2017 ONSC 1012

DIVISIONAL COURT FILE NO.: 619/16

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MORAWETZ R.S.J., NORDHEIMER & McEWEN JJ.

BETWEEN:

ASSOCIATION FOR THE PROTECTION OF AMHERST ISLAND Appellant

– and –

WINDLECTRIC INC. and DIRECTOR, MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE Respondents

E. Gillespie & P. Zywot, for the appellant

J. Laskin & A. Sternberg, for the respondent, Windlectric Inc.

I. O’Connor, for the respondent, Director, Ministry of the Environment and Climate Change

HEARD at Toronto: January 31, 2017

REASONS FOR JUDGMENT

NORDHEIMER J.:

[1] This is an appeal from a decision of the Environmental Review Tribunal dated August 3, 2016. In that decision, the Tribunal dismissed an appeal by the appellant respecting a Renewable Energy Approval (“REA”) issued by the respondent, Director, Ministry of the Environment and Climate Change, to the respondent, Windlectric Inc., for a wind facility project to be located on Amherst Island (the “Project”). At the conclusion of the appellant’s submissions, the court dismissed the appeal with reasons to follow. I now provide those reasons.

[2] In addition to the appeal itself, the appellant brought a motion to submit fresh evidence on the appeal. The appellant asked to argue that motion as part of its argument on the appeal, rather than separately, and the court agreed. Consequently, I will deal with the reasons, for the dismissal of that motion, when it arises in the context of the appeal as a whole.

Background

[3] The background facts necessary for this appeal can be stated briefly. On August 24, 2015, the Director issued the REA to Windlectric in respect of a Class 4 wind facility with a total name plate capacity of 74.3 megawatts, located on Amherst Island, with additional components for the Project located on the mainland of Loyalist Township, County of Lennox and Addington, Ontario. The Project infrastructure consists of the construction of twenty-six wind turbines, including towers and foundations; electrical infrastructure, including cabling, transformers and a transformer substation; project access roads; and temporary infrastructure, such as crane pads and construction laydown areas. The proposed twenty-six wind turbine generators are 156 meters tall, with blades 55 meters long, each with a windswept area of 10,000 metres square. The Project will be situated primarily on privately owned agricultural lands and within municipal rights of way through agreements with local landowners and municipalities.

[4] Amherst Island is located in Lake Ontario, west of the City of Kingston. The island measures about sixty-six square kilometres. The island has about 400 year-round residents but its population grows to approximately 1,000 in the summer. The island is serviced by approximately fifty kilometres of gravel roads, the majority of which circle the island near the shore. Traffic volume on the island is low with approximately twenty to thirty vehicles trips per hour on the busiest sections of roads leading to the ferry that connects the island to the mainland, and ten or fewer vehicle trips on the other island roads.

[5] On September 8, 2015 the appellant filed an appeal of the REA with the Tribunal. The grounds for the appeal were that the Project, operating in accordance with the REA, will cause serious harm to human health, and serious and irreversible harm to plant life, animal life or the natural environment.

[6] The hearing before the Tribunal was held over more than twenty-five days, from late 2015 to Spring 2016. Final oral submissions were heard on June 7, 2016. The Tribunal released its decision on August 3, 2016. The Tribunal dismissed the appeal and confirmed the Director’s decision to approve the REA.

The Appeal

[7] On the appeal, the appellant raises nine separate issues. They are as follows:

1: Did the Tribunal err in law by accepting Windlectric’s health evidence that was not supported by any evidence?

2: Did the Tribunal err in law by relying on mitigation measures that were not outlined in the REA and were, therefore, outside the Tribunal’s jurisdiction?

3: Did the Tribunal err in law by failing to base its decision regarding serious and irreversible harm to threatened Blanding’s turtles on agreed or admitted facts?

4: Did the Tribunal err in law by failing to base its decision regarding serious and irreversible harm to at-risk bat species on agreed or admitted facts?

