Prince Edward County Field Naturalists v. Ostrander Point GP Inc. et al.

[Indexed as: Prince Edward County Field Naturalists v.Ostrander Point GP Inc.]

Ontario Reports

Court of Appeal for Ontario,

Blair J.A. (in Chambers)

March 25, 2014

119 O.R. (3d) 704 | 2014 ONCA 227

Case Summary

Environmental law — Appeals — Stay pending appeal — Environmental Review Tribunal staying operation of renewable energy approval ("REA") for wind energy project insofar as it related to vulnerable and endangered species — Divisional Court reinstating REA — Appellant moving for leave to appeal and moving to stay order of Divisional Court pending disposition of its leave motion — Stay granted — Proposed appeal raising serious issues which were of first impression and of broad public implication in field of environmental law — Appellant establishing that it would suffer irreparable harm if stay not granted — Balance of convenience favouring stay.

The Minister of the Environment issued a renewable energy approval ("REA") for the respondent's wind energy project on land on which Blanding's turtle, a vulnerable and endangered species, nested between May and October. The Environmental Review Tribunal ("ERT") allowed the appellant's appeal and stayed the [page705] operation of the REA insofar as it related to Blanding's turtle. The Divisional Court reinstated the REA. The appellant moved for leave to appeal and to stay the order of the Divisional Court pending the disposition of its leave motion.

Held, the motion for a stay should be granted.

The proposed appeal raised serious issues for consideration. The issues were of first impression and of broad public implication in the field of environmental law. The appellant had established that it would suffer irreparable harm if the stay was not granted. Once a habitat is destroyed, it is destroyed. The balance of convenience favoured granting a stay.

Cases referred to

Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, [2014] O.J. No. 772, 2014 ONSC 974 (Div. Ct.); RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40; Sault Dock Co. Ltd. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069, 34 D.L.R. (3d) 327 (C.A.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.03(2), 63.02(1)

MOTION to stay an order of the Divisional Court pending a disposition of the appellant's motion for leave to appeal that decision.

Eric Gillespie and Natalie Smith, for Prince Edward County Field Naturalists.

Darryl Cruz and Sam Rogers, for Ostrander Point GP Inc.

No one appearing for Director, Ministry of the Environment.

Chris Paliare, amicus curiae.

Endorsement of BLAIR J.A. (in Chambers): —

Background

[1] Blanding's turtle is a vulnerable and endangered species. It inhabits a wetlands area along the shores of Lake Ontario in Prince Edward County. A large wind energy project that the respondents seek to develop overlaps this area. The underlying dynamic of these proceedings is the tension between two conflicting goals: developing a clean energy project, and protecting a vulnerable and endangered species from the harmful ecological and environment consequences of that development.

[2] The moving party, Prince Edward County Field Naturalists ("PECFN"), seeks to stay an order of the Divisional Court dated February 20, 2014 [[2014] O.J. No. 772, 2014 ONSC 974 (Div. Ct.)] pending the disposition of its motions for leave to appeal from that decision.

[3] In its decision, the Divisional Court overturned an order of the Environmental Review Tribunal ("ERT"), [2013] O.E.R.T.D. No. 40, 76 C.E.L.R. (3d) 171 [page706] that had, in turn, allowed an appeal by PECFN from a renewable energy approval ("REA") issued by the Minister of the Environment to Ostrander in relation to the wind energy project [ [2013] O.E.R.T.D. No. 19]. The order of the ERT stayed the operation of the REA -- subject to certain terms -- insofar as it related to Blanding's turtle. I am told this is the first time the ERT has ever allowed an appeal from an REA issued by the minister.

[4] The order of the Divisional Court reinstated the REA.

[5] On March 10, 2014, counsel for Ostrander advised counsel for PECFN that Ostrander intended to proceed with construction work on the project and that the work would include (i) staking out the limits of the construction; (ii) vegetation removal; (iii) dealing with a UXO (unexploded ordinance) clearance requirement; and (iv) possibly road construction, time permitting. When requested by the appellant to give further details about what Ostrander intended to do at this time, Ostrander stated "it was not in a position to provide this information".

