Allaura Limited Partnership v. Ontario (Environment, Conservation and Parks), 2025 CanLII 12016

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 14, 2025

CASE NO(S).: OLT-25-000029

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

Applicant: 20 Allaura Blvd Corp. and Allaura Limited Partnership

Instrument Holder: Magna Powertrain Inc. operating as Unimotion-Gear

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

Subject of leave to appeal: Decision to issue an Amended Environmental Compliance Approval (Air & Noise) pursuant to section 20.2 of Part II.1 of the Environmental Protection Act., 1990, c. E. 19, as amended, for changes to the equipment inventory, general exhausts, and increase to the production limit

Reference No.: 2778-D6UGB7

Property Address: 245 Edward Street

Municipality/ Upper Tier: Aurora/York

OLT Case No.: OLT-25-000029

OLT Lead Case No.: OLT-25-000029

OLT Case Name: Allaura Limited Partnership v. Ontario (Environment, Conservation and Parks)

Heard: February 6, 2025 in writing

APPEARANCES:

Parties

Counsel

20 Allaura Blvd Corp. and Allaura Limited Partnership

John Georgakopoulos Jennifer Sweitzer Ali Naraghi

Director, Ministry of the Environment, Conservation and Parks

James Kendik

Magna Powertrain Inc. o/a Unimotion-Gear

Tamara Farber

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

120 Allaura Blvd Corp. and Allaura Limited Partnership (“Appellants”) seek leave under section 38 of the Environmental Bill of Rights (“Act”) to appeal the decision of the Director (“Director”) of the Ministry of the Environment, Conservation and Parks (“MECP”), to issue the Amended Environmental Compliance Approval (Air and Noise) No. 2778-D6UGB7 dated December 11, 2024 (“Amended ECA”) to Magna Powertrain Inc. operating as Unimotion-Gear (“Magna”).

Decision

2The Tribunal dismisses the application for leave to appeal.

Parties

320 Allaura Blvd Corp., a corporation incorporated in Ontario, owns three properties in the Town of Aurora (“Town”) known municipally as 16, 20, and 22 Allaura Blvd. (“Allaura Properties”). Allaura Limited Partnership, a related corporation, is involved in the redevelopment of these Properties. In March 2023, Allaura applied to the Town to have the Allaura Properties rezoned from E2 “General Employment” uses to residential uses. The Appellants intend to develop ten blocks of 3.5-story stacked townhouses (“Proposed Development”), and anticipate presenting their Proposed Development to Town Council for final approval in April or May 2025.

4Magna, the Instrument Holder, is the owner of a facility operating at 245 Edward Street in the Town (“Facility”). The Allaura Properties are located adjacent to, and immediately south and southeast of the Facility. The Facility is engaged in the manufacturing of drive plates, flex plates, and reluctor wheels for use in the automotive industry. It includes processes such as heat treating, roll forming, metal stamping, parts washing, welding, and assembly. This Facility produces noise, vibration, and air emissions from manufacturing activities. In February 2024 Magna applied for an amendment to its Environmental Compliance Approval No. 3468-9J8NS2, seeking to amend Magna’s air and noise ECA. The Amended ECA permits Magna to increase its production levels by 11 percent to 26,900 MIG welded parts per day and up to 14,670 laser welded parts per day at the Facility.

5The Director is the determinative body and approval authority on ECA applications. It issued the Amended ECA on December 11, 2024.

BACKGROUND

6In 2010, the Town of Aurora updated its Official Plan and designated the Allaura Properties as part of the Aurora Promenade, allowing for residential development. In January 2024, the Town approved an Updated Official Plan, which maintained the Aurora Promenade designation of the Allaura Properties.

7As part of the Appellants’ re-development application to the Town, the Appellants prepared multiple Noise and Vibration Feasibility Studies completed by HGC Engineering (“Allaura Studies”). These studies found that mitigation measures were required for the Proposed Development due to surrounding noise and vibration sources, including from the Magna Facility. The findings of the Allaura Studies were based on the uses and production of the Magna Facility and the noise and vibration emissions coming from the Magna Facility that were in place before the Amended ECA.

