C. Wayland

Following the dismissal of their appeals from decisions of the Environmental Review Tribunal regarding wind farm approvals, the appellant landowners argued they should not pay costs because the litigation was in the public interest.

The Divisional Court held that while the appeals were not public interest litigation that would merit no costs, they did contain a strong public interest component regarding the constitutionality of the legislative regime.

Taking this into account, along with the lack of particularity in the respondents' bills of costs and the lower scale of costs typically awarded on appeals to the Divisional Court, the court awarded reduced partial indemnity costs to the successful respondents totaling $67,000.

The appellants, residents living near three proposed wind turbine farms, appealed decisions of the Environmental Review Tribunal (ERT) that confirmed the Director's issuance of Renewable Energy Approvals (REAs) for the projects.

The appellants argued that the statutory test requiring them to prove the projects would cause 'serious harm to human health' violated section 7 of the Charter.

The Divisional Court dismissed the appeals, finding that the statutory test aligned with the jurisprudential threshold for section 7 claims and did not depart from the consensus scientific view on wind turbines.

The Court also upheld the ERT's treatment of lay witness evidence, its finding that it lacked jurisdiction to review the Director's REA issuance process for Charter compliance, and its discretionary decisions denying adjournments.

The Divisional Court heard three appeals from an Environmental Review Tribunal decision regarding a Renewable Energy Approval for a wind turbine project at Ostrander Point.

The Tribunal had revoked the approval, finding the project would cause serious and irreversible harm to Blanding's turtles, but dismissed appeals regarding harm to birds, alvar, and human health.

The Court allowed the appeal by the project developer and the Ministry of the Environment, finding the Tribunal's decision on Blanding's turtles was unreasonable as it lacked evidence on population size, failed to properly consider the developer's Endangered Species Act permit, and breached procedural fairness in determining the remedy.

The Court dismissed the cross-appeals regarding birds, alvar, and human health, finding the Tribunal's conclusions on those issues were reasonable.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike an amended statement of claim alleging negligence, breach of fiduciary duty, intrusion upon seclusion, conspiracy, and breach of contract arising from a fertility clinic nurse’s alleged affair with the plaintiff’s partner during treatment.

The court applied the “plain and obvious” test from R. v. Imperial Tobacco Ltd. and held that several claims disclosed arguable causes of action, particularly those grounded in fiduciary duty, professional negligence, breach of confidence, and privacy.

The court emphasized that novel claims arising in sensitive medical contexts should not be struck where they have a reasonable prospect of success and should instead proceed to trial for full evidentiary assessment.

However, certain allegations relating to the defendants’ failure to investigate or discipline the employee and irrelevant narrative material were struck as disclosing no reasonable cause of action or as scandalous pleadings under Rule 25.11.

The remainder of the motion to strike was dismissed.

The appellant appealed the dismissal of an action against a judge arising from conduct alleged to have occurred while hearing and deciding the appellant's earlier civil proceeding.

The Court of Appeal held that the pleaded allegations concerned acts done in the execution of judicial duties and therefore could not found a valid cause of action.

The court further held that the respondent's response to a complaint to the Canadian Judicial Council was also undertaken in the course of judicial office.

The appeal was dismissed with costs.