CITATION: Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks), 2020 ONSC 7957
DIVISIONAL COURT FILE NO.: 798/18 DATE: 20201218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Pattillo and Kristjanson JJ.
BETWEEN:
Neamsby Investments Inc., Shelson Properties Ltd., Coryville Construction Ltd., 2108393 Ontario Limited, 2108394 Ontario Limited, and Barrhaven Place Inc.
Applicants
– and –
Her Majesty the Queen in Right of Ontario as Represented by the Minister of the Environment, Conservation and Parks
Respondent
-and-
The Regional Municipality of Halton
Intervenor
Julie Abouchar and Richard Butler for the Applicants
Isabelle O’Connor and Jon Bradbury for the Respondent
Brendan van Niejenhuis and Caitlin Milne for the Intervenor
HEARD (by videoconference): August 20, 2020
Kristjanson J.
Overview
[1] This application for judicial review arises out of a dispute between the applicant landowners and the Regional Municipality of Halton about the handling of drainage and stormwater management related to a road-widening project. The landowners requested the Minister of Environment, Conservation and Parks to order the Region to conduct an individual environmental assessment of the Road Project under Part II of the Environmental Assessment Act, R.S.O. 1990, c. E.18 (“EAA”) rather than the existing class environmental assessment. This type of request is commonly called a “bump-up” request.
[2] The Minister denied the Applicants’ request. The Applicants seek to quash the decision denying the bump-up request as both procedurally unfair and unreasonable in its failure to address substantive errors, failure of rationality, and improper delegation of authority. The Applicants also seek an order of mandamus to compel the Minister to require an individual environmental assessment for the Road Project. Alternatively, they seek to compel the Minister to require the Region to update the Region’s environmental study report by publishing an Addendum and undertaking further public consultation.
[3] For reasons set out below, this application for judicial review is dismissed as the Minister’s decision was both reasonable and procedurally fair.
Background Facts
The Applicants and the Trafalgar Road Widening Project
[4] The Applicants are a group of landowners who own lands on the east side of Trafalgar Road between 10 Side Road and 15 Side Road. Halton Region has proposed a project to widen a thirteen-kilometer section of Trafalgar Road between Steeles Avenue and Highway 7 (“Road Project”), which includes the portion of Trafalgar Road next to the lands owned by the Applicants. The dispute here is about how the environmental assessment (“EA”) relating to the road widening should be conducted.
[5] There is a concurrent and separate but related project, Vision Georgetown. Vision Georgetown is a proposal to develop 1,000 acres of land on the east side of Trafalgar Road, including the entirety of the Applicants’ land, into a residential neighbourhood. The Road Project, according to Halton Region, will partially respond to the increased traffic needs from the Vision Georgetown residential development. There are overlapping issues of drainage and stormwater management in the area including the Applicants’ lands that will be addressed in both the Road Project and Vision Georgetown. The Applicants concede that Vision Georgetown will have a significant impact on their lands and Trafalgar Road in the future.
[6] Although this judicial review only concerns the Road Project, the relationship between the Road Project and Vision Georgetown is relevant. The relationship between the environmental assessment for the Road Project and the planning processes for Vision Georgetown partially informed the Minister’s decision to deny the bump-up request.
The Statutory Framework
[7] The EAA applies to a wide variety of projects. The purpose of the EAA “is the betterment of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” The EAA requires the proponent of certain projects to conduct an EA. EAs fall into two classes: “individual” EAs under Part II, and “streamlined”, or “class” EAs, under Part II.1.
[8] Individual EAs involve comprehensive oversight by the Minister. Applicants must apply to the Minister for approval to proceed with a project. The Minister may approve or deny the application and impose terms of reference for the EA process.
[9] Class EAs, on the other hand, are “umbrella” EAs that apply to all projects in the class. Class EAs are used for common undertakings like municipal road improvements. The Minister approves the initial class EA. Once the Minister approves the class EA, the EA process for projects falling within the class is streamlined. The proponent of a class project need only comply with the requirements of the class EA. Class EA’s require a proponent to self-monitor compliance with the terms of the class EA.
[10] The road widening project in issue here involves infrastructure improvements subject to a class EA. This means that the road widening project need not undergo the more specialized individual EA process. The Municipal Engineers Association’s Municipal Class Environmental Assessment (“MCEA”), under which the Road Project is proceeding, is an approved class EA. Under the MCEA, there are four schedules of undertakings, ranked according to degree of environmental impact. The Road Project falls under Schedule C of the MCEA.
