Association for the Protection of Amherst Island v. Environmental Approvals, 2014 ONSC 4574

Association for the Protection of Amherst Island v. Environmental Approvals, 2014 ONSC 4574

DIVISIONAL COURT FILE NO.: 114/14

DATE: 20140820

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ASSOCIATION FOR THE PROTECTION OF AMHERST ISLAND

Applicant

– and –

DIRECTOR OF ENVIRONMENTAL APPROVALS, MINISTRY OF THE ENVIRONMENT, WINDLECTRIC INC., MINISTER OF NATURAL RESOURCES, and MINISTER OF TOURISM, CULTURE AND SPORT

Respondents

Bryan Finlay, Q.C., Anastasija Sumakova, Eric Gillespie & Graham Andrews, for the Applicant (responding party)

John B. Laskin & Ryan Lax, for Windlectric Inc., Respondent (moving party)

Sara Blake, Andrea Huckins & Jeremy Glick, for Director of Environmental Approvals, Ministry of the Environment, Minister of Natural Resources and Minister of Tourism, Culture and Sport, Respondents

HEARD: May 22, 2014

lederer j.:

INTRODUCTION

1The moving party, Windlectric Inc., is the proponent of, and has applied for the approval to develop, a wind energy project on Amherst Island, near Kingston, Ontario. The Ministry of the Environment screened the application to ascertain whether it was complete. On January 2, 2014, the Ministry announced that the application had been “deemed complete”. Accordingly, the Ministry was prepared to commence the technical review of the submission to determine if the project would be approved. Windlectric Inc. was advised to expect a decision by July 2, 2014. On March 6, 2014, an application for judicial review was commenced. It seeks an order setting aside the determination that the application is complete, as well as orders that prohibit the Ministry of Environment from proceeding any further until it is.

2This is a motion to quash the application for judicial review. Such a motion will succeed where the application has no reasonable prospect of success, where it is plain and obvious that the judicial review cannot succeed.¹ It is brought by the Association for the Protection of Amherst Island (“APAI”) which describes itself as a “registered Association of over 300 members whose current principle [sic] objective is to stop the 33-37 50-storey-tall industrial-scale wind turbine project Algonquin Power proposes for Amherst Island.”²

POLICY AND THE LEGISLATIVE REGIME

3It is worthwhile to consider the policy foundation and the legislative regime which explain the rationale and regulatory scheme for projects such as the one being proposed. In 2009, Ontario passed the Green Energy and Green Economy Act.³ In introducing this legislation, the Minister of Energy and Infrastructure said that it built on the government’s previous climate change initiatives with the objective of “first, making it easier to bring renewable energy projects to life, and secondly creating a culture of conservation…”⁴ The preamble to the Green Energy and Green Economy Act reflects this commitment “… to fostering the growth of renewable energy projects which use cleaner sources of energy, and to removing barriers to and promoting opportunities for renewable energy projects…”⁵ The Act is a broad series of statutory amendments designed to establish a new streamlined provincial regulatory approvals process for renewable energy projects. Both the policy behind, and the impact of, the legislation have been acknowledged by this court:

The Government of Ontario has a long-standing policy aimed at the reduction of annual greenhouse gas emissions for the purpose of protecting the environment and the health of the general public.

The main purpose of the [Green Energy and Green Economy Act] is to streamline the process for developing green energy projects, including wind facilities. The [Green Energy and Green Economy Act] did this by amending the [Environmental Protection Act] to add Part V.0.1, which deals with renewable energy. The [Green Energy and Green Economy Act] amended the [Environmental Protection Act] to establish processes for the approval of renewable energy projects, such as wind turbines and the authorization of regulations governing those projects.⁶

4What is clear from this is that the government sees it as advantageous to have projects develop which utilize the wind as a source for electricity. It believes that such projects can serve the greater good. It wishes to facilitate the process that considers whether any particular proposal will be approved. This does not change the technical or procedural requirements that must be met, but it does serve as a reminder that those who support such projects, not just those who oppose them, have procedural rights and expectations.

THE APPLICATION PROCESS

5The Environmental Protection Act⁷ is one of twelve statutes amended by the Green Energy and Green Economy Act. Under Part V.0.1. of the Environmental Protection Act, an application for the approval of a renewable energy project is to be prepared in accordance with the Renewable Energy Approval Regulation⁸ (“REA Regulation”). Part IV of the REA Regulation applies to projects for which a Renewable Energy Approval is required.⁹ To be eligible for an approval, a proponent must prepare the application in a form or format approved by the Director, obtain or prepare any documents that are required by Part IV of the REA Regulation and comply with all its other requirements¹⁰. The complete submission provides information about the applicant and the project. Depending upon the project type and location, this includes a variety of studies examining the potential impacts of the project as proposed. A complete submission includes:

(a) a project description report;

(b) a construction plan report;

(c) a consultation report;

(d) a design and operations report;

(e) a decommissioning plan report;

(f) noise assessment report; and, a

(g) wind turbine specifications report¹¹.

6As part of the preparation of its application, a proponent of a renewable energy project is required to consult with both local and upper-tier municipalities and to hold at least two public meetings in each local municipality in which the project is located. Drafts of the project description report are to be made available prior to the first public meeting and drafts of all documents required to be submitted as part of the application prior to the final public meeting.¹² The REA Regulation perceives the possibility of changes being made to the proposal, presumably and possibly, as a result of the consultation that is to take place and provides for additional notice and consultation as the Director deems necessary.¹³

7With all the reports and other documents prepared, the consultation completed and any other requirements satisfied, the proponent submits the application to the Ministry of the Environment for its review. The manner, content, process and extent of the review are not dealt with in the legislation or the REA Regulation. The only statutory requirement is set out in the Environmental Bill of Rights¹⁴. It requires the posting of notice on the Environmental Registry advising the public that consideration is being given to a renewable energy project. The notice provides for a period during which the public may review the proposal and provide comments to the Ministry of Environment on any issue in the application or related to the project. The Director is required to consider all public comments received through the Environmental Registry when evaluating an application for a renewable energy proposal.

