CITATION: Driver et al. v. wpd Canada Corporation et al., 2017 ONSC 3824
DIVISIONAL COURT FILE NO.: 439/15
DATE: 20170629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, LEDERER AND MATHESON JJ.
BETWEEN:
ELIZABETH DRIVER AND EDWIN ROWSE
Applicants
– and –
wpd CANADA CORPORATION, wpd WHITE PINES WIND INCORPORATED, MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE, MINISTER OF TOURISM, CULTURE AND SPORT AND ENVIRONMENTAL REVIEW TRIBUNAL
Respondents
Ralph Cuervo-Lorens and Talia Gordner, for the Applicants
Andrew Max, for the Respondents wpd Canada Corporation and wpd White Pines Wind Incorporated
Lise Favreau, Judith Parker and Meagan Williams, for the Respondents, Minister of the Environment and Climate Change and Minister of Tourism, Culture and Sport
HEARD at Toronto: April 6 and 7, 2017
KITELEY J.
[1] This is an application for judicial review to challenge the decision of the Director, Ministry of the Environment and Climate Change (“MOECC”) dated July 16, 2015 to issue a Renewable Energy Approval (“REA”) to the respondent wpd White Pines Wind Incorporated (“White Pines” or the “proponent”)[^1] for the construction and operation of a Class 4 wind facility (“the Project”) in Prince Edward County (“PEC”). The Minister of Tourism, Culture and Sport (“MTCS”) is a respondent because it is responsible for the Ontario Heritage Act[^2] (the “OHA”) and is involved in the heritage issues related to the approval of the Project.[^3]
[2] The applicants are heritage professionals and active members of the local heritage community in the area of the Project. They own a property described as the Rose/Frost Farm Complex at 940 Royal Road, which was designated as a heritage property by municipal by-law passed on October 23, 2012. They claimed that this is the first time a designated cultural heritage landscape is located within a wind farm project. The applicants took the position that the Director failed to properly interpret and apply O. Reg. 359/09 (the “REA Regulation”) and that they were denied procedural fairness. The applicants took the position that the Director did not have jurisdiction to issue the REA and that his decision to do so should be quashed.
[3] For the reasons that follow, I dismiss the application because the decision of the Director was reasonable and was reached in a manner that was procedurally fair.
The Statutory Framework
[4] In 2009, the Ontario legislature passed the Green Energy and Green Economy Act, 2009[^4] (the “GEA”) to foster the growth of green energy. The GEA created a framework for the province’s approval of renewable energy projects, including wind projects. The purpose of the GEA has been described by the Ontario Court of Appeal as follows: “to encourage and actively facilitate the development of renewable energy projects, including wind projects.”[^5]
[5] The REA Regulation reinforces this purpose, as indicated in a January 19, 2015 MTCS briefing note, which was filed by the applicants. The briefing note states that “the [REA Regulation] supports Ontario’s Green Energy initiative to expand renewable energy generation, encourage energy conservation and promote the creation of clean energy jobs for Ontarians by streamlining the approval process for projects….”
[6] As a result of the GEA, Part V.0.1 (Renewable Energy) of the Environmental Protection Act[^6] (the “EPA”) was enacted to require a proponent to apply for and obtain an REA issued by the Director before engaging in renewable energy projects such as this one. Section 47.5 of the EPA gives the Director the discretion to issue or refuse to issue an REA where, after considering the application, the Director is of the “opinion it is in the public interest to do so.”
[7] The process to apply for an REA is set out in the REA Regulation and involves several phases or steps. The applicants relied on the REA Technical Guide published by MOECC (2011 and 2013 editions), which outlines six principal elements of the REA application process, while White Pines, MOECC and MTCS described three stages. I consider the three-stage approach, as described by White Pines, to be consistent with the EPA and the REA Regulation, namely as follows:
Pre-submission work: The proponent prepares and submits necessary reports and conducts consultations as required by the REA Regulation. As part of this process, the proponent provides drafts of various reports to stakeholders and to government ministries, which respond with comments that lead to revisions. The necessary reports are detailed in REA Regulation.
Completion review: The proponent submits its application (including accompanying reports), and the MOECC reviews the application for completeness. If appropriate, the MOECC deems the proponent’s application to be “complete.” At this point the MOECC posts a notice of proposal on the Environmental Bill of Rights Registry (“EBR”).
Technical review: The MOECC conducts a detailed review of the application to determine whether regulatory requirements are met and whether the project is in the public interest. The application is also posted for public consultation to the EBR for a specified period. All comments received from the public during the EBR period are summarized by the MOECC and sent to the proponent for comments, which are in turn provided to the Director for consideration.
A. Pre-submission work and consultation by the proponent
[8] To be eligible for an REA, a proponent must submit an application and a number of reports regarding the project (s. 12, REA Regulation),[^7] including reports related to a variety of matters of provincial concern such as natural heritage, cultural heritage and archaeology, as described in Part IV of the REA Regulation. Where a project requires a heritage assessment report (“HAR”), the report must be submitted to the MTCS and the proponent must include with the project application both the HAR and MTCS’s written comments letter (s. 23(2.1) and (3), REA Regulation).
[9] The consultation requirements for REA proponents are prescribed in ss. 14-18 of the REA Regulation. Proponents must distribute notice of the proposal to engage in the project and notices of the location and time of at least two public meetings for the purpose of conducting consultations in respect of the project (s. 15(1), REA Regulation). For the first public meeting, the proponent must provide both notices at least 30 days before the meeting (s. 15(3), REA Regulation). In addition, 30 days before the first public meeting, the proponent must make the draft “project description report,” among other documents, available (s. 18, REA Regulation), which includes a map of the proposed project location (Table 1, Item 10, REA Regulation).
[10] For a period of at least 60 days prior to the final public meeting, the proponent must make available all reports and comments letters required for the application, except the consultation report. The reports must be made available on the proponent’s website, if one exists, and by making paper copies available to the public in each municipality in which the project is situated (s. 16(5) and (6), REA Regulation).
