Pavao v. Ministry of the Environment and Climate Change, 2016 ONSC 6040
CITATION: Pavao v. Ministry of the Environment and Climate Change, 2016 ONSC 6040
DIVISIONAL COURT FILE NO.: 430/16 and 434/16
DATE: 20160926
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ELAINE PAVAO, Applicant
AND:
MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE, FRWN LP and NR CAPITAL GENERAL PARTNERSHIP, Respondents
BEFORE: Thorburn J.
COUNSEL: Arkadi Bouchelev, for the Landlord/ Respondent
Geoff Hall and Kate Findlay, for the Respondent
Philip Tunley for the Ontario Energy Board
Noone appearing for the Ministry of the Environment and Climate Change
HEARD at Toronto: September 21, 2016
ENDORSEMENT
BACKGROUND
[1] The Applicant, Elaine Pavao lives with her family on a rural property in the Niagara Region. She seeks a stay of two proceedings pending judicial review of the first proceeding and appeal in the second proceeding.
[2] On May 7, 2013, the Niagara Region Wind Corporation filed an application to construct a transmission line in Haldimand County and the Niagara Region. The transmission line would carry power generated from a Niagara Region Wind Farm to the provincial electricity grid.
[3] On July 3, 2014, the Respondents FRWN LP and NR Capital General Partnership (the “Partnership”) obtained approval from the Ministry of Environment and Climate Change (MOE) and the Ontario Energy Board (OEB) to construct a transmission line to connect a Wind Farm to the electrical grid. The Board found that the Transmission Line was in the public interest.
Renewable Energy Approval amendment
[4] In early 2016, the Partnership applied to obtain expedited approval of a modification to the transmission line route. The MOE has jurisdiction over the Wind Farm project and the health hazards and environmental impact of the Transmission Line.
[5] The first modification was to reduce the Transmission Line route by approximately 300 metres in order to bypass Highway 3 and the second modification was to shorten the Transmission Line route by approximately 2.4 km in order to bypass an urban development area in Smithville.
[6] The second proposed modified route runs adjacent to the Applicant’s property and crosses an unopened road allowance she and two other landowners used. It is this second modification that is at issue in these proceedings.
[7] The proposed amendment to the route was granted by the Minister’s representative and published on May 6, 2016.
[8] Section 142.1(3) of the Environmental Protection Act provides that a person may require a hearing by the Environmental Review Tribunal within 15 days after the day on which notice of a decision is published, on the grounds that the renewable energy project will cause serious harm to human health or irreversible harm to plant life, animal life or the natural environment.
[9] On May 11, 2016, Ms. Pavao became aware of the approval of the amendment by reading the half page Notice of the Proposed Change in the newspaper. The Notice does not say that concerned citizens may require a hearing.
[10] The notice does provide that, “Information with respect to the decision on this project can be viewed on the Environmental Registry by searching EBR #012-0613”. Page 2 of EBR #012-0613 provides that, “Any resident of Ontario may require a hearing by the Environmental Review Tribunal within 15 days …by [providing] written notice.”
[11] Ms. Pavao says she contacted a representative of the Partnership and was told the newspaper notice was a formality and nothing could be done to stop the application for amendment. The person to whom she claims she spoke, says she has no recollection of this conversation.
[12] Ms. Pavao claims that because of the answer she received from the Partnership representative, and what she was told by representatives of the Region, Municipality and the MOE, she believed she had no means to halt the project and took no further steps in respect of this Renewable Energy Approval amendment.
OEB Approval
[13] On June 17, 2016, the Partnership brought a motion before the OEB to approve the two modifications to the transmission line route. The Partnership requested that the Application to Amend be considered without a hearing and on an expedited basis. The OEB can hear an application without a hearing and on an expedited basis where it is satisfied that no person is materially adversely affected by the proposed project.
[14] On July 17, 2016, Ms. Pavao received a copy of the Order of the OEB requiring the Partnership to provide her and two other landowners the opportunity to file written submissions as to whether they would be materially adversely affected by the proposed change. She and two other landowners were given 10 days from the date of service to file written submissions.
[15] Ms. Pavao claims the 10 day period within which to file submissions did not give her sufficient time to retain legal counsel.
[16] On July 25, 2016, she wrote brief submissions about potential health risks and the adverse impact on her property value and sought an adjournment to retain counsel. No adjournment was granted. Section 96(2) of the OEB Act provides that on such applications, the OEB shall only consider the consumer interest in price, reliability and quality of electricity service and, where applicable, the promotion of the use of renewable energy sources.
