ISSUE DATE:
July 16, 2025
CASE NO(S).:
OLT-25-000415
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, R.S.O. 1993, S.O. 1993, c. 28, as amended
Applicant:
Evan Argiloff
Instrument Holder:
508818 Ontario Limited o/a Erie Meats
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
Decision to issue a new Environmental Compliance Approval (air and noise) pursuant to section 20.3 of the Environment Protection Act to a facility that produces, packages and distributes various processed meat products
Reference No.:
A-500-8156406566
Property Address:
1400 Mitchell Road South
OLT Case No.:
OLT-25-000415
OLT Lead Case No.:
OLT-25-000415
OLT Case Name:
Argiloff v. Ontario (Environment, Conservation and Parks)
Heard:
In writing
Parties
Counsel/Representative*
Evan Argiloff
Self-represented*
Director, Ministry of the
Michael Malleson
Environment, Conservation
and Parks
508818 Ontario Limited o/a
Patrick Duffy
Erie Meats Products Ltd.
DECISION OF THE TRIBUNAL DELIVERED BY HUGH S. WILKINS
Link to the Decision
1In December 2021, 508818 Ontario Limited o/a Erie Meats Products Ltd. (“Approval Holder”) applied for an Environmental Compliance Approval - Air and Noise under s. 9 of the Environmental Protection Act. The Approval Holder’s operations include the packaging and distribution of processed meat products, including hot dogs and battered and breaded chicken. The Approval application was for all sources of noise (including exhaust fans, HVAC units, and trucks for deliveries) at the Approval Holder’s facility located at 1400 Mitchell Road South (“subject property”), in Listowel, Ontario.
2On March 4, 2025, the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”), approved the application and issued Environmental Compliance Approval No. A-500-8156406566 (“Approval”) to the Approval Holder.
3On June 10, 2025, Evan Argiloff (“Applicant”) filed an application for leave to appeal the Director’s decision under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”). The Applicant’s concerns are that the Approval Holder has not complied with the MECP’s NPC-300 Noise Guideline (dated October 21, 2013) (“NPC-300 Noise Guideline”) in relation to nearby existing residential land uses.
4In support of its application for leave to appeal, the Applicant filed submissions along with various supporting documents, including a report entitled “Noise Feasibility Study, Proposed Residential Development Listowel, Ontario”, prepared by HGC Engineering, dated February 12, 2007 (“2007 Noise Feasibility Study”).
5In response to the application for leave to appeal, the Director filed witness statements, each dated June 25, 2025, from the following individuals:
a. Enoch Tse, who is a Senior Noise Engineer in the Approval Services Section of the Environmental Assessment and Permissions Branch of the MECP; and
b. Nancy Orpana, who is the Director at the MECP who issued the Approval.
6In its response to the application for leave to appeal, the Approval Holder filed submissions, but no evidence.
1. Standing to Seek Leave to Appeal
7The test for standing to bring an application for leave to appeal is set out in EBR s. 38(1). The requirements for standing as set out in s. 38(1) are:
a. the applicant must be a person;
b. the applicant must be a resident in Ontario;
c. the decision in question must be whether or not to implement a proposal for a Class I or II instrument;
d. the applicant must have an interest in the decision; and,
e. another person must have a right to appeal under another Act.
Applicant’s Submissions on Standing
8The Applicant submits that he is a resident of Ontario and neighbouring landowner and developer in Listowel who has noise concerns regarding the Approval. He states that he owns land that is adjacent to the subject property. He submits that he wanted to provide comments to the MECP regarding the Approval, but the MECP’s refusal to provide him with a copy of the Approval Holder’s noise study made it difficult to do so.
Director’s Submissions on Standing
9The Director submits that EBR s. 38 states that a resident of Ontario may apply for leave to appeal where, among other things, the person has an interest in the decision in question. She submits that where the person has commented on the proposal when it was posted on the Ontario Environmental Registry, this is viewed as evidence of an interest in the decision. She submits that the Applicant did not make a comment and has not complained in the past to the Ministry about noise from the Approval Holder’s facility. She submits that the Applicant is not a resident of Listowel. She submits that he only owns a commercial property on the other side of town beyond the radius of noise emission impacts. She submits that the Applicant has a history of bringing proceedings in bad faith and engaging in vexatious and unreasonable behaviour. The Director submits that the Applicant has not demonstrated that he is a person with an interest in the decision to issue the Approval and does not have standing to apply for leave to appeal.
