Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 5, 2016

CASE NO.: 13-003

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

Appellant: Prince Edward County Field Naturalists (ERT File No. 13-003)

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

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for Ostrander Point Wind Park

Reference No.: 7681-8UAKR7

Property Address/Description: Helmer Road and Babylon Road

Municipality: South Marysburgh

Upper Tier: County of Prince Edward

ERT Case No.: 13-003

ERT Case Name: Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change)

Heard: January 15, 2016

APPEARANCES:

Parties Prince Edward County Field Naturalists Counsel Eric Gillespie

Parties Director, Ministry of the Environment and Climate Change Counsel Sylvia Davis and Sarah A. Kromkamp

Parties Ostrander Point GP Inc. as general partner for and on behalf of Ostrander Point Wind Energy LP Counsel Douglas Hamilton and Sam Rogers

Participants Prince Edward County South Shore Conservancy Counsel Chris Paliare and Andrew Lokan

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

Background

1These reasons relate to a motion brought by Ostrander Point GP Inc. as general partner for and on behalf of Ostrander Point Wind Energy LP (“Ostrander”), heard on January 15, 2016. The notice of motion asks for:

1. An order, confirming that this Tribunal no longer has jurisdiction to consider the appropriate remedy as the REA has been deemed confirmed by the Tribunal pursuant to s. 145.2.1(6) of the Environmental Protection Act (“EPA”); and

2. In the alternative, an order recusing this Tribunal Panel due to a reasonable apprehension of bias.

2Ostrander’s renewable energy approval (the “REA”) was issued by the Director, Ministry of the Environment and Climate Change (the “Director”, “MOECC”) on December 20, 2012. It would put nine wind turbine generators, with a total installed nameplate capacity of 22.5 megawatts, and supporting facilities on 324 hectares of provincial Crown land in Prince Edward County, known as the Ostrander Point Crown Land Block (the “Project”). After a 40 day hearing, the Tribunal revoked the Director’s decision to issue the REA in a decision dated July 3, 2013 (Alliance to Protect Prince Edward County v. Ontario (Ministry of Environment) [2013] O.E.R.T.D. No. 40 (“APPEC”)). The Tribunal found that engaging in the Project in accordance with the REA will cause serious and irreversible harm to animal life under the EPA appeal test, and as a result revoked the decision of the Director. Additional background information about the REA and the Project can be found in the Tribunal’s 2013 decision.

3The Tribunal’s 2013 decision was appealed to the Divisional Court and then to the Court of Appeal. On April 20, 2015 the Ontario Court of Appeal released its decision, reported as Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269, allowing, in part, the appeal by Prince Edward County Field Naturalists (“PECFN”) of the Divisional Court decision in Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2014 ONSC 974, issued on February 20, 2014. The Court of Appeal decision restored the Tribunal’s conclusion on serious and irreversible harm but remitted the matter back to the Tribunal to address remedy, stating at para. 101:

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

4To distinguish between the various decisions in this matter and the names of the parties, the Tribunal’s 2013 decision will be referred to as the “APPEC decision”, the Divisional Court’s decision will be referred to as the “Ostrander decision”, and the Court of Appeal’s decision will be referred to as the “PECFN decision”. The current proceedings are referred to as the remedy hearing.

5The remedy hearing involved eight hearing days in which all parties brought evidence. In its final written submissions of December 17, 2015, Ostrander raised two preliminary issues for the first time: that the decision of the Director to issue the REA has been deemed confirmed by the Tribunal pursuant to s. 145.2.1(6) of the EPA due to passage of time, and, in the alternative, that the Tribunal panel should recuse itself due to a reasonable apprehension of bias. The Tribunal requested that Ostrander file a notice of motion and accompanying materials regarding these preliminary issues, so that the parties could make their arguments on the motion prior to making final submissions on the substance of the remedy matter. Ostrander then filed a notice of motion on January 6, 2016 and the motion was heard on January 15, 2016. The Tribunal reserved its decision on that date.

6These are the findings and reasons for the Tribunal’s order dismissing Ostrander’s motion.

Issues

7The issues raised in the motion are:

1. whether the decision of the Director has been deemed confirmed by the Tribunal pursuant to s. 145.2.1(6) of the EPA and s. 59 of Ontario Regulation (“O. Reg. 359/09”); and, in the alternative,

2. whether the Tribunal panel should recuse itself from addressing remedy as remitted to it by the Court of Appeal due to an alleged reasonable apprehension of bias.

Relevant Legislation, Regulations and Rules

8EPA

Purpose of Act

3. (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

PART V.0.1 – Renewable Energy

47.2 (1) The purpose of this Part is to provide for the protection and conservation of the environment.

PART XIII – Appeals to Tribunal

Powers of Tribunal

145.2.1

What Tribunal must consider

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

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment. 2009,

(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.

Powers of Tribunal

(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.

Appeals from Tribunal

145.6 (1) Any party to a hearing before the Tribunal under this Part may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.

