Heenan Blaikie

BY E-MAIL

November 1, 2013

Of Counsel The Right Honourable Pierre Elliott Trudeau, P.C., C.C., C.H., Q.C., FRSC (1984 - 2000) The Right Honourable Jean Chrtien, P.C., C.C., O.M., Q.C. The Honourable Donald J. Johnston, P.C., O.C., Q.C. Pierre Marc Johnson, G.O.Q., FRSC The Honourable Michel Bastarache, C.C. The Honourable Ren Dussault, O.C., O.Q., FRSC, Ad. E. The Honourable John W. Morden Peter M. Blaikie, Q.C. Andr Bureau, O.C., O.Q.

Rick O'Connor City of Ottawa Legal Services Branch 110 Laurier Avenue West Ottawa, ON K1P 1J1 Our Reference: 040144.0102 Re: Legal Opinion regarding a) the viability of an Application for Judicial Review of the August 28, 2013 Order in Council 1228/2013 of the Lieutenant-Governor in Council granting Waste Management of Canada Corporation approval to proceed with an undertaking under conditions as referenced in the Ontario Environmental Assessment File No. EA-02-08-02; - and b) the viability of an Application for Judicial Review of the August 16, 2013 approval of an application by Waste Management of Canada Corporation granting Waste Management of Canada Corporation approval to proceed with an undertaking under conditions as referenced in the Ontario Environmental Assessment File No. EA-02-08-02 Dear Mr. OConnor: Your office has requested that we provide you with a legal opinion as to the viability of an application for judicial review of the August 16, 2013 decision of the Minister of the Environment [the Minister] made in the form of a Notice of Approval to Proceed with Undertaking [the Notice of Approval] by which the Minister approved of an application made by Waste Management of Canada Corporation [WM] pursuant to the Environmental Assessment Act, R.S.O. 1990, ch. E.18 [the Act] with respect to a new landfill footprint at the West Carleton Environmental Centre (Amended January 21, 2013) in Ministry of Environment file no. EA-02-08-02. You have also asked that we provide our opinion as to the viability of a judicial review application of the August 28,

Benoit M. Duchesne T 613 236.1946

F 1 866 720.0202 bduchesne@heenan.ca 55 Metcalfe Street Suite 300 Ottawa, Ontario Canada K1P 6L5 heenanblaikie.com

Heenan Blaikie LLP Lawyers Patent and Trade-mark Agents Ottawa Montreal Toronto Vancouver Qubec Calgary Sherbrooke Trois-Rivires Victoria Paris Singapore

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2013, Order in Council no. 1228/2013 [the Order in Council] which followed the Ministers August 16, 2013, decision. You have also requested that we provide our opinion on the following specific issues in light of the Notice of Approval and the Order in Council: 1. 2. 3. What steps are required to be taken in order to initiate an application for judicial review, and in which time frames?; What are the probabilities of success of an application for judicial review?; and, What are the reasonably foreseeable financial risks for the City should it initiate an application for judicial review?

Our conclusions to your questions may be found in the Conclusion section of this opinion, on pages 20 and following. By way of brief executive summary, our opinion on the questions you have asked is as follows: 1. What steps are required to be taken in order to initiate an application for judicial review, and in which time frames? A: An application for judicial review is initiated by the commencement of a proceeding before the Divisional Court. There is no fixed time frame within which the application is required to be commenced after the date of the decision to be reviewed, but delay in proceeding in a timely manner may lead the court to refuse to grant a remedy. Most lawyers will recommend commencing an application within 30 days of the date of the decision to be reviewed or of the date at which the decision came to the applicants attention, whichever is the latest. A delay greater than 6 months after the date of the decision to be reviewed would likely be considered as undue in the circumstances. 2. What are the probabilities of success of an application for judicial review? A: Our opinion is that an application for judicial review based on the alleged non-compliance with the approved ToR in this case will in all likelihood be unsuccessful. We consider the probabilities of success in such a proceeding to be quite low. 3. What are the reasonably foreseeable financial risks for the City should it initiate an application for judicial review? A: The Citys direct and reasonably foreseeable financial risks would be measured by the costs it could be ordered to pay to the successful parties if it is

