CITATION: Eastern Georgian Bay Protective Society Inc. v. Minister of the Environment, Conservation and Parks, 2021 ONSC 4038
DIVISIONAL COURT FILE NO.: 273/20
DATE: 20210603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot Fregeau and Penny JJ
BETWEEN:
EASTERN GEORGIAN BAY PROTECTIVE SOCIETY INC.
Applicant
- and –
MINISTER OF THE ENVIRONMENT, CONSERVATION, AND PARKS and
MACEY BAY DEVELOPMENTS CORP.
Respondents
Paula Lombardi for the Applicant
Sylvia Davis for the Minister
Matthew Gardner, John Georgakopoulos and Anand Svrivastva for Macey Bay Developments Corp.
HEARD: April 22, 2021
PENNY J.
Overview and Issues
[1] This is an application for judicial review of:
(a) the decision of the Minister of the Environment, Conservation and Parks to invoke s. 32(1)(a) of the Environmental Bill of Rights, 1993;
(b) the consequent decision of the Minister not to post notice to the public of an instrument under consideration (namely an application for an Environmental Compliance Approval by the respondent Macey Bay Developments Corp., regarding sewage works at Macey Bay’s proposed trailer park development on Georgian Bay) on the Environmental Registry at least thirty days before any decision was made; and,
(c) the decision of the Minister to issue an ECA to Macey Bay regarding the proposed sewage treatment works without further public consultation.
[2] The applicant seeks various declarations regarding the Minister’s conduct and an order of certiorari quashing the issuance of the ECA to Macey Bay.
[3] There are essentially two issues for determination:
(1) What is the standard of review of the Minister’s decision not to post Macey Bay’s application for an ECA on the Registry? and
(2) Depending on the answer to Question #1, was the decision of the Minister not to post Macey Bay’s application on the Registry, in reliance on s. 32(1)(a), reasonable?
Legislative Framework – The Environmental Bill of Rights
[4] The Legislature enacted the EBR in 1993. The EBR is largely procedural legislation: it provides for public participation in government action that has a significant impact on the environment. The EBR does not preclude changes to Ontario’s environmental policies. Rather, it requires a process of meaningful public consultation respecting government actions that may be significant for the environment. Although largely procedural in nature, the EBR is nevertheless significant legislation which compels governments of all colours, no matter what their stated policies, to respect the principle of public consultation in relation to governmental actions affecting the environment. And it is clear that the legislation requires far more than lip service to be paid to that process: Greenpeace Canada v. Minister of the Environment (Ontario), 2019 ONSC 5629 (Div. Ct.) at para. 1 and 82.
[5] The Preamble of the EBR stipulates that “The people of Ontario have a right to a healthful environment” and that “While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner.”
[6] Section 2(1) sets out the purposes of the EBR which include:
(c) to protect the right to a healthful environment by the means provided in this Act.
[7] Section 22 of the EBR requires the Minister give 30-days’ public notice of any environmental compliance approval application under the Ministry’s consideration. Section 22 states:
The minister shall do everything in his or her power to give notice to the public of a Class I, II or III proposal for an instrument under consideration in his or her ministry at least thirty days before a decision is made whether or not to implement the proposal.
[8] Section 27 of the EBR requires the notice under s. 22 to be posted on the online Environmental Registry created by the EBR. Section 27(3) also requires the notice on the Registry to contain a description of various rights of public participation in the decision-making concerning the proposal.
[9] Section 35 of the EBR requires the Minister to take every reasonable step to ensure that all comments relevant to the proposal that are received as part of the public participation process are considered when decisions about the proposal are made in the Ministry.
[10] Macey Bay’s ECA application was a Class II proposal, as it was granted under s. 20.3 of the Environmental Protection Act. Where a proposal is classified as “Class II” under Ontario Regulation 681/94, the EBR requires the Minister to consider providing additional public consultation opportunities for the proposal. For instance, s. 23 of the EBR states that where the Minister is required to give notice under s. 22 of a Class II proposal for an instrument, the Minister shall consider allowing for more than thirty days of public notice in order to permit more informed public consultation on the proposal.
