Legal Opinion - Judicial Review - Waste Management Expansion.pdf

8/14/2019 Legal Opinion - Judicial Review - Waste Management Expansion.pdf

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Heenan Blaikie LLP Lawyers Patent and Trade-mark AgentsOttawaMontreal TorontoVancouver Qubec CalgarySherbrooke Trois-Rivires Victoria PSingapore

Benoit M. Duchesne

T 613 236.1946

F 1 866 [email protected]

55 Metcalfe StreetSuite 300Ottawa, OntarioCanada K1P 6L5

heenanblaikie.com

BY E-MAIL

November 1, 2013

Of Counsel

The Right Honourable Pierre Elliott Trudeau, P.C., C.C., C.H., Q.C., FRSC (1984 - The Right Honourable Jean Chrtien, P.C., C.C., O.M., Q.C.

The Honourable Donald J. Johnston, P.C., O.C., Q.C.Pierre Marc Johnson, G.O.Q., FRSCThe Honourable Michel Bastarache, C.C.The Honourable Ren Dussault, O.C., O.Q., FRSC, Ad. E.The Honourable John W. MordenPeter M. Blaikie, Q.C.

Andr Bureau, O.C., O.Q.

Rick O'ConnorCity of OttawaLegal Services Branch110 Laurier Avenue WestOttawa, ON K1P 1J1

Our Reference: 040144.0102Re: Legal Opinion regarding

a) the viability of an Application for Judicial Review of the August 28,

2013 Order in Council 1228/2013 of the Lieutenant-Governor in Council

granting Waste Management of Canada Corporation approval to proceed with

an undertaking under conditions as referenced in the Ontario Environmental

Assessment File No. EA-02-08-02;

- and

b) the viability of an Application for Judicial Review of the August 16,2013 approval of an application by Waste Management of Canada

Corporation granting Waste Management of Canada Corporation approval to

proceed with an undertaking under conditions as referenced in the Ontario

Environmental Assessment File No. EA-02-08-02

Dear Mr. OConnor:

Your office has requested that we provide you with a legal opinion as to the viability ofan application for judicial review of the August 16, 2013 decision of the Minister of the

Environment [the Minister] made in the form of a Notice of Approval to Proceed withUndertaking [the Notice of Approval] by which the Minister approved of anapplication made by Waste Management of Canada Corporation [WM] pursuant to theEnvironmental Assessment Act, R.S.O. 1990, ch. E.18 [the Act] with respect to a newlandfill footprint at the West Carleton Environmental Centre (Amended January 21,2013) in Ministry of Environment file no. EA-02-08-02. You have also asked that we

provide our opinion as to the viability of a judicial review application of the August 28,


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2013, Order in Council no. 1228/2013 [the Order in Council] which followed theMinisters August 16, 2013, decision.

You have also requested that we provide our opinion on the following specific issues inlight of the Notice of Approval and the Order in Council:

1. What steps are required to be taken in order to initiate an application forjudicial review, and in which time frames?;

2. What are the probabilities of success of an application for judicialreview?; and,

3. What are the reasonably foreseeable financial risks for the City should itinitiate an application for judicial review?

Our conclusions to your questions may be found in the Conclusion section of thisopinion, on pages 20 and following. By way of brief executive summary, our opinion onthe questions you have asked is as follows:

1. What steps are required to be taken in order to initiate an application

for judicial review, and in which time frames?

A: An application for judicial review is initiated by the commencement of aproceeding before the Divisional Court. There is no fixed time frame withinwhich the application is required to be commenced after the date of the decisionto be reviewed, but delay in proceeding in a timely manner may lead the court to

refuse to grant a remedy. Most lawyers will recommend commencing anapplication within 30 days of the date of the decision to be reviewed or of the dateat which the decision came to the applicants attention, whichever is the latest. Adelay greater than 6 months after the date of the decision to be reviewed wouldlikely be considered as undue in the circumstances.

2. What are the probabilities of success of an application for judicial

review?

A: Our opinion is that an application for judicial review based on the allegednon-compliance with the approved ToR in this case will in all likelihood be

unsuccessful. We consider the probabilities of success in such a proceeding to bequite low.

3. What are the reasonably foreseeable financial risks for the City

should it initiate an application for judicial review?

A: The Citys direct and reasonably foreseeable financial risks would bemeasured by the costs it could be ordered to pay to the successful parties if it is


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unsuccessful, as well as its own financial cost for the matter. It is notunreasonable to expect that the combination of a potential costs order as well asown representation costs could expose the City to a financial risk of $ 125,000 to

$ 265,000.

For the purposes of this legal opinion, we have reviewed the original Terms of Referenceprepared by WM and dated August 2010; the February 22, 2013, Ministry of theEnvironment Review of the Environmental Assessment for a New Landfill Footprint atthe West Carleton Environmental Centre; City Council Minutes 43 dated October 24,2012; City of Ottawa Information Technology Sub-Committee recommendationsregarding a New Landfill Footprint at the West Carleton Environmental Centre; City ofOttawa Report to the Planning and Environment Committee and Council dated August16, 2010; the Conestoga-Rovers & Associates Report delivered to Meagan WheelerCuddihy dated October 1, 2012; the Staff Comments on Final Environmental Assessment

of a New Landfill Footprint at the West Carleton Environmental Centre WasteManagement Corporation October 2012; the September 5, 2013, letter from JimBradley, Minister of the Environment to Tim Murphy, the Director of EnvironmentalProtection and Regulatory Affairs for WM; Order in Council no. 1228/2013; the August16, 2013, Notice of Approval to Proceed with the Undertaking signed by the Ministerwhich also sets out the Ministers decision that a hearing before the EnvironmentalReview Tribunal is unnecessary in the matter of WMs application under the Act; theEnvironmental Assessment Act, R.S.O. 1990, ch. E.18 [the Act]; the Judicial ReviewProcedure Act,R.S.O. 1990, c. J.1 [the JPPA] and the relevant caselaw with respect tothe judicial review of ministerial decisions made pursuant to decision-making powerscontained in environmental legislation.

