Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 CanLII 25526

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

March 20, 2018

CASE NO.:

17-074

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

Appellant:

Alliance to Protect Prince Edward County

Approval Holder:

wpd White Pines Wind Incorporated

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Amendment to Renewable Energy Approval for White Pines Wind Project

Reference No.:

2344-9R6RWR

Property Address/Description:

Various sites

Municipality:

County of Prince Edward

ERT Case No.:

17-074

ERT Case Name:

Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change)

Heard:

January 24, 2018 in Demorestville, Ontario

APPEARANCES:

Parties

Counsel/Representative^+^

Alliance to Protect Prince Edward County

Eric K. Gillespie and Kathleen Coulter (Articling Student)

Director, Ministry of the Environment and Climate Change

Jon Bradbury

wpd White Pines Wind Incorporated

Patrick G. Duffy and Jesse Long

Participants

Gerard Spinosa

Self-represented

Prince Edward Point Bird Observatory

Cheryl Anderson^+^

DECISION DELIVERED BY MAUREEN CARTER-WHITNEY, MARLENE CASHIN AND JUSTIN DUNCAN

REASONS

Background

1On January 24, 2018, the Environmental Review Tribunal (“Tribunal”) held a Pre-hearing Conference (“PHC”) in relation to an appeal commenced by the Alliance to Protect Prince Edward County (“Appellant” or “APPEC”) of the decision of the Director of the Ministry of the Environment and Climate Change (“MOECC”) to issue an amendment to Renewable Energy Approval Number 2344-9R6RWR (“original REA”) on November 22, 2017 (“REA Amendment”). These are the reasons for decision of the Tribunal, issued on January 26, 2018 following the PHC where the Tribunal, amongst other things, dismissed the appeal.

2By way of background, on July 16, 2015 the Director issued the original REA to the Approval Holder authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (“Project”). The Project is located near the south shore of the County and 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 (“Project site”). John Hirsch and APPEC appealed the original REA to the Tribunal. Those appeals commenced on November 2, 2015 and were heard over 21 days in November and December 2015. In an order dated February 26, 2016, the Tribunal found that, pursuant to s. 145.2.1(2) of the Environmental Protection Act, (“EPA”), engaging in the Project in accordance with the original REA would cause serious and irreversible harm to two species: Little Brown Bat and Blanding’s Turtle (Hirsch v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 6).

3On April 26, 2017, the Tribunal issued reasons for decision with respect to remedy following its finding of serious and irreversible harm (Hirsch v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 22 (“Hirsch”)). Pursuant to its authority under s. 145.2.1(4)(c) of the EPA, the Tribunal altered the decision of the Director by amending the original REA to add conditions and remove 18 turbines from the Project (“altered REA”).

4On May 25, 2017, the Tribunal issued reasons for decision with respect to the settlement of a separate appeal that had been filed by the Approval Holder from the Director’s issuance of the original REA (wpd White Pines Wind Inc. v. Ontario (Ministry of the Environment and Climate Change), [2017] O.E.R.T.D. No. 29 (“wpd White Pines Wind”)). The Tribunal approved a settlement agreed to by the parties that required the Director to amend the wording of Condition L1(3)(a) of the altered REA.

5On October 10, 2017, the Approval Holder submitted an application for an amendment to the altered REA (“Amendment Application”) describing the proposed amendment as follows:

wpd is proposing to add an option for an Alternate Transformer to the White Pines Wind Project to permit operational flexibility. The alternate transformer, Northern Transformer Corporation’s (NTC) 15/20 MVA transformer, may be elected to replace the General Electric 39/52/65 transformer in the Southern Substation location, previously approved in the REA # 2344-9R6RWR. If the NTC Transformer is elected, the interconnection line would carry 44 kV, not 69 kV of electricity (as previously approved in the REA # 2344-9R6RWR).

The modification does not alter the Project Location.

6The Environmental Registry Information Notice posted by the MOECC on November 22, 2017 stated:

Rationale for Exemption to Public Comment:

An amendment to the Renewable Energy Approval (REA) held by wpd White Pines Wind Incorporated has been made by the Director. The purpose of the posting is to inform the general public of the amendment and their right to require a hearing in respect of this decision.

The Director considers this a minor amendment and it is not expected to have any significant impact on the environment. Therefore, public consultation is not required.

Description:

This is an amendment to existing REA No. 2344-9R6RWR. The amendment is for the inclusion of flexibility to reduce the voltage of the project’s interconnection line from 69kV to 44kV, as well as reduce the voltage and megavolt amperes (MVA) rating of the project’s southern transformer substation to 44kV (from 69kV) and 20 MVA (from 65 MVA), respectively.

This Class 4 wind facility, known as the White Pines Wind Project, is located in Prince Edward County. The facility has a total expected generation capacity of 18.45 megawatts.

7APPEC filed its Notice of Appeal on December 6, 2017. The Notice of Appeal, which is attached as Appendix 1, identifies 10 portions of the altered REA that are appealed. It alleges that operating the Project in accordance with the altered REA will cause serious harm to human health and serious and irreversible harm to the natural environment.

8Upon being advised by the Director and Approval Holder that they intended to bring motions relating to the proper scope of the appeal and seeking to strike portions of the Notice of Appeal, the Tribunal directed that such motions would be heard during the PHC, which was scheduled to take place on January 24, 2018, and directed a schedule for the parties to exchange and file materials.

9Prior to the motion materials being filed, the Appellant filed the witness statements of Orville Walsh and Kari Gunson in accordance with the agreed schedule.

10During the PHC, the Tribunal first heard requests for status on the appeal. Gerard Spinosa and the Prince Edward Point Bird Observatory (“Observatory”) requested and were granted participant status, subject to the outcome of the motions that followed, which are described below. The Tribunal also heard a request for participant status from the County Coalition for Safe and Appropriate Green Energy (“Coalition”), represented by Les Stanfield, but deferred its consideration of that request pending the outcome of the motions. A written request for participant status from Mr. Hirsch, who was unable to attend the PHC, was also deferred pending the outcome of the motions.

11During the PHC, the Tribunal then heard the motions filed by the Director and the Approval Holder. The Director’s motion requested an order striking the Appellant’s Notice of Appeal in its entirety and dismissing the appeal. The Approval Holder’s motion requested an order striking the entire Notice of Appeal and an order striking the witness statements filed by the Appellant in support of its appeal.

12During the hearing of the motions, the Appellant objected to the Director’s written reply submissions and to the Approval Holder making oral submissions replying to the Appellant’s written and oral submissions, without having previously filed written submissions. Counsel for the Appellant also sought the opportunity to provide sur-reply submissions. The Tribunal dismissed the Appellant’s objections to the reply submissions, but allowed its request to provide sur-reply. The reasons for these dispositions are addressed below.

13In a Decision dated January 26, 2018, the Tribunal ordered that:

a) Gerard Spinosa and the Prince Edward Point Bird Observatory are granted participant status.

b) The Director’s and the Approval Holder’s motions are granted.

c) The Notice of Appeal and the Appellant’s witness statements are struck.

d) The appeal is dismissed.

Issues

14The issues to be addressed in these reasons are:

1. whether to grant requests for participant status;

2. whether the Director’s written reply submissions, the Approval Holder’s oral reply submissions and the Appellant’s sur-reply submissions constitute proper reply; and

3. whether the Appellant’s Notice of Appeal and witness statements should be struck and the appeal dismissed.

Relevant Legislation, Regulations and Rules

15The relevant provisions of the EPA and Ontario Regulation (“O. Reg.”) 359/09, and the relevant rules of the Rules of Practice of the Environmental Review Tribunal (“Rules”) are attached as Appendix 2 to this decision.

