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Environment (Ont) - Environmental Assessment Act (EAA). Ontario Place for All Inc. v. Ontario Ministry of Infrastructure
In Ontario Place for All Inc. v. Ontario Ministry of Infrastructure (Div Court, 2024) the Divisional Court allowed a motion to quash a JR, here brought to challenge Ontario's limiting of environmental assessment to only a part of the Ontario Place redevelopment (in part, through the new ROPA, 2023 statute):[2] In its application for judicial review, Ontario Place for All alleges the respondent ministries and Infrastructure Ontario were required to include the redevelopment of the West Island in the environmental assessment. It says an environmental assessment is important because the West Island redevelopment project involves the construction of a “gigantic spa facility” with private entities including a foreign owned company called Therme. According to the applicant, the plan to redevelop the West Island will involve cutting down a substantial number of trees, levelling a cultural heritage landscape, and filling in portions of the lakefront.
[3] Before the start of this application, the respondents took the position that the West Island redevelopment was a private undertaking to which the Environmental Assessment Act, R.S.O. 1990, c. E.18 (“EAA”) did not apply. The applicant disputed this. The applicant alleged the relevant documents, including the lease and other contractual arrangements, once disclosed, would reveal that the West Island redevelopment is on behalf of the Ontario Government and falls within the EAA.
[4] However, new legislation, Rebuilding Ontario Place Act, 2023, S.O. 2023, c. 25, Sched. 2[1] (“ROPA”), was tabled a week after the notice of application was served and was quickly passed. The respondents submit ROPA exempts the West Island from the EAA and therefore nullifies the remedies sought in the application. The applicant acknowledges in its factum the government introduced and passed the legislation “to defeat this application for judicial review.” Because of ROPA, the respondents now bring a motion to quash the application for judicial review.[2]
[5] The question for the court is whether it is plain and obvious the application cannot succeed in the face of ROPA. The respondents also submit, in the alternative, that because of ROPA, the application is moot. For the following reasons, I conclude it is plain and obvious the application cannot succeed. I also find that the question of whether to issue a declaration is moot and that the court should not exercise its discretion to decide it. The court's rationale for this conclusion is spelled out in detail at para 6-18.
. Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)
In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act" (EAA).
Here the court reviews some aspects of the EAA:Environmental Assessment Act
[8] Section 2 of the EAA provides that the purpose of the EAA is the “protection, conservation and wise management in Ontario of the environment”.[1]
[9] Environmental assessments in Ontario are governed by the EAA.[2] The EAA applies automatically to all projects undertaken by the Crown pursuant to s.3:3. This Act applies to, (a) enterprises or activities or proposals, plans or programs in respect of enterprises or activities on behalf of Her Majesty in right of Ontario or by a public body or public bodies or by a municipality or municipalities. [10] A project that engages the provisions of the EAA is described as an “undertaking”, which is a defined term in the EAA that uses similar language to s. 3:1 (1) In this Act,
...
Undertaking means,
(a) an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity by or on behalf of Her Majesty in right of Ontario, by a public body or public bodies or by a municipality or municipalities, ... [11] The EAA imposes various obligations on the proponent of an undertaking, generally involving a requirement to consult with interested persons and assess environmental impacts before being authorized to proceed with the undertaking. The nature of these obligations will depend on various factors, such as the type and scope of the undertaking.
[12] The Amended Notice of Application seeks an order requiring a specific form of environmental assessment: a “Category C Public Work Class Environmental Assessment”. This form of environmental assessment can be broken down into three constituent parts for the purpose of understanding what is involved:a) A “Class Environmental Assessment” is one of two types of assessment governed by the EAA, with the other being an “individual environmental assessment”.
b) “Public Work” refers to a particular form of class environmental assessment which is applicable to provincial government realty actions and public works projects. Public Work Class Environmental Assessments follow a document setting out the assessment and consultation requirements applicable to this class of projects.
c) “Category C” refers to a specific category of the types of undertakings within the Public Work Class Environmental Assessment. Projects that are classified as a Public Works Class Environmental Assessment project are subdivided into categories based on an assessment of a project’s size, scope and estimated environmental impact. Category C is for those projects which have the potential for the most significant environmental effects, and require more rigorous assessment and consultation requirements. [13] Although each different type and category of project engages varying obligations under the Public Work Class Environmental Assessment, all are governed by the provisions of the EAA.
[14] The EAA requires the proponent of a project to comply with the applicable class environmental assessment. Section 15.1.1(1) of the EAA provides that “[n]o person shall proceed with an undertaking [in respect of which an approved class environmental assessment applies] unless the person does so in accordance with the class environmental assessment ...
