Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 15, 2016
CASE NO.: 15-037
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: SLWP Opposition Corp.
Approval Holder: Settlers Landing Nominee Ltd.
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Renewable Energy Approval for Settlers Landing Wind Park
Reference No.: 8992-9TVSKD
Property Address/Description: 510 Telecom Road Part of Lots 7-9, Concession 3
Municipality: City of Kawartha Lakes
ERT Case No.: 15-037
ERT Case Name: SLWP Opposition Corp. v. Ontario (Environment and Climate Change)
Heard: February 8, 2016 in Toronto, Ontario
APPEARANCES:
| Parties | Counsel |
|---|---|
| SLWP Opposition Corp. | Graham Andrews and Eric Gillespie |
| Director, Ministry of the Environment and Climate Change | Nadine Harris and Katie Clements |
| Settlers Landing Nominee Ltd. | John Laskin and Grant Worden |
ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS
REASONS
Background
1This Order of the Environmental Review Tribunal (the “Tribunal”) relates to a motion by Settlers Landing Nominee Ltd. (the “Approval Holder”) to adjourn the proceeding in this appeal of Renewable Energy Approval No. 8992-9TVSKD (the “REA”), issued by the Director, Ministry of the Environment and Climate Change on May 7, 2015, and for procedural directions.
2SLWP Opposition Corp. (the “Appellant”) appealed the REA to the Tribunal. Following a three day hearing, the Tribunal issued an order on November 19, 2015 (followed by reasons dated December 7, 2015) 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 as set out in s. 145.2.1(2)(b) of the Environmental Protection Act (“EPA”). Specifically, the Tribunal found “that construction and decommissioning of turbines 3 and 5, and the access roads to turbines 2, 3 and 5, will cause such harm to a significant woodland identified as Woodland 11, including the habitat it represents.” The Tribunal found that the Appellant had not satisfied the test laid out in s. 145.2.1(2)(b) of the EPA with respect to the other issues raised under the environmental ground, nor had it satisfied the test laid out in s. 145.2.1(2)(a) of the EPA respecting serious harm to human health. The Tribunal then adjourned the proceeding to allow the parties to discuss and propose the next steps in the appeal, for the Tribunal’s consideration of an appropriate remedy under s. 145.2.1(4) of the EPA.
3Section 145.2.1(6) of the EPA provides that the decision of the Director to issue the REA will be deemed to be confirmed if the Tribunal does not dispose of the hearing within a prescribed time, that time being set out in s. 59(1) of Ontario Regulation (“O. Reg. 359/09”) as six months from the date that a notice of appeal is served on the Tribunal. The Tribunal’s Order dated November 12, 2015 adjourning the proceeding provides a brief history of the timeline relating to this appeal.
4Section 59(2)1 of O. Reg. 359/09 provides that, for a period of time to be excluded from the six month calculation for the disposition of the hearing, it must be by consent of the parties or “necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits”.
5This motion by the Approval Holder is for an order granting an adjournment under s. 59(2)1.ii of O. Reg. 359/09 which will have the effect of extending the deemed confirmation under s. 145.2.1(6) of the EPA and s. 59(1) of O. Reg 359/09 to May 31, 2016. The Approval Holder also seeks to establish a schedule for the delivery of witness statements, oral evidence, and the exchange of written submissions in relation to remedy on this appeal.
6The Director consents to the adjournment. The Appellant does not.
7On February 11, 2016, the Tribunal granted the motion with reasons to follow. These are the Tribunal’s reasons.
Issue
8The issue is whether an adjournment under s. 59(2)1.ii of O. Reg. 359/09 is necessary for a fair and just determination of the proceeding on its merits. A related issue is whether additional evidence is required at this stage of the hearing for a fair and just determination of the proceeding on its merits.
Relevant Legislation
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.
(5) The Tribunal shall confirm the decision of the Director if the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b).
(6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.
- (1) Subject to subsections (2) and (3), the prescribed period of time for the purposes of subsection 145.2.1 (6) of the Act is six months from the day that the notice is served upon the Tribunal under subsection 142.1 (2) of the Act.
(2) For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time:
- Any period of time occurring during an adjournment of the proceeding if,
i. the adjournment is granted by the Tribunal on the consent of the parties, or
ii. the adjournment is,
A. on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties,
B. not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and
C. necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.
Tribunal Rules of Practice (the “Rules”)
- 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.
Discussion, Analysis and Findings
10The Approval Holder submits that fairness requires the granting of an adjournment to allow the Approval Holder to adduce focused evidence on remedy, and that the adjournment is reasonable in the circumstances and will not cause prejudice to the Appellant.