Discussion, Analysis and Findings

Issue No. 1: Whether to grant requests for participant status

16Gerard Spinosa and the Observatory were granted participant status by the Tribunal, contingent on the appeal proceeding after the Tribunal’s disposition of the motions. Status was granted subject to the outcome of the motions described below. The Tribunal also deferred requests for status by the Coalition and by Mr. Hirsch in the event that the appeal proceeded.

17None of the parties objected to the requests for participant status by Mr. Spinosa and the Observatory. The Tribunal granted participant status to Mr. Spinosa and the Observatory under Rule 66, as requested, on the basis that, assuming the scope of the appeal remained as set out in the Notice of Appeal, each satisfied the criteria set out in Rule 63 of the Tribunal Rules. These status requests were unopposed by the Approval Holder and Director on the basis that the issues raised would have to be properly within the scope of the appeal, which was to be subsequently determined through the motions.

Issue No. 2: Whether the Director’s written reply submissions, the Approval Holder’s oral reply submissions and the Appellant’s sur-reply submissions constitute proper reply

Submissions of the Parties

18Prior to the hearing of the motion, Eric Gillespie, counsel for APPEC, notified the Tribunal in writing of his position that the written reply submissions provided by the Director went beyond proper reply. Mr. Gillespie stated as follows:

reply is a limited opportunity to address matters that could not reasonably have been addressed in a moving party’s original submissions, as they are either completely new and/or could not have reasonably been anticipated. The 13 pages of new argument now filed by the Director go far beyond this. As a result, APPEC objects to these materials being received by the Tribunal.

19During the motion hearing, Mr. Gillespie provided additional submissions on his objection to the Director’s written reply submissions, asking for clarification regarding the “narrowness” of the right of reply. Mr. Gillespie argued that reply is not an opportunity to set out the full argument of an opposing party and then try to refute that argument point by point, suggesting that this was the antithesis of proper reply. He submitted that reply submissions are intended to respond to something new in the responding submissions that could not reasonably have been anticipated, and further submitted that it was difficult to imagine every one of the Appellant’s arguments on this motion was completely new and could not have been anticipated by the Director.

20Noting that the Appellant provided written submissions of approximately nine pages in length in response to the motions, Mr. Gillespie argued that the 11 pages of written reply submissions provided by the Director were not appropriate. He generally referred to earlier decisions of the Tribunal ruling on the right of reply, without referencing any specific decisions, asked whether the right of reply is narrow or broad, and sought guidance from the Tribunal on the parameters of proper reply.

21Mr. Gillespie did not take issue with anything specific in the Director’s written reply submissions, as not being proper reply, but objected to the Director’s overall approach to these submissions.

22The Director’s counsel, Jon Bradbury, submitted that he had not restated his entire case in his written reply submissions but instead focused exclusively on replying to arguments set out in the Appellant’s responding materials that were not raised in the Notice of Appeal. He asserted that it was important to make a full response to those arguments made in responding materials, and that he did not go beyond that scope in his written reply submissions. Mr. Bradbury further argued that there was no prejudice to the Appellant as it had received the Director’s written reply submissions and therefore had the opportunity to prepare and make any oral submissions it chose. He submitted that there would be significant prejudice to the Director if he was not permitted to provide reply submissions concerning new issues and new arguments raised in the Appellant’s responding submissions.

23Also during the motion hearing, Mr. Gillespie objected to the fact that Patrick Duffy, counsel for the Approval Holder, had the opportunity to file written reply submissions and chose not to do so, but then sought to provide oral submissions in response to the Appellant’s submissions. Mr. Gillespie submitted that the purpose of written reply submissions is to ensure that the responding party is not taken by surprise. He argued that Mr. Duffy’s submissions would “ambush” him because he had no idea what Mr. Duffy would say, and that it would be an error of law for the Tribunal to rely on the Approval Holder’s oral submissions.

24In response to Mr. Gillespie’s objection, Mr. Duffy submitted that a party considering whether to file written reply submissions bears in mind whether it has any new argument, or additional material or case law that needs to be filed. He argued that, where a party determines that written reply submissions are not necessary, that party should not be precluded from providing oral submissions and speaking to the arguments made by a responding party.

25During Mr. Duffy’s oral reply submissions that followed the submissions of the Appellant, Mr. Gillespie objected to a point raised by Mr. Duffy regarding Mr. Gillespie’s literal approach to considering what was in the mind of the Director. Mr. Gillespie alleged that this submission was not proper reply because it was new and could not have been anticipated, and he was now in a position of not being able to respond to it.

Findings on reply evidence generally

26As noted above, the Tribunal accepted the Director’s written and oral reply submissions, and allowed the Approval Holder’s counsel to make oral reply submissions. The Tribunal also permitted Mr. Gillespie to provide sur-reply. The reasons for these determinations all relate to the nature of proper reply, and are discussed together below.

27Mr. Duffy referred to the Tribunal’s decision in Hirsch, which addressed, in Appendix 1 to that decision, the issue of whether the Approval Holder’s written reply submissions on remedy in that matter were proper.

28In Hirsch, the Tribunal cited Guelph (City) v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 14 (“Guelph”), a decision relating to an application for leave to appeal under the Environmental Bill of Rights (“EBR”). At para. 12 of Guelph, the Tribunal stated, that in assessing what is proper reply in the context of that proceeding, it “must balance a number of factors, including fairness to all parties, public participation, efficiency and assistance to the Tribunal.” At para. 14 of Guelph, the Tribunal went on to summarize the principles it applies to determining what proper reply is:

• An applicant is expected to put its complete case forward in its leave application;

• In reply, an applicant may not add new issues or evidence that it was aware of or could have reasonably anticipated and addressed in its application;

• In reply, an applicant may respond directly to a new issue or new evidence contained in the respondent’s submissions; and

• In reply, an applicant may not simply repeat earlier submissions or attempt to bolster its application, but may clarify or amplify an earlier submission, especially where a response misconstrues its position or where an initially less significant issue takes on greater importance because of the response.

29While these principles were enunciated within the context of reply evidence in applications for leave to appeal in Guelph, they have also been applied to reply legal submissions (see the decision of the Tribunal in SR Opposition Corp. v. Ontario (MOECC), [2015] O.E.R.T.D. No. 61). The principles provide useful guidance in assessing proper reply.

30The determination of what constitutes proper reply is left to the discretion of Tribunal, through the application of these principles in the specific circumstances of a proceeding, based on the submissions before it. As noted in Guelph, in assessing reply, the Tribunal balances a number of different factors, such as fairness to all parties, public participation, efficiency, and assistance to the Tribunal. The Tribunal considers and weighs these factors as appropriate in the specific circumstances before it when questions concerning proper reply arise.

31The extent and nature of proper reply will generally be correlated to the nature of the responding submissions to which a party is replying. Lengthy reply submissions may be required and appropriate where new issues or arguments are put forward in responding submissions. In other cases, very little may be necessary in reply where the respondent’s submissions have not introduced new issues or arguments, and have not misconstrued the initial submissions. As long as the substance of the reply submissions is in accordance with the principles of proper reply, it is up to the party providing those submissions to decide on the length of submissions needed to best represent their position. The Tribunal’s determination of what constitutes proper reply is based on the application of the principles to the content of the reply submissions, and not on their length per se.

