Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change), 2015 CanLII 66924

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

October 14, 2015

CASE NO.:

13-003

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

Appellant:

Prince Edward County Field Naturalists

Approval Holder:

Ostrander Point GP Inc., as general partner for and on behalf of Ostrander Point Wind Energy LP

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Ostrander Point Wind Park

Reference No.:

7681-8UAKR7

Property Address/Description:

Helmer Road and Babylon Road

Municipality:

South Marysburgh

Upper Tier:

County of Prince Edward

ERT Case No.:

13-003

ERT Case Name:

Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change)

Heard:

July 14, 2015 in Toronto, Ontario

APPEARANCES:

Parties

Counsel

Prince Edward County Field Naturalists

Graham Andrews

Director, Ministry of the Environment and Climate Change

Sylvia Davis

Ostrander Point GP Inc. as general partner for and on behalf of Ostrander Point Wind Energy LP

Douglas Hamilton and Sam Rogers

Participants

Prince Edward County South Shore Conservancy

Chris Paliare and Andrew Lokan

Canadian Wind Energy Association

(CanWEA)

John Terry and Dennis Mahony

ORDER DELIVERED BY HEATHER I. GIBBS AND ROBERT V. WRIGHT

Background

1On July 14, 2015 the Environmental Review Tribunal (the “Tribunal”) heard a motion by Ostrander Point GP Inc. (“Ostrander”) for an order identifying and defining the issue to be determined and the evidence to be heard in a remedy hearing, scheduled to be heard at the beginning of September 2015, concerning a renewable energy approval. The Tribunal dismissed the motion by an order dated July 17, 2015, with reasons to follow. These are the reasons for that order.

2Ostrander’s renewable energy approval (the “REA”) was issued by the Director, Ministry of the Environment and Climate Change (the “Director”), on December 20, 2012. It would put nine wind turbine generators, with a total installed nameplate capacity of 22.5 megawatts, and supporting facilities on 324 hectares of provincial Crown land in Prince Edward County, known as the Ostrander Point Crown Land Block (the “Project”). After a 40 day hearing, the Tribunal revoked the Director’s decision to issue the REA. Additional background information to the REA and the Project can be found in the Tribunal’s decision dated July 3, 2013.

3The remedy hearing follows upon the decision of the Ontario Court of Appeal released on April 20, 2015, and reported as Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269, allowing, in part, the appeal by Prince Edward County Field Naturalists (“PECFN”) of the Divisional Court decision in Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2014 ONSC 974. The Court of Appeal decision restored the Tribunal’s conclusion on serious and irreversible harm but remitted the matter back to the Tribunal to address remedy, stating at para. 101:

I would allow the appeal in part. I would allow the appeal on the merits and restore the Tribunal’s conclusion that the project will cause serious and irreversible harm to the Blanding’s turtle. I would allow the cross-appeal and the fresh evidence application. I would dismiss the appeal from the Divisional Court’s finding that the Tribunal erred in dealing with remedy. I would remit the matter back to the Tribunal to address remedy after giving the parties the opportunity to be heard.

4Ostrander and the Director seek the following identical relief in the remedy hearing:

1. That the Tribunal alter the REA pursuant to section 145.2.1(4)(c) of the EPA, or direct the Director to alter the REA pursuant to section 145.2.1(4)(b) of the EPA;

2. That the REA be altered by adding a condition requiring that all of the measures set out in (a) the ESA Permit issued to Ostrander Point Wind Energy Inc. dated February 23, 2012, and (b) the Ostrander Point Wind Energy Park Impact Monitoring Plan dated November 15, 2013, be carried out;

3. In the alternative, that the REA be altered by adding a condition requiring that the aforesaid measures be carried out together with any additions or other changes to those measures that the Tribunal considers necessary to prevent the serious and irreversible harm to Blanding’s turtle which the Tribunal has found.

This request is subject to refinement after the evidentiary record is complete.

