MNRF and OEB, 2018 ONSC 237

DIVISIONAL COURT FILE NO.: 15-2162

DATE: 2018/01/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CCSAGE Naturally Green

Applicant

– and –

Director, Sec. 47.5 Environmental Protection Act and Minister of Natural Resources and Forestry, Ontario Energy Board and wpd White Pines Wind Incorporated

Respondents

Alan Whiteley, Counsel for the Applicant

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

Philip Tunley, Counsel for the Respondent the Ontario Energy Board

Jameel Baasit and Jesse Long, Counsel for the Respondent wpd White Pines Wind Incorporated

HEARD: June 14 and 15, 2017 in Ottawa

REASONS FOR JUDGMENT

Labrosse, J.

Overview

[1] The Applicant, County Coalition for Safe and Appropriate Green Energy Naturally Green (“CCSAGE”), moves for the following relief:

(a) a declaration that the issues raised in this proceeding are justiciable;

(b) a declaration that the Applicant has standing to prosecute this proceeding as a public interest litigant;

(c) a protective costs order; and,

(d) an order directing the Respondents to deliver further and better records of the proceedings leading to the statutory decisions to be reviewed.

[2] The Respondent, the Ontario Energy Board (“OEB”), moves for the following relief:

(a) an order quashing the Application for Judicial Review as it relates to the March 19, 2015 decision of the OEB.

[3] The present motions form part of a series of case management motions which were assigned to me as case management judge.

[4] In its Notice of Application for Judicial Review, the Applicant 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, R.S.O. 1990, c. E.19 (“EPA”), to issue a Renewable Energy Approval to wpd White Pines to build White Pines (the “Director’s decision”);

(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, 2007, S.O. 2007, c. 6 (“ESA”), in respect of activities related to White Pines (the “Minister’s decision”); and

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

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

[6] Following the argument on these motions, the Divisional Court released its decision in Driver et al. v. wpd Canada Corporation et al., 2017 ONSC 3824. All parties were invited to make written submissions on the applicability of this decision which relates to this same renewable energy approval. I have considered each of the submissions received. Some of the submissions relate to the applicability of Driver to the substantive issues raised in this Application. I am of the view that in the context of these motions, Driver has marginal precedential value as it relates specifically to the issue of cultural heritage. This Application is much broader in the relief being sought and as such, the substantive issues dealt with in Driver are of limited assistance. For the purposes of these motions, I am of the view that Driver is of limited applicability and is restricted to the specific relief sought in the motions currently before the Court and not the substantive issues which form part of the Notice of Application for Judicial Review.

[7] For the reasons which follow, I deny each of the Applicant’s requests. I am of the view that it would be premature to make a finding of justiciability or public interest standing without having a full evidentiary record. There is a risk of inconsistent decisions should the Respondents bring a motion to quash once the evidentiary record is complete. Furthermore, I deny the Applicant’s request for a protective costs order and I deny the request for an order directing the Respondents to deliver further and better records of the proceedings leading to the statutory decisions to be reviewed.

[8] Finally, as for the OEB’s request to quash the Application for Judicial Review as it relates to the OEB decision, for the reasons stated herein, that request is granted.

Background Facts

[9] The Applicant, CCSAGE, was formed as an unincorporated entity in 2009 at the time the Green Energy Act, 2009, S.O. 2009, c. 12, Sched. A (“GEA”), was first enacted. CCSAGE was then incorporated on March 20, 2014 as a not-for-profit corporation. It has 159 members, most of whom are residents of Prince Edward County. CCSAGE’s Articles of Incorporation state that its purpose is to “promote the design, development, construction and utilization of sources of energy that are safe and appropriate to local conditions and to oppose those that are not, in both instances by written and oral means, widely interpreted”. Thus, CCSAGE claims to have a particular interest in the construction of energy projects and their impact on the environment.

[10] The Respondent, wpd White Pines Wind Incorporated (“wpd White Pines”), has been involved in three impugned decisions.

[11] First, wpd White Pines applied for and was granted a Renewable Energy Approval (“REA”) on July 16, 2015 under s. 47.5 of the EPA by the Respondent, the Director of the Ministry of Environment and Climate Change (the “Director”). The REA granted wpd White Pines the authorization to construct and operate a Class 4 wind facility consisting of 27 wind turbines and related infrastructure, to be located in Prince Edward County.

[12] In granting the REA, the Director refused to allow wpd White Pines to build two additional turbines based on impacts to cultural heritage.

[13] Second, on September 8, 2015, the Minister of Natural Resources issued its authorizations under the ESA.

[14] Third, on March 19, 2015, the OEB authorized wpd White Pines to connect to the existing power grid, provided that it received all other required approvals.

[15] The wpd White Pines REA that was granted by the Director in July 2015 is also the subject of an application for judicial review and of four appeals commenced at the Environmental Review Tribunal (“ERT”). That judicial review application was recently dismissed by the Divisional Court in Driver. The Applicant has provided a copy of a Motion for Leave to Appeal in Driver which suggests that the applicants in that matter are seeking to appeal the Driver decision to the Court of Appeal.

[16] Of the four appeals to the ERT, only two proceeded to a hearing. On February 26, 2016, the ERT issued its decision which concluded that proceeding with the project as approved would cause serious and irreversible harm to the Little Brown Bat and to Blanding’s Turtle. There were no findings of harm to human health. The appeals then proceeded to a hearing on the appropriate remedy and the ERT removed 18 of the 27 turbines, and included a requirement for certain mitigation measures. As a result of these appeals, the REA currently grants the authorization to construct and operate a Class 4 wind facility consisting of 9 wind turbines and related infrastructure. The parties have advised that there has been no appeal of the ERT’s decision to reduce the number of wind turbines.

