ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Suncor Energy Products Inc.
Applicant
– and –
Corporation of the Town of Plympton-Wyoming
Respondent
Albert Engel, for the Applicant
Eric Gillespie, for the Respondent
HEARD: February 26, 2014
M.A. Garson J.
Introduction
1This is an application brought by Suncor Energy Products Inc. (“Suncor”), pursuant to s. 273 of the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”) and Rule 14.05 of the Rules of Civil Procedure seeking:
A. An order quashing By-Law 6 of 2012 in whole or in part for illegality as it concerns Suncor’s structures that support a wind turbine generator having a related output greater than 3kW;
B. An order quashing By-Law 50 of 2012 in whole or in part for illegality;
C. An order quashing By-Law 75 of 2012 in whole or in part for illegality, as it concerns charges identified for wind turbines;
D. Alternatively, a declaration that the above by-laws are of no force or effect due to a conflict with provincial legislation, including the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”);
E. Additionally, a declaration that any and all of Plympton-Wyoming’s (“the Town”) by-laws passed under Part V of the Planning Act, R.S.O. 1990, c. P.13, including By-Law 97 of 2003, By-Law 104 of 2007, and By-Law 15 of 2012, do not apply to Suncor’s wind farm by virtue of s. 62.0.2(6) of the Planning Act since it is a renewable energy undertaking; and
F. Additionally, a declaration that it would be contrary to law for the Town to refuse Suncor a building permit for its wind farm on the basis of By-Law 50 of 2012.
2The respondent asks the court to adjourn the proceedings to allow the parties to continue to discussions. Unfortunately for the respondent, the applicant expressed no desire to continue such discussions and wished to proceed with the application. There being no prospect of success in such discussions, the court declined to adjourn the matter and proceeded to hear the parties.
Background
3Suncor is an Ontario corporation that was awarded a contract by the Ontario Power Authority for the development of a large, 100 MW, Class 4 wind farm called “Cedar Point” consisting of 46 wind turbines at 55 selected locations, 27 of which are located in the Town.
4The Town is an open, long-time supporter of a moratorium on wind turbines. The Town is acting in accordance with various concerns raised by citizens regarding possible adverse health effects from wind turbines. There is a considerable history of discussion and interaction between the Town and Suncor as regards the building of Cedar Point.
5In 2009, Ontario enacted the Green Energy and Green Economy Act, 2009, S.O. 2009 C.12 (“GEGEA”), which amended several acts including the EPA. The GEGEA encouraged the development of renewable energy and generally removed barriers for renewable energy projects within the province. Three important steps in this regard were:
The creation of a feed-in tariff program (“FIT”) to procure energy from renewable sources like wind farms.
The creation of the Renewable Energy Approval (“REA”) process as prescribed in O. Reg. 359/09 made pursuant to the EPA and administered by the Ministry of the Environment (“MOE”).
The placing of restrictions on municipal authority under the Planning Act and the Municipal Act when such projects are at issue.
6Section 47.3 of the EPA mandates that an REA is required prior to any construction, installation, use, operation, or changing of the wind facility.
7O. Reg. 359/09 sets out the requirements of the REA process. In short, it requires that proponents undertake detailed environmental studies and prepare corresponding technical reports that are prescribed in the regulation for review and approval by appropriate provincial ministries prior to a complete REA application package being submitted to a “Director” as appointed by the MOE. It includes requirements for consultation with the public and local authorities and posting of applications on the Environmental Registry website. It provides for public input prior to a decision by the Director.
8O. Reg. 359/09 is a very detailed regulation. Of note, among its many prescriptions are setbacks of a distance of 550 m and sound level limits at non-participating noise receptors of 40 dBA.1 A “noise receptor” is, in effect, a place that provides overnight accommodation or is an educational facility, day nursery, or place of worship, or vacant land zoned for such a use. The 550 m minimum setback distance has been reviewed and approved by the Divisional Court.2
9As such, an REA must specify the exact locations where wind turbines shall be constructed and operated, as well as the applicable sound level limits, the most restrictive of which is 40 dBA. The 40 dBA limit is prescribed by the MOE’s 2008 “Noise Guidelines for Wind Farms”, which is incorporated by reference into O. Reg. 359/09.
10Under ss. 47.4 and 47.5 of the EPA, the Director makes the final call on the issuance and/or terms of an REA, having regard to “public interest”.
11Once issued, an REA may be appealed to the Environmental Review Tribunal by any person, resident in Ontario, on grounds that engaging the project approved by the REA will cause serious harm to human health, or serious and irreversible harm to plant life, animal life, or the natural environment.3 A further appeal can then be taken to the Divisional Court or the Minister of the Environment.
12If there is a conflict between any provision of the EPA or its regulations and any other Act or regulation, s. 179 of the EPA sets out that its provisions or regulations prevail.
13Normally, zoning by-laws may be passed by the councils of local municipalities under the provisions of Part V of the Planning Act. Those powers include controls on the use of land and on the erection of structures. However, s. 62.0.2(6) of the Planning Act specifically provides that a by-law passed under Part V does not apply to a renewable energy undertaking, which includes a renewable energy project and a renewable energy generation facility.
14As required under this above regime, Suncor has applied for a provincial REA for Cedar Point in accordance with the applicable regulatory scheme for renewable energy projects under the EPA.4
15As far as I am aware, Suncor’s REA request is still outstanding.
The Cedar Point Project
16Suncor’s Cedar Point has been in the works since 2005. Certain land lease agreements and consultations began in 2006. Between 2006 and 2008, Suncor actively engaged in discussions with county and Town planners over the development of zoning by-laws that would specifically address wind power projects in the Town. Certain by-laws were enacted during this time that fit within provincial prescriptions for wind power projects. All seemed to be going well between Suncor and the Town.
17In 2009, following the introduction of the GEGEA and its legislated changes, Suncor applied under the applicable FIT program for the green light on Cedar Point as far as the Ontario Power Authority was concerned. This was granted in 2011 for up to 100 MW at Cedar Point.
18On April 16, 2013, Suncor submitted its REA application for Cedar Point, purporting to include up to 46 wind turbines, access roads, meteorological towers, electrical collector lines, a substation, and a 155kV transmission line. Final selection of turbine construction sites from among those approved will be selected prior to construction. Suncor submits that all of the proposed turbine locations comply with the 550 m setback and 40 dBA sound limit requirements set out in O. Reg. 359/09.
19On December 5, 2013, Suncor’s REA for Cedar Point was deemed completed and posted on the provincial Environmental Registry for public comment. A decision with respect to an REA is typically expected within six months of this posting.
20When the parties appeared for the hearing of this application on February 26, 2014, the REA decision had yet to be delivered.
Town Actions in Opposition and Suncor Reactions
21In the meantime, the Town was openly disappointed with the restrictions placed by the GEGEA in 2009 on municipal planning control over renewable energy projects.
22The Town argues that it did not become aware of Cedar Point in its current form until April 2010.
23On April 28, 2010, the Town’s council passed a resolution calling for inter alia “a moratorium [by the province] on all new wind projects until a comprehensive, independent, and peer-reviewed scientific study can confirm that industrial wind energy sites do not pose a risk to community health and environment concerns.”
24In May 2010, Town representatives attended a luncheon and open house for Cedar Point hosted by Suncor to discuss aspects of the project.
25At a July 14, 2010 council meeting, the Town considered letters and emails from concerned residents over the proposed Cedar Point and considered whether to hold a public meeting to discuss wind turbine projects in the Town. It was decided that further investigation was necessary.
26In November 2010, in response to resident concerns, the Town’s council discussed various by-laws that could be enacted to “protect the Town’s interests regarding Industrial Wind Turbines”.
27In the spring of 2011, after what appears to be some confusion over the future of Cedar Point, the Town was advised that Cedar Point would be moving forward.
28Representatives of the Town and Suncor met in September 2011 to discuss the project.
29At a November 2011 council meeting, the Town’s council directed staff to explore building permit costs for wind turbines.
30The Town received the final description report for Cedar Point from Suncor on December 12, 2011.
31In the Town’s view, “[g]iven the lack of communication from Suncor Energy up to this point regarding their project … [Town council] directed staff to explore the feasibility of by-laws to protect the Town’s interest.”
32At a December 14, 2012 council meeting, the Town “directed staff to draft a by-law to protect the municipality from any future costs resulting from the decommissioning and dismantling of wind turbines after their effective life span and to have the owner of the wind turbine(s) to [sic] put up a security or bond for each turbine, payable to the [Town] before a building permit is issued.”
33As the Town submits, “[c]ouncil wanted to do this to protect the Town’s interests and to ensure that the decommissioning and removal is completed in a satisfactory manner.”
34On January 23, 2012, after a public meeting and discussion of an internally conducted wind turbine regulation report, the Town passed By-Law 6 of 2012, which increased its building permit fee for wind turbines from $100 per turbine, as it was previously prescribed in a schedule to its By-Law 76 of 2007, to $10,000 per turbine plus $100/m of total height, including blade height. It also introduced a requirement for the posting of a security of $200,000 for wind turbine removal.
35On February 8, 2012, the Town passed a motion supporting another resolution calling for a moratorium on industrial wind turbine development in the province.
36On February 21, 2012, the Town passed By-Law 15 of 2012, which amended its previous comprehensive zoning specifications as had been found in By-Law 97 of 2003. By-Law 15 of 2012 increased the required setbacks for wind turbines from 600 m to 2000 m from any contiguous group of four or more lots; from 400 m to 2000 m from a dwelling on a separate lot; and from 400 m to 2000 m from a point on a separate lot that does not have a dwelling.
