Canada: Demonstrating Harm: Statutory Test For Appealing Wind Turbine Projects Deemed Constitutional By The Divisional Court

Last Updated: January 14 2015
Article by Carole J. Piovesan and Eric Pellegrino

Most Read Contributor in Canada, September 2018

The approval of industrial wind turbine projects is often met with resistance from the communities in which the projects are to be built. Residents (or businesses) located in close proximity to project sites often challenge the location of a project on the basis that the turbines cause harm to human health or the environment.

Dixon v. Director, Ministry of the Environment is an important case, particularly for those tracking renewable energy or large-scale rural land development projects in Ontario. Dixon is an appeal of three decisions of the Environmental Review Tribunal to approve three wind turbine projects in Bruce and Huron Counties in Ontario. Darryl Cruz, Chris Wayland and Eric Pellegrino of McCarthy Tétrault successfully represented the developer of one of the projects, St. Columban Energy Inc. 

Background

In 2013 and 2014 the Director of the Ministry of the Environment (the "Director") authorized the construction and operation of three separate wind turbine generation projects in Huron and Bruce Counties by St. Columban Energy LP ("St. Columban Wind Project"), K2 Wind Ontario Limited Partnership ("K2 Wind Project") and SP Armow Wind Ontario LP ("Armow Wind Project") respectively. Each wind project was to be located in close proximity to residents who objected to the construction of the wind projects in their communities.

Approval and Appeal Process

In order to construct and operate a large wind power project in Ontario, a developer must first obtain a Renewable Energy Approval ("REA") from the Director.  Part V.0.1 of the Environmental Protection Act (the "EPA") establishes a statutory regime for the review and issuance of REAs.

Under s. 142.1 of the EPA, any resident in Ontario may appeal the issuance of a REA to the Environmental Review Tribunal (the "Tribunal") on the basis that the project, as approved:

(a) will cause serious harm to human health, or

(b) will cause serious and irreversible harm to plant life, animal life or the natural environment.

Subsection (a) – serious harm to human health – is at issue in this case.

Environmental Review Tribunal

The appellants appealed the REAs issued for the three projects, challenging the Director's decision on two grounds. First, the appellants argued that the projects would cause serious harm to human health. Second, the appellants challenged the constitutionality of the statutory test itself (particularly subsection (a) above) on the basis that it violated their security of the person according to s. 7 of the Charter.

The Tribunal dismissed all three appeals.

As to the first issue, the Tribunal found that the appellants failed to lead any evidence that the projects would cause "serious" harm to human health, despite it being the appellants' burden to establish a positive determination in that regard.

As to the second issue, the Tribunal rejected the argument that the REA appeal provisions violated the Charter.

Appeal to the Divisional Court

The appellants appealed the Tribunal's decisions to the Divisional Court on the basis that the decisions were constitutionally flawed and procedurally unfair. The three appeals were heard concurrently.

 

Constitutional Question

The appellants' argued, among other things, that the Tribunal's decisions were constitutionally flawed for the following reasons:

a)    the Tribunal erred in failing to find that the test of  "serious harm" under the EPA violated section 7 of the Charter because it is an impossibly high standard to meet; and

b)    the Tribunal erred in ruling that it cannot review the Director's decision-making processes when issuing a REA in order to assess the Director's compliance with the Charter.

 The Divisional Court dismissed the appellants' arguments for the reasons that:

a)    the "serious harm" test closely tracks the jurisprudential requirement of the Charter that in order to establish a violation of security of the person a claimant must demonstrate "serious" harm; and

b)    the EPA does not grant the Tribunal a broad power to review the Director's decision-making processes in the issuance of a REA. The EPA only grants a limited power of review to determine if a project will cause serious harm to human health. The Tribunal is not empowered to review the Director's decision relating to the REA generally to ascertain whether the decision complied with the Charter.

Procedural Fairness

The appellants argued that the Tribunal violated principles of procedural fairness and natural justice by denying their request for an adjournment of the hearing dates for the St. Columban and K2 hearings. The appellants' request for the adjournments was based on a variety of issues, including the availability of senior counsel.

The Tribunal refused to grant the adjournment because doing so would have jeopardized its ability to dispose of the appeals within six months of being filed, as is required by the EPA. The appellants contended that the Tribunal erred in not exercising its statutory discretion to "stop the clock" with respect to the six-month deadline to allow for the adjournments.

The Court found that the Tribunal's decision to deny the adjournments was not made in an unreasonable or non-judicious fashion. The Tribunal was required to exercise its discretion in the context of a regulatory scheme which necessitated the disposition of the appeals within six months. In that context, denying the adjournments was appropriate given that the appellants did not adduce sufficient evidence to justify the delay.

The Court's finding in that regard is important because it supports the Tribunal's practice of ensuring that it disposes of appeals prior to the statutory deadline, absent exceptional and unusual circumstances.

Potential Significance

This case engages the sensitive question of safe proximity of wind projects to residents or local businesses. Dixon is significant for future appeals of renewable energy projects in that it affirms the constitutionality and appropriateness of the statutory "serious harm" test that the Tribunal must consider when assessing the merits of an appellant's case.  Dixon also confirms that the Tribunal's limited mandate in that regard does not provide it with the power to review the Director's decision-making processes in deciding to issue a REA.

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