O. Reg. 359/09, Renewable Energy Approvals under Part V.0.1 of the Act

59. (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:

1. 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’s Rules of Practice (the “Rules”)

Purposes of the Rules

1. The purposes of these Rules are: to provide a fair, open, accessible and understandable process for Parties and other interested persons; to facilitate and enhance access and public participation; to encourage co-operation among Parties; to assure the efficiency and timeliness of proceedings; and to assist the Tribunal in fulfilling its statutory mandate.

Interpretation

4. These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

5. During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.

Discussion, Analyses and Findings

Issue No. 1: Whether the decision of the Director has been deemed confirmed by the Tribunal pursuant to s. 145.2.1(6) of the EPA and [s. 59](https://www.canlii.org/en/on/laws/regu/o-reg-359-09/latest/o-reg-359-09.html) of [O. Reg. 359/09](https://www.canlii.org/en/on/laws/regu/o-reg-359-09/latest/o-reg-359-09.html)

Submissions

9On the motion, Ostrander originally argued that either a small, but unspecified, portion of the six-month time limit under s. 145.2.1(6) of the EPA remained when the Court of Appeal remitted the matter back to the Tribunal to address remedy, or, in the alternative, that the “most generous position for the Appellant is that the six-month limit started afresh on April 20th [2015] and the Tribunal had until October 20th [2015] to dispose of this remedy hearing.”

10In its written reply submissions, Ostrander clarified its position that “the statutory time limit requirement and the deemed confirmation provision apply to both a hearing of an REA appeal as well as a re-hearing of all or part of an REA appeal”. Further, it argued “that only a small portion (e.g., several weeks) of the new or fresh six month period should be available for this remedy hearing – i.e., a portion of the six-months that takes into consideration the fact that the remedy part of the appeal should be shorter than the main part of the appeal.” Ostrander submits that a broad and purposive approach makes the Court’s decision “akin to a notice of appeal”. Ostrander further submits that this is consistent with the purpose of the statutory time limit requirement to ensure that hearings are completed expeditiously. Ostrander submits that there has been no adjournment of the time limit requirement, on consent or otherwise, and there is no order of the Court dispensing with the requirement.

11Ostrander argues that determining a specific end date for the statutory period is not necessary because, whatever the date may be, it has expired. Ostrander maintains, therefore, that the REA is deemed to have been confirmed, and the Tribunal no longer has any jurisdiction to consider the appropriate remedy.

12Ostrander submits that it has “made it clear during this remedy hearing that it may seek to rely on this statutory time limit requirement.” In its reply submissions, Ostrander adds that it did not waive “its statutory rights concerning the application of the statutory time limit requirement and deemed confirmation provision to this remedy hearing” but “was considering its options, including its options pursuant to the deemed confirmation provision.”

13The Director disagrees with Ostrander’s position on the jurisdiction issue. The Director submits that the Tribunal did dispose of the hearing within the required six-month period by issuing its decision on July 3, 2013, and that no new or fresh statutory deeming time period arose when the Court of Appeal remitted the matter back to the Tribunal. The Director adds that the remedy hearing should be decided as expeditiously as possible.

14PECFN submits that Ostrander’s position would lead to an absurd result because, for example, time would have expired before the Court of Appeal remitted the matter back to the Tribunal. PECFN cites the Supreme Court of Canada’s decision in Re. Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27 (“Rizzo”), at para. 27:

It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purposes of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

15PECFN further submits that Ostrander’s jurisdiction argument misinterprets the wording and spirit of the legislation, as well as the intent of the Court of Appeal in the PECFN decision to remit the matter back to the Tribunal.

16The Prince Edward County South Shore Conservancy (“SSC”) also cites Rizzo and argues that Ostrander’s jurisdiction arguments would bring absurd consequences. The SSC submits that, on a plain reading of s. 145.2.1(6), the Tribunal discharged its obligation to render a decision within 6 months of the notice of appeal by releasing its original decision on July 3, 2013. The SSC further submits that the effect of s. 145.2.1(6) on this proceeding was spent, such that the Court of Appeal’s subsequent direction the matter of remedy be remitted to the Tribunal, and the resulting remedies hearing, operate outside of the framework of s. 145.2.1(6).

17The SSC argues that the one day remaining of the original six-month time period when the Tribunal rendered its decision on July 3, 2013 either expired during the appeal period or, if the appeal period is excluded despite there being no statutory provision to that effect (as Ostrander appears to assume), then only one day remained for the remedy hearing from the date the Court of Appeal’s PECFN decision was issued on April 20, 2015.

18Regarding Ostrander’s alternative argument, that the six-month period “started afresh” when the Court of Appeal sent the matter of remedy back to the Tribunal, the SSC argues that the necessary trigger for the start of the six month period under s. 59(1) of O. Reg. 359/09 is a notice of appeal from the decision of the Director, which no party filed.

19The SSC agrees with the Director that there is a requirement under general law and Tribunal Rule 1 that proceedings should be efficient and timely, and decisions rendered within a reasonable time. However, the SSC argues that during the scheduling and hearing of the remedy matter, including numerous telephone conference calls and in person attendances, Ostrander did not specifically raise a “one day remaining” or “started afresh” argument, which would have given the other parties and the Tribunal an opportunity to respond before proceeding with the remedy hearing. Rather, the SSC argues, Ostrander only generally stated that it was relying on its statutory rights and did not assert these arguments until the final submissions on remedy.

