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).

Alberta Utilities Commission turns down landowner request to review MATL consultation process

The Alberta Utilities Commission (AUC) has denied a request for review by affected landowners of its approval for the construction and operation of an international power line from Alberta to the United States.  The power line application was made by Montana Alberta Tie Ltd. (MATL), and on January 31, 2008 the AUC conditionally approved the Power Line. 

In April of 2010, a group of landowners acting as "My Landman Group Inc." asked the AUC to review its decision because they alleged that MATL had not complied with the conditions of the original approval related to landowner consultation and negotiation.  Landowners asked the AUC to enforce its conditions of approval and, if the AUC declined, stated that they would ask for similar relief from the Surface Rights Board.  The landowners submitted that once MATL obtained its licence, it stopped engaging in negotiations and mitigation and cancelled meetings with landowners until survey permission was sought and a final offer was delivered, which, for certain landowners, was over two years later.

The landowners submitted that they have been attempting to discuss and negotiate outstanding matters with MATL, without any success. They believe that MATL does not intend to meet to negotiate, including making any changes to their proposed right-of-way agreements, with first and final offers having been the same, with no unique conditions between the unique needs of individual landowners. They question how these practices can reasonably be characterized as negotiation and mitigation, and believe that the concept of negotiation implies willingness by both parties to compromise.  The landowners effectively believe that MATL is not negotiating in good faith or engaging in mitigation.

The AUC rejected the landowners' request for review, first on the basis that the request was out of time and second on the basis that there were no exceptional circumstances warranting a late review.  The Commission found that:

... there is nothing before the Commission in this proceeding that demonstrates that the process has not been followed. The Commission finds that Landowner submissions simply indicate that the Landowners are not satisfied with the results of the process and that they have not reached an agreement with MATL. In this latter regard, the Commission notes that Decision 2008-006 specifically contemplated that the Surface Rights Board has the jurisdiction to issue right of entry orders and to address matters involving compensation, such as impacts from final pole locations, where private negotiations between landowners and MATL remain unsuccessful.

Read the decision at: Re My Landman Group Inc.

Appeal Tribunal denies Dougal Lea Ltd.'s request for review of DFO decision

The Ontario Agriculture, Food and Rural Affairs Appeal Tribunal has rejected a Smithville farmer's request for review of an earlier dismissal of his appeal of a DFO quota transfer assessment.  The Tribunal had found earlier that the circumstances of Paul MacDougall's case (in particular, the death of his wife, Maryanne, from cancer and his need to care for her) did not warrant relief from the 15% assessment levied on the proceeds of the sale of his dairy quota. 

On review, the Tribunal ruled against several legal arguments made by MacDougall, and made the following comment about the applicability of another case with similar facts:

Dougal Lea argued that the evidence was "almost identical" to the evidence from the Haleyview decision and there is no basis for differentiation between the decision outcomes and therefore Dougal Lea should receive an exemption as was granted in Haleyview.

However, in Haleyview, Paul Haley's incapacity due to illness and injury resulted in the decision to leave the dairy industry where Paul Haley had been the primary operator.

In this case, the McDougalls (Paul and Maryanne) were joint operators and there was not a primary operator. Maryanne became incapable of dairy farming due to illness and Paul ceased farming in order to care for Maryanne. I find that to be a significant distinguishing factor.

As the Tribunal explained in Dougal Lea, it is required to consider each situation and develop a set of expectations and criteria to explain why an exemption should apply in one case and not another. This explanation provides farmers insight about successful exemption applications.

It is clear to me that the Tribunal carefully considered the evidence presented in Dougal Lea against the facts from all previous instances where exemptions have been granted. In that analysis the Tribunal found there were several facts that made the Dougal Lea case different from any of the previous cases.

Read the decision at: Dougal Lea Ltd. vs. Dairy Farmers of Ontario (DFO).