2009 CarswellOnt 3245, 43 C.E.L.R. (3d) 264

Greenspace Alliance of Canada's Capital v. Ontario (Director, Ministry of the Environment)

In the matter of an application for Leave to Appeal by Greenspace Alliance of Canada's Capital and Sierra Club of Canada, pursuant to section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended, with respect to a decision of the Director, Ministry of the Environment, under section 34 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended, to issue Permit to Take Water Number 8130-7HNPVW, dated April 27, 2009, to Findlay Creek Properties Ltd and 1374537 Ontario Limited for water taking on Lots 18, 19 and 20, Concession IV, in the Original Geographic Township of Gloucester, City of the Ottawa

In the matter of a Motion for a stay of the Permit to Take Water pending determination of the application for Leave to Appeal

Ontario Environmental Review Tribunal

M. Valiante Member

Judgment: June 4, 2009
Docket: 09-031/09-032

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Counsel: Linda McCaffrey for Applicants, Greenspace Alliance of Canada's Capital, Sierra Club of Canada

Paul McCulloch for Director, Ministry of the Environment

Jennifer Mesquita for Instrument Holders, Findlay Creek Properties Ltd., 1374537 Ontario Limited

Subject: Environmental; Natural Resources

Environmental law --- Statutory protection of environment — Approvals, licences and orders — Appeals — To administrative tribunal — General principles

Stay pending leave to appeal — Director, Ministry of Environment issued permit to take water (PTTW) authorizing instrument holders to take water from several sources at different times within ten-year period during construction of residential subdivision — Applicants' solicitor notified tribunal, Director, and instrument holders that applicants sought stay of PTTW pending tribunal's decision on leave to appeal, and requested tribunal schedule teleconference to address stay issue — Tribunal determined that it lacked jurisdiction to grant stay of Director's decision pending resolution of application for leave to appeal — Right to seek leave to appeal is found in Pt. II of Environmental Bill of Rights, 1993 (EBR), including ss. 38-44 of EBR — Pursuant to s. 42 of EBR, when leave is granted, stay automatically applies, and tribunal is given authority to lift stay under certain circumstances — There is no reference in Pt. II of EBR to stay pending leave determination — Section 121 of EBR confers power on Lieutenant Governor in Council power to make wide range of regulations, including under s. 121(1)(s) of EBR "providing for stays pending decisions on applications for leave to appeal" — However, no such regulation was adopted — In absence of regulation providing for it, tribunal does not have authority to order stay.

Cases considered by M. Valiante Member:

Arzem v. Ontario (Ministry of Community & Social Services) ( 2005), 52 C.H.R.R. D/ 170, 2005 HRTO 11, 2005 CarswellOnt 10194 (Ont. Human Rights Trib.) — considered

Douglas/Kwantlen Faculty Assn. v. Douglas College (1990), (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 52 B.C.L.R. (2d) 68, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 77 D.L.R. (4th) 94, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 13 C.H.R.R. D/403, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 50 Admin. L.R. 69, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 2 C.R.R. (2d) 157, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 91 C.L.L.C. 17,002, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) [1990] 3 S.C.R. 570, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) [1991] 1 W.W.R. 643, (sub nom. Douglas College v. Douglas/Kwantlen Faculty Assn.) 118 N.R. 340, 1990 CarswellBC 278, 1990 CarswellBC 766 (S.C.C.) — referred to

Martin v. Tricin Electric Ltd. (2004), 2004 CarswellOnt 4690, [2004] O.L.R.B. Rep. 823 (Ont. L.R.B.) — referred to

Metropolitan Toronto Housing Authority v. Godwin (2002), 2002 CarswellOnt 2051, 161 O.A.C. 57 (Ont. C.A.) — considered

Vaziri v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 3014, 2006 FC 1159, 2006 CF 1159, 2006 CarswellNat 4791, 300 F.T.R. 158 (Eng.), 55 Imm. L.R. (3d) 247, 52 Admin. L.R. (4th) 118 (F.C.) — referred to