[17] On August 17, 2016, the OEB granted leave to construct a transmission line pursuant to ss. 92 and 96(2) of the Ontario Energy Board Act 1998, S.O. 1998, c. 15, Sched. B, ss, 92 and 96(2).
[18] The OEB concluded that they were not able to consider the health-related, financial and environmental concerns raised by Ms. Pavao because Section 96(2) of the Act provides that the OEB may only consider the interests of consumers with respect to prices and the reliability and quality of electricity service and, if applicable, the promotion of the use of renewable energy sources.
[19] The OEB noted that these issues could have been raised in the earlier MOE proceeding but were not and that decision was not appealed.
[20] The OEB also found that although section 97 of the OEB Act provides that, “leave to construct shall not be granted until the applicant satisfies the Board that it has offered or will offer to each owner of land affected by the approved route or location an agreement in a form approved by the Board”, Ms. Pavao was not an “affected landowner” within the meaning of the provision. As such, the Partnership was not required to enter into an approved agreement with her. The OEB points out that its Filing Requirements for Electricity Transmission Applications defines an affected landowner as landowners of property upon, over or under which transmission facilities are intended to be constructed.
[21] Finally, in recognition of the inconvenience that the three landowners would experience as a result of construction, the OEB ordered that the Partnership fulfill all undertakings made in relation to construction activities, and return the unopened road allowance after completion of the Smithville Bypass to a condition equal to or better than the condition it was in prior to construction.
[22] The Partnership is scheduled to electrify the transmission line by early October 2016.
RELIEF SOUGHT
[23] Ms. Pavao brings two motions to be heard together:
a. The first is a motion to stay the Renewable Energy Approval amendment pending the hearing of the Applicant’s application for judicial review.
b. The second is a motion to stay the Decision and Order of Presiding Member and Vice Chair of the OEB pending the hearing of this Appeal.
THE TEST
[24] A stay will only be granted where:
(a) there is a serious issue raised;
(b) the Applicant will suffer irreparable harm if the stay is not granted; and,
(c) the balance of convenience favours the stay.
RJR – MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at para. 43.
THE APPLICANT’S POSITION
[25] The Applicant claims a stay of each of the two proceedings should be granted for the following reasons:
The Renewable Energy Approval Amendment Proceeding: Ms. Pavao’s right to procedural fairness was denied. She was never made aware of her right to require a hearing and in fact, was advised there was nothing she could do. She was thereby denied her right to procedural fairness and was unable to raise her issues relating to human health and the natural environment as envisaged in EPA section 145.2.1 (2).
The OEB Proceeding: Ms. Pavao claims she should have been granted a reasonable time to make submissions and retain counsel to voice her concerns to the OEB. Moreover, she is an “owner of land affected” within the meaning of section 97 of the OEB Act and the OEB was required to approve an offer from the Partnership to her which they did not.
[26] Ms. Pavao submits these are serious issues to be tried. She also claims she will suffer irreparable harm because the proximity to the transmission lines to her family home will cause her family irreparable physical and financial harm and will irreparably harm the environment.
[27] She had several miscarriages and claims a doctor at Brantford General Hospital told her that a lot of sudden infant deaths had occurred along the transmission line corridor near her former home. Moreover, she says her son’s coroner (whose name was not provided) told her that her son suffered from Genetic Cardiac Channelopothy.
[28] She claims she has invested approximately $200,000 into renovating the property and her property value will decrease as a result of its proximity to the transmission line. She says her home insurance has been cancelled for that reason (although there is no documentation from the insurer to suggest this is why her home insurance will be cancelled effective October 3, 2016.).
[29] Lastly she claims the construction will damage the wetlands and a colony of endangered brown bats that live in the forest on her property.
ANALYSIS AND CONCLUSION
[30] There are two proceedings that address issues related to the transmission line: the first is the Renewal Energy Approval hearing to which issues involving health and the environment may be brought, and the second is the OEB hearing to which concerns regarding consumer price, reliability and quality of the electrical service can be brought.
Renewable Energy Approval amendment
[31] Ms. Pavao had a right to a hearing before the Environmental Review Tribunal in respect of the Renewable Energy Approval amendment. The public notice did not contain any reference to this right. It did refer to an internet site where there is reference to that right on page 2. There is a 15 day timeline within which to request a hearing.
