Who Enforces the Class EA? The ORC Case
In January 2001, two environmental groups submitted an EBR application for investigation alleging that the Ontario Realty Corporation (ORC) contravened the Environmental Assessment Act (EAA) by failing to comply with the requirements of its Class Environmental Assessment for ORC Realty Activities (the Class EA). Class environmental assessments are streamlined planning processes, designed under the EAA, that apply common rules to groups of similar public sector projects. ORC is the agency responsible for lands and property owned by the provincial government. ORC’s new Class EA was approved in April 2004, but this investigation was carried out under the original Class EA approved in 1992. The applicants said that ORC had sold or was proposing to sell several properties without carrying out the proper environmental study and public consultation required by the Class EA. They listed several specific properties, including a 170-hectare property at Reesor Road and Steeles Avenue in Markham that ORC was planning to sell to the Catholic Cemeteries Archdiocese of Toronto (CCAT).
Class EAs set out different levels of EA study, or “categories” according to different degrees of predicted environmental impact. ORC’s Class EA places most land sales in Category B – projects that have “some potential for adverse effects.” Category B projects require consultation with directly affected parties, a site analysis, and filing of a Consultation and Documentation Record. When the property being sold contains or affects an Environmentally Significant Area (ESA) and is being sold to a non-conservation body, the project is listed as a Category C. Category C projects have “known significant impacts” on the environment and require additional study and consultation. Category D projects require even more thorough individual environmental assessments. The applicants suggested that the land sales in question should have been Category C or D instead of Category B.
MOE carried out an EBR investigation in response to this application and concluded that “none of the available information had shown that the Ontario Realty Corporation conducted the wrong category of assessment for any of the properties mentioned in the application.” MOE pointed out that even if the wrong environmental planning process was followed, the limitation period for prosecutions for this offence had expired because most of the sales took place several years ago. Under the Provincial Offences Act, charges for an offence under the EAA must be laid within six months after the date upon which the offence was or is alleged to have been committed.
The ECO reported on this investigation in the Supplement to our 2002/2003 annual report. We noted that the investigation highlighted the inadequacy of the statute of limitations for prosecutions under the Provincial Offences Act, which makes it very difficult to pursue applications for investigation regarding the EAA under the EBR. Moreover, the combination of the six-month limitation period and long MOE investigations can deprive applicants of their rights to launch private prosecutions, should MOE decide not to take action. MOE should consider amending the EAA to provide a two-year statute of limitations.
The Reesor Road property
One of the properties specified in the EBR application, the Reesor Road property, was sold in March 2002, during the EBR investigation. MOE concluded that the proposed sale had properly been categorized as a Category B undertaking because there were no ESAs on the property. The applicants believed it was a Category C undertaking, alleging that the sale of the property was environmentally significant and that there had not been adequate public consultation. The ministry did not provide an EBR investigation summary to the applicants regarding the Reesor Road property, and instead, simply sent them a copy of its denial of the applicants’ request under the EAA that the undertaking be bumped to an individual environmental assessment, adding that this concluded the EBR investigation as well. MOE did not provide the applicants with a point-by-point review of the Reesor Road Consultation and Documentation Record as it did for the Consultation and Documentation Record for another property specified in the EBR application.
The ECO has commented before in such cases that MOE should not equate turning down a bump-up request with the assumption that a proponent is in compliance with a Class EA and the EAA. MOE’s response to the applicants, stating that there was no need to bump-up the project to a Category C project, did not persuade the ECO that ORC complied with the requirements of the Class EA in carrying out this land sale.
The ECO accepts MOE’s conclusion that ORC was in compliance in categorizing the sale as a Category B project. However, the ECO does not believe that MOE properly assessed ORC’s compliance with the requirements for carrying out a Category B project for Reesor Road, nor that ORC met those requirements. It appears to the ECO that MOE condoned ORC non-compliance with the Category B requirements of the Class EA, and failed to review other matters of compliance that should have been investigated. Finally, MOE made incorrect and misleading statements to the applicants in its defence of ORC’s actions. (For more detail on this application, see the Supplement to this report, pages 269-276)
Reeser Road property – the private prosecution
The applicants and other parties remained concerned about the Reesor Road land sale. In July 2002, David Sanford, representing the Huron Wendat First Nation, commenced a private prosecution in the Ontario Court of Justice, alleging that ORC failed to conduct a proper environmental assessment before selling the Reesor Road property. He alleged ORC did not follow the mandatory procedures for completing a Category B land sale. One of the EBR applicants assisted Mr. Sanford in the private prosecution.
In the Supplement to our 2002/2003 annual report, the ECO said we would monitor the court case and report the outcome in the next annual report. The ECO did not comment on MOE’s conclusions regarding the investigation because we did not want to influence the court case. In January 2004, the Environmental Commissioner was compelled to testify at the trial. The Commissioner testified it was his view that: ORC was obliged by its Class EA to consult relevant aboriginal groups; that there was no indication that ORC had undertaken any consultation with aboriginal groups; and that he disagreed with MOE’s conclusion on the EBR investigation that ORC was in compliance with its Class EA on this land sale.
On May 17, 2004, Justice of the Peace Sunny Ng found ORC guilty of an offence under the Environmental Assessment Act and fined the agency $7,500. The maximum fine for a first offence is $10,000. A written decision has not yet been released, but according to press reports, Justice Ng stated that the requirement to consult was mandatory and that ORC had made no attempt to consult, despite its assertion to the contrary. He said ORC had a clear obligation to fully consult with aboriginal people and other involved parties on any land sale. He said there was no documented evidence that contact had been made with interested First Nations and ruled that the Ontario Government had neglected its fiduciary responsibility to aboriginal people by not consulting with them before the sale.
ECO Comment
This private prosecution is groundbreaking, and should serve as a wake-up call to environmental assessment proponents and to the Ministry of the Environment. Although the Class EA process is designed to be self-regulating, proponents must follow their approved processes and any terms and conditions. The ECO notes that MOE remains responsible for monitoring and enforcing compliance, and for responding to EBR investigations and other complaints.
It is noteworthy that many applications for investigation under the EBR have involved alleged violations of Class EAs and concerns that proponents were not adequately monitored by MOE. Also, this was the second time in five years that an environmental group felt compelled to go to the courts to bring attention to MOE’s inadequate enforcement of the Environmental Assessment Act. These applications for investigation and court proceedings reinforce the need for MOE to take its responsibility for monitoring Class EAs seriously. (See EBR Rights Lost: Behind the Veil of Section 32 for further discussion of environmental assessment issues.)
| Recommendation 7:
The ECO recommends that MOE review the need to amend the Environmental Assessment Act to provide a two-year statute of limitations for prosecutions. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "Who Enforces the Class EA? The ORC Case." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 70-73.