5: Did the Tribunal err in law by distinguishing this case from the decision in Hirsch v. Ontario (Ministry of the Environment and Climate Change)?[^1]

6: Should the Appellant’s appeal be reconsidered in a hearing before the Tribunal in light of fresh evidence regarding at-risk bat species?

7: Should the Appellant’s appeal be reconsidered in a hearing before the Tribunal in light of fresh evidence regarding threatened Blanding’s turtles?

8: Should the REA be referred back to the Director for reconsideration as neither this court nor the Tribunal has discretion to consider the Project without a new or amended REA?

9: Is it contrary to the public interest if the Project’s proposed amendments are not referred back to the Director for reconsideration, given the test of “adverse effect” in s. 14 of the Environmental Protection Act?

[8] Before turning to these issues, I should address the appropriate standard of review. The appellant submits that issue #1 attracts a standard of review of correctness because it raises a general question of law regarding the admissibility of evidence. The appellant submits that issues #2, #8 and #9 also attract a standard of review of correctness because they involve “true questions of jurisdiction”. The appellant accepts that the other five issues attract a standard of review of reasonableness. The respondents submit that the standard of review of reasonableness applies to all of the issues raised by the appellant, insofar as they may be properly characterized as questions of law. The respondents say that any questions of law that may arise involve the Tribunal’s interpretation of its home statute and thus are entitled to deference.

[9] I do not agree with the appellant’s submission regarding the four issues for which it contends that the standard of review is correctness. In terms of issue #1, the appellant essentially submits that the evidence of two medical experts, tendered by Windlectric and accepted by the Tribunal, ought not to have been admitted because the two experts failed to provide copies of documents to which they made reference, both prior to and when they gave their evidence. I can see no merit in that contention. There is nothing in the Tribunal’s Rules of Practice and Practice Directions that makes the failure to provide copies of documents a basis for refusing to admit the evidence of a witness. It was entirely in the discretion of the Tribunal how to respond to any complaint made on this basis. Given that the Tribunal’s decision involves the exercise of discretion, the decision necessarily attracts the standard of review of reasonableness.

[10] Issue #2 does not raise a true question of jurisdiction. Any argument regarding the Tribunal’s authority to consider mitigation measures that were not included in the REA involves the Tribunal interpreting its own home statute. The interpretation by a tribunal of its home statute presumptively attracts a standard of review of reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39.

[11] Issues #8 and #9, insofar as they involve determinations made by the Tribunal as to its authority to take certain steps, attract the standard of review of reasonableness for the same reasons. Insofar as these issues raise questions as to what remedy this court might grant, no standard of review is applicable.

[12] Before turning to each of the nine issues on their merits, I should also make clear what the jurisdiction of this court is with respect to appeals from the Tribunal. Section 145.6(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, (“EPA”) reads:

Any party to a hearing before the Tribunal under this Part may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.

The jurisdiction of this court hearing an appeal from the Tribunal is, accordingly, a narrow one. This court may only consider questions of law. It is open to a party to appeal the decision of the Tribunal “on any matter other than a question of law” but, under s. 145.6(2) of the EPA, that appeal lies to the Minister, not to this court. I note that the appellant has also launched an appeal to the Minister.

Issue #1

[13] As I alluded to above, I see no merit in the appellant’s challenge to the manner in which the Tribunal dealt with the evidence of the two medical experts called by Windlectric, based on the asserted non-production of documents. I note that no complaint, on this basis, was made at the time that these witnesses gave their evidence. Further, it is clear that counsel for the appellant had, at least, some of the disputed documents, because he used those documents in his cross-examination of the experts.

[14] It was within the discretion of the Tribunal to admit the evidence of these two experts, even assuming that Windlectric failed to comply with the Tribunal’s rules regarding the production of documents. It was rather too late for the appellant to first raise an objection, in this regard, in its closing submissions before the Tribunal. I would also note, on this point, that the Tribunal did not ultimately accept the evidence of Windlectric’s two experts and reject the evidence of the appellant’s expert. Rather, the Tribunal used the evidence of Windlectric’s experts largely to point out certain failings in the evidence of the appellant’s expert. As a consequence of the failings in the evidence of the appellant’s expert, the Tribunal concluded that the appellant had failed to discharge its onus, under the EPA, to show that the Project would cause serious harm to human health. On that point, s. 145.2.1(3) of the EPA reads:

The person who required the hearing has the onus of proving that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b).

