Court File and Parties
CITATION: Pitt v. Wainfleet Wind Energy Inc., 2014 ONSC 3970
DIVISIONAL COURT FILE NO.: 254/14
DATE: 20140627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, ASTON AND LINHARES DE SOUSA J.
BETWEEN:
MIKEL PITT and SKYDIVE BURNABY LTD. Appellants/Moving Parties
– and –
WAINFLEET WIND ENERGY INC. and DIRECTOR, MINISTRY OF THE ENVIRONMENT Respondents/Responding Parties
COUNSEL:
Eric K. Gillespie and Natalie Y. Smith, for the Appellants/Moving Parties
Scott Alexander Stoll, Timothy James Hill and Jody Ellen Johnson, for the Respondent, Wainfleet Wind Energy Inc.
HEARD at Toronto: June 27, 2014
Oral Reasons for Judgment
ASTON J. (orally)
[1] Given the decision of the Director, Ministry of the Environment not to participate in these two motions under s. 21(5) of the Courts of Justice Act to vary or set aside the June 6, 2014, Order of Harvison Young J., we will only address the jurisdictional and procedural issues necessary to our disposition of the motions.
[2] Even assuming that the words “the operation of the decision” in s. 145.6(4) of the Environmental Protection Act are given the expansive meaning urged upon us by the appellants, and thereby give this court the jurisdiction to order a stay, a motion for a stay must also fall within Rule 63.02. Rule 63.02 provides the procedural means for this court to order a stay of the decision of the Environmental Review Tribunal dated May 14, 2014 which dismissed the appellants’ appeal of The Renewable Energy Approval (REA) issued by the Director, Ministry of the Environment. Rule 63.02 does not confer any jurisdiction or procedural means for this court to grant a stay of the REA. An REA is not an “order” within the meaning of Rule 63.02. The Ostrander case cited by the appellants is distinguishable. In that case, an Order of the Divisional Court reinstated an REA and the motion for a stay sought to stay that Order, not the REA. Rule 63.02 embraces the relief sought in that case.
[3] The distinction between a request to stay the decision being appealed and some other prior decision was noted in para. 4 of Apotex v. Attorney General of Ontario, [1986] O.J. No. 250. We adopt that distinction.
[4] There is a specific statutory mechanism for obtaining a stay of the operation of an REA in s. 143(2) of the Environmental Protection Act. That section gave the Environmental Review Tribunal the authority to stay the operation of the REA in this case. Indeed, the appellants in this case obtained a stay of Wainfleet’s REA from the Tribunal last fall. They now seek an indirect route for the same relief. The real target is the Director’s decision to approve the REA rather than the Tribunal’s decision dismissing their appeal.
[5] Harvison Young J. determined that she had no jurisdiction to grant the relief sought, namely a stay, but that she did have inherent jurisdiction to grant injunctive relief under Rule 40.
[6] It was within the discretion of Harvison Young J. to exercise jurisdiction on the basis of Rule 40 and her disposition of the motion does not reflect an error in principle, nor is it plainly wrong.
[7] Moreover, we cannot assume that Harvison Young J. necessarily would have granted a stay if she was obliged to do so unconditionally, that is to say without any undertaking as to damages.
[8] We do not accept the submission relating to breach of procedural fairness. For the reasons noted in Wainfleet’s factum, the appellants were on notice of the request for an undertaking as to damages and had ample opportunity to respond to that issue.
[9] It is not necessary for us to refine the Order of June 6, 2014 by specifying a time within which the undertaking respecting damages is to be delivered because counsel for the appellants acknowledges that until that undertaking is delivered there is no injunction in effect.
[10] We therefore dismiss both the motion and the cross motion.
KITELEY J.
[11] Motion Record on appellants’ Motion: On the appellants’ motion pursuant to s. 21(5), for oral reasons given, the motion is dismissed. On consent, costs of this motion in the discretion of the panel.
[12] The appeal is now set for August 18 and 19, 2014. Order to go that appellant will perfect the appeal by July 11, 2014 at 4:30 p.m. and respondent will provide responding material (if any) and factum by August 12, 2014 at 4:30 p.m.
[13] Motion Record of the Respondent: Pursuant to s. 21(5), for oral reasons given, the motion is dismissed. On consent, costs of this motion in the discretion of the panel hearing the appeal.
ASTON J.
KITELEY J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: June 27, 2014
Date of Release: July 7, 2014
CITATION: Pitt v. Wainfleet Wind Energy Inc., 2014 ONSC 3970
DIVISIONAL COURT FILE NO.: 254/14
DATE: 20140627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, ASTON AND LINHARES DE SOUSA J.
BETWEEN:
MIKEL PITT and SKYDIVE BURNABY LTD. Appellants/Moving Parties
– and –
WAINFLEET WIND ENERGY INC. and DIRECTOR, MINISTRY OF THE ENVIRONMENT Respondents/Responding Parties
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: June 27, 2014
Date of Release: July 7, 2014