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unsuccessful, as well as its own financial cost for the matter. It is not unreasonable to expect that the combination of a potential costs order as well as own representation costs could expose the City to a financial risk of $ 125,000 to $ 265,000. For the purposes of this legal opinion, we have reviewed the original Terms of Reference prepared by WM and dated August 2010; the February 22, 2013, Ministry of the Environment Review of the Environmental Assessment for a New Landfill Footprint at the West Carleton Environmental Centre; City Council Minutes 43 dated October 24, 2012; City of Ottawa Information Technology Sub-Committee recommendations regarding a New Landfill Footprint at the West Carleton Environmental Centre; City of Ottawa Report to the Planning and Environment Committee and Council dated August 16, 2010; the Conestoga-Rovers & Associates Report delivered to Meagan Wheeler Cuddihy dated October 1, 2012; the Staff Comments on Final Environmental Assessment of a New Landfill Footprint at the West Carleton Environmental Centre Waste Management Corporation October 2012; the September 5, 2013, letter from Jim Bradley, Minister of the Environment to Tim Murphy, the Director of Environmental Protection and Regulatory Affairs for WM; Order in Council no. 1228/2013; the August 16, 2013, Notice of Approval to Proceed with the Undertaking signed by the Minister which also sets out the Ministers decision that a hearing before the Environmental Review Tribunal is unnecessary in the matter of WMs application under the Act; the Environmental Assessment Act, R.S.O. 1990, ch. E.18 [the Act]; the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 [the JPPA] and the relevant caselaw with respect to the judicial review of ministerial decisions made pursuant to decision-making powers contained in environmental legislation. FACTS On April 13, 2010, WM initiated an Environmental Assessment process [EA] under the Act. WM had commenced an application for the expansion of their existing Ottawa Waste Management Facility commonly known as the Carp Landfill. WM proposed to include a new landfill footprint at the West Carleton Environmental Center as well as recycling and composting facilities. WM completed the first step in its application on June 18, 2010, when it submitted its Terms of Reference document [ToR] to the Minister. The ToR provided the framework for what information would be included in WMs EA. The City provided a number of comments and suggestions with respect to the ToR prior to its submission by WM to the Minister. The majority of the Citys comments were accepted by WM and it made changes to its ToR in order to take into account those of the Citys comments which it had accepted. Other comments as communicated to WM did not receive the same treatment and did not result in substantive changes to WMs proposed approach to its EA to be completed as part of its application.

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WM then received the Ministry of Environments [MOE] approval to proceed with the EA on November 25, 2010. This approval followed the MOEs initial review of the ToR and amendments thereto to take into account MOE comments. By November 25, 2010, the Minister had approved WMs ToR. The EA was initiated in January 2011 and WM submitted the final EA to the MOE on September 14, 2012. Over the five week consultation period which followed, the City submitted numerous comments and concerns regarding the EA. The Citys comments and concerns dealt with issues of odour control at the site, property value protection for the surrounding areas, the service area for the proposed undertaking, site plan control approval, traffic, reporting, site capacity and landfill expansion. The City also proposed a process for future project amendments and for the establishment of a public liaison committee. WM replied to some of the Citys concerns and submitted an Amended EA to the MOE on January 21, 2013. The MOE proceeded to its review of the Amended EA as required by the Act. The MOEs review was undertaken in order to conclude whether or not the Amended EA had been prepared in accordance with the approved ToR, met the requirements of the Act and whether it contained sufficient information to allow the Minister to make a decision about the proposed undertaking in light of the purposes of the Act. The MOE Review provided an overview of the different comments received during the consultation processes required by the Act. The MOE Review also identified some key issues which were mostly constituted of comments and concerns from the City and members of the public. These key issues included: Groundwater protection; Odour concerns Site; Capacity and Waste Diversion; the establishment of a Public Liaison Committee; the establishment of a Property Value Protection Plan; and, Traffic and Service Area concerns. The MOE Review concluded that WM had provided adequate and satisfactory responses to all key issues and concluded that the EA submitted by WM was prepared in accordance with the approved ToR and contained sufficient information to assess the potential environmental effects of the proposed WM undertaking. Being of the view that some of the environmental issues the City submitted relating to the EA were not properly addressed by WM and therefore were still outstanding following the MOE Review, an interested group delivered a request to the Minister that the MOE Review be brought on for a hearing before the Environmental Review Tribunal pursuant to the Act. On August 16, 2013, the Minister delivered his decision on the request for a hearing. The Minister considered that a hearing before the Environmental Review Tribunal was unnecessary in this case and rejected the request for a hearing. On the same date and in the same decision the Minister delivered a Notice of Approval of WMs application pursuant to section 9 of the Act. The Ministers Notice of Approval

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sets out what the Minister considered as the basis for his decision to approve WMs application to proceed with its undertaking as follows:
Having considered the purposes of the Environmental Assessment Act, the approved Terms of Reference, the Amended Environmental Assessment, the Ministry Review of the Environmental Assessment and submissions received, I hereby give approval to proceed with the Undertaking, subject to the conditions set out below.1

Attached to the Notice of Approval were the Ministers reasons for approving the application for the proposed undertaking as well as five (5) pages of conditions which WM is required to comply with and meet in order for it to proceed with its undertaking. On August 28, 2013, the Lieutenant Governor signed Order in Council no. 1228/2013. By the signature of the Order in Council, the Lieutenant Governor indicated his concurrence with the Minister and with Cabinet, and approved WMs application subject to the Ministers conditions which were incorporated into the Order in Council by reference. We understand from informal discussions with the Richardson Corridor Community Association [the RCCA]s lawyers that the RCCA believes that the Amended EA delivered by WM and reviewed by the Ministry did not respect or comply with the ToR submitted by WM and approved by the Minister earlier in the application approval process. We also understand from the RCCAs lawyers that the RCCA at this time believes that WMs failure to respect or comply with the ToR approved by the Minister in the application process makes the August 16, 2013, decision unreasonable because the Ministers approval of the application can be argued as approving or glossing over WMs failure to comply with the ToR approved by the Minister.
1

