Intervenor: Vol 23. No 1 January - March 1998

Environmental Tool-Kit: Request For Investigation Under the EBR

Consider the following: you live near a facility, whether it be commercial, industrial, or institutional, and the operation is contravening an environmental statute, causing damage to the environment, and perhaps even impairing your own health or property. You call the Ministry of the Environment (MoE) and report the problem, but Ministry staff conclude there is no problem. But you remain unconvinced and unsatisfied with the Ministry's conclusions. What do you do?

If you are not satisfied with how the MoE is handling the situation, then the Request for Investigation (RfI) section of the Environmental Bill of Rights 1993, (EBR) is for you.

The RfI process enables you to file an official petition requesting that a proper investigation be conducted. Your request is handled by a separate, arm's length agency, the Environmental Commissioner of Ontario (ECO), who ensures that it is directed to the correct Ministry. More importantly, the RfI process requires that a formal response must be given to the applicant and the ECO office.

The RfI process is initiated by obtaining an application from the ECO office. The application must be made by two persons who are resident of Ontario, and must set out: the nature of the incident, the statute or regulation that is being contravened, the names and addresses of each person alleged to have been involved (if known), a summary of evidence and witnesses, and the details of any previous contact with the appropriate government Ministry. This information must be accompanied by a sworn affidavit from both applicants, affirmed by a recognized commissioner for taking affidavits, stating that they believe this information to be true.

Within ten days of receiving the application, the ECO office must refer the request to the appropriate Minister, who must acknowledge receipt of the request within twenty days. The Minister then has 60 days to decide whether or not to conduct an investigation. A request may be denied, but only in prescribed circumstances, and the applicant must be given reasons as to why an investigation will not be carried out. If the situation does not fit into these circumstances, then the investigation must be conducted, although the size and scope of the investigation may be determined by the Minister. The Minister has an additional 60 days to complete the investigation, and must notify the applicant and the ECO of the outcome of the investigation and what action will be taken, if any.

Although it appears that the Minister has a great deal of discretion over this process, keep in mind that the Minister must have sufficient evidence upon which to base his or her decision and that the Environmental Commissioner is empowered to review and report on the exercise of a Minister's discretion under the Act. Thus there are checks and balances at work that ensure that credible requests receive proper attention, while frivolous claims do not use up valuable staff and resources.

A few other points are worth noting. First, the Request for Investigation process only applies to certain Acts and accompanying regulations, 18 in all, that are prescribed by Ontario Regulation 73/94. Nevertheless, all of the most important environmental protection statutes are prescribed, including the Environmental Protection Act, Ontario Water Resources Act, Environmental Assessment Act and the federal Fisheries Act. Second, an individual must complete an RfI before employing the Right to Sue provisions of the EBR. These provisions enable any person in Ontario to initiate a court action to protect the environment. Finally, this process should only be used after availing oneself of the regular channels for reporting environmental concerns. It is only when someone has contacted the proper government department and is unsatisfied with the response that an RfI is appropriate.
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Paul McCulloch is a Student at Law at CELA

WHO TO CALL

To obtain the forms necessary to initiate a Request for Investigation, contact:

The Environmental Commissioner's Office
1075 Bay Street, Suite 605
Toronto, Ontario
M5S 2B1
Tel: 416-325-3377 or 1-800-701-6454

There's also the Ontario MoE Info. line at 1-800-565-4923.

For more detailed information on the Request for Information process, and the EBR in general, you may wish to consult the following book, written by two of CELA's staff lawyers:

Rick Lindgren and Paul Muldoon, The Environmental Bill of Rights: A Practical Guide. Toronto, Emond-Montgomery Publications Ltd, 1995.