Environmental Review Tribunal

Tribunal de l'environnement

ISSUE DATE: January 25, 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: On the initiative of the Tribunal

APPEARANCES:

Parties Counsel/Representative

John Hirsch Self-represented

Alliance to Protect Prince Edward County Eric Gillespie, Priya Vittal and Graham Andrews

Director, Ministry of the Environment and Climate Change Sylvia Davis, Andrew Weretelnyk and Rebecca Crangle

wpd White Pines Wind Incorporated Patrick Duffy and James Wilson

Participants Brian Flack Self-represented

Presenters Prince Edward Point Bird Observatory Cheryl Anderson

Hastings and Prince Edward Land Trust Richard Bird

James Bowlby, Christopher Currie, Roxanne MacKenzie, and Douglas Murphy Self-represented

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1Section 145.2.1(6) of the Environmental Protection Act ("EPA") provides that the decision of the Director to issue a renewable energy approval shall be deemed to be confirmed if the Environmental Review Tribunal (the "Tribunal") does not dispose of the hearing in respect of that decision within the time period prescribed by the regulations. This period is six months from the day of the filing of the notice of appeal, as prescribed in s. 59(1) of Ontario Regulation 359/09 ("O. Reg. 359/09"). In this proceeding, Mr. Hirsch filed his Notice of Appeal of Renewable Energy Approval No 2344-9R6RWR issued to wpd White Pines Wind Incorporated (the "REA") on July 29, 2015. Thus, the six-month period is to expire on January 29, 2016.

2Section 59(2)1.ii of O. Reg. 359/09 provides that any period of time during an adjournment of the proceeding shall be excluded from the calculation of the six-month time period if the adjournment is on the initiative of the Tribunal or on consent of the parties, it is not for the purpose of adjourning pending resolution of an application for judicial review, and it is "necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits."

3Under the Tribunal's Timeline for Appeals under s. 142.1 of the EPA (found in Appendix A of the Tribunal's Rules of Practice), a hearing under s. 142.1 is to commence nine weeks after the appeal expiry date. This is intended to allow the Tribunal sufficient time to hear evidence, receive submissions and carefully deliberate on the evidence and submissions in order to secure a fair and just determination of the proceeding on the merits within the six-month time period set by O. Reg. 359/09. In the present proceeding, as proposed by the parties on consent, the hearing commenced on November 2, 2015, which was almost 13.5 weeks after the appeal expiry date of July 31, 2015.

Findings

4Based on the following, the Tribunal, on its own initiative, determines that an adjournment is necessary to secure a fair and just determination of this proceeding on the merits. This adjournment is not for the purpose of adjourning pending resolution of an application for judicial review.

5As well as the late commencement of the hearing, there has been a series of delays in the completion of the evidence and the filing of final submissions in this proceeding. The hearing of evidence was completed on December 15, 2015 and the filing of final written submissions was completed on January 25, 2016.

6These delays have resulted in the Tribunal having insufficient time to fully and carefully deliberate on the evidence and submissions. As noted above, the six-month time period in this proceeding expires on January 29, 2016.

7On December 15, 2015, the Tribunal informed the parties that, given these circumstances, an adjournment under s. 59(1) of O. Reg. 359/09 would be required.

ORDER

8The Tribunal adjourns the proceeding, under O. Reg. 359/09, s. 59(2)1.ii, for 32 days.

9Subject to further order of the Tribunal, the date of deemed confirmation of the REA, if the Tribunal has not disposed of the hearing, is February 26, 2016.

Hearing Adjourned

"Marcia Valiante"

MARCIA VALIANTE

MEMBER

"Hugh S. Wilkins"

HUGH S. WILKINS

MEMBER

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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