. August 16, 2013, Notice of Approval to proceed with the Undertaking. The Minister set out his reasons for his decision as follows: My reasons for giving approval are: (1) The proponent has complied with the requirements of the Environmental Assessment Act. (2) The Amended Environmental Assessment has been prepared in accordance with the approved Terms of Reference. (3) On the basis of the proponent's Amended Environmental Assessment and the Ministry Review, the proponent's conclusion that, on balance, the advantages of this undertaking outweigh its disadvantages appears to be valid. (4) No other beneficial alternative method of implementing the undertaking was identified. (5) The proponent has demonstrated that the environmental effects of the undertaking can be appropriately prevented, changed, mitigated, or remedied. (6) On the basis of the proponent's Amended Environmental Assessment, the Ministry Review and the conditions of approval, the construction, operation and maintenance of the undertaking will be consistent with the purpose of the Environmental Assessment Act (section 2). (7) The government agency, public and Aboriginal review of the Amended Environmental Assessment has indicated no outstanding concerns that cannot be addressed through commitments made in the Amended Environmental Assessment, through the conditions set out below, or future additional approvals that will be required. (8) The submissions received after the Notice of Completion of the Review was published are being dealt with through commitments made in the Amended Environmental Assessment, through the conditions set out below, or future additional approvals that will be required. I am not aware of any outstanding issues with respect to this undertaking which suggest that a hearing should be required.

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We understand that it is now suggested that the August 16, 2013, Ministerial decision as set out in the Notice of Approval and the August 28, 2013, Order in Council be judicially reviewed and quashed on the basis that the Ministers decision, and indeed the Order in Council, are unreasonable decisions. DISCUSSION 1. Judicial Review Generally

Any discussion about judicial review must begin with an understanding of the purpose of judicial review. The Courts function in a judicial review context is two-fold. First, the Court seeks to control the legality of a decision made by an administrative decisionmaker in order to ensure that the administrative decision-maker did not overstep the legal authority granted to him to make the decision under review2. Second, the Court seeks to ensure the reasonableness and fairness of the administrative process which led to the decision under review as well as its outcomes in light of the applicable legislative scheme and procedural guarantees. Both functions are completed simultaneously. Judicial review cannot operate without a standard against which decisions by administrative decision-makers are measured. The standard will guide when and how the Courts will intervene on judicial review to control the legality of the decision and of the administrative process under review. The judicial review rationale and the determination of the applicable standard of review is more plainly described by the Supreme Court of Canada as follows: Administrative powers are exercised by decision makers according to statutory
regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts constitutional duty to ensure that public authorities do not overreach their lawful powers.3

. Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; 2008 SCC 9, [hereinafter, Dunsmuir] at para. 28: By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. 3 . Dunsmuir, at para. 29

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An administrative decision-makers decision is assessed against one of two (2) standards: correctness or reasonableness4. The correctness standard, when applied, calls upon the court to consider whether the administrative decision is correct in law. If the decision under review is not a correct decision, then the court will intervene. While many legal issues attract a standard of correctness, not all legal issues are to be reviewed on the correctness standard. The reasonableness standard, when applied, calls upon the court to show deference to the administrative decision-makers decision-making process and decision. Deference in this regard imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. Deference requires respect for the legislative choices set out in the governing statutes to leave some matters in the hands of administrative decisionmakers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the Courts and administrative bodies within the Canadian constitutional system5. Perhaps more importantly, the reasonableness standard does not require that an administrative decision-maker made the legally correct decision; it is accepted that a reasonable decision will be a decision which falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law6. The reasonableness standard will generally apply to questions of fact, discretion and policy as well as to questions where the legal issues cannot be easily separated from the factual issues7. Previous jurisprudence is now a touchstone as to the determination of which standard of review is applicable in any given case8. Where the question at issue is one of fact, discretion or policy, deference will usually apply automatically9. The same standard of reasonableness will also apply to questions where the legal and factual issues are intertwined and cannot be easily separated10. Deference and the reasonableness standard will usually result where an administrative decision-maker is interpreting its own statute
4 5

. Dunsmuir, at para. 45 . Dunsmuir, at para. 49 6 . Dunsmuir, at para. 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 7 . Dunsmuir, at para. 51 8 . Dunsmuir, at para. 54 9 . Dunsmuir, at para. 53 10 . Dunsmuir, at para. 53

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or statutes closely connected with its function11. Considered more generally, administrative decision-makers decisions will be reviewed on the reasonableness standard and be given deference when consideration of the following factors point to a standard of reasonableness: The existence of a privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). The nature of the question of law. A question of law that is of central importance to the legal system . . . and outside the . . . specialized area of expertise of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.12 2. The Applicable Standard in this Case

In order to determine the applicable standard of review in this case, we must consider the decision rendered by the Minister and by the Lieutenant-Governor in Council in light of the Act, its purpose, the legislative scheme as a whole, the nature of the question before the Minister and the Lieutenant-Governor in Council, the Ministers expertise and jurisprudence as to the applicable standard of review with respect to Ministerial decisions to approve an application for an undertaking under the Act. a) Purpose and Legislative Scheme

The Acts purpose is the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment13. In order to achieve its purpose the Act sets out a scheme pursuant to which every proponent who seeks to proceed with an undertaking within Ontario is required to apply to the Minister for his approval to proceed with the undertaking14. A proponent may not legally proceed with an undertaking it wishes to pursue unless the Minister or the Environmental Review Tribunal approves the proponents application for the undertaking15.

