CITATION: Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks, 2020 ONSC 2984

DIVISIONAL COURT FILE NO.: 674/19

DATE: 20200513

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Sachs and Favreau JJ.

BETWEEN:

Nation Rise Wind Farm Limited Partnership and Nation Rise Wind Farm GP Inc.

Applicants

– and –

Minister of the Environment, Conservation and Parks and Concerned Citizens of North Stormont

Respondents

COUNSEL:

John Terry, Jonathan Silver and Stefan Case, for the Applicants

Judie Im and Andi Jin for the Respondent, Minister of the Environment, Conservation and Parks

Eric Gillespie and Kathleen Coulter, for the Respondent, Concerned Citizens of North Stormont

Christopher Bredt and Ewa Krajewska, for the Intervenor, Canadian Wind Energy Association

HEARD at Toronto: April 17, 2020

REASONS FOR DECISION

By the Court

Introduction

[1] Nation Rise Wind Farm Limited Partnership and Nation Rise Wind Farm GP Inc. (collectively “Nation Rise”) seek judicial review of a decision of the Minister of the Environment, Conservation and Parks (the “Minister”) to cancel regulatory approval of a major wind energy project (the “Project”). On appeal from the decision of the Environmental Review Tribunal (the “ERT”) confirming regulatory approval, the Minister found that construction and operation of the Project was likely to cause serious and irreversible harm to the maternity colonies of bats, including at-risk bat species. On the basis of this finding, the Minister declined to let the Project proceed and revoked the regulatory approval.

[2] The issue of bat maternity colonies was not raised by any of the parties at the hearing before the ERT, was not discussed in the reasons of the ERT and was not raised by any of the parties in their submissions to the Minister on appeal.

[3] Nation Rise seeks to quash the Minister’s decision on the basis that it was unreasonable, that the process by which he reached the decision was procedurally unfair and that the Minister acted with a reasonable apprehension of bias. In arguing that the decision was unreasonable, Nation Rise submits, among other things, that the Minister had no statutory authority to decide the appeal on the basis of an issue that had not been raised by the parties.

[4] The Minister opposes the application, along with the Concerned Citizens of North Stormont (“CCNS”), the group that opposed the Project before the ERT, and then appealed the ERT’s decision to the Minister.

[5] The Canadian Wind Energy Association (“CanWEA”), an organization whose members include various actors in the wind energy industry, was granted leave to intervene in the application. It supports Nation Rise’s position that the Minister’s decision should be quashed.

[6] For the reasons that follow, we find that the Minister’s decision was unreasonable and that the process by which he reached the decision was procedurally unfair. Therefore, we order that his decision be quashed. In view of these findings, we do not find it necessary to deal with the argument on bias. We also find that this is one of those exceptional cases where the matter should not be remitted to the Minister for redetermination.

Background

Renewable Energy Approval

[7] In order to engage in a renewable energy project within the meaning of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”), proponents must receive a Renewable Energy Approval (“REA”) issued by the Director of the Ministry of Environment, Conservation and Parks (the “Director”). Pursuant to s. 23.1 of O. Reg. 359/09 under the EPA, proponents of Class 4 wind facilities, such as the Project, are required to submit, among other things, an Environmental Effects Monitoring Plan (“EEMP”), which sets out a plan to monitor and address potential adverse impacts on bats.

[8] Section 47.5(1) of the EPA provides that after considering an application for an REA, the Director may issue an REA, with or without conditions, “if it is in the public interest” to do so. Once issued, s. 47.5(3) states that the Director may, “on application or on his or her own initiative,” alter the terms of an REA, impose new terms or suspend or revoke the REA “if in his or her opinion it is in the public interest”.

[9] On May 4, 2018, the Director issued an REA to Nation Rise authorizing the construction, installation, use, and retiring of a wind facility located in the Township of North Stormont, United Counties of Stormont, Dundas and Glengarry. The Approval contained the following terms and conditions relating to bats:

a) “P1. The Company shall implement the Environmental Effects Monitoring Plan for the Nation Rise Wind Farm, titled, ‘Nation Rise Wind Farm, Bird and Environmental Effects Monitoring Plan’ dated July 2017, and the commitments made in the following reports included in the Application and which the Company submitted to the Ministry of Natural Resources and Forestry in order to comply with O. Reg. 359/09: [Natural Heritage Records Review Report, Natural Heritage Site Investigation Report, Natural Heritage Evaluation of Significance Report and Natural Heritage Environmental Impact Study Report].”

b) “P2. If the Company determines that it must deviate from the Environmental Effects Monitoring Plan or the Environmental Impact Study, described in Condition P1, the Company shall contact the Director, the District Manager and the Ministry of Natural Resources and Forestry, prior to making any changes to the Environmental Effects Monitoring Plan or the Environmental Impact Study, and follow any directions provided.”

c) “P3. The Company shall implement the pre-construction monitoring described in the National Heritage Environmental Impact Study described in Condition P1, for the following candidate significant habitats:

(1) Bat Maternity Colony” …

d) “P5. Based on the results of the pre-construction monitoring described in Condition P3, should any of the habitats described in Condition P3 be deemed significant, the Company shall implement the post-construction monitoring described in the Environmental Effects Monitoring Plan and the Natural Heritage Environmental Impact Study Report described in Condition P1, at the specific habitats that are found to be significant, including the following:

(2) Bat Maternity Colony” …

e) “Q1. The Company shall ensure that activities requiring authorization under the Endangered Species Act, 2007 will not commence until necessary authorizations are in place.”

[10] Condition Q1 obligates Nation Rise to comply with the requirements of the Endangered Species Act, 2007, S.O. 2007, c. 6 under which Nation Rise must implement an Operational Mitigation Plan (“OMP”) setting out protections for various animal species, including bats. The OMP for this Project, which has been filed with the Ministry of Natural Resources and Forestry, contains curtailment measures that will be implemented at the commencement of the Project’s operation. These measures involve locking (or “feathering”) turbine blades at low wind speeds, which is when bats are more likely to be active. This measure reduces the likelihood of bats colliding with spinning turbine blades.

[11] The OMP, along with the other REA conditions, requires post-construction turbine monitoring from the outset of the Project’s operation. During the bat active season, all turbines will be monitored monthly to assess bat mortality levels, and a subset of at least 30% of the turbines will be monitored twice-weekly. The monitoring set out in the OMP will continue during the first three years of the Project operation and every five years thereafter.

ERT Proceedings

[12] Once an REA is issued, any Ontario resident may appeal the issuance of the REA to the ERT. The hearing proceeds de novo. At the hearing, the ERT must consider only whether “engaging in the renewable energy project in accordance with the [REA] will cause (a) serious harm to human health; or (b) serious and irreversible harm to plant life, animal life or the natural environment” (EPA, s. 145.2.1(2)). The onus is on the appellant to satisfy the ERT on a balance of probabilities that either or both of these harms will occur (EPA, s. 145.2.1(3)). Evidence that only raises the potential for harm will not meet the onus of proof (Lewis v. Ontario (Ministry of the Environment), [2013] O.E.R.T.D. No. 70).

[13] On May 22, 2018, CCNS filed a Notice of Appeal with the ERT seeking revocation of the Director’s decision to issue the REA on the grounds that the Project would cause serious harm to human health and serious and irreversible harm to plant life, animal life, and the natural environment.

[14] On January 4, 2019, after a 10 day hearing, the ERT dismissed CCNS’s appeal. On the issue of bats, the ERT found as follows:

[187] Mr. Thomas, the Appellant’s only expert witness on this issue, was qualified to provide opinion evidence on wildlife biology and water toxicology.

[190] With respect to bats, Mr. Thomas gave evidence that the risk of bat mortality resulting from the Project was underestimated and furthermore that bats would be susceptible to barotrauma as a result of the Project. In response, Mr. Ryckman [one of the experts called by Nation Rise] provided details of the bat acoustic monitoring in the vicinity of the Project, and Dr. Reynolds [another expert called by Nation Rise], an expert on bats and the impacts of wind energy on bats, testified that the survey revealed a level of bat presence and activity in the Project site that is relatively low overall, and particularly low for SAR [Species at Risk] bats, which represented about 1% of all bat activity on site. Given that there was almost no SAR bat activity at the MET tower monitors placed at 29m and 46m off the ground, Dr. Reynolds provided his opinion that SAR bat activity is even less likely at the higher elevation of the turbine blade sweep area, and also that barotrauma does not appear to be a significant source of mortality at wind energy sites, contrary to initial studies on this issue. The Tribunal accepts Dr. Reynold’s opinion evidence on these matters, noting his extensive experience in the study of bats and wind turbines.

