The Corporation of the City of Barrie v. Ontario (Environment, Conservation and Parks), 2022 CanLII 75904

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2022

CASE NO(S).: OLT-22-002074

PROCEEDING COMMENCED UNDER subsection 139(2)(d) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: The Corporation of the City of Barrie

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

Subject of Appeal: Alteration of terms and conditions imposed on an Environmental Compliance Approval issued to Laguna Trading Ltd. for an increase in the maximum storage limit for excess soil at their existing waste processing facility

Reference No.: 3774-C2VS9E

Property Address/Description: 305 Saunders Road

Municipality: City of Barrie

OLT Case No.: OLT-22-002074

OLT Case Name: The Corporation of the City of Barrie v. Ontario (Environment, Conservation and Parks)

Heard: June 29, 2022 heard in writing

APPEARANCES:

Parties	Counsel
Corporation of the City of Barrie	Ebaadh Rizwani
Director, Ministry of the Environment, Conservation and Parks	Sarah Kromkamp

DECISION DELIVERED BY M. ARPINO AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Laguna Trading Ltd applied to amend the Environmental Compliance Approval for the waste disposal site at 305 Saunders Road in the City of Barrie (“Application”).

2The Application was submitted to the Director, Ministry of the Environment, Conservation and Parks (“Director”).

3By correspondence dated August 5, 2021, the Director requested the City of Barrie (“City”) to submit comments regarding the Application.

4On October 19, 2021, the Director issued Amended Environmental Compliance Approval #6993-6X4QNM (“ECA”) for the waste disposal site (transfer and processing) located at 305 Saunders Road (“Property”).

5It is uncontradicted that the City’s comments were not considered by the Director prior to issuance of the ECA.

6On January 24, 2022, the City filed an appeal of the ECA to the Tribunal (“Appeal”), pursuant to s. 139 of the Environmental Protection Act (“EPA”).

7The Director contacted the Tribunal to query the City’s right to appeal the ECA pursuant to s. 139 of the EPA.

8At the direction of the Tribunal, the Director filed a motion in writing seeking an Order of the Tribunal to dismiss the Appeal.

GROUNDS FOR THE MOTION

9The Director asserts that the City has no right to appeal the ECA pursuant to section 139 of the EPA.

10The Director asserts that the City is not eligible for leave to appeal the ECA pursuant to s. 38 of the Environmental Bill of Rights (“EBR”).

ISSUES

11The issues to be determined in this motion are:

A. Does the City have a right to appeal the ECA pursuant to s. 139 of the EPA?

B. Can the Tribunal permit the City to file an Application for leave to appeal the ECA pursuant to s. 38 of the EBR?

C. Does the Director’s failure to consider the City’s comments regarding the Application create a right of appeal for the City?

A. Does the City have a right to appeal the ECA pursuant to s. 139 of the EPA?

12Section 139 provides as follows:

When Director refuses approval, etc.

139 (1) When the Director,

(a) refuses to give his or her approval of plans and specifications;

(b) requires a condition precedent to the giving of his or her approval;

(c) refuses to issue an environmental compliance approval or renewable energy approval;

(d) refuses to renew a renewable energy approval;

(e) suspends or revokes an environmental compliance approval or renewable energy approval; or

(f) issues a certificate of property use,

the Director shall serve notice upon the applicant or holder, as the case may be, together with written reasons therefor, and the applicant or holder may, by written notice served upon the Director and the Tribunal within fifteen days after the service of the notice, require a hearing by the Tribunal.

13The Director submits that the City did not apply for the ECA, nor is it the holder of the ECA, consequently it does not have a right of appeal pursuant to s.139.

14The City responds that the ECA was issued in error therefore the s.139 restrictions regarding who may appeal the ECA do not apply.

15The City submits that the essence of s.139 is to permit a party to the decision regarding issuance of the ECA to appeal it.

16The City asserts, based on its having submitted comments for consideration in the decision to issue the ECA it has the right to appeal the ECA pursuant to s. 139. The City did not provide authority for this contention.

17The Tribunal determined that the explicit language of s. 139 of the EPA does not grant a right of appeal to the City based on the fact that it submitted comments regarding the Application.

18For the aforenoted reasons the Tribunal determined that the City does not have a right to appeal the ECA pursuant to s. 139 of the EPA.