20The SSC submits that the remedy hearing has given all parties “the opportunity to present their case fully and fairly”, emphasizing that this was Ostrander’s argument before the Divisional Court.

Analysis and Findings

21In a renewable energy approval proceeding, service of a notice of appeal upon the Tribunal is the starting point of the statutory time period under s. 145.2.1(6) of the EPA and s. 59 of O. Reg. 359/09. The Director’s decision is only deemed to be confirmed by the Tribunal if the Tribunal does not dispose of the hearing in respect of the Director’s decision within the six-month time period. Ostrander’s argument regarding the deeming provision must be considered in the context of the specific circumstances of this particular appeal.

22The original proceeding before the Tribunal involved both grounds of the EPA harm test, many issues, lengthy evidence heard over 40 hearing days, and written and oral submissions. The decision is approximately 120 pages long, with an additional 10 Appendices. The Tribunal issued the decision, including its determination that the appropriate remedy under s. 145.2.1(4) was revocation of the Project, on July 3, 2013, within the statutory six-month time period prescribed by s. 145.1.2(6) of the EPA and s. 59 of O. Reg. 359/09. The decisions of the Divisional Court and the Court of Appeal in this matter were issued on February 20, 2014 and April 20, 2015, respectively, long after the expiry of the six-month statutory period that would have ended on July 4, 2013.

23The Tribunal’s decision made a finding that engaging in the Project will cause serious and irreversible harm under s. 145.2.1(2)(b) of the EPA test and the Tribunal then dealt with remedy under s. 145.2.1(4)(a). The Tribunal finds that its decision “disposed of the hearing” within the meaning of s. 145.2.1(6) of the EPA and the deeming provision was not engaged. The Tribunal finds, on this basis alone, that Ostrander’s motion on this first issue should be dismissed.

24The subsequent appeals of the Tribunal’s decision to the Divisional Court and the Court of Appeal, and the remitting of the remedy issue back to the Tribunal by the Court of Appeal, all occurred under s. 145.6(1) of the EPA. There are no express provisions of the EPA and its regulation that state what happens regarding the deeming provision and the six-month statutory time limit if there is a statutory appeal under s. 145.6 of the EPA and the matter of remedy is remitted back to the Tribunal. The Tribunal finds that any deeming provision that has such a significant impact on a party’s rights, and on the ultimate determination of an appeal from a decision of the Tribunal, would be clearly and explicitly set out in the EPA. The Tribunal further finds that the s. 145.2.1(6) deeming provision does not apply to the remedy matter remitted back to it by the Court of Appeal in consequence of the s. 145.6(1) statutory appeal provision.

25If Ostrander’s interpretation of s. 145.2.1 of the EPA and O. Reg. 359/09 were correct, and the Tribunal no longer has jurisdiction to decide the remedy matter remitted to it by the Court of Appeal in the PECFN decision, then the Tribunal cannot do what it was directed to do by the Court of Appeal. The Tribunal finds that this would lead to the absurd consequence of a deemed confirmation of the Director’s decision by the Tribunal, even though the Tribunal had specifically disposed of the matter by revoking the Director’s order within the statutory timeline.

26Interpreting the renewable energy approval appeal provisions such that the deeming provision is “reactivated” in this case, would nullify the Tribunal’s earlier finding of serious and irreversible harm to animal life. This would be contrary to the general purpose of the EPA “to provide for the protection and conservation of the natural environment”, set out in s. 3(1), and the purpose of renewable energy approvals “to provide for the protection and conservation of the environment”, set out in s. 47.2(1). Applying Rizzo, the Tribunal finds that such a result “is incompatible with other provisions or with the object of the legislative enactment.”

27During the remedy hearing itself, Ostrander only generally raised the issue of the Tribunal’s jurisdiction to address remedy and did not actually state its position until final written and oral submissions. Ostrander’s explanation is that it was “considering its options”. The Tribunal agrees with the SSC’s submission that Ostrander should have raised the issue at the outset of the remedy hearing, and not vaguely stated that it “may seek to rely on this statutory time limit requirement.” Parties before the Tribunal have an obligation to raise all matters at issue in a timely and forthright manner.

28The Tribunal agrees with the submissions of the Director, PECFN and the SSC that there is a general requirement that hearings proceed expeditiously and that is particularly the case for renewable energy approval appeals. This principle and other general principles of administrative proceedings are reflected by Tribunal Rules 1, 4 and 7, which deal with the purpose and interpretation of the Rules. In particular, the Tribunal finds that this matter has been dealt with in a manner that has balanced “a fair, open, accessible and understandable process” with “the efficiency and timeliness” of the proceeding.

Conclusion on Issue No. 1

29The Tribunal finds that its decision issued on July 3, 2013 “disposed of the hearing” within the meaning of s. 145.2.1(6) of the EPA, and, therefore this deeming provision and s. 59 of O. Reg. 359/09 were no longer engaged.

