Environmental Review Tribunal

Tribunal de l'environnement

ISSUE DATE: April 6, 2016

CASE NO.: 15-068

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

Appellant: John Hirsch (File No.: 15-068)

Appellant: Alliance to Protect Prince Edward County (File No.15-069)

Approval Holder: wpd White Pines Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for White Pines Wind Project

Reference No.: 2344-9R6RWR

Municipality: County of Prince Edward

ERT Case No.: 15-068

ERT Case Name: Hirsch v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties	Counsel
Alliance to Protect Prince Edward County	Eric Gillespie
Director, Ministry of the Environment and Climate Change	Sylvia Davis
wpd White Pines Wind Incorporated	Patrick Duffy

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This Order of the Environmental Review Tribunal (the "Tribunal") is in relation to a motion for a stay of a renewable energy approval for a proposed wind power generation project in Prince Edward County, Ontario. The moving party, the Alliance to Protect Prince Edward County ("APPEC"), seeks a stay of all physical activities within the area of the project associated with Renewable Energy Approval No. 2344-9R6RWR (the "REA") until a date to be determined by the Tribunal. The main hearing of the appeal is currently adjourned.

2The REA was issued on July 16, 2015 by Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (the "MOECC") to wpd White Pines Wind Incorporated (the "Approval Holder"). It authorizes the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer substations, underground electrical cabling, distribution lines and associated infrastructure (the "Project"). The Project is located near the south shore of Prince Edward County and bounded by Brummell Road and Bond Road to the North, Lighthall Road to the West, Gravelly Bay Road to the East, and Lake Ontario to the South (the "Project Area").

3On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Tribunal, pursuant to s. 142.1 of the Environmental Protection Act (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. On July 31, 2015, APPEC filed a notice of appeal with the Tribunal 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 and will cause serious harm to human health. A third appeal, by the Prince Edward County South Shore Conservancy, was withdrawn and dismissed by the Tribunal in an Order dated September 30, 2015.

4The hearing in this proceeding commenced on November 2, 2015 and continued over 21 days in November and December 2015 in Wellington and Picton in Prince Edward County and at the Tribunal's offices in Toronto, Ontario. On February 26, 2016, the Tribunal issued an Order allowing the appeal in part based on its 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 under s. 145.2.1(2) of the EPA. Of particular relevance to this motion, the Tribunal found that engaging in the Project would cause serious and irreversible harm to Blanding's Turtle, which is listed as a "threatened" species under the Endangered Species Act, 2007, S.O. 2007, c. 6 ("ESA"). The Tribunal also gave procedural directions for the hearing of submissions with respect to the appropriate remedy, pursuant to s. 145.2.1(4) of the EPA. The hearing has been adjourned and will resume for the Tribunal to consider the parties' submissions on remedy.

5On March 1, 2016, the Approval Holder notified APPEC and the Director that it intended to start vegetation clearing in parts of the Project Area as early as March 14, 2016. On March 4, 2016, APPEC brought a motion seeking an order of the Tribunal staying all physical activities within the proposed Project Area associated with the REA. The motion is based principally on APPEC's concern that proposed work clearing vegetation and preparing the Project Area by the Approval Holder will cause harm to Blanding's Turtle.

6On March 22, 2016, the Tribunal issued an Order dismissing APPEC's motion. These are the reasons for that Order.

Relevant Rule

7Tribunal's Rules of Practice (the "Rules"):

The Party shall provide evidence and submissions in support of its motion respecting:

(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;

(b) whether there is a serious issue to be decided by the Tribunal;

(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

Issue

8The issue is whether physical activities in the Project Area associated with the REA should be stayed pending the disposition of the appeals.

Discussion, Analysis and Findings

The Test for a Stay

9Once issued by the Director, a renewable energy approval is in force unless it is stayed or revoked by the Tribunal. Under s. 143(1) of the EPA, an appeal under s. 142.1 does not automatically stay the operation of a renewable energy approval; however, the Tribunal has discretion under s. 143(2) to issue a stay, subject to specific exceptions set out in that section and s. 143(3). Rule 110 of the Tribunal's Rules sets out the test for a stay.

