Environmental Review Tribunal 

A Guide to Appeals under the:

 Clean Water Act, 2006
Climate Change Mitigation and Low-carbon Economy Act, 2016
Environmental Protection Act
Nutrient Management Act, 2002
Ontario Water Resources Act
Pesticides Act
Resource Recovery and Circular Economy Act, 2016
Safe Drinking Water Act, 2002
Toxics Reduction Act, 2009
Waste Diversion Transition Act, 2016

This guide provides a general overview of appeals under the Clean Water Act, 2006, the Climate Change Mitigation and Low-carbon Economy Act, 2016, the Environmental Protection Act, the Nutrient Management Act, 2002, the Ontario Water Resources Act, the Pesticides Act, the Resource Recovery and Circular Economy Act, 2016, the Safe Drinking Water Act, 2002, the Toxics Reduction Act, 2009 and the Waste Diversion Transition Act, 2016. This guide should not be relied upon as an authoritative text. The statutes, regulations and Rules of Practice and Practice Directions of the Environmental Review Tribunal prevail.

Information about specific cases is available on the Hearings page and/or Decisions & Orders page on the Tribunal’s website or by contacting:

Environmental Review Tribunal
Environment and Land Tribunals Ontario
655 Bay Street, Suite 1500
Toronto, Ontario M5G 1E5

Telephone: 1 (416) 212-6349 Toll Free: 1 (866) 448-2248
Fax: 1 (416) 326-5370 Toll Free: 1 (877) 849-2066
TTY: 1 (800) 855-1155 via Bell Relay
Email: ERTTribunalSecretary@ontario.ca

www.elto.gov.on.ca
October 13, 2017


What is the Environmental Review Tribunal?

The Environmental Review Tribunal (“Tribunal”) is an independent and impartial tribunal established by provincial legislation. The Tribunal holds public hearings on appeals and applications made under various provincial statutes.

This guide deals with appeals arising from decisions made by a person appointed as a Director, Risk Management Official, Inspector, Registrar or a Deputy Registrar regarding the issuance, alteration, revocation, cancellation or closure of an order, approval, licence, permit, registration or account under the Clean Water Act, 2006, the Climate Change Mitigation and Low-carbon Economy Act, 2016, the Environmental Protection Act, the Nutrient Management Act, 2002, the Ontario Water Resources Act, the Pesticides Act, the Resource Recovery and Circular Economy Act, 2016, the Safe Drinking Water Act, 2002, the Toxics Reduction Act, 2009 and the Waste Diversion Transition Act, 2016.

The Members of the Tribunal are appointed by the Lieutenant Governor in Council for the Province of Ontario to conduct hearings and make decisions on appeals and applications. The Members have a variety of experience and include environmental lawyers, academics, planners and mediators. The Members of the Tribunal are not employees of the Ministry of the Environment and Climate Change. The Members’ biographies are found on the Public Appointments Secretariat’s website.

 

Who can file an appeal?

Any person (including a corporation) that:

may appeal the decision of the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar to the Tribunal.

This person is referred to as the “Appellant”.

 

What is the deadline for filing an appeal?

The Appellant must file a Notice of Appeal with the Tribunal, and the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar whose decision is being appealed, within 15 days of receiving notification of the Director’s, Registrar’s or Deputy Registrar’s decision, or within 60 days of receiving notification of the Risk Management Official’s or Inspector’s decision. 

In determining whether a Notice of Appeal has been filed in time, “days” are calculated as calendar days. If a Notice of Appeal is submitted late, there is a very limited opportunity to extend the time to appeal. Unless the time to appeal is extended, the Tribunal has no authority to hold a hearing. 

 

What information must a Notice of Appeal contain?

There is no required form for a Notice of Appeal. Most people send their Notice of Appeal in a letter format.

The Notice of Appeal must include:

The reasons for the appeal should be specific. A reason such as “the Director was wrong to make this decision” is not specific and may result in the dismissal of the appeal. Without the Tribunal’s permission, an Appellant is not allowed to appeal any portion of the decision that is not set out in the Notice of Appeal.

