Court File No. 38/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PRESERVE MAPLETON INCORPORATED
Applicant
- and DIRECTOR, MINISTRY OF THE ENVIRONMENT,
AS REPRESENTED BY
THE ATTORNEY GENERAL OF ONTARIO
Respondent
APPLICATION UNDER the
Judicial Review Procedure Act,
R.S.O. 1990, J.1 and Rule 68 of the
Rules of Civil Procedure.
FACTUM OF THE APPLICANT
ERIC K. GILLESPIE
PROFESSIONAL CORPORATION
Barristers & Solicitors
10 King Street East, Suite 600
Toronto, Ontario M5C 1C3
Eric K. Gillespie (LSUC #37815P)
Email: [email protected]
Rebekah L. Church (LSUC #60951K)
Email: [email protected]
Tel: (416) 703-5400
Fax: (416) 703-9111
Lawyers for the Applicant
TO:
MINISTRY OF THE ATTORNEY GENERAL FOR ONTARIO
Crown Law Office – Civil
720 Bay Street, 8th Floor
Toronto, Ontario M7A 2S9
Fax (416) 326-4181
Lise Favreau (LSUC #37800S)
Tel: (416) 325-7078
Kristin Smith
Tel: (416) 326-4098
Lawyers for the Respondent,
Director, Ministry of the Environment
TORYS LLP
79 Wellington St. W., Suite 3000
Box 270, TD Centre
Toronto, Ontario M5K 1N2
Fax: (416) 865-7380
Dennis Mahony (LSUC #36793U)
Tel: (416) 865-8214
John Terry (LSUC #32978P)
Tel: (416) 865-8245
Alex Smith (LSUC #57578L)
Tel: (416) 865-8142
Lawyers for Conestogo Wind LP
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Table of Contents
PART I – OVERVIEW............................................................................................................................... 1
PART II – FACTS....................................................................................................................................... 2
A. THE FAILURE OF THE CONSULTATION PROCESS ............................................................................................................2
i. The Proponent Failed to Comply with Notice Requirements Under Reg. 359/09 .................................2
ii. The Proponent Failed to Engage in Consultation on the Project as Approved .....................................3
iii. The Proponent Failed to Provide Information During the Public Consultation Process .................5
B. THE FAILURE TO COMPLETE ARCHAEOLOGICAL STUDY REQUIREMENTS .................................................................5
PART III – ISSUES AND LAW ................................................................................................................ 6
ISSUE 1: THE DIVISIONAL COURT HAS JURISDICTION TO REVIEW THE DIRECTOR’S DECISION .................................6
ISSUE 2: APPLICABLE STANDARDS OF REVIEW ...................................................................................................................8
ISSUE 3: THE DIRECTOR FAILED TO EXEMPT THE PROPONENT FROM REG. 359/09 ................................................8
ISSUE 4: THE DIRECTOR’S DECISION IS CONTRARY TO THE REQUIREMENTS OF PROCEDURAL FAIRNESS...........11
i. Nature of the Decision and Process Followed in Making It..........................................................................12
ii. The Nature of the Statutory Scheme.....................................................................................................................12
iii. The Importance of the Decision to the Individuals Affected .....................................................................13
iv. The Legitimate Expectations of the Applicant.................................................................................................13
v. Choice of Procedure ......................................................................................................................................................14
vi. Summary of Requirements of Procedural Fairness Applicable to the Decision ................................15
PART IV – ORDER REQUESTED ........................................................................................................ 15
SCHEDULE A........................................................................................................................................... 17
SCHEDULE B ........................................................................................................................................... 18
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PART I – OVERVIEW
1.
This is an application for judicial review to quash the decision of the Director (the
“Director”) of the Ministry of the Environment (the “MOE”), to issue Renewable Energy
Approval Number 6509-8CBJ9Q (the “Approval”) for the Conestogo Wind Energy Centre (the
“Project”) on December 8, 2011 (the “Decision”).
Application Record, Tab 1, Notice of Application for Judicial Review at para. 1
2.
The Approval allows for the construction, installation, operation, use and retiring of a
Class 4 wind facility consisting of ten wind turbine generators, a transformer station,
transmission lines, and two meteorological towers in Mapleton Township, in the County of
Wellington.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(a)
3.
The Applicant challenges the Decision on the basis that the Director failed to comply
with the obligations under the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”)
and under the provisions of Renewable Energy Approvals under Part V.0.1 of the Act, O. Reg
359/09 (“Reg. 359/09”), including the obligation to consult with the public and municipalities,
and the obligation to complete a Stage 2 archaeological assessment and file an archaeological
report as part of the Renewable Energy Approval (“REA”) application.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(b)
4.