11 12

. Dunsmuir, at para. 54 . Dunsmuir, at para. 55 13 . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 2 14 . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(1) 15 . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(3)

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Proponents are required by the Act to prepare an application for the Ministers consideration. The application to be prepared by the proponent consists of terms of reference for an environmental assessment and of an environmental assessment which relate to the proposed undertaking16. The terms of reference are to be prepared by the proponent after consultation with such persons as may be interested in the proposed undertaking or its environmental impacts. In addition, the content of the terms of reference must comply with one of the content requirements set out disjunctively at section 6(2) of the Act 17. The terms of reference to be prepared by the proponent are those terms which, if accepted by the Ministry, will govern the preparation of the environmental assessment to be completed by the proponent as part of its application18. The proponent must submit its proposed terms of reference to the MOE19. The Act then requires the Minister to approve the proponents proposed terms of reference with such amendments as the Minister considers necessary, if he or she is satisfied that an environmental assessment prepared in accordance with the approved terms of reference will be consistent with the purpose of this Act and the public interest20. The statutory language as to Ministerial approval of the proposed terms of reference indicates the legislatures intent to have the Minister approve terms of reference in circumstances where the Minister believes in his sole discretion that the environmental assessment to come based on the terms of reference will be consistent with the purpose set out at section 2 of the Act and the public interest. The Minister is therefore required to consider competing and perhaps diverging interests when approving of terms of reference. The approval of terms of reference by the Minister is the first decision in the process contemplated by the Act for the approval of a proposed undertaking which may have an impact on the environment. The proponent must complete an environmental assessment following the Ministers approval of the terms of reference. The environmental assessment must be prepared in accordance with the approved terms of reference21, and must consist of the evaluations and descriptions required by the Act22 unless the Minister has approved of terms of reference which require information other than that required by the Act, but required by

16 17

. Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5(2) . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5.1; ss. 6(1) and 6(2); See also, Sutcliffe v. Ontario (Minister of Environment), [2004] 72 O.R. (3d) 213; [2004] O.J. No. 3473 (Ont. C.A.) [Sutcliffe] 18 . Environmental Assessment Act, R.S.O. 1990, c. E.18, s. 5.1 19 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6(1) 20 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6(4) 21 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(1) 22 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(2)

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the Minister23. In those cases, the environmental assessment must be prepared and set out the information required by the Minister in the approved terms of reference. The proponent delivers its completed environmental assessment to the MOE24, and the MOE then reviews the delivered environmental assessment in light of the approved terms of reference and the comments received from the public25. The review of the environmental assessment is not undertaken by the Minister but by the Director appointed under the Act. The Director has the power to note deficiencies in the environmental assessment in relation to the approved terms of reference and the purposes of the Act and may give the proponent a fixed time-frame in which to remedy the deficiencies noted by the Director26. If the proponent does not remedy the deficiencies to the Directors satisfaction within the time provided by the Director to do so, then the Minister has the authority and power to reject the environmental assessment which has been delivered by the proponent27. The Director provides a Notice of completion once the environmental assessment review is completed by the MOE. Any person may provide comments on the MOEs review of the environmental assessment before a decision is made as to approve or reject the proponents application to proceed with the proposed undertaking28. In addition, any person may request that Minister refer the application necessarily including the terms of reference, the environmental assessment, and the MOE review of the environmental assessment to the Environmental Review Tribunal for a hearing and decision on the application29. The Minister may then decide, in his or her absolute discretion, to refer the decision to approve or reject the proponents application to the Environmental Review Tribunal or not30. The Minister may decide to approve or reject the application if he does not refer a proponents application to the Environmental Review Tribunal for a hearing and decision. The Ministers authority and the scope of his discretion in this regard are set out in section 9 of the Act, which reads as follows:
Decision by Minister 9. (1) The Minister may decide an application and, with the approval of the Lieutenant Governor in Council or of such ministers of the Crown as the Lieutenant Governor in Council may designate, the Minister may, (a) give approval to proceed with the undertaking;
23 24

. Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.1(2) and Sutcliffe . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 6.2(1) 25 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(1) 26 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(4) 27 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7(6) 28 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7.1(1) and ss. 7.2(2) 29 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 7.2(3) 30 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 9.3(1) and (2)