8On Magna’s end, in support of the ECA application, Magna submitted an Emission Summary and Dispersion Modelling Report, prepared by Pinchin, dated February 6, 2024, and an Acoustic Assessment Report prepared by Pinchin, dated November 20, 2023 (“Magna’s Pinchin Reports”). These reports did not include or assess the impact of Magna’s noise and vibration emissions on the Appellants’ Proposed Development.

9Upon receipt of the ECA application and Magna’s Pinchin Reports, MECP instructed Magna to include three additional residential properties associated with the Proposed Development as points of reception in its noise assessments. However, Magna’s consultant, Pinchin, did not do so because the Allaura Properties’ current zoning is “Employment.” Pinchin did acknowledge and accept that if the zoning of the properties changes, Magna would be required to update its existing Acoustic Assessment Report to assess these new receptor locations and develop a Noise Abatement Action Plan, as needed.

10In June 2024, Magna appealed the Town’s 2024 Official Plan update to the Tribunal (OLT-24-000690), arguing that the Aurora Promenade designation, allowing for residential development, could impose stricter noise limits on its operations requiring it to meet potentially “impracticable guideline limits.” Allaura Limited Partnership and 16, 20, and 22 Allaura Boulevard have been added as a Parties to that appeal.

POSITION OF THE PARTIES

11The Appellants argue that the Amended ECA should not have been issued because no reasonable person would have approved it under the relevant laws and policies. Moreover, the approval could cause significant harm to the environmental harm. The Appellants seek leave to appeal the Director’s decision to issue the Amended ECA. If leave to appeal is granted, at a future appeal, the Appellants would seek an Order of the Tribunal either revoking the Amended ECA or modifying it to include site-specific mitigation measures to address the noise and vibration impacts on the Proposed Development.

12The Director requests that the application for leave to appeal be dismissed because the Appellants have failed to demonstrate that there is good reason to believe that the Director acted unreasonably in issuing the Amended ECA. The Amended ECA was granted following a thorough review process that considered all applicable laws and policies. Moreover, the Appellants have failed to establish a prima facie case that the decision to issue the Amended ECA could result in significant harm to the environment. The Amended ECA includes adequate safeguards to prevent adverse effects from the operation of the Facility. Thus, the Appellants have failed to meet the test for leave in section 41 of the Act.

13Magna also requests a dismissal of the application for leave to appeal, stating that the Appellants’ application is speculative and based on a hypothetical situation (the Proposed Development) that does not exist. The approval of the Amended ECA was based on Ministry guidance applied to the acoustic impacts on existing receptors. All evidence before the Tribunal demonstrates that Ministry guidance was followed and that there is no evidence of significant harm to the environment as a result of the Amended ECA. The Amended ECA is a renewal of a similar Ministry approval obtained in 2014, and the approvals are based on: expert assessment of acoustic emissions from the site operations; expert assessment of abatement requirements and guidance from the Ministry; and ongoing compliance with annual reporting for modifications to site operations.

THE LEGISLATIVE TEST

14To be granted leave to appeal, the Appellant must meet two tests in the Act.

15The first test is pursuant to section 38 of the Act, which outlines who may seek leave to appeal. Namely:

a. It must be a person resident in Ontario;

b. The proposal must be a Class I or II instrument of which notice is required to be given;

c. The person must have an interest in the decision; and

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

16The second test is pursuant to section 41 of the Act, and it requires an applicant to establish a prima facie case by satisfying two elements:

a. Unreasonableness of the Decision (s. 41(a) of the Act): The applicant must show that there is good reason to believe that no reasonable person, considering the relevant law and applicable government policies, could have made the decision in question. This is considered a stringent threshold, meaning the decision must be egregiously in error (Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC), [2008] O.J. No. 2460 [“Lafarge”], provided to the Tribunal by the Parties).

b. Potential for Significant Environmental Harm (s. 41(b) of the Act): The applicant must show that the decision being appealed could result in significant harm to the environment.

