Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: February 10, 2017

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: December 5, 2016 by telephone conference call

APPEARANCES:

Parties	Counsel/Representative^+^
John Wiggins	Eric Gillespie and Peter Zywot
Kevin Elwood and Gail Elwood	Glenn Grenier
Corporation of the County of Simcoe and Town of Collingwood	Julie Abouchar, Richard Butler and Serin Remedios (articling student)
Preserve Clearview Inc.	Chris Hoffmann^+^ and Chuck Magwood^+^
Corporation of the Township of Clearview	Aynsley Anderson
wpd Fairview Wind Incorporated	Jesse Long
Director, Ministry of the Environment and Climate Change	Sylvia Davis

Participant

Canadian Owners and Pilots Association Glenn Grenier

Presenters

Collingwood Flying Club George E. Daniels^+^

Susan Richardson and Elizabeth Marshall Self-represented

ORDER DELIVERED BY DIRK VANDERBENT AND HUGH S. WILKINS

REASONS

Background

1On February 11, 2016, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change, issued Renewable Energy Approval No. 3948-9RDLRF (“REA”) to wpd Fairview Wind Incorporated (“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 (“Project”). The Project is proposed to be located in Clearview Township, Simcoe County, Ontario.

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 (“Simcoe County”), the Corporation of the Township of Clearview (“Clearview Township”), and the Town of Collingwood (“Collingwood”) (jointly, “Appellants”) appealed the REA to the Environmental Review Tribunal (“Tribunal”) under s. 142.1(2) of the Environmental Protection Act (“EPA”). 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 or the natural environment.

3On October 7, 2016, the Tribunal made an Order finding that the Appellants had satisfied the tests under s. 145.2.1(2)(a) and (b) of the EPA (respectively, the “Health Test” and the “Environment Test”), and adjourned the hearing under s. 59(2)1.ii of Ontario Regulation 359/09 (“O. Reg. 359/09”).

4On December 5, 2016, the Tribunal heard oral submissions from the parties by telephone conference call (“TCC”) on the next steps to be taken in this proceeding. None of the parties has requested an opportunity to produce evidence or make submissions on the Tribunal’s October 7, 2016 finding that the Appellants had satisfied the Health Test. Regarding the Tribunal’s finding in respect of the Environment Test, the Approval Holder submitted a request to submit evidence and make submissions on the appropriate remedy under s. 145.2.1(4) of the EPA. This request was opposed by the Appellants.

5On December 12, 2016, the Tribunal issued an Order granting the parties the opportunity to produce evidence and make submissions on appropriate remedies under s. 145.2.1(4) of the EPA in respect of the Environment Test, and adjourned the proceeding under s. 59(2)1.ii of O. Reg. 359/09.

6These are the reasons for that Order.

Issue

7The issue is whether the parties should be granted the opportunity to produce evidence and make submissions on appropriate remedies under s. 145.2.1(4) of the EPA.

Relevant Legislation

8The relevant sections of the EPA are set out below:

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.

Powers of the Tribunal

(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.

Deemed confirmation of decision

(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.

Discussion, Analysis and Findings

9The Approval Holder submitted that it wishes to produce evidence and make submissions on appropriate remedies in regard to the Environmental Test because the Approval Holder wished to exhaust all legal remedies before the Tribunal.

10The Director supported the Approval Holder’s request. He referred to the Court of Appeal’s decision in Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269, [2015] O.J. No. 1988 (“Ostrander”), and submitted that it would be premature for the Tribunal to make a determination under s. 145.2.1(4) without first giving the Approval Holder an opportunity to produce evidence and make submissions on remedy. The Director pointed out that, if the Tribunal’s decision is appealed, the Court could refer this matter back to the Tribunal requiring the Tribunal to address the remedy issue. For this reason, the Director argued that proceeding with the requested remedy hearing at this time would be the most expeditious means of disposing of this proceeding.

11The Appellant, Mr. Wiggins, objected. He emphasized that neither the Approval Holder nor the Director has requested the opportunity to give evidence or make remedy submissions regarding the Tribunal’s finding with respect to the Health Test. He therefore maintained that, in the circumstances of this case, the only appropriate remedy option the Tribunal could choose under s. 145.2.1(4) is to revoke the REA. Consequently, he argued that if the REA will be revoked in any event, remedy submissions on the Tribunal’s findings respecting the Environment Test are unnecessary, as the issue is moot. He argued that holding a remedy phase to the hearing would result in a long and costly process, which should be avoided.

12The Appellants, Mr. and Mrs. Elwood, and the Participant, Canadian Owners and Pilots Association, supported Mr. Wiggins’ submissions. Simcoe County, Collingwood, and Clearview Township added that they are each suffering prejudice from the continuation of the proceeding, and submitted that the Tribunal should immediately revoke the REA. Collingwood and Simcoe County argued that the Tribunal could bifurcate the proceeding, make its final determination under s. 145.2.1(4) in respect of the Health Test, and then subsequently hear submissions and make its final determination on remedy in respect of the Environment Test at a later time.

13In Ostrander, the Court of Appeal stated at para. 97:

… given the broad and varied range of attacks launched against the REA, it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal’s findings were in regard to the broad range of alleged harms.

