An MOE order for financial assurance can be enforced even after
the business has closed and been evicted from its premises, and
even without a full hearing by the Environmental Review Tribunal.
The ERT had enough evidence to know that the cleanup would cost
much more than the existing financial assurance, so dismissed the
operators' appeal from the order as moot.
Bodnar v. Director, Ministry of the Environment, a waste
processing facility appealed two Director's Orders. The First
Order required the Appellants to limit their activities and improve
their operations at the Site in a number of ways. The Second Order
required the preparation and implementation of a decommissioning
report, soil removal in the vicinity, and additional Financial
Assurance of roughly $125,000 (in addition to the existing
Financial Assurance of $145,405 under the facility's
Certificate of Approval).
Before the appeals were heard, the Appellants were evicted from
the Site and the Director brought a motion to dismiss the appeals
on the basis that they were now moot or without merit.
In a decision released in May 2012, the Environmental Review
Tribunal granted the Director's motion, applying the two-step
test for mootness set out by the Supreme Court of Canada in
Borowski v. Canada (Attorney General): "First, it is
necessary to determine whether the required tangible and concrete
dispute has disappeared and the issues have become academic.
Second, if the response to the first question is affirmative, it is
necessary to decide if the court should exercise its discretion to
hear the case."
Applying the first part of the test, the Tribunal concluded
that, as the Appellants no longer had authority to take any actions
at the site, there was no longer a "present live
controversy" that could be resolved through a hearing process.
As a result, the majority of the grounds of appeal regarding
required actions at the site were moot.
However, the Tribunal identified one important exception; the
requirement for an additional Financial Assurance could not be
considered moot "since it can be assumed that the Appellants
remain subject to this requirement, irrespective of whether the
Appellants have been evicted from the Site or not." The
Tribunal thus moved to the second part of the test and asked: Does
the Appellants' contention that the Director had no grounds to
increase the amount of the Financial Assurance have legal
Although the exact and final cost of waste removal and
remediation of the Site were not submitted into evidence, the
Tribunal found that it was clear from the evidence that the cost
would be considerably more than the Financial Assurance required
under the Certificate of Approval and concluded that "an
additional Financial Assurance is needed and the cleanup of the
Site is an environmental priority." The Tribunal went on to
note that "even if all of the additional or supplemental
Financial Assurance as required by the Second Order is not needed,
the monies will be returned to the Appellants."
Based on these findings, the Tribunal concluded that this ground
of appeal was without merit and granted the Director's
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