5The remedy requested by PECFN is the revocation of the REA (the Director’s decision).

6The parties have agreed that Ostrander’s fresh evidence referred to in the Court of Appeal decision should be accepted as evidence in the remedy hearing. Ostrander’s fresh evidence in the remedy hearing is contained in an affidavit by its President and Chief Executive Officer Michael Lord and consists of the following documents that were created after the main hearing and the Tribunal’s decision of July 3, 2013:

• letter dated August 1, 2013 from Ostrander to the Ontario Ministry of Natural Resources and Forestry (“MNRF”);
• letter dated September 16, 2013 from the MNRF to Ostrander;
• “Ostrander Point Wind Energy Park Impact Monitoring Plan” dated November 15, 2013 (the “IMP”); and
• letter dated November 15, 2013 from the MNRF to Ostrander.

7The IMP is described as a draft document that is to be submitted to MNRF for its approval. It is required by the Endangered Species Act permit, issued by MNRF on February 23, 2012, for the wind energy project (the “ESA Permit”). That permit applies to the Blanding’s turtle and the Eastern Whip-poor-will. The IMP incorporates the following documents as appendices:

• Figures;
• Access and Control Plan;
• Endangered Species Act Permit;
• Restoration and Mitigation Measures;
• Monitoring Plan; and
• Adaptive Management Plan.

8PECFN filed witness statements of Kari Gunson and Dr. Frederic Beaudry in the remedy hearing proceeding to respond to Ostrander’s fresh evidence. Ostrander opposed PECFN’s entitlement to bring any responding evidence in the remedy hearing, arguing that the Court of Appeal only found that the Divisional Court should have admitted Ostrander’s fresh evidence. The Director took the position that Ostrander’s fresh evidence was already part of the Tribunal’s “record” in this remedy hearing and that PECFN would have to bring a formal motion to admit new evidence. After hearing submissions, the Tribunal ruled that PECFN and the Director could bring responding evidence to Ostrander’s fresh evidence in the remedy hearing and that Ostrander would be entitled to bring reply evidence.

9Ostrander subsequently filed a motion requesting the following relief:

1. An order, pursuant to Rule 180 of the Tribunal’s Rules, identifying and defining the issue to be determined and the evidence to be heard in the remaining portion of the hearing as follows:

a. The issue to be determined concerns what remedial action should be taken pursuant to section 145.2.1(4) of the EPA to address the Tribunal’s previous conclusion regarding serious and irreversible harm to Blanding’s turtle due to road mortality, brought by increased vehicle traffic, poachers and predators; and

b. The evidence to be heard is evidence relating to that issue.

2. Further, an order striking (or determining to be inadmissible) much of the Witness Statements of Ms. Kari E. Gunson dated July 2, 2015 and Dr. Fredrick (sic) Beaudry, dated June 30, 2015 (as identified by attachments hereto); and

3. Such further and other relief as counsel may advise and the Tribunal may permit.

10Ostrander’s motion is supported by the Director and the participant Canadian Wind Energy Association (“CanWEA”). The motion is opposed by PECFN and the participant Prince Edward County South Shore Conservancy (“SSC”).

Relevant Legislation and Rule

11Environmental Protection Act

What Tribunal must consider

145.2.1 (2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

Powers of Tribunal

145.2.1 (4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

Rules of Practice of the Environmental Review Tribunal

Defining the Issues

180. The Tribunal may identify, define or narrow the issues to be determined and the evidence to be heard in the proceeding and may direct the order in which issues and evidence will be considered.

Issues

12The issues to be determined on this motion are: whether the Tribunal should identify and define the issue to be determined and the evidence to be heard at the remedy hearing, as proposed by Ostrander, and whether most of the proposed witness statements of Ms. Gunson and Dr. Beaudry should be struck out.