FACTS

On April 13, 2010, WM initiated an Environmental Assessment process [EA] under theAct.WM had commenced an application for the expansion of their existing Ottawa WasteManagement Facility commonly known as the Carp Landfill. WM proposed to include anew landfill footprint at the West Carleton Environmental Center as well as recycling andcomposting facilities.

WM completed the first step in its application on June 18, 2010, when it submitted itsTerms of Reference document [ToR] to the Minister. The ToR provided the framework

for what information would be included in WMs EA. The City provided a number ofcomments and suggestions with respect to the ToR prior to its submission by WM to theMinister. The majority of the Citys comments were accepted by WM and it madechanges to its ToR in order to take into account those of the Citys comments which ithad accepted. Other comments as communicated to WM did not receive the sametreatment and did not result in substantive changes to WMs proposed approach to its EAto be completed as part of its application.


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WM then received the Ministry of Environments [MOE] approval to proceed with theEA on November 25, 2010. This approval followed the MOEs initial review of the ToRand amendments thereto to take into account MOE comments. By November 25, 2010,

the Minister had approved WMs ToR.

The EA was initiated in January 2011 and WM submitted the final EA to the MOE onSeptember 14, 2012. Over the five week consultation period which followed, the Citysubmitted numerous comments and concerns regarding the EA. The Citys comments andconcerns dealt with issues of odour control at the site, property value protection for thesurrounding areas, the service area for the proposed undertaking, site plan controlapproval, traffic, reporting, site capacity and landfill expansion. The City also proposed a

process for future project amendments and for the establishment of a public liaisoncommittee. WM replied to some of the Citys concerns and submitted an Amended EA tothe MOE on January 21, 2013.

The MOE proceeded to its review of the Amended EA as required by the Act. TheMOEs review was undertaken in order to conclude whether or not the Amended EA had

been prepared in accordance with the approved ToR, met the requirements of theActandwhether it contained sufficient information to allow the Minister to make a decision aboutthe proposed undertaking in light of the purposes of the Act.

The MOE Review provided an overview of the different comments received during theconsultation processes required by the Act. The MOE Review also identified some keyissues which were mostly constituted of comments and concerns from the City andmembers of the public. These key issues included: Groundwater protection; Odour

concerns Site; Capacity and Waste Diversion; the establishment of a Public LiaisonCommittee; the establishment of a Property Value Protection Plan; and, Traffic andService Area concerns. The MOE Review concluded that WM had provided adequateand satisfactory responses to all key issues and concluded that the EA submitted by WMwas prepared in accordance with the approved ToR and contained sufficient informationto assess the potential environmental effects of the proposed WM undertaking.

Being of the view that some of the environmental issues the City submitted relating to theEA were not properly addressed by WM and therefore were still outstanding followingthe MOE Review, an interested group delivered a request to the Minister that the MOEReview be brought on for a hearing before the Environmental Review Tribunal pursuant

to theAct.

On August 16, 2013, the Minister delivered his decision on the request for a hearing. TheMinister considered that a hearing before the Environmental Review Tribunal wasunnecessary in this case and rejected the request for a hearing.

On the same date and in the same decision the Minister delivered a Notice of Approval ofWMs application pursuant to section 9 of the Act. The Ministers Notice of Approval


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sets out what the Minister considered as the basis for his decision to approve WMsapplication to proceed with its undertaking as follows:

Having considered the purposes of the Environmental Assessment Act, theapproved Terms of Reference, the Amended Environmental Assessment, theMinistry Review of the Environmental Assessment and submissions received, Ihereby give approval to proceed with the Undertaking, subject to the conditionsset out below.1

Attached to the Notice of Approval were the Ministers reasons for approving theapplication for the proposed undertaking as well as five (5) pages of conditions whichWM is required to comply with and meet in order for it to proceed with its undertaking.

On August 28, 2013, the Lieutenant Governor signed Order in Council no. 1228/2013.

By the signature of the Order in Council, the Lieutenant Governor indicated hisconcurrence with the Minister and with Cabinet, and approved WMs application subjectto the Ministers conditions which were incorporated into the Order in Council byreference.

We understand from informal discussions with the Richardson Corridor CommunityAssociation [the RCCA]s lawyers that the RCCA believes that the Amended EAdelivered by WM and reviewed by the Ministry did not respect or comply with the ToRsubmitted by WM and approved by the Minister earlier in the application approval

process. We also understand from the RCCAs lawyers that the RCCA at this timebelieves that WMs failure to respect or comply with the ToR approved by the Minister

in the application process makes the August 16, 2013, decision unreasonable because theMinisters approval of the application can be argued as approving or glossing over WMsfailure to comply with the ToR approved by the Minister.