[191] On the basis of the testimony of Dr. Reynolds and Mr. Ryckman, the Tribunal is satisfied that the requirements under REA Condition Q1 and s. 23.20 of O. Reg. 242/08, that the Approval Holder prepare a mitigation plan and take operational mitigation steps to minimize any adverse effects of the Project on SAR bats, include curtailment measures shown to significantly reduce the risk of bat mortalities. The Tribunal finds, based on their evidence, that the proposed monitoring and mitigation measures in the OMP, EEMP and REA Conditions P and Q will reduce the low risk to bats, including SAR bats, from the Project.

[192] The Tribunal finds that the concerns raised by Mr. Thomas have been addressed, and the Appellant has not met its onus of proving that engaging in the renewable energy project in accordance with the REA will cause serious and irreversible harm to bats.

[15] During the hearing before the ERT the issue of bat maternity colonies was never raised or argued. Thus, bat maternity colonies are not discussed in the ERT’s reasons.

[16] In the reports referred to as part of Condition P1 attached to the REA, there is a reference to the fact that three “candidate” or potential bat maternity colonies had been identified – two within the Project area and one 120 metres from the Project area. In Condition P3 of the REA, Nation Rise agreed to conduct pre-construction monitoring of two of the three potential bat maternity colonies to determine, among other things, if they were significant. They also agreed to file a Pre-Construction Monitoring Report after the monitoring was complete. The third colony, the one located outside the Project area, could not be monitored since the owner of the land on which the colony was located refused to give Nation Rise access to their land.

CCNS Appeals to the Minister

[17] The EPA provides two appeal routes from an ERT decision: to the Divisional Court on a question of law or to the Minister on any matter other than a question of law. Section 145.6(2) governs an appeal to the Minister. It states:

A party to a hearing before the Tribunal under this Part may, within 30 days after the decision of the Tribunal or within 30 days after final disposition of an appeal, if any, under subsection (1), appeal in writing to the Minister on any matter other than a question of law and the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.

[18] On February 4, 2019, CCNS appealed the ERT’s decision to the Minister, asking that the Minister “cancel” the REA. In its lengthy letter seeking an appeal, CCNS set out a number of grounds for its appeal, including an argument that “proceeding with the project will have a wide range of negative impacts on the environment”. These impacts were described as an increase in carbon emissions; a change to soil conditions that could lead to landslides and contamination of ground water and wells; and the use of prime agricultural land to locate the Project. Nowhere in this letter does CCNS raise a concern about bats.

The Process Followed by the Minister During the Appeal

[19] On February 20, 2019 the Minister advised Nation Rise of CCNS’s appeal. The Minister also sent Nation Rise a copy of CCNS’s letter specifying its grounds for appeal.

[20] On April 4, 2019, the Minister set out the process he would be following in the appeal. He wished to receive submissions (accompanied by any necessary supporting materials) from Nation Rise and the Director in response to CCNS’s letter. If necessary, CCNS would be granted an opportunity to reply.

[21] In their submissions, both Nation Rise and the Director reviewed the evidence that the ERT had heard on the issues raised by CCNS regarding the Project’s negative impact on the environment. Nation Rise and the Director argued that, based on the evidence before it, the ERT’s decision disclosed no error that required intervention by the Minister. Both parties made submissions concerning the scope of the Minister’s authority on appeal, arguing that it was to be a review of the ERT’s decision, not a new hearing; that deference was owed to the ERT’s findings of fact; and that the Minister’s mandate was to focus on whether CCNS had demonstrated an error (other than an error of law) in the ERT’s decision. Both parties argued that issues that were not or could not have been raised before the ERT could not be raised on appeal. The appeal had to be decided on the evidence before the ERT, unless CCNS brought a motion to admit fresh evidence and met the test for the admission of such evidence. Both the Director and Nation Rise emphasized to the Minister that the appeal could not be viewed as an avenue for effecting broader policy change in the area of granting renewable energy approvals.

[22] Nation Rise and the Director referenced the language of s. 145.6(2) of the EPA in making their submissions on the scope of the Minister’s authority on appeal. Nation Rise argued that if the Minister found an error in the ERT’s decision that was both within his scope of review and was worthy of intervention, then he could consider the public interest in determining the appropriate remedy.

[23] The Director, in his submissions at para. 23, emphasized that s. 145.6(2) states that “‘the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal.’ Accordingly, the scope of the Minister’s review should be limited to the issues raised and the evidence heard in the hearing before the Tribunal.”

[24] CCNS filed reply submissions, largely centred on an argument that the use of the term “public interest” in s. 145.6(2) gave the Minister broad discretion to interfere with the ERT’s decision, including the ability to consider policy issues that the ERT could not consider.

[25] None of the submissions before the Minister contained any reference to bat maternity colonies. The only reference to bats was the following paragraph, contained in the Director’s submissions, which summarized part of the ERT’s decision:

13. With respect to birds and bats, the Appellant’s expert did not provide any evidence that birds or bats would be seriously harmed by the Project. He only raised questions about the various studies conducted. The Approval Holder called expert witnesses to explain how the studies were conducted and additional expert witnesses to provide an opinion on those studies and other information available and taking into account the mitigation measures that must be implemented as required by the Approvals, that there was little risk of serious impact to birds and bats. The Tribunal accepted this expert evidence as it was essentially uncontradicted.

[26] On August 29, 2019 the Minister advised the parties that he was seeking additional submissions on three specific questions: (1) whether the ERT erred in failing to determine that the Project would cause serious harm to human health, specifically with regard to noise; (2) whether the Tribunal erred in failing to determine that the Project would cause serious harm to human health and/or serious and irreversible harm to plant life, animal life and the environment, specifically with respect to stray voltage, and

3. Whether the Tribunal erred in failing to determine that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment, specifically with respect to birds and bats.

The parties were told to limit their submissions to these three questions and to provide any necessary supporting materials.

[27] In its supplementary submissions on the question of bats, CCNS criticized Dr. Reynolds’ report and the basis for that report. It argued that Dr. Reynolds did no more than conclude that there were bats in the area, although, according to him, few SAR bats. In its submissions it relied on an article from the Sarnia Observer dated August 4, 2017 that CCNS submitted stood for the proposition that the mitigation efforts being used by wind farm projects in relation to bats were ineffective. CCNS also referred to a report dated July 2016 by the Wind Energy Bird and Bat Monitoring Data Base which argued that bat mortalities caused by wind farm projects were underestimated.

[28] In its supplementary submissions, Nation Rise reviewed the evidence before the ERT concerning bats and pointed out that CCNS had misinterpreted Dr. Reynolds’ evidence. Contrary to what CCNS had said about that evidence, Dr. Reynolds had testified that the bat presence in the Project area was low. Nation Rise also objected to the use of the Sarnia Observer article as it had not been before the ERT and was not reliable evidence. With respect to the July 2016 Report, Nation Rise pointed out that it said nothing about bats or bat fatalities within the Project area.

[29] The Director also took issue with CCNS’s attack on Dr. Reynolds’ evidence and its characterization of his evidence. The Director objected to the use of the newspaper article for the same reasons as Nation Rise, but also pointed out that the article contained a passage that stated that when wind companies adopted a mitigation strategy of changing their turbine operations so that their blades were not spinning at high rotations per minute when bats are most at risk, this strategy worked well at reducing bat fatalities. Nation Rise had committed to the adoption of this strategy. With respect to the 2016 Report, the Director agreed that the Report did not speak to the Project area. Moreover, the Director argued that the evidence before the ERT indicated that “bat fatalities would be lower than the provincial average due to the lack of habitat in the surrounding area and the low level of bat presence and activity in the proximity to the Project.”

[30] None of the submissions made any reference to bat maternity colonies.

The Minister’s Decision

[31] On December 4, 2019 the Minister issued his decision. He began by summarizing his conclusion as follows:

While I agree with most of the decisions of the Tribunal, I disagree with the Tribunal’s conclusions with respect to the degree of harm that will be caused to local bat species by the project. I am therefore altering the Tribunal’s decision based on my conclusion that the project will cause serious and irreversible harm to bats and I revoke the approval.

[32] On the issue of the scope of the appeal the Minister found as follows:

In this appeal of the Tribunal’s decision I am to assess the decision from the perspective of whether engaging in the proposed renewable project in accordance with its renewable energy approval will cause: (1) serious harm to human health; or (2) serious and irreversible harm to plant life, animal life or the natural environment. This test is commonly referred to as the “harms test” and is the test that the Tribunal must apply when considering an appeal of a renewable energy approval. If I find that one or more of the concerns raised meets the harms test, then I can consider broader issues related to the public interest in deciding whether to confirm, alter, or revoke the decision of the Tribunal.

My assessment of the Tribunal’s decision also requires me to assume that the terms and conditions of the renewable energy approval will be complied with.