Discussion, Analysis and Findings

Submissions of the parties

13Ostrander argues that the Tribunal should exercise its discretion under Rule 180 to limit the scope of the remedy hearing to specific types of harm that the Tribunal found that the Project will cause to the Blanding’s turtle. Ostrander refers to portions of the Tribunal’s decision dated July 3, 2013, as well as portions of the Court of Appeal decision, and submits that the scope of the remedy hearing and the evidence are restricted to the specific matters set out in para. 1(a) of the motion, i.e., serious and irreversible harm to Blanding’s turtle due to road mortality, brought by increased vehicle traffic, poachers and predators.

14Ostrander argues that the remedy hearing will be considerably lengthened as it will have to call numerous expert witnesses to deal with additional matters and that the process will become a “spinning wheel” that reopens closed issues and requires the parties to continually file new responding evidence. It submits that much of the proposed evidence in the witness statements of Ms. Gunson and Dr. Beaudry is irrelevant to the remedy hearing and, or, improper case-splitting.

15The Director and the participant CanWEA support Ostrander’s submissions on the motion. They further argue that hearing evidence of harm regarding the Blanding’s turtle, apart from that specifically found to be serious and irreversible harm by the Tribunal in its decision in the first instance, would be outside the Tribunal’s jurisdiction at this remedy hearing. The Director is also concerned that some of proposed evidence of Ms. Gunson and Dr. Beaudry set out in their witness statements may fall outside of their expertise as previously recognized by the Tribunal, causing delay in the remedy hearing.

16PECFN opposes the motion. It submits that the witness statements of Ms. Gunson and Dr. Beaudry are relevant and proper responding evidence, and that a contextual approach should be taken to determining the scope of the remedy hearing. PECFN submits that it is inappropriate at this stage of the remedy hearing to unduly narrow the scope of the remedy hearing and the evidence. It argues that the Tribunal should have the best possible evidence and must be able to take account of changes that have taken place since its original decision was issued, including such things as any changes to the REA, current conditions of the Project site, and advances in scientific knowledge. PECFN argues that this remedy hearing is de facto a bifurcated hearing and that the principle against case-splitting does not apply.

17SSC supports PECFN’s position on the motion. In addition, it argues that the Tribunal’s jurisdiction is not determined by the wording of the Court of Appeal decision but by s. 145.2.1(4) of the EPA and that, in any event, the Court of Appeal was clear, in para. 100 of its decision, that “the Tribunal has yet to determine the scope of its remedial jurisdiction in this case” and that the Tribunal did not itself limit its reasons for finding harm to the Blanding’s turtle in the July 3, 2013 decision as urged by Ostrander. For instance, at para. 251 of its decision, the Tribunal found “other threats” to the Blanding’s turtle, “including” poaching and predation.

Findings

18Section 142.1(3) of the EPA establishes the statutory grounds for a person to require a hearing in respect of a decision made by the Director to issue a renewable energy approval. The grounds for requiring a hearing are: “serious harm to human health” and “serious and irreversible harm to plant life, animal life or the natural environment”. At the hearing, the Tribunal reviews the decision of the Director and considers only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause such harm. In this case, in reviewing the decision of the Director the Tribunal found that engaging in the Project in accordance with the REA will cause the harm referred to in clause (2)(b) of s. 145.2.1.

19The Tribunal’s jurisdiction to order a remedy in a renewable energy approval hearing under s.145.2.1(2) springs from s.145.2.1(4) of the EPA.

20A straightforward and plain language reading of s. 145.2.1(4) of the EPA is that the Tribunal has broad remedial powers under s.(4). The Tribunal can:

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

21Ostrander’s motion seeks to scope the issue on the remedy hearing under Tribunal Rule 180 and to strike most of the proposed evidence of Ms. Gunson and Dr. Beaudry responding to Ostrander’s own fresh evidence that was not before the Tribunal at the main hearing.

