Few people, however innocent, can afford to appeal environmental
orders, if they must also comply with the order throughout the
appeal, with little chance of recovering what they will have spent.
A recent decision of the Ontario Environmental Review Tribunal (ERT) shows how
difficult it has become to obtain a stay pending appeal of
environmental orders, with no immediate prospect of
In Rocha v. Director, Ministry of
Environment, the ERT again refused to issue a
stay, pending appeal, of a doubtful Director's Order issued to
an individual under the Ontario Environmental Protection Act (EPA).
The Order required an advisor to the property owner, who was also a
mortgagee not in possession, to personally conduct indoor air
sampling and other work relating to a TCE plume in Oakville,
Ontario. The work is expected to cost $80,000-$150,000, and much of
it would be spent before the appeal is likely to be completed.
There was no suggestion that Mr. Rocha was any way at fault in
creating the contamination.
Mr. Rocha argued that the Director's Order should not apply
to him because he was never in "management or control" of
the property under EPA section 157. If he is right, the order
against him is invalid. If he is forced to spend the money anyway,
Mr. Rocha said, he will be irreparably harmed, since he will not be
able to recover the lost funds from the owner or other relevant
Everything is an order to monitor, record or report
The ERT denied Mr. Rocha's application for a stay. Under
section 143(2) of the EPA, the ERT has no jurisdiction to stay an
order to "monitor, record and report" findings to the
Ministry. The ERT decided that all the work required under the
Order, such as delineating the TCE plume, was either
"monitoring, recording or reporting" under the EPA, or
ancillary to that type of work.
Balance of convenience
The ERT also ruled that, even if it had the jurisdiction to
grant a stay, it would not have granted one to Mr. Rocha. ERT Rule
110 requires the party seeking a stay to satisfy the common law
test set out in RJR-MacDonald Ltd. v. Canada (Attorney
General),  1 S.C.R. 331, namely: whether there is a
serious issue to be tried; whether irreparable harm will result if
the stay is denied; and whether the balance of convenience,
including effects on the public interest, favours the granting of a
The ERT agreed that Mr. Rocha had raised a serious issue,
whether or not Mr. Rocha had "management or control" of
the property under EPA section 157. However, it ruled that he would
not suffer irreparable harm from having to comply with the order
pending appeal, because he had not proven that he would be unable
to recover the cost from the owner and other relevant parties.
(Although, if the property owner had money, why did the Ministry
issue an order to Mr. Rocha at all?)
The ERT's key finding is that, "where groundwater
contamination is present and spreading," the balance of
convenience favoured making Mr. Rocha pay for the work immediately,
without hearing his appeal first. The ERT held that this third
stage of the stay analysis, dealing with the balance of
convenience, including effects on the public interest, "will
often be determinative of a stay motion in cases before the ERT due
to the nature of the legislation with which the ERT
In other words, according to the ERT, the "public
interest" in getting environmental work done immediately is
more important than whether there is a sound legal basis for making
a particular person pay for it. And therefore environmental orders
will rarely be stayed pending appeal, especially relating to
This decision should further increase the difficulty of finding
investors willing to invest in contaminated sites in Ontario, or in
businesses that own such sites. Given the substantial evidence of
the environmental and economic importance of encouraging the
redevelopment and revitalization of such sites, will the benefit of
the ERT's decisions outweigh their harm to the natural
environment and the people of Ontario?
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