8After considering an application, the Director may issue a renewable energy approval, refuse to issue such an approval, or impose terms and conditions on the approval as, in his or her opinion, is in the public interest.¹⁵

9The Ministry has published a technical guide (“Technical Guide for Renewable Energy Approvals”) to provide information on the requirements for submitting a complete application for a renewable energy approval. The guide provides information on the application requirements and on the process that the Ministry of Environment intends to follow. The purpose of the Technical Guide is stated to be:

This guide has been developed to provide detailed information on the requirements for submitting a complete application for a Renewable Energy Approval (REA) under [the REA Regulation] of the Environmental Protection Act. This introductory chapter will provide an overview of the application process and general requirements of the REA regulation. Chapter 2 provides a detailed explanation of all the consultation requirements under [the REA Regulation], as well as how to prepare the Consultation Report. Chapter 3 provides greater detail on wind turbine setback distances and related regulatory requirements that apply to most wind energy facilities. The subsequent chapters (4 to 9) detail the specific information needed to prepare the reports that may be required for a complete submission for an REA. Chapter 10 describes requirements for making changes to a project. The final chapter, Chapter 11, provides advice to applicants on how to be a good neighbour in their local community by going beyond the minimum requirements of [the REA Regulation].¹⁶

10It is explicitly set out in the guide that it should not be construed or relied on as legal advice. Under the title, “Disclaimer Regarding Legal Advice”, the guide states, in part:

While this technical guide is written to provide detailed information on the application requirements it should not be construed as legal advice.

and goes on to say that

All requirements relating to all [renewable energy approval] applications and renewable energy projects are contained in Part V.0.1. of the Environmental Protection Act and [the REA Regulation].¹⁷

11Under the heading, “Application Submission and Review”, the Technical Guide refers to a “Completeness Check”:

Upon receiving a submitted application, the ministry will determine if the application can be accepted for review through a completeness check. The completeness check simply reviews the submitted reports to determine if all the required content (for instance in Table 1 of [the REA Regulation]) has been included. The completeness check will also examine the Consultation Report in detail to ensure that all the consultation requirements and timelines were adhered to during the pre-application phase. To make this completeness check more transparent to applicants and to assist them in preparing complete applications, the ministry has published the “Checklist for Requirements under [the REA Regulation]” that itemizes all required content. The checklist will be used by ministry staff to confirm completeness and is available in Appendix 5 and under the renewable energy section of the ministry’s website as Publication #7746e.

If an application is determined to be complete the applicant will be notified and the review phase will commence. If the application is determined to be incomplete, the applicant will be notified and the deficiencies that led to the not-complete determination will be identified to the applicant. If an application is not accepted, the applicant must address all deficiencies identified prior to resubmitting a complete application.¹⁸

[Emphasis added]

12Once the application has been found to be complete, the review phase of the approval process begins:

The acceptance of a complete application for review starts the clock on the ministry’s six month service standard for reaching a decision on the application. The start of the review phase also places some additional regulated requirements related to consultation.¹⁹

THIS CASE

13The motion to quash is founded on the proposition that a determination that an application for a renewable energy approval is complete cannot be subject to judicial review and that, in any event, the application for judicial review is premature.

Is a completeness check subject to judicial review?

14The essence of the application for judicial review is to quash the determination that the application for a renewable energy approval is complete. In the language of the traditional prerogative writs, it is an application for certiorari. There will be no need to consider whether the Ministry should be stopped from proceeding further in the event that the finding of completeness is left in place. In such a situation, there will be no reason for a writ of prohibition to issue.

15The Judicial Review Procedure Act²⁰ sets out the circumstances where judicial review is available. It was at the time of its passage and promulgation, in part, a consolidation of the pre-existing prerogative writs:

On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.²¹

[Emphasis added]

16Certiorari is available in respect of decisions made by public bodies which decide matters affecting the rights, interests, property, privileges or liberty of any person.²² In this case, a determination that an application is complete provides advice to those interested in, or responsible for, the technical review. It does not touch on any of these identified concerns.

17A “completeness check” does not consider the merits of the application. It is only a preliminary check to ascertain if the application is ready to be reviewed. The Director (the official whose responsibility it is to decide the merits of the application) maintains the ability to request additional information from the proponent after the “completeness check” is conducted and before deciding on the merits of the application.²³ Information gaps that become apparent in the course of the substantive review can be closed. Moreover, after the “completeness check”, the APAI, as well as any other member of the public, has the ability to submit its views on alleged deficiencies of the application as part of the public comment period provided through the Environmental Bill Of Rights. “All comments submitted during the comment period must be considered by the MOE when evaluating an REA application.”²⁴

18Over time, there has been recognition that the availability of the remedy has expanded.²⁵ Consistent with this history, the Judicial Review Procedure Act provides that decisions of public bodies may be subject to the applications for judicial review including:

2. Proceedings by way of an action a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.²⁶

[Emphasis added]

19In the Judicial Review Procedure Act, a “statutory power” is defined as meaning:

…a power or right conferred by or under a statute,

(a) To make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right be a breach of the legal rights of any person or party.²⁷

[Emphasis added]

20The only applicable question is whether the conclusion that the application is complete is a “statutory power of decision”. This is defined in the Judicial Review Procedure Act as meaning:

…a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person of party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.²⁸

[Emphasis added]

21A “completeness check” does not fall within this definition. It involves no exercise of a “power or right conferred by or under a statute”; it involves only an administrative practice that is not referred to in the Environmental Protection Act (as amended by the Green Energy and Green Economy Act) or in the REA Regulation. It does not decide or prescribe any legal rights, powers, privileges, immunities, duties or liabilities. Nor does it describe or prescribe eligibility to receive a benefit.²⁹

22What follows from this is that the conclusion that the application is complete is not subject to judicial review. APAI, the responding party on the motion, does not agree. Its counsel referred to Setia v. Appleby College³⁰.

