On February 20, 2014, the Ontario Divisional Court set aside
the Environmental Review Tribunal's (ERT) revocation of
Ostrander Point GP's (Ostrander) renewable energy approval for
a wind farm near Picton. InOstrander Point GP Inc. (and another) v. Prince
Edward County Field Naturalists (and another) (2014 ONSC 974),
the Court found the ERT's prior decision to be
"unreasonable" on the basis of several errors of law
which, both individually and collectively, were fatal to the
ERT's conclusions.The decision clearly
signals that it will be difficult to overturn a renewable energy
approval on the basis that the wind farm will cause "serious
and irreversible harm to plant life, animal life or the natural
The ERT's July 2013 Revocation of
Ostrander's Renewable Energy Approval
The renewable energy approval issued by the MOE related to a
nine turbine wind farm located on Crown land about 15 km south of
As reported in
the September 2013 issue of the Willms & Shier
e-newsletter, the ERT decided to revoke the approval in July
2013 on the grounds that the project would cause "serious and
irreversible harm" to a population of Blanding's turtles,
a threatened species in Ontario. The ERT concluded that traffic on
access roads to the project, together with an increase in poaching
and predators, would cause serious and irreversible harm to the
turtles on site. The ERT revoked the approval pursuant to section
145.2.1(4) of the Ontario Environmental Protection Act
Ostrander and the MOE appealed the ERT's decision. The
Prince Edward County Field Naturalists (PECFN) also appealed,
claiming that the ERT had erred in not finding that the project
also posed same threat to migratory birds and alvar plant life. The
Alliance to Protect Prince Edward County (APPEC) appealed as well,
on the grounds that the project would cause serious harm to human
The Ontario Divisional Court's
In its decision of February 20, 2014, the Court found the
following errors of law to be both individually and collectively
fatal to the ERT's conclusions:
1Failure to separately identify
and explain reasons – The ERT failed to
separately identify and explain its reasons for concluding that, if
serious harm would result from the project, that serious harm was
"irreversibility" not to EPA standard
– The Court found a lack of evidence demonstrating
"irreversibility" since the ERT did not know: (i) the
size of the Blanding's turtle population on the site, in the
surrounding area or in the rest of the province; (ii) the magnitude
of the mortality rate for the species; and (iii) the data for
existing or projected vehicular traffic at the site.
3Failure to consider permit issued
under Endangered Species Act – Considering the
issue of irreversible harm, the Court held that the ERT did not
take account of the fact that Ostrander had obtained a permit from
the Ministry of Natural Resources under the Endangered Species
Act (ESA). This permit allowed Ostrander to harm the
Blanding's turtle and its critical habitat when constructing
and operating the wind farm. The ERT was obliged to apply its
statutory mandate in a manner that would avoid any conflict with
the ESA regime.
4Parties not given opportunity to
address appropriate remedy – After determining
that the Blanding's turtle population would be subject to
serious and irreversible harm, the ERT (for reasons of natural
justice and procedural fairness) should have given the parties an
opportunity to address the appropriate remedy to be adopted by the
5Error in finding that ERT not
able to amend or alter MOE decision – The ERT
erred in finding that it was not in a position under the EPA to
alter the decision of the Director of the MOE to issue the
renewable energy approval or to substitute its opinion for that of
the Director pursuant to section 145.2.1(4) of the EPA.
The Court went on to deny the appeals made by the PECFN
(respecting serious and irreversible harm to mmigratory birds and
alvar plant life) and the APPEC (respecting serious harm to human
Next Steps Based on media reports, it
is expected that the PECFN will seek leave to appeal the Divisional
Charles (Chuck) J. Birchall, B.A. (Hons.), LL.B.,
LL.M., has over 23 years of legal experience devoted exclusively to
environmental law. Chuck provides advice on environmental
assessment and compliance, energy law and Aboriginal consultation
and economic development. Chuck has particular experience advising
on environmental assessment issues raised by mining, oil and gas,
energy and infrastructure projects.
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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