CITATION: Alliance To Protect Prince Edward County v. wpd White Pines Incorporated, 2016 ONSC 2160
DIVISIONAL COURT FILE NO.: DC-16-00000-142-0000 DATE: 20160330
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Alliance to Protect Prince Edward County Appellant
– and –
wpd White Pines Incorporated and Director, Ministry of the Environment and Climate Change Respondents
Eric K. Gillespie, for the Appellant Sylvia Davis and Patrick Duffy and Patrick J. Corney, for the Respondents
HEARD at Toronto: March 29, 2016
Stewart J.
[1] The Appellant Alliance to Protect Prince Edward County (“APPEC”) has brought this motion on an urgent basis seeking an Order staying physical work within White Pines Incorporated’s (“White Pines”) renewable energy project pending the disposition of its appeal from the Order of the Environmental Review Tribunal (the “Tribunal”) dated March 22, 2016. The Tribunal’s Order dismissed a motion brought by APPEC for this same relief with reasons to follow.
[2] Although a Notice of Appeal has been filed by APPEC, the specific grounds of any such appeal are uncertain given the fact that reasons for the decision are still forthcoming. The parties have delivered Motion Records containing materials and evidence before the Tribunal together with Briefs of Authorities, but there is no Appeal Record before the Court, nor are there Facta.
[3] The Director, Ministry of the Environment and Climate Change takes no position on the motion.
[4] White Pines intends to clear some vegetation from the affected private lands upon which the project is planned to be built. It will not be commencing construction on crane pads, turbine bases or access roads. The limits of its intended activity to do the clearing of vegetation were confirmed by counsel in court.
[5] The test for a stay of an order pending an appeal in this court is that used for interlocutory injunctions: is there a serious issue to be tried, will the applicant suffer irreparable harm if the stay is not granted, and if so, where does the balance of convenience lie (see: RJR-Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311)?
[6] The Order of the Tribunal under appeal, which obviously demonstrates a finding in favour of White Pines, suggests that the Tribunal agreed that the limited work proposed to be done was permissible and therefore no stay was granted.
[7] Both parties agree that the Tribunal’s decision is interlocutory in nature, although APPEC argues that it raises an issue which should prompt the court to deviate from its usual approach to decline jurisdiction to entertain any appeal from interlocutory rulings until all issues before the Tribunal have been determined and the end result is known (see: Ontario College of Art v. Ontario Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798).
[8] In my view, assuming that there is jurisdiction to grant the stay sought by APPEC, I am of the opinion that the stay should not be granted on the basis of the current materials before the Court. First, there are no reasons that may be reviewed to consider whether or not there is any real merit to the appeal or whether there is a “serious issue” to be tried.
[9] The record at present also does not permit a conclusion that irreparable harm to the environment will flow from the limited activities White Pines plans to carry out. Any disruption may be remedied, if necessary, as part of the second stage of the proceedings.
[10] APPEC submits that the Tribunal has already found that such activity would result in irreparable harm. Conversely, the limits of the activities - vegetation clearing and site preparation - are said by White Pines to fall outside the ambit of the “project operation and post-construction” concerns that will form the subject matter of the next stage of the hearing before the Tribunal to determine what remedial steps or precautions must be taken to prevent such harm.
[11] Further, White Pines has tendered evidence before the Tribunal and the Court to support its argument that it has only the narrow window of the month of April to carry out this work before wildlife considerations will require it to cease.
[12] Accepting that this Court has inherent jurisdiction to grant the injunctive relief requested, such an order would normally require undertakings from the members of APPEC, an unincorporated association, that they would abide by any order concerning damages that the Court might make. As it presently stands, APPEC has indicated that its members will not provide any such undertakings.
[13] Accordingly, and on this record, I conclude that the balance of convenience consideration for the relief sought favours White Pines.
[14] I therefore conclude that APPEC has failed to justify the granting of a stay.
[15] For these reasons, the motion is dismissed.
[16] This disposition is without prejudice to the entitlement of the Appellant to renew its motion, if it so chooses, on a fuller record that will include the reasons for the Tribunal’s decision under appeal.
[17] Unless either party wishes to seek costs at this time, costs of this motion are reserved to the panel disposing of the appeal or pending any further order of the Court.
___________________________ Stewart J.
Released: March 30, 2016
DIVISIONAL COURT FILE NO.: DC-16-00000-142-0000 DATE: 20160330
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Alliance to Protect Prince Edward County Appellant
– and –
wpd White Pines Incorporated and Director, Ministry of the Environment and Climate Change Respondents
ENDORSEMENT
Stewart J.
Released: March 30, 2016