Sylvia Davis

The Environmental Review Tribunal held a telephone conference call to determine procedural issues regarding the form and scheduling of the remedy phase of the hearing for the Fairview Wind Project.

The Tribunal ordered that the remedy phase be conducted in-person in Collingwood, Ontario, and set a schedule for the filing of witness statements and supporting documents.

The appellant brought three motions in an appeal of a Renewable Energy Approval for a wind project.

The motions sought to qualify a witness as an expert and to admit new evidence.

The Environmental Review Tribunal granted the motions in part, qualifying the witness as an energy consultant and admitting specific documents attached to the affidavits of the witness and another expert into evidence, while allowing the respondents to cross-examine the affiants on the newly admitted documents.

The City of Mississauga appealed a Director's Order regarding waste street sweepings and sought an interim stay pending the disposition of a stay motion.

The Director consented to the interim stay.

The Environmental Review Tribunal found no statutory bar under sections 143(2) or 143(3) of the Environmental Protection Act and granted the interim stay on consent.

The Tribunal previously found that a renewable energy approval for a wind project would cause serious and irreversible harm to the natural environment.

The approval holder requested an opportunity to submit evidence and make submissions on appropriate remedies under s. 145.2.1(4) of the Environmental Protection Act.

The Tribunal granted the request and scheduled a telephone conference call to determine the form, scope, and scheduling of the remedy hearing.

The Appellants appealed the Director's decision to issue a Renewable Energy Approval for an eight-turbine wind facility.

The Appellants argued the project would cause serious harm to human health due to aviation risks at two nearby aerodromes, and serious and irreversible harm to endangered bat species.

The Tribunal found that the proximity of the turbines to the aerodromes created an inadequate margin for error, posing a serious risk to human health.

The Tribunal also found that the project would cause serious and irreversible harm to the local population of the endangered little brown myotis bat.

The appeals were allowed in part and the hearing was adjourned to determine the appropriate remedy.

The appellant appealed a Director's Order requiring him to retain a consultant to assess and remediate petroleum impact from a 1990 spill on his property.

The Director subsequently revoked the order after receiving evidence that a third party had tampered with a neighbouring well by adding fuel oil, invalidating the samples, and that there was no credible evidence linking the 1990 spill to the current contamination.

The Tribunal found the revocation consistent with the Environmental Protection Act and dismissed the appeal.

The appellants appealed a Renewable Energy Approval for a wind turbine project.

Following a finding that the project would cause serious and irreversible harm, the Tribunal adjourned the hearing to consider remedies.

The appellants brought a motion requesting that the continuation of the hearing be held in person rather than in writing.

The Tribunal denied the motion, finding that receiving evidence in writing was fair, would prevent further delay given the statutory six-month deadline, and would provide the best evidence to fulfill its mandate.

The Tribunal issued an order regarding the scope of the continuation of a hearing concerning appeals of a Renewable Energy Approval for a wind facility.

The Tribunal had previously found that the project would cause serious and irreversible harm to plant life, animal life, or the natural environment.

In this order, the Tribunal determined that the Approval Holder would be permitted to adduce additional evidence regarding proposed remedies to address the identified harm.

The Tribunal also clarified the tests, considerations, and onus of proof applicable under section 145.2.1(4) of the Environmental Protection Act for the remedy phase of the hearing.

The Tribunal, on its own initiative, adjourned the hearing of appeals regarding a Renewable Energy Approval for the Fairview Wind Project.

The statutory six-month deadline for the Tribunal to dispose of the hearing was approaching.

Because the parties requested a lengthy period for filing final written submissions, the Tribunal determined that a 64-day adjournment was necessary to ensure sufficient time to deliberate and issue a written decision on the merits.

The respondent sought partial indemnity costs of $6,156.71 following the dismissal of the appellant's motion for a stay.

The appellant argued that as a public interest litigant, no costs should be awarded, noting it had ultimately obtained the interim remedy from the Environmental Review Tribunal.

The court agreed with the appellant and ordered no costs for the motion.

At a preliminary hearing regarding appeals of a Renewable Energy Approval for a wind turbine project, the Environmental Review Tribunal considered requests for participant and presenter status.