1 . August 16, 2013, Notice of Approval to proceed with the Undertaking. The Minister set out his reasonsfor his decision as follows: My reasons for giving approval are: (1) The proponent has complied with therequirements of the Environmental Assessment Act. (2) The Amended Environmental Assessment has been

prepared in accordance with the approved Terms of Reference. (3) On the basis of the proponent'sAmended Environmental Assessment and the Ministry Review, the proponent's conclusion that, on balance,the advantages of this undertaking outweigh its disadvantages appears to be valid. (4) No other beneficialalternative method of implementing the undertaking was identified. (5) The proponent has demonstratedthat the environmental effects of the undertaking can be appropriately prevented, changed, mitigated, or

remedied. (6) On the basis of the proponent's Amended Environmental Assessment, the Ministry Reviewand the conditions of approval, the construction, operation and maintenance of the undertaking will beconsistent with the purpose of the Environmental Assessment Act (section 2). (7) The government agency,

public and Aboriginal review of the Amended Environmental Assessment has indicated no outstandingconcerns that cannot be addressed through commitments made in the Amended Environmental Assessment,through the conditions set out below, or future additional approvals that will be required. (8) Thesubmissions received after the Notice of Completion of the Review was published are being dealt withthrough commitments made in the Amended Environmental Assessment, through the conditions set out

below, or future additional approvals that will be required. I am not aware of any outstanding issues withrespect to this undertaking which suggest that a hearing should be required.


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We understand that it is now suggested that the August 16, 2013, Ministerial decision asset out in the Notice of Approval and the August 28, 2013, Order in Council be judicially

reviewed and quashed on the basis that the Ministers decision, and indeed the Order inCouncil, are unreasonable decisions.

DISCUSSION

1. Judicial Review Generally

Any discussion about judicial review must begin with an understanding of the purpose ofjudicial review. The Courts function in a judicial review context is two-fold. First, theCourt seeks to control the legality of a decision made by an administrative decision-maker in order to ensure that the administrative decision-maker did not overstep the legal

authority granted to him to make the decision under review 2. Second, the Court seeks toensure the reasonableness and fairness of the administrative process which led to thedecision under review as well as its outcomes in light of the applicable legislative schemeand procedural guarantees. Both functions are completed simultaneously.

Judicial review cannot operate without a standard against which decisions byadministrative decision-makers are measured. The standard will guide when and how theCourts will intervene on judicial review to control the legality of the decision and of theadministrative process under review. The judicial review rationale and the determinationof the applicable standard of review is more plainly described by the Supreme Court ofCanada as follows:

Administrative powers are exercised by decision makers according to statutoryregimes that are themselves confined. A decision maker may not exerciseauthority not specifically assigned to him or her. By acting in the absence of legalauthority, the decision maker transgresses the principle of the rule of law. Thus,when a reviewing court considers the scope of a decision-making power or thejurisdiction conferred by a statute, the standard of review analysis strives todetermine what authority was intended to be given to the body in relation to thesubject matter. This is done within the context of the courts constitutional dutyto ensure that public authorities do not overreach their lawful powers.3

2 . Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; 2008 SCC 9, [hereinafter, Dunsmuir] at para. 28:By virtue of the rule of law principle, all exercises of public authority must find their source in law. Alldecision-making powers have legal limits, derived from the enabling statute itself, the common or civil lawor the Constitution. Judicial review is the means by which the courts supervise those who exercisestatutory powers, to ensure that they do not overstep their legal authority. The function of judicial review istherefore to ensure the legality, the reasonableness and the fairness of the administrative process and itsoutcomes.3 .Dunsmuir, at para. 29


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An administrative decision-makers decision is assessed against one of two (2) standards:correctness or reasonableness4.

The correctness standard, when applied, calls upon the court to consider whether theadministrative decision is correct in law. If the decision under review is not a correctdecision, then the court will intervene. While many legal issues attract a standard ofcorrectness, not all legal issues are to be reviewed on the correctness standard.

The reasonableness standard, when applied, calls upon the court to show deference to theadministrative decision-makers decision-making process and decision. Deference in thisregard imports respect for the decision-making process of adjudicative bodies with regardto both the facts and the law. Deference requires respect for the legislative choices set outin the governing statutes to leave some matters in the hands of administrative decision-makers, for the processes and determinations that draw on particular expertise and

experiences, and for the different roles of the Courts and administrative bodies within theCanadian constitutional system5. Perhaps more importantly, the reasonableness standarddoes not require that an administrative decision-maker made the legally correct decision;it is accepted that a reasonable decision will be a decision which falls within a range of

possible, acceptable outcomes which are defensible in respect of the facts and law6.

The reasonableness standard will generally apply to questions of fact, discretion andpolicy as well as to questions where the legal issues cannot be easily separated from thefactual issues7.

Previous jurisprudence is now a touchstone as to the determination of which standard of

review is applicable in any given case8. Where the question at issue is one of fact,discretion or policy, deference will usually apply automatically9. The same standard ofreasonableness will also apply to questions where the legal and factual issues areintertwined and cannot be easily separated10.Deference and the reasonableness standardwill usually result where an administrative decision-maker is interpreting its own statute

4 .Dunsmuir, at para. 455 .Dunsmuir, at para. 496 .Dunsmuir, at para. 47: Reasonableness is a deferential standard animated by the principle that underliesthe development of the two previous standards of reasonableness: certain questions that come beforeadministrative tribunals do not lend themselves to one specific, particular result. Instead, they may give riseto a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range

of acceptable and rational solutions. A court conducting a review for reasonableness inquires into thequalities that make a decision reasonable, referring both to the process of articulating the reasons and tooutcomes. In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process. But it is also concerned with whetherthe decision falls within a range of possible, acceptable outcomes which are defensible in respect of thefacts and law.7 .Dunsmuir, at para. 518 .Dunsmuir, at para. 549 .Dunsmuir, at para. 5310 .Dunsmuir, at para. 53


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or statutes closely connected with its function11. Considered more generally,administrative decision-makers decisions will be reviewed on the reasonablenessstandard and be given deference when consideration of the following factors point to a

standard of reasonableness:

The existence of a privative clause: this is a statutory directionfrom Parliament or a legislature indicating the need for deference.