Issue No. 2: Whether the Tribunal panel should recuse itself from the remedy portion of this proceeding due to an alleged reasonable apprehension of bias

Submissions

30Ostrander submits that there is a reasonable apprehension of bias due to the cumulative actions of the Tribunal panel, specifically that: (i) the panel members wrote subsequent decisions in other renewable energy approval appeals that “further elaborated” on reasons for this panel’s findings in its July 3, 2013 decision in APPEC; (ii) this panel made an interim ruling during the remedy hearing in which it declined to qualify a witness as an expert as proposed by MOECC; and (iii) the panel allowed the remedy hearing to “languish”.

31The Director takes no position on this issue in Ostrander’s motion.

32PECFN and the SSC oppose this issue on the motion. They submit that Ostrander’s allegations are totally unproven and demonstrably incorrect with respect to any reasonable apprehension of bias regarding the Tribunal panel hearing this matter. They argue that Ostrander provided no evidence to support any of its allegations. They further submit that Ostrander failed in its obligation to raise an apprehension of bias allegation at the earliest opportunity.

Analysis and Findings

Introduction

33A different panel of the Tribunal has recently provided a legal analysis of the principles and jurisprudence relating to apprehension of bias allegations in a similar recusal motion in a renewable energy approval appeal: Hirsch v. Director, MOECC (Case No. 15-068; January 15, 2016) (“Hirsch”). The Tribunal panel’s analysis in that case began by recognizing, as does this Tribunal panel, that an allegation of bias against members of a decision-making body in the course of their duties is a serious matter as it goes to the integrity of the institution. The panel in Hirsch went on to review and summarize the well-established jurisprudence in this area. This panel of the Tribunal agrees with the legal analysis, and adopts the reasoning, set out in paras. 135 and 136 of that order, as follows:

135. The parties have set out the test for reasonable apprehension of bias, as well as several important principles applied by the courts. As noted by the parties, the test applied by the Supreme Court of Canada at para 31 of R. v. S. (R.D.) is:

… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly?

136. It is also important to repeat the principles that have been applied by the courts in this regard:

a. Tribunal Members have a duty of impartiality. The Supreme Court of Canada in R. v. S. (R.D.) stated, at para. 104 and 105, that impartiality can be described as “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions” and that bias “denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues;”

b. the courts recognize a presumption that adjudicators will be fair and impartial, in accordance with their oath of office;

c. suspicions of bias are not sufficient to meet the test, there must be a “real likelihood” or probability of bias;

d. such allegations should be brought forward as soon as they are known;

e. the inquiry into reasonable apprehension of bias is highly fact-specific and the context and particular circumstances are of supreme importance (Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77); and

f. the person moving for recusal has the onus of establishing reasonable apprehension of bias or actual bias by clear and convincing evidence. As the Supreme Court held in R. v. S. (R.D.) at para. 113, “the threshold for a finding of a real or perceived bias is high.”

34The test used in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 117 per Cory, J. as cited above, is the same test cited in Ostrander’s submissions from Committee for Justice & Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 395-395 (per deGrandpre, J. in dissent).

35The parties cited additional cases in this proceeding that confirm that a party alleging bias must show a “real likelihood or probability of bias” supported by evidence, which is a “high threshold”. The SSC, for example, cited in this regard Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA 176, at paras. 26-30; Serdahely (Estate of), 2005 ABQB 861, at para. 7; CASP et al. v. AG of Canada, 2015 PESC 9 at para. 102; and Newfoundland (Treasury Board) v. N.A.P.E., 1999 19842 (NL SCTD) at para. 23.

36In these reasons the Tribunal will first address Ostrander’s submissions with respect to each Vice-Chair’s prior decisions, and then the submissions regarding conduct in this hearing.

(i) Decisions by the Tribunal Members in other Renewable Energy Approval Appeals

a. Vice-Chair Wright

37Ostrander argues that the Tribunal made comments in its decision Lewis v. Ontario (Ministry of Environment), [2013] O.E.R.T.D. No. 70 (“Lewis”) (issued on November 12, 2013) which raise a reasonable apprehension of bias in this remedy hearing. Vice-Chair Wright was a co-panelist in Lewis, with Associate Chair DeMarco, and the decision was issued while the Tribunal’s July 3, 2013 decision in APPEC was under appeal to the Divisional Court. Ostrander argues that the “comments” were “largely irrelevant” to the Lewis appeal, and therefore an attempt to “bootstrap” the decision in APPEC. Ostrander’s notice of motion does not indicate which paragraphs it refers to in Lewis, but in reply submissions it alleges that the following paragraphs of Lewis amount to an apprehension of bias in this case: 22 to 25, 28 to 31, 35, 37, 40, 44, 47, 63, 71, 98-99, and 107.

38Ostrander also alleges that Associate Chair DeMarco has a conflict of interest relating to this appeal, and the fact that he sat on the Lewis panel with Vice-Chair Wright raises an apprehension of bias in this remedy hearing.

39In its reply submissions on the motion, Ostrander raises, for the first time, a second decision of Vice-Chair Wright in Van Den Bosch v. Director, Ministry of the Environment (2014), 90 C.E.L.R. (3d) 208, issued on July 29, 2014, (“Van Den Bosch”), at para. 186, as an example of what Ostrander alleges is “bootstrapping”. Ostrander alleges that Vice-Chair Wright “attacked the reasoning of the Divisional Court and commented generally on the alleged (and unproven) impracticality of determining the magnitude of a population of certain species”. Ostrander’s reply submissions assert that “it is therefore reasonable to think that the Tribunal Panel will again try to defend its original decision to revoke the REA in this remedy hearing.”

