In Environment Hamilton Inc. v. Director, Ministry of
the Environment, an environmental group sought leave to appeal
an ECA issued to Sunrise Metals for oxy-propane metal cutting at
their metal recycling facility. Sunrise uses an oxy-propane torch
to cut scrap metal into smaller pieces to ship to customers. Under
its ECA, it was required to "conduct all torching operations
in accordance with the Torch Cutting Procedure" to control
When Environment Hamilton attempted to get a copy of the
Procedure from the MOE, they were told to file an FOI request,
because it contained "proprietary information".
"How", Env. Hamilton asked, "can members of the
public assess whether the ECA is adequate when one of its key
components – the protocol that is meant to ensure
proper control of emissions – is not readily accessible
to the public?" This lack of public disclosure was one of the
grounds on which they sought leave to appeal.
The issue was moot by the time the ERT rejected Environment
Hamilton's application for leave to appeal; Sunrise had already
provided the Procedure to Environment Hamilton. However, the ERT
criticized the MOE's reluctance to turn over the
Procedure (at para. 49):
...I find that the response of the MOE to requests for this
information is not in keeping with the spirit and intent of the
applicable legislation. In my view, once a term or condition is
incorporated into an ECA it becomes part of the public domain and
the public has a right to access that information. The MOE's
response to the applicant's request runs counter to the
purposes of the EBR which includes protecting "the right to a
healthful environment ..." and the "prevention, reduction
and elimination of the use, generation and release of pollutants
...." In my view, the MOE's response also runs counter to
the public notice requirements of the EPA.
These comments suggest that approval holders must be prepared to
turn over the key supporting documents to their ECA, should anyone
seek leave to appeal their approval. If documents necessary to
support an application do contain confidential information, the
confidential portions should be clearly so designated at all times,
including when the document is first filed with the ministry.
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