Hearings before the Environmental Review Tribunal (ERT)

1. Hearings before the Environmental Review Tribunal (ERT) Sylvia Davis Counsel Legal Services Branch – Ministry of the Environment January 2013 1

2. What is the “ERT”? • An arm’s length administrative tribunal making decisions on appeals under various statutes administered by MOE • Members appointed by Cabinet • Currently a number of environmental lawyers on ERT • No technical staff • ERT website: www.ert.gov.on.ca • ERT rules and guidelines • Decisions and orders 2

3. How do ERT hearings start? 1. Notice of Appeal: • Under a number of MOE statutes, a person to whom an appealable instrument (e.g., order, approval, permit) is issued can appeal to the ERT (e.g. s. 140 EPA). See, for example, ss.139 &140 of the EPA: 140.  (1)  A person to whom an order of the Director is directed may, by written notice served upon the Director and the Tribunal within fifteen days after service upon the person of a copy of the order, require a hearing by the Tribunal.

4. How do ERT hearings start? 2. Application for a 3rd party Leave to Appeal: • Under the Environmental Bill of Rights (EBR), anyone who is interested and a resident of Ontario can ask for permission (seek leave) to appeal by bringing an application for leave to appeal. • s.38 of the EBRsets out where the right exists: 38.  (1)  Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met: 1. The person seeking leave to appeal has an interest in the decision. 2. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

5. How do ERT hearings start? 2. Application for a 3rd party Leave to Appeal (cont.): • Time to apply for leave to appeal is also fifteen days after notice is given (usually date posted on Environmental Registry) • Test for leave is set out in s.41 of EBR: 41.Leave to appeal a decision shall not be granted unless it appears to the appellate body that, (a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and (b) the decision in respect of which an appeal is sought could result in significant harm to the environment. • If leave is granted, that person must then file a Notice of Appeal.

6. How do ERT hearings start? 3. Notice of Appeal of Renewable Energy Approval (REA): • Apply to “green energy” projects – like wind turbines, solar farms • 3rd party appeals are not governed by the EBR – appeal as of right but on limited grounds within fifteen days Hearing re renewable energy approval 142.1  (1)  This section applies to a person resident in Ontario who is not entitled under section 139 to require a hearing by the Tribunal in respect of a decision made by the Director under section 47.5. … Grounds for hearing (3)  A person may require a hearing under subsection (2) only on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause, (a) serious harm to human health; or (b) serious and irreversible harm to plant life, animal life or the natural environment.

7. Appeals: Key Steps Step 1: Notice of Appeal filed by the Appellant. • The Notice lays out “grounds” for the appeal. • Grounds are the arguments the Appellant makes to revoke or alter the instrument. They frame the appeal. • Grounds must be something the Director and ERT can do something about e.g., disliking a law is not a proper ground.

8. Appeals: Key Steps Step 2: ERT Initial Response to Notice • The ERT acknowledges the Notice. • If the ERT thinks there is a fatal flaw in the Notice, it will allow the Appellant to argue otherwise and the Director to respond. • The ERT then makes a decision as to whether to dismiss the appeal.

9. Appeals: Key Steps Step 3: ERT sets key dates • The ERT asks for information from the Appellant regarding adjacent properties, interested parties and date availability. • At minimum, a date is set for a Preliminary Hearing • Other dates could include stay motion, mediation and hearing. • ERT sends notice of Preliminary Hearing to neighbours and other interested persons.

10. Appeals: Key Steps Step 4: Motion Seeking a Stay • In most cases, an instrument that is under appeal is not automatically “stayed” or suspended. • Exceptions: order to pay costs and expenses and order to pay an environmental penalty. • The Appellant must bring a motion to stay all or part of the instrument. • The Director might agree to the stay and then the ERT issues a decision staying the instrument “on consent”.

11. Appeals: Key Steps Step 4: Motion for a Stay (continued) • If the Director does not consent, the ERT holds a stay hearing to decide whether the stay should be granted. • The hearing is in person or by teleconference but the evidence is normally by affidavit. Witnesses do not have to show up to testify.