[17] Although fully set out in its Notice of Application, the judicial review application by CCSAGE can be summarized as seeking the following:

(a) an order setting aside the three statutory decisions described above;

(b) declarations that the purported exercise of statutory powers was invalid or otherwise unauthorized and of no force and effect;

(c) declarations that several statutory and regulatory provisions related to permitting renewable energy projects infringe the Charter and contravene international conventions and treaties to which Canada is a party and by which Ontario is bound; and

(d) an order for the preparation and filing of records of proceedings by each of the statutory authorities.

[18] In support of its Application, CCSAGE relies on a number of grounds which can be summarized as follows:

(a) the issuance of the REA, Minister’s Permit and OEB Order have a deleterious impact on the plant and animal life, including human life, and the social, economic and cultural conditions that influence the life of human beings and the community of Prince Edward County;

(b) the exercise of statutory powers violated the principles of natural justice in that:

i. there is a reasonable apprehension of bias;

ii. the Applicant was not heard;

iii. the decisions were not based on factors that were required to be considered by the statutory authorities;

iv. the decisions were made for an improper purpose;

v. the decisions were so unreasonable as to be invalid;

vi. the Director improperly delegated aspects of his statutory power of decision; and

vii. the statutory authorities applied an inflexible policy without regard to the merits of the specific situation.

(c) the impugned statutory provisions treat residents of rural Ontario differently from residents of urban and suburban Ontario; and

(d) the Charter should be interpreted to provide protection against such development.

[19] The Applicant did not participate in any of the administrative processes which led to the impugned decisions. One of its principals wrote to the OEB requesting an oral hearing but otherwise, the Applicant did not seek intervenor status in any of those proceedings.

Motions before the Court

[20] I will now deal separately with each motion which is before the Court.

Motion #1: A declaration that the issues raised in this proceeding are justiciable

[21] Typically, in these types of proceedings, issues of justiciability and public interest standing are either dealt with as part of a motion to quash brought by a respondent in advance of the hearing or before the panel at the hearing of an application for judicial review. However, in this case, it is the Applicant CCSAGE that moves for declarations of justiciability and that it is a public interest litigant. After the Applicant filed its motions, the OEB moved to quash the Application as it relates to the OEB decision.

[22] The Applicant has not yet filed the evidence it intends to rely upon for the Application. At this stage, the Applicant has filed two affidavits in support of its motions and one affidavit in opposition to the OEB’s Motion to Quash. The Notice of Application states that it intends to file 10 affidavits in support of the Application. On cross-examination, the Applicant indicated an intention to file 25 affidavits in support of the Application. Although the affidavits in support of the Application have not been filed, some of the issues have been addressed in the affidavits filed for these motions. In oral argument, the Applicant said that some of the evidence will come from witnesses who reside in other parts of Ontario.

[23] The Court of Appeal for Ontario has stated that argument on substantive issues should proceed with a full factual background that forms the complete picture: see Law Society of Upper Canada v. Ernst & Young (2003), 65 O.R. (3d) 577 (C.A.), at para. 23. In the context of an application for judicial review, this surely means that the affidavits in support of the application should be filed before assessing the merits of the application.

[24] The issue of justiciability is more commonly dealt with in the context of a motion to strike and forms part of the analysis to determine public interest standing. Here, CCSAGE relies in large part on the pronouncements of the Supreme Court of Canada in Finlay v. Canada (Min. of Finance), [1986] 2 S.C.R. 607, at para. 16, where the Court found that an issue of standing can be dealt with as a preliminary matter as part of a motion to strike:

It depends on the nature of the issues raised and whether the court has sufficient material before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the nature of the interest asserted. In my opinion the present case is one in which the question of standing can be properly determined on a motion to strike. The nature of the respondent's interest in the substantive issues raised by his action is sufficiently clearly established by the allegations and contentions in the statement of claim and the statutory and contractual provisions relied on without the need of evidence or full argument on the merits.

[25] I appreciate that in certain circumstances, a court may deal with the issue of standing in the context of a motion to strike prior to a complete evidentiary record being filed. As stated by the Supreme Court of Canada, that can happen when “the court has sufficient material before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the nature of the interest asserted”: see Finlay, at para. 16.

[26] In Tanudjaja v. Canada (Attorney General), 2013 ONSC 5410, the concept of justiciability was identified to involve “the subject matter of the question, the manner of its presentation and the appropriateness of judicial adjudication in light of these factors” (para. 138, citing Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Scarborough: Carswell, 1999), at p. 4-5). The Respondents rely on this authority in advancing that the determination of justiciability cannot be made in a factual vacuum. It should be made on a full evidentiary record.

[27] It was also stated in Tanudjaja that it was reasonable for the Respondent to wait for the Applicants to complete the filing of the application before bringing a motion to strike. Only then can the Respondents have an appreciation of the case to meet: see Tanudjaja, at para. 9.

[28] I am concerned about making a declaration on the issue of justiciability in these circumstances. What if any of the Respondents wish to bring a motion to quash after the Applicant files all its affidavits in support of the Application? The evidentiary record is at the heart of an analysis for public interest standing and such an analysis could be much different once all of the Applicant’s evidence is filed. The Court runs the risk of conflicting decisions.

