May 1, 2015

ONTARIO COURT OF APPEAL SUMMARIES (APRIL 20 – 24, 2015)

Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (CanLII)

 [Cronk, Juriansz and Epstein JJ.A.]
Counsel:
E. K. Gillespie and E. Wallace, for the appellant Prince Edward County Field Naturalists
S. Davis and S. Kromkamp, for the respondent the Ministry of the Environment
N. Finkelstein, D. Hamilton and B. Kain, for the respondent Ostrander Point GP Inc.
J. B. Laskin and A. Smith, for the intervener Canadian Wind Energy Association
S. Hazell, for the intervener Nature Canada
S. G. Paliare and A.K. Lokan, for the intervener Prince Edward County South Shore Conservancy
Keywords: Environmental Law, Renewable Energy Approval, Judicial Review, Fresh Evidence,Environmental Protection Act, ss. 142.1(3)(b), ss. 145.2.1(2), s. 145.6, Green Energy Act,Endangered Species Act, Serious and Irreversible Harm to Animal Life, Dunsmuir v. New Brunswick
Facts: The subject of this appeal involved a Renewable Energy Approval (“REA”) which the Director for the Ministry of the Environment (“Director”) granted the respondent, permitting the construction of wind turbines (“the project”) on a parcel of Crown land in Prince Edward Country, Ontario. The REA was issued, pursuant to the Green Energy Act, 2009, S.O. 2009, and amendments made under the Environmental Protection Act, R.S.O. 1990 (“EPA”). Subsequently, the appellant appealed the Director’s decision to grant the REA to the Environmental Review Tribunal, pursuant to ss. 142.1(3)(b) of the EPA. The appellant claimed that the proposed construction would cause serious and irreversible harm to a variety of animal and plant species and the natural environment, namely birds, bats, butterflies, turtles and alvar plants and the alvar ecosystem. In reaching its decisions, the Tribunal applied its authority under ss. 145.2.1(2) of the EPA, which provides:
The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,
a)   serious harm to human health; or
b)   serious and irreversible harm to plant life, animal life or the natural environment.
The tribunal allowed the appeal. Applying the above statutory test, the Tribunal found that the project would cause serious and irreversible harm to only one animal species, the Blanding’s turtle. The Tribunal also revoked the REA initially granted to the respondent.
The appellant then appealed the Tribunal’s decision to the Divisional Court, regarding serious and irreversible harm that would be caused to birds and alvar if the project proceeded. Additionally, the respondent and the Director appealed from the Tribunal’s finding of serious and irreversible harm to the Blanding’s turtle and its decision to revoke the REA. The Divisional Court dismissed the appellant’s appeal and allowed the appeal of the respondent and the Director, thereby setting aside the Tribunal’s finding of serious and irreversible harm to the Blanding’s turtle and the revocation of the REA.
The appellant was subsequently granted leave to appeal to the Court of Appeal. The respondent cross-appealed, claiming the Divisional Court erred in dismissing its fresh evidence application.

Issues:
(1) Did the Divisional Court identify the appropriate standard of review and apply it correctly when setting aside the Tribunal’s finding of serious and irreversible harm to the Blanding’s turtle and revocation of the REA?
(2) Did the Divisional Court err in refusing the respondent’s cross-appeal to admit fresh evidence?
(3) Did the Divisional Court err in finding the Tribunal erred by not exercising its remedial discretion to decide that it could not overrule the policy of the Ministry of Natural Resources (“MNR”) to keep public roads open to vehicles while the project was under construction?

Holding: The appeal was allowed in part. The Tribunal’s conclusion that the project would cause serious and irreversible harm to the Blanding’s turtle, if permitted to proceed, was restored. The respondent’s cross-appeal to admit fresh evidence was allowed. The aspect of the cross-appeal with respect to the lack of procedural fairness accorded to the parties by the Tribunal was allowed. The matter of the appropriate remedy was remitted back to the Tribunal, where the parties will be given an opportunity to make submissions on it before a ruling is made. No costs were awarded to either party, given the mixed success on the appeal and cross-appeal.

Reasoning:
Issue 1
No. The Divisional Court correctly identified that the reasonableness standard applied to its review of the Tribunal’s decisions with respect to findings of serious and irreversible harm under ss. 145.2.1(2) of the EPA, but it failed to correctly apply this standard. The Tribunal’s decision on this issue was found to be reasonable.
In finding that the Tribunal’s decision on the matter of serious and irreversible harm to the Blanding’s turtle was unreasonable, the Divisional Court pointed to three major errors:

  1. The Tribunal dealt with serious harm and irreversible harm together and failed to explain its reasons for concluding that the harm would be irreversible;
  2. The Tribunal concluded there would be serious and irreversible harm without evidence of the size of the population of Blanding’s turtle, the current level of vehicular traffic on the Area and the degree of increase in vehicular traffic that would result from the project; and
  3. The Tribunal failed to give sufficient weight to the existence of the permit granted to the respondent under Ontario’s Endangered Species Act2007, the conditions attached to that permit, the obligation of the MNR to monitor and enforce the permit, and the fact that the REA expressly required the respondent to comply with the ESA permit.