37Suncor submits through expert evidence that the changes introduced by By-Law 15 of 2012 in effect will prohibit the development of commercial wind turbines anywhere in the Town, which blocks the construction of Cedar Point in the Town. The Town did not challenge any of the affidavit evidence of the experts, nor did it cross-examine any of the affiants.
38The Town received from Suncor a “Notice of Public Meeting” and “Information for Public Display and Municipal Consultation Form” on March 19, 2012.
39After taking several steps over April-May 2012 to echo a similar by-law passed in another municipality, on June 23, 2012, the Town passed By-Law 50 of 2012. It established 2 km setbacks, 32 dB noise level limits, and required indemnification for any loss of property or adverse health effect from the construction of industrial wind turbines. It defines property as “property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes”.
40As the Town submits, “[p]rior to the passing of By-law 50 of 2012, [Town council] considered empirical data from other jurisdictions around the world when deriving setbacks from property lines. Council decided that a two kilometre setback, as suggested in a variety of studies and in areas of Europe, Australia and California would best protect the health and safety of residents in the [Town]. It was for this very reason, that the [Town council] supported a moratorium on the development of wind turbines until the proper health studies have been conducted. Following [Town council]’s discussion regarding the subject draft, [Town council] approved By-law 50 of 2012.”
41Suncor submits that the application of By-Law 50 of 2012 would make it impossible to site any of the wind turbines at the locations proposed by Suncor for Cedar Point and makes it impossible to construct a Class 4 wind turbine anywhere within the Town.
42On July 18, 2012, the Town again received a “Notice of Public Meeting” from Suncor.
43On August 20, 2012, the Town received a “Notice of Draft Site Plant” from Suncor.
44On September 10, 2012, the Town received an “Updated Municipal Consultation Form” and “Municipal Consultation Package” from Suncor.
45Later on September 10, 2012, at a special meeting called, the Town passed By-Law 75 of 2012, which mandates a development charge of $8,891 per wind turbine and defines “wind turbine” as “any wind energy conversion system with a name plate capacity greater than 300 kilowatts, that converts wind energy into electricity for sale to an electrical utility or other intermediary.”
46The Town has passed other zoning by-laws under Part V of the Planning Act, in addition to By-Law 15 of 2012, such as By-Law 104 of 2007.
47On October 11, 2012, Town representatives met with Suncor representatives to address concerns over the Town’s newly enacted by-laws. The Town received further concerns from Suncor on November 22, 2012.
48The Town sent Suncor a “Letter of Response regarding Wind Turbine By-laws” on December 14, 2012.
49During this time, the Town submits that it received a petition containing 2,500 signatures of residents in opposition to the development of Cedar Point. It also submits that up to April 26, 2013, the Town received 921 objection letters to Cedar Point.
50On February 7, 2013, the Town received from Suncor more documents regarding Cedar Point and requested feedback. In the Town’s view, it reviewed the documents over several months and identified a number of areas where insufficient information was provided so as to allow the Town to respond with the requested feedback.
51On February 12, 2013, the Town received a response letter from Suncor requesting a delegation with Town council.
52On February 13, 2013, Suncor served the Town with notice of the current application.
53The Town submits that it requested further consultation with Suncor on April 26, 2013 and that Cedar Point not move forward until certain unknowns and concerns were addressed.
54The Town also submitted a letter and various reports to the MOE noting a variety of issues it had with the proposed Cedar Point.
55On August 2, 2013, the Town received from Suncor a response indicating that in its view, the Town’s concerns had been resolved. The Town did not agree.
56The Town responded on September 4, 2013 and outlined several issues that in its view remained outstanding.
57The Town was notified on October 4, 2013 that Suncor would respond within the next two weeks. The Town submits that it did not hear back.
58On December 12, 2013, the Town was notified that Suncor’s REA application for Cedar Point had been deemed complete by the MOE and had been posted for public comment on December 5, 2013, as discussed above.
59The Town was openly displeased about Suncor moving on to this next step when, in the Town’s view, numerous outstanding issues remained unresolved. The Town submits that it had received word from the MOE on May 19, 2011 that projects would not move forward until municipal concerns were addressed.
60The Town made its displeasure over the REA known to the MOE. Town council instructed staff to write to the MOE requesting a 30-day extension to the 45-day public comment period relating to Cedar Point, given its outstanding concerns.
61On February 5, 2014, the Town received a response to its extension request from the MOE. It did not provide for an extension but in the Town’s view, “advised that the [Ministry] is currently in the process of conducting a detailed technical review of the application.” Counsel for Suncor advised the court that the public consultation period was extended to 60 days and concluded on February 3, 2014.
62It appears as though Suncor raised its objections to the passing of the by-laws by way of letters subsequent to their passing. It did not participate in the various council meetings to argue against the by-laws it now seeks to challenge.
Positions of the Parties
63Suncor challenges the legality of the By-Laws 6, 50 and 75 of 2012 on the basis of illegality and argues that they are of no force and effect.
64Suncor further seeks a declaration that numerous by-laws passed under Part V of the Planning Act do not apply to Suncor’s proposed wind farm by virtue of s. 62.0.2(6) of the Planning Act.
65The Town argues that the application should be stayed as premature as Suncor is awaiting provincial approval for the REA for Cedar Point and cannot commence any actions in building the proposed wind farm until such approval is received. In other words, the REA is a precondition to assessing the validity of the by-laws and such determination should not be made in a factual vacuum. Alternatively, the Town asks for a 30-day adjournment to allow for more dialogue with Suncor in light of recent decisions in other courts and an acknowledgement by the Town that modifications to certain by-laws are appropriate.
Analysis and the Law
Jurisdiction of the Court
66The court has jurisdiction to quash a municipal by-law for illegality by virtue of s. 273 of the Municipal Act, which states:
Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
67Further jurisdiction to assess a conflict between a municipal by-law and provincial legislation can be found in s. 14 of the Municipal Act, as discussed more below.
68Rule 14.05(3)(d) of the Rules of Civil Procedure reads:
14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, …
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statue, order in council, regulation or municipal by-law or resolution.
Standard of Review
69The Court of Appeal recently reviewed the standard when municipal by-laws are at issue in Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273:
12 Since municipalities are creatures of statute, their jurisdiction is limited to the powers provided by the legislature. Accordingly, a city does not have jurisdiction to pass a by-law that authorizes acts prohibited by its governing legislation. Since a city has no particular expertise in jurisdictional issues, a court will review the legality of a municipal by-law on the standard of correctness: see London (City) v. RSJ Holdings Inc., 2007 SCC 29, [2007] 2 S.C.R. 588, at para. 37. Section 273(1) of the Act gives the Superior Court the discretion to “quash a by-law … for illegality.”
13 Absent illegality, municipal by-laws are well insulated from judicial review. Section 272 of the Act prohibits a review of a by-law passed in good faith “in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.” Thus, a court cannot interfere with a by-law that is unreasonable, but a court may quash one that is illegal.
14 In reviewing a decision quashing or refusing to quash a by-law for illegality, an appellate court must give a high degree of deference to the judge’s findings of fact and the inferences drawn from those facts. While generally the appropriate standard of review on questions of law is correctness, courts are cautioned in cases involving municipal challenges to require “clear demonstration” before concluding that a municipality’s decision is made without jurisdiction: see Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, at para. 36, citing Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, at p. 244.
15 Courts reviewing decisions made within jurisdiction must apply a deferential standard: see Nanaimo, at para. 35. As the application judge explained, provided they act with jurisdiction, municipalities are accountable to their constituents, and not to the courts.
70Indeed, as stated for example in London Taxicab Owners’ and Drivers’ Group Inc. v. London (City), 2013 ONSC 1460, at para. 42:
42 Questions respecting jurisdiction are reviewed on a correctness standard. However, the courts are told to take a broad and deferential approach to municipal decision making. The Supreme Court of Canada expressed it in this way in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485:
The “benevolent” and “strict” construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced .... This interpretive approach has evolved concomitantly with the modern method of drafting municipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority over generally defined matters ... Municipal Act, 2001, S.O. 2001, c. 25. ... This shift in legislative drafting reflects the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes ...
The Prematurity Argument
71The Town primarily relies upon Wiggins v. wpd Canada Corp., 2013 ONSC 2350 to support its prematurity argument. In Wiggins, the wind project was not yet under construction and the REA had not yet been granted. The REA process was “in its inception”.5 The court dismissed an action in nuisance, trespass and other common law remedies for fear that “[t]he court would be speculating on how the Minister would deal with the application, or how the Tribunal would alter that decision on appeal, if at all. The courts will not impose injunctive relief where there is no way of assessing whether the future harm will transpire”.6
72The Town submits that the facts are similar here. Suncor cannot tell the court how the impugned by-laws will affect it because, like the plaintiffs in Wiggins, it cannot prove that the project will be approved. It therefore seeks a remedy based on a problem it anticipates through speculation and on the presumption that it will receive its approval.
73Respectfully, the court does not find the few other cases on prematurity to which it was referred in the Town’s factum to be of any significant aid on this question.
74While not directed to it, in its right, the court also notes the recent case of Drennan v. K2 Wind Ontario Inc., 2013 ONSC 2831, which at first blush seems factually similar to the current case. The defendants in Drennan proposed to develop a wind power project in the Town of Ashfield-Colborne-Wawanosh consisting of 140 wind turbines. The defendants had sought an REA for the project; approval had yet to be granted. The plaintiffs—farmers in the town—were opposed to the project and brought an action to halt the regulatory process in its tracks. The statement of claim sought various remedies, including Charter relief, damages for nuisance, and injunctive relief. A variety of motions were brought on both sides. In short, Grace J., relying on Wiggins, found that the plaintiffs’ action was premature and ordered it stayed until the regulatory process under the EPA was complete. The plaintiffs eventually took their case to Environmental Review Tribunal, being the natural next step after the REA was granted by the Director on July 23, 2013.7 The REA withstood the administrative appeal.