Approval Holder’s Submissions on Standing
10The Approval Holder also submits that the Applicant does not have standing. It submits that the Applicant was the developer of a nearby residential subdivision named Hannah’s Haven. It submits that in 2007, when the zoning and draft plan of subdivision for Hannah’s Haven were approved, the Approval Holder appealed to the Ontario Municipal Board based on concerns that the proposed subdivision was not compatible with the Approval Holder’s already existing industrial facilities. It submits that the appeal was settled in February 2009 through a settlement agreement that allowed the residential development of Hannah’s Haven to proceed subject to noise mitigation measures being implemented. It submits that the Applicant does not appear to have any continuing interest in the subdivision as the lots have been transferred to homeowners and, based on Court documentation, the Applicant is no longer involved.
11The Approval Holder submits that the Applicant did not comment on the posting of the Approval proposal on the Ontario Environmental Registry, has not shown that he is a neighbour who will be impacted, and has not demonstrated in any other way that he has an interest in the Director’s decision. Moreover, the Approval Holder submits that the Applicant is prohibited under the terms of the 2009 settlement agreement from objecting to, opposing, delaying, or interfering with any environmental or development approval for an industrial operation or activity on the subject property that would result in noise, processing odours, or point source and fugitive emissions. The Approval Holder submits that even if the Applicant established standing based on his ownership of nearby lands, if those lands are subject to the settlement agreement, then his application for leave to appeal is barred.
Analysis and Findings
12The Approval Holder and the Director argue that the Applicant does not have standing because he does not have an interest in the Director’s decision to issue the Approval. They submit that he did not file a comment on the Approval proposal through the Ontario Environmental Registry. It is contested as to whether he owns property in the vicinity of the subject property.
13Section 38(3) of the EBR states that an applicant must have “an interest in the decision”. The Divisional Court in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC) stated, at paragraph 38, that this need not be a direct interest. The Court gives the submission of a comment through the Ontario Environmental Registry as an example. The Court stated (with emphasis added):
- In respect of appeals of decisions on Class I and Class II instrument proposals, under s. 38(1) of the EBR, any person resident in Ontario has standing to seek leave to appeal if such person has an interest in the decision. It need not be a direct interest. The fact that a person has exercised a right given by the EBR to comment on a proposal on the Registry is evidence that a person has an interest in the decision on the proposal (s. 38(3)).
14This does not require the Applicant to have made a comment or to own property near the subject property. He just needs to demonstrate an interest of some sort in the Director’s decision.
15Based on the evidence before the Tribunal, the Applicant has been involved, at least in the past, with the residential subdivision development adjacent to the subject lands. Although he may not have a direct interest in the Director’s decision to issue the Approval, the Tribunal finds that the Applicant’s involvement with the adjacent residential subdivision constitutes an interest in the decision.
16The Approval Holder argues that the Applicant should be denied standing based on the possibility that the commencement of proceedings may be in contravention of a settlement agreement entered into by previous owners of the subject lands and a company in which the Applicant had a role, at least in the past. The Tribunal finds that although the public interest is a consideration, the Tribunal is not directed under EBR s. 38(1) to consider private contractual obligations when determining standing. In any event, the Tribunal has not been provided with sufficient evidence to make a finding regarding whether there was a contravention of the settlement agreement.
17Based on the evidence and submissions before it, the Tribunal finds that the Applicant is a resident of Ontario, the Director’s decision is to implement a proposal for a Class II instrument of which notice was given under s. 22 of the EBR, and the Approval Holder has the right under s. 139 of the Environmental Protection Act to appeal the Director’s decision. As determined above, the Tribunal finds that the Applicant has an interest in the matter. The Tribunal finds that the Applicant has standing to seek leave to appeal the decision to issue the Approval.
2. The Leave Test
18Under s. 41 of the EBR, the test for leave to appeal has two components: a reasonableness test; and a significant environmental harm test. To be successful, an applicant must satisfy each of these components of the test. Section 41 states:
- 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.
19These two requirements will be analyzed and applied separately below.
A. The Reasonableness Test
Applicant’s Evidence and Submissions
20The Applicant argues that the Approval Holder has failed to satisfy the noise level requirements in the NPC-300 Noise Guideline at the boundary between the existing residential and industrial uses. He submits that this poses a risk to the environment and nearby subdivision residents. He submits that a section of the subdivision’s noise barrier is missing, which will increase impacts. He submits that, under the terms of the Approval, the Approval Holder has 96 months to address noise issues, which, he argues, is an unreasonable timeframe. He submits that this should be reduced to no longer than 12 months. Referring to his 2007 Noise Feasibility Study, he submits that these noise issues and non-compliance were already apparent at the facility 18 years ago. He submits that no efforts have been made to address these issues since that time. He submits that the Approval would extend this period of non-compliance to a total of 26 years, which is unreasonable.
