MNRF and OEB, 2016 ONSC 8147

DIVISIONAL COURT FILE NO.: 15-2162

DATE: 2016/12/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CCSAGE Naturally Green

Applicant

wpd White Pines Incorporated

Moving Party

Ron Higgins

Moving Party

– and –

Director, Sec. 47.5 Environmental Protection Act and Minister of Natural Resources and Forestry and Ontario Energy Board

Respondents

Counsel:

Alan Whiteley, Counsel for the Applicant

Jameel Baasit and Jesse Long, Counsel for the Moving Party wpd White Pines Incorporated

Lise Favreau, Matthew Horner and Judith Parker, Counsel for the Respondents, the Director, s.47.5 Environmental Protection Act and the Minister of Natural Resources and Forestry

Philip Tunley, Counsel for Respondent the Ontario Energy Board

HEARD: October 21, 2016 in Ottawa

REASONS FOR JUDGMENT

Labrosse, J.

Nature of Application

[1] wpd White Pines Wind Incorporated ("wpd White Pines") moves to be added as a Party or as an Intervener in this pending Application for Judicial Review before the Divisional Court. Ron Higgins, the Mayor of the Township of North Frontenac, also moves to be granted Intervener status in this Application.

[2] The Applicant, CCSAGE Naturally Green (the "Applicant") opposes the request by wpd White Pines for Party status but consents to their alternate request for Intervener status subject to certain conditions. The Applicant consents to the request by Mr. Higgins for Intervener status.

[3] The Director, Section 47.5 Environmental Protection Act and Minister of Natural Resources and Forestry (the "Respondents") consent to the request by wpd White Pines for Party status but objects to the request by Ron Higgins for Intervener status. The Ontario Energy Board ("OEB") consents to the Motion by wpd White Pines for Party status and takes no position on the Motion by Ron Higgins.

[4] The present Motions form part of a series of case management motions which were assigned to this Court as case management judge. Once the Motions for standing are decided it is anticipated that the followings motions will proceed:

(a) a motion by the Applicant for an Order directing the Respondents to deliver records of the proceedings leading to the statutory decisions to be reviewed;

(b) a motion by the Applicant to predetermine issues of standing;

(c) a motion by the Applicant for a protective costs order; and

(d) a motion by the OEB to strike the Application as against the OEB.

[5] This Application seeks to challenge the following three decisions related to a Class 4 wind energy project called "White Pines" which has been approved to be built in Prince Edward County:

(a) the decision of the Director under s. 47.5 of the Environmental Protection Act (EPA) to issue a Renewable Energy Approval (REA) to wpd White Pines to build White Pines;

(b) the decision of the Minister of Natural Resources and Forestry ("MNRF") to issue an "overall benefit" permit under s. 17 of the Endangered Species Act ("ESA") in respect of activities related to White Pines;

(c) the decision of the OEB to grant leave to wpd White Pines to construct a transmission line for White Pines.

[6] The Application for Judicial Review also seeks to challenge the constitutionality of a number of statutory or regulatory provisions related to the above decisions.

[7] At the conclusion of the Motion for Party/Intervener status, a case conference was held to deal with the procedural issues surrounding the remaining motions. These issues will be dealt with at the end of these reasons.

Joinder as a Necessary Party

[8] wpd White Pines seeks joinder as a necessary party respondent and, alternatively, full Intervener status.

[9] Rule 5.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rule") provides as follows:

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.

[10] At para 10 of Ontario Federation of Anglers and Hunters v. Ontario, 2015 ONSC 7969, the Court stated that the determination of a party as a "necessary party" required a consideration of the potential prejudice to such party from the order being sought. If the order will determine the rights of the person, he is entitled to be added so that his voice will be heard before his rights are determined.

[11] Further, in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 6870 at para 16, the Court stated that the interest of a proposed party must an actual direct interest in the outcome of the matter.

[12] wpd White Pines contends that it meets the requirements of being added as a Party. It is in possession of all documents relating to the REA and the overall benefit permit applications. Further, it will be able to provide all the relevant documentation and analysis of what the potential liquidated damages would be if the Application is successful.

[13] wpd White Pines contends that the Application concerns permissions, approvals and orders granted by the Respondents to wpd White Pines. If the permits are cancelled, their rights to construct White Pines will be lost.

[14] The Applicant concedes that wpd White Pines is the beneficiary of the impugned statutory decisions. However, wpd White Pines has no relevant evidence to provide that could not be produced by the Respondents.

[15] The focus of the Applicant's submission is on the potential effects of an award of costs against the Applicant in the event its Application is not successful. The Applicant contends that if it could be liable to an award of costs in favour of wpd White Pines, this will amount to a denial of access to justice.

Intervener Status

[16] Rule 13.01 states:

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).

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

[17] In order to be granted Intervener status, a party need only meet one of these three criteria: see Ontario Federation of Anglers and Hunters at para 21.

[18] The common principle applied by the courts is to determine the nature of the case, the issues which arise and the likelihood of the party being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: see Durham Area Citizens for Endangered Species v. Ontario, 2014 ONSC 7167 at para 34.

[19] In the motion by wpd White Pines, the Applicant consents that it should have Intervener status subject to the following conditions:

(a) adhere to all timetables;

(b) be limited to one affidavit;

(c) limit its evidence to the impact of the proceeding on its particular interests;

(d) make its witness available for cross-examination and participate in cross-examinations of the Applicant's witnesses on the above issues without duplicating questions posed by the Respondents;

(e) limit its oral and written argument to the above issues;

(f) be limited in the length of its factum to 15 pages;

(g) be prohibited from new raising issues;

(h) not be allowed to seek costs and not be liable for costs to any party.

[20] In response, wpd White Pines states that it would consent to an order granting full Party status or Intervener status without restrictions. As for the specific conditions requested by the Applicant, wpd White Pines consents to conditions (a), (c), (d) and (e). Particularly, it does not consent to any condition which would impose a limit on its ability to seek costs.

[21] In the Motion by Ron Higgins, the relief requested is opposed by the Respondents. Mr. Higgins contends that he has met the criteria to be granted Intervener status. He states that the Township of North Frontenac has been exposed to the renewable energy approval process. He will bring to the proceedings the particular concerns of municipalities unwilling to accept industrial wind turbines ("ITW"). He states that he has been appointed to represent Council and the Township of North Frontenac.

[22] Mr. Higgins states that he satisfies the analysis in Orphan Well Association v. Grant Thornton Limited, 2016 ABCA 238 at para 10.

[23] The Respondents object to the notion that Mr. Higgins represents the Township of North Frontenac and the 83 municipalities who are opposed to wind energy projects.

[24] The Respondents note that neither Mr. Higgins nor the Township participated in the public consultations. Further, the interest claimed by Mr. Higgins is in the constitutional challenges which form part of the Application. Other than his interest in these constitutional issues, the Respondents state that Mr. Higgins does not specify what his interests are in the Application.

Analysis

Motion by wpd White Pines

[25] When considering a request to be added as a party to the Divisional Court under either Rule 5.03 or Rule 13.01, the Court in Durham Area Citizens for Endangered Species determined that such motions are to be brought as Intervener motions under the specific Rule 13.03. Such a motion is then governed by the criteria set out in Rule 13.01.

[26] At other times, judges hearing motions to be added as a party to a Divisional Court proceeding have considered the applications under both the "necessary party" criteria in Rule 5.03 and the "interested party" criteria pursuant to Rule 13.01.

[27] While I do not propose to determine the circumstances where one rule applies to the exclusion of the other, I am of the view that in these circumstances the request for party status by wpd White Pines should be dealt with under the specific Rule 13.03 and the analysis under Rule 13.01 should be applied.

[28] Further, I am of the view that wpd White Pines is not a "necessary party" in these types of proceedings for the following reasons:

(a) They were not a party in the proceedings which led to the impugned decisions even if they are the proponent of the White Pines project;

(b) The Respondents have the obligation to defend the impugned decisions and the statutory provisions being challenged. The evidence suggests that the role to be played by wpd White Pines is to provide background or additional information within these proceedings. While I do not limit the relevance of this information, the role of wpd White Pines in this type of application is secondary to the role of the Respondents.

[29] There is no doubt that the results of this Application will determine the economic interests of wpd White Pines. They will be directly affected by the result. However, this criteria is found under both Rules 5.03 and 13.01 and I believe the focus should be on the extent to which their "presence is necessary to enable to court to adjudicate effectively and completely on the issues in the proceeding" as set out in Rule 5.03. Given the nature of the proceedings which are the subject of this Application, wpd White Pines was not a necessary party to the three decisions related to the approval of White Pines. I am therefore unable to conclude that in their absence, the Court will be unable to adjudicate effectively and completely.

[30] Finally, I distinguish this Application with the nature of the proceedings in Ontario Federation of Anglers and Hunters where the Court determined that the issues therein were fundamental to the First Nations as a people. In that matter, the First Nations were properly deemed a necessary party.

[31] In these proceedings, the Applicant concedes that wpd White Pines should be added as an Intervener Party pursuant to Rule 13.01. As the proponent of the project having a direct economic interest in the result, they would clearly be adversely affected if the Application is granted and thus wpd White Pines clearly meets the criteria under Rule 13.01.

[32] The Court must then determine if there will be any conditions which will apply to their intervention. As previously stated, wpd White Pines has accepted the following conditions:

(a) adhere to all timetables;

(c) limit its evidence to the impact of the proceeding on its particular interests;

(d) make its witness available for cross-examination and participate in cross-examinations of the Applicant's witnesses on the above issues without duplicating questions posed by the Respondents;

(e) limit its oral and written argument to the above issues;

[33] wpd White Pines does not agree with the following proposed conditions:

(b) be limited to one affidavit;

(f) be limited in the length of its factum to 15 pages;

(g) be prohibited from new raising issues;

(h) not be allowed to seek costs and not be liable for costs to any party.

[34] I am influenced by the analysis of Daley J. in Durham Area Citizens for Endangered Species at para 47. I agree that costs are an integral part of our litigation system and designed to dissuade claims lacking merit, promote settlements and provide compensation. Further, these proceedings have been commenced to prevent the White Pines project from moving forward. The proceedings were not brought solely against the Respondents to address the legislative provisions which have allowed these types of projects generally.

[35] I am unable to conclude that it would be appropriate to close the door, at this point, on the ability of wpd White Pines to seek costs from the Divisional Court panel who will ultimately hear this Application. The issues of merit, conduct during the proceedings and the ultimate result will be determined following the decision. It is also important to note that there will be a motion for protective costs which will address the issue of the Applicant's potential liability to an adverse cost award. These are all live issues which will be dealt with at the appropriate times.

[36] Consequently, I do not find that it would be appropriate at this stage to impose any further conditions on wpd White Pines as an intervening party to these proceedings. I am satisfied that the intervention by wpd White Pines will not unduly delay or prejudice the determination of the rights of the parties to these proceedings.

Motion by Ron Higgins

[37] The motion for Intervener status by Mr. Higgins is a more straightforward application of the criteria in Rule 13.01.

[38] The following evidence is relevant to the criteria in Rule 13.01:

(a) Mr. Higgins, like the Applicant, is opposed to Class 4 wind energy projects and thus claims to have an interest in the constitutionality and institutional bias issues;

(b) the Applicant has stated that it intends to file affidavits from residents in other municipalities relating to what they call IWT projects;

(c) Mr. Higgins relies on the resolution of the Council of the Township of North Frontenac in support of his position that he is representing the Township in his application for Intervener status;

(d) both the Applicant and Mr. Higgins reference the 83 municipalities who are opposed to ITWs. Mr. Higgins proposes to present evidence of the impact of the proceedings on the interests of Ontario municipalities;

(e) Mr. Higgins seeks to cross-examine the Applicants' affiants, although their positions are aligned; and

(f) there are no large wind projects with an REA in the Township of North Frontenac. Mr. Higgins is concerned that at some point in the future, a large wind project may be approved in the Township.

[39] On the issue of legal argument, it is noted that at the hearing of the Motion, counsel for the Applicant responded for Mr. Higgins and made the legal arguments surrounding the applicable jurisprudence on his behalf.

[40] In support of his position, Mr. Higgins states that his interest relates to the following:

(a) The subject matter of the proceeding includes the constitutionality and institutional bias of the statutes and regulations that allow such installations;

(b) He, as Mayor, may be adversely affected in the conduct of his office by a finding that the statutes and regulations are constitutional and unbiased;

(c) There exists between Mayor Higgins and the Respondents a question of law concerning the constitutionality and institutional bias of the statues and regulations at issue;

(d) He has been appointed to represent Council for the Township of North Frontenac as an Intervener

(e) He speaks on behalf of Municipalities unwilling to accept IWTs.