Statutes considered:

Environmental Bill of Rights, 1993, S.O. 1993, c. 28

Generally — referred to 

Pt. II — referred to 

Pt. VIII — referred to 

s. 38 — pursuant to 

s. 42 — referred to 

s. 121 — referred to 

s. 121(1)(s) — considered 

Environmental Protection Act, R.S.O. 1990, c. E.19

s. 143 — considered 

Immigration and Refugee Protection Act, S.C. 2001, c. 27

Generally — referred to 

Ontario Water Resources Act, R.S.O. 1990, c. O.40

s. 34 — referred to 

s. 102 — considered 

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

Generally — referred to 

s. 2 — considered 

s. 16.1 [en. 1994, c. 27, s. 56(32)] — considered 

s. 25.0.1 [en. 1999, c. 12, Sched. B, s. 16(8)] — considered 

s. 25.1 [en. 1994, c. 27, s. 56(38)] — referred to 

s. 32 — referred to 

Regulations considered:

Environmental Bill of Rights, 1993, S.O. 1993, c. 28

General, O. Reg. 73/94

Generally — referred to

 RULING on stay pending resolution of leave to appeal Director's decision in respect of issuance of permit to take water.

M. Valiante Member:

Background:

1        The Applicants, Greenspace Alliance of Canada's Capital and Sierra Club of Canada, have brought an application, under section 38 of the Environmental Bill of Rights, 1993 ("EBR"), for Leave to Appeal the issuance of Permit to Take Water Number 8130-7HNPVW (the "PTTW") to Findlay Creek Properties Ltd and 1374537 Ontario Limited (the "Instrument Holders"). The PTTW was issued on April 27, 2009 by Peter Taylor, Director, Ministry of the Environment ("MOE"), under section 34 of the Ontario Water Resources Act ("OWRA"). It authorizes the Instrument Holders to take water from several sources at different times within a ten-year period during construction of a residential subdivision in the City of Ottawa.

2        The MOE posted the Instrument Decision Notice on the Environmental Registry on May 5, 2009. On May 6, 2009, Linda McCaffrey, Counsel for the Applicants, notified the Tribunal and Paul McCulloch, Counsel for the Director, and the Instrument Holders that she would seek a stay of the PTTW pending the Tribunal's decision on Leave to Appeal. She requested that the Tribunal schedule a teleconference to address the stay issue, pursuant to Rules 99 to 101 of the Tribunal's Rules of Practice and Practice Directions. The Tribunal responded that a teleconference would be held once the application for Leave to Appeal was received. The Application was received on May 20, 2009. On May 21, 2009, Mr. McCulloch and Jennifer Mesquita, Counsel for the Instrument Holders, sent emails to the Tribunal objecting to its jurisdiction to order a stay.

3        On May 22, 2009, a teleconference was held between the Member and Counsel for the Parties to discuss the scheduling of the issue of the Tribunal's jurisdiction and the Motion for a stay of the PTTW. The Tribunal decided that the issue of its jurisdiction would be addressed first, but in an expedited manner. The Applicants submitted their materials on May 22, 2009, and the Director and Instrument Holders submitted their materials on May 26, 2009. On May 27, 2009, the Tribunal asked the Parties for supplemental submissions to address the implications of section 121(1)(s) of the EBR.

Issues:

4        

1. Whether the Tribunal has jurisdiction to grant a stay of a Director's decision pending the resolution of an application for Leave to Appeal.

2. If the Tribunal finds that it has jurisdiction to grant a stay, whether an undertaking for damages should be ordered.

3. If the Tribunal finds it does not have jurisdiction to grant a stay, whether costs should awarded against the Applicants.

Discussion and Analysis:

Issue #1: Whether the Tribunal has jurisdiction to grant a stay of a Director's decision pending the resolution of an application for Leave to Appeal

5        The Applicants submit that the Tribunal has jurisdiction to grant a stay of the Director's decision to issue the PTTW pending resolution of their application for Leave to Appeal. They submit that the source of this authority is the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), in particular sections 25.0.1, 16.1 and 2.

