CITATION: Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521
DIVISIONAL COURT FILE NOS.: 342/2020 and 187/20 DATE: 20210903
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, D.L. Corbett and Penny JJ.
BETWEEN:
Court File No. 342/2020
GREENPEACE CANADA (2471256 CANADA INC.) and WESTERN CANADA WILDERNESS COMMITTEE
Applicants
- and –
MINISTER OF THE ENVIRONMENT, CONSERVATION AND PARKS, MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, MINISTER OF AGRICULTURE, FOOD AND RURAL AFFAIRS, and MINISTER OF TRANSPORTATION
Respondents
AND BETWEEN:
EARTHROOTS COALITION, CANADIAN ENVIRONMENTAL LAW ASSOCIATION, FEDERATION OF ONTARIO NATURALISTS carrying on business as ONTARIO NATURE, MICHEL KOOSTACHIN, and COOPER PRICE, a minor by his litigation guardian ELLIE PRICE
Applicants
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the
MINISTER OF ENVIRONMENT, CONSERVATION AND PARKS and the
MINISTER OF MUNICIPAL AFFAIRS AND HOUSING
Respondents
Laura Bowman and Ian Miron, for the Applicants
Darrell Kloeze, Heather Mackay, Sarah Valair and Paul Kim for the Respondents
Court File No. 187/20
Joseph F. Castrilli, Richard D. Lindgren and David Estrin for the Applicants
Darrell Kloeze, Heather Mackay, Sarah Valair and Paul Kim for the Respondents
HEARD at Toronto (by videoconference): May 17 – 20, 2021
Swinton J.
Overview
[1] The applicants, environmental advocacy organizations and others, have brought two applications for judicial review challenging the alleged failure of Ministers of the Ontario government to conduct public consultations in accordance with the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 (“EBR”) before the enactment of the COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18 (“CERA”). The announced purpose of the CERA is to assist with Ontario’s economic recovery after the COVID-19 pandemic by enacting, amending, and repealing other statutes. In total, the CERA contains 20 schedules that amend 43 statutes.
[2] A third application for judicial review, Divisional Court File 282/20, was brought by a number of Indigenous groups and heard at the same time as the present applications. At issue in that application is the constitutional duty of consultation and accommodation and the Honour of the Crown. It will be the subject of separate reasons.
[3] In respect of the present applications, I would grant them in part and order declaratory relief only with respect to the failure of the Minister of Municipal Affairs and Housing to comply with s. 15 of the EBR because of the failure to post proposed amendments respecting Ministerial Zoning Orders on the Environmental Registry prior to implementation. I would dismiss the applications with respect to all the other challenges raised by the applicants.
The Statutory Framework
[4] The purposes of the EBR are set out in s. 2 of the Act. Subsection (1) states that those purposes are,
(a) to protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in this Act;
(b) to provide sustainability of the environment by the means provided in this Act; and
(c) to protect the right to a healthful environment by the means provided in this Act.
[5] Part II of the EBR deals with public participation in governmental decisions affecting the environment. Subsection 3(1) sets out the purpose of Part II, which is to establish “minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals for policies, Acts, regulations and instruments.” This Part applies to ministries prescribed by regulation (s. 4). Each of the respondents to this application for judicial review is a minister of a prescribed ministry.
[6] Section 5 deals with the establishment of the Environmental Registry (“ERO”), whose purpose, as set out in s. 6(1), is to provide a means to give information about the environment to the public.
[7] Section 15 is of central importance in these applications. It sets out the criteria that a minister must consider in determining whether a proposed policy or Act should be posted on the ERO. First, the minister must determine whether a proposal under consideration for a policy or Act “could, if implemented, have a significant effect on the environment”. Second, the minister must decide whether the public should have an opportunity to comment on the proposal before implementation. If so, the minister “shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.” Pursuant to s. 1(6)(b) of the EBR, a proposal for an Act is implemented on the date of third reading in the Legislature.
[8] Subsection 15(2) provides an exception to posting if a policy or Act is “predominantly financial or administrative in nature.” There are other exemptions set out in the EBR, but Ontario does not rely on any of them in these applications, except for s. 33.1, enacted as part of the CERA, which will be discussed later in these reasons.
[9] Section 14 sets out the factors that a minister must consider when deciding whether a s. 15(1) consultation is required:
The extent and nature of the measures that might be required to mitigate or prevent any harm to the environment that could result from a decision whether or not to implement the proposal.
The geographic extent, whether local, regional or provincial, of any harm to the environment that could result from a decision whether or not to implement the proposal.
The nature of the private and public interests, including governmental interests, involved in the decision whether or not to implement the proposal.
Any other matter that the minister considers relevant.
[10] If a minister decides that a proposal should be posted, the public is entitled to receive notice of the proposal, as set out in s. 27, and to submit written comments on it. The minister must take every reasonable step to ensure that relevant comments are considered by the ministry when decisions are made on the proposal in the ministry (s. 35). The minister must give notice of the implementation of a proposal, including a brief explanation about the effect of public participation, if any, on the decision (s. 36).
