Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 30, 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
John Hirsch	Self-represented
Alliance to Protect Prince Edward County	Eric K. Gillespie and Priya Vittal
Director, Ministry of the Environment and Climate Change	Sylvia Davis and Rebecca Crangle
wpd White Pines Wind Incorporated	Patrick G. Duffy and James S.F. Wilson

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This Order relates to the scope of the continuation of the hearing in this proceeding. The proceeding relates to appeals brought by John Hirsch and the Alliance to Protect Prince Edward County (“APPEC”) (collectively, the “Appellants”) of Renewable Energy Approval No. 2344-9R6RWR (the “REA”).

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 in an area 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.

3On July 29, 2015, Mr. Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (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 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 (the “February 26 Order”) allowing the appeal in part. It 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. 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.

5At a telephone conference call held on March 21, 2016 to discuss the continuation of the hearing, the Approval Holder set out its proposal for the scope and schedule for the presentation of evidence and submissions on remedy. APPEC requested time to be able to respond, and the Tribunal directed it to provide its response by March 30, 2016. Despite reminders from the Tribunal to provide its response, APPEC failed to do so. On April 11, 2016, the Tribunal wrote to the parties, directing them to file submissions with respect to the timetable for the continuation of the hearing by April 12, 2016. The parties responded to that direction.

6On April 15, 2016, the Tribunal sent a further direction to the parties stating that it “considers the schedule to be integrally related to the scope of the remedy stage and would like to settle these issues, to the extent possible, as soon as possible in order to move forward expeditiously with the remedy stage.” The Tribunal directed the parties:

… to serve and file written submissions on the proper interpretation and application of s. 145.2.1(4) as it affects the scope of the Tribunal's remedial power and the issues to be addressed in this proceeding. In addition, the Tribunal directs the parties to provide submissions on whether evidence is necessary during this stage of the hearing, and if so, to provide a list of proposed witnesses, their proposed qualifications if experts, and an outline of the nature and scope of their proposed evidence.

7The parties filed submissions on these issues. After reviewing those submissions, the Tribunal, on April 29, 2016, sought further clarification from the parties specifically on how the Tribunal should interpret and apply s. 145.2.1 (4) in terms of:

(1) the test(s) to be used and/or standards to be applied when exercising its remedial powers under that subsection; (2) the considerations that can or should be taken into account when applying the subsection, including legislative, regulatory, policy or other considerations (if any); and (3) the onus of proof.

8In the meantime, the decision of another panel of the Tribunal, Prince Edward County Field Naturalists v. Ontario (Ministry of the Environment and Climate Change 2016 CarswellOnt 8931 (Ont. Env. Rev. Trib.) (“PECFN”), which addressed similar questions, was issued. The Tribunal extended the time for filing submissions to permit the parties an opportunity to address the Tribunal’s findings in PECFN. The parties provided written submissions in response to this request on June 14, 2016. Mr. Hirsch did not file submissions but stated his general agreement with the approach taken in the PECFN decision.

Issues

9The issues before the Tribunal are:

1. whether evidence should be permitted during the remedy phase.
2. the test(s) to be used and the considerations that can or should be taken into account when applying s. 145.2.1 (4) of the EPA, including legislative, regulatory, policy or other considerations (if any).
3. the onus of proof to be used when applying s. 145.2.1 (4) of the EPA.
4. the issues to be addressed in the remedy hearing.

Relevant Legislation

10The relevant sections of the EPA are set out below:

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

Definition

47.1 In this Part,

“environment” has the same meaning as in the Environmental Assessment Act.

Purpose

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

Director’s powers

47.5 (1) After considering an application for the issue or renewal of a renewable energy approval, the Director may, if in his or her opinion it is in the public interest to do so,

(a) issue or renew a renewable energy approval; or (b) refuse to issue or renew a renewable energy approval.

Terms and conditions

(2) In issuing or renewing a renewable energy approval, the Director may impose terms and conditions if in his or her opinion it is in the public interest to do so.

Other powers

(3) On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so,

(a) alter the terms and conditions of a renewable energy approval after it is issued; (b) impose new terms and conditions on a renewable energy approval; or (c) suspend or revoke a renewable energy approval.

Hearing required under s. 142.1

145.2.1 (1) This section applies to a hearing required under section 142.1.

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.