After receiving the Notice of Appeal, the Tribunal will send the Appellant a letter specifying that, within 14 days of the date of the letter, the Appellant must provide the Tribunal with:

 

Does filing the appeal result in the Director’s decision not taking effect?

In most cases, filing an appeal does not stop the order from being in force and effect. Decisions of a Director, Risk Management Official, Inspector, Registrar or Deputy Registrar generally take effect as soon as they are issued. Even though a decision is being appealed, it must be complied with immediately, unless the Tribunal issues a stay order. A stay order postpones the requirements of all or part of a decision.

Some orders, such as orders to pay the costs of work, costs and expenses, environmental penalties or administrative penalties, are automatically stayed on appeal. 

The right to apply for a stay is not available for all types of decisions. For example, if a Director has refused to issue an Environmental Compliance Approval, the Tribunal cannot stay the Director’s decision (i.e. the Tribunal cannot order the Director to issue the Environmental Compliance Approval before holding the hearing), nor can the Tribunal stay an order to monitor, record and report. 

Additionally, the Tribunal cannot stay an order if doing so would cause:

 

How is a stay requested?

A person who intends to apply for a stay of a decision of the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar should indicate their intention to do so in the Notice of Appeal. A stay is requested by making a motion to the Tribunal. After the Tribunal hears the motion, it will determine whether to issue a stay or not.

A person seeking a stay shall arrange a teleconference call, through the assigned Case Coordinator, with the Tribunal, the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, and any other Parties to seek:

 

What information is required on a stay motion?

After the date, time and place for the stay hearing are established, the person requesting the stay must serve the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, and any other Parties with a formal Notice of Motion at least five days before the hearing of the stay motion and file two copies with the Tribunal. The Tribunal may shorten this period if requested. The Notice of Motion must set out the reasons for requesting a stay, and the date, time and place of the motion hearing. The Notice of Motion must also include evidence and submissions on:

 

How can neighbours and other concerned people participate?

Neighbours and other people who feel that they are affected by a decision under appeal may apply to the Tribunal for permission to participate in the hearing. They may choose to support the Appellant, support the decision of the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar, or advance a different position.

If you receive notice of the pre-hearing conference and hearing, you may write to the Tribunal, at least seven days before the date of the pre-hearing conference, and request to be included in the pre-hearing conference. At that time, you can request the member to add you as a Party, Participant or Presenter. A person may also attend the hearing and request to be added as a Party, Participant or Presenter. However, if the matter settles at the pre-hearing conference, a hearing will not take place and the person will have missed their chance to offer input in the matter. 

Requests for status must be relevant to the subject matter of the appeal before the Tribunal.

 

 

What is the difference between a Party, Participant and Presenter?

The Tribunal has different levels of participation so that anyone interested in the hearing can be involved. The Tribunal encourages participation in its hearings. As set out below, the three options for participation (i.e. Party, Participant, and Presenter) address different needs and interests.

 

Who can be a Party?

Persons that are specified as Parties by the statute that the appeal was filed under, or are otherwise entitled to be a Party by law, are automatically Parties to the proceeding. If a person requests Party status, the Tribunal may also name that person as a Party after considering: 

 

What is the role of a Party?

Those who request and receive Party status from the Tribunal take on the fullest range of rights and responsibilities. Most Parties are represented by a lawyer or another type of representative, but Parties may act on their own behalf by representing themselves. A Party can be either one person (including a corporation) or a group of persons. Generally speaking, unincorporated associations are not considered to be legal persons who can receive status before the Tribunal. Therefore, an individual who can bring forward the interests of an unincorporated association may seek status on behalf of the association. 

An added Party may not raise a new issue without permission of the Tribunal.

A Party may:

 

Who can be a Participant?