[6] On March 12, PECFN delivered its notices of motion for leave to appeal. This motion for a stay followed. Under the terms of the reinstated REA, Ostrander is prohibited from engaging in construction on the wind power site between May and October 15 -- the time of year when Blanding's turtle wanders from the ponds and lives and nests on the terrain. Bound by that condition, Ostrander, therefore, has a very short window prior to mid-autumn when it can perform any work. PECFN's concern, however, is that, if the work is to be done prior to the disposition of its motion for leave to appeal, the turtles' environment will be irreparably harmed and any appeal from the order of the Divisional Court will be rendered moot.

[7] I have no hesitation in granting the stay, for the following reasons.

Discussion and Analysis

Some procedural matters

[8] Ostrander argued that PECFN is not truly requesting a stay of the order of the Divisional Court under rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 but is, in reality, seeking an interlocutory injunction prohibiting the operation of the REA. While the criteria for obtaining a stay and for obtaining an interlocutory injunction have common elements, a party seeking an interlocutory injunction is additionally required to provide an undertaking as to damages. PECFN has not done so. [page707]

[9] I do not accept Ostrander's submission. PECFN seeks leave to appeal from the order of the Divisional Court. Although the relief claimed in PECFN's notices of motion for the stay asks to stay the operation of the REA, that relief is the substance and effect of staying the order of the Divisional Court, which reinstated the REA provisions regarding Blanding's turtle. In my view, this is not a request for an interlocutory injunction.

[10] Secondly, a letter was filed from the respondent, Director, Ministry of the Environment, indicating that the director was taking no position on the motion to stay. As a result, it was unnecessary for counsel to appear on behalf of the director.

[11] Finally, Mr. Paliare appeared and sought to make submissions on behalf of a proposed intervenor, the Prince Edward County South Shore Conservancy. The conservancy is a not-for-profit entity formed in 2001 by persons interested in protecting the biodiversity of the south shore of the county (where the proposed wind power site is to be built). The conservancy was granted intervenor status as a party before the ERT, but neither the associate chief justice nor a justice delegated by her has, as yet, considered the conservancy's application for intervenor status on the appeal, as may be required by rule 13.03(2). In the circumstances, however, I permitted Mr. Paliare to make submissions as amicus curiae.

The stay

[12] The criteria for obtaining a stay of an order pending appeal or an application for leave to appeal are well known and not contested. The moving party must show (a) that it has raised, or will raise if leave is granted, a serious issue for consideration on appeal; (b) that it will suffer irreparable harm if a stay is not granted; and (c) that the balance of convenience favours such an order: RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17. For leave to appeal to be granted, the proposed appeal must raise an issue of some public importance: Sault Dock Co. Ltd. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069 (C.A.).

A serious issue for appeal

[13] The threshold for establishing a serious issue for consideration is not high, and I am satisfied the threshold is met here. Ostrander argues that the Divisional Court identified six errors of law committed by the ERT in arriving at its decision. On the other hand, PECFN submits that the Divisional Court's jurisdiction is limited to questions of law; that what the Divisional Court characterized as errors of law are, at best, errors of fact or [page708] of mixed fact and law; and that the Divisional Court inappropriately substituted its own view of the record for that of the ERT. The Divisional Court, therefore, failed to afford the required deference to the ERT, a tribunal of particular specialized expertise in the field in question.

[14] In my view, there is an argument to be made in this respect, sufficiently serious to meet the first branch of the test.

[15] In addition -- something of relevance as well in the context of the balance of convenience -- the issues raised on the proposed appeal are issues of broad public implication in the field of environmental law. These issues include (i) the proper interpretation and application of the term "serious and irreversible harm" to plant life, animal life or the natural environment -- the test to be met by a person seeking to have the minister's decision to issue an REA reviewed -- and the evidentiary standard required to meet it; and (ii) the nature of the remedy to be provided by the ERT and by the Divisional Court on review -- here, the Divisional Court substituted its own remedy rather than send the matter back to the ERT for reconsideration. These are issues of first impression because the review in the Divisional Court and, if leave is granted, the appeal to this court, constitute the first time that either the Divisional Court or this court will have dealt with an appeal from an REA.

Irreparable harm

[16] The parties spent much time debating whether irreparable harm will result if a stay is not granted.

[17] Clearly, the moving party must meet this criterion, but in my view this type of case is not one in which the evidence is to be parsed and fine distinctions drawn. Once a habitat is destroyed, it is destroyed -- for at least short-term purposes, in any event -- and the species sought to be protected here is a vulnerable and endangered species.

[18] The ERT made a finding that "engaging in the Project in accordance with the REA will cause serious and irreversible harm to Blanding's turtle". The ERT concluded that this problem could be tempered by the provisions in the REA prohibiting construction and maintenance activities between May 1 and October 15. However, since the project is on Crown land and open to public access, these measures would not prevent harm from the use of the roads in the post-construction period by members of the public, including poachers. Nor would these measures prevent increased nest predation by other species (because of the increased use of the roads) or loss of habitat. [page709]

[19] As I understand the submissions, Ostrander makes the following arguments concerning irreparable harm.

[20] First, it says that, since the decision of the ERT, Ostrander has taken steps to lease lands within the project from the ministry, thereby allowing it to control the property and prohibit public access. This evidence was tendered as "fresh evidence" to the Divisional Court, but the court rejected it. The court rejected it because Ostrander failed to meet the reasonable diligence aspect of the fresh evidence test, and because the fresh evidence was designed to undermine a factual finding made by the ERT. However, the court could not entertain fresh evidence designed to change the underlying factual matrix when its only jurisdiction relates to questions of law.

[21] The "fresh evidence" is not re-tendered on this motion and is not before me. Counsel, however, relied upon it. I am not satisfied by the general nature of these submissions that such arrangements will effectively prevent public use of the roads, but, in any event, they would not address the other concerns in the record relating to the impact of the roads on nest predation or habitat.

[22] Secondly, Ostrander argues that there is otherwise insufficient evidence to establish that there will be "irreparable" harm to Blanding's turtle if the stay is not granted. Ostrander argues this because the ERT's decision was based principally -- as the Divisional Court said -- on the view that the use of the access roads, and not their construction, would result in increased Blanding's turtle mortality. The argument concludes that PECFN has not, therefore, adduced any evidence of irreparable harm that would result from site preparation and possible road construction in the period preceding any decision on the motion for leave to appeal. For the reasons set out above, I reject this submission as well.

[23] Finally, Ostrander says that it is unlikely to be able to engage in road construction, much less complete the construction as PECFN fears, or do much of anything, between now and May 1, 2014, when the construction moratorium becomes effective. Whether this is so or not, no one knows. Since Ostrander has refused to disclose anything about the proposed scope of the contemplated work, or its start dates, I do not see how it can rely on this argument. In any event, the argument cuts both ways on the balance of convenience issue, to which I now turn.

[24] PECFN meets the irreparable harm test, in my view.

Balance of convenience

[25] The balance of convenience considerations reflect, for the most part, those considerations addressed in the irreparable [page710] harm section. Once harm is done in this context, it is done for practical purposes. Given my conclusions on irreparable harm, it follows that the balance of convenience favours granting a stay in these circumstances.

[26] If -- as Ostrander contends -- little can be accomplished in the way of preparatory work between now and May 1, then little is lost by a stay precluding Ostrander from doing any work pending the determination of PECFN's motion for leave to appeal. Here, the balance of convenience clearly favours granting a stay, given the irreparable harm considerations referred to above. On the other hand, if -- as PECFN fears -- Ostrander is able to accomplish a great deal and perhaps ready the roads for access or damage the habitat with other construction and preparatory measures, the balance of convenience also favours granting a stay.

[27] In addition, as outlined above, the issues raised on the proposed appeal are issues of broad public implication in the field of environmental law.

[28] I am satisfied that the final branch of the RJR-MacDonald test has been met.

Disposition

[29] For the foregoing reasons, an order is granted staying the decision of the Divisional Court dated February 20, 2014, in both Court of Appeal files M43597 and M43598, pending the determination of PECFN's motions for leave to appeal.

[30] The parties did not raise the issue of costs. If they cannot agree, they may forward brief written submissions within two weeks of the release of this decision.

Motion granted.

End of Document