Under the Environmental Bill of Rights (EBR), you can appeal (i.e., challenge) government decisions about certain instruments (e.g., licences, permits and other approvals) that may affect the environment. (You cannot appeal government decisions on laws, regulations or policies.)

However, you must first get permission (i.e., seek leave) from the appropriate appellate body – usually the Environmental Review Tribunal – to appeal the decision. The appellate body will decide whether to allow you to appeal. Note: you must seek leave to appeal within 15 days after the decision is posted on the Environmental Registry. This deadline cannot be extended.

Ontarians have sought permission to appeal more than 175 decisions. For example, Ontarians have requested leave to appeal:

  • A water-taking permit issued to the developers of a subdivision in Ottawa
  • An approval granted to a cabinet maker in Hamilton to discharge pollutants into the air
  • Amendments to a landfill’s approval to add a gas flare, a temporary flare, and an expanded well field to its operations

Even when leave was denied, some requests to appeal have prompted improvements in ministry attention and corporate conduct.

To Seek Leave to Appeal:
  • You must show that you have an “interest” in the decision. For example, you may live near the place that the decision applies to, or you may have commented on the original proposal to issue the instrument.
  • Not every decision on an instrument is eligible for appeal. The Environmental Registry notice will tell you if it is.
  • You must seek leave to appeal a decision within 15 calendar days after the ministry places the decision on the Environmental Registry. This deadline cannot be extended.
  • Appealing a ministry decision on an instrument takes time, money and expertise, and you may want to hire a lawyer.

 

The tribunal considers the following two questions in deciding whether to allow you to appeal:

  • Is there good reason to believe that no reasonable person, having regard to the law and any relevant government policies, could have made the decision?
  • Could the decision being appealed result in significant harm to the environment?

If the tribunal gives you permission to appeal, the appeal itself will follow.

For more information on how you can request permission to appeal a decision, see our detailed instructions, our EBR guidebook, or contact our office.

Detailed Instructions on How to Seek Leave to Appeal

Under the Environmental Bill of Rights (EBR), five ministries must classify instruments – the permits, licences or environmental compliance approvals they issue to proponents such as industrial facilities – according to their environmental significance. This classification determines which instrument proposals are posted on the Environmental Registry, the level of public participation that may be required when making decisions about instruments, and whether they are subject to EBR processes such as review, investigation and appeal.

The following five ministries administer instruments prescribed (classified) under the EBR:

  • The Ministry of Consumer Services (MCS);
  • The Ministry of the Environment and Climate Change (MOECC);
  • The Ministry of Municipal Affairs and Housing (MMAH);
  • The Ministry of Natural Resources and Forestry (MNRF); and
  • The Ministry of Northern Development and Mines (MNDM).

The EBR gives you, as a member of the public, the right to seek leave to appeal (challenge) ministry decisions on Class I and II instruments. This is called the “third-party” appeal process. You are the “third party”; the proponent (instrument holder) and the ministry are considered the “first” and “second” parties, respectively.

Appealing a ministry decision on an instrument can take time, money and expertise, and you may wish to hire a lawyer The Law Society of Upper Canada’s “Law Society Referral Service” can provide you with the names of Ontario lawyers who practise environmental law. You can learn more about the Law Society Referral Service at www.lsuc.on.ca, or by calling 1-416-947-3330 or 1-800-268-8326.

Exercising your Third Party Appeal Rights

In most cases, you must first ask for “leave” (i.e., permission) to appeal a ministry decision from the proper appellate body—usually the Environmental Review Tribunal (ERT) or, for Planning Act and Aggregate Resources Act matters, the Ontario Municipal Board (OMB). (There is one exception: leave is not required for third parties to appeal decisions about Renewable Energy Approvals issued under the Environmental Protection Act. For more information, see “Third Party Appeals of Renewable Energy Approvals.” These are not governed by the EBR or the ECO.)

To apply for leave to appeal a ministry decision on an instrument under the EBR, you have to be able to show:

a) that you have an “interest” in the decision (for example, you may live near the facility to which the instrument was issued, or you may have commented on the original proposal to issue the instrument). This is generally a low threshold to meet.

and

b) that the proponent could appeal this decision under another law (for example, you may seek leave to appeal a decision to issue an environmental compliance approval for a waste disposal site because the waste management company to whom the approval was issued has a right under the Environmental Protection Act to appeal the decision). The instrument decision notice on the Environmental Registry will always tell you whether or not a third party may seek leave to appeal the decision.

Because each appellate body is different, you should contact the applicable appellate body (e.g., the Environmental Review Tribunal or the Ontario Municipal Board) for information about its procedures before you begin; the appellate body will be listed on the decision notice posted on the Environmental Registry.

The Leave to Appeal Process

1. You must seek leave to appeal a decision within 15 calendar days after the ministry places the decision on the Environmental Registry (e.g., if a decision notice is posted on the Environmental Registry on April 1, your application for leave to appeal must be received by the ERT by April 16). If the 15th day falls on a weekend or a holiday, it must be received by the first business day that follows. This deadline is very short, but it cannot be extended.

If your appeal is to the Environmental Review Tribunal and you are unable to submit all of the required information within the 15-day deadline, submit as much of your application within the 15 days and request additional time to file the additional information. Then follow the Tribunal’s directions. Usually, the Tribunal will permit you to submit some additional supporting information late, but the scope and nature of the proposed appeal must be filed within the 15 days.

In your application, make sure you include:

a) A copy of the instrument you are appealing (a link to the instrument may be provided in the decision notice on the Environmental Registry; if not, a copy can be obtained from the ministry that issued the instrument);
b) A statement explaining your interest in the decision;
c) A statement of all facts (grounds) that you are relying on for the appeal;
d) A statement explaining why you think your appeal passes both parts of the basic test for leave to appeal:

i. that there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and
ii. that the decision could result in significant harm to the environment;

e) Copies of any supporting documents that you are relying on for your appeal;
f) A statement describing the portions of the instrument that you wish to challenge in the appeal hearing;
g) A statement describing the relief (e.g., outcome of the appeal) that you are seeking; and
h) Your contact information where you can be reached during business hours.

3. You must send your application for leave to appeal to:

  • The appellate body (e.g., the Environmental Review Tribunal); and
  • The company or proponent to whom the instrument was issued (the “instrument holder”); and
  • The ministry official who issued the instrument; and
  • The Environmental Commissioner of Ontario.

Make sure that all these copies are delivered on time.

The Environmental Commissioner will then place a notice of your leave to appeal application on the Environmental Registry. If your application is incomplete, the appellate body will send a letter explaining the deficiencies. The appellate body may dismiss the leave application unless the deficiencies are corrected within the time frame provided.

4. The appellate body will consider the following two questions in deciding whether to grant leave (permission) to appeal:

  • Is there good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision?; and
  • Could the decision being appealed result in significant harm to the environment?

5. Lawyers for the ministry and the proponent will be invited to respond to your application and asked to put forward arguments as to why you should not be granted leave to appeal. If these responses raise new issues and involve new evidence, you may be permitted to reply.

6. Generally, the appellate body will decide on your application within 45-60 days, unless there are unusual circumstances. Leave applications are almost always decided based only on the written materials, without an in-person hearing.

7. If the appellate body finds that you have not met the EBR test for leave to appeal, it will dismiss your application. This is a final decision (i.e., there is no right to appeal a leave decision).

8. If the appellate body finds that you have met the EBR test for leave to appeal, it will allow you to proceed with your appeal. In that case, the ministry’s decision will be “stayed” (put on hold) until the appeal is decided, unless the appellate body orders otherwise.

9. If you obtain leave to appeal, you will then need to file a complete Notice of Appeal by the deadline specified by the appellate body. The appeal process itself is typically a multi-stage process involving procedural orders, an oral hearing, cross-examination of witnesses and legal argument. Learn more about the appeal process.

10. After hearing the appeal, the appellate body may:

  • uphold the ministry’s decision;
  • overturn the ministry’s decision; or
  • decide if new conditions should be added to the ministry’s original decision

Please note that each appellate body has different decision-making powers. If you are seeking leave to appeal a decision to the Environmental Review Tribunal, you should carefully review the ERT’s guidance document, “A Guide to Applications for Leave to Appeal under the Environmental Bill of Rights, 1993” and the ERT Rules. You or your lawyer should also review previous ERT decisions that are relevant to your case.

Third Party Appeals of Renewable Energy Approvals

As with many other instruments issued under the Environmental Protection Act (EPA), the Ministry of the Environment and Climate Change is required under the Environmental Bill of Rights (EBR) to give notice of proposals and decisions about Renewable Energy Approvals (REAs)—e.g., approvals of certain wind, solar and bioenergy projects—on the Environmental Registry.

However, there is a separate set of rules for third party appeals of REAs: under the EPA, any resident of Ontario has a right to appeal a ministry decision about a REA without first seeking leave from the appellate body. Unlike instrument appeals under the EBR, though, a REA appeal is only permitted on the following limited grounds – that engaging in the renewable energy project in accordance with the REA will either:

  • cause serious harm to human health; or
  • cause serious and irreversible harm to plant life, animal life or the natural environment.

If you cannot persuade the Environmental Review Tribunal (ERT) that one of these grounds has been met, the Environmental Review Tribunal will dismiss your appeal and confirm the ministry’s decision to issue the REA. Most REA appeals have been unsuccessful.

If you are considering appealing a REA, you should consult the Environmental Review Tribunal’s guidance document, “A Guide to Appeals regarding Renewable Energy Approvals under section 142.1 of the Environmental Protection Act” and the ERT Rules.

Notices of REA appeals are posted on the Environmental Registry.

Success Stories

Challenging the Approvals of a Cement Plant to Burn Tires, Bones and other Wastes

Mark Mattson

In 2006, the Ministry of the Environment and Climate Change issued approvals to Lafarge Canada Inc. to burn tires, bone meal, plastics and other wastes at its cement plant in Bath, west of Kingston. Concerned about potential air, water and human health impacts, in January 2007, members of the rock band The Tragically Hip and several environmental organizations (Lake Ontario Waterkeeper, Clean Air Bath, and the Loyalist Environmental Coalition) sought – and won – the right to appeal the approvals. Lafarge, however, challenged the Environmental Review Tribunal’s decision to proceed to a hearing. The company and the ministry argued that the ministry’s decision to issue approvals was reasonable and did not require a consideration of its Statement of Environmental Values (SEV) – which includes such concepts as the precautionary principle and cumulative effects. The courts rejected these arguments.

Because these Ontarians exercised their environmental right to seek leave (permission) to appeal Lafarge’s approvals, in the end the cement plant did not go ahead with its plan to burn tires and other wastes as fuel. More importantly, the courts made clear that ministries must consider their SEVs when issuing approvals, permits and other instruments prescribed under the Environmental Bill of Rights.


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