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.

Background

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.

Footnote

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

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