SR Opposition Corp. v. Ontario (Environment and Climate Change), 2015 CanLII 54455

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

August 25, 2015

CASE NO.:

15-053

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended

Appellant:

SR Opposition Corp.

Approval Holder:

Snowy Ridge Nominee Ltd.

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Snowy Ridge Wind Park

Reference No.:

2543-9TVSLU

Property Address/Description:

59 Beers Road, Bethany,

Lots 12 -16, Concession 8

Municipality:

City of Kawartha Lakes

ERT Case No.:

15-053

ERT Case Name:

SR Opposition Corp. v. Ontario (Environment and Climate Change)

Heard:

August 10, 2015 in Lindsay, Ontario

APPEARANCES:

Parties

Counsel/Representative⁺

SR Opposition Corp.

Priya Vittal

Director, Ministry of the Environment and Climate Change

Nadine Harris

Snowy Ridge Nominee Ltd.

John Terry

Participants

City of Kawartha Lakes

Robyn Carlson

Save the Oak Ridges Moraine Coalition

Cindy Sutch⁺

Kathleen Morton

Self-represented

Presenters

Jane Zednik

Self-represented

John Moore

Self-represented

ORDER DELIVERED BY MARLENE CASHIN AND MARCIA VALIANTE

REASONS

Background

1On June 19, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 2543-9TVSLU (the “REA”) to Snowy Ridge Nominee Ltd. (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total name plate capacity of 10 megawatts (the “Project”). The Project is to be located at 59 Beers Road in Bethany, City of Kawartha Lakes, Ontario (the “Site”). The Site is partly on the Oak Ridges Moraine (“ORM”), within the “Countryside Area” designation.

2On July 3, 2015, SR Opposition Corp. (the “Appellant”) appealed the REA to the Environmental Review Tribunal (the “Tribunal”) on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to plant life, animal life or the natural environment.

3The Tribunal held the preliminary hearing in Lindsay, Ontario on August 10, 2015. At that time, the Tribunal granted participant and presenter status to several persons and organizations, and confirmed procedural directions regarding the scheduling of the hearing. This Order provides the reasons for those decisions, and confirms the Tribunal’s directions respecting the main hearing.

Relevant Rules

4Rules of Practice of the Environmental Review Tribunal

Naming of a Participant

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a party’s would be. A person who may otherwise qualify as a Party may request Participant status.

Role of a Participant

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant’s interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

Naming of a Presenter

69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

Role of a Presenter

70. A Presenter in a Hearing may:

(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing’s regular day-time session or at a special evening session;

(b) be questioned by the Parties;

(c) provide the Tribunal with a written statement as a supplement to oral testimony; and

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter’s interests.

71. A Presenter in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(f) participate in a mediation, unless permitted to do so by the Tribunal;

(g) attend site visits unless permitted to do so by the Tribunal; and

(h) claim costs or be liable for costs.

Issues

5The issues are:

1. whether to grant participant and presenter status in the proceeding; and
2. procedural directions related to the main hearing.

Issue 1: Whether to grant participant and presenter status in the proceeding

6The Tribunal received three requests for participant status and two requests for presenter status. The Approval Holder requested that all grants of status be made subject to several general conditions, similar to those the Tribunal has adopted in other renewable energy approval appeals.

7The Tribunal agrees that the following general conditions are appropriate and consistent with its practice in other renewable energy approval appeals. The Tribunal orders that those granted status:

a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the Environmental Protection Act (“EPA”) and as set out in the notice of appeal;

b. comply with the Tribunal’s directions regarding the date for filing their written presentations and supporting documents;

c. where expert qualification is sought, file with the presentation a detailed resume, a signed Form 5 Acknowledgement of Expert’s Duty and a statement of the qualification sought;

d. limit their oral presentations at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal; and

e. coordinate with other participants and presenters raising similar issues, if directed to do so by the Tribunal.

City of Kawartha Lakes

8The City of Kawartha Lakes (the “City”) sought participant status. The City is the host municipality for the Project and submitted that it has a public, legislated mandate relevant to the subject matter of the proceeding. The City stated that it has several concerns about the Project. It would like to ensure that all components of the Project are located outside the ORM. The City also stated that it would like to ensure that the conditions in the REA are sufficient to protect public health and safety in areas related to its jurisdiction, such as stormwater management, physical hazards, and access roads. In addition, the City stated that it intends to request that the Tribunal amend the REA to impose a requirement that the Approval Holder enter into a development agreement with the City. Counsel for the City noted that, because of the timing of the appeal, she had not yet been able to confirm her instructions from City Council regarding the status request or the issues to be presented, but would be able to do so following a City Council meeting to be held on August 11, 2015.

9The Approval Holder and the Director acknowledged that the City has an interest in the proceeding but expressed concerns that the City would not make a relevant contribution to the proceeding. However, neither the Approval Holder nor the Director opposed the City being granted participant status provided its presentation contributes to issues within the scope of the appeal.

10The Tribunal granted participant status to the City. The Tribunal finds that the City has an interest in the subject matter of the proceeding as its property and that of its residents will be affected by the Project. Without yet knowing the scope of the evidence the City intends to present, it appears that, in addition to having a clear interest in the subject matter of the proceeding, the City would make a relevant contribution to the Tribunal’s understanding of the issues. Participant status is granted subject to the general conditions set out in para. 7 above.