12. Appeals: Key Steps Step 4: ERT holds Preliminary Hearing • Usually held in person in the affected community • Open to the public • There is no evidence heard. • ERT decides: • Who will participate in the Hearing • What the issues that need to be resolved are • Dates for disclosure, witness statement, motions and the hearing itself

13. Who can take part in an appeal hearing? • The person to whom the instrument was issued and the issuing Director are parties automatically. • Others may ask to be added as a party, participant or presenter. • Added parties could include: • Persons who may be affected by the instrument • Persons who have a genuine interest in the proceeding • Persons who are likely to make a genuine contribution to the ERT’s understanding of the issues

14. Appeals: Key Steps • After Preliminary Hearing, two parallel processes are often pursued: • Getting ready for the hearing before the ERT • Settlement discussions and/or mediation • Most matters are resolved without a hearing.

15. Appeals: Key Steps Next Step: Settlement Discussions and/or Mediation • Settlement discussions/mediation are usuallyconfidential and “without prejudice” to a party’s position at a hearing, which allows for frank discussion. • Mediation involves a neutral third party helping the parties to settle some or all issues. The ERT offers mediation services. • Key is to keep an open mind during discussions.

16. Appeals: Key Steps Next Step: Preparing for the Hearing • Disclosure • Witness Statements • Motions • Witness Preparation

17. Appeals: Key Steps Next Step: Preparing for the Hearing • Disclosure: A requirement that each party provide every other party a copy of every document or thing relevant to the appeal (except for privileged documents). • Now often done electronically. • Will need to gather, organize, log and provide all relevant documents or things a Director has access to, not just the local file(s).

18. Appeals: Key Steps Next Step: Preparing for the Hearing • Witness statements: each party must provide witness statements summarizing the evidence that will be given by its witnesses. • ERT has rules as to what should be included in witness statements.

19. Appeals: Key Steps Next Step: Preparing for the Hearing • Motions: happen any time a party makes a request (moves) for a ruling or order by the ERT on a particular issue. • Examples of motions: adjourn, dismiss, order more details (called particulars), grant a stay, scope of the hearing, etc. • In a very contested case, numerous motions could be brought. • Motions are usually argued in person or via teleconference. The evidence is normally by affidavit. Witnesses do not have to show up to testify.

20. Appeals: Key Steps Next Step: The Hearing • Always held in person • Open to the public • Witnesses provide evidence in person and are cross-examined. • ERT will hear and gather the information it needs to consider an appeal and decide whether the instrument or order under appeal should be confirmed, amended or revoked

21. Appeals: Key Steps • If either party does not like the decision of the ERT, there is a right of appeal set out in most MOE statutes. • The decision of the ERT can be appealed to Divisional Court (only on a question of law) and to the Minister (on anything else). • The legislation gives time limits for starting such an appeal.

22. Application for Leave to Appeal • Written process. No attendance in person. • Applicant files leave application and instrument that is subject of the leave application with ERT. • Director prepares response which normally includes affidavit evidence. • Needs to be done quickly - a few days up to ten days, unless extended • Applicant can file a reply. • ERT decides whether or not to grant leave based on the written information before it. • If leave is granted, the third party must file a Notice of Appeal.

23. Appeal of REA • Expedited hearing process. • Written decision must be issued within six months from the day the Notice of Appeal is served. • Grounds of appeal: • Serious harm to human health; or • Serious and irreversible harm to plant life, animal life or the natural environment.

24. ERT v. COURT (what’s the difference) • Administrative Tribunals like the ERT decide matters on a balance of probabilities. In provincial offences court convictions only occur where the Crown proves its case beyond a reasonable doubt • All parties to a hearing before an administrative tribunal are obliged to provide disclosure, in provincial offences court only the Crown has a full disclosure requirement • Courts are very strict regarding the type of evidence they will admit. Administrative Tribunals will admit just about any kind of evidence – but will differentiate based on weight

25. An example of a recent REA hearing: Katie Brenda Erickson and Chatham-Kent Wind Action Inc. v. Director (MOE) (REA Hearing before ERT – Legislative requirement that ERT decision be rendered within 6 months of appeal notice being filed with tribunal, Tribunal has some ability to adjourn) • Disclosure obligations had to be fulfilled in 14 days • The Appellants disclosed thousands of pages of documents which had to be reviewed, also in a short period of time • There were three parties: the Appellants, the Approval holder who was Suncor and the MOE, there was also one presenters • There were 26 witnesses and 24 were qualified as experts (the Appellants called 10, MOE 8 and Suncor 8) • Due to the way the Appellants’ disclosed their case some of our witnesses were required to submitted 2 different witness statements • The hearing was 16 days long, took place over two months and occurred in Toronto and Chatham (Notice filed November 29, 2010, final submissions provided May 26, 2011). • There were 112 exhibits and 3 formal motions