Nielsen v. Ontario (Environment, Conservation and Parks), 2022 CanLII 48602

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 30, 2022

CASE NO(S).: OLT-22-003317

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

Applicant: Johnnie Nielsen

Instrument Holders: Tabitha MacDow, Donald MacDow

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

Subject of leave to appeal: Decision to issue an Environmental Compliance Approval under section 20.2 of Part II.1 of the Environmental Protection Act for the establishment of sewage treatment and subsurface sewage disposal works to serve the barn used as a wedding venue catering up to 175 persons

Reference No.: 1055-C68HV5

Property Address: 16847 Heart Lake Rd.

Municipality: Town of Caledon

Upper Tier: Regional Municipality of Peel

OLT Case No.: OLT-22-003317

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

Heard: In writing

APPEARANCES:

Parties	Counsel*/Representative
Johnnie Nielsen	Jora Kuner*
Director, Ministry of the Environment, Conservation and Parks	Danielle Meuleman* and Madeline Ritchie*
Donald and Tabitha MacDow	Self-represented

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

1Donald and Tabitha MacDow (“Approval Holders”) operate a wedding venue called the Caledon Valley Estate Barn. It is located at 16847 Heart Lake Road (“subject property”) in Caledon. On February 18, 2020, they were issued a development permit by the Niagara Escarpment Commission pursuant to the Niagara Escarpment Planning and Development Act (“NEPDA”) allowing them to increase the occupancy permitted at events held at the wedding venue, provided that they obtain approval from the Ministry of Environment, Conservation and Parks (“MECP”) for the installation of appropriately sized sewage works to accommodate the increased number of occupants.

2On April 1, 2022, Fariha Pannu, Director (“Director”), MECP, issued Environmental Compliance Approval No. 1055-C68HV5 (“ECA”) to the Approval Holders. The ECA regulates the establishment of seasonal subsurface sewage disposal works at the subject property, which would permit them under their NEPDA development permit to increase the occupancy of events held at the wedding venue.

3On April 20, 2022, Johnnie Nielsen (“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. He owns lands that lie adjacent to the subject property.

Evidence and Submissions filed regarding the Leave Application

4The Applicant only filed his application for leave to appeal. He did not file any supporting evidence or reply evidence or submissions.

5The Director responded with affidavit evidence and submissions. Her evidence includes affidavits affirmed by Hitesh Vaja and by the Director, both dated May 5, 2022.

6The Approval Holders also filed submissions in response to the application for leave to appeal. They did not file evidence.

1. Standing to Seek Leave to Appeal

7The test that the Tribunal must apply to determine 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.

8The Applicant submits that, as an adjacent neighbour of the subject property, he has an interest in the decision. The Approval Holders submit that although the Applicant’s property is adjacent, his residence is on the other side of his lot. They submit that the sewage system is over 750 metres from the Applicant’s residence and well below the grade of the Applicant’s lands. As a result, they submit that the ECA will not impact the Applicant’s residence or enjoyment of his property and he does not have an interest in the matter. The Director does not raise any issues regarding standing.

9Based on the requirements in s. 38(1) of the EBR, the Tribunal finds that the Applicant has standing. It finds that the Applicant is a resident of Ontario who owns property adjacent to the subject property and thereby 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 Holders have a right to appeal the Director’s decision under s. 139 of the Environmental Protection Act (“EPA”). Based on this, the Tribunal finds that the Applicant satisfies the test for standing in s. 38(1) of the EBR.

2. The Leave Tests

10When adjudicating an application for leave to appeal under the EBR, the Tribunal must apply the two tests set out in s. 41. They consist of (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.

A. The Reasonableness Test

11The reasonableness test in s. 41 of the EBR requires that an applicant for leave to appeal 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. In applying this test, 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.

