CITATION: Preserve Mapleton Incorporated v. Director, Ministry of the Environment, 2012 ONSC 2115
COURT FILE NO.: 38/12
DATE: 20120424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CRANE AND SWINTON JJ.
B E T W E E N:
PRESERVE MAPLETON INCORPORATED
Applicant
- and -
DIRECTOR, MINISTRY OF THE ENVIRONMENT, AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO and CONESTOGO WIND, LP
Respondents
Eric K. Gillespie and Rebekah L. Church, for the Applicant
Lise Favreau, Kristin Smith, and Judith Parker, for the Respondent Director
John B. Laskin, John Terry and Alexander Smith, for the Respondent Conestogo Wind, LP
HEARD at Toronto: April 2, 2012
Swinton J.:
[1] The applicant, Preserve Mapleton Incorporated (“PMI”), has brought an application for judicial review to challenge the decision of the Director, Ministry of the Environment (“MOE”) dated December 8, 2011 to issue a Renewable Energy Approval (“REA”) to the respondent Conestogo Wind, LP (“Conestogo”) for the construction and operation of a Class 4 wind facility in the Township of Mapleton.
[2] The applicant argues that the Director failed to comply with requirements under the applicable regulation, and that it was denied procedural fairness. As a result, the Director did not have jurisdiction to issue the REA.
[3] For the reasons that follow, I would dismiss this application, both because the applicant lacks standing and because the decision of the Director was reasonable and reached in a manner that was procedurally fair.
The Statutory Framework
[4] The REA was issued to Conestogo after nearly five years of extensive public consultation and project study pursuant to the requirements of Part V.0.1 of the Environmental Protection Act, R.S.0. 1990, c. E.19, as amended (“the EPA”), and O. Reg. 359/09, Renewable Energy Approvals under Part V.0.1 of the Act (“the Regulation”). This regulation came into force on September 24, 2009.
[5] Section 12 of the Regulation requires a proponent of a renewable energy project to submit an application with specified documentation and to comply with the requirements in Part IV. Before applying for approval, the proponent must hold at least two public meetings for the purpose of conducting consultation in respect of the project (s. 15(1)). The notice for the first public meeting must be given at least 30 days before the meeting and advertised on at least two separate days in a newspaper with general circulation in the municipality (ss. 15(3) and (6)). The Regulation also requires the proponent to consider whether the project may have an impact on archeological resources (s. 20). If so, s. 22 requires the proponent to obtain an archeological assessment from a consultant archeologist, and to submit a report to the Ministry of Tourism, Culture and Sport (“Ministry of Culture”).
[6] The completed application must be submitted to the Director, MOE, who may approve it even if all the requirements of s. 12(1) of the Regulation have not been met, provided the Director is of the opinion that the failure to comply with certain requirements “will not compromise an adequate understanding of the negative environmental effects of engaging in the renewable energy project” (s. 12(1.1)).
[7] As part of the approval process, the project is posted on the Environmental Registry, as required by s. 22 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 in order to allow public comment before a decision is made.
[8] After a technical review, the Director has a broad discretion under the EPA to issue an REA, with or without conditions, or to refuse the application if it is in the public interest to do so (EPA, ss. 47.5(1) and (2)). Any resident of Ontario may appeal this decision to the Environmental Review Tribunal (“ERT”) on the grounds that engaging in the project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment (EPA, s. 142.1(3)).
Conestogo’s Application
[9] The Conestogo application was commenced in 2007 under the former Environmental Screening Process and continued under the REA Regulation in September 2009. The project is a proposed 22.92 megawatt wind facility comprised of 10 wind turbines located on approximately 2,400 hectares in Mapleton Township in the County of Wellington.
[10] There is no issue on this application for judicial review that Conestogo held a first public meeting under the Regulation on December 2, 2009, having given 13 days notice in two different newspapers. Thus, it did not give the required 30 days notice for a first public meeting, nor were the notices published in one newspaper on two days. However, notices were also mailed to residences located in the project study area and posted on Conestogo’s website.
[11] Conestogo held a second public meeting on November 30, 2010. When the MOE became aware that there had been changes to the project layout after that meeting, it required Conestogo to hold a third public meeting in March 2011.
[12] When the MOE reviewed the Consultation Reports that Conestogo filed, as required by the Regulation, staff became aware that the notice provisions for the first public meeting had not been met. As a result, the MOE extended the posting on the Environmental Registry from the required 30 days to 60 days. Over that period, the MOE received 536 comments, which were summarized and sent to Conestogo for a response.