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(b) give approval to proceed with the undertaking subject to such conditions as the Minister considers necessary to carry out the purpose of this Act and in particular requiring or specifying, (i) the methods and phasing of the carrying out of the undertaking, (ii) the works or actions to prevent, mitigate or remedy effects of the undertaking on the environment, (iii) such research, investigations, studies and monitoring programs related to the undertaking, and reports thereof, as the Minister considers necessary, (iv) such changes in the undertaking as the Minister considers necessary, (v) that the proponent enter into one or more agreements related to the undertaking with any person with respect to such matters as the Minister considers necessary, (vi) that the proponent comply with all or any of the provisions of the environmental assessment that may be incorporated by reference in the approval, (vii) the period of time during which the undertaking or any part thereof shall be commenced or carried out; or (c) refuse to give approval to proceed with the undertaking. 1996, c. 27, s. 3. Basis for decision (2) The Minister shall consider the following matters when deciding an application: 1. The purpose of the Act. 2. The approved terms of reference for the environmental assessment. 3. The environmental assessment. 4. The Ministry review of the environmental assessment. 5. The comments submitted under subsections 6.4 (2) and 7.2 (2). 6. The mediators report, if any, given to the Minister under section 8. 7. Such other matters as the Minister considers relevant to the application. 1996, c. 27, s. 3. Notice to proponent (3) The Minister shall notify the proponent of his or her decision and shall give the proponent written reasons for it. 1996, c. 27, s. 3.

Upon referral from the Minister, the Environmental Review Tribunals authority and discretion with respect to a decision on an application is set out in the Act as follows and is differes substantively from the grant of authority provided to the Minister:
Referral to Tribunal 9.1 (1) The Minister may refer an application to the Tribunal for a decision. 1996, c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6).

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Powers of the Tribunal (2) The Tribunal may make any decision the Minister is permitted to make under subsection 9 (1). 1996, c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6). Basis for decision (3) The Tribunal shall consider the following things when deciding an application: 1. The purpose of the Act. 2. The approved terms of reference for the environmental assessment. 3. The environmental assessment. 4. The Ministry review of the environmental assessment. 5. The comments submitted under subsections 6.4 (2) and 7.2 (2). 6. If a mediators report has been given to the Minister under section 8, any portion of the report that has been made public. 1996, c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6). Same (4) The decision of the Tribunal must be consistent with the approved terms of reference for the environmental assessment. 1996, c. 27, s. 3; 2000, c. 26, Sched. F, s. 11 (6).

Despite having referred the application to the Environmental Review Tribunal for a decision, the Minister may nevertheless review the Environmental Review Tribunals decision on an application and, with the Lieutenant Governor in Councils approval, may substitute his decision for that of the Environmental Review Tribunal31. The Act itself prohibits a person from proceeding with an undertaking in a manner which is not consistent with a condition imposed by the Minister for proceeding with it32. c) Privative Clause

Section 23.1 of the Act sets out that, subject to the Ministers authority to review and substitute his decision to that of the Environmental Review Tribunal, a decision of the Environmental Review Tribunal under the Act is final and not subject to appeal. More importantly, section 23.1 of the Act sets out that a decision of the Environmental Review Tribunal shall not be set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable33. Section 23.1 of the Act is considered as a privative clause in law and indicates the legislatures intent that the Courts should show significant and near total deference to an Environmental Review Tribunal decision on an application.

31 32

. Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 11.2(1) . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 5(4) 33 . Environmental Assessment Act, R.S.O. 1990, c. E.18, ss. 23.1

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There is no similar privative clause in the Act with respect to a Ministerial decision on an application. d) Nature of the Question

A Ministerial decision to approve an application for an undertaking pursuant to the Act requires that the Minister consider the purpose of the Act, the public interest, and other more technical requirements involved in environmental assessments, mitigation measures and public policy inherent in environmental protection decision-making. Making the decision to approve an application therefore calls for particular expertise. There ought to be no suggestion in this case that the Minister, aided by the MOE staff, themselves having specialized expertise, is not a specialized administrative decision-maker in the context of decision-making pursuant to the Act. In this case, the Ministers authority to make a decision on an application is circumscribed by section 9 of the Act and more particularly by subsection 9(2). Subsection 9(2) sets out those matters which the Minister is required to consider when deciding whether or not to approve an application. Paragraph 9(2)7. of the Act provides that, aside from those other factors specifically set out in paragraphs 9(2)1. to 6., the Minister shall consider such other matters as the Minister considers relevant to the application. It follows that the nature of the question before the Minister when he makes a decision with respect to an application for approval for an undertaking pursuant to the Act after having approved terms of reference for an environmental assessment and after the environmental assessment has been reviewed by the Ministry is not a pure question of law, is a question primarily based in fact, and engages Ministerial discretion arising from the Ministers expertise in environmental protection matters. 3. The Standard of Review Applicable in this Case

We have not located any contemporary jurisprudence which sets out the standard of review applicable to a Ministerial decision made pursuant to section 9 of the Act as it currently reads. There is, however, a relatively recent decision from the Ontario Court of Appeal which speaks more generally to the standard applicable to a judicial review of a Ministerial decision under the Act during the application process. In Sutcliffe v Ontario (Minister of the Environment)34, the Ontario Court of Appeal considered the standard of review applicable to a Ministerial decision approving terms of reference pursuant to subsections 6(4), 6(1) and 6(2) of the Act. At issue was whether the Ministers decision to approve terms of reference which contained terms other than those set out in the presumptive terms of reference content set out in paragraphs 6(2)(a) and (b)
34

