Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 28, 2023
CASE NO(S).: OLT-22-004838
PROCEEDING COMMENCED UNDER subsection 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Mothers Against Wind Turbines Inc.
Approval Holder: 1021702 B.C. Ltd., as general partner for and on behalf of FWRN L.P.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Amendment to Renewable Energy Approval for Niagara Region Wind Farm
Reference No.: 4353-9HMP2R
Property Address/Description: Various sites
Municipality: West Lincoln Township
Upper Tier: Regional Municipality of Niagara
OLT Case No.: OLT-22-004838
OLT Lead Case No.: OLT-22-004838
OLT Case Name: Mothers Against Wind Turbines Inc. v. Ontario (Environment, Conservation and Parks)
Heard: February 7, 2023 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Mothers Against Wind Turbines Inc. | L. Rogers* |
| Director, Ministry of the Environment, Conservation and Parks | N. Harris, A. Mingo, and C. Karam (articling student) |
| 1021702 B.C. Ltd., as general partner for and on behalf of FWRN L.P. | G. Warden, A. Bogach and J. Terry |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON FEBRUARY 7, 2023 AND ORDER OF THE TRIBUNAL
1The Tribunal held a Case Management Conference (“CMC”) on February 7, 2023 regarding the appeal brought by Mothers Against Wind Turbines Inc. (“Appellant”) with respect to the issuance of an amendment to the Renewable Energy Approval No. 4353-9HMP2R for the Niagara Region Wind Farm. The Niagara Region Wind Farm is an existing wind farm located in the Niagara Region and Haldimand County. The amendment is regarding the daytime and nighttime operation requirements for Wind Turbine 8 at the wind farm, which is located in the Township of West Lincoln.
2At the CMC, the Tribunal addressed the provision of Notice of the CMC, the identification of Parties and Participants, and the scheduling of a further CMC and motions to dismiss.
Notice of the CMC
31021702 B.C. Ltd. as general partner for and on behalf of FWRN L.P. is the Approval Holder. On January 10, 2023, the Tribunal directed the Approval Holder to issue a Notice of CMC and Hearing pursuant to Rule 6 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”). The directions were to serve the Notice at least 15 days before the date of the CMC to all those listed under section 15(6)5 of Ontario Regulation 359/09 with respect to the application for a renewable energy approval. The Niagara Region Wind Farm is a Class 4 Wind Facility which requires that notice be given to every assessed owner of land within 550 metres (“m”) of the project location. Rule 7.11 of the Tribunal’s Rules states that where a document is required to be served or filed, it shall be served by personal service, registered mail or electronically.
4The Approval Holder filed the Affidavit of Service of Jason Weir, dated January 23, 2023, regarding service of the Notice of the CMC. It states that Notice was served by registered mail to all persons listed in section 15(6)5 of Ontario Regulation 359/09, except for some of the assessed owners of land within 550 m of the project location. To address this issue, it states that Mr. Weir made arrangements so that from January 27 to January 31, 2023 (less than 15 days before the CMC), notice would be sent through Canada Post's direct mailing service, Snap Admail (rather than by registered mail, personal service, or email), to all residents within a 550 m of the Niagara Region Wind Farm.
5At the CMC, the Tribunal noted that notice of the CMC had not been served to all property owners within 550 m of the project location by personal service, registered mail or electronically at least 15 days before the CMC as directed. The Tribunal directed that the CMC be adjourned and that notice be sent in accordance with the Tribunal’s direction and that every assessed owner of land within 550 m of the project location be served by personal service, registered mail or electronically at least 15 days before the CMC.
Identification of Parties and Participants
6At the CMC, the Tribunal entertained requests for Party and Participant status. Sandy Max indicated that she would like to request Participant status. Unfortunately, due to technical issues associated with the video hearing, she was unable to effectively communicate during the CMC. The Tribunal requested that she complete a Participant Request Form and file it with the Tribunal. She will have an opportunity at the next CMC to finalize her request for Participant status.
7There were no other requests for status at the CMC.
Motions to Dismiss
8Prior to the CMC, both the Approval Holder and the Director, Ministry of the Environment, Conservation and Parks (“Director”), served and filed motions to dismiss the appeal. These were served and filed in accordance with the requirements in the Tribunal’s Rules. Given the issues regarding notice of the CMC, the Tribunal directed that the motions will be heard and disposed of at the next CMC. The Tribunal noted that the notice of the next CMC will indicate that the motions to dismiss will be heard at the next CMC and will provide an opportunity for persons planning to request Party status to have an opportunity to serve and file responses to the motions.
Scheduling of a Further CMC
9The Tribunal directed that a further CMC shall be held by video hearing on Wednesday, April 12, 2023, commencing at 10 a.m. at which the Approval Holder’s and the Director’s motions to dismiss will be heard and procedural steps in preparation for a hearing will be addressed.
https://meet.goto.com/278736685 Access code: 278-736-685
10Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-455-1389 or +1(647) 497-9391. The access code is as indicated above.
12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
13The Tribunal directed that the previously circulated schedule of procedural due dates and the hearing of the appeal by the Tribunal is suspended. New dates will be set at the next CMC.
ORDER
14The Tribunal directs the Approval Holder to provide notice of the next Case Management Conference (“CMC”) to every assessed owner of land within 550 metres of the project location by personal service, registered mail or electronically at least 15 days before the next CMC.
15This Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.