75As a preliminary observation, I cannot ignore the fact that the Town defends against the application primarily on a procedural basis and does not significantly attempt to counter the merits-based arguments put forth by Suncor.
76As to prematurity, the court is well aware of the need to resist ruling on potential non-issues. Indeed, as these cases and others make clear, the REA administrative review process should be respected by the courts. The regulatory approval process is statutorily mandated, and a court can easily derail this process prior to its completion by prematurely interfering, which would certainly be contrary to the legislature’s intention. It is clear that the REA process should be given the chance to run its course before it is subject to court interference.
77However, the prematurity argument is neither relevant nor applicable to the current application given the relief sought by Suncor. This case differs considerably as compared to others cited above in support of the prematurity argument. It differs on the facts, on the type of proceeding, and on the remedy sought.
78Here, Suncor requests that the by-laws be quashed for illegality and/or declared to have no effect in that they conflict with provincial law. Whether either of these requests are legitimate at law is a question of law that, in my view, can and should be addressed on the current application even though the REA regulatory process is incomplete.
79In a perfect world, the REA process at issue here would be complete before a court addresses these by-laws, which would satisfy the authorities in favour of the administrative approval process running its course before court review. But such is not the case here.
80The prematurity argument concerns court interference in the REA process and the various appeals that lie from it. It does not concern the validity of by-laws that, by circumstance in the current case, concern the same subject matter as the REA process.
81In other words, the REA and the by-laws are two separate and distinct issues not dependent upon one another. If this court was being asked to step into the ongoing REA process at this early stage, then the application would surely be premature. But this court is not being asked to do that. The court is being asked to adjudicate on by-laws as they currently stand at law. It happens to be the case that if the by-laws are good law, then it shuts down Suncor’s building of the project in the Town, but not necessarily its receipt of an REA for the project. If the by-laws are quashed or ruled ineffective, however, then Suncor is essentially unshackled to build under municipal law, but that does not guarantee its receipt of a provincial REA that is required before it is actually permitted to build Cedar Point.
82The by-laws at issue are not expressly directed at Suncor or Cedar Point. As such, even if Suncor is denied an REA, another company may very well come along with the same complaints regarding the by-laws. This serves as all the more reason why the by-laws at issue should be reviewed regardless of Suncor’s ongoing REA request.
83Accordingly, the court does not agree with the Town’s argument at para. 58 of its factum, where it states that without an REA the impugned by-laws have only hypothetical effect.
84Therefore, in this case, it is unnecessary for a valid REA to be granted before a court considers the application to quash the by-laws or declare as to their effect.
85Moreover, recall that it is Suncor—not the Town—that is requesting that the by-laws be quashed or declared to have no effect. By doing so, it is Suncor—not the Town—that is threatening court interference despite the REA administrative process being underway.
86Typically, however, “prematurity cases” in the wind farm context involve an action or application by concerned residents or towns aimed at halting a company’s pursuit and receipt of an REA in its tracks. It is the company that then defends against these proceedings by arguing that they are premature, i.e. by arguing that the company is entitled to the benefit of the full legislatively-prescribed administrative review process before a court steps in. Many courts rightfully have respected the company’s rights in this regard.
87Here, we have Suncor, in the midst of its REA process, also attacking the by-laws as illegitimate, and we have the Town defending against the application on the basis of prematurity—a different dynamic.
88Accordingly, the Town’s prematurity argument in this case is not persuasive. As a result, the court will not dismiss the application for prematurity.
Issues and Merits of the Application
89The primary issues on this application are as follows:
Is By-Law 50 of 2012 invalid for vagueness and uncertainty?
Is By-Law 50 of 2012 without effect pursuant to s. 14 of the Municipal Act?
Should By-Law 50 of 2012 be quashed for illegality pursuant to s. 273 of the Municipal Act?
Are the portions of By-Law 6 of 2012 that relate to wind turbines ultra vires the Town?
Is the development charge for wind turbines set out in By-Law 75 of 2012 ultra vires the Town?
Are any and all by-laws passed by the Town under the authority of Part V of the Planning Act to have no legal application to a renewable energy undertaking, including Cedar Point, as a result of s. 62.0.2 of the Planning Act?
Can By-Law 50 of 2012 interfere with the issuance of a building permit to Suncor for Cedar Point?
90These issues are addressed in turn below after setting out the appropriate legislative framework.
Law Under the Municipal Act
91Generally, the Town’s powers are to “be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues”.8
92The Town is empowered to pass by-laws concerning its economic, social, and environmental well-being and the health, safety, and well-being of persons.9
93Under s. 128(1) of the Municipal Act, the Town may prohibit and regulate matters that in the good faith opinion of council are or could become or cause public nuisances. Under s. 129 of the Municipal Act, the Town is entitled to prohibit or regulate noise and vibration.
94However, s. 14 of the Municipal Act states:
Conflict between by-law and statutes, etc.
- (1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
Same
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument.
95Section 273 of the Municipal Act states:
Application to quash by-law
- (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
Definition
(2) In this section,
“by-law” includes an order or resolution.
Law under the Planning Act
96Section 62.0.2 of the Planning Act reads in relevant part as follows:
Renewable energy undertakings
Policy statements and provincial plans
62.0.2 (1) Despite any Act or regulation, the following do not apply to a renewable energy undertaking, except in relation to a decision under section 28 or Part VI:
A policy statement issued under subsection 3 (1).
A provincial plan, subject to subsection (2).
Exception
(2) Subsection (1) does not apply in respect of,
(a) the Niagara Escarpment Plan;
(b) another provincial plan, if the provincial plan is prescribed for the purposes of this subsection; or
(c) a provision of another provincial plan, if the provision is prescribed for the purposes of this subsection.
Official plans
(3) For greater certainty, an official plan does not affect a renewable energy undertaking.
Same
(4) Section 24 does not apply to,
(a) the undertaking of a public work that is a renewable energy undertaking or is intended to facilitate or support a renewable energy undertaking;
(b) the passing of a by-law with respect to a public work described in clause (a); or
(c) the passing of a by-law that is intended to facilitate or support a renewable energy undertaking.
Demolition control area
(5) A by-law passed under section 33 does not apply to a renewable energy undertaking.
By-laws and orders under Part V
(6) A by-law or order passed or made under Part V does not apply to a renewable energy undertaking.
Transition, existing agreements
(7) An agreement that is entered into under Part V before the day subsection 4 (1) of Schedule G to the Green Energy and Green Economy Act, 2009 comes into force applies to a renewable energy project, and to any related renewable energy testing facility and renewable energy testing project, until the day a renewable energy approval is issued under section 47.5 of the Environmental Protection Act in relation to the renewable energy project. [Emphasis added.]
Development permit system
(8) A regulation or by-law made or passed under section 70.2 does not apply to a renewable energy undertaking. …
Issue #1: Is By-Law 50 of 2012 invalid for vagueness and uncertainty?
97Suncor’s main submission in this regard is that By-Law 50 of 2012 is identical in form and substance to the Town of Wainfleet’s by-law, briefly noted above, that has previously been found by Reid J. in Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194 to be invalid and without force and effect as a result of vagueness and uncertainty.
98In Wainfleet, the energy company was in the process of developing a five turbine renewable power facility in Wainfleet, Ontario. It had submitted an REA application.
99The town had passed a by-law that applied to all property in the town and set out prohibitions related to wind turbines of a certain size. The by-law prescribed:
(a) a minimum setback distance of 2 km from any property measured from the tip of the rotor blade in horizontal position, which applied to the construction, erection, or operation of any wind turbine inside the town;
(b) a wind turbine noise emission prohibition of 32 dB at the nearest property; and
(c) a mandatory indemnification of 100% for any loss of property value or adverse health effect directly or indirectly caused by a wind turbine.
100The by-law defined “property” to mean “property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes.”
101The parties in Wainfleet acknowledged that the by-law, if valid and enforceable, would block the energy project as was then constituted.
102The energy company sought a declaration that the by-law enacted by the town relating to wind turbine development should either be quashed or did not apply to its project. The town defended its by-law and argued that if the by-law was unenforceable or ultra vires, certain provisions of O. Reg. 359/09 made under the EPA and certain provisions of the Planning Act were contrary to s. 7 of the Charter and as a result were invalid.
103At para. 6, Reid J. referenced s. 54 of O. Reg. 359/09 to note that Ontario’s regulations provide that industrial wind turbines must be constructed at least 550 m from identified noise receptors. He also referenced the “Noise Guidelines for Wind Farms” for the fact that applicants for approval must provide detailed information concerning noise to be generated by the project.
104As to vagueness and uncertainty, Reid J. stated (citations omitted):
31 A by-law is invalid for vagueness and uncertainty if: (a) it is not sufficiently intelligible to provide an adequate basis for legal debate and reasoned analysis; (b) it fails to sufficiently delineate any area of risk; and, (c) it offers “no grasp” for courts to perform their interpretive function. This standard is exacting, and the onus is on the applicant to establish that the by-law should be declared invalid.
32 After a full contextual analysis, including a consideration of the by-law’s purpose, the court’s role is to determine whether the by-law must be declared invalid. For the reasons that follow, I am persuaded that this by-law must be declared invalid on the basis of vagueness and uncertainty.
33 The purpose and context of this by-law is clear: to provide protection from the effect of noise emitted from [industrial wind turbines].
34 The purpose of the by-law derives from the Township Council’s concern for the health, safety, quality of life and well-being of its citizens and their properties. This is clear from the by-law’s preamble and the uncontested evidence of the Mayor. These are legitimate matters for municipal control as listed in subsection 11(2) of the Municipal Act, 2001. Related concerns about noise and nuisance are identified in the preamble to the by-law and are also listed in sections 128 and 129 of the Act.
