Natural Resources and Forestry), 2014 ONSC 7167
COURT FILE NO.: DC-14-92-00
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DURHAM AREA CITIZENS FOR ENDANGERED SPECIES (D.A.C.E.S.)
John A. Terry and Alex Smith, for the moving party East Durham Wind, LP
Applicant
- and -
ONTARIO (MINISTRY OF NATURAL RESOURCES AND FORESTRY)
Ian Flett, for the responding party D.A.C.E.S.
Sunil S. Mathai, for the responding party, Ontario (Ministry of Natural Resources and Forestry)
Respondent
HEARD: December 3, 2014
REASONS FOR JUDGMENT
Application for Party or Intervener Standing
Daley, J.
Nature of Application:
[1] East Durham Wind, LP (“Wind “) moves to be added as a party or as an intervener in this pending application for judicial review before the Divisional Court.
[2] In the event the application is granted, Wind further requests that the application for judicial review be transferred from Brampton to the Divisional Court sitting at Toronto, to be heard by a panel of the court on a date prior to the next sittings of the Divisional Court at Brampton which is scheduled to commence the week of March 16, 2015. This is requested as it is the position of Wind that the judicial review application must be heard at the earliest possible date.
[3] The applicant on the judicial review proceeding, Durham Area Citizens for Endangered Species (“D. A. C. E. S.”) opposes Wind’s motion.
[4] The respondent on the judicial review application, Ontario (Ministry of Natural Resources and Forestry) (“MNRF”) consents to Wind’s motion to be added as either a party or as an intervener, and to the transfer of the proceeding to the Divisional Court of Toronto.
Factual Background & Evidentiary Record:
[5] Most of the evidence considered on this motion is not in dispute.
[6] Wind is a wholly owned subsidiary of NextEra Energy Canada, LP. Wind owns the East Durham Wind Energy Center, a 14 turbine wind project located near Priceville in Grey County, Ontario (the “Project”).
[7] On January 20, 2014 the Ministry of the Environment (“MOE”) issued a Renewable Energy Approval (the “REA”) to Wind permitting it to proceed with the construction, installation, operation, use and retirement of the Project.
[8] The application process leading to the granting of the REA to Wind involved consideration of the impact of the Project on the natural environment located in the area of the proposed project site and included determinations by the MNRF with regard to the impact on local fish habitats including that of the Redside Dace.
[9] The granting of the REA to Wind was appealed to the Environmental Review Tribunal (the “ERT”) Pursuant to s. 142.1 of the Environmental Protection Act, R.S.O. 1990, c E. 19, its decision being released on July 29, 2014.
[10] The grounds for appeal from the granting of the REA included that the Project would cause serious harm to human health and serious irreversible harm to the natural environment, including the Redside Dace. After conducting a de novo hearing on the merits, the ERT rejected the appeal and upheld the REA as granted to Wind.
[11] Prior to the granting of the REA, a species-at-risk biologist with the MNRF made two statements that the habitat of the Redside Dace, a fish species identified in Ontario’s Species at Risk List, was not within the study area for the Project.
[12] In its application for judicial review of the ERT’s appeal ruling, D.A.C.E.S. takes the position that the biologist’s two statements constituted the exercise of “a statutory power of decision” and that those statements should be set aside as they are contradicted by evidence adduced at the ERT regarding the habitat of the Redside Dace.
[13] The application for judicial review of the ERT ruling was commenced at Brampton on September 22, 2014. Prior to that date, counsel for the applicants wrote to counsel for Wind and asked if the solicitors representing Wind would accept service of the notice of application for judicial review. Wind was ultimately not named as a party in the application for judicial review and it now seeks to be added as a party or alternatively as an intervener, as it takes the position that the relief sought on the judicial review application will directly affect it.
[14] Counsel for the applicant D.A.C.E.S. readily acknowledged that Wind has a direct, distinct and unique economic interest in the outcome of the pending judicial review application.
[15] The evidence filed on behalf of Wind, which was not contradicted, is that if the relief sought in the judicial review application is granted the resulting delay to the construction of the Project would have a direct and negative impact on Wind. The evidence is that Wind has invested millions of dollars over the past six years to bring the Project to its current stage and it is intended that construction of the Project shall begin in February or March 2015.
