Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 24, 2016
CASE NO.: 15-084
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Association for the Protection of Amherst Island
Approval Holder: Windlectric Inc.
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Renewable Energy Approval for Amherst Island Wind Project
Reference No.: 7123-9W9NH2
Location: Various locations
Municipality: Loyalist Township
Upper Tier: County of Lennox and Addington
ERT Case No.: 15-084
ERT Case Name: Association for the Protection of Amherst Island v. Ontario (Environment and Climate Change)
Heard: By telephone conference call on June 16, 2016 and in writing
APPEARANCES:
Parties
Counsel/Representative+
Association for the Protection of Amherst Island
Eric Gillespie and Priya Vittal
Director, Ministry of the Environment and Climate Change
Andrea Huckins
Windlectric Inc.
Arlen Sternberg, John Terry and Dennis Mahony
ORDER DELIVERED BY JUSTIN DUNCAN AND ROBERT V. WRIGHT
REASONS
Background
1On September 8, 2015, the Appellant (Association for the Protection of Amherst Island), filed the Notice of Appeal of the decision of the Director, Ministry of the Environment and Climate Change to issue the renewable energy approval in this proceeding (the “REA”) to the Approval Holder (Windlectric Inc.).
2Section 145.2.1(6) of the Environmental Protection Act (“EPA”) provides that the Director’s decision shall be deemed to be confirmed if the Environmental Review Tribunal (the “Tribunal”) does not dispose of the hearing in respect of the decision within the time period prescribed by the regulations. Under s. 59(1) of Ontario Regulation 359/09 (“O. Reg. 359/09”) the period is six months from the day of the filing of the Notice of Appeal. Therefore, the statutory disposition date for this hearing was March 8, 2016, subject to adjournment, as discussed below.
3The Tribunal’s Timeline for Appeals under s. 142.1 of the EPA (see Appendix A of the Tribunal’s Rules of Practice) is intended to allow the Tribunal sufficient time to determine a renewable energy approval appeal on the merits within the six-month time period set by O. Reg. 359/09.
Findings
4There have been approximately 30 hearing days and a number of telephone conference calls in this proceeding. There have been substantial issues regarding disclosure of information and the addition of witnesses, a number of motions regarding these and other matters, and times when some counsel and Tribunal panel members have not been available. These reasons do not provide full details of these matters as the parties either consent to, or do not oppose, this adjournment.
5Section 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.”
6In order to accommodate the various concerns referred to above, the hearing has been adjourned from time to time, resulting in twelve days remaining for the Tribunal’s disposition of the appeal. As all of the parties did not consent to the adjournments, the previous adjournments were on the initiative of the Tribunal under s. 59 of O. Reg. 359/09 (see, for example, the Tribunal’s Order dated April 26, 2016).
7The reasons for the adjournments were twofold: firstly, to allow the parties to fully present their respective cases, including providing responding and reply evidence, and, secondly, to ensure that the Tribunal would have sufficient time to deliberate upon the evidence and submissions of the parties. The Tribunal recently indicated to the parties that it intended to adjourn the hearing to July 22, 2016, with a final disposition date of August 3, 2016.
8In the Tribunal’s opinion, all of the adjournments have been, and are, necessary to secure a fair and just determination of the proceeding on its merits for the above reasons. The within adjournment is specifically to permit sufficient time for the Tribunal to deliberate upon the evidence and submissions of the parties and to write its decision. Additionally, the Appellant and Director consent to the within adjournment and it is not opposed by the Approval Holder.
ORDER
9The Tribunal adjourns the proceeding under O. Reg. 359/09, s. 59(2)1.ii to July 22, 2016.
10Taking into account the 12 days that remain following the previous adjournment ordered by the Tribunal, and subject to further order of the Tribunal, the date of deemed confirmation of the REA, if the Tribunal has not disposed of the hearing, is August 3, 2016.
Adjournment Ordered
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“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