Ontario is grappling with a legal quandary over how it handles Ozone Compliance Guidance, the guidelines it developed to help police officers enforce air quality standards in the province.
It’s an issue that has been a hot-button issue for the province since its first Ozone Complaint in November 2016, when a man died from the toxic substance in the city of Oshawa.
Now, as Ozone is being investigated by Ontario’s Ministry of Environment and Climate Change (MECC), a lawyer for the city is arguing that the province’s legal process doesn’t follow Ontario’s guidelines.
Ontario’s Ozone Standards Framework, adopted in 2014, states that officers must respond “in a timely manner” to complaints of an air quality problem.
But, a lawyer with the Toronto firm of C.J. Houghton & Merell LLP says the guidelines are too vague.
“It’s a general, undefined guideline.
It could mean anything from ‘the Ozone Program’ to ‘we will make sure you don’t breathe Ozone anymore,’ ” said Houghtons lawyer, Stephen Knepper.
Knepper has been representing Ozone for the past year in a case in the Ontario Superior Court.
Ozone was introduced in Ontario as a new pollutant in 2014 and Ontario was the first jurisdiction to adopt a strict regulation of ozone pollution in that country.
But the province decided to abandon the ozone standard in 2018, with the objective of making it easier to implement pollution control.
The new Ozone Standard has now been in effect for a decade.
The province set out to help its citizens breathe in cleaner air, and the guidelines require police to respond to complaints “in an expeditious manner.”
But the guidelines can also be interpreted to allow police to delay responding to complaints until they can demonstrate they can “provide an assurance of a prompt response to the complaints” and that “the compliance process will be expeditious and fair.”
That can be difficult to determine, said lawyer Bruce Hamer.
It’s unclear what constitutes “a prompt response,” Hamer said, since it is often unclear whether an officer has already received a complaint.
When a complaint is made, an officer must send the complaint to OZE, and OZE will review the complaint.
In a recent court filing, the province said that after it received a complaints, “the OZE staff must promptly respond within the timeframe set by the Ministry of the Environment and its Regulations.”
The province has since said it intends to take a more aggressive approach to the Ozone standard.
A recent court ruling allowed police to hold people under arrest for a few hours to answer OZE’s calls, and also ordered them to take away people’s phones.
But it was unclear if police would respond to OZED’s calls within the timeline outlined by the MECC.
In a letter to the city, Hamer argued that it would be “unduly burdensome” for police to enforce Ozone guidelines at a time when they are not expected to have time to do so.
As a result, the letter said, “a delay in responding to OZone complaints would be a clear violation of the duty to provide timely and accurate information to the MCEC and Ontario Public Health.”
In its ruling, the Mecc said police would be able to respond only if they had “reasonable grounds to believe that a complaint has been made.”
Hamer said the city should be allowed to go ahead and enforce the new OZA standards on its own.
Instead, he said, the city needs to follow Ontario Law, which states that an officer can “respond to OZA Complaints in a timely and expeditious fashion.”
“It is clear that the MCPC does not take the legal obligations and responsibilities to ensure that police respond in a fair and timely manner to OSA complaints,” Heder wrote.