17The standard of proof at this stage is less than a balance of probabilities. The Appellants need only to present significant evidence of preliminary merit to convince the Tribunal that there is a real foundation for an appeal, sufficient to give the parties the right to pursue the matter through the appeal process (Lafarge). Appeals by third parties are intended to be an exceptional remedy, and there is a general presumption against granting leave, so the case must be exceptionally compelling (Lafarge).

ANALYSIS AND FINDINGS

The Appellants’ Right to Seek Leave to Appeal under section 38 of the Act

18With respect to the test under section 38, the Tribunal finds that the Appellants, as incorporated bodies in Ontario, meet the definition of being deemed a person resident in Ontario. Furthermore, the Director’s decision granting the Amended ECA for a Class II instrument requires notice under s. 22 of the Act. Additionally, the Appellants meet the two conditions in section 38 as follows:

a. The person seeking leave to appeal has an interest in the decision: The Appellants are a neighboring property owner and are affected by the Director’s decision to grant the Amended ECA, which may lead to increased noise, vibration, and air emissions from the Magna Facility.

b. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal: In this case, another person, specifically Magna, has a right to appeal Magna’s Amended ECA under s. 139 of the Environmental Protection Act (“EPA”).

19The Director did not dispute the Appellants’ standing or that they meet the criteria under section 38 of the Act. Magna submitted that the Appellants’ lack of stakeholder submissions during the Notice posting period of the ECA on the Environmental Registry may allude to the Appellants’ lack of interest in this decision. However, Magna did not oppose the Appellants’ standing either. Moreover, the Tribunal was not persuaded that Magna’s assertion was sufficient to remove the Appellants’ ability to pursue this application to seek leave to appeal. Thus, the Tribunal finds that the Appellants meet the criteria for standing under s. 38 of the Act to bring an application for leave to appeal the Director’s decision to grant the Amended ECA.

The Test under section 41 of the Act – Reasonableness (section 41(a))

20With respect to the test under section 41(a) of the Act, the Tribunal must assess whether no reasonable person, considering the relevant law and applicable government policies, could have made the decision in question. The Tribunal must consider the manner in which the Director made the decision, what the Director considered, and the decision itself. Moreover, based on the facts and the applicable laws and policies, the Tribunal must determine whether there is good reason to believe that the decision is outside the range of reasonable decisions possible. If there has been a failure by the Director to consider relevant laws and policies, or the factual or scientific basis for the decision is unreasonable in light of relevant laws or policies, the Tribunal may conclude that there is good reason to believe that no reasonable person could have made the decision in issue (Lafarge, and Corporation of the City of Guelph v. Director, Ministry of the Environment, [2014] OERTD No. 25, provided by the Director).

21In this case, the Tribunal finds the Director’s decision to issue the Amended ECA and the manner in which it was made reasonable. The Tribunal agrees with the Director that the decision appears to be based on a thorough review process that fully complied with applicable laws, policies, and technical guidelines.

Consideration of Relevant Law and Policies

22The Appellants argue that the Director failed to consider the relevant laws and policies in two ways: (1) failing to consider the Appellants’ Zoning By-law Amendment application; and (2) failing to consider the Ministry’s Statement of Environmental Values (“SEV”).