6        Section 25.0.1 of the SPPA provides: 

A tribunal has the power to determine its own procedures and practices and may for that purpose, 

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

7        Section 16.1 of the SPPA provides: 

(1) A Tribunal may make interim decisions and orders.

(2) A Tribunal may impose conditions on an interim decision or order.

(3) An interim decision or order need not be accompanied by reasons.

8        Section 2 of the SPPA provides: 

This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

9        The Applicants submit that the Tribunal's Rules of Practice, adopted under section 25.1 of the SPPA, set out rules for the bringing of a motion for an interim stay of a director's decision. Because of section 2 of the SPPA, a liberal construction of these rules should be applied.

10        The Applicants also submit that several cases support a liberal construction and broad authority to make interim decisions in the nature of a stay. In particular, the decision in Metropolitan Toronto Housing Authority v. Godwin (2002), 161 O.A.C. 57 (Ont. C.A.) justifies the Tribunal's adoption of the most expeditious method of determining the questions arising in a proceeding. In addition, the Applicants submit that the Ontario Labour Relations Board's ("OLRB") decision in Martin v. Tricin Electric Ltd., [2004] O.L.R.B. Rep. 823 (Ont. L.R.B.), interpreted section 16.1 of the SPPA as providing broad discretion to make interim decisions and where there is a conflict between the SPPA and another statute, section 32 of the SPPA means that the SPPA provisions are to prevail.

11        In Reply Submissions, the Applicants submit that if one reads section 121(1)(s) of the EBR (referring to the making of regulations providing for stays) together with the SPPA, it confirms the Tribunal's power to make interim stay orders whether regulations have been made by the Lieutenant Governor in Council or not. They refer to the Federal Court of Canada case of Vaziri v. Canada (Minister of Citizenship & Immigration), 2006 FC 1159 (F.C.), in support of this position. It is their view that to hold otherwise would defeat the purposes of the EBR.

12        The Director counters that in his view the Tribunal does not have jurisdiction to order a stay of a director's decision pending the resolution of an application for Leave to Appeal. The Director submits that the Tribunal has no inherent powers and may only exercise the authority that has been conferred on it by statute. The Director submits that there is no express or implied authority to be found in any of the statutes that govern the Tribunal in these proceedings.

13        First, the Director submits that the EBR not only does not expressly confer jurisdiction on the Tribunal to issue a stay of a decision pending Leave to Appeal, but impliedly excludes such jurisdiction. This is because there is express reference to a stay in section 42 of the EBR, which provides for an automatic stay once leave is granted, along with procedures and criteria that apply when a party moves to lift the stay. The Director submits that the import of section 42 is that the Legislature, having turned its mind to the issue of when a stay should be granted, deliberately chose not to provide the Tribunal with authority to grant a stay pending its decision on Leave to Appeal applications.

14        Further, the Director submits that section 16.1 of the SPPA, which provides Ontario tribunals with authority to make interim decisions and orders, is not sufficient authority to confer jurisdiction on the Tribunal to issue a stay pending the outcome of a Leave to Appeal application. The Director concedes that there are conflicting tribunal decisions on this point, but urges the Tribunal to adopt the approach taken by the Ontario Human Rights Tribunal ("OHRT") in the case of Arzem v. Ontario (Ministry of Community & Social Services) ( 2005), 52 C.H.R.R. D/ 170 (Ont. Human Rights Trib.), 2005 HRTO11, rather than the approach of the OLRB. In the Arzem decision, the OHRT decided that the Legislature did not intend for section 16.1 of the SPPA to confer equitable jurisdiction on Ontario tribunals allowing them to issue substantive interlocutory relief. The Director's position is that a stay is a "substantive" remedy similar to injunctive relief; without inherent authority, tribunals must be given explicit statutory authority to grant such relief.