[15] I should mention one other aspect of this issue. At the hearing of the appeal, this issue appeared to morph into an argument over the adequacy of the Tribunal’s reasons or, more specifically, an argument that the Tribunal failed to give reasons, for admitting the evidence of the experts, despite their failure to make disclosure of the documents. Putting aside the fact that this is not the issue as it was framed in the appellant’s factum, to which the respondents responded, there is no obligation on the Tribunal to address each and every issue that a party raises. It is to be taken that the Tribunal did not accept the appellant’s complaint regarding the admissibility of the evidence of these two experts – an understandable conclusion given the lack of a timely objection; the fact that counsel had many of the documents to which objection was taken; and the limited use to which the evidence of the experts was put.

Issue #2

[16] On this issue, the appellant argues that the Tribunal erred in considering mitigation measures that were not outlined in the REA. This argument is based on s. 145.2.1(2) of the EPA, which reads:

The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

[17] The appellant would have us read s. 145.2.1(2) as restricting what material the Tribunal can reference in reaching its decision regarding any appeal from the Director’s issuance of the REA, as opposed to restricting the issue that the Tribunal must determine. The appellant fixes on the word “only” in s. 145.2.1(2) in support of its position.

[18] In my view, the appellant’s position misreads the section and, in the course of doing so, confuses two different issues. The Tribunal’s role, on an appeal, is to determine whether the project will cause either of the stipulated harms, if it is undertaken in accordance with the REA. The Tribunal’s role is limited in that respect. That is what the word “only” directs. The section does not address what material the Tribunal can consider in coming to a conclusion on that issue. Not only can the section not be fairly read as doing so, any such reading of the section would be inconsistent with the framework, that is laid out in the EPA, regarding the Tribunal’s authority. The Tribunal is not limited to simply accepting or rejecting the Director’s decision. As expressly set out in the statute, the Tribunal may “confirm, alter or revoke” the Director’s decision (see EPA, s. 145.2(1)), and it may order the Director to take any action that the Tribunal believes that the Director should take. In other words, the Tribunal has a broad remedial power regarding the Director’s decision. This is clear from, among other things, the wording of s. 145.2.1(4) which reads:

If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

[19] It would seriously hamper the Tribunal, in the exercise of the broad remedial authority given to it by statute, to hold that it could only consider what was contained within the four corners of the REA. In considering an appeal, the Tribunal will have to hear evidence from many different sources, including evidence from experts, as the Tribunal did in this case. From that evidence, the Tribunal may learn something that is important to the REA that the Director was unaware of, or did not consider. In order to properly carry out its mandate under the statute, the Tribunal must able to consider that evidence, and direct changes to the REA, that it considers necessary to accomplish the statutory goal.

[20] I can see no rational basis for restricting the Tribunal’s consideration of all of the evidence that is available and placed before it, in order for the Tribunal to come to a proper decision. The appellant’s complaint, in this regard, must fail.

Issues #3 & #4

[21] I choose to deal with the next two issues together because they raise the same concern. Neither of these issues raises any question of law. These issues are entirely factually based. The appellant, in essence, seeks to challenge the factual findings made by the Tribunal, and its preference for certain evidence over other evidence.

[22] It is not the role of this court to re-litigate the facts of this case. Not only would it not be an appellate court’s role generally to do so, this court has no jurisdiction to do so because of the express wording of s. 145.6(1), that I have set out above. In my view, this court must guard against allowing parties, who are unhappy with a decision reached by the Tribunal, to try to engage this court in a freestanding review of the wisdom of any decision that the Tribunal, or the Director for that matter, might make. The Legislature clearly entrusted that type of review to the Minister, under s. 145.6(2). This court should not tread on the appellate role that the Minister plays in the overall scheme laid out by the EPA. Among other reasons, for so holding, is that the issues that the Tribunal, and the Director, must resolve can engage many considerations that fall outside the boundaries of any legal issues, including matters of broad public policy. It is not the role of the courts generally to determine public policy, save and except where constitutional questions and rights are engaged.

