On March 3, 2011, the Divisional Court dismissed a judicial
review application challenging sections of Ontario Regulation
389/09 (the "Regulation"), made under Part V.0.1 of the
Environmental Protection Act, RSO 1990, c E19 (the
"EPA"). The impugned sections deal with minimum
setback requirements and conformity to noise guidelines for wind
energy facilities. The Regulation streamlines the approval process
for green energy projects and is the culmination of the
government's initiatives to reduce greenhouse gas emissions
for the purpose of protecting the environment and public
The Divisional Court's decision finally disposes of the
proceeding, which was the subject of a number of interlocutory
decisions wherein the court granted intervenor status to the
Canadian Wind Energy Association and struck out some of the
applicant's affidavit evidence.
The applicant, a farmer, argued that the regulation was
ultra vires because the Minister had failed to follow the
process mandated by section 11 of the Environmental Bill of
Rights, SO 1993, c 28 (the "EBR") before
recommending promulgation of the regulation. Section 11 of the
EBR requires the Minister of the Environment to "take
every reasonable step to ensure that the ministry statement of
environmental values (the "SEV") is considered whenever
decisions that might significantly affect the environment are made
in the ministry". One of the principles set out in the SEV
requires the Ministry to use a precautionary science-based approach
in its decision-making to protect human health and the environment.
The applicant argued that the Minister failed to consider the
"precautionary principle", as there was medical
uncertainty about the impact on human health from industrial wind
turbines located at the minimum setback of 550 metres from a
The court prefaced its analysis by noting that the decision of
the minister is protected from judicial scrutiny by two privative
clauses in the EBR, and that the court's
jurisdiction was "therefore quite circumscribed".
The court found that health concerns for persons living in
proximity to wind turbines do not trump all other considerations,
especially given the availability of an appeal to the Environmental
Review Tribunal for an individual wishing to challenge the approval
of an industrial wind turbine. The Tribunal has the authority to
revoke approval if it is persuaded by evidence that the 550 metre
minimum setback is inadequate to protect human health from serious
harm. The court held that this was the relevant context in which
the Minister's consideration of the SEV had to be
In dismissing the application, the court was satisfied that the
Minister had complied with the process mandated by section 11 of
the EBR, which requires the Minister to take every
reasonable step to consider all 10 principles in the SEV, including
the "precautionary principle" and a principle requiring
the Minister to "place priority" on preventing and
minimizing pollution. There was a full public consultation prior to
recommending the promulgation of the regulation. The ministerial
review included science-based evidence from the World Health
Organization and acoustical engineering experts. The
"precautionary principle" did not preclude the decision
taken by the Minister.
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