[11] Similarly, s. 24 of the EBR provides that a minister required to give notice under s. 22 of a Class II proposal for an instrument shall also consider enhancing the right of members of the public to participate in decision-making on the proposal by providing for such things as oral representations, public meetings and mediation.
[12] Section 118(2) of the EBR allows any person resident in Ontario to apply to the courts for judicial review of a decision of the Minister on the grounds that the Minister failed in a fundamental way to comply with the public consultation requirements of Part II respecting a proposal for an instrument.
[13] Section 32(1) of the EBR provides a limited exception to the posting requirements under s.22. The relevant portions of s. 32 state:
32 (1) Section 22 does not apply where, in the minister’s opinion, the issuance,
amendment or revocation of an instrument would be a step towards implementing
an undertaking or other project approved by,
(a) a decision made by a tribunal under an Act after affording an
opportunity for public participation.
Background
[14] There is a long history to Macey Bay’s proposal for a trailer park on Georgian Bay.
[15] Most recently, in 2014, the Township of Georgian Bay passed its Official Plan and Comprehensive Zoning By-Law No. 2014-75 permitting the trailer park project to proceed.
[16] Between November 2014 and March 2017, Macey Bay, the applicant and the Minister each participated to varying degrees in a lengthy series of appeals to the Ontario Municipal Board (now known as the Land Planning Appeal Tribunal)) against the Township of Georgian Bay’s Official Plan and Comprehensive Zoning By-Law No. 2014-75.
[17] Between January 25, 2017 and February 8, 2017, the OMB held a hearing on land use and land use permissions for the trailer park project arising out of Official Plan and Comprehensive Zoning By-Law No. 2014-75. The applicant, Macey Bay and the Minister each participated in the hearing.
[18] While the OMB’s decision was ultimately a land use planning decision, the OMB was required to satisfy itself that the property could support the number of units proposed by Macey Bay, including whether the units proposed could be appropriately serviced. Thus, Macey Bay was required to file considerable evidence about its proposed sewage works. Various parties and participants, including the applicant, raised significant concerns with Macey Bay’s proposed sewage works for the trailer park.
[19] Among other things, evidence relevant to the sewage works filed in the OMB hearing included:
(a) by Macey Bay:
• a hydrogeological assessment and groundwater testing report to identify and evaluate on-site groundwater resources for water supply to the project
• a private sewage works, water resources impact assessment to determine the anticipated impact of the project on the environment and public health
• the Minister’s design guidelines for sewage works
• the witness statement and expert opinion report of Macey Bay’s expert in hydrogeology, Jason Murchison
• the functional servicing and stormwater management report prepared by Macey Bay’s consulting engineers presenting the plan for how the development will be serviced by roads, water supply, sewage disposal, electrical and stormwater drainage. The report included: (i) a sewage works preliminary design brief originally provided to the Minister in May 2014 and updated in October 2016 to reflect the final site plan, a summary of the design criteria governing the design of the sewage works, a preliminary hydrogeological assessment report, a phosphorus assessment, detailed design sewage flow calculations, a detailed description of the proposed sewage works including a preliminary design of the low-pressure sewer system, sewage treatment plant and effluent disposal in subsurface disposal beds and preliminary design calculations; (ii) updated design sewage flows information; (iii) a full record of technical pre-consultations conducted with the Minister regarding the proposed sewage works; and, (iv) final site plan layout.
• the witness statement and expert opinion of Macey Bay’s engineering consultant summarizing the design of the proposed sewage works, the hydrogeological and surface water assessments completed to assist with the design, the proposed flow rate of the sewage works and the proposed effluent quality of the sewage works
(b) by the applicant
• a peer review letter prepared by Tom Bain, on behalf of the Applicant, providing detailed comments about Macey Bay’s proposed sewage works
• the witness statement and expert opinion of the applicant’s engineering consultant, Michael Varty, opining on which contaminants in the proposed sewage works at the Property would be of critical importance, the daily design sewage flow of the proposed sewage works at the Property, and the disposal system sizing of the proposed sewage works at the Property
• the witness statement and expert opinion of a second engineering consultant retained by the applicant, Gary Hendy, opining on whether the property is in a hydrogeologically sensitive environment, the potential interaction between the proposed sewage works at the property and adjacent provincially significant wetlands, and the need to consider nitrate dilution associated with the proposed sewage works at the property.