Applicant’s Evidence and Submissions

12The Applicant submits that the Approval Holders have for years attempted to create and operate a wedding venue on the subject property. In their attempts to do so, he submits that they have contravened municipal and provincial by-laws and regulations. Given this history, he submits that the ECA should provide for consequences if the Approval Holders contravene any rules again. He submits that the ECA does not consider the environmental impacts of increasing the sewage capacity of the wedding venue and fails to disclose where the sewage will travel. The Applicant submits that the ECA does not address impacts on wildlife, groundwater, or the Niagara Escarpment. He also submits that the ECA does not address noise from the proposed sewage system, how the noise would be mitigated, and what penalties could apply. He submits that the ECA should require more robust compliance mechanisms, is not proactive in preventing environmental harm, and solely relies on reactive enforcement measures. He submits that the ECA would facilitate the expansion of the Approval Holders’ operations on the subject property beyond the scale permitted under the NEPDA development permit. He argues that no reasonable person could have made the decision to issue the ECA and that its issuance is contrary to the MECP’s mandate to protect the environment.

Director’s Evidence and Submissions

13In her affidavit, the Director stated that applicable laws, regulations and policies were considered during the review of the Approval Holders’ application for the ECA, including the EPA, Ontario Water Resources Act (“OWRA”), Ontario Regulation 332/12 under the Ontario Building Code, the MECP’s Design Guidelines for Sewage Works, the MECP’s Guideline B-7 on Incorporation of the Reasonable Use Concept into Ministry of Environment and Energy (“MOEE”) Groundwater Management Activities, and the MECP’s Statement of Environmental Values (“SEVs”). She stated that a MECP hydrogeologist reviewed the Approval Holder’s application materials and found that the risk to the environment from the proposed sewage works would be minimal. She stated that she is satisfied that the ECA complies with all relevant laws and policies, would be protective of the environment, and would prevent adverse effects.

14The Director also relies on the affidavit affirmed by Mr. Vaja. He is the Senior Wastewater Engineer in the Approvals Services Section of the MECP’s Environmental Permissions Branch. Based on his experience and education as set out in his curriculum vitae attached to his affidavit, the Tribunal qualifies him to provide opinion evidence as a professional wastewater engineer.

15In his affidavit, Mr. Vaja stated that the structures on the subject property include a residential dwelling, a barn which serves as the wedding venue, and several outbuildings. He said the residential dwelling has its own separate sewage system. He said the existing sewage works for the wedding venue consist of a conventional septic tank, a pump chamber equipped with a pump, and a leaching bed. He stated that the Approval Holders seek to upgrade the existing sewage works to facilitate an increase in the occupancy capacity of the wedding venue from 100 to 175 persons. He said the upgraded sewage works along the dwelling’s sewage system would have a combined design capacity in excess of 10,000 litres per day and thus, require an ECA. He said the proposed sewage works for the wedding venue include the replacement of the existing septic tank and pump chamber and installation of flow balancing mechanisms. This would include a submersible effluent pump, a flow control system, and a high liquid alarm system. He said the proposed system would discharge sewage over a seven-day period at an overall slower rate than the existing system. He stated that the flow of sewage under the proposed sewage works would be discharged at a rate of 900 litres per day, which is less than the 3,600 litres of sewage that may be discharged to the septic disposal bed in one day using the existing system. He reiterated that sewage would seep into the existing subsurface disposal bed at a much lower flow and over a longer period than the existing system. He stated that the MECP’s review of the proposed sewage works found that it presents a low risk to the environment and that its design is in accordance with applicable legislation, guidelines, and best management practices.

16Mr. Vaja opined that the proposed septic tank and the pump chamber are adequately sized for a 175-person capacity and would provide sufficient sewage storage for the proposed increased occupancy at the wedding venue. He said it would be an improvement over the existing system and would reduce the likelihood of sewage breakouts. He stated that he considered the MECP’s SEVs when reviewing the Approval Holder’s ECA application and the proposed sewage works would pose a low risk to the environment. He said no downgradient users would be impacted by the proposed sewage works. He said agricultural land is located downgradient and there are no downgradient domestic wells.

17Mr. Vaja said that the potential impacts of the ECA on groundwater and the fact that the subject property lies in a Significant Groundwater Recharge Area were both taken into account. He stated that the low risk to the environment and the absence of downgradient water users means that groundwater monitoring is not needed. He opined that the ECA would not cause adverse impacts on local wildlife or the Niagara Escarpment as the proposed sewage works would discharge into the existing subsurface disposal bed and not on to the surface.