[11] Separate and apart from the minister’s decision under s. 15 and the related requirements, s. 11 of the EBR requires each minister to “take every reasonable step to ensure that the ministry statement of environmental values [“SEV”] is considered whenever decisions that might significantly affect the environment are made in the ministry.”
Bill 197, the Covid-19 Economic Recovery Act
[12] On July 8, 2020, Bill 197 was introduced in the Ontario Legislature. Through its 20 schedules, the bill proposed amendments to 43 statutes. It received first reading on July 8, 2020, and received second reading, third reading, and royal assent on July 21, 2020. As a result, Bill 197 became the Covid-19 Economic Recovery Act (“CERA”).
[13] Greenpeace and Western Canada Wilderness Committee (“Greenpeace”) take issue with the failure of three Ministers to post five schedules of Bill 197 on the ERO that led to the amendment of the following Acts:
Schedule 3, the Development Charges Act (Minister of Municipal Affairs and Housing)
Schedule 6, the Environmental Assessment Act (Minister of the Environment, Conservation and Parks)
Schedule 17, the Planning Act (Minister of Municipal Affairs and Housing)
Schedule 19, the Public Transportation and Highway Improvement Act (Minister of Transportation)
Schedule 20, the Transit-Oriented Communities Act, 2020 (Minister of Transportation).
Greenpeace also takes issue with the posting of Schedule 4, the Drainage Act, by the Minister of Agriculture, Food and Rural Affairs.
[14] The Earthroots applicants (“Earthroots”) join Greenpeace in challenging the failure to post Schedules 6 and 17, insofar as the latter proposed amendments respecting Ministerial Zoning Orders under the Planning Act.
[15] The parties have used a large number of acronyms in their materials and factums to describe various legislation and actors. In the interests of clarity, I shall reduce the number of acronyms in these reasons. In particular, I shall refer to the four ministers whose actions are challenged as the Ministers of Municipal Affairs, Agriculture, the Environment, and Transportation.
The Issues
[16] Greenpeace argues that the Ministers’ decisions not to post five schedules (Schedules 3, 6, 17, 19 and 20) were unreasonable. It also argues that the Minister of Agriculture made an unreasonable decision, as he did not properly consider the Ministry’s SEV in respect to Schedule 4. In each case, it seeks a declaration that the Ministers acted unlawfully. More precisely, Greenpeace raises the following issues:
• Did the Ministers of Transportation, Municipal Affairs and the Environment unreasonably fail to consider and apply Part II of the EBR and to consider their SEVs before implementing Schedules 3, 6, 17, 19, and 20?
• Was the Minister of the Environment’s reliance on the exception in s. 33.1 of the EBR unreasonable?
• Did the Minister of Agriculture fail to consider the Ministry’s SEV or consult adequately with respect to Schedule 4?
• Was the Ministers’ conduct procedurally unfair and contrary to the legitimate expectations of the parties?
[17] Earthroots challenges only Schedules 6 and 17 (as the latter relates to Ministerial Zoning Orders) on the grounds that the decisions not to post on the ERO were unreasonable. As well, it argues that the conduct of the Ministers of Municipal Affairs and the Environment was procedurally unfair. It also adds the following issue:
• Do the EAA amendments respecting environmental assessment fail to meet Ontario’s obligations under international law norms?
The Standard of Review
[18] The Ministers’ determinations about the application of s. 15 of the EBR are subject to review on a standard of reasonableness, in accordance with the presumption that reasonableness is the standard of review in applications for judicial review, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65, at para. 23.
[19] Counsel for Ontario submitted that the presence of the privative clause in s. 118 of the EBR limits judicial oversight to review for unlawfulness. Subsection 118(1) provides that
Except as provided in section 84 and subsection (2) of this section, no action, decision, failure to take action or failure to make a decision by a minister or his or her delegate under this Act shall be reviewed in any court.
Subsection 118(2) provides,
Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that a minister or his or her delegate failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument.
“Instrument” is a defined term, and there are no instruments in issue in these applications.
[20] I disagree with Ontario’s submission. Vavilov makes it clear that reasonableness is the presumptive standard of judicial review of an administrative decision unless the Legislature has provided otherwise – for example, by conferring a statutory right of appeal (at para. 24). As well, Vavilov states that privative clauses “serve no independent or additional function in identifying the standard of review” (at para. 49).
[21] Ontario relies on Greenpeace v. Ontario, 2019 ONSC 5629, 148 O.R. (3d) 191 (Div. Ct.), at para. 35 (“Greenpeace # 1”) and Hanna v. Ontario (Attorney General), 2011 ONSC 609, 105 O.R. (3d) 111 (Div. Ct.), at para. 31 as supporting a more limited standard of review. Hanna is distinguishable from the present case, because it dealt with the court’s restrained scope of review when the validity of regulations is in issue. In Hanna, the Divisional Court held that the substance of the Minister’s decision to recommend a regulation respecting setbacks for wind energy facilities could not be reviewed by the courts so long as the minister complied with the process mandated by s. 11 of the EBR.