[29] The notion of justiciability flows from the three factors to consider with respect to public interest standing:

(a) whether the case raises a serious justiciable issue;

(b) whether the party bringing the action has a real stake or a genuine interest in its outcome; and

(c) whether the proposed suit is a reasonable and effective means to bring the case to court: see Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at para. 2.

[30] The Applicant also relies upon the direction of the Supreme Court of Canada in Downtown Eastside at para. 54 where the Court acknowledged that the challenge to the constitutionality of the prostitution laws was a substantial constitutional issue and an important one that was far from frivolous.

[31] In the present application, the Applicant relies on the fact that it has raised a Charter challenge to support that the Application is justiciable. However, it is not by the mere fact that a party makes a claim that legislation is invalid or unconstitutional that it raises a justiciable issue. There must be a substantial constitutional issue, it must be important and be far from frivolous. In order to make such an assessment, the evidentiary record will usually be an essential component of any Charter challenge.

[32] Accordingly, the issues of justiciability and public interest standing are intertwined and are influenced by the factual record that is before the Court. I therefore refuse to rule on the issue of justiciability at this stage of the proceedings for the following reasons:

(a) The evidence before the Court is that the Applicant intends to file numerous affidavits in support of the Application. These affidavits will likely provide the factual basis for the grounds for the Application. For example, the Applicant states that there is a reasonable apprehension of bias by the Director, the Minister and the OEB in the exercise of their statutory powers. How can this Court assess the justiciability of these claims without a full record of the evidence being relied upon by the Applicant? The answer is that it cannot and this applies to most of the grounds raised in support of the Application.

(b) The issue of justiciability requires the Court to assess the subject matter of the question, the manner that the application is presented and the appropriateness of judicial review in light of those factors. The affidavits relied upon in support of this motion do not provide the evidence which would properly form an evidentiary basis to support the matters pleaded in the Notice of Application. There are some limited references to specific issues in Exhibit 1 to the Affidavit of Anne Dumbrille dated May 24, 2016 but certainly not to the extent required to substantiate the broad issues pleaded in the Notice of Application.

(c) There are also issues of credibility raised by the Notice of Application and the Applicant’s affidavits filed to date which may be the subject of cross-examination. The OEB has raised some of these credibility issues in its Factum. A finding that a serious justiciable issue exists will require an assessment of the Applicant’s evidence in support of the matters pleaded in the Notice of Application.

[33] The record before me does not allow the Court to rule on the issue of justiciability as the Notice of Application and affidavits filed for these motions do not meet the requirement in Finlay that the Court have sufficient material before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the nature of the interest asserted by the Applicant.

[34] This motion is therefore dismissed subject to the Applicant’s right to bring it back upon completion of the evidentiary record.

Motion #2: A declaration that the Applicant has standing to prosecute this proceeding as a public interest litigant

[35] As the issue of justiciability forms part of the factors to be considered in assessing public interest standing, it would also be premature to rule on this issue prior to a complete application record being served and filed.

[36] The Applicant has indicated its intention to file up to 25 affidavits in support of its Application for Judicial Review. As previously stated, the factors to be considered for a determination of public interest standing require a determination of whether there is a serious justiciable issue raised, whether the Applicant has a real stake or a genuine interest in it and whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: see Downtown Eastside, at para. 2.

[37] The assessment of the Applicant’s genuine interest in the legislation can only occur upon completion of the application record. The Notice of Application makes reference to at least six specific affiants for whom their affidavits are “to be sworn” but they have yet to be served and filed. There is also reference to multiple affidavits from “current and past directors of the Applicant”. This evidence will surely be relevant to a determination of the Applicant’s genuine interest in the legislative provisions being challenged.

[38] On the third factor to consider, this Court has openly raised with the Applicant why this matter has been commenced as an Application for Judicial Review involving wpd White Pines rather than as a constitutional challenge involving only the Province of Ontario. The Applicants did not exercise their right to participate directly as parties to the proceedings which led to the impugned decisions, an issue dealt with more fully in the section dealing with the OEB’s motion to strike. There is important evidence which must be considered in order to assess if an application for judicial review involving wpd White Pines is a reasonable and effective way to bring the issue before the courts. Detailed evidence on this issue will be required as the Applicant’s affidavits seem to contradict each other on the reason that the Applicant did not participate more actively in the processes leading up to the impugned decisions: see para. 30 of the Affidavit of Mr. Manning, sworn October 5, 2016, and para. 7 of the Affidavit of Ms. Dumbrille, sworn May 24, 2016.

[39] For these reasons and those set out in relation to Motion #1, this motion is also deemed to be premature and in need of a full evidentiary record. This motion is also dismissed subject to the Applicant’s right to bring it back upon completion of the evidentiary record.

Motion #3: An order for a protective costs order in favour of the Applicant

[40] In support of its request, the Applicant has raised valid policy issues surrounding the notion that legitimate participation in the litigation process can be thwarted or discouraged by the threat of an adverse cost award. This is a legitimate concern which has been recognized by respected authors who are key figures in the judicial system: see Hon. Robert J. Sharpe, “Access to Charter Justice” (2013) 63 S.C.L.R. (2d) 3 at p. 6.