B. Can the Tribunal permit the City to apply for leave to appeal the ECA pursuant to s. 38 of the EBR?

19Section 38 provides as follows:

Right to seek leave to appeal a decision on an instrument

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…

(3) For the purposes of subsection (1), the fact that a person has exercised a right given by this Act to comment on a proposal is evidence that the person has an interest in the decision on the proposal.

20Section 40 of the EBR stipulates the timeframe for seeking leave to appeal:

40. An application for leave to appeal under subsection 38 (1) shall not be made later than the earlier of,

(a) fifteen days after the day on which the minister gives notice under section 36 of a decision on the proposal: and

(b) fifteen days after the day on which notice relating to the proposal is given under section 47.

21The City did not seek leave to appeal the ECA within the timeframe stipulated in s. 40 (b).

22The City submits s. 38 and s. 40 of the EBR do not apply under the circumstances in this case. The City claims it was directly affected by the actions of the Director; therefore, it is not required to seek leave to appeal the decision to issue the ECA.

23The Director replies that the purpose of s. 38 of the EBR is to allow for public participation, including a party that submitted comments which were disregarded.

24The Tribunal considered the submissions of the Parties and determined that the language in s. 38 is precise and does not exclude persons who submitted comments which were disregarded from seeking leave to appeal the ECA. There is no merit to the City’s claim that s. 38 and s. 40 do not apply in the circumstances in this case.

25Alternatively, the City asserts that the circumstances of this case are extraordinary and therefore the Tribunal is permitted to allow the City to file an application for leave to appeal even though the timeframe stipulated in s. 40 of the EBR has expired.

26The Director responds that the circumstances are not extraordinary. It submits that the City’s failure to appeal the ECA is completely unrelated to the Director having issued the ECA without considering the City’s comments.

27The Director also asserts that the Tribunal has no jurisdiction to extend the time within which an application for leave must be submitted pursuant to s. 40(b) of the EBR.

28In support of this assertion the Director referred the Tribunal to paragraphs 8 and 9 of the decision in the case of Passmore v. Ontario (Director, Ministry of the Environment) 2007 CarswellOnt 3303.

8 Section 40 states that an application for Leave to Appeal "shall not" be made after 15 days. Section 29(2) of the Interpretation Act, R.S.O. 1990, c. I.11, states in part:

In the English version of an Act, the word "shall" shall be construed as imperative and the word "may" as permissive

9 Therefore, the Tribunal finds that the language in section 40 establishes a mandatory deadline for filing an application for Leave to Appeal …This conclusion is consistent with the general rule that deadlines for the commencement of proceedings before administrative tribunals are considered to be mandatory in nature…

29The Tribunal considered the submissions of the Parties. The Tribunal only has jurisdiction given to it by statute, there is no basis for the City’s assertion that the circumstances of this case are extraordinary thereby permitting the Tribunal to allow the City to submit an application for leave to appeal beyond the timeframe stipulated in s. 40(b) of the EBR.

C. Does the Director’s failure to consider the City’s comments create a right for the City to appeal the ECA?

30The City submits that the Director’s conduct resulted in the ECA being void ab initio and this motion should be dismissed.

31Section 35(1) of the EBR provides as follows:

35 (1) A minister who gives notice of a proposal under section 15, 16 or 22 shall take every reasonable step to ensure that all comments relevant to the proposal that are received as part of the public participation process described in the notice of the proposal are considered when decisions about the proposal are made in the ministry.

32The Director asserts that s. 35(1) of the EBR is not the basis for a right of appeal; it is merely a stipulation regarding what the Director must consider prior to issuing an ECA.

33The Tribunal finds that s. 35(1) constitutes instruction to the Director.

34This motion is regarding the Tribunal’s jurisdiction to hear the Appeal. The Director’s failure to consider the City’s comments is unrelated to the Tribunal’s jurisdiction pursuant to s. 139 of the EPA. Failure of the Director to consider the City’s comments does not create a right of appeal to the Tribunal.

FINDINGS AND ORDER

35Based on the aforenoted the Tribunal finds that the City does not have the right to appeal the amended Environmental Compliance Approval #6993-6X4QNM, pursuant to s.139 of the Environmental Protection Act.

36The Tribunal grants the Director’s motion for a dismissal of the Appeal.

37The Tribunal Orders that the Appeal is dismissed.

“M. Arpino”

M. ARPINO MEMBER

Ontario Land Tribunal Website: 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.