40Ostrander filed no affidavit evidence to support its allegations, stating it would rely on the “evidence referred to” in its submissions. Ostrander argues that the written reasons by a different panel in the subsequent Lewis decision, and in Van Den Bosch, stand on their own as evidence of “bootstrapping” without any need for affidavit evidence.

41The Tribunal observes that, as noted in the analysis of the jurisprudence above, there is a clear presumption that adjudicators will be fair and impartial, in accordance with their oath of office. The case law is consistent that there must be cogent evidence to support an allegation of apprehension of bias. The Supreme Court has stated that “the threshold for a finding of a real or perceived bias is high”, and that mere speculation or conjecture is insufficient to establish an apprehension of bias in a reasonable observer.

42Tribunals are quasi-judicial decision-making bodies tasked with determining appeals on the facts and law in each case that comes before them. Each member of an administrative tribunal is an independent decision-maker, and each panel independent of other panels. While tribunal decisions are not binding on subsequent tribunal panels, tribunals will, nonetheless, generally be consistent in their analysis of the law and their treatment of similar fact situations, or give some explanation for departing from an analysis in a previous decision. Of course, both the tribunal members and counsel appearing before them should be aware of prior relevant decisions, and counsel may make submissions to persuade the tribunal panel that it should follow a line of reasoning, or depart from it.

43An allegation of bias is serious and goes to the heart of the fundamental rationale for administrative justice – that parties are entitled to have their rights adjudicated by an impartial tribunal. In this context, Ostrander’s allegation that Vice-Chair Wright’s participation in the Lewis and Van Den Bosch decisions somehow impacts his ability to decide this remedy hearing requires more than mere speculation. Ostrander has not explained how particular passages in the other decisions demonstrate that Vice-Chair Wright’s ability to decide has been impacted; Ostrander has not provided any evidence that there could be a reasonable perception that Vice-Chair Wright exhibits a closed mind, a lack of impartiality, or otherwise would not properly consider the facts, arguments and issues. Ostrander filed no affidavit evidence on its motion that would be subject to cross-examination by, or responding evidence from, the other parties. The Tribunal finds that Ostrander’s alternative argument on the motion fails on this preliminary point. An examination of the passages in the Lewis and Van Den Bosch decisions that Ostrander relies upon, however, demonstrates the lack of merit to its bias argument.

44Lewis was a renewable energy approval appeal in which one of the grounds of appeal was serious and irreversible harm to animal life involving consideration of Bald Eagle habitat, a “special concern” species under the Endangered Species Act (“ESA”). In Lewis, as Ostrander notes, the Tribunal’s decision in APPEC is cited with approval. Ostrander’s submissions fail to point out, however, that, in that case, the approval holder and the Director made the APPEC decision the focus of their submissions. The appellant, Mr. Lewis, was not represented by counsel.

45Paragraph 7 of Lewis provides:

The Tribunal has addressed the statutory test under s. 142.1(3)(b) and s. 145.2.1(2)(b) of the EPA in a number of recent cases. The Approval Holder and the Director rely primarily on … APPEC in their final submissions. The Approval Holder cites the summary of applicable principles set out in APPEC (as well as Monture v. Ontario (Ministry of the Environment) (2012), 73 C.E.L.R. (3d) 87 (Ont. Env. Rev. Trib.)) and submits that Mr. Lewis has not proven that “any significant harm – let alone any serious and irreversible harm – will occur from engaging in this project in accordance with the REA”. The Director makes a similar submission in the context of the guidance provided in APPEC.

46The Tribunal’s finding on the relevance of the ESA permit regime on a renewable energy approval appeal underlies the specific paragraphs in Lewis to which Ostrander refers. It is a finding made in APPEC and other Tribunal decisions, and is important in relation to the second, or environmental, branch of the EPA harm test. This is clear from the following passages in Lewis cited by Ostrander:

25. As was the case in APPEC, the likely effectiveness of any proposed measure (whether contained in a renewable energy approval or some other document) is something to be considered by the Tribunal;

26. Unlike the turtle species at issue in APPEC, the bald eagle is not subject to the ESA’s permit regime (as it is a special concern species rather than endangered or threatened), but the general principle applies such that the Tribunal will not simply defer to MNR management decisions on species at risk under other regimes, which are not subject to appeal to an independent tribunal, in carrying out its role in applying the serious and irreversible harm test under the EPA. The Tribunal’s own independent analysis of serious and irreversible harm at the relevant scale and the effectiveness of any mitigation measures (see for example, APPEC at paras. 304 and 323) is especially important given that the Tribunal is asked to apply a unique statutory test that is not found in other relevant regimes”;

27. … By drafting the EPA the way it did, the Legislature created a unique test that is not to be answered by simply reconsidering what was done at the REA approval stage or by deferring to other regimes such as the ESA.”