Findings on the Director’s written reply submissions

32The Tribunal now turns to Mr. Gillespie’s objection to the written reply submissions provided by the Director. As described above, Mr. Gillespie objected to the Director’s overall approach to drafting his reply submissions, noting in particular that they were too long. Mr. Gillespie did not specify any substantive elements of the submissions as being improper.

33Having carefully reviewed the Director’s written submissions and applying the principles from Guelph, the Tribunal finds that the Director’s submissions constitute proper reply. The Director has not added any new issues that he was aware of or could reasonably have anticipated and addressed in his motion record and written argument, nor has he repeated earlier submissions or attempted to bolster his initial arguments. Instead, the Tribunal finds that the Director has replied to arguments and facts raised in the Appellant’s responding submissions that were not included in its Notice of Appeal.

34The Director’s written reply submissions identify and briefly summarize three aspects of the Appellant’s responding submissions, and then set out several paragraphs that directly respond to the new issues and facts raised. The Director’s written reply responds to the Appellant’s submissions that the Director did not file affidavit evidence as to what he turned his mind to when making his decision to issue the amendment, that the Director’s motion should be dismissed as premature, and that the Director must of necessity have turned his mind to the Project as a whole. In the Tribunal’s view, the arguments raised by the Appellant in its responding submissions could not reasonably have been anticipated by the Director. The purpose of reply is to provide an opportunity to respond to such submissions, and that is what the Director has done.

35Regarding Mr. Gillespie’s assertion that reply is not an opportunity to set out the full argument of an opposing party, the Tribunal finds that this is not an accurate characterization of the Director’s reply submissions. The Director clearly set out the unanticipated arguments put forward by the Appellant, to which he was responding. Furthermore, regarding Mr. Gillespie’s concern that the Director has tried to refute the Appellant’s argument point by point, the Tribunal notes that it is common practice for a party providing reply submissions to specifically identify the statements in responding submissions to which it is replying, and then to provide its submissions in reply.

Findings on the Approval Holder’s oral submissions, reply submissions and the Appellant’s sur-reply

36Regarding the Approval Holder’s oral submissions, the Tribunal finds that it was appropriate for the Approval Holder to provide oral submissions addressing the Appellant’s written submissions and that the most appropriate time for the Approval Holder to do so was during initial argument to give the Appellant an opportunity to consider such submissions. Having reviewed the Appellant’s written responding submissions, Mr. Duffy considered whether he needed to make any new arguments or file additional material or case law, and determined that nothing in the Appellant’s submissions required such reply in writing from the Approval Holder. During the oral hearing of the motion, Mr. Duffy sought to provide oral submissions in response to the Appellant’s arguments on the motion.

37The Tribunal agrees with Mr. Duffy’s argument that a party should not be precluded from providing oral submissions speaking to the arguments made by the responding party absent the filing of written reply submissions, so long as there is no prejudice that cannot be addressed, or there is an opportunity to respond. As noted by the Tribunal during the motion hearing, this is the normal course in oral hearings; parties routinely respond to each other’s submissions without having to file written reply submissions in order to be permitted to do so. While it was open to the Approval Holder to file written submissions, it was not a precondition to providing oral argument at the hearing that addresses the Appellant’s submissions.

38In response to Mr. Gillespie’s concern that the lack of written reply submissions meant that he was taken by surprise and ambushed, the Tribunal observes that Mr. Duffy in his oral submissions did make a statement to which Mr. Gillespie objected, because it introduced a new argument after the Appellant had made its submissions on the motion. Upon Mr. Gillespie’s request to respond to the new matter, Mr. Duffy had no objection to Mr. Gillespie being given an opportunity to respond in oral sur-reply, and the Tribunal allowed Mr. Gillespie to provide such submissions. The Tribunal notes that the opportunity to provide sur-reply is regularly used to address potential concerns about procedural fairness, in navigating the challenges of determining what constitutes proper reply.

Issue No. 3: Whether the Appellant’s Notice of Appeal and witness statements should be struck and the appeal dismissed

39During the PHC, the Tribunal heard motions filed by both the Approval Holder and the Director. The Approval Holder requested an order striking the entire Notice of Appeal and an order striking the witness statements of Orville Walsh and Kari Gunson, filed by the Appellant in support of its appeal. The Director requested an order striking the Appellant’s Notice of Appeal in its entirety and dismissing the appeal. The Appellant requested that both motions be dismissed.

Submissions of the Parties

Submissions of the Approval Holder

40By way of summary, the Approval Holder submitted that the entire Project remains located within the original Project site and it was simply reduced in size by the Tribunal’s decision in Hirsch. The Approval Holder submitted that its Amendment Application requested no change to the Project’s location or to the location or type of any related construction.

41The Approval Holder submitted that its Amendment Application was for an extremely minor modification to the Project focused on adding operational flexibility, by requesting the ability to substitute, if it was later deemed necessary, the transformer located at the southern substation. Specifically, the Approval Holder requested that it have the ability to substitute the General Electric 39/52/65 transformer (“GE Transformer”) approved in the original REA with a smaller Northern Transformer Corporation 15.20 megavolt amperes (“MVA”) transformer (“NTC Transformer”). The Approval Holder submitted that the NTC Transformer is smaller than the GE Transformer, outputs a lower voltage and sound, and will be positioned in the same footprint that was approved in the original REA and not changed in the altered REA.

42Further, the Approval Holder submitted that the NTC Transformer has the same National Electrical Manufacturers Association sound level rating (71 decibels (“dB”)) as the previously approved transformer, is in fact quieter than the GE Transformer and that, should the NTC Transformer be used, the Project’s interconnection line (which links the substation to a distribution line ultimately connected to Ontario’s electricity grid) would carry 44 kilovolts (“kV”) of electricity, as opposed to the 69 kV approved in the original REA.

43The Approval Holder submitted that MOECC’s Technical Guide to Renewable Energy Approvals (April 2017) classifies the REA Amendment as a “Technical Modification”. The Approval Holder relies on the report prepared by the Approval Holder’s consultant Stantec Consulting Ltd. (“Stantec”) and entitled White Pines Wind Project Renewable Energy Approval Modification Document (“Stantec Modification Document”) submitted with its Amendment Application. The Approval Holder submitted that, through consultation with experts, Stantec considered the effects of the NTC Transformer and interconnection line voltage, and determined that the use of the NTC Transformer would not change its assessment of the archaeological, cultural heritage, or natural heritage effects of the southern substation transformer.

44The Approval Holder submitted that the request for a potential change to the transformer was the entire substance of the Amendment Application, which did not require any change to the Project’s location, or any construction related to the southern substation (such as access roads). The Approval Holder submitted that the REA Amendment did nothing more than what was required to give effect to this change, as evidenced in the following provisions:

i) The definition of “Acoustic Assessment Report” was updated to state that a noise assessment was not required for the NTC Transformer because it is quieter than the previously approved GE Transformer;

ii) The definition of “Application” was updated to reflect the Amendment Application; and

iii) Schedule B of the REA – Coordinates of the Equipment and Noise Specifications – was modified to include the NTC Transformer.

45With regard to the Appellant’s Notice of Appeal, the Approval Holder submitted that s. 142.1(2) of the EPA requires that the Notice relate to the Amendment. The Approval Holder submitted that the Notice of Appeal is deficient in the following respects:

i) it purports to appeal sections of the altered REA not amended by the REA Amendment;

ii) it does not put forward a single allegation of harm arising from the REA Amendment; and

iii) it requests relief entirely unconnected to the REA Amendment.

46The Approval Holder submitted that, as a result, the appeal is not only completely outside the jurisdiction of the Tribunal, but also almost entirely comprises issues finally decided in Hirsch.