[16] Delays in the commencement of operation will result in significant loss in revenues to Wind. Further, additional costs will be incurred associated with consulting fees, storage of purchased equipment and legal costs.
[17] Counsel for the M.N.R.F. supported Wind’s motion to be added as a party without any limitations on its participation in the judicial review application.
[18] D.A.C.E.S. opposes the motion to add Wind as a party or as intervener whether pursuant to rule 5.03 or 13.01 of the Rules of Civil Procedure with rights of full participation in the judicial review application, including the right to expand the record. It was submitted that in the event the court saw fit to grant Wind standing, the court should allow Wind to be added as a friend of the court in accordance with rule 13.02, without any right to supplement the record and solely for the purpose of assisting the court by way of submissions.
[19] It also opposes the request to transfer this matter to the Divisional Court at Toronto.
Law & Analysis:
[20] The motion is brought principally pursuant to rule 5.03, whereby Wind submits that it meets all of the requirements of that rule, thus entitling it to be added as a party in the judicial review application.
[21] Rule 5.03 (1) provides:
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding. R.R.O. 1990, Reg. 194, r. 5.03 (1).
[22] Rule 5.03 (4) allows the court to make an order adding a party to the proceeding and states:
(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party. R.R.O. 1990, Reg. 194, r. 5.03 (4).
[23] Rule 5.03 relating to the joinder of necessary parties is of general application to actions and applications as provided for in rule 1.03 (1).
[24] Rule 13.03 allows non-parties to seek leave to intervene in the Divisional Court as an added party or a friend of the court.
[25] The present motion is brought before me sitting as a single judge of the Divisional Court, as designated by the Associate Chief Justice of the Superior Court of Justice.
[26] Rule 13.01 allows that non-parties to a proceeding may seek leave to intervene as an added party and the rule states as follows:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).
[27] As an alternative to being an intervener with party standing, a non-party to a proceeding may be granted leave to intervene as a friend of the court pursuant to rule 13.02 for the purpose of rendering assistance to the court by way of argument.
[28] On considering the motion of Wind for party standing under both rule 5.03 and under rule 13.01 as an added party intervener, I have concluded that this motion is properly considered under rule 13.01.
[29] While the relief sought under rule 5.03 and rule 13.01 is similar, namely leave to be added to the proceeding and to participate as a party, I have concluded that as the motion relates to a matter pending before the Divisional Court the more appropriate rule under which to consider the requested relief is rule 13.01.
[30] This conclusion is supported by the fact that rule 13.03 expressly provides that on motions whereby a party seeks to intervene as a party added or as a friend of the court in the Divisional Court, such motions are to be brought as an intervener motion, which I have concluded is a motion governed by rule 13.01, as distinct from a motion to be added as a party under rule 5.03.
[31] While similar considerations are to be examined in a motion under rule 5.03 and rule 13.01 and the results in the case of success under both rules may be similar, I have considered Wind’s motion is brought under rule 13.01.
[32] The requirements under rule 13.01 are disjunctive and the party seeking leave to intervene as an added party need only satisfy one of the conditions provided for in subclauses (a), (b), and (c) of rule 13.01 (1): Bennett Estate v. Iran (Islamic Republic of), 2013 ONCA 623 at para. 15.
[33] Upon satisfying one or more of the criteria in rule 13.01 (a), (b), (c), the considerations in rule 13.01 (2) must be considered namely whether adding the proposed intervener would cause undue delay or prejudice.
[34] The long-established test for the granting of intervener status was set forth by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 6886 (ON CA), [1990] O.J. No. 1378 (C.A.) where it was stated at para 10: “… The matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.”
[35] As to the first criteria in rule 13.01 (1), Wind has an interest in the subject matter of the judicial review application and this is acknowledged by the applicant.
[36] Wind’s interest is, in my view, a significant economic one that may be directly impacted by the outcome of this judicial review application. Notably, if the applicant is successful, Wind’s economic interests in the Project will be prejudiced.
[37] The evidence is un-contradicted that if this application is granted Wind’s project work, which is scheduled to commence in February or March 2015, will be delayed, and this will result in lost revenues and additional costs being incurred by it.
