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Environment (Ont) - Environment Protection Act (EPA). Synergy Underground Utilities Inc. et al. v. Ontario (Environment, Conservation and Parks)
In Synergy Underground Utilities Inc. et al. v. Ontario (Environment, Conservation and Parks) (Div Ct, 2026) the Divisional Court dismissed an appeal [under EPA 145.6 'Appeals from Tribunal'], this brought against "the decision of the Ontario Land Tribunal .... which denied the appellants’ request for a stay of aspects of the January 30, 2026 Director’s Order of the Ministry of the Environment, Conservation and Parks (the “Ministry”)".
Here the court considers the EPA OLT tribunal appeal route and the appealability of interlocutory orders:[3] The facts of this case arise in the context of the Ministry’s regulation of on-site and excess soil management in Ontario: On-Site and Excess Soil Management, O. Reg. 406/19 (the “Excess Soil Regulation”), made under the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”).
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[21] The appellants have appealed the Stay Dismissal Decision to this court, pursuant to s. 145.6 of the EPA.
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LAW AND APPLICATION
Jurisdiction
[23] The authority to hear an appeal is found in the governing legislation. In this case, the appellants’ appeal of the Stay Dismissal Decision to this court is governed by s. 145.6 of the EPA, which provides as follows:Appeals from Tribunal
145.6 (1) Any party to a hearing before the Tribunal under this Part may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.
Decision of Tribunal not automatically stayed on appeal
(3) An appeal of a decision of the Tribunal to the Divisional Court under this section does not stay the operation of the decision, unless the Tribunal orders otherwise.
Divisional Court may grant or set aside stay
(4) If a decision of the Tribunal is appealed to the Divisional Court under this section, the Divisional Court may,
(a) stay the operation of the decision; or
(b) set aside a stay ordered by the Tribunal under subsection (3). [24] The right of appeal from a decision of an administrative tribunal is limited to final decisions, absent clear language that there is a right to appeal an interlocutory decision: Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 180, at paras. 15-16; Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, at para. 10; Kahissay v. Intact Insurance, 2022 ONSC 6357, at paras. 4-7. The fact that courts may intervene on judicial review where proceedings before a tribunal appear at the outset to be jursdictionally defective does not permit a court to invent an appeal procedure for interlocutory rulings where none exists: Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 31.
[25] Courts must respect the Legislature’s decisions with respect to institutional design: Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65, at para. 36; Penney, at para. 26. The appellants acknowledge that s. 145.6 of the EPA and s. 24(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, s. 24(1), do not permit appeals of interlocutory decisions: Baker v. Ontario (Director, Ministry of the Environment), 2013 ONSC 4142, at paras. 34-40; Adelaide Metcalfe, at para. 17. Through a plain reading of s. 145.6 of the EPA it is evident that the Legislature chose (a) not to confer a right to appeal interlocutory decisions of the Tribunal to the Divisional Court; and (b) deliberately chose to impose environmental compliance responsibility on orderees during the interim period pending resolution of an appeal, unless and until the order is stayed by the Tribunal. . Country Wide Homes Upper Thornhill Estates Inc. v. Chen
In Country Wide Homes Upper Thornhill Estates Inc. v. Chen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's appeal, this where the lower court "found the appellant liable for damages for failure to complete an agreement of purchase and sale for a residential property in a high-end subdivision".
Here the court considers provisions of the EPA which can, if not complied with, render an APS 'voidable' [EPA s.197(1) 'Disclosure of orders and decisions' and 197(4) 'Dealings voidable']:[1] ... The appellant argues that the trial judge should have found that the respondent failed to comply with the disclosure requirement in s. 197 of the Environmental Protection Act, R.S.O. 1990, c. E.19, and therefore the agreement of purchase and sale was unenforceable.
[2] Section 197(1) of the Environmental Protection Act provides that a person with an interest in property, before dealing with the property in any way, must make certain disclosure to a person who will acquire an interest in the property as a result of the dealing. Section 197(4) provides the consequence for non-compliance: the dealing with the property is voidable.
[3] In this case, it is common ground that s. 197 of the Environmental Protection Act required disclosure by the respondent of a Certificate of Property Use. The appellant argues that the disclosure was required on October 1, 2016, when the appellant provided an uncertified cheque for $100,000 with a request that the property be reserved and therefore commenced negotiations toward its acquisition.