15        The Director further submits, in the alternative, that if section 16.1 of the SPPA grants the Tribunal substantive authority, such authority can only be exercised consistently with the specific matter before it. On an application for Leave to Appeal, the Tribunal has no power to revoke an instrument but can only decide whether or not to grant leave. An instrument holder has a vested interest in the instrument issued and the Director argues that vested rights cannot be taken away without clear statutory language. The Leave to Appeal process is designed to protect an instrument holder from unwarranted appeals, which is consistent with the Tribunal not having the power to stay an instrument pending the leave determination.

16        The Director further submits that policy considerations militate against the Tribunal having authority to grant a stay pending the outcome of a Leave to Appeal application. The process is meant to be conducted quickly, within tight time limits. A stay Hearing can involve a significant amount of work for the parties, making it difficult both to prepare for a stay Hearing and respond on the merits within the time limits.

17        Finally, in its Supplemental Response, the Director submits that section 121(1)(s) of the EBR, which provides that the Lieutenant Governor in Council may make regulations "providing for stays pending decisions on applications for leave to appeal," means that until a regulation is made the Tribunal has no authority to order a stay.

18        The Instrument Holders support the position of the Director that the Tribunal lacks jurisdiction to grant a stay pending its decision on a Leave to Appeal application. The Instrument Holders characterize this jurisdiction as the authority to grant "equitable relief"; in their view, that is not a power tribunals have unless it is expressly granted by statute, and it has not been granted to the Tribunal.

19        The Instrument Holders submit that the EBR does not contemplate the authority to grant a stay prior to the decision on Leave to Appeal. The statute is silent, and silence in contrast to the clear rules in section 42 confirms the Legislature's intention not to confer this authority. The Instrument Holders support the position of the Director that section 16.1 of the SPPA, as interpreted in the Arzem case, does not confer jurisdiction on Ontario tribunals to grant "interlocutory injunctive relief".

20        The Instrument Holders submit that other environmental statutes, in particular the Environmental Protection Act ("EPA") in section 143, and the OWRA in section 102, confer explicit jurisdiction on the Tribunal to stay a director's decision. However, they submit, the context in which these statutory schemes operate is different from that of the EBR. For example, under those provisions, an appeal is brought as of right, by an instrument holder who is directly affected and whose interest in seeking a stay is clear. By contrast, applications for Leave to Appeal under the EBR are brought by an unlimited number of third parties, with no financial stake in the outcome. With no undertaking as to potential damages from a stay, recognizing jurisdiction would open the floodgates, allowing leave applicants to seek stays in every case, even raising unfounded allegations and causing significant economic harm to an instrument holder with impunity. This, they submit, is fundamentally unfair.

21        Finally, in their Supplementary Response, the Instrument Holders adopt the Director's position regarding section 121(1)(s) of the EBR and distinguish the cases relied on by the Applicants.

Findings on Issue #1:

22        The issue of the Tribunal's jurisdiction to order a stay of a director's decision pending resolution of an application for Leave to Appeal has not come before the Tribunal in any previous case. The Tribunal agrees with the Parties that it must find its authority to act in relation to both subject matter and remedies in a statutory grant (Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 (S.C.C.), para. 37).

23        While the Parties made extensive submissions on the proper interpretation of section 16.1 of the SPPA and Part II of the EBR, the Tribunal finds that the case turns on the proper interpretation of section 121(1)(s) of the EBR. For this reason, it is not necessary for the Tribunal to make findings with respect to those other submissions.

24        The intention of the Legislature with respect to stays must be discerned from looking at the EBR as a whole. The right to seek leave to appeal is found in Part II of the EBR, sections 38 through 48, under the heading "Appeals of Decisions on Class I and Class II Instrument Proposals". Section 42 of the EBR refers to a stay of a director's decision at the point when leave is granted. When leave is granted, a stay applies automatically, and the Tribunal is given authority to lift the stay under certain circumstances. There is no reference in Part II of the EBR to a stay pending the leave determination.

