Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 29, 2016

CASE NO.: 16-036

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

Appellant: See Appendix 1 – Appellant List

Approval Holder: wpd Fairview Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for Fairview Wind Project

Reference No.: 3948-9RDLRF

Property Address/Description: various sites

Municipality: Township of Clearview

Upper Tier: County of Simcoe

ERT Case No.: 16-036

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

Heard: April 12, 2016 in Collingwood, Ontario

APPEARANCES:

Parties Counsel/Representative

John Wiggins Priya Vittal

Kevin Elwood, Gail Elwood and Preserve Clearview Inc. Konstantine J. Stavrakos and Liane Langstaff (articling student)

Corporation of the County of Simcoe and Town of Collingwood Julie Abouchar and Nicole Petersen

Corporation of the Township of Clearview Harold Elston and Aynsley Andersen

wpd Fairview Wind Incorporated Nedko Petkov and John Richardson

Director, Ministry of the Environment and Climate Change Andrea Huckins and Sylvia Davis

Participant Canadian Owners and Pilots Association Glenn Grenier

Presenters Collingwood Flying Club George E. Daniels

Susan Richardson, Mandy Bridson, Stephen Bridson, and Elizabeth Marshall Self-represented

ORDER DELIVERED BY HUGH S. WILKINS AND DIRK VANDERBENT

REASONS

Background

1On February 11, 2016, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 3948-9RDLRF (the “REA”) to wpd Fairview Wind Incorporated (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with eight wind turbines and a total name plate capacity of 16.4 megawatts (the “Project”). The Project is to be located in Clearview Township, Simcoe County, Ontario (the “Site”).

2On February 19, 2016, John Wiggins, and on February 26, 2016, Gail Elwood, Kevin Elwood, Preserve Clearview Inc., the Corporation of the County of Simcoe, the Corporation of the Township of Clearview, and the Town of Collingwood appealed the REA to the Environmental Review Tribunal (the “Tribunal”) under s. 142.1(2) of the Environmental Protection Act. Each Appellant appealed on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to plant life, animal life and the natural environment.

3At a preliminary hearing held on April 12, 2016 in Collingwood, Ontario, the Tribunal addressed requests for status in the proceeding and provided procedural directions for the conduct of the main hearing.

Issue

4The issue is whether to grant participant status to the Canadian Owners and Pilots Association (“COPA”) and presenter status to the Collingwood Flying Club, Susan Richardson, Mandy Bridson, Stephen Bridson, and Elizabeth Marshall.

Relevant Rules

5The relevant rules of the Tribunal’s Rules of Practice are:

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person's interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

70. A Presenter in a Hearing may:

(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;

(b) be questioned by the Parties;

(c) provide the Tribunal with a written statement as a supplement to oral testimony; and

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter's interests.

71. A Presenter in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(f) participate in a mediation, unless permitted to do so by the Tribunal;

(g) attend site visits unless permitted to do so by the Tribunal; and

(h) claim costs or be liable for costs.

Discussion, Analysis and Findings

Request for Participant Status

6COPA, represented by Glenn Grenier, requested participant status. Mr. Grenier stated that COPA, which is an incorporated association, is the largest aviation organization in Canada representing over 16,000 pilots and aircraft owners. He said the organization is engaged in the promotion and protection of private aviation and flight safety in Canada. He stated that through its expertise and that of its counsel, COPA is well-positioned to assist the Tribunal in understanding the impacts of the Project on local flight safety. He stressed the public interest and importance of aerodromes to the fabric of the Canadian transportation system.

7None of the Parties objected to the granting of participant status to COPA and the Tribunal granted COPA’s request for status under Rule 66. The Tribunal found that COPA has a genuine public interest in the subject matter of the proceeding and is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

Requests for Presenter Status

8The Collingwood Flying Club, Susan Richardson, Mandy Bridson, Stephen Bridson, and Elizabeth Marshall each requested presenter status. The Collingwood Flying Club, represented by George Daniels, stated that it intended to provide evidence on Project impacts to air ambulance operations in the area and to local biodiversity, including local watercourses and fish. Ms. Richardson stated that she lives in close proximity to the proposed site of the Project and would provide evidence on the impacts of the Project on the local natural environment. Ms. and Mr. Bridson stated that they also live close to the proposed site and wished to present evidence on the Project’s impacts on local wetlands, including downstream impacts of Turbines 2 and 7, impacts on wildlife corridors, and impacts on species in decline. Ms. Marshall stated that she seeks to make a presentation to the Tribunal on behalf of the unincorporated Ontario Landowners Association to address impacts on human and aviation safety and on use of adjacent roadways and properties.