[22] Greenpeace #1 was released prior to Vavilov. The dissent states at para. 35, “Where a statutory precondition requires that an opinion be reached or a determination made, it is beyond the scope of judicial review to assess whether the determination was objectively correct or reasonable.” The footnote cites Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, a case that was also dealing with the validity of regulations, where the judicial role on review is limited. Vavilov is clear that the presumptive standard of review is reasonableness, and that presumption puts this issue to rest. Prior dictum from this Court to the contrary should not be followed: the standard of review is reasonableness.
[23] It is clear that a minister is granted broad discretion with respect to posting under s. 15 of the EBR. However, the exercise of that discretion must be reasonable, given the applicable criteria in the EBR, the proposal being considered and the degree of prior consultation.
[24] With respect to issues of procedural fairness, there is no standard of review. The Court must determine whether the relevant level of procedural fairness was accorded in the circumstances (Vavilov at para. 77).
Schedule 3, the Development Charges Act
[25] The proposed amendments to the Development Charges Act, 1997, S.O. 1997, c. 27 (“DCA”) expanded the list of services for which a development charge can be imposed by municipalities to pay for the costs of capital improvements for services that have been incurred as a result of housing development. The amendments, in part, repealed and replaced amendments that had been made through Bill 108, the More Homes, More Choice Act, 2019, which were not yet in force.
[26] The amendments would allow municipalities to recover costs through a development charge by-law for expanded categories of services, including childcare, long-term care, parks and recreation services, and emergency preparedness, among others. The earlier provision had included a list of 12 services, while the new proposal included 21 services.
[27] The Schedule 3 changes also set out the relationship between development charges and the community benefits charges that can be imposed by by-law under the Planning Act, R.S.O. 1990, c. P.13. Amendments with respect to the community benefits charges were found in Schedule 17, which is discussed later in these reasons.
[28] The Minister of Municipal Affairs did not post these proposed changes to the DCA on the ERO. Greenpeace notes that the earlier Bill 108 proposal had been posted to the ERO, and thus it was unreasonable for the Minister not to give reasons explaining the failure to post the new amendments. Greenpeace relies on a passage in Vavilov which states that a decision that departs from past decisions should be justified (at para. 131).
[29] Counsel for Ontario submits that there was no need to post this Schedule, because the proposed changes were financial or administrative in nature, and therefore exempted by s. 15(2) of the EBR. In contrast to Schedule 3, counsel points out that the earlier proposal had applied to a number of Acts in an effort to provide more housing.
[30] Greenpeace has not demonstrated that the failure to post was unreasonable. The fact that the Minister had posted the 2019 proposed amendments in Bill 108 does not make the failure to post the current Schedule 3 unreasonable. Subsection 15(1) requires the Minister to consider the likely impact of each new proposal on the environment, in light of the s. 14 factors, and to assess its significance and whether there is a need for public consultation. This requires a decision based on the particular proposal, and the Minister is not bound by past decisions with respect to the posting of different proposals.
[31] The passage from Vavilov relied upon by Greenpeace does not apply in these circumstances. At paras. 129 through 132, the Supreme Court was discussing the importance of an administrative decision-maker giving reasons for a decision that departs from internal precedent in that body’s decision-making. We are not dealing here with an adjudicative tribunal with a body of jurisprudence. There is no body of established precedent that the Minister was obliged to consider in the context of making a decision whether to post the current DCA amendments on the ERO.
[32] Moreover, the fact that there are no reasons for the failure to post does not render the decision unreasonable. As Vavilov has noted in para. 138, a court can still conduct a reasonableness review of an administrative decision in the absence of reasons, where there is no duty to give reasons.
[33] In my view, there is no duty to give reasons explaining why a proposal is not posted. The decision whether to post is administrative in nature, and it does not affect individual rights. Moreover, the statutory scheme does not indicate any need to give reasons. In contrast, the EBR imposes an explicit duty to give reasons when the Minister invokes the emergency provision in s. 29 or considers that another process has provided appropriate consultation pursuant to s. 30.
[34] Ontario relies on s. 15(2) of the EBR, a section of the Act that has not been judicially considered. That provision exempts from posting a provision that is “predominantly financial or administrative in nature.” Counsel submits that the Court should determine, on an objective basis, whether the Minister acted lawfully, in failing to post this proposal, because the proposed amendment is predominantly financial in nature.
[35] The word “financial” is defined in the Oxford Dictionary (online) as “pertaining to or relating to money matters; pecuniary.” A broad definition of the word “financial” might well exempt important proposals from public consultation under the EBR, even where they might significantly impact the environment. Such a broad reading of “financial”, as including anything monetary, would be inconsistent with the purpose of the Act – namely, to involve the public in consultation before government adopts proposals that could significantly affect the environment. Indeed, counsel for Ontario did not suggest that every proposal dealing with money is thereby financial. Rather, he suggested that the Court should assess each proposal on an objective basis to determine if it is predominantly financial in nature.
