Mothers Against Wind Turbines Inc. v. Ontario (Environment, Conservation and Parks), 2023 CanLII 54047

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 12, 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: April 12, 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. Worden and A. Bogach

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS, S. TOUSAW, AND KURTIS SMITH ON APRIL 12, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1On April 12, 2023, the Tribunal held a Case Management Conference (“CMC”) and heard motions to dismiss an appeal brought by Mothers Against Wind Turbines Inc. (“Appellant”) with respect to the issuance of an amendment (“Amendment”) to Renewable Energy Approval No. 4353-9HMP2R (“2014 Approval”) for the Niagara Region Wind Farm (or “wind farm”). The Niagara Region Wind Farm is located in the Niagara Region and Haldimand County. The amendment is regarding the daytime and nighttime operation requirements for Turbine 08 at the wind farm.

BACKGROUND/TIMELINE

2On November 6, 2014, the Director (“Director”), Ministry of the Environment and Climate Change (now the Ministry of the Environment, Conservation and Parks (“MECP”)), issued the 2014 Approval. The 2014 Approval authorizes the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 77 turbines, two transformer substations, on-site access roads, underground electrical cabling, distribution lines and associated infrastructure with a total nameplate capacity of 230 megawatts. The approval holder is 1021702 B.C. Ltd. as general partner for and on behalf of FWRN L.P. (“Approval Holder”).

3On November 21, 2014, the Appellant filed an appeal under s. 142.1 of the Environmental Protection Act with respect to the 2014 Approval. A hearing was subsequently heard by this Tribunal’s predecessor, the Environmental Review Tribunal, the outcome of which was the dismissal of the appeal. The Tribunal found that the Appellant had not established that engaging in the project in accordance with the 2014 Approval would cause serious harm to human health or cause serious and irreversible harm to plant life, animal life or the natural environment as required under s. 142.1 for an appeal to be successful (see Mothers Against Wind Turbines Inc. v. Ontario (Environment and Climate Change), 2015 CanLII 28336 (ON ERT)).

4On December 8, 2022, the Director issued the Amendment. The purpose of the Amendment is to ensure that Turbine 08 of the wind farm (for which noise emission concerns have been identified by the MECP) consistently operates in compliance with the MECP’s allowable noise level limits.

5On December 21, 2022, the Appellant appealed the Amendment. The relief requested in the Appellant’s Notice of Appeal is the following:

45. The Appellant requests that the Environmental Review Tribunal revoke the decision of the Director to issue a Renewable Energy Approval to the Proponent to engage in the Project.

46. The Ministry of the Environment, Conservation and Parks immediately alter or revoke or suspend the ability of the Director to issue renewal energy approvals, in the benefit of public interest.

47. Noise Abatement measures are to be immediately implemented to ensure Sound Levels from all of the equipment comply with the Noise Performance Limits. This shall include at a minimum the following;

(a) Limiting the number of hours during a twenty-four hour period (24) time period during which the Equipment operates;

(b) De-rating the wind turbines to reduce the Sound Levels emitted from the Equipment;

(c) Curtailing the operation of the Equipment under the specific operating conditions, such as wind speed, wind direction and other pertinent operational parameters.

6On January 23, 2023, the Director and the Approval Holder each served and filed motions to dismiss the Appellant’s appeal.

7On February 6, 2023, the Tribunal held a CMC at which it provided directions on the provision of notice regarding the proceeding and directions on the scheduling of the motions to dismiss.

8This was followed by a further CMC on April 12, 2023 at which the Tribunal further addressed the provision of notice and the identification of Parties and Participants.

9At the April 12, 2023 hearing event, the Tribunal also heard and granted the motions to dismiss.

10This Decision sets out the reasons for the granting of the motions and dismissal of the appeal.

NOTICE

11At the first CMC, held on February 7, 2023, the Tribunal noted that notice of the CMC had not been served in accordance with the Tribunal’s directions. It ordered that the CMC be adjourned and that notice be sent in accordance with the Tribunal’s direction letter, dated January 10, 2023, which required that every assessed owner of land within 550 metres of the project location be served with notice of the CMC by personal service, registered mail or electronically at least 15 days before the CMC.