23At the time of his admission (for grade 7), the parents of a student at a private school signed a contract acknowledging that his continued attendance at the school was dependent upon his compliance with its code of conduct. The code of conduct provided that smoking on school property or possessing illegal drugs could result in expulsion. On his last day in grade 12, just prior to his graduation, he was discovered smoking marijuana in the school residence. He was expelled by the head of the school. His parents sought judicial review. The central issue was whether the court had the jurisdiction to make the order sought. The Divisional Court found that it did. In making this determination, the Divisional Court relied on the Special Act of the Ontario legislature which incorporated the school³¹ and, in particular, the provision empowering the Board to confer on the officers and those employed by the school “such powers of administration and discipline as it may think necessary.”³² This was found to constitute a statutory power of decision and, thus, be susceptible to judicial review. Based on this understanding, an order was made quashing the decision; the student had not been given an adequate opportunity to be heard.

24The decision of the Divisional Court was overturned by the Court of Appeal. First, it pointed out that an application for judicial review, in the nature of certiorari, was dealt with by s. 2(1), para.1 of the Judicial Review Procedure Act. As such, the remedy is not restricted to those situations where there is a statutory power of decision:

As Professor Mullan has said in Administrative Law: Cases, Text and Materials 5th ed., (Toronto: Edmond Montgomery, 2003) at p. 1111, while early judicial interpretations of the JRPA linked the availability of relief in the nature of the prerogative writs under s. 2(1)1 to the requirement of a statutory power of decision under s.2(1)2, that approach was not sustainable, and has since been clearly rejected by cases like Bezaire (Litigation Guardian of) v. Windsor Roman Catholic Separate School Board 1992 7675 (ON SC), (1992), 9 O.R. (3d) 737 (Div. Ct.). The public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.³³

25Rather, the issue is whether the decision at hand is one to which public law, as opposed to private law, should apply:

…[T]he courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature.

In this sense, public law is to be contrasted with private law, which deals with private persons and bodies and their property and relationships. The challenge is to describe the respective domains of these two branches of law, and thus to determine whether public or private law principles and remedies govern in a particular case. ³⁴

26The question in the appeal was whether the Divisional Court had jurisdiction under the Judicial Review Procedure Act to judicially review the expulsion decision. Does public law reach this decision so that judicial review is available?³⁵ “The jurisdiction provided by s. 2 (1)1 of the [Judicial Review Procedure Act] turns on whether the expulsion decision is the kind of decision that is reached by the public law and, therefore, a decision to which a public law remedy can be applied.”³⁶

27In Setia v. Appleby College, the Court of Appeal found that the decision was not the kind of matter reached by the public law. It did not have the kind of public dimension that allowed it to be treated by the public law. It was not something to which the public law remedies could be applied. The decision turned on the private law of the contract that had been entered into between the parents of the student and the school.

28The circumstances here are different. There is no question that activities of the Ministry of Environment and its officials can be touched by the public law. This does not mean that every step that is taken as a proposal moves through the application stage and on to a technical review is subject to judicial review and the remedies offered by the public law. This returns these reasons to an earlier point. The determination that an application is complete and ready for evaluation of its merits does not affect the rights, interests, property, privileges or liberty of any person. It is a purely administrative decision used by the ministry officials to organize their work and to inform those interested that the technical review is under way.

29Again, this is something APAI does not accept. It says it rights and interests are affected and, on that basis, the decision being made enters the public realm. The central complaint is that the application is not complete because it lacks an Emergency Response Plan. It is said that this is required as part of the Design and Operations Report. The REA Regulation does not refer to an “Emergency Response Plan” as such. What it does say, within the list of matters to be dealt with in the Design and Operations Report, is:

5. Include a response plan setting out a description of the actions to be taken while engaging in the renewable energy project to inform the public, aboriginal communities and municipalities, local roads boards and Local Services Boards with respect to the project, including,

i. measures to provide information regarding the activities occurring at the project location, including emergencies,

ii. means by which persons responsible for engaging in the project may be contacted, and

iii. means by which correspondence directed to the persons responsible for engaging in the project will be recorded and addressed.³⁷

[Emphasis added]

30The Technical Guide to Renewable Energy Approvals provides guidance as to what is anticipated at the point where the completeness of the application is being reviewed:

At the time of applying for an [Renewable Energy Approval], the Emergency Response and Communications Plans should clearly indicate the organizations that will be contacted under different communications scenarios. The applicant should further commit to creating functional Emergency Response and Communications Plans for use by employees that will include up-to-date contact information and be maintained at the facility (or other accessible location, as appropriate) during the construction, operation and retiring of the facility.³⁸

[Emphasis added]

31What is evident from this is that a complete application, one that is deemed ready for a technical review, is not required to have a comprehensive or completed emergency response plan. What is required is a commitment to prepare such a plan. To my mind, there is considerable sense to this. It is evident that the process of evaluation, examined in its entirety, is envisaged as one where there will be comment, criticism and concern both from the public and government officials. The process will be ongoing. It can be anticipated that there will be changes to the initial proposal. It stands to reason that it is only when the parameters of the project are more clearly understood that an emergency response plan can be finalized.³⁹

32In this case, the Design and Operations Report does contain the anticipated commitment. It includes the following:

7.1 EMERGENCY RESPONSE PLAN

Windlectric and/or the operations and maintenance contractor would develop the Emergency Response Plan for the Project and discuss it with the Township’s Emergency Services Departments.