[36] In my view, the proposal in Schedule 3 is fairly characterized as predominantly financial – it provides a mechanism to facilitate municipal recovery of the costs of a wide range of services affected by housing development, including soft services such as libraries, parks, childcare and police. Of the 21 services listed, only parks seem to have an environmental aspect.
[37] Moreover, there is nothing in the record to indicate that there is a possible harmful impact on the environment from this proposal, let alone one that could be significant. The impact of this proposed legislation cannot be said to trigger concerns such as those set out in s. 14, where paragraphs 1 and 2 address a possible harm to the environment or the need for mitigation of harm.
[38] There is no basis for judicial intervention respecting Schedule 3, as Greenpeace has not demonstrated that the failure to post was unreasonable. I will address the SEV argument later in these reasons along with Schedules 6, 19 and 20.
Schedule 4, the Drainage Act
[39] Schedule 4 made changes to the Drainage Act, R.S.O. 1990, c. D.17, a statute dealing with the establishment of municipal drains. It falls under the responsibility of the Minister of Agriculture.
[40] Some of the amendments related to the service of documents and to processes to be used in amending engineers’ reports during construction. The changes also authorized the Minister to make regulations that streamline approvals for “minor improvements” to drainage works. It would also give the Minister the authority to adopt technical protocols such as the DART Protocol by reference in regulation.
[41] A January 2020 Decision Note addressed to the Minister recommended consulting on the proposed amendments through the ERO. The note indicated that the posting would ensure that the Ministry met its commitment under its SEV “to provide opportunities for an open and consultative process when making decisions regarding Acts, regulations, policies and programs that might significantly affect the environment.”
[42] Accordingly, on January 17, 2020, a detailed discussion paper setting out the proposed amendments to the Drainage Act was prepared and posted to the ERO. The posting received 68 comments from stakeholders that included environmental organizations.
[43] Greenpeace argues that the evidence does not establish that the Ministry considered its SEV in proposing the amendments. Section 11 of the EBR requires a minister to take “every reasonable step” to ensure the SEV is considered “whenever decisions that might significantly affect the environment are made in the ministry.”
[44] On its face, s.11 does not apply to a Minister’s decision whether to post a proposal for a legislative amendment pursuant to s. 15. That decision is to be made in accordance with the requirements in Part II, in particular ss. 14 and 15 and the exemption provisions.
[45] However, and more importantly, the Decision Note indicated that the SEV had been considered. It stated that the proposed posting would ensure the Ministry met its SEV commitment to open consultation on matters that might significantly affect the environment. Given that information, Greenpeace has failed to show that the Minister failed to consider the SEV.
[46] Greenpeace also raises the issue that the posting did not include specific legislative language for the amendments. However, there is no legislative requirement to post the proposed legislation. Section 27 of the EBR specifies what should be posted. It states in s. 27(2)1 that “a brief description of the proposal” shall be posted. The posting respecting the amendments to the Drainage Act proposal met that requirement.
Schedule 6, the Environmental Assessment Act
The content of Schedule 6
[47] Schedule 6 proposed substantial changes to the Environmental Assessment Act, R.S.O. 1990, c. E.18 (“EAA”), as part of Ontario’s modernization of the environmental assessment process that started in 2018. Notably, the Bill eliminated public rights of appeal for class environmental assessments (also called Part II order requests or “bump up” requests), and the class assessment system. The amendments also enabled the Lieutenant Governor in Council to adopt regulations designating projects (public and private) to which the Act applies. It also enables regulations to set out a streamlined environmental assessment process for certain designated projects.
[48] The Minister of the Environment chose not to consult the public under s. 15 of the EBR, explaining why in an information bulletin posted on the ERO on July 8, 2020. The Minister relied on a proposed, and later enacted, statutory exception found in s. 51(7) of Schedule 6 that would add a new s. 33.1 to the EBR. As a result of the enactment of s. 33.1, the proposed amendments would not be subject to the minimum 30-day posting requirement under s. 15 of the EBR. The bulletin stated that this provision was “to ensure that these proposed changes can be implemented expeditiously to support [COVID-19] recovery efforts”.
[49] Section 33.1 retroactively exempted the Schedule 6 changes from the consultation requirements in Part II of the EBR. Section 51(7) of the Schedule provided for an amendment to Part II of the EBR in the following terms,
33.1 The requirements of this Part are deemed not to have applied with respect to the amendments made by Schedule 6 to the COVID-19 Economic Recovery Act, 2020.
[50] Subsection 51(8) then provided for the repeal of this section: “Section 33.1 of the Act, as enacted by subsection (7), is repealed”. While most of the provisions in Schedule 6 came into effect with Royal Assent, s. 66(2) provided that the repeal provision in s. 51(8) “comes into force 30 days after the day the COVID-19 Economic Recovery Act, 2020 receives Royal Assent.”
The position of the applicants
[51] Greenpeace and Earthroots argue that the Minister’s decision not to post Schedule 6 is unreasonable. The proposed changes to the environmental assessment process were extensive and would significantly affect the environment. However, the Minister failed to consider any of the factors under s. 14 of the EBR that trigger mandatory consultation under s. 15, or any existing exceptions to consultation requirements, before the Schedule 6 changes were implemented.