[11] In addition, the proponent has an obligation to consult with any municipality in which the proposed project is to be located as well as with aboriginal communities who might be affected (ss. 17-18, REA Regulation).
B. MOECC reviews REA application for completeness
[12] Once submitted, MOECC staff review the application to ensure that the eligibility requirements specified in the REA Regulation have been met. Staff ensure that all required documents are included and that the necessary consultations have been completed. According to MOECC, this completeness review is an administrative step in the process and does not have any legal effect on the application.[^8]
[13] If MOECC staff deem the application to be “complete,” a further round of public consultation is conducted by MOECC, which posts a notice to the EBR advising the public that it is considering whether to approve a renewable energy project. The public may comment on projects listed on the EBR during a specified period, usually at least 30 days before the decision to grant approval or not is made. In addition, within 10 days of the EBR posting, the proponent is required to post on its website, if one exists, copies of the final reports and comments letters included in the REA application (s. 15.1, REA Regulation).
C. MOECC conducts a technical review and considers whether to issue an REA
[14] Following the completeness review, MOECC conducts a technical review to ensure that the regulatory requirements have been met. The technical review may include requests for clarification or further information from the proponent. MOECC considers public comments received through the EBR; these comments are also sent to the proponent to obtain its response to issues raised. In addition, MOECC seeks technical advice from other ministries, such as MTCS, on areas within their expertise, including advice on conditions that may be imposed on an REA.
[15] MOECC’s Senior Project Evaluator prepares a Decision Document that summarizes the application, the technical review and other relevant matters, in order to assist the Director in determining whether it is in the public interest to issue an REA and, if so, whether conditions should be attached.
D. Director’s decision
[16] The Director “may, if in his or her opinion it is in the public interest to do so” issue, renew or refuse to issue or renew an REA (s. 47.5(1), EPA). If the REA is issued, the Director may impose terms and conditions “if in his or her opinion it is in the public interest to do so” (s. 47.5(2), EPA). If the REA is not issued, the Director may return the application with instructions the proponent must follow before resubmission.
[17] Pursuant to s. 139 of the EPA, the proponent may appeal to the Environmental Review Tribunal (“ERT”). Others may appeal on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and natural environment pursuant to s. 142.1(3) of the EPA. There is no provision in the EPA for an appeal by owners of heritage resources with respect to the cultural heritage issues.
Cultural Heritage Issues
[18] One of the areas of provincial interest that proponents must address in an REA application is cultural heritage; that is the focus of this proceeding. The REA Regulation includes a framework to address cultural heritage issues in the context of an REA application. This framework has two components, namely a heritage assessment and consultation with members of the public.
[19] One of the key differences between the applicants’ and the respondents’ positions is the extent to which the proponent was required to address cultural heritage resources and the extent to which MOECC ensured compliance with those requirements. In order to contextualize the parties’ dispute, the following section sets out the overarching relationship between the two components of the REA framework that addresses cultural heritage issues.
[20] The OHA focuses on the conservation of heritage properties and archaeological sites. The OHA enables a municipality to designate a property for protection where the established criteria for determining whether property is of “cultural heritage value or interest” are met (s. 29, OHA).
[21] Sections 19 and 23 of the REA Regulation (formerly ss. 19, 20 and 23) require proponents to consider both of the following in relation to the project location:
(a) Property protected under the OHA (“OHA Protected Property”). The OHA provides for the protection of heritage properties through a variety of means, including municipal designation by-laws, as alluded to above.
(b) Heritage resources, which are defined in the REA Regulation as “real property that is of cultural heritage value or interest and may include a building, structure, landscape or other feature of real property.” Cultural heritage value or interest is determined by applying the criteria set out in O. Reg. 9/06 made under the OHA.
[22] If the proponent identifies any part of the project location that is on an OHA Protected Property, the proponent must obtain authorization from the body designated in s. 19 of the REA Regulation, such as the municipality that made the by-law or MTCS, and submit it with the REA application.
[23] If the proponent concludes that any part of the project location abuts an OHA Protected Property and/or concludes that there is a heritage resource at a project location, then the proponent must conduct a cultural heritage assessment to determine the impact, if any of the project on the abutting OHA Protected Property and/or the heritage resource at the project location. The HAR must include recommended measures to avoid, eliminate or mitigate the impact, among other requirements (s. 23, REA Regulation).
[24] If the proponent concludes that there is a low potential for the presence of a heritage resource at the project location and that there are no properties listed in s. 19 of the REA Regulation that abut the parcel of land on which the project is located, no heritage assessment is required. The proponent must, however, demonstrate that it considered the potential for heritage resources in a checklist (s. 23(2), REA Regulation).
[25] Under the pre-2012 REA Regulation, the proponent was required to create a report “summarising the assessment” (then s. 23(1)(b)). Under the 2012 REA Regulation, HARs must include the following information:
(a) a summary of the qualifications and experience of the persons who conducted the assessment and prepared the report;
(b) a summary of the process followed in each applicable step of the heritage assessment and the conclusions reached at the end of each step;
(c) a description of any documents used to conduct the assessment;
(d) a statement of cultural heritage value or interest for each confirmed heritage resource, including a description of the heritage attributes;
(e) maps or diagrams depicting the project location, the renewable energy generation facility, and any heritage resources and protected properties identified as a result of assessment; and
(f) the recommendations of the persons who conducted the assessment for measures to avoid, eliminate or mitigate the impact on heritage resources (s. 23(2.1)).
[26] There are no prescribed standards for cultural heritage assessments, and beyond the list above, there are no requirements for the contents of HARs. At the time when the heritage assessments for the Project were conducted, MTCS’s guidance on the preparation of cultural heritage materials for REA applications was set out in “Protected Properties, Archaeological and Heritage Resources: An Information Bulletin for Applicants,” published in 2011 (“MTCS 2011 Information Bulletin”). This document focused on when to conduct heritage assessments and who should prepare them, and explained the process for submitting them for review to MTCS. It did not present standards and guidelines for assessment and reporting.