[41] Conversely, adverse costs awards are also an important incentive to discourage litigation which has no or limited merit. The increase in participation by self-represented parties at various levels of the justice system has changed the landscape of the issues relating to costs. The traditional costs rules are seen to foster three fundamental purposes: (1) to indemnify successful litigants; (2) to encourage settlements; and (3) to discourage claims with no merit or to sanction inappropriate behaviour: see Sharpe at p. 6.

[42] The balancing of these competing interests represents a significant challenge. It is clearly evident, given the nature of some claims, that special circumstances exist which warrant deviating away from the traditional costs rules: see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71. However, it is not all types of litigation which warrant a deviation away from traditional costs rules. These cases are clearly exceptions.

[43] It may be desirable to identify the type of litigation which would qualify as an exception to the traditional costs rules. In some provinces, it has been done by the legislature. An example of how the legislature can address the challenges posed by traditional costs rules is seen in Nova Scotia and Newfoundland and Labrador, where provisions for costs immunity exist. Unfortunately, I was not provided with any judicial considerations where such an order was made in advance of litigation.

[44] In the present circumstances, this Applicant is seeking an order that there shall be no costs to any party in this Application. Thus, even if the Applicant is successful, it will bear its own costs. The Applicant seeks such relief without having completed its evidentiary record and without this Court being able to anticipate how it will conduct itself in the course of this litigation. The discretion to deal with these factors would normally be left in the hands of the panel hearing the application for judicial review.

[45] The Supreme Court of Canada has ordered the payment of advance costs in special circumstances where the public interest litigant would otherwise be unable to participate in the litigation: see B.C. v. Okanagan Indian Band, at para. 40. The Supreme Court of Canada set out the following conditions:

(a) the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial;

(b) the claim is prima facie meritorious; and

(c) the issues are of public importance and have not been resolved in previous cases.

[46] These conditions were further refined in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, at paras. 39 to 44, as follows:

(a) The injustice that would arise if the application is not granted must relate to both the individual applicant and to the public. This does not mean, however, that every case of interest to the public will satisfy the test.

(b) An advance costs award must be an exceptional measure. The applicant must be able to demonstrate attempts to obtain private funding and, if not impecunious, must commit to making a contribution. The court should also consider different kinds of costs mechanisms.

(c) There would be no injustice if the issue could be settled or the public interest satisfied without an advance costs award.

(d) If an advance costs order is made, the litigant must relinquish some control over how the litigation proceeds.

[47] While the request here is for a protective costs order as opposed to advanced costs, Ontario courts have found that the legal criteria for advanced costs are useful guidelines to be considered with respect to a protective costs order: see Farlow v. Hospital for Sick Children (2009), 100 O.R. (3d) 213 (S.C.), and Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316, at para. 154. I agree with the approach taken in Lockridge that the three considerations articulated in Farlow would apply to a request for a protective costs order:

(a) whether the applicant’s financial circumstances are such that the applicant would probably not proceed absent such an order;

(b) the extent to which the public has an interest in the issues being litigated; and

(c) the potential impact of such an award on the other parties.

Applicant’s Financial Circumstances

[48] The affidavit evidence in support of the request for a protective costs order provides very little information on efforts made to raise funds from its membership. It simply makes the bald statement that fundraising is not available as a result of “the drain on the community of the foregoing legal and administrative proceedings from 2009 onward, and the anticipated appeals that will no doubt follow any ERT decision”. There is limited evidence that efforts have been made to fundraise amongst the 159 members of the Applicant or from the community at large. I conclude from that evidence that there have not been significant efforts made to fundraise for this matter.

[49] Furthermore, the affiants have each confirmed that they are unable to withstand any adverse cost award made against them personally. As such, the Applicant states that if the Applicant cannot secure immunity from any adverse costs award, the issues not within the jurisdiction of the ERT may never be considered by a court.

[50] While the Applicant’s affiants have stated that they are unable to take the risk of an adverse cost award against them personally, this assumes that there would be grounds for such an award. The Applicant is a not-for-profit corporation. There is no evidence that there would be grounds to pierce the corporate veil if the Application is not successful and there was an adverse cost ruling against the Applicant.

[51] As previously stated, the Applicant has 159 members and the evidence is insufficient for me to conclude that it has made significant attempts to raise funds for this litigation amongst its members or the community. The evidence is that community funds have been used to oppose previous proceedings involving a similar application for an REA and that the community resources have dried up except for an amount collected to fund disbursements. I am left to conclude that the members of the Applicant and the community are choosing not to fund this litigation.

[52] In addition, the ability of an applicant to pursue an application for judicial review is impacted by the nature of the proceeding. Here, the Applicant has chosen to proceed with a very broad-based application which raises a multiplicity of issues and Charter issues. The costs associated with this Application will be greatly affected by the issues raised and the manner that the Applicant has chosen to proceed. The nature of the proceeding will be further discussed below.

Public Interest

[53] As set out in Lockridge, the issues of public interest, public importance and prima facie merit are relevant to the overall question of whether an injustice would result if the case could not be litigated.

[54] The absence of a commitment to this issue, from the membership of the Applicant and the community as a whole, leaves me to question the public interest in this matter. The Applicant did not formally participate in the approval process for the three impugned decisions although other members of the community did. This leaves the Court to question the Applicant’s commitment to the regulatory process which led to the impugned decisions.

[55] The issue in this judicial review involves the approval of 9 wind turbines. Initially, the approval was for 27 wind turbines. The evidence before the Court does not allow me to conclude that there is a groundswell of support in the community and that this Application is of public importance. However, this may become more evident once the evidentiary record is complete.

