Dixon et al. v. Ontario (Minister of Environment) et al., 2014 ONSC 7404

• Judge: Marrocco, A.C.J.S.C., Henderson and D. Brown, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 29, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONSC 7404;(2014), 332 O.A.C. 304 (DC)

Dixon v. Ont. (2014), 332 O.A.C. 304 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.010

Scotty Dixon, Jennifer Dixon, Thomas Ryan and Catherine Ryan (appellants) v. The Director, Ministry of the Environment and St. Columban Energy LP (respondents)

(2055/14)

Shawn Drennan and Tricia Drennan (appellants) v. The Director, Ministry of the Environment and K2 Wind Ontario Inc., operating as K2 Wind Ontario Limited Partnership (respondents)

(2056/14)

Kenneth George Kroeplin and Sharon Anne Kroeplin (appellants) v. The Director, Ministry of the Environment and SP Armow Wind Ontario GP Inc. as general partner for and on behalf of SP Armow Wind Ontario LP (respondents)

(2073/14; 2014 ONSC 7404)

Indexed As: Dixon et al. v. Ontario (Minister of Environment) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Marrocco, A.C.J.S.C., Henderson and D. Brown, JJ.

December 29, 2014.

Summary:

The Director of the Ministry of the Environment authorized the construction and operation of three wind turbine generation farms. For each project the Director issued a renewable energy approval under the Environmental Protection Act (EPA). The appellants lived close to the proposed sites of wind turbines in each of the three projects. Pursuant to the EPA they sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT). The ERT dismissed their appeals. In accordance with appeal rights granted under the EPA, the appellants appealed each of the three ERT decisions "on a question of law". The appellants asserted that aspects of the statutory scheme for the review of the Director's decisions were constitutionally flawed, especially the requirement that the appellants demonstrate that the projects would cause serious harm to human health. They also argued that the hearings before the ERT were procedurally unfair.

The Ontario Divisional Court dismissed the appeals.

Editor's Note: The appellants' motions for a stay of the construction of two of the wind projects until the resolution of the appeal were dismissed (see (2014), 325 O.A.C. 289).

Administrative Law - Topic 571

The hearing and decision - Decision of the tribunal - Academic or moot matters - The Director of the Ministry of the Environment issued a renewable energy approval (REA) under the Environmental Protection Act (EPA) for each of three wind turbine generation farms - The appellants sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - In the St. Columban Wind proceeding, the Director and St. Columban Energy brought motions to strike out some or all of the appellants' claims for constitutional relief, including the claim that s. 47.5 of the EPA was constitutionally invalid - The appellants brought a motion to strike the Director's motion on the basis of an alleged abuse of process - The appellants argued that the Director's motion to strike was inconsistent with the position he had taken in another court action concerning the appellants' ability to argue for certain constitutional relief - The ERT dismissed the appellants' motion to strike for abuse of process - The ERT found that the appellants' motion was in effect moot in the sense it had no practical effect with respect to the issues before the ERT - The Ontario Divisional Court stated that it saw no error in the ERT's conclusion to dismiss the appellants' motion to strike for abuse of process - The court stated that "As the Tribunal observed, St. Columban Energy also brought a motion before the ERT to strike out the Appellants' constitutional claims, and its ability to do so could not be affected by the quite separate conduct of the Director in the action before this Court. Further, it would have been necessary in any event for the Tribunal to determine whether it possessed the jurisdiction to grant the constitutional relief sought by the Appellants in respect of EPA s. 47.5 and the related provisions of the REA Regulation challenged by the Appellants. The Tribunal's obligation to consider its own jurisdiction arose regardless of any litigation conduct of the Director in an action before this Court"- See paragraphs 133 to 135.

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - The Director of the Ministry of the Environment issued a renewable energy approval under the Environmental Protection Act for each of three wind turbine generation farms - The appellants sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The Ontario Divisional Court found no procedural unfairness resulting from the ERT's refusal to consolidate the proceedings with respect to the St. Columban Wind and K2 Wind projects - The court stated that "... Rule 173(a) of the ERT's Rules of Practice only permits the ERT to combine proceedings which involve the same or similar questions of fact, law or policy where the parties consent. Such consent was not given in the St. Columban Wind and K2 Wind proceedings. Nevertheless, in those proceedings the ERT directed the parties to make best efforts to use all appropriate provisions of the Statutory Powers Procedure Act and the Tribunal's Rules of Practice to promote the efficiency of the two proceedings, including opportunities for avoiding duplication of evidence or submissions in the event that the same main hearing panel presided over both proceedings. In the result, the Tribunals hearing the St. Columban Wind and K2 Wind proceedings shared a common panel member. As well, the Tribunals accepted the parties' agreement to use a simplified process to admit evidence adduced in the first proceeding on the second proceeding and 'back-to-back' hearings were scheduled for the St. Columban Wind and K2 Wind proceedings. In light of that process adopted by the Tribunals, we see no procedural unfairness resulting from the ERT's refusal to consolidate the St. Columban Wind and K2 Wind proceedings" - See paragraphs 131 to 132.