[4] We do not accept this argument. We see no error in the trial judge's finding of fact that there was no agreement made on October 1 to reserve the property such that nothing engaged s. 197 on this date. We do not accept Mr. Buhlman’s argument that even without an agreement there was still a dealing in property on that date.
[5] Second, the appellant argues that the trial judge erred in finding that the disclosure of the Certificate of Property Use on October 2, 2016 was adequate. We are unable to accept this submission. On that date, the Certificate was provided to the appellant before he signed the agreement of purchase and sale, as the trial judge found as a fact, and as the appellant had acknowledged in writing. We see no basis to disturb this finding of fact. Assuming without deciding that the trial judge was wrong to state that the Environmental Protection Act disclosure was required before the transfer of title, as opposed to at any earlier date, this does not assist the appellant. The disclosure was made before the agreement of purchase sale was signed, which was sufficient: Starport Landing Inc. v. Laurel Springs Water Corp., 2015 ONCA 772, 96 C.E.L.R. (3d) 204 at para. 24. . Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al
In Grassy Narrow First Nation v. His Majesty the King in Right of Ontario, et al (Div Ct, 2026) the Divisional Court dismissed a JR, this brought against "the actions of a Director appointed under the Environmental Protection Act" who refused "to exercise his powers under the Act to issue stop and control orders against the mine".
Here the court considers EPA approval ['Environmental Compliance Approval (ECA)'] processes and challenges thereto, and EPA discretionary 'stop and control orders':The statutory scheme
[9] The purpose of the Act is “to provide for the protection and conservation of the natural environment” (s. 3). The Minister has the authority to appoint Directors (s. 5). Under s. 20.2 of the Act, a person may apply to the Director for approval to engage in an activity that would otherwise be prohibited. On considering the application, the Director has the discretion to issue or refuse an ECA. If the Director issues an ECA, he may impose terms and conditions. The Director may also amend, revoke, or suspend an ECA (s. 20.3). An ECA remains in effect unless it is suspended or revoked by the Director (s. 20.4(4)).
[10] If a Director refuses, suspends, revokes, or imposes terms and conditions in an ECA, the applicant may require that the Ontario Land Tribunal hold a hearing (s. 139). A third party has no right to seek a hearing under the Act, but can, under s. 38 the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, seek leave to appeal an ECA in certain circumstances.
[11] The Director’s discretion to issue stop and control orders is situated in part II of the Act, entitled “General Provisions”. Section 6 prohibits excessive levels of contaminant discharge into the natural environment. Section 7 provides the authority to issue a control order. It states:7 (1) When the report of a provincial officer contains a finding that a contaminant discharged into the natural environment is a contaminant the use of which is prohibited by the regulations or is being discharged in contravention of section 14 or the regulations, the Director may issue a control order directed to,(a) an owner or previous owner of the source of contaminant;
(b) a person who is or was in occupation of the source of contaminant; or
(c) a person who has or had the charge, management or control of the source of contaminant. [12] Provincial officers are appointed by the Minister and have broad powers of inspection for the administration of the Act (ss. 5, 156).
[13] A stop order is authorized under s. 8(1) of the Act, which provides:8 (1) When the Director, upon reasonable and probable grounds, is of the opinion that a source of contaminant is discharging into the natural environment any contaminant that constitutes, or the amount, concentration or level of which constitutes, an immediate danger to human life, the health of any persons, or to property, the Director may issue a stop order directed to,
(a) an owner or previous owner of the source of contaminant;
(b) a person who is or was in occupation of the source of contaminant; or
(c) a person who has or had the charge, management or control of the source of contaminant. [14] A person to whom a control or stop order is directed may appeal by requiring a hearing before the Ontario Land Tribunal, but there is no right to appeal a failure or refusal to issue an order (s. 140).
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[31] A stop order may be made when the Director, upon reasonable and probable grounds, is of the opinion that a source of contaminant is discharging into the natural environment any contaminant that constitutes, or the amount, concentration or level of which constitutes, an immediate danger to human life. The Director has discretion whether to make a stop order. He must first form the opinion required by statute. If he forms this opinion, he may issue a stop order. He is therefore not obliged to act. As there is no duty to act, there can be no breach of duty, and no order of mandamus: British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re), 1994 CanLII 81 (SCC), [1994] 2 SCR 41; Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778 at para. 23.
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