Prince Edward County Field Naturalists v. Ostrander Point GP Inc. et al., (2015) 332 O.A.C. 374 (CA)

• Judge: Cronk, Juriansz and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 08, 2014
• Jurisdiction: Ontario
• Citations: (2015), 332 O.A.C. 374 (CA);2015 ONCA 269

Prince Edward v. Ostrander Point (2015), 332 O.A.C. 374 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.023

Prince Edward County Field Naturalists (appellant/respondent on cross-appeal) v. Ostrander Point GP Inc., as general partner for and on behalf of Ostrander Point Wind Energy LP and Director, Ministry of the Environment (respondents/ appellant on cross-appeal )

(C59008; 2015 ONCA 269)

Indexed As: Prince Edward County Field Naturalists v. Ostrander Point GP Inc. et al.

Ontario Court of Appeal

Cronk, Juriansz and Epstein, JJ.A.

April 20, 2015.

Summary:

The Ministry of the Environment issued a renewable energy approval (REA) to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land. Prince Edward County Field Naturalists (PECFN) appealed on the grounds that the project would cause serious and irreversible harm to two animal species (Blanding's turtles and birds) and to plant life (alvar) (Environmental Protection Act, s. 145.2.1(2)). The Alliance to Protect Prince Edward County (APPEC) appealed on the grounds that the project would cause serious harm to human health. The Environmental Review Tribunal allowed PECFN's appeal as it related to Blanding's turtles and revoked the approval. The Tribunal dismissed PECFN's appeal as it related to birds and alvar and dismissed APPEC's appeal. Ostrander and the Director of the Ministry of Environment appealed the decision to revoke the approval. PECFN appealed from the Tribunal's dismissal of their appeal respecting birds and alvar. APPEC appealed the dismissal of their appeal.

The Ontario Divisional Court, in a decision reported at 318 O.A.C. 118, allowed Ostrander and the Director's appeal and dismissed PECFN's and APPEC's appeals. It set aside the Tribunal's finding of serious and irreversible harm to the Blanding's turtle and the revocation of the REA. The PECFN were granted leave to appeal. Ostrander cross-appealed, claiming that the Divisional Court erred in dismissing its fresh evidence application.

The Ontario Court of Appeal held that the main question was whether the Divisional Court identified the appropriate standard of review and applied it correctly. The court allowed the appeal in part and restored the Tribunal's conclusion that the project would cause serious and irreversible harm to the Blanding's turtle. The court dismissed the appeal from the Divisional Court's finding the Tribunal erred in how it dealt with remedy. The court allowed the cross-appeal, holding that the Divisional Court erred in not allowing the fresh evidence. The court remitted the issue of what remedy was appropriate back to the Tribunal to decide after giving the parties the opportunity to be heard.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - The Director of the Ministry of the Environment issued a renewable energy approval (REA) to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land - The Environmental Review Tribunal allowed an appeal and set aside the approval on the basis that the project would seriously and irreversibly harm a species of animals (Blanding's turtles) (Environmental Protection Act (EPA), s. 145.2.1(2)) - The finding of serious and irreversible harm arose principally, if not entirely, from the Tribunal's conclusion that public use of the access roads would greatly increase the turtles' mortality - The Divisional Court allowed Ostrander's appeal, holding that the Tribunal's conclusion respecting serious and irreversible harm was unreasonable - Even if it was reasonable, there was an important issue respecting the remedy granted - On further appeal, the Ontario Court of Appeal restored the Tribunal's decision regarding serious and irreversible harm to the turtles - However, the court agreed with the Divisional Court that the issue of the appropriate remedy should be referred back to the Tribunal to decide after giving the parties the opportunity to be heard - The issue of the potential limitation of the Tribunal's remedial power had been introduced by the Tribunal itself - The parties might have provided helpful submissions on the proper interpretation and application of s. 145.2.1(4) of the EPA as it affected the scope of the Tribunal's remedial power; the ambit of the Director's authority; the relevant government policies and how they intersected at the site; and the government's preferred remedy - Given the broad and varied range of attacks launched against the REA, 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 regarding the broad range of alleged harms - Without the parties' contributions on remedy, it was not surprising that the Tribunal found itself "not in a position" to consider the full range of remedial options - See paragraphs 86 to 100.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - The Ontario Court of Appeal stated that although the case before it involved a statutory appeal, the parties relied on judicial review authorities in their submissions regarding the proper standard of review - The court held that this was "entirely appropriate" - See paragraph 39.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - The Ministry of the Environment issued a renewable energy approval (REA) to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land - The Environmental Review Tribunal allowed an appeal on the basis that the project would seriously and irreversibly harm a species of animals (Blanding's turtles) (Environmental Protection Act, s. 145.2.1(2)) and revoked the approval - Ostrander and the Director of the Ministry of the Environment appealed - The Divisional Court set aside the Tribunal's finding of serious and irreversible harm to the Blanding's turtle and the revocation of the REA - On a further appeal, the Ontario Court of Appeal held that "... the question for the court is whether the Tribunal's decision is reasonable. In determining whether the decision is reasonable, the reviewing court is concerned with 'justification, transparency and intelligibility' of the Tribunal's reasons: Dunsmuir [2008 S.C.C.], at para. 47. It is sufficient if the Tribunal's reasons serve the purpose of showing that the result falls within a range of possible reasonable outcomes." - See paragraphs 39 to 44.

