On September 23, 2014, the Ontario Environmental Review Tribunal (ERT) released its interlocutory decision in Rocha v Director, Ministry of the Environment. The ERT refused to issue a stay pending appeal of a Director’s Order issued to a mortgagee and advisor under section 157.3(5) of the Environmental Protection Act (EPA). The ERT found that it did not have jurisdiction to grant a stay of the work items set out in the Director’s Order.
The ERT decided that even if it had jurisdiction to stay any of the work items, it would not exercise its discretion to do so. Mr. Rocha failed to demonstrate that it would suffer irreparable harm. The ERT held that the balance of convenience did not warrant a stay.
Most interesting was the ERT’s finding that “where groundwater contamination is present and spreading”, the balance of convenience test directs a mortgagee with management or control to conduct work on the property before hearing an appeal.
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