wpd White Pines Wind Incorporated v. Ontario (Environment and Climate Change), 2015 CanLII 72336

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

November 6, 2015

CASE NO.:

15-071

PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant:

wpd White Pines Wind Incorporated

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Refusal of a Renewable Energy Approval for two turbines for White Pines Wind Project

Reference No.:

2344-9R6RWR

Municipality:

Prince Edward County

ERT Case No.:

15-071

ERT Case Name:

wpd White Pines Wind Incorporated v. Ontario (Environment and Climate Change)

Heard:

October 14, 2015 in Wellington, Ontario

APPEARANCES:

Parties

Counsel

wpd White Pines Wind Incorporated

Patrick Duffy

Director, Ministry of the Environment and Climate Change

Andrew Weretelnyk

Elizabeth Driver and Edwin Rowse

Talia Gordner

Municipality of Prince Edward County

Wayne Fairbrother and Samantha Foster

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This Order relates to a motion for a stay of proceedings or, in the alternative, an adjournment of the hearing in this case, brought by Elizabeth Driver and Edwin Rowse (the “Moving Parties”).

2On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Appellant”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”). The Director’s decision to issue the REA did not include approval of two proposed wind turbines included in the Appellant’s application for the REA. The REA states that these wind turbines were refused “to ensure that impacts to identified cultural resources and protected properties are mitigated sufficiently and appropriately.”

3On July 31, 2015, the Appellant filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 139 of the Environmental Protection Act (“EPA”) seeking an amendment to the REA to increase the total number of wind turbines in the Project to 29. The issues in the appeal relate to the protection of cultural resources and heritage properties.

4Appeals have also been brought by John Hirsch and the Alliance to Protect Prince Edward County under s. 142.1 of the EPA seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment (the “Hirsch and APPEC appeals”). The Hirsch and APPEC appeals have been assigned Case Nos. 15-068 and 15-069 respectively and will be heard together. The Tribunal has ordered that this proceeding and that in the Hirsch and APPEC appeals will be heard one immediately after the other, with the hearing in the Hirsch and APPEC appeals commencing first (see the Tribunal’s Orders, dated September 30, 2015). That hearing is scheduled to commence on November 2, 2015.

5On August 26, 2015, the Moving Parties filed an Application for Judicial Review (the “JR Application”) in the Divisional Court seeking, among other relief, an order setting aside the Director’s decision to issue the REA on the grounds that it was based on a heritage assessment report that was “fundamentally flawed” and failed to meet the requirements for heritage assessment reports in Ontario Regulation 359/09.

6At the preliminary hearing in this proceeding, held on September 9, 2015, the Tribunal granted party status to the Moving Parties and the Municipality of Prince Edward County (the “County”).

7On October 2, 2015, the Moving Parties filed a notice of motion requesting an order staying the proceedings or, in the alternative, adjourning the hearing of this matter until the final disposition of the JR Application. The motion was heard on October 14, 2015 in Wellington, Ontario.

8On October 20, 2015, the Tribunal issued an Order dismissing the motion, with reasons to follow. These are the reasons for that Order.

Relevant Rules

9Rules of Practice of the Environmental Review Tribunal

Motions for Adjournment

104. A Party seeking an adjournment shall provide evidence and submissions in support of the motion respecting:

(a) whether the other Parties consent to the request and the date suggested for the commencement or continuation of the Hearing;

(b) detailed reasons for the request, including, if appropriate, affidavit evidence;

(c) evidence that the Party made all reasonable efforts to avoid the need for the adjournment request;

(d) any urgency for the request because of the public interest;

(e) any inconvenience to other Parties, Participants and Presenters due to the adjournment; and

(f) any other factors relating to the considerations listed in Rule 105.

105. In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(c) the integrity of the Tribunal’s process;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

106. If the request for an adjournment is based upon the need for environmental testing or other similar events, the adjournment order, if it is granted, shall be to a set date and may include a requirement for periodic progress reports to the Tribunal.

107. In granting an adjournment, the Tribunal may impose such conditions as it considers appropriate.

Issue

10The issue is whether to grant a stay of the proceeding or, in the alternative, an adjournment of the hearing.