Administrative Law - Topic 6244

Judicial review - Statutory appeal - Remedies on appeal - Remittal of award or decision - [See Administrative Law - Topic 222 ].

Pollution Control - Topic 5

General principles - General - Environmental legislation - Conflict with other legislation - [See third Pollution Control - Topic 1006 ].

Pollution Control - Topic 1006

Licensing or approval - General - Considerations - The Ministry of the Environment issued a renewable energy approval to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land - The Environmental Review Tribunal allowed an appeal and set aside the approval on the basis that the project would seriously and irreversibly harm a species of animals (the Blanding's turtle) (Environmental Protection Act, s. 145.2.1(2)) - The Divisional Court allowed Ostrander's appeal holding that the Tribunal erred by, inter alia, not separating out its analysis of the serious harm factor from its analysis of irreversible harm factor - The Ontario Court of Appeal held that the Divisional Court erred in finding that the Tribunal erred in failing to engage in a separate analysis of serious harm and irreversible harm - Whether the project would cause serious harm required no analysis (not disputed) and the Tribunal's analysis focused on whether the harm was irreversible - See paragraph 45 to 58.

Pollution Control - Topic 1006

Licensing or approval - General - Considerations - The Ministry of the Environment issued a renewable energy approval to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land - The Environmental Review Tribunal allowed an appeal and set aside the approval on the basis that the project would seriously and irreversibly harm a species of animals (the Blanding's turtle) (Environmental Protection Act, s. 145.2.1(2)) - The finding of serious and irreversible harm arose principally, if not entirely, from the Tribunal's conclusion that public use of the access roads would greatly increase the turtles' mortality - The Divisional Court allowed an appeal - It found that the Tribunal could not conclude there would be irreversible decline in the population without any 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 Ontario Court of Appeal allowed a further appeal - The Tribunal had expert evidence, which it accepted, that numerical data of the population level and the increase in vehicular traffic was not needed to conclude that there would be serious and irreversible harm - It was not for the Divisional Court to assess the credibility of expert evidence and conclude that the Tribunal should not have accepted it - Further, all the experts agreed that the roads would result in an increase of vehicular traffic - See paragraphs 59 to 68.