[33] After making these comments on the scope of the appeal, the Minister reiterated once again that “for the most part”, he agreed with the ERT’s findings on the issues it considered, and he found its decision to be “thorough and well reasoned.” He found that the “harms test” had not been met on the issues of noise or stray voltage. He then went on to consider harm to bats.

[34] On this issue, the Minister found that the harm that would result from the Project to bats was “serious and irreversible”. He based his conclusion on the fact that:

The Approval Holder studied two of three bat maternity colonies as part of its pre-construction monitoring. The third colony could not be studied due to site access issues. The two studied colonies were considered to contain significant bat habitat and the third was assumed to also contain significant bat habitat.

The evidence before the Tribunal on the bat maternity colonies, including that from the Approval Holder’s extensive field research, demonstrates in my view that while not large given the limited availability of beneficial habitat, they include colonies of Big Brown bats and Hoary bats, as well as the Little Brown bat which is listed on the Species at Risk Ontario List. The evidence also shows that (sic) project’s operation will result in the mortality of bats due to collision with turbine blades, and that this impact is likely to be more significant with non-listed bats.

In my view, this means that there will be localized harm to an already small bat population. The seriousness of this harm is increased because of the relatively small size of the species population. While it is impossible to know with complete certainty the full extent of the harm that the operation of the proposed project will have on the bat species population before the project has been operating for some years, I choose to exercise precaution in determining the seriousness of this harm and whether it will be irreversible. In my view, the harm will be both serious and irreversible to animal life given the relatively small bat population in the local area.

[35] After reaching his conclusion that the harm to bats would be serious and irreversible the Minister went on to discuss the issue of remedy. On this issue, he began by noting:

Under the EPA, I can confirm, alter or revoke the decision of the Tribunal as I consider in the public interest.

[36] The Minister then stated that while “in some circumstances” the next step in the process would be to hold a remedy hearing and receive submissions from the parties as to the appropriate remedy, he was declining to do so in this case. According to the Minister, a third round of submissions was not necessary “in light of the public interest reasons for revocation.” He also did not wish to prolong the appeal process.

[37] In terms of the public interest, the Minister stated as follows:

This requires me to balance several things in my consideration of the public interest, including the benefits of renewable energy against the harm to bats, the impact of the project on the local community, and the need for the electricity from the project. In terms of electricity need, while renewable energy is an important component of the province’s electricity grid, the project’s expanded output of up to 100 megawatts, as noted on the approval, is obviously only a small fraction of Ontario’s energy usage.

[38] The Minister went on to discuss the conditions attached to the REA. In doing so, he only referenced the P conditions, not the Q condition directed at having a mitigation plan in relation to SAR bats. According to the Minister, condition P6 only required a monitoring of 10 turbines, not all the 33 potential turbines. Condition P5 only required monitoring for two of the three “significant bat habitats.” Condition P14 only required the monitoring to continue for three years. The mitigation measures required by condition P8 only “kick in” after ten bats per turbine were known to have been killed. In his opinion, these conditions “create significant gaps in the monitoring and mitigation measures required by the approval.”

[39] Finally, the Minister concluded that even if the conditions could be amended or improved, there would still be harm to bats.

Considering this harm together in the context of the minimal contribution the project is likely to have on the electricity supply in Ontario, in my view it is not appropriate to confirm the decision of the Tribunal, but rather to amend it to revoke the approval.

Other Evidence

[40] As already noted, the conditions of the REA required Nation Rise to file a Pre-Construction Monitoring Report in relation to two of the three bat maternity colonies that it had identified as potentially significant. On January 11, 2019 Nation Rise filed its Pre-Construction Monitoring Report with the Ministry of Natural Resources and Forestry (after the ERT’s decision but before the Minister’s decision). In the Report, Nation Rise explained that it had found that the two bat maternity colonies that it had monitored were not in fact significant.

[41] This evidence was not before the Minister. It was admitted on the judicial review application not for the truth of its contents, but only for the purpose of arguing that Nation Rise had been denied procedural fairness.

The Status of the Project

[42] Nation Rise began construction on the Project in May of 2019, while the appeal to the Minister was pending. It continued construction until the Minister revoked its REA in December of 2019. According to Nation Rise, the Project is almost complete.

[43] Nation Rise commenced construction because their power purchase agreement with the Independent Electricity System Operator (“IESO”) required the Project to achieve commercial operation by March 9, 2020. The IESO had advised Nation Rise that it would terminate the agreement if commercial operation was not achieved on time.

Alleged Bias

[44] Nation Rise relies on various statements and steps taken by the current government before and since the provincial election in support of its bias argument. For example, Nation Rise submits that the IESO’s insistence on the March 9, 2020 deadline is inconsistent with the past practice of the independent electricity operator, but consistent with the Progressive Conservative Party’s agenda in relation to wind energy contracts.

[45] The Progressive Conservatives formed the provincial government following the election in June of 2018. After its election, the government cancelled the White Pines Wind Project through targeted legislation. It also directed the IESO to take all steps necessary to “wind down all FIT 2, 3, 4 and 5 Contracts where the IESO has not issued NTP [notices to proceed].” Consistent with this directive, the IESO terminated 758 renewable energy contracts.

[46] Prior to his government’s election, the Progressive Conservative MPP for North Stormont, Jim McDonell, described the Project as “unneeded” and queried when the government would cancel it.

[47] After his election, Premier Ford made statements that he would take any opportunity to get rid of all wind projects.

[48] The Minister who decided the appeal, prior to his appointment as Minister, had criticized wind projects. After he was appointed, and a few weeks before releasing his decision in the appeal, the Minister lamented during Question Period that the Liberals had “forced municipalities in rural Ontario to take these wind turbine projects […] which split communities in half.”

The Issues

[49] Nation Rise argues that the Minister denied it procedural fairness and that his decision on the merits was unreasonable.

[50] With respect to procedural unfairness, Nation Rise argues that the Minister failed to provide adequate notice that harm to bat maternity colonies was an issue on the appeal. Thus, he breached the principle of audi alteram partem - that is, the right of the applicants to address the issue in a meaningful way, with reference to material in the record. Nation Rise also argues that the failure to provide a separate hearing with respect to remedy was a denial of the right to be heard. Finally, it submits that the Minister’s decision gives rise to a reasonable apprehension of bias.

[51] With respect to the merits of the decision, Nation Rise submits that the decision was unreasonable for a number of reasons. First, the Minister had no authority to go beyond the issues raised by parties and to add new matters to the appeal. Second, the Minister applied the wrong legal test, using a precautionary approach to the consideration of the evidence, rather than determining whether the Project would cause serious and irreversible harm to bats. Third, he misapprehended important evidence and failed to take material evidence into account.

[52] Normally, a court, on a judicial review application, addresses issues of procedural fairness before considering the merits of the decision. If there is a denial of procedural fairness, the decision must be set aside, and, therefore, it may not be necessary for the court to consider the merits of the decision.

[53] In the present case, however, the Court has decided to address the merits of the decision first, as our disposition of the procedural fairness issues is more easily understood in light of our determinations as to the Minister’s statutory authority and the evidence that was in the ERT’s record that was before him.

The Merits of the Decision

The Standard of Review is Reasonableness

[54] All the parties agreed that the standard of review with respect to the merits of the Minister’s decision is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23 - 24).

[55] In Vavilov, the Supreme Court set out a detailed guide for the conduct of reasonableness review, explaining the essential nature of the inquiry at para. 85:

… a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.

Thus, in applying a standard of reasonableness, the court must focus on the reasons of the decision maker, considering both the reasoning process and the outcome (Vavilov at para. 83).

[56] CCNS argues that the Court should focus on the order, rather than the reasons, invoking the language used in a civil appeal in the courts to the effect that the appeal is from the order, not the reasons. However, we are concerned here with judicial review of an administrative decision, not a civil appeal. As the Supreme Court of Canada stated in Vavilov (at para. 84), “… where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision”, and the Court must give those reasons “respectful attention.”

The Minister Had No Authority to Add New Issues on Appeal

[57] The first issue to resolve is the reasonableness of the Minister’s determination that he had authority to consider new issues on appeal that had not been raised by the parties. CCNS did not raise any issues about bats in its initial appeal submissions. It was the Minister who raised three new issues in the August 2019 letter. One of those issues was whether the ERT had erred in failing to determine that the Project would cause serious and irreversible harm to plant life, animal life or the natural environment, specifically with respect to birds and bats.

[58] The Minister’s authority to hear and decide the appeal came from s. 145.6(2) of the EPA. It is useful to quote that provision again here:

(2) A party to a hearing before the Tribunal under this Part may, within 30 days after receipt of the decision of the Tribunal or within 30 days after final disposition of an appeal, if any, under subsection (1), appeal in writing to the Minister on any matter other than a question of law and the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.