Submissions of the Parties

The Moving Parties’ submissions

11The Moving Parties request that the Tribunal stay the proceeding or adjourn the hearing in this matter until the final disposition of the JR Application. They argue that this proceeding and the JR Application involve the same subject matter, in particular the same factual circumstances, the same approval and assessment process and the same legislative framework. They further argue that if the relief sought by them in the JR Application is granted, this proceeding will be rendered moot. Therefore, they submit, it would be inefficient and a waste of the financial resources of the parties and the Tribunal to go ahead with the hearing in this proceeding.

12The Moving Parties submit that the Tribunal has the jurisdiction either to stay or adjourn this proceeding. They argue that a stay is appropriate when a proceeding will be held in abeyance for an indefinite period of time and may never be reopened, and an adjournment is appropriate when a proceeding will need to be reopened at a later time, relying on the Tribunal’s decision in Technical Standards and Safety Authority v. Kawartha Lakes (City), [2011] O.E.R.T.D. No. 8 (“Kawartha Lakes”).

13The Moving Parties argue that they meet the legal test for a stay of proceedings, which they submit is the same as the test for a stay of a Director’s Order as set out in Rule 110.

14The Moving Parties submit that the matters to be considered by the Tribunal when granting an adjournment are found in Rules 104 and 105 of the Tribunal’s Rules of Practice. With respect to Rule 105(a), the interests of the parties in a full and fair hearing, they argue that requiring the parties to proceed with a hearing respecting an approval that may be quashed raises an issue of prejudice, citing the Tribunal’s decision in Preserve Mapleton Incorporated v. Ontario (Director, Ministry of the Environment), [2012] O.E.R.T.D. No. 19 (“Preserve Mapleton”).

15With respect to Rule 105(c), the Moving Parties submit that the integrity of the Tribunal’s process will be diminished without an adjournment because the JR Application could result in the quashing of, or a fundamental change in, the REA, which they argue would render this proceeding moot. With respect to Rule 105(e), they submit that their request for an adjournment was timely. With respect to Rule 105(h), the consequences of an adjournment, the Moving Parties submit that all of the parties would be financially prejudiced if the hearing goes ahead and it is later determined that a hearing was unnecessary. With respect to Rule 105(j), the Moving Parties submit that an adjournment that prevents wasted time and effort will ensure that the Tribunal’s delivery of services is made in a just, timely and cost effective manner.

Submissions of the County

16The County supports the Moving Parties’ request for a stay or an adjournment.

Submissions of the Appellant

17The Appellant submits that the motion should be refused. First, the Appellant argues that it is incumbent on a party seeking a stay of proceedings to act expeditiously in bringing a motion; however, it alleges that the Moving Parties delayed in bringing the motion for more than two months without good reason.

18The Appellant also argues that the Moving Parties do not meet the legal test for a stay of proceedings, which it submits is the same as the test for an interlocutory injunction.

19The Appellant submits that the Moving Parties have not demonstrated that an extended adjournment is justified. It states that there is no basis for concluding that the interests of the parties in a full and fair hearing will be compromised by continuing with the hearing of this matter. The Appellant contends that the circumstances here are unlike those in Kawartha Lakes: here there are different issues, different parties, different remedies, and a different timeline in the two proceedings. It argues that it has a statutory right of appeal under s. 139 of the EPA, which is the only avenue available to it to obtain the relief it seeks. It argues that it would be unduly prejudiced if it were deprived of the ability to exercise this right on a timely basis.

20The Appellant argues that the integrity of the Tribunal’s process will be severely undermined by granting an adjournment to parties who have failed to act expeditiously and who have provided no justification for their delay. It submits that the request for an adjournment was not made in a timely way and that the parties have made preparations for the hearing on the basis of a schedule that was agreed to by all parties, including the Moving Parties, following the preliminary hearing on September 9, 2015. The Appellant submits that it is in the public interest to send a strong signal that parties cannot “lie in wait” with adjournment requests while other parties and the Tribunal proceed with the scheduling and preparation for a hearing.