A discrete and special administrative regime in which the decisionmaker has special expertise (labour relations for instance).

The nature of the question of law. A question of law that is ofcentral importance to the legal system . . . and outside the . . . specializedarea of expertise of the administrative decision maker will always attract

a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On theother hand, a question of law that does not rise to this level may becompatible with a reasonableness standard where the two above factors soindicate.12

2. The Applicable Standard in this Case

In order to determine the applicable standard of review in this case, we must consider thedecision rendered by the Minister and by the Lieutenant-Governor in Council in light ofthe Act, its purpose, the legislative scheme as a whole, the nature of the question beforethe Minister and the Lieutenant-Governor in Council, the Ministers expertise and

jurisprudence as to the applicable standard of review with respect to Ministerial decisionsto approve an application for an undertaking under theAct.

a) Purpose and Legislative Scheme

The Acts purpose is the betterment of the people of the whole or any part of Ontario byproviding for the protection, conservation and wise management in Ontario of theenvironment13. In order to achieve its purpose the Act sets out a scheme pursuant towhich every proponent who seeks to proceed with an undertaking within Ontario isrequired to apply to the Minister for his approval to proceed with the undertaking 14. A

proponent may not legally proceed with an undertaking it wishes to pursue unless the

Minister or the Environmental Review Tribunal approves the proponents application forthe undertaking15.

11 .Dunsmuir, at para. 5412 .Dunsmuir, at para. 5513 .Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 214 .Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(1)15 .Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(3)


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Proponents are required by the Act to prepare an application for the Ministersconsideration. The application to be prepared by the proponent consists of terms ofreference for an environmental assessment and of an environmental assessment which

relate to the proposed undertaking16.

The terms of reference are to be prepared by the proponent after consultation with suchpersons as may be interested in the proposed undertaking or its environmental impacts. Inaddition, the content of the terms of reference must comply with one of the contentrequirements set out disjunctively at section 6(2) of the Act 17.

The terms of reference to be prepared by the proponent are those terms which, if acceptedby the Ministry, will govern the preparation of the environmental assessment to becompleted by the proponent as part of its application18. The proponent must submit its

proposed terms of reference to the MOE19.The Actthen requires the Minister to approve

the proponents proposed terms of reference with such amendments as the Ministerconsiders necessary, if he or she is satisfied that an environmental assessment preparedin accordance with the approved terms of reference will be consistent with the purpose ofthis Act and the public interest20. The statutory language as to Ministerial approval ofthe proposed terms of reference indicates the legislatures intent to have the Ministerapprove terms of reference in circumstances where the Minister believes in his solediscretion that the environmental assessment to come based on the terms of reference will

be consistent with the purpose set out at section 2 of theActand the public interest. TheMinister is therefore required to consider competing and perhaps diverging interestswhen approving of terms of reference.

The approval of terms of reference by the Minister is the first decision in the processcontemplated by the Actfor the approval of a proposed undertaking which may have animpact on the environment.

The proponent must complete an environmental assessment following the Ministersapproval of the terms of reference. The environmental assessment must be prepared inaccordance with the approved terms of reference21, and must consist of the evaluationsand descriptions required by the Act22 unless the Minister has approved of terms ofreference which require information other than that required by the Act, but required by

16 .Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(2)17 . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5.1; ss. 6(1) and 6(2); See also, Sutcliffe v.Ontario (Minister of Environment), [2004] 72 O.R. (3d) 213; [2004] O.J. No. 3473 (Ont. C.A.) [Sutcliffe]18.Environmental Assessment Act, R.S.O. 1990, c. E.18,s. 5.119 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6(1)20 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6(4)21 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(1)22 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(2)


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the Minister23. In those cases, the environmental assessment must be prepared and set outthe information required by the Minister in the approved terms of reference.

The proponent delivers its completed environmental assessment to the MOE24, and theMOE then reviews the delivered environmental assessment in light of the approved termsof reference and the comments received from the public25. The review of theenvironmental assessment is not undertaken by the Minister but by the Director appointedunder the Act. The Director has the power to note deficiencies in the environmentalassessment in relation to the approved terms of reference and the purposes of the Actandmay give the proponent a fixed time-frame in which to remedy the deficiencies noted bythe Director26. If the proponent does not remedy the deficiencies to the Directorssatisfaction within the time provided by the Director to do so, then the Minister has theauthority and power to reject the environmental assessment which has been delivered bythe proponent27.

The Director provides a Notice of completion once the environmental assessment reviewis completed by the MOE. Any person may provide comments on the MOEs review ofthe environmental assessment before a decision is made as to approve or reject the

proponents application to proceed with the proposed undertaking28. In addition, anyperson may request that Minister refer the application necessarily including the terms ofreference, the environmental assessment, and the MOE review of the environmentalassessment to the Environmental Review Tribunal for a hearing and decision on theapplication29. The Minister may then decide, in his or her absolute discretion, to refer thedecision to approve or reject the proponents application to the Environmental ReviewTribunal or not30.