[59] Nation Rise and CanWEA submit that the Minister has no authority to consider issues on the appeal other than those raised by the parties. Given the wording of the provision, read in the overall statutory context, he may only consider “the matter in appeal” – that is, an issue that has been raised by the appellant (here, CCNS).

[60] Counsel for the Minister and CCNS argue that this is not an appropriate interpretation of the appeal provision. In particular, counsel for the Minister focuses on the Minister’s responsibility to act in the public interest, relying on the last phrase in the provision, “the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest” (emphasis added). Counsel for the Minister also suggests that Nation Rise and CanWEA improperly treat the appeal as if it were judicial or quasi-judicial in nature, ignoring the fact that an appeal to Cabinet or to a Minister is a different exercise, one that is oriented towards policy-making rather than error-correcting.

[61] In his decision letter, the Minister did not address the question of his statutory authority to raise new issues in the appeal. Nevertheless, this Court must be satisfied that his implicit conclusion that he had such authority was reasonable in light of the statutory language. Given that he has not provided any analysis of the statutory authority, this Court must conduct the interpretive exercise that he should have engaged in.

[62] The determination of the scope of the Minister’s authority pursuant to s. 145.6(2) requires a consideration of the principles of statutory interpretation. The modern approach to statutory interpretation mandates that the words of the statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 at para. 26).

[63] It is notable that the subsection provides that a party may appeal with respect to “a matter other than a question of law”, and the Minister is empowered to confirm, alter or revoke decision as to “the matter in appeal” as he considers in the public interest. The words in quotations suggest that the Minister is to deal with the matters in appeal raised by the party bringing the appeal.

[64] In fact, the French language version of the provision confirms this interpretation, and the French version is equally authoritative (Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 65). It states,

(2) Une partie à une audience tenue devant le Tribunal en vertu de la présente partie peut, dans les 30 jours qui suivent la réception de la décision du Tribunal ou la conclusion définitive de l’appel porté, le cas échéant, en vertu du paragraphe (1), interjeter appel par écrit devant le ministre de toute question autre qu’une question de droit. Le ministre confirme, modifie ou révoque la décision du Tribunal en ce qui concerne la question portée en appel, selon ce qu’il estime dans l’intérêt public. (emphasis added)

The use of the phrase “la question portée en appel” again indicates that the appeal is limited to the issues raised by the appellant, and that the Minister does not have the authority to add new issues on his own.

[65] Moreover, the Act provides that the process before the Minister is an “appeal”. Normally that term is understood to be a review for error by another decision maker. While in some cases an appeal results in a hearing de novo, as was the case in the appeal by CCNS to the ERT, there is no suggestion in the Act that the proceeding before the Minister was other than a review of the record that was before the ERT to determine if the ERT had erred. This is in contrast to the appeal provision considered in British Columbia (Chicken Marketing Board) v. British Columbia (Marketing Board), 2002 BCCA 473, where the statute contemplated a hearing de novo on the appeal to the Marketing Board (at paras. 11-13).

[66] Indeed, the process followed by the Minister was consistent with the usual understanding of an appeal. CCNS, as the appellant, identified issues and provided submissions to which Nation Rise and the Director replied. All the parties made their submissions on the basis of the record before the ERT.

[67] Counsel for the Minister argues that appeals to a Minister are different in nature from appeals to a tribunal or a court, because they are more policy driven. Counsel submits that Nation Rise and CanWEA’s reliance on the judicial appeal model is improper, as the process before the Minister is necessarily more flexible so that he can exercise his broad discretionary authority to consider the matter before him in the public interest.

[68] Counsel for the Minister relies on passages from the 1968 McRuer Report, the Report of the Royal Commission Inquiry into Civil Rights, which suggested that appeals from administrative decisions should be to a Minister or another senior administrative officer, because an administrative decision is a policy decision (at p. 234). Reference to the McRuer Report was made in the Legislature when the ministerial appeal provision was added to the EPA in 1971 (Legislature of Ontario Debates, July 21, 1971, p. 4422).

[69] While one can look to legislative history as a guide in statutory interpretation, neither the McRuer Report nor the passage from the Debates is helpful here in interpreting what the Legislature contemplated the process would be in an appeal before the Minister. The passage in the Report was made in the context of drawing a distinction between administrative and judicial decisions in administrative law. There was no discussion about how a ministerial appeal should be conducted. That requires a consideration of the language used in the statutory provision.

[70] Moreover, the courts have moved away from making a significant distinction between administrative decisions and judicial decisions in administrative law. While the following passage from Vavilov was made in the context of considering applicable standards of review, it nevertheless provides useful guidance here:

More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes (at para. 44).

[71] Counsel for the Minister also cites a number of cases that are said to show that an appeal to or review by a Minister is different in nature from an appeal to the courts or a tribunal. In our view, these cases are distinguishable, as they arise in different statutory regimes with different statutory language than is found in the EPA provision.

[72] For example, Re Davisville Investment Co. Ltd. v. City of Toronto (1977), 15 O.R. (2d) 553 (Ont. C.A.) dealt with a petition pursuant to s. 94(1) of the Ontario Municipal Board Act, R.S.O. 1960, c. 274, which allowed any party or any person interested to “petition” the Lieutenant Governor in Council (“Cabinet”) with respect to a decision of the Ontario Municipal Board. The Court of Appeal described the powers of Cabinet in that regime as follows:

The Lieutenant-Governor in Council, answerable to the Legislature, exercises a discretionary power of control over the Municipal Board, and is not confined to the grounds stated in the petition or limited to the record before the Board. The petition does not constitute a judicial appeal or review. It merely provides a mechanism for a control by the executive branch of Government applying its perception of the public interest to the facts established before the Board, plus the additional facts before the Council. The Lieutenant-Governor in Council is not concerned with matters of law and jurisdiction which are within the ambit of judicial control. But it can do what Courts will not do, namely, it can substitute its opinion on a matter of public convenience and general policy in the public interest.

The Court of Appeal also held that the Cabinet was not confined to the grounds set out in the petition and could substitute its decision for that of the Board on public interest grounds.

[73] Counsel also relies on Re Spalding, [1955] 5 D.L.R. 374 (B.C.C.A.), which dealt with an appeal to the federal Minister of Immigration from a deportation order. Under the Immigration Act, the appeal had to be taken in a very short time frame, the Minister was not required to hold a hearing, and he had wide executive powers in his review of the decision of the official who made the order.

[74] Islands Protection Society v. British Columbia (Environmental Appeal Board) (B.C.S.C.) dealt with the availability of judicial review of a decision of the Environmental Appeal Board of British Columbia after the petitioner had unsuccessfully sought a review of the decision by Cabinet. In determining that the subsequent judicial review proceeding was not barred, Lysyk J. commented on the difference between judicial review and an application pursuant to s. 12 of the British Columbia Environment Management Act, which provided that “[t]he Lieutenant Governor in Council may, in the public interest, vary or rescind an order or decision of the board”. He also commented that the role of Cabinet was essentially a legislative or policy making role, rather than a judicial one (at para. 20). Thus he concluded that judicial review was not barred.

[75] In his decision, Lysyk J. discussed the Supreme Court of Canada’s decision in Att. Gen. of Can. v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735, a case dealing with the availability of judicial review of a decision of the Canadian Radio-Television and Telecommunications Commission (“CRTC”) pursuant to s. 64(1) of the National Transportation Act (“NTA”). It is useful to quote the provision here, as it is significantly different from the provision of the EPA in this case:

64. (1) The Governor in Council may at any time, in his discretion, either upon petition of any party, person or company interested, or of his own motion, and without any petition or application, vary or rescind any order, decision, rule or regulation of the Commission, whether such order or decision is made inter partes or otherwise, and whether such regulation is general or limited in its scope and application; and any order that the Governor in Council may make with respect thereto is binding upon the Commission and upon all parties. (emphasis added)

[76] It is noteworthy that pursuant to the NTA, the Cabinet could act on the petition of a person or company interested, as well as a party, or it could act on its own motion, with respect to an order, decision, rule or regulation. This statute gives a very broad discretion to Cabinet, in its review of the actions of the CRTC, to act in the public interest. The issue before the Supreme Court was whether the Cabinet was required to abide by rules of natural justice or a duty of fairness, and the Court held there was no duty of procedural fairness. In reaching that decision, the Court stated (at pp. 753-754):

The very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council. The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature. Parliament might otherwise ordain, but in s. 64 no such limitation had been imposed on the Governor in Council in the adoption of the procedures for the hearing of petitions under subs. (1).