35 The crux of the by-law is the minimum setback distance for all [industrial wind turbines]. This is obvious from the title of the by-law after deleting (by agreement of the parties) the reference to indemnification for loss of property value. In its attempt to prevent negative impact arising from noise, the by-law requires that [industrial wind turbines] are to be located at a minimum distance of two kilometres from any “property,” and prescribes the maximum level of sound in decibels at the property.
36 For the setback distance to have any meaning, the two points from which the setback is measured must be clear. The first point is the proposed site of the [industrial wind turbine] and the second is the nearest property. The site, as a measuring point, is clear; the property is not.
37 As noted, property is defined in the by-law to mean “property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes.” The by-law is said to apply to all property within the territory of the Township and, perhaps redundantly, to all property owned by the Township.
38 Based on this definition, property could be a property line. Property lines are known, and described in municipal surveys. However, the balance of the definition is not at all clear. How is vacant land defined? Who is an inhabitant? Can the inhabitants live on the vacant land, or only in a dwelling or structure? If the inhabitants are “all species”, does that include animals, birds, insects and plants? Can inhabitants be regular but transitory, such as migratory birds? What is the object of the phrase: “used for private or business or public purposes”? Could it be the land or dwellings or structures, the inhabitants, or both?
39 One interpretation of the definition is that it relates to all vacant (as it says) or occupied (by implication) land in the Township. If one accepts the Township’s position that the by-law was not contrived to prevent [industrial wind turbine] development anywhere within the township, that interpretation is not available. Otherwise, the by-law would be clearly invalid based on conflict, as discussed below.
40 The uncertainties arising from the definition of property are beyond those that could provide a basis for legal debate and reasoned analysis. The definition is unintelligible. No developer could reasonably measure its risk in building an [industrial wind turbine] on any particular site. There is simply no logical and reasoned way that a court can grasp the definition sufficiently to perform its required interpretive function.
105Having found that the by-law was of no force and effect, Reid J. found that it was unnecessary to determine whether the by-law was specifically applicable to the energy project at issue.10 Further, given his determination, Reid J. similarly held that it was unnecessary to determine whether the provincial enactments under the EPA and other provincial green energy legislation deprived the town’s residents of various protections afforded under the Charter.11
106Like Reid. J. at para. 31 in Wainfleet, this court quotes with approval the discussion of the proper approach when gauging vagueness and uncertainty articulated by Howden J. in Neighbourhoods of Windfields Limited Partnership v. Death, [2007] O.J. No. 5081 (S.C.), at paras. 26-27:
26 From the above review of the recent authorities, several important aspects of a proper approach to an attack on at enactment based on vagueness are clarified.
(i) Whether the case involves a civil, administrative, or municipal enactment, or raises a constitutional issue, the test is the same. Nova Scotia Pharmaceutical, para. 70; Consortium Developments (Clearwater) Limited v. Sarnia 1995 CanLII 10652 (ON SC), [1995] O.J. No. 1649 (Div. Ct.).
(ii) The enactment is impermissibly vague only if it is not intelligible and so fails to provide an adequate basis for legal debate and reasoned analysis; if it fails to sufficiently delineate any area of risk; and if it offers “no grasp” for courts to perform their interpretive function. It is an exacting standard. (Nova Scotia Pharmaceutical, para. 63).
(iii) The policy basis or rationale behind the test is two-fold, in that there be fair notice to citizens, and that discrimination in enforcement is to be limited. (Nova Scotia Pharmaceutical, para. 39); Reference re ss. 193 and 195.1 of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123)
(iv) Laws today are often, of necessity, framed in general terms to allow for flexible application and to not obscure the legislative purpose. Courts must be wary of using the vagueness doctrine to prevent or impede action in furtherance of the valid social objectives of the particular legislature or council. A delicate balance is required between societal interests and individual rights. (Nova Scotia Pharmaceutical, para. 68).
(v) In determining whether a law is too vague, the court must,
(a) consider the need for flexibility and carry out its interpretive role;
(b) recognize that standard of absolute certainty in legislation is impossible; and
(c) consider that many varying judicial interpretations of a given disposition may be possible and may coexist (Nova Scotia Pharmaceutical, para. 28).
27 Following this approach, it is necessary for the court to carry out its full interpretive role first, as a necessary precondition to consideration of the vagueness test. It is necessary because the interpretive analysis tests the proposition contextually (Canadian Pacific Limited, supra at para. 47). In doing so, the modern approach to statutory interpretation is followed, and a proper contextual analysis of the legislation in question helps to determine the capability of the enactment in question to guide legal debate. …
107As to municipal by-laws in particular, as determined long ago by the Court of Appeal in Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City), 1983 CanLII 3114 (ON CA), [1983] O.J. No. 3, at paras. 20-26, a by-law must express its meaning with certainty and must clearly identify the duties and obligations it imposes. The words must be precise enough for individuals or enforcing agencies to give the words a reasonable interpretation—otherwise, the by-law will be invalid for vagueness and uncertainty.
108I note that By-Law 50 of 2012 is indeed, as Suncor submits, identical in form and substance to the by-law declared to be void in Wainfleet.
109I adopt the analysis of Reid J. quoted above on the vagueness and uncertainty question.
110That said, in my view, By-Law 50 of 2012 is invalid and without force and effect as a result of vagueness and uncertainty. For the setback distance in By-Law 50 of 2012 to have meaning, the two points from which the setback is measured must be clear. Just like in Wainfleet, where the identical definition was at issue, here there is no method to determine the meaning of the term “property” as it is defined in By-Law 50 of 2012. The definition is therefore unintelligible. There is no way for a developer to reasonably measure its risk in proposing to build a wind turbine at a particular site. The by-law creates uncertainties that are beyond legal debate and legal analysis, and accordingly, the court cannot perform its required interpretive function.
Issue #2: Is By-Law 50 of 2012 without effect pursuant to s. 14 of the Municipal Act?
111In light of any conclusion above, there may be no need to address this issue. However, I do so in the event that I am wrong on Issue #1.
112In the court’s view, Issue #2 is comprised of two sub-issues with s. 14 of the Municipal Act in mind:
a. Does By-Law 50 of 2012 conflict with provincial legislation or an approval issued under provincial legislation?
b. Does By-Law 50 of 2012 frustrate the purpose of a provincial Act, regulation, or instrument?
113If either question is answered in the affirmative, By-Law 50 of 2012 is invalid.12
Does By-Law 50 of 2012 conflict with provincial legislation or an approval issued under provincial legislation?
114This question concerns section 14(1) of the Municipal Act.
115As the Court of Appeal indicated in Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), [2005] O.J. No. 1896 (C.A.), the question to ask here is if it is impossible to comply simultaneously with By-Law 50 of 2012 and with a provincial Act, regulation, instrument, or approval.
116Suncor submits that if an REA is issued for Cedar Point, and if the REA is granted in accordance with its application as was submitted, it will be impossible for Suncor to construct Cedar Point while complying with the prescriptions as found in By-Law 50 of 2012 and with the REA.
117Suncor submits that it prepared its REA application for Cedar Point in accordance with the requirements as set out in O. Reg. 359/09. Its REA application specifies 55 proposed wind turbine sites, with final locations to be determined, but all of them comply with the 550 m setbacks and 40 dBA sound level limit at non-participating receptors as prescribed in O. Reg. 359/09. None of its proposed 55 sites would be able to comply with the 2 km setbacks and 32 db sound level limit as contained in By-Law 50 of 2012.
118Recall, however, that the Director can accept or reject an application for wind turbine construction relying on a variety of criteria, and can change the 550 m minimum setback.
119While at this time this issue appears to only pose a potential conflict, Reid J. in fact addressed this issue in Wainfleet, which again concerned a by-law identical in form and substance to that of By-Law 50 of 2012. As stated by Reid J. at para. 45:
45 Until the Director approves an application, there is only a potential for conflict. However, there would be a direct conflict once there is an approved project containing an [industrial wind turbine] location that appears to contravene the municipal by-law. In that case, the provincial standard would apply based on subsection 14(1) of the Municipal Act, 2001 and the by-law would be of no effect.
120As a result, the court agrees with Suncor’s submission that any by-law that purports to prohibit the construction and operation of wind turbines at locations approved in an REA will be in direct conflict with the REA regime, and accordingly the GEGEA, and therefore be of no force and effect by way of s. 14(1) of the Municipal Act.
Does By-Law 50 of 2012 frustrate the purpose of a provincial Act, regulation, or instrument?
121This question concerns s. 14(2) of the Municipal Act.
122In Suncor’s view, the effect of By-Law 50 of 2012 is to prevent entirely the construction of Class 4 wind turbines, such as Cedar Point, anywhere in the Town.
123In Suncor’s view, a municipal by-law that prohibits the construction of wind turbines anywhere within the Town frustrates the purpose of the GEGEA, the REA process as found in O. Reg. 359/09 made pursuant to the EPA, as well as the FIT program as follows:
By-Law 50 of 2012 blocks the growth of renewable energy projects, a goal which is clearly indicated in the preamble as found in Schedule A to the GEGEA, and an act that is clearly contrary to the legislature’s intention as demonstrated when it went to great lengths to pass the GEGEA and other green energy legislation in 2009.
The REA process was designed to approve locations for wind turbines that met the prescribed specifications found in O. Reg. 359/09; but By-Law 50 of 2012 that prohibits construction of wind turbines at such approved locations is clearly contrary to the legislature’s intention when it established the REA regime.