11The Approval Holder intends to rely on both fact and expert witnesses in support of its submissions as to the appropriate remedy under s. 145.2.1(4) of the EPA. It submits that the proposed evidence is necessary to allow the Approval Holder to put forward its case on remedy and will assist the Tribunal in assessing the remedy proposed. It proposes a timeline that, it suggests, will allow all parties sufficient opportunity to adduce evidence on the issue of remedy, schedule the continuation of the hearing during the week of April 18, 2016 and conclude the proceeding by May 31, 2016.
12In response to an earlier direction of the Tribunal, the Approval Holder attached a “Disclosure Statement” to its motion for adjournment describing in broad terms the additional evidence it intends to tender. The Disclosure Statement indicates an intention to propose a Remedy Plan. It includes a preliminary list of witnesses and summary of the Approval Holder’s intended evidence, with a caveat that it “may need to be supplemented or otherwise revised, in order to properly describe and assess the elements of the Remedy Plan”. The Remedy Plan involves removing one of the turbines, reducing the footprint of another turbine, re-routing an access road and modifying the existing Woodland Rehabilitation Protocol for Woodland 11.
13The Director supports the motion to adjourn and schedule for exchange of additional disclosure. The Director takes no position at this time on the Remedy Plan and the evidence proposed to be called by the Approval Holder.
14The Appellant does not agree that time should be provided for additional evidence. It proposes an alternative schedule for the remedy portion of the hearing that requires the Approval Holder to file submissions within five days of the date of the adjournment motion. Essentially, the Appellant’s position is that a “fair and just hearing” in this case requires that the Tribunal allow the parties to make submissions on remedy but not to adduce additional evidence. The Appellant submits that evidence could and should have been adduced earlier during the hearing when the Approval Holder became aware that impacts to woodlands were an integral part of the Appellant’s case. In addition, the Appellant submits that the Remedy Plan is inappropriate and prejudicial to the integrity of the appeal process, inter alia, as a “wholesale reworking of the Project components”, which raises myriad complications and instances of procedural unfairness.
Adjournment of the Hearing
15Rule 105 of the Tribunal’s Rules addresses the factors and considerations relevant to the granting of an adjournment. As noted in Preserve Mapleton Incorporated v. Ontario (Director, Ministry of the Environment), [2012] O.E.R.T.D. No. 19, the Tribunal treats adjournment requests on a case-by-case basis. In each case, certain considerations may take on more importance than others depending on the individual circumstances.
16Rule 105(a) requires the Tribunal to consider the interests of the parties in a full and fair hearing. The “full and fair hearing” language of Rule 105(a) reflects the general principle of procedural fairness. The Approval Holder cited Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 (“Baker”) at paras 22-28 on this point.
17In the “Ostrander” case, which involved a renewable energy appeal that progressed through the Tribunal, the Divisional Court and the Court of Appeal, the “full and fair hearing” language was used by the Divisional Court in its finding that the Tribunal should have granted an adjournment to allow the parties to address the appropriate remedy (Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2014 ONSC 974 at para. 82). In that case, both the Divisional Court decision and the subsequent decision by the Court of Appeal (Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269), found that as the appeal included a wide range of attacks against the REA, fairness required an opportunity for the parties to address a specific remedy after the Tribunal had found that the approval would cause harm. On this point, the Court of Appeal agreed with the Divisional Court at para. 97, stating that, “given the broad and varied range of attacks launched against the REA, it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal’s findings were in regard to the broad range of alleged harms.”
18The Tribunal finds that in this case, there was a wide range of attacks raised by the Appellant at the hearing on the merits, similar to the situation in Ostrander, including allegations of harm to human health as well as harm to numerous species of plants, animals and the natural environment, including water resources, grasslands and woodlands. It is reasonable, then, that the parties should be given an opportunity to address their proposed remedy in relation to the specific harms ultimately found by the Tribunal.
19In this case, the Approval Holder is also asking that the adjournment “stop the clock” on the six month statutory time limit under s. 59(2)1.ii of O.Reg. 359/09. The language used in s. 59(2)1.ii.C of the regulation is slightly different from Rule 105(a), requiring a “fair and just” determination on the merits. Given the short period of time remaining before the Director’s decision is deemed confirmed (now 13 days in this case), and the guidance from the Divisional Court and Court of Appeal in Ostrander, the Tribunal finds that a clock-stopping adjournment is required for a “fair and just determination on the merits”, pursuant to O. Reg. 359/09, s. 59(2)1.ii.C.
20Rule 105(h) requires consideration of the consequences of an adjournment, including expenses to other Parties. The Appellant argues that it is prejudiced by an adjournment because many peoples’ “lives are on hold” pending completion of this appeal, including real estate transactions and holiday plans. The Tribunal is certainly sympathetic to this type of general inconvenience caused by ongoing appeals. However, such considerations cannot prevail over the parties’ rights to a fair and just hearing and, therefore, the Tribunal finds they are not primary considerations in this adjournment motion.