[27] MTCS issued an updated version of the information bulletin in August 2013 (“MTCS 2013 Information Bulletin”), which provides general guidance on conducting cultural heritage assessments, but not prescribed requirements or standards.
[28] The REA Regulation requires that the proponent obtain from MTCS “written comments … in respect of any heritage assessment conducted,” which comments must be submitted with any HARs as part of the REA application (s. 23(3)(a)).
[29] MTCS heritage planners review the HAR to determine whether it meets the minimum requirements under s. 23 of the REA Regulation and whether the report reasonably describes and demonstrates the process undertaken. When MTCS provides written comments, the author notes that MTCS makes no representation or warranty as to the completeness, accuracy or quality of the HAR. MTCS does not endorse or approve a project. The responsibility of MTCS heritage planners is to review what the proponent submits. MTCS does not conduct its own heritage assessment.
[30] Pursuant to the REA Regulation, MTCS heritage planners are involved in the REA process at two stages: (1) during the pre-submission stage, they provide a written comments letter on a proponent’s HAR, and (2) during technical review, they provide advice to MOECC about heritage matters, if any arise.
White Pines’ Application to MOECC
[31] White Pines is a sustainable energy company developing the Project located in PEC. White Pines began the initiative as early as 2008, when representatives met with area residents including Ms. Driver to discuss the possibility of hosting the Project.
[32] In 2010, White Pines was awarded a contract to supply wind-generated electricity from the area to the Ontario Power Authority. By 2010, White Pines began planning for the Project.
[33] The applicants and respondents have provided details as to how the REA process unfolded. What follows is a summary of the key events.
[34] In 2010, White Pines retained Stantec Consulting Ltd. to conduct the heritage assessment. Amongst other things, Stantec contacted the Prince Edward County Heritage Advisory Committee (“PEHAC”) for a list of designated properties and properties of heritage interest.
[35] On March 17, 2011, White Pines publicly announced the Project and published a Notice of Draft Site Plan and Proposal to Engage in a local newspaper and to nearby land owners (ss. 15(1) and 54.1 of the REA Regulation).
[36] In August 2011, White Pines called local residents to inform them about the proposed Project and to collect information about their concerns.
[37] In September 2011, Ms. Driver emailed White Pines with objections to the Project.
[38] In February 2012, White Pines published notice of its first public meeting (ss. 15(1)(b) and 15(6), REA Regulation). That same day, White Pines posted the draft Project Description Report (s. 16(2), REA Regulation).
[39] On March 22, 2012, White Pines hosted its first statutory public meeting.
[40] On March 29, 2012, White Pines wrote to the Municipality of PEC for updated heritage information and to confirm that there were no recently designated properties or notices of intent to designate properties that could affect the heritage assessment.
[41] On May 17, 2012, White Pines submitted Stantec’s two draft HARs: (1) a protected properties assessment, which dealt with OHA Protected Properties on which the Project could be located; and (2) the Main HAR that addressed the potential impact of the Project on heritage resources at and on OHA Protected Properties abutting the proposed Project location.
[42] On May 31, 2012, White Pines published the first notice of the Final Public Meeting.
[43] On June 13, 2012, MTCS requested revisions to the HARs.
[44] On June 19 and 21, 2012, Stantec submitted revised HARs to MTCS. The applicants’ property had not been designated as an OHA Protected Property at the time of these reports. Stantec had identified their property as a cultural heritage resource and the potential impacts of the Project were addressed.
[45] On June 21, 2012, MTCS issued a written comments letter indicating that, based on the information submitted, it was satisfied with the heritage assessment.
[46] On June 28, 2012, White Pines published its 60-day Notice of Final Public Meeting to be held on August 30, 2012.
[47] By June 28, 2012, White Pines made draft reports, including the HAR, available to the public.
[48] On July 26, 2012, the Municipality of PEC posted a Notice of Intention to Designate the applicants’ property (the Rose/Frost Farm Complex at 940 Royal Road) as a designated property under the OHA, which triggers special considerations under the REA Regulation and for the heritage assessments.
[49] In August 2012, prior to the final public meeting, the applicants contacted MTCS and indicated that there were heritage resources that the HARs failed to identify. MTCS directed Ms. Driver to bring this information forward to the proponent’s consultant, Stantec.
[50] On the evening of August 30, 2012, White Pines held the second and final statutory public meeting. That morning, Ms. Driver wrote to Stantec and White Pines with five pages of questions that she said she would bring to the open house that evening. Ms. Driver indicated her concerns about the cultural heritage assessment. It was about this time that Stantec and White Pines learned of the Notice of Intention to Designate the applicants’ property.
[51] On September 6, 2012, MTCS provided a response to Ms. Driver’s August letter and indicated that it took Ms. Driver’s concerns seriously and that further consultation with PEHAC and the community could add additional information to the heritage assessment.
[52] On September 14, 2012, White Pines submitted its REA application to MOECC in which it sought approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with 29 turbines.
[53] On October 19, 2012, Stantec held a public consultation meeting with PEHAC and the PEC heritage community including the applicants.
[54] On October 23, 2012, the Municipality of PEC passed a by-law designating the Rose/Frost Farm Complex as an OHA Protected Property.
[55] On December 20, 2012, staff from MTCS and MOECC conducted a teleconference with representatives from White Pines and Stantec. White Pines followed up with a table outlining cultural heritage action items gathered from consultation with PEHAC and members of the local heritage community.
[56] On January 2 and 10, 2013, MTCS provided advice to White Pines and Stantec on revising the HARs.
[57] On February 20, 2013, White Pines submitted to MTCS a revised HAR for the wind farm portion of the Project. Stantec stated that it was preliminary because site visits were scheduled.
[58] On February 20 and 21, 2013, Stantec attended the Project area for site visits, which were described in the Main HAR in October 2013 as follows:
During the site visit, significant viewscapes, cultural heritage landscapes, and previously unidentified heritage attributes of individual cultural heritage resources were identified and documented. A series of visual simulations were rendered in order to better analyze potential Project-related impacts related to viewscapes of cultural heritage value or interest.