[56] It must be noted that the GEA has been in effect since 2009 and there has been ample opportunity for the residents of rural Ontario to challenge this legislative scheme. No such challenge was made until an application was brought which had the potential to impact the residents of Prince Edward County. As such, I am of the view that the issue of public importance for the rural residents of the province in Ontario is in doubt. While I am mindful that the Applicant intends to file a number of affidavits from affected persons, this evidence is not before me and I am limited by the evidence of the two affiants who have provided evidence.

[57] The issues in this case do not in my view have general public importance. I accept that there is public interest, if not simply by the fact that there was public opposition in the process leading up to the impugned decisions and the fact that the Applicant has membership totalling 159 members who would presumably support this Application. However, this does not translate to public importance. It appears that the GEA and REA process have taken their place in this province without significant opposition throughout rural Ontario. I am left to infer that this is a local issue in Prince Edward County and that it is not of general importance.

[58] Finally, the Applicant relies on the challenge of the legislative scheme in the context of s. 15 of the Charter. Discrimination of rural vs. urban residence is not in my view prima facie meritorious. It is clearly not an enumerated ground under s. 15 of the Charter and the Applicant has not persuaded me that the Charter issues raised have prima facie merit. In addition, the various grounds relied upon in support of the Application are not supported by evidence and thus do not meet the criteria of having prima facie merit. While the issues of prima facie merit may have become more evident on a full evidentiary record, I am left to evaluate the evidence that has been presented at this stage.

Impact on Other Parties

[59] As I have previously stated, the Applicant has chosen to proceed by way of judicial review application rather than by way of a constitutional challenge. It has thus chosen to affect the private rights of wpd White Pines who purports to be operating within the confines of the GEA’s legislative scheme which has been in place in the Province of Ontario since 2009. Furthermore, members of this community have previously challenged applications under that same legislative scheme. They would have been aware of the legislative scheme and did not have to await a subsequent application before commencing this constitutional challenge.

[60] Given the broad-based nature of the Application and the relief sought, wpd White Pines will be required to defend this Application although no relief is sought directly from it. It had a proper right to seek Intervenor status and it will have a right to seek costs if successful. This issue will properly fall in the discretion of the panel hearing the Application and will be dealt with in the usual manner at the end of the proceeding.

[61] I therefore conclude that the manner in which the Applicant has chosen to bring forward its issues, when other options would have been available to it, does not favour an order for protective costs. It could have proceeded by constitutional challenge naming only the Province of Ontario as a respondent and this would have reduced its exposure for costs and simplified the proceedings. It could then have participated in the regulatory process as others have done. This leads me to conclude that it would be unfair to foreclose wpd White Pine’s right to claim costs at the conclusion of this litigation.

Conclusion

[62] In the end, the view expressed by Harvison Young J. in Lockridge at para. 176 fully summarizes my opinion on the exceptional request for a protective costs award. I thereby conclude that:

(a) I am not satisfied that the Applicant has made significant attempts to raise funds for this litigation from its membership or from the community as a whole. Furthermore, the community seems to have chosen to focus its resources on other challenges to the REA. The membership and the community seem to have chosen not to fund this litigation;

(b) the Applicants chose to not fully participate in the proceedings which led to the impugned decisions, participation which may have allowed for a simplification of the issues. As that process played itself out, the impact of the project has been dramatically changed as a result of the reduction to the permitted wind turbines from 27 to 9. This confirms that the process before the ERT had addressed some of the issues raised by the Applicant. I am left with doubt on the public interest, on the public importance of this Application and on the prima facie merit in the Application; and

(c) the Applicants have chosen to involve wpd White Pines in its constitutional challenge to the legislative scheme in the GEA. This was a choice which could have been avoided. In these proceedings, the Respondent wpd White Pines has a right to seek costs if it is successful and the discretion to award costs, if any, should be properly left to the panel hearing the application who will be in the best position to assess the issue of costs.

[63] I am therefore unable to conclude that an injustice would result if this case could not be litigated such that the exceptional relief of a protective costs order is warranted. Consequently, the relief requested is dismissed.

Motion #4: An order directing the Respondents to deliver further and better records of the proceedings leading to the statutory decisions to be reviewed

[64] The Applicant moves for an order directing the Respondents to deliver further and better records of the proceedings which led to the impugned decisions. It relies on the provisions of s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”), and authorities which support that an applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal.

[65] The Applicant further relies on s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which sets out the obligations of a tribunal to compile a record of any proceeding in which a hearing has been held.

[66] The Respondents state that the Applicant has no right to obtain a Record of Proceedings as the impugned decisions do not decide or prescribe the legal rights, powers, privileges, immunities, duties or liabilities of the Applicant and that s. 10 of the JRPA is not engaged. Furthermore, even if the Applicants were entitled to receive a Record of Proceedings, it would not include all the documents and information listed in para. 1(E) of the Notice of Application for Judicial Review.

[67] I agree with the Respondents that s. 10 of the JRPA is not engaged by this Application for Judicial Review, as the criteria set out in that section are not met. The impugned decisions were not the exercise of a statutory power of decision vis-à-vis the Applicant: see Batacharya v. College of Midwives of Ontario, 2012 ONSC 1072, and Re. Medhurst and Medhurst et al. (1984), 45 O.R. (2d) 575 (H.C.).