22Ostrander acknowledges that its fresh evidence on the remedy hearing relates to more than harm to Blanding’s turtle caused by “road mortality, brought by increased vehicle traffic, poachers and predators”. The remedies that Ostrander and the Director are seeking under s. 145.2.1(4) of the EPA would alter the REA by incorporating all of the provisions of the documents described in paragraphs 6 and 7 above, including the IMP. Nevertheless, Ostrander argues that the only provisions of the IMP and the other documents that are relevant to the remedy hearing are those relating to the three specific harms to the Blanding’s turtle set out in the motion. Ostrander did not identify the specific portions of the fresh evidence documents that it says are relevant to the remedy hearing and which ones should be ignored.

23The Court of Appeal remitted this matter “back to the Tribunal to address remedy after giving the parties the opportunity to be heard.” It is clear that the Tribunal has discretion to determine the appropriate scope of the issue(s) and evidence on a remedy hearing within its jurisdiction under s. 145.2.1 of the EPA. In exercising that discretion, the Tribunal has regard for a number of considerations, including fairness and/or prejudice to the parties.

24This is the first renewable energy approval remedy hearing by the Tribunal. In view of the Tribunal’s broad remedial jurisdiction, the background circumstances being complex and involving decisions by the Divisional Court and Court of Appeal, fresh evidence of one party being accepted as the result of direction of the Court of Appeal, the question before the Tribunal requiring expert scientific opinion evidence about changing environmental conditions, the Tribunal finds that it is premature to narrow the scope of the remedy hearing as requested by Ostrander. The manner in which the matter has come back before the Tribunal and its being the first hearing of its kind are important factors in deciding not to scope this remedy hearing at this stage. In addition, it would not be fair to limit the scope of the issues when the fresh evidence of Ostrander extends beyond the issues that Ostrander argues should confine the remedy hearing.

25The Tribunal also declines to strike the witness statements of Ms. Gunson and Dr. Beaudry as requested by Ostrander. Ostrander has not established that it will suffer any prejudice through the admission of these two witness statements. Ms. Gunson and Dr. Beaudry were both previously qualified by the Tribunal as expert witnesses at the main hearing in this proceeding and gave evidence relevant to the Tribunal’s finding that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. The Tribunal is satisfied at this stage of the remedy hearing that their proposed evidence is relevant to remedy and responds to Ostrander’s fresh evidence. There should be little to no time taken at the remedy hearing discussing their expertise as both Ms. Gunson and Dr. Beaudry were qualified by the Tribunal to give expert opinion evidence in the main hearing.

26The Tribunal finds that the concerns about “improper case splitting” do not arise in this case as the hearing has, in effect, been bifurcated, with the current proceeding restricted to addressing remedy. Further, the remedy hearing is taking place pursuant to the decision of the Court of Appeal, which found that the Divisional Court should have accepted fresh evidence. Under these circumstances, the Tribunal considers receiving responding evidence from PECFN to be a matter of procedural fairness in the ordinary course, and not in the nature of “case splitting”. The Tribunal finds that it cannot properly and fairly address remedy without allowing PECFN to respond to the fresh evidence of Ostrander. Also, in order to ensure procedural fairness, the Tribunal has ruled that Ostrander may file appropriate reply evidence.

27To conclude, the Tribunal can best exercise its remedial jurisdiction by not scoping the issues on the remedy hearing to specific types of harm to Blanding’s turtle as requested by Ostrander. The remedy hearing will allow the Tribunal to fully consider the fresh evidence brought by Ostrander, the responding evidence of PECFN, whether such evidence is within the expertise of the witness, the weight that should be given to the evidence, and the appropriate remedy based on the evidence and the submissions of the parties and the participants. Therefore, the Tribunal declines to further scope its remedial jurisdiction in s. 145.2.1(4) of the EPA, and declines to strike out the proposed evidence in the witness statements of Ms. Gunson and Dr. Beaudry, under Rule 180 or otherwise.

ORDER

28The motion is dismissed.

Motion Dismissed

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

“Robert V. Wright”

ROBERT V. WRIGHT

VICE-CHAIR

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Environmental Review Tribunal

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