[20] The OMB rendered its decision on March 16, 2017 approving the Official Plan for the Township of Georgian Bay and amended Zoning By-law No. 2014-75 with modifications to specify, among other things, that the development of the trailer park is subject to approvals by the Minister for any required sewage and water systems.
[21] In November 2017, the environmental consultant for the trailer park project submitted to the Minister Macey Bay’s application for an ECA to build and operate sewage works at the trailer park. The application referred to s. 32(1)(a) of the EBR and asked that the Minister dispense with any further notice/comment period in light of the hearing that had just taken place before the OMB.
[22] Macey Bay’s ECA application was not posted to the Environmental Registry. On December 19, 2018, the Ministry issued an ECA to Macey Bay for on-site sewage works at the trailer park. The Ministry issued the ECA without engaging in any further public consultation process under the EBR.
[23] In March 2019, in response to enquiries from the Township, a senior Ministry coordinator explained that the ECA application was not posted to the Registry because it fell under s. 32(1)(a) of the EBR. The Ministry coordinator explained that: (a) the issuance of the ECA was a step towards implementing an undertaking or other project, in this case the construction of the trailer park, by Macey Bay as approved by the OMB under the Planning Act; and (b) there had been robust public participation at the OMB hearing regarding the proposed sewage works, including expert evidence.
[24] In May 2019, the Ministry’s environmental assessment & permission branch director reiterated, in further correspondence with Township officials, that the ECA application had not been posted on the Registry for public comment as it was exempt from posting under s. 32(1)(a) of the EBR.
Analysis
Standard of Review
[25] The applicant has framed its application for judicial review, and its argument, as a question of procedural fairness. That is, the applicant argues that the failure to post the ECA application on the Registry, and the consequent inability of the applicant to comment on the ECA application, was a breach of the duty of procedural fairness owed by the Minister to the public. Framed this way, the applicant argues that the standard of review is, effectively, correctness. This is because the court, when a breach of the duty of procedural fairness is alleged, is required to decide for itself whether appropriate procedural fairness was afforded in the circumstances.
[26] I am unable to accept this argument.
[27] There is no general common law duty of procedural fairness owed to the public at large whenever a government entity grants a particular person or entity a licence, permission or approval of some kind. To the extent any such duty arises at all, it would only be to neighbouring landowners or those with a direct interest in the outcome: see, for example, 795833 Ontario Inc. v. Ministry of the Environment et al., 1990 CarswellOnt 1030 (Gen. Div.).
[28] In any event, the EBR has delineated a complete framework for public participation that goes well beyond what the public would be entitled to under the common law: Walpole Island First Nation v. Ontario, 1996 11802 (ON SC), [1996] O.J. No. 4682 (Div. Ct.). While there may be circumstances under which statutory provisions so limit basic procedural fairness rights as to warrant judicial intervention, such circumstances are not present here. Given the broad scope for public participation established under the EBR, the common law duty of procedural fairness would not add additional procedural rights for third parties. Nor, in any event, would it be appropriate to use the common law duty of fairness to add further requirements to enhance the participation of members of the public beyond what is established in the EBR: Driver et al. v. wpd Canada Corporation et al., 2017 ONSC 3824 (Div. Ct.). The rights of public participation in a case involving Part II under the EBR must therefore be determined by way of an interpretation of the procedural rights established under the EBR itself.
[29] Reasonableness is the default standard of review. None of the special categories enumerated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 as qualifying for a different standard, apply here.
[30] In the context of statutory interpretation, reasonableness review requires that while an administrative body may have considerable discretion in making a particular decision, and a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference, that decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted”. As Rand J. noted in Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled ‘discretion’”. Any exercise of discretion must accord with the purposes for which it was given. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it: Vavilov, paras. 108-109.
[31] Subject to these jurisdictional concerns, in determining whether a decision is reasonable, the Supreme Court of Canada in Vavilov stated that matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or ask itself what the “correct” decision would have been. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached: Vavilov paras. 115-116.