[59] In the days and months that followed, there were many communications between the applicants and White Pines and Stantec staff on the subject of the site visits and the visualizations, among other matters.
[60] As initially conceived, White Pines had expected that Hydro One would build transmission lines for the Project with the exception of two segments that White Pines would have to build. In the fall of 2012, White Pines learned that Hydro One could not build any of the transmission lines and that White Pines would have to do so itself. On March 1, 2013, MOECC informed White Pines that it would have to conduct a further public meeting regarding the Interconnection Line, which is a transmission line connecting the Project to the power grid. In late March 2013, White Pines published notice of the public meeting to be held on April 29, 2013 and, 30 days before that meeting, made available the draft Interconnection Line HAR as required by MOECC.
[61] After making revisions in conjunction with MTCS, Stantec, on behalf of White Pines, submitted a final Interconnection Line HAR. The MTCS provided a written comments letter on August 2, 2013.
[62] On October 15, 2013, Stantec submitted what would be the final version of the Main HAR for formal MTCS comment and review.
[63] After “several rounds of review letters and resubmissions,” MTCS provided a revised written comments letter on October 16, 2013.
[64] On October 17, 2013, White Pines submitted the Main HAR (“October 2013 Main HAR”) along with MTCS’s comments letter to MOECC.
[65] The October 2013 Main HAR is over 350 pages long including seven appendices. It contains an executive summary, a section detailing the study methodology and consultation process, an impacts assessment, and recommendations. Appendix A is the Cultural Heritage Record Form that provides an evaluation of the cultural heritage value or interest according to O. Reg. 9/06 of over 100 properties. Appendix D contains the designation by-laws with respect to 11 Protected Properties including the 940 Royal Road Rose/Frost Farm Complex. The recommendations of Stantec in s. 8 of the October 2013 Main HAR include the following:
Other potential Project-related impacts related to views were also identified with respect to 21 cultural heritage resources, including…
• The Royal Road/Maypul Layn Road Streetscape and associated resources…
In order to mitigate any visual impacts, Turbine locations T07, T09, and T11 would have to be avoided. Turbine locations T07, T09, and T11 have been decided based on consideration of availability of land, and natural environment, noise, and property line setbacks, as defined in Ontario Regulation 359/09. Moving the turbines is not possible, due to these constraints, and avoidance/removal of the turbines will impact the economic viability of the project. Moving Project turbines to other locations in the County is also not possible, due to potential interference with Department of National Defence (DND) radar systems, as identified through consultations with DND.
[66] “[O]n the basis of project constraints,” White Pines did not accept Stantec’s recommendation to relocate some project infrastructure and continued to seek approval for all 29 turbines.
[67] On March 11, 2014, MOECC deemed White Pines’ REA application “complete.” This meant that the technical review stage would begin. It also triggered an EBR posting.
[68] At the direction of MOECC, the 30-day posting period was extended to 60 days, closing on May 10, 2014. Over 150 comments were received, including some that raised cultural heritage concerns. These comments were provided to White Pines, and summarized and analyzed. White Pines responded to comments as they were provided by MOECC.
[69] Heritage concerns raised during the EBR posting focused on the proposed location of three turbines (T07, T09 and T11). As a result, communications continued between and among MOECC and MTCS and the proponent, including MOECC’s request that the proponent provide additional information on cultural heritage issues raised with respect to the Project.
[70] On December 16, 2014, MOECC sent a letter to MTCS, with a copy to White Pines, requesting that MTCS consider the new information from White Pines and provide more detailed comments and analysis with respect to the cultural heritage impacts of the Project. On December 23, 2014, MTCS responded, with a copy to White Pines, setting out MTCS’s opinion on the proposed mitigation strategies, namely that those strategies were not sufficient or appropriate with respect to T07 and T11.
[71] The Decision Document prepared by the MOECC Senior Project Evaluator is dated June 12, 2015 and notes that the “6 month service standard” date was September 11, 2014, from which I infer that the Decision Document was finalized 10 months after the service standard date.[^9]
[72] On July 16, 2015, the Director approved the White Pines Project and issued the REA for 27 turbines. Turbines T07 and T11 were not included in the REA as approved.
[73] At the time the REA was issued, a posting of the decision to issue the REA was made on the EBR. The EBR Instrument Decision Notice summarizes the decision, as well as the EBR comments received from the public before the decision was made, and how they were addressed. It also outlines the rights for a hearing on the decision at the ERT.
Application for Judicial Review
[74] This application for judicial review was issued on August 26, 2015.
[75] Pursuant to s. 142.1 of the EPA, other parties brought an appeal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment: see, for example, Hirsch v. Ontario (Environment and Climate Change).[^10]
[76] The record before this court is extensive: from the applicant, 20 volumes of record (not including two volumes the court found to be inadmissible), plus a revised factum and three books of authorities; from MOECC and MTCS, a responding record of four volumes together with a revised factum and three books of authorities; and from White Pines, a responding record of seven volumes together with a factum and reply factum, as well as a book of authorities. The applicants were given approval to file a factum of 84 pages incorporating references to evidence and several schedules.
[77] At the outset of the hearing, the materials before us consisted of 42 volumes of record, of which 26 had been filed on behalf of the applicants. Volumes 19 and 20 of the applicants’ record were delivered in the week before the hearing. The respondents objected on the basis that they had been delivered after cross-examination and without leave having been obtained and, in any event, were not relevant since they consisted of materials that were not available to or considered by the Director. This panel agreed with those objections and held that the two volumes were not admissible. At the conclusion of the hearing, counsel provided one additional volume that included documents that ought to have been provided at the outset, namely the affidavit of Edwin Rowse sworn June 6, 2016, as well as the MEOCC’s Technical Guide to Renewable Energy Approvals, 2011 and the updated version dated 2013, each guide consisting of over 200 pages. The exhibits attached to their affidavits are extensive.
[78] The applicants’ factum and submissions addressed many of the factual issues considered important to them. Given the analysis that follows, it is not necessary for the court to include an equally detailed summary of the evidence in these reasons.
