Fohr v. Ontario (The Environment and Climate Change), 2016 ONSC 5905

CITATION: Fohr v. Ontario (The Environment and Climate Change), 2016 ONSC 5905

DIVISIONAL COURT FILE NO.: 54/15

DATE: 20160927

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GARY FOHR, Appellant

AND:

THE DIRECTOR, MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE, Respondent

AND:

GREY HIGHLANDS CLEAN ENERGY GP CORP. operating as GREY HIGHLANDS CLEAN ENERGY DEVELOPMENT LP, Respondent

BEFORE: H. SACHS, C. HORKINS, L. PATTILLO JJ.

COUNSEL: Julian N. Falconer and Asha James, for the Appellant

Andrea Huckins, for the Respondent, Director, Ministry of the Environment and Climate Change

John B. Laskin, John Terry and W. Grant Worden for the Respondent Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP

HEARD at Toronto: In Writing

COSTS ENDORSEMENT

[1] In reasons released on June 28, 2016 (2016 ONSC 4191), this court dismissed Gary Fohr’s (“the appellant”) appeal from a decision of the Environmental Review Tribunal (“the tribunal”).

[2] The appeal arose from the issuance of a Renewable Energy Approval (“REA”) for a wind turbine project in Ontario. In August 2015, the Director, Ministry of the Environment and Climate Change (“the Director”) had issued a REA to the respondent Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP ("Grey Highlands") for a wind turbine project located in Grey County. The appellant is a resident who lives close to the Grey Highlands wind turbine project. He appealed the Director's decision to the tribunal. The tribunal confirmed the Director's decision to issue the REA.

[3] Grey Highlands seeks costs against the appellant in the amount of $20,000 all inclusive. The Director does not seek costs.

[4] The appellant states that no costs should be ordered against him for the following reasons:

(i) The appeal raised a novel issue of public importance and he is a public interest litigant.

(ii) The appellant relied on Dixon v. Ontario (Director, Ministry of the Environment), 2014 ONSC 7404 (“Dixon”) to commence his appeal.

(iii) The costs requested are excessive and unreasonable.

[5] This court has confirmed that private landowners who challenge the issuance of a REA are not pubic interest litigants pursuing public interest litigation, such that there should be no costs award in favour of the successful respondent (see Dixon v. Ontario (Director, Ministry of the Environment), 2015 ONSC 1358 at paras. 4-5; Ostrander Point GP Inc. v Prince Edward County Field Naturalists, 2014 ONSC 2127 paras. 6-7).

[6] This appeal did not raise a novel issue. The only issue that the appellant raised on his appeal concerned the meaning and effect of s. 145.2.1 of the Environmental Protection Act, R.S.O. 1990 c. E.19 ("the EPA"). This court found that appellant’s proposed interpretation of s. 145.2.1 is contrary to the rules of statutory interpretation, fundamentally inconsistent with the statutory scheme in the EPA and is not supported by Dixon. Given this result, it is not open to the appellant to say that no costs should be ordered because his appeal was justified by Dixon.

[7] Grey Highlands was entirely successful on this appeal and is entitled to an amount for costs that is fair and reasonable in the circumstances: (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). Further, in exercising its discretion to award costs, the court “may consider” the factors set out in rule 57.01(1) of the Rules of Civil Procedure.

[8] The outcome of the appeal was of significant importance to Grey Highlands. As Grey Highlands states, if the applicant’s position had been accepted, it would have “transformed the REA appeal process”. Grey Highlands’ entitlement to proceed with its wind turbine project turned on the outcome of the appeal.

[9] Grey Highlands’ Bill of Costs confirms that the majority of the time incurred was work done by junior counsel at a lower hourly rate. On a full indemnity basis, the fees are $48,354.50. On a partial indemnity basis, this is reduced to $29,012.70.

[10] Grey Highlands seeks costs of $20,000 all inclusive. It argues that this is an amount that the appellant could reasonably expect to pay given the preparation that was required for the full day hearing. It relies on similar one day hearings that have resulted in costs awards of $20,000 or more (see Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment), 2012 ONSC 4131; Paudash Shores Cottagers Assn. v. Ontario (Ministry of Natural Resources), 2012 ONSC 4863).

[11] I note that in Dixon, the costs awarded to the successful respondents ranged from $17,000 to $25,000 after a four day appeal. In this case, the appeal lasted one day.

[12] The appellant states that if costs are awarded, the amount should be fixed at $7,500 all inclusive. The appellant has not revealed any information concerning the time spent by his counsel and any fees charged. This would be a measure of what the appellant could reasonably expect to pay for costs.

[13] Taking all of the above factors into consideration, I find that $10,000 is a fair and reasonable amount for costs. The appellant is ordered to pay Grey Highlands costs fixed at $10,000.

C. Horkins J.

H. Sachs J.

Pattillo J.

Date: 20160927