COURT OF APPEAL FOR ONTARIO

CITATION: Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269

DATE: 20150420

DOCKET: C59008

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Prince Edward County Field Naturalists

Appellant (Respondent on Cross-Appeal)

and

Ostrander Point GP Inc., as general partner for and on behalf of Ostrander Point Wind Energy LP and Director, Ministry of the Environment

Respondents (Appellant on Cross-Appeal)

Eric K. Gillespie and Erin Wallace, for the appellant Prince Edward County Field Naturalists

Sylvia Davis and Sarah Kromkamp, for the respondent the Ministry of the Environment

Neil Finkelstein, Douglas Hamilton and Brandon Kain, for the respondent Ostrander Point GP Inc.

John B. Laskin and Alex Smith, for the intervener Canadian Wind Energy Association

Stephen Hazell, for the intervener Nature Canada

Chris G. Paliare and Andrew K. Lokan, for the intervener Prince Edward County South Shore Conservancy

Heard: December 8, 2014

On appeal from the judgment of the Divisional Court (Justices Ian V. B. Nordheimer, Maria T. Linhares de Sousa and Kevin W. Whitaker), dated February 20, 2014, with reasons reported at 2014 ONSC 974, setting aside in part a decision of the Environmental Review Tribunal, dated July 3, 2013.

Juriansz J.A.:

A. introduction

[1] On December 20, 2012, the Director for the Ministry of the Environment (the “Director”), granted the respondent, Ostrander Point GP Inc. (“Ostrander”), a Renewable Energy Approval (“REA”). REAs are granted under the Green Energy Act, 2009, S.O. 2009, c. 12, Sched. A and amendments made under the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”). The REA granted to Ostrander permits it to construct and operate a wind farm consisting of nine wind turbines on a parcel of Crown land in Prince Edward County.

[2] The appellant, Prince Edward County Field Naturalists (“Field Naturalists”), opposes the Ostrander project. It filed an appeal of the Director’s decision to grant the REA, pursuant to s. 142.1(3) (b) of the EPA, claiming that the Ostrander project would cause serious and irreversible harm to a variety of animal and plant species and the natural environment, namely birds, bats, butterflies, turtles and alvar plants and the alvar ecosystem.

[3] Another group, the Alliance to Protect Prince Edward County (“the Alliance”), also filed an appeal. It sought to establish that the project would cause serious harm to human health.

[4] The Environmental Review Tribunal found that the project would not cause serious harm to human health and dismissed the Alliance’s appeal. It also rejected the submissions that the project would cause serious and irreversible harm to birds, bats, butterflies, and alvar plants and the alvar ecosystem. It did, however, conclude that the project would cause serious and irreversible harm to one animal species, the Blanding’s turtle. The Tribunal allowed the Field Naturalists’ appeal with respect to the Blanding’s turtle and revoked the REA.

[5] The Field Naturalists appealed to the Divisional Court from the Tribunal’s dismissal of their appeal regarding serious and irreversible harm to birds and alvar. Ostrander and the Director appealed from the Tribunal’s finding of serious and irreversible harm to the Blanding’s turtle and its decision to revoke the REA. The Divisional Court dismissed the Field Naturalists’ appeal and allowed the appeal of Ostrander and the Director. It set aside the Tribunal’s finding of serious and irreversible harm to the Blanding’s turtle and the revocation of the REA.

[6] The Field Naturalists were subsequently granted leave to appeal to this court. Ostrander cross-appeals, claiming the Divisional Court erred in dismissing its fresh evidence application.

[7] The main question before this court is whether the Divisional Court identified the appropriate standard of review and applied it correctly. For the reasons that follow, I would allow the appeal in part. I would restore the Tribunal’s conclusion that the project will cause serious and irreversible harm to the Blanding’s turtle. I would, however, dismiss the appeal from the Divisional Court’s finding the Tribunal erred in how it dealt with remedy. I would remit the issue of what remedy is appropriate back to the Tribunal to decide after giving the parties the opportunity to be heard.

B. Factual Background

(1) The Ostrander Project

[8] In Ontario, a wind energy farm developer cannot construct a wind energy project without first obtaining an REA from the Director.

[9] The REA issued to Ostrander, allows it to construct its wind farm project on a 324-hectare parcel of land known as the Ostrander Point Crown Land Block (the “Project Site”). Each turbine would require excavation and construction of an octagonal concrete platform 18 m in diameter. The platform for each turbine would be approximately 3 m in depth and would be anchored into the bedrock.