10In the present case, no party takes the position that there are any statutory bars to a stay. The Tribunal agrees and finds that Rule 110 (a) does not apply.

11Rules 110 (b) to (d) adopt the three-part test summarized in RJR-MacDonald Ltd. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 ("RJR-MacDonald") focusing on whether there is a serious issue to be tried in the main hearing, whether irreparable harm will ensue if the stay is not granted, and whether the balance of convenience favours the granting of a stay.

12The moving party has the onus of demonstrating that the requested relief should be granted.

Evidence

13APPEC's evidence on the motion consists of an affidavit sworn by a legal assistant, Sarah Quildon, who works at the office of APPEC's counsel. Attached to her affidavit, she provides unsworn statements of Frederic Beaudry, Christina Davy, Roy Nagle and Kari Gunson.

14The Approval Holder relies on an affidavit sworn by Ken Todoroff, an employee of the Approval Holder who is to supervise the proposed vegetation clearing and site preparation work. The Approval Holder also relies on evidence that was provided to the Tribunal during the main hearing.

15The Director does not take a position on whether the requested stay should be granted, but nevertheless provides submissions to assist the Tribunal on requirements for the proposed work to go forward and on the admissibility of evidence. The Director submits that the evidence advanced by APPEC on this motion is improper because it is directed at reopening the issue of whether construction of the Project will cause serious and irreversible harm to Blanding's Turtle, which has already been considered and ruled on by the Tribunal.

16In reply, APPEC submits that, for the purpose of a stay motion, it is entitled to put forward issues and evidence that are independent of the issues and evidence in the main hearing, relying on Pitt v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 21 ("Pitt"). APPEC also argues that the Approval Holder cannot rely on evidence that was before the Tribunal in the main hearing.

17In Pitt, the stay motion was brought prior to the main hearing and was heard before a different panel of the Tribunal than the one that was to conduct the main hearing. The Tribunal stated, at para. 6, that it "is aware that the evidence in the motion is not evidence in the main hearing on the merits of the appeals. The findings as to the evidence do not bind the Tribunal panel on the main hearing and are solely for the disposition of this motion."

18As Pitt indicates, the parties are entitled to adduce evidence that is relevant to the stay test, which is different from the questions that must be determined in the main hearing. In this proceeding, the stay motion has come after the Tribunal has made its findings on whether the Project meets the statutory test in s. 142.5.1(2) but before it has determined the issue of potential remedy. Thus, the stay motion cannot be used as an opportunity to introduce new evidence relevant to the statutory test or for the Tribunal to revisit its findings on the statutory test.

19Rule 103 of the Rules provides that evidence in motions hearings, unless heard orally, shall be in the form of affidavits and transcripts of cross-examinations of witnesses on their affidavits. The Tribunal notes that APPEC did not provide expert evidence in the form of sworn or affirmed affidavits that could be subject to cross-examination. Of the witnesses put forward by APPEC on the motion, only Ms. Gunson appeared as a witness in the main hearing, where she was qualified to give opinion evidence on road ecology. None of the others appeared or was qualified to give opinion evidence in this proceeding. Nevertheless, it is open to the Tribunal, pursuant to s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to admit as evidence any document, whether or not it is proven under oath or affirmation, that is "relevant to the subject matter of the proceeding" and to act on that evidence, but the Tribunal must consider how much weight to give such evidence. The Tribunal has considered APPEC's evidence even though it is not in the form called for in the Tribunal's Rules.

20APPEC argues, based on comments in Pitt, that this motion is a completely separate proceeding from the main hearing. Unlike in Pitt, the panel of the Tribunal hearing the stay motion here is the same one that heard the evidence in the main hearing and made findings with respect to that evidence. This motion has been brought, not prior to the main hearing, but during the course of that hearing. APPEC provides no legal basis for its position that it is improper for a party to rely on, or for the Tribunal to consider, evidence that was adduced and fully tested in the main hearing, so long as it is relevant to the questions that must be determined on this motion.

Serious Issue to be Tried

Submissions of the Parties

21APPEC submits that in the main hearing, the Tribunal has found that the Project will cause serious and irreversible harm to Blanding's Turtle and that the Approval Holder's proposed work will have a high probability of causing such harm and render the Tribunal's determination meaningless. It submits that the issue of serious and irreversible harm and whether that harm can be remedied are serious issues.

