The Ontario Divisional Court determined on April 4, 2014
that Prince Edward County Field Naturalists and the Alliance to
Protect Prince Edward County should pay "fair and
reasonable" costs to Ostrander Point GP Inc. within 30 days of
the decision. The costs award follows the Court's February 20,
2014 decision to allow an appeal by Ostrander and the Director of
the Ministry of the Environment of the Environmental Review
Tribunal's revocation of the Director's grant of a
Renewable Energy Approval for a nine turbine wind farm in Prince
Edward County. The costs award sends a message to citizen groups to
budget for an award of potential litigation costs in the event a
proponent or the government is successful.
On February 20, 2014, the Ontario Divisional Court allowed an
appeal by Ostrander Point GP Inc. (Ostrander) and the Director,
Ministry of the Environment (Director) from the Environmental
Review Tribunal's (ERT) decision to revoke the Director's
decision to grant a Renewable Energy Approval for a nine turbine
wind farm located on Crown land in Prince Edward County (see
Ontario Court Overturns ERT Decision Revoking Ostrander's
Renewable Energy Wind Farm Approval"). The Court also set
aside the ERT's decision and dismissed appeals by Prince Edward
County Field Naturalists (PECFN) and the Alliance to Protect Prince
Edward County (APPEC) from other parts of the ERT's
Ostrander then sought costs against PECFN in the amount $120,000
inclusive of disbursements and HST. It also sought costs against
APPEC in the amount of $30,000 inclusive of disbursements and HST.
The Director only sought reimbursement from PECFN in the amount
$2,926.70, representing the amount paid for transcripts.
1 Nature of the unsuccessful litigant –
The PECFN and APPEC are not public advocacy groups pursuing a broad
public policy mandate. As residents of Prince Edward County, they
have a "direct and personal interest" in the outcome of
2 Nature of the successful litigant –
Ostrander is a private party and not a public one such as the
3 Nature of the case – was it in the public
interest? While there is a measure of public interest in
the appeals, which did raise matters not previously been considered
by the Court, that alone is not enough to dictate a costs
4 Whether the litigation had any adverse impact on the
public interest – While there is no serious adverse
impact on the public interest, the appeal caused a delay to the
wind turbine project going forward, despite its approval by two
5 Final consequences to the parties –
While Ostrander is better suited to absorb costs associated with
the litigation, that alone is not a reason to deny costs. One
function of awarding costs is to ensure that all parties
"consider the wisdom of pursuing litigation and understand
that there are consequences for doing so".
Based on these factors, the Court determined that PECFN and
APPEC should pay costs to Ostrander in an amount that is "fair
and reasonable". The Court noted that Ostrander's appeal
took up two of the three days of the appeals. With this in mind,
the Court awarded Ostrander one third of what it had sought. PECFN
was ordered to pay $40,000 inclusive of disbursements and HST and
APPEC was ordered to pay $10,000 inclusive of disbursements and
HST. ECFN was found liable (in the amount of $2,926.70) for
reimbursing the Director the cost of providing additional
transcripts for the appeal.
All of the costs were payable within 30 days.
If the proponent has received a government approval or permit to
proceed with a project, citizen groups should recognize that there
is a very real prospect that "fair and reasonable"
litigation costs could be awarded against them if the proponent is
successful in the appeal. This litigation risk is real, despite the
degree of public interest involved and the extent to which the
issues raised are novel. Moreover, citizen groups should budget for
such costs and ensure that access to sufficient funds is readily
available as the time for payment can be very short.
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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