With regard to the public consultation, the Director failed to ensure that the notice
requirements were complied with, that adequate information was provided during the
consultation process, and that consultation occurred on the Project as it was ultimately
configured and approved. The Director also granted an explicit exemption to NextEra (the
“Proponent”) with regard to the archaeological study requirements.
5.
The Director did not properly exercise his discretion to exempt the Proponent and the
Project from or to waive these statutory requirements. The failures to ensure compliance with
these requirements are also contrary to the principles of procedural fairness. As a result, the
approval was ultra vires the jurisdiction of the Director and should be quashed.
PART II – FACTS
6.
The Director’s authority to issue the Approval was based on subsection 47.5 of the
EPA. Reg. 359/09, which sets out the requirements to be followed in the issuance of a REA. As
outlined below, the requirements pertaining to consultation and archaeological assessments were
not fulfilled prior to the issuance of the Approval.
A. The Failure of the Consultation Process
7.
Under section 16 of Reg. 359/09, the Proponent was required to hold a minimum of
two public meetings, as well as make Project documents available to the public. In addition to
this obligation, section 18 of Reg. 359/09 required the Proponent to consult with local
municipalities and authorities.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(i)
i. The Proponent Failed to Comply with Notice Requirements Under Reg. 359/09
8.
An informational meeting was held March 7, 2007 in Arthur, Ontario. This meeting
was in no way specific to the Conestogo Project. Rather, this meeting concerned a substantially
different and much larger project in an area extending to Dufferin County.
Application Record, Tab 2, Affidavit of Donna Weaver [the “Weaver Affidavit”] at para. 5
2
9.
The first public meeting for this Project was held on December 2, 2009 in Moorefield,
Ontario. Although the Proponent was obliged to provide notice thirty days in advance of the
meeting, the first notice for this meeting was published in local newspapers on November 20,
2009, only thirteen days before the meeting took place.
Application Record, Tab 2, Weaver Affidavit at para. 6, Exhibit C, Notices of Public Meeting #1, dated
November 20, 2009
10.
In addition, the Proponent was required to publish the notice on at least two separate
days in a newspaper with general circulation in the municipality in which the Project was
located. The notice of the first meeting was published in two newspapers on November 20, 2009,
The Wellington Advertiser and The Arthur Enterprise News. However, this was the only day on
which the notice appeared in any newspaper in the municipality.
Application Record, Tab 2, Weaver Affidavit at para. 7, Exhibit C, Notices of Public Meeting #1, dated
November 20, 2009
11.
The second public meeting for the Project was held November 30, 2010 in Drayton,
Ontario. The Proponent set a deadline of December 6, 2010 for comments related to this
meeting. However, this deadline was omitted from notices published in September, 2010 and
was only specified in a notice issued on November 25, 2010. As a result, individuals had
insufficient notice, and then insufficient time to prepare comments resulting from the second
meeting.
Application Record, Tab 2, Weaver Affidavit at para. 8, Exhibit E, Notices of Public Meeting #2, dated
September 17, 2010 and November 25, 2010
ii. The Proponent Failed to Engage in Consultation on the Project as Approved
12.
An additional meeting was held on March 18, 2011 in Alma, Ontario, which was called
as a result of changes to the configuration of the Project.
Application Record, Tab 2, Weaver Affidavit at para. 9
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13.
However, even further and substantial changes were then made to the Project in August
2011. The Project was initially proposed to be located in two municipalities, Mapleton and
Wellington North, both of which are located in Wellington County. When it was brought to light
that the Proponent had neglected to engage in any consultation in Wellington North, as they were
required to, the Project was reconfigured in such a way as to be contained within the boundaries
of Mapleton. The changes to the Project included moving the meteorological tower, changing the
route of electrical cables, and moving the transmission lines from Wellington North to Mapleton.
Application Record, Tab 2, Weaver Affidavit at para. 10, Exhibit G, Notice of Change to a Proposal for a
Renewable Energy Project, dated September 22, 2011
14.
This reconfiguration of the Project occurred after all public consultation meetings had
taken place, and after commenting had closed on Ontario’s Environmental Registry. As a result,
there was no opportunity for public consultation on the Project as it is configured and approved.
Application Record, Tab 2, Weaver Affidavit at para. 11
15.
When this issue was raised with the MOE, Doris Dumais, Director of the Approvals
Program, responded that the changes were minor in nature and did not warrant an additional
public meeting.