Undertakings are to be assessed as a whole and not piecemealed
[15] The Public Work Class Environmental Assessment document as it existed at the date of issuance of the Notice of Application states:1.2.3 Undertakings are Not Divisible
When an undertaking is subjected to an EA, the entire undertaking must be assessed at one time. To ensure that undertakings are not broken down inappropriately, the following requirements apply:
1) All foreseeable interdependent actions of an undertaking must be assessed at the same time. Therefore even though undertakings may be broken down into individual activities, they are all subjected to EA.
2) If an undertaking consists of several activities that have different EA Categories, all activities within the undertaking must be assessed at the highest EA Category applicable to the individual activities. Section 1.3.4 provides further details on EA Categories.[3] [16] Ontario conducted a Category C Public Work Class Environmental Assessment on certain components of the Ontario Place Redevelopment Project (the “Current EA”). OP4A alleges that Ontario wrongfully failed to include the West Island Redevelopment on the false assertion that the redevelopment of the West Island is a private undertaking. Ontario does not assert on this motion that the West Island redevelopment is a private undertaking not covered by the EAA but relies on the exemption of the Ontario Place Redevelopment Project by the passage of ROPA.
....
[31] The purpose of the EAA is “the protection, conservation and wise management in Ontario of the environment”.[9] OP4A submits that the environmental process as set out in the EAA is a crucial commitment to protecting Ontario’s environment, and public consultation is an integral component of that process. It appears that Ontario’s view was that it did not need to comply with the EAA and that the project could be piecemealed contrary to its own process.
[32] The scope of the EAA’s application to a public redevelopment project is an important question of public interest, as it speaks to the scope of an environmental law which has the potential of encompassing broad environmental protection and directly affects the public’s interest in being appropriately consulted. . Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks)
In Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2020) the Divisional Court considered an application for judicial review to 'bump up' from a class environmental assessment (EA) to a individual EA. The court sets out some environmental assessment legal basics:[7] The EAA applies to a wide variety of projects. The purpose of the EAA “is the betterment of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” The EAA requires the proponent of certain projects to conduct an EA. EAs fall into two classes: “individual” EAs under Part II, and “streamlined”, or “class” EAs, under Part II.1.
[8] Individual EAs involve comprehensive oversight by the Minister. Applicants must apply to the Minister for approval to proceed with a project. The Minister may approve or deny the application and impose terms of reference for the EA process.
[9] Class EAs, on the other hand, are “umbrella” EAs that apply to all projects in the class. Class EAs are used for common undertakings like municipal road improvements. The Minister approves the initial class EA. Once the Minister approves the class EA, the EA process for projects falling within the class is streamlined. The proponent of a class project need only comply with the requirements of the class EA. Class EA’s require a proponent to self-monitor compliance with the terms of the class EA.
[10] The road widening project in issue here involves infrastructure improvements subject to a class EA. This means that the road widening project need not undergo the more specialized individual EA process. The Municipal Engineers Association’s Municipal Class Environmental Assessment (“MCEA”), under which the Road Project is proceeding, is an approved class EA. Under the MCEA, there are four schedules of undertakings, ranked according to degree of environmental impact. The Road Project falls under Schedule C of the MCEA.
[11] Under s. 16 of the EAA, the Minister can order that an undertaking proceeding under a Part II.1 class EA proceed instead under a Part II individual EA process:16(1) The Minister may by order require a proponent to comply with Part II before proceeding with a proposed undertaking to which a class environmental assessment would otherwise apply. [12] Such an order is commonly called a “bump-up” order. It is the Minister’s denial of a request to bump-up the class EA to an individual EA which is at issue in this proceeding. When deciding whether to bump-up a class EA process to an individual EA process, the Minister must consider these factors under s. 16(4) of the EAA:1. The purpose of the Act.
2. The factors suggesting that the proposed undertaking differs from other undertakings in the class to which the class environmental assessment applies.
3. The significance of the factors and of the differences mentioned in paragraph 2.
4. Any reasons given by a person who requests the order. [13] The Minister can make a bump-up order in response to a request from any person or on his own initiative. When deciding a bump-up request, the Minister has four options:1. Grant the request and make an order requiring a proponent to comply with Part II before proceeding with the proposed undertaking (EAA, s. 16(1));
2. Refuse the request but make an order imposing additional conditions in addition to those imposed by the class EA (EAA, s. 16(3));
3. Refer the matter subject to the request to mediation (EAA, s. 16(6));
4. Refuse the request without making any order (EAA, s. 16(8)).
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