The Minister may decide to approve or reject the application if he does not refer aproponents application to the Environmental Review Tribunal for a hearing anddecision. The Ministers authority and the scope of his discretion in this regard are set outin section 9 of theAct, which reads as follows:

Decision by Minister9.(1)The Minister may decide an application and, with the approval of the

Lieutenant Governor in Council or of such ministers of the Crown as the LieutenantGovernor in Council may designate, the Minister may,

(a) give approval to proceed with the undertaking;

23 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(2) andSutcliffe24 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.2(1)25 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(1)26 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(4)27 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(6)28 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7.1(1) and ss. 7.2(2)29 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7.2(3)30 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 9.3(1) and (2)
http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s1


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(b) give approval to proceed with the undertaking subject to such conditions as theMinister considers necessary to carry out the purpose of this Act and inparticular requiring or specifying,

(i) the methods and phasing of the carrying out of the undertaking,

(ii) the works or actions to prevent, mitigate or remedy effects of theundertaking on the environment,

(iii) such research, investigations, studies and monitoring programs relatedto the undertaking, and reports thereof, as the Minister considersnecessary,

(iv) such changes in the undertaking as the Minister considers necessary,

(v) that the proponent enter into one or more agreements related to theundertaking with any person with respect to such matters as theMinister considers necessary,

(vi) that the proponent comply with all or any of the provisions of theenvironmental assessment that may be incorporated by reference in theapproval,

(vii) the period of time during which the undertaking or any part thereofshall be commenced or carried out; or

(c) refuse to give approval to proceed with the undertaking. 1996, c. 27, s. 3.

Basis for decision(2)The Minister shall consider the following matters when deciding an application:

1. The purpose of the Act.

2. The approved terms of reference for the environmental assessment.

3. The environmental assessment.

4. The Ministry review of the environmental assessment.

5. The comments submitted under subsections 6.4 (2) and 7.2 (2).

6. The mediators report, if any, given to the Minister under section 8.

7. Such other matters as the Minister considers relevant to the application. 1996,c. 27, s. 3.

Notice to proponent(3)The Minister shall notify the proponent of his or her decision and shall give the

proponent written reasons for it. 1996, c. 27, s. 3.Upon referral from the Minister, the Environmental Review Tribunals authority anddiscretion with respect to a decision on an application is set out in the Actas follows andis differes substantively from the grant of authority provided to the Minister:

Referral to Tribunal9.1(1)The Minister may refer an application to the Tribunal for a decision. 1996,

c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6).
http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s2http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s3http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s1http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s3http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9s2


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Powers of the Tribunal(2)The Tribunal may make any decision the Minister is permitted to make under

subsection 9 (1). 1996, c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6).

Basis for decision

(3)The Tribunal shall consider the following things when deciding an application:

1. The purpose of the Act.

2. The approved terms of reference for the environmental assessment.

3. The environmental assessment.

4. The Ministry review of the environmental assessment.

5. The comments submitted under subsections 6.4 (2) and 7.2 (2).

6. If a mediators report has been given to the Minister under section 8, anyportion of the report that has been made public. 1996, c. 27, s. 3; 2000, c. 26,

Sched. F, s. 11 (6).

Same(4)The decision of the Tribunal must be consistent with the approved terms of

reference for the environmental assessment. 1996, c. 27, s. 3; 2000, c. 26, Sched. F,s. 11 (6).

Despite having referred the application to the Environmental Review Tribunal for adecision, the Minister may nevertheless review the Environmental Review Tribunalsdecision on an application and, with the Lieutenant Governor in Councils approval, maysubstitute his decision for that of the Environmental Review Tribunal31.

TheActitself prohibits a person from proceeding with an undertaking in a manner whichis not consistent with a condition imposed by the Minister for proceeding with it 32.

c) Privative Clause

Section 23.1 of the Actsets out that, subject to the Ministers authority to review andsubstitute his decision to that of the Environmental Review Tribunal, a decision of theEnvironmental Review Tribunal under the Act is final and not subject to appeal. Moreimportantly, section 23.1 of the Actsets out that a decision of the Environmental ReviewTribunal shall not be set aside in an application for judicial review or in any otherproceeding unless the decision is patently unreasonable

33.

Section 23.1 of the Act is considered as a privative clause in law and indicates thelegislatures intent that the Courts should show significant and near total deference to anEnvironmental Review Tribunal decision on an application.

31 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 11.2(1)32 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 5(4)33 .Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 23.1
http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s2http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s3http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s4http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s4http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s3http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90e18_f.htm#s9p1s2


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There is no similar privative clause in the Actwith respect to a Ministerial decision on anapplication.

d) Nature of the Question

A Ministerial decision to approve an application for an undertaking pursuant to the Actrequires that the Minister consider the purpose of the Act, the public interest, and othermore technical requirements involved in environmental assessments, mitigation measuresand public policy inherent in environmental protection decision-making. Making thedecision to approve an application therefore calls for particular expertise. There ought to

be no suggestion in this case that the Minister, aided by the MOE staff, themselveshaving specialized expertise, is not a specialized administrative decision-maker in thecontext of decision-making pursuant to the Act.

In this case, the Ministers authority to make a decision on an application iscircumscribed by section 9 of the Act and more particularly by subsection 9(2).Subsection 9(2) sets out those matters which the Minister is required to consider whendeciding whether or not to approve an application. Paragraph 9(2)7. of the Actprovidesthat, aside from those other factors specifically set out in paragraphs 9(2)1. to 6., theMinister shall consider such other matters as the Minister considers relevant to theapplication.

It follows that the nature of the question before the Minister when he makes a decisionwith respect to an application for approval for an undertaking pursuant to the Act afterhaving approved terms of reference for an environmental assessment and after the

environmental assessment has been reviewed by the Ministry is not a pure question oflaw, is a question primarily based in fact, and engages Ministerial discretion arising fromthe Ministers expertise in environmental protection matters.