. Sutcliffe, supra, at note 17

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of the Act was a lawful decision. The decision-making authority at issue on the appeal was structurally similar to the section 9 and subsection 9(2) decision-making power at issue in this matter because of the discretion afforded the Minister pursuant to subsection 6(4) of the Act35. The Court of Appeal held that, [g]iven the broad purpose of the Act and the diversity of matters that may be of concern to the public, the Minister's decision in approving terms of reference calls for a balancing of a multiplicity of factors and interests. Some flexibility may well be needed to meet those objectives [as set out in the Act]36. After a review of nature of the question, the overall scheme of the Act and the expertise of the Minister as a decision-maker, the Court of Appeal held as follows:
[26] Determining what information will be necessary for an environmental assessment to meet the purpose of the Act and the public interest will vary greatly depending on the nature of the undertaking. It is a contextual exercise that requires the Minister to assess and weigh the often competing technical and public policy considerations inherent in the protection of the environment. This calls for a particular expertise. The Minister deals with environmental issues daily and is assisted by Ministry staff with that specialized expertise. There is no real dispute between the parties that the Minister's decision to approve the terms of reference, if otherwise permissible under the Act, is entitled to the highest level of deference. A court will set it aside only if it is patently unreasonable. [27] The issue is whether the same standard should apply on the question of statutory interpretation. In my view, the Minister's expertise also informs the interpretation of the provisions in question on this appeal. As between the courts and the Minister, the Minister is in a far better position to ascertain whether the generic elements must be present in all environmental assessments in order to be consistent with the purpose of the Act and the public interest. It requires an understanding of environmental policy, of the mechanics of environmental assessments, and of what factors are more or less important in certain kinds of undertakings as opposed to others. It is not a pure question of law. [28] Hence, on the question of statutory interpretation, assuming that it is appropriate to consider it separately, some level of deference should be afforded to the Minister's interpretation. I would conclude that the middle ground, reviewing the Minister's interpretation on a reasonableness standard, is the
35

. Subsection 6(4) of the Act provides that: The Minister shall approve the proposed terms of reference, with any amendments that he or she considers necessary, if he or she is satisfied that an environmental assessment prepared in accordance with the approved terms of reference will be consistent with the purpose of this Act and the public interest. Subsection 9(2) of the Act provides that the Minister must consider the purpose of the Act, which includes the public interest, and such other matters as the Minister considers relevant to the application.. 36 . Sutcliffe, at para. 21.

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appropriate balance to strike. In applying this standard, I have no hesitation in finding that the Minister's interpretation of the Act, as allowing a tailoring of terms of reference to suit the circumstances of the undertaking, is reasonable. Hence, it was open to the Minister to consider the terms of reference submitted by CWS37.

The Sutcliffe decision establishes that the Minister has particular expertise and is in a far better position than the courts in understanding environmental policy and the factors that are more or less important in certain kinds of undertakings. Perhaps more importantly, the Court of Appeal accepted that if the Minister has the power to make a decision under the Act, then that decision is to be afforded deference. The Court of Appeals finding in this regard is consistent with the pre-Dunsmuir jurisprudence which held consistently that reviewing courts should adopt a deferential approach to discretionary Ministerial decisions and should set aside a Ministers discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, cannot be supported on the evidence, or if the Minister failed to consider the appropriate factors in making his decision. The Courts should not reweigh the factors or interfere merely because they would have come to a different conclusion38. In this matter the main complaint is that the Minister did not take into account or did not sufficiently take into account whether the environmental assessment complied or was consistent with the terms of reference approved by the Minister at the outset of the application process. It is contended that the Minister therefore acted beyond his statutory grant of authority to approve an application. A potential sub-complaint would be that the Minister became satisfied that the application should be approved because WM provided various undertakings to act in the future rather than in strict compliance with the amended ToR. In our view, subsections 9(2) and 9.1(4) of the Act provide the answer as to whether or not the Minister had the authority to approve of an application in the current circumstances. As will appear, the legislature has seen fit to require that a decision to approve an application be consistent with the approved terms of reference for the environmental assessment when the Environmental Review Tribunal makes the decision to approve the application, but no similar requirement is provided with respect to a decision by the Minister. As reproduced above, subsections 9(2) and 9.1(4) of the Act provide both the Minister and the Environmental Review Tribunal with the authority to decide an application. Subsection 9.1(2) of the Act clarifies that the Environmental Review Tribunal is empowered to make any decision the Minister is permitted to make on an application.

