Association for the Protection of Amherst Island v. Director of Environmental Approvals, 2016 ONSC 6522

CITATION: Association for the Protection of Amherst Island v. Director of Environmental Approvals, 2016 ONSC 6522

DIVISIONAL COURT FILE NO.: 578/15

DATE: 20161018

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, NORDHEIMER and BALTMAN JJ.

BETWEEN:

ASSOCIATION FOR THE PROTECTION OF AMHERST ISLAND Applicant

– and –

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

Marie-Andrée Vermette and Anastasija Sumakova, for the Applicant Sara Blake, for Director of Environmental Approvals John B. Laskin and Ryan Lax, for Windlectric Inc.

HEARD at Toronto: October 18, 2016

ORAL REASONS FOR JUDGMENT

SWINTON J. (Orally)

[1] The applicant Association for the Protection of Amherst Island seeks to set aside the order of Sachs J. dated April 11, 2016 in which she quashed its application for judicial review on the grounds of prematurity.

[2] The applicant has also brought a motion for the introduction of fresh evidence consisting of a decision of the Environmental Review Tribunal (“ERT”) dated August 3, 2016, its notices of appeal of that decision to the Minister of the Environment and Climate Change and to the Divisional Court, and an email concerning the scheduling of the appeal to the Minister. I would admit this evidence, as it was not available at the time of the motion before Sachs J. and it is credible. However, in my view, it does not affect the outcome of the motion to set aside.

[3] In the judicial review, the applicant seeks to quash the renewable energy approval (“REA”) for a wind project accorded to the respondent Windlectric Inc. by the respondent Director of Environmental Approvals. Before commencing the application for judicial review, the applicant had appealed the approval to the ERT in accordance with the statutory appeal process under the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”).

[4] The motions judge quashed the application, holding that it was plain and obvious that the application would fail on grounds of prematurity. In doing so, she made no reviewable error.

[5] Judicial review is a discretionary remedy (Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 37), and courts are reluctant to hear an application for judicial review before the administrative process provided for in the legislative scheme has been exhausted (C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332 at para. 31).

[6] The motions judge correctly held that the applicant sought the same remedy in effect before the ERT and the Court – namely, to quash the Director’s decision. As the new evidence shows, the appeal process established by the EPA has not yet been completed. Even though the ERT has now reached a decision, the applicant has further appealed that decision to this Court on a question of law and to the Minister on other grounds. If it succeeds in the appeal process, the decision of the Director may be set aside or altered. Thus, the application is premature. In my view, there are no exceptional grounds that would warrant this Court hearing the application at this time.

[7] The applicant argues that it raises different issues on the judicial review and in the appeal process before the ERT and now before this Court and the Minister. It argues that the ERT can only intervene if the renewable energy project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. In effect, the applicant argues that the ERT process and subsequent appeals do not provide an adequate, alternative remedy to it.

[8] The issue before the Court today is prematurity. The administrative process set out in the EPA for challenging the approval decision has not been completed, and an effective remedy is available in that process. Therefore, the application is premature.

[9] Accordingly, the motion to set aside the order of Sachs J. is dismissed. We need not deal with the alternative issue of the applicant’s standing to bring the application.

COSTS

[10] I have endorsed the Motion Record of the Applicant as follows: “This Motion to set aside the order of Sachs J. is dismissed for oral reasons delivered by me. The Director does not seek costs. If Windlectric and the applicant cannot agree on costs, brief written submissions may be made within 30 days.”

___________________________ SWINTON J.

NORDHEIMER J.

BALTMAN J.

Date of Reasons for Judgment: October 18, 2016

Date of Release: October 20, 2016