The Decision Document and the White Pines REA
[79] Page 78 of the Decision Document reads as follows:
Cultural Heritage
It is the first time in the REA program that refusal of turbine(s) has been recommended. It is highly likely that the applicant [White Pines] will be appealing the decision should the Director follow the recommendation. The appeal would most likely rely on the fact that MTCS has previously signed off on the letter, which can be translated by the applicant that MTCS agrees with the proposed mitigation, and that the PPS [Provincial Policy Statement] applicability to renewable energy projects supports the applicant’s approach to mitigation. However, it is important to note that the MTCS letter always stated that in order to avoid visual impacts (a heritage attribute), T07, T09 and T11 would have to be avoided, further supported by the fact that in light of the applicant’s responses to follow-up questions and comments from public/PEC/PEHAC, MTCS the heritage expert in the REA regime, has stated they do not concur with the applicant’s statement that impacts are temporary and reversibility as the form of mitigation. Further, PPS as stated above, is not applicable to REA projects.
Applicants to the JR may still appeal the decision, given that T09 was not recommended to be refused. It is important to note that MTCS in their further review of the heritage concerns, identified mitigation measure for only T07 and T11 as not being sufficient or appropriate.
As outlined above, comments received for the project have been addressed by the applicant in its REA application for the wind facility and the standard and project-specific terms and conditions of the REA.
[80] The Director accepted the recommendations outlined in the Decision Document and issued the REA dated July 16, 2015 that gave White Pines approval for a renewable energy project in respect of a Class 4 wind facility consisting of the construction, installation, operation, use and retiring of a Class 4 wind facility with 27 turbines. The REA also contained numerous conditions, some of which relate to cultural heritage. The Director did not authorize White Pines to install T07 and T11, which are the two turbines that would have been closest to the applicants’ property. The Director did authorize T09, which is also close to the applicants’ property.
[81] As approved, the Project will feed an estimated 157,776,828 kWh annually into the local electricity grid, which is equivalent to the average annual power use of over 9,000 homes.
Issues in this Judicial Review Application
[82] In their Notice of Application for Judicial Review, the applicants asked that the REA be set aside. They also asked for many ancillary orders, most of which this court has no jurisdiction to grant: see Schedule A to these reasons. In submissions, the applicants confirmed that the only relief sought is in the nature of certiorari, namely that the REA dated July 16, 2015 be quashed.
[83] The factums did not address standing but counsel agreed that the applicants have sufficient private interest to be entitled to pursue this application.
[84] The fundamental issues that arise on this application are the following:
(a) Is the standard of review of the Director’s decision reasonableness or correctness?
(b) Did the Director exercise his discretion reasonably?
(c) Was the Director’s decision to issue the REA made in a procedurally fair manner?
Standard of Review of the Director’s Decision
A. Applicants’ position
[85] The applicants took the position that “Ontario’s heritage conservation interests and principles are at the heart of this Application.” They claimed that this is a matter of first instance in that it is the first consideration of “the intersection between the green energy and heritage conservation schemes in Ontario.” On that basis, the applicants asserted that the issues involved are important to the legal system and that the standard of review is correctness, although counsel acknowledged in submissions that there are many decisions that suggest reasonableness is the standard.
[86] The applicants took the position that deference is not owed to the decision-maker because the Director was not interpreting his “home statute.” The applicants argued that the legislation extends to the interpretation and application of heritage protection legislation, which falls outside of MOECC’s area of expertise both as a matter of fact and law. Counsel asserted that this point is emphasized by the fact that no one employed with MOECC in relation to this matter had the expertise necessary to properly understand and address cultural heritage issues.
[87] The applicants also asserted that the correctness review must be undertaken in light of a “duty” to preserve heritage resources, and that it would be contrary to the applicable statute to approve a project that did not mitigate visual impacts from turbines.
[88] If the court adopts the correctness approach, then this court owes no deference to the Director’s decision and this court may, if the record is complete, substitute a different decision.
B. Respondents’ position
[89] The respondents did not agree that this application requires an analysis of the “intersection between the green energy and heritage conservation schemes in Ontario.” They argued that the Director was interpreting his “home statute” including engaging heritage planners from MTCS. In making the decision to issue an REA, the Director must determine whether the regulatory requirements have been met and whether the Project is in the public interest. The respondents took the position that the Director’s discretionary decision is subject to a reasonableness standard.
C. Analysis
[90] At the heart of the parties’ differences is the characterization of the relationship between heritage issues and green energy issues in the context of renewable energy projects.
[91] I agree with the Director that the REA Regulation has its own cultural heritage scheme that only intersects with the OHA insofar as it uses OHA mechanisms to identify properties and resources of cultural value or interest. The REA Regulation addresses cultural heritage matters differently from other planning contexts and applications in three ways:
Much of Ontario’s land use planning system under the Planning Act[^11] does not apply to REAs. This includes the Provincial Policy Statement (“PPS”), which contains a different set of cultural heritage protections. The PPS provides policy direction on matters of provincial interest related to land use planning and development.
Cultural heritage assessments under the REA Regulation require the proponent to provide recommendations “for measures to avoid, eliminate or mitigate” impacts, whereas cultural heritage assessments in relation to other schemes may set out different priorities or objectives.[^12]
In the REA Regulation, the consideration of cultural heritage is tied to the “project location” and does not require investigation of a larger study area. The project location is defined in the REA Regulation as “a part of land and all or part of any building or structure in, on or over which a person is engaging in or proposes to engage in the project and any air space in which a person is engaging in or proposes to engage in the project.
[92] In Preserve Mapleton Incorporated v. Director,[^13] the Divisional Court applied the reasonableness standard without analysis as to whether it was the appropriate standard.
[93] It is within the context of the GEA – the purpose of which the Ontario Court of Appeal recently explained as encouraging and actively facilitating the development of renewable energy projects, including wind projects[^14] – that the EPA was amended and the REA Regulation was created. Together, they establish a proponent-driven framework in which the role of the Director is threefold: (1) to determine whether the eligibility requirements have been met in order to deem the application “complete”; (2) to conduct a technical review to determine whether all the regulatory requirements have been met; and (3) to determine whether, in the opinion of the Director, it is in the public interest to issue or refuse to issue an REA.