Submissions of the Director

21The Director submits that Rule 110 is the test for a stay of a Director’s decision or order and is not the proper test for a stay of proceedings. The Director submits that the correct test for a stay of proceedings is whether the Moving Parties have satisfied the Tribunal that continuation of the proceeding would work an injustice on them and that a stay will not cause an injustice to the respondents. The Director relies on the Environmental Appeal Board’s decision in Re Straza, [1992] OEAB No. 79 (“Straza”), which held, at para. 44, that the test for adjourning a hearing pending the disposition of court actions is that of “extraordinary circumstances” where moving parties must demonstrate “more than the simple prejudice, financial and tactical, of participating in two different proceedings, one civil and one administrative, arising out of the same facts.” The Director argues that the Moving Parties have provided no evidence of such extraordinary circumstances. He submits that the hearing of this matter will take a few days, will be completed in November and will not result in undue time or expense for the Moving Parties. He further submits that the Moving Parties have not provided evidence of their financial resources or a timetable for the JR Application. He also argues that there is little risk of inconsistent findings of fact and that it is far from certain that the Moving Parties will be successful in having the REA set aside, in whole or in part.

22The Director submits that an adjournment should be denied because the factors set out in Rule 105 do not favour the Moving Parties. He argues that the interests of the parties in a full and fair hearing will not be advanced by a lengthy delay of months or years, which will have been unnecessary if the Moving Parties are unsuccessful, while there is little prejudice to the Moving Parties in having the hearing in this proceeding go forward.

23The Director submits that neither the integrity of the Tribunal’s process nor the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner is furthered by a lengthy delay. He argues that it is most efficient and cost effective to hear this appeal at the same time as the Hirsch and APPEC appeals, which share the same factual background.

24The Director requests that, if the Tribunal decides to stay or adjourn the hearing of this proceeding, the stay or adjournment must be of limited duration and updates on the progress of the JR Application be required regularly, as was ordered by the Tribunal in Kawartha Lakes.

Discussion, Analysis and Findings

Nature of the Request

25The Moving Parties state that they are asking for a stay of proceedings or an adjournment of the hearing. Regardless of the route taken, the relief they seek is the same: to suspend this proceeding until the final disposition of the JR Application. However, because the test for a stay of proceedings is different from the test for an adjournment, it is first necessary to determine the true nature of the request.

26In Kawartha Lakes, the Tribunal discussed the difference between a stay of proceedings and an adjournment. In that case, the Tribunal determined that the request was for an adjournment, stating at para. 11:

In this case, the Gendrons’ Notice of Motion seeks an “order adjourning the Hearing until after the completion of the civil actions in the Superior Court of Ontario.” As noted above, Mr. Forget, during the course of oral argument, refined his request to an adjournment until June 2012. In either event, the proceeding before the Tribunal will need to be reactivated at some point because either the City will have recovered in the civil proceedings the same monies it seeks in this proceeding and will need to seek to have the Orders revoked (likely on consent) or the City will not have obtained full recovery and will wish to pursue recovery or partial recovery through having the Orders upheld by the Tribunal. In other words, the request here is not for the proceeding to be held in abeyance for an indefinite period of time and to possibly never be reopened. The Tribunal, therefore, finds that the true nature of the Gendrons’ request is best described as a lengthy adjournment, rather than a stay.

27In Straza, the Environmental Appeal Board determined that it had the power to stay proceedings when faced with an abuse of process, pursuant to s. 23 of the Statutory Powers Procedure Act, such as when there is a multiplicity of proceedings on the same issue. The Board stated, at paras. 30, 31 and 35:

In my view, the intention of the legislature in creating the Environmental Appeal Board was to provide a quick and specialized process to resolve the problems of application of the Environmental Protection Act. …

Furthermore, it must be remembered that the reasons justifying the principle of avoidance of multiplicity of proceedings relate to the costs savings of having one proceeding resolve conclusively an issue so that the other jurisdiction does not have to hear the matter. Another reason might also be to prevent contradictory results.

The point is that the conclusion of the civil proceedings will not solve the issue whether ss. 16 or 17 justify the Director’s order. In that sense, the costs savings objective of avoiding multiplicity of proceedings will not be achieved. A hearing of this Board might still be necessary to determine the issues of law facing the Board. To put it in terms of the applicants’ argument, it is this Board’s view that the issues facing the civil courts and the Board are not sufficiently similar to eliminate the necessity of holding the Board’s hearing.

28The key factors emerging from these decisions are whether the court proceeding will conclusively resolve an issue so that the Tribunal does not need to hear the matter and whether the Tribunal’s hearing will need to be “reactivated at some point regardless of the outcome of the court proceedings”.

