Since the Green Energy and Economy Act, 2009 came into
force on May 14, 2009, the debate continues about whether
municipalities can regulate renewable energy projects. At least
three court decisions have now been made which indicate that other
possible avenues of municipal regulation of renewable energy
projects, and in particular wind turbine developments, will be
The most recent case is the June 2016 decision of the Ontario
Court of Appeal in wpd Sumac Wind Incorporated v. Kawartha Lakes
(City), which was an appeal by the City of Kawartha Lakes from
Divisional Court's judicial review decision. The Divisional Court
quashed the municipality's resolution that it would refuse to
authorize the use of an unopened road to support wind turbine
development. The Court of Appeal upheld the decision.
In the Kawartha Lakes decision, the Court of Appeal considered
whether "provincial paramountcy limit[s] a municipality's
authority over one of its unopened municipal road allowances when
the province issues a Renewable Energy Approval for a wind turbine
project that provides for the use of that same road". The
court concluded that it did.
In reaching its decision, the court recited the many failed
efforts made by the wind developer to engage with the municipality
regarding its proposed use of the road. While Sumac was making
attempts to meet the municipal requests that had been made related
to the use of the unopened road, Kawartha Lakes passed a resolution
clearly indicating that Sumac's request, or that of any
successor, for use of the unopened portion of Wild Turkey Road for
its wind development would be refused. It was this resolution that
was the subject of the judicial review and subsequent appeal.
On appeal, Kawartha Lakes argued that the REA granted was a
permissive instrument that merely determined the project will not
harm the environment. It argued that its resolution could therefore
not be frustrating a provincial aim. The Court of Appeal engaged in
an in-depth review of the Green Energy and Economy Act, 2009 and
the purposes of the EPA. It concluded that the REA is not simply an
assessment confirming that the proposed project would not harm the
environment. The court concluded that the REA was a positive
entitlement with a provincial determination that the project was
"in the public interest," and the municipality could not
use its authority over roads to thwart it.
The Court of Appeal concluded that to the extent municipal
permits are required, the only concerns a municipality can advance
are reasonable considerations such as costs, indemnification, and
liability, and only so long as it does so in good faith. Permits
cannot be refused simply because a municipality disagrees with the
The case of East Durham Wind, Inc. v. The Municipality of West
Gray engaged similar issues. There, the municipality refused
entrance permits or permits for oversized/overweight haulage on the
basis that East Durham failed to meet its permitting by-laws. Like
Kawartha Lakes, West Gray had passed resolutions to indicate it was
not a willing host. In West Gray, the court declined to find bad
faith, but concluded that the permitting by-laws prevented the
project and so frustrated the purpose of the REA granted. They were
held to be "inoperable" to the extent they conflicted
with East Durham Wind's REA. The municipality was ordered to
reconsider the applications, in accordance with the court's
In 2013, the Superior Court in Wainfleet Wind Energy Inc. v. Township of
Wainfleet concluded the Township of Wainfleet's wind
project by-law was void for vagueness. Though it was clear the
by-law would block Wainfleet Wind Energy's project, the court
concluded aspects of the by-law were unintelligible.
Municipalities may yet find ways to stop unpopular wind
projects, but it is becoming increasingly clear the courts will not
pave an easy path to such a goal. In the meantime, municipalities
will likely face adverse costs awards, on top expensive costs for
their own counsel.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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