Court File and Parties
CITATION: Nation Rise Wind Farm v. Ontario, 2020 ONSC 1153
COURT FILE NO.: DC 674/19 DATE: 20200221
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
Nation Rise Wind Farm Limited Partnership and Nation Rise Wind Farm GP Inc.
Applicants
- and -
Minister of the Environment, Conservation and Parks
Respondent
COUNSEL: John Terry and Jonathan Silver, for the Applicants Judie Im and Andi Jin, for the Respondent Eric Gillespie, for Concerned Citizens of North Stormont James Bunting and Judith Manger, for the proposed intervenors, the Landowners Christopher Bredt and Ewa Krajewska, for the proposed intervenor, Canadian Wind Energy Association
Heard at Toronto: February 10, 2020
ENDORSEMENT
D.L. Corbett J.:
[1] This endorsement addresses three procedural issues:
(a) Proposed intervention by CanWEA as a friend of the court;
(b) Proposed intervention by the “Landowners” as parties;
(c) Ontario’s motion to strike evidence filed by the applicants.
[2] For the reasons that follow:
(a) CanWEA is granted leave to intervene as a friend of the court on terms set out below;
(b) The Landowners are refused leave to intervene as parties, without prejudice to any application for judicial review that the Landowners may bring hereafter in respect to the impugned decision of the Minister.
(c) Ontario’s motion to strike evidence is adjourned to the panel hearing the underlying application on terms set out below.
Jurisdiction
[3] This court was designated by the Associate Chief Justice to hear intervention motions in this case pursuant to R.13.03(1).
(a) CanWEA Motion for Leave to Intervene
[4] The application concerns a decision by the Ontario Minister of the Environment to allow an appeal from a decision of the Ontario Environmental Review Tribunal. The Minister’s decision has the effect of revoking the applicant’s authority for a wind farm project.
[5] The proposed intervenor CanWEA is an industry association representing owners and developers of wind farms in Canada. CanWEA has intervened in prior cases concerning wind farms in Ontario. CanWEA has demonstrated a broader perspective than the parties and has a track record of useful participation in cases such as this. I do not accept that this is a case of “first impression” because, in prior cases, CanWEA’s motions for leave to intervene were on consent or unopposed: much as is the case with an expert witness, the track record in prior litigation can be considered when deciding the suitability of a proposed intervenor. I am satisfied that CanWEA meets the test to intervene as a “friend of the court” pursuant to Rule 13.02 and should be permitted to render assistance to the court in this case by way of argument.
[6] CanWEA shall take the record as it is and shall not repeat submissions made by parties. It may file a factum of up to 20 pages in length. The case is scheduled for a hearing of one day. The court expects the applicant and the intervenor CanWEA to split their time for oral argument between themselves such that their combined time for oral argument is no more than 2.5 hours, with an additional 15 minutes for the applicant for reply submissions.
(b) Landowners’ Motion for Leave to Intervene
[7] The Landowners are a group of persons who have leased land to the applicant for the wind farm. Construction of the wind farm is now close to completion and, therefore, the Landowners’ properties have been disturbed. If the Minister’s decision withstands the application for judicial review, then the applicant’s permit for the wind farm will remain cancelled, and the Landowners will suffer consequences as a result.
[8] All parties agree that the Landowners have a direct interest in the application: their contractual and property interests are affected.
[9] The applicant consents to the proposed intervention by the Landowners. This is relevant to the proposed intervention: if the Landowners are permitted to intervene as parties, they seek to file evidence. Responding parties will likely seek to challenge the admissibility of that evidence, and, to the extent that the evidence is admitted, responding parties may wish to file responding evidence (which, it is suggested, could be extensive). All of this could be done, of course, but not without material delay in the hearing of the application.
[10] All parties would be, in some sense, disadvantaged by material delay. However, it is only the applicant that would likely suffer “prejudice” from delay as that concept is understood in the jurisprudence. That potential prejudice has been attenuated since this application was commenced (initially the applicant was subject to substantial contractual consequences for late completion of the project, but the applicant has since received an assurance that the deadline for completion will be extended to accommodate the reasonable timing of this application). In my view, the applicant’s unqualified consent to the proposed intervention fully addresses the issue of whether it would prejudice the parties because of undue delay: it would not.
[11] Ontario and Concerned Citizens oppose the Landowners’ proposed intervention on the basis that the Landowners are not proper parties to this application. Their argument is as follows. The Landowners were entitled to participate in the proceedings before the Environmental Review Tribunal. They chose not to do so. Only parties to proceedings before the Environmental Review Tribunal were entitled to notice of the appeal proceedings before the Minister. Since the Landowners were not entitled to notice of the appeal proceedings before the Minister, as a result of their own decision not to participate before the Environmental Review Tribunal, there was no unfairness arising from the failure of the Minister to give notice of the appeal to the Landowners.
[12] This is an important point in administrative process that arises in a wide range of circumstances, particularly in those involving broad public consultation and rights of participation. Interested parties must usually self-identify at an initial stage of proceedings to be entitled to notice and participation in later stages of proceedings.
[13] The Landowners argue that their interests have changed over time, and that their reasonable decision not to participate before the Environmental Review Tribunal should not preclude their participation now. There is some force to this argument. The Landowners say that until construction began, their land was undisturbed. They had an economic interest in a flow of rent for the use of their lands, if the project went ahead, but if the project was not approved, they would be in no different position than they were before the project was initiated by the applicant. Now, however, their lands have been disrupted. Potentially extensive and expensive remedial work would be required to restore their lands if the project does not proceed, and they will suffer losses of rents and useful exploitation of their land, as farmland, in the meantime.