Was the Minister’s Decision Not to Post Macey Bay’s ECA Application on the Registry Reasonable?
The Applicant’s Argument
[32] The applicant advances essentially three related arguments in support of its submission that the Minister’s reliance on s the exception in s. 32(1)(a) was unreasonable:
(1) the OMB hearing was not a functionally equivalent opportunity for public consultation on the sewage works;
(2) there was no adequate opportunity to comment on the sewage works in the OMB hearing because the details of the proposal had not been finalized; and,
(3) the applicant had, based on statements made by the OMB, Macey Bay and a witness who testified on behalf of the Ministry, a legitimate expectation that there would be an opportunity for further public comment on the sewage works during the ECA application process.
[33] For ease of reference, I repeat the relevant language of s. 32(1)(a):
Section 22 does not apply where, in the minister’s opinion, the issuance,
amendment or revocation of an instrument would be a step towards implementing
an undertaking or other project approved by,
(a) a decision made by a tribunal under an Act after affording an
opportunity for public participation.
[34] The applicant first submits that on a proper interpretation of s. 32(1)(a), in conjunction with the scheme and purpose of the EBR, the exemption applies only when the public consultation at the prior tribunal pertained to the very instrument (i.e., an ECA application for approval of the sewage works) in question. Section 32 requires that the process leading to the prior tribunal decision provided a functionally equivalent opportunity for public consultation on the instrument in question in order for the exemption to apply.
[35] The applicant then argues that the OMB decision was not a “decision made by a tribunal under an Act after affording an opportunity for public participation” within the meaning of s. 32 of the EBR. The OMB hearing pertained to the zoning of the property, not the merits of the ECA application. The OMB was neither qualified to assess nor capable of assessing the environmental risks posed by the sewage works. In fact, the OMB member specifically deferred consideration of the ECA application to the MECP and made her zoning decision conditional on subsequent MECP approval of the ECA application concerning the sewage works.
[36] Further, the applicant submits that the ECA was not a mere “step” in the implementation of the trailer park because the sewage works are a separate and distinct undertaking from the trailer park. Similarly, the applicant submits that the trailer park was not a project “approved” by the OMB decision. The OMB decision granted only one (the rezoning) of many approvals required for the trailer park to be built. And, the OMB made approval of the rezoning conditional on numerous other criteria, including, but not limited to, the issuance of an ECA for the sewage works by the Ministry.
[37] Second, the applicant submits that the specifics of Macey Bay’s ECA application were not before the OMB. The Final Design Brief that was submitted as part of Macey Bay’s ECA application to the Ministry was not prepared until after the OMB hearing. The Preliminary Design Brief that was filed before the OMB did not include the “specifics of the inner workings of the design” of the sewage works precisely because, being preliminary, it was not yet being submitted to the Ministry as part of an ECA application. The applicant, therefore, had no opportunity to comment on the Final Design Brief for the sewage works prior to the MECP’s issuance of the ECA.
[38] Further, while the applicant was a participant at the OMB hearing, its right to comment on the sewage works was significantly curtailed. The OMB limited each participant’s oral submissions to 10 minutes, allowing the applicant to provide only a superficial overview of its concerns.
[39] Finally, the applicant submits that it, and other members of the public, had legitimate expectations that they would be afforded an opportunity to review and comment on the proposal for the sewage works during the ECA application.
[40] The lawyers for both the Township and Macey Bay advised the OMB that the public’s environmental concerns about the sewage works would be addressed through the MECP approval process. The OMB member specifically asked that the technical evidence on the sewage works be shortened on the basis that the proper way to deal with environmental concerns about the sewage works was through the MECP approval process for the ECA.
[41] In its written reasons, the OMB repeatedly stated that the public’s environmental concerns about the sewage works would be addressed when the MECP reviewed and considered Macey Bay’s ECA application. It was Macey Bay’s consulting environmental engineers, not Macey Bay employees, who made the request for the exemption to the Ministry. Even Scott Kirby, the affiant for Macey Bay on this application, admitted on cross-examination that despite the OMB hearing, he expected Macey Bay’s ECA application to be posted on the Registry for a period of public consultation.