47The Approval Holder requested that the Tribunal exercise its powers under the Rules to exclude from consideration in the appeal, or dismiss the appeal as it relates to, all of the issues and facts described in the Notice of Appeal that are not within the jurisdiction of the Tribunal. Further, the Approval Holder submitted that the Tribunal should strike the Appellant’s witness statements on the basis that they are completely irrelevant to the technical REA Amendment, are speculative, and/or relate to matters finally decided in Hirsch.

48The Approval Holder referenced and relied on the Tribunal’s decision in Inter-Recycling Systems Inc. v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 37, at para. 49, where it was held that:

the responding party must provide at the time of the motion sufficient evidence to demonstrate that there is a genuine issue, rather than arguing that such evidence will be heard at the hearing. In other words, the responding party in a Motion to Dismiss an appeal must set out specific facts and evidence to demonstrate that there is a genuine issue for a hearing.

49In reference to Rule 111(a) and (b), the Approval Holder submitted that the Notice of Appeal is frivolous because it raises no genuine issues for a hearing; and it raises issues that are outside the jurisdiction of the Tribunal. It was submitted that s. 142.1(2) of the EPA limits the scope of this appeal to issues related to the narrow REA Amendment and that none of the Appellant’s grounds of appeal relate to the “decision” at issue.

50The Approval Holder referenced the Tribunal decision in Fairfield v. Director, Ministry of the Environment, [2014] O.E.R.T.D. No. 50 (“Fairfield”) where the Tribunal struck paragraphs of a notice of appeal that were not relevant to the amendment at issue, finding, at para. 65, that:

if the matter was not one the Director turned his or her mind to in issuing the Amended REA, it is not open to appeal at this juncture. A minor amendment to the Original REA cannot be used as an opportunity to appeal terms of the Original REA….

The Approval Holder also relies on the case of Hughes v. Director, Ministry of the Environment, [2012] O.E.R.T.D. No. 43 (“Hughes”), where the Tribunal stated, at para. 55, that:

…a director must turn his or her mind to the matter for there to be a decision. A minor amendment could trigger an appeal of the entirety of the permit, where, for example, a director has reopened all of the components of the permit, reviewed them in depth and made a decision, which would allow an appeal or leave with respect to the full breadth of the decision made. Where a director does not turn her mind to the basic terms of the permit, an appeal of those terms would not be appropriate.

51The Approval Holder also submitted that the Appellant’s Notice of Appeal is fundamentally deficient in its failure to describe how the REA Amendment will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment, as required by s. 142.2(1) of the EPA. The Approval Holder relies on the decision in Ball v. Ontario (Director, Ministry of the Environment), [2012] O.E.R.T.D. No. 40 at paras. 30 and 55, where the Tribunal held that a notice of appeal must meet the statutory requirements in order for the Tribunal to have jurisdiction to proceed with an appeal. Furthermore, the Approval Holder submitted that, but for Schedule B of the REA Amendment, the portions of the REA appealed in the Notice of Appeal were not addressed in the REA Amendment. The Approval Holder submitted that even if the Tribunal were to find in favour of the Appellant, it could not grant the relief requested in the Notice of Appeal as the Tribunal is limited to issuing an order in relation to only the Director’s decision on the Amendment Application.

52The Approval Holder submitted that while the location of the substation is prima facie relevant to the technical REA Amendment, it does not raise a genuine issue for a hearing because the REA Amendment does not modify the size of the approved Project site or the location of the southern transformer and related construction, and merely permits the use of a quieter transformer. Further, the Approval Holder submitted that the location of the southern transformer was finally determined in Hirsch and, in reliance on Fairfield at para. 62, submitted that any issues that were raised (or could have been raised) in the initial appeal of a renewable energy approval cannot be raised on an appeal of an amendment to that approval.

53With regard to the witness statements filed by the Appellant, the Approval Holder submitted that any evidence that is irrelevant to the specific decision at issue should not be accepted by the Tribunal. The Approval Holder submitted that the witness statement of Mr. Walsh addresses Blanding’s Turtle activity within the Project site, the Approval Holder’s compliance with the altered REA, the Approval Holder’s vegetation clearing activities, construction of a concrete batch plant, and road use. It is submitted that these matters are either outside of the Tribunal’s jurisdiction on an appeal or are otherwise not engaged by the REA Amendment. The Approval Holder relies on Preserve Mapleton Inc. v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 19, at para. 68, for the proposition that allegations of non-compliance with a renewable energy approval or with the requirements of the EPA are outside the jurisdiction of the Tribunal on a renewable energy approval appeal and should be addressed by way of application for judicial review in the Divisional Court.

54Additionally, the Approval Holder submitted that the witness statement of Ms. Gunson speculates exclusively on the efficacy of the Project’s Blanding’s Turtle harm mitigation plan, which is set out in the altered REA and not engaged by the REA Amendment, and further, it concerns a matter finally decided in Hirsch, and such matters may not be revisited.

55The Approval Holder submitted that the scope of the Director’s decision to be considered by the Tribunal consists of those materials that were before the Director, rather than requiring an affidavit setting out what was in the Director’s mind. With regard to the issue of prematurity of the motion, the Approval Holder submitted that although an appellant can rely on the evidence of participants and presenters, participants and presenters are not permitted to expand the issues or jurisdiction of the Tribunal on appeal. The Approval Holder further submitted that it would be absurd if amending the definition of the “Application” in the altered REA to include a reference to the Amendment Application materials, were to open the entire altered REA to appeal.

Submissions of the Director

56The Director’s submissions mirror those of the Approval Holder to a large extent.

57The Director referenced Haldimand Against Landfill Transfers v. Ontario (Ministry of the Environment) [2005] O.E.R.T.D. No. 29 (“Haldimand”), Kagawong Power Inc. v. Director (Ministry of the Environment), 2007 CarswellOnt 9989 (“Kagawong”), and Hughes where the Tribunal held that it did not have jurisdiction to consider terms and conditions that had been established in earlier approvals or permits, and that had not been changed. The Director submitted that the key determination is the scope of the Director’s decision. The Director referenced the finding in Kagawong that a director must turn his or her mind to the matter for there to be a decision. The Director asserted that a minor amendment could trigger an appeal of the entirety of a permit, where, for example, a director has reopened all of the components of the permit, reviewed them in depth and made a decision, which would allow an appeal or leave to appeal with respect to the full breadth of the decision made. Where a director does not turn his or her mind to the basic terms of the permit, the Director submitted that an appeal of those terms would not be appropriate.

58The Director also relied on Fairfield for the similar proposition that, if the matter under appeal is not one the Director turned his or her mind to in issuing an amendment, it is not open to appeal before the Tribunal. The Director submitted that a minor amendment to the altered REA cannot be used as an opportunity to appeal terms of the altered REA that either could have been but were not appealed within the original 15-day appeal period, or were appealed and were then settled or determined by the Tribunal.

59The Director submitted that the Appellant’s Notice of Appeal is entirely beyond the scope of, or simply unrelated to the substance of, the Director’s immediate decision, and should be struck.

60The Director submitted that the terms and conditions referenced in the Appellant’s Notice of Appeal were either part of the original REA when it was issued on July 16, 2015 or imposed by the Tribunal in Hirsch following the appeal by the Appellant. Further, the Director submitted that the Approval Holder did not request that any of these terms and conditions be amended in its application for the REA Amendment now at issue before the Tribunal.