Onus of proof

(3) The person who required the hearing has the onus of proving 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).

(4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

(a) revoke the decision of the Director; (b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or (c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

(5) The Tribunal shall confirm the decision of the Director if the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b).

(6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

Analysis and Findings

Issue 1: Whether additional evidence should be permitted during the remedy phase

Submissions of the Parties

11The Director submits that the question as to whether additional evidence is necessary must be assessed on a case-by-case basis. The Director argues that this proceeding is similar to those in Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 296 (“Ostrander”) and SLWP Opposition Corp. v. Director, MOECC, [2016] O.E.R.T.D. No. 6 (“SLWP”) in that there were many grounds of appeal advanced, so that it was not reasonable for the parties to address remedy in the absence of the Tribunal’s determination on harm. The Director further argues that allowing additional evidence will not unduly prejudice the Appellants, but is necessary for a fair hearing. He goes on to argue that the Tribunal disposed of the issue of harm in the February 26 Order and has no jurisdiction to reconsider those findings.

12The Approval Holder submits that procedural fairness demands that it have an opportunity to introduce additional evidence with respect to its proposed remedy. It argues that this case is similar to SLWP, where the Tribunal permitted additional evidence at the remedy stage because the approval holder could not reasonably have provided evidence at the first stage of the hearing on all possible remedies to address the variety of allegations made by the appellants. There, the Tribunal also found that it was reasonable for the approval holder to have the benefit of the Tribunal’s findings on harm before proposing and justifying a remedy, and that there was no prejudice to the appellants. The Approval Holder also notes that the Tribunal in SLWP considered and rejected the same arguments that APPEC makes in this proceeding.

13APPEC submits that to follow an approach whereby a hearing is continued after findings of harm and an approval holder is allowed to file further evidence establishes a precedent that will require a bifurcated hearing in all subsequent renewal energy approval appeal hearings. APPEC submits that this approach is unfair to appellants and inconsistent with the principles of justice because respondents will no longer be required to lead their best case in the first stage of a hearing.

14APPEC further argues that a prolonged remedy hearing allowing additional evidence would be inconsistent with the Tribunal’s six-month period for disposing of the appeal under O. Reg 359/09 and would unduly prejudice the Appellants. It submits that the hearing process is not intended to give the Approval Holder multiple opportunities to convince the Tribunal that harm can be avoided. APPEC also submits that significant alterations to the REA at the remedy stage would not be subject to proper review by the MOECC, other ministries or the public, and would not permit the opportunity for appeal by affected citizens.

15APPEC submits that no party should be permitted to file additional evidence in the continuation of the hearing. It argues that the Tribunal already has before it the evidence needed to determine an appropriate remedy. APPEC submits that a hearing where additional evidence is allowed from respondents at this stage would be unfair and would cause delay and interfere with the structure and purpose of the renewable energy approval appeal provisions of the EPA that require an expedited process and a swift resolution to an appeal.

16APPEC also submits that, because the “hearing itself has concluded,” the Tribunal should apply Rule 233 of its Rules respecting requests to submit new evidence. APPEC submits that this case should be distinguished from PECFN, where the Court of Appeal determined that new evidence should be entertained and remitted the case back to the Tribunal to address remedy.

17APPEC argues that if any evidence is to be permitted at this stage, the Appellants also should be permitted to adduce additional evidence to challenge and expand the findings the Tribunal made in the February 26 Order.

Findings

18The Tribunal must consider this issue in light of the particular circumstances of the proceeding. There was some evidence before the Tribunal in the main hearing that may be relevant to remedy. The Tribunal must determine whether additional evidence is necessary to enable it to dispose of the appeal following from its findings on harm.

19The Tribunal in SLWP listed, at para. 30, several factors “which may impact on whether additional evidence, and the scope of any such evidence, will be required for a fair and just hearing…” These factors include:

• the number of days left in the proceeding before the Director’s decision is deemed confirmed;
• whether the proposed remedy impacts the original REA “as approved”;
• whether the impacts of the proposed remedy have not yet been considered by the Director, or by the Tribunal in the appeal;
• whether the proposed remedy would require the Tribunal to develop conditions without the benefit of the review and associated studies normally mandated by the Director in applications for a REA;
• whether it is reasonable and conducive to a fair and just hearing for the Tribunal to evaluate proposed REA amendments in consideration of the six month statutory time frame; and
• any prejudice that may arise from adjourning the hearing.