A person who has an interest in the subject matter of the hearing may be named as a Participant. The Tribunal may decide to name a person as a Participant, rather than as a Party, if the person’s connection to the subject matter of the appeal or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.

 

What is the role of a Participant?

A Participant has the right to observe and present their views at a hearing. They may also:

However, a Participant cannot:

 

Who can be a Presenter?

A person who has an interest in the subject matter of the hearing may be named as a Presenter. The Tribunal may decide to name a person as a Presenter, rather than as a Party or Participant, if the person’s connection to the subject matter of the appeal or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

 

What is the role of a Presenter?

A Presenter only needs to attend the hearing when they are presenting their evidence. In addition to the right to observe and present their views at a hearing, a Presenter may:

However, a Presenter cannot:

 

What is a pre-hearing conference?

The purpose of the pre-hearing conference is to prepare for the hearing by:

 

Is mediation available?

Tribunal-assisted mediation is offered to all Parties and is voluntary. Mediation takes place after the pre-hearing conference. The Member of the Tribunal who conducts the mediation will not conduct the hearing unless all Parties consent.

This service is provided at no cost to the Parties. The mediator may exclude everyone but the Parties from mediation. All documents submitted and all statements made during mediation are confidential and without prejudice. Any settlement agreement will be reviewed by the mediator to ensure that it follows Rules 156 to 160 of the Tribunal’s Rules of Practice and Practice Directions. If the settlement agreement is accepted by the mediator, a decision dismissing the proceedings will be issued.

 

How does one prepare for a hearing?

The key to effective participation in a hearing is being well informed and prepared to present your views and evidence. The Tribunal can only consider the information that is presented at the hearing. The evidence intended to be relied upon should be relevant to the issues before the Tribunal.

Parties, Participants and Presenters are strongly encouraged to review the statute that the decision or order was made under, and the Tribunal’s Rules of Practice and Practice Directions.

 

What are the disclosure requirements?

All Parties must provide a copy of every relevant document that is in their possession, control or power to all other Parties without charge. This must be done no later than the date the Tribunal sets for the exchange of these documents. Participants and Presenters may request to receive a copy of all documents relevant to their interests. Privileged documents are exempt from disclosure requirements.

All documents intended to be relied upon at the hearing must be filed with the Tribunal. The Tribunal must be given two or more copies of all documents filed, or as many as the Tribunal directs.

The obligation to disclose is ongoing throughout the hearing process. All relevant documents discovered during the course of the hearing must be provided to the other Parties and, if the document is to be relied upon at the hearing, to the Tribunal.

 

What is a witness statement?

Witnesses may be trained professionals, members of the community, academic specialists or individuals with specific knowledge who can give the Tribunal relevant information.

A witness statement is a written statement of the evidence a witness intends to present.

A witness statement should be direct and to the point. It should also be complete, meaning that the witness should not have to add anything new to the evidence at the hearing. However, the witness is entitled to explain more fully anything contained in the statement.

A witness statement should contain the following information:

If the witness statement does not contain all of the above information, Parties may risk their right to have the evidence admitted or may delay the hearing.

Witnesses will normally attend in person to give oral evidence and be subject to cross-examination. A Party who wishes to have witnesses present opinion evidence must have them accepted as experts by the Tribunal before their evidence can be admitted.

Witness statements should be exchanged between the Parties and filed with the Tribunal within the time directed by the Tribunal, which is usually no later than 15 days before the start of the hearing.

 

Can the Tribunal require a witness to attend a hearing?

The Tribunal has the power to summon a witness to attend a hearing to give evidence and to bring relevant documents and materials. A summons can be issued because the Tribunal wants to hear from the witness or because a Party has requested that the Tribunal require the person to act as a witness. 

The Party calling a witness is responsible for paying for the witness’ attendance costs at the same rate that a person summoned to appear before the Superior Court is paid. For more information on attendance costs for summoned witnesses, please see Tariff A of the Ontario Rules of Civil Procedure under the Courts of Justice Act.