The Emergency Response Plan would include the plan for the proper handling of material spills and associated procedures to be undertaken during a spill event. The Emergency Response Plan would also specify containment and clean-up materials and their storage locations. The Emergency Response Plan would include general procedures for personnel training. As appropriate, the Emergency Response Plan may cover response actions to high winds, fire preparedness, evacuation procedures, and medical emergencies. Developing this plan with local emergency services personnel would determine the extent of emergency response resources and response actions of those involved.

The Emergency Response Plan would include key contact information for emergency services providers, a description of the chain of communications and how information would be disseminated between Windlectric and/or the operations and maintenance contractor and responders. The plan would also indicate how Windlectric and/or the operation and maintenance contractor would contact (via phone or in-person) Project stakeholders who may be directly impacted by an emergency so that the appropriate actions can be taken to protect health and safety.⁴⁰

[Emphasis added]

33Contrary to the submissions of counsel on behalf of APAI, there is, in these circumstances, no loss of rights associated with the determination that the application is deemed complete. There is nothing more than a recognition that the process of evaluation and possible approval is one which envisages some evolution in the proposal and the project.

34The court was advised that, in this case, consistent with the opportunity offered by the Environmental Bill Of Rights, 1,500 comments were received in response to the publication of notice concerning the proposal being made by Windlectric. In a series of letters, APAI identified public safety issues and the absence of an Emergency Response Plan to deal with them. The Director responded. In a letter, dated July 22, 2013, she noted:

From your letter, I understand that you believe Amherst island is particularly vulnerable to fire and the Association to Protect Amherst Island (APAI) is concerned that the reports concerning Amherst Island Wind Energy Project do not conform to the Ministry of Labour’s Firefighter’s Guidance Note #6.35.

I would like to inform you that in order to receive Renewable Energy Approval (REA), the Proponent of a renewable energy project must prepare a Design and Operations Report, including an Emergency Response and Communication Plan to manage emergencies at the project location. These plans are to clearly indicate a plan for communications in the event of an emergency and a description of how the information will be disseminated to all relevant stakeholders such as the local fire department. The Proponent is expected to consult with the municipality on these plans.

It is my understanding that Algonquin Power Co. is aware of your concerns with respect to public safety in the event of fire and that they have assured you of their intention to prepare a number of operations plans in coordination with the Loyalist Township.⁴¹

35This addresses the understanding that the concern has been both expressed and recognized. It demonstrates the expectation that the commitment referred to in the Technical Guide to Renewable Energy Approvals and included in the Design and Operations Report filed as part of the application will be complied with and be part of any approval, if one is granted.

36Even so, counsel for APAI says its rights have been transgressed. Despite what the Technical Guide may say, the application, as filed, does not comply with the regulation.⁴² As counsel sees it, once “deemed complete”, his client has no ability to, and has lost its right to, question the completeness of the application. This is just not so. As the comments made by APAI in response to the notification under the Environmental Bill of Rights indicate, the ability to question the sufficiency of any Emergency Response Plan remains, as does the expectation that, once completed, it will respond to any anticipated emergency.

37What this understanding underscores is that the determination that the application is deemed to be complete is a finding made by a public official, but is not a determination that is reached by the public law. In Setia v. Appleby College, the Court of Appeal referred to the decision of the Federal Court of Appeal in Air Canada v. Toronto Port Authority.⁴³ In that decision, Mr. Justice Stratas dealt with whether certain bulletins issued by the Toronto Port Authority, in its role as the operator and manager of the Billy Bishop Toronto City Airport (colloquially the Toronto Island Airport), were subject to judicial review. He confirmed the judgment of the Federal Court⁴⁴ that they were not.

38Mr. Justice Stratas observed that because some decisions of a “federal board, commission or other tribunal”⁴⁵ are of a public character, it does not mean that all of its decisions are such that they attract judicial review:

Every significant federal tribunal has public powers of decision-making. But alongside these are express or implied powers to act in certain private ways, such as renting and managing premises, hiring support staff, and so on. In a technical sense, each of these powers finds its ultimate source in a federal statute. But, as the governing cases cited below demonstrate, many exercises of those powers cannot be reviewable. For example, suppose that a well-known federal tribunal terminates its contract with a company to supply janitorial services for its premises. In doing so, it is not exercising a power central to the administrative mandate given to it by Parliament. Rather, it is acting like any other business. The tribunal’s power in that case is best characterized as a private power, not a public power.⁴⁶

39Clearly, the case I am asked to decide is dealing with something different in character from janitorial services but, even so, the determination that an application is complete before undertaking a technical review is private in nature. The decision of the Federal Court of Appeal noted:

There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts of the case and the overall impression registered upon the Court.⁴⁷

40The decision goes on to outline a number of factors relevant to the question of whether the action is a public or private matter:

• the character of the matter for which review is sought;

• the nature of the decision-maker and its responsibilities;

• the extent to which a decision is founded in and shaped by law as opposed to private discretion;

• the body’s relationship to other statutory schemes or other parts of government;

• the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

• the suitability of public law remedies;

• the existence of a compulsory power;

• an “exceptional” category of cases where the conduct has attained a serious public dimension.⁴⁸

41In Setia v. Appleby College, the Court of Appeal found four of these factors to be “particularly germane”⁴⁹ to its decision. It acknowledged the public flavour provided by the fact that the school was created by statute, but determined that this was diminished by the fact that its founding legislation was a private Act. Despite the public nature of its educational activities, regulated by the Education Act, the court recognized that not all its actions were subject to judicial review. The school had only a modest relationship with other parts of the government and its decisions could not be seen as directed or influenced by the government. On this basis, discipline could not be seen as being as a public matter. The character of the decision was such that it could only affect students who chose to attend the particular school. This tended to make the decision more private than public. Finally, the criteria upon which the decision to expel the student was made was provided by the private law. In summary, the presence of the legislation, which, in many cases, would point to the availability of judicial review, was over-balanced when weighed against the other considerations taken into account by the court. When that was done, the decision simply did not have sufficient public dimension to allow that public law remedies could apply.⁵⁰