Save the Oak Ridges Moraine Coalition (“STORM”)

11STORM is an incorporated coalition and submits that it has a long track record of responsible involvement in the protection of the ORM. It has participated in all of the appeals to the Tribunal for renewable energy projects located on the ORM. In this proceeding, STORM seeks to provide evidence regarding the cumulative impacts of the Project and other renewable energy projects on the ORM. None of the parties objected to the grant of participant status to STORM.

12The Tribunal granted participant status to STORM. The Tribunal finds that STORM has a genuine public interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal’s understanding of the issues. Participant status is granted subject to the general conditions set out in para. 7.

Kathleen Morton

13Kathleen Morton sought participant status in the hearing. She lives near the Site and is concerned about the potential impact of the Project on specific archaeological features of the area, particularly those associated with First Nations. She said that her presentation, if allowed, would focus on those archaeological features in the context of how the Project would cause serious harm to the health of First Nations’ communities and serious and irreversible harm to the environment, as defined broadly. The Appellant supported Ms. Morton’s request for participant status. Both the Approval Holder and the Director opposed the request on the grounds that the issues to be raised in Ms. Morton’s presentation fall outside the two grounds for appeal under the EPA and were not included in the notice of appeal and, thus, are outside the jurisdiction of the Tribunal. The Approval Holder argued that it would be a waste of the parties’ and the Tribunal’s time and resources to have to respond to such matters, and so the request for participant status should be denied. Ms. Morton assured the Tribunal that she understands the parameters within which her evidence must be presented in relation to the statutory test and the content of the notice of appeal.

14The Tribunal granted participant status to Ms. Morton. The Tribunal finds that the wording of the notice of appeal is broad enough to include the potential harm described by Ms. Morton, that she has a genuine public interest in the subject matter of the proceeding, and that she is likely to make a relevant contribution to the Tribunal’s understanding of the issues. Participant status is granted subject to the general conditions set out in para. 7.

Jane Zednik

15Jane Zednik sought presenter status in the hearing. She is a resident of the ORM, and is concerned about the impacts of the Project on plant life, animal life, and the natural environment. She stated that she is particularly concerned about the impact of the Project on surface water, well water, and landform conservation on the ORM. None of the parties objected to the grant of presenter status to Ms. Zednik.

16The Tribunal granted presenter status to Ms. Zednik. The Tribunal finds that she has a genuine public interest in the subject matter of the proceeding and she is likely to make a relevant contribution to its understanding of the issues. Presenter status is granted subject to the general conditions set out in para. 7.

John Moore

17Mr. Moore sought presenter status in the proceeding. He said that he is concerned about the effects of the Project on his health and that of his family, given that he lives 700 metres from the Project site. He stated that he is concerned about a number of issues such as the Project’s impact on water quality and quantity, wildlife, and the natural environment. None of the parties objected to the grant of presenter status to Mr. Moore.

18The Tribunal granted presenter status to Mr. Moore. The Tribunal finds that he has a genuine private and public interest in the subject matter of the proceeding and that he is likely to make a relevant contribution to its understanding of the issues. Presenter status is granted subject to the general conditions set out in para. 7.

Issue 2: Procedural directions related to the main hearing

19The parties presented a proposed schedule for the hearing and for the procedural steps leading up to the hearing. The Tribunal confirmed the schedule, as set out below, subject to further direction from the Tribunal as required.

ORDER

20The Tribunal grants participant status to the City of Kawartha Lakes, Ms. Morton, and STORM.

21The Tribunal grants presenter status to Ms. Zednik and Mr. Moore.

22The Tribunal orders that all those granted status:

a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the EPA and as set out in the notice of appeal;

b. comply with the Tribunal’s directions regarding the date for filing their written presentations and supporting documents;

c. if expert qualification is sought, file with their presentation a detailed resume, a signed Form 5 Acknowledgement of Expert’s Duty and a statement of the qualification sought;

d. limit their oral presentations at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal; and

e. coordinate with other participants and presenters raising similar issues to avoid duplicating evidence, if directed to do so by the Tribunal.

23The Tribunal confirms the following schedule:

August 4, 2015

Appellant’s disclosure and documents to be relied on at the Hearing served on the other parties

August 21, 2015

Witness statement of David Kerr to be served on the other parties

August 24, 2015

Motion records for any motions to be filed with the Tribunal and served on the other parties (if required)

August 26, 2015

Responding motion records to be filed with the Tribunal and served on the other parties (if required)

Participants’ and presenters’ statements to be served on the other parties

August 27, 2015

Reply motion records to be filed with the Tribunal and served on the other parties (if required)

August 28, 2015

Hearing of motions (if required) or a status telephone conference call

September 9, 2015

Respondents’ documents to be relied on at the Hearing to be served on the other parties

September 18, 2015

Appellant’s reply documents to be relied on at the Hearing to be served on the other parties

September 18, 2015

Filing with the Tribunal of witness statements and documents to be relied on at the Hearing

September 25, 2015

Parties to provide to the Tribunal an itinerary and schedule for a site visit (if required)

September 28 – October 5, 2015

Hearing of the appeal at Janetville Community Centre, 693 Janetville Road, Janetville, ON

October 23, 2015

Appellant’s and participants’ written closing submissions to be filed with the Tribunal and served on the other parties

November 13, 2015

Respondents’ written closing submissions to be filed with the Tribunal and served on the other parties

November 20, 2015

Appellant’s written reply submissions to be filed with the Tribunal and served on the other parties

During the week of November 23, 2015

Oral final submissions (if required).

Participant and Presenter Status Granted

Hearing Dates Scheduled

Procedural Directions Ordered

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

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Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248