37 38

. Sutcliffe, at paras. 25 to 27 . Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para. 29; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, among others

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The legislated bases for the decisions to be made by either the Minister or the Environmental Review Tribunal contain nearly identical language with a nearly identical list of factors which are required to be considered by either in their decision-making, save and except that the Minister, pursuant to paragraph 9(2)7. of the Act shall consider such other matters as the Minister considers relevant to the application in making his decision. The Environmental Review Tribunal has no similar discretionary power. More importantly in this matter, pursuant to subsection 9.1(4) of the Act, the Environmental Review Tribunals decision on an application must be consistent with the approved terms of reference for the environmental assessment. There is no similar requirement for a decision on an application by the Minister pursuant to subsection 9(2) of the Act. Applying the implied exclusion rule of statutory interpretation39 along with the presumption that the legislature does not make mistakes in legislative drafting, it becomes apparent that the legislature did not intend to require the Ministers decision to approve an application pursuant to section 9 of the Act to necessarily be consistent with the approved terms of reference. The Minister therefore has discretion in such regard provided that the Minister did otherwise consider the approved terms of reference as required by paragraph 9(2)2. of the Act. It bears mentioning that the MOE compiled a detailed 10-page table setting out the requirements of the Act and the ToR as well as its analysis of the EAs satisfaction of those requirements and attached the same to its Review. The MOE also recognized in its Review of the Amended EA that:
Ministry staff noticed that there were commitments made in the approved ToR that were not adequately met in the EA that was submitted on September 14, 2012. In response to the concerns raised, WM amended its EA to ensure that it met the requirements of the approved ToR. The Amended EA was submitted to the Ministry on January 23, 2013, and posted to WMs website on February 22, 2013. The ministry has reviewed the revisions and concluded that the Amended EA followed the framework set out in the approved ToR, addressed the commitments made in the ToR, and demonstrated how the requirements of the EAA were met40; The ministry is satisfied that the consultation carried out meets the requirements of the EAA and is in accordance with the approved ToR.41;
39

. Sullivan, Ruth, Driedger on the Construction of Statutes, 3rd Ed., 1994, Butterworths, at pages 168-171. The implied exclusion rule is also known as the expressio unius est exclusio alterius rule of statutory construction. 40 . Ministry Review of the Environmental Assessment for a New Landfill Footprint at the West Carleton Environmental Centre, Review prepared pursuant to subsection 7(1) of the Environmental Assessment Act, R.S.O. 1990, Province of Ontario by the Ministry of the Environment, Environmental Approvals Branch [the MOE Review], at page 9, section 3.1.1 41 . MOE Review, at page 15, section 3.1.3

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The ministry is satisfied that the Amended EA was completed in accordance with the approved ToR and meets the requirements of the EAA42; The ministry is satisfied that WM has meet the requirements of the ToR and EAA for the components of the Amended EA raised in sections 3.3.1 above [key issues], as well as those raised in Tables 1 and 243; and, This Review concludes that the Amended EA complies with the requirements of the approved ToR and has been prepared in accordance with the EAA. The Amended EA has provided sufficient information to enable a decision to be made about the application to proceed with the undertaking.44

It is apparent from the Ministers reasons for his decision that he was alive, attentive, or sensitive to the public interest, the challenges of the situation, and the comments received by the MOE throughout the process. The Minister set out the basis why he made the decision he made; the bases identified taken together suggest that the Minister exercised his power in accordance with the Act and that the conclusions he reached are within the range of acceptable outcomes45, particularly in light of the MOE Review conclusions and analysis. In addition, the reasons set out by the Minister in his decision serve as the justification for the decision rendered in a transparent and intelligble fashion. The Ministers decision, in our view, satisfies the inquiry mandated by a reasonableness standard of review46. A key feature in this case which also points to the application of the reasonableness standard of review is that the Ministers discretion to make a decision on an application under section 9 of the Act requires that the Lieutenant Governor in Council approve of the Ministers decision on an application47. The requirement of Lieutenant Governor in

42 43

. MOE Review, at page 18, section 3.2.2 . MOE Review, at page 24, section 3.2.2 44 . MOE Review, at page 25, Summary of the Ministry Review 45 . Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at paras. 16 and 17: [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [17] The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrators decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay respectful attention to the decisionmakers reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful. 46 . Dunsmuir, at para. 47 47 . Environmental Assessment Act, subsection 9(1)

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Council approval underscores the public interest and policy dimension of the section 9 Ministerial decision to approve of an application, either with or without conditions. Based on the foregoing, therefore, it is our view that the reasonableness standard would apply to the Ministers August 16, 2013, decision at issue, and that a reviewing court would show considerable deference to the Ministers decision in the current circumstances. It is also our view that a reviewing Court would not consider a Ministers and a Lieutenant Governor in Councils decision to approve an application with conditions in the face of an alleged absence of consistency between the approved terms of reference and the environmental assessment as being a non defensible decision which falls outside a range of possible, acceptable outcomes considering the facts and the law. Finally, it follows in our view that a judicial review of the Ministers August 16, 2013, decision and of the August 28, 2013, Order in Council approving of the same on the basis of a failure to require consistency between the approved terms of reference and the environmental assessment would in all likelihood be unsuccessful. 4. Specific Questions

In this section, we shall set our reasoning and analysis relevant to the questions you have asked us to answer. 1. What steps are required to be taken in order to initiate an application for judicial review, and in which time frames? Judicial review applications are governed by the JPPA and Rules 38 and 68 of the Rules of Civil Procedure. An application for judicial review is commenced by the issuance and service of an Application for Judicial Review pursuant to the JPPA and Rules 38 and 68 of the Rules of Civil Procedure. If the Application is served upon the tribunal or decision-makers whose decision is to be reviewed, then that decision-maker has 30 days within which to file its record of proceedings in which the decision was made. The applicant then has 30 days following the date of the filing of the decision-makers record to file its Application Record and Factum. The respondents then have 30 days within which to file their Application Record and Factum. Once these records and facta have been filed, the applicant is required to deliver a certificate of perfection and the application is thereafter placed on the hearing list.