[42] In addition, during the OMB hearing a representative of the MECP discussed the public’s right to comment under the posting provisions of the EBR during his evidence.
Disposition
[43] The issue posed by this application is whether it was unreasonable for the Minister to conclude that the sewage works were a step towards implementing the trailer park project approved by the OMB’s decision “after affording an opportunity for public participation”. I am unable to conclude that the Minister’s decision on this point was unreasonable. There are several reasons for this conclusion.
[44] Public participation rights created by s. 22 of the EBR are not unqualified. There are several provisions of the EBR dedicated to exceptions to the s. 22 notice requirement in addition to s. 32(1)(a) – specifically, sections 22(3), and 29 through 33. Furthermore, in all cases except s. 33, the determination of whether an exception applies is at the Minister’s discretion. The exceptions in ss. 29, 30 and 32 state that s. 22 does not apply where, “in the minister’s opinion”, the particular circumstances surrounding the proposed instrument fit the exception. The use of the phrase “in the minister’s opinion” introduces a discretionary element into the application of the provision. This also indicates that the Minister’s decision should be afforded deference, since it is enough to satisfy the provision if in the Minister’s opinion the facts surrounding the instrument fit the elements of the exception provision.
[45] As noted by the Supreme Court of Canada in Vavilov, certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. Where the legislature has chosen to use broad, open-ended or highly qualitative language “it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language”. As noted earlier, of course, it is, nevertheless unreasonable for an administrative decision maker to stray beyond the limits set by the statutory language he or she is interpreting.: Vavilov, para. 110.
Functional Equivalence
[46] The applicant’s argument that s. 32 of the EBR must be read as requiring a “functionally equivalent opportunity for public consultation on the instrument” must be assessed in the context of the EBR as a whole. In particular, for example, the exceptions under s. 30(1)(a) and (b) specify that they only apply where the process of public participation was or will be “substantially equivalent to the process required in relation to the proposal under [the EBR]”. By contrast, section 32(1)(a) simply requires that there have been “an opportunity for public participation”, without requiring that it be “substantially equivalent” to the notice provisions under s. 22. The applicant’s argument is an attempt to graft the language of s. 30 onto s. 32. This is not, however, how s. 32 was drafted. If the Legislature had intended that s. 32 should be read as requiring “functionally equivalent public participation” to that contemplated under s. 22, s. 32 would have replicated the language found in s. 30.
[47] The OMB decision itself specifies that the issuance of the ECA is a step towards implementing the zoning and planning approvals necessary for the development of the trailer park. Whether the OMB is capable of assessing environmental risks associated with an ECA for sewage works is not really material. The Official Plan and By-Law Amendments approved by the OMG were put on hold by the OMB’s decision until approvals for the required sewage system are issued by the Ministry, which is qualified to assess environmental risks.
[48] If the applicant were correct in its interpretation of s. 32(1)(a), that another tribunal’s hearing can never constitute public consultation in relation to any matters subject to an ECA because “only the Ministry has the jurisdiction to consider or decide” the ECA application, this would effectively mean there can be no exceptions to posting on the Environmental Registry, as only the Environmental Registry guarantees a specific notice and consultation regime with the Ministry prior to a decision to issue the instrument.
[49] The applicant’s argument that the trailer park was not a project “approved” by the OMB decision because the OMB was only approving the rezoning, not the sewage works would, if correct, again gut the language of s. 32(1)(a) of all meaning. Approval of a project through an administrative tribunal hearing will almost always involve a decision about whether some kind of by-law, plan, licence, permit or approval should be granted and if so in what format and on what terms. This was certainly the case here – the OMB granted approval of the trailer park under applicable land use planning criteria. This included contemplation of other “steps” in the process for which other “approvals” would be required. The sewage works are clearly not the “project” in these circumstances: they are an important and necessary, but collateral, component to the development of the trailer park, approval for which was granted by the OMB, subject to conditions.