Zoning By-law Amendment Application

23The Appellants argue that the Director (and Pinchin, Magna’s consultants) failed to take into account the Aurora Promenade designation, established in 2010 in the Official Plan, which permits residential development at the Allaura Properties. As detailed above, Pinchin dismissed MECP’s request to include the three additional residential points of reception located at the Allaura Properties on the basis that the current zoning designation there was for Employment uses. The Director did not follow up on this with either Pinchin or Magna, and did not require (before making a decision) an updated noise assessment and a Noise Abatement Action Plan that would address the potential impacts on future residents of the Proposed Development. The Appellants argue that this was entirely unreasonable as the Proposed Development application for the Allaura Properties is well underway of being approved. Thus, the Proposed Development should have been properly assessed as a noise sensitive receptor, due to the Official Plan designation and where the Zoning By-law Amendment application is in the approval process. The Appellants argue that the Director’s failure in this regard has resulted in the Director failing to consider and assess the harmful impact of Magna’s noise and vibration emissions on the residents of the Proposed Development.

24However, the Tribunal was persuaded by the Director’s submissions that zoning decisions fall under municipal jurisdiction and are entirely separate from the ECA process. While consideration of municipal decisions is a relevant factor in the Director’s decision, it is not determinative. Zoning amendments are entirely outside the jurisdiction of a Director appointed under the EPA. Under the EPA framework, an Amended ECA can be issued despite a pending amendment to municipal zoning by-laws, such as in this case. Moreover, the Director only needs to consider this application and does not need to be persuaded by it. The Appellants’ assertion that the Director did not consider this Zoning By-law Amendment application is not correct since the Director did ask Pinchin to look at it. Thus, the Director did consider it. The Appellants’ issue with the Director’s decision is that the Director was not persuaded by the Zoning By-law Amendment application, not that the Director did not consider it. The Tribunal finds that the Director did not have to be persuaded by the Zoning By-law Amendment application in order for the decision to be reasonable.

25The Director provided the Tribunal with evidence that Magna and their noise consultant Pinchin were made aware by Header Merza, Senior Noise Review Engineer at MECP, in a meeting held on September 26, 2024 (followed by an email confirmation by Pinchin, a copy of which was provided to the Tribunal) that should the zoning of the Allaura Properties change to a designation which allows for the construction of noise-sensitive receptors, the Magna Facility would be required to update their existing Acoustic Assessment Report to assess these new receptor locations and develop a Noise Abatement Action Plan as needed. The Tribunal was persuaded by this evidence that should the Appellants get approval on their application, there will be a recourse with respect to the Proposed Development and its future residents.

26Moreover, the planning process is a lengthy one. The Appellants argue that their application is near its end, and that it is not a hypothetical scenario but a real and present development. However, it is not clear exactly when it will be presented to Council, whether it will be approved, whether it will be appealed, whether there will be Conditions to the approval, and a number of other contingencies that remain unknown at present. Moreover, even if the Zoning By-law Amendment is successful, the Site Plan process that follows is lengthy. What the Appellants have currently proposed for the Allaura Properties, and specifically Block 6 and 7 which are the most likely to be affected by the Magna Facility, may not remain as they are. Even the Official Plan designation that the Appellants so heavily rely on is currently under appeal before this Tribunal. Thus, while the Appellants argue that this is a specific and real proposal to be considered, the Tribunal in fact agrees with Magna and the Director and finds that the Proposed Development is a hypothetical scenario, which remains unknown at this time.

27In short, the Tribunal was convinced by Magna’s submissions that the leave to appeal application seeks advance relief for a situation involving receptors that do not currently exist. Thus, the Tribunal finds that the Amended ECA was reasonably issued based on existing receptors as defined by Ministry guidance. Additionally, the Tribunal was persuaded that there are provisions for updating the assessments later. The Appellants argue that there is no wording in the Amended ECA or a Condition attached which would require an updated Noise Abatement Action Plan as needed. However, the Tribunal was persuaded that Magna is required to submit an annual updated assessment, as discussed in further detail below, and should the real-life factors surrounding Magna change (for example, the zoning of surrounding properties is modified), presumably the annual updated assessment will reflect that.

28Thus, the Tribunal finds that the Director was reasonable in its consideration of the Zoning By-law Amendment application.