[11] Under s. 16 of the EAA, the Minister can order that an undertaking proceeding under a Part II.1 class EA proceed instead under a Part II individual EA process:
16(1) The Minister may by order require a proponent to comply with Part II before proceeding with a proposed undertaking to which a class environmental assessment would otherwise apply.
[12] Such an order is commonly called a “bump-up” order. It is the Minister’s denial of a request to bump-up the class EA to an individual EA which is at issue in this proceeding. When deciding whether to bump-up a class EA process to an individual EA process, the Minister must consider these factors under s. 16(4) of the EAA:
The purpose of the Act.
The factors suggesting that the proposed undertaking differs from other undertakings in the class to which the class environmental assessment applies.
The significance of the factors and of the differences mentioned in paragraph 2.
Any reasons given by a person who requests the order.
[13] The Minister can make a bump-up order in response to a request from any person or on his own initiative. When deciding a bump-up request, the Minister has four options:
Grant the request and make an order requiring a proponent to comply with Part II before proceeding with the proposed undertaking (EAA, s. 16(1));
Refuse the request but make an order imposing additional conditions in addition to those imposed by the class EA (EAA, s. 16(3));
Refer the matter subject to the request to mediation (EAA, s. 16(6));
Refuse the request without making any order (EAA, s. 16(8)).
The Road Project Class Environmental Assessment
[14] In 2014, Halton issued a notice of study commencement for the Road Project Class EA. Over the next two years, various stakeholders participated and provided comments. In January 2016, the Applicants’ consultant wrote to Halton Region’s consultant to question the stormwater management strategy for the Road Project Class EA.
[15] Conservation Halton is the regulatory authority for the 16 Mile watershed, part of which lies in the Road Project area. Although not a party to these proceedings, Conservation Halton is a key stakeholder in both the Road Project and Vision Georgetown. As a key stakeholder, Conservation Halton also periodically provided comments on the Notice of Study Commencement.
[16] In response to Conservation Halton’s comments, the Region commissioned a Drainage and Stormwater Management Report. This report was ultimately attached as an Appendix to the Environmental Study Report (“ESR”). The ESR is a required part of the class EA process. In June 2016, Halton Region issued a Notice of Study Completion specifying that the Road Project Class EA was complete and placed the ESR on the public record for review.
[17] In July 2016, the Applicants sent the Minister a letter citing errors and discrepancies in the ESR and requesting an EAA s. 16 bump-up order. The Applicants identified two primary concerns with the ESR. First, they allege that the ESR incorrectly characterizes the existing drainage and stormwater conditions in the area. They claim that the water drainage patterns in the ESR do not match the direction of flow observed onsite, as well as the utilization of culverts. The Region disputes this characterization and claims that Conservation Halton has confirmed that the patterns in the ESR reflect historical conditions.
[18] Second, the Applicants allege that the ESR fails to identify regulated floodplains and water courses. They claim that Tributary A–a regional floodplain regulated by Conservation Halton–runs through the area, but that the report failed to identify it. The Region similarly disputes this allegation, claiming that the Applicants have mischaracterized Conservation Halton’s description of the tributary.
[19] Following the bump-up request, the Region and the Applicants met in the fall of 2016 to discuss the errors in the ESR. The Minister held his order in abeyance pending the results of these discussions. In response to the Applicants’ concerns, the Region proposed an “Interim Design” to deal with stormwater and drainage issues, in part waiting for a subwatershed study to emerge from the Vision Georgetown Project before finalizing the design. The Applicants objected to the Interim Design as well.
[20] In December 2016, the Applicants sent further submissions to the Minister, including about the Interim Design. On May 7, 2018, the Minister denied the Applicants’ bump-up request.
The Minister’s Decision
[21] The Minister’s decision is set out in letters to the Applicants. The Minister states he considered the Road Project documentation, the provisions of the MCEA, and other relevant matters under s. 16(4) of the EAA. The Minister also notes that the MCEA itself has been subject to review to ensure that it advances the purposes of the EAA.
[22] Although the Minister declined to make a bump-up order, he imposed several conditions on the Road Project under s. 16(3) of the EAA.