22The Approval Holder argues that the moving party must raise a factual or legal issue that requires resolution in order to satisfy this part of the stay test. It submits that the issue of serious and irreversible harm has already been resolved and the Tribunal does not have jurisdiction at the remedy stage of the hearing to revisit these factual findings. It submits that the Tribunal did not find that construction activities, including vegetation clearing, will cause serious and irreversible harm to Blanding's Turtle and that this is not an issue that requires resolution. It argues that APPEC is attempting to open issues that were or could have been the subject of the merits stage of the main hearing and that this opening or revisiting of issues must not be permitted. It submits that issues that fall outside of the remedy stage of the main hearing are not serious issues to be tried.

23Although he does not take a position on the motion, the Director submits that APPEC's evidence that construction activities will result in serious harm to Blanding's Turtle is an attempt to re-open the hearing and have the Tribunal reconsider its findings on this issue. It submits that the Tribunal should not reconsider previous findings on serious and irreversible harm. He argues that evidence on Blanding's Turtle overwintering has been known to APPEC since before the commencement of the proceedings and the admission of this evidence now for the first time is not permissible.

Findings

24The Tribunal has held that this part of the stay test has a low threshold (see: Limoges v. Ontario (Ministry of the Environment), [2007] O.E.R.T.D. No. 14 at para. 40). To satisfy this part, the moving party must demonstrate that there is a serious issue to be adjudicated in the main appeal (see: Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment) (2012), 67 C.E.L.R. (3d) 207 (Ont. Env. Rev. Trib.) at para. 82). In Pitt, at para. 39, the Tribunal noted that "unless on the merits the case is frivolous or vexatious or the constitutionality of the statute is a pure question of law" this part of the test is usually satisfied (see also: RJR-MacDonald, at paras. 50 and 78).

25In its Order, dated February 26, 2016, the Tribunal found 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 under s. 145.2.1(2) of the EPA and directed that the hearing be continued to consider remedies. The Tribunal finds that this proceeding has raised serious issues and that the issues of whether to order a remedy and if so, the nature and scope of that remedy, are serious issues that remain to be resolved. The Tribunal finds that APPEC meets the first part of the stay test.

Irreparable Harm

Submissions of the Parties

26APPEC states that, in light of the Tribunal's finding that the Project will cause serious and irreversible harm to Blanding's Turtle, "it appears clear that allowing work to proceed on the Project at this time is more likely than not to cause irreparable harm." APPEC's witnesses state that the proposed work will cause two types of harm: direct mortality to Blanding's Turtle due to collisions with equipment or vehicles; and indirect harm due to soil disturbance that will lead to sedimentation in permanent or seasonal wetlands, which will adversely affect turtles overwintering or animals they prey on, and to turtles' use of disturbed soils for nesting, which will in turn increase the risk of predation on eggs and hatchlings.

27Regarding evidence of direct mortality due to collision with equipment, APPEC's witnesses assert that the locations of all of the overwintering sites for turtles may not have been identified because they may overwinter in unexpected locations. Mr. Nagle, Ms. Davy, and Dr. Beaudry reference findings in D.C. Seburn, "Blanding's Turtle, Emydoidea blandingii, Habitat Use During Hibernation in Eastern Ontario", 124:3 Canadian Field-Naturalist (2010), 263, which concluded, at page 264, that "identification of wetlands used by Blanding's Turtles based strictly on observations of basking individuals will likely underestimate the total habitat used and may exclude some hibernation sites". Ms. Davy also referenced C. Edge, et al., "Temperature and Site Selection of Blanding's Turtle (Emydoidea blandingii) during Hibernation near the Species' Northern Range Limit", 87 Canadian Journal of Zoology (2009), 825, stating that overwintering sites may be difficult to evaluate. This assertion seems to suggest that the equipment will enter these unexpected overwintering locations and collide with turtles. In addition, the witnesses state that turtles may emerge from hibernation at various times and may become active prior to the restricted period set out in the REA. This suggests that once active, turtles will begin to migrate from overwintering areas and will be susceptible to collisions with both off-road construction equipment and vehicles on roads.

