the required noise barriers do not consist of combustible materials. The Tribunal finds that the Director and Approval Holder have demonstrated that the Approval Holder can comply with both the ECA and the Fire Code. The Tribunal finds that the Director’s approach is reasonable and satisfies the applicable regulatory and policy requirements. The Tribunal finds that the Applicant has failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

Issue 4 Municipal Planning Requirements

Applicant’s Evidence and Submissions

43The Applicant submits that the Director should have determined whether the Approval Holder is in compliance with municipal requirements before issuing the ECA. He submits that the ECA must comply with applicable acts and regulations, including municipal planning requirements. He submits that the existing development on the subject property may not be in compliance with the site plan that is registered on title or with Oak Ridges Moraine Conservation Plan. He submits that he has filed an application to the Ontario Superior Court of Justice to address these issues. He submits that the ECA should not authorize illegal activity and the Director should not have issued the ECA until after the court proceedings have been concluded.

Director’s and Approval Holder’s Evidence and Submissions

44The Director submits that planning issues are not the basis upon which the Director is to decide whether to issue an ECA. The Director submits that the EBR s. 41 test requires regard to relevant law and any government policies developed to guide the Director’s decisions on ECAs. The Director submits that the Oak Ridges Moraine Conservation Plan is not such a law or policy and the decision to issue the ECA is not a planning matter. The Director refers to the former Environmental Review Tribunal’s decision in Unterstab v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 37, where the Tribunal found that planning issues are the responsibility of municipal authorities and not the Director acting under the EPA. The Director also refers to Hong v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 10 (“Hong”), at paragraph 86, affirmed [2018] O.J. No. 1476 (Div. Ct.), where the Tribunal found that “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”.

45The Approval Holder submits that the Facility is in compliance with municipal planning requirements. He submits that the subject property has been used for recycling and scrap yard operations as a legal non-conforming use since the 1960s, which has been confirmed by the Town. In any event, it submits that planning issues are beyond the scope of the EPA, the ECA application process, or the EBR leave to appeal process.

Analysis and Findings

46The Tribunal agrees with the findings of the Environmental Review Tribunal in Hong that the Director is not required to wait for decisions from other decision-making entities on related matters before making a decision. The Tribunal finds that the Director’s approach is reasonable and satisfies applicable regulatory and policy requirements. The Tribunal finds that the Applicant has failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

Conclusion

47The Tribunal finds that, based on the evidence and submissions before it, the Applicant has failed to demonstrate on a prima facie basis that it appears there is good reason to believe that no reasonable person, having regard to the applicable law and policies, could have made the decision to approve the ECA.

B. Significant Environmental Harm Test

48For leave to appeal to be granted under s. 41 of the EBR, an applicant must satisfy both the reasonableness test and the significant harm test. As the Tribunal has determined that the Applicant has failed to satisfy the reasonableness test, the Tribunal finds that it is not necessary to apply the significant harm test in this case.

DECISION

49The Tribunal orders that the Applicant’s application for leave to appeal is dismissed.

“Hugh S. Wilkins”

hugh S. Wilkins

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.