[23] Finally, the Minister included a six-page chart in his decision detailing the Applicants’ concerns and the reasons for his decision. He stated that he was “satisfied that the issues and concerns have been addressed by the work done to date by the Region, or will be addressed in future work that is required to be carried out.”
Issues:
[24] This application raises two main issues:
(a) Whether the Minister’s decision to deny the bump-up request was reasonable.
(b) Whether the Minister breached his duty of procedural fairness by failing to meet the legitimate expectations of the Applicants.
Jurisdiction
[25] Under section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in (1) proceedings for an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
Standard of Review
[26] The parties agree that reasonableness is the standard of review for the substantive issues raised in this application, applying the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[27] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). When conducting a reasonableness review, the court must begin its inquiry by examining the reasons of the administrative decision-maker with “respectful attention”, seeking to understand the reasoning process followed by the decision-maker (Vavilov, at para. 84). The reasons should be read holistically and contextually (Vavilov, at para. 97). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99).
[28] The Applicants bear the burden of demonstrating unreasonableness, including that any shortcomings or flaws “are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[29] The parties agree that no standard of review analysis is necessary when the court is considering whether there has been a breach of procedural fairness: a decision is either procedurally fair or it is not.
The Minister’s Decision Was Reasonable
The Minister’s decision did not allow substantive errors in the ESR to go unaddressed
[30] The Applicants argue that the Minister’s decision not to bump-up the Road Project to an individual environmental assessment was unreasonable. Specifically, the Applicants argue that the decision, (a) failed to address substantive errors in the ESR, (b) demonstrated a failure of rationality in the reasoning process through reliance on a flawed ESR, and (c) improperly delegated the Minister’s authority to other regulatory bodies such as the Region and Conservation Halton. For the reasons set out below, I find that the Minister’s decision was reasonable.
[31] The Applicants argue that the Minister’s decision to deny the bump-up request was unreasonable because he knew about the flaws in the Road Project Class EA but did not compel an individual EA to address those flaws. In short, the Applicants argue that failing to make the bump-up order allows Halton Region to shirk its responsibility to conduct proper environmental assessments. The ESR did not assess existing conditions and mitigation opportunities because of these flaws and failed to meet the requirements of the MCEA to evaluate the “existing” environment. Since the Interim Design did not go through the public consultation process, similar problems are associated with the Interim Design. The Applicants argue that the Minister’s acceptance of the Region’s design shows that the Minister did not “meaningfully account for the central issues and concerns raised by the parties.”
[32] Most of the Applicants’ concerns about substantive errors relate to the drainage and stormwater management aspects of the ESR, including that the Region had misapprehended flows of water and existing drainage patterns, and that the elimination of a ditch would create new flooding concerns near culvert C11. They argue that the interim stormwater drainage solutions, which the Region adopted in part to meet their concerns, are significant modifications to the project that should have led to a requirement that the Region complete an Addendum to correct the ESR and engage in further public consultation.
[33] The Minister’s decision noted the concerns raised about “the Project’s potential design of the stormwater management facilities, and water and sediment discharge mitigation measures.” He imposed five conditions on the Road Project to meet these concerns. These included direction to the Region to: (a) ensure the design of stormwater management facilities aligned with the Ministry’s Stormwater Management Planning and Design Manual; (b) consider thermal impact and mitigation measures; (c) keep the Applicants informed during the detailed design phase and provide opportunities to discuss implementing stormwater management features; (d) report on management of discharges for certain construction dewatering activities; and (e) prepare an Erosion and Sediment control plan and submit it to the Ministry for review.
[34] The Minister then carefully set out a six-page chart responding to specific issues raised by the Applicants, most relating to stormwater management and drainage. He considered the errors raised by the Applicants about the ESR’s stormwater management strategy. The Minister recognized that the road-widening project required an interim stormwater management strategy, given that the stormwater strategy for Vision Georgetown was proceeding. Vision Georgetown would include a subwatershed study, and the Region had committed to consulting with Conservation Halton, the Town of Halton Hills, and the Applicant landowners during the detailed design phase of the Road Project. And the Minister noted that during later phases of the Road Project, Conservation Halton permits for implementation of the stormwater strategy would be required, and the Ministry would verify stormwater quality parameters during the Environmental Compliance Approval application review stage. He also noted that Ministry staff completed a surface water review of the Road Project, leading to the imposition of a condition.
