This volume provides the background and more recent updates related to one of the most controversial environmental court decisions in Ontario history, Lafarge v. Ontario Environmental Review Tribunal (2008). In 2004, Lafarge, a multi-national cement producer, applied to the Ontario Ministry of the Environment (MOE) for air and waste approvals under the Ontario Environmental Protection Act (EPA) in order to burn "alternative fuels"(i.e. scrap tires, plastics, etc.) at its cement plant near Bath, Ontario. In late December 2006, two MOE Directors delivered their Christmas presents to the company and issued the approvals. Several parties then sought leave to appeal to the Environmental Review Tribunal (ERT) under the Environmental Bill of Rights, 1993 (EBR). In April 2007, the ERT granted some of the EBR leave applications. Key findings included: 1) the standard of proof at the EBR leave stage is less than "balance of probabilities"; 2) the MOE's Statement of Environmental Values under the EBR (i.e. requiring consideration of factors such as the ecosystem approach, cumulative effects, precautionary principle, etc.) should be applied to MOE's approval decisions; and 3) proposed compliance with an MOE numerical emission standard in an approval for air and water discharges is not necessarily determinative of whether significant environmental harm could occur. Lafarge then applied to the Divisional Court seeking to overturn the ERT leave decision and was unsuccessful, thus theoretically reinforcing the importance of the EBR in decision-making on approvals by Ontario government ministries. These cases and materials are intended to assist environmental and municipal lawyers in understanding the implications of the Lafarge case in their arguments before ERT, the Ontario Municipal Board and the courts.
About the Author: David S. McRobert is an Ontario-based environmental and energy lawyer. Between October 1994 and June 2010, he was In-House Counsel at the Environmental Commissioner of Ontario and was involved in the establishment of the office. David has a B.Sc. in Biology from Trent University (1980), a Master's degree (MES) from York University (1984), and an LL.B. degree from Osgoode Hall Law School (1987). He taught environmental law at York University between 1994 and 2009 and has numerous previous publications.