47The above principle is expressly approved by the Court of Appeal in the PECFN decision, at paras. 71 to 73, as follows:

71. In any event, the ESA permit was not binding on the Tribunal. Rather the permit expressly states that it does not release Ostrander from the “obligation to obtain permission under or to comply with all applicable federal, provincial and municipal laws.” Hence, Ostrander was obliged to comply with the EPA’s requirement that it obtain an REA and abide by the decision of the Tribunal if the REA were appealed.

72. I agree with the Tribunal’s comment that “although [Ostrander] is bound by the ESA Permit, a contravention of which may lead to prosecution under the ESA, for the Tribunal’s purposes in this analysis it is simply evidence relevant to conditions to the REA, which must be assessed as would any other condition.”

73. The Tribunal carefully considered the mitigation measures required by the ESA permit and concluded they were incomplete and would not be effective. The Tribunal exercised its independent judgment and found that the evidentiary value of the permit was outweighed by the expert evidence introduced. In doing so, the Tribunal was carrying out its distinct statutory mandate under s. 145.2.1(2) of the EPA.

In its submissions on this issue on the motion, Ostrander does not refer to the PECFN decision on this point, which refutes Ostrander’s “bootstrapping” argument.

48Van Den Bosch was a renewable energy approval appeal in which an appellant alleged that a wind turbine project would cause serious and irreversible harm to Redside Dace, an endangered fish species. The paragraph cited by Ostrander is taken from Vice-Chair Wright’s analysis of law in relation to assessing the presence and population size of a species at risk in the context of a renewable energy approval process. This was a key issue in that appeal. Vice-Chair Wright found that there was Redside Dace habitat in the area of the project but it could not be established that a population of that species was in fact in the area. He went on to conclude that the appellant had not established that the project would cause serious and irreversible harm to Redside Dace. This issue is not the same as the issue before this panel in the remedy hearing, and the Tribunal’s reasoning is consistent with the Court of Appeal’s PECFN decision.

49The Van Den Bosch decision was issued July 29, 2014, which is after the Divisional Court’s Ostrander decision (which was binding on the Tribunal at the time) and prior to the Court of Appeal’s PECFN decision. The paragraph in Van Den Bosch on which Ostrander relies reads as follows:

186. For many species at risk it is simply impractical to determine the magnitude of the population, even if that is a population of a single individual, under the expedited renewable energy appeal process. For instance, given the short time available between the granting of a renewable energy approval and the hearing of an appeal, a species at risk’s life cycle may mean that it is hibernating, out of the country, or not otherwise amenable to being surveyed at a time, place and manner convenient to the hearing process.

50In the PECFN decision the Court of Appeal reversed the Divisional Court’s Ostrander decision on this same point regarding the population of species, finding:

67. The Divisional Court also stated the Tribunal needed to know the turtle’s population size in Prince Edward County and in all of Ontario. There is nothing the EPA to support this suggestion. The scale to be considered in assessing whether there will be serious and irreversible harm is entirely within the expert Tribunal’s authority to decide.

68. When considered in light of the evidence, I am satisfied the Tribunal could reasonably accept the evidence of Ms. Gunson and Dr. Beaudry that the project would cause serious and irreversible harm without having specific numerical date on the turtle’s population size, the volume of traffic, and the rate of mortality. I am also satisfied that the Tribunal’s reasons for accepting the opinions of these experts are intelligible, and its conclusion there would be serious and irreversible harm falls within the range of reasonable outcomes and should not be disturbed.

51Ostrander’s allegation that Vice-Chair Wright “discussed and collaborated on the Decision concerning this appeal”, i.e., the APPEC decision, with Associate Chair DeMarco is utter and unfounded speculation. As discussed above there is no evidentiary basis for the assertion. Applying the Supreme Court test from R. v. S. (R.D.), the Tribunal finds that a reasonable person could not possibly infer from the decisions dismissing the appeals in Lewis and Van Den Bosch, made upon the different evidence and issues, and issued after the panel’s decision in APPEC, any reasonable apprehension of bias by Vice-Chair Wright in this remedy hearing. In addition, as discussed above, the Court of Appeal made legal findings in its PECFN decision, including findings relevant to the Tribunal’s findings in Lewis and Van Den Bosch, that are binding in this remedy hearing and undermine the logic of Ostrander’s bias argument.

52The Tribunal also finds that Ostrander’s allegation was not raised at the first opportunity, as it should have been. Lewis was decided in November, 2013, which was after the Tribunal’s July 3, 2013 decision in this matter, but prior to the Ostrander decision of the Divisional Court on the appeal (February 20, 2014). Ostrander raised no issue of an apprehension of bias based on the Lewis decision at either the Divisional Court or at the Court of Appeal. Similarly, Ostrander did not raise any issue at the Court of Appeal regarding the previous Van den Bosch decision that was issued on July 29, 2014. As pointed out by the SSC, if Ostrander had concerns about impartiality the appropriate step would have been for Ostrander to ask the Court of Appeal to remit the hearing on the remedy matter to a differently constituted panel of the Tribunal.