[10] In addition, the project would require the building of 5.4 km of gravel roads on the Project Site to provide access to each of the nine turbines on the site during their construction and subsequently for their maintenance. The roads would also be open to the public for recreational purposes. The roads would be approximately 6 m wide with larger turnarounds. A gravel parking lot would also be built next to the transformer station, and crane pads measuring 20 x 40 m would be located next to the turbines to be used during construction and throughout the life of the project.

[11] The Project Site is located on the south shore of Prince Edward County, one of the least developed areas of the County. It is a provincially significant wetland, known for its alvar vegetation. It provides habitat to Blanding’s turtle and the Whip-poor-will and serves as a migratory corridor for birds, bats and the Monarch butterfly.

(2) The Blanding’s Turtle

[12] Blanding’s turtle is a semi-aquatic, freshwater turtle that lives in northeastern and midwestern North America. It is “spottily distributed” in southern and central Ontario. It is currently designated as a threatened species under the Ontario Endangered Species Act, 2007, S.O. 2007, c. 6 (“ESA”) and the federal Species at Risk Act, S.C. 2002, c. 29. The International Union of Conservation of Nature (part of the United Nations Environment Program) has designated the turtle as globally endangered. The exact size of the population of Blanding’s turtle at the Project Site, in Prince Edward County and throughout Ontario is not known.

[13] Blanding’s turtles have a low annual reproductive output. Female turtles do not reach sexual maturity until they are 18 or 20 years of age and not all females reproduce every year. A female turtle will lay 10 – 14 eggs once in a breeding season. Nest success is low due to predators, and hatchlings have a very low chance of reaching maturity. There is high risk of predation when they migrate from the nest to the wetland, and once in the wetland, it takes five to seven years to grow beyond the “gape” size.

[14] Throughout its annual cycle, Blanding’s turtle uses a variety of wetland types, including emergent marshes, bogs, temporary pools and forested swamps. In most cases, a single wetland will not be able to accommodate all the turtle’s needs. Thus, most Blanding’s turtles travel overland and use several wetlands a year.

[15] In the early summer, female turtles will travel upwards of 6 km to locate suitable nesting sites. Importantly, female turtles find the gravel shoulders and embankments of roadways to be particularly desirable nesting habitat. This increases the risk of mortality to adult females and hatchlings because they are easily killed by motor vehicles. Road mortality poses the most serious threat to Blanding’s turtle survival.

[16] The Blanding’s turtle is also susceptible to predators, such as raccoons, foxes, skunks and coyotes. These predators typically attack Blanding’s turtle nests, and the threat is increased when the predators are able to use roadways to easily access nesting habitat.

[17] Poaching is another serious threat to the Blanding’s turtle because it is an attractive, pleasant species and makes a desirable pet.

(3) The ESA Permit

[18] As part of the approval process, Ostrander was required to consider potential impacts of the project on species at risk and obtain a permit under s. 17(2) (c) of the ESA. ESA permits are issued by the Ministry of Natural Resources and exempt a person from the general prohibition on killing, harming or harassing a member of an endangered or threatened species and the prohibition on damaging the habitat of that species.

[19] Ostrander successfully obtained an ESA permit exempting it from prosecution for killing or harming the Blanding’s turtle and the Whip-poor-will.

C. The Tribunal’s reasons

[20] The Tribunal’s jurisdiction to review the REA is found in s. 145.2.1(2) of the EPA, which provides:

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.

[21] The Tribunal conducted a 40-day hearing, in which it received 185 exhibits and heard testimony from 31 expert witnesses. Drs. Beaudry, Shilling and Edge and Ms. Gunson were called as experts to discuss the impact of the project on Blanding’s turtle.

[22] The Tribunal concluded the project would cause serious and irreversible harm to the Blanding’s turtle population that uses the Project Site and surrounding area.

[23] The Tribunal’s finding the project would cause serious and irreversible harm to Blanding’s turtle was not based on the construction phase of the project. The Tribunal was satisfied the special mitigation measures the respondent would undertake would adequately protect the turtle during that phase. However, the Tribunal concluded the continued existence of the access roads that would be built for the project would cause serious and irreversible harm after construction of the project was completed.

[24] The scale adopted by the Tribunal defined the ambit of its serious and irreversible harm analysis. It considered whether the project would cause serious and irreversible harm to the population of turtles that use “the Project Site and surrounding area” (the “Area”). It did not consider the broader population of Blanding’s turtle in Ontario or Prince Edward County or the smaller scale of the population at the Project Site itself.