[52] They argue that s. 33.1 does not shield the Minister’s decision not to post from judicial review, nor make his decision reasonable. They say that the Minister’s reliance on s. 33.1 of the EBR was unreasonable because that section was not in force at the time the Minister relied on it. Section 33.1 was in Bill 197, introduced in the Legislature on July 8, 2020, and did not come into force until July 21, 2020. They submit that the reasonableness of the decision not to post on the ERO must be determined based on the process that existed on July 8, 2020, a process that did not include the s. 33.1 exception.
[53] Greenpeace also notes that s. 33.1 has since been repealed, as it was automatically repealed 30 days after it was proclaimed into force. It submits that the default common law rule is that repealed statutory provisions must be treated as if they never existed. Sections 51 and 52 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F provide an exception to that rule, but Greenpeace argues that they only go so far as to protect the operation of the provision to matters that arose when the provision was in force. Sections 51 and 52 of Schedule 6 cannot indefinitely save s. 33.1, nor can they force its application to matters that arise after its repeal.
Analysis
[54] Subsection 15(1) of the EBR requires a minister to give notice of a proposal that is to be listed on the ERO at least 30 days before the proposal is implemented (emphasis added). Pursuant to s. 1(6)(b) of the EBR, a proposal for an Act is implemented on the date of third reading in the Legislature – in the present case, July 21, 2020. As of that date, the Minister was not legally obligated to post the proposed amendments to the EAA because the new s. 33.1 deemed Part II of the EBR not to apply to those amendments.
[55] Section 33.1 is a valid legislative provision with retroactive effect. As described by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014),
A provision is retroactive if it is intended to apply to facts that occurred before the legislation came into force as if the legislation had been in force when the facts occurred (at §24.28).
In other words, such legislation is meant to change the legal effect of past events or circumstances (at §25.24).
[56] There is no prohibition against retroactive legislation in Canada, except in criminal law because of s. 11(g) of the Canadian Charter of Rights and Freedoms (see British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at para. 69, as well, as Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305, 145 O.R. (3d) 401, at para. 35 and Greenpeace # 1, at paras. 78, 101-102).
[57] In this case, s. 33.1 of the EBR dispensed with the posting requirements in Part II of the EBR with respect to the Schedule 6 amendments by deeming Part II not to apply to those amendments. As Sullivan has explained, a deeming clause creates a legal fiction. She states (at §4.106), “Although a sovereign legislature cannot change reality, it can declare that for legal purposes reality is to be considered different from what it was or is.” Accordingly, the Minister of the Environment acted lawfully when he failed to post the proposed changes to the EAA on the ERO, as he was not legally required to do so, given the enactment of s. 33.1 of the EBR.
[58] Greenpeace argues that the purpose of s. 33.1 was to frustrate judicial review, not to exempt Schedule 6 from the EBR. This argument has no merit. The apparent purpose and effect of s. 33.1 was to exempt the Schedule 6 amendments from the posting requirements of Part II of the EBR. There is no bar to judicial review proceedings here, as there was in Greenpeace #1. Judicial review remains available, despite s. 33.1, as is evidenced by the present applications.
[59] Greenpeace also argues that the repeal of s. 33.1 by s. 51(8) of Schedule 6 is significant. It suggests that the repeal undid the effect of s. 33.1. In response, Ontario submits that s. 33.1 was repealed after 30 days because it was spent. The provision could have been left on the statute books, but there was no utility in doing so. I accept this argument.
[60] I also accept Ontario’s argument about the effect of s. 33.1. Section 51(1)(a) of the Legislation Act provides that the repeal of an Act does not affect the previous operation of the repealed Act.
[61] Earthroots also argues that the Minister was required to post the changes to the EAA, including the proposed addition of s. 33.1 to the EBR, because compliance with s. 15(1) is a statutory condition precedent to the EAA amendments. I see no merit to this argument. I also note that s. 37 of the EBR clearly states that failure to comply with Part II does not affect the validity of an Act. Therefore, the Minister of the Environment did not fail to comply with a statutory condition precedent here. Section 33.1 is a valid provision of the EBR with retroactive effect.
[62] In summary, it was reasonable for the Minister not to post Schedule 6, given the proposed amendment in s. 33.1 of the EBR and its subsequent enactment. The effect of that amendment was to exempt the Schedule 6 amendments from the posting requirement under Part II, with the effect that the Minister acted lawfully respecting the posting of Schedule 6.
Schedule 17, [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
Community benefits charges
[63] Schedule 17 proposed a new s. 37 of the Planning Act to permit municipal councils to impose “community benefits charges” to pay for the capital costs of facilities, services and matters required due to housing development and redevelopment. The amendments repealed and amended certain amendments made in the More Homes, More Choice Act, 2019 and the Plan to Build Ontario Together Act, 2019.
[64] Greenpeace attacks the failure to post this change as unreasonable. I see no basis for judicial interference, largely for the reasons I set out above respecting the DCA. Like the development charges in Schedule 3, the proposed changes were predominantly financial in nature, and they did not have a potential for significant impacts on the environment.