Application Record, Tab 2, Weaver Affidavit at para. 12, Exhibit H, Letter from Doris Dumais to Elissa Krul,
dated October 5, 2011
16.
Further, during a meeting held on June 27, 2011, Ms. Dumais verbally committed to
residents that an additional meeting between residents and the MOE would take place after the
technical review was completed, but prior to the issuance of an approval. This commitment was
never fulfilled. On December 8, Ms. Dumais indicated that she would be willing to have a
teleconference on the matter the following week, but the approval was posted on Ontario’s
Environmental Registry later that day.
Application Record, Tab 2, Weaver Affidavit at para. 13, Exhibit I, Email correspondence regarding meeting,
dated between August 17, 2011 and December 8, 2011
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iii. The Proponent Failed to Provide Information During the Public Consultation Process
17.
In addition to the foregoing issues, throughout the consultation process, there were a
number of discrepancies, errors, and omissions in the information provided to the public.
18.
For example, the Proponent neglected to fully and accurately disclose any potential
health effects in relation to the Project. NextEra’s documentation claimed that it had never
documented a health complaint. For example, at page 33 of the Revised Consultation Report,
NextEra states “NextEra Energy Resources has never received a confirmed or documented claim
of health effects from anyone, despite operating more than 9,000 wind turbines in the U.S. and
Canada.” This assertion was a clear misrepresentation as there are known health claims in
relation to NextEra projects in Nova Scotia and Illinois.
Application Record, Tab 2, Weaver Affidavit at para. 14, Exhibit J, Excerpt from Revised Consultation
Report, Exhibit K, “Wind farms generate conflict across state” by Holly Spangler
19.
In all REA submissions the Proponent also improperly referred to the land that will be
used for the Project. The Proponent failed to use the correct legal description of the parcels of
land that would form the Project. In addition, township roads and a county road were mislabeled,
along with further errors and omissions. As a result all local residents were misled as to where
the Project would be located.
Application Record, Tab 2, Weaver Affidavit at para. 15, Exhibit L, Excerpt from Revised Project Description
Report, dated October 12, 2011
B. The Failure to Complete Archaeological Study Requirements
20.
Under subsection 20(1) of Reg. 359/09 the Proponent was required to consider whether
engaging in the Project would have an impact on any archaeological resources at the Project
location. The Proponent engaged in an initial ‘Stage 1’ archaeological assessment, after which it
5
concluded in its Addendum Stage 1 Archaeological Assessment that the Project area had the
potential for the identification of Aboriginal and Euro-Canadian archaeological sites.
Application Record, Tab 2, Weaver Affidavit at para. 16, Exhibit M, Executive Summary of Addendum Stage
1 Archaeological Assessment
21.
As a result, the Proponent was required to conduct a more thorough, ‘Stage 2’
archaeological assessment pursuant to the requirements imposed under section 22 of Reg.
359/09. This assessment was not completed prior to the issuance of the Approval, on the basis of
an exemption granted to the Proponent. The exemption was granted to the Project, along with
eight others, in a letter of June 14, 2010 from the Ministry of Energy and Infrastructure, the
Ministry of Tourism and Culture, and the MOE.
Application Record, Tab 2, Weaver Affidavit at para. 17, Exhibit N, Letter to Justin W. Rangooni, dated June
14, 2010
PART III – ISSUES AND LAW
22.
The Applicant respectfully submits that the issues on this judicial review are as follows:
i. The jurisdiction of the Divisional Court to review the Director’s Decision.
ii. The appropriate standards of review.
iii. Whether the Director properly exercised his authority to explicitly and/or implicitly
waive or exempt the Proponent from the requirements of Reg. 359/09.
iv. Whether the Director’s decision is in violation of the principles of procedural
fairness.
Issue 1: The Divisional Court has Jurisdiction to Review the Director’s Decision
23.
The Approval was issued based on the authority granted to the Director under
subsection 47.5 of the EPA.
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24.
Subsection 142.1 of the EPA provides that an appeal of a REA may be brought before
the Environmental Review Tribunal (the “Tribunal”). Such an appeal has been filed in respect of
this Approval. However, the right of appeal provided for under the EPA is limited to addressing
the substantive issues of whether engaging in the Project will cause “serious harm to human
health”, or “serious and irreversible harm to plant life, animal life or the natural environment”.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(e)
25.
The Tribunal has previously held that it is not permitted to address procedural
deficiencies within the context of an appeal brought under section 142.1.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(f);
Applicant’s Book of Authorities, Tab 1, Erickson v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D.
No. 29 (QL) at paras. 556-560
26.