29The Moving Parties argue that if the JR Application is successful, the hearing before the Tribunal will become unnecessary. However, that is not at all certain. The JR Application seeks, among other things, an order setting aside the REA as a whole, but the focus is on specific wind turbines and the transmission lines that allegedly directly affect heritage resources. As the Appellant pointed out, the REA that was issued by the Director, and that is challenged in the JR Application, does not include the two wind turbines that are the subject matter of this appeal. It is unclear whether those two refused wind turbines can or will be addressed by the court. The Moving Parties have not satisfactorily explained to the Tribunal how this would ever come about, given that the two turbines are not part of the REA and the Moving Parties do not appear to be seeking to have them added in. On a s. 139 appeal, the Tribunal stands in the shoes of the Director. If the REA is set aside by the court, the Tribunal still has the jurisdiction to determine whether the two refused turbines should be approved. As a result, even if the Moving Parties are successful in obtaining their primary relief on the JR Application, the hearing of the appeal before the Tribunal could still proceed. The outcome of the JR Application may influence the actions of the Appellant in determining whether it will go forward with the Project, but the two proceedings are distinct. The court’s determination will not likely change the scope of this appeal.

30The heart of the JR Application is the allegation that the Director’s decision to issue the REA was based on a flawed heritage assessment report and process. In this appeal, the Tribunal’s role is not to review the Director’s decision to determine if it was reasonable, but to conduct a “new hearing”, in which the Tribunal stands in the shoes of the Director. The Tribunal may substitute its opinion for that of the Director and may confirm, alter or revoke the decision of the Director, or direct the Director to take other action that the Tribunal considers would be in accordance with the EPA and the regulations. In doing so, unlike in the Divisional Court’s proceeding, the evidence is not restricted to the record, including the heritage assessment report or any other reports that the Director may have relied on when making his initial determination.

31The Tribunal finds, therefore, that regardless of the outcome of the JR Application, the ERT hearing may still be required. As a result, the nature of the request made by the Moving Parties is not for an open-ended stay of proceedings in which the matter may be resolved by the court, thereby automatically making a hearing before the Tribunal unnecessary. Instead, they are requesting an adjournment, after which, the Tribunal may proceed to hear the Appellant’s appeal.

32Because of this finding, it is not necessary to consider the appropriate test for a stay of proceedings. Nevertheless, as this point was argued, it is important that the Tribunal comments on the issue of whether Rule 110 applies to a motion for a stay of proceedings. Rules 108 to 110 of the Tribunal’s Rules of Practice apply to a motion by a party seeking a “stay” or “interim stay”. The objective of these Rules is to adjudicate a request for a stay of the decision or order of the Director that has been appealed, either to a specified date or until the disposition of the Tribunal’s proceeding. It is not to adjudicate a stay of the Tribunal’s proceeding pending the disposition of court proceedings.

Considerations for an Adjournment

33Rules 104 and 105 address the factors and considerations relevant to the granting of an adjournment. As noted in Preserve Mapleton, the Tribunal treats adjournment requests on a case-by-case basis. In each case, different considerations may take on more importance than others, depending on the individual circumstances.

Rule 105(a): The interests of the parties in a full and fair Hearing

34The Moving Parties argue that a full and fair hearing requires that the REA, and the process that led to it, must be “unimpeached”. As noted above, the process that led to the Director’s decision to issue the REA is not per se at issue in this appeal, unlike in the JR Application. The nature of the appeal is a new hearing that is not restricted to the evidence that was in the hands of the Director when he made his decision. Therefore, there is limited risk of inconsistent findings between the two proceedings. Even if the process followed by the Director is ultimately determined by the Divisional Court to be legally flawed, the Tribunal finds that such a determination would not render a hearing of this appeal unfair.

Rule 105(c): The integrity of the Tribunal’s process

35The Moving Parties argue that the integrity of the Tribunal’s process will be diminished if the Tribunal refuses to adjourn the hearing of this appeal because the JR Application “challenges the validity of the REA that is the subject of” this appeal. The appeal will determine whether to allow two wind turbines, not whether the REA as a whole is valid. The Tribunal and the parties in this appeal and the Hirsch and APPEC appeals have been moving forward on the basis of an agreement about the most appropriate and expeditious process to address the different issues at play in both proceedings. The Moving Parties agreed to that process and to the scheduling. The Tribunal finds that it would not further the integrity of the Tribunal’s process to delay one part of that process.