53The Tribunal finds there is no evidence leading to any reasonable apprehension of bias against Vice-Chair Wright, nor do the Lewis and Van Den Bosch decisions on their face raise an apprehension of bias.

b. Vice-Chair Gibbs

54Ostrander alleges for the first time in reply submissions on January 14, 2016 that para. 215 in a decision by Vice-Chair Gibbs in Fata v. Director, Ministry of the Environment (2014) 90 C.E.L.R. (3d) 37, (“Fata”) also raises a reasonable apprehension of bias. Ostrander alleges that in Fata Vice-Chair Gibbs “took issue with the Divisional Court ruling [in the Ostrander decision] and suggested that, as a result of that ruling, ‘irreversible harm cannot be shown for the numerous species of plants and animals in Ontario for which… an order of magnitude cannot be calculated.’” Ostrander alleges that “this extraneous commentary on this case while it was under appeal suggests that this Tribunal Panel was improperly focused on defending or bootstrapping its prior decision.”

55For the same reasons set out above under Part 2(i)a, Ostrander’s allegations are clearly inadequate to raise an apprehension of bias against Vice-Chair Gibbs. Once again, Ostrander did not file any evidence to counter the presumption of impartiality and to prove its serious allegations. It is clear that the Tribunal’s analysis in Fata was focused on the issues in that case. It is the Tribunal’s role to make a determination on the issues before it, which involves interpreting legislation and applying binding court decisions to the evidence. Further, the Divisional Court’s interpretation of the EPA section that was the subject of interpretation in Fata has now been overturned by the Court of Appeal, and its decision is the one that is currently binding on the consideration of this matter before the Tribunal in this proceeding. Again, Ostrander did not raise any allegation of an apprehension of bias relating to Vice-Chair Gibbs at the Court of Appeal level in this case; nor did Ostrander even raise the allegation before this Tribunal panel until its final reply submissions in the hearing of the remedy matter.

56As with the submissions relating to Vice-Chair Wright, Ostrander has not explained how particular passages in Fata demonstrate that Vice-Chair Gibbs’ ability to decide has been impacted; Ostrander has not provided any evidence that there could be a reasonable perception that Vice-Chair Gibbs exhibits a closed mind, a lack of impartiality, or otherwise would not properly consider the facts, arguments and issues. The Tribunal finds there is no evidence leading to any reasonable apprehension of bias against Vice-Chair Gibbs, nor does the Fata decision on its face raise an apprehension of bias.

57The Tribunal finds, therefore, that Ostrander’s allegations regarding both Vice-Chairs are not supported by any cogent evidence, nor do the decisions on their face raise an apprehension of bias.

(ii) Conduct in this Remedy Hearing – Expert Qualification

58Ostrander alleges that the Tribunal’s failure to qualify another party’s witness, Karen Bellamy, as an expert witness in the remedy hearing raises an apprehension of bias. Again, Ostrander did not file any evidence to challenge the presumption of impartiality. The Director, who called Ms. Bellamy as a witness, does not support Ostrander’s recusal argument on the motion.

59Ms. Bellamy is an employee of the Ministry of Natural Resources and Forestry (“MNRF”). She was not called as a witness in the original hearing, when the Tribunal heard evidence from numerous expert witnesses on the question of the Project’s environmental impacts. During the hearing of this remedy matter, which is focused on the harm to one specific species (Blanding’s turtle) and its habitat, MOECC called MNRF employee Joe Crowley as an expert biologist. He was qualified to give expert opinion evidence as a species-at-risk herpetologist with expertise in Blanding’s turtle.

60MOECC proposed to have Ms. Bellamy qualified by the Tribunal in the hearing of this remedy matter as an expert “biologist in species conservation and management”. PECFN objected that her qualifications did not relate to the opinion offered in her witness statement. The Tribunal heard submissions from all parties on this point, and made an oral ruling as follows:

Upon review of the intended evidence, much of it goes to the ESA permit process, which was relevant to the first stage of this hearing. However, she does not have expertise in relation to the opinion she proposes to give; i.e., the impact of the proposed REA conditions on the particular endangered species here.

For instance, paragraphs 9, 12, 18 and 19 of her witness statement; these opinions directly relate to this species (Blanding’s turtle). The evidence is that she relies on others at MNRF for that specific expertise. For example, we just heard from Mr. Crowley, upon whom she relies.

The Tribunal is prepared to receive relevant fact evidence from Ms. Bellamy. Any concerns relating to her impartiality could go to the weight of that evidence.

61The hearing of this remedy matter, like the initial hearing, has been very contentious, requiring numerous interim Tribunal rulings, including rulings on the qualification of expert witnesses. In some cases the Tribunal’s ruling on expertise agreed with PECFN’s submissions and in other cases with those of the other parties.

62The Tribunal reached its decision on whether to qualify Ms. Bellamy as an expert biologist in the remedy hearing after a voir dire held in the ordinary course. The Tribunal heard evidence from Ms. Bellamy as to her qualifications, and submissions from all parties including submissions on the relevance of her expertise as proposed by the Director. The decision on her expertise was made in accordance with both procedural fairness and Rule 7, which reads: “During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.”