[94] The Director exercises a discretionary power involving the balancing of a myriad of factors including environmental public policy goals. Deference to an administrative decision-maker arises not only from the relative expertise of that decision-maker, but is also a result of respect for legislative supremacy and the choice to delegate decision-making to a tribunal, rather than to the courts.[^15] The framework within which the Director operates and made this decision fits within the Dunsmuir expectation of reasonableness.[^16]
[95] I disagree with the applicants’ assertion that the Director was not dealing with a “home statute.” The EPA is the Director’s home statute. The Director is responsible for ensuring that specified requirements are met including those related to archaeology, cultural and natural heritage, water, noise, construction, impacts on wildlife, consultations with aboriginal communities, decommissioning plans, the design and operation of the facility, and municipal consultations – all within the context of the overriding public interest. The fact that one of the requirements is cultural heritage does not mean that the Director does not have the competence or capacity to ensure compliance with the regulation vis-à-vis cultural heritage resources. Indeed, in the case of cultural heritage criteria, the EPA includes a requirement that the cultural heritage staff at MTCS be involved.
[96] Pursuant to s. 23, the REA Regulation requires that MTCS be engaged in reviewing heritage assessments and that it give a written comments letter. The REA Regulation does not indicate that the OHA framework applies other than as a reference point for defining key terms and kinds of protected properties. In other words, the REA has its own cultural heritage framework. This is not a case of a decision-maker interpreting and applying a statute with which the decision-maker is not familiar – which is the rationale for the correctness approach and the elimination of deference to the Director’s decision. Rather, this is a case of the Director being required to consult staff at another government ministry to provide input and feedback on the cultural heritage aspect of the proponent’s application.
[97] I also disagree with the applicants’ assertion that the Director has a duty to preserve heritage resources. There is no such duty.
[98] I am satisfied that the standard of review of the Director’s decision to issue the REA is reasonableness and, as a result, deference is owed to that decision.
Did the Director exercise his discretion reasonably?
[99] In assessing whether the Director’s decision to issue the REA was reasonable, the court must determine “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and whether the decision-making process is justified, transparent, and intelligible.[^17]
[100] The applicants have many criticisms of the Director’s decision as highlighted in their revised factum. The following is an overview of the applicants’ characterization of some of these criticisms based on the index to their revised factum:
(a) pre-application heritage assessment deficient: failure to post for the required time equals lack of required consultation; failure to assess required heritage protected properties; failure to evaluate and assess required cultural heritage resources; deficient initial consultation process; applicants take concerns directly to Ministries; MOECC acceptance of REA application premature;
(b) consultation cut off: visualizations selection arbitrary; proponent’s refusal to release revised Main HIA; MOECC cowed into deeming the REA application complete;
(c) failure to properly scope heritage impact assessment;
(d) failure to evaluate cultural heritage resources (CHRs): protected properties; cultural heritage resources;
(e) failure to assess project impacts: use of unsound methodology; impact assessments in respect of two Protected Properties missing; misuse of heritage conservation concept of “reversibility” not challenged by Ministries; majority of identified cultural heritage resources not assessed;
(f) failure to mitigate heritage impacts: reliance on irrelevant and extraneous grounds for refusing to mitigate impacts;
(g) Ministries’ flawed review of [heritage assessments]: failures regarding impact assessment methodology; Ministries’ failure regarding impacts on the applicants’ abutting Protected Property; failures regarding misuse of “reversibility”; failures regarding refusal to mitigate impacts; failures during the technical review; limited MTCS role inadequate to the task; failures regarding mandated consultation; deficiencies in the decision document.
[101] Sprinkled throughout the 44 pages of the revised factum containing those criticisms, the applicants have inserted bolded errors numbered from 1 to 19. The applicants have also provided the court with numerous schedules, including as follows:
• A two-page list of examples where the heritage assessment side-stepped the requirement to determine the particular relationship of each designated property and cultural heritage resource to the parcels of land containing proposed Project infrastructure;
• The MTCS Deputy Minister briefing note dated January 19, 2015, which is referenced in the above “Statutory Framework” section of these reasons and to which reference will also be made below;
• A summary of the technical review of the impact of turbines T15 and T17 on the protected views south from the dooryard of the applicants’ property;
• Examples of non-responses to heritage issues raised through the EBR process in respect of the comments of PEHAC and the professional comments of ERA Architects Inc. (Mr. Rowse is the founding principal of this firm);
• A list of the 56 questions that White Pines refused to answer, the eight questions that MTCS refused to answer, and the 16 questions that MOECC refused to answer on cross-examination.
[102] I agree with submissions on behalf of White Pines that the applicants’ assertion that the standard of review is correctness effectively means that this court should conduct a de novo review of the Director’s decision. That explains the applicants’ submission of a 5,000+ page record submitted by the stakeholders during the REA process and the expansive relief sought and abandoned. It is apparent from the applicants’ record and submissions that they seek a fresh REA decision from this court.
[103] Having found that the standard of review is reasonableness, the applicants’ request that this court, in effect, conduct a de novo review is without merit.
[104] I agree with the submissions on behalf of the Director that the decision to issue the REA was reasonable in that:
(a) The Director applied the relevant cultural heritage framework in the REA Regulation, with reference to the OHA where incorporated in making the decision.
(b) The Director relied on advice from MTCS, whose heritage planners carefully assessed the HARs and considered other available information, including the applicants’ concerns. MTCS came to a different conclusion on the requirements for cultural heritage protection based on the scope of the REA Regulation and provided that advice to the Director.
(c) The Director considered this advice when weighing the factors relevant to the public interest determination he was required to make.
(d) Further, the requirements of the REA Regulation were followed throughout the decision-making process.
