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Public access to approvals documents at Environmental Review Tribunal

Per two of our recent victories at the Environmental Review Tribunal, the public has a limited right of access to approvals documents that are part of an application for an Environmental Compliance Approval (ECA), or are part of the ECA itself, when seeking leave to appeal that ECA.

In Brimley Progress Development Inc. v. Director, Ministry of the EnvironmentBrimley 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 information.

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:

[37] 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), [2012] 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 appeal.

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 to appeal.

We’ll explain the second case, Environment Hamilton Inc v. Director, Ministry of the Environment, in a later post.

by Meredith James and Dianne Saxe

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