Sewage Works Plan not Final
[50] Regarding the applicant’s argument that final plans for the sewage works were not before the OMB and therefore not subject to any “opportunity for public participation” during the OMB process, I tend to agree with at least some of the principles implicit in this argument. If, for example, the OMB hearing had been conducted without any evidence whatever about the sewage works required for the trailer park project, it would be difficult to reasonably conclude there had been any relevant opportunity for public participation.
[51] That is not, however, what happened in this case. As noted above, there was substantial evidence concerning the sewage works before the OMB from both the proponent, Macey Bay, and the participants, including the applicant in this judicial review.
[52] The applicant’s argument that the final technical design for the sewage works was not before the OMB is, again, in part based on an attempt to read into s. 32(1)(a) the stricter language of s. 30, which requires that the “environmentally significant aspects of the proposal” have been or are required to be considered in a process for public participation. By contrast, s. 32(1)(a) only requires that the proposed instrument “be a step towards implementing an undertaking or other project approved by a decision made by a tribunal under an Act after affording an opportunity for public participation”. The mere fact that the final design brief was not filed at the OMB hearing would not, standing alone, necessarily mean that the applicant was not afforded an opportunity for public participation.
[53] Mr. Bain’s affidavit filed in support of this application highlights his specific concerns. There are essentially two. First, Mr. Bain says there is a “discrepancy” between what was approved in the OMB decision and what is in the final design brief. The OMB decision permitted 180 park model trailer units of up to 100m2 each, whereas the final design brief is based on 180 units of up to 50m2, which seems to have resulted in a reduction in capacity of daily design flows in the final design brief of about 30%.
[54] Second, two “peer review reports” on the sewage works proposed by Macey Bay were obtained by the Township following and in response to the OMB decision. In those reports, concerns were raised about missing or inadequate information from Macey Bay’s engineering consultants about things like the adequacy of ground water supply to meet peak demand and phosphorous load calculations.
[55] In addition, Mr. Bain notes that: a) neither of the Township’s peer review reports mentions the final design brief, such that it is “unclear” whether the consultants who prepared these reports ever had an opportunity to view the final design brief; and b) it is “unclear” whether the peer review reports were submitted to the Ministry or whether they were considered as part of the Minister’s or the Ministry’s review.
[56] One of the problems with this argument is that the onus of proof is on the applicant to prove that the Minister’s decision that s. 32(1)(a) applied to exempt the ECA application from the requirement to post notice on the Registry was unreasonable. The onus of proof is not on the Minister to prove that it was reasonable. It is simply insufficient, in my view, to discharge the applicant’s onus of proof merely to raise the prospect of a “discrepancy” between the evidence filed before the OMB and the evidence filed with the Ministry, or to submit that it is “unclear” whether the Township’s consultants had access to Macey Bay’s final design brief or whether the Ministry had the peer review reports before making its decision to issue the ECA.
[57] Nowhere, for example, does Mr. Bain outline what he would have submitted, if there had been a s. 22 comment period, that would have been materially different from what had already been submitted at the OMB. The materiality of the issues he has raised is simply left to the imagination.
[58] This issue is brought into even sharper relief because the evidence of both Macey Bay and the Ministry is to the effect that the final design brief was essentially the same as the proposal filed with the OMB. As well, the earlier technical reports containing hydrogeological and the phosphorus assessments were submitted with the 2017 ECA application with very few changes.
[59] The peer review reports, which did post-date the OMB hearing, were perhaps relevant to the Ministry’s decision to issue the ECA, but that decision is not being challenged in this application. The peer review reports do not appear to be relevant to the Minister’s decision to invoke s. 32(1)(a), which is the decision under review. In any event, the Minister, in considering whether there had been an “opportunity for public participation” at the OMB, was entitled to take into account the conditions imposed by the OMB in its decision approving the trailer park. These included, in addition to the need for an ECA, the approval of a site plan and approval by the Township of an environmental impact assessment, a functional servicing report, a stormwater management report and a phosphorous management report.
[60] The applicant also argues it was denied the opportunity for public participation at the OMB because it was limited to 10 minutes for oral supplement to its extensive written submissions.