20The Tribunal finds that in this case additional evidence is necessary to enable it to adjudicate on the issues in a fair and just manner and determine an appropriate remedy. Although this will not be the case in every proceeding, given the broad and varied grounds of appeal argued and the limited hearing time available in this proceeding, it was neither reasonable nor practical to expect the Approval Holder to have provided detailed evidence relevant to all possible remedies and their ramifications in the first stage of the hearing. The Tribunal finds that it is fair and just in this case to allow the Approval Holder an opportunity to present additional evidence respecting its proposed remedy, now that it has the benefit of the Tribunal’s findings.

21In the February 26 Order, the Tribunal made specific findings with respect to all of the issues pursued by the Appellants. Following from those findings, the Tribunal “allowed the appeal in part.” In using that language, the Tribunal signaled that its findings were not tentative or preliminary and did not leave open any issue under s. 145.2.1 (2) for determination later. Thus, the findings made in that order should be considered final and not open for reconsideration.

22The Tribunal’s Rules set out the process under which an order or decision can be reviewed or reconsidered. This requires a motion, which is heard by a different panel of the Tribunal, and involves consideration of relevant circumstances including the matters listed in Rule 238. Importantly, however, Rule 243 provides that such a review is not applicable in proceedings brought under s. 142.1 of the EPA. This means that the only recourse with respect to the findings in the February 26 Order is for a party to appeal to the Divisional Court or the Minister in accordance with s. 145.6 of the EPA.

23The Tribunal finds that considering and ruling on matters relevant to an appropriate remedy do not amount to re-litigation of its findings.

24The Tribunal’s conclusion in the February 26 Order was that the Project, operating in accordance with its approval, will cause serious and irreversible harm to plant life, animal life or the natural environment. The Approval Holder requests an opportunity to advance a proposal to remedy that harm, which is narrowly targeted to specific findings in the February 26 Order relating to Little Brown Bat and Blanding’s Turtle. The Approval Holder is not proposing a fundamental alteration to the Project or the REA, but requests an opportunity to adduce a limited amount of evidence with respect to amendments to mitigation and avoidance conditions in the REA.

25Due to a delay in the starting date of the hearing, which was requested by the parties on consent, and delays in the completion of the parties’ evidence and final submissions in the main hearing, there are only four hearing days available for the hearing of oral evidence before the six-month limit is reached. Because the Approval Holder’s proposal is to provide the detailed evidence of two witnesses by way of written submissions, with only a short oral hearing, the limited hearing time available does not appear to be an impediment to the Tribunal receiving the additional evidence proposed.

26The Appellants have provided no evidence of prejudice to them if this limited additional evidence is permitted. The Appellants and the Director will be given an opportunity to provide evidence to respond to the Approval Holder’s proposal.

Issue 2: The test(s) to be used and the considerations that can or should be taken into account when applying [s. 145.2.1 (4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html#sec145.2.1subsec4_smooth) of the [EPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html), including legislative, regulatory, policy or other considerations (if any)

Submissions of the Parties

27The Director argues that s. 145.2.1 establishes a coherent scheme that limits the Tribunal’s review powers and remedial jurisdiction to a focus solely on whether serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment will be caused by a project. He argues that the tests and standards under s. 145.2.1 (2) and (4) are, as a result, similar. The Director submits that the scope of the Tribunal’s authority under s. 145.2.1 (4) relates directly to the nature of the harm identified by the Tribunal under s. 145.2.1 (2), and that the proper test to apply is whether the proposed remedy will reduce the harm found by the Tribunal to a level that is below “serious and irreversible”. The Director argues that, under s. 145.2.1, the Tribunal does not have the same discretion found in s. 145.2(1), which applies to certain other types of hearings under the EPA.

28The Director argues that the Tribunal may only revoke a renewable energy approval if the Tribunal is certain that serious and irreversible harm will result despite the implementation of proposed mitigation measures. The Director argues that the Province’s policy goal of promoting renewable energy is the primary factor that the Tribunal must consider and that other environmental factors should be attributed lesser importance. He submits that the Tribunal’s power to substitute its opinion for that of the Director is related solely to the analysis of whether the REA conditions and any proposed alterations serve the purpose of preventing the harms found under s. 145.2.1 (2). He submits that “the Tribunal must simply weigh the evidence and determine whether the proposed amendment will address the harm”.

