On June 17, 2012, after a lengthy hearing, the Joint Board released its decision approving the proposal by Walker Aggregates Inc. to develop an expansion to its existing quarry in the Township of Clearview near the village of Duntroon. The Joint Board was comprised of three members (two Members of the Ontario Municipal Board and a Vice-Chair of the Environmental Review Tribunal) and its decision included a majority and a minority decision.
The Niagara Escarpment Commission brought an application for judicial review of the Joint Board Decision. The Divisional Court decision dismissing the Niagara Escarpment Commissions application for judicial review was released on July 10, 2013 (Niagara Escarpment Commission v. The Joint Board, 2013 ONSC 2497). In dismissing the application for judicial review, the Divisional Court held that the decision of the majority reveals no legal error and is reasonable, given the governing legislation and policies and the evidence before it.
The Divisional Court made a number of findings regarding application of the policies of the Provincial Policy Statement (“PPS”) and the Niagara Escarpment Plan to aggregate extraction and the protection of natural heritage features.
In particular, the Divisional Court held that the majority did not err in finding that: (i) the PPS test of “no negative impact” provides a more definitive and rigorous test for the protection of the natural environment than the Niagara Escarpment Plan policy requirements of “protection” and (ii) in meeting the PPS tests, that the provisions in the NEP regarding natural heritage will also generally be met.
The wooded area on the property was considered a significant woodland and part of a much larger significant woodland which extended well beyond the property boundaries. The proposal was to remove the significant woodland within the extraction area and to extensively reforest lands within the extraction area and adjacent to the larger significant woodland. The Divisional Court found that in assessing the impact on natural heritage features, the majority was correct in considering the impact on the natural heritage features as defined by their ecological characteristics and functions, and not by property ownership. The Divisional Court agreed that in assessing the impact of the proposal, the majority correctly considered the impact on the larger significant woodland, in conjunction with the extensive reforestation proposed.
The Divisional Court also found that the Niagara Escarpment Commission’s approach to carve out passages from the majority reasons and to view them in isolation is not a proper approach to review of a tribunal's decision. Rather, the Divisional Court found that the reasons must be read as a whole and in the context of the record, citing the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses' Association v. Newfoundland and Labrador (Treasury Board),  3 S.C.R. 708 at paras. 14-15. The Divisional Court went on to find that when the majority reasons are read as a whole, and the isolated passages are seen in context, it is evident that the majority gave effect to each of the relevant planning documents and the governing legislation.
To read a full-version of the Divisional Court decision, click here.
Mary Bull was co-counsel for Walker Aggregates Inc.