[105] The legislature has established its priorities as indicated in the above excerpt from the MTCS briefing note at para. 5 of these reasons, the essence of which was acknowledged by the Court of Appeal in Sumac.[^18] Like the municipal concerns in Sumac, preservation of cultural heritage resources is an aspect of the legislated framework for REA approvals, but it is not the priority. The essence of the applicants’ criticism is that the preservation of cultural heritage resources has not been made the priority that they desire. Their complaint is with the legislature.
[106] In my view, the Director’s decision to issue the REA is a reasonable outcome given the priorities of the Green Energy initiative and the statutory framework for decision-making in this area, namely the REA Regulation. The decision is within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The process within which the decision was made is justified, transparent and intelligible.
Was the Director’s decision to issue the REA made in a procedurally fair manner?
[107] The applicants took the position that the decision to issue the REA was contrary to the requirements of natural justice and procedural fairness. The applicants argued that the court need not engage in a standard of review analysis; rather, the approach is to determine whether a duty of fairness exists in the context of this case and, if so, whether the duty of fairness was met in the circumstances.[^19] The respondents suggested that the REA Regulation forms a procedural code that cannot be supplemented by an implied common law duty of fairness.[^20]
[108] The applicants relied on the factors in Baker v. Canada (Minister of Citizenship and Immigration).[^21] The applicants asserted that they were owed a high level of procedural fairness and participatory rights in the REA application and approval decision-making process and that the Ministries breached that duty of procedural fairness. The Baker factors are as follows:
(a) the nature of the decision being made and the process followed in making it;
(b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(c) the importance of the decision to the individuals affected;
(d) the legitimate expectations of the persons challenging the decision; and
(e) the choices of procedure made by the agency, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
[109] Relying on Preserve Mapleton, it would not be appropriate to use the common law duty of fairness to add further requirements to enhance the participation of members of the public beyond what is established in the REA Regulation.[^22] The REA Regulation sets out a comprehensive set of requirements that a proponent must meet before a project may be eligible for approval. It includes provisions for public notice, mandatory public meetings, and disclosure of the various reports that make up the REA application in advance of the second public meeting. These form a procedural code that provides for the hallmarks of procedural fairness.
[110] I agree with the submission on behalf of the Director that there has been more than sufficient opportunity for the public, in general, and the applicants, in particular, to provide comments during the REA decision-making process. The other procedural steps the applicants seek, such as expanded disclosure during the decision-making process and more of an opportunity to be heard, go beyond the model of decision-making in the REA Regulation and get into the realm of a higher-level of procedural participation than that to which they would be entitled even on an analysis of the Baker factors.
[111] In terms of the Baker factors, the decision is closer to legislative decision-making in that it engages broad policy questions about energy, the environment, natural heritage, and cultural heritage, among others. The duty of procedural fairness relates to the process by which decisions are made, not the substantive decision.
[112] As mentioned above, the statutory scheme, specifically the REA Regulation, sets out a comprehensive procedural code for decision-making in this area.
[113] While the decision is personally important to the applicants, it does not relate to their fundamental rights, their ability to practice a profession, or their citizenship.
[114] With respect to the fourth Baker factor – namely, the scope of “legitimate expectations of the persons challenging the decision” – I agree with the respondents that none were created here. A legitimate expectation arises where there are clear, unambiguous and unqualified representations or established practices upon which the applicants relied.[^23] This was not the case on the facts of this dispute.
[115] The applicants’ expectations do not correspond to the statutory framework, nor do they reflect what is required in terms of procedural fairness in this context. The Ministries did not do anything to create an expectation of procedures beyond what was required in the REA Regulation and related legislation.
[116] As the Director submitted, the applicants are seeking a different model of decision-making than the one created by the REA Regulation, one which would afford them an even higher level of participation. In my view, the expectations that the applicants formed over the iterative REA process that unfolded from the pre-submission stage to the decision stage are not legitimate.
[117] In terms of the fifth Baker factor, deference is owed to the Director who is better positioned than this court to render a decision in this matter.
[118] I am not persuaded that the Director failed to meet the duty of procedural fairness.
Other Issues
[119] For the first time in their revised factum, the applicants raised three issues related to the following topics: (1) the duty to give reasons; (2) the respondent Ministries’ claim to solicitor-client privilege over emails and notes of meetings involving legal counsel that informed many of the refusals listed at Schedule I to the applicants’ factum; and (3) the Director made a decision when he did not hear all of the evidence. I will comment only on the issue of reasons.
[120] The Director took the position that there is no requirement in the statutory regime, nor a duty at common law, to provide reasons in these circumstances.[^24] Alternatively, this court has determined that if a duty did exist to provide reasons for an REA, the Decision Document fulfills that duty; and if the Decision Document did not suffice, the extensive record demonstrates a reasonable basis upon which the REA was granted. [^25] I agree with each of those submissions.
ORDER TO GO AS FOLLOWS:
[121] The application is dismissed.
[122] Counsel shall make written submissions as to costs on the following timetable:
(a) by July 14, 2017, for each of the respondents; and
(b) by August 4, 2017, for the applicants.
[123] Volumes 19 and 20 of the applicants’ amended record are not admissible in this proceeding.
[124] On consent, the title of proceedings is amended to identify the respondents as follows:
wpd Canada Corporation, wpd White Pines Wind Incorporated, Director, Ministry of the Environment and Climate Change
Kiteley J.
I agree _______________________________
Lederer J.
I agree _______________________________
Matheson J.