42What this approach demonstrates is that the application of the factors is not an objective exercise where the numbers on one side are added and compared to the other to see which comes out ahead. This is not a matter of keeping score. It is a more subjective analysis applying and weighing those of the identified factors that are relevant to the particular case. In this case, it is undeniable that the decision-maker, the Ministry of the Environment⁵¹ is a body with a public character, with a strong relationship to the government of which it is part. However, these factors need to be considered in the context of the determination being made. Is the application complete such that the technical review of the merits of the proposal can commence, acknowledging that the comments of the public, the participation of other levels of government (municipalities) and the work of the officials of the Ministry may require more work and broader consideration of the application? To my mind, the public nature of the Ministry of the Environment is outstripped by the character of the matter for which review is sought. No rights, interests, property, or privileges were or are substantively affected. The finding that the application is complete does nothing more than lead to the formal investigation of the application for a renewable energy approval. It does not deal with the merits. It is an administrative, not a substantive finding. As such, public law remedies are not suitable. If they were, every step, no matter how minor, procedural or substantive, whether or not subject to later amendment or review, would be susceptible to judicial review.

43Finally, it bears observing that, on a plain reading of its terms, the REA Regulation does not require that an Emergency Response Plan be prepared as part of an application when it is initially submitted. What it sets out is the need to include a “response plan” which describes “the actions to be taken” in order “to inform the public…” about the project. This is to include “information regarding…emergencies”.⁵²

44The Design and Operations Report contains a “Communications and Complaint Response Protocol”. It says:

7.3 COMMUNICATIONS AND COMPLAINT RESPONSE PROTOCOL

The following has been developed for all Project phases to address any reasonable concern from the public and would be implemented by Windlectric and/or the operations and maintenance contractor.

A telephone number for contacting Windlectric and/or the operations and maintenance contractor along with the mailing/e-mail address would be posted on the Project website (http://amherstislandwindproject.com/) and provided directly to the Township and [Ministry of the Environment]. These would be the direct contact points for Windlectric and/or the operations and maintenance contractor during all phases of the Project. The Emergency Response and Communications Plan would include key contact information for the emergency service providers, a description of the chain of communication and how information would be disseminated between Windlectric and/or the operations and maintenance contractor and the relevant responders. This information would be obtained during consultations with the Township’s Emergency Services Departments.

The telephone number provided for the reporting of concerns and/or complaints would be equipped with a voice message system used to record the name, address, telephone number of the complainant, time and date of the complaint along with the details of the complaint. All messages would be recorded in a Complaint Response Document to maintain a record of all complaints. Windlectric and/or the operations and maintenance contractor would endeavor to respond to messages within 48 hours. All reasonable commercial efforts would be made to take appropriate action as a result of concerns as soon as practicable. The actions taken to remediate the cause of the complaint and the proposed actions to be taken to prevent recurrences of the same complaint in the future would also be recorded within the Complaint Response Document. If appropriate, the [Ministry of the Environment] Spills Action Centre (1-800-268-6060) would be contacted to notify them of the complaint. Records of correspondence and action taken is to address them by Windlectric and/or the operations and maintenance contractor would be made available to [Ministry of the Environment] staff on request.

Ongoing stakeholder communication would allow Windlectric and/or the operations and maintenance contractor to receive and respond to community issues on an ongoing basis.⁵³

45It may be that APAI and its members are not satisfied with this protocol but, while it is not the role of the court to inquire into the substance (as opposed to the process), it is not clear to me how it can be said that the particular requirement of the REA Regulation has not been met.

46Be that as it may, for the reasons reviewed, I find that the completeness check is not subject to judicial review.

Is the application premature?

47If I am wrong in finding that the determination that the application is complete is not subject to judicial review and the public law remedies it presents, the question remains was the application premature? The legislation, the Environmental Protection Act and the Environmental Bill of Rights sets out a process for the evaluation and consideration of applications for the approval, approval with conditions or refusal of renewable energy projects⁵⁴. Generally, it is understood that, in such circumstances, judicial review will not be considered until all other options and alternatives offered by the legislative regime have been exhausted.⁵⁵ To explain the rationale behind this proposition, I turn to Mr. Justice Stratas, this time in C. B. Powell Ltd. v. Canada (Border Services Agency:⁵⁶

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater Moncton International Airport Authority v. Public Service Alliance of Canada, 2008 FCA 68 at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 3430 (ON SCDC), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock Exchange, (1994), 1994 3350 (BC SC), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d, (1995), 1995 1305 (BC CA), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 1991 7126 (ON SC), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 48.⁵⁷

48In this case, the process has not entered the analytical phase. All that is in issue is whether the application is ready to be examined, tested and investigated. If the application falls short, there is provision for more work to be required, which is to say, that any problem may be corrected. It remains, as Mr Justice Stratas suggested, that the applicant for judicial review could succeed, in this case in its opposition to the project, without utilizing any recourse to a courtroom. It may be that, after its technical review and consideration of the comments made in response to the notice published under the Environmental Bill of Rights, the Director will decide to turn down the application.

49If this is not the case, if the Renewable Energy Approval is issued, with or without conditions, there is provision for an appeal to the Environmental Review Tribunal, albeit on specified grounds, namely, that engaging in the renewable energy project in accordance with the renewable energy approval will cause:

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.⁵⁸

50In Canadian Pacific Ltd. v. Matsqui Indian Band⁵⁹, the Supreme Court of Canada held, on an appeal of a motion to strike a judicial review, that it was part of a proper exercise of the discretion of the motions judge to consider the adequacy of an appeal that was available and, having done so, to refuse to allow the matter to proceed to a judicial review in advance of such an appeal.

51Counsel for APAI submitted that the appeal that may be taken before the Environmental Appeal Tribunal is inadequate to meet the issues it now seeks to bring forward. Pursuant to the statute, the prospect of an appeal is only raised where the Director has decided that a renewable energy approval is to be issued. In such circumstances, the Environmental Review Tribunal has found that it has no authority to consider the process by which the Director arrived at the decision.⁶⁰ The prior decisions of the Tribunal do not bind it in respect of decisions it may be asked to make in the future. Nonetheless, counsel for APAI submitted that his client, having raised its objection that the REA Regulation has not been complied with, should be allowed to test that premise now because the appeal that remains is inadequate for the purpose. This denies the evolving nature of the process⁶¹, which is demonstrated by the exchange of correspondence dealing with the concern that there is no Emergency Response Plan included in the application.⁶² At the end of the day, if the prospect of an emergency has not been considered or accounted for or if the process is somehow flawed, that will be the time to decide whether judicial review is available. Such an application should consider the process as a whole. Otherwise, questions considered to be outside the parameters of an appeal before the Environmental Review Tribunal could be subject to a series of repeating applications for judicial review by APAI or others that are opposed to the proposal. This is the sort of fragmentation noted by Mr. Justice Stratas.

52Counsel for APAI submitted that the available appeal was also inadequate because, the decision to grant a Renewable Energy Approval having been made, the Environmental Appeal Tribunal would be without jurisdiction to deal with the absence of an Emergency Response Plan. This springs from counsel’s assertion that such an absence could not be said to be the cause of “serious harm to human health” or “serious and irreversible harm to plant life, animal life or the natural environment”.⁶³ This is a matter where, in each case, at least the first determination is for the Tribunal to make. However, while its decisions are not binding, there is some indication that the Environmental Appeal Tribunal does not see itself limited in this way. In Mosely v. Director Ministry of the Environment⁶⁴, the decision of the Director approving a Class 4 wind facility was appealed. Among the “specific issues” raised was “exposure to fire”, an emergency of the sort that is of concern to APAI. The Environmental Review Tribunal heard evidence on this question from the proponent of the project,⁶⁵ two representatives of Aviation, Forest Fire and Emergency Services, a branch of the Ministry of Natural Resources,⁶⁶ the principal engineer of the manufacturer turbines proposed for the project,⁶⁷ and a nearby resident⁶⁸. The Tribunal analyzed this evidence and concluded that “…the Appellant has not established that the Project will cause serious harm to human health through turbine fires or increased risk of wildfires”⁶⁹ [Emphasis added].

53If, in this case, a decision is made by the Director to approve the project and it is appealed to the Environmental Review Tribunal which decides it is without jurisdiction to deal with the absence of an adequate Emergency Response Plan because it will not cause serious harm to human health or serious and irreversible harm to the natural environment, it may be that that determination could be subject to judicial review. This is a decision to be made at the time, after the process of analysis, evaluation, consideration and determination of the application is complete.

54Finally, counsel for APAI submitted that it is an accepted principle that the Court will intervene in ongoing administrative proceedings in exceptional circumstances.⁷⁰ The other parties acknowledge that this is so.⁷¹ It is submitted on behalf of APAI that exceptional circumstances exist in this case. What are they? It is said that “an Island community is being destroyed” because the “project contemplates up to 36 wind turbines” in circumstances where the emergency resources necessary “…to address the risks to life and property from an accident during the construction or operation of the windfarm” do not exist and where the proponent, having failed to produce an Emergency Response Plan, has left people without the ability to engage in discussions with it concerning “perceived weaknesses and problems”.⁷² This does not describe an exceptional circumstance. A new facility is being proposed. It would not be unusual if the facilities needed to service it are not present. What is required will have to be assessed. The completeness check signals that the Ministry of Environment is ready to begin that evaluation. To say that the community is being destroyed is to suggest that this destruction is taking place at the hand of an analysis that has not begun and an approval that has not yet been determined.

55The impact the proposal is said to have had on the residents and community of Amherst Island was relied on.⁷³ It is said that the initial approach by “wind turbine developers” to residents was on an individual basis. Some owners signed leases. The matter was not openly discussed and tension developed between those who signed agreements and those who were opposed. This has become “a serious divide”. The project “…has created a highly stressful atmosphere for islanders both individually and as a community.” Social events that were once popular are not attended to avoid interaction with “the other side”. It is said that “[a] community once characterised by closeness, interdependence and tranquility has become dominated by secrecy, tension and stress”. The answer provided is that “…if the project were halted at this stage Amherst Island could, with time, recover its former sense of community. If the project goes ahead, we fear that the current division will harden into animosity and the unique community spirit that characterizes Amherst Island will be lost.”⁷⁴ This is augmented by the evidence of four residents, all of who are opposed to the project.⁷⁵

56The proposition appears to be that this asserted disagreement and stress in the community is a special circumstance requiring the court to intervene at this early stage in the process. I do not accept this as a legitimate perspective. The premise is that, to bring a halt to the deterioration of the spirit of the community, the project should be stopped now rather than after a complete process and comprehensive analysis. This strategy has an obvious attraction to those who are opposed to the windfarm. What about those who are in favour of its construction? This takes me back to what was said at the outset. Those who support such projects, not just those who oppose them, have procedural rights and expectations.⁷⁶

57There is a broader concern with reliance on disagreements in the community and the harm they can engender as an exceptional circumstance. First, it is not unusual that such disagreements occur. It would be surprising if they did not. Second, the idea that these disagreements could be the cause of an otherwise premature review questioning the efficacy of the process suggests a primacy of local community concerns over our larger collective responsibility to the greater good of all of us. Projects that could benefit the province as a whole could lose out before they are fully assessed because members of the local community cannot agree. In such circumstances, it does not take much to see that change of any sort could become problematic. Certainly, the overall policy directive behind the Green Energy and Green Economy Act to “…streamline the process for developing green energy projects”⁷⁷ would be defeated. To my mind, the process should be left to work and complaints reviewed at the end, when it can be examined in its entirety. If I were required to, I would find that the application for judicial review is premature.

CONCLUSION

58For the reasons reviewed herein, the motion is granted. The application for judicial review is quashed.

COSTS

59No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:

1. On behalf of the moving party, Windlectric Inc., no later than 15 days after the release of these reasons. Such submissions are to be no longer than 4 pages, double-spaced, excluding any Costs Outline, Bill of Costs or caselaw that may be relied on.

2. On behalf of the Crown respondents, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 4 pages, double- spaced, excluding any Costs Outline, Bill of Costs or caselaw that may be relied on.

3. On behalf of the party responding to the motion, APAI, no later than 10 days thereafter. Such submissions are to be no longer than 6 pages, double-spaced, excluding any Costs Outline, Bill of Costs or caselaw that may be relied on.

4. If necessary, in reply on behalf of the moving party, Windlectric Inc., and, separately, on behalf of the Crown respondents, no later than 5 days thereafter. Such submissions to be no longer than 2 pages, double-spaced.

LEDERER J.

Released: 20140820

An application for the issue or renewal of a renewable energy approval shall be prepared in accordance with the regulations and submitted to the director.

Various provisions of the Federal Courts Act make this clear. Subsection 18(1) of the Federal Courts Act vests the Federal Court with exclusive original jurisdiction over certain matters where relief is sought against any ‘federal board, commission or other tribunal.’ In exercising that jurisdiction, the Federal Court can grant relief in many ways, but only against a ‘federal board, commission or other tribunal’: subsection 18.1(3) of the Federal Courts Act. It is entitled to grant that relief where it is satisfied that certain errors have been committed by the ‘federal board, commission or other tribunal’: subsection 18.1(4) of the Federal Courts Act.