[38] It was urged on behalf of the applicant that Wind should be denied party intervener status, as it would add nothing to the resolution or the determination of the judicial review application. It was submitted that all of the evidence needed was in the possession of the MNFR and any further evidence adduced by Wind would only go to unduly complicating the proceeding.
[39] I disagree with this position as advanced by the applicant. Wind is in a position to make a meaningful and useful contribution to the application, as it was the respondent on the appeal brought against the REA before the ERT.
[40] On the appeal before the ERT Wind’s counsel led expert evidence regarding the Redside Dace habitat and the Project.
[41] Consideration of the habitat of the Redside Dace was a major issue on the appeal before the ERT and this remains an issue in the judicial review application.
[42] Wind has relevant knowledge and evidence concerning the Project Study area and the context of this dispute and as such I am satisfied that it and its counsel will make a useful contribution to the conduct and hearing of the application if granted party intervener standing.
[43] As to possible undue delay or prejudice in determining the rights of the parties to the proceeding, the judicial review application is still at a very early stage. There is no evidence of any conduct on the part of Wind that would indicate any delay on its part in taking steps to participate in the proceeding.
[44] It is further the position of Wind that it wishes to have the judicial review application heard on an expedited basis given its planned construction which is scheduled to commence February or March 2015: New Tecumseth (Town) v. Wheatherall, 2010 ONSC 4311 (SCJ).
[45] As to prejudice, it was submitted on behalf of the applicant that if the court were to grant intervener status to Wind it should be as a friend of the court and on such a basis that no costs could be sought by Wind.
[46] In my view given Wind’s significant and direct economic interest in the outcome of the judicial review application, it would not be appropriate to limit its involvement to that of a friend of the court with standing only to make submissions.
[47] As to any prejudice associated with exposure to costs, as was submitted on behalf of the applicant, while this may be a reasonable concern given the nature of the proceeding, in similar circumstances where a land development company sought to intervene as an added party in an application, Sproat J. noted in Hulet v. Guelph (City), [2006] O.J. No. 1488 at para. 24: “I would also add that costs are an integral part of our litigation system and designed to dissuade claims lacking merit, promote settlement and provide compensation to parties who have meritorious claims. The exposure to costs imposes a necessary discipline on the litigants and how they conduct the process.” I agree with and adopt these views for the purpose of this motion.
[48] While the applicant may face an increased exposure to costs as a result of the granting of party intervener status to Wind, the nature and extent of Wind’s direct economic interest in the outcome of the application still favours the granting of its motion to be added as a party intervener, without any restrictions as to its level of participation in the application nor with respect to any entitlement it may have with respect to costs.
Transfer of the Application:
[49] As I have concluded that Wind shall be granted party intervener standing in the judicial review application, its further request that the application be transferred to the Divisional Court at Toronto must be considered.
[50] In the event the application remained with the Divisional Court at Brampton, the next sittings of the court is scheduled for the week of March 16, 2015. It is urged on behalf of Wind that if the matter remains in Brampton to be considered by the Divisional Court in March 2015, this will conflict with Wind’s plans to commence construction of the Project set for February and March, 2015 and as such it seeks to transfer the matter to Toronto for an earlier hearing date.
[51] The scheduling of matters before the Divisional Court at Toronto is in the discretion of the Associate Chief Justice in consultation with the Administrative Judge of the Divisional Court.
[52] Based on the submissions of all counsel as to the time required for the argument of this judicial review application, I estimate that a full day hearing will be required.
[53] Given that the Divisional Court at Toronto sits each week, it is reasonable to believe that a hearing date for this matter could be scheduled prior to March 2015.
[54] Rule 13.1.02 (2) (b) provides that the court may make an order to transfer an application to another venue if the court is satisfied that a transfer is desirable in the interests of justice having regard to:
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter. O. Reg. 14/04, s. 10.
[55] The persons associated with the Applicant reside in Priceville, Ontario which is within the Central West Region of the Superior Court of Justice. It was urged on behalf of the applicant that Brampton is the most convenient location for the applicant to have the Divisional Court hear the application and that as the application bears directly on the community where the Project is located, the application should be heard in a court that serves that community.