Ministerial Zoning Orders
[65] The MZO amendments to s. 47 of the Planning Act are of a different nature. While the Minister had the authority to make orders exercising zoning powers prior to the Schedule 17 provisions, the amendments gave the Minister greater powers in relating to specified lands, but excluding lands in the Greenbelt Area, the Oak Ridges Moraine Conservation Plan, the Niagara Escarpment Plan and other areas designated by regulation under the Greenbelt Act, 2009. These enhanced powers included the ability to require inclusionary zoning for affordable housing units. It gave the Minister authority to remove municipal use of site plan control and the power to require an owner of specified land to enter into an agreement with a municipality respecting specified site plan matters. It also allowed the Minister to make amendments to MZOs using these enhanced authorities without first giving public notice.
[66] Although the Minister did not post this proposal on the ERO before implementation, he has since done so. The amendments were posted to the ERO on December 16, 2020, many months after they had been enacted. The Minister invited the public to comment on whether the legislative changes to s. 47 “should be expanded, repealed or otherwise adjusted.”
[67] Counsel for the Minister conceded that there was no record to explain why the proposed amendments were not posted prior to enactment, and he made no submissions as to whether there was an obligation to post.
[68] It is noteworthy that the Auditor General had informed the Ministry on July 17, 2020, before the Schedule 17 amendments were adopted, that Schedule 17 should be posted on the ERO because of its environmental significance. However, the Minister failed to do so (Report of the Auditor General on the Operation of the Environmental Bill of Rights, November 2020 at p. 19).
[69] The Minister’s decision not to post the amendment respecting MZOs was unreasonable for two reasons: first, the scope of the expanded powers respecting zoning and site planning control, and second, the Minister’s decision to post the provisions and invite comment, including about repeal, after their enactment. These are amendments that manifestly could have a significant impact on the environment, and there is nothing in the record to support the reasonableness of the decision not to post.
[70] Ontario argues that there is no present need for the Court to make any finding about the obligation to post, because the matter is moot, given the December 2020 posting. I disagree. Posting on the ERO is to occur before a proposal is adopted or implemented, so that the public can be meaningfully consulted and have input to the policy and legislative process. An after the fact consultation is not an equivalent process. Accordingly, the issue of compliance with the EBR is not moot.
[71] That leaves the issue of remedy, which I will address at the end of these reasons.
Schedules 19 and 20, the Public Transportation and Highway Improvement Act and the Transit-Oriented Communities Act, 2020
[72] Schedules 19 and 20 proposed to amend the Public Transportation and Highway Improvement Act (“PTHIA”) and to enact the Transit-Oriented Communities Act, 2020 (“TOCA”). These Acts fall within the responsibility of the Minister of Transport.
[73] Schedule 19 proposed amendments that would exempt provincial highway construction projects from hearings of necessity (“HON”) pursuant to the Expropriations Act, R.S.O. 1990, c. E.26 when property is expropriated for the purposes of the PTHIA. A new provision enabled the Minister of Transportation to establish an alternative process for receiving comments from owners of expropriated land.
[74] Schedule 20 amended the Ministry of Infrastructure Act, 2011 and enacted the new TOCA to permit the Lieutenant Governor in Council to designate land as “transit-oriented community land” if the land is required to support a “transit-oriented community project” – essentially, transit stations. As in Schedule 19, the proposed amendments eliminated HONs with respect to transit-oriented community lands and projects and enabled the Minister of Transport to establish an alternative process to receive and consider comments from affected property owners.
[75] Under the Expropriations Act, a property owner affected by a notice of intent to expropriate can request an HON under s. 7. After the hearing, an Inquiry Officer must determine whether the expropriation is fair, sound and reasonably necessary to meet the objectives of the expropriating authority. The report provided is not binding on the Minister.
[76] Greenpeace argues that the proposed changes were environmentally significant because they eliminated the requirement to assess the environmental need for these projects. It also submits that the Minister failed to consider the SEV, whether there should be consultation, or whether any exception applied under the EBR.
[77] Ontario argues that the changes in Schedules 19 and 20 are not environmentally significant, and therefore the Minister was not required to post the proposals on the ERO. According to the affidavit evidence provided by Ontario, the purpose of the HON was not to deal with environmental issues, which are dealt with under the EAA. It has been the custom of the Ministry of Transportation to have any environmental assessment occur before the expropriation process for public highways and transit projects begins. Moreover, Ontario submits that an alternative process allowing property owners to object that their land is not needed for the project has been established in accordance with the amendments in Schedules 19 and 20.
[78] Ontario filed an Information Note prepared by staff of the Ministry of Transportation dated June 17, 2020 for the approval of the Deputy Minister and the Minister. It described the HON process, noting that about 20 to 25 hearing requests were made each year, but only 5 to 10 proceeded to a hearing. It stated that HONs “rarely result in any modifications to property requirements, as the technical justification for the projects and proposed takings tend to be supported by the Inquiry Officer’s findings.” It also opined that such hearings were often requested in order to delay the expropriation or to seek more favourable offers of compensation. Finally, it explained that the purpose of the HON was not to address environmental issues, as the practice was to have the HON take place after the environmental assessment.
