Canada: Strong Opposition To Sewage Processing Facility Foiled By Filing Error

Last Updated: January 9 2013
Article by Dianne Saxe

Lystek's controversial sewage sludge processing facility in Southgate, Ontario, will not face an appeal of its Environmental Compliance Approvals, because opponents, after fighting the facility for so long, made a critical error in seeking leave to appeal. See Green v. Ontario.Under the Environmental Bill of Rights, leave to appeal applications must be filed, within 15 days, with the Environmental Review Tribunal as well as with the Environmental Commissioner, the Ministry of the Environment and the approval holder. In this case, the First Nations and other opponents only filed their applications on time with the Environmental Commissioner. As a result, the Tribunal ruled that it did not have jurisdiction to consider their application.

Thus, the Environmental Compliance Approvals are in effect and will not receive further review:

[1] ECA No. 8850-8V6S7Z approved a waste disposal site for sewage biosolids, untreated septage, processed organic waste and liquid waste from food processing and preparation operations.

[2] ECA No. 2478-8W4L3W approved an organic materials recovery facility, consisting of underground storage tanks, outdoor lined and covered storage lagoons, reagent tanks, process reactors, ancillary structures such as weigh scales and a biofilter used to control emissions from the facility.

Both facilities are located in the Village of Dundalk in the Township of Southgate, County of Grey.

The opponents argued that:

  • The ECAs could cause serious and irreversible harm to plant and animal life, and to the natural and environmentally sensitive local area and broader region by disturbing agricultural land, and by disturbing and harming wetlands, other environmentally protected and sensitive lands, waterways and airways, and by disturbing and destroying wildlife, their habits and their habitats;
  • The MOE's decision to grant approval for more waste processing than what the proponent applied for without a full environmental assessment is unreasonable;
  • The project is located too close to Dundalk residential and school areas and could cause immeasurable discomfort and serious long term health problems to residents who would be subject to increased and unavoidable truck traffic, noise, odours and emissions;
  • The MOE's decision does not mention or acknowledge the developers' option to purchase additional adjacent lands;
  • The MOE's decision does not take into account cumulative impacts that could be caused by future developments in the industrial park; and
  • A financial assurance of $490,886.96 does not seem sufficient to remove the maximum amounts of material permitted at the site.
  • The ECAs will cause serious harm to human health;
  • The ECAs will harm and destroy plants and trees of medicinal value to the Onkwehonwe people;
  • The ECAs were issued without an archaeological and environmental assessment;
  • There has been insufficient and incomplete consultation and accommodation;
  • The Haldimand Treaty cannot be abrogated without the consent of the Mohawk Nation and the Six Nations (Iroquois) Confederacy;
  • The ECAs will have a negative impact on the Onkwehonwe people's hunting and fishing rights in the project area and greater region of the Grand River; and
  • No notice of the postings was supplied to Six Nations and commenting on the instruments on the Environmental Registry was not an option known to them.

This is not the first time that would be appellants have been deprived of their chance to seek to leave to appeal because of a filing error, which came from misunderstanding the Commissioner's website. The ERT concluded:

"[59] It is unfortunate that the Applicants made one critical mistake that goes straight to the viability of the applications themselves. For the reasons set out in this decision, the Tribunal finds that its only available option is to dismiss the applications. Nevertheless, as this case shares many similarities with other recent cases where leave to appeal applications have been dismissed for lack of jurisdiction, the Tribunal makes the following observations.

[60] The limitation period in the EBR is unforgiving. It is short, inflexible and has no equitable exception. This is in contrast to other statutory provisions, such as s. 129(2)(b) of the Safe Drinking Water Act, 2002. Now that there has been nearly 20 years of experience with the EBR, and taking into account the number of times prospective applicants have run afoul the limitation period, it may be worthwhile for an analysis of the remaining barriers to the effective use of the EBR rights to be undertaken and acted upon.

[61] This is not the first time that an applicant has made a compelling case for equitable relief in the face of the existing EBR limitation period. However, this access to justice issue is for the Legislature, not the Tribunal, to address.

[62] Regarding the issues raised in the leave applications in this case, the Tribunal urges the Director and Approval Holder to engage in constructive discussions with the Applicants in an effort to address their concerns. "

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions