SUPERIOR COURT OF JUSTICE – ONTARIO

(COMMERCIAL LIST)

COURT FILE NO.: CV-13-10179-00CL
DATE: 20130802

RE: DUFFERIN WIND POWER INC., Applicant

AND:

CORPORATION OF THE TOWNSHIP OF MELANCTHON, Respondent

BEFORE: MORAWETZ J.

COUNSEL: Crawford Smith and Andrew Finkelstein, for the Applicant
Robert K. Brown, for the Respondent

HEARD & ENDORSED: JULY 23, 2013

REASONS: AUGUST 2, 2013

ENDORSEMENT

[1] At the conclusion of argument, the record was endorsed, “Application granted. No costs. Reasons to follow”.

[2] These are the reasons.

[3] This application involved a determination of the nature and extent of the amendments made to the Planning Act pursuant to the Green Energy and Green Economy Act, 2009 (the “Act”) and whether those amendments serve to exempt the plan of Dufferin Wind Power Inc. (“Dufferin” or the “Applicant”) to store the component parts of 49 wind turbines upon property leased by the Applicant that is zoned for the extraction of aggregate only (hereinafter referenced as the “Strata Property” or the “Temporary Storage Property”), without first obtaining a zoning amendment, and Official Plan amendment as required under the Planning Act.

[4] The Applicant’s wind power project (the “Project”) in the Township of Melancthon has been awarded a contract for the sale of electricity from wind power with the Ontario Power Authority and has been issued an Renewal Energy Approval by the Ministry of the Environment (“MOE”). The Project is now entering the construction phase.

[5] As a renewable energy project, the Project is subject to the Renewable Energy Approval (“REA”) process pursuant to Ontario Regulation 359/09, Renewable Energy Approval under Part V.0.1 of the Ontario Environmental Protection Act.

[6] Dufferin’s final Application for Approval of a Renewable Energy Project for the Project (the “Application”) was filed with the MOE on August 13, 2012.

[7] In November 2012, Dufferin filed a Clarification Report related to the routing for the power lines that will interconnect the Project with the provincial grid. Subsequently, Dufferin filed a Changes Report on March 6, 2013 outlining proposed changes that were described as minor modifications to the buildable area. Dufferin filed Changes Report No. 2 on May 31, 2013. The proposed changes in this Report were described as minor changes to facilitate expedited construction and to accommodate certain requests from the contractor and landholders. Proposed changes specifically related to temporary storage locations.

[8] Dufferin takes the position that the related temporary storage locations are a necessary component of the project because, in order to facilitate the project schedule, the wind turbine components and other project related materials have to be stored nearby while the project site is prepared for construction. For that purpose, Dufferin leased the Strata Property.

[9] The MOE issued a REA, Number 5460-98BPH8, to Dufferin in respect of the Project on June 10, 2013. The REA provided that Dufferin is entitled to construct, install, use, operate, maintain and retire its Facility, defined as the renewable energy generation facility as described in the REA and Dufferin’s REA Application, including all supporting documentation submitted with it, and amended documentation submitted up to the date of the issuance of the REA. Those documents include Dufferin’s Changes Report No. 2, dated May 31, 2013 that deals with, among other things, the Temporary Storage Property.

[10] The MOE has confirmed in correspondence dated July 2, 2013 that:

[t]he facility components of the approval include everything included in the application submitted to the ministry for approval, including all amended documentation submitted up to the date the approval is issued. The approval includes ancillary features described in the application, such as construction laydown areas and component storage areas…

The MOE understands that Changes Report No. 2 includes two turbine storage locations, both located within active or former aggregate operations on 4th line in the Township of Melancthon.

[11] The Respondent takes the position that the proposed use of the Temporary Storage Property does not fall within the parameters of section 62.0.2 of the Planning Act and that an amendment to the zoning bylaw and possible amendment to the Official Plan is required. The Respondent takes the position that the Temporary Storage Property is not a renewable energy project because it is not being used for the construction, installation, use, operation, changing or retiring of a renewable energy generation facility.

[12] I do not accept the submissions of counsel to the Respondent. I do accept the submission of counsel to Dufferin on this point.

[13] Pursuant to the Act, certain amendments were made to Planning Act to provide that: (1) an official plan does not apply to a renewable energy undertaking; and (2) a bylaw or order passed under Part V of the Planning Act (Land Use Controls and Related Administration, including zoning bylaws) does not apply to a renewable energy undertaking.

[14] A renewable energy undertaking is defined in Schedule K to the Act and the Planning Act as: a renewable energy generation facility, a renewable energy project, a renewable energy testing facility or a renewable energy testing project.

[15] A renewable energy project is defined as having the same meaning as “renewable energy project” in the Act where it is defined as meaning: “the construction, installation, use, operation, changing or retiring of a renewable energy generation facility”.

[16] A renewable energy generation facility is defined as meaning: “a generation facility that generates electricity from a renewable energy source and that meets such criteria as may be prescribed by regulation and includes associated or ancillary equipment, systems and technologies as may be prescribed by regulation, but does not include an associated waste disposal site, unless the site is prescribed by regulation for the purposes of this definition”.

[17] Renewable energy source means “an energy source that is renewed by natural processes and includes wind, water, biomass….”.

[18] The legislative objective of the Act is stated to be fostering the growth of renewable energy projects in the province.

[19] In my view, on a plain reading of the defined terms in the legislation and, having regard to the object and purpose of the legislative scheme, the Temporary Storage Property does form part of the Applicant’s “renewable energy undertaking”. A renewable energy undertaking includes a “renewable energy project”. That definition includes the “construction” of a “renewable energy generation facility”.

[20] In my view, the Temporary Storage Property is an integral component of the construction of the renewable energy generation facility. The magnitude of the project is significant. The size of the turbines is such that it is not realistic to expect the project to proceed without a storage site. The definition of renewable energy generation facility is broad: “a generation facility that generates electricity from a renewable energy source”. I agree with the submission of counsel to the Applicant that the broad definition is expanded by, and not limited by, the next part of the definition: “and includes associated or ancillary equipment, systems and technologies as may be prescribed by regulation”. Further, the broad nature of the definition is reinforced by the specific exclusion of associated waste disposal sites.

[21] It seems to me that by listing certain exemptions, the Legislature turned its mind to the intended exemptions and when a statute specifies one or more exceptions or exclusions, other exceptions or exclusions should not be read in. I accept Dufferin’s submission that it is not appropriate to read in an exclusion for temporary storage locations. See Grossman v. Cookson, 2012 ONCA 551 and Canada (Canadian Private Copying Collective) v. Canadian Storage Media Alliance, 2004 FCA 424, 2004 F.C.A. 424.

[22] The Temporary Storage Property is specifically identified and included in the REA. The MOE has confirmed that the REA includes ancillary features described in the Application, (such as construction laydown areas and component storage areas). In my view, it is clear that the Temporary Storage Property forms part of Dufferin’s renewable energy undertaking. As such, by virtue of section 62.0.2 of the Planning Act, Official Plans, zoning bylaws and site plan requirements of the respondent do not affect or apply to the use by Dufferin of the Temporary Storage Property.

[23] For the foregoing reasons, the Application is granted and Dufferin is entitled to its requested relief.

MORAWETZ J.

Date: August 2, 2013