[79] In my view, the Minister of Transportation reasonably concluded that the proposed changes to eliminate HONs for transit projects and public highways need not be posted, as the elimination of the HONs could not have a significant impact on the environment. Their primary purpose was to assess the necessity of the expropriation from a technical perspective, not to determine environmental impacts more broadly. While the HON was eliminated, an alternative process has been put in place to allow property owners to express their concern about the need for expropriation, and there is no impact on the process to determine compensation.
The Treatment of the SEVs
[80] Greenpeace has argued that the Ministers failed to consider the SEVs for the six schedules. I have dealt with and rejected this argument concerning Schedule 4, the Drainage Act, earlier.
[81] Section 11 of the EBR has been quoted earlier. When s. 11 is read in the context of the rest of the EBR, it directs reasonable steps be made to consider the SEV when decisions are made in the ministry. It does not apply by its terms to a decision of the Minister as to whether to post on the ERO. That determination is to be made based on the requirements set out in Part II of the EBR. Thus, there is no basis for court intervention on the basis of s. 11 of the EBR in these applications.
[82] Moreover, by its terms, s. 11 does not apply to a decision that is not environmentally significant. Greenpeace has not established that the proposals respecting development charges, community benefits charges, and the HONs could significantly affect the environment. Thus, its s. 11 argument would fail on this basis, as well.
Procedural Fairness and Legitimate Expectations
[83] The applicants argue that they had a legitimate expectation, arising from past practice and the Ministers’ duties under the EBR, that the Ministers would post the proposed amendments in Schedules 3, 6, 17, 19 and 20 and consult with the public. In the past, there had been consultation under the EBR before changes to the affected Acts were implemented, so they had reason to believe that the same would occur in this case.
[84] In effect, the applicants are arguing that there is a common law duty of procedural fairness that required public notice and a right to participate prior to the enactment of the impugned Schedules in Bill 197. However, no duty of procedural fairness at common law is owed to the applicants in respect of the legislative process. The duty of procedural fairness accords participation rights in respect of certain administrative decisions that are not legislative in nature. Neither the process for making regulations nor the enactment of legislation are subject to the rules of procedural fairness (see Reference Re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525, at pp. 554-560; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at paras. 38, 68).
[85] In the alternative, even if the doctrine of legitimate expectations were to have application, it would require the applicants to show that the Ministers had made representations about the scope of an administrative process that they would follow. Here, there was no representation by the Ministers with respect to a particular process that would be followed. A decision to post pursuant to s. 15 of the EBR is an exercise of discretion that turns on the nature of a particular proposal and the assessment of the criteria in s. 15 and the factors to be considered in s. 14. The content of a posting is then determined in accordance with s. 27, and there is no requirement in that section to post a proposed bill in total.
[86] Accordingly, there has been no denial of procedural fairness in the process of enacting the impugned Schedules.
Does Schedule 6 conflict with International Law?
[87] In Earthroots’ submissions respecting Schedule 6, the EAA changes, they argue that the proposed changes are inconsistent with Ontario’s obligations under norms of international law, and the decision of the Minister of the Environment not to post the proposal was thus unreasonable. Counsel submits that the EAA changes are contrary to customary international law and various international instruments.
[88] In particular, Earthroots argues that these provisions are inconsistent with Ontario’s obligations under the International Covenant on Civil and Political Rights, 19 December 1966, 99 U.N.T.S. 171 (entered into force 23 March 1976, accession by Canada 19 May 1976) (“ICCPR”). Earthroots argues that Schedule 6 fails to meet Ontario’s obligation to protect human beings from serious threats to the enjoyment of the right to life, which includes protection against environmental degradation, climate change, and unsustainable development. Environmental assessment is said to be a recognized measure to implement the right to life, so to the extent that Schedule 6 limits the environmental assessment process, it fails to meet these obligations.
[89] As well, the Minister of the Environment’s circumvention of Part II of the EBR is also said to be incompatible with Ontario’s international law obligations. The ICCPR requires every citizen to have the opportunity to take part in public affairs. By failing to run a consultation, the Minister deprived the applicants of their right to take part in decision making related to the environment. Further, the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990), to which Canada is also a party, also confers a broad right on children to freedom of expression, which includes the right to seek information of all kinds. By restricting Cooper Price, the applicant who is a minor, from accessing environmental reforms that may disproportionately affect youth in the future, Ontario has denied him a fundamental right.
[90] Earthroots states that it is not advancing a cause of action based in international law, and it recognizes that these instruments have not been implemented domestically by statute. However, it submits that Canada and Ontario’s international obligations can inform whether a decision was reasonable, and the Minister’s decision was unreasonable because of the failure to consider international norms.