[13] In August 2011, Conestogo informed the Ministry that it was making additional modifications to the project, as a result of public comments. The Ministry reviewed these modifications and assessed them to be minor and, therefore, no further public meeting was required. However, the Ministry required Conestogo to update its documentation and website, consult with other ministries and provide notice to the public.
[14] Ultimately, MOE staff provided the Director with a detailed Decision Document in December 2011 that outlined the result of the review of the project and recommended approval of the REA with certain conditions. The Director granted approval to the project on December 8, 2011, imposing certain conditions, including the creation of a Community Liaison Committee and the completion of a Stage 2 archeological assessment before construction could begin on the project lands.
[15] On December 22, 2011, the applicant PMI commenced an appeal to the ERT under s. 142.1 (which has been stayed pending the result of this judicial review). In oral submissions, counsel for PMI indicated that PMI was first incorporated in December 2011. In addition, PMI commenced this application for judicial review.
Issues
[16] The following issues arise on this application:
Does PMI have standing to bring this application?
Was the decision of the Director to approve the application reasonable, despite the failure to meet all the requirements of the Regulation?
Was the applicant denied procedural fairness in the consultation process leading to the Director’s decision?
The Standing of the Applicant
[17] The applicant seeks to challenge the Director’s exercise of his statutory authority to issue the REA. A person may bring a legal proceeding to challenge the decision of a public or quasi-public body only if the person’s private rights are directly affected by the decision, or the person is exceptionally prejudiced by the decision in a manner different from the general public (Finlay v. Canada (Minister of Finance), 1986 6 (SCC), [1986] 2 S.C.R. 607 at para. 19). In the alternative, a court has discretion to grant public interest standing, where a party does not have personal standing.
[18] PMI does not meet the test for personal standing, as it has not shown that it has suffered an injury as a result of the Director’s decision distinguishable from that sustained by the average citizen. For example, it has not shown that it was prevented from participating in the public consultation process or affected by the way in which the archeological assessment was carried out.
[19] Nevertheless, a court has discretion to grant public interest standing, where the impugned action would otherwise be shielded from judicial review. The Supreme Court of Canada has established a three part test for public interest standing:
Is there a serious issue respecting the invalidity of legislation or the decision of a public body?
Has the applicant demonstrated a genuine interest in the issues?
Is there another reasonable and effective way to bring the issue before the court?
(Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 116 (SCC), [1992] 1 S.C.R. 236 at para. 37).
The Supreme Court has indicated that these principles should be interpreted in a “liberal and generous manner”, as the purpose of granting public interest standing is to ensure that legislation and public acts are not immune from challenge (at para. 36).
[20] PMI objected that the respondents had raised the issue of standing late in the process, including the challenge in their factums, rather than bringing a motion in advance of the hearing of the application. I note that the Supreme Court of Canada in Finlay, above, stated that it is a matter of judicial discretion as to whether to consider the issue of standing on a preliminary motion, rather than at the time of determining the substantive issues (at para. 16). I see no prejudice to the applicant arising from the way in which the respondents raised the issue of standing. The applicant had notice and had prepared oral arguments on the issue of standing.
[21] Leaving aside a consideration of the merits under the first part of the test for public interest standing, I am satisfied that PMI does not meet the other two parts of the test.
[22] PMI claims a genuine interest in the issues in this application, in part because of its membership and in part because it has filed a s. 142.1 appeal of the Director’s decision before the ERT. PMI argues that the disposition of this application for judicial review may affect that appeal, thus giving it a genuine interest in this application.
[23] To meet this part of the test for standing, the applicant must show a genuine interest in the validity of the decision. PMI has not shown a genuine or long and continuing interest. It is not like the applicant in Canadian Council of Churches, an interest group with “the highest possible reputation” and a demonstrated history of working on behalf of the refugees and immigrants who would be affected by the legislation alleged to be unconstitutional in the litigation (at para. 39). Nor is this a case like South March Highlands-Carp River Conservation Inc. v. Ottawa (City), 2010 ONSC 6725 (Div. Ct.), where there was evidence respecting the past participation of the groups behind the incorporated entity that brought the application.
[24] In contrast, PMI was not created until December 2011. There is no explanation in the record as to how it was formed or who its members are, and there is nothing in the record to suggest it existed throughout the consultation process or that it has expertise or experience in the area of environmental approvals. I note that when counsel wrote to the Ministry in August 2011, he purported to speak for a group called “Stop Mapleton Wind Farms”, not PMI. The only affidavit filed by the applicant was given by Donna Weaver, who states that she is a member of PMI but then goes on to describe her participation in the public consultation process.