The Court of Appeal found that the three errors of the Tribunal found by the Divisional Court did not demonstrate that the Tribunal’s decision on this issue was unreasonable. In its review, the Court of Appeal applied the test for judicial review from Dunsmuir, and found that in determining whether a Tribunal’s decision is reasonable, the reviewing court is concerned with “justification, transparency and intelligibility” of its reasons. Furthermore, the Tribunal’s decision will be held to be reasonable if its reasons demonstrate that the result falls within a range of possible reasonable outcomes.
Applying the test for reasonableness from Dunsmuir, the Court of Appeal held on the first alleged error that the Divisional Court erred in finding that the Tribunal erred in failing to engage in a separate analysis of serious harm and irreversible harm in this case. Whether the project would cause serious harm required no analysis and the Tribunal’s analysis focused on whether the harm was irreversible. Since all parties agreed at the hearing before the Tribunal that the project would create serious harm to the Blanding’s turtle, it was not necessary for the Tribunal to consider this aspect of the test under ss. 145.2.1(2)(b) of the EPA.
Reviewing the second alleged error, it was held that the Tribunal did not err in any of these respects. It was found that the Tribunal could reasonably accept the evidence of two experts that the project would cause serious and irreversible harm without having specific numerical data on the turtle’s population size, the volume of traffic, and the rate of mortality. Furthermore, the Tribunal’s reasons for accepting the opinions of these experts were found to be intelligible, and its conclusion there would be serious and irreversible harm falls within the range of reasonable outcomes and should not be disturbed.
With respect to the third alleged error, it was found that the Tribunal did not err in this respect. The Tribunal correctly considered the evidence of an MNR official who testified that in granting the ESA permit, the MNR concluded that the project would bring an “overall benefit” to Blanding’s turtle in Ontario. Regardless of this testimony the Tribunal had the authority under the ss. 145.2.1(2)(b) of the EPA and did in fact explain that it was considering the impact of the project on the local population of Blanding’s turtle in the immediate area, and not in all of Ontario. Furthermore, the ESA permit was not binding on the Tribunal, because the permit expressly states that it does not release the respondent from the “obligation to obtain permission under or to comply with all applicable federal, provincial and municipal laws.” Therefore, the respondent was obliged to comply with the EPA’s requirement that it obtain an REA and abide by the decision of the Tribunal if the granting of the REA was appealed.
Issue 2
Yes. The Divisional Court erred in two respects in refusing to permit the respondent to admit fresh evidence of the steps it was taking (after the hearing at the Tribunal was held) to have the roads surrounding the proposed project location closed to the public. The Court of Appeal granted the respondent’s cross-appeal to admit this fresh evidence.
In the first respect, it was held that the Divisional Court erred by applying the test for fresh evidence too strictly when it reasoned that the respondent could have led the evidence before the Tribunal if it had exercised reasonable diligence. The Divisional Court reasoned that the respondent knew that road mortality of the turtles was an issue at the time of the Tribunal hearing, and it could have taken steps to lease the property and close the access roads prior to the end of the (tribunal) hearing. If it had done so, it was reasoned that the respondent could have led evidence of the roads’ closure before the Tribunal hearing. The Court of Appeal responded to this reasoning by holding that the parties were not in a position to address ways to reduce possible harm to the turtles without first knowing the Tribunal’s decision on the merits. In other words, the respondent was not in a position to mitigate potential risk of harm to the turtles until the Tribunal rendered its decision on the level and type of harm to the turtles that the project would create.
The Divisional Court’s second reason for dismissing the fresh evidence application was that the fresh evidence pertained to the “facts.” The Divisional Court noted that its jurisdiction on the appeal was limited to questions of law under s. 145.6 of the EPA. On this point, the Court of Appeal held that the fresh evidence about road closures was not tendered solely to address factual issues. The respondent specifically attempted to admit this evidence at the Divisional Court to demonstrate that the Tribunal made two errors of law by failing to provide the parties with procedural fairness and by misinterpreting its statutory remedial authority under the EPA.
Issue 3
No. The Divisional Court correctly found that Tribunal failed to give the parties an opportunity to address the issue of the appropriate remedy, and thereby violated the principles of natural justice and procedural fairness. Specifically, the Tribunal made the following remark, which demonstrates that its decision on this matter was not clear and therefore not reasonable-“[it was] not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.” The Tribunal here was referring to the fact that it was not in a position to alter the Director’s decision, as part of the grant of the REA, to maintain public access to the roads. By making the statement that it was “not in a position”, this suggests that the Tribunal needed to hear submissions from both parties to make an informed decision about whether or not public access to the roads could be maintained and whether this would affect the grant or revocation of the REA.

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