Canada: Divisional Court Confirms The Constitutionality Of The Review Process For Renewable Energy Projects Under Ontario’s EPA

On December 29, 2014, the Ontario Divisional Court released its decision in Dixon v. Director, Ministry of the Environment. In this appeal of three Environmental Review Tribunal decisions, the Court dealt with a challenge to the constitutional validity of the Renewable Energy Approval hearing provisions found in ss. 142.1 and 145.2.1 of the Environmental Protection Act (EPA). Among other things, the appellants, who opposed the development of various wind turbine projects, argued that the hearing provisions infringed their rights to security of the person under s. 7 of the Charter because the test they had to meet under the EPA – "serious harm to human health" – was too onerous. The Court rejected this argument, as well as others, and confirmed that the REA hearing provisions were constitutionally valid. On January 13, 2015, the appellants, having lost before the Divisional Court, sought leave to appeal to the Ontario Court of Appeal.

Brief Facts

In 2013 and 2014, the Director of the Ministry of the Environment authorized the construction and operation of three wind turbine generation farm projects: the St Columban Wind Project, the K2 Wind Project, and the Armow Wind Project. The Director issued a renewable energy approval (REA) under s. 47.5 of the EPA for each project.

Pursuant to s. 142.1 of the EPA, any person residing in Ontario may require the Environmental Review Tribunal (ERT) to hold a hearing to review a decision by the Director to issue a REA on the ground that engaging in the renewable energy project in accordance with the REA will cause "serious harm to human health."1 Residents close to the three approved wind turbine project sites required such hearings. In all three cases, the ERT concluded that the residents had not established that engaging in the projects would cause serious harm to human health. The ERT also rejected the various constitutional arguments advanced by the residents.  The ERT therefore dismissed the residents' requests for review.

Grounds of Appeal

In accordance with the appeal provisions under the EPA, the residents appealed to the Divisional Court "on a question of law," advancing five grounds of appeal, including the following key grounds:

  1. The ERT should have struck down as unconstitutional the test set out in the REA hearing provisions of the EPA (i.e., "serious harm to human health") as too strict and therefore contrary to s. 7 of the Charter, or alternatively should have read the test down as only requiring a "reasonable prospect of serious harm to human health."
  2. The ERT should have similarly struck down as unconstitutional the Director's approval powers under s. 47.5 of the EPA and s. 54 of the REA Regulation (which stipulates set back and noise level requirements for renewable wind energy projects),2 as also contrary to s. 7 of the Charter.
  3. The ERT erred in law by ruling that in order to demonstrate serious harm to human health it was necessary for the Appellants to call evidence from a qualified medical expert.

Decision of the Divisional Court

In its decision, the Court addressed the three key grounds of appeal as follows.

(a)  "Serious Harm" and s. 7 of the Charter

The Court rejected the Appellants' arguments that ss. 142.1(3) and 145.2.1(2) violated s. 7 of the Charter. The Appellants unsuccessfully argued that the requirement of "serious harm to human health" was (i) impossibly high to achieve and (ii) exceeded the s. 7 Charterthreshold test. The Court expressly rejected the Appellants' argument that the threshold for physical harm within s. 7 is that the harm be "non-trivial" rather than "serious."

Rather, the Court ruled that the language in the ss. 142.1(3) and 145.2.1(2) of the EPA ("will cause serious harm to human health") "closely tracked the jurisprudential requirement" that a claimant must demonstrate "serious" harm in order to establish a s. 7 Charterviolation of security of the person. The Court agreed with the Director and Approval Holders' arguments that the standard for both psychological harm and for physical harm must be "serious"; the harm envisioned under s. 7 is "serious", whether or not the harm in question is psychological or physical.

Specifically, with respect to psychological harm, relying on the Supreme Court of Canada decision in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, the Court ruled that "for an infringement of security of the person to be made out, the impugned state action must, when the effects are assessed objectively, have a serious and profound effect on the psychological integrity of a person of reasonable sensibility."3

With respect to physical harm, the Court dismissed the appellants' argument that in Chaoulli v. Quebec (Attorney General), 2005 SCC 35 the Supreme Court established a lesser threshold of proof for a s. 7 violation.  Although Chaoulli allowed that physical harm under s. 7 could be "a condition that is clinically significant to their current and future health", the meaning of "clinically significant" is made clear by other passages in Chaoulli which underscore that there is a threshold requirement of "seriousness" for both physical and psychological harm, such as where serious physical harm is something as serious as the risk of death.