[61] The OMB, subject to basic principles of procedural fairness, is master of its own processes, including pre-hearing and hearing management. The hearing before the OMB lasted two weeks. There were many witnesses and many participants. There was no limitation on what written submissions the applicant could file in support of its opposition to Macey Bay’s proposals before the OMB. The applicant sought no review of the OMB’s decision on the basis of a denial of procedural fairness. What took place before the OMB cannot be regarded as a denial of procedural fairness by the Minister, in connection with his decision to exempt the ECA application on the basis of s. 32(1)(a). Nor can the constraints imposed by the OMB on its hearing process be regarded, in the circumstances of this case, as a denial of the “opportunity for public participation”.
Legitimate Expectations
[62] The applicant’s final argument concerns the question of legitimate expectations. The applicant argues that events at the OMB hearing lead the applicant to reasonably believe that Macey Bay’s contemplated application to the Ministry for an ECA would be an open process in which there would be an opportunity for further public participation and comment.
[63] Mr. Bain sets out the basis for these expectations in paras. 50 to 52 of his affidavit:
During the Hearing, Ms. DeMarco summonsed a representative of the MECP, Thomas Teske, a field officer in the nearby Barrie office. In his testimony, Mr. Teske advised that Macey Bay would have to follow an approval process under the Environmental Protection Act (“EPA”) in order to obtain its environmental compliance approval (“ECA”) for the Sewage Works. According to Mr. Teske’s testimony, this approval process under the EPA would include a full opportunity for residents to be heard and make submissions and would entail the posting and notification of Macey Bay’s ECA application on the Environmental Bill of Rights ("EBR") online Registry. Mr. Teske emphasized that the residents would have a full opportunity to be heard at a later date as part of the MECP ECA approval process as it relates to their concerns about the environmental impacts associated with the Proposed Development.
In addition to Mr Teske's assurances, during the hearing, both the lawyer for the Township and the lawyer for Macey Bay advised the OMB that the residents’ environmental concerns about the Sewage Works would be addressed through the MECP approval process and the peer review processes. At paragraph 51 of the OMB decision, the OMB member quoted counsel for the Township, who stated as follows:
Ms. DeMarco raised a number of issues relating to the appropriateness of [the Subject Property] for development from an environmental and servicing perspective. These are all issues that can be addressed through the site plan, MNRF and MOECC [now MECP] processes.
- Based upon these repeated assurances from Macey Bay, the Township, and the OMB, Ms. DeMarco did not call her stormwater run-off expert to give testimony and substantially curtailed her cross-examinations of Macey Bay’s experts.
[64] Based on this evidence, the applicant argues in its factum that due to the robust public consultation rights under the EBR, combined with the legitimate expectations of the public and the increasing importance of safeguarding the right to a healthful environment, the rules of procedural fairness required the Minister to provide some means of public consultation on the ECA Application prior to the issuance of the ECA. In failing to provide this opportunity to the public, the Minister breached the duty of procedural fairness.
[65] Although sympathetic to the applicant’s plight, I am unable to give effect to this argument. The doctrine of legitimate expectations is an extension of the rules of natural justice and procedural fairness. It may apply where conduct of a Minister or other public authority in the exercise of a discretionary power that can be characterized as clear, unambiguous and unqualified, has induced in the complainant a reasonable expectation that it will be consulted before a decision by that Minister or public authority is taken: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR 539 at para. 131. The representation said to induce the expectation must fall within the scope of the government official’s authority: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 SCR 504 para. 68.
[66] Providing a general description of an available statutory public consultation process does not constitute a clear, unambiguous and unqualified representation that the process will necessarily be fully available to particular persons or entities in a particular case in the future. Further, the exemptions in Part II, and in s. 32(1)(a) in particular, can only be exercised in the discretion of the Minister or the Minister’s delegate. It is not for a field officer in the Barrie office of the Ministry to purport to exercise the Minister’s discretion.
[67] It is difficult to see how statements made by the OMB or lawyers for Macey Bay or the Township (even though there is no specific reference to the EBR in any event), could qualify as clear, unambiguous and unqualified representations binding on the Minister. While, depending on the nature of the representation, one could see how the conduct of Macey Bay or the Township might be constrained by representations made by their legal representatives, here there is no remedy sought against Macey Bay, only against the Minister.