3. The Standard of Review Applicable in this Case

We have not located any contemporary jurisprudence which sets out the standard ofreview applicable to a Ministerial decision made pursuant to section 9 of the Act as itcurrently reads. There is, however, a relatively recent decision from the Ontario Court ofAppeal which speaks more generally to the standard applicable to a judicial review of aMinisterial decision under theActduring the application process.

In Sutcliffe v Ontario (Minister of the Environment)34, the Ontario Court of Appealconsidered the standard of review applicable to a Ministerial decision approving terms ofreference pursuant to subsections 6(4), 6(1) and 6(2) of the Act. At issue was whether theMinisters decision to approve terms of reference which contained terms other than thoseset out in the presumptive terms of reference content set out in paragraphs 6(2)(a) and (b)

34 .Sutcliffe, supra, at note 17


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of the Act was a lawful decision. The decision-making authority at issue on the appealwas structurally similar to the section 9 and subsection 9(2) decision-making power atissue in this matter because of the discretion afforded the Minister pursuant to subsection

6(4) of theAct35.

The Court of Appeal held that, [g]iven the broad purpose of the Actand the diversity ofmatters that may be of concern to the public, the Minister's decision in approving termsof reference calls for a balancing of a multiplicity of factors and interests. Someflexibility may well be needed to meet those objectives [as set out in theAct]36.

After a review of nature of the question, the overall scheme of the Actand the expertiseof the Minister as a decision-maker, the Court of Appeal held as follows:

[26] Determining what information will be necessary for an environmental

assessment to meet the purpose of the Act and the public interest will varygreatly depending on the nature of the undertaking. It is a contextual exercise thatrequires the Minister to assess and weigh the often competing technical andpublic policy considerations inherent in the protection of the environment. Thiscalls for a particular expertise. The Minister deals with environmental issuesdaily and is assisted by Ministry staff with that specialized expertise. There is noreal dispute between the parties that the Minister's decision to approve the termsof reference, if otherwise permissible under the Act, is entitled to the highestlevel of deference. A court will set it aside only if it is patently unreasonable.

[27] The issue is whether the same standard should apply on the question ofstatutory interpretation. In my view, the Minister's expertise also informs the

interpretation of the provisions in question on this appeal. As between thecourts and the Minister, the Minister is in a far better position to ascertain

whether the generic elements must be present in all environmental

assessments in order to be consistent with the purpose of the Act and the

public interest. It requires an understanding of environmental policy, of the

mechanics of environmental assessments, and of what factors are more or

less important in certain kinds of undertakings as opposed to others. It is nota pure question of law.

[28] Hence, on the question of statutory interpretation, assuming that it isappropriate to consider it separately, some level of deference should be affordedto the Minister's interpretation. I would conclude that the middle ground,

reviewing the Minister's interpretation on a reasonableness standard, is the

35 . Subsection 6(4) of the Actprovides that: The Minister shall approve the proposed terms of reference,with any amendments that he or she considers necessary, if he or she is satisfied that an environmentalassessment prepared in accordance with the approved terms of reference will be consistent with the purposeof this Act and the public interest. Subsection 9(2) of the Actprovides that the Minister must consider the

purpose of the Act, which includes the public interest, and such other matters as the Minister considersrelevant to the application..36 .Sutcliffe, at para. 21.


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appropriate balance to strike. In applying this standard, I have no hesitation infinding that the Minister's interpretation of the Act, as allowing a tailoring ofterms of reference to suit the circumstances of the undertaking, is reasonable.

Hence, it was open to the Minister to consider the terms of reference submittedby CWS37.

The Sutcliffedecision establishes that the Minister has particular expertise and is in a farbetter position than the courts in understanding environmental policy and the factors thatare more or less important in certain kinds of undertakings. Perhaps more importantly,the Court of Appeal accepted that if the Minister has the power to make a decision underthe Act, then that decision is to be afforded deference. The Court of Appeals finding inthis regard is consistent with the pre-Dunsmuirjurisprudence which held consistently thatreviewing courts should adopt a deferential approach to discretionary Ministerialdecisions and should set aside a Ministers discretionary decision if it is patently

unreasonable in the sense that it was made arbitrarily or in bad faith, cannot be supportedon the evidence, or if the Minister failed to consider the appropriate factors in making hisdecision. The Courts should not reweigh the factors or interfere merely because theywould have come to a different conclusion38.

In this matter the main complaint is that the Minister did not take into account or did notsufficiently take into account whether the environmental assessment complied or wasconsistent with the terms of reference approved by the Minister at the outset of theapplication process. It is contended that the Minister therefore acted beyond his statutorygrant of authority to approve an application. A potential sub-complaint would be that theMinister became satisfied that the application should be approved because WM providedvarious undertakings to act in the future rather than in strict compliance with the amendedToR.

In our view, subsections 9(2) and 9.1(4) of the Actprovide the answer as to whether ornot the Minister had the authority to approve of an application in the currentcircumstances. As will appear, the legislature has seen fit to require that a decision toapprove an application be consistent with the approved terms of reference for theenvironmental assessment when the Environmental Review Tribunal makes the decisionto approve the application, but no similar requirement is provided with respect to adecision by the Minister.

As reproduced above, subsections 9(2) and 9.1(4) of the Act provide both the Minister

and the Environmental Review Tribunal with the authority to decide an application.Subsection 9.1(2) of the Act clarifies that the Environmental Review Tribunal isempowered to make any decision the Minister is permitted to make on an application.

37 .Sutcliffe, at paras. 25 to 2738 .Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para. 29;Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, among others


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The legislated bases for the decisions to be made by either the Minister or theEnvironmental Review Tribunal contain nearly identical language with a nearly identicallist of factors which are required to be considered by either in their decision-making, save

and except that the Minister, pursuant to paragraph 9(2)7. of the Actshall consider suchother matters as the Minister considers relevant to the application in making hisdecision. The Environmental Review Tribunal has no similar discretionary power.