The FIT program is defined in s. 25.35 of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, as amended by the GEGEA, as “a program for procurement, including a procurement process, providing standard program rules, standard contracts and standard pricing regarding classes of generation facilities differentiated by energy source or fuel type, generator capacity and the manner by which the generation facility is used, deployed, installed or located.” It is designed to encourage and promote greater use of renewable energy sources. Receipt of an REA ipso facto incorporates the fulfilment of the FIT terms. Accordingly, By-Law 50 of 2012 frustrates the object and purpose of the FIT program in that it inhibits a FIT contract holder from carrying out the requirements under such a contract, thereby preventing the facilitation of increased development and operation of renewable energy generating facilities.
124Given these concerns, Suncor submits that By-Law 50 of 2012 is without effect pursuant to s. 14(2) of the Municipal Act.
125The court, however, hesitates to go this far, nor does it deem it necessary to do so.
126As to the GEGEA in particular, the court is mindful of and endorses Reid J.’s determination in Wainfleet at paras. 49-50 (citations omitted), which gauged the identical by-law to that of By-Law 50 of 2012 as regards its effect under s. 14(2):
49 Wainfleet Wind Energy submitted that the by-law should be declared of no force and effect pursuant to subsection 14(2) of the Municipal Act, 2001 because it frustrates the purpose of the [Green Energy Act or GEA—a schedule to the GEGEA] and that therefore a conflict exists. I am not prepared to go that far. The Municipal Act, 2001 clearly contains provisions to allow control of nuisance and noise as well as health and safety matters, as I have already noted. The Planning Act was specifically amended to prevent any zoning by-law from applying to renewable energy undertakings but no similar amendment was made to the Municipal Act, 2001. I am not satisfied that the fact that both the EPA (as amended by the GEA) and the by-law relate to [industrial wind turbines] and apply different standards means that the latter frustrates the purpose of the former, despite the fact that the preamble of the GEA refers to, among other purposes, the removal of barriers to renewable energy projects.
50 I would have had no difficulty in finding that the by-law frustrated the purpose of the GEA if there had been evidence to establish that the effect of the by-law was actually to prevent entirely the construction of [industrial wind turbines] anywhere in the Township.
127Just like in Wainfleet, there is no requisite evidence here so as to suggest that the effect of the by-law was actually to prevent entirely the construction of Cedar Point anywhere in the Town.
128The court acknowledges that it is Suncor’s view that the by-law is meant to do just that, and it should also be noted that this court is not prepared to wade into any bad faith analyses here as it was not raised by the parties on this point. More information is needed before the court is willing to take that step and opine on By-Law 50 of 2012 under s. 14(2) and that simply is not before the court here. I am mindful of the several resolutions passed by the Town calling for a moratorium. This does not in and of itself support a finding of bad faith.
129As the court is not prepared to declare that By-Law 50 of 2012 frustrates the GEGEA, it naturally follows that it cannot declare that it frustrates the REA regime and the FIT regime, as both latter regimes are grounded in the contemporary GEGEA.
130I am not prepared at this point to find that By-Law 50 of 2012 frustrates a provincial act or regulation so as to declare it invalid pursuant to s. 14(2) of the Municipal Act.
Issue #3: Should By-Law 50 of 2012 be quashed for illegality pursuant to s. 273 of the Municipal Act?
131As indicated above, s. 273 of the Municipal Act allows a court on application to quash a by-law of a municipality in whole or in part for illegality, i.e. that its enactment is ultra vires the municipality’s authority.
132As stated recently by the Court of Appeal in Detlor v. Brantford (City), 2013 ONCA 560, at para. 28:
28 … s. 273(1) gives the Superior Court discretion to quash a municipal by-law for illegality … “Illegality” in s. 273 can include a failure to comply with statutory procedural requirements, such as the open meeting requirement in s. 239, and bad faith: see London (City) v. RSJ Holding Inc., 2007 SCC 29, [2007] 2 S.C.R. 588, at para. 40; Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.) at 331.
133As indicated above, municipalities are creatures of statute and can only act within the powers conferred on them by the provincial legislature.
134As stated by the Court of Appeal in Grosvenor v. East Luther Grand Valley (Township) (2007), 2007 ONCA 55, 84 O.R. (3d) 346, at para. 42:
[M]unicipal by-laws properly enacted are not to be lightly quashed; they are not open to review even if they are unreasonable. It is a pre-condition to that immunization from review, however, that the by-law be “passed in good faith”. This, in turn, reinforces the essential character of a valid and legal by-law: it must be enacted in good faith.
135“A by-law which is ostensibly within the authority of a council to enact may be set aside or declared invalid if its real purpose and attempt is to accomplish by indirect means an object which is beyond its authority”: Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing), 2000 CanLII 16929 (ON CA), [2000] O.J. No. 4426 (C.A.), at para. 59.
136A by-law can be deemed to have been passed in “bad faith” if “[c]ouncil acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government”: e.g. Drake v. Stratford (City), 2010 ONSC 2544, at para. 41 (varied at 2011 ONCA 98 but not on this definition), citing with approval H.G. Winton Ltd. and Borough of North York (1978), 1978 CanLII 1566 (ON SC), 20 O.R. (2d) 737 (Div. Ct.), at p. 744. However, as stated in London Property Management Assn. v. London (City), 2011 ONSC 4710, at para. 100: “[T]he case law shows that the standard to establish bad faith on the part of a municipal council is high. There is a presumption of good faith that must be overcome by the party alleging bad faith.”
137As discussed above, it is trite law that the question of vires is subject to a correctness standard of review: see e.g. RSJ Holdings Inc.; Nanaimo.
138This court again draws attention to Reid J.’s comments on the ultra vires question in Wainfleet when he was gauging the legality of an identical by-law:
51 As I have noted, the Municipal Act, 2001 gives power to a municipality to regulate, amongst other things, matters of nuisance, noise, health and safety. Despite that legislative mandate, Wainfleet Wind Energy submits that as regards renewable energy projects, the province has fully occupied the field through the GEA and the EPA, thereby precluding municipal legislation on the subject. As such, the applicant argues that the by-law is ultra vires the Township’s authority.
52 I have already commented on the lack of legislated prohibition concerning renewable energy projects in the Municipal Act, 2001 as compared with those in the Planning Act.
53 The applicant submits that the by-law is in effect a zoning by-law masquerading as one focused on health, safety, noise and nuisance. As such, the Planning Act prohibition should apply.
54 Although setback distances and control over the construction of structures is often a zoning matter, there is no reason why parallel jurisdiction cannot exist between the Planning Act and the Municipal Act, 2001 when different considerations are engaged.
55 I agree with the position of the Township that the municipality has a continuing role to play in renewable energy projects as appears from s. 5 of the GEA and Regulation 15/10. Those provisions indicate that most municipal by-laws no longer apply to the extent that they would prevent or restrict a designated project with certain exceptions relating to health, safety, heritage and the environment. However, wind energy is not one of the designated renewable energy projects and as a result there is no legislated prohibition to the continued application of municipal by-laws. If the province wishes to add wind energy to the list of designated renewable energy projects, it obviously has the power to do so.
139Here, Suncor submits that the setback provisions, the noise provisions, and the indemnification provisions as found in By-Law 50 of 2012 are all ultra vires the Town’s authority.
The Setback Provisions
140Suncor’s argument in this regard concerns s. 62.0.2(6) of the Planning Act: “A by-law or order passed or made under Part V [of the Planning Act] does not apply to a renewable energy undertaking.” In this sense, the amendments to the Planning Act on account of the GEGEA, discussed above, stripped the municipal right to enact by-laws that control the use of land for renewable energy projects, which Cedar Point undoubtedly is.
141Part V of the Planning Act is broad; it generally allows municipalities to enact and amend zoning by-laws, thereby restricting the use of land. However, Suncor submits that a municipality cannot, by adopting a descriptive disguise by way of a recital to a by-law, transform a by-law that is in substance a zoning by-law under the Planning Act into a regulatory by-law under the Municipal Act. It relies on Death, noted above, at para. 73, for this proposition, which reads:
In chapter 4 Zoning and Land Use, the Rogers text continues its explanation of the zoning authority and distinguishes it from the municipal authority to pass licensing by-laws (at para. 4.2):
Zoning is a form of planning by a municipality but is actually a means of carrying out a plan rather than an element or factor in the plan itself. Broadly stated, zoning power enables local governments to control the use of land and the erection and use of buildings and other structures.
Zoning is the deprivation for the public good of certain uses by owners of property to which the property might otherwise be put. Underlying planning statutes is the principle that the interest of land owners in securing the maximum value of their property must be controlled by the community. [Emphasis added.]
And at para. 4.2.2:
Some by-laws which purported to have been passed under the statutory provisions authorizing licensing and regulation of businesses and which regulate location or some aspect of land use have been held to be in essence zoning by-laws and invalid since the procedure for enacting such by-laws have not been complied with. A municipality cannot, by adopting a descriptive disguise by way of a recital to a by-law, transform it into a regulatory by-law under the Municipal Act, when in substance it is a zoning enactment pursuant to the Planning Act.
The Rogers text gives the following examples of by-laws passed under the licensing authority or similar authority which were ruled to have been in effect zoning by-laws: a by-law prohibiting the location of a gas station in a specified area, a by-law restricting the operation of self-service stations at certain locations; a by-law prohibiting a public garage within a certain radius of single dwellings; and a by-law restricting the operation of an adult entertainment parlour to certain defined areas.
142In Suncor’s view, the 2 km setback distance as prescribed by By-Law 50 of 2012 is an illegitimate means to restrict the use of land within the Town for wind power projects, as applying that setback distance from dwellings and property lines makes it impossible to site any Class 4 wind turbines anywhere in the Town.
