Junaid K. Subhan

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 appellants brought motions to stay the construction of two wind turbine projects pending their appeals of the Environmental Review Tribunal's decisions upholding the Renewable Energy Approvals.

The court found it lacked jurisdiction under the Rules of Civil Procedure or the Environmental Protection Act to stay the Director's approvals directly, treating the motions as requests for interlocutory injunctions.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the appellants would not suffer irreparable harm prior to the appeal hearing, as the turbines would not be operational by then.

The motions were dismissed.

Following earlier decisions concerning requests for directions in litigation arising from the Indian Residential Schools Settlement Agreement, the court had previously awarded costs payable by the Truth and Reconciliation Commission to Independent Counsel.

After that decision was released, Canada delivered additional submissions asserting it should not be liable for costs, and the Truth and Reconciliation Commission asserted a right to file further reply submissions.

The court held that the additional submissions were unnecessary and procedurally improper because the parties had already been given the opportunity to address costs.

The judge confirmed that the earlier costs decision would not be altered and refused to permit further reply submissions.

Following earlier reasons concerning Requests for Direction under the Indian Residential School Settlement Agreement regarding the treatment of Independent Assessment Process documents, the court addressed costs.

Independent counsel who represented the interests of claimants sought full or substantial indemnity costs against the Truth and Reconciliation Commission.

The court held that although the commission’s request for directions was reasonable and undertaken pursuant to its mandate, independent counsel had effectively acted as amicus curiae and provided helpful submissions on behalf of claimants.

Considering the partial success of the parties and the reasonableness of the amounts claimed, the court exercised its discretion to award reduced partial indemnity costs.

Requests for directions were brought regarding the disposition of documents generated in the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement.

The moving parties sought guidance on whether the documents, which contained highly sensitive narratives of abuse and personal information, should be archived or destroyed.

The court held that the documents were confidential, subject to the implied undertaking and the law of breach of confidence, and were created for a private adjudicative process.

Interpreting the settlement agreement and exercising supervisory jurisdiction over the class action settlement, the court concluded the documents must ultimately be destroyed after a retention period.

During the retention period, claimants must be notified of their option to consent to the transfer of redacted records to the National Research Centre for Truth and Reconciliation.