CITATION: Alliance to Protect Prince Edward County v. The Ministry of the Environment and Climate Change, 2018 ONSC 4447
DIVISIONAL COURT FILE NO.: 248/18 DATE: 20180718
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
HARVISON YOUNG, PERELL and THORBURN JJ.
BETWEEN:
ALLIANCE TO PROTECT PRINCE EDWARD COUNTY
Applicant/Appellant
– and –
THE MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE and WPD WHITE PINES WIND INCORPORATED
Respondents
Eric K. Gillespie and Kathleen Coulter, for the Applicant/Appellant
Jon Bradbury, for the Respondent, The Ministry of the Environment and Climate Change
Patrick G. Duffy, for the Respondent, wpd White Pines Wind Incorporated
HEARD at Toronto: July 18, 2018
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J. (Orally)
[1] This is a motion to set aside an order made by Conway J. dated May 23, 2018. Justice Conway dismissed the Applicant’s motion to stay construction of a wind turbine project in Prince Edward County and granted the Respondent WPD’s cross motion to dismiss the Applicant’s application for judicial review.
[2] We see no error in her reasons or any failure to consider any evidence relevant to the issue before her which was whether or not a statutory power of decision was exercised by the Ministry.
[3] The Applicant now seeks an interim injunction in this proceeding to halt construction and activities that it alleges violate the REA (Renewal Energy Approval) that authorized the project.
[4] The central issue on this hearing is whether the Applicant has satisfied the court that the Minister exercised a statutory power of decision as reflected in its letter dated November 15, 2017.
[5] We are satisfied that the Ministry did not exercise a statutory power of decision. In the letter, the Ministry confirmed the results of its inquiries as to whether the work that had been underway in Blanding turtle habit was unavoidable. It also advised of its conclusion that the Respondent WPD had successfully established to the Ministry that the construction that was going on with respect to one turbine was unavoidable.
[6] Even if there was a decision made in November of 2017 as the Applicant claimed, it was not the exercise of a statutory power of decision that can be reviewed under the Judicial Review Procedures Act.
[7] Condition L1(3) of the REA does not require any further decision from the MOECC on whether construction is unavoidable. By contrast, G2 of the REA provides that construction shall not commence as follows. It states:
The company shall not commence construction of the facility until the site specific storm water management plan and erosion and settlement control plan for the facility has been approved in writing by the director.
[8] It is clear that the REA contemplated circumstances where approval would be required by the Ministry and places where it would not be required. We would also note that the REA is the result of a complex and detailed legislative approval process which hears from all interested parties.
[9] Moreover, Conway J. made no error in deciding that there was no exercise of a statutory power of statutory decision without reviewing the Stantec report because the issue she was deciding was whether there had been an exercise of a statutory power to make a decision and not the merits of the application.
[10] While we accept that the test for determining whether there is a serious issue to be tried sets a low bar RJR-MacDonald Inc. v. Canada (Attorney General) 1995 64 (SCC), [1995] 3 S.C.R. 199, we are not satisfied, for the above reasons, that there is a serious issue to be tried. As a result of our decision that there was no exercise of a statutory power of decision, it is not necessary to address the other issues raised by the Applicant.
[11] For these reasons, the Application is dismissed.
[12] As per the agreement between the parties, costs to the Respondent, WPD in the amount of $3000. No costs are payable to the MOECC.
[13] I have endorsed the Motion Record as follows: “For reasons delivered orally, the motion is dismissed with costs in the amount of $3,000 payable by the applicant to the respondent, WPD.”
HARVISON YOUNG J.
I agree
PERELL J.
I agree
THORBURN J.
Date of Reasons for Judgment: July 18, 2018
Date of Release: July 20, 2018
CITATION: Alliance to Protect Prince Edward County v. The Ministry of the Environment and Climate Change, 2018 ONSC 4447
DIVISIONAL COURT FILE NO.: 248/18 DATE: 20180718
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
HARVISON YOUNG, PERELL and THORBURN JJ.
BETWEEN:
ALLIANCE TO PROTECT PRINCE EDWARD COUNTY Applicant/Appellant
– and –
THE MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE and WPD WHITE PINES WIND INCORPORATED Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: July 18, 2018
Date of Release: July 20, 2018