The Lawyers Weekly - January 20, 2012

Successive Ontario governments keep promising to do more to divert organics from landfill, while throwing many obstacles in the way of those who try. The major flashpoint has been odour complaints, which has led to the Ministry of the Environment (MOE) taking a hard line, and to prosecutions around the province. No wonder organic waste diversion rates have stalled, as noted by the Environmental Commissioner, despite the numerous social, economic and environmental benefits it promises for Ontario as a whole.

The latest full scale battle on odour took place in front of the Environmental Review Tribunal (ERT) in Orgaworld Canada Ltd. v. Ontario (Ministry of the Environment). Orgaworld, a composting company, accepted a very demanding limit of “1 odour unit” but appealed the MOE’s refusal to permit it to process sanitary products, human body wastes and waste collected in plastic bags.

The director was concerned that allowing Orgaworld to handle this particular “disputed feedstock” might cause nuisance odours. The MOE was gun shy, after receiving

DIANNE
SAXE

&MEREDITH
JAMES

odour complaints about Orgaworld’s other facility and many other Ontario composting sites. The director relied on what was then subsection 39( 2)(e) of the Environmental Protection Act. It authorized a director to refuse an application for a waste approval when the director “considers, upon probable grounds” that the facility “may” create a nuisance.

Everyone agreed that there is
some inevitable uncertainty in pre-
dicting odours, especially at the
very low 1 odour unit level, which is
defined as a level that 50 per cent of
the population would smell. How
cautious might the ministry there-
fore be? What evidence did the
MOE have to show as the basis for
its “probable grounds”? Is the pre-
cautionary principle enough? And
who bears the burden of proof?

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regarding the role of the pre-
cautionary principle in Greenspace
Alliance of Canada’s Capital v.
Ontario (Ministry of the Environ-
ment), [2009] O.E.R.T.D. No. 38,
para. 139:
“The precautionary approach
informs the Director about how to
proceed when there is uncertainty
regarding the scientific conclusions
that can be reasonably drawn from
the available evidence. Where there
is credible evidence that shows that
harm is unlikely, the degree of
uncertainty is significantly reduced
and it is consistent with the pre-
cautionary approach for the Direc-
tor to approve the activity and
include measures to prevent harm
or to confirm the predictions. On
the other hand, where there is a
great deal of scientific uncertainty,
as in Dawber [Dawber v. Ontario
(Ministry of the Environment),
[2007] O.E.R.T.D. No. 25], the
Director must presume there will
be harm. In that case, a reasonable
person having regard for the pre-
cautionary approach would refuse
the permit.”
The ERT rejected the “pre-
cautionary” argument here because
“this is not a case where the poten-
tial outcomes associated with oper-
ating this type of system are
unknown and cannot be predicted
with any degree of certainty.”
Although the performance of the
odour abatement equipment may
be variable, the factors that affect
the equipment are well understood.
And even if the precautionary prin-
ciple applied, it can be met by
including preventive measures and
monitoring requirements in the
final approval.

Dianne Saxe and Meredith James work at Saxe Law Office, one of Canada’s top environmental boutiques.

Judge sides with
environmentalist

Voice
Continued From Page 19

unacceptable,” he added. “The
Act specifies neither that the
evidence presented in the
request for a special review be
significant nor new — this was
language chosen by the appli-
cant as grounds for initiating
the special review.”
The court found that a decision
from the health minister will be
considered reasonable where it is
“based on the evidence, is justified,
transparent and intelligible, and
where it falls within the range of
acceptable outcomes.”
“In this case, there was evi-
dence on both sides of the issue,”
Justice Kelen said. “Moreover,
the decision is not transparent or
intelligible, because the decision
does not expressly address the
narrow environmental risk at
issue in this case.”
While the health minister
again ponders Wier’s request for
a special review, it has launched
another review of its own. Cyclical
reviews are conducted every 15
years and glyphosate is currently
being investigated, Manning
said. “There is an evaluation that
is going on.”
The timing is likely no coinci-
dence, Saxe said. “Wier started
her case in 2009. Now…the gov-
ernment is just finishing two
years’ research to fill the data gap
she pointed out. My sense is that
the government knew about the
data gap beforehand. But Wier
gave them a kick in the butt.