[14] In oral argument I suggested to parties opposing this intervention that it would be open to the Landowners to commence a fresh application for judicial review, on the basis that they had been denied procedural fairness before the Minister. I suggested that, if the Landowners did this, the court would likely order that the Landowners’ application be consolidated with this application, or order that the two applications be heard by the same panel of this court. Counsel for Concerned Citizens responded that any such application by the Landowners would likely be met with an immediate motion to quash, on the basis that the alleged unfairness arises from the legislature’s choices about who is entitled to notice at different stages of these kinds of proceedings.
[15] Counsel for Concerned Citizens also notes that the issue raised by the Landowners is entirely distinct from the fairness issues raised by the applicant. There is no risk of inconsistent decisions on these distinct issues of procedural fairness. No doubt there would be some judicial economies realized by having these matters decided by one, rather than two panels of this court, but these economies do not seem particularly material in the circumstances of this case.
[16] I consider that the arguments of Concerned Citizens have merit on this point. However, it is not for this court, on this record, to decide that the Landowners’ arguments on fairness are doomed to fail. If the Landowners wish to pursue their arguments, then they may do so, in a separate application. I expect that such an application would unfold roughly as described by counsel for Concerned Citizens – with an early motion to quash, and an exchange of substantial materials if the application is allowed to proceed. I would not foreclose an order consolidating such an application with the case at bar, or an order that they be heard together, if the timing of the two cases unfolds in a way that makes that practical, but I would not delay a hearing on the merits of the application before the court in the meantime.
[17] The Landowners asked to be permitted to intervene as friends of the court if they are not permitted to intervene as parties. I do not see how they satisfy the test for intervention as friends of the court, and the record before me does not establish that they would make a “useful contribution” to the case, beyond identifying their direct financial interests in the case (that is, beyond arguing for their interests as proper parties to an application for judicial review). In my view the Landowners should commence their own application, asserting their claim to procedural unfairness, if they wish to pursue this issue.
(c) Motion to Strike Evidence Filed by the Applicant
[18] The applicant has filed evidence that was not before the Minister, including a report obtained by the applicant in January 2019, after completion of proceedings before the Environmental Review Tribunal. The report addresses (among other things) the existence of maternal bat colonies proximate to and potentially at risk from the wind farm project. The report finds that, in respect to two potential sites for such colonies, neither are, in fact, colonized by bats.
[19] Ontario objects to this evidence on the basis that it was not before the Minister, and that it does not satisfy the Palmer test for fresh evidence: it was available and could have been put before the Minister by the applicants.
[20] The applicants have not moved to adduce this evidence as fresh evidence. They say it is admissible under two exceptions to the principles against fresh evidence on appeal:
(a) It is relevant to the issue of procedural fairness. The applicant says that it was not given notice that maternal bat colonies were an issue that needed to be addressed before the Minister, and on this basis they did not provide evidence that is inconsistent with the Minister’s findings. They place the evidence before the court to make it clear that the procedural fairness argument is not academic: the applicant was in possession of dispositive evidence on the issue, which it did not file with the Minister – and the reason that it did not file this evidence was that it was unaware the issue needed to be addressed. This argument is buttressed by the record of evidence apparently relied on by the Minister: it appears to be in a report that was not, itself, before the Environmental Review Tribunal. The applicant understood that the case it had to meet was based solely on the record before the Tribunal – a further reason why it had no reason to believe that the question of maternal bat colonies was before the Minister.
(b) It is relevant to the question of whether there was “any evidence at all” upon which the Minister could reach the conclusion that he did. I pressed counsel for the applicant on this issue and was unable to understand how “evidence to the contrary” that was not before the Minister would be of assistance in establishing that there was “no evidence at all” before the Minister to ground the decision that he reached. However, on reflection, I understand that the applicant is arguing that its failure to place the report before the Minister is premised on its understanding of the record that was before the Minister. The issue of the record before the Minister – and whether anything else might be considered by the Minister – was a contested issue in the appeal proceedings before the Minister. While I am not clear on how important the report may be on this issue, I can see how it may be relevant to this argument, and given that it will be before the panel in any event, it should be available to the applicant for the purposes of this argument.
[21] I wish to be clear, however, that the impugned evidence filed by the applicant is not going in “for the truth of its contents”, to establish facts inconsistent with the Minister’s decision. It is admitted solely for the two purposes identified by the applicant as exceptions to the principle against fresh evidence, as described above. Responding parties are entitled to respond to this evidence, but only on the basis on which the evidence has been submitted.
[22] I have already asked the court office to arrange a conference call with the parties for February 21, 2020 to address any scheduling issues arising from this endorsement. The Landowners are not required to participate in this call, given the decision denying them leave to intervene.
[23] There shall be no costs in respect to the intervention motion of CanWEA. Costs of the motion to strike evidence are fixed at $6,500, payable in the cause of the application as between Ontario and the applicant (there shall be no costs of this motion for or against Concerned Citizens in any event of the cause). If costs of the Landowners’ motion to intervene are not agreed, the parties shall make brief written submissions on a schedule to be agreed among them which has all costs materials reaching this court no later than March 20, 2020.
___________________________ D.L. Corbett J.
Date of Release: February 21, 2020
CITATION: Nation Rise Wind Farm v. Ontario, 2020 ONSC 1153
COURT FILE NO.: DC 674/19
DATE: 20200221
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Nation Rise Wind Farm Limited Partnership and Nation Rise Wind Farm GP Inc.
Appellants
- And –
Minister of the Environment, Conservation and Parks
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: February 21, 2020