It is the responsibility of the Party calling a witness to obtain and serve the summons (Form 3, Summons to Witness – Oral Hearing or Form 4, Summons to Witness – Electronic Hearing) as soon as possible before the start of the hearing. For more information on summons to a witness, please see Rules 191 to 196 of the Tribunal’s Rules of Practice and Practice Directions.

 

Can a hearing be postponed or adjourned?

Once a date has been set for a hearing, the hearing will proceed on that date except in exceptional circumstances, such as the sudden illness of a Party. If a Party cannot attend a pre-hearing conference or hearing, they may request, in advance, an adjournment to change the date. If a person has been notified of the time, date and place of a pre-hearing conference or hearing and fails to attend, the Tribunal may proceed with the pre-hearing conference or hearing and make its decision in the absence of that person.

For more information on adjournments, please see Rules 104 to 107 of the Tribunal’s Rules of Practice and Practice Directions.

 

How does the Tribunal hear an appeal?

The Tribunal may conduct a hearing by a panel of one, two or three members. An appeal will normally be conducted through an oral hearing. It might sometimes be conducted electronically (i.e. by telephone), through written submissions, or a combination.

At an oral or electronic hearing, each Party will have an opportunity to present evidence and submissions, call and cross-examine witnesses, and explain their case to the Tribunal.

At a written hearing, all Parties will be provided with the opportunity to make written submissions and to comment on other Parties’ written submissions.

 

What is the order of presentation at a hearing?

Parties and Participants may give brief opening statements stating what they feel are the issues in the case before the Tribunal, a brief summary of the evidence they intend to present, the names of the witnesses that they intend to call, and the amount of time they feel they will need to present their case.

While the Tribunal can direct the order of the presentation of evidence, the administrative decision-maker whose decision is being appealed (i.e. the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar) will usually present their case first. At the conclusion of the examination of each of the Director’s, Risk Management Official’s, Inspector’s, Registrar’s or Deputy Registrar’s witnesses, the Parties have the chance to cross-examine the witness. After the cross-examination of each witness, the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar can re-examine their witness on any issue that comes up for the first time during the cross-examination of the witness.

When the Director’s, Risk Management Official’s, Inspector’s, Registrar’s or Deputy Registrar’s evidence has been presented, the other Parties will have the chance to present their case following the same procedures. The Appellant will present their case, followed by any remaining Parties. This includes the calling of any witnesses, and their cross-examination and re-examination.

Participants and Presenters also have the chance to present their evidence, and may be subject to cross-examination by the Parties.

The Appellant then has the chance to present any additional evidence that comes out of the evidence submitted by another Party. This reply will be limited to evidence that the Appellant could not have reasonably expected during their initial presentation of evidence.

When all the evidence has been heard, each Party and Participant can make a final submission. This submission gives the Parties and Participants a chance to summarize the important facts that they are relying on, to summarize any points of law or policy that they think are relevant for the Tribunal’s consideration, and to persuade the Tribunal to accept their argument or position.

At any time during the hearing, the Tribunal may ask questions of Parties, Participants, Presenters, witnesses, lawyers or representatives.

 

What principles govern the Tribunal’s hearings?

The Tribunal conducts its hearings to ensure the just, most efficient and cost effective adjudication of the appeal. The Tribunal is committed to open, accessible and understandable hearing procedures that enhance access to justice and public participation.

The Tribunal’s objective is to consider all the evidence presented, and make a decision with written reasons in a manner that is consistent with the Act under which the hearing is being heard, and that fulfills the core values of accessibility, fairness, transparency, timeliness, integrity, professionalism and independence.

 

Who can attend Tribunal hearings?

Tribunal hearings are open to the public, unless ordered otherwise by the Tribunal. The Tribunal may order a hearing closed to the public on its own initiative, or at the request of a Party. The Tribunal will only order a hearing closed to the public when the Tribunal determines that intimate financial, personal or other matters may be disclosed at a hearing.

 

What type of decision can the Tribunal make?