[25] The Tribunal noted that this scale of population was used in Stantec’s Blanding's Turtle Report, accorded with Dr. Edge's detailed description of the area, and was consistent with the area Dr. Beaudry discussed, which he referenced on maps during his testimony.

[26] The Tribunal did not receive evidence of the exact size of the turtle population in the Area, but it accepted the evidence of Dr. Beaudry that the population size was likely quite small.

[27] All the experts agreed that the continued existence of the roads constructed for the project risked causing serious harm to the turtle. They differed only about whether the proposed mitigation measures would prevent irreversible harm.

[28] The Tribunal noted that the testimony of Ms. Gunson, Dr. Beaudry and Dr. Edge all accorded with the conclusion of the Stantec Report that accidental road mortality could have a significant negative impact on the local turtle population. Dr. Beaudry, in particular, testified the proposed 5.4 km of roads to provide access to each turbine would be located directly in the turtle’s critical habitat. This was particularly troubling considering Blanding’s turtles can travel upwards of 10 to 15 km per season in search of food, refuge, and nesting sites. He said that “the likelihood that any turtle would cross one of the roads [in its annual cycle] is extremely high”. The roads would also provide poachers and predators easier access to turtle habitat and nesting sites. Ms. Gunson testified that the access roads would have indirect impacts, including habitat loss and fragmentation and changes to vegetation and hydrology.

[29] While the Tribunal was mindful of the testimony of all the experts, it based its conclusion primarily on the evidence of Dr. Beaudry and Ms. Gunson. Both gave unreserved testimony that the project would cause serious and irreversible harm to the Blanding’s turtle population that uses the Area and that the proposed mitigation measures would not prevent that harm.

[30] Dr. Beaudry testified he could give this opinion without knowing the exact population size at Ostrander point. He explained that the size of initial population would only affect the end-time when the population becomes extinct.

[31] The Tribunal accepted Dr. Beaudry’s testimony that it was unnecessary to know the exact population size to conclude the project would cause serious and irreversible harm. At para. 358, the Tribunal concluded:

There is certainly enough information for the Tribunal to make findings on the conservation status of the species, its life history traits that make it vulnerable to harm from the Project, the precise type of harm that the Project will cause, and the significance of this type of harm (road mortality and poaching) on Blanding’s turtle.

[32] The Tribunal also found that the fact Ostrander had been granted an ESA permit did not determine whether the project would cause serious and irreversible harm to Blanding’s turtle. The Tribunal explained that before issuing the ESA permit, the MNR considered whether the project would have an overall benefit to the species as a whole in Ontario, whereas the Tribunal considered the status of the Blanding’s turtle population at the Area. As well, the Tribunal found the mitigation measures that the ESA permit required for the Blanding’s turtle would not adequately address the harm to the turtle in the Area.

[33] After reviewing all the evidence, the Tribunal concluded that the mortality resulting from the continued existence of the access roads would cause serious and irreversible harm to the Blanding’s turtles at the Area:

The Tribunal finds that mortality due to roads, brought by increased vehicle traffic, poaching and predators, directly in the habitat of Blanding’s turtle, a species that is globally endangered and threatened in Ontario, is serious and irreversible harm to Blanding’s turtle at Ostrander Point Crown Land Block that will not be effectively mitigated by the conditions of the REA

[34] The Tribunal revoked the decision of the Director to grant the REA to Ostrander.

D. The divisional Court

[35] The Divisional Court held that the reasonableness standard applied to its review of the Tribunal’s interpretation of the test under s. 145.2.1(2) of the EPA, as well as to the Tribunal’s interpretation of the ESA and its relationship to the EPA. The Court also held that Ostrander could not attack the Tribunal’s findings of fact because the right of appeal under the EPA was confined to questions of law.

[36] The Divisional Court found that the Tribunal made a number of errors that made its finding of serious and irreversible harm unreasonable:

i. The Tribunal dealt with serious harm and irreversible harm together and failed to explain its reasons for concluding that the harm would be irreversible;

ii. The Tribunal concluded there would be serious and irreversible harm without evidence of the size of the population of Blanding’s turtle, the current level of vehicular traffic on the Area and the degree of increase in vehicular traffic that would result from the project; and

iii. The Tribunal failed to give sufficient weight to the existence of the ESA permit, the conditions attached to that permit, the obligation of the MNR to monitor and enforce the permit, and the fact that the REA expressly required Ostrander to comply with the ESA permit.