21Rule 105(k) also applies in this case, i.e., “whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act”. Rule 105(k) recognizes the unique circumstances of REA appeals, as compared to other types of appeals before the Tribunal, in that the decision of the Director to issue the REA is deemed to be confirmed if the Tribunal has not disposed of the appeal within six months. As noted above, s. 59(2).1.ii.C of O. Reg. 359/09 provides an adjournment test specific to these time-restricted renewable energy approval appeals, which asks whether the adjournment is “necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits” (emphasis added). The Approval Holder argues that there is no difference between the phrases “full and fair”, and “fair and just”. The Appellant argues that the Legislature uses specific words for a reason, and the two different phrases should have different meanings.
22The Tribunal finds that an adjournment is necessary in this case, to permit the Approval Holder to make submissions and to assemble its proposed evidence. However, by granting the adjournment the Tribunal makes no finding that considering all the specific evidence proposed by the Approval Holder is necessary for a fair and just determination of this appeal on its merits.
Nature of the Additional Evidence
23The Ostrander Court decisions do not give clear guidance on the question of whether additional evidence is required for a “fair and just” hearing in a REA appeal. The Court of Appeal in that case dealt with a specific motion to admit new evidence after the Tribunal had finally disposed of the hearing. The new evidence was not in existence at the time of the Tribunal hearing. That is not the situation here as the proceeding is still before the Tribunal. In the present case, the Approval Holder seeks to introduce additional evidence related to remedy before the Tribunal finally disposes of the hearing.
24As noted above, the Divisional Court in Ostrander relied on the “full and fair hearing” phraseology from Baker to direct the Tribunal to provide parties with an opportunity to make submissions on remedy. This was in the context, in that case, where the court had already ruled against the proponent’s motion to admit new evidence. It stated:
The factors that determine the content of the duty of fairness are set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras 23-26. In my view, a review of those factors establishes that there was a duty on the respondent to provide all parties with “the opportunity to present their case fully and fairly”. That opportunity included allowing the parties a chance to make submissions on remedy before any decision was made, especially where the remedy that is decided upon is potentially of such consequence, namely, revoking the Director’s decision and essentially ending the Project.
It is clear from the provisions of s. 59(2) of O. Reg. 359/09 that the Tribunal had the authority to adjourn the proceeding to permit submissions to be made on the appropriate remedy without running afoul of the six month time limit. The Tribunal could have done this on its own initiative if the Tribunal considered It necessary to “secure a fair and just determination of the proceeding on its merits”. It was therefore entirely within the authority of the Tribunal to have provided an opportunity to the parties to make submissions on the issue of remedy and the Tribunal should have done so in these circumstances. (emphasis added)
25The Court of Appeal gave examples at para. 96 of the types of things the parties could have made submissions on, had they been given the opportunity to do so. It stated that “The parties might have provided helpful submissions on the following: the proper interpretation and application of s. 145.2.1(4) as it affects the scope of the Tribunal’s remedial power; the ambit of the Director’s authority; the relevant government policies and how they intersected at the site; and the government’s preferred remedy.” The Court of Appeal did not appear to be commenting on a general process that would automatically permit another round of evidence, after a finding of harm had been made, including proposed changes to the REA.
26The Tribunal finds that the wording of a “fair and just” determination on the merits under s. 59(2) of the Regulation, and the omission of “full”, must be given some meaning in the context of the special nature of REA appeal hearings.
27In the Tribunal’s view, s. 145.2.1 of the EPA and the six month statutory time limit may in some cases operate to limit the “fullness” of a REA appeal hearing commenced under s. 142.1, as compared to a standard Tribunal hearing (s. 145.2) that is not subject to a legislated deadline for disposition (s. 145.2.1(6)) and not confined to specific considerations (s. 145.2.1(2)). An expedited hearing under s. 145.2.1 must nonetheless satisfy the requirements of procedural fairness. The Tribunal has adopted special approaches to REA hearing management in order to carry out the legislated mandate set out in s. 145.2.1 and to meet requirements of procedural fairness. Some examples of the Tribunal’s approach to simultaneously satisfying statutory and fairness obligations in REA appeals are: Tribunal Rules 29 to 37, Appendix A to the Rules (“Timeline for Appeals under section 142.1 of the Environmental Protection Act”), and the Tribunal’s jurisprudence relating to adjournment requests. See, for example, the Divisional Court’s endorsement of the Tribunal’s dismissal of an adjournment request due to availability of counsel, in Dixon v. Director, Ministry of the Environment 2014 ONSC 7404 at paras. 124 and 126.