[35] The Minister specifically considered the argument that stormwater flows would go against existing drainage patterns. The Region proposed interim drainage and stormwater management facilities that could be changed according to the results of the subwatershed study and the Vision Georgetown planning process. The Minister found that the Region would be addressing these flows with the Town of Halton Hills’ subwatershed study. The Region would deal with the issues based on the current hydraulic model and stormwater strategy recommended in the Vision Georgetown subwatershed study.
[36] In response to the Applicants’ argument that there were errors in the ESR, the Respondent argues that whether there are errors in the Region’s ESR is irrelevant to determining whether the Minister himself misapprehended the facts and made an unreasonable decision not to bump-up the Road Project. I agree. The Minister was aware of the alleged errors because the Applicants raised the errors in materials to which the Minister referred, and he specifically flagged the issues in his decision letters.
[37] The Minister’s reasons for decision show that he grappled with the issues raised by the Applicants but agreed with the Region’s proposed approach to the stormwater and drainage issues.
[38] The Minister’s reasons are logical and internally consistent. The road-widening project is proceeding concurrently with the Vision Georgetown planning process. These two projects involve a common environmental concern which must be coordinated–stormwater management and drainage between 10 Side Road and 15 Side Road. The Region proposed to incorporate the results of the Vision Georgetown subwatershed study at the detailed design stage, with an interim stormwater management strategy in the meantime. Conservation Halton would be involved with both projects. The Minister’s condition meant he ensured the Applicants would have consultation opportunities during the detailed design phase. Other regulatory authorities would review the Region’s plans at the permit and approval stages for the final design.
[39] In deciding on the bump-up request, the Minister is exercising a broad discretionary power in which he must consider the purpose of the EAA as set out in section 2, the betterment of the people of Ontario by providing for the protection, conservation and wise management in Ontario of the environment. This is a contextual power, encompassing broad policy issues and the balancing of interests. The Minister’s decision confirmed that he was satisfied that the purposes of the EAA and the interests of the public were met through the Region’s continued class EA, subject to the new conditions imposed by his order.
[40] I do not accept the Applicants’ argument that errors in an ESR are an issue that the Minister should or must deal with through a bump-up request. Section 16 does not require the Minister to ensure compliance with a proponent’s duties under the EAA; nothing in the text, context or purpose of the relevant sections contemplates that moving a class EA to an individual EA is a remedy for alleged substantive errors in an ESR, or alleged failures to file an Addendum to an ESR.
[41] The Minister’s conclusion that an individual EA was not warranted was reasonable, given the concurrent planning processes of the Road Project and Vision Georgetown which would give further opportunities to address discrepancies in the Region’s ESR prior to the final permitting and approval stages.
No Failure of Rationality: Tsleil-Waututh Nation
[42] The Applicants also submit that the Minister’s reliance on a flawed ESR (including the failure to assess the Interim Design as a significant change) amounted to a failure of rationality in the reasoning process, citing Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153. The Applicants submit that this case is similar because the Minister’s reasons acknowledge that some information in the ESR was incorrect, but he did not compel the Region to correct it, and he accepted the Interim Design proposal without ensuring that it had been through the MCEA assessment process.
[43] In Tsleil-Waututh Nation, the National Energy Board (NEB) issued a report recommending approval of the proposed expansion of the Trans Mountain pipeline system, concluding that the pipeline expansion was not likely to cause significant adverse environmental effects. The Governor in Council accepted the Board’s recommendation and directed the NEB to issue a certificate approving the construction and operation of the expansion project.
[44] The Federal Court of Appeal quashed the decision. One of the grounds was that the NEB’s report and recommendation was unreasonable, as the NEB had excluded increased marine traffic associated with the project from the environmental assessment conducted under the Canadian Environmental Assessment Act, S.C. 2012, c. 19, s. 52. The Court of Appeal held that the NEB failed to provide a reasonable basis for the exclusion of marine traffic from the scope of the environmental assessment, and it was unreasonable for the Governor in Council to rely on such a flawed report in making its decision about the pipeline.