Pollution Control - Topic 1006

Licensing or approval - General - Considerations - The Ministry of the Environment issued a renewable energy approval (REA) to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on Crown land - As part of the approval process, Ostrander was required to consider potential impacts of the project on species at risk and obtain a permit under s. 17(2)(c) of the Endangered Species Act (ESA) - ESA permits were issued by the Ministry of Natural Resources (MNR) and exempted a person from the general prohibition on killing, harming or harassing a member of an endangered or threatened species and the prohibition on damaging that species' habitat - The Environmental Review Tribunal allowed an appeal and set aside the approval on the basis that the project would seriously and irreversibly harm a species of animals (the Blanding's turtle) (Environmental Protection Act (EPA), s. 145.2.1(2)) - The Divisional Court overturned the decision, on the basis, inter alia, that the Tribunal erred in failing to attach proper weight to the ESA permit and failing to adequately explain the conflict between the MNR's decision to issue the permit and its own conclusion - The Ontario Court of Appeal allowed a further appeal - The court agreed "... with the Tribunal's comment that '[a]lthough [Ostrander] is bound by the ESA Permit, a contravention of which may lead to prosecution under the ESA, for the Tribunal's purposes in this analysis it is simply evidence relevant to conditions to the REA, which must be assessed as would any other condition.' The Tribunal carefully considered the mitigation measures required by the ESA permit and concluded they were incomplete and would not be effective. The Tribunal exercised its independent judgment and found that the evidentiary value of the permit was outweighed by the expert evidence introduced. In doing so, the Tribunal was carrying out its distinct statutory mandate under s. 145.2.1(2) of the EPA." - See paragraphs 69 to 74.

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review or appeals - [See Administrative Law - Topic 222 ].

Pollution Control - Topic 1013

Licensing or approval - General - Judicial review or appeals - The Ministry of the Environment issued a renewable energy approval to Ostrander Point GP Inc. for the construction and operation of nine wind turbines (the project) on a Crown land - The Environmental Review Tribunal allowed an appeal and set aside the approval on the basis that the project would seriously and irreversibly harm a species of animals (the Blanding's turtle) (Environmental Protection Act, s. 145.2.1(2)) - The finding of serious and irreversible harm arose principally, if not entirely, from the Tribunal's conclusion that public use of the access roads would greatly increase the turtles' mortality - Ostrander appealed and applied to introduce fresh evidence respecting the steps that it had taken, after the Tribunal decision, to lease Crown property within the project site for the purpose of installing access roads - The leases would allow Ostrander to prohibit public use of the roads - The Divisional Court refused to admit the evidence, holding that it was tendered solely to address factual issues - The Ontario Court of Appeal disagreed - "Questions before the court included whether the Tribunal failed to provide the parties with procedural fairness and whether the Tribunal misinterpreted its statutory remedial authority. These are questions of law. The fresh evidence provides some illumination of these questions. It shows concretely what Ostrander could have contributed had it been accorded the opportunity to address the issue of the appropriate remedy." - The court admitted the fresh evidence - See paragraphs 79 to 85.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See second Pollution Control - Topic 1013 ].

Practice - Topic 9256

Appeals - Judgments by appeal court - Remittal to lower court - When appropriate - [See Administrative Law - Topic 222 ].

Statutes - Topic 1409

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with other statutes - [See third Pollution Control - Topic 1006 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 40].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 40].

First Ontario Realty Corp. v. Deng et al. (2011), 274 O.A.C. 338; 2011 ONCA 54, refd to. [para. 40].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 41].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 42].

Petro-Canada v. Workers' Compensation Board (B.C.) (2009), 276 B.C.A.C. 135; 468 W.A.C. 135; 2009 BCCA 396, refd to. [para. 42].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 43, footnote 1].

Statutes Noticed:

Environmental Protection Act, R.S.O. 1990, c. E-19, sect. 145.2.1(2) [para. 25].

Authors and Works Noticed:

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in The Province of Administrative Law (1997), p. 304 [para. 41].

Taggart, Michael, ed., The Province of Administrative Law (1997), The Politics of Deference: Judicial Review and Democracy 279, p. 304 [para. 41].

Counsel:

Eric K. Gillespie and Erin Wallace, for the appellant, Prince Edward County Field Naturalists;

Sylvia Davis and Sarah Kromkamp, for the respondent, the Ministry of the Environment;

Neil Finkelstein, Douglas Hamilton and Brandon Kain, for the respondent, Ostrander Point GP Inc.;

John B. Laskin and Alex Smith, for the intervener, Canadian Wind Energy Association;

Stephen Hazell, for the intervener, Nature Canada;

Chris G. Paliare and Andrew K. Lokan, for the intervener, Prince Edward County South Shore Conservancy.

This appeal and cross-appeal were heard on December 8, 2014, by Cronk, Juriansz and Epstein, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., delivered the following decision for the court on April 20, 2015.