SLWP Opposition Corp. v. Ontario (Environment and Climate Change), 2015 ONERT 74637

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

November 12, 2015

CASE NO.:

15-037

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant:

SLWP Opposition Corp.

Approval Holder:

Settlers Landing Nominee Ltd.

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Settlers Landing Wind Park

Reference No.:

8992-9TVSKD

Property Address/Description:

510 Telecom Road Part of Lots 7-9, Concession 3

Municipality:

City of Kawartha Lakes

ERT Case No.:

15-037

ERT Case Name:

SLWP Opposition Corp. v. Ontario (Environment and Climate Change)

Heard:

October 22, 2015 in Pontypool, Ontario and on November 9, 2015 via telephone conference call

APPEARANCES:

Parties

Counsel

SLWP Opposition Corp.

Graham Andrews

Director, Ministry of the Environment and Climate Change

Nadine Harris and Katie Clements

Settlers Landing Nominee Ltd.

John Terry and Grant Worden

ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER GIBBS

REASONS

Background

1This Order by the Environmental Review Tribunal (“Tribunal”) relates to the adjournment of an appeal of a renewable energy approval (“REA”) issued by the Director, Ministry of the Environment and Climate Change to Settlers Landing Nominee Ltd. (“Approval Holder”).

2Section 145.2.1(6) of the Environmental Protection Act provides that the decision of the Director to issue the REA will be deemed to be confirmed if the Tribunal does not dispose of the hearing within a prescribed time, that time being set out in Ontario Regulation (“O. Reg.”) 359/09 as six months from the date that a notice of appeal is served on the Tribunal. In this case, the s. 145.2.1(6) statutory deadline would be November 23, 2015.

3O. Reg. 359/09, s. 59 deals with adjournments. Section 59(2) 1 provides:

59. (2) For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time:

60. Any period of time occurring during an adjournment of the proceeding if,

i. the adjournment is granted by the Tribunal on the consent of the parties, or

ii. the adjournment is,

A. on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties,

B. not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and

C. necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.

4A brief history of the timeline relating to this appeal provides the context for the adjournment. Upon receipt of the appeal, the Tribunal forwarded a “Schedule of Events” to all parties, in accordance with Rule 32 and Appendix A of its Rules of Practice. The Schedule of Events provided that the hearing should begin on August 31, 2015, i.e., eight weeks after the appeal expiry date. Absent an adjournment, the statutory deadline for the Tribunal’s decision in this appeal would be November 23, 2015.

5At the preliminary hearing on June 22, 2015, the Tribunal agreed to a request by all parties to delay the first hearing day given that counsel were not available until mid-September. A hearing schedule was then set on consent of all parties, which provided that: the hearing would take place September 9, 10 and 11, 2015, and final oral submissions would be made on October 22, 2015.

6The evidence portion of the hearing was completed, as scheduled, on September 11, 2015 and the parties filed final written submissions prior to the date set for oral submissions.

7At the oral submissions hearing on October 22, 2015, the Approval Holder brought a motion to admit new evidence relating to proposed grassland and woodland compensation properties referred to in the REA. The Tribunal granted the motion, with the proviso that the Appellant had the right to respond to the new evidence, and that such a step may require a “clock-stopping adjournment” in order for the Tribunal to fully consider the new material. The Tribunal then heard the new evidence, which was entered through a fact witness, David Eva.

8Also on October 22, 2105, the parties agreed to a schedule for the Appellant’s responding witness statement, and cross-examination at a court reporter’s office. The parties undertook to file the Appellant’s additional witness statement, cross-examination transcript, and final supplementary submissions with the Tribunal by 12 p.m. on November 9, 2015. A telephone conference call (“TCC”) was scheduled for 4 p.m. on November 9, for the Tribunal to instruct the parties as to whether or not it would require oral submissions, and whether or not, in light of the new evidence and resulting delay in filing final submissions, a “clock stopping adjournment” would be required for a fair and just determination of the proceeding.

9On November 9, 2015, the Appellant filed an expert witness statement, and supplementary submissions. The Approval Holder also filed supplementary submissions, and in addition, filed two new expert witness statements, purportedly responding to the Appellant’s evidence. The Appellant did not object to the filing of these witness statements and waived cross-examination of the expert witnesses.

Discussion, Analysis and Findings

10Section 59(2)1 of O. Reg. 359/09 provides that, for a period of time to be excluded from the six month calculation for the disposition of the hearing, it must be by consent of the parties or “necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.”

11During the TCC held with the parties on November 9, 2015, the parties acknowledged the reasonableness of additional time for the Tribunal to consider the new evidence, given its very recent filing. The Appellant consented to a “clock-stopping” adjournment while the Director and Approval Holder did not oppose an adjournment for a period of 14 days.

12The new evidence adduced by the Approval Holder on October 22, as well as the responding evidence by the Appellant and additional expert evidence by the Approval Holder filed November 9, is directly related to an issue before the Tribunal for determination. Specifically, the evidence relates to whether the Project operating in accordance with the REA will cause serious and irreversible harm to grassland habitat, to woodlands, and to woodland habitat. In sum, the evidence is important and goes to the findings the Tribunal must make relating to the “serious and irreversible harm” test in this case.

13Fourteen calendar days (i.e., from November 9 to 23) from the receipt of the important new evidence is clearly insufficient in this case for the Tribunal to dispose of the hearing. The Approval Holder, while not “consenting” to an adjournment, acknowledged the reasonableness of a 14-day adjournment in this case. No party raised any arguments relating to prejudice. The Tribunal finds as a result that, in order to secure a fair and just determination, the Tribunal must have a reasonable amount of time in which to consider the new evidence, deliberate and dispose of the hearing and that the proceeding should be adjourned for a period of 14 days.

ORDER

14The Tribunal adjourns the hearing for 14 days under O. Reg. 359/09, s. 59(2) 1.ii.

15Subject to any further order by the Tribunal, the Tribunal must now dispose of the hearing by December 7, 2015.

Adjournment Ordered

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Heather Gibbs”

HEATHER GIBBS

VICE-CHAIR

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Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248