More importantly in this matter, pursuant to subsection 9.1(4) of the Act, theEnvironmental Review Tribunals decision on an application must be consistent with theapproved terms of reference for the environmental assessment. There is no similarrequirement for a decision on an application by the Minister pursuant to subsection 9(2)of theAct.

Applying the implied exclusion rule of statutory interpretation39 along with the

presumption that the legislature does not make mistakes in legislative drafting, itbecomes apparent that the legislature did not intend to require the Ministers decision toapprove an application pursuant to section 9 of the Actto necessarily be consistent withthe approved terms of reference. The Minister therefore has discretion in such regard

provided that the Minister did otherwise consider the approved terms of reference asrequired by paragraph 9(2)2. of theAct.

It bears mentioning that the MOE compiled a detailed 10-page table setting out therequirements of the Actand the ToR as well as its analysis of the EAs satisfaction ofthose requirements and attached the same to its Review. The MOE also recognized in itsReview of the Amended EA that:

Ministry staff noticed that there were commitments made in the approved ToRthat were not adequately met in the EA that was submitted on September 14,2012. In response to the concerns raised, WM amended its EA to ensure that itmet the requirements of the approved ToR. The Amended EA was submitted tothe Ministry on January 23, 2013, and posted to WMs website on February 22,2013. The ministry has reviewed the revisions and concluded that the AmendedEA followed the framework set out in the approved ToR, addressed thecommitments made in the ToR, and demonstrated how the requirements of theEAA were met40;

The ministry is satisfied that the consultation carried out meets the requirementsof the EAA and is in accordance with the approved ToR. 41;

39. Sullivan, Ruth,Driedger on the Construction of Statutes, 3rd Ed., 1994, Butterworths, at pages 168-171.The implied exclusion rule is also known as the expressio unius est exclusio alterius rule of statutoryconstruction.40 . Ministry Review of the Environmental Assessment for a New Landfill Footprint at the West CarletonEnvironmental Centre, Review prepared pursuant to subsection 7(1) of the Environmental Assessment Act,R.S.O. 1990, Province of Ontario by the Ministry of the Environment, Environmental Approvals Branch[the MOE Review], at page 9, section 3.1.141 . MOE Review, at page 15, section 3.1.3


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The ministry is satisfied that the Amended EA was completed in accordancewith the approved ToR and meets the requirements of the EAA 42;

The ministry is satisfied that WM has meet the requirements of the ToR andEAA for the components of the Amended EA raised in sections 3.3.1 above [keyissues], as well as those raised in Tables 1 and 243; and,

This Review concludes that the Amended EA complies with the requirements ofthe approved ToR and has been prepared in accordance with the EAA. TheAmended EA has provided sufficient information to enable a decision to be madeabout the application to proceed with the undertaking.44

It is apparent from the Ministers reasons for his decision that he was alive, attentive, orsensitive to the public interest, the challenges of the situation, and the comments received

by the MOE throughout the process. The Minister set out the basis why he made the

decision he made; the bases identified taken together suggest that the Minister exercisedhis power in accordance with the Actand that the conclusions he reached are within therange of acceptable outcomes45,particularly in light of the MOE Review conclusions andanalysis. In addition, the reasons set out by the Minister in his decision serve as the

justification for the decision rendered in a transparent and intelligble fashion. TheMinisters decision, in our view, satisfies the inquiry mandated by a reasonablenessstandard of review46.

A key feature in this case which also points to the application of the reasonablenessstandard of review is that the Ministers discretion to make a decision on an applicationunder section 9 of the Act requires that the Lieutenant Governor in Council approve of

the Ministers decision on an application47

. The requirement of Lieutenant Governor in

42 . MOE Review, at page 18, section 3.2.243 . MOE Review, at page 24, section 3.2.244 . MOE Review, at page 25, Summary of the Ministry Review45. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011SCC 62, [2011] 3 SCR 708, at paras. 16 and 17: [16] Reasons may not include all the arguments, statutory

provisions, jurisprudence or other details the reviewing judge would have preferred, but that does notimpugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to itsfinal conclusion (Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses

Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow thereviewing court to understand why the tribunal made its decision and permit it to determine whether theconclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [17] The fact thatthere may be an alternative interpretation of the agreement to that provided by the arbitrator does notinevitably lead to the conclusion that the arbitrators decision should be set aside if the decision itself is inthe realm of reasonable outcomes. Reviewing judges should pay respectful attention to the decision-makers reasons, and be cautious about substituting their own view of the proper outcome by designatingcertain omissions in the reasons to be fateful.46 .Dunsmuir,at para. 4747 .Environmental Assessment Act,subsection 9(1)


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Council approval underscores the public interest and policy dimension of the section 9Ministerial decision to approve of an application, either with or without conditions.

Based on the foregoing, therefore, it is our view that the reasonableness standard wouldapply to the Ministers August 16, 2013, decision at issue, and that a reviewing courtwould show considerable deference to the Ministers decision in the currentcircumstances.

It is also our view that a reviewing Court would not consider a Ministers and aLieutenant Governor in Councils decision to approve an application with conditions inthe face of an alleged absence of consistency between the approved terms of referenceand the environmental assessment as being a non defensible decision which falls outsidea range of possible, acceptable outcomes considering the facts and the law.

Finally, it follows in our view that a judicial review of the Ministers August 16, 2013,decision and of the August 28, 2013, Order in Council approving of the same on the basisof a failure to require consistency between the approved terms of reference and theenvironmental assessment would in all likelihood be unsuccessful.