Released: June 29, 2017
Schedule A: Grounds of Relief Sought by the Applicants
The applicants made an application for the following:
(a) An Order setting aside a certain Renewable Energy Approval issued to the respondent wpd White Pines Wind Incorporated on July 16, 2015 (“REA”) in respect of its White Pines wind energy project (“Project”);
(b) An Order that pending final disposition of this Application: i) no step pursuant to the REA be taken by the wpd respondent corporations without an order of this Court or the agreement of the parties; ii) the wpd respondents’ appeal of the REA to the Environmental Review Tribunal be stayed; and iii) an Order for directions with respect to the hearing of the cultural heritage aspects of any appeals to the said Tribunal arising from the REA;
(c) An Order that the respondent corporations’ interconnection line heritage impact assessment and the October 2013 main heritage impact assessment be set aside for failure to comply with the requirements of Regulation 359/09, “Renewable Energy Approvals under Part V.0.I. of the Act”, under the Environmental Protection Act (“Regulation 359”);
(d) An Order that the wpd respondent corporations, after appropriate consultation with the Applicants and other affected parties including the local municipality, prepare and submit to the respondents Ministry of the Environment and Climate Change and Ministry of Tourism, Culture and Sport and at the same time to the Applicants a comprehensive revised and peer reviewed heritage impact assessment for the Project;
(e) An Order that such revised heritage impact assessment be made public immediately upon submission to the respondent Ministries for a minimum 60 day comment period and include a properly constituted public meeting;
(f) An Order that the respondent Ministry of the Environment and Climate Change forthwith post to the Ontario Environmental Registry, or otherwise make them publicly available, all cultural heritage related comments submitted to such registry during the period March 10, 2014 to May 11, 2014;
(g) Alternatively, an Order removing Turbines T01 through T06, T08, T09, T10, T15, T17, T29, WTG7 and WTG11 from the Project as approved;
(h) In the alternative to (g), an Order that the location of the said turbines be changed so as to be in compliance with the legal requirements for the protection of cultural heritage resources and to address the cultural heritage concerns of the Applicants;
(i) An Order that the respondents forthwith produce to the Applicants complete draft and final versions of: i) all documents, minutes of meetings, email and other correspondence (internal and external) and comment letters for/from the Ministries of Tourism, Culture and Sport, Environment and Climate Change, and Natural Resources, with respect to all aspects of the heritage impact assessment and reporting by Stantec Consulting or any other consultant for, and the review of such reporting by any ministry staff related to the Project, including without limitation for the technical review stage and thereafter and to date; ii) all such heritage impact information in relation to any renewable energy application filed by the wpd respondent corporations for the Project; iii) all Project documents, projections, analysis, minutes of meetings, email and other correspondence (internal and external) with respect to the economic viability of the Project; and iv) all documents, projections, analysis, minutes of meetings, email and other correspondence (internal and external) with respect to any constraints or limitations on the relocation or elimination of turbines from the Project and including without limitation the consideration of alternative turbine locations outside the Project Area;
(j) Such further and other relief as counsel may advise and this Honourable Court deem just.
CITATION: Driver et al. v. wpd Canada Corporation et al., 2017 ONSC 3824
DIVISIONAL COURT FILE NO.: 439/15
DATE: 20170629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, LEDERER AND MATHESON JJ.
BETWEEN:
ELIZABETH DRIVER AND EDWIN ROWSE
Applicants
- and -
wpd CANADA CORPORATION, wpd WHITE PINES WIND INCORPORATED, MINISTER OF THE ENVIRONMENT AND CLIMATE CHANGE, MINISTER OF TOURISM, CULTURE AND SPORT AND ENVIRONMENTAL REVIEW TRIBUNAL
Respondents
REASONS FOR JUDGMENT
Released: June 29, 2017
[^1]: wpd Canada Corporation is affiliated with wpd White Pines Wind Incorporated. The REA was issued to wpd White Pines Wind Incorporated.
[^2]: R.S.O. 1990, c. O.18.
[^3]: The parties agreed that MTCS and the Environmental Review Tribunal (“ERT”) are not necessary parties to this proceeding and should be removed from the title of proceedings. The parties also agreed that the style of cause should be amended to read the Director, not the Minister, of MOECC. References to the “Director” throughout these reasons refer to the Director, MOECC, which is the remaining Ministry respondent based on the order at para. 124 of these reasons, although MTCS and MOECC filed materials together.
[^4]: S.O. 2009, c. 12 – Bill 150.
[^5]: wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City), 2016 ONCA 496, 132 O.R. (3d) 529, at para. 62.
[^6]: R.S.O. 1990, c. E.19, s. 47.5.
[^7]: Except where otherwise noted, all references to the REA Regulation refer to the current version. The pre-2012 REA Regulation applies to the wind farm portion of the Project, while the amended version of the REA Regulation applies to the Interconnection Line. Although the 2012 REA Regulation contains minor amendments that are relevant, the overall scheme remains the same.
[^8]: Association for the Protection of Amherst Island v. Environmental Approvals, 2014 ONSC 4574, at para. 21
[^9]: The delay in rendering a decision precipitated an Application for Judicial Review by the proponent in May 2015.
[^10]: 2017 25365 (Ont. E.R.T.).
[^11]: R.S.O. 1990, c. P.13, s. 62.0.2(1)1.
[^12]: REA Regulation, s. 23(1)3.
[^13]: 2012 ONSC 2115, 293 O.A.C. 165 (Div. Ct.). See also Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2015 ONCA 269, at paras. 39-44; and Association for the Protection of Amherst Island v. Windlectric, 2017 ONSC 1012 (Div. Ct.), at paras. 9-11.
[^14]: wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City), 2016 ONCA 496, 132 O.R. (3d) 529, at para. 62.
[^15]: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22.
[^16]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-49.
[^17]: Dunsmuir, at para. 47.
[^18]: Sumac, at para. 62.
[^19]: Benson v. Vandersluis, 2015 ONSC 7344, 344 O.A.C. 80 (Div. Ct.), at para. 22.
[^20]: Preserve Mapleton Inc., at para. 45.
[^21]: 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27.
[^22]: Preserve Mapleton Inc., at para. 45.
[^23]: See for example, Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131; Mavi v. Canada (Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504; and Amalorpavanathan v. Ontario (Minister of Health and Long-term Care), 2013 ONSC 5415, 313 O.A.C. 29 (Div. Ct.), at paras. 8-9.
[^24]: Elementary Teachers’ Federation of Ontario v. Ontario (Minister of Labour) (2009), 247 O.A.C. 107 (Div. Ct.), at paras. 34-37.
[^25]: Preserve Mapleton Inc., at paras. 35-36.