29The Director submits that the MOECC’s Statement of Environmental Values (“SEV”), adopted under the Environmental Bill of Rights, 1993 (“EBR”), does not play a role in the Tribunal’s exercise of discretion under s. 145.2.1 (4). The Director argues that a renewable energy approval appeal is not a new hearing but rather a review of the Director’s decision, and consideration of the SEV is outside the Tribunal’s jurisdiction in this regard. He submits that application of the SEV principles at the remedy stage would “thwart the test under s. 145.2.1 (2) in a manner that is contrary to the legislative scheme” by changing the test to whether there will be no harm or potential for harm.

30The Approval Holder makes submissions that are similar to those of the Director. It submits that the Tribunal’s jurisdiction is limited to considering whether, in light of the proposed remedies, engaging in the Project will cause the harms set out in s. 145.2.1 (2). It argues that the statutory test in s. 145.2.1 cannot be altered or expanded by the Tribunal administratively dividing the hearing into “merits” and “remedy” phases. The Approval Holder submits that the same test applies throughout the hearing.

31The Approval Holder argues that the same considerations should be taken into account with respect to remedies as during the main hearing. It argues that consideration of policy utilized by the Director would improperly fetter the Tribunal’s discretion and that the SEV’s principles cannot be applied by the Tribunal to the extent that they are inconsistent with the applicable provisions of the EPA. It states that an appeal under s. 145.2.1 is not a situation where the Tribunal “steps into the shoes of the Director” and that the application of the precautionary principle and the SEV’s other principles in these circumstances would run contrary to the EPA and would constitute an error of law.

32APPEC argues that s. 145.2.1(4) provides the Tribunal with wide discretion and that there is no specific test to be met. It argues that although s. 145.2.1 (4) is part of the s. 145.2.1 process, it is distinct from s. 145.2.1 (2). It submits that the Tribunal’s discretion under s. 145.2.1 (4) must be exercised fairly and within the ambit of its jurisdiction, taking into account legislative, policy and legal considerations as well as the public interest.

33APPEC argues that actions to protect and conserve species at risk are in the public interest and consistent with the purposes of the EPA. It submits that the EPA does not state that renewable energy projects should be given primacy when considering remedies under s. 145.2.1 (4). APPEC argues that the SEV’s principles must be considered, including the precautionary principle and the ecosystem approach, when applying s. 145.2.1 (4). It argues that there is no conflict between the EBR, EPA and the SEV as they are all directed toward the same environmental protection purpose.

Findings

34The Tribunal agrees that the remedy hearing phase is part of a single hearing process and that the Tribunal cannot alter or expand its jurisdiction simply by dividing the hearing into phases. In this hearing, the Tribunal made findings, based on the evidence before it, that the Project will more likely than not cause serious and irreversible harm to plant life, animal life or the natural environment. It also determined that it was appropriate to adjourn and provide the parties an opportunity to provide submissions on “remedy”. In light of the finding in the previous section, the Approval Holder will be given an opportunity to propose changes to the the REA that will address the Tribunal’s findings on harm and to adduce evidence in support of those changes. The other parties will be able to challenge that evidence and lead evidence in response.

35To repeat, the Tribunal cannot reconsider its findings on serious and irreversible harm. However, it is open to the Approval Holder to provide evidence on the effect of its remedy proposal on plant life, animal life or the natural environment and to make submissions on the relevant considerations that should apply. The Tribunal will evaluate the additional evidence and submissions and determine whether, on a balance of probabilities, the proposed changes effectively address the Tribunal’s findings and, among other implications, will not in turn create the potential for some as yet unanticipated and unstudied impact.

36Given its findings that the Project as approved by the Director will cause harm under s. 145.2.1 (2), the outcome of hearing additional evidence, no matter how convincing, cannot be a change in the Tribunal’s findings. Therefore, if the Tribunal determines, after hearing the additional evidence, that the proposed changes will effectively address the harm it identified in the February 26 Order, the Tribunal must still consider which “remedy” is appropriate under s. 145.2.1 (4). For example, the Tribunal would have to determine whether to alter conditions in the REA to add the proposed changes, whether to direct the Director to take action to implement those changes or study them further, or whether to make a different order. Likewise, if the Tribunal is not satisfied that the mitigation measures will effectively address the harm identified, it will have to exercise its discretion to decide on an appropriate remedy.