One Final Issue: The Record Before the Minister
[68] Finally, I will address an issue not raised by the parties in their evidence or factums but raised by the Court in oral argument. The issue relates to what the Minister (or, in this case, his delegate) had before it and considered when deciding to invoke s. 32(1)(a) and not to post the ECA application on the Registry on the basis of prior opportunities for public participation.
[69] As the analysis above makes clear, the nature of the prior decision, the nature of the material filed and the nature of the prior opportunities for public participation are important elements in the availability of the s. 32(1)(a) exemption. While a decision not to post in light of s. 32(1)(a) is clearly discretionary, it is nevertheless unreasonable for the Minister to stray beyond the limits set by the statutory language the Minister is interpreting. In other words, the reasonableness of the exemption decision must be assessed in light of the text, context and purpose of the EBR and, in particular, Part II.
[70] In this case, although I have found that the prior consultation process referred to in s. 32(1)(a) need not be the functional equivalent of the s. 22 EBR process, it seems clear that there must be at least some nexus between the subject matter of the public’s participation in the prior process and the subject matter of the subsequent proposal made to the Ministry. Part II is silent on what material the Minister should consider before making a decision not to post. It strikes me as axiomatic, however, that the Minister must at least have regard to the relevant record from the prior process. Otherwise, how could the Minister possibly know whether the prior process involved appropriate opportunities for public participation sufficient to warrant the exercise of his discretion to exempt a proposal such as the ECA application from posting and consultation under Part II of the EBR? It must be remembered that, as stated in Greenpeace, supra, the EBR is significant legislation which requires far more than lip service to be paid to the public consultation process. It is not, to use a phrase from another context but which is apt here, just an opportunity for the public to “blow off steam”.
[71] In this case, the “reasons” from the Minister explaining why the ECA application was not posted do not refer to the material considered. Nor, in the Ministry’s evidence filed on this application, is there any explanation of what material was considered. The point is not a trivial one, particularly given the evidence filed on the Minister’s behalf, which is to the effect that the decision to issue the ECA and the decision whether to post the ECA application on the Registry are not only decided by different offices but are based on completely different considerations. Further, the primary affiant put forth by the Ministry admitted to having no knowledge of how decisions about public consultation are made at the Ministry. On his cross-examination, Mr. Belayneh, who was involved for the Ministry on the technical side in the earlier consultations leading up to the OMB hearing, stated that the decision to grant an exemption from the public posting requirements is made by the environmental approvals branch without any consultation from the technical reviewers of ECA applications.
[72] Because the onus of proof lies on the applicant to prove the decision was unreasonable, not on the Minister to prove it was reasonable, the absence of this evidence can not be dispositive. Lack of evidence on this point permits neither the inference that the applicant’s OMB materials were before the Minister and considered or that they were not. However, in future cases I should think it extremely prudent, if not required, for the Minister to address this issue. It would be helpful to have the Minister able to confirm, in a legal challenge such as this, that his or her decision to apply the s. 32(1)(a) exemption and not to post on the Registry followed a review of the prior proceedings and, in particular, both the scope and content of the opportunities for public participation in those prior proceedings.
Conclusion
[73] For the foregoing reasons, I would dismiss the application for judicial review.
Costs
[74] The parties agreed there would be no costs if the application were dismissed. It is so ordered.
Penny J.
I agree _______________________________
Dambrot J.
I agree _______________________________
Fregeau J.
Released: June 2, 2021
CITATION: Eastern Georgian Bay Protective Society Inc. v. Minister of the Environment, Conservation and Parks, 2021 ONSC 4038
DIVISIONAL COURT FILE NO.: 273/20
DATE: 20210603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Fregeau and Penny JJ
BETWEEN:
EASTERN GEORGIAN BAY PROTECTIVE SOCIETY INC., Applicant
- and –
MINISTER OF THE ENVIRONMENT, CONSERVATION, AND PARKS and MACEY BAY DEVELOPMENTS CORP., Respondents
REASONS FOR JUDGMENT
Released: June 3, 2021