25        Looking beyond the provisions of Part II of the EBR, one finds express reference to stays pending Leave to Appeal decisions in Part VIII, in section 121(1)(s), of the EBR. Section 121 confers the power on the Lieutenant Governor in Council to make a wide range of regulations. Section 121(1)(s) gives the authority to make regulations "providing for stays pending decisions on applications for leave to appeal."

26        The Parties disagree on the significance of this provision. The Applicants assert that the Tribunal has the power to make a stay order whether regulations have been made or not. The Director and the Instrument Holders assert that the exercise of authority to issue regulations is a condition precedent to the Tribunal having power to do so.

27        The reference to stays pending leave decisions in section 121(1)(s) confirms that the Legislature did turn its mind to the issue of stays and how they should be handled. The result of this consideration was to give the authority to make regulations "providing for" stays to the Lieutenant Governor in Council. This language is in contrast to other regulation-making powers in section 121 that, for example, authorize the making of regulations "respecting", "relating to", "clarifying", or "specifying" certain matters necessary for operation of the statute. In addition to the power to make regulations providing for stays, section 121 gives authority to the Lieutenant Governor in Council to make regulations "providing for" 

• exemptions from Part II;

• required notices for more than one proposal relating to the same undertaking to be given together;

• public participation processes for more than one proposal relating to the same undertaking to be undertaken together;

• applications for leave to be heard by one member of an appellate body;

• applications for leave to be partly or wholly in writing; and

• procedures for applications for leave and for appeals.

28        In O.Reg. 73/94, the Lieutenant Governor in Council provided for some of these matters, but has not adopted a regulation providing for stays pending decisions on applications for Leave to Appeal.

29        It is the Tribunal's view that this case comes down to the question of whether the Tribunal has authority to order stays in the absence of a regulation providing for them. The Applicants argue that the Federal Court decision in Vaziri , supra, recognizes authority to do so. In that case, the Immigration and Refugee Protection Act, S.C. 2001, c. 27, gave the Minister responsibility for administration of the Act and broad powers to manage the immigration system. In addition, the Act set out the Governor in Council's power to make regulations prescribing and governing any matter relating to classes of applicants, including such matters as selection criteria and their weightings, numbers of applications processed, and so on. Regulations were adopted addressing some but not all of these matters. In the absence of regulations, the Minister adopted, and the immigration officers applied, policy guidelines that prioritized certain applicants over others. The Federal Court upheld this practice, stating: 

However, where there is a vacuum of express statutory or regulatory authority, the Minister must be permitted the flexible authority to administer the system. Without the policies and procedures impugned by Applicants, the system would fail. Parliament could not have intended that the system fail (para. 35).

30        The Tribunal agrees with the Director and the Instrument Holders that the Vaziri case is distinguishable from the case before it. There, the Court characterized the statutory scheme as one that gave broad authority to the Minister to develop and administer a manageable immigration process, while at the same time giving the Governor in Council authority to govern certain aspects of the process. This was in effect shared authority, with the Governor in Council retaining its discretion to oust the policies adopted by the Minister to fill the gaps in the process not addressed by regulation.

31        Here, the Legislature has given express authority to the Tribunal to make determinations on applications for Leave to Appeal. However, by going on to refer specifically to the provision of the power to order stays pending those determinations, the very interim order at issue here, as being within the discretion of the Lieutenant Governor in Council to regulate, it is the Tribunal's view that the Legislature did not intend for the Tribunal to exercise the power to order stays under its general authority to determine its procedures or to issue interim orders. In addition, it is the Tribunal's view that the Legislature, by using the language "providing for", intended that stays pending leave determinations would not be available unless and until the Lieutenant Governor in Council has exercised its discretion and adopted a regulation authorizing them.

32        The purpose of the EBR is to protect the environment by facilitating the public's participation in environmental decision-making and by ensuring governmental accountability for its decisions.