The Ministry’s Statement of Environmental Values (“SEV”)

29The Appellants argue that the Director did not adequately incorporate the Ministry’s own SEV, as required under s. 7 and s. 11 of the Act. The SEV emphasizes the need to consider cumulative effects on the environment, apply sustainable development principles when making decisions taking into account the effect of decisions on current and future generations, and apply a precautionary approach. The Director’s decision did not adequately assess the potential harm of the Amended ECA on the future residents of the Proposed Development. By ignoring the planned residential development, the decision did not balance environmental protection with economic and social considerations. The Appellants emphasized that emissions sources were unreasonably omitted by Pinchin and Magna from consideration (namely the noise and vibration impacts at the Allaura Properties), and had this information been before the Director, it would have required the Director to take a more precautionary approach. As such, the Director failed to properly consider the cumulative effects of the noise and vibration emission from Magna Facility, as required by the SEV.

30The Tribunal, however, finds that the Director properly applied the Ministry’s SEV. The Tribunal was persuaded that the review process the Director relied on incorporated an evaluation of cumulative noise impacts, with the Facility’s emissions required to meet established noise limits (set out in the guidelines) for various periods (day, evening, night). Moreover, these noise limits are applicable at any noise-sensitive points of reception in the area. With respect to the precautionary approach, the Tribunal was persuaded that the Director applied this when deciding on the Amended ECA. As the Director submitted, application of this principle is guided by the status of compliance with Ministry noise publication. Mr. Merza’s engineering assessment outlines how the worst-case scenario is determined by the proponent based on distance from, and exposure to, all sources of noise located at the facility. Compliance with the noise limits is determined through measurements and/or calculations carried out by an acoustical consultant retained by the proponent. Mr. Merza’s engineering assessment detailed his review of the Magna’s Acoustic Assessment Report and his assessment of the Facility’s compliance with the Ministry’s noise publication. Thus, the Tribunal finds that cumulative effects were considered and the precautionary approach was applied.

31The Tribunal was further persuaded by the evidence provided that the Director appropriately considered sustainable development in making this decision. Specifically, the Director considered Senior Air Review Engineer Jan Kowalczyk’s and Mr. Merza’s thorough engineering assessment of each environmental value in respect of the Amended ECA Application. Mr. Merza’s engineering assessment demonstrated that the operations covered by this Amended ECA are compliant with regulatory requirements at all off-property locations including the locations of current and future residences. Moreover, the Amended ECA includes standard conditions, as well as site-specific conditions, to address the protection of current and future residences, such as:

a. Condition 4(3) and (4) require Magna to ensure, at all times, that the noise and vibration emissions from the Facility comply with limits set out in Ministry publications; and

b. Condition 5(2) requires the Acoustic Assessment Report to be updated on an annual basis which would capture any new noise-sensitive receptors around Magna that were not previously assessed.

32The Appellants argue that the fact that the Director asked Pinchin to consider the Proposed Development shows that the Director was aware of its significance on the outcome of the decision. However, they argue, the Director instead accepted Pinchin’s response and failed to require an updated Acoustic Assessment Report or a Noise Abatement Action Plan that would have addressed the potential impacts of Magna’s noise and vibration emissions on future residents at the Allaura Properties. Thus, the Appellants argue that the Director failed to properly consider the cumulative effects of the noise and vibration emissions from the Magna Facility (as required by the SEV) or consider the Town’s Official Plan that allows for residential development in that area.

33However, the Tribunal again finds that the Director was reasonable in accepting Pinchin’s response regarding the zoning of the Allaura Properties for the reasons detailed above.