21The Applicant submits that he built a noise barrier between the subject lands and the adjacent Hannah’s Haven subdivision, which was a requirement under the settlement agreement that was executed between his former company and the previous owner of the subject lands in 2009. As noted above, the settlement arose from a proceeding before the Ontario Municipal Board regarding the zoning and draft plan of subdivision for the development. The Applicant submits that he was assured during settlement discussions in 2009 that noise emissions would be reduced over time through the construction of an earth berm and installation of noise mitigation measures. He submits that this was not done and that noise emissions have instead increased reaching up to 57 decibels (“dBA”). He submits also that the Approval Holder’s noise studies provide inconsistent sound decibel levels, which demonstrate discrepancies and potentially misleading information. The Applicant further submits that a noise report, dated February 13, 2023, that was prepared on behalf of the Approval Holder, is based on the inclusion of the non-existent earth berm. He submits that based on the Approval Holder’s noise studies there will be a 6 dBA noise exceedance. He submits that the Director is aware that the noise from the Approval Holder’s facility has increased, but she issued the Approval anyway. He submits that no reasonable person, given the relevant laws and government policies that guide such decisions, could justify issuing the Approval given the noise exceedances that are currently negatively impacting the nearby residential subdivision. He submits that the Approval is unreasonable and represents an enforcement failure of the Director.
Director’s Evidence and Submissions
Evidence of Enoch Tse
22Dr. Tse stated that he reviewed the Approval Holder’s application for the Approval in regard to anticipated noise emissions. He said the application included an Acoustic Assessment Report, which was prepared by SLR Consulting (Canada) Ltd., dated December 23, 2021 and an updated report, dated February 13, 2023 (“Acoustic Assessment Report”). He said the Acoustic Assessment Report assesses the noise emissions from the Approval Holder’s facility on points of reception in comparison to specific sound level limits contained in the NPC-300 Noise Guideline. He said the Acoustic Assessment Report identifies the significant sources of noise at the Approval Holder’s facility to include, among other sources, HVAC units, general exhaust fans, a hot dog casing removal exhaust fan, air-cooled condensers, steam vents, a smokehouse exhaust fan, cooling towers with associated intake noise, co-generator intakes and exhausts, liquid nitrogen delivery truck with associated engine idling, truck coupling/uncoupling impulses, and truck delivery routes.
23Dr. Tse stated that the assessment methodology used in the Acoustic Assessment Report was accurate. He said the predicted sound levels prior to noise mitigation measures were compliant with the NPC-300 Noise Guideline as follows: they were compliant at all times at one of the points of reception (point 3); they were compliant at another point of reception for day and evening times only (point 1); and they were non-compliant anytime at the third reception point (point 2). Based on these results, Dr. Tse said that noise control measures were recommended, including noise barriers and berms, exhaust silencers, an exhaust fan silencer, and administrative controls of trucks, loaders, among other requirements. With these measures in place, he stated that the predicted sound levels would be compliant.
24Dr. Tse said the Approval Holder proposed a noise mitigation plan that would be implemented over eight years with measures bringing the day and evening sounds levels into compliance within the first two years. He said night time noise would be compliant within six to eight years depending on the location. He said this gradual reduction in noise over time is reasonable. He said that after the first set of mitigation measures are implemented within two years of the issuance of the Approval, sound levels will be within 3 dBA of the NPC-300 Noise Guideline. He said that he recommended that the Approval include conditions to prevent or minimize the potential impacts of these noise emissions on the neighbouring community, environment, and human health. On the other hand, he said the Applicant’s request that all mitigation measures should be implemented within one year could jeopardize the safe implementation of the plan.
25Dr. Tse stated that he reviewed the Applicant’s 2007 Noise Feasibility Study, which was prepared for the adjacent Hannah’s Haven residential development. He said the Study recommended that an earth berm should be installed as a noise barrier to prevent noise impacts. He said that it would be the developer’s responsibility to install this and other noise mitigation measures to reduce impacts from the facility. At that time, the facility was owned by a predecessor company to the Approval Holder. He said noise levels from when a predecessor owned and operated a facility are not a factor to consider when assessing an application by a successor owner and he said historic compliance by an unrelated company is not relevant when assessing a new proposed environmental compliance approval.
Evidence of Nancy Orpana
26Ms. Orpana stated she is the Director who issued the Approval. She said the Approval Holder’s application addressed all noise sources at the Approval Holder’s facility. She stated that she reviewed Dr. Tse’s engineering assessment and recommendations, considered the Ministry's Statement of Environmental Values and other relevant law and policies, and issued the Approval. She stated that she is satisfied that the Approval’s conditions will enable the Approval Holder to operate the facility in a manner that complies with applicable laws and policies, and is protective of the environment.