61The Director submitted that the altered REA’s terms and conditions relating to Blanding’s Turtle in particular were thoroughly canvassed and determined by the Tribunal in Hirsch. The Director further submitted that after the Tribunal issued its final decision in Hirsch, the Tribunal considered the Approval Holder’s appeal of the original REA, which dealt with an amendment to the specific wording of condition L1(3)(a), relating to Blanding’s Turtle. The Director stated that the Appellant did not object to the amendment of condition L1(3)(a) at that time.

62To the extent that the Appellant seeks to challenge the decision of the Tribunal in Hirsch, whereby the original REA was altered to include the terms and conditions set out at J7.1 and L2, or the Tribunal’s decision in wpd White Pines Wind, which approved an amendment to condition L1(3)(a), the Director submitted that the Appellant is bound by s. 145.6 of the EPA, which limits appeals from decisions of the Tribunal to the Divisional Court on questions of law.

63With regard to the REA Amendment, the Director submitted that it is clear from the amended Notes below the table in Schedule B of the altered REA that only one transformer is to be installed, and that the location coordinates will not change regardless of which transformer is installed at the southern transformer substation location. Further, the Director submitted that the NTC Transformer has lower voltage and sound level ratings than the transformer that was approved in the original REA.

64The Director submitted that the Appellant cannot now challenge the location of the transformer substation or the associated access road given that they are unchanged from the original REA. The Director submitted that the Appellant was aware of, and had the opportunity to raise, any issues about the location of the transformer substation and any associated access roads in the context of its first appeal, but failed to do so.

65The Director also submitted that the Appellant is raising issues about parts of the altered REA that it feels should be amended, but which have no connection to the REA Amendment. For example, regarding the Appellant’s allegation in the Notice of Appeal that the Director is allowing modifications to wildlife avoidance and mitigation plans without amending the altered REA, the Director submitted that his decision to approve the REA Amendment had nothing to do with the wildlife avoidance and mitigation plans in the altered REA. Similarly, the Director submitted that the issues relating to the Blanding’s Turtle and Little Brown Bat raised by the Appellant in its Notice of Appeal have nothing to do with the Director’s decision that is the subject of this appeal, and the Appellant has provided no indication of any relationship between the REA Amendment and the issues it raises in respect of these species.

66The Director submitted that the Appellant has not raised any concern at all relating to the possible change in voltage or sound ratings of the southern transformer or related interconnection lines. The Director submitted that the true nature and purpose of the appeal is that there are other or further amendments to the altered REA that the Appellant would like to see implemented, and the Appellant is improperly seeking to use the Tribunal process as a vehicle to have those amendments made.

67The Director submitted that the Tribunal’s jurisdiction is limited to issues of harm that may arise from the specific terms of the REA Amendment. In particular, the Director submitted that the Tribunal’s jurisdiction is limited to whether the Director’s decision to allow the Approval Holder the option to use specified lower voltage equipment at the southern transformer location will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment. The Director submitted that the only part of the altered REA subject to the REA Amendment and mentioned in the Notice of Appeal is Schedule B, and the Appellant has failed to set out in the Notice of Appeal how the REA Amendment will result in any harm.

68The Director submitted that there are no aspects of the Appellant’s appeal that lie within the Tribunal’s jurisdiction and requests that the Notice of Appeal be struck in its entirety and the appeal be dismissed.

69In response to questions from the Tribunal about the language of s. 145.2.1(2) of the EPA, the Director submitted that the section should not be read as implying that the entire altered REA is open to appeal every time it is amended, but rather, that the focus ought to be on the Director’s decision.

70The Director submitted that it is unnecessary for the Director to file an affidavit in support of the motion. The Director referenced the Fairfield decision at paras. 62 and 75 where the Tribunal made a decision about what was in the Director’s mind absent the filing of an affidavit by the Director himself. Further, the Director submitted that the Approval Holder’s Amendment Application, the REA Amendment decision itself, and related documentation filed in its Motion Record, are sufficient for the Tribunal to make a decision on the jurisdictional matters raised on the motions, noting that these documents demonstrate that the REA Amendment was minor and technical in nature, and that there is no relevant connection to the issues raised in the Notice of Appeal.

71Regarding the Appellant’s argument set out below that the Director’s motion is premature, the Director submitted that it is not the case that possible future submissions of any person currently requesting status can determine the question of jurisdiction before the Tribunal. The Director further submitted that bringing this motion at an early stage in the proceedings is appropriate and consistent with Rule 4 of the Tribunal’s Rules because it would not be just, expeditious or cost effective to allow this proceeding to continue without first determining the jurisdiction issues raised on the Director’s motion.

72With regards to the Appellant’s submission that amending the definition of “Application” in the altered REA opens up the entire altered REA to appeal, the Director submitted that it is routine for the definition to be changed every time an amendment is made, and that it would lead to absurd results if, every time the definition is amended to include additional items submitted to the Director, the entire altered REA is subject to appeal.

73Regarding the Appellant’s assertion that if “a matter was never appealed, then as a matter of law it can and must be considered at some point”, the Director submitted that this proposition is not supported by any authority and is wrong in law, noting that there is no common law right to appeal a renewable energy approval, and the approval regime and any rights that flow from it are entirely based on the EPA. The Director stated that the Appellant seems to be inviting the Tribunal to revisit the “material change in circumstances” argument raised by the appellant in Fairfield, and submitted that the Tribunal does not have jurisdiction to create new rights of appeal, noting that the Tribunal’s jurisdiction is constrained by the legislation.

74With regard to matters of process and enforcement, the Director submitted that there exist other avenues of redress beyond the limited jurisdiction of the Tribunal: a request for review under Part IV of the EBR and complaints for enforcement with the MOECC District Office.

Submissions of the Appellant

75The Appellant characterized the motions brought by the Approval Holder and Director as seeking “capital punishment” of its appeal.

76The Appellant submitted that the Approval Holder and Director have failed to provide adequate evidence regarding what was in the Director’s mind when the REA Amendment was approved, in order for the Tribunal to assess the merits of the motion. The Appellant submitted that such evidence was clearly available and no explanation has been offered as to why the Director has not provided any evidence. The Appellant argued that what was in the mind of the Director is directly relevant to determining these motions, and that the Tribunal is now in the position of having to speculate about that. It relied on the Tribunal’s decision in Fairfield for the proposition that an appeal is not limited to matters referenced explicitly in the decision, but can be expanded to cover any matters the Director turned his or her mind to in issuing the REA Amendment. Although the Appellant acknowledged that there was no evidence filed by the Director for the purpose of the motion in Fairfield, it was submitted that this issue of lack of evidence was never raised by the parties in the Fairfield case for consideration by the Tribunal.

77Citing the law regarding the failure of a party to testify or call a material witness, as set out in Sopinka et al., The Law of Evidence in Canada, 4^th^ Ed. (LexisNexis Canada Inc., 2014), the Appellant asserted that this failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or would not support it. The Appellant submitted that an adverse inference should be drawn from the Director’s failure to tender affidavit evidence in support of the motion and that the failure to file affidavit evidence should be fatal to both the motions.

78Furthermore, the Appellant submitted that a review of the materials filed with the Director’s Motion Record, including the Stantec Modification Document, reveal that as the Director had material before him indicating that the Approval Holder’s Natural Heritage Assessment did not need to be updated, he must have considered natural heritage, thereby opening up natural heritage matters to appeal.

79In the alternative, relying on the Tribunal’s decision in Cham Shan Temple v. Director, Ministry of the Environment, [2015] O.E.R.T.D. No. 9, the Appellant submitted that an appellant can rely on the evidence of participants and presenters at a hearing, and that evidence can properly form part of an appellant’s case, and part of the evidence the Tribunal considers in an appeal. The Appellant submitted that it would be premature for the Tribunal to dismiss the appeal prior to hearing evidence from the participants in this case, and that this would result “in the most severe impact on every possible participant”.

