How to Appeal Ministry Decisions
Under the EBR, ministries must classify instruments — the permits, licences or certificates of approval they issue to proponents such as industrial facilities — according to their environmental significance. This classification determines which instrument proposals are posted on the Environmental Registry and whether they are subject to EBR processes such as review, investigation and appeal. There are two ways you can become involved in appealing ministry decisions on instruments. You can start an appeal process yourself by seeking leave (or permission) to appeal a decision. Or you can participate in an existing appeal process already initiated by a proponent. Appealing a ministry decision on an instrument takes time, money and expertise, and you may wish to hire a lawyer. (See Lawyer Referral Service.)
Initiating an appeal process yourself by seeking leave to appeal a ministry decision
This is called the “third-party” appeal process. You are the “third party” because the proponent and the ministry are considered the “first” and “second” parties. You must ask for permission to appeal a ministry decision from the proper appeal body — the Environmental Review Tribunal, for instance. Because each appeal tribunal is different, you should contact the tribunal for information about its procedures before you begin. (The appeal tribunal is listed on the decision notice posted on the Environmental Registry.) Here's the process:
To apply for leave to appeal a ministry decision, you have to show:
(a) that you have an "interest" in the decision. (For example, you may live near the facility granted the instrument, or you may have commented on the original proposal to issue the instrument.)
(b) that this kind of decision can be appealed under another Act. (For example, the owners of a waste management company may have a right under the Environmental Protection Act to appeal some terms and conditions of the certificate of approval to operate their facility. The Registry posting will tell you whether or not the decision can be appealed.)
You must seek leave to appeal a decision within 15 days after the ministry places the decision on the Environmental Registry.
Send your application for leave to appeal to the ECO, to the appeal tribunal, to the company or proponent holding the instrument, and to the ministry official who issued the instrument. The Environmental Commissioner then places notice of your leave to appeal application on the Environmental Registry.
The tribunal considers the following two questions in deciding whether to hear your appeal:
- Is there good reason to believe that no “reasonable” person, having regard to the law and any relevant government policies, could have made the decision?
- Could the decision being appealed result in significant harm to the environment?
In your application, make sure you include:
- Proof that you have an interest in the decision and that you meet the other conditions required to appeal. (For example, certain tribunals allow only Ontario residents to appeal decisions.)
- A statement of all facts you are relying on for the appeal.
- A statement explaining why you think your appeal passes the basic tests described in step 4 above.
- Copies of all supporting documents relied on for the appeal.
- A copy of the instrument you are appealing (this can be obtained from the ministry issuing the instrument).
- A statement describing the portions of the instrument you wish to challenge in the appeal hearing.
- Your telephone number and fax number where you can be reached during the tribunal’s business hours (usually 9 a.m. to 5 p.m. most weekdays).
If your application is incomplete, the tribunal will send a letter explaining the deficiencies. The tribunal may dismiss the leave application unless the deficiencies are corrected within the time frame provided by the tribunal.
Lawyers for the ministry and the proponent will be invited to respond to your application and asked to put forward arguments as to why you should not be granted leave to appeal. If these responses raise new issues and involve new evidence, you may be permitted to reply.
Generally, the appeal tribunal will decide on your application within 45-60 days, unless there are unusual circumstances.
' If the tribunal finds you have not met the requirements for leave to appeal and that your grounds for appeal do not have merit, it will dismiss your application.
If the tribunal finds that you have met the requirements for leave to appeal and your grounds for appeal do have merit, it will allow you to proceed with a regular appeal hearing. In that case, the tribunal will usually put the ministry's decision on hold until the appeal is decided.
After hearing the appeal, the tribunal may:
- agree with the ministry's decision, or
- overturn the decision, or
- decide if new conditions should be added to the ministry’s original decision.
Please note that each tribunal has different decision-making powers.
Participating in an existing appeal process
Here's how it works:
- A proponent named in an instrument (such as a company seeking approval to discharge chemicals into the environment) appeals the ministry’s decision because they may not like certain conditions in the approval.
- A notice of the appeal is placed on the Environmental Registry. The tribunal or the proponent may also give you notice of the appeal, sending you a letter, for example, if you live in the vicinity of the facility.
- The tribunal may let you participate. The relevant tribunal (for example, the Environmental Review Tribunal) may allow any person with an interest in the appeal to participate fully in the hearing, or to take part in pre-hearing meetings or settlement negotiations. For more information about this kind of appeal process, contact the relevant tribunal.