The Noise Provisions
143As discussed above, O. Reg. 359/09 and the “Noise Guidelines for Wind Farms” incorporated therein comprehensively deal with noise standard as regards wind turbines. As part of its REA application, which has been deemed complete and has been posted for public comment, Suncor had to file an acoustic assessment report and setback report to confirm compliance with this regime.
144Suncor submits that By-Law 50 of 2012 provides a new noise standard that is outside the scope and content of O. Reg. 359/09. The maximum noise limit of 32 dB imposed by By-Law 50 of 2012 is incompatible with the maximum 40 dBA as prescribed by O. Reg. 359/09 and makes it impossible to site any Class 4 wind project, like Cedar Point, anywhere in the Town.
The Indemnification Provisions
145Suncor argues that the Town lacks authority to impose an indemnification clause in By-Law 50 of 2012, as nothing in the Municipal Act provides for this power.
146In Wainfleet, which dealt with an identical by-law to that of By-Law 50 of 2012, Reid J. noted at para. 58 that the parties had agreed that the indemnification provisions of the by-law were an invalid exercise of municipal power.
147Suncor asserts this same logic to submit that the identical indemnification provisions found in By-Law 50 of 2012 are therefore outside the Town’s power.
The court’s conclusion on s. 273
148As to the setbacks imposed in By-Law 50 of 2012, I am not prepared to go so far as to say that the Town is outside its powers by implementing them. As indicated above, these setbacks may be without effect under different legal analyses, but I am not of the view that strictly under s. 273, a quash is required. The Town does not derive its jurisdiction from the GEGEA. Under the Municipal Act, the Town clearly has power to regulate inter alia matters of nuisance, noise, health, and safety. Further, this court agrees with Reid J. in Wainfleet that there is a “lack of legislated prohibition concerning renewable energy projects in the Municipal Act, 2001 as compared with those in the Planning Act … Although setback distances and control over the construction of structures is often a zoning matter, there is no reason why parallel jurisdiction cannot exist between the Planning Act and the Municipal Act, 2001 when different considerations are engaged”.13 Accordingly, this court is therefore not of the view that the Planning Act prohibition should apply here as Suncor suggests.
149As to the noise limitations in By-Law 50 of 2012, while they clearly conflict with those as prescribed under the GEGEA by way of O. Reg. 359/09 and are as such without effect in this regard, I am of the view that the Municipal Act, in the very least, permits the Town to regulate matters of nuisance, noise, health, and safety in this regard. As such, I am not prepared to find that By-Law 50 of 2012 is ultra vires the Town in this regard. Also, I am not of the view that the noise provisions of By-Law 50 of 2012 were passed in bad faith as Suncor submits. This is a high threshold to meet, and while fairness and transparency could perhaps have been managed better, there is not enough before me to make the determination that the Town acted in bad faith. In any event, arbitrariness does not on its face amount to bad faith. It can reasonably be said that while Suncor sees an ulterior motive, underlying all of the Town’s actions throughout this ordeal has been some sense that it—rightfully or wrongfully—is concerned about the effects of wind turbines on its residents and that it is evidently listening to such concerns of residents.
150Lastly, I agree with Suncor that nothing in the Municipal Act justifies the Town’s imposition of the indemnification provisions in By-Law 50 of 2012; this is ultra vires.
151Ultimately, therefore, with the exception of the indemnification provisions, which are accordingly without effect, I do not consider the enactment of By-Law 50 of 2012 to be otherwise outside the Town’s municipal authority.
Issue #4: Are the portions of By-Law 6 of 2012 that relate to wind turbines ultra vires the Town?
152Section 273 of the Municipal Act allows this court to gauge the vires of the by-law provided that the application is commenced within a year of the by-law’s passing. As far as the court is aware, By-Law 6 of 2012 was passed on January 23, 2012 and this application was commenced by way of notice on January 2, 2013.
153By-Law 6 of 2012 imposes three types of fees on wind turbines in the Town: (1) a general fee of $10,000 per turbine; (2) a variable fee of $100/m of total height; and (3) a security deposit/letter of credit of $200,000 per turbine. These amounted to increases or new features across the board.
154Suncor challenges these aspects of the by-law for illegality.
155As stated by the Court of Appeal in Detlor, noted above, at para. 28, “illegality” in s. 273 of the Municipal Act can include a failure to comply with statutory procedural requirements.
156Municipalities certainly have power to pass by-laws on classes of building permits and applicable fees.14
157The Building Code Act (“BCA”) defines “building” as structures designated in the building code.15 O. Reg. 332/12 made pursuant to the BCA, deems “a structure that supports a wind turbine generator having a rated output of more than 3 kW” to be a structure for the purpose of the BCA.16
158The BCA also outlines several procedural requirements when fees are at issue. For example:
Section 7(2): “The total amount of the fees authorized under clause (1) (c) must not exceed the anticipated reasonable costs of the principal authority to administer and enforce this Act in its area of jurisdiction.”
Section 7(4): “Every 12 months, each principal authority shall prepare a report that contains such information as may be prescribed about any fees authorized under clause (1) (c) and costs of the principal authority to administer and enforce this Act in its area of jurisdiction.”
Section 7(5): “The principal authority shall make its report available to the public in the manner required by regulation.”
Section 7(6): “If a principal authority proposes to change any fee imposed under clause (1) (c), the principal authority shall, (a) give notice of the proposed changes in fees to such persons as may be prescribed; and (b) hold a public meeting concerning the proposed changes.”
Section 7(7): “The notice of proposed changes in fees must contain the prescribed information, including information about the public meeting, and must be given in the prescribed manner.”
Section 7(8): “The public meeting concerning proposed changes in fees must be held within the period specified by regulation before the regulation, by-law or resolution to implement the proposed changes is made.”
159Further, O. Reg. 332/12 states the following:
1.9.1. Fees
1.9.1.1. Annual Report
(1) The report referred to in subsection 7 (4) of the Act shall contain the following information in respect of fees authorized under clause 7 (1) (c) of the Act:
(a) total fees collected in the 12-month period ending no earlier than three months before the release of the report,
(b) the direct and indirect costs of delivering services related to the administration and enforcement of the Act in the area of jurisdiction of the principal authority in the 12-month period referred to in Clause (a),
(c) a breakdown of the costs described in Clause (b) into at least the following categories:
(i) direct costs of administration and enforcement of the Act, including the review of applications for permits and inspection of buildings, and
(ii) indirect costs of administration and enforcement of the Act, including support and overhead costs, and
(d) if a reserve fund has been established for any purpose relating to the administration or enforcement of the Act, the amount of the fund at the end of the 12-month period referred to in Clause (a).
(2) The principal authority shall give notice of the preparation of a report under subsection 7 (4) of the Act to every person and organization that has requested that the principal authority provide
1.9.1.2. Change of Fees
(1) Before passing a by-law or resolution or making a regulation under clause 7 (1) (c) of the Act to introduce or change a fee imposed for applications for a permit, for the issuance of a permit or for a maintenance inspection, a principal authority shall,
(a) hold the public meeting required under subsection 7 (6) of the Act,
(b) ensure that a minimum of 21 days' notice of the public meeting is given in accordance with Clause (c), including giving 21 days notice to every person and organization that has, within five years before the day of the public meeting, requested that the principal authority provide the person or organization with such notice and has provided an address for the notice,
(c) ensure that the notice under Clause (b),
(i) sets out the intention of the principal authority to pass the by-law or resolution or make a regulation under section 7 of the Act and whether the by-law, resolution or regulation would impose any fee that was not in effect on the day the notice is given or would change any fee that was in force on the day the notice is given,
(ii) is sent by regular mail to the last address provided by the person or organization that requested the notice in accordance with Clause (b), and
(iii) sets out the information described in Clause (d) or states that the information will be made available at no cost to any member of the public upon request, and
(d) make the following information available to the public:
(i) an estimate of the costs of administering and enforcing the Act by the principal authority,
(ii) the amount of the fee or of the change to the existing fee, and
(iii) the rationale for imposing or changing the fee.
160Paragraphs 117-118 of Suncor’s factum read as follows:
On October 15, 2012, in response to a freedom of information request, Suncor obtained records pertaining to the development and approval of the Town’s building permit fees.
These records included annual reports on building permit fees from 2008 to 2011, as well as a staff report dated January 19, 2012 that recommends an increased fee of $10,000 per wind turbine and a $100,000 security deposit per turbine. None of the annual reports make reference to wind turbines. Therefore, the reports do not provide a [rationale] for any change to the $100 Turbine Fee that had been set in 2007. Additionally, the January 19, 2012 staff report provides no details as to the justification for the $10,000 fee and makes no mention of the $100 per metre of turbine height additional fee. As a result, the Town has not met the conditions precedent to change the Turbine Fee in its reports; and there is no justification pursuant to the BCA for either (a) a $10,000 fee for each wind turbine; or (b) a variable fee of $100 per metre of turbine height for each turbine.
161Suncor also notes that there is no authority under the BCA for municipalities to require a security deposit as was introduced by By-Law 6 of 2012.
162I agree with Suncor’s arguments on By-Law 6 of 2012. Accordingly, the portions of By-Law 6 of 2012 that relate to wind turbines, specifically the turbine fee of $10,000 + $100/m of total height (including blade height), and the requirement for a $200,000 security deposit, will be quashed as illegal pursuant to s. 273 of the Municipal Act.
Issue #5: Is the development charge for wind turbines set out in By-Law 75 of 2012 ultra vires the Town?
163Municipalities have power to pass development charges pursuant to s. 2 of the Development Charges Act, 1997, S.O. 1997, c. 27 (“DCA”):
Development charges
- (1) The council of a municipality may by by-law impose development charges against land to pay for increased capital costs required because of increased needs for services arising from development of the area to which the by-law applies.