9None of the Parties objected to any of the requests for status. The Tribunal found that the Collingwood Flying Club, Ms. Richardson, Ms. Bridson, Mr. Bridson and Ms. Marshall each has a genuine public or private interest in the subject matter of the proceeding and granted each of them presenter status provided that the evidence that they present relates to issues that have already been raised in the appeals, which are within the Tribunal’s jurisdiction to address.

Other Procedural Issues

10At the preliminary hearing, the Tribunal noted that Mr. and Ms. Elwood and Preserve Clearview Inc. allege in their Notices of Appeal that the issuance of the REA is a violation of federal jurisdiction in contravention of the Constitution Act, 1867. In response to an inquiry by the Tribunal, Konstantine Stavrakos, counsel for these parties, confirmed that a Notice of Constitutional Question had not been served on the Attorney-General of Canada and the Attorney-General of Ontario Notice pursuant to Tribunal Rule 73. Mr. Stavrakos raised the issue whether such Notice is required in the circumstances of this case, but ultimately volunteered to provide such Notice, on the basis that this is without prejudice to his clients’ position that such Notice is not required. Consequently, the Tribunal did not rule on this issue. The Tribunal directed that the legal issues respecting the application of the Constitution Act, 1867, which have been raised in the appeals by the Elwoods and Preserve Clearview Inc., will be addressed in final submissions.

11During the preliminary hearing, the parties proposed, and the Tribunal agreed to, procedural due dates and dates for the hearing of the appeal as set out below. The Tribunal directed that a telephone conference call (“TCC”) be held on May 10, 2016 at 10 a.m. The Tribunal Case Coordinator will forward call-in details to the parties for this TCC.

ORDER

12The Tribunal grants participant status to the Canadian Owners and Pilots Association and presenter status to the Collingwood Flying Club, Susan Richardson, Mandy Bridson, Stephen Bridson, and Elizabeth Marshall.

13The dates specified in the Schedule of Events previously issued by the Tribunal continue to apply, except as directed by the Tribunal as follows:

April 14, 2016 The McKechnie, Hutton and Duncan witness statements to be served and filed by the Town of Collingwood, the Corporation of the County of Simcoe, Kevin and Gail Elwood, and Preserve Clearview Inc.

April 22, 2016 The Mawson witness statement to be filed by the Corporation of the Township of Clearview

April 29, 2016 The Director, Approval Holder, the Participant and all Presenters to serve and file with the Tribunal all documents, witness lists, witness statements and resumes of any expert witnesses that they intend to rely on at the main hearing

May 6, 2016 Responding evidence to the McKechnie, Hutton and Duncan witness statements to be served and filed by Director and Approval Holder

May 10, 2016 Telephone conference call commencing at 10 a.m. at which time the Tribunal will:

• address any questions arising from any written motions that have been served and filed by that time; and
• continue the Preliminary Hearing, where the Tribunal will:
  • address the request for a site visit;
  • rule on consent qualifications of expert witnesses;
  • confirm the final witness schedule for the hearing; and,
  • address any other procedural matters relating to the main hearing

May 13, 2016 Responding evidence to Mawson witness statement to be served and filed by Director and Approval Holder

May 17, 2016 Reply, if any, to the responding evidence to Mawson witness statement to be served and filed by the Corporation of the Township of Clearview

May 16 to 20 and May 30 to June 3, 2016 Hearing of the appeals commencing at 10 a.m. at the Collingwood Curling Club, 250 Hume Street, Collingwood, Ontario

Requests for Participant and Presenter Status Granted

Procedural Directions Ordered

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

“Dirk VanderBent”

DIRK VANDERBENT

VICE-CHAIR

Appendix 1 – Appellant List

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

Appendix 1

Appellant List

Appellant Name	File No.
John Wiggins	16-036
Gail Elwood	16-037
Kevin Elwood	16-038
The Corporation of the County of Simcoe	16-039
Preserve Clearview Inc.	16-040
The Corporation of the Township of Clearview	16-041
The Town of Collingwood	16-042