[32] Ms. Pavao did not receive reasonable notice of her right. Had she received such notice, she could have raised her concerns about health, the financial implications and the environmental concerns regarding the transmission lines. On the contrary, she claims she was told by a Partnership representative there was nothing she could do. She did not have a reasonable opportunity to exercise her right to a hearing.
[33] Her right to procedural fairness was denied. This is a serious issue.
[34] However, she has failed to demonstrate irreparable harm for the purposes of these motions as she provided no evidence before this court to corroborate her assertion that she and her family would experience harm to human health, finances, or the environment.
[35] By contrast, the Partnership provided information from Health Canada which states that there is no evidence of transmission lines of 60Hz such as these cause adverse health effects. In addition, Dr. Robert Myers, a cardiologist at Sunnybrook Health Sciences Centre opined that in his view, “There is no documented medical evidence to substantiate Ms. Pavao’s claims that low frequency EMF has any impact on cardiac electrophysiology as suggested by her claim that her 8 month old son was affected by EMF from transmission line and that her (sic) and her family are at greater risk by virtue of a claimed cardiac condition.”
[36] As such, Ms. Pavao’s request to stay the Renewable Energy Approval amendment pending judicial review is denied.
[37] Ms. Pavao will however have the opportunity to pursue her Application for judicial review and to provide the evidence relevant to her Application for judicial review.
The OEB Decision
[38] Ms. Pavao also seeks to stay the Decision and Order of the OEB pending the hearing of her Appeal.
[39] Although Ms. Pavao did not participate in the first hearing she did participate in the second hearing before the OEB.
[40] Upon becoming aware that Ms. Pavao expressed an interest in the hearing, the OEB ordered the Partnership to provide Ms. Pavao and two other landowners the opportunity to file written submissions as to whether they would be materially adversely affected by the proposed change. They were given ten days to do so and Ms. Pavao did so without the benefit of counsel. The Appellant’s submissions were considered by the OEB in rendering its decision.
[41] The concerns she articulated were about health risks, adverse impact on her property value and damage to the environment. She does not suggest there are other concerns. None of the issues she raises are concerns the OEB can consider in accordance with section 96(2) of the OEB Act.
[42] Moreover, she is not an “owner of land affected” within the meaning of section 97 of the Act so there is no offer by the Partnership to be tendered to the OEB. The OEB’s Filing Requirements for Electricity Transmission Applications provides that an “owner of land affected” means a landowner of property upon, over or under which transmission facilities are intended to be constructed. Counsel provided no legal authority to suggest another interpretation.
[43] Where an expert tribunal such as the OEB interprets its home statute, that interpretation is entitled to deference.
[44] For these reasons, I find the OEB’s interpretation of the words “owner of land affected” to be reasonable.
[45] Because the OEB Order has no jurisdiction to hear her concerns and she is not an owner of land affected within the meaning of the Act, there is no serious issue to be tried such that a stay of proceeding should be granted pending the hearing of the Appeal in this matter. For the reasons set out at paragraphs 34 and 35 above, I also find that for the purposes of this motion, Ms. Pavao has not satisfied the requirement to show irreparable harm.
Costs
[46] The Applicant did not name the OEB as a Respondent, but the Board has a statutory right to respond and it did. (See s. 33(3) of the OEB Act and Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at paras. 52, 57 and 59).
[47] The OEB seeks no costs.
[48] The Partnership seeks costs in the amount of $25,000. The Applicant’s Bill of Costs was $14,500.
[49] In my view there should be no costs of these motions notwithstanding that the Partnership was successful in defending these two motions. While the Applicant has not satisfied the requirement to show irreparable harm, she did establish that the Partnership failed to afford her timely and reasonable notice of her right to require a hearing and offered no explanation for its failure to inform her of this important right.
[50] She has not been afforded the opportunity to participate in a hearing to address her health and environmental concerns that are within the jurisdiction of the Environmental Review Tribunal.
Conclusion
[51] For these reasons the motion to stay pending judicial review and the motion to stay pending appeal are both dismissed without costs. The Application for judicial review is to be expedited.
Thorburn J.
Date: September 26, 2016
CITATION: Pavao v. Ministry of the Environment and Climate Change, 2016 ONSC 6040 DIVISIONAL COURT FILE NO.: 430/16 and 434/16
DATE: 20160926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ELAINE PAVAO
Applicant
AND:
MINISTRY OF THE ENVIRONMENT AND CLIMATE CHANGE, FRWN LP and NR CAPITAL GENERAL PARTNERSHIP
Respondents
ENDORSEMENT
Thorburn J.
Released: September 26, 2016