A Green Energy Project is Reinstated, Despite Provincial Policy

 In Environmental Law

The recent Divisional Court decision of Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks, 2020 ONSC 2984, demonstrates that government authorities must follow legal principles and statutory guidance when making decisions subject to political pressures.

This decision originates from the Minister’s decision to cancel a Renewable Energy Approval (“REA”) issued by the Director of the Ministry of the Environment, Conservation and Parks (the “MECP”) on May 4, 2018 to Nation Rise Wind Farm Limited Partnership (“Nation Rise”).

Appeal to the Environmental Review Tribunal (“ERT”)

The Environmental Protection Act, R.S.O. 1990, c. E.17 (“EPA”) provides that any Ontario resident may appeal the issuance of an REA to the ERT. The ERT must consider only whether “engaging in the renewable energy project in accordance with the [REA] will cause (a) serious harm to human health; or (b) serious and irrevocable harm to plant life, animal life or the natural environment” (EPA, s. 145.2.1(2)).

A group named the Concerned Citizens of North Stormont (“CCNS”) appealed the issuance of Nation Rise’s REA on the grounds that the project would cause serious harm to human health and serious and irreversible harm to plant life, animal life, and the natural environment. The ERT dismissed CCNS’s appeal.  No issue of harm to bat maternity colonies was argued before the ERT or discussed in its decision.

Appeal to the Minister

The EPA provides for two routes of appeal from a decision of the ERT: (a) to the Divisional Court on a question of law; or (b) to the Minister, on any matter other than a question of law.

The CCNS filed an appeal to the Minister, asking the Minister to cancel the REA.

Although harm to bats was not raised as a ground of appeal, the Minister invited submissions as to whether the project would cause serious and irreversible harm to bats.

In his decision, issued December 4, 2019, the Minister indicated that “for the most part” he agreed with the findings of the ERT on the issues it considered.  However, he found that “serious and irreversible” harm would result to bats from the project, in particular to bat maternity colonies, an issue never raised by any of the parties on the appeal.  He immediately revoked Nation Rise’s REA, without a hearing on remedy.

The Minister’s decision comes at a time when the provincial government’s policies have resulted in the cancellation over 750 renewable energy contracts.

Appeal to the Divisional Court

Nation Rise appealed the Minister’s decision to the Divisional Court on two grounds: (a) a denial of procedural fairness; and (b) that the Minister’s decision on the merits was unreasonable.

In its unanimous decision, the Divisional Court did not mince words criticizing the Minister’s decision, finding that he had no authority to add new issues on the appeal.

It expressly found that the Minister does not have broad discretion on an appeal to act in the public interest or to engage in policy making throughout the appeal process.  The Minister can only “revoke, vary or affirm the decision, in the public interest, in respect of a matter in appeal”, pursuant to s. 145.6(2) of the EPA.

The Divisional Court quashed the Minister’s decision on the merits and stated that it “is not reasonable and does not deserve deference.  The decision does not meet the requirements of transparency, justification and intelligibility, as the Minister has failed to adequately explain his decision” (para. 119).

In addressing procedural fairness, the Minister was strongly rebuked for rendering a decision on the issue of bat maternity colonies, which was not raised before the ERT, referenced in its decision, found in any expert evidence nor raised on the appeal.  The Minister was found to have breached his duty of procedural fairness in failing to give Nation Rise notice of or the opportunity to be heard on the question of bat maternity colonies and for issuing a remedy without a remedy hearing.

The Divisional Court quashed the Minister’s decision and reinstated the decision of the ERT, allowing the project to proceed in the face of provincial policy to end wind farm projects.

It is understood that CCNS is considering an appeal to the Court of Appeal.

This blog post was written by Cheryl Gerhardt McLuckie, a member of the Environmental Law team.  Cheryl can be reached at 613-369-0365 or at cheryl.mcluckie@mannlawyers.com.

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