[45] I do not agree that the “rationality” errors pointed out by the Applicants are analogous to the decision, in Tsleil-Wauthth Nation, to exclude the entire marine corridor from the scope of the federal EA at issue in that case. The Federal Court of Appeal found that the NEB did not provide reasons for its scoping decision, was impermissibly restrictive in requiring “regulatory oversight” as part of the scoping decision, failed to grapple with criteria relevant to defining activities “incidental” to a project, and appeared to be based on a rationale not supported by the statutory scheme: (paras. 395-409). As a result of these failures, the Court held at para. 409 that “it follows that the Board failed to comply with its statutory obligation to scope and assess the Project to provide the Governor in Council with a “report” that permitted the Governor in Council to make its decision.”
[46] The NEB Report, upon which the Governor in Council’s decision was based, was fundamentally deficient. The Court held, at para. 5, that:
The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.
[47] By contrast, the Minister’s decision here does not reveal either a “failure of rationality internal to the reasoning process,” or that it is “is in some respect untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov at para. 101.
[48] The Road Project here is the widening of a 13 km section of a road, within the scope of a class EA as a common infrastructure project. The alleged errors identified by the Applicants about culvert 11 and certain drainage flows were considered and addressed by the Minister. They have now been brought to the attention of the Region through the Minister’s decision, resulted in a new Interim Design, and must be considered by the Region at the detailed design phase as well as the permitting and approval phase. Further information will be considered by the Region following the receipt of the subwatershed study. Any “errors” have been considered and addressed in the Minister’s decision.
No improper delegation of authority
[49] Finally, the Applicants argue that the Minister’s decision was unreasonable because he improperly delegated the responsibility to assess the Road Project’s impacts to the Region and to Conservation Halton to deal with during the Vision Georgetown planning. They argue that the planning processes for Vision Georgetown are designed for neighbourhood planning and are too small in scope to properly conduct watershed planning for the Road Project. They argue that this results in “piecemealing” the Road Project. The risk here, the Applicants argue, is that it subjects the Road Project to a less rigorous EA by delegating some elements to the local planning process for Vision Georgetown, allowing a portion of the Road Project to escape assessment entirely.
[50] Infrastructure development projects and municipal planning projects will often have interrelated aspects. It was reasonable for the Minister, when reaching his decision, to consider that the Road Project and Vision Georgetown are two separate but concurrent processes that must be coordinated on the issues of drainage and stormwater management. The Minister recognized that the Applicants’ concerns about stormwater and drainage will continue to be addressed through the entire Vision Georgetown and Road Project planning processes. It was reasonable for the Minister to take that practical reality into account: This is not piecemealing. There was no artificial parceling by the proponent Region of elements of its undertaking to escape more onerous aspects of the EAA.
[51] The Minister did not improperly delegate his authority on the section 16 bump-up request to the Region, the Town or Conservation Halton. No ministerial approval is required of the Class EA project; the only decision he made was to deny the bump-up request and impose conditions. He made his decision considering the stormwater management issues associated with the widening of Trafalgar Road between 10 Side Road and 15 Side Road. The issues to be dealt with at the detailed design stage are the proposed interim drainage and stormwater management facilities for the Applicants’ lands, as they related to the Road Project. The long-term stormwater management of these lands is not part of the road-widening project. The final design elements will be affected by Vision Georgetown. These are relevant legal and factual constraints applicable to his decision.
[52] The Minister made a discretionary decision under section 16 of the EAA, to determine whether there were circumstances to warrant an individual environmental assessment. The Minister’s reasons reveal an internally coherent and rational chain of analysis, providing an adequate explanation of the grounds for his decision that the Road Project did not warrant an individual EA. This decision was reasonable.
No Breach of the Duty of Procedural Fairness
[53] Public decision-makers must act fairly in coming to decisions that affect the rights, privileges and interests of individuals. The duty of procedural fairness protects participatory rights to “ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker”: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817 at para. 22.
[54] The content of procedural fairness is flexible and must be evaluated in accordance with the five Baker factors. The statutory scheme is set out in section 16 of the EAA. The decision is whether to move a project subject to a class EA to an individual EA, which may have an incidental effect on lands owned by the Applicants. Any person may request the Minister to make an order under section 16. The Act does not create participatory rights in the Minister’s decision-making process aside from the initial request, except that the Minister must consider “any reasons given” by a requestor before deciding.
[55] The MCEA establishes other procedural protections, including the requirement that the proponent advise interested persons of their right to make a bump-up request under section 16 of the EAA; that all information collected in relation to such requests will form part of the public record; that the proponent be given an opportunity to make submissions to the Minister addressing the issues raised in a bump-up request; and listing additional factors that the Minister will consider when making his decision.
