On September 29, 2006 an important decision was handed down by the Ontario Superior Court of Justice. The case was brought by the Town of Newmarket against Halton Recycling Limited. The case concerned Halton’s operations in Newmarket where organic wastes are stored and processed. Halton was not the first operator of the facility which had, until going into receivership in 2003, been operated by CCI Newmarket Ltd. Halton purchased the facility in November 2003 apparently with the knowledge that remedial work was necessary to deal with odour issues. The company spent in excess of $7 million to address these issues and submitted its plans for the final stage of a remedial action plan to the Ontario Ministry of the Environment on May 8, 2006. (The plan could not be acted on without a Certificate of Approval.)
Halton processes source-separated organics largely from the “Green Bin” program in the City of Toronto.
The application was brought pursuant to section 433 of the recently amended Ontario Municipal Act which allows a municipality to apply to the court for an order requiring that all or part of a facility within the municipality be closed for any use for a period not exceeding two years because the activities or circumstances constitute a public nuisance that has a detrimental impact on the neighbouhood.
In its application, the town sought an order closing Halton’s facility for two years, alleging that the recycling process caused odorous emissions which were a public nuisance. Halton resisted the order, saying that the odours from its operations were not a nuisance and that it had taken adequate steps to eliminate the odours.
Interestingly, both the company and the town filed large volumes of materials that included ministry approvals, provincial officer’s orders, consultants reports, affidavits, transcripts of cross-examinations, and other documents, but the environment ministry itself was not represented at the hearing and didn’t intervene despite the fact that it is the regulator of first instance of Halton Recycling’s facilities. No reason is given for this in the decision of the court (and none would be expected in the circumstances) but the absence is notable.
A review of the court’s decision reads as a litany of complaints of the odours from residents and those working in the vicinity of the operation. Odour complaints started when CCI owned the site between 1999 and 2003. Halton came to own the plant in 2004 at a time when residents and the town had already organized a tracking system for odour complaints. As a result, Halton’s significant expenditures on odour prevention were made at the very time local stakeholders had a keen interest in the plant’s operations and the frequency of adverse odour events.
The court accepted the evidence that the facility had caused an inconvenience to those who lived and worked in the area, and also found that Halton could improve matters by installing further equipment The court also held that Halton did not meet regulatory or industry standards. The court found that the facility interfered (and continues to interfere) with the comfort and convenience of people within its sphere of influence, and is therefore a nuisance.
In the end, the court imposed a closure order on Halton’s operations for a period of nine months. Interestingly, the court stayed the order for 90 days in order to enable Halton to take remedial action. Halton was also allowed to make a further application to the court at a further date to suspend the order if the court could be satisfied on a balance of probabilities (normally considered greater than 50 per cent likelihood) that Halton’s operations would not result in a continuing public nuisance.
At first blush the use of section 433 of the Municipal Act to shut down operations like Halton Recycling’s could be seen as a warning that other waste operations could face similar actions. True, a community organized to fight a waste management operation of some sort might succeed in future, but such an outcome is not as likely as it might seem. Halton, in purchasing CCI’s troubled operations, inherited what appears to have been a “mature” community concern. Additionally, the newly amended section 433 provided a tool that had not been used previously by any party (that we are aware of) in the province. The court didn’t have any jurisprudence to guide it and had a tremendous amount of factual material before indicating that there was in fact a concern with the operations.
Two things could alter similar cases in the future. First, there may be an appeal of this case. However, at press time the case had not been appealed and it doesn’t seem that Halton will appeal. Secondly, the facts of every case are very specific; the mass of complaints collected and submitted in this case made it very difficult for a judge to find that a nuisance didn’t exist. It’s unclear whether or not a judge in a different case — with different facts — would order a closure.
At the end of the day, the case serves to remind anyone operating in the waste sector of the importance of maintaining positive relations with local stakeholders and to take seriously the risks associated with establishing, purchasing, or altering an industrial-scale operation. What may seem to be minor community complaints can develop into significant challenges that end up in court.
Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at firstname.lastname@example.org