This conclusion is made all the more obvious by the added right in s. 64(1) that the Governor in Council may “of his motion” vary or rescind any rule or order of the Commission. This is legislative action in its purest form where the subject matter is the fixing of rates for a public utility such as a telephone system.

[77] In contrast, s. 145.6(2) of the EPA does not deal with a petition to or a review by Cabinet. Moreover, its language constrains the Minister more clearly than the language in the cases discussed above. It speaks of an “appeal”, not a “petition” or a “review”. The appeal must be launched by a party, and the party must raise matters other than a question of law. If no appeal is launched, the Minister has no authority to interfere with the decision of the ERT. This does not suggest that the provision gives him a broad policy role in reviewing a decision of the ERT.

[78] Moreover, the Minister does not have a broad discretionary power to act in the public interest when considering an appeal, as counsel submitted. The Minister can only revoke, vary or affirm the decision, in the public interest, in respect of “a matter in appeal”. As the Minister himself stated in his decision letter, on an appeal, he must first consider the harms test, and only if the harms test is met can he consider the public interest. At p. 3 of his decision, he states,

If I find that one or more of the concerns raised meets the harms test, then I can consider broader issues related to the public interest in deciding whether to confirm, alter, or revoke the decision of the Tribunal (emphasis added).

Thus, the language of the provision - and of the decision letter - does not suggest a broad ranging power of the Minister to engage in policy making throughout the appeal process. It is at the remedial stage - when he is determining whether to overturn or amend the ERT decision because he disagrees with the treatment of the harms test - that he engages in a public interest analysis.

[79] Counsel for the Minister submits that it is necessary for the Minister to act to protect the public interest at the appeal stage. However, the language of the provision does not support this reading. Nor is the public interest threatened if the Minister is unable to raise issues of his own accord on the appeal.

[80] The public interest was a consideration throughout the REA approval process. As set out earlier in these reasons, the REA is issued only if the Director, an official in the Ministry of the Environment, Conservation and Parks, is satisfied that the applicant has met the regulatory requirements, and he or she believes that it is in the public interest to issue the REA (s. 47.5(1) of the EPA). He or she can also impose terms and conditions on the REA if, in his or her opinion, it is in the public interest (s. 47.5(2)).

[81] A resident of Ontario can then appeal to the ERT, but only on the basis that the issuance of the REA will cause the harms set out in s. 145.2.1(2). The appeal at the ERT is a new hearing, and the onus to prove the harms is on the appellant. The Minister is then the third level of decision making, determining an appeal on a matter other than a question of law pursuant to s. 145.6(2).

[82] If there has been no error by the ERT, based on the concerns the appellant has raised, this does not leave the public interest inadequately protected. Under the statutory scheme, the Director has an ongoing power to review the REA on the grounds of the public interest, on an application or on his or her own initiative (EPA, s. 47.5(3)), and to alter the terms and conditions, add new terms and conditions, or revoke the REA. In addition, the Minister or the Legislature may have regulatory or legislative powers that allow them to pursue policies that lead to the cancellation of wind energy projects. However, the wording of s. 145.6(2) constrains the scope of the Minister’s powers to act in the public interest in the context of an appeal under that provision.

[83] The analysis to this point is sufficient to show that the Minister’s interpretation of s. 145.6(2) is unreasonable. However, there is a further indication that the Minister’s decision was unreasonable – namely, its inconsistency with the past practice with respect to ministerial appeals and the lack of explanation for the process undertaken. The Director, in his initial submissions to the Minister in the appeal, stated that “the scope of the Minister’s review should be limited to the issues raised and the evidence heard in the hearing before the Tribunal” (at para. 23). He cited Bovaird v. Director, MOECC, a ministerial decision dated April 15, 2014, which states:

Accordingly, the Minister’s jurisdiction on appeal is restricted to matters that could have been considered by the ERT in the REA hearing. If the Minister were to determine that engaging in the Project in accordance with the REA would cause the requisite degree of harm to human health or the environment, the Minister could alter or revoke the ERT’s decision as the Minister considered in the public interest.

The Minister, in that case, went on to consider only the issues raised by the appellants.

[84] Other decisions of the Minister have repeated the same language and based their decision on the issues raised by the appellant: for example, Mothers Against Wind Turbines v. Director, Ministry of the Environment and Climate Change (December 17, 2015); Cham Shan Temple v. Director, Ministry of the Environment and Climate Change (March 7, 2016); Assn. to Protect Amherst Island v. Director, Ministry of the Environment and Climate Change (April 19, 2018).

[85] The majority in Vavilov discussed the relevance of past practice of an administrative decision maker in determining the reasonableness of a decision (at paras. 129 - 131). The Supreme Court stated that “[w]here a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.” Here, the Minister has provided no justification for his departure from the past practice adopted by other Ministers in appeals from the ERT with respect to an REA.

[86] CCNS argues that it is too late now for Nation Rise to raise the issue of the Minister’s authority to add new issues in the appeal. More precisely, CCNS argues that Nation Rise, having responded to the Minister’s request for further submissions on harm to animal life, including birds and bats, and having raised no objection, is now precluded from raising the issue of his authority. It has waived the right to do so.

[87] We disagree. The rule of law requires that the Minister have the statutory authority that he purports to exercise. As the Supreme Court of Canada stated in Vavilov (at para. 109),

Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it.

Again, at para. 110, the Supreme Court said,

What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting.

[88] Finally, CCNS relies on R. v. Mian, 2014 SCC 54 for the proposition that an appellate court can raise issues on an appeal that were not raised by the parties, and so too can the Minister.

[89] Mian is a criminal case dealing with the powers of appellate courts. The Supreme Court held that an appellate court, in a rare case, has jurisdiction to raise a new issue not raised by a party on appeal. However, it should do so only with adequate notice to the parties and in circumstances where failing to do so would risk an injustice (at paras. 30, 41).

[90] In the present case, the Minister’s statutory authority is restricted by the wording of s. 145.6(2). Moreover, he did not indicate that he was raising new issues because he felt there was a risk of injustice if he failed to do so. The appellant, CCNS, was represented by counsel, and it made detailed submissions. It did not raise the issue of bats.

[91] The Minister unreasonably concluded that he had the authority to add new issues on the appeal, given the language of s. 145.6(2), when read in the context of the REA approval process in the EPA.

The Minister Applied the Wrong Legal Test on the Appeal

[92] In the event that we are in error with respect to the Minister’s authority to raise new issues, we will discuss the other issues raised by Nation Rise.

[93] First, Nation Rise argues that the Minister applied the wrong legal test on appeal. The Minister was required to determine whether the ERT erred in finding that no serious and irreversible harm to bats would be caused by the Project. Before the ERT, the onus was on CCNS to prove that there would be both serious and irreversible harm on the civil standard of a balance of probabilities.

[94] The Minister concluded that there would be harm to Big Brown bats, Hoary bats and particularly Little Brown bats (which are considered to be a species at risk or “SAR”) in the vicinity of the Project. He then appears to adopt a precautionary approach, as he stated,

While it is impossible to know with complete certainty the full extent of the harm that the operation of the proposed project will have on the bat species populations before this project has been operating for some years, I choose to exercise precaution in determining the seriousness of this harm and whether it is irreversible. In my view, the harm will be both serious and irreversible to animal life, given the relatively small bat species populations in the local area. (emphasis added)

[95] The harms test requires the ERT and then the Minister on appeal to determine whether serious and irreversible harm “will” be caused by a project, not whether a project “might” cause harm. Indeed, the ERT has held that a precautionary approach does not apply in the determination of the harms test, although it might be a consideration in determining remedy if the harms test is met (see Erikson v. Director, Ministry of the Environment, Case Nos. 10-121/10-122 at pp. 121-22). The harms test requires an appellant before the ERT to prove that a project will cause serious harm, not that there is a threat of harm.

[96] Like in Erikson, the ERT in the present case stated that the onus of proof is not met by the appellant showing a potential for harm. Thus, the Minister erred in the legal test he applied. Moreover, he failed to justify his use of the precautionary test in light of the statutory language respecting the harms test.

[97] CCNS submits that the Minister did not use a precautionary approach, and instead, that he properly set out the harms test earlier in his reasons. We note that counsel for the Minister does not take this position. Rather, counsel argues that the Minister had the discretion to exercise precaution and to take a conservative approach to the evidence.

[98] In our view, the Minister erred in law in finding harm on the basis of a precautionary approach. His task was to consider the evidence before the ERT and determine whether the ERT erred in finding that the harms test was not met, a test that required a determination that the Project “will” cause both serious and irreversible harm to bats.