[37] The court also found the Tribunal erred in how it dealt with remedy, namely:

i. The Tribunal failed to give the parties an opportunity to address the issue of the appropriate remedy and thereby violated the principles of natural justice and procedural fairness;

ii. The Tribunal made a clear error of law in finding that it was not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.

[38] The Divisional Court allowed the appeal and set aside the Tribunal’s decision.

E. Analysis

(1) Proper Approach on Judicial Review

[39] Though this case involves a statutory appeal, the parties relied on judicial review authorities in their submissions regarding the proper standard of review. This was entirely appropriate.

[40] The Supreme Court has noted that "[t]he term 'judicial review' embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal": Dr. Q. v. College of Physicians & Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 21 (emphasis added). Moreover, the standards of review established by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2009 SCC 9, [2008] 1 S.C.R. 1990, apply not only to judicial review, but also to statutory appeals from tribunals: First Ontario Realty Corp. v. Deng, 2011 ONCA 54, 274 O.A.C. 338, at para. 16.

[41] Counsel for the intervener, Prince Edward County South Shore Conservancy, urges this court to apply the approach outlined in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. In that case, the Supreme Court endorsed the observation of Professor Dyzenhaus that deference to an administrative tribunal requires “respectful attention” to the “reasons offered or which could be offered in support of [the Tribunal’s] decision”. Even if the reasons do not seem wholly adequate to support the decision, “the court must first seek to supplement them before it seeks to subvert them”: at para. 12, citing David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304.

[42] Counsel for Ostrander submits this court should apply Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, where the Supreme Court cautioned a reviewing court against reformulating a Tribunal’s decision in a way that “casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result”: at para. 54, citing Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56.

[43] In this case, I find it unnecessary to address the different nuances in the decisions cited to us[^1]. The parties all recognize that the reviewing court must adopt a deferential approach to the Tribunal’s decision. The legislature confided to the Tribunal the question whether the project should be disallowed because it will cause “serious and irreversible harm to plant life, animal life or the natural environment”. The Tribunal has the task of the balancing the different and potentially opposing values involved in answering that difficult question.

[44] On appeal the question for the court is whether the Tribunal’s decision is reasonable. In determining whether the decision is reasonable, the reviewing court is concerned with “justification, transparency and intelligibility” of the Tribunal’s reasons: Dunsmuir, at para. 47. It is sufficient if the Tribunal’s reasons serve the purpose of showing that the result falls within a range of possible reasonable outcomes.

(2) The Tribunal’s “Serious and Irreversible Harm” Analysis

[45] The Divisional Court found that the Tribunal’s analysis was faulty in law because its reasons did not “reveal a separate and intelligible analysis on the issue of irreversible harm that this court can review.”

[46] The Court did not quarrel with the Tribunal’s conclusion that the issue of “serious and irreversible harm” must be interpreted on a case by case basis. However, the Divisional Court stated that “the Tribunal did not separate out, in the course of its determination of whether the test was met in relation to Blanding’s turtle, it’s analysis of the serious harm factor from its analysis of the irreversible harm factor.” Therefore, the Divisional Court concluded that the Tribunal’s reasons were not intelligible.

[47] I agree with the Divisional Court that the Tribunal was entitled to adopt a case by case approach to the application of the serious and irreversible harm test. I also agree with the Divisional Court that the “two factors address very different issues”. However, it is clear from its reasons as a whole that the Tribunal was aware the test involved both factors. For example, when considering potential damage to alvar vegetation and the alvar ecosystem, the Tribunal conducted an analysis where it kept the two factors separate: at paras. 616-617.

[48] I disagree that the Tribunal erred in failing to separately consider whether the project would cause irreversible harm to the Blanding’s turtle.

[49] At the hearing before the Tribunal, all the parties agreed that the project would inevitably result in an increase in Blanding’s turtle mortality. There was no dispute that loss of life of a threatened species with a slow reproductive rate constitutes serious harm.

[50] The Divisional Court recognized this. It said it was “unquestionable from the evidence that was placed before the Tribunal that there was a risk of serious harm to Blanding’s turtle from the project”. It acknowledged that “[g]iven the fragile status of Blanding’s turtle as a species, it would be difficult to characterize any increase in mortality arising from the Project as anything other than serious.” For this reason, the Divisional Court concluded that “the real issue” was “whether that harm was also irreversible.”

[51] I agree with this observation.

[52] In the case of the Blanding’s turtle, the only real question for the Tribunal to decide was whether the increase in mortality resulting from the roads would be irreversible. On my reading, the Tribunal’s reasons are entirely focused on that question. In applying the serious and irreversible harm test in this case, there was no need for the Tribunal to separately analyze what was evident and not disputed – whether the harm was serious.