28Mr. Nagle's conclusion is that the proposed work will "more likely than not cause serious and irreversible harm" to Blanding's Turtles and their habitat. Ms. Davy concluded that the proposed work "cannot possibly be conducted without potential impacts to turtles" and will expose turtles to serious and irreversible harm through increased road mortality. Ms. Gunson concluded that the proposed work "will more likely than not result in serious, irreversible and irreparable harm to Blanding's Turtle and/or their habitat". Dr. Beaudry concluded that "it is more likely than not that the vegetation removal activities will result in serious and irreversible harm to the Blanding's turtle population on Prince Edward County's south shore".

29The Approval Holder submits that the stay test must be applied in the specific factual and procedural context of this proceeding and in light of the Tribunal's orders in this proceeding. It submits that the Tribunal must take into account its prior findings of fact on the specific aspects of the Project that will cause serious and irreversible harm and must take into account the current phase of the main hearing, which focuses only on remedies. It submits that the Tribunal should not consider new alleged harms that have not been raised already in the proceedings.

30The Approval Holder submits that the planned activities will consist of the removal of trees and shrubs on private land, and possibly the installation of silt fencing and the posting of signage. It submits that such activities are permitted subject to adherence to REA Condition A7 requiring that it provide notice of such activities to the Director, Condition G2 on the preparation and approval of a site-specific stormwater management plan and an erosion and sediment control plan, Condition L1.(2) and (3) restricting the timing of vegetation clearing and site preparation work in Blanding's Turtle habitat, and s. 3.1(1) of ESA Permit PT-C-010-13 restricting the timing of construction activities at the Project Area so as to not impact Bobolink, Eastern Meadowlark and Eastern Whip-poor-will habitats. It states that it will adhere to REA Conditions L1.(4), (6) and (7) requiring the staking out of the proposed work areas, the retainer of a qualified professional with expertise on Blanding's Turtle and staff training on Blanding's Turtle. It states that the proposed work will not commence until such time that these conditions are fulfilled.

31Referring to Hart v. Director, Ministry of the Environment, [2013] O.E.R.T.D. No. 48, at para. 22, the Approval Holder submits that the moving party must demonstrate that irreparable harm will occur and "speculation about the harm that might be suffered is not sufficient". It argues that APPEC has failed to provide any evidence of irreparable harm that could arise from the proposed work. It submits that APPEC's allegations of harm due to turtle nest predation and harm to overwintering turtles and their habitat are contradicted by the Tribunal's findings in the main hearing. In any event, it submits that the risk of any such harm is mitigated by the Approval Holder's adherence to the conditions in the REA.

Findings

32The onus is on APPEC to establish that irreparable harm will be caused if a stay is not granted. As noted by the Approval Holder, the Tribunal held in Hart that speculation about possible harm is not sufficient to meet the test. As applied by the Ontario Court of Appeal in Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2014 ONCA 227 ("PECFN"), the Tribunal may consider irreparable harm to the natural environment (see also: Sierra Club Canada v. Ontario (Ministry of Natural Resources) (2010), 54 CELR (3d) 316 (Ont. Div. Ct.), paras. 14-19.)

33As stated in RJR-MacDonald, "irreparable" refers to the nature, rather than the magnitude, of the harm that would be suffered if a stay were not granted. In this case, APPEC does not assert that it or its members would suffer harm, but rather that the harm would be caused to Blanding's Turtles.

34One of the difficulties with the statements tendered by APPEC is that the witnesses all offered opinions that "serious and irreversible" harm will be caused if a stay were not granted. APPEC in its submissions does not clearly differentiate between "serious and irreversible" and "irreparable" harm. As discussed below, there can be overlap between irreversible and irreparable harm, but the Tribunal has recognized that they are not the same.