12At the CMC held on April 12, 2023, the Tribunal was informed by the Approval Holder that notice had been re-served. Based on the notice that has been provided, the Tribunal was satisfied that notice had been served and, on consent of the Parties, the Tribunal proceeded with the CMC and the hearing of the motions to dismiss.

IDENTIFICATION OF PARTIES AND PARTICIPANTS

13At the CMC on February 6, 2023, the Tribunal received a request for Participant status from Sandy Max. Ms. Max has concerns regarding noise emissions from Turbine 08. Due to technical difficulties during the call, she was unable to answer questions regarding her request for status and her request was put over to the April 12, 2023 CMC. In the interim, Ms. Max filed a written request for status. At the April 12, 2023 CMC, her request was not opposed by the Parties, provided that her written submissions on the merits of the appeal solely relate to the Amendment and address issues that are within the Tribunal’s jurisdiction to address. Based on her submissions and those of the Parties, the Tribunal granted Participant status to Ms. Max subject to the above-noted conditions.

14The Tribunal also received written requests for Participant status from K. Riexinger and Penny Zdichavsky. The requesters did not attend the CMC and, given concerns raised by the Director and the Approval Holder regarding the need for further information, the Tribunal agreed to not make a decision on these requests. Given the outcome of the Tribunal’s Decision on the motions herein, Participant status need not be considered further.

15There were no other requests for status at the CMC.

MOTIONS TO DISMISS

16The Director and the Approval Holder each served and filed motions to dismiss the appeal on January 23, 2023. They were heard at the second CMC on April 12, 2023. Issues

17The key issues raised by the Director and the Approval Holder in their motions to dismiss are:

• whether the grounds and the relief requested in the Appellant’s Notice of Appeal lie outside of the Tribunal’s authority to adjudicate and order; and

• whether the appeal has any reasonable prospect of success.

Evidence and Submissions

Evidence and Submissions of the Director

18The Director submits that the appeal should be dismissed as the grounds for the appeal and the relief requested lie outside of the Tribunal’s authority to adjudicate and the appeal has no reasonable prospect of success.

19The Director submits that the Appellant is restricted to the applicable appeal rights set out in the Environmental Protection Act. The Director submits that under s. 145.2.1 of the Act, an appeal of an amendment to a renewable energy approval must focus on the amendment itself. The Director submits that the Appellant’s Notice of Appeal focuses on grounds relating to whether the Niagara Region Wind Farm is operating in compliance with the 2014 Approval and not on any grounds relating to the Amendment. The Director argues that the Appellant, therefore, does not have the right to bring an appeal based on the grounds stated in the Notice of Appeal.

20The Director submits that the Tribunal’s authority is confined to the powers for ordering relief that are granted to it under the Act. The Director submits that the Appellant’s Notice of Appeal requests the Tribunal to revoke the 2014 Approval and to alter, revoke or suspend the Director’s ability to issue renewable energy approvals generally. It also requests an Order requiring the implementation of noise abatement measures throughout the wind farm. The Director submits that s. 145.2.1(4) and (5) of the Environmental Protection Act limits the Tribunal’s remedial powers to addressing the Director’s decision that is under appeal, which, again, in this case is the Amendment. The Director submits that the revocation or the ordering of changes to the 2014 Approval lies outside of the Tribunal’s authority. The Director argues that the Tribunal may only revoke or alter the Director’s decision to issue the Amendment and it cannot make orders relating to other aspects of the 2014 Approval. Similarly, the Director submits that the Tribunal does not have the authority to order the Director to stop issuing renewable energy approvals generally.

21The Director submits that the scope of the Tribunal’s remedial powers under s. 145.2.1(4) of the Environmental Protection Act is limited and can only be applied if there is a finding that the tests regarding harm to human health or the environment have been met under s.145.2.1(2)(a) and (b). The Director submits that the Appellant makes no allegations of serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment arising from the Amendment. The Director submits that the grounds in the Appellant’s Notice of Appeal only allege harms arising from the 2014 Approval.