What development can be charged for
(2) A development charge may be imposed only for development that requires,
(a) the passing of a zoning by-law or of an amendment to a zoning by-law under section 34 of the Planning Act;
(b) the approval of a minor variance under section 45 of the Planning Act;
(c) a conveyance of land to which a by-law passed under subsection 50 (7) of the Planning Act applies;
(d) the approval of a plan of subdivision under section 51 of the Planning Act;
(e) a consent under section 53 of the Planning Act;
(f) the approval of a description under section 50 of the Condominium Act; or
(g) the issuing of a permit under the Building Code Act, 1992 in relation to a building or structure.
Same
(3) An action mentioned in clauses (2) (a) to (g) does not satisfy the requirements of subsection (2) if the only effect of the action is to,
(a) permit the enlargement of an existing dwelling unit; or
(b) permit the creation of up to two additional dwelling units as prescribed, subject to the prescribed restrictions, in prescribed classes of existing residential buildings.
Ineligible services
(4) A development charge by-law may not impose development charges to pay for increased capital costs required because of increased needs for any of the following:
The provision of cultural or entertainment facilities, including museums, theatres and art galleries but not including public libraries.
The provision of tourism facilities, including convention centres.
The acquisition of land for parks.
The provision of a hospital as defined in the Public Hospitals Act.
The provision of waste management services.
The provision of headquarters for the general administration of municipalities and local boards.
Other services prescribed in the regulations.
Local services
(5) A development charge by-law may not impose development charges with respect to local services described in clauses 59 (2) (a) and (b).
Services can be outside the municipality
(6) A development charge by-law may impose development charges with respect to services that are provided outside the municipality.
Application of by-law
(7) A development charge by-law may apply to the entire municipality or only part of it.
Multiple by-laws allowed
(8) More than one development charge by-law may apply to the same area.
164This regime is supplemented by the specifications as found in O. Reg. 82/98.
165The DCA sets out guidance for municipalities for calculating and approving development charges, for example:
Under s. 5(1), 1-10, the methods that must be used in developing a development charge by-law and determining the development charges that may be imposed are statutorily prescribed. These include an estimation the anticipated amount, type, and location of development for which development charges can be imposed; consideration of the costs over the past decade of supplying a number of municipal services; consideration of the costs of meeting future municipal needs for such services; and the appropriate distribution of servicing costs to development based on different uses of municipal services by different classes of development.
Under s. 10(1), “Before passing a development charge by-law, the council shall complete a development charge background study.”
Under s. 10(2), “The development charge background study shall include, (a) the estimates under paragraph 1 of subsection 5 (1) of the anticipated amount, type and location of development; (b) the calculations under paragraphs 2 to 8 of subsection 5 (1) for each service to which the development charge by-law would relate; (c) an examination, for each service to which the development charge by-law would relate, of the long term capital and operating costs for capital infrastructure required for the service; and (d) such other information as may be prescribed.”
166I am particularly mindful of and concur with the remarks of Swinton J. in Orangeville District Home Builders Assn. v. Orangeville (Town), 2011 ONSC 1639 (Div. Ct.), which involved a leave to appeal request to appeal a decision of the Ontario Municipal Board when it had allowed an appeal by the Orangeville District Home Builders Association from a development charge and reduced the development charges that Orangeville could impose. At paras. 14-17 in Orangeville, the court stated:
14 The Board concluded that the gross population methodology was inconsistent with s. 2(1) [of the DCA]. It took note that development charges can only be used to fund “increased capital costs” required because of “increased needs” for services arising from development. According to the Board, that requires a consideration of both existing services in the municipality and a determination of the increased needs caused by development, having taken into account existing services. In its words (at p. 10 of the Reasons):
In our view, the subsection ensures and demands that the development charges would be for the increase in costs arising from the increased needs of the service and not for the entitlement or privilege of using the service.
15 The Board concluded that the gross population methodology is not permissible under s. 2(1) because it focuses only on the need for services and not the increase in needs, and therefore, the increase in capital costs caused by the development. As it stated at p. 9 of its Reasons, “It is possible to have ‘increased needs’ without increased costs if there is ample available capacity to accommodate the forecasted growth”. Its view was bolstered by its consideration of s. 5(1)2, which requires the municipality to determine the “increase” in the need for services attributable to development, rather than speaking of the overall service requirements of the new development.
16 The Town argues that the Board read words out of ss. 2(1) and 5(1)2, having failed to focus on “arising from the development” and “attributable to the anticipated development”. Instead of considering the causal connection between the development and the need for services, the Board is said to have read in “incremental” need or “net” need.
17 In my view, the Board neither read in words, nor read out words in s. 2(1). When s. 2(1) is read as a whole and in light of the Act’s purpose, as the Board did in accordance with modern principles of statutory interpretation, it is evident that development charges can only be imposed for increased capital costs arising from or caused by the increased need for services caused by development. The Board recognized that the Act is not concerned with the services that the development needs in isolation. A development charge may only be imposed if the new development results in an increase in the need for services in the broader context of the services already offered in the municipality. That was a reasonable interpretation. Indeed, in my view, its correctness is not open to serious debate.
167Accordingly, I agree with Suncor’s submission that determining whether a development will lead to increased capital costs requires a determination of existing services in the municipality and a determination of the increased needs cause by development, having taken into account existing services.
168Blanket development charges cannot be charged for the mere entitlement or privilege of using a certain service.
169Recall that the Town’s By-Law 75 of 2012 mandates in its Schedules a development charge of $8,891 per wind turbine. The by-law distinguishes between “residential uses” and “non-residential uses”, the latter of which specifically excludes wind turbines.17 The by-law defines “wind turbine” as “any wind energy conversion system with a name plate capacity greater than 300 kilowatts, that converts wind energy into electricity for sale to an electrical utility or other intermediary”.18 Wind turbines effectively do not fall under either “uses” noted in the by-law.
170While it is indicated in its preamble that By-Law 75 of 2012 relies on a 2011 development charges study, I agree with Suncor in that the by-law does not, however, identify the anticipated amount, type, and location of wind turbine development that was studied. It also does not include any methods on calculating past wind turbine servicing costs, any methods on calculating future wind turbine servicing costs, or any methods for allocating costs to wind turbines. At best, the by-law at para. 2(4) states “[t]he development charge with respect to a wind turbine in the municipality shall be calculated in accordance with the rates set out in Schedule ‘B’.” Unfortunately, Schedule B fails to shed light on how the Town arrived at the $8,891 per wind turbine development charge.
171As far as I am aware, there continues to be an absence of a development charges study from the Town that calculates the increased capital costs that may arise from or be caused by an increased need for services arising from wind turbine development.
172Considering the above, therefore, in my view, the Town has failed to meet the preconditions as prescribed by statute necessary to pass a valid development charges by-law. Further, the Town has failed to provide a legal justification for the amount being charged for wind turbines under By-Law 75 of 2012—there is no causal link between the charge imposed and the increased capital cost to the Town from wind turbines.
173Accordingly, this court is of the view that the wind turbine development charge as found in By-Law 75 of 2012 should be struck as illegal for failure to meet these preconditions.
Issue #6: Are any and all by-laws passed by the Town under the authority of Part V of the Planning Act to have no legal application to a renewable energy undertaking, including Cedar Point, as a result of s. 62.0.2 of the Planning Act?
174As explained above, the GEGEA amended the Planning Act so as to remove the application of zoning by-laws, related by-laws, and orders made by a municipality under Part V of the Planning Act to “renewable energy projects”, as defined.
175It is undisputed that Cedar Point is a “renewable energy project” that falls within this regime.
176However, the Town amended its 2003 and 2007 zoning by-laws in 2012 by way of By-Law 15 of 2012. Its “Explanatory Note” openly indicates that:
The purpose of this By-law is to amend the zoning provisions pertaining to large wind energy conversion systems within the general provisions section of the Zoning By-law. The current zoning setbacks are 600m from urban areas (clusters of 4 or more lots zoned non-agricultural), 400m from dwellings on separate lots and 400m from the front 50m of separate, vacant parcels (in order to preserve a building envelope). The amendment changes these setbacks to 2000m. As per section 3.31.3 b), the required setback from Residential zones, Institutional zones and uses, Open Space 2 and 3 zones and Mobile Home Park/Campground zones would increase from 400m to 2000m …
The Town acknowledges that amendments to the Planning Act are such that any person proposing to erect a renewable energy facility does not have to comply with the Town’s Zoning By-laws. [Emphasis added.]
177By its terms, By-Law 15 of 2012 amends the then-existing zoning by-law to impose a 2000 m setback from (1) wind turbines with a rotor diameter greater than 12 m or a hub height greater than 45 m; (2) wind turbines with a rotor diameter greater than or equal to 12 m; or (3) “any wind turbine”. The points for measuring the 2000 m setbacks vary and, frankly, are confusing.
178Suncor submits that by way of s. 62.0.2 of the Planning Act, the Town’s By-Law 15 of 2012 is without effect as against wind facilities such as Cedar Point. I agree.
179By-Law 15 of 2012, and any prior by-law incorporated therein to the extent that they are still applicable, has no legal application to a renewable energy undertaking, including Cedar Point, pursuant to s. 62.0.2 of the Planning Act.
Issue #7: Can By-Law 50 of 2012 interfere with the issuance of a building permit to Suncor for Cedar Point?
180This issue also concerns the BCA, discussed above. Under s. 8(2)(a): “The chief building official shall issue a permit referred to in subsection (1) unless, (a) the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law”.