[91] In fact, it appears that Earthroots is not invoking international norms to assist in the interpretation of the EBR, but rather seeking a finding that the EAA amendments are contrary to international norms. It seeks a declaration in paragraph 1(d) of its Amended Notice of Application for Judicial Review that
the Decision, in enacting the Schedule 6 EAA amendments, is, in whole or in part, non-complaint with international law conventions, principles and norms on environmental assessment, public participation, and human rights applicable in Ontario…” (emphasis added)
Such a claim appears to be an attack on the substance of the amendments, rather than the reasonableness of the Minister’s decision not to post on the EBR.
[92] International treaties or declarations do not have automatic force in Canada. They become part of domestic law when implementing legislation is passed by the legislative entity with the authority to enact such legislation in accordance with the division of powers under the constitution. Ontario has not implemented the ICCPR with respect to its environmental laws. Accordingly, these instruments had no mandatory effect and cannot provide justification to make the declaration of a violation of international law.
[93] Nor has Earthroots demonstrated that the posting decisions were unreasonable in the circumstances. First, the Minister acted in compliance with the EBR, given the enactment of s. 33.1. Second, while the amendments to the EAA provide for changes to the regulatory powers respecting the process for environmental assessment in the future, these powers had not yet been exercised. A challenge based on their consistency or inconsistency with international law norms is premature.
The Appropriate Remedy
[94] The applicants have succeeded in showing that the failure of the Minister of Municipal Affairs to post the amendments to s. 47 of the Planning Act was unreasonable. They have failed to show that he or the other Ministers have acted unreasonably in respect of the treatment of the other Schedules.
[95] The remaining issue is the appropriate remedy. Greenpeace made it clear that it did not attack the validity of the legislative provisions in its application. That is wise, given that s. 37 of the EBR states that the failure to comply with a provision of Part II does not affect the validity of any policy, Act, regulation or instrument, except as provided in s. 118. Section 118 is the privative clause, which sets out the parameters for judicial review. In particular, s. 118(2), quoted earlier, deals with judicial review respecting an instrument, and it is not applicable here.
[96] The applicants seek a declaration that the Minister of Municipal Affairs acted unlawfully because he failed to post the MZO proposal in accordance with the EBR. Section 37 does not preclude a court from granting declaratory relief with respect to the decision of the Minister not to post the proposed amendments. In deciding whether to post the proposed amendments, the Minister was exercising or refusing to exercise a statutory power of decision, and thus declaratory relief is available pursuant to s. 2 (1)2 of the JRPA.
[97] Ontario submits that the Court should not grant a declaration as there would be no practical effect in doing so, citing Greenpeace #1, where two members of the Divisional Court refused to grant a declaration because there would be no practical effect in doing so. In the present case, the Minister posted the amendments on the ERO in December 2020, albeit after they had been enacted, and received comments.
[98] The applicants are concerned about the lack of meaningful public consultation in accordance with Part II of the EBR, arguing that after-the-fact consultation is not equivalent to input before legislation is adopted. They argue that a declaration serves a purpose – to hold the Minister accountable and to emphasize the importance of respecting the public consultation provisions of the EBR.
[99] I note that the Minister did not post the s. 47 amendments in accordance with the EBR despite a recommendation from the Auditor General that he do so. I agree with the applicants’ submission that an after-the-fact posting does not satisfy the requirements of the EBR, which is meant to give the public an opportunity to be consulted on certain types of proposals that could have a significant effect on the environment before such a proposal is enacted (see s. 3(1) of the EBR, quoted earlier). The Minister of Municipal Affairs acted unreasonably and unlawfully in failing to post the MZO proposal in accordance with s. 15, and this should be recognized by a declaration to that effect.
Conclusion
[100] Accordingly, the applications for judicial review are granted in part, and a declaration shall be made that the failure of the Minister of Municipal Affairs to post the amendments to s. 47 of the Planning Act on the ERO prior to implementation was contrary to s. 15 of the EBR.
[101] Otherwise, the applications for judicial review are dismissed. The parties have agreed that they will bear their own costs.
___________________________ Swinton J.
I agree
D.L. Corbett J.
I agree
Penny J.
Date of Release: September 3, 2021
CITATION: Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521 DIVISIONAL COURT FILE NOS.: 342/2020 and 187/20 DATE: 20210903
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and Penny JJ.
Court File No. 342/2020JR
BETWEEN:
GREENPEACE CANADA (2471256 CANADA INC.) and WESTERN CANADA WILDERNESS COMMITTEE
Applicants
- and –
MINISTER OF THE ENVIRONMENT, CONSERVATION AND PARKS, MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, MINISTER OF AGRICULTURE, FOOD AND RURAL AFFAIRS, and MINISTER OF TRANSPORTATION
Respondents
Court File No. 187/20
AND BETWEEN:
EARTHROOTS COALITION, CANADIAN ENVIRONMENTAL LAW ASSOCIATION, FEDERATION OF ONTARIO NATURALISTS carrying on business as ONTARIO NATURE, MICHEL KOOSTACHIN, and COOPER PRICE, a minor by his litigation guardian ELLIE PRICE
Applicants
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the
MINISTER OF ENVIRONMENT, CONSERVATION AND PARKS and the MINISTER OF MUNICIPAL AFFAIRS AND HOUSING
Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: September 3, 2021