4. Specific Questions

In this section, we shall set our reasoning and analysis relevant to the questions you haveasked us to answer.



Judicial review applications are governed by the JPPA and Rules 38 and 68 of theRulesof Civil Procedure.

An application for judicial review is commenced by the issuance and service of anApplication for Judicial Review pursuant to the JPPA and Rules 38 and 68 of theRules ofCivil Procedure. If the Application is served upon the tribunal or decision-makers whosedecision is to be reviewed, then that decision-maker has 30 days within which to file itsrecord of proceedings in which the decision was made. The applicant then has 30 daysfollowing the date of the filing of the decision-makers record to file its ApplicationRecord and Factum. The respondents then have 30 days within which to file their

Application Record and Factum. Once these records and facta have been filed, theapplicant is required to deliver a certificate of perfection and the application is thereafter

placed on the hearing list.


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There is no prescribed limitation period or maximum time frame within which anApplication for Judicial Review is required to be commenced48. That said, undue delay

between the date of the decision to be reviewed and the date of commencement of the

application and its subsequent perfection constitutes a reason for the court to decline toexercise its discretion to grant a remedy. When considering delay in an Application forJudicial Review, the court considers the length of the delay, whether there is a reasonableexplanation for the delay, and whether any prejudice has been suffered by the respondentor a third party as a result of it.

2. What are the probabilities of success of an application for judicial

review?

In light of our analysis of the standard of review applicable to this case and consideringthe decision rendered, it is our view that the probabilities of success of an application for

judicial review of the Ministers August 16, 2013, decision and the August 28, 2013,Order in Council are quite low. Our opinion is that an application for judicial review

based on the alleged non-compliance with the approved ToR in this case will in alllikelihood be unsuccessful.



The direct financial risks to the City should it initiate an Application for Judicial Reviewin this case are best expressed by the Citys exposure to costs in the event that it is notsuccessful as well as its out-of-pocket costs relating to its own legal representation in the

matter.

Costs of proceedings are always in the discretion of the Court, but the general rule is thatthe losing party pays the costs of the other parties as fixed by the Court. The Courtsdiscretion in fixing costs exercised with regard to the factors set out in Rule 57.01 of theRules of Civil Procedure as well as the overarching principle of reasonableness whichconsiders the reasonable expectations of the parties regarding the costs they could beordered to pay if it was unsuccessful.

Assuming that the Minister of the Environment, the Attorney General for Ontario andWM will likely be necessary parties, the losing party can reasonably be expected to beordered to pay those costs incurred by the responding parties as fixed by the Court.

Although such costs are difficult to estimate in the current situation given the number ofvariables which must be considered in the course of a proceeding, it would not beunrealistic to assume that the costs incurred and susceptible to be ordered payable by theunsuccessful party would be costs incurred in relation to:

48 . Solidwear Entreprises Ltd. v. Union of Needletrades, Industrial & Textile Employees (Unite), Local219, 2006 CanLII 2184 (Ont. Div. Crt.), at para. 4


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a) The preparation of application records;

b) A detailed and meticulous review of the Ministers record of the

proceeding, as filed;

c) The research and preparation of cogent and insightful facta for use on thehearing before the Divisional Court;

d) Consultations with environmental experts on a number of different issuesin order to support arguments that the Ministers decision was notreasonable on the basis of the facts and the evidence which was before theMinister;

e) The initiation and argument of a motion to determine the scope of the

Ministers participation in the argument of the application;

f) Preparation for argument; and,

g) If necessary, an appeal to the Ontario Court of Appeal.

We would expect that the Minister could be expected to incur partial indemnity costs inthe $ 20,000 to $ 40,000 range, that WM would incur partial indemnity costs in the $40,000 to 75,000 range, and that other parties, depending on the nature and degree ofinvolvement in the proceeding, could well incur partial indemnity costs in the $ 15,000 to$ 50,000 range. The Citys likely costs of legal representation as applicant would likelyfall within the $ 50,000 to $ 100,000 range. As a result, it is not unreasonable to expect

that the combination of a potential costs order as well as own representation costs couldexpose the City to a financial risk of $ 125,000 to $ 265,000.

CONCLUSIONS

Based on the foregoing, our short answers to the questions for which you have sought ouropinion are as follows:



A: An Application for Judicial Review is initiated by the commencement of aproceeding before the Divisional Court. There is no fixed time frame withinwhich the Application is required to be commenced after the date of the decisionto be reviewed, but delay in proceeding in a timely manner may lead to the courtto refuse to grant a remedy. Most lawyers will recommend commencing anapplication within 30 days of the date of the decision to be reviewed or of the dateat which the decision came to the applicants attention, whichever is the latest. A


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delay greater than 6 months after the date of the decision to be reviewed wouldlikely be considered as undue in the circumstances.

2. What are the probabilities of success of the application for judicialreview?

A: Our opinion is that an application for judicial review based on the allegednon-compliance with the approved ToR in this case will in all likelihood beunsuccessful. We consider the probabilities of success in such a proceeding to bequite low.



A: The Citys direct and reasonably foreseeable financial risks would bemeasured by the costs it could be ordered to pay to the successful parties if it isunsuccessful, as well as its own financial cost for the matter. It is notunreasonable to expect that the combination of a potential costs order as well asown representation costs could expose the City to a financial risk of $ 125,000 to$ 265,000.

Please feel free to contact the undersigned should you have any questions or commentswith respect to the foregoing.

Yours very truly,

Heenan Blaikie LLP

Benoit M. DuchesneMember of the Quebec and Ontario Bars

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