27In regard to the timeline under the Approval to implement the required noise mitigation plan, Ms. Orpana stated that the risk of an adverse effect is low, and it does not cause concern or warrant refusal of the Approval application. She said the age of the Approval Holder’s facility requires structural engineers to conduct investigations to ensure that the mitigation measures are installed safely, thus requiring the proposed eight-year implementation of the mitigation plan. She said the mitigation plan requires mitigation measures each year that will improve compliance with the NPC-300 Noise Guideline until full compliance is achieved with priority measures implemented within the first two years. She said the timeline for implementing the remaining mitigation measures is reasonable in light of the limited impacts.
Director’s Submissions
28The Director submits that, based on Dr. Tse’s evidence, the Approval Holder’s facility is already largely in compliance with the NPC-300 Noise Guideline without the need for noise mitigation and that for the areas where noise levels are above the Guideline’s limits, the mitigation plan prioritizes mitigation measures in the first two years for the areas with the greatest need for noise reduction. She submits that by the end of the first two-year period, noise levels at all points of reception will be 48 dBA or lower at any time of the day or night and all daytime and evening noise levels will be compliant with the NPC-300 Noise Guideline. She submits that the remaining reduction required for nighttime noise levels to be compliant will be only 3 dBA and is addressed in the latter phases of the mitigation plan.
29The Director submits that the Approval’s terms and conditions are adequate to eliminate any risk of harm. She submits that the conditions are designed to be protective of the environment, prevent any adverse impacts, and rectify any unanticipated impacts that may occur. She submits that the Applicant’s reliance on a noise feasibility study from 2007, regarding the nearby residential development provides little assistance. She said it recommends the construction of a noise barrier berm to be installed by the developer. She said there is no evidence that this was done.
Approval Holder’s Submissions
30The Approval Holder submits that the Applicant’s 2007 Noise Feasibility Study is outdated and fails to take into account the terms of the 2009 settlement agreement between the previous owner of the subject property and the developer of the residential subdivision. The Approval Holder submits that its Acoustic Assessment Report provides a current assessment of the Approval Holder’s operations and their impacts. It submits that the Report found that, with the inclusion of the proposed mitigation measures, the predicted noise impacts of the Approval Holder’s facility at the identified points of reception will be in compliance with the NPC-300 Noise Guideline limits over time.
31The Approval Holder submits that, under the 2009 settlement agreement, the developer of the residential subdivision was to build a continuous noise barrier with a minimum height of 3 metres along the entire westerly property line of the development. It also required that houses along the westerly property line of the development were to be designed with, subject to conditions, no second storey openings on the western facing walls. The Approval Holder submits that the settlement agreement also required that there were to be no openings in these houses that are greater than the height of the noise barrier and that acoustically insulated windows were to be installed on all western facing walls of the houses. It submits that these measures were to be implemented by the developer. It submits that neither Approval Holder nor the predecessor owner of the subject property was required to implement any noise mitigation measures at-source as a result of the residential development and the on-going obligation to maintain the mitigation measures for the houses has been transferred to the purchasers of the homes.
32The Approval Holder submits that its Acoustic Assessment Report recommends that mitigation measures include the engineering and planning of Noise Abatement Action Plan phases, the building of 6-metre high berms and 4-metre high localized barriers, interim acoustic checks, and the phased implementation of silencers and acoustic louvres at the cooling towers. It submits that it is a comprehensive plan that requires time to implement correctly and ensure compliance with the NPC-300 Noise Guideline. It submits that the 96-month timeline for the mitigation measures is reasonable to allow for the assessment and development of the plan and to obtain the required municipal permits, a detailed structural analysis of the facility’s roof and load bearing wall structures, interim checks to ensure compliance with the NPC-300 Noise Guideline, and localized mitigation measures.
33The Approval Holder submits that the Applicant has failed to demonstrate that the Director’s decision to approve the Approval was one that no reasonable person could have made, with regard to relevant law and applicable government policies developed to guide decisions of this kind.
Analysis and Findings
34The Applicant argues that the alleged absence of a full noise barrier and the 96 months permitted under the Approval to achieve full compliance with the NPC-300 Noise Guideline are unreasonable. He submits that noise levels are already exceeding the NPC-300 Noise Guideline and that this should not be allowed to continue. He submits that no reasonable person, given the relevant laws and government policies that guide such decisions, could justify issuing the Approval given the noise exceedance that is currently negatively impacting the nearby residential subdivision.