In light of this decision, the Tribunal after finding that an appellant has satisfied the Health Test or the Environment Test, may grant a party the opportunity to adduce additional evidence and make submissions regarding the appropriate remedy under s. 145.2.1(4) of the EPA. Where the Tribunal grants that opportunity, the hearing of evidence is not closed.

14Given the number and complexity of the issues under appeal in the present case, the Tribunal finds that it is not reasonable, practical or realistic to require the Approval Holder to have provided detailed evidence relevant to all possible remedies during the merits phase of the hearing. Consequently, the Tribunal finds that it would be fair and just in this case to allow the Approval Holder an opportunity to present additional evidence and submissions regarding its proposed remedy as it relates to the Environment Test (“Remedy Hearing”), now that the Approval Holder has the benefit of the Tribunal’s findings. Therefore, the issue the Tribunal must address here is the Appellants’ argument that the need for the Remedy Hearing is otherwise unnecessary, because, as the Appellants argue, the Tribunal will revoke the REA based on the Tribunal’s findings in respect of the Health Test, irrespective of the Tribunal’s findings on remedy in respect of the Environment Test.

15The Tribunal first notes that s. 145.2.1(4) of the EPA sets out the options available to the Tribunal for disposing of s. 142.1 appeals. This section does not direct the Tribunal to order one specific remedy and does not set out a standard or criteria that the Tribunal must consider when determining the remedy that should be imposed. Instead, it provides the Tribunal with discretion, stating that, where the harm test has been met, the Tribunal “may” order one of three listed remedies when disposing of an appeal. The considerations that the Tribunal will address in exercising its discretion under s. 145.2.1(4) are broader than those applied under the tests in s. 145.2.1(2). In Ostrander, at para. 96, the Court of Appeal envisioned various considerations that the Tribunal may take into account when considering an appropriate remedy under s. 145.2.1(4), stating that submissions from parties could focus on “the ambit of the Director’s authority” and “relevant government policies”, among other issues. The considerations to be applied for each option in s. 145.2.1(4) are different. The Tribunal will consider its findings of harm under either or both grounds in s. 142.1(2)(a) and (b), but must also take into account the public interest, the statutory context and all relevant evidence when exercising its discretion under s. 145.2.1(4). As a result, it is not a foregone conclusion that a finding of serious harm under the Health Test or serious and irreversible harm under the Environment Test will always result in the revocation of an approval, even if no additional evidence or submissions are made in a remedy hearing.

16A finding under s. 145.2.1(4) of the EPA is clearly the final decision in a renewable energy proceeding where the Tribunal has already found that either the Health Test or Environment Test has been met. In this case, the Tribunal finds that it should not proceed to make a final disposition regarding the Health Test where the hearing of evidence is ongoing.

17Collingwood and Simcoe County suggested that the Tribunal could bifurcate this proceeding by making its final determination under s. 145.2.1(4) of the EPA in respect of the Health Test, and subsequently continue with the Remedy Hearing. Here, it is preferable for the Tribunal to receive all of the evidence, both from the merits phase and the Remedy Hearing, before selecting the best overall course of action from the available options set out in s. 145.2.1(4). That way, it will be able to make a fully informed choice regarding remedy. Furthermore, the Tribunal should fully exercise its jurisdiction while the proceeding is before it. If the Tribunal’s final decision under s. 145.2.1(4) of the EPA is appealed, the Court will then have the benefit of the Tribunal’s full, complete and final disposition regarding this proceeding.

18The Tribunal also notes that s. 145.2.1(6) of the EPA states that:

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.

Subject to the exclusion of time periods where “clock-stopping” adjournments are in effect, this period is six months from the day of the filing of the notice of appeal, as prescribed in s. 59(1) of O. Reg. 359/09. If the Tribunal declines to proceed with the Remedy Hearing, then arguably there would be no final disposition made by the Tribunal in respect of the appeals under the Environment Test within the six month period. While a finding that an appellant has not demonstrated the requisite degree of harm to meet the Environment Test or Health Test finally disposes of an appeal, that is not the case where either test has been met. In the latter situation, the harm finding serves as a precondition to the final disposition made under s. 145.2.1(4), which must be done within the statutory timeframe.

19The Tribunal now turns to the submission advanced by some of the Appellants that they will be prejudiced by delay if the Remedy Hearing proceeds. In this regard, the Tribunal notes that the Remedy Hearing has been scheduled and will be completed in early March 2017, so there will be no inordinate delay in completing this part of the proceeding. For this reason, the Tribunal does not accept this submission.

20The Tribunal has given due consideration to all the arguments raised by the Appellants, including the argument that they ought not be put to the time and expense of participating in the Remedy Hearing, on the assumption that it is a foregone conclusion that the Tribunal will revoke the REA based on its analysis and findings in respect of the Health Test. However, the Tribunal must consider all factors, and, most importantly, adopt an approach that will ensure a just determination of all of the issues raised in these appeals on their merits. Taking into account all of the considerations and findings outlined above, the Tribunal finds that it is appropriate to proceed with the Remedy Hearing to ensure a just and full determination of all the issues raised in these appeals on their merits.

ORDER

21The Tribunal grants the parties the opportunity to produce evidence and make submissions on appropriate remedies under s. 145.2.1(4) of the EPA.

22This proceeding is adjourned under s. 59(2)1.ii of O. Reg. 359/09.

Hearing Adjourned

“Dirk VanderBent”

DIRK VANDERBENT

VICE-CHAIR

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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