Rule 105(e): The timeliness of the request for the adjournment

36The Moving Parties were granted party status in this matter on September 9, 2015. The Tribunal at that time scheduled a continuation of the preliminary hearing and a motions day for October 14, 2015; however, the Tribunal made it clear to the parties that it was available before October 14 for the hearing of any urgent motions. Counsel for the Moving Parties did not attend the preliminary hearing but did rely on counsel for the County to act as agent. Counsel for the Moving Parties made the Appellant’s counsel aware of his intent to file this motion. The Appellant’s counsel was uncertain whether the motion would be brought before the Tribunal or the Divisional Court, but asked that it be brought immediately. The motion was filed on October 2, 2015 with a return date of October 14, 2015, which is after the date on which the Moving Parties agreed to a schedule for the preparation of the hearing. This schedule required the Appellant to provide its materials to the other parties on October 2, 2015 and the Director and the added parties to provide their materials by October 23, 2015. The Tribunal finds that the Moving Parties could have brought their motion sooner, which, given the agreed expedited scheduling for these appeals, would have resolved the issue before the other parties devoted time and resources to preparation for the hearing.

Rule 105(h): The consequences of an adjournment, including expenses to other Parties

37The Moving Parties do not argue that they face a serious breach of their rights if this hearing proceeds as scheduled; rather, they argue that they, the other parties, and the Tribunal will waste financial resources in preparing for and holding a hearing that may turn out to be unnecessary. From their perspective, the only consequences of an adjournment would be to avoid such costs because the Appellant, in their view, will suffer no prejudice.

38The Appellant submits that an adjournment would operate as a stay of construction of the two wind turbines, undermining its ability to undertake construction of the Project as a whole and resulting in significant additional costs of a minimum of $200,000. The Appellant also states that it agreed to the scheduling of this appeal and the Hirsch and APPEC appeals so that it would have certainty as to the final components of the Project at one time, by the end of January 2016, allowing it to proceed with construction of the Project as a whole.

39At this stage, it is not clear to the Tribunal what evidence the parties intend to call in this proceeding. The Moving Parties have already produced two affidavits and ten volumes of documents for the court, which have also been provided to the Tribunal. They gave no indication at the time the motion was argued as to whether further documentary evidence would be prepared for this hearing. The other parties have already engaged in preparations for this hearing and for the Hirsch and APPEC hearings. It appears that this hearing will be two to five days in length and that some of the evidence in the Hirsch and APPEC hearings may be used in this hearing. Based on the parties’ submissions, the Tribunal finds that the potential efficiencies in holding the hearing immediately after the Hirsch and APPEC appeals and the potential financial consequences to the Appellant caused by an adjournment outweigh any potential extra expense to the Moving Parties.

Rule 105(j): The public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner

40The Moving Parties, citing Preserve Mapleton, argue that an adjournment will ensure that the Tribunal’s services are delivered in a cost-effective manner because it will avoid wasted time and effort in preparing for the hearing. The Director submits that in Preserve Mapleton the Tribunal determined that an adjournment was appropriate in order to avoid a lengthy hearing that might later be rendered moot, whereas here the hearing will be short.

41The Tribunal is not convinced that adjourning the hearing will be the most just, timely and cost effective approach in these circumstances. As discussed, resolution of the JR Application will not directly resolve the issues raised in this appeal, but would require a lengthy delay before the Tribunal would be able to make a final determination of the appeal. The Moving Parties have not sought to have the JR Application heard on an urgent basis, so the delay could be a year or longer. In the meantime, if an adjournment were granted, the Hirsch and APPEC appeals would be resolved, but the Appellant would not have certainty as to the full composition of the Project. The hearing of the Appellant’s appeal will not be a lengthy one. The Tribunal finds that the most just, timely and cost-effective approach in these circumstances is to adhere to the scheduling already agreed to by all parties, that is, to hear the Hirsch and APPEC appeals followed immediately by the hearing of this appeal.

42Upon consideration of all the factors set out in Rule 105, the Tribunal does not grant the Moving Parties’ request to adjourn this proceeding.

Costs

43In their materials, both the Moving Parties and the Appellant request an order granting them their costs of this motion; however, none of them elaborates on how these requests meet the Tribunal’s costs rules. Consequently, the Tribunal will not address these requests at this time. Should any of these parties choose to pursue their requests for costs of this motion, the Tribunal will revisit the matter at the conclusion of the overall proceeding, if the matter is not settled by the parties in the meantime.

ORDER

44The Tribunal dismisses the motion.

Motion Dismissed

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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