Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: July 2, 2015
CASE NO.: 15-026
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Gary Fohr
Approval Holder: Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Renewable Energy Approval for Grey Highlands Clean Energy Project
Reference No.: 9022-9STQS5
Property Address/Description: Various Locations
Municipality: Grey Highlands
Upper Tier: Grey County
ERT Case No.: 15-026
ERT Case Name: Fohr v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Gary Fohr | Asha James |
| Director, Ministry of the Environment and Climate Change | Andrew Weretelnyk |
| Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP | Grant Worden and John Terry |
ORDER DELIVERED BY MARCIA VALIANTE AND ROBERT V. WRIGHT
REASONS
Background
1On April 1, 2015, Mansoor Mahmood, Director, Ministry of the Environment and Climate Change, issued Renewable Energy Approval No. 9022-9STQS5 (the “REA”) to Grey Highlands Clean Energy GP Corp., operating as Grey Highlands Clean Energy Development LP (the “Approval Holder”), authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility with a total of nine wind turbines with a name plate capacity of 18.45 megawatts in the Municipality of Grey Highlands, Grey County, Ontario (the “Project”).
2On April 16, 2015, Gary Fohr (the “Appellant”) filed a notice of appeal with the Environmental Review Tribunal (the “Tribunal”) seeking to revoke the decision of the Director on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to the natural environment. In addition, on the same date, the Appellant filed a notice of constitutional question seeking an order that s. 47.5, s. 142.1 and s. 145.2.1 of the Environmental Protection Act are invalid on the basis that they violate the Appellant’s right not to be deprived of security of the person except in accordance with the principles of fundamental justice, guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.
3On June 1, 2015, the Appellant brought a motion seeking an order directing the Approval Holder to disclose all documents relating to the Species At Risk Report (the “SAR Report”) it submitted to the Ministry of Natural Resources and Forestry (“MNRF”) in respect of the Project, and an order prohibiting the Approval Holder from relying on material related to the SAR Report that has not been disclosed. The Approval Holder responded by disclosing copies of correspondence with MNRF and a redacted version of the SAR Report; the unredacted portions of the SAR Report being those it determined to be relevant to the proposed evidence in the witness statement of Sal Spitale, the Appellant’s proposed expert witness on the issue of harm to the natural environment. In addition, both the Approval Holder and the Director requested that the SAR Report be kept confidential. It is the only document that remains at issue for the purpose of this motion.
Relevant Rules
4Rules of Practice of the Environmental Review Tribunal:
Disclosure of Documents
- All parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except those documents that are privileged. Documents may be exchanged electronically if all Parties agree.
Access to Documents and the Tribunal Record
All persons are entitled to have reasonable access to the Tribunal’s public record unless the Tribunal makes an order under Rule 211.
At the request of a Party or on its own initiative, the Tribunal may order all or part of a document to be marked “confidential”, where appropriate, in which case it shall not form part of the public record.
Issues
5The issues are:
Whether to order disclosure of the SAR Report in its entirety; and
Whether the SAR Report should be marked “confidential” and not form part of the public record.
Issue 1: Whether to order disclosure of the SAR Report in its entirety
6The Tribunal’s Rules of Practice require the disclosure to all other parties of “every relevant document”. The Tribunal has dealt with disclosure issues in other cases. In Baker v. Director, Ministry of the Environment (2013), 79 C.E.L.R. (3d) 140 (“Baker”), the Tribunal discussed, at para. 63, some of the principles regarding disclosure in the context of an appeal under the EPA generally:
In addressing the Appellants’ submission, the Tribunal begins with two observations regarding Rule 166. First, the requirement to disclose documents is quite broad. The Rule requires each party provide a copy of every relevant document in the possession, control or power of a party, except for those documents that are privileged. The Tribunal notes that there is nothing in Rule 166 to suggest that relevance is to be narrowly construed. Secondly, it is the party producing the documents who makes the initial determination whether a document is relevant, and, therefore, should be produced. Where there is uncertainty regarding relevance, a party may first identify the nature of the documents and advise the other parties of such uncertainty. Similarly if other parties believe additional relevant documents are available, it is incumbent on them to identify the nature of the documents and request that they be produced. In either of these circumstances, the Tribunal expects the parties to work co-operatively to resolve such disclosure issues. The parties may also apply to the Tribunal for directions, if required.