Reasonableness of the factual or scientific basis for the decision

34The Appellants argue that the Allaura Studies found that Magna’s noise and vibration emissions are not within regulatory limits, contrary to the assertions made by the Director and Magna, when the Allaura Properties are taken into consideration. They argue that the following renders the Director’s decision unreasonable:

a. The Director states that the vibration and impulsive noise emitted from the Magna Facility (after the issuance of the Amended ECA) are below the applicable limits set out in the Ministry publication NPC-207 (Ministry Publication Impulse, Vibration in Residential Buildings). The reason that Magna has been deemed to meet the NPC-207 limits is because Magna did not include the assessment of the Proposed Development at the Allaura Properties.

b. The measurements and analysis in the Allaura Studies show that steady and impulsive noise emissions from the Magna Facility will cause exceedances of NPC-300 (Environmental Noise Guideline, Stationary and Transportation Sources – Approval and Planning) and cause potential adverse effects at the Proposed Development on the Allaura Properties.

c. The Allaura Studies confirm that Pinchin’s Acoustic Assessment Report failed to include vibration and impulsive noise assessment, which is required given that the Magna facility includes metal stamping and produces vibration emissions.

35Specifically, the Appellants argue that if the evidence regarding the noise and vibration exceedances at the Allaura Properties was available to the Director, there is good reason to believe that no reasonable person, having regard to the aforementioned effects, could have made the decision to issue Magna’s Amended ECA. The Director failed to consider the off-site impacts at the Allaura Property which is in the final stages of approval and will experience noise and vibration exceedances of MECP noise limits as a result of the Director granting the Amended ECA. The Appellants relied on the case of Marshall v Ontario (Director, Ministry of the Environment) [2008] O.E.R.T.D. No. 39, wherein the Tribunal found that, in some cases, it may be sufficient for an applicant to simply bring to the surface any apparent errors from the available documents, and if the respondents do not adequately refute them, then leave to appeal may be granted.

36In this regard, the Tribunal has already found, as detailed above, that not taking the Proposed Development into account was not unreasonable. Upon review of the material submitted, the Tribunal agrees with the Director that the Amended ECA underwent a robust review process. The Tribunal is also convinced by Magna that the acoustic and vibration assessments followed all relevant Ministry guidance, and recent testing and technical reports by qualified engineers confirm that the Facility’s noise and vibration emissions meet the established standards. The Tribunal finds that the Director’s decision was supported by detailed engineering assessments and complied with the EPA, relevant regulations, and Ministry guidelines. The ECA application underwent proper public notice (posted for 45 days as opposed to the required 30 days) and review by qualified engineers who ensured that all technical studies and supporting documentation demonstrated compliance with environmental standards.

37The Tribunal finds that the Appellants have not demonstrated errors or provided sufficient expert evidence to show that the decision falls outside the range of reasonable choices. Thus, the Tribunal finds that the Appellants have failed to demonstrate that no reasonable person, considering the relevant law and applicable government policies, could have made the decision to grant the Amended ECA.

The Test under section 41 of the Act – Harmfulness (section 41(b))

38With respect to the test under section 41(b) of the Act, where there are competing expert opinions that have not been fully tested, the test is met if there is sufficient information for the Tribunal to conclude that significant harm could result even if it is not clear that it will. Based on the evidence provided, the Tribunal agrees with the Director and Magna that the Appellants have not established a prima facie case that issuing the Amended ECA could result in significant environmental harm.

39The Director relied on the case of Residents Against Company Pollution Inc. v Ontario (Ministry of Environment and Energy), [1996] O.E.A.B. No. 29. At paragraph 41 of that case, it is indicated that significant harm is defined as “primarily an emission likely to cause an adverse effect, an emission likely to exceed a numerical standard, or an emission likely to violate some other legal requirement.” In the case at hand, the Tribunal was convinced that the evidence provided does not meet this threshold. The Appellants argue that the noise impacts from the Magna Facility on the Proposed Development falls squarely within this definition of significant harm. However, the Tribunal agrees with the Director and Magna that the alleged harm is speculative and not grounded in present facts or conditions. The alleged risks are based on hypothetical scenarios, particularly regarding future developments and receptor changes, which do not currently exist. Formal municipal authorization is required for those receptors to materialize. While the Appellants argue that the authorization is imminent, there is a significant amount of uncertainty, detailed above, surrounding the actualization of the Proposed Development and what it will ultimately look like. Moreover, the ECA requires Magna to update its assessments as the conditions surrounding its Facility change. Based on the documents provided, Magna has acknowledged that it would comply with its ongoing obligations under the Amended ECA if and when municipal authorization is provided to the Appellants.