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There is no prescribed limitation period or maximum time frame within which an Application for Judicial Review is required to be commenced48. That said, undue delay between the date of the decision to be reviewed and the date of commencement of the application and its subsequent perfection constitutes a reason for the court to decline to exercise its discretion to grant a remedy. When considering delay in an Application for Judicial Review, the court considers the length of the delay, whether there is a reasonable explanation for the delay, and whether any prejudice has been suffered by the respondent or a third party as a result of it. 2. What are the probabilities of success of an application for judicial review? In light of our analysis of the standard of review applicable to this case and considering the decision rendered, it is our view that the probabilities of success of an application for judicial review of the Ministers August 16, 2013, decision and the August 28, 2013, Order in Council are quite low. Our opinion is that an application for judicial review based on the alleged non-compliance with the approved ToR in this case will in all likelihood be unsuccessful. 3. What are the reasonably foreseeable financial risks for the City should it initiate an application for judicial review? The direct financial risks to the City should it initiate an Application for Judicial Review in this case are best expressed by the Citys exposure to costs in the event that it is not successful as well as its out-of-pocket costs relating to its own legal representation in the matter. Costs of proceedings are always in the discretion of the Court, but the general rule is that the losing party pays the costs of the other parties as fixed by the Court. The Courts discretion in fixing costs exercised with regard to the factors set out in Rule 57.01 of the Rules of Civil Procedure as well as the overarching principle of reasonableness which considers the reasonable expectations of the parties regarding the costs they could be ordered to pay if it was unsuccessful. Assuming that the Minister of the Environment, the Attorney General for Ontario and WM will likely be necessary parties, the losing party can reasonably be expected to be ordered to pay those costs incurred by the responding parties as fixed by the Court. Although such costs are difficult to estimate in the current situation given the number of variables which must be considered in the course of a proceeding, it would not be unrealistic to assume that the costs incurred and susceptible to be ordered payable by the unsuccessful party would be costs incurred in relation to:

48

. Solidwear Entreprises Ltd. v. Union of Needletrades, Industrial & Textile Employees (Unite), Local 219, 2006 CanLII 2184 (Ont. Div. Crt.), at para. 4

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a) b) c) d)

The preparation of application records; A detailed and meticulous review of the Ministers record of the proceeding, as filed; The research and preparation of cogent and insightful facta for use on the hearing before the Divisional Court; Consultations with environmental experts on a number of different issues in order to support arguments that the Ministers decision was not reasonable on the basis of the facts and the evidence which was before the Minister; The initiation and argument of a motion to determine the scope of the Ministers participation in the argument of the application; Preparation for argument; and, If necessary, an appeal to the Ontario Court of Appeal.

e) f) g)

We would expect that the Minister could be expected to incur partial indemnity costs in the $ 20,000 to $ 40,000 range, that WM would incur partial indemnity costs in the $ 40,000 to 75,000 range, and that other parties, depending on the nature and degree of involvement in the proceeding, could well incur partial indemnity costs in the $ 15,000 to $ 50,000 range. The Citys likely costs of legal representation as applicant would likely fall within the $ 50,000 to $ 100,000 range. As a result, it is not unreasonable to expect that the combination of a potential costs order as well as own representation costs could expose the City to a financial risk of $ 125,000 to $ 265,000. CONCLUSIONS Based on the foregoing, our short answers to the questions for which you have sought our opinion are as follows: 1. What steps are required to be taken in order to initiate an application for judicial review, and in which time frames? A: An Application for Judicial Review is initiated by the commencement of a proceeding before the Divisional Court. There is no fixed time frame within which the Application is required to be commenced after the date of the decision to be reviewed, but delay in proceeding in a timely manner may lead to the court to refuse to grant a remedy. Most lawyers will recommend commencing an application within 30 days of the date of the decision to be reviewed or of the date at which the decision came to the applicants attention, whichever is the latest. A

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delay greater than 6 months after the date of the decision to be reviewed would likely be considered as undue in the circumstances. 2. What are the probabilities of success of the application for judicial review? A: Our opinion is that an application for judicial review based on the alleged non-compliance with the approved ToR in this case will in all likelihood be unsuccessful. We consider the probabilities of success in such a proceeding to be quite low. 3. What are the reasonably foreseeable financial risks for the City should it initiate an application for judicial review?

A: The Citys direct and reasonably foreseeable financial risks would be measured by the costs it could be ordered to pay to the successful parties if it is unsuccessful, as well as its own financial cost for the matter. It is not unreasonable to expect that the combination of a potential costs order as well as own representation costs could expose the City to a financial risk of $ 125,000 to $ 265,000. Please feel free to contact the undersigned should you have any questions or comments with respect to the foregoing. Yours very truly, Heenan Blaikie LLP

Benoit M. Duchesne
Member of the Quebec and Ontario Bars

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