80The Appellant stated that it intends to rely on the evidence of any participants granted status on the appeal. It submitted that: participant Mr. Spinosa lives in close proximity to the transformer substation addressed in the REA Amendment and that his draft participant statement raises many concerns relating to the location of the substation; Ms. Anderson is a current Director of the Observatory and was a Director of the Prince Edward County Field Naturalists and will provide evidence about Blanding’s Turtle and what should have been in the Director’s mind in considering the REA Amendment; Mr. Stanfield, on behalf of the Coalition, if accepted as a participant, will speak to concerns about impacts on waterbodies in the Project area; and Mr. Hirsch, who was one of the two appellants in the Hirsch appeal, if accepted as a participant, will also provide useful evidence. The Appellant submitted that it would be a miscarriage of justice to not, at a minimum, carefully consider the evidence of these knowledgeable and affected individuals, before deciding that their concerns have no merit and no bearing on the outcome of the appeal.

81In the further alternative, the Appellant submitted that a review of the REA Amendment itself demonstrates that the Director turned his mind to the Project as a whole, thereby opening up the entire altered REA to appeal. The Appellant submitted that the definition of “Application” in that document refers to all of the materials submitted in the past and expressly states: “(t)his Notice shall constitute part of the approval issued under Approval No. 2344-9R6RWR dated July 16, 2015”. The Appellant submitted that the Director must have turned his mind to these references in order to determine that the REA Amendment was permissible.

82Additionally, the Appellant submitted that the Tribunal has already made express findings of serious and irreversible harm in relation to this Project, and that what is now proposed is an amendment to the Project, and not a complete Project de novo. The Appellant submitted that the Director must have turned his mind to the previous Tribunal rulings and that the Tribunal must do so now as well in considering the proper scope of the appeal.

83The Appellant submitted that in the circumstances, s. 64 of the Legislation Act, which encourages a liberal interpretation of the EPA and which would favour a right of appeal where doubt exists as to the proper interpretation of the appeal right contained in s. 145.2.1(2), as well as the Tribunal’s Rules, particularly Rules 1 and 4, direct that the motions should be dismissed.

84In the further alternative, the Appellant submitted that the Fairfield decision makes it clear that where an issue was not properly appealed, or where it was and the issue has been decided, an amendment does not provide an opportunity to re-appeal. The Appellant submitted, however, that if a matter is new and could never have been appealed, then it can and must be considered at some juncture by the Tribunal. In this regard, the Appellant asserted that a concrete batching plant is now proposed and small secondary/tertiary roads are now either being, or will be, used as a direct result of the REA Amendment. The Appellant submitted that the associated traffic impacts on the Blanding’s Turtle population, which has recently been uplisted from threatened to endangered by the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”), must be assessed, as these changes to the Project are matters that were not known and have never been considered by the Tribunal at any stage of the Hirsch appeal process. The Appellant submitted that as part of the Tribunal’s mandate and responsibilities to the public, and in the public interest, consideration can and must be given to these issues and, as a matter of basic procedural fairness and natural justice, the Appellant should not be denied its “day in court”.

85With regard to the references in the Notice of Appeal to multiple provisions of the altered REA which were not amended by the Director’s decision, the Appellant submitted that reference to broader issues in the Notice of Appeal allow for greater flexibility in crafting a remedy should the appeal be successful, and that striking portions of the Notice of Appeal at this point would fetter the Tribunal’s jurisdiction on remedy at a later date.

Reply Submissions of the Approval Holder and Director

86In reply to the oral submissions of the Appellant, the Approval Holder submitted that the Director is a statutory decision maker and it is unnecessary to have an affidavit sworn because the matters he turned his mind to consisted of the documents he had before him. Regarding the Stantec Modification Document, the Approval Holder submitted that it is not asking the Tribunal to accept the findings of the report but rather, to find on this motion that the Appellant has failed to allege or show harm arising from the REA Amendment. The Director submitted in reply that there is nothing in Fairfield that confers a right of appeal where the statute precludes it.

Sur-reply of the Appellant

87The Tribunal gave the Appellant an opportunity to make sur-reply submissions. With regard to the applicability of Fairfield, the Appellant submitted that the decision is limited in its applicability to this situation, as the Tribunal in Fairfield did not consider a situation where a previous Tribunal hearing resulted in an amended renewable energy approval, and that a situation-specific ruling is needed here.

Analysis and Findings

88In considering the submissions of the parties, the Tribunal finds that the following matters must necessarily be considered in order to resolve the question of whether the Appellant’s appeal raises a matter that is within the jurisdiction of the Tribunal:

a. the jurisdiction of the Tribunal in relation to amendments of renewable energy approvals generally;

b. the scope of the Director’s decision that is the subject of appeal; and

c. whether the appeal raises matters that fall within the jurisdiction of the Tribunal

Jurisdiction of the Tribunal Generally

89The Approval Holder and the Director submitted that the Tribunal’s jurisdiction is limited by the EPA to focusing on the decision of the Director, which in this case is the decision to issue the REA Amendment. While on the one hand the Appellant appeared to agree with this limited jurisdiction, it also made the submission that s. 145.2.1(2) of the EPA should be interpreted in a liberal manner to permit the appeal of a broader list of terms and conditions contained in the altered REA.

90Section 47.5(3) permits the Director to alter terms and conditions in renewable energy approvals and s. 142.1(2) allows an appeal of a decision under s. 47.5(3). In considering how to interpret s. 145.2.1(2) of the EPA in the context of an amendment to an existing renewable energy approval, since neither the Act nor the regulations establish a separate test on appeals of amendments, it is necessary to consider the language and intent of Part XIII of the EPA as it relates to renewable energy approvals as a whole, in addition to the provisions of O. Reg. 359/09 relating to appeals before the Tribunal.

91The Tribunal stresses that the appeal process in Part XIII of the EPA for a Director’s decision to issue a renewable energy approval limits the jurisdiction of the Tribunal to a consideration of whether engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment (s. 145.2.1(2)).

92Additionally, s. 142.1(2) of the EPA and s. 58 of O. Reg. 359/09 together operate to require that appeals from a Director’s decision to issue a renewable energy approval are to be filed within 15 days of notice of the decision being posted on the Environmental Registry. Section 59 of O. Reg. 359/09 requires that appeals be heard and determined within the accelerated timeline of six months from the date an appeal is served upon the Tribunal, excluding the period of an adjournment ordered in accordance with the criteria established by the regulations. The Tribunal finds that the legislative intent behind these accelerated timelines is to quickly reach finality and certainty, not only on an appeal, but on the contents of an approval itself. The Tribunal finds that this overall intent must be kept in mind in considering and interpreting other provisions of the EPA as they relate to appeals of amendments to existing renewable energy approvals.

93Although there was some debate among the parties as to the proper interpretation of s. 145.2.1(2) of the EPA, the Tribunal finds that in the context of amendments to a renewable energy approval, reading this section as a whole and within the context of Part XIII of the EPA and the regulations, the focus of the Tribunal’s inquiry is to be on the decision of the Director to issue the amendment. As set out in s. 145.2.1(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 serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.