22The Director further submits that the Appellant’s Notice of Appeal alleges violations of the Canadian Charter of Rights and Freedoms, but given that the focus of the appeal is outside of the Tribunal’s authority to adjudicate, these arguments are not relevant. The Director argues that the Appellant has failed to specify exactly what the Appellant’s alleged Charter issues are or how they relate to the Amendment. At the hearing of the motions, the Director indicated that since the time of the Director’s submission of written arguments, the Appellant served and filed a Notice of Constitutional Question. The Director withdraws its arguments in that regard, but submits that the Tribunal has no jurisdiction to address a constitutional challenge.

23Based on these submissions, the Director argues that the Appellant’s requested relief lies outside of the Tribunal’s authority to adjudicate and the appeal has no reasonable prospect of success.

Evidence and Submissions of the Approval Holder

24The Approval Holder also submits that the appeal should be dismissed. Like the Director, it argues that the Tribunal does not have the statutory authority to grant the relief requested and that the appeal has no reasonable prospect of success. It also argues that the appeal constitutes res judicata and that the principles of cause of action estoppel and issue estoppel apply.

25The Approval Holder submits that the Tribunal’s jurisdiction to hear the appeal is set out in 142.1(2) of the Environmental Protection Act. It submits that the Act provides Ontario residents with the right to require a hearing “in respect of a decision” made by the Director under subsection 47.5(2) or (3), which in the present case is the decision to issue the Amendment. It argues that the Appellant’s grounds for appeal relate to the Niagara Region Wind Farm generally and not to issues arising from the Amendment. As such, it argues that the Appellant’s grounds lie outside of the Tribunal’s authority to adjudicate.

26The Approval Holder submits that the Environmental Protection Act sets out a 15-day time limit for appeals under s. 142.1. It submits that allowing an appellant to re-open prior approvals after the 15-day time limit by appealing subsequent amendments would render this requirement meaningless. It submits that such an appeal would undermine the finality and certainty of decisions and create a disincentive for amending approvals.

27The Approval Holder submits that the Appellant’s grounds for relief in its Notice of Appeal regarding health impacts of the entire wind farm are beyond the Tribunal’s authority to adjudicate. It submits that the Appellant’s mere reference to noise health concerns in the Notice of Appeal is insufficient to engage the Tribunal’s jurisdiction. It submits that an appellant must link the proposed amendment to alleged health or environmental harm, which the Appellant has failed to do. It submits that, in fact, the Amendment constrains noise level emissions from Turbine 08 and, rather than weaken, it strengthens the protection of human health.

28The Approval Holder further submits that compliance issues are not the proper subject matter of an appeal under s. 145.2.1(2) of the Environmental Protection Act. It submits that s. 145.2.1(2) addresses engagement in a renewable energy project in accordance with the approval under appeal. It submits that in its application of s. 145.2.1(2), the Tribunal is required to assume that the project will be operating in compliance with the approval being appealed. Potential harm caused by exceedances of the requirements in an approval are not relevant. The Approval Holder argues that, in the present case, the Tribunal must assume that the project will operate in accordance with the Amendment.

29The Approval Holder submits that the Appellant seeks to re-litigate the Tribunal’s decision regarding the 2014 Approval and, as such, the appeal is res judicata. It submits that the grounds raised by the Appellant have already been adjudicated by the Tribunal in the appeal proceedings regarding the 2014 Approval. It submits that the appeal is barred by both cause of action estoppel and issue estoppel.

Evidence and Submissions of the Appellant

30In response to the motions to dismiss, the Appellant filed written submissions on January 31, 2023. It submits that it is not attempting to re-litigate the appeal of the 2014 Approval. It submits that Turbine 08 does not exist in isolation and, as the Niagara Region Wind Farm affects human health and the environment, Turbine 08, as part of the farm, must be considered in that light. It submits that, even if the appeal is restricted to solely addressing Turbine 08, the issues that it raises apply. The Appellant submits that the Tribunal should determine whether a wind farm can remain in production while exceeding specified noise limits and a noise abatement plan should be required to ensure that the project is operated in compliance with the MECP’s requirements. While the issues may be similar to those raised in the original hearing, the Appellant argues that the circumstances are new and different today given that the wind farm is operational.