7In the context of a renewable energy approval appeal, the Tribunal, in Cham Shan Temple v. Director, Ministry of the Environment, [2014] O.E.R.T.D. No. 55, discussed what determines relevance. At para. 15, the Tribunal stated:
The heart of the relevance question is, relevant to what? The Tribunal has held that REA appeals are unique; they are neither a hearing de novo nor a true appeal of the Director’s decision. The Tribunal’s jurisdiction is limited to consideration of two grounds of appeal. Section 142.2(1) of the EPA requires a notice of appeal to set out “a description of how engaging in the renewable energy project in accordance with the renewable energy approval will cause” either “serious harm to human health” or “serious and irreversible harm to plant life, animal life or the natural environment.”
8Further, in Middlesex Lambton Wind Action Group v. Director, Ministry of the Environment (2012), 66 C.E.L.R. (3d) 1, the Tribunal stated at para. 109: “The primary determination of what documents must be disclosed are those that are relevant to the issues in the notice of appeal” (emphasis added), so long as they are within the Tribunal’s jurisdiction.
9In this case, the Appellant’s notice of appeal states:
The Project, as approved, will cause serious and irreversible harm to the natural environment. The Project will significantly infringe on the habitat of endangered and other species including, but not limited to, migratory waterfowl and songbirds living in the area of the Project such that those species will be put at risk and may in fact become extinct in the area of the project.
10The Approval Holder made an assessment of what aspects of the SAR Report it considered to be relevant, based on the witness statement of Mr. Spitale, and redacted all other portions of the SAR Report. The Approval Holder argues that it is appropriate to limit disclosure to the sections of the SAR Report addressing the eight species of birds to which Mr. Spitale’s statement refers. It states that the SAR Report makes no reference to amphibian species addressed in Mr. Spitale’s witness statement.
11The Director supports the position of the Approval Holder.
12In reply, the Appellant submits that the entire SAR Report is relevant and should be disclosed. The Appellant further asserts that the Approval Holder must provide a justification for refusing to disclose a relevant document, and has not done so here.
13Based on the limited information available to the Tribunal at this stage of the proceeding, it appears that the Approval Holder’s assessment of the relevance of the SAR Report may be too narrow. The Tribunal finds that the SAR Report, in its entirety, appears at this stage to be potentially relevant to an issue in the notice of appeal and, therefore, that it should be disclosed to the Appellant, subject to the determination of Issue 2.
Issue 2: Whether the SAR Report should be marked “confidential” and not form part of the public record
14The Approval Holder and the Director identify a concern about the need for confidentiality regarding information contained in the SAR Report, due to the potential for others to use the information to do harm to species at risk or their habitat. The Tribunal finds that, for this reason, it is in the public interest to limit access to the SAR Report to the Appellant’s counsel and Mr. Spitale, and to mark the SAR Report as “confidential” in accordance with Rule 211 so that it does not form part of the public record.
ORDER
15The Tribunal orders the Approval Holder to disclose the SAR Report in its entirety to counsel for the Appellant and the Director. Disclosure is conditional upon the parties or their counsel providing an undertaking that, as of the date hereof, the SAR Report will only be disclosed to counsel for the parties and the parties’ expert witnesses regarding the environmental issue, subject to further order of the Tribunal.
16The Tribunal further orders that the SAR Report that is filed with the Tribunal be marked as “confidential”, and not form part of the public record.
Motion Granted
Disclosure Ordered
Document to be Marked “Confidential” Ordered
“Marcia Valiante”
MARCIA VALIANTE
MEMBER
“Robert V. Wright”
ROBERT V. WRIGHT
VICE-CHAIR
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