Recently, the Environmental Review Tribunal (the
"Tribunal") allowed in part the appeal of a Renewable
Energy Approval ("REA") approving the construction of a
wind turbine facility in the Oak Ridges Moraine Area in the City of
Kawartha Lakes (the "Project"). The Tribunal concluded
that, with respect to harm to the woodlands, neither the
compensation nor mitigation measures proposed by the approval
holder were sufficient to show that the removal of a portion of the
woodlands would not result in serious and irreversible harm.
This appears only to be the second time that a REA has been
successfully challenged at the Tribunal.
In SLWP Opposition Corp v Ontario, 2015 CanLII
83848, the Appellant was a community group and argued that the
project would cause serious harm to human health and
serious and irreversible harm to plant life, animal life, or the
The Tribunal, as it has consistently done in the past,
concluded the Appellant could not establish harm to human health.
In this case, the evidence only raised concerns about the potential
for harm to human health.
The Appellant further argued that there was a serious risk to
the natural environment from the potential for the spill of
hydrocarbons into the groundwater due to the type of equipment
proposed. Although the Appellant attempted to establish that a
spill of hydrocarbons was inevitable, the Tribunal concluded that
there was little risk of a spill or groundwater contamination given
the equipment proposed and safeguards in place.
The Tribunal then considered whether the project would cause
serious and irreversible harm to plant life, animal life or the
natural environment, specifically through impacts to grassland bird
habitat and to woodlands/woodland habitat. While there was the real
potential for impacts to grassland bird habitat, the Tribunal found
that an agreement with a nearby landholder to create compensation
habitat would offset the impacts of the project to grassland bird
However, the Tribunal concluded that, with respect to harm to
the woodlands, neither the compensation nor mitigation measures
proposed by the approval holder were sufficient to show that the
removal of a portion of the woodlands would not result in serious
and irreversible harm.
The woodlands were located within the Oak Ridges Moraine
Conservation Area, and the Oak Ridges Moraine Conservation Plan
considered significant woodlands to be a key natural heritage
feature afforded special protection from development. Indeed,
development was prohibited unless an exception applied and even
then only when a need is shown. This was a strong indication to the
Tribunal that the removal of a portion of a significant woodland in
this area should be considered serious harm.
The woodlands in this situation was significant as it was a
diverse functioning woodland providing connectivity and habitat for
a variety of species. The removal of woodlands would result in
fragmentation of the woodland, which has already been identified as
a serious problem in southern Ontario, leading to an increase of
edge habitat at the expense of interior habitat and a loss of
The harm was found to be irreversible. While the approval holder
proposed compensation and mitigation measures through replanting,
it was unclear whether the functionality lost through woodland
removal could be replicated. Even assuming that the functionality
could be replaced, it was clear that any attempt to do so would
extend decades beyond the life of the Project.
While the Tribunal noted that there has been little
consideration of what constitutes "irreversible harm"
under the EPA it found the Court's analysis of the irreparable
harm in the injunction context instructive. Prior court decisions
had found that irreparable harm was easily established in the
context of tree removal given the length of time it takes for trees
The Tribunal has only once before this decision allowed (in part) an appeal of a REA for
a wind turbine project planned for an ecologically sensitive area
at Ostrander Point in Prince Edward County. There, one
Appellant successfully established that the project, which would
require construction of roads and increased vehicular
traffic, was likely to cause serious and irreversible harm to
Blanding's Turtle populations. The Ostrander sage wound
its way through both the Divisional Court and the Court of Appeal,
with the latter ultimately upholding the Tribunal's original
findings, but sending it back to the Tribunal for
reconsideration of remedies.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
In June, 2016, Justice Faieta of the Ontario Superior Court of Justice awarded damages of $57,712.31 plus interest against legal counsel who failed to file a claim within the required limitation period.
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