[53] The Divisional Court also implies the Tribunal could not have reasonably relied on Dr. Beaudry’s opinion because he too failed to distinguish between serious harm and irreversible harm. In fact, the court suggests that the Tribunal’s reliance on Dr. Beaudry may have led to the Tribunal’s own failure to separately discuss “irreversible” harm in its reasons.

[54] Dr. Beaudry did testify that he would not distinguish between “serious” and “irreversible” harm. However, it must be remembered that he defined “serious and irreversible harm” as “something that can lead to a lower reproductive output or a higher mortality rate, enough so to lead a local population to extinction.” As discussed above, there was no dispute that any increase in mortality arising from the project was anything other than serious. Dr. Beaudry’s focus on a mortality rate sufficient to “lead the local population to extinction” clearly encompasses both factors.

[55] Dr. Beaudry explained that studies have shown that Blanding’s turtle adult survivorship is estimated at 96 percent. As soon as there is an additional two percent decline in survivorship, the “population starts to decline fairly quickly”. This rapid decline in population would constitute serious and irreversible harm, or in Dr. Beaudry’s words, “lead a local population to extinction.” Dr. Beaudry also indicated that a decrease in annual survivorship in the one to two percent range can cause the population to decline, but the decline would occur at a slower rate.

[56] Dr. Beaudry was of the view that the increased road mortality and decrease in reproductive output caused by the project would be sufficient to lead to such a decline in population.

[57] The assessment of Dr. Beaudry’s testimony was a matter for the Tribunal, not the Divisional Court.

[58] I conclude that the Divisional Court erred in finding that the Tribunal erred in failing to engage in a separate analysis of serious harm and irreversible harm in this case. Whether the project would cause serious harm required no analysis and the Tribunal’s analysis focused on whether the harm was irreversible.

(3) Lack of Numerical Data of Population Size and Traffic Flow

[59] The Divisional Court held the Tribunal could not conclude there would be irreversible decline in the population, without any data on the size of the population impacted, the extent of road mortality currently experienced at the site, the current vehicular traffic on the site and the increase in vehicular traffic that would result from the project. Without this information, the Divisional Court said it would not seem possible to determine whether the mortality rate after the project was built would fall inside or outside the two to five percent mortality that the population could sustain.

[60] With respect, the Divisional Court erred in this conclusion.

[61] First, the Tribunal had expert evidence that numerical data of the population level and of the increase in vehicular traffic was not needed to support the conclusion there would be serious and irreversible harm. The Tribunal accepted that evidence. As I have said, it was not for the Divisional Court to assess the credibility of expert evidence and conclude that the Tribunal should not have accepted it.

[62] Second, the Tribunal did have some evidence of the magnitude of population, mortality rate and traffic volume. That evidence was not expressed in numbers, but numbers without context lack meaning. The number of Blanding’s turtle, no matter what that number is, satisfies the criteria for the turtle to be classified as “threatened” under the ESA and as “endangered” by the International Union for Conservation of Nature. Dr. Beaudry testified he expected the population in the Area was “likely small.” He added: “I have strong reasons to believe that the population is not large” (emphasis added).

[63] The Tribunal also had some evidence about vehicular traffic on the existing and on the proposed roads. At the time of the hearing, the Project Site contained several kilometers of tertiary road that was passable only with four-wheel drive and all-terrain vehicles. The project would require the construction of an additional 5.4 km of roads providing access to each wind turbine. These access roads would be accessible by other forms of motor vehicle. Dr. Beaudry assumed the volume on the proposed roads would be “low”. Dr. Shilling estimated there would be, at most, “a few cars a day”. All the experts agreed that the roads would result in an increase of vehicular traffic within the Area.

[64] As summarized above, Dr. Beaudry and Ms. Gunson explained in detail how the local population would be affected by the project roads. They would lead to greater turtle mortality and a consequent decrease in reproductive output. While Dr. Beaudry may not have used numerical measures of population, vehicles and traffic data and mortality rates, his testimony was based on a sense of the magnitudes involved. Dr. Beaudry also proceeded on what the Tribunal described as the “best case scenario”. He ignored the natural fluctuations due to climate or an increase in predator populations that small or thinly distributed populations can suffer by assuming the population would be stable apart from road mortality. As well, the Tribunal had the evidence of Ms. Gunson who testified there was no direct correlation between traffic volume and mortality.

[65] As well, it must be remembered all the experts agreed that the roads would harm the turtle. They differed only about whether the proposed mitigation measures would prevent irreversible harm. The Tribunal’s conclusion that the mitigation measures would not be effective left it with unanimous expert evidence that the roads would harm the turtle and the evidence of Dr. Beaudry that the serious harm could not be adequately mitigated and would be irreversible.

[66] The Divisional Court did say that mathematical precision was not required, but it seems to me the court thought it necessary the Tribunal be able to make calculations using quantitative orders of magnitude that proved that road mortality would lead to a decline in the population resulting in eventual extinction. I do not accept that. It was for the Tribunal to decide whether the qualitative indications of magnitude the experts proceeded upon provided an adequate base for their conclusions.

[67] The Divisional Court also stated the Tribunal needed to know the turtle’s population size in Prince Edward County and in all of Ontario. There is nothing in the EPA to support this suggestion. The scale to be considered in assessing whether there will be serious and irreversible harm is entirely within the expert Tribunal’s authority to decide.

[68] When considered in light of all the evidence, I am satisfied the Tribunal could reasonably accept the evidence of Ms. Gunson and Dr. Beaudry that the project would cause serious and irreversible harm without having specific numerical data on the turtle’s population size, the volume of traffic, and the rate of mortality. I am also satisfied that the Tribunal’s reasons for accepting the opinions of these experts are intelligible, and its conclusion there would be serious and irreversible harm falls within the range of reasonable outcomes and should not be disturbed.

(4) The ESA Permit

[69] The Divisional Court also found the Tribunal erred in failing to attach proper weight to the ESA permit and failing to adequately explain the conflict between the MNR’s decision to issue the permit and its own conclusion.

[70] I have no difficulty in understanding the Tribunal’s explanation of the different results. The Tribunal pointed to the evidence of an MNR official who testified that in granting the ESA permit, the MNR concluded that the project would bring an “overall benefit” to Blanding’s turtle in Ontario. On the other hand, the Tribunal explained it considered a much smaller scale of population and assessed the project’s impact on the local population of Blanding’s turtle in the Area.

[71] In any event, the ESA permit was not binding on the Tribunal. Rather the permit expressly states that it does not release Ostrander from the “obligation to obtain permission under or to comply with all applicable federal, provincial and municipal laws.” Hence, Ostrander was obliged to comply with the EPA’s requirement that it obtain an REA and abide by the decision of the Tribunal if the REA were appealed.

[72] I agree with the Tribunal’s comment that “[a]lthough [Ostrander] is bound by the ESA Permit, a contravention of which may lead to prosecution under the ESA, for the Tribunal's purposes in this analysis it is simply evidence relevant to conditions to the REA, which must be assessed as would any other condition.”

[73] The Tribunal carefully considered the mitigation measures required by the ESA permit and concluded they were incomplete and would not be effective. The Tribunal exercised its independent judgment and found that the evidentiary value of the permit was outweighed by the expert evidence introduced. In doing so, the Tribunal was carrying out its distinct statutory mandate under s. 145.2.1(2) of the EPA.

[74] In my opinion, therefore, the Divisional Court erred by concluding the Tribunal erred in how it dealt with the ESA permit.

(5) The Tribunal’s Approach to Remedy

[75] After concluding that the Tribunal’s finding of serious and irreversible harm should be set aside, the Divisional Court went on to find that the Tribunal erred in dealing with remedy.

[76] First, the Divisional Court found the Tribunal failed to accord the parties procedural fairness when it decided to revoke the REA without hearing from them. This remedy was of such consequence that procedural fairness required the Tribunal allow the parties to make submissions.

[77] Second, the Divisional Court concluded the Tribunal erred in law by taking a limited view of its remedial jurisdiction. The Divisional Court focused on the Tribunal’s remark that it was “not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.” The Divisional Court said this statement was plainly wrong because it is clearly contradicted by the express wording of s. 145.2.1(4)(c). Section 145.2.1(4)(c) authorizes the Tribunal to "alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director."

[78] Before addressing the appeal of the Divisional Court’s finding the Tribunal committed these errors, it is necessary to deal with the cross-appeal.

(a) Cross-Appeal

[79] After the Tribunal’s decision was released, Ostrander took steps to obtain the MNR’s agreement to lease the property at the Project Site to it so that it could prohibit public access to the roads constructed on the site. On November 15, 2013, the Minister approved an Impact Monitoring Plan under which the new access roads would be closed to the public. The ESA permit, which incorporates the Impact Monitoring Plan by reference, now requires that the new access roads be closed to the public.

[80] On appeal to the Divisional Court, Ostrander tendered evidence of the steps it was taking to have the roads closed to the public as fresh evidence. The Divisional Court dismissed Ostrander’s fresh evidence application for two reasons. First, it found that Ostrander could have led the evidence before the Tribunal if it had exercised reasonable diligence. The Divisional Court reasoned that Ostrander knew that road mortality was an issue at the time of the Tribunal hearing, and it could have taken steps to lease the property and close the access roads prior to the end of the hearing. If it had done so, Ostrander could have led evidence of the roads’ closure before the Tribunal.

[81] The second reason for dismissing the fresh evidence application was that, in the Divisional Court’s view, the fresh evidence pertained to the “facts”. The Divisional Court noted that its jurisdiction on the appeal was limited to questions of law under s. 145.6 of the EPA. In its appeal to the Divisional Court, Ostrander argued that the Tribunal had made palpable and overriding errors of fact and that a palpable and overriding error of fact amounts to a question of law. The Divisional Court considered it would be unfair to allow Ostrander to advance that argument by changing the underlying factual evidence that was before the Tribunal.

[82] In my view, the Divisional Court applied the fresh evidence test too strictly. I would not have expected Ostrander to have taken steps to close the roads at the time of the Tribunal hearing. The parties were not in a position to address remedy without knowing the Tribunal’s decision on the merits. As the Divisional Court observed later in its reasons:

There were many different attacks launched against the Renewable Energy Approval. There was an allegation of harm to human health, to Blanding's turtles, to birds, to bats, to butterflies and to alvar. It would, of course, be unknown to the parties whether any of these allegations of harm would be made out and, if so, which ones. It follows from that practical reality that the nature of the appropriate remedy might well vary, perhaps considerably, depending on the harm that was found to exist. For example, the appropriate remedy for harm to human health might be very different from the appropriate remedy for harm to alvar.

[83] Ostrander could not reasonably have been expected to address the appropriate remedy in relation to each of the many different attacks mounted by the Field Naturalists and the Alliance.

[84] I do not agree that the fresh evidence was tendered solely to address factual issues. Questions before the court included whether the Tribunal failed to provide the parties with procedural fairness and whether the Tribunal misinterpreted its statutory remedial authority. These are questions of law. The fresh evidence provides some illumination of these questions. It shows concretely what Ostrander could have contributed had it been accorded the opportunity to address the issue of the appropriate remedy.

[85] I would allow the cross-appeal and admit the fresh evidence.

(b) Analysis of The Tribunal’s Approach to Remedy

[86] I approach the matter somewhat differently than did the Divisional Court but reach the same result that the Tribunal should have accorded the parties the opportunity to address remedy.

[87] I am not satisfied the Tribunal made the clear error of law identified by the Divisional Court. I do not read the Tribunal’s reasons to suggest that, as a matter of law, it lacked the authority to alter the decision of the Director and substitute its opinion for that of the Director. That said, I find it difficult to discern what the Tribunal meant by this remark. For that reason I cannot regard the Tribunal’s decision on remedy to be reasonable. In addition, I agree with the Divisional Court that, in the circumstances of this case, the Tribunal should have allowed the parties to address remedy.

[88] I begin by observing that the Tribunal was well aware of the terms of s. 145.2.1(4). In the title of its reasons on remedy, the Tribunal queried whether it “should revoke the decision of the Director, by order direct the Director to take some action, or alter the decision of the Director.” In para. 636, the Tribunal set out the complete text of s. 145.2.1(4) and stated that it could do one of the following:

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with the EPA and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

[89] After setting out its statutory remedial authority, the Tribunal reviewed documents that indicated the government, as a matter of policy, intended that the Ostrander Crown Land Block should be available to the public for recreational uses. Some of the documents reviewed emanate from the Ministry of Natural Resources, for example the Non-Forestry Road-Use Management Strategy Declaration, attached to the Work Permit issued by the MNR and the MNR’s Free Land Use Policy (PL.3.03.01). However, the REA, issued by the Director of the Ministry of the Environment, is not among the documents reviewed. In fact, the REA itself does not address whether the access roads should be open to the public. Perhaps what the Tribunal meant was that the government’s road policy was beyond the authority of the Director who issued the REA, and the Tribunal’s authority to interfere with the Director’s decision was no greater than the Director’s own authority.

[90] This, however, cannot be the case. The Tribunal specifically referred to the Director, saying it was “not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director” (emphasis added). It is apparent the Tribunal did not mean that the public’s access to the roads was rooted in some broad government policy that was beyond the authority of the Director and hence its own. It is necessary to consider what else the Tribunal might have meant.