[56] The EAA does not provide for an appeal of a Minister’s decision made under section 16, and lacks a privative clause.
[57] The Minister must consider the factors listed at section 16(4) of the EAA when reaching his decision, but otherwise has an unfettered discretion when deciding whether to issue an order, refer the matter to mediation, or refuse to make an order.
[58] The Applicants submit that the Minister’s process contravened the following legitimate expectations:
(1) that the Minister would require any stormwater management proposals raised by the Region after the ESR had been filed to be incorporated into the ESR under the MCEA process; and
(2) that the Minister’s decision about whether additional study (individual EA) or discussion (mediation) was required would be based on the class EA studies that were part of the ESR and that had been subject to the required public review period.
[59] According to the Applicants, the Region failed to “incorporate the correct environmental conditions and its interim bypass ditch proposal into the ESR by Addendum” contrary to the MCEA Document. In then making his decision on the new information, the Minister contravened their legitimate expectations. The Applicants submit that they are not asking this court to mandate a particular result (i.e., a drainage solution) but are instead asking this court to require the Minister to ensure that the interim and final drainage and stormwater designs are appropriately assessed in accordance with the EA process, either through an individual EA process, or in the alternative, by imposing appropriate conditions.
[60] In Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559, the Supreme Court of Canada described the doctrine of legitimate expectations as follows in paras. 94-97:
(a) A legitimate expectation arises from some conduct of the decision-maker, or some other relevant actor.
(b) A legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a specific case.
(c) The practice or conduct must be clear, unambiguous, and unqualified, in the sense that if made in the context of a private law contract, they would be certain enough to be capable of enforcement.
(d) The doctrine cannot give rise to substantive rights, only appropriate procedural remedies to respond to the ‘legitimate’ expectation.
[61] The Applicants assert a “legitimate expectation” that the Minister would require the Municipality to incorporate any recent changes to its stormwater management proposal into the ESR. This is their basis for effectively asserting that procedural fairness required the Minister to make an order imposing a condition that the Region make specific amendments to the ESR. This argument conflicts with the doctrine of legitimate expectations, which cannot fetter the Minister’s discretion to determine a substantive outcome.
[62] There is no basis for the legitimate expectation asserted by the Applicants. Nothing in section 16 of the EAA, the MCEA, or in any conduct/communications from the Ministry to the Applicants provides that in making his decision, the Minister would or should only consider the contents of the ESR as it was at the end of the public consultation period. Indeed, the statutory scheme provides otherwise. Section 16(4) of the EAA requires the Minister to consider “such other matters as the Minister considers appropriate.”
[63] There was no breach of the duty of procedural fairness, and no breach of any legitimate expectations.
Conclusion
[64] The Minister’s decision was reasonable, and the process was procedurally fair. As a result, the application for judicial review is dismissed.
[65] The Minister was successful on this judicial review, and requests costs of $74,065.00 on a partial indemnity basis. By contrast, the Applicants were requesting costs of $154,714.39 on a substantial indemnity basis and $104,903.70 on a partial indemnity basis. The Applicants are to pay the Minister costs of $70,000.00 inclusive of HST and disbursements. This amount is proportionate, fair and reasonable for the Applicants to pay in the circumstances of the judicial review application and is an amount that should have been within their contemplation given the legal costs incurred by them in this proceeding.
[66] Conservation Halton requests no costs, and none are awarded.
Kristjanson J.
I agree _______________________________
Swinton J.
I agree _______________________________
Pattillo J.
Date of Release: December 18, 2020
CITATION: Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks), 2020 ONSC 7957
DIVISIONAL COURT FILE NO.: 798/18 DATE: 20201218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Pattillo and Kristjanson JJ.
BETWEEN:
Neamsby Investments Inc., Shelson Properties Ltd., Coryville Construction Ltd., 2108393 Ontario Limited, 2108394 Ontario Limited, and Barrhaven Place Inc.
Applicants
– and –
Her Majesty the Queen in Right of Ontario as Represented by the Minister of the Environment, Conservation and Parks
Respondent
-and-
The Regional Municipality of Halton
Intervenor
REASONS FOR JUDGMENT
Date of Release: December 18, 2020