[56] It was further submitted on behalf of the applicant that as Priceville is 117 km from Brampton and 150 km from Toronto, taking into account the added commuting time through heavy traffic and the related expenses of parking, having the hearing in Brampton is desirable in the interests of justice.
[57] In determining whether it is desirable in the interests of justice to transfer an action to another venue the court must take a holistic approach, weighing and considering each of the factors listed in rule 13.1 .02 (2) (b). The factors enumerated are of equal importance and must be balanced and if a transfer of the proceeding to another venue is not desirable in the interests of justice, the choice of the plaintiff or applicant as to the venue will govern: Eveready Industrial Services Corp. v. Jacques Daoust Coatings Management Inc., 2005 19797 (ON SC), [2005] O.J. No. 2285 at paras. 17 – 19 (SCJ); Hallman Estate v. Cameron, 2009 51192 (ON SC), [2009] O.J. No. 4001at paras 26, 28 (SCJ).
[58] The factors set forth in subparagraphs (i) through (iv) of rule 13.1 .02 (2) (b) relate to the importance of justice in the context of the local community. The matter before the court should be heard at a place where the subject matter of the litigation arose or where all or some of the parties are located. The public most affected by the decision of the court has a right to observe the hearing.
[59] In this case, the subject matter of the pending judicial review application did not arise in Brampton and none of the parties or their counsel are located in Brampton. The local community, including the applicant’s associated persons, who are from the area of the Project which is close by to Priceville, will not be materially impacted if this matter is heard before the Divisional Court at Toronto as opposed to the court sitting in Brampton.
[60] The convenience of counsel does not represent a significant factor to be considered, however the costs associated with the counsel’s attendance before the court must be considered. There is no significant difference in the costs to be incurred by counsel if the hearing of this matter were to be held before the Divisional Court at Toronto. Both law firms representing the parties as well as counsel for MNRF have their practices located in Toronto.
[61] In my view the scheduling of this application to be heard by the Divisional Court at Toronto on a date prior to March 2015 will secure the just and most expeditious determination of the application on its merits, as it will allow for an earlier hearing date of the application than would otherwise be available at Brampton and it is anticipated that this would be prior to the scheduled start of construction on the Project.
[62] Considering the factors set out in rule 13.1 .02 (2) (b) in a holistic fashion, I have concluded that it is desirable in the interest of justice that the application be conditionally transferred to Toronto as this will facilitate the just and most expeditious and least expensive hearing of the matters in issue.
[63] As noted the scheduling of matters before the Divisional Court at Toronto is within the discretion of the Associate Chief Justice and as such this order transferring the application to Toronto is conditional on the Associate Chief Justice authorizing the transfer and is further subject to the availability of a panel of the Divisional Court to hear the application prior to the next scheduled sittings of the Divisional Court at Brampton in March, 2015.
[64] Counsel for the parties shall forthwith contact the offices of the Associate Chief Justice and the Administrative Judge of the Divisional Court at Toronto with respect to the scheduling of the hearing of this application. A copy of these reasons for decision will be delivered to the Divisional Court at Toronto.
[65] In conclusion, Wind’s motion is granted as follows: (1) Wind is granted leave to participate in the application as a party intervener with full rights allowing it to file materials, in accordance with the Rules and make submissions before the court; (2) the pending application before the Divisional Court at Brampton is transferred to the Divisional Court at Toronto to be scheduled for hearing in the discretion of the Associate Chief Justice.
[66] If the cost of this motion cannot be resolved, counsel may make written submissions. Counsel for Wind shall file written submissions of no longer than two pages plus a costs outline within 15 days following the release of these reasons. Submissions of a similar length shall be filed by counsel on behalf of the applicant and MNRF, within 15 days thereafter. No reply submissions shall be filed without leave.
Daley, J.
Released: December 11, 2014
Natural Resources and Forestry), 2014 ONSC 7167
COURT FILE NO.: DC-14-92-00
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DURHAM AREA CITIZENS FOR ENDANGERED SPECIES (D.A.C.E.S.)
Applicant
- and –
ONTARIO (MINISTRY OF NATURAL RESOURCES AND FORESTRY)
Respondent
REASONS FOR JUDGMENT
Application for Party or Intervener Standing
Daley, J.
Released: December 11, 2014