[23] The fact is that the Tribunal considered all of the evidence that it heard, and made decisions based on that evidence. For example, with respect to Blanding’s turtles, the Tribunal accepted that there was a population of Blanding’s turtles on the island and that there was a risk of harm to them. However, the Tribunal concluded, based on very specific and detailed reasons, that the risk of harm did not rise to the level of seriousness required by s. 145.2.1. The Tribunal also concluded that, though harm was unlikely, if it did occur. it would not be irreversible. All of these were factual findings, that the Tribunal was entitled to make, and that this court is not authorized to review.

[24] Consequently, any challenge to those findings falls to be determined in the appeal launched by the appellant to the Minister, and not by this court.

Issue #5

[25] The thrust of the appellant’s submission on this issue is that the Tribunal was bound to follow the result reached in Hirsch v. Ontario (Environment and Climate Change), an earlier case in which similar issues were engaged. The Tribunal is not bound to reach the same result in one case, that it reached in another, nor does the appellant point to any authority that holds that the Tribunal is so bound. To hold otherwise would ignore the reality that each decision, on issues such as the ones that the Tribunal determines, are, of necessity, based on their individual facts. Even if the evidence in two cases is the same – an unlikely scenario – the impact of the evidence will differ due to the many different elements that come into play when dealing with environmental impacts. Obviously, the Tribunal will strive to maintain a measure of consistency in its approach to the issues that come before it, but its decision in each case must be based on the evidence that is laid before it; the individual characteristics of the geographic area under consideration; the individual elements of the proposed project; and the requirements of the REA in the particular case that is under review.

[26] The Tribunal explained why the decision reached in Hirsch did not determine the result to be arrived at in this case. In part, the Tribunal said, at para. 182:

This case is distinguishable from the White Pines project in Hirsch both because of the disparity in the evidence of harm to bats and the proposed turbine curtailment mitigation measures discussed above.

[27] The reasons given by the Tribunal for reaching a conclusion in this case, that may appear to differ from the conclusion reached in Hirsch, are entirely reasonable ones. There is no basis for this court to find an error of law with the Tribunal’s decision in this regard.

Issues #6 & #7

[28] These two issues raise the question of whether the fresh evidence sought to be adduced by the appellant ought to be received on this appeal and, if so, whether it brings into question the validity of the Tribunal’s decision, such that the matter ought to be referred back to the Tribunal for reconsideration. The fresh evidence includes reports, articles and studies from a variety of sources. All of this material either post-dates the decision of the Tribunal, or, at least, post-dates the completion of the hearing.

[29] There are two principal authorities on the test to be applied when deciding whether fresh evidence should be admitted on an appeal. One is the decision in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 and the other is the decision in Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). The two decisions state the test to be applied in somewhat different terms. In Palmer, McIntyre J. laid out the test in the following terms, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: [citation omitted].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[30] In Sengmueller, at para. 9, McKinlay J.A. stated that fresh evidence will be admitted when:

(1) the tendered evidence is credible,

(2) it could not have been obtained, by the exercise of reasonable diligence, prior to trial, and

(3) the evidence, if admitted, will likely be conclusive of an issue in the appeal: [citation omitted]

[31] The difference between the two tests is the omission in Sengmueller of the second factor from Palmer, that is, that the evidence must be relevant. I do not believe that the Court of Appeal, in Sengmueller, was intending to remove relevance as a factor in the decision whether to admit fresh evidence but, rather, that it would be self-evident that only relevant evidence would even be considered for admission. If the evidence is not relevant, then it is unnecessary to consider the other three, and generally more contentious, factors.