[68] However, the issue is not resolved by a refusal to require the filing of a Record of Proceedings pursuant to s. 10 of the JRPA. Unless the proceedings are otherwise terminated, this remains a valid application to which the provisions of Rule 68 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), applies and the panel hearing the application must still have sufficient information to allow it to make a decision. As such, under Rule 68.04(1)(a) the Applicant has obligations to file a “record of the proceeding before the court or tribunal whose decision is to be reviewed” containing sufficient information to allow for meaningful judicial review of the impugned decisions. Depending on the circumstances of the decisions, the nature of the record may vary. Given the nature of the decisions of the Director and the Minister, it would be expected for the Respondents to assist in providing the necessary documentation to allow for the filing of the record of the proceedings before the decision-maker. In the present circumstances, this seems to have been done as Counsel for the Director and the Minister have filed Records of Decision for both the decision of the Minister and the decision of the Director.

[69] It would continue to be open to the Applicant in these proceedings to seek further specific records to ensure that the intention of Rule 68 is met and that the panel hearing the Application has a full record of the proceedings before it. However, I can say without hesitation that I cannot imagine a circumstance where the documentary productions requested at para. 1(E) of the Notice of Application could be required. The information requested goes well beyond that which is contemplated by Rule 68 of the Rules in order to conduct meaningful judicial review. The request for records amounts to a fishing expedition. Judicial review does not afford a party with a right to documentary discovery.

[70] As part of a responding record, Ontario has produced records containing the documents that were before each decision-maker involved in the impugned decisions. In the absence of a motion to produce specific documents or information that may be required in the case of a particular application, I believe that the approach taken by the Director and the Minister is reasonable. Nothing would prevent the Applicant from bringing a motion for the production of a particular record which may be required to meet the requirements of Rule 68.

[71] With respect to the OEB’s decision, the Applicant did not challenge the position of the OEB that the OEB’s entre record of proceedings (157 documents) was at all material times and is still available to the public on its website. Otherwise, the Applicant has not demonstrated that any other productions are required from the OEB.

[72] Consequently, while this Applicant retains the right to request a particular record or type of record which is particularly relevant the subject application, the request for a record of proceedings is denied. While I am unable to conclude that the documents provided by Ontario in the Record of Decision of the Minister of Natural Resources and Forestry and in the Record of Decision of the Director, s.47.5, Environmental Protection Act or on the OEB website comply with Rule 68, each of the Director, the Minster and the OEB say they do and it is up to the Applicant to raise the need for specific documents to comply with Rule 68.

Motion #5: An order quashing the Application for Judicial Review as it relates to the March 19, 2015 decision of the OEB

[73] The last of the pre-hearing motions is the motion by the Ontario Energy Board to quash the Application for Judicial Review as it relates to the March 19, 2015 decision of the OEB. In that decision, the OEB authorized the proponent, wpd White Pines, to connect to the existing power grid, provided that it obtained all other required approvals.

[74] Counsel for the OEB states that the practical effect of the OEB decision is to render the OEB’s approval to connect to the power grid conditional on the Director’s approval and the Minster’s approval of the project.

[75] The grounds raised by the OEB in support of its Motion to Quash are summarized as follows:

(a) the Applicant does not have the required standing to challenge the OEB’s decision;

(b) an appeal under s. 33 of the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B (“OEBA”), is an adequate alternate remedy;

(c) the Applicant unreasonably delayed filing the Application for Judicial Review with respect to the OEB’s decision;

(d) the matters the Applicant seeks to raise were not before the OEB; and

(e) the environmental matters the Applicant seeks to raise are not within the OEB’s jurisdiction.

Standing

[76] As previously set out in dealing with the Applicant’s motion for a declaration of justiciability and public interest standing, the analysis surrounding the Applicant’s standing to pursue this Application with respect to the OEB’s decision involves a consideration of the factors set out in Downtown Eastside, at para. 2:

(a) whether there is a serious justiciable issue raised;

(b) whether the applicant has a real stake or a genuine interest in the outcome of the case; and

(c) whether in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.

[77] I have already concluded that it would not be proper to proceed with an analysis of justiciability and genuine interest based on an incomplete record. While this would preclude the OEB from having the Court rule on these issues, I maintain my view that it would be premature to consider the issues of justiciability and genuine interest with the knowledge that the Applicant anticipates filing a considerable amount of evidence in support of its Application for judicial review. This also applies in the context of the OEB’s Motion to Quash.

Reasonable and Effective Way to Proceed

[78] While it would be premature to rule on standing at this point, I feel that it is appropriate to comment on the third factor in determining standing. To consider if judicial review is a reasonable and effective way to proceed in challenging the OEB decision, an understanding of the scope of that decision and its conditional nature is required.

[79] When considering the scope, it is important to understand that the practical effect of the OEB decision is to allow for the construction of an underground electricity transmission line and associated facilities to connect the wind farm project to the Ontario power grid. The OEB’s decision is conditional on the wind farm project receiving all necessary approvals, including those of the Respondent Director and Minister.

[80] Furthermore, under the OEBA, the consideration of this type of application is decided strictly on an assessment of what is in the public interest, having only regard to (s. 96(2)):

1. the interests of consumers with respect to prices and the reliability and quality of electricity service; and,

2. where applicable and in a manner consistent with the policies of the Government of Ontario, the promotion of the use of renewable energy sources.