28The Tribunal agrees with the Appellant’s suggestion that allowing new evidence in all REA remedy hearings, as a general principle, could negatively impact the integrity of the Tribunal’s process, a consideration under Rule 105(g). Clock-stopping adjournment requests, and requests to adduce further evidence on the remedy portion of a REA appeal, must be approached on a case-by-case basis. If there is no indication at the outset of a REA appeal as to how many witnesses and how much evidence will ultimately be required to finally determine the appeal, the REA appeal process will lose its transparency and predictable structure. Such a lack of predictability may also result in the Tribunal having difficulty meeting its six month statutory deadline. Indeed, Appendix A was added to the Rules in a clear attempt at transparent time management, including time allocations to permit parties to reasonably plan their cases; features that could disappear entirely from the remedy portion of a REA hearing if extensive additional evidence is proposed in every case.
29In its Disclosure Statement, the Approval Holder outlines a preliminary proposal regarding the evidence it may adduce. Whether the proposed additional evidence will result in a fair and just hearing, or create unfairness or an injustice, involves additional considerations. That finding cannot be made until the Tribunal has the benefit of the witness statements, and possibly hears additional submissions on the impact of the evidence on the proceeding.
30In addition, the clear intention of the Legislature to expedite this appeal process must be kept in mind. First, REA appeals have been entrusted to an administrative tribunal to determine in an efficient and less formal manner. Second, the deemed confirmation provision (s. 145.2.1(6) of the EPA) and the limited scope for clock-stopping adjournments (s. 59(2) of O. Reg. 359/09) make it clear that the REA appeal process is to be expedited. The Approval Holder points to the Divisional Court decision in Ostrander, to argue that the Tribunal can certainly adjourn in order to permit new evidence for a “full and fair” hearing. Nonetheless, the EPA is written in such a way that the statutory six months cannot be “extended”; rather, periods of time during an adjournment are “excluded” from the calculation of time. The result of this language is that the length of the hearing on the merits in the first phase may well result in very few days remaining for a remedy hearing. In this case, 14 days remained in this “proceeding” prior to the recent adjournment motion, before the decision of the Director will be deemed to be confirmed. There are only 13 days left on the clock at present. If the remedy hearing in this proceeding would require weeks of new evidence, repeated adjournments, or “stopping the clock” for imprecise periods of time, the six-month limitation would become meaningless. The Tribunal therefore finds that any process it institutes must respect the structure and purpose of the statute.
30Factors which may impact on whether additional evidence, and the scope of any such evidence, will be required for a fair and just hearing include:
- the number of days left in the proceeding before the Director’s decision is deemed confirmed;
- whether the proposed remedy impacts the original REA “as approved”;
- whether the impacts of the proposed remedy have not yet been considered by the Director, or by the Tribunal in the appeal;
- whether the proposed remedy would require the Tribunal to develop conditions without the benefit of the review and associated studies normally mandated by the Director in applications for a REA;
- whether it is reasonable and conducive to a fair and just hearing for the Tribunal to evaluate proposed REA amendments in consideration of the six month statutory time frame; and
- any prejudice that may arise from adjourning the hearing.
31In this case, the Tribunal finds that the Approval Holder could not reasonably have provided evidence at the first stage of the hearing on all possible remedies addressing the variety of allegations made by the Appellant. In the circumstances of this case, it is reasonable that the Approval Holder should have an opportunity to file evidence on its proposed remedy, having the benefit of the Tribunal’s findings on serious and irreversible harm. Nevertheless, once the Approval Holder’s proposed additional evidence is filed, the Tribunal will again have regard to the above factors and any other relevant considerations in determining how to proceed further.
32The Appellant has not provided evidence of any specific prejudice that will accrue if the proceeding is adjourned until the hearing resumes during the week of April 18, 2016, with a final Tribunal determination by May 31, 2016, as proposed by the Approval Holder.
33As the hearing of oral evidence and submissions should not be included in any adjournment period, and the specific dates and duration of the hearing has not been determined as of yet, the Tribunal finds that the proceeding ought to be subject to a “clock stopping” adjournment until the oral hearing resumes, being the week of April 18, 2016, after which time an additional adjournment period may be required to allow for final oral submissions and a decision by the Tribunal.
34The Tribunal’s Case Coordinator will arrange a telephone conference call with the parties to determine hearing dates during the week of April 18, 2016, and procedural steps leading up to the resumption of the hearing.
ORDER
35The Tribunal grants the motion for adjournment, brought by Settlers Landing Nominee Ltd., pursuant to s. 59(2)1.ii of O. Reg. 359/09.
36Subject to any further order of the Tribunal, the period of this adjournment runs until the commencement of the remedy hearing, which will take place in the week of April 18, 2016.
Motion to Adjourn Granted
“Justin Duncan” JUSTIN DUNCAN MEMBER
“Heather I. Gibbs” HEATHER I. GIBBS VICE-CHAIR
If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.
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