40Moreover, the Tribunal agrees that the Appellants’ claims are not supported by concrete or expert evidence. The decision to issue the Amended ECA was based on expert opinions and adherence to rigorous Ministry standards and technical guidelines. Recent testing by Magna’s experts confirms that the Facility’s noise and vibration emissions are within acceptable limits for the present conditions. The Tribunal agrees with the Director that the decision is grounded in factual and scientifically tested information, not in unproven assumptions or competing expert opinions.

41The Appellants argue that the Director’s decision poses a real risk of significant environmental harm based on current emission data and the lack of mitigation measures. Namely:

a. The decision fails to require any mitigation measures for the increased noise and vibration emissions from the Magna Facility, which could adversely affect the surrounding environment, including the future residents at the Allaura Properties. By allowing Magna to operate at a greater capacity without additional mitigation measures, the Director’s decision risks significant environmental harm.

However, the Tribunal finds that there are Conditions, discussed above, which require Magna to comply with the Ministry’s noise emission guidelines and to conduct yearly updates to their assessments. Magna has agreed to this. Thus, the Tribunal disagrees that additional mitigation measures are required. In fact, the Tribunal finds that mitigation measures are included that address potential changing conditions that could arise in the future.

b. The Allaura Studies (HGC’s Noise and Vibration Feasibility Studies) indicate that the Facility’s operations have the potential to significantly impact the natural environment (air, land, and water) as defined by the EPA. This is because the Studies found that the Facility’s emissions (before the Amended ECA) already show potential to exceed acceptable noise and vibration limits.

However, in this case, as discussed above, the Tribunal is convinced by Magna and the Director’s experts that the Facility’s operations under the Amended ECA would be within the limits of the EPA.

c. Under a precautionary approach, the absence of definitive scientific proof of harm is not a reason for delaying action to protect the environment. The existence of competing expert opinions or incomplete evidence does not preclude the conclusion that significant harm could occur. Allaura’s Studies have highlighted that there will be a potential significant impact to the environment from the Magna Facility that needs to be addressed and mitigated, and the Amended ECA does not require Magna to take mitigation measures with respect to noise and vibration emissions that will affect the Proposed Development.

In this case, the Tribunal finds that, while the Appellants’ Proposed Development was not taken into account, that does not mean that the environment is not being protected. The Amended ECA does require Magna to take mitigation measures, namely in the Conditions that are listed above. HGC already found that the Appellants would have to implement measures in their Proposed Development to address the impact of the Facility on their proposal. That situation remains and it is the Appellants, whose development has yet to be approved, who must consider this Facility’s impact. Once zoning is amended and the Proposed Development is on its way to being built, Magna will have to take the Proposed Development into consideration and will do so in its annual updates to its assessments. Lastly, Magna will continuously have to meet the noise guidelines as required by the Amended ECA and in accordance with the EPA.

42In review of the evidence provided, the Tribunal finds that there is no compelling evidence to suggest that the Amended ECA could result in significant harm to the environment. Consequently, the Appellants have not satisfied the second branch of the leave to appeal test under section 41(b) of the Act.

Conclusion

43The Appellants have not satisfied the Tribunal that (a) no reasonable person could have made the decision to issue the Amended ECA with due regard to the applicable laws and policies, or that (b) significant harm to the environment could result from the decision. The Appellants have therefore failed the test under section 41 of the Act for leave to appeal the Amended ECA.

ORDER

44The application for leave to appeal is dismissed.

“Bita M. Rajaee”

BITA M. RAJAEE

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.