(b)  Whether the ERT had the jurisdiction to review the Director's Decisions to Issue the REAs for Charter compliance

The Appellants argued that the ERT had the jurisdiction to review the REA process conducted by the Director in deciding to issue the REAs in order to determine if the Directors' decisions complied with the Charter. The Court rejected this argument.

The Court ruled that "[t]he jurisdiction of a tribunal to grant a Charter remedy ... depends upon discerning the tribunal's statutory mandate. Put another way, a claimant cannot expand the jurisdiction of a tribunal merely by asserting a Charter remedy; the availability of a Charter remedy to a claimant will depend upon a determination of the tribunal's statutory mandate."

The Court held that the EPA did not grant the ERT jurisdiction to decide questions of law under s. 47.5 of the EPA or s. 54 of the REA Regulation. Rather, the EPA only grants the ERT the limited power to review a Director's REA decision to determine if the approved renewable energy project will cause serious harm to human health (or serious and irreversible harm to plant/animal life).4  Because the Director's approval powers are not within the statutory review mandate of the ERT in a REA hearing, the ERT was correct in concluding that it had no jurisdiction to review them (or the Director's decision) for Charter compliance.

(c)  Whether "serious harm to human health" can be proven without a medical expert

The Court dismissed the appellants' argument that the ERT erred in treating the testimony of "post-turbine witnesses" (witnesses living in the vicinity of existing wind farms) as incapable of proving serious harm or a s. 7 violation in the absence of expert medical evidence establishing a causal link between the wind turbines and the physical or psychological problems testified to by those witnesses.

The Court noted that the ERT assessed the evidence from these fact witnesses in the light of expert medical evidence from the Respondents, which had established that anecdotal "self-diagnosis" by the "post-turbine witnesses" was incapable of establishing a causal connection to wind turbines. In doing so, the ERT was making findings of fact or, at most, mixed fact and law, which were not open to the Court to review under the EPA appeal provisions as they permit the Court only to consider "questions of law."

Significance of Decision 

The Divisional Court's decision in Dixon is only the latest in an ever-growing number of decisions where REAs have been unsuccessfully challenged. A few salient take-aways include:

  1. First, when examining whether the statutory test ("serious harm to human health") is constitutional, the Divisional Court became the first court to comment on the new Health Canada study released in November 2014, which had found no definitive link between wind turbine noise and human health. The Divisional Court noted that the study results "do not permit any conclusions about causality" and held that the study offers "no new relevant evidence" on the constitutionality of the statutory review test ("serious harm to human health"). This finding is consistent with our previous Osler Update which commented that "it appears unlikely that the Study will serve as evidence for wind farm opponents looking to claim "serious harm to human health" within the meaning of Ontario's Environmental Protection Act or a breach of section 7" of the Charter.
  2. Second, the Divisional Court has dealt a significant blow to environmental groups who seek to constitutionalize a Charter right to a "clean environment", making it clear that a violation of the s. 7 Charter right to security of person cannot be trivialized and made easier to meet simply because a claimant asserts a violation due to alleged pollution impacts or risks of an impact. Rather, a Charter claimant in the environmental context still bears the onus of proof to sufficiently demonstrate that the alleged physical and/or psychological impacts are serious and causally connected to the government action or decision at issue.

Now that the appellants have sought leave to appeal to the Ontario Court of Appeal, arguing that the Divisional Court erred in its constitutional analysis, we will need to wait to see whether Ontario's highest court decides to weigh in on the matter.

Footnotes

1  EPA, s. 142.1(3)(a). Section 142.1(3)(b) provides that a person may also require a hearing to review a REA decision on the ground that engaging in the renewable energy project in accordance with the REA will cause "serious and irreversible harm to plant life, animal life or the natural environment."

2  Ontario Regulation 359/09, Renewable Energy Approvals Under Part V.0.1 of the Act, s. 54.

3  See para. 61 (emphasis added).

4  See para. 113. Again, the ERT also has the power to review the Director's decision to determine if the approved renewable energy project will cause serious and irreversible harm to plant/animal life. If the ERT determines that such is the case, it may revoke the REA, alter the Director's decision or issue and order directing the Director to take the actions specified by the ERT.

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