In Brimley Progress Development Inc. v.
Director, Ministry of the
Environment, Brimley sought leave to appeal the ECA
issued to a paperboard manufacturing plant operated by Atlantic
Packaging Products. Brimley wanted to build a condo development
next door. One issue was whether, during the leave application,
Atlantic had to give Brimley the entire Emission Summary Dispersion
Modeling (ESDM) Report provided to the MOE as part of its ECA
application, and not just the summary that the ECA stated must be
available to the public. The complete ESDM contained confidential
Following a motion for disclosure of the ESDM report, the ERT
concluded that Brimley should have received the entire ESDM during
the application period. The ESDM "formed part of
the Director's decision making process, and is prima facie
a public document."
Atlantic would have had to give better evidence to justify
keeping the confidential elements of its ESDM from the public, and
should have marked those elements as "confidential" when
originally filing the ESDM with the MOE. A general claim to
"trade secrets" was not sufficient.
Where an applicant does not have access to an ECA's
supporting document when filing its LTA appeal application, and
subsequently obtains new information, the ERT may allow them to
amend their grounds of appeal:
 The Director should as a matter of course before and at the
time the ECA is posted to the Environmental Registry provide
access to the documents and data upon which he has relied in
making his decision. The deadline for making application
for leave to appeal is a mere 15 days, a period that has been
characterized by the Tribunal as "short, inflexible and
[without] equitable exceptions" (Green v. Ontario (Ministry of
the Environment),  O.E.R.T.D. No. 65 at paragraph 60).
Any delay on the Director's part in providing access to
supporting documents undermines this deadline by impeding the
ability of applicants to file their applications on time. Delayed
access to supporting material could serve to defeat an
applicant's ability to complete an application for
leave in a timely fashion. Therefore, in light of the purposes
of the EBR, delay in access to supporting documents could
justify the granting of leave to amend the grounds listed
or information cited in an application for leave to
In Brimley's case, however, this was not what happened. The
ESDM report was available during the comment period on
Atlantic's application, and Brimley was permitted to view it
after the close of the comment period (although it was unclear if
they did so). Further, Brimley did not request access to the ESDM
report until 44 days after the deadline for leave to appeal. The
ERT concluded that Brimley's request for the ESDM report was
not timely: "While access to supporting documents is to be
expected as a matter of course, requests for such documents made
long after a deadline has passed should not be entertained as a
means to defeat the deadline."
The ERT subsequently dismissed Brimley's application for leave
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