Footnotes

1. 1Adams v. Canada (Attorney General), 2011 ONSC 325, at paras. 18-19 (Div. Ct.); Deeb v. Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014, at paras 23-24 (Div. Ct.).
2. 2Letter, dated May 8, 2013.
3. 3S.O. 2009, c. 12.
4. 4Ontario Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess. No 112 (23 February 2009) (George Smitherman, Minister of Energy and Infrastructure), at 4951-4903.
5. 5Green Energy and Green Economy Act, 2009 (fn. 2), Schedule A, Preamble.
6. 6Hanna v. Ontario (General), 2011 ONSC 609, [2011] O.J. No. 944, at para. 27.
7. 7R.S.O. 1990 Ch. E.19.
8. 8Ibid (Environmental Protection Act) at s. 47.4(1) and O. Reg. 359/09 The relevant version of the regulation is the one that was in force from June 14 to October 20, 2011. This is because Windlectric’s Notice to Engage was issued on September 15, 2011.
9. 9REA Reg., (fn 7), at s. 11.
10. 10Ibid, s. 12.
11. 11REA Reg. (fn. 7), s. 13 and Table 1. This is based on the understanding that the proposal is a Class 4 wind facility (see: January 6, 2014 letter from the Director Environmental Approvals Access and Service Integration Branch of the Ministry of Environment to Windlectric Inc.).
12. 12REA Reg. (fn. 7), s. 15, s. 16 and s. 18.
13. 13REA Reg. (fn. 7), s. 16.0.1.
14. 14S.O. 1993, Ch. 28.
15. 15Environmental Protection Act (fn. 6), at s. 47.5(1) and (2).
16. 16Technical Guide for Renewable Energy Approvals (2013), at para. 1.
17. 17Ibid, at para. 1 (Disclaimer Regarding Legal Advice).
18. 18Ibid, at para. 10.2.
19. 19Ibid, at para. 10.3.
20. 20R.S.O. 1990 c. J1.
21. 21Ibid, at s. 2(1), para. 1.
22. 22Martineau v. Matsqui, 1979 184 (SCC), [1980] 1 S.C.R. 602, at p. 619 and p. 628; Dolan v. Ontario (Civilian Commission on Police Services) 2011 ONSC 1376, at paras. 84 to 87 (Div. Ct.); PC Ontario Fund v. Ontario (Chief Electoral Officer) 2012 ONCA 453, at para. 12, affirming 2011 ONSC 264,1 at paras. 15 and 16 (Div. Ct.); and, Clean Train Coalition Inc. v. Metrolinx 2012 ONSC 6593, at para. 11 (Div. Ct.).
23. 23Technical Guide for Renewable Energy Approvals (2013), at para. 10.3.2.
24. 24Technical Guide for Renewable Energy Approvals (2013), at para. 10.3.1.
25. 25Re Liverpool Taxi Owners' Association 1972 All E.R. 589, at p. 596, per Roskill L.J., quoted in Martineau v. Matsqui Disciplinary Bd., supra, at p. 617, per Dickson J. and with respect to certiorari in particular, see: R. v. Criminal Injuries Compensation Board, [1967] 2 Q.B. 864, at p. 882, [1957] 2 All E.R. 770 (D.C.), per Lord Parker L.J., also quoted in Martineau v. Matsqui Disciplinary Bd.,supra, at p. 616-17, per Dickson J., as further quoted in Masters v. Ontario, [1993] O.R. (3d) 439, at para. 12.
26. 26Ibid, at s. 2(1) para. 2.
27. 27Judicial Review Procedure Act, supra, (see: fn. 20), at s. 1.
28. 28Ibid, at s. 1.
29. 29Jacko v. Ontario (Chief Coroner) (2008), 2008 69579 (ON SCDC), 306 D.L.R. (4th) 126, at paras. 17-21 (Div. Ct.); Dolan v. Ontario (Civilian Commission on Police Services), supra, (fn. 22), at paras. 88-97; PC Ontario Fund v. Ontario (Chief Electoral Officer), supra, (C.A.) (fn. 22), at para. 12, affirming, supra, (fn. 22), at paras. 16 and 25 (Div. Ct.); and, Clean Train Coalition Inc. v. Metrolinx, supra,(fn. 22), at para. 16 (Div. Ct.).
30. 30118 O.R. (3d) at 481.
31. 31An Act to Incorporate Appleby School, 1 Geo. V. c. 140.
32. 32Ibid, s. 11.
33. 33Setia v. Appleby College, supra, at para. 30.
34. 34Ibid, at paras. 20 and 21.
35. 35Ibid, at para. 24.
36. 36Ibid, at para 32.
37. 37REA Regulation, Table 1 (Design and Operations Report, Requirement 5).
38. 38Technical Guide to Renewable Energy Approvals (2013) Ch. 8, Emergency Response and Communications Plans, at p. 139.
39. 39The Design and Operations Report observes that changes to operations plans may be required to address unforeseen or unexpected conditions or situations even after approval, construction and the operations of the facility. (Amherst Island Wind Energy Project: Design and Operations Report (April 2013), para. 7.1.1 at p. 7.2).
40. 40Amherst Island Wind Energy Project: Design and Operations Report (April 2013), para. 7.1 at p. 7.1.
41. 41Letter from Doris Dumais, Director of the Ministry of the Environment, to the APAI, dated July 22, 2013.
42. 42As in the case of fn. 8, this a reference to the Environmental Protection Act, supra, (fn. 7), at s. 47.4 (1), which says:
43. 43[2011] F.C.J. No. 1725, 2011 FCA 347.
44. 442010 FC 774, 2010 FC 774 per Justice Hughes,
45. 45Supra (fn. 43), at paragraph 45, Mr. Justice Stratas noted:
46. 46Ibid, at para. 52; and see paras. 28, 29, 50 and 51.
47. 47Ibid, at para. 60, as quoted in Setia v. Appleby College, supra, (fn. 30), at para. 33.
48. 48Ibid, at para. 60, as referred to in Setia v. Appleby College, supra, (fn. 30), at para. 34.
49. 49Supra, (fn. 30), at para. 35.
50. 50Setia v. Appleby College, supra, (fn. 30), at paras. 35 to 41.
51. 51Technical Guide for Renewable Energy Approvals (2013), at para. 10.2.
52. 52See: fn. 37 and para. [29], above (REA Regulation, Table 1 (Design and Operations Report, Requirement 5)).
53. 53Amherst Island Wind Energy Project: Design and Operations Report (April 2013), para. 7.3, at p. 7.3 and p. 7.4.
54. 54Environmental Protection Act, supra, (fn. 7), at s. 47.5(1) and (2).
55. 55Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 SCR 561, at p. 595; Volochay v. College of Massage Therapists of Ontario 2012 ONCA 541, at para. 68.
56. 56[2010] F.C.J. No. 274, 2010, FCA 61, [2011] 2 F.C.R. 332, 400 N.R. 367.
57. 57Ibid, at paras. 31-32, referred to in Volochay v. College of Massage Therapists of Ontario 111 O.R. (3d) 561, 2012 ONCA 541, at para. 69; see also, David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), at pp. 485-94; and, Ackerman v. Ontario (Provincial Police), [2010] O.J. No. 738, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.).
58. 58Environmental Protection Act, supra, (fn. 7), at s. 142.1(3).
59. 591995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, 122 D.L.R. (4th) 129, 177, 26 Admin. L.R. (2d) 1, [1995] 2 C.N.L.R. 92, 52 A.C.W.S. (3d) 1185.
60. 60Erickson v. Ontario (Ministry of the Environment), [2011] OE.R.T.D. No. 29, 61 C.E.L.R. (3d) 1, at paras. 556-557 (“…all those parts of the decision-making process that do not relate to the harms listed in s. 145.2.1(2) that are not subject to review or alteration by the Tribunal…”); Preserve Mapleton Inc. v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 19, 67 C.E.L.R. (3d) 207, at paras. 67-69 (“… they exclude from the Tribunal’s mandate a consideration of the way in which the Director came to the decision and the process he undertook…”); and, Middlesex-Lambton Wind Action Group Inc. v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 35, 66 C.E.L.R. (3d) 1, at paras. 96-97 (“The Tribunal…has no authority to make findings about other matters considered by the Director that may have led him or her to a final decision.”).
61. 61See para. [31], above.
62. 62See para. [34], above.
63. 63See para. [49], above.
64. 64Environmental Appeal Tribunal, Case No. 13-120.
65. 65Ibid, at paras. 70-72.
66. 66Ibid, at paras. 84-90 and paras. 91-99.
67. 67Ibid, at paras.76-83.
68. 68Ibid, at paras. 39-46.
69. 69Ibid, at para. 148.
70. 70Ackerman v. Ontario Provincial Police Services 2010 ONSC 910, (2010) 259 OAC 163, at para. 19; and, Volochay v. College of Massage Therapists of Ontario, supra, (fn. 57), at para. 68.
71. 71Factum of the Crown Respondents, at para. 32; and, Factum of the Moving Party, Windlectric Inc., at para. 48.
72. 72Responding Factum of the Applicant, at para. 53, relying on the Affidavit of Peter Large, sworn March 6, 2014, at paras. 12-20.
73. 73Joint Affidavit of Laurie Kilpatrick, Mark Ritchie, Zander Dunn, and Amy Caughey, sworn March 6, 2014.
74. 74Ibid, at paras. 7-17.
75. 75Ibid, (Laurie Kilpatrick), at paras. 18-25, (Mark Ritchie) at paras. 26-34, (Zander Dunn), at paras. 35-42 and (Amey Caughey), at paras. 43-49.
76. 76See para. [4], above.
77. 77See the quotation at para. [3], above.