18Regarding possible noise concerns, Mr. Vaja stated that the proposed sewage works would be located underground and it is unlikely that there would be any noise emitted. If the proposed sewage works cause adverse effects in terms of noise, then he said a separate approval under s. 9 of the EPA would be required.

Approval Holders’ Submissions

19The Approval Holders submit that the use of the subject property for a wedding venue is permitted under their NEPDA development permit. They submit that sewage from the proposed works would not leave the subject property and there would be no impacts on wildlife. They also submit that the proposed sewage works would not emit noise.

Analysis and Findings

20As described above, the s. 41 reasonableness test requires that an applicant for leave to appeal 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.

21In the present case, the Applicant raises concerns regarding the adequacy of the ECA’s compliance and enforcement tools, the environmental impacts of the ECA, the discharge of sewage off the subject property, impacts on local wildlife, groundwater, and the Niagara Escarpment, noise concerns, the size of the proposed sewage works, and compliance with applicable laws and policies.

22The ECA contains terms and conditions on the construction, maintenance, and decommissioning of the existing sewage works, monitoring and record keeping of operations, and compliance mechanisms. In terms of compliance and enforcement tools, if a break-out is observed, use of the sewage system must be stopped and the break-out must be immediately reported to the MECP and remedial actions must be taken. The Director has an array of tools at her disposal under the EPA to enforce the ECA, including inspections, contravention orders, and revocation of the ECA.

23Based on the evidence before it, the Tribunal finds that the ECA will reduce the threat of any adverse effects or environmental harm caused by the sewage works and will reduce the likelihood of any adverse impacts on local wildlife, groundwater, and the Escarpment. Also, based on the evidence before it, the ECA would not result in sewage works that cause adverse effects in the form of noise. The Applicant provided no substantive evidence challenging the Director’s evidence in these regards.

24Regarding the maximum occupancy of the wedding venue, the Tribunal notes that it is governed by the Approval Holders’ NEPDA development permit and is not a proper issue before the Tribunal in relation to the ECA. It notes, however, that the NEPDA development permit allows for an occupancy of 175 people provided that an ECA is issued for sewage works that can accommodate that capacity, which, in this case, the ECA does.

25The Tribunal finds that, based on the Director’s evidence and submissions, she had regard to the relevant law, regulations, and policies, including the EPA, OWRA, Ontario Regulation 332/12 under the Ontario Building Code, the MECP’s Design guidelines for sewage works, the MECP’s Guideline B-7 on Incorporation of the Reasonable Use Concept into MOEE Groundwater Management Activities, and the MECP’s SEVs. There is no argument before the Tribunal that the Director failed to consider any specific required law, regulation, or policy.

26The Tribunal finds that the Applicant has failed to satisfy the reasonableness test. He has failed to demonstrate that the manner in which the Director made her decision, what she considered, or the decision itself is unreasonable. The Applicant has not shown that the Director failed to consider applicable laws, regulations or policies, he has failed to identify any errors in the Director’s decision to issue the ECA, and he has failed to identify any issues regarding the grounds upon which the ECA was issued. The 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

27Under the leave to appeal requirements in s. 41 of the EBR, an applicant must also satisfy the significant harm test. In the present case, given that the Tribunal has determined that the Applicant has failed to satisfy the reasonableness test, it is not necessary to apply the significant harm test. However, in any event, the Tribunal finds that the Applicant has not filed any substantive evidence to support his concern that the ECA would result in significant environmental harm. As determined above, the Tribunal finds that the ECA will reduce the threat of any adverse effects or environmental harm caused by sewage works on the subject property and there is no evidence that the ECA will cause any such effects or harm. There is no substantive evidence before the Tribunal that the ECA will impact wildlife or groundwater. The Tribunal finds that the Applicant has failed to establish a prima facie case that the decision to issue the ECA could result in significant harm to the environment.

CONCLUSIONS

28Based on the evidence and submissions before it, it does not appear to the Tribunal 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 this kind, could have made the decision to issue the ECA and it does not appear to the Tribunal that the decision to issue the ECA could result in significant harm to the environment.

DECISION

29The 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.