35When applying the reasonableness test, the Tribunal must determine whether the Director considered the relevant laws and policies when deciding whether to issue the Approval and whether the decision itself is reasonable. It is not the role of the Tribunal at the leave stage to decide the merits of the appeal or to determine whether a better or more preferable decision could have been issued.
36Although the Applicant has raised concerns regarding noise emissions, he has not demonstrated that the Director’s decision appears to be one 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 Applicant focussed on arguing that the Approval does not comply with the requirements in the NPC-300 Noise Guideline, however, based on the evidence before the Tribunal, the Director considered the requirements in the Noise Guideline and found that they could best be met through a multi-stage implementation plan over the course of a 96-month period. The Director also presented evidence that she considered all relevant law and policies when making her decision, including the MECP’s Statement of Environmental Values.
37The test is not whether the Director’s decision was the best decision or whether the Tribunal or someone else could have made a different decision. The test is whether it appears 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 that kind, could have made the decision. The Tribunal finds that the Applicant has failed to satisfy this test. In the present case, the Tribunal finds that the Director considered and applied the applicable law and policy and made a reasonable decision based on the facts and studies before her.
Conclusions on the Reasonableness Test
38Based on the evidence and submissions before it, the Tribunal finds that the Applicant has failed to demonstrate that it appears that there is good reason to believe that no reasonable person could have made the decision to issue the Approval.
B. The Significant Environmental Harm Test
39Section 41(b) of the EBR states:
- Leave to appeal a decision shall not be granted unless it appears to the appellate body that,
(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.
40Under this test, the Applicant must establish on a prima facie basis that the decision could result in significant harm to the environment. This requires that an applicant provide a substantial information base to establish that significant harm could result from the Approval.
Applicant’s Evidence and Submissions
41The Applicant argues that the Approval permits the continuation of noise emissions from the subject property. He suggests, through his submissions, that the eight-year timeline in the Approval for implementation of noise mitigation measures could result in a risk to the environment and to neighbours.
Director’s Evidence and Submissions
42Ms. Orpana stated that the Approval’s terms and conditions will ensure that the operation of the Approval Holder’s facility, in compliance with the Approval, will not result in significant harm to the environment due to noise emissions. She stated that the Approval Holder has demonstrated that, over time, its facility will operate in compliance with all applicable noise guidelines.
43The Director submits that the Applicant’s argument that an eight-year timeline could result in significant harm to the environment is not supported by evidence. She submits that the timeline for implementation of the mitigation measures is reasonable as it prioritizes improvements in the first two years bringing all daytime and evening noise levels into compliance with the NPC-300 Noise Guideline, and she submits that any impacts over the remaining period will be minimal. She stated that no significant harm to the environment will result from the noise permitted under the Approval.
44The Director submits that based on the evidence of Dr. Tse and Ms. Orpana, there is no risk of significant harm to the environment from the Approval and that the Applicant has provided no evidence of any such harm.
Approval Holder’s Submissions
45The Approval Holder submits that the Applicant has failed to establish a prima facie case showing that the Approval would cause significant environmental harm. It submits that the Approval’s conditions will ensure that the Approval Holder’s facility is operated in an environmentally safe manner and meets the MECP’s Noise Guideline requirements.
Analysis and Findings
46The environmental harm test requires the Tribunal to determine whether it appears that the Director’s decision to issue the Approval could result in significant harm to the environment. The onus lies on the applicant to satisfy this test. The test requires that an applicant provide substantive evidence that significant environmental harm could result. Submissions that a 6 dBA noise exceedance could be a risk to the environment, without providing compelling evidence on the impacts and types of harm that could result, is insufficient. The Applicant suggests that the eight-year timeline to implement the noise mitigation measures under the Approval could result in a risk to the environment, but he did not provide any substantive evidence to support this or to satisfy the Tribunal that this risk could lead to impacts that could result in significant harm to the environment. The Tribunal finds that the Applicant has provided no compelling evidence of significant environmental harm that could be caused by the decision to issue the Approval and has failed to demonstrate that the significant environmental harm test has been met.
Conclusions on the Significant Environmental Harm Test
47Based on the evidence and submissions before it, the Tribunal finds that the Applicant has failed to demonstrate that it appears that the decision in respect of which an appeal is sought could result in significant harm to the environment.
CONCLUSION
48The Tribunal finds that the Applicant has failed to satisfy the two-part test for leave to appeal under s. 41 of the EBR.
DECISION
49The Tribunal dismisses the Applicant’s application for leave to appeal.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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.