[99] Moreover, the Minister made a further legal error, as he never analyzed the second component of the harms test. The effects of the Project on the bat species must be serious, and they must be irreversible. The Minister made mention of irreversibility in the form of a bald conclusion, but he never discussed why the harm to bats was irreversible, given the evidence.

[100] This is not a case like Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269, where the Court of Appeal held that the ERT made no error in focusing only on the issue of irreversibility. The Court concluded that the ERT was aware that there were two factors to be considered – serious harm and irreversible harm. However, there was no need for the ERT to discuss “serious harm”, given that it was clear there was serious harm to the species at issue, the Blanding’s turtle (at para. 52).

[101] In the present case, it was incumbent on the Minister, having found that serious harm would be caused to bats, to then consider the mitigation efforts that Nation Rise was proposing in order to determine whether these could reverse any harm. His failure to do so renders his decision unreasonable.

The Minister Misapprehended the Evidence and Failed to Consider Material Evidence

[102] In making his decision, the Minister was required to consider the evidence before the ERT and contained in the factual record. As the Supreme Court stated in Vavilov (at para. 126), “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” In the present case, the Minister both misapprehended material evidence and failed to consider material evidence with respect to bat maternity colonies.

[103] First, the Minister stated that Nation Rise had studied two of three bat maternity colonies as part of their pre-construction monitoring, while the third could not be studied because of lack of access. He stated that the two studied colonies “were considered to be significant bat habitat”, while the third was assumed to be significant bat habitat. This was a misapprehension of the evidence.

[104] The Bird and Bat Environmental Effects Monitoring Plan, dated July 2017, discusses additional pre-construction monitoring at s. 3.0. It states,

several candidate significant wildlife habitats have been identified, and subsequently treated as significant with a commitment for additional pre-construction surveys to be undertaken during the appropriate season prior to any construction activities, if site access to the habitat is granted” (emphasis added).

The key word here is “candidate”. Table 1, Summary of Confirmed Significant or Treated as Significant Bat and Bird Wildlife Habitats, includes three bat maternity colonies. An asterisk beside the two colonies mentioned in the Minister’s decision states, “[o]nly if these habitats are determined to be significant through pre-construction surveys described in the Nation Rise Wind Farm NHA Environmental Impact Study”. With respect to the third colony, to which there had been no access, the asterisk states,

These habitats have been treated as significant. The significance of these habitats could not be evaluated as site access was denied, and therefore no site specific results could be collected.

[105] Condition P3 of the REA requires the pre-construction monitoring described in the Natural Heritage Environmental Impact Study Report for “candidate” significant habitats, including the three bat maternity colonies. Condition P5 deals with the situation where such habitats are deemed significant after pre-construction monitoring. According to Condition P5, the post-construction monitoring described in the Environmental Effects Monitoring Plan and the Natural Heritage Environmental Impact Study Report must be undertaken in respect of those habitats found to be significant.

[106] While a Natural Heritage Pre-Construction Monitoring Report was obtained after the Minister’s decision, in January 2019, that report is not before this Court for the truth of its contents, and we will not deal with its findings. The point here is that the Minister erred in finding, based on the evidence before him, that there were significant bat maternity colonies. There were not. There were only potentially significant bat maternity colonies. Two of those colonies were required to be monitored further, and the results of that monitoring, including whether the colonies were actually found to be significant, were to be reported to the government prior to commencing construction of the Project.

[107] Second, the Minister failed to address the evidence in the record dealing with mortality to bats, and he did not explain the evidentiary basis for his conclusion that the Project would cause serious bat mortality. In his decision, the Minister stated that the evidence showed that the Project would cause mortality to bats due to collision with wind turbines, and the impact would likely be more significant with non-listed bats. He also concluded that there would be more localized harm to an already small bat population.

[108] The evidence about bats was summarized in the ERT decision. CCNS presented evidence from Philippe Thomas, who was qualified to give opinion evidence on wildlife biology and water toxicology. He was of the opinion that the risk of bat mortality from the Project was underestimated. He had done no testing, and referred to literature in support of his views.

[109] Nation Rise led evidence from Andrew Ryckman, a wildlife biologist, who testified about the bat acoustic monitoring done in the vicinity of the Project. More importantly, Dr. Scott Reynolds gave evidence, and he was qualified as an expert on bats and the impact of wind energy projects on bats. He stated that the “level of bat presence/activity at the Project site is relatively low overall, including in particular the SAR bat species”. He also concluded that the site “is not an important or high use area for bats.” He noted that the site was primarily open agricultural fields, and these are not the preferred roosting or foraging habitat for bats, and particularly the SAR bat species.

[110] Dr. Reynolds also discussed the monitoring surveys that had been done at the site. These included a full season of acoustical surveys for approximately 150 consecutive nights and monitoring on two towers in the area. The surveys showed “relatively low bat activity”, largely of Big Brown bats and Hoary bats. The level of SAR bat activity was “very low” (about 1% of all bat activity on the site).

[111] In his witness statement at para. 20, he commented

Considering the landscape and habitat at this Project (predominantly agricultural fields), the acoustic monitoring results and the ecology of the SAR bats (little brown bats usually fly low to the ground), the mortality risk to SAR bats at this Project is low even before consideration of the OMP. The risk is even lower taking the OMP measures into account. There is unlikely to be SAR mortality at this Project in my view (emphasis added).

He concluded his witness statement, “I do not expect this Project to impact the population viability of any migratory (or other) species of bats.”

[112] The Minister failed to address this evidence, which was not contradicted and was accepted and relied upon by the ERT. CCNS argues that the Minister could have preferred other evidence, such as that of Mr. Thomas (although we note that CCNS did not rely on Mr. Thomas’ evidence in its supplementary submissions, but rather took issue with the ERT’s reliance on Dr. Reynolds’ evidence).

[113] However, the Minister does not justify his decision on the basis that he preferred Mr. Thomas’ evidence, nor explain why he concluded that the ERT erred in finding that there was not serious and irreversible harm to bats, given the evidence before it. A reading of the Minister’s decision leads to the conclusion that he has misunderstood some key evidence, and more importantly, that he has ignored the significant evidence of the only witness who was an expert on bats.

[114] Third, the Minister misapprehended the evidence with respect to Nation Rise’s monitoring plan and the mitigation steps that were to be undertaken. He also failed to take into account the impact of the mitigation and monitoring aspects of the Project on the local bat populations in determining whether there would be serious and irreversible harm.

[115] The Minister discussed the mitigation and monitoring aspects only in the part of his decision dealing with remedy. However, the mitigation and monitoring aspects were also relevant to the determination of whether there would be serious harm to bats and whether the Project would cause irreversible harm. The Minister failed to consider this evidence in relation to the harms test, as he should have done.

[116] Moreover, when the Minister considered the mitigation and monitoring aspects of the Project, he misapprehended the evidence. He concluded that the measures proposed by Nation Rise contained “significant gaps”. His discussion focused on the P conditions of the REA respecting monitoring. However, he ignored condition Q1 in the REA, which requires the applicants to implement the OMP. The OMP requires additional mitigation and monitoring activities. For example, while the Minister was concerned that Nation Rise was going to monitor only ten turbines for bat mortality, the OMP requires that all turbines be monitored for bat mortality during the bat active season. The Minister also fails to discuss the proposed mitigation measures, such as the feathering of the blades during the night hours when wind speeds are low in the season when the bats are active.

[117] In oral argument, CCNS submitted that the Minister did not need to consider the OMP, because the OMP had not yet been approved. However, the Minister did not give this as a reason for ignoring it. The Director, in his submissions to the Minister, had referred to the OMP measures positively, and the ERT had taken it into consideration.

Conclusion on the Merits of the Decision

[118] The Minister’s decision was unreasonable because the Minister acted without statutory authority in raising new issues on the appeal.

[119] Even if he had the authority to do so, he applied the wrong legal test by taking a precautionary approach rather than determining whether the ERT erred when it held that CCNS failed to meet its onus under the harms test. Finally, the Minister made factual conclusions that were not supported by the evidence in the record, and he ignored material evidence about the level of bat activity, the low level of risk to the bat colonies in the area, and the efficacy of the proposed mitigation and monitoring plans that were a condition of Nation Rise’s REA.

[120] While review on a standard of reasonableness requires deference to the administrative decision maker, this is a case where the Minister’s decision is not reasonable and does not deserve deference. The decision does not meet the requirements of transparency, justification and intelligibility, as the Minister has failed to adequately explain his decision. Furthermore, the outcome is not within a reasonable range, given the governing statutory provisions, the facts as established in the record, and the numerous deficiencies in the decision. Therefore, the decision should be quashed.

Procedural Fairness

The Standard of Review

[121] Nation Rise and CanWEA argue that the procedural fairness of the decision-making process is to be reviewed on the correctness standard. The Minister submits that no standard of review applies, and the Court “must simply determine whether the procedure followed was fair.”