35The Tribunal addressed this issue in Bovaird v. Director, Ministry of the Environment (2013), 82 C.E.L.R. (3d) 7 (O.E.R.T.) ("Bovaird"). There the Tribunal elaborated on the scope of the irreparable harm analysis when considering a REA stay request. The Tribunal stated at paras. 23-25 and 27:

During the hearing of the motion, the parties often spoke of "irreparable harm" and "serious and irreversible harm" interchangeably. As indicated by the Tribunal at the hearing, the phrases are not the same. A more nuanced approach is needed. In a stay motion such as this, the moving party is required to demonstrate that irreparable harm will ensue if the stay is not granted. The concept of "irreparable harm" is discussed extensively in RJR-MacDonald and other cases. While it may be the case that some allegations of "serious and irreversible harm" overlap with "irreparable harm", it is important to note that they are not the same thing. Of course, a type of harm could be both "irreparable" and "irreversible" (recognizing that those terms do have a high degree of overlap), but the "seriousness" of the harm is another matter.

The Tribunal notes that the seriousness of any irreversible harm would be addressed as a mandatory part of the test under s. 145.2.1(2)(b) itself while the magnitude of any irreparable harm would be addressed only as part of the third stage of the RJR-MacDonald test where the balance of convenience is being assessed. It must be recalled that irreparable harm deals with the type of harm, not its magnitude. Given that the parties made little effort to distinguish between irreparable and irreversible harm, the Tribunal will not attempt to delineate the boundaries of each in relation to the other here. For this step of the analysis, the Tribunal remains focused on irreparable harm.

While the wording of the two phrases (i.e., "irreparable harm" and "serious and irreversible harm") is clearly different, it is perhaps even more important that "irreparable harm" and "serious and irreversible harm" will often not be measured on the same time scale. In assessing "irreparable harm" as part of the stay test, the Tribunal is focused on determining what harm may ensue as a result of activities undertaken between now and the disposition of the appeal in December 2013 (i.e., the end of the expedited six-month timeline for the disposition of a REA appeal) and whether that harm is of an irreparable nature. If parties simply use, for the stay motion, the material prepared for their main case this creates a problem.

In an expedited case such as this, "irreparable harm" will be measured according to what harm may be caused over the coming months. The Tribunal must ask: will there be any harm caused during this limited period that is irreparable? That necessarily involves a case-specific inquiry regarding what activities are to be undertaken prior to the disposition of the appeal and what types of harm will ensue if a stay is not granted.

36The situation here is distinct from that in PECFN where the Court found that destruction of endangered species habitat would occur if construction of the renewable energy project commenced, and that such destruction constituted irreparable harm. In that proceeding, the Tribunal had revoked a renewable energy approval based on its findings that the project would cause serious and irreversible harm to Blanding's Turtle due to road mortality, nest predation and poaching on public land. The Divisional Court reversed the Tribunal's decision and, pending the hearing of applications for leave to appeal, the Court of Appeal ordered a stay of the approval. The Court of Appeal found that endangered species habitat would be destroyed if the stay were not granted. In that case, the project proponent refused to disclose the start date or the full scope of the proposed work other than to state that it intended to stake out construction boundaries, remove vegetation, fulfil an unexploded ordinance clearing requirement and commence road construction. In para. 21, the Court stated that the proponent could not rely on its argument that it was likely that only limited construction would occur because it refused to disclose its intentions about the full scope of proposed construction activities. In addition, the Court of Appeal stated, emphasis added, that it was not satisfied that the measures proposed by the proponent to mitigate harm would "effectively prevent public use of the roads ... [or] address the other concerns in the record relating to the impact of the roads on nest predation or habitat."

37In this proceeding, the specific activities that will occur prior to May 1 have been delineated by the Approval Holder: vegetation clearing and possibly installation of silt fencing and signage. The Approval Holder has undertaken not to carry out any site preparation or construction activities associated with municipal roads or rights of way, crane pads, access roads or turbine bases and will limit its activities to private property, which are the "concerns in the record" here.

38In the main hearing in this proceeding, the Tribunal considered the conditions in the REA with respect to Blanding's Turtle avoidance measures during construction and stated, at para. 259:

Ms. Gunson and Mr. Crowley agreed that these measures would reduce the risk of road mortality for Blanding's Turtle on access roads during and after construction. The Tribunal therefore finds that, with application of the mitigation and avoidance measures in the REA applicable to the construction phase, the evidence does not demonstrate that the construction of the Project's access roads will cause serious harm to Blanding's Turtle.