[81] When considering the issues raised in the Notice of Application and particularly the environmental and social issues raised such as harm to specific species or impacts on property values, the limited consideration of public interest mandated by s. 96(2) of the OEBA puts in doubt if the proper forum has been chosen. If the Applicant is successful in staying either the Minister’s or the Director’s decision, the conditional OEB approval would be revoked. It is thus clear that the issues raised in the Notice of Application are more appropriately dealt within the Applicant’s challenge to the Director’s and Minister’s decisions and not by a judicial review application which seeks to stay the OEB decision.

[82] It should also be noted that by bringing this motion, the OEB has effectively indicated that it does not seek to participate in the Charter challenge to the provisions of various legislation including the OEBA and the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A (the “EA”). The Applicant does not need to challenge the OEB decision to proceed with its Charter challenge to those statutes.

[83] These reasons clearly point to the fact that proceeding against the other Respondents and not the OEB does not prejudice the Applicant and avoids a further level of required adjudication which is not relevant to the Notice of Application for Judicial Review. The application to stay the OEB decision is superfluous to issues raised in the Notice of Application for Judicial Review and the OEB need not be needlessly included in this litigation.

[84] However, in Downtown Eastside, the Supreme Court of Canada specifically noted that all three factors in the public interest standing test must be weighed cumulatively and not individually. It held:

20 My view is that the three elements identified in Borowski are interrelated factors that must be weighed in exercising judicial discretion to grant or deny standing. These factors, and especially the third one, should not be treated as hard and fast requirements or free-standing, independently operating tests. Rather, they should be assessed and weighed cumulatively, in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes.

45 A fair reading of the authorities from this Court demonstrates, in my view, that while this factor [the third factor] has often been expressed as a strict requirement, the Court has not done so consistently and in fact has not approached its application in a rigid fashion.

[85] My concern at this point is that it would be an error to quash the Application without assessing each of the three elements cumulatively. If it is too premature to assess justiciability and genuine interest at this point, the issue of standing should not be determined based on reasonable and effective means alone.

[86] In conclusion, it would be premature to come to a conclusion on the issue of standing until the Court is provided with a full evidentiary record to allow for the three elements that relate to standing to be assessed cumulatively.

Delay

[87] I am not persuaded that the delay in filing the Application for Judicial Review would warrant that the Application be quashed. On this issue, I do not fault the Applicants for having waited for the decisions of the Director and the Minister before commencing the Application for Judicial Review. The conditional nature of the OEB decision warrants that I exercise my discretion in favour of the Applicant in these particular circumstances and that the Application not be quashed due to delay in commencing the Application.

Adequate Alternate Remedy and Matters not raised before the Board

[88] The following two issues raised by the OEB in support of its Motion to Quash are:

a. An appeal pursuant to s. 33 of the OEBA was an adequate alternate remedy; and,

b. The matters the Applicant seeks to raise were not before the Board.

These two issues have a certain amount of overlap and should be dealt with together.

[89] The OEB’s Notice of Application and Written Hearing published on October 9, 2013 indicated that applications to intervene in the hearing were to be received by the OEB within 10 days of that publication.

[90] The evidence in these proceedings confirms that as of December 13, 2013, the Applicant was aware of the OEB proceedings as its representative wrote to the OEB requesting an oral hearing instead of a written hearing. The Applicant took no further steps to request intervention after the initial 10-day period set out in the Notice of Application and Written Hearing.

[91] While the Applicant suggests that it was thus foreclosed from seeking Intervener status, the evidence shows that the OEB granted Intervener status to four parties on March 6, 2014. The OEB’s evidence is that if the Applicant still wanted full Intervener status despite passage of the deadline, it could have relied on Rule 22.05 of the OEB Rules of Practice and Procedure, which permits a person to apply for Intervener status after the time limit by filing and serving a notice of motion and a letter of intervention that complies with the Rules and includes reasons for the late application. I conclude that the Applicant failed to avail itself of this opportunity to participate in the OEB’s proceedings.

[92] Had the Applicant participated in the OEB proceedings, it could have advanced all the issues that are relevant to this statutory scheme. Section 19 of the OEBA permits the OEB to determine “all questions of fact and law”, an express grant of power that creates a presumption that the Board may determine constitutional matters in questions of law that arise from the impugned provisions: see Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, at paras. 39-42. Rule 36 of the OEB’s Rules of Practice and Procedure also clearly contemplates a party’s ability to raise constitutional questions before the Board.

[93] In addition, s. 33 of the OEBA would have allowed for an appeal to the Divisional Court of an order of the Board on a question of law, which could have included the constitutional challenge to s. 96 of the OEBA and any Charter challenge.

[94] As set out by the Federal Court of Appeal in Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 245, at para. 57, the general rule is that discretion to hear a question on judicial review will not be exercised in favour of an applicant where the issue could have been but was not raised before the administrative decision-maker.

[95] I appreciate the Applicant’s argument that by proceeding in the present fashion with one Application for Judicial Review of the three impugned decisions, it avoided a multiplicity of proceedings and saved the time and costs of participating in these various proceedings. However, the underlying reasons set out in Forest Ethics for having matters proceed before the administrative decision-maker are much more persuasive. To allow these types of challenges to regularly proceed by judicial review would result in circumventing the legislative scheme which has been put in place to give an administrative decision-maker the jurisdiction to determine all questions of fact and law: see s. 19 of the OEBA.

[96] In this matter, no arguments were made by the Applicant regarding the OEB’s ability to determine constitutional questions and the OEB’s submission on this point was not challenged. The Applicant did not attempt to rebut the presumption that the OEB had jurisdiction to determine any constitutional matters before it.

