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No appeal from Environmental Review Tribunal refusal of stay pending appeal

When Ontario’s Environmental Review Tribunal refuses to grant a stay of an order pending appeal, there is no appeal and no judicial review, according to Superior Court judge Harriet Sachs.

The Order and appeal

The Ministry of the Environment has issued a $15 million cleanup order to several former directors and officers of Northstar Aerospace inc. and Northstar Aerospace (Canada). The individuals involved have appealed the order, arguing that it is unconstitutional, unfair and made without jurisdiction. As the Environmental Review Tribunal refused to stay the order pending appeal, the appellants are spending about $150,000 each month on remediation, before their appeal is even heard. This money is probably unrecoverable even if the appeal succeeds, e.g. if the order turns out to have been illegal and invalid.

The appellants therefore attempted to appeal the refusal of the stay to the Divisional Court. This week, the court quashed that appeal, as well as a parallel application for judicial review. Justice Sachs ruled that the legislature intended that orderees should have no remedy if the Tribunal turns down their request for a stay pending appeal, regardless of the financial consequences and of the alleged invalidity of the Order. Thus, the power of the MOE’s discretion just continues to grow.

Justice Sachs gave the following reasons:

The issues on the motion

“[25] The issues on this motion are as follows:

1. Is the Tribunal stay decision an interlocutory or final decision?

2. If the decision is an interlocutory decision, should the statutory appeals be quashed because there is no right of appeal under the Act of an interlocutory decision?

3. If there is no statutory right of appeal, should the applications for judicial review be quashed because they arc premature?

4. If the applications for judicial review are not quashed should the fresh evidence sought to be filed by the Appellants be struck?…

Final or interlocutory?

[32] In this case the Tribunal’s stay order does not finally dispose of any of the Appellants’ rights in the proceedings it has pending before the Tribunal. The Tribunal has  made no final findings or dispositions concerning any of the issues that the Appellants have raised in their appeal. The order deals with a “collateral” issue in the litigation. nameJy who should bear the costs of remediation pending the hearing of the appeaL As such, it is an interlocutory order.

[33] The Appellants’ position that any order that has the effect of causing a party to incur a “substantial” financial consequence is a final order is not a tenable position at law. First, there are many orders that are clearly interlocutory in nature that can and do have this effect: an obvious example is an order granting or refusing an interlocutory injunction. Second, it cannot be that the issue of whether an order is final or interlocutory is left to be determined on the basis of what the anticipated financial effect of the order may be. Apart from anything else, this would introduce an unacceptable uncertainty into this already fraught area of the law….

No appeal from interlocutory order

[38] I agree with the Respondent that, read together with the other sections i.n Part XIII, what is meant by the word “hearing’ in subsection 145.6(1) is the hearing that takes place when a party who is the subject of a Director’s order requires such a hearing under s. 140,  gives notice as to what aspects of the order he or she is challenging under s. 142 and is the subject of an order or decision by the Tribunal under ss. 145.2(1). It docs not mean the application for a stay, which is separately provided for under s. 143 of thc Act….

 Fairness

[50] In the end the Appellants’ position on this motion is driven by what they submit is the fundamental unfairness inherent in the fact that by virtue of the Tribunal’s stay decision they may be called upon to pay substantial unrecoverable costs pursuant to an order. that should never have been made…

[52] However, even if the effect of the Tribunal’s stay decision is the one the Appellants arc complaining about, the effect is one that arises from a choice made by the legislature.

[53] Prior to 1990, any director’s order was automatically stayed pending an appeal. After a major fire at a tire facility, the legislature introduced the Environmental Statute Law Amendment Act, 1990. By virtue of this legislations. 143 of the Act was enacted. Section 143 not only provides that an order is not automatically stayed upon the commencement of a proceeding before the Tribunal, but it also specifically limits the authority of the Tribunal to stay certain orders. The effect of these amendments is precisely the one the Appellants are complaining about- persons who are subject to an order, which they are appealing, may have to incur the costs of interim compliance. This is consistent with the purpose of the Act, which is ‘to provide for the protection and conservation of the natural environment.” (the Act, s. 3). [54] In other words, there is nothing ”exceptional” about the circumstances that the Appellants find themselves in. These circumstances arc the result of the legislature’s intention and apply uniformly to everyone in Ontario.”

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