Canadian Waste Services Inc. ("CWS") operated an existing landfill site and wished to expand its operation. In order to do so, it had to apply for and obtain approval from the Minister of the Environment under the Environmental Assessment Act, R.S.O. 1990, c. E.18 (the "Act").
CWS submitted to the Ministry terms of reference governing the preparation of the environmental assessment that had to be completed before the undertaking could be ultimately approved. Under the Act, terms of reference had to be approved by the Minister for the project to continue. The Minister could only give his approval if he was satisfied that an environmental assessment, prepared in accordance with the terms of reference, would be consistent with the purpose of the Act and with the public interest.
CWS obtained ministerial approval of the terms of reference for its proposed expansion. The respondents in this appeal, Ben Sutcliffe, Helen Kimmerly and the Mohawks of the Bay of Quinte, all occupied land that was near the landfill and were opposed to the proposed expansion. Hence, they brought this application for judicial review of the Minister’s decision before the Divisional Court.
The Divisional Court quashed the Minister’s decision. The court held that the Act did not permit approval of the terms of reference because they were not drafted in accordance with certain specified requirements in the Act. Those requirements could be considered as setting out the "generic" elements of an environmental assessment. The court held that, while the Minister could require additional information from a proponent, the Act did not permit the approval of terms of reference that did not contain, at a minimum, those generic elements.
CWS argued that the court had erred in its interpretation of the statute and submitted that, on a plain reading, it allowed for an environmental assessment that was more specifically tailored to the circumstances of a particular project.
Thus, the main issue of this appeal was whether the Minister could approve terms of reference that were tailored to a particular project and that were found by the Minister to be consistent with the purpose of the Act and the public interest, but did not include all of the generic elements of an environmental assessment that were set out in the Act.
The court did not agree with the respondents that the overall purpose of the Act was undermined by allowing more flexibility with respect to the contents of an environmental assessment. Ministerial approval of the terms of reference was governed by s. 6(4) of the Act, which specifically required that the Minister be satisfied that the proposed environmental assessment would be consistent with, not only the purpose of Act, but also the public interest:
Given the broad purpose of the Act and the diversity of matters that could be of concern to the public, the Minister’s decision in approving terms of reference called for a balancing of a multiplicity of factors and interests. Some flexibility was needed to meet those objectives.
However, the proponent was not free to simply design its own environmental assessment without regard to the requirements of the Act. In deciding whether to approve terms of reference, the Minister had also to be guided by the terms of the statute. In some cases, the Minister could adjudge that the generic elements were not sufficient to meet the environmental and public interest concerns and, in such a case, the Minister had to require additional information. In other cases, some of those elements could be found unnecessary.
In the view of the court, as between the courts and the Minister, the Minister was in a far better position to ascertain whether the generic elements had to be present in all environmental assessments in order to be consistent with the purpose of the Act and the public interest. It required an understanding of environmental policy, of the mechanics of environmental assessments, and of what factors were more or less important in certain kinds of undertakings as opposed to others. It was not a pure question of law.
Thus, some level of deference should be afforded to the Minister’s interpretation. It concluded that it was appropriate to review the Minister’s interpretation on a reasonableness standard. In applying this standard, it found that the Minister’s interpretation of the Act, as allowing a tailoring of terms of reference to suit the circumstances of the undertaking, was reasonable. Hence, it was open to the Minister to consider the terms of reference submitted by CWS.
It therefore allowed the appeal, set aside the judgment of the Divisional Court and dismissed the application for judicial review.