Decision Date: September 27, 2017

Panel: Alan Andison

Keywords:Administrative Tribunals Act– s. 25; Environmental Management Act – s. 99; permit; composting facility; public notice; stay application; jurisdiction; appealable decision; res judicata; abuse of process

Revolution Organics Limited Partnership (“Revolution”) appealed a letter issued on September 1, 2017 (the “September Letter”) by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy. Revolution also applied for a stay of the September Letter, pending the Board’s final decision on the merits of the appeal.

In response to the stay application, the Director raised a preliminary question of jurisdiction; specifically, whether the September Letter contained an appealable “decision” as defined in section 99 of the Environmental Management Act. The Director submitted that the letter simply extended the timelines set out in a decision dated February 14, 2017 (the “Original Decision”), which was the subject of an existing appeal by Revolution and which was also the subject of a stay application that was denied by the Board: Revolution Organics, Limited Partnership v. Director, Environmental Management Act, (Decision No. 2017-EMA-004(b), June 20, 2017) (the “Stay Decision”). The Director further submitted that the new appeal and stay application ought to be struck because they amounted to a re-litigation of the issues in Revolution’s appeal of the Original Decision, as well as a re-litigation of the Board’s Stay Decision.

The Board found that the only substantive decision in the September Letter was an extension of the timelines established in the Original Decision. The Original Decision established requirements for specifying “a time by which a discharger that submits an application … [for a permit] must” provide certain information, give notice and post the application under section 33(3) of the Organic Matter Recycling Regulation. The Board found that the September Letter was an exercise of the same discretion, by extending the original dates. While the change in timelines was a minor change to the Original Decision, it was a change nonetheless. As such, it was also appealable to the Board.

The Board also found that accepting the new appeal did not constitute an abuse of process, and was not an attempt to re-litigate the issues in Revolution’s appeal of the Original Decision. When there are two related appeals, the Board’s practice is to hear them jointly, which would prevent duplication in processes, resources and expenditures.

However, the Board found that Revolution’s new application for a stay amounted to a re-litigation of the previous Stay Decision. The September Letter’s change in timelines was not a material change in the factual or legal matrix that was previously considered in the Stay Decision. The new stay application amounted to an attempt to have a “second kick at the can” – an attempt to stay the material or substantive requirements in the Original Decision, despite the fact that the September Letter only amended the dates for compliance with the existing requirements. Accordingly, the Board refused to consider the application for a stay of the September Letter on the grounds of res judicata, or alternatively, on the basis that the new stay application was an abuse of process.

In conclusion, the Board denied the Director’s application to dismiss the appeal, and denied Revolution’s application for a stay. The Board also ordered that Revolution’s appeals of the Original Decision and the September Letter would be heard together.