39At para. 269, the Tribunal found that "upgrades to municipal roads and the construction of crane pads, turbine bases, and access roads will more likely than not result in an increase in nest predation and cause serious harm to the local population of Blanding's Turtle." At para. 276, the Tribunal stated, with respect to the question of irreversible harm:

Based on the evidence before it, the Tribunal finds that due to improvements in the municipal roads, additional adult Blanding's Turtle fatalities will occur on an ongoing annual basis. The Tribunal also finds that upgrades to the municipal roads and construction of access roads, crane pads and turbine bases will result in increased and sustained predation of Blanding's Turtle nests. Because this is a threatened species protected under the ESA, and because it cannot easily recover from population declines ... these annual losses from road mortality and nest predation represent irreversible harm to the local population.

40As the Tribunal observed in Bovaird, evidence of irreversible harm may overlap with evidence of irreparable harm. In its February 26, 2016 Order, the Tribunal found that the evidence did not support a finding that construction activities associated with the Project will cause serious and irreversible harm. The Tribunal accepts that an increase in turtle mortality or destruction of turtle habitat can be considered irreparable harm, but the evidence provided for the motion does not demonstrate that the proposed activities will cause any increase in turtle mortality or the destruction of turtle habitat. Much of the evidence submitted amounts to speculation about what might occur, rather than convincing evidence that an increase in mortality will more likely than not occur. For example, there is no basis for the allegation that the proposed activities will materially increase the number of vehicles on the roads between now and May 1, leading in turn to an increase in collision mortality.

41Irreparable harm means that it cannot be remedied or cured. Thus, when assessing the nature of the harm alleged here, the Tribunal must consider whether the harm could be remedied, essentially whether the affected natural environment could be restored. It is important to note that the focus is not on whether the total impacts over the life of the Project can be remedied, but whether, in this case, any harm caused by the removal of vegetation and the placement of silt fencing and signage between mid-March and the end of April 2016 can be remedied. The analysis is therefore distinct from the analysis undertaken by the Tribunal in the main hearing regarding whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

42APPEC's evidence does not address the mitigation conditions and avoidance measures set out in the REA to explain why irreparable harm will ensue despite their implementation. For example, Ms. Gunson raises a concern that soil will be disturbed in such a way that turtles may find it attractive for nesting. Under the REA conditions, activities will be concluded prior to the turtle nesting period and, under the Approval Holder's reports put into evidence in the main hearing, including the Environmental Impact Study Report, monitoring of vegetation removal will be required and replanting and site restoration will be carried out as soon as conditions allow. There does not appear to have been consideration given by APPEC's witnesses to whether irreparable harm would be effectively avoided when these measures are implemented. The evidence provided in this case does not establish that turtle mortality will increase, that turtle habitat will be destroyed, or that another form of irreparable harm will be caused by the proposed activities, as was found in PECFN.

43The mitigation and avoidance measures in the REA directly address the very concerns raised by APPEC's witnesses that turtles might be encountered because they might hibernate in unexpected locations or might emerge early from hibernation. Ms. Gunson in her evidence in the main hearing agreed that these measures would be effective in reducing harm to turtles. These measures include the retention of a qualified professional, who must be a person with particular expertise in Blanding's Turtle who is trained or qualified and who is required, prior to any activities, to search all proposed work areas for the presence of Blanding's Turtles, prepare a staff training manual and train persons entering the site regarding steps to take if turtles are encountered, determine whether any activity may adversely affect nesting turtles, and provide direction to the Approval Holder on measures to avoid adverse impacts to turtles. The areas where vegetation can be cleared must be clearly staked in the field and must avoid sensitive areas for turtles. The silt fencing is one of the mitigation measures that must be undertaken to prevent sedimentation and erosion, thus addressing the concern raised by Dr. Beaudry about indirect impacts from sedimentation on permanent and seasonal wetland habitat. The signage will notify users of the lands that they are required to limit vehicle speed to 15 km/h in order to protect turtles.

44The Tribunal finds that the REA conditions governing the proposed work activities adopt a precautionary approach by requiring that steps be taken by the Approval Holder to mitigate risk and avoid harm to Blanding's Turtle if turtles are encountered in unexpected locations or the turtles emerge from hibernation early.