37Although it is often referred to as the “remedy” provision, s. 145.2.1 (4) focuses more accurately on the options available to the Tribunal for disposing of the appeal. Each option under s. 145.2.1 (4) provides the Tribunal with specific powers and may require somewhat different analysis taking into account different considerations, as is discussed below. Section 145.2.1 (4) identifies no standard or criteria that the chosen remedy must meet. Rather, the statute provides the Tribunal with discretion, so that it “may” do one of several things when disposing of a renewable energy approval appeal.

38The question is how does the Tribunal make the determination of an appropriate remedy? The Tribunal agrees that s. 145.2.1 (4) is part of the s. 145.2.1 process; however, the Tribunal finds that its role under s. 145.2.1 (4) is to determine which of the options set out by the Legislature should be adopted to dispose of the appeal. None of the parties argues that the Tribunal lacks discretion under s. 145.2.1 (4) when determining which option to adopt. The issue is the breadth of that discretion and what factors are relevant to that exercise.

39Both APPEC and the Director cite general principles of administrative law with respect to the limits on the exercise of discretion. They refer to Sara Blake, Administrative Law in Canada, 5th Ed. (Markham, Ont.: Lexis-Nexis Canada Inc., 2011) (“Blake”), which at pp. 99-100 states:

Discretion is not absolute or unfettered. Decision makers cannot simply do as they please. All discretionary powers must be exercised within certain basic parameters. The primary rule is that discretion should be used to promote the policies and objects of the governing Act. These are gleaned from a reading of the statute as a whole using ordinary methods of interpretation. Conversely, discretion may not be used to frustrate or thwart the intent of the statute...

40APPEC and the Director both submit that when exercising discretion and considering the options under s. 145.2.1 (4), the Tribunal must take into account the public interest and the statutory context. The Tribunal agrees. With respect to the exercise of its powers under the EPA and other environmental legislation generally, the Tribunal stated, in Crest Centre (Meadowcrest) v. Ontario (2007), 33 C.E.L.R. (3d) 132, which was cited by APPEC, as follows, at para. 31:

In the context of the EPA, the Tribunal has already found that statutory decision-makers like the Tribunal and Directors have a duty to carry out their discretionary powers in a way that furthers the public interest environmental protection purpose of the applicable legislation. The Tribunal stated, in Johnson v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 5 (Ont. Environmental Review Trib.) [“Johnson”] at para. 65:

The Tribunal agrees that statutory decision-makers, including the Tribunal itself, have an authority and a “duty to choose the best course of action, from the standpoint of the public interest, in order to achieve the objectives of the environmental protection legislation.” (Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2006] 2 S.C.R. 624 at para. 38).

41In exercising its discretion, the Tribunal may only consider and base its decision on relevant factors and is guided by the provisions of the EPA as to what those factors are in the context of a renewable energy approval appeal. As stated in Blake, at p. 100:

Discretionary decisions should be based primarily upon consideration of factors pertinent to the policy and objects of the statute. A public authority in the exercise of its statutory powers may not act on extraneous, irrelevant and collateral considerations. Nor may the public authority ignore relevant considerations…

42The Tribunal finds that the public interest, as shaped by the purpose and provisions of the EPA, is the primary factor to be considered when exercising its discretion under s. 145.2.1 (4). This is similar to the Director’s powers under s. 47.5 (3). In addressing this issue in PECFN, at para. 54 the Tribunal found that it may consider the EPA’s general and specific purposes as well as provincial renewable energy objectives when considering the public interest in the context of s. 145.2.1 (4); however, it also noted that the objective of promoting renewable energy approvals “should not be presumed to take priority over other all other factors”.

43Section 145.2.1 sets out the powers of the Tribunal on renewable energy approval appeals. There is no dispute that the special regime created by Part V.0.1 was adopted in order to establish a streamlined process to facilitate the approval of renewable energy projects. In Middlesex-Lambton Wind Action Group Inc. v. Ontario (MOECC), [2012] O.E.R.T.D. No. 35, the Tribunal interpreted the EPA provisions governing its role and held that a hearing under these provisions is neither a new hearing nor a true appeal. At para. 100, the Tribunal stated (emphasis added):

The nature of the REA hearing fits somewhere on a spectrum between these two types of proceedings, and has elements of both. The REA hearing is a novel regime designed to further the legislative scheme promoting renewable energy while respecting the government’s obligations to protect human health and the environment.