Administrative Law - Topic 2484

Natural justice - Procedure - At hearing - Adjournments - The Director of the Ministry of the Environment issued a renewable energy approval under the Environmental Protection Act for each of three wind turbine generation farms - The appellants sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The appellants alleged that the ERT breached principles of natural justice by denying their request for an adjournment - The Ontario Divisional Court concluded that "the ERT did not exercise its discretion to deny what it considered would be lengthy adjournments of the St. Columban Wind and K2 Wind proceedings in an unreasonable or non-judicious fashion. The Tribunal was required to exercise its discretion in the context of a regulatory scheme which required the disposition of a hearing within six months of the filing of a notice of appeal, absent the granting of an adjournment. The Tribunal had adopted comprehensive and reasonable Rules governing requests for adjournments. ... the ERT applied those Rules in a considered fashion to the evidence placed before it. The Tribunal reasonably concluded that an adjournment of any significant length should only be granted when necessary to secure a fair and just determination of the issues, and the Tribunal reasonably concluded that, as a general rule, parties contemplating an appeal should choose a legal representative who was available to meet the ERT's procedural deadlines. At the hearing before us the Appellants repeated that the Tribunal's refusal to grant the requested adjournment because of the unavailability of senior counsel was unfair, but the Appellants did not identify any prejudice which flowed from the Tribunal's adjournment decision relating to their ability to call the evidence of their choice at the hearing or to advance the arguments they wished to make" - The ERT's refusal to grant the adjournment requested by the appellants did not result in a denial of natural justice or procedural unfairness - See paragraphs 119 to 130.

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - General - Constitutional questions - The Director of the Ministry of the Environment issued a renewable energy approval (REA) under the Environmental Protection Act (EPA) for each of three wind turbine generation farms - The appellants sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The appellants submitted that the ERT erred in law in ruling that it could not review the REA process for Charter compliance - The Ontario Divisional Court stated that "Whether one approaches this issue as one involving the interpretation by a tribunal of its home statute attracting a standard of review of reasonableness or one involving the consideration by the tribunal of a constitutional question attracting the correctness standard, we conclude that the ERT did not err in reaching the conclusion which it did. ... The EPA did not grant the Tribunal jurisdiction to decide questions of law under EPA s. 47.5 or s. 54 of the REA Regulation. The jurisdiction of the ERT in respect of renewable energy projects is triggered by a request for a hearing under EPA s. 142.1. At such hearings the EPA does not grant the ERT a broad power to review the Director's decision issuing a REA, but only grants a limited power of review to determine if the approved renewable energy project will cause serious harm to human health. It therefore was not open to the Tribunal to review the decision of the Director to issue a REA generally to ascertain whether the decision complied with the Charter - as argued by the Appellants before us - but only to review whether the project to which the REA was issued would cause serious harm to human health. The Tribunal correctly held that its power to address a Charter claim was limited to the matters assigned to it by EPA s. 142.1" - See paragraphs 106 to 115.

Civil Rights - Topic 1205

Security of the person - Security of the person defined - The Director of the Ministry of the Environment issued a renewable energy approval under the Environmental Protection Act (EPA) for each of three wind turbine generation farms - The appellants lived close to the proposed sites of wind turbines in each of the three projects - They sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The appellants submitted that ss. 142.1(3) and 145.2.1(2) of the EPA violated s. 7 of the Charter because the legislation placed the onus on the appellants to prove that the wind projects would cause "serious harm to human health", a standard the appellants submitted was impossibly high to achieve - The crux of their argument was that the statutory test of "will cause serious harm to human health" was constitutionally infirm because it exceeded the "harm test" implicit in s. 7 of the Charter of simply demonstrating that a wind farm project would cause "a reasonable prospect of serious harm to human health" - The Ontario Divisional Court held that the ERT correctly rejected the appellants' constitutional claim - First, the statutory language of "will cause serious harm to human health" found in ss. 142.1(3) and 145.2.1(2) of the EPA closely tracked the jurisprudential requirement that in order to establish a violation of security of the person a claimant had to demonstrate "serious" harm - Second, expanding the analysis to include a contextual examination of the statutory test did not result in a different conclusion - The statutory review test adopted by the Ontario Legislature in ss. 142.1(3) and 145.2.1(2) in respect of the impact on human health of contaminants, such as sound and vibration discharged from commercial wind farms, did not, on its face, depart from the jurisprudential test for establishing a state violation of a person's security of person under s. 7 of the Charter - See paragraphs 59 to 91.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - The Director of the Ministry of the Environment issued a renewable energy approval under the Environmental Protection Act (EPA) for each of three wind turbine generation farms - The appellants lived close to the proposed sites of wind turbines - They sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The appellants submitted that ss. 142.1(3) and 145.2.1(2) of the EPA violated s. 7 of the Charter because the legislation placed the onus on the appellants to prove that the wind projects would cause "serious harm to human health", a standard the appellants submitted was impossibly high to achieve - The Ontario Divisional Court considered whether the appellants' claims engaged an analysis under the Charter - The court stated that "The Charter applies to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. Two aspects of the Appellants' s. 7 Charter claims are significant in this regard. First, the Appellants, on proper notice of a constitutional question, challenged the constitutional validity of provisions in provincial legislation, the EPA. Such challenges to the validity of provincial legislation required the ERT to engage in a Charter analysis, which it did. Second, put in colloquial terms the Appellants alleged that the provincial government was allowing bad, harmful things to come into their neighbourhoods ... The government's authorization of a construction activity which the Appellants allege will cause them harm constitutes a sufficient causal connection between the government activity and the alleged prejudice to embark upon a review and consideration of their Charter claims - i.e. the Appellants asserted a reasonable Charter 'cause of action' at law'" - See paragraphs 56 to 58.