94With regard to the scope of appeals from decisions to issue amendments to renewable energy approvals, the Tribunal finds that the Tribunal’s approach in Fairfield, and the principles enunciated in Hughes, Haldimand, and Kagawong in relation to amendments of approvals and permits under other provisions of the EPA, apply with respect to APPEC’s appeal of the REA Amendment. Given the nature of the REA Amendment, which added an option to use an alternate transformer for the Project to provide flexibility to reduce the voltage of the project’s interconnection line, the Tribunal finds that it is not appropriate to allow APPEC to appeal other terms and conditions in the altered REA that were not changed or affected by the REA Amendment, and were not considered by the Director in issuing the REA Amendment.

95Furthermore, in reading Fairfield in particular, the Tribunal finds that the panel hearing the motion in that appeal did not establish a principle that any time an approval is amended, an appeal lies to the Tribunal on any new matter not previously considered by the Tribunal. The focus of the Tribunal must necessarily be on the effects of the amendment specifically and the Director’s assessment of the application for that amendment. An amendment is not an opening to raise new matters that have arisen in relation to a project after an initial appeal was determined. To find otherwise would run contrary to the language of the EPA, which directs the Tribunal’s focus to the decision of the Director (s. 142.1(2), 145.2.1(2) and (4)). The proper avenues available to address the failure of a renewable energy approval to capture activities that have not yet been subject to permitting exist in other fora, such as requests for investigation and requests for review of approvals under the EBR, and applications for judicial review.

Scope of the Director’s Decision

96In assessing the scope of the Director’s decision here, the parties have raised the issue of evidentiary onus on the motions. By way of summary, the Approval Holder and Director take the position that the Director is not required to swear an affidavit in support of the motion in order for the Tribunal to assess and make a decision on the scope of the Director’s decision, whereas the Appellant takes the position that the only way that the Tribunal can make a decision on the motions is for the Director to have sworn an affidavit indicating what he considered in making his decision to issue the REA Amendment, and that his failure to do so is fatal to the motions.

97In addition to the various versions of the REA approved by the Director and altered by the Tribunal in Hirsch, the Director’s Motion Record contains the following documents:

a. The Amendment Application filed by the Approval Holder with the Director on October 12, 2017;

b. The Stantec Modification Document prepared in support of the Amendment Application dated September 20, 2017;

c. Correspondence from Stantec to the MOECC in support of the Amendment Application;

d. The REA Amendment dated November 22, 2017;

e. The Environmental Registry Notice dated November 22, 2017 attached to the Notice of Appeal.

98After considering this material, the Tribunal finds that it has been provided with sufficient documentation to make a determination of the scope of the REA Amendment in the absence of affidavit evidence. If the Appellant believed that the Director considered other matters, it was incumbent upon it to provide the Tribunal with additional documentation, evidence or submissions during the motion to support its position. Given that the documentation before the Tribunal is sufficient for it to make a determination of the scope of the REA Amendment in the circumstances of this appeal, the Tribunal is not prepared to draw an adverse inference from the lack of an affidavit sworn by the Director.

99Considering the documentation provided to the Tribunal in the Director’s Motion Record and the submissions of the parties, the Tribunal finds that the REA Amendment relates exclusively to providing the Approval Holder with the flexibility to reduce the voltage of the Project’s interconnection line from 69 kV to 44 kV, as well as reduce the voltage and MVA rating of the transformer at the southern transformer substation to 44 kV (from 69 kV) and 20 MVA (from 65 MVA) as set out above.

100In response to a question from the Tribunal, Mr. Gillespie on behalf of APPEC confirmed that the parties have complied with their disclosure obligations and exchanged relevant documents. If any of these disclosure documents had indicated that the Director had turned his mind to matters other than those contained in the Environmental Registry Notice, the Tribunal would have expected that these documents would have been filed by the Appellant in support of its position.

101The main documentary basis for the Appellant’s argument that the Director considered other matters beyond those contained in the Environmental Registry Notice is the following paragraph contained in the Stantec Modification Document:

To provide further information to the Ministry of Natural Resources and Forestry (MNRF), and to confirm if the original natural heritage assessment and environmental impact study completed for the project would need to be amended, a review was completed by the natural heritage professionals at Stantec who undertook the assessment. As a result of that review, Stantec has confirmed that there are no changes to the potential for impacts to natural heritage features or any need for additional studies. The areas in question have already been fully assessed and the reports reviewed and accepted as complete by the MNRF.

102The Stantec Modification Document contains a similar statement in relation to archaeological issues and also indicates that, if the alternative transformer is used, noise levels are expected to be less than specified and approved in the original REA. The Appellant relies on this document in support of its argument that the Director turned his mind to these matters.

103The Tribunal finds that the Stantec Modification Document does not provide a sufficient basis for the Tribunal to conclude that the Director turned his mind to the natural heritage and other conditions in the altered REA such that they may now be subject to an appeal. In this case, it is clear from the documents before the Director that the REA Amendment was for a limited purpose.

104In relation to the Appellant’s submission that the amendment to the definition of “Application” in the REA to include the Approval Holder’s Amendment Application should be sufficient to open up the entire altered REA to appeal, the Tribunal finds that such a finding could lead to the potential for appeals only marginally related to a Director’s decision. The Tribunal finds that this would run contrary to the intent of the EPA for finality of appeals and certainty in permitting.

105In the Tribunal’s view, the reasoning of the Appellant seems to be as follows: the REA was approved originally by the Director, the Appellant successfully appealed the original REA to the Tribunal, the Tribunal altered the REA; an application is filed by the Approval Holder to amend the altered REA; the Director amends the altered REA; the Appellant then has the ability to appeal the provisions of the altered REA as the Director must have considered those alterations in issuing the REA Amendment. This could lead to a potentially never-ending circle of appeals and amendments, which does not accord with the intent or the express terms of the legislation. The time to challenge a Tribunal ordered REA alteration is following the issuance of the Tribunal’s decision by way of appeal to the Divisional Court on a question of law or to the Minister on any other matter, as stipulated by s. 145.6 of the EPA.

Does the Appeal Raise Matters Within the Tribunal’s Jurisdiction?

106The Notice of Appeal challenges various portions of the altered REA. In the Notice of Appeal, the Appellant has not specifically appealed the amendments to the definitions of “Acoustic Assessment Report” and “Application”. The Appellant does appeal Schedule B, which was amended, in addition to various other portions of the altered REA that were not directly amended by the Director’s decision.

107The Notice of Appeal then goes on to outline allegations as to how the altered REA will cause harm. By way of summary, the Appellant states that:

• monitoring, avoidance and mitigation undertakings have not yet been completely updated and amended to reflect changes to the Project;

• Operational Mitigation Plans and the Additional Avoidance and Mitigation Plans are obsolete and require amendment to reflect the changes made to the Project;

• the Director is allowing modification of the Additional Avoidance and Mitigation Plans without amending the REA or allowing an appeal on the amendments to the REA;

• the Director and Approval Holder have misapplied the spatial extent of Blanding’s Turtle in the Project area which will cause serious and irreversible harm to the species;

• incompletely implemented avoidance, monitoring and mitigation measures will cause serious and irreversible harm to Blanding’s Turtle;

• the Operational Mitigation Plan to address the serious and irreversible harm to the Little Brown Bat is obsolete; and

• placement of the transformer substation and access road adjacent to a residence, their water supply and agricultural operations, will cause serious harm to human health.

108The Appellant next outlines some additional related issues and material facts in the Notice of Appeal. Included in this section is the additional issue of site clearing done at locations of turbines that were removed from the Project as a result of the Tribunal’s decision in Hirsch, and that lack of restoration is likely to result in serious and irreversible harm to the environment. Also raised is the issue of the Approval Holder constructing access points and storage sites not included in the Project documents.