44This type of proceeding is different from other Tribunal hearings under the EPA in terms of the limited scope of the inquiry, the onus placed on appellants and the exacting standard of having to prove that specified harm will occur. Nevertheless, the statute clearly recognizes that, in the pursuit of a general policy in favour of renewable energy, individual renewable energy projects may cause harm to human health or the environment. The appeal process was designed to promote renewable energy and to protect human health and the environment. The Tribunal’s role in determining an appropriate remedy is to assess, in each case, the extent to which both objectives can be met.

45As observed by the Tribunal in PECFN, the general purpose of the EPA is to “provide for the protection and conservation of the natural environment.” Under Part V.0.1, the purpose of the renewable energy approval process is to provide for the protection and conservation of the “environment” as defined in the Environmental Assessment Act, which has a broader scope and includes interests beyond the natural environment. However, as the Tribunal stated in PECFN, at para. 47:

Neither the purpose provisions of the EPA, nor the definitions of “natural environment” and “environment”, specifically refer to renewable energy projects, nor do they indicate that the promotion of renewable energy should be given primacy over other environmental concerns. The preamble to the Green Energy Act refers to promoting opportunities for renewable energy projects and the green economy. While the renewable energy approval process has been described as “streamlining”, this streamlining of approvals is to take place only in the absence of serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.

46Although it did not limit the types of submissions or evidence that the Tribunal might consider under s. 145.2.1 (4), the Court of Appeal in Ostrander, stated at para. 96 that the parties could make submissions on “the proper interpretation and application of s. 145.2.1 (4) as it affects the scope of the Tribunal’s remedial power; the ambit of the Director’s authority; the relevant government policies and how they intersected at the site; and the government’s preferred remedy.” That ruling envisions a wide range of considerations that the Tribunal may take into account when considering an appropriate remedy under s. 145.2.1 (4). Of note, the Court stated that submissions could focus on “the ambit of the Director’s authority” and “relevant government policies”, indicating that, in the opinion of the Court of Appeal, the Tribunal may consider these factors to be relevant when exercising its discretion under s. 145.2.1.

47When exercising its powers in disposing of a s. 145.2.1 appeal, the relevant considerations for exercising each option under s. 145.2.1 (4) may well be different.

48Section 145.2.1 (4)(a) authorizes the Tribunal to revoke the decision of the Director. Because there is discretion, the Tribunal would appear to have authority not to revoke the Director’s decision even if a project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.

49Section 145.2.1 (4)(b) provides the Tribunal with the authority to “direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations”. This provides the Tribunal with broad discretion to direct actions it considers should be taken, so long as such actions are in accordance with the EPA and relevant regulations.

50Section 145.2.1 (4)(c) allows the Tribunal to alter the decision of the Director and to substitute its opinion for that of the Director. As noted by the Tribunal in PECFN, this provision allows the Tribunal to substitute its opinion for that of the Director and in doing so to “stand in the shoes of the Director”. When undertaking this task, the Tribunal must focus on the subject matter of the proceeding and the scope of the powers given to the Director under the relevant part of the EPA and the associated regulations and policies (see: RPL Recycling & Transfer Ltd. v. Ontario (Director, Ministry of the Environment) (2006), 21 C.E.L.R. (3d) 80 (Ont. Env. Rev. Trib.), at paras. 19-20).

51In determining whether to alter the Director’s decision under s. 145.2.1 (4)(c) or direct the Director to take action under s. 145.2.1 (4)(b), relevant considerations include the extent of the proposed changes and whether additional in-depth study, technical review or public input is necessary in order to understand their effectiveness and implications and to preserve the public’s procedural rights. The Tribunal must consider each option, its appropriateness and the ramifications on a case-by-case basis. However, there is guidance in the statute and O.Reg. 359/09 supporting detailed assessments, public review and rights of appeal. If, for example, a proposed remedy involves a change in the configuration of a project or a significant change in the approval, it is likely that new or revised technical reports and further review and public comment will be needed to fully understand the impacts of such a change. In such cases, the Director is able to draw on the MOECC’s expertise and resources when assessing an amendment and must comply with the public participation and notice provisions of the EBR, which are neither available nor possible for the Tribunal to use or undertake under s. 145.2.1 (4). The Tribunal should be careful not to disregard these safeguards too readily.

