Many readers will be familiar with the case involving the Town of Newmarket and a composting plant north of Toronto, which operates as Halton Recycling. (See Editorial, page 4.) On September 29, 2006, the Town of Newmarket was successful in obtaining a ruling in the Ontario Superior Court of Justice that required Halton Recycling to close down its operations, unless it implemented a plan to eliminate off-site odors within ninety days of the Court’s decision.
Halton Recycling processes source-separated organics for the City of Toronto, producing compost and “green electricity.” For over two years, the company had generated orders from its processing activities, which had caused both workers at the plant and residents in the local community extreme upset. The court found that Halton Recycling had created a “public nuisance” by emitting odors that caused unreasonable interference with the comfort and convenience of persons working or residing in the community and ordered closure of the plant.
Powers of municipalities and nuisances
The case is interesting in that this is the first time that a municipality has used the provisions of Ontario’s Municipal Act, 2001, which allow a municipality to apply to court for an injunction to close down business operations for a period of up to two years. In order to bring such an application, the municipality must be able to prove that the business is creating a public nuisance that has a detrimental impact on use and enjoyment of property in the community, and that the owner of the business has failed to take appropriate steps to eliminate that nuisance. The court decision last year confirmed that municipalities have the authority to regulate environmental matters, such as odors, under the public nuisance provisions.
When the court first heard the case last fall, it found that over one thousand complaints had been received over a two-year period from people working or living in and around the Halton Recycling plant. The court concluded that the odors were so unbearable as to constitute both an adverse affect and a public nuisance. Halton Recycling had became the operator of the plant in July, 2004, and had spent approximately $8 million since then on changes to the facility to address odor issues, but the problem had not yet been solved.
The court considered all of the evidence and then ordered Halton Recycling to close down its operations on December 30, 2006 (ninety days from the decision being rendered by the court) until June 28, 2007, unless the company could successfully demonstrate to the court that there was no longer any public nuisance.
During the ninety-day period until closure, Halton Recycling was required to limit the amount of organic waste it received for processing, reduce fugitive emissions and odors, and fully implement its remedial plan. The court also required, in its decision, that the Town of Newmarket process all required permits and agreements to allow Halton Recycling to complete its remedial action plan within the ninety-day period, since the company couldn’t proceed with certain remedial work without those approvals.
Halton Recycling fights back
In December of 2006, Halton Recycling brought a motion to the Superior Court of Justice for an extension of the ninety-day period to complete its remedial action plan. The company asked the court to permit it to remain open on a continued restricted basis until it received all of the required site plan approvals and building permits from the town. Once those approvals were obtained, Halton Recycling was requesting that the court provide an additional ninety-day period to permit it to complete its remedial action plan. Halton Recycling argued that it could not proceed to conduct the remedial work without these permits being issued by the town.
Court reverses previous ruling
On March 2, 2007, the court ruled in favor of Halton Recycling, and revoked the nine-month closure order. In doing so, the court made some significant findings against the Town of Newmarket and, specifically, its failure to issue the permits required for Halton Recycling to proceed with its remedial plan. The court found that the town had breached its obligation to process building permits and amend the site plan agreement, as ordered by the court, and did not make “good faith efforts in a timely manner to comply.” The court went so far as to refer to the town’s failures as an “abuse of process.”
Based on this decision, Halton Recycling is now able to continue to operate under the restrictions previously set out. The case demonstrates that municipalities do have the power to control the activities of businesses within their communities that are causing a public nuisance. However, it also demonstrates that, in order to exercise those powers, municipalities are required to ensure that its actions or omissions are not preventing or delaying the ability of those businesses to bring themselves into compliance and to rectify deficiencies.
Rosalind Cooper, LL.B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. Contact Rosalind at firstname.lastname@example.org
Miller Compost facility in Pickering
On April 5, 2007, Editor Guy Crittenden moderated a well-attended organics workshop convened by The Composting Council of Canada (CCC) and the Association of Municipal Recycling Coordinators (AMRC) in Ajax, Ontario. The event was situated in Durham Region (east of Toronto), home of Miller Composting’s Pickering compost plant, and that is where delegates went for their tour the day before the workshop. The facility is designed with two vessels, each of which can process 25,000 metric tonnes of SSO material per year. Currently, one in-vessel system is operating close to capacity and the second vessel will be constructed in 2008. The plant services approximately 500,000 homes in the Durham Region as well as the commercial, industrial and institutional markets. Just six staff operate the high-tech facility. The facility uses the proprietary Ebara In-Vessel Composting System. (An in-depth article on this facility will be featured in the June/July edition of this magazine.)