The Tribunal may confirm, alter or revoke the decision that is the subject matter of the hearing, and may, by order, direct the Director, Risk Management Official, Inspector, Registrar or Deputy Registrar to take such action as the Tribunal considers appropriate. The Tribunal may substitute its opinion for that of the Director, the Risk Management Official, Inspector, Registrar or Deputy Registrar.

 

When will the Tribunal make a decision?

The Tribunal usually issues a written decision and its reasons within 60 days after the hearing.

A copy of the decision is sent to all Parties, Participants and Presenters. The Tribunal’s decisions are available on the Tribunal’s website usually within 24 hours of its release, and are also available on the publicly accessible legal database, CanLII.

 

Can the Tribunal award costs?

Participating in a hearing usually involves some costs. These costs may include:

In rare circumstances, costs may be awarded, but only where there has been improper conduct by a Party. For more information on costs, please see Rules 212 to 220 and 225 to 231of the Tribunal’s Rules of Practice and Practice Directions.

 

Can the Tribunal’s decision be appealed or reviewed?

An appeal of the Tribunal’s decision (except for a hearing under the Clean Water Act, 2006 (section 70), the Climate Change Mitigation and Low-carbon Economy Act, 2016, the Resource Recovery and Circular Economy Act, 2016 or the Waste Diversion Transition Act, 2016) may be made in writing to the Minister of the Environment and Climate Change on any matter other than a question of law. The Minister will then confirm, alter or revoke the Tribunal’s decision if the Minister considers that it is in the public interest to do so. 

The appeal must be made within 30 days after the release of the Tribunal’s decision or, for matters under the Safe Drinking Water Act, 2002 where an appeal has been made to Divisional Court, within 30 days of the decision on that appeal.

An appeal of the Tribunal’s decision may be made to the Divisional Court on a question of law. This appeal must be filed in accordance with the Rules of Civil Procedure under the Courts of Justice Act. Under some statutes, appeals to the court are only allowed if leave (i.e. permission) to appeal is granted by the court.

In some cases, there is a chance for a judicial review of the decision by the Divisional Court. A review (i.e. reconsideration) of a Tribunal decision by the Tribunal itself may also be done under the limited circumstances set out in Rules 235 to 243 of the Tribunal’s Rules of Practice and Practice Directions.

 

Is a lawyer needed?

You can represent yourself or you can have someone else represent you. If you choose a representative, then you must give your representative signed written authorization. A representative, who can be either a lawyer or non-lawyer, must be authorized under the Law Society Act, which means that they must be licensed or exempt under the Act or by-laws. There is an exemption that allows for persons who are not in the business of providing legal services to occasionally provide assistance to a friend or relative for no fee. For information on licensing and exemptions, please see the Law Society of Upper Canada’s website.

 

How is accommodation provided?

Parties, Participants, Presenters, witnesses and representatives are entitled to accommodation by the Tribunal for needs related to the Human Rights Code, such as a disability. Those requiring accommodation should notify the assigned Case Coordinator or the Tribunal Secretary as soon as possible.

 

What language services are available?

Those who require the pre-hearing conference or hearing to be translated into French should write to the Case Coordinator at least 25 days before the event to make their request.

 

Who can access Tribunal documents?

All documents filed with the Tribunal and all communications to and from the Tribunal are part of the Tribunal’s public record, and are available for reasonable access by the public (unless the Tribunal orders otherwise). 

 

For more information:

For more information, please refer to the statute under which the appeal was made (e.g. the Clean Water Act, 2006, the Climate Change Mitigation and Low-carbon Economy Act, 2016, the Environmental Protection Act, the Nutrient Management Act, 2002, the Ontario Water Resources Act, the Pesticides Act, the Resource Recovery and Circular Economy Act, 2016, the Safe Drinking Water Act, 2002, the Toxics Reduction Act, 2009 and the Waste Diversion Transition Act, 2016), the Tribunal’s Rules of Practice and Practice Directions and the Tribunal’s website.