An Unreasonable Defence? Costs Applications Before The Environmental Review Tribunal

The recent decision of the Environmental Review Tribunal in CCCTE v. Ontario (Environment and Climate Change) provides a useful reminder about the basic principles and test to be applied by the Tribunal in connection with an application for costs.  Importantly, the decision gives some comfort to those mounting a defence to an appeal that, even if ultimately unsuccessful in the appeal, such conduct is not in and of itself unreasonable conduct sufficient to ground a costs award.

Background

In CCCTE, an appeal was brought before the Environmental Review Tribunal in connection with certain conditions of an Amended Environmental Compliance Approval issued by the Ministry of the Environment and Climate Change in relation to the closure of a landfill owned by Waste Management of Canada Corporation ("WMC"). Party status in the hearing was sought and obtained by the Mohawks of the Bay of Quinte (the "MBQ").