52In PECFN, the Tribunal determined that the precautionary principle and the ecosystem approach, which are in the MOECC’s SEV, could be relevant factors in disposing of a renewable energy approval appeal. These considerations may be relevant, for example, in the Tribunal’s analysis of “relevant government policies” (as described by the Court of Appeal in Ostrander) under s. 145.2.1 (4)(c). “Relevant government policies” include policies on renewable energy approvals issued under s. 47.7, but may also include other policies related to the purpose of the EPA. The Director and the Approval Holder argue that the finding in PECFN was an error because, under the EBR, the SEV is to be taken into account only when decisions are made within the MOECC and the EBR does not obligate the Tribunal to take the SEV into account when it makes decisions. The terms of the EBR are not disputed, but PECFN recognized that there will be circumstances, particularly where the Tribunal stands in the shoes of the Director, where the principles in the SEV will be relevant to the Tribunal’s disposition. Looked at more broadly, as stated by the Tribunal in Johnson, citing the Supreme Court of Canada in Imperial Oil, the Tribunal must fulfil its “duty to choose the best course of action, from the standpoint of the public interest, in order to achieve the objectives of the environmental protection legislation.” To the extent that generally accepted principles of environmental decision-making, such as the precautionary principle, are relevant to the Tribunal’s fulfilment of its duty to consider the public interest in the context of the purpose of the EPA, the Tribunal will consider them. The parties may identify in their submissions how specific principles and policies they consider relevant should apply to the disposition of this proceeding.

Issue 3: The onus of proof to be used when applying [s. 145.2.1 (4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html#sec145.2.1subsec4_smooth) of the [EPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html)

53The parties are in agreement that each party advancing a remedy bears the onus of proving, on a balance of probabilities, that its proposed remedy is appropriate. This was the approach taken by the Tribunal in PECFN. This is the approach that will be followed in this proceeding.

Issue 4: The issues to be addressed in the remedy hearing

54The Approval Holder has requested an opportunity to present evidence on its preferred remedy, that is, an order under s. 145.2.1 (4)(c) altering the REA to include a number of measures it will be required to implement to avoid serious and irreversible harm to Little Brown Bat and Blanding’s Turtle. The Approval Holder identifies the specific measures as follows:

(a) The Approval Holder will implement cut-in speeds and/or feathering of turbine blades within specified parameters as a preventative measure to protect the little brown bat. (b) The Approval Holder will commit to return all municipal roads upgraded for the purpose of the Project to their pre-construction maintenance standard (i.e. eliminating any road widenings and surface upgrades) at the conclusion of construction. (c) The Approval Holder will utilize measures to inhibit Blanding’s turtles from nesting in loose gravel/limestone left on site post-construction.

55Following from the discussion under Issue 1, the Tribunal will consider evidence and submissions from the parties addressing the following issues:

a. the Approval Holder’s preferred remedy and proposed measures; b. the effectiveness of the proposed measures; c. the impacts and implications of the Approval Holder’s preferred remedy and the proposed measures, including the potential for unanticipated and unstudied impacts; d. alternative remedies, their effectiveness and impacts; and e. how specific principles and policies the parties consider relevant apply to the disposition of this proceeding.

ORDER

56The Tribunal orders that the parties will be permitted to adduce additional evidence in the continuation of the hearing.

57The Tribunal orders that the evidence and submissions it will consider in the continuation of the hearing will be limited to the following issues:

a. the Approval Holder’s preferred remedy and proposed measures; b. the effectiveness of the proposed measures; c. the impacts and implications of the Approval Holder’s preferred remedy and the proposed measures, including the potential for unanticipated and unstudied impacts; d. alternative remedies, their effectiveness and impacts; and e. how specific principles and policies the parties consider relevant apply to the disposition of this proceeding.

58The Tribunal directs that all evidence and submissions on remedy be served and filed with the Tribunal by July 29, 2016. The parties are directed to consult with each other on specific due dates for each party to serve and file their materials before this deadline and to provide these dates to the Case Coordinator by July 6, 2016.

Procedural Directions Ordered

“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