181Under O. Reg. 332/12, aka the “Building Code”, made pursuant to the BCA, the “applicable law” is as follows:
(1) For the purposes of clause 8 (2) (a) of the Act, applicable law means,
(a) the statutory requirements in the following provisions with respect to the following matters:
(i) section 114 of the City of Toronto Act, 2006 with respect to the approval by the City of Toronto or the Ontario Municipal Board of plans and drawings,
(ii) section 59 of the Clean Water Act, 2006 with respect to the issuance of a notice by the risk management official for the construction of a building,
(iii) section 5 of Regulation 262 of the Revised Regulations of Ontario, 1990 (General), made under the Day Nurseries Act, with respect to the approval of plans for a new building to be erected or an existing building to be used, altered or renovated for use as a day nursery or for alterations or renovations to be made to premises used by a day nursery,
(iv) section 194 of the Education Act with respect to the approval of the Minister for the demolition of a building,
(v) section 6 of Regulation 314 of the Revised Regulations of Ontario, 1990 (General), made under the Elderly Persons Centres Act, with respect to the approval of the Minister for the construction of a building project,
(vi) section 5 of the Environmental Assessment Act with respect to the approval of the Minister or the Environmental Review Tribunal to proceed with an undertaking,
(vii) section 46 of the Environmental Protection Act with respect to the approval of the Minister to use land or land covered by water that has been used for the disposal of waste,
(viii) section 47.3 of the Environmental Protection Act with respect to the issuance of a renewable energy approval,
(ix) section 168.3.1 of the Environmental Protection Act with respect to the construction of a building to be used in connection with a change of use of a property,
(x) paragraph 2 of subsection 168.6 (1) of the Environmental Protection Act if a certificate of property use has been issued in respect of the property under subsection 168.6 (1) of that Act,
(xi) section 14 of the Milk Act with respect to the permit from the Director for the construction or alteration of any building intended for use as a plant,
(xii) section 11.1 of Ontario Regulation 267/03 (General), made under the Nutrient Management Act, 2002, with respect to a proposed building or structure to house farm animals or store nutrients if that Regulation requires the preparation and approval of a nutrient management strategy before construction of the proposed building or structure,
(xiii) subsection 30 (2) of the Ontario Heritage Act with respect to a consent of the council of a municipality to the alteration or demolition of a building where the council of the municipality has given a notice of intent to designate the building under subsection 29 (3) of that Act,
(xiv) section 33 of the Ontario Heritage Act with respect to the consent of the council of a municipality for the alteration of property,
(xv) section 34 of the Ontario Heritage Act with respect to the consent of the council of a municipality for the demolition of a building,
(xvi) section 34.5 of the Ontario Heritage Act with respect to the consent of the Minister to the alteration or demolition of a designated building,
(xvii) subsection 34.7 (2) of the Ontario Heritage Act with respect to a consent of the Minister to the alteration or demolition of a building where the Minister has given a notice of intent to designate the building under section 34.6 of that Act,
(xviii) section 42 of the Ontario Heritage Act with respect to the permit given by the council of a municipality for the erection, alteration or demolition of a building,
(xix) section 14 of the Ontario Planning and Development Act, 1994 with respect to any conflict between a development plan made under that Act and a zoning by-law that affects the proposed building or structure,
(xx) section 41 of the Planning Act with respect to the approval by the council of the municipality or the Ontario Municipal Board of plans and drawings,
(xxi) section 42 of the Planning Act with respect to the payment of money or making arrangements satisfactory to the council of a municipality for the payment of money, where the payment is required under subsection 42 (6) of that Act,
(xxii) section 2 of Ontario Regulation 453/96 (Work Permit — Construction), made under the Public Lands Act, with respect to the work permit authorizing the construction or placement of a building on public land,
(xxiii) section 34 or 38 of the Public Transportation and Highway Improvement Act with respect to the permit from the Minister for the placement, erection or alteration of any building or other structure or the use of land,
(b) the following provisions of Acts and regulations:
(i) subsection 102 (3) of the City of Toronto Act, 2006,
(ii) sections 28 and 53 of the Development Charges Act, 1997,
(iii) sections 257.83 and 257.93 of the Education Act,
(iv) subsection 5 (4) of the Environmental Assessment Act,
(v) subsection 133 (4) of the Municipal Act, 2001,
(vi) subsection 24 (3) of the Niagara Escarpment Planning and Development Act,
(vii) subsection 27 (3) of the Ontario Heritage Act,
(viii) section 33 of the Planning Act except where, in the case of the demolition of a residential property, a permit to demolish the property is obtained under that section,
(ix) section 46 of the Planning Act,
(c) regulations made by a conservation authority under clause 28 (1) (c) of the Conservation Authorities Act with respect to permission of the authority for the construction of a building or structure if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development,
(d) by-laws made under section 108 of the City of Toronto Act, 2006, but only with respect to the issuance of a permit for the construction of a green roof if the construction of the roof is prohibited unless a permit is obtained,
(e) by-laws made under section 40.1 of the Ontario Heritage Act,
(f) by-laws made under section 34 or 38 of the Planning Act,
(g) subject to clause (h), by-laws made under Ontario Regulation 608/06 (Development Permits) made under the Planning Act,
(h) by-laws referred to in clause (g) in relation to the development of land, but only with respect to the issuance of a development permit if the development of land is prohibited unless a development permit is obtained,
(i) by-laws made under Ontario Regulation 246/01 (Development Permits) made under the Planning Act which continue in force despite the revocation of that Regulation by reason of section 17 of Ontario Regulation 608/06 (Development Permits) made under that Act,
(j) orders made by the Minister under section 47 of the Planning Act or subsection 17 (1) of the Ontario Planning and Development Act, 1994, and
(k) by-laws made under any private Act that prohibit the proposed construction or demolition of the building unless the by-law is complied with.
(2) For the purposes of clause 10 (2) (a) of the Act, applicable law means any general or special Act, and all regulations and by-laws enacted under them that prohibit the proposed use of the building unless the Act, regulation or by-law is complied with.
182As Suncor rightfully points out, this section provides for very specific and limited situations in which a municipality can interfere with the issuance of a building permit. In Suncor’s view, By-Law 50 of 2012 is not an instance of one of these limited situations and as such does not fall under “applicable law”.
183Further, Suncor notes that under s. 35(1) of the BCA: “This Act and the building code supersede all municipal by-laws respecting the construction or demolition of buildings.”
184Considering the above, I agree with Suncor that By-Law 50 of 2012 cannot be used or relied on by the Town to interfere with the issuance of a building permit for Cedar Point.
Disposition
185For reasons referred to above, I make the following orders:
(i) By-Law 50 of 2012 is:
(a) Invalid for vagueness and uncertainty in part and without force and effect as it relates to minimum setbacks, noise level limits, and mandatory indemnification;
(b) Of no force and effect, pursuant to s. 14(1) of the Municipal Act, to the extent that it purports to prohibit the construction and operation of wind turbines at locations approved in an REA, and thereby directly conflict with the REA regime and the GEGEA;
(c) Ultra vires pursuant to s. 273 of the Municipal Act, but only to the extent that it purports to impose mandatory indemnification provisions; and
(d) Of no force and effect to the extent that it interferes with the issuance of a building permit to Suncor for the building of Cedar Point.
(ii) The portions of By-Law 6 of 2012 that relate to turbine fees and security deposits are quashed as illegal pursuant to s. 273 of the Municipal Act.
(iii) The portions of By-Law 75 of 2012 that impose development charges for wind turbines are quashed as illegal pursuant to the DCA.
(iv) By-Law 15 of 2012, and any prior by-law incorporated therein to the extent that they are still applicable, has no legal application to a renewable energy undertaking, including Cedar Point, pursuant to s. 62.0.2 of the Planning Act.
186I do not mean to diminish or minimize the concerns of the residents of the Town. Whether in petitions, rallies, or taking the time to observe the court proceedings in this application, they are sincere in their concerns for their health and well-being and their land values. As stated earlier, if the REA is approved for Cedar Point, they may challenge that decision by way of an appeal to the Environmental Review Tribunal.
187This is but one step in a many step process. It was painstakingly obvious that counsel for the Town sincerely wished to revive a dialogue with Suncor regarding possible amendments to the by-laws at issue. I would strongly urge both parties to resume this dialogue forthwith and use this judgment as a guideline for the discussion. The impersonal hand of the court is no substitute for the helping hand of a neighbour. Simply put, it is in the interests of the parties to sit down and work together as good neighbours do.
Costs
188If the parties cannot agree, Suncor has 15 days from the date of this ruling to serve and file submissions on costs, not to exceed two typewritten pages in addition to any Offers to Settle and Bills of Costs. The Town has 15 days thereafter to file a response in the same fashion. If no submissions are received within the stipulated timeframe, there shall be no order for costs.
“Justice M. A. Garson”
Justice M.A. Garson
Released: May 23, 2014
COURT FILE NO.: 6964/13
DATE: 2014/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
Suncor Energy Products Inc.
Applicant
– and –
Corporation of the Town of Plympton-Wyoming
Respondent
REASONS FOR JUDGMENT
Garson J.
Released: May 23, 2014
Footnotes
- See ss. 54 and 55 of O. Reg. 359/09.
- See Hanna v. Ontario (Attorney General), 2011 ONSC 609.
- See s. 142.1 of the EPA.
- See ss. 47.1-47.3 of the EPA.
- At para. 7.
- At para. 90.
- See Drennan v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 10 (the court was in fact referred to this latter decision).
- Section 8(1) of the Municipal Act.
- Section 11(2) of the Municipal Act.
- See para. 56.
- See para. 57.
- See e.g. Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), [2005] O.J. No. 1896 (C.A.), at paras. 60-63, citing Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188.
- At paras. 52 and 54.
- See e.g. Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”), s. 7.
- Section 1(1)(d) of the BCA.
- Section 1.3.1.1(1)(g) of the BCA.
- See para. 1(19) of By-Law 75 of 2012.
- See para. 1(28) of By-Law 75 of 2012.