COURT FILE NO.: 451/07
DATE: 20080404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, MOLLOY AND ARCHIBALD JJ.
B E T W E E N:
GORDON MILLER, THE ENVIRONMENTAL COMMISSIONER OF ONTARIO Moving Party
- and -
LAFARGE CANADA INC.
- and -
ONTARIO ENVIRONMENTAL REVIEW TRIBUNAL, SUSAN QUINTON on behalf of CLEAN AIR BATH, MARTIN HAUSCHILD and WILLIAM KELLY HINEMAN on behalf of LOYALIST ENVIRONMENTAL COALITION, LAKE ONTARIO WATERKEEPER and GORDON DOWNIE, GORDON SINCLAIR, ROBERT BAKER, PAUL LANGLOIS, JOHN FAY, MINISTRY OF THE ENVIRONMENT (ONTARIO), DIANE DAWBER, CHRIS DAWBER, HUGH JENNEY, CLAIRE JENNEY, MARK STRATFORD, JAMIE STRATFORD, J.C. SULZENKO, JANELLE TULLOCH, SANDRA WILLARD Respondents
Rodney Northey, for the Moving Party
Jonathan Davis-Sydor and Liliane Gingras, for Lafarge Canada Inc.
Marlene Cashin, for Martin Hauschild and William Kelly Hineman on behalf of Loyalist Environmental Coalition
Isabelle O’Connor, for Directors, Ministry of the Environment
Joseph F. Castrilli, for Gordon Downie, Gordon Sinclair, Robert Baker, Paul Langlois, John Fay and Lake Ontario Waterkeeper and Gordon Downie
HEARD at Toronto: April 4, 2008
MOLLOY J.: (Orally)
[1] The Ministry of the Environment granted two Certificates of Approval to Canada Lafarge, pursuant to s.41 of the Environmental Bill of Rights. The Ontario Environmental Review Tribunal granted leave to appeal to the Ministry of the Environment’s decision to several property owners and advocacy groups. In the application for Judicial Review, Lafarge seeks to set aside the granting of leave.
[2] The application is set to be heard on April 9 and 10, 2008.
[3] Counsel for Gordon Miller, the Environmental Commissioner of Ontario, brought a motion for leave to intervene as a friend of the Court. In Reasons released February 25, 2008, Himel J. refused to grant leave.
[4] This is a motion brought to a panel of the Divisional Court on behalf of the ECO, pursuant to Rule 21(5) to set aside or vary the decision of Himel J.
[5] A preliminary issue is the nature of the review by this panel: whether the reviewing panel can determine the matter de novo or whether the reviewing panel must be limited to a review. We need not analyze the difference between these two approaches. Since the decision of Himel J. was released, the ECO has refined its position in two respects. First, the ECO no longer seeks to serve and file an affidavit he will not file a record. Second, the ECO has provided a draft of his factum which serves to delineate the issues on which he would make submissions. The ECO now asks for leave to file the factum and for leave to make oral submissions for thirty minutes. The role the ECO seeks to play is therefore more clearly defined than earlier presented. Because of the change in the position of the ECO we have treated this motion as a hearing de novo.
[6] Under Rule 13.02, a Court may grant leave to intervene to a non-party as a “friend of the Court for the purpose of rendering assistance to the Court by way of argument”.
[7] In the underlying application, Lafarge is the applicant. The respondents include the OERT, the Ministry of the Environment and various property owners and advocacy groups.
[8] Lafarge is opposed to the motion. It takes the position that the case is of a private nature, the litigation involved matters of statutory interpretation with respect to which the ECO does not have an expertise, and the ECO will not render any assistance to the Court nor make a useful contribution.
[9] The MOE consents to the granting of leave on one specific issue, that being whether the statement of environmental values (the “SEV”) is relevant policy developed to guide directors on decisions of the kind that they are required to make within the meaning of s.41 of the Environmental Bill of Rights. No other parties have responded to this motion, except that counsel for two groups of appellants made brief oral submissions supporting the ECO’s intervenor motion.
[10] We do not agree that the application for judicial review of the decision of the OERT is of a private nature. It engages matters of public concern and interest. It will be a matter of first instance for the Divisional Court as to the role of the SEV in the Environmental Bill of Rights. The ECO’s unique involvement with SEV’s puts him in the position of being able to provide assistance to the Court.
[11] Further, we are satisfied that the ECO has special knowledge and expertise in the broader context of the legislation and its impact generally. When dealing with issues of public interest with potentially broad impact, it is useful for the Court to be aware of the broader content, even if not directly applicable to the specific issues before it, particularly where the matters raised are novel and without previous judicial precedent.
[12] The factum which the ECO proposes to file is a concise overview of the legislative scheme, which in our view will be helpful to the Court.
[13] We believe the ECO would make a useful contribution to the Court’s understanding of the issues involved and his intervention will not cause any prejudice to the parties.
[14] We see no reason to restrict the scope of the intervention as proposed by the MOE. The ECO does not propose to take a position on the merits of the specific dispute between the party or the outcome of the judicial review and has undertaken not to address the specific content of the Ministry of Environment’s SEV at issue in this case.
Order to go as follows:
[15] The Environmental Commissioner of Ontario is granted leave to intervene as a friend of the Court.
[16] The Environmental Commissioner of Ontario is given leave to file its revised factum which was provided to the other parties on April 3, 2008.
[17] The factum will be delivered by Monday, April 7, 2008 at 12:00 noon.
[18] The Ministry of the Environment and Lafarge each have leave to deliver a responding factum, of no more than ten pages, if so advised, by Tuesday, April 8, 2008 at 2:00 p.m.
[19] The oral submissions on behalf of the Environmental Commissioner of Ontario will not exceed thirty minutes and will be limited to issues raised in the factum.
[20] The ECO will not be entitled to any costs of the judicial review application.
[21] No order as to costs of today.
MOLLOY J.
KITELEY J.
ARCHIBALD J.
Date of Reasons for Judgment: April 4, 2008
Date of Release:
COURT FILE NO.: 451/07
DATE: 20080404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, MOLLOY AND ARCHIBALD JJ.
B E T W E E N:
GORDON MILLER, THE ENVIRONMENTAL COMMISSIONER OF ONTARIO Moving Party
- and -
LAFARGE CANADA INC.
- and -
ONTARIO ENVIRONMENTAL REVIEW TRIBUNAL, SUSAN QUINTON on behalf of CLEAN AIR BATH, MARTIN HAUSCHILD and WILLIAM KELLY HINEMAN on behalf of LOYALIST ENVIRONMENTAL COALITION, LAKE ONTARIO WATERKEEPER and GORDON DOWNIE, GORDON SINCLAIR, ROBERT BAKER, PAUL LANGLOIS, JOHN FAY, MINISTRY OF THE ENVIRONMENT (ONTARIO), DIANE DAWBER, CHRIS DAWBER, HUGH JENNEY, CLAIRE JENNEY, MARK STRATFORD, JAMIE STRATFORD, J.C. SULZENKO, JANELLE TULLOCH, SANDRA WILLARD Respondents
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: April 4, 2008
Date of Release: