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Friday, August 21, 2015

Timelines to appeal Ontario environmental orders are strict - miss the deadlines at your peril

Another decision of the Environmental Review Tribunal ("ERT") has confirmed that the process and deadlines for appealing orders made by Provincial Officers are strict; failure to comply with the process and deadlines means that the ERT has no jurisdiction to hear an appeal.

In a July, 2015 decision, the ERT dismissed a proposed appeal on the basis that the proceeding related to matters outside the jurisdiction of the ERT (Rule 119).  A Provincial Officer with the Minister of the Environment and Climate Change ("MOECC") had issued an Environmental Protection Act ("EPA") order on May 13, 2015 against the appellant.  On June 3, 2015, the appellant wrote to the ERT to appeal the order.

Under the EPA, a person may seek the review of a Provincial Officer's order to be conducted by the MOECC Director (one step above the Provincial Officer); the request must be made within seven days of the order.  It is only the decision of the Director on the review that can then be appealed if necessary to the ERT.  In the case commenced before the ERT in June, no written request directly to the Director for a Director's review had been made.  There was evidence that the appellant had made an oral request for the review to the Provincial Officer and that the appellant's lawyer had then written to the Provincial Officer to request an "indulgence with respect to the timelines in the Provincial Officer's Order."

Before the ERT, the appellant argued that it had effectively requested a Director's review of the Provincial Officer's Order (through the oral request followed by the written request for an indulgence, although both requests were made to the Provincial Officer).  Alternatively, the appellant argued that the information sheet on the review process provided by the Provincial Officer was vague and misleading and led to an assumption that, if a review was not requested within seven days, the Provincial Officer's Order would be deemed to be confirmed by the Director.  Under the EPA, if a request for a review is made and no decision is issued by the Director within seven days, the Director is deemed to have confirmed the Provincial Officer's Order (and that deemed decision can be appealed to the ERT). 

An appeal to the ERT from the Director's order or decision (deemed or otherwise) must be commenced within 15 days of the date on which the appellant was served with the Director's Order (or the date on which it was deemed to have been made).  There is provision for the ERT to extend the time for appealing, but only where, "in the Tribunal's opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision."  

Where there was no Director's decision at all, there is no jurisdiction for the ERT to hear an appeal whether it was filed on time or not.  In the recent case, the ERT ruled that the written request for an indulgence cannot be considered a written confirmation of the oral request for a review that was made by the appellant to the Provincial Officer.  The EPA allows for an oral request followed-up by a written confirmation, but the written confirmation must be sent to the Director.  Further, the written follow-up in this case did not include other information required by the EPA (e.g. details of the order to be reviewed).  The ERT concluded that there was no deemed confirmation of the Provincial Officer's Order by the Director and, therefore, there was no Director's order or decision that could be appealed to the ERT.

This decision, like many before it, confirms that the environmental legislation in Ontario (the EPA and the Ontario Water Resources Act) provides very narrow windows of opportunity to appeal orders made by Provincial Officers.  If an order is issued to you and you wish to dispute it, do not delay in seeking legal advice and requesting a review in the manner required by the legislation.  Miss the deadlines and you lose your right to appeal.

Read the decision at: COX FARMS LTD. V. ONTARIO (MOECC).

Monday, August 10, 2015

BC Landowner's nuisance claim dismissed - insufficient interference by water from municipal lands

A BC landowner sued his municipality over drainage runoff, seeking both damages and an injunction requiring the municipality to take "immediate and effective action to stop the flow of water onto his property."  In 2002, the municipality approved the development of 68 townhomes by a developer adjacent to and north of the landowner's property.  As a condition of the development, a greenway was granted to the municipality running between the properties (including a gas pipeline right of way and an asphalt walkway).

The landowner alleged that prior to the development, there was a watercourse between one and three feet deep running in the location of the greenway.  The developer was permitted to fill in this watercourse resulting in the loss of the drainage route and periodic flooding on the landowner's property to the south (3.67 acres).

The municipality responded that the surface ponding of water on the landowner's property was a natural and pre-existing feature given the location of the property at the toe of a slope, its proximity to the water table, and the impermeable condition of its soils.  Also, the municipality argued that any additional water flowing onto the landowner's property was so minor in volume that it did not constitute a substantial interference with the landowner's use or enjoyment of his property.

On review of the evidence, the BC Supreme Court was unable to accept the landowner's contention that water was never a problem on his property prior to the development.  The Court found that the landowner exaggerated the extent of the water problems suffered since the development.  Also, the water table underlying his property was high and the soil was "fairly impermeable".

The Court concluded that any water coming onto the landowner's property did not meet the test of a claim in nuisance - that it resulted in a substantial and unreasonable interference with his use or enjoyment of the property or that there was sufficient physical damage to the land.  The landowner's property was a "holding property, awaiting development", and the consequences from increased water were minor.  The landowner did not demonstrate that "the pooling water along the northern boundary of his property has either substantially altered the nature of his property or interfered to a non-trivial or significant extent with the actual use being made of the property."  There was also no basis to find that any substantial adverse alteration of the land had been caused.

The landowner's nuisance claim was dismissed.

Read the decision at: Wood v. Langley (Township).

Tuesday, August 4, 2015

Nursery trees ruled to be chattels - claim for spray damage barred by limitation period

The Manitoba Court of Queen's Bench has dismissed a claim for spray damage caused to nursery trees (Roundup from a neighbouring wheat field) on the basis that the applicable limitation period had expired.  The key issue was the characterization of the trees - were they fixtures to the real property (the land) or were they chattels (movable property not affixed to the land)?  If they were fixtures, then a six-year limitation period would apply.  If they were chattels, a two-year limitation period would apply.  The action was commenced nearly four years after damage to the trees was first observed.

What is annexed or attached to the land becomes part of the land (a fixture), but there must be an intention to annex or attach evidenced by the degree of annexation and the object of the annexation.  In this case, the claimant argued that the trees were growing crops and, therefore, part of the real property (the land).  The defendants argued that the trees were planted only for the purpose of storage until they would be sold or used by the claimant, remaining as chattels (not fixed to the land).

The Court sided with the defendants and found that the nursery trees were chattels.  They were treated as the claimant's "stock in trade - as inventory".  The trees were never intended to be permanently attached to the land or to constitute an improvement to the land.  As a result, the two-year limitation period applied and barred the claim for damages.