63Ostrander did not raise any concerns relating to an apprehension of bias at the time of the ruling on Ms. Bellamy’s qualification in October 2015, or at any time until final submissions on December 17, 2015. Ostrander did not file any evidence to support its allegation that this ruling raised an apprehension of bias, and has failed to satisfy the high threshold for a finding of a real or perceived bias laid out by the Supreme Court in R. v. S. (R.D.) 1997 324 (SCC), [1997] 3 S.C.R. 484.

64For these reasons, the Tribunal finds there is no basis to support Ostrander’s assertion that the failure to qualify Ms. Bellamy as an expert raises a reasonable apprehension of bias against the hearing panel.

(iii) Conduct in this Remedy Hearing - Delay

65Thirdly, as part of its “cumulative” bias argument, Ostrander alleges that the Tribunal panel has allowed the remedy hearing to “languish”. The Tribunal understands this to be an allegation that it allowed an inordinate delay in hearing the evidence on the remedy matter remitted back to the Tribunal by the Court of Appeal.

66An overview of the timeline and hearing events will show that any procedural rulings were fair and reasonable in the circumstances, responsive to the parties, and to the needs of the case. There is no precedent for the application of s. 145.2.1(4) of the EPA; this is the first remedy hearing resulting from the numerous renewable energy approval appeals decided by the Tribunal. This is also not an appeal being heard in the ordinary course because the Tribunal is only hearing the remedy matter that was remitted to it by the Court of Appeal. There is an added complication in this case because, in remitting the matter back to the Tribunal, the Court of Appeal also directed that new evidence should be accepted. Ostrander first asserted that it was the only party entitled to bring new evidence on remedy, necessitating legal submissions and a procedural ruling by the Tribunal that fairness required that the other parties be permitted to file responding evidence.

67The remedy matter remitted to the Tribunal by the Court of Appeal involved approximately 11 telephone conference calls, eight days of evidence and oral submissions, and volumes of written submissions.

68Complications also arose because of a lack of disclosure by MOECC witnesses. The hearing of the evidence began on September 2, 2015, but was adjourned for almost two months when it became apparent in cross-examination that Mr. Crowley had not properly disclosed relevant documents in his possession, power or control relating to the Project’s impact on Blanding’s turtle, and his prior involvement in the ESA permit process. The documents had not been disclosed for the original hearing, nor at the Divisional Court or the Court of Appeal. While Mr. Crowley is an employee of MNRF and it is not a party to the proceeding, the MOECC’s Director is a party and it called MNRF witnesses to testify in the original hearing about the ESA permit process and the Blanding’s turtle. Some of the documentation that was disclosed by Mr. Crowley for the first time on the hearing of the remedy matter was correspondence that was sent, or received, by the MNRF witnesses who did give evidence at the original hearing.

69The above situation was then repeated when Ms. Bellamy admitted during cross-examination that she had not disclosed her relevant notes, despite the Tribunal’s disclosure order on September 4, 2015.

70A review of the scheduling of the hearing days, and the conduct of the hearing, clearly indicates that the Tribunal accommodated the availability of parties’ counsel as best it could, and that the hearing of the remedy matter proceeded as expeditiously as possible given the issues and procedural rulings to be addressed.

71The SSC argues that Ostrander does not attack the merits of any of the individual rulings by the Tribunal panel, and as such cannot argue that the rulings demonstrate a reasonable apprehension of bias. The Tribunal agrees.

72The Tribunal finds there is no basis to support Ostrander’s assertion that the panel’s conduct in the hearing of this remedy matter raises an apprehension of bias.

(iv) Cumulative Impact

73Ostrander argues that its combined allegations satisfy the test for a reasonable apprehension of bias. Ostrander relies on this cumulative argument to submit that it made the allegations at the earliest possible opportunity.

74The Tribunal takes the issue of apprehension of bias very seriously and has carefully considered the arguments on this issue. The Tribunal has found that each of Ostrander’s allegations fails individually due to lack of evidence and lack of any objective foundation. The Tribunal has further found that the allegations were raised late in the process and are based on nothing more than conjecture and surmise. The Tribunal finds that Ostrander’s allegations and arguments do not take on any greater weight when considered cumulatively in this case.

Conclusion on Issue No. 2

75The Tribunal finds that there is no evidence to support a finding of reasonable apprehension of bias with respect to either of the members of the panel in this proceeding. Based on the considerations discussed above, the Tribunal finds that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that it is more likely than not that either Vice-Chair Wright or Vice-Chair Gibbs would not decide fairly and impartially. Therefore, Ostrander’s alternative request for an order recusing this Tribunal panel due to an alleged reasonable apprehension of bias is dismissed.

ORDER

76For the above reasons, the Tribunal dismisses Ostrander’s motion for an order that the decision of the Director has been deemed confirmed by the Tribunal pursuant to s. 145.2.1(6) of the EPA and s. 59 of O. Reg. 359/09, and also dismisses Ostrander’s alternative motion that the Tribunal panel should recuse itself from addressing remedy as remitted to it by the Court of Appeal due to an alleged reasonable apprehension of bias.

Motion that Tribunal Lacks Jurisdiction to Address Remedy Dismissed

Motion for Recusal Dismissed

“Heather I. Gibbs”

HEATHER I. GIBBS VICE-CHAIR

“Robert V. Wright”

ROBERT V. WRIGHT VICE-CHAIR

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Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248