109Finally, the relief requested by the Appellant is to have the Tribunal do the following: amend or alter the REA to define Blanding’s Turtle habitat as all of the areas in the southern area of the Project site; alter the location of the transformer substation away from residences and agricultural operations and to an area within the Project site; clarify the restoration of the Project sites cleared but no longer part of the Project; and issue a stay on construction until the REA has been completely updated and amended.

110In reviewing the provisions of the altered REA challenged by the Appellant in comparison with the decision of the Director, as outlined above, the only provision challenged by the Appellant that was directly addressed in the REA Amendment is Schedule B. Schedule B to the REA is entitled “Coordinates of the Equipment and Noise Specifications”. The Amendment does not change the location of any equipment in Schedule B but merely provides the Approval Holder with the option of using an alternate transformer with lower voltage and sound level ratings.

111An appeal of Schedule B of the REA was included by the Appellant in its Notice of Appeal dated July 31, 2015, which was the subject of the hearing in Hirsch. The location of the transformer has not been changed and any issues relating to that location could have been raised before the panel of the Tribunal in Hirsch but were not. Similarly, based on the concerns he is now expressing, Mr. Spinosa could have filed his own appeal within 15 days of the decision of the Director in 2015 but he failed to do so. Neither the Appellant nor Mr. Spinosa has explained how the proposed potential change in the transformer technology or line voltage in the REA Amendment will lead to any harm.

112As for the other provisions of the altered REA challenged by the Appellant and the harm alleged, the Notice of Appeal fails to meet the minimum statutory requirements to explain how the REA Amendment will lead to any of the harms alleged, to connect the relief requested to the REA Amendment or the potential harm, or to connect the contested provisions of the altered REA to the REA Amendment.

113With regard to the concrete batch plant and the change in status of Blanding’s Turtle by COSEWIC, these are not issues mentioned in the Notice of Appeal but, rather, first mentioned in the Appellant’s witness statements. Nevertheless, these are matters that cannot be raised on an appeal of the REA Amendment, as they are unrelated to the REA Amendment.

114Similarly, the need for additional amendments to the altered REA to address various alleged deficiencies, such as use of additional or different road use and storage sites, delineating the spatial extent and impacts to Blanding’s Turtle from the Project, and updating mitigation for Little Brown Bat, are matters that cannot be raised on this appeal as they are matters unrelated to the REA Amendment.

115The Appellant has failed to allege any harm in its Notice of Appeal arising specifically from the REA Amendment. This runs counter to the specific statutory requirement of s. 142.2(1) of the EPA that the Notice of Appeal provide such information. Despite having the opportunity to provide particulars during the hearing of the motions, the Appellant did not point to any harm arising from the REA Amendment.

116Counsel for the Appellant submitted that principles of natural justice and procedural fairness dictate that the Appellant should be afforded its “day in court”. However, the Appellant’s right to procedural fairness only arises in the context of a properly constituted appeal over which the Tribunal has jurisdiction. Procedural fairness cannot give rise to jurisdiction where it does not otherwise exist.

117In considering whether the Appellant’s appeal raises an issue within the Tribunal’s jurisdiction, the Tribunal has also considered the witness statements filed by the Appellant and the issues the participants propose to raise.

118The witness statements filed by the Appellant focus on matters unrelated to the REA Amendment. The witness statement of Ms. Gunson does not provide any analysis of the REA Amendment but, rather, focuses on the potential for harm to Blanding’s Turtle throughout the Project site. Similar to the Notice of Appeal, no mention is made of how the REA Amendment specifically will lead to harm to Blanding’s Turtle.

119The witness statement of Mr. Walsh also focuses on Blanding’s Turtle and impacts resulting from the Approval Holder allegedly failing to meet conditions in the altered REA, lack of plans for restoration of cleared areas no longer needed for the Project, potential impacts of a concrete batch plant, and expanded road use. Again, no mention is made in the witness statement of how the REA Amendment specifically will lead to any of the alleged harms.

120That brings the Tribunal to the participants. The Tribunal finds nothing amiss in an appellant seeking to rely on evidence to be tendered by others, whether presenters, participants or other parties at a hearing. However, participants and presenters, having elected not to file their own appeal of a Director’s decision, are bound by the scope of the appeal as set out in a notice of appeal filed by an appellant, and cannot expand the scope of issues to be raised at the hearing. Furthermore, and more importantly for the purpose of the motions currently before the Tribunal, presenters and participants cannot expand or broaden the jurisdiction of the Tribunal. Should any matters raised in a notice of appeal be struck for want of jurisdiction, the matters may not be addressed by a participant.

121The Tribunal has considered the presentation given by Mr. Spinosa and the Observatory in their requests for participant status, and also the requests for participant status received from the Coalition and Mr. Hirsch which were deferred for consideration.

122Mr. Spinosa seeks to raise issues associated with the location of the southern transformer substation. Mr. Spinosa’s opportunity to raise these issues was at the time of the last appeal. The REA Amendment does not change the location of the transformer substation, nor does it introduce additional sound impacts.

123The Observatory seeks to speak to the impacts of the Project generally on Blanding’s Turtle. In its presentation seeking status and the Status Request Form that it filed prior to the PHC, no mention is made of the REA Amendment specifically or how it will cause any harm.

124In its presentation seeking status and the Status Request Form that it filed prior to the PHC, the Coalition focuses on the impact of Project construction on surface water drainage. Again, the focus is on the Project generally and not specifically on how the REA Amendment will cause the harm alleged.

125Finally, Mr. Hirsch filed a Status Request form prior to the PHC but was unable to attend the PHC. His Status Request Form states that the focus of his evidence at a hearing would be on the inadequacy of the altered REA in implementing the Tribunal’s decision in Hirsch, the necessity of additional amendments to protect Blanding’s Turtle and Little Brown Bat and, additionally, the failure of the Approval Holder to remediate lands cleared for the turbines cancelled by the Tribunal in the Hirsch decision. There is no mention of the REA Amendment or any harm resulting from it.

126The Tribunal finds that neither the participants, nor those seeking status as participants, intend to focus on the REA Amendment specifically. Neither the witness statements filed by the Appellant, nor the materials or presentations provided to the Tribunal by the participants, relate to any matters addressed in the REA Amendment, or link any alleged harm to the REA Amendment. The Tribunal finds that even if the Appellant had sufficiently alleged harm arising from the REA Amendment in its Notice of Appeal, it is apparent that the witness statements are not properly scoped to focus on harm arising from the REA Amendment, and should be struck.

127To conclude, the Tribunal cannot find anything in the Appellant’s Notice of Appeal, the Appellant’s witness statements or the issues proposed to be raised by the participants that alleges any harm caused specifically by the REA Amendment, which amends the REA to provide the option of using an alternate transformer and to provide the flexibility to reduce the voltage of the project’s interconnection line. As a result, the Tribunal finds that the Notice of Appeal is deficient in failing to meet the requirements of s. 142.2 of the EPA and Rule 29, and it should be struck. Furthermore the Tribunal finds that the appeal should be dismissed for lack of jurisdiction pursuant to Rule 111(b).

DECISION

128The Tribunal orders that:

a) Gerard Spinosa and the Prince Edward Point Bird Observatory are granted participant status.

b) The Director’s and the Approval Holder’s motions are granted.

c) The Notice of Appeal and the Appellant’s witness statements are struck.

d) The appeal is dismissed.

Participant Status Granted

Motions Granted

Appeal Dismissed

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

Appendix 1 – Notice of Appeal of Alliance to Protect Prince Edward County

Appendix 2 – Relevant Legislation, Regulations and Rules

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