31The Appellant submits that it is challenging the constitutionality of the Environmental Protection Act and that as a means of challenging the constitutionality of this legislation, the appeal should not be dismissed. It submits that residents living close to Turbine 08 should not be given greater noise protection than others residing elsewhere in the wind farm area. The Appellant argues that it is constitutionally inappropriate to not regulate all turbines within a wind farm at the higher standard being imposed on one turbine.

Analysis and Findings

32The Tribunal’s authority for dismissing an appeal is found in s. 19(1) of the Ontario Land Tribunal Act, 2021. It states that the Tribunal may dismiss a proceeding without a hearing, if among other things, the Tribunal is of the opinion that (1) any of the circumstances listed in subsection 4.6(1) of the Statutory Powers Procedure Act apply or (2) the proceeding has no reasonable prospect of success.

33Section 4.6 of the Statutory Powers Procedure Act states (emphasis added):

4.6(1) Subject to ss. (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

34In the present case, the Director and the Approval Holder argue that the Appellant’s appeal relates to matters that are outside the jurisdiction of the Tribunal in contravention of s. 4.6(1)(b) of the Statutory Powers Procedure Act. They also argue that, as a result of this, the proceeding has no reasonable prospect of success in contravention of s. 19(1)(c) of the Ontario Land Tribunal Act.

35In addition to these statutory provisions, the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”) provide guidance regarding the Tribunal’s power to dismiss an appeal. In this regard, Rule 15.4 states that the Tribunal may dismiss an appeal addressing matters that are outside of the Tribunal’s jurisdiction to adjudicate. It states (emphasis added):

15.4 The Tribunal may, on its own initiative and without a hearing event, dismiss a matter by adjudicative order where:

(a) the initiating matter is frivolous, vexatious or is commenced in bad faith;

(b) the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

36To determine whether an appeal satisfies the applicable requirements, one must look to the statutory basis for the appeal and its subject matter. Under s. 47.5(3) of the Environmental Protection Act, the Director has the authority to alter or amend the terms of a renewable energy approval. Section 47.5(3) states (emphasis added):

47.5(3) On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so,

(a) alter the terms and conditions of a renewable energy approval after it is issued;

(b) impose new terms and conditions on a renewable energy approval; or

(c) suspend or revoke a renewable energy approval.

37Section 142.1(2) of the Environmental Protection Act limits the scope of appeals of renewable energy approvals, or amendments to them, to solely the decision in question that was made by the Director. Section 142.1(1) and (2) states (emphasis added):

142.1(1) This section applies to a person resident in Ontario who is not entitled under section 139 to require a hearing by the Tribunal in respect of a decision made by the Director under section 47.5.

(2) A person mentioned in subsection (1) may, by written notice served upon the Director and the Tribunal within 15 days after a day prescribed by the regulations, require a hearing by the Tribunal in respect of a decision made by the Director under clause 47.5 (1) (a) or subsection 47.5 (2) or (3).

38In the present case, the decision in question is the Director’s decision to issue the Amendment. The appeal must therefore focus on the Amendment and not on other aspects of the 2014 Approval. Upon examination of the Amendment, it is clear that its substance is focused on mitigating noise levels at Turbine 08. The Amendment replaces Schedules A and B of the 2014 Approval setting out the entire description and specifications of the Niagara Region Wind Farm; however, the actual substantive changes from the 2014 Approval are focused only on the noise specifications for Turbine 08 as set out in the Amendment’s Schedule B. Schedule B consists of a table providing the specifications for each turbine in the wind farm. Only the maximum sound power level specifications and source description for Turbine 08 (T08) have been amended. The changes are elaborated on in a note at the bottom of the table. It states:

Note on T08: Wind turbine generator T08 shall be operated as follows:

• during the daytime hours of 07:00 to 19:00, at a maximum Sound Power Level of 104.8 dBA at 3.0 MW;

• during the nighttime hours of 19:00 to 07:00:

o at a maximum Sound Power Level of 104.8 dBA at 3 MW for the wind direction range of 0⁰ to 157⁰ or 247⁰ to 360⁰ at hub height of T08; and

o at a maximum Sound Power Level of 101.6 dBA at 1/1.5 MW for the wind direction range of 158⁰ to 246⁰ at hub height of T08.