[97] However, before coming to a conclusion on these two issues, I also note that the adequate alternative remedy and the need for the issues to be argued before the administrative decision-maker are similar arguments to the third element of public interest standing, being the most reasonable and effective way to bring the matters before the courts. The two issues under consideration also relate to the manner in which the Applicant has proceeded and the choice of proceeding by judicial review as opposed to an appeal before the OEB or other proceeding.

[98] As previously stated, the Supreme Court of Canada in Downtown Eastside has stated that the three elements relating to standing should be considered and weighed cumulatively. Thus, it would be an error to quash the Application for Judicial Review solely on issues which relate to the choice of forum. I therefore conclude that it would be premature to do so at this point, prior to the full evidentiary record being completed and available for consideration.

Jurisdiction of the OEB

[99] Finally, I turn to the issue of the jurisdiction of the OEB. The OEB argues that the Applicant seeks to raise complex issues which are entirely within the jurisdiction of the Respondent Director and Minister.

[100] I agree with the principles set out in Pavao v. Ontario (Ministry of the Environment and Climate Change), 2016 ONSC 6040, where the Divisional Court refused to grant a stay of proceedings relating to an OEB order because the grounds for appeal were outside the jurisdiction of the OEB and there was thus no serious issue to be tried. In that case, the applicant sought to judicially review a decision relating to the connection of a transmission line and had filed submissions about the potential health risks, damage to the environment, and adverse impacts on property values relating to the modification of a transmission line route. The Divisional Court held that none of these issues were concerns that the OEB could consider pursuant to s. 96(2) of the OEBA.

[101] While Pavao involved a request for a stay and not judicial review, the analysis is relevant to the present situation where this Court must determine if it is plain and obvious that the Application for Judicial Review of the OEB decision will fail or it is beyond doubt that the Application will fail: see Unimac-United Management Corp. v. Metrolinx, 2016 ONSC 2032, at para. 8.

[102] It should be highlighted that the Notice circulated by the OEB to the public (Motion Record, Tab 2B) also clearly states that:

“The Board’s review will only address the three factors outlined above and will not address other factors, such as environmental, health, aesthetics or property value impacts.”

[103] A review of the Notice of Application for Judicial Review makes it clear that the focus of this Application is certainly not the OEB decision. The only references to the OEBA and the EA are within the paragraphs where the constitutionality of various statues is being challenged. There is no specific pleading made concerning the OEBA or the EA and that their provisions may have a deleterious impact on the plant and animal life, including human life, and the social, economic and cultural conditions that influence the life of human beings and the community of Prince Edward County: see para. 2A of the Notice of Application for Judicial Review.

[104] In addition, the evidence provided in support of the allegations of violations of the principles of natural justice in para. 2B of the Notice of Application for Judicial Review make no mention that any of such violations were committed by the OEB.

[105] In response to the OEB’s Motion to Quash, the Applicant filed affidavit evidence which attempts to rely on errors by the OEB in its interpretation of the evidence before the OEB and in the interpretation of s. 97 of the OEBA and the words “each landowner affected by the approved route”. The evidence in paras. 40-42 of the affidavit of Garth Manning are either questions of fact or matters which fall squarely under the jurisdiction of the OEB and could have formed part of an appeal under s. 33 of the OEBA by a party to that proceeding. None of the parties to the OEB proceeding have appealed the OEB decision claiming an error of law pursuant to s. 97 of the OEBA and particularly, the Intervener in question did not appeal. No reference to any of these issues is made in the Applicant’s Application for Judicial Review.

[106] It is clear that the issues raised in the Notice of Application for Judicial Review are centred on the environmental, social, economic and cultural impacts of the Director’s decision and the Minister’s decision. The focus is on the process followed by the Director and the Minister and on challenging the various statutory schemes amended by the GEA. While the limited jurisdiction of s. 96 of the OEBA forms part of those statutory schemes, it is only relevant as part of the overall constitutional challenge brought by the Applicant which is not affected by this decision.

[107] In Pavao, the Court was clear that the issues raised by that applicant were outside the OEB’s jurisdiction and therefore did not disclose a serious issue to be tried. This Applicant’s grounds for judicial review are very similar to those in Pavao and in my view it is plain and obvious that the judicial review application will fail vis à vis the OEB decision which deals solely with the interests of consumers with respect to prices and the reliability and quality of electricity service and the promotion of the use of renewable energy sources.

[108] Consequently, the OEB’s Motion to Quash is granted. In doing so, this decision should not be interpreted as having any impact on the Applicant’s constitutional challenge to the statutory regime created by the OEBA, the GEA and the EA or the Charter challenge made against those statutory regimes.

Conclusion

[109] As set out above, the motions for a determination of justiciability and public interest standing are dismissed with leave to any party who seeks to have such a determination made on a complete evidentiary record. The motion for a protective costs order is dismissed and the motion for the production of records of proceedings is also dismissed, subject to the Applicant’s right to seek compliance with Rule 68 of the Rules of Civil Procedure.

[110] The motion of the Ontario Energy Board to quash the Application insofar as it relates to the OEB decision is granted.

Costs

[111] If the parties are unable to agree as to the costs at these motions, a party seeking costs may file written submissions with the Court within 30 days of this decision, maximum 5 pages excluding attachments. Any party against whom costs are sought will have 30 days to respond, maximum 5 pages excluding attachments.

Justice Marc R. Labrosse

Released: 2018/01/09