[41] Having considered all the evidence presented by Mr. Higgins in his affidavit and the argument in his written submission, I conclude that Mr. Higgins does not meet any of the three criteria for intervention set out in Rule 13.01. I come to this conclusion for the following reasons:

(a) while Mr. Higgins is certainly interested in the approval process for wind energy projects, he does not have an interest in the Application. He does not reside in the area and will not be directly impacted. There are no current applications in the Township of North Frontenac. His concern about future applications does not create an "interest" as contemplated by Rule 13.01(a);

(b) the evidence he can provide can easily be submitted with the evidence of the Applicant along with the other evidence of residents who live outside Prince Edward County;

(c) his proposed intervention does not provide a useful contribution which is sufficiently distinct from the Applicant. Specifically, the list of reasons set out in his affidavit are all included (although some are differently worded) in the issues raised by the Applicant;

(d) I do not accept that Mr. Higgins is able to speak on behalf of Ontario municipalities. While there is a resolution by the Council of the Township of North Frontenac, there is no evidence that he can speak for any other municipality;

(e) I do not accept that as Mayor, he has an interest in the statutes and regulations alleged by the Applicants to be discriminatory against rural Ontarians. If there was an interest tied to his office as Mayor, the Township of North Frontenac should have been the party seeking intervention. Otherwise, his intervention is limited to his personal capacity although the Township has said it supports his intervention.

[42] Mr. Higgins' proposed issues are included in the Applicant's position and I conclude that his intervention would not bring anything more other than repetition. There are no compelling circumstances which would warrant his intervention.

[43] While I do not find that Mr. Higgins has met the criteria in Rule 13.01(1), I would also conclude that given the extent to which his position is aligned with that of the Applicant, Mr. Higgins' intervention would in my view unduly delay the proceedings. His desire to cross-examine the Applicant's witnesses demonstrates an unnecessary step which likely simply be an attempt to reinforce their evidence. This would be of no use to the panel hearing the Application.

[44] Mr. Higgins has not demonstrated how he proposes to address the legal issues in these proceedings. He speaks generally of his interest in demonstrating that "the Green Energy Act is unconstitutional as per the Charter of Rights and Freedom". However, as previously stated, legal arguments on his behalf at the Motion were made by counsel for the Applicant. I am unable to conclude that he will bring a different perspective to the proceedings or legal arguments to be made to the panel hearing the Application.

[45] I have considered Mr. Higgins' written submission whereby he addresses the criteria set out in Orphan Well Association. When considering this criteria, I conclude the following:

a. He will not be directly affected by the Application;

b. His presence is not necessary for the panel to properly decide the matter;

c. His interest will be fully protected by the Applicant;

d. He does not offer a submission which will be useful and different nor will he bring any particular expertise;

e. His intervention will likely unduly delay the proceedings.

[46] Finally, I am not satisfied that Mr. Higgins has a question of law or fact in common with one or more of the questions in issue in these proceedings. As previously stated, he has an interest in these proceedings but this is not sufficient to meet the requirements of Rule 13.01.

[47] For the reasons set out above, Mr. Higgins' motion for Intervener status is denied.

Case Management Issues

[48] At the case conference held following the party status motions, it was agreed that the following motions would proceed over two days on dates to be set by the Trial Coordinator:

(a) a motion by the Applicant, CCSAGE Naturally Green for and Order directing the Respondents to deliver records of the proceedings leading to the statutory decisions to be reviewed;

(b) a motion by the Applicant to predetermine issues of the Applicant's standing;

(c) a motion by the Applicant for a protective costs order; and

(d) a motion by the OEB to strike the application as against the OEB.

[49] The OEB confirmed that its motion to dismiss the Application applies solely with respect to the relief sought against the OEB. It relies on the exclusive jurisdiction of the OEB in bringing the motion.

[50] Counsel for the Respondents confirmed that they are not available in December 2016 and the remaining motions would have to be scheduled in the New Year.

[51] The Court confirmed with the parties that it did not require hard copies of case law and they could file a CD-Rom with the Court along with a hard copy of their Factum.

[52] The Court orders that two days be set for the remaining motions and this will be done by the Trial Coordinator after consulting with the parties. Counsel are asked to agree on timelines for cross-examinations and for filing of facta. Counsel are also asked to agree on the time to be allotted for each of the motions and how the parties will divide that time amongst themselves. If they are unable to agree, a conference call will be held with the Court to set time limits on each party's argument for the remaining motions.

Costs

[53] It is ordered that the issue of costs will be dealt with following the completion of all the pre-hearing motions.

Justice Marc R. Labrosse

Released: December 30, 2016

MNRF and OEB, 2016 ONSC 8147

DIVISIONAL COURT FILE NO.: 15-2162

DATE: 2016/12/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CCSAGE Naturally Green

Applicant

Ron Higgins

Moving Party

– and –

Director, Sec. 47.5 Environmental Protection Act and Minister of Natural Resources and Forestry and OEB

Respondents

REASONS FOR JUDGMENT

Justice Marc R. Labrosse

Released: December 30, 2016