The Tribunal granted participant status to the Canadian Owners and Pilots Association and presenter status to several individuals and organizations, finding they had genuine interests in the proceeding.

The Tribunal also issued procedural directions for the main hearing.

The Alliance to Protect Prince Edward County brought a motion to stay a Renewable Energy Approval for a wind power project pending the disposition of its appeal.

The moving party argued that vegetation clearing and site preparation would cause irreparable harm to the threatened Blanding's Turtle and its habitat.

Applying the RJR-MacDonald test, the Environmental Review Tribunal found that there was a serious issue to be tried, that irreparable harm would ensue to the spring foraging habitat of the Blanding's Turtle, and that the balance of convenience favoured the moving party.

The Tribunal granted the stay in part, halting vegetation clearing in identified spring foraging habitat.

The Director of the Ministry of the Environment and Climate Change requested an adjournment of the hearing to allow for further environmental sampling and testing regarding a historic petroleum spill.

The appellant consented to the adjournment, while other parties had mixed positions.

The Environmental Review Tribunal granted the adjournment, finding it was in the public interest and would not cause environmental harm, as the Director's Order remained in effect.

The moving party, Alliance to Protect Prince Edward County, sought an interim stay of physical activities associated with a renewable energy approval for a wind power project, pending the disposition of a stay motion.

The moving party argued that vegetation clearing would cause irreparable harm to Blanding's Turtle and its habitat.

The Tribunal found that while harm to active turtles was not demonstrated, there was sufficient evidence that irreparable harm to vegetation and spring foraging habitat could occur.

The balance of convenience favoured the moving party, and the interim stay was granted.

The moving party brought a motion seeking an interim stay of a Renewable Energy Approval for a wind project pending the scheduling of a motion hearing for a full stay.

The Environmental Review Tribunal granted the interim stay, with reasons to follow, and directed that the hearing of the motion for a stay be scheduled in writing as soon as possible.

The moving party brought a motion for a stay of a renewable energy approval for a wind power generation project, seeking to halt vegetation clearing and site preparation.

The moving party argued that the proposed work would cause serious and irreversible harm to the Blanding's Turtle, a threatened species.

The Environmental Review Tribunal applied the RJR-MacDonald test for a stay.

While finding a serious issue to be tried, the Tribunal concluded that the moving party failed to demonstrate irreparable harm, as its evidence was speculative and did not account for the mitigation and avoidance measures required by the approval.

The Tribunal also found that the balance of convenience did not favour a stay.

The motion was dismissed.

The approval holder brought a motion arguing that the Tribunal lost jurisdiction to determine the remedy for a revoked renewable energy approval because the statutory six-month time limit had expired, resulting in a deemed confirmation of the Director's decision.

In the alternative, the approval holder sought the recusal of the Tribunal panel due to a reasonable apprehension of bias.

The Tribunal dismissed the motion, finding that it had disposed of the hearing within the statutory time limit when it issued its original decision, and that the deeming provision did not apply to a remedy hearing remitted by the Court of Appeal.

The Tribunal also found no evidence to support the allegations of bias.

The Director of the Ministry of the Environment and Climate Change requested an adjournment of the hearing regarding an order issued under the Environmental Protection Act for the assessment and remediation of a petroleum spill.

The Environmental Review Tribunal granted the request, vacating the April 2016 hearing dates and adjourning the matter to September 2016.

The appellant brought an urgent motion to stay physical work on a renewable energy project pending its appeal of an Environmental Review Tribunal order.

The Tribunal had dismissed a similar motion, with reasons to follow.

The court applied the RJR-Macdonald test for interlocutory injunctions and found that without the Tribunal's reasons, it could not assess whether there was a serious issue to be tried.

The court also found no evidence of irreparable harm from the limited vegetation clearing proposed, and noted the balance of convenience favoured the respondent.

The motion for a stay was dismissed.

The moving party brought a motion seeking an order to stay all physical activities within the proposed wind project area associated with a Renewable Energy Approval.

The Environmental Review Tribunal dismissed the motion for a stay, with reasons to follow.