[32] That conclusion poses the first problem for the appellant because all of the articles, studies and reports, that form the subject matter of the fresh evidence application, clearly go to factual issues. The only purpose behind admitting this fresh evidence would be to challenge the factual findings made by the Tribunal. As I have already set out above, factual issues fall outside the jurisdiction of this court on this type of an appeal. The fresh evidence is, therefore, not relevant to any matter that this court is authorized to consider. The motion to adduce fresh evidence must fail on that basis alone.

[33] There is a corresponding reason not to admit the fresh evidence. That reason is discussed in Sengmueller, where McKinlay J.A. said, at para. 10(QL):

One obvious problem with admitting on appeal evidence which did not exist at the time of trial is that such evidence could not possibly have influenced the result at trial. It is argued for the appellant that admitting such evidence on appeal would result in there being no finality to the trial process, that it would tend to turn appeal courts into trial courts, and that it would unacceptably protract legal proceedings. All of these objections are valid and compelling.

[34] The same concerns apply here. Assuming for the moment that this court had jurisdiction to consider this fresh evidence, and that we used it to call into question the validity of the Tribunal’s decision, and then remitted the matter back to the Tribunal, the whole cycle could repeat itself. The Tribunal would make a fresh determination, there could be another appeal and once again, by the time the appeal was reached, undoubtedly further articles, reports and studies would have been done. This is especially true since these articles, reports and studies are largely matters of science and science is always evolving. The end result would be a lack of finality to the process.

[35] In any event, to the degree that these new articles, reports and studies bear on the factual determinations made by the Tribunal, any consideration as to whether they should be received and used to review the Tribunal’s decision, is, once again, a matter for the Minister to determine in the appeal that the appellant has taken to him.

Issues #8 & #9

[36] These two issues arise out of the appellant’s contention that the October 2016 Operation Plan for the Project, developed by Windlectric, has so significantly altered the parameters of the Project that neither the Tribunal, nor this court, has the authority to consider the amended Project and thus, in some fashion, the Project ought to be sent back to the Director.

[37] I confess that it is entirely unclear to me how these issues even come before this court by way of this appeal. Neither of the respondents have cross-appealed, or otherwise asked this court, to amend the REA in any fashion arising from matters contained in the October 2016 Operation Plan. Indeed, both respondents submit that this court does not have jurisdiction to consider these issues, because they are not properly before this court, nor do they raise any question of law.

[38] What the appellant’s position seems to ignore is that the Director has ongoing authority to address issues such as the ones now raised by the appellant. If the October 2016 Operation Plan has the effect of significantly amending the parameters of the Project, then Windlectric can ask the Director to amend the REA accordingly. Of more importance is the fact that, if the Director believes that the October 2016 Operation Plan has the effect of significantly amending the parameters of the Project, the Director can, on his/her own motion, review the REA. This is clear from s. 47.5(3) of the EPA which reads:

On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so,

(a) alter the terms and conditions of a renewable energy approval after it is issued;

(b) impose new terms and conditions on a renewable energy approval; or

(c) suspend or revoke a renewable energy approval.

[39] Consequently, if the appellant has concerns that the October 2016 Operation Plan has the effect for which it contends, then the appellant’s recourse is to ask the Director to reconsider the matter. It is not an issue for this court to determine, nor is it appropriate for this court to take it upon itself to refer the matter back to the Director.

Conclusion

[40] The issues raised by the appellant do not, in the main, raise any questions of law that would invoke this court’s jurisdiction by way of appeal. To the degree that the issues do raise any questions of law, the appellant has failed to show that the Tribunal’s decisions on those issues are unreasonable. It is for these reasons that the appeal was dismissed.

[41] Subsequent to the hearing of the appeal, the appellant and Windlectric advised that they could not resolve the issue of costs. Both parties then filed their costs outlines. After reviewing those outlines, the costs of the appeal, including the costs of the motion to adduce fresh evidence, are fixed in the amount of $22,500, inclusive of disbursements and HST, payable by the appellant to Windlectric. The Director did not seek any costs.

NORDHEIMER J.

I agree

MORAWETZ R.S.J.

I agree

McEWEN J.

Date of Release: February 13, 2017

[^1]: [2016] O.E.R.T.D. No. 6