MNRF and OEB, 2018 ONSC 4802
DIVISIONAL COURT FILE NO.: 15-2162
DATE: 2018/08/09
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: In writing
COSTS ENDORSEMENT
Labrosse, J.
Background
[1] Following the receipt of my Reasons for Judgment dated January 9, 2018, which dealt with various motions brought by the Applicant and following the previous motion for party status reported at 2016 ONSC 8147, both the Applicant and the Respondent wpd White Pines Wind Inc. (“wpd”) have presented requests for costs arising from those motions.
[2] The motions arise from an Application for Judicial Review brought by the Applicant seeking to challenge three administrative decisions related to a Class 4 wind energy project called “White Pines” which has been approved to be built in Prince Edward County. The Application also seeks to challenge the constitutionality of a number of statutory or regulatory provisions related to the approval process for wind energy projects.
[3] In its request for costs, the Applicant seeks payment of its costs on a full indemnity basis for the motion for party status (“Motion #1”) in the amount of $29,254.56 on the basis that on April 1, 2016, the Applicant offered to consent to wpd being added as an intervenor pursuant to Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”). The Applicant also seeks payment of its costs for the motion for protective costs and other relief sought (“Motion #2”) in the amount $41,841.22 due to wpd’s failure to adhere to the conditions imposed by the Court on its role as intervenor. In support of this position, the Applicant states that wpd failed to adhere to the conditions imposed on its role as an intervenor in both the cross-examinations of the Applicant’s witnesses conducted on May 4, 2017 and during the hearing of Motion #2.
[4] In wpd’s request for costs, it states that both motions were not necessary. The Applicant unnecessarily opposed Motion #1 and the various relief sought in Motion #2 was deemed premature by the Court given the absence of an evidentiary record. The costs being sought by wpd are on a partial indemnity basis. However, wpd argues that the Applicant acted as a vexatious litigant, that the issues were premature or unnecessary, that the Applicant’s conduct was questionable and that there was a lack of regard for judicial resources.
[5] No other request for costs was received from the other named respondents.
Analysis
[6] Our Court has confirmed that private landowners who challenge the issuance of renewable energy approvals are not pubic interest litigants pursuing public interest litigation, such that there should be no costs award in favour of the successful respondent (see Dixon v. Ontario (Director, Ministry of the Environment), 2015 ONSC 1358 at paras. 4-5.
[7] At the same time wpd was not a necessary party to these proceedings as the Director and the Ministry of Natural Resources and Forestry were properly tasked with responding. This Court recognized wpd’s role as an interested party under Rule 13, however their participation was voluntary.
[8] As raised with the Applicant during the motions, this Court questioned the decision to challenge these decisions along with the various constitutional challenges made in the context of this specific project. The statutory provisions at issue have been enacted for several years and could have been the subject of a separate constitutional challenge that did not have to involve the rights of wpd.
[9] Ultimately, the goal is for this Court to fix costs in an amount that is fair and reasonable in the circumstances: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA). Further, in exercising its discretion to award costs, the court “may consider” the factors set out in Rule 57.01(1) of the Rules.
[10] While the record before me does not allow for a conclusion that this is public interest litigation, there is some measure of public interest in the litigation. The costs sought by both parties are in my view excessive and beyond what our Court normally awards on judicial review and particularly at the stage of preliminary motions.
[11] In assessing the entitlement of costs, I conclude that the Applicant was the successful party on the motion for party status. It is apparent from the correspondence exchanged by the parties in April 2016 that the Applicant made an unconditional offer to consent to intervenor status pursuant to Rule 13. While conditions were sought by the Applicant at the motion, there are no conditions applicable to the offer made on April 1, 2016. While the Applicant did request conditions during the motion, I assume that the motion for party status went ahead as a result of wpd wanting full party status as a respondent. I am of the view that the conditions sought by the Applicant at the hearing of the motion do not disentitle the Applicant to costs of that motion given the offer for unconditional intervenor status previously made. Given the result, wpd should have accepted that offer.
[12] As for Motion #2, there is no doubt that wpd is the successful party along with the other named respondents and has an entitlement to costs. I do not agree that wpd failed to comply with the conditions of its status as an intervenor and in any event, no objection was made during the proceedings as to how wpd approached these motions.
[13] In determining the appropriate quantum of costs, I have also considered:
(i) that the issues before this Court were complex but this related to the nature of the relief sought by the Applicant in Motion #2;
(ii) that the litigation was important to both the Applicant and wpd; that the Applicant was fully aware of the possible adverse cost consequences of an unsuccessful result given the relief sought in Motion #2;
(iii) that wpd was not a necessary party and would have been aware that its participation would likely result in legal expense; and
(iv) that it is not uncommon for intervenors to be left to cover their own costs; that the result of the two motions is mixed while there is no doubt that the issues raised in Motion #2 were more complex and time consuming.
[14] Finally, I am concerned with the manner that both parties have submitted their respective requests for costs. The Applicant provided no Cost Outline, only a global amount of costs. As for wpd, it presented its Cost Outline with very little detail. Basically, there is a claim for 80 hours of work based on work performed by what appears to be in-house counsel with no detail of the actual time spent. For Motion #2, I infer that this applied to the drafting of the Factum although the section titled “Fee Items” is wholly inadequate to justify the time spent.
[15] Taking all of the above factors into consideration, I find that the Applicant’s entitlement to costs for Motion #1 is off-set by the Respondent’s entitlement for costs of Motion #2 and wpd status as an intervenor who voluntarily chose to participate in these proceedings. There shall be no order of costs for these motions.
Justice Marc R. Labrosse
Released: 2018/08/09
MNRF and OEB, 2017 ONSC 4802
DIVISIONAL COURT FILE NO.: 15-2162
DATE: 2018/08/09
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
REASONS FOR JUDGMENT
Justice Marc R. Labrosse
Released: 2018/08/09