In 2009, the Province of Ontario passed the Green Energy and
Green Economy Act, 2009, which introduced a new
Renewable Energy Approval ("REA") process for wind,
solar, and other renewable energy facilities. Fraser Milner
Casgrain LLP (FMC) previously published a
newsletter summarizing these developments. One of the
highlights of the REA process was a curtailed and streamlined right
of appeal by project opponents to the Environmental Review Tribunal
On May 14, 2010, the ERT finally published draft rules for the
REA appeals process (the "Draft Rules"). Stakeholders can
comment on the Draft Rules until June 14, 2010. A complete copy of
the Draft Rules can be obtained at www.ert.gov.on.ca/english/home.html .
The 2009 REA amendments require the ERT to adhere to a six-month
processing timeline between the issuance of a notice of appeal and
the rendering of a decision. This requirement has translated into
tight timelines in the proposed appeal process. The ERT has further
published a draft "Guide to Appeals by Members of the Public
regarding Renewable Energy Approvals under section 142.1 of the
Environmental Protection Act" (the
"Guide"), which sets out additional timelines not
directly reflected in the Draft Rules. The Guide can also be
accessed at www.ert.gov.on.ca/english/home.html .
Between the Draft Rules and the Guide, the ERT has set up the
following standard timetable for various steps in the appeal
Service and filing of a notice of appeal within 15 days of the
decision by the Director of the Ministry of the Environment to
issue an REA. This timeline is a statutory requirement arising from
section 142.1(2) of the Environmental Protection Act.
Within 14 days of the notice of appeal having been served and
filed, the Director must serve and file responding materials.
Within four weeks of the deadline for filing a notice of
appeal, the ERT will hold a preliminary hearing.
At least four days before the preliminary hearing, any person
seeking status as a party, participant or presenter, must file a
written request for status, as well as a statement of issues and
submissions with respect to the substantive issues on the
At least one day before the preliminary hearing, the appellant,
Director and holder of the REA must each serve and file responding
submissions to any requests for status.
If applicable, within five weeks of the deadline for appealing
the REA, the ERT offers a voluntary mediation by an ERT member that
cannot sit on the subsequent hearing. This service is provided at
no cost to the parties.
Within 5.5 weeks of the deadline for appealing the REA, all
parties must disclose any additional documents and witness
statements to be relied on at the hearing, as well as the resumes
of any expert witnesses. Witness statements include those of
qualified experts and their opinion evidence.
Within eight weeks of the deadline for appealing the REA, the
ERT will hold the hearing.
At least seven days before the hearing, the parties must file a
brief, setting out any material facts and issues still in
At least four days before the hearing, the ERT will schedule a
further preliminary hearing to finalize issues and witness lists,
and provide procedural direction with respect to the hearing.
Within six months of the appeal being launched, the ERT will
render a decision on the hearing.
While this timeframe represents an ambitious commitment to
provide a fast track hearing process, there is currently no
commitment by the Province of Ontario to provide additional
resources to the ERT. In light of the fact that the Ontario Power
Authority awarded 184 FIT contracts in April 2010, with an
additional 256 applications still awaiting the economic connection
test, it is likely that the ERT will see a significant increase in
activity. Accordingly, there is a risk of other ERT matters being
delayed if the ERT must prioritize REA appeals.
It should further be noted that the ERT can "stop the
clock" with respect to the above-noted timeline at any time on
consent, or where "the Tribunal determines that an adjournment
is necessary to secure a fair and just determination of the
proceeding on its merits." As such, it remains to be seen how
the process will work in practice, and whether the ERT will develop
a practice of granting adjournments on its own accord.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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