33        These are interests that must be balanced against the interests of instrument holders. While not necessarily the usual case, it is not difficult to envision circumstances that could arise where the inability of the Tribunal to issue a stay pending a Leave to Appeal decision could irreparably prejudice the environment or the interests of leave applicants and thereby undermine the integrity of the Leave to Appeal process. The test that must be met to obtain a stay under the Tribunal's Rules could operate as a way to ensure that the competing interests of the Parties would be balanced. Concerns about delays in the leave process must be balanced against the goals of the EBR and the SPPA and the importance of ensuring a process that is fair to all parties. However, at this time, the Lieutenant Governor in Council has not chosen to exercise his authority to provide for stays pending applications for Leave to Appeal.

34        In conclusion, the Tribunal finds that it does not have jurisdiction to order a stay of the PTTW pending its decision on the Applicants' application for Leave to Appeal.

Issue #2: If the Tribunal finds that it has jurisdiction to grant a stay, whether an undertaking for damages should be ordered.

35        Given the decision on Issue #1, it is not necessary to address this issue.

Issue #3: If the Tribunal finds it does not have jurisdiction to grant a stay, whether costs should awarded against the Applicants.

36        The Instrument Holders seek to have costs awarded against the Applicants under Rule 219, which provides: 

Parties shall take all reasonable steps to avoid unnecessary motions and other actions that unduly delay the proceeding. If a motion, or the opposition to a motion, is unreasonable, frivolous, vexatious or brought in bad faith, costs may be awarded, payable forthwith, against a Party.

37        The essence of the Instrument Holders' position is that the Applicants brought the Motion seeking a stay pending the determination of the application for Leave to Appeal "for no other reason than to delay and/or drive up the cost of development at the Site." Their evidence to support this contention includes a description of the long history of litigation between the Parties over the development. In particular, the Instrument Holders reference previous applications for Leave to Appeal permits to take water and emphasize that the Applicants never before sought a stay of a permit pending resolution of those applications.

38        The Applicants in turn accuse the Director and the Instrument Holders of using the Tribunal's processes for the purpose of delay in order to facilitate continued construction. The Applicants point to previous leave applications and the delays associated with them due to a series of "unmeritorious" Motions. They argue that the Parties' questioning the jurisdiction of the Tribunal to issue a stay was only for the purpose of delay and amounts to an abuse of process.

Findings on Issue #3:

39        The issue of the Tribunal's jurisdiction to order a stay pending the resolution of an application for Leave to Appeal was never considered by the Tribunal before. It is an important issue needing resolution. The outcome not only affects the Parties to this case, but will influence procedures applicable to future leave applications. In light of the important issues raised and the submissions presented, there is no evidence to conclude that either the Motion for a stay or the challenge to the Tribunal's jurisdiction was unreasonable, frivolous, vexatious or brought in bad faith. As a result, the Tribunal will make no order for costs.

Order

40        The Tribunal dismisses the Applicants' Motion for a stay of the PTTW pending the determination of the application for Leave to Appeal. The Tribunal dismisses the Instrument Holders' Motion for costs to be awarded against the Applicants.

Order accordingly.

Appendix A

List of Parties

Applicants:	Greenspace Alliance of Canada's Capital	
 	Sierra Club of Canada	
Counsel for the Applicants:	Will Amos	
 	Ottawa Environmental Law Clinic	
 	107-35 Copernicus St., Rm 109	
 	Ottawa, ON K1N 6N5	
Director:	Peter Taylor,	
 	Director, Section 34	
 	Ontario Water Resources Act	
Counsel for the Director:	Paul McCulloch	
 	Legal Services Branch	
 	Ministry of the Environment	
 	2430 Don Reid Drive	
 	Ottawa, ON K1H 1E1	
Instrument Holders:	Findlay Creek Properties Ltd.	
 	1374537 Ontario Limited	
Counsel for the Instrument Holders:	Jennifer Mesquita	
 	Gowling Lafleur Henderson LLP	
 	Suite 1600, 1 First Canadian Place	
 	100 King Street West	
 	Toronto, ON M5X 1G5	

END OF DOCUMENT