[25] In my view, PMI has not met the requirement that it has a genuine interest in the issues raised in this application. The fact that a favourable decision in this application may assist its appeal to the ERT is not sufficient to create a genuine interest in the issues.
[26] I turn to the third consideration respecting public interest standing. Is there another reasonable way to bring this application forward? In my view, there is. If there are individuals who claim to have been denied a fair process, they can step forward to challenge the decision. To the extent there is a concern about the merits of the Director’s decision, there is an appeal right to the ERT, which PMI has exercised.
[27] Accordingly, I would not grant public interest standing to the applicant. While the application for judicial review could be dismissed on this basis, in the interests of finality, I shall go on to consider the merits of the application.
The Reasonableness of the Director’s Decision
[28] Counsel for PMI handed up a chart during oral argument that set out 11 alleged defects in the process leading to the Director’s decision to grant the REA. Only two of those defects arise from a failure to follow requirements explicitly set out in the Regulation: the short notice period for the first public meeting and the publication of the notice in two newspapers, rather than twice in one newspaper.
The Notice Issue
[29] Subsection 12(1.1) of the Regulation permits the Director to exercise his discretion to dispense with the regulatory requirements in Part IV if he is of the opinion that failure to comply with the requirements will not compromise an adequate understanding of the negative environmental effects of the project. Thus, the provision confers a broad discretion, which the Director must exercise in light of all the factual material before him and a consideration of the total process.
[30] The Director’s decision to exercise his discretion to dispense with compliance is reviewable on a standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 51 and 53).
[31] In the present case, the Director was presented with the Decision Document from MOE staff in December 2011 that described in detail the consultation process, including the deficiencies in Conestogo’s initial notice, as well as MOE’s decision to extend the comment period on the Environmental Registry in order to address the defective notice. Conestogo was also required to hold a third public meeting after it made significant changes and to notify the public when it made further, minor changes to the project in August 2011. Moreover, Doris Dumais, Director of the Approvals Program at the MOE, also met with a small group of residents in June 2011 to discuss their concerns.
[32] There is no credible material in the record that suggests any individual was deprived of an ability to make his or her views known during the consultation process because of the technical defects respecting the notice of the first meeting. In my view, the Director’s decision to dispense with compliance was reasonable in the circumstances.
Lack of Reasons
[33] The applicant argues that the Director acted without jurisdiction because he failed to give reasons for his decision. In particular, the Director made no mention of s. 12(1.1), nor is there an express reference to that provision in the Decision Document.
[34] A common law duty to provide reasons has been imposed, as an element of procedural fairness, in some cases where critical interests of an individual are at stake (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 43). In Baker, the notes of a subordinate immigration officer were sufficient to meet the reasons requirement, as the notes of this subordinate were taken by the Court to be the reasons of the immigration officer who decided to deny an application for resident status on humanitarian and compassionate grounds (at para. 44).
[35] Assuming, without deciding, that the Director had a duty to give reasons here, that duty has been met in the present case by a review of the Decision Document. Even though there is no reference to s. 12(1.1), it is obvious that the MOE staff knew of the failure to meet the requirements in the Regulation, and they took steps to address any problems in the public consultation process. After reviewing the consultation process, staff members were satisfied that Conestogo demonstrated it had “sufficiently met the requirements of the Regulation” (MOE Record, p. 345).
[36] In any event, even if no reasons were given for the exercise of the Director’s discretion, a court should not invalidate the decision if a reasonable basis for the decision is apparent from the record (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 54-55). In this case, a review of the record shows that there was extensive consultation with the public, and there is no evidence that any individuals were denied an opportunity to participate in the consultation process because of the technical defects in the notice. Indeed, Ms. Weaver’s affidavit, as well as material in the responding record from the MOE, shows that Ms. Weaver participated extensively in the public consultation by attending meetings and sending comments for consideration by MOE. In my opinion, a reasonable basis for the decision is apparent from the record.
The Archeological Assessment Issue
[37] PMI also argues that the Director should not have granted the REA because the archeological assessment was faulty. In particular, a Stage 2 assessment was not completed before the REA was granted.
[38] However, no particular type of archeological assessment is required by s. 22 of the Regulation. That provision requires the proponent to carry out an archeological assessment, but does not specify the type of assessment.