[122] CCNS argues that the reasonableness standard should be applied to any questions regarding the fairness of the decision-making process. According to CCNS, Vavilov sets out the specific questions for which a correctness review is required. Procedural fairness was not one of them. Therefore, the presumption of reasonableness applies.

[123] We disagree. CCNS’s position that this Court should afford deference to the decision-maker on procedural fairness issues misses a fundamental aspect of the Vavilov framework. At para. 23, the Vavilov majority writes that the presumption of reasonableness applies “[w]here a court reviews the merits of an administrative decision”, and distinguishes such a review from “a review related to a breach of natural justice and/or the duty of procedural fairness”. Therefore, the presumption of reasonableness does not apply to questions of procedural fairness.

[124] CCNS’s position is also inconsistent with the case law. For the most part, at the Divisional Court and elsewhere, these issues are either reviewed on the correctness standard, or it is said that no standard of review applies (see e.g. Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 (Div. Ct.) at para. 30 [correctness]; Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at para. 46 [no standard of review]).

The Minister Breached Procedural Fairness in the Manner in which He Dealt with the Issue of Bat Maternity Colonies

The Position of the Parties

[125] Nation Rise submits that even if the Minister had the statutory authority to raise the issue of bat maternity colonies on his own initiative, he did not do so fairly. The issue of bat maternity colonies was not raised by any party at the ERT hearing or on the appeal to the Minister. It was not addressed in the ERT’s reasons. The Minister did not indicate to the parties that bat maternity colonies should be addressed by them in their submissions on the appeal. Had the Minister properly notified the parties that this was a live issue, Nation Rise would have drawn the Minister’s attention to the Pre-Construction Monitoring Report showing that the two bat maternity colonies that were studied further were found not to be significant. The Minister’s failure to give notice that the presence of the maternity colonies was a significant issue deprived Nation Rise of the opportunity to adduce this evidence and make submissions on it. Furthermore, the Minister acknowledged that he relied on two reports (the Natural Heritage Site Investigation Report and the Natural Heritage Evaluation of Significance Report) that were not part of the record before the ERT, nor submitted by the parties during the appeal.

[126] The Minister submits there was no breach of procedural fairness in the manner in which he dealt with the issue of bat maternity colonies. First, the Minister argues that the content of the duty of procedural fairness in this context is minimal. According to the Minister, it is well-established that ministerial decisions, particularly those that engage public interest considerations, will attract relatively low levels of procedural fairness. Moreover, the EPA does not prescribe a particular procedure for hearing appeals, other than that the appeal must be in writing. Therefore, the Minister had discretion over procedural matters. The Minister’s chosen procedures should be given weight by a court that is tasked with determining the content of the duty of procedural fairness. The Minister also submits that Nation Rise was given the chance to be heard. The Minister asked for submissions on risks to the bat population. The Minister was not required to be more specific. Reports on a project’s impacts on bat habitats are a required part of the REA approval process. The Reports that the Minister accessed were prepared for Nation Rise and Nation Rise was aware that they identified three potentially significant bat habitats. Furthermore, other reports that were before the ERT contained the same information. Additionally, the hearing before the ERT proceeded on the basis that the three identified bat maternity colonies were significant. On the appeal to the Minister, Nation Rise made a strategic choice not to file the Pre-Construction Monitoring Report and must live with the consequences of that choice.

[127] CCNS’s submissions echo those of the Minister, with particular emphasis on the fact that when identifying live issues in an appeal, in this case harm to bats, the Minister should not be required to “parse out every issue into every subcategory that could become part of a decision.”

Analysis

[128] In Vavilov at para. 77 the Supreme Court confirmed that “[t]he duty of procedural fairness in administrative law is “‘eminently variable’, inherently flexible and context-specific”. The non-exhaustive list of factors that inform the content of that duty include “(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or the individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself” (the “Baker factors”).

(i) The Nature of the Decision Being Made and the Process Followed in Making It

[129] In this case the Minister submits that the nature of the decision being made was consistent with minimal procedural fairness as it was a ministerial decision closer to the policy end of the spectrum. In Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602 at 628, Dickson J., as he was then, found that this rule applies to “purely ministerial decision[s]”. However, such decisions were distinguished from those of a judicial or quasi-judicial nature in which individuals were entitled to substantial procedural fairness (ibid at pp. 628-629).

[130] According to the Minister, the use of the phrase “in the public interest” in s. 145.6(2) makes it clear that the “appeal” to the Minister was not to be considered judicial or quasi-judicial in nature. We have rejected this submission in dealing with the Minister’s authority to raise new issues on the appeal. Further, the Minister’s decision makes it clear that in deciding the issue of whether the “harms test” had been met he did not consider the public interest.

(ii) Nature of the Statutory Scheme

[131] The Minister’s appeal is the last appeal provided for in the statutory scheme. According to Baker, this supports the imposition of a higher standard of procedural fairness.

(iii) Importance of the Decision to the Individual(s) Affected

[132] The Minister’s decision is an important one – both to the proponent of the Project (Nation Rise) and to the appellant before the Minister (CCNS). This too supports a higher standard of procedural fairness.

(iv) Legitimate Expectations of the Persons Challenging the Decision

[133] Both the past practice of the Minister and the proposed procedure outlined by the Minister in this case gave rise to a legitimate expectation on the part of all parties that they would have the right to notice of the issues that were of concern and the opportunity to meaningfully address those issues.

(v) Choice of Procedure Followed by the Minister

[134] The Minister submits that deference should be given to his choice of procedure because the procedures on appeal are not constrained by statute (other than the requirement that the appeal be in writing). However, the Minister, like other administrative decision-makers, is still required to comply with common law duties of fairness, unless those rules have been ousted by express statutory language or by necessary implication (which they have not) (Re Webb and Ontario Housing Corporation (1978), 22 O.R, (2d) 257 (C.A.); Supermarchés Jean Labrecque Inc. v. Québec (Tribunal du travail), 1987 SCC 19). The common law duties of fairness include the duty to give notice and the rule of audi alteram partem, which affords all parties the right to be heard on the salient issues of the case.

[135] A weighing of the Baker factors leads to the conclusion that the Minister’s duty of procedural fairness was more than minimal. It at least included the obligation to give the parties meaningful notice of the significant issues and the opportunity to address those issues

[136] In this case CCNS and the Minister argue that Nation Rise was given notice of and the right to be heard on the issue that the case was decided on ̶ bat maternity colonies ̶ because the Minister specifically asked for submissions on bats. This submission ignores the fact that the parties were to restrict their submissions to the errors committed by the ERT, and nowhere in the ERT’s reasons or in the evidence of the experts heard on the issue of bats was the issue of bat maternity colonies discussed in relation to whether the Project would cause serious and irreversible harm to bats. Furthermore, the issue of bat maternity colonies was neither raised nor discussed by any of the parties in their submissions to the Minister. Therefore, how can it fairly be said that Nation Rise knew or ought to have known that the Minister might decide the appeal because of a concern about bat maternity colonies? Finally, the argument that Nation Rise made a “strategic” decision not to file the Pre-Construction Monitoring Report makes no sense, given the contents of that report. In fact, given that the Report addresses the issue of bat maternity colonies, the fact that the Report was not filed supports Nation Rise’s position that it did not have proper notice of the issue.

[137] Bat maternity colonies turned out to be the most significant issue in the appeal. In our view the Minister breached his duty of procedural fairness when he failed to give Nation Rise notice of or the opportunity to be heard on the question of bat maternity colonies.

The Minister Breached Procedural Fairness in the Manner in which He Dealt with Remedy

The Position of the Parties

[138] Nation Rise and CanWEA submit that the Minister breached procedural fairness when he failed to give the parties an opportunity to be heard on remedy. According to Nation Rise, a decision-maker must generally give the parties notice about potential remedial options and a chance to make submissions on the issue before ruling on the remedy (see Agrium Vanscoy Potash Operations v. USW, Local 7552, 2013 SKQB 445, where the Saskatchewan Court of Queen’s Bench quashed an arbitrator’s remedial order in the absence of submissions on remedy). In Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2014 ONSC 974 (Div. Ct.), an appeal to the Divisional Court from the ERT, this Court set aside the decision of the ERT to revoke an REA, because the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without submissions from the parties. On further appeal (2015 ONCA 269), the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy and observed that “parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits” (para. 21). This principle applies in an appeal to the Minister.