Pollution Control - Topic 1002

Licensing or approval - General - Certificate of authorization (incl. environmental assessment certificate) - [See Civil Rights - Topic 1205 ].

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review or appeals - The Director of the Ministry of the Environment issued a renewable energy approval under the Environmental Protection Act (EPA) for each of three wind turbine generation farms - The appellants lived close to the proposed sites of wind turbines - They sought review hearings of the Director's decisions at the Environmental Review Tribunal (ERT) - The ERT dismissed their appeals - The appellants appealed the ERT decisions - The appellants submitted that ss. 142.1(3) and 145.2.1(2) of the EPA violated s. 7 of the Charter - They submitted that the ERT committed an error of law by crafting and applying a "blanket rule" of evidence which treated the testimony of the post-turbine witnesses as incapable of establishing a s. 7 Charter violation in the absence of expert medical evidence establishing a causal link between the activity of wind turbines and the physical or psychological problems testified to by those witnesses - The Ontario Divisional Court stated that "In sum, the Tribunals assessed the evidence which they heard from fact witnesses in the light of expert medical evidence which they heard about the inferences of causation which could or could not be drawn from such fact evidence. In so doing, the Tribunals were not determining questions of law, but were making findings of fact or, at most, findings of mixed fact and law. Those determinations are not open to this Court to review on an appeal under EPA section 145.6, and we therefore give no effect to this ground of appeal by the Appellants" - See paragraphs 99 to 102.

Cases Noticed:

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 28, footnote 3].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 55, footnote 10].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 58, footnote 13].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 61, footnote 15].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 61, footnote 16].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 61, footnote 17].

Hanna v. Ontario (Attorney General) et al. (2011), 280 O.A.C. 96; 105 O.R.(3d) 111; 2011 ONSC 609, refd to. [para. 70, footnote 24].

Ostrander Point GP Inc. et al. v. Prince Edward County Field Naturalists et al. (2014), 318 O.A.C. 118; 2014 ONSC 974, refd to. [para. 79, footnote 26].

Sengmueller v. Sengmueller (1994), 69 O.A.C. 312; 17 O.R.(3d) 208 (C.A.), refd to. [para. 80, footnote 27].

Millership v. British Columbia et al., [2003] B.C.T.C. 82; 2003 BCSC 82, refd to. [para. 89].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [para. 108, footnote 33].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 109, footnote 34].

Senjule v. Law Society of Upper Canada (2013), 309 O.A.C. 1; 2013 ONSC 2817 (Div. Ct.), refd to. [para. 118, footnote 36].

Drennan v. K2 Wind Ontario Inc. et al. [2013] O.T.C. Uned. 2831; 2013 ONSC 2831, refd to. [para. 133, footnote 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 7].

Environmental Protection Act, R.S.O. 1990, c. E-19, sect. 47.5 [para. 40]; sect. 142.1, sect. 142.2 [para. 41]; sect. 145.2.1 [para. 42].

Counsel:

J. Falconer, A. James and J. Subhan, for the appellants;

M. Horner, D. Meuleman, S. Wright, A. Huckins and D. Huffaker, for the respondent, Director, Ministry of the Environment;

D. Cruz, E. Pellegrino and C. Wayland, for the respondent, St. Columban Energy LP;

C. Bredt, for the respondent, K2 Wind Power Inc.;

J. Bunting and N. Read-Ellis, for the respondent, K2 Wind Ontario Inc. and SP Armow Wind Ontario GP Inc.;

R. Macklin and N. Wilson, for the intervenor, The Coalition Against Industrial Wind Turbines (Ontario);

B. Davies and D. Cribbs, for the intervenor, The Corporation of The County of Lambton.

These appeals were heard on November 17-20, 2014, at London, Ontario, before Marrocco, A.C.J.S.C., Henderson and D. Brown, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was released on December 29, 2014.