Canada: Ostrander Point Wind Project Returns To The Environmental Review Tribunal

On April 20, 2015, the Court of Appeal for Ontario released its decision in Prince Edward County Field Naturalists v. Ostrander Point GP Inc. As previously reported (on appeal to the Divisional Court) the case concerns a decision of the Environmental Review Tribunal (Tribunal) to revoke a Renewable Energy Approval (REA) granted by the Ministry of the Environment (MOE) to Ostrander Point GP Inc. (Ostrander), permitting Ostrander to construct nine wind turbines (the Project) at Ostrander Point, about fifteen kilometres south of Picton, Ontario.

The Tribunal revoked the REA on the basis of submissions by the Prince Edward County Field of Naturalists (PECFN) that the Project would seriously and irreversibly harm a species of turtle called the Blanding's turtle.

Ostrander appealed the Tribunal's decision to the Divisional Court, which set aside the Tribunal's decision and reinstated the REA.

Both parties appealed aspects of the Divisional Court's decision to the Court of Appeal. The Court of Appeal allowed the PECFN appeal, in part, and restored the Tribunal's conclusion that the project will cause serious and irreversible harm to the Blanding's turtle. However, the Court of Appeal allowed Ostrander's cross-appeal to file fresh evidence of steps it was taking to ameliorate the impact of the Project, and remitted the matter back to the Tribunal to determine the appropriate remedy.


The REA was appealed to the Tribunal under section 145.2.1(2) of the Environmental Protection Act (the Act), which requires the Tribunal to determine whether the Project will cause (a) serious harm to human health, or (b) serious and irreversible harm to plant life, animal life or the natural environment. In this case, the Tribunal was satisfied that the Project will cause serious and irreversible harm to Blanding's turtle, a medium-sized freshwater turtle that is designated as a threatened species under provincial and federal legislation. Importantly for the purposes of the appeal, female Blanding's turtles are attracted to the gravel shoulders of roadways for suitable nesting habitat. They are occasionally killed by passing vehicles. Vehicular mortality was the main threat to the Blanding's turtle that led the Tribunal to conclude that the Project would cause serious and irreversible harm, due to the construction of roads to access the Project.

The Appeals

The first question for decision by the Court of Appeal was the appropriate standard of review of the Tribunal's decision. The Court of Appeal held that a deferential approach to the Tribunal was appropriate. The Court emphasized that the legislature had confided to the Tribunal the question of whether the project should be disallowed because it will cause "serious and irreversible harm to plant life, animal life or the natural environment", and "[t]he Tribunal has the task of the balancing the different and potentially opposing values involved in answering that difficult question." The question for the reviewing Courts, therefore, was whether the Tribunal's decision was reasonable. In determining whether the decision was reasonable, the Court stated that it was looking for "justification, transparency and intelligibility" in the Tribunal's reasons, and whether the result of the Tribunal's decision fell within a range of possible reasonable outcomes.1

Applying the reasonableness standard, the Court of Appeal rejected the three central objections of the Divisional Court to the Tribunal's decision: 

  • First, the Divisional Court concluded that the Tribunal dealt with the concepts of serious harm and irreversible harm together, and failed to explain its reasons for concluding that the harm would be irreversible as well as serious.

    The Court of Appeal disagreed, holding that the Tribunal determined that it was unquestionable from the evidence that there was a risk of serious harm, and "the only real question for the Tribunal to decide was whether the increase in mortality resulting from the roads would be irreversible"; the Tribunal's analysis was focused on whether the harm was irreversible.  
  • Second, the Divisional Court held the Tribunal could not conclude there would be irreversible decline in the population without numerical data on the size of the population impacted, the extent of road mortality currently experienced at the site, the current vehicular traffic on the site and the increase in vehicular traffic that would result from the project.

    The Court of Appeal disagreed, finding that the Tribunal had expert evidence that this type of data was not needed to support the conclusion there would be serious and irreversible harm; the Tribunal did have some evidence of the magnitude of population, mortality rate and traffic volume, in qualitative terms; and it was for the Tribunal to decide whether the qualitative data provided an adequate base for its conclusions.  
  • Third, the Divisional Court held that the Tribunal had failed to give sufficient weight to the fact that Ostrander had already obtained a permit in connection with the Project under section 17(2)(c) of the Ontario Endangered Species Act (the Permit).

    The Court of Appeal disagreed, concluding that the Permit was not binding on the Tribunal. Ostrander was still obliged to comply with its obligations under the Act to obtain the REA and abide by the decision of the Tribunal on appeal; and for the Tribunal's purposes, the Permit was simply evidence relevant to the conditions of the REA. In the result, the Tribunal considered the mitigation measures required by the Permit and concluded they were incomplete and would not be effective, as it was entitled to do.

The Remedy

The Divisional Court concluded that the Tribunal erred in revoking the REA in two ways: first, by failing to give the parties an opportunity to address the issue of the appropriate remedy before deciding to revoke the REA (thereby violating the principals of natural justice and procedural fairness); and second, by making a clear error of law in finding that it (the Tribunal) was not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director (contrary to express provisions of the Act).

The Court of Appeal agreed that the Tribunal had erred in revoking the REA, but for different reasons. The Court of Appeal agreed that the parties should have been afforded the opportunity to address the appropriate remedy before the Tribunal made a decision. Indeed, given the broad and varied range of attacks launched against the REA (which included objections on the basis of allegations of serious harm to human health, among other issues), "it was not realistic to expect the parties to address the appropriate remedy at the end of the hearing of the merits without knowing what the Tribunal's findings were in regard to the broad range of alleged harms." As to the Tribunal's statements about its remedial authority, the Court of Appeal held only that the Tribunal's reasoning on this issue was not clear; as a result, the Court of Appeal could not regard the Tribunal's decision as reasonable. Accordingly, the Court of Appeal concluded that the matter should be remitted to the Tribunal for determination of the appropriate remedy on the basis of fresh submissions.

In the course of reaching this conclusion, the Court of Appeal allowed Ostrander's cross-appeal to admit new evidence. By way of background, after the Tribunal's decision was released, Ostrander took steps to obtain the agreement of the Ministry of Natural Resources to lease the property at the Project Site so that it could prohibit public access to the roads constructed on the site. Ostrander sought leave from the Divisional Court to rely on this evidence on the appeal. The Divisional Court refused, holding that, with reasonable diligence, Ostrander could have led this evidence before the Tribunal (because it knew that road mortality was in issue) and that, in any event, the evidence pertained to facts and was therefore outside of the Divisional Court's jurisdiction on appeal (which was limited to questions of law). The Court of Appeal disagreed, holding that it would have been unreasonable to expect Ostrander to take these remedial steps before it knew of the result of the Tribunal's decision, and that in any event the evidence related to questions of law (i.e., questions of procedural fairness and the Tribunal's remedial authority) because it demonstrated what Ostrander could have shown the Tribunal if it had the opportunity to address the issue of the appropriate remedy. In the result, the evidence of the steps that Ostrander has taken to ameliorate the impact of the Project will be considered by the Tribunal when it hears submissions as to the appropriate remedy.


1. See paras. 39-44, applying the test set out in Dunsmuir v. New Brunswick, 2009 SCC 9.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.