[139] The Minister submits that he did not need to request further submissions from the parties on remedy, because he may decide remedies as he “considers in the public interest,” and decisions within the realm of “public policy” require minimal procedural fairness. Additionally, the Minister notes that Nation Rise had an opportunity to make submissions on remedy in response to CCNS’s submissions, in which CCNS requested that the REA be “cancelled”. The Minister further argues that the cases on which Nation Rise and CanWEA rely are distinguishable because the content of procedural fairness owing in an ERT hearing is not the same as the content of procedural fairness owing in a ministerial appeal.

[140] CCNS adds that Nation Rise did in fact make submissions on remedy. However, in doing so, it did not propose an alternative remedy or suggest that any remedy should be considered after a hearing on the merits. Further, unlike in Ostrander, there was no longer a broad and varied range of issues because the appeal to the Minister was focused.

Analysis

[141] The Minister did not seek submissions on the question of remedy because of his view that a “third round of submissions were not necessary in light of the public policy reasons for revocation,” and because he did not wish to prolong the process.

[142] As noted by Nation Rise, this Court has held that the ERT must not only solicit submissions on remedy, but that it is also incumbent upon it to do so only after it has delivered a decision on the substantive merits. Ostrander involved an appeal under the EPA from a decision of the ERT to the Divisional Court. The Divisional Court set aside the ERT’s decision to revoke an REA and held that the ERT failed to accord the parties procedural fairness by deciding the appropriate remedy without giving the parties an opportunity to address remedy. On further appeal, the Court of Appeal upheld the Divisional Court’s finding that the ERT erred in how it dealt with remedy (at paras. 96-97):

[T]he 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….

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.

[143] As the Court of Appeal noted in Ostrander, in the context of an appeal under the EPA, parties are not capable of providing meaningful submissions on remedy in the absence of a decision on the substantive merits.

[144] While the Minister and CCNS argue that Ostrander is distinguishable and that determinations as to procedural fairness owing in an ERT appeal cannot inform the procedural fairness owing in a ministerial appeal, there is no reason why this should be so.

[145] It is not only the Minister who is directed to consider the “public interest” in making its decisions; the Director is too. Moreover, while the EPA does not contain a specific statutory direction that the ERT is to consider the public interest in its remedial decisions, s. 145.2(1) provides as follows:

Subject to sections 145.3 and 145.4, a hearing by the [ERT] under this Part shall be a new hearing and the [ERT] may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the [ERT] considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the [ERT] may substitute its opinion for that of the Director.

[146] As found by the ERT in Prince Edward County Field Naturalists v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 25 at para. 51 (the case relied upon by CCNS), the wording of this section puts the ERT “in the shoes of the Director” and, thus, it “may consider matters that the Director may consider in respect of the public interest.” Thus, the fact that the statute provides the Minister with the explicit ability to consider the “public interest” is not a reason to distinguish the procedural fairness obligations of the Minister from those of the ERT, which is implicitly given the same authority on the issue of remedy.

[147] CCNS was clear about the remedy it was seeking – revocation. Nation Rise in its submissions to the Minister did make the statement that, given the wording of the statute, the Minister did not have the authority to revoke or alter the REA. However, it did not argue its position on whether the REA should be revoked, and it did not and could not make a meaningful argument on what alternate remedy the Minister could and should impose until such time as it knew the Minister’s view as to whether there had been an error in the ERT’s decision and, if so, what the nature of that error was.

[148] The inability of Nation Rise to meaningfully address remedy until it knew the Minister’s conclusion that the “harms test” had been met, and why, is apparent on the facts of this case. The Minister concluded that the harm at issue could not be mitigated by the conditions in place. He did so for a number of reasons, some of which have already been addressed.

[149] The Minister concluded that the “proposed operational mitigation measures […] only kick in after a significant number of bats, at a rate of ten per turbine per year, are known to have been killed”. If Nation Rise had been given the opportunity to address this concern, it could have pointed out that, in fact, the OMP required under condition Q provided that the mitigation measures would be implemented as soon as the Project began to operate.

[150] The Minister also found that condition P6 only required monitoring at a minimum of ten turbines, not at all thirty-three turbines. Again, if Nation Rise had been given notice of this concern, it could have pointed out that mitigation measures implemented to protect “Little Brown Myotis [bats]” required that each turbine be monitored monthly during the period from May to September, the period when mortalities, which were not anticipated in any event, may occur. Further, a subset of at least thirty percent of the turbines would be monitored twice weekly from May 1^st to October 31^st.

[151] Finally, the Minister found that condition P14 only required that monitoring continue for the first three years. In fact, the OMP required that mortality monitoring specific to “Little Brown Myotis” occur for the first three years and every five years thereafter. If the monitoring in the first three years determined that there were negative impacts to the species, then further monitoring would be considered in years 4 to 6.

[152] Nation Rise also suggested in oral argument that it might have suggested further mitigation measures as an alternative to cancellation had it had an opportunity to do so – for example, curtailing the Project’s operation through the months when the bats are active.

[153] These issues go to the reasonableness of the Minister’s decision, but they also illustrate how Nation Rise could not make meaningful submissions on remedy until it knew the Minister’s concerns.

[154] For these reasons we find that the Minister did breach procedural fairness when he failed to give Nation Rise the right to make submissions on remedy after he had reached his decision that the “harms test” had been met.

Reasonable Apprehension of Bias

[155] Given our conclusions on the merits and the denial of procedural fairness because of the lack of notice, we need not address the issue of reasonable apprehension of bias.

Remedy

[156] The decision of the Minister must be set aside. Nation Rise argues that the matter should not be remitted to the Minister. We agree.

[157] In Vavilov, at para. 141, the majority of the Supreme Court emphasized that in the normal course, where a matter has been reviewed on a reasonableness standard, the case should be remitted to the original decision maker to be decided afresh in accordance with a court’s reasons. However, at para. 142, the majority stated that sending the matter back may not be appropriate or necessary in a number of circumstances:

However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose … Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55.

[158] In this case, we find that there is no utility to sending the matter back to the Minister and that there is some urgency in finally resolving the issues between the parties.

[159] As reviewed above, we found that the Minister’s decision was not reasonable for a number of reasons, including that he did not have the authority to raise the issue of bat maternity colonies given that CCNS had not raised that issue as a ground of appeal, and that the evidentiary record did not support the Minister’s conclusion of serious and irreversible harm to bats. In the circumstances, there would be no utility in sending the matter back to the Minister because the outcome of the appeal would be inevitable. Given that the Minister did not have the authority to decide the appeal on an issue that was not raised by the parties, there would be no point in sending the matter back to give the Minister an opportunity to cure the defects in the decision related to the bat maternity colonies.

[160] We would also reach this decision on remedy even if we had concluded that the Minister had the authority to raise the new issue of harm to bats and bat maternity colonies on the appeal. On the record before him, including the lack of evidence to contradict the expert evidence of Dr. Reynolds with respect to bat mortality, a reasonable decision maker could not conclude that the Project would cause serious and irreversible harm to bats.

[161] In his decision, the Minister made clear that the only basis on which he revoked the REA was his finding with respect to the bat maternity colonies. He explicitly stated that he found that the ERT decision was “thorough and well reasoned”, and that he saw no errors in the ERT’s decision on the issues raised by CCNS with regards to stray voltage and noise modeling. Therefore, other than the bat maternity colony issue, which he was not permitted to consider and on which he misapprehended the evidence, there would be no other valid grounds arising from CCNS’s appeal for the Minister to reconsider if we were to remit the matter back to him.

[162] In addition, as referred to above, Nation Rise faces a deadline for completion of the Project that has recently passed. The IESO had advised Nation Rise that it would terminate the agreement if commercial operation was not achieved on time. If the matter is sent back to the Minister for reconsideration, there is a real risk that even if the Minister ultimately dismissed CCNS’s appeal, the Project would be cancelled by IESO. Notably, the respondents did not put forward any evidence to counter Nation Rise’s evidence of urgency.

[163] Accordingly, while the usual remedy is to send a matter back to the original decision maker to be decided in accordance with the Court’s reasons, we find that this is a rare case in which the Minister’s decision should be quashed and the decision of the ERT should be reinstated.

Conclusion

[164] For the reasons above, the application for judicial review is granted. The Minister’s decision is thereby quashed and the ERT’s approval of the REA reinstated.

[165] The parties have agreed with respect to costs. Nation Rise shall have costs of the application payable by the Minister in the amount of $126,500 all inclusive. This includes the costs of the Minister’s motion to strike evidence, heard on February 10, 2020, which were fixed by Corbett J. at $6,500 payable in the cause.

[166] In addition, CCNS shall pay costs to Nation Rise in the amount of $60,000 all inclusive.

[167] Finally, Nation Rise shall pay $12,500, all inclusive, to CCNS, representing CCNS’s costs on Nation Rise’s motion to stay the Minister’s decision.

Swinton J.

Sachs J.

Favreau J.

Released: May 13, 2020