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Bulletin

Ontario Divisional Court Quashes Minister’s Decision to Revoke Nation Rise Wind Farm Approval

Fasken
Reading Time 5 minute read
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Energy Bulletin

On May 13, 2020, the Divisional Court of Ontario, in a scathing rebuke of a decision of the Minister of the Environment, Conservation and Parks (the “Minister”) to revoke the Renewable Energy Approval (“REA”) of a major wind farm, quashed the Minister’s decision and reinstated the REA.

Background:

The Director of the Ministry of Environment, Conservation and Parks, on May 4, 2018, issued a REA to Nation Rise Wind Farm LP authorizing it to construct a 100 MW wind farm close to Ottawa, Ontario. The Concerned Citizens of North Stormont (“CCNS”), a local community group, on May 22, 2018, filed a notice of appeal with the Environmental Review Tribunal (“ERT”) seeking revocation of the Director’s decision to issue the REA on the grounds that the wind farm would cause serious harm to human health and serious and irreversible harm to plant life, animal life, and the natural environment. In January 2019, after a 10 day hearing, the ERT dismissed the appeal.

On February 4, 2019, CCNS appealed the ERT’s decision to the Minister asking that the Minister cancel the REA.

Nation Rise, in May 2019, began construction on the wind farm while the appeal to the Minister was pending because its power purchase agreement with the Independent Electricity System Operator (“IESO”) required that the wind farm achieve commercial operation by March 9, 2020. The IESO had advised Nation Rise that it would terminate the agreement if commercial operation were not achieved on time.

On December 4, 2019, in a surprise decision, the Minister revoked the REA. In his decision, the Minister noted that, while it is impossible to know with complete certainty the full extent of the harm that the operation of the proposed wind farm will have on bat species populations, he chose to “exercise precaution” in determining that the proposed project will cause both serious and irreversible harm to animal life. The Minister concluded that it was appropriate to revoke the REA when he considered “this harm together in the context of the minimal contribution the project is likely to have on the electricity supply in Ontario”.

Nation Rise appealed the Minister’s decision to the Divisional Court arguing that the Minister denied Nation Rise procedural fairness and that his decision, on the merits, was unreasonable.

The Decision:

The Divisional Court released its decision on May 13, 2020.

In considering the merits of the Minister’s decision, the Court noted that it was the Minister and not the appellants who raised the ‘bat’ issue. Nation Rise argued that the Minister had no authority to consider issues on the appeal other than those raised by the parties. The Court noted the Minister’s decision letter did not address the question of his statutory authority to raise new issues in the appeal and that, as a result, the Court must conduct the interpretive exercise “that he should have engaged in”.

In reviewing the applicable case law, the Court concluded that the Minister’s interpretation of the relevant appeal provisions of the Environmental Protection Act (Ontario) was unreasonable and that he did not have the authority to consider issues on appeal other than those raised by the parties. The Court also highlighted that the Minister’s decision was inconsistent with the past practice adopted by other Ministers in appeals from the ERT with respect to an REA and noted that, because he provided no justification for his departure from the past practice, this was a further indication that his decision was unreasonable.

As noted above, the Minister recognized that it was impossible to know with complete certainty the full extent of the harm that the operation of the proposed wind farm will have on the bat species populations but chose to “exercise precaution”. The Court found that the Minister erred in law in finding that the project would cause harm to the bat species on the basis of a precautionary approach. The Minister’s task, according to the Court, was to consider the evidence before the ERT and determine whether the ERT erred in finding that the ‘harms’ test was not met - a test that required a determination that the project “will” cause both serious and irreversible harm to bats.

The Court also noted that the Minister, having found that serious harm would be caused to bats, failed to consider whether the mitigation efforts that Nation Rise was proposing could reverse any harm and concluded that such failure also rendered his decision unreasonable.

Finally, the Court found that “the Minister made factual conclusions that were not supported by the evidence in the record, and he ignored material evidence about the level of bat activity, the low level of risk to the bat colonies in the area, and the efficacy of the proposed mitigation and monitoring plans that were a condition of Nation Rise’s REA."

In considering the merits of the Minister’s decision, the Court concluded that “this is a case where the Minister’s decision 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. Furthermore, the outcome is not within a reasonable range, given the governing statutory provisions, the facts as established in the record, and the numerous deficiencies in the decision. Therefore, the decision should be quashed.”

The Court also found that the Minister breached his duty of procedural fairness: (i) in the manner in which he dealt with the issue of bat maternity colonies because he failed to give Nation Rise notice of or the opportunity to be heard on this question; and (ii) when he failed to give Nation Rise the right to make submissions on remedy after he had reached his decision that the “harms test” had been met.

Based on its findings, the Court determined that the Minister’s decision should be quashed and reinstated the ERT’s approval of the REA. The Court noted that while the usual remedy would be to send a matter back to the original decision maker to be decided in accordance with the Court’s reasons, in this case, there would be no utility in sending the matter back to the Minister.

The Minister’s office has advised that the Ministry is disappointed with the Court’s ruling and is carefully considering its next step. CCNS has indicated that it plans to appeal the court’s decision.

Given that the Court found the Minister’s decision to be flawed on so many different levels, it is hard to imagine any circumstances under which the Court’s ruling could be overturned on appeal.

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