John A. Terry

The appellant appealed the issuance of a Renewable Energy Approval for a wind farm project.

At a pre-hearing conference, several individuals and entities sought participant or presenter status.

The Tribunal granted the status requests but considered whether it had jurisdiction to hear evidence on all issues raised, including economic impacts and general animal health.

The Tribunal held that under the Environmental Protection Act, its jurisdiction is strictly limited to whether the project will cause serious harm to human health or serious and irreversible harm to plant life, animal life, or the natural environment.

Consequently, the Tribunal ruled that evidence regarding economic impacts and issues not pleaded in the Notice of Appeal were outside the scope of the hearing and could not be presented.

The Environmental Review Tribunal held a pre-hearing conference regarding an appeal of a Renewable Energy Approval for a wind farm.

The Tribunal granted presenter and participant status to several individuals and entities.

The Tribunal also issued procedural directions, including deadlines for document exchange and scheduling the hearing dates, while excluding certain issues from the scope of the hearing.

The applicant sought to challenge an arbitral award, arguing the arbitrator exceeded his jurisdiction by misapplying French law to read a diligent management requirement into an Earn-Out Clause, despite an Entire Agreement Clause.

The applicant also alleged a denial of natural justice due to the arbitrator's refusal to allow a sur-sur-reply.

The Superior Court of Justice dismissed the challenge, finding the arbitrator's interpretation was an unreviewable issue of mixed fact and law, not a true jurisdictional error.

The court also held the arbitrator's procedural ruling was a reasonable exercise of discretion that did not deny the applicant a fair hearing.

The respondent's parallel application to recognize the award was granted.

The Court held Yukon breached the Chapter 11 modern treaty land-use planning process by making major final-stage changes not properly proposed earlier and not grounded in changing circumstances.

Yukon’s approval was quashed, and the parties were returned to the s. 11.6.3.2 stage.

The Court rejected the Court of Appeal’s approach of resetting the process to an earlier stage and emphasized judicial restraint with robust legality review in modern treaty implementation.

Following the dismissal of an application for judicial review concerning the duty to consult on a wind farm project, the successful respondents sought costs.

The court noted the complexity of the issue, the significant financial stakes of the $240 million project, and the applicant's 15-month delay in commencing the application.

The court awarded costs of $50,000 plus disbursements and HST to each of the two respondent groups, while the respondent Minister did not seek costs.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

Following the dismissal of the appellant's appeal regarding a Renewable Energy Approval for a wind turbine project, the successful respondent sought costs of $20,000.

The appellant argued no costs should be awarded as he was a public interest litigant and the appeal raised a novel issue.

The Divisional Court rejected these arguments, noting that private landowners challenging REAs are not public interest litigants and the appeal did not raise a novel issue.

The court fixed costs payable by the appellant to the respondent at $10,000.

The Association for the Protection of Amherst Island appealed the Director's decision to issue a Renewable Energy Approval to Windlectric Inc. for a 26-turbine wind facility on Amherst Island.

The Appellant argued the project would cause serious harm to human health from turbine and concrete batch plant emissions, and serious and irreversible harm to animal life, specifically Bobolink, raptors/owls, bats, and Blanding's turtles.

The Environmental Review Tribunal found that the Appellant failed to meet the statutory onus under the Environmental Protection Act to prove that the project would cause serious harm to human health or serious and irreversible harm to the natural environment.

The appeal was dismissed and the Director's decision was confirmed.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The Appellant appealed the Director's decision to issue a renewable energy approval for a wind project.

Due to the complexity of the hearing and numerous motions, the statutory six-month deadline for disposition was approaching.

The Tribunal ordered an adjournment on its own initiative, with the consent of the Appellant and Director, to allow sufficient time to deliberate and write its decision.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment of a judicial review application.

The applicant opposed the costs, arguing they should be assessed later or denied.

The court found the motion was entirely avoidable and necessitated by the applicant's unreasonable refusal to consent to the adjournment.

The court awarded costs to the moving parties but reduced the amount to $6,000, finding the time spent on the motion materials excessive.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment.

The respondent opposed the costs, arguing they should be assessed later or denied due to alleged delays.

The court found the motion was entirely avoidable and necessitated by the respondent's unreasonable refusal to consent to the adjournment.

Applying the principles of proportionality and reasonableness, the court fixed costs at $6,000 inclusive of disbursements and HST.

The appellant in an appeal of a Renewable Energy Approval for a wind project requested a summons for a Ministry of Natural Resources and Forestry herpetologist to testify about impacts on Blanding's turtles.

The Tribunal granted the request to issue the summons but simultaneously granted the proposed witness's application to cancel it, finding that while the evidence was relevant, it was not necessary because the appellant was already calling its own expert on the subject.

The Environmental Review Tribunal ordered an adjournment of the hearing regarding the Renewable Energy Approval for the Amherst Island Wind Project for a period of 19 days.

The date of deemed confirmation of the approval was extended accordingly.

The applicant, the Attorney General of Canada, sought to set aside a NAFTA arbitral award that found Canada liable for breaching the prohibition on performance requirements under Article 1106.

Canada argued that the tribunal exceeded its jurisdiction by applying the wrong criteria to determine whether the impugned guidelines fell within Canada's reservation for subordinate measures under Article 1108.

The Superior Court of Justice dismissed the application, holding that the tribunal's interpretation of the NAFTA reservation provisions was a question of merits, not a true question of jurisdiction under Article 34(2)(a)(iii) of the Commercial Arbitration Code.

The moving parties brought a motion to adjourn the hearing of a judicial review application scheduled for February 2016.

The moving parties argued that their counsel was unavailable, they were not consulted on the date, and there was insufficient time to prepare a proper response, including conducting cross-examinations.

The court applied the factors for granting an adjournment and found that proceeding in February would deny the moving parties the opportunity to fairly make out their case.

The motion was granted and the hearing was adjourned to October 2016.

The appellant appealed the Director's decision to issue a Renewable Energy Approval for a 10-megawatt wind facility.

The appellant argued that the project would cause serious harm to human health due to noise, water contamination, and fire risks, and serious and irreversible harm to the natural environment, specifically the Oak Ridges Moraine and species at risk birds.

The Tribunal found that the appellant failed to adduce sufficient evidence to meet the statutory tests under the Environmental Protection Act.

The Tribunal accepted the expert evidence of the approval holder and the Director that the project posed a low risk to water resources and that compensation habitat would adequately mitigate impacts on bird species.

The appeal was dismissed and the Director's decision was confirmed.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

The appellant appealed a Renewable Energy Approval for a 5-turbine wind facility located on the Oak Ridges Moraine.

The appellant argued the project would cause serious harm to human health and serious and irreversible harm to the natural environment, specifically through hydrogeological impacts and impacts to bird habitat and significant woodlands.

The Tribunal dismissed the health and hydrogeological claims, finding the risks of noise, shadow flicker, and spills were low and adequately mitigated.

The Tribunal also dismissed the claim regarding grassland bird habitat, finding compensation measures sufficient.

However, the Tribunal allowed the appeal in part, finding that the removal of portions of a significant woodland (SW-11) would cause serious and irreversible harm to the woodland and its function as habitat, as the proposed mitigation and compensation measures would take decades to replace the mature forest being removed.

The Tribunal considered a consent request to adjourn an appeal of a Renewable Energy Approval issued to the Approval Holder.

The parties consented to a 39-day adjournment.

Pursuant to s. 59(2)1.i of O. Reg. 359/09, the Tribunal granted the adjournment and extended the date of deemed confirmation of the approval to January 15, 2016.