39Apart from an alteration in the definition of “application” in the 2014 Approval to update the listing of previous amendments to the Approval, the Amendment is targeted and limited to the above-noted maximum sound power level specifications and source description for Turbine 08. It is focused on that one turbine only.

40The Appellant’s Notice of Appeal states that the Appellant is appealing both the 2014 Approval and the Amendment. It focuses on the following parts of the 2014 Approval and Amendment:

4. The portions of the Renewable Energy Approval and its amendments that the Appellant is appealing are the following sections:

a. General – A1, A2,

b. C – Noise Performance Limits – C1(2), (3), C3

c. E – Acoustic Audit – Immission

d. F – Acoustic Audit – Emission

e. SCHEDULE A – Facility Description

f. SCHEDULE B – Coordinates of the Equipment and Noise Specifications

41Apart from the general reference to Schedule B, none of the grounds in the Appellant’s Notice of Appeal relate to the proposed changes in the operating conditions of Turbine 08. The Notice of Appeal refers to alleged health impacts from the project as approved through the 2014 Approval, but it does not specify harms to human health or plant life, animal life or the natural environment arising from the changes made through the Amendment.

42The areas of requested relief, as set out above in paragraph [5], focus on the 2014 Approval or on the Director’s ability to issue renewable energy approvals. None of these are within the Tribunal’s authority to order. The only instrument that the Tribunal has the authority to adjudicate over is the Amendment, but none of the Appellant’s enumerated areas of requested relief are in relation to the Amendment. The Tribunal again notes that the Amendment focuses on ensuring that the sound levels from Turbine 08 comply with the MECP’s noise performance limits. The Appellant does not include any grounds or reasons focusing on these proposed measures or on whether they will result in serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.

43The Notice of Appeal identifies the following issues for adjudication:

34. Is the Niagara Wind project in Compliance?

35. Can a declaration of compliance with the conditions of a Renewable Energy Project be relied upon?

36. Is regulatory Compliance protective of serious harm to health?

44These issues all relate to compliance. Compliance issues are not the proper subject matter of an appeal under s. 145.1(2) of the Environmental Protection Act. Section 145.2.1(2) addresses engagement in a renewable energy project in accordance with the approval. Section 145.2.1(2) states (emphasis added):

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,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

45In other words, when assessing whether there will be harm to human health and the environment from a proposed approval, the Tribunal must assume that the project will be operated in compliance with the approval. Based on this, a declaration regarding compliance is outside of the Tribunal’s authority to make.

46The Tribunal agrees with the Appellant’s submission that Turbine 08 must not be treated in isolation; however, this does not mean that the appeal can be expanded to address all aspects of the wind farm or its operations. If an amendment or its implementation could have impacts on other turbines or other aspects of a project, which will result in serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment, then these are matters that could be possibly raised in an appeal; however, matters unrelated to the decision in question are not valid grounds. An appeal cannot focus on matters that were not the subject matter of the decision. This includes matters which have been previously adjudicated or freshly raised matters relating to the original approval that were not raised previously (see Alliance to Protect Prince Edward County v. Ontario (Environment and Climate Change), 2018 CanLII 25526 (ON ERT), at paragraphs 94-95).

47The Tribunal finds that the grounds and requests for relief set out in the Appellant’s Notice of Appeal lie outside the authority of the Tribunal to adjudicate or order and, as a result, the Appellant’s issues and requested relief under the Canadian Charter of Rights and Freedoms are beyond the authority of the Tribunal to address.

Conclusions

48The Tribunal finds that the grounds and requests for relief set out in the Appellant’s Notice of Appeal lie outside of the authority of the Tribunal to adjudicate or order. Based on this finding, the Tribunal further finds that the appeal has no reasonable prospect of success.

ORDER

49The Tribunal grants the motions to dismiss brought by the Director and the Approval Holder and Orders that the Appellant’s appeal is dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE CHAIR

“S. Tousaw”

S. TOUSAW

VICE CHAIR

“Kurtis Smith”

KURTIS SMITH

MEMBER

Ontario Land Tribunal

Website: www.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.