Ontario's Environmental Review Tribunal has
refused to allow a developer to completely change its proposed
grounds for seeking leave to appeal an Environmental Compliance
Approval given to an existing industry, under the Environmental
Bill of Rights and the Environmental Protection Act.
The developer, Brimley Progress Developments, wants to build
residential condominiums right next door to an existing heavy
industry. This is the sort of short-sighted development that has
been choking employers in urban areas across Ontario. More than 15
years ago, the Ministry of the Environment issued guidelines about
the need for buffer spaces between industry and residences.
However, the Ontario Municipal Board doesn't enforce the
guidelines, and now neither does the MOE.
In this case, the developer sought leave to appeal the
industry's Environmental Compliance Approval on the grounds of
noise. Months later, the developer acknowledged that its concerns
about noise had been satisfied, but then tried to raise new grounds
of appeal: water vapour and particulates. The developer had never
raised these grounds with the MOE Director before the ECA was
issued, or within the 15 days in which it was allowed to seek leave
The Tribunal ruled that it does have the power to allow an
applicant to change its grounds for seeking leave to appeal an ECA,
even after the expiry of the 15 day limitation period. However, it
decided not to exercise this power in the developer's favour,
where the developer "appears to have turned to the question of
air emissions and the ESDM report as an afterthought once the
period for filing an application had expired."
The Tribunal also ruled that an applicant for leave to appeal
has a right to review the documents supporting the ECA application,
but cannot compel the Instrument Holder to disclose its internal
"The applicant's burden when applying for leave is to
provide a substantial and relevant information base without the
benefit of discovery. The fact that the Instrument Holder may be in
possession of information that it has not released to the applicant
is not by itself a sufficient reason to order disclosure of that
information. Applicants may expect to be provided with the
documents and information relied upon by the Director in reaching
his decision, but they have no prima facie right to the disclosure
of additional information in the hands of instrument
Environmental Review Tribunal Order: 12-145
Brimley Progress Development Inc. v. Director, Ministry of the
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