[91] The Tribunal went on to say, “Whether or not Crown land should be closed to public access in order to allow a wind development to proceed is a value judgment that is not within the purview of the Tribunal to make.” It added, “At its essence, it is a decision whether the Ostrander Point Crown Land Block will be used for wind energy generation, rather than current Crown land uses which do not involve road development.”

[92] These observations might suggest the Tribunal considered that its role did not extend to making the value judgment about which of two different and incompatible government policies should be given effect.

[93] This too cannot be the meaning of the Tribunal’s remark. The Tribunal did choose between the two incompatible government policies. The effect of the remedy the Tribunal granted, revocation of the Director’s decision, was to decide the government-approved wind project would give way to the government’s policy that the Crown land should be available to the public for recreational use. The Tribunal must have meant something else.

[94] Another view of what the Tribunal meant is to note it said “it was not in a position” to alter the decision of the Director, not that it lacked the authority to do so. This might be lead to the inference the Tribunal meant it lacked sufficient information about the government’s attitudes towards its two competing government policies to exercise its legal authority to choose between them. If so, this would provide support for the Divisional Court’s conclusion the Tribunal should have allowed submissions on remedy. The Director, in particular, was a party and could have shed light on the government’s attitude.

[95] I am reluctant to conclude the Tribunal made an obvious error of law in regard to a basic provision of its home statute, but I am unable to understand what the Tribunal meant in remarking “it was not in a position to alter” the Director’s decision. The remark was a pivotal link in the Tribunal’s justification of its choice of remedy. The Tribunal said it was “as a result” of its remark that it revoked the decision of the Director. As I am unable to understand the Tribunal’s reasons for choosing the remedy it ordered, I am unable to regard the Tribunal’s choice of remedy as reasonable.

[96] Whatever the Tribunal meant by the remark, it is clear the Tribunal either adopted a limited view of its remedial power or considered that it lacked the information necessary to exercise it. Whether one or the other, the Tribunal should have provided the parties with the opportunity to address remedy. The potential limitation of the Tribunal’s remedial power was a new issue that the Tribunal introduced itself. The parties might have provided helpful submissions on the following: the proper interpretation and application of s. 145.2.1(4) as it affects the scope of the Tribunal’s remedial power; the ambit of the Director’s authority; the relevant government policies and how they intersected at the site; and the government’s preferred remedy. I have already noted that the Director was a party before the Tribunal.

[97] I also agree with the Divisional Court that, given the broad and varied range of attacks launched against the REA, it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal’s findings were in regard to the broad range of alleged harms. Without the contributions of the parties on the question of remedy, it is not surprising the Tribunal found itself “not in a position” to consider the full range of remedial options.

[98] While I conclude the Tribunal erred by failing to allow the parties to address the scope of its remedial jurisdiction and what the appropriate remedy was, I reject Ostrander’s submission that this court should exercise its jurisdiction under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43and permit the project to proceed in light of the fresh evidence.

[99] In making this submission, Ostrander points out that the Tribunal’s finding of serious and irreversible harm arose from the fact that the new access roads could be used by public vehicles and the fresh evidence shows that is no longer the case. Thus, it submits there is no reason to send the matter back to the Tribunal.

[100] This submission is without merit. It is inconsistent with Ostrander’s position, successful on appeal, that the parties should be accorded the opportunity to address remedy. As well, that the Tribunal will allow the project to proceed upon the roads closure should not be regarded as a foregone conclusion. I note the Tribunal had evidence of how the proposed access roads would cause harm to the turtle’s habitat quite apart from collisions with motor vehicles. Finally, the Tribunal has yet to determine the scope of its remedial jurisdiction in the context of this case.

F. Disposition

[101] I would allow the appeal in part. I would allow the appeal on the merits and restore the Tribunal’s conclusion that the project will cause serious and irreversible harm to the Blanding’s turtle. I would allow the cross-appeal and the fresh evidence application. I would dismiss the appeal from the Divisional Court’s finding that the Tribunal erred in dealing with remedy. I would remit the matter back to the Tribunal to address remedy after giving the parties the opportunity to be heard.

[102] In light of the mixed success, this is not a case for costs.

Released: April 20, 2015

(EAC) “R.G. Juriansz J.A.”

“I agree E.A. Cronk J.A.”

“I agree Gloria Epstein J.A”

[^1]: See Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114, 372 DLR (4th) 567, for a discussion of the differences between the two decisions.