45Given the defined scope of the proposed work, the precautionary measures required under the REA, the speculative nature of APPEC's submissions, and the absence of evidence demonstrating why any harms from that work cannot be remedied, the Tribunal finds that APPEC has not demonstrated that irreparable harm will ensue if a stay is not granted.

Balance of Convenience

46The third part of the stay test is the determination of the balance of convenience. This involves an analysis of which of the parties will suffer the greater harm if the stay is granted or refused pending the disposition of the proceeding.

47APPEC submits that the harm it will suffer is the destruction of Blanding's Turtle and its habitat. APPEC argues that the public interest favours a stay and that there is no urgency for the Approval Holder to proceed with vegetation clearing at this time. APPEC further argues that the Approval Holder has provided insufficient documentation of the financial harm it alleges it will suffer if a stay is granted.

48The Approval Holder submits that none of the harms to Blanding's Turtle that were identified by the Tribunal in its February 26, 2016 Order will arise from vegetation removal, so there is no inconvenience to APPEC; however, it will suffer the risk of significant financial harm if a stay is granted. This is because the timing restrictions in the REA will prevent it from undertaking vegetation clearing between the end of April and October 15, which will delay the final construction of the Project, according to the Approval Holder. It also submits that because of previous delays in the hearing of this matter, it is already at risk of failing to meet its contractual commitments to the Independent Electricity System Operator ("IESO"), which could cause it to have to make liquidated damages payments to the IESO or possibly have its contract terminated. The Approval Holder argues that the public has an interest in renewable energy.

49The sole harm or inconvenience alleged by APPEC is the harm to Blanding's Turtle outlined above. The magnitude of any harm that will be caused is to be addressed at the balance of convenience stage, so it bears emphasizing that the proposed work is limited in scope, location and time and, even if the Tribunal were to assume that some harm would occur, APPEC has not provided convincing evidence to demonstrate that the magnitude of that harm is likely to be significant, widespread or long-lasting in its effects on Blanding's Turtle.

50Balanced against this, the Approval Holder argues that it will suffer financial harm by a delay in its ability to commence vegetation clearing. The Tribunal notes that no detailed evidence to support that assertion was provided, unlike the evidence provided to the Tribunal in Bovaird or Pitt. The Approval Holder's argument that the public interest favours refusal of a stay is based on a very general policy adopted by the Ontario government in favour of renewable energy. There is no reason to believe that a delay in the start of this Project would undermine this policy initiative or the public interest.

51The Tribunal also notes that at this point in this proceeding, it has not yet addressed the issue of remedy. The EPA provides the Tribunal, once it has made a determination of "serious and irreversible harm", with discretion to make an order revoking or altering the REA or directing the Director to take any action that the Tribunal considers appropriate. Thus, one possible outcome of this proceeding is revocation of the REA in whole or in part. The current circumstances are similar to those in Dixon v. Director, Ministry of the Environment, 2014 CarswellOnt 13522 (Div. Ct.), where the Divisional Court stated when addressing a stay motion in the context of a renewable energy approval appeal, at para 72:

If the appellants are successful on their appeal, the respondents would be required to decommission the projects and could not commence operations. In other words, they are expending monies on projects that might not become operational if the appellants' appeals are allowed and they do so at their own financial risk. However, in undertaking that risk I am satisfied that they are not causing irreparable harm of the nature described in RJR-MacDonald which would allow this court to grant the appellants the extraordinary relief they are seeking on these motions.

52The Tribunal finds that APPEC has not demonstrated that a stay is warranted in these circumstances.

Conclusion

53Given the Tribunal's finding that irreparable harm will not ensue if a stay of the Approval Holder's proposed activities is refused at this time, the Tribunal finds that APPEC has not satisfied the stay test and its motion is dismissed. This conclusion is based on the evidence provided. The Tribunal's Rules do not preclude a party from again seeking the requested relief, should circumstances change in the future.

ORDER

54The Tribunal dismisses APPEC's motion for a stay.

Motion Dismissed

Stay Refused

"Marcia Valiante"

MARCIA VALIANTE

MEMBER

"Hugh S. Wilkins"

HUGH S. WILKINS