[39] The Ministry of Culture, the entity concerned with protection against adverse archeological impact, has created technical guidelines for consultant archeologists. The Guidelines explain that Stage 1 assessments are documentary, while Stage 2 assessments involve fieldwork. In the case of REA projects that had been commenced under the Environmental Screening Process, including Conestogo’s, the Ministry of Culture agreed to receive Stage 1 archeological assessments provided that if additional assessments were required, they would be completed prior to construction of the project.
[40] The Ministry of Culture accepted the report and recommendations of the consultant archeologists retained by Conestogo. The Director accepted the report from the Ministry of Culture and imposed a condition in the REA that Conestogo complete a Stage 2 assessment before construction. That was a reasonable decision and consistent with the regulatory requirements.
[41] In oral argument, PMI asserted a claim that it had legitimate expectations respecting the treatment of archeological assessments based on the guidelines of the Ministry of Culture. The doctrine of legitimate expectations may confer certain procedural rights, if a party has a legitimate expectation that a certain procedure will be followed (Baker, above at para. 26). However, there is no evidence that any representation was made to the applicant or its members that a certain process would be followed for an archeological assessment.
Other Issues of Procedural Fairness
[1] To the extent that the application raises issues of procedural fairness at common law, it is not necessary to determine the standard of review. The issue is whether a common law duty of fairness is owed and, if so, the content of that duty in the present context (London (City of) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120, [2002] O.J. No. 4859 (C.A.) at para. 10).
[42] PMI raises questions about the inaccurate description of the lands in a project document, the mislabeling of certain roads, the failure to summarize the comments of two individuals in the Consultation Report, the failure to consult the public in Wellington North Township (even though the MOE was satisfied that the project did not extend into that township), the failure to hold another meeting after the August 2011 changes to the project, the failure to disclose documented health complaints, and insufficient time to prepare comments for the second public meeting.
[43] One of the major purposes of the common law duty of fairness is to provide participatory rights for individuals affected by a decision. The content of the duty varies with the nature of the decision, the nature of the statutory scheme, the importance of the decision to the individuals affected, legitimate expectations about procedures, and the choices of procedure by the decision-maker (Baker, above at paras. 23-27).
[44] None of the process issues raised by PMI support a finding of procedural unfairness, given the nature of the decision and the processes set out in the Regulation.
[45] When determining whether to grant an REA, the Director exercises his authority under s. 47.5 of the EPA to make a policy decision in the public interest. The REA Regulation establishes a comprehensive procedural code to govern the approval process which ensures that affected individuals and entities will be consulted. It would not be appropriate to use the common law duty of fairness to add further requirements to enhance the participation of members of the public, especially here, where no individual has come forward with evidence to show that he or she was denied an opportunity to participate in the consultation process.
[46] In any event, as counsel for Conestogo pointed out in their factum and in oral argument, there was no apparent unfairness resulting from the labeling of the roads, the technical description of the properties, the health complaint documentation or the content of the Consultation Report. I am satisfied that members of the public knew the necessary details about the project to allow them to comment. Moreover, there was no obligation on the Director to order a further public meeting after changes in August 2011 that MOE staff considered to be minor.
[47] PMI claimed a legitimate expectation that Ms. Dumais would have a further meeting, given her indication to the small group she met in June 2011 that she would be prepared to meet again. There is no evidence that any representation about a particular meeting was made to PMI. It cannot, then, claim a denial of procedural fairness on this basis.
Conclusion
[48] In sum, the Director’s decision to dispense with compliance with the procedural requirements respecting the first public meeting was reasonable, as was his decision respecting the archeological assessment. The process followed with respect to Conestogo’s application met the common law requirements of procedural fairness. Accordingly, this application for judicial review is dismissed on the basis that PMI lacks standing and, in the alternative, on the merits.
[49] The Director seeks costs of $5,000, while Conestogo seeks costs of $30,000 on a partial indemnity basis. At the end of oral argument, PMI asked for the opportunity to make written submissions on the issue of costs, including the question whether costs should be awarded at all.
[50] PMI shall make brief written submissions on costs through the Divisional Court Office within 21 days of the release of these reasons. The respondents shall reply within 10 days thereafter.
Swinton J.
Cunningham A.C.J.S.C.
Crane J.
Released: April 24, 2012
CITATION: Preserve Mapleton Incorporated v. Director, Ministry of the Environment, 2012 ONSC 2115
COURT FILE NO.: 38/12
DATE: 20120424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CRANE AND swinton JJ.
B E T W E E N:
PRESERVE MAPLETON INCORPORATED
Applicant
- and -
DIRECTOR, MINISTRY OF THE ENVIRONMENT, AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO and CONESTOGO WIND, LP
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: April 24, 2012