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Ontario sued, again, for failure to consult

by Mark Sabourin
EcoLog, 8/14/2020 1:07:00 PM

It’s back to court for Greenpeace Canada and the Ontario government. The environmental organization has joined with Wilderness Committee to sue the Ontario government for its failure to consult the public on environmental reforms in Bill 197, the COVID-19 Economic Recovery Act, 2020, through the Environmental Registry of Ontario, a requirement of the Environmental Bill of Rights, 1993.

Greenpeace Canada and Wilderness Committee are represented by Ecojustice, which also took Ontario to court on behalf of Greenpeace Canada for a similar matter in 2018 after the newly-elected Ford government scrapped the province’s cap-and-trade program without a posting on the Environmental Registry of Ontario. In that case, the court ruled that the government was indeed wrong, but it declined to do anything about it.

Bill 197, which is ostensibly about post-COVID recovery, makes major changes to Ontario’s Environmental Assessment Act, the Planning Act and other environmental laws.

“Since being elected, the Ford government has attempted to dismantle environmental protections in Ontario,” said Ecojustice Lawyer Ian Miron in Ecojustice’s statement about the lawsuit. In its court filing, Ecojustice argues that the government will simply continue to flout its consultation responsibilities unless the court tells it to stop.

However, unlike the earlier challenge, which dealt with a regulation — the Prohibition Against the Purchase, Sale and Other Dealings with Emission Allowances and Credits Regulation (O. Reg. 386/18) — this challenge deals with an Act of the Legislature.

Under section 15 of the Environmental Bill of Rights, 1993, a minister must consult with Ontarians on an Act if “the minister considers that the public should have an opportunity to comment on the proposal before implementation.” That would seem to give the government wiggle-room to avoid a posting on the Environmental Registry of Ontario, but Miron disagrees.

“Pushing through these changes without allowing the public to have their say broke with the government’s past practice on a lot of these laws — where the government has consulted before making changes,” says Miron in an e-mail to EcoLog News.

Miron also notes that the government has not relied on section 15 to justify its dodge of the Environmental Registry of Ontario, but on a section in Bill 197 itself that attempts to shield from the requirement to consult. That can’t work, says Miron, because that section became law only after Bill 197 was passed.

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