Therefore, judicial review before the Divisional Court is the only option available to
the Applicant to address the serious procedural issues present in this case.
27.
Further, the issuance of the Approval was premature on the basis of the Director’s
failure to ensure that proper public consultation took place and that archaeological study
requirements were fulfilled. As a result, the Approval was ultra vires the jurisdiction of the
Director and an appeal before the Tribunal is premature and unnecessary.
Application Record, Tab 1, Notice of Application for Judicial Review at para. 2(g)
28.
On January 30, 2012, the Tribunal heard a motion brought by the Applicant requesting
that the Tribunal adjourn its process pursuant to subsection 59(2)2 of Reg. 359/09 pending the
outcome of this judicial review. That provision suspends the running of time in that appeal:
If an application for judicial review under the Judicial Review Procedure Act has been
commenced with respect to the proceeding, the period of time from the day that the application is
commenced until the day that the application is disposed of, if an adjournment of the proceeding
before the Tribunal is granted by the Tribunal or a stay of the proceeding before the Tribunal is
granted by the Divisional Court.
29.
On January 31, 2012, the Tribunal granted the adjournment with reasons to follow.
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Issue 2: Applicable Standards of Review
30.
The jurisdiction of the Director to implicitly and/or explicitly waive the requirements of
Reg. 359/09 is an important question of law and, therefore, the Director’s decision should be
reviewed on a standard of correctness.
Applicant’s Book of Authorities, Tab 2, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 1 (QL) at paras. 59-60
31.
The Director’s failure to comply with the principles of procedural fairness is a question of
discretion, and therefore attracts a standard of reasonableness.
Applicant’s Book of Authorities, Tab 2, Dunsmuir, supra at paras. 53-56
Issue 3: The Director Failed to Exempt the Proponent from Reg. 359/09
32.
As outlined above, the Director granted the Approval without ensuring compliance
with a number of requirements of Reg. 359/09, including: (1) subsection 15(3)(a), requiring
notice of the first public meeting to be distributed at least 30 days before the meeting; (2)
subsection 15(6)(1), requiring the notice of the first public meeting to be published on at least
two separate days in a newspaper with general circulation in each local municipality in which the
project location is situated; and (3) any consultation on the Project as approved and configured.
33.
In addition to these implied waivers, the Proponent was also granted an explicit waiver
of its obligation to complete a Stage 2 archaeological assessment as part of its REA application,
as required by subsection 22(3)(b) of Reg. 359/09.
34.
That a statutory delegate may only exercise the power granted to it under a statute is a
foundational principle of administrative law.
Applicant’s Book of Authorities, Tab 3, D.P. Jones and A.S. de Villars, Principles of Administrative Law
(Toronto: Carswell, 2009) at pages 153-154, 161-171
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35.
This principle was expressed in relation to exemptions from statutory requirements in
Orantes v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 261:
Subsection 114(2) provides that the cabinet may by regulation exempt any person from any
regulation made by the cabinet under subsection 114(1). Neither subsection confers on that body
the authority to repeal, to suspend, to override or to exempt anyone from, any provision of the Act
itself, just the regulations under subsection 114(1). Unless Parliament delegates to the Governor in
Council the authority to exempt anyone from the provisions of a constitutionally enacted Act of
Parliament, of course, the Governor in Council has no authority to do it by whatever may be its
device: a regulation or an order-in-council. That was constitutionally settled centuries ago when
Parliament (in England) won its conflicts with the king and the kings gave up the notion of their
devine [sic] right to rule.
So, no matter how one tries to invoke it, subsection 114(2) gives unto no one - not the cabinet, not
Minister, not any functionary - any power to exempt the applicant from the strictures of paragraph
19(1)(b), a valid provision of an Act of Parliament.
Applicant’s Book of Authorities, Tab 4, Orantes v. Canada (Minister of Employment and Immigration),
[1990] F.C.J. No. 261 (T.D.) (QL) at page 5
36.
Although both the EPA and Reg. 359/09 provide possible routes through which the
Director could have validly granted the above noted waivers, he did not exercise his discretion
through any of these mechanisms.
37.
For example, subsection 175.1(1)(a) of the EPA allows the Lieutenant Governor in
Council to make regulations exempting a project or proponent from the provisions of the EPA
and associated regulations. However, no such regulation was made in respect of the Project.
38.
Additionally, section 12 of Reg. 359/09 states:
12.(1) In order to be eligible for the issue of a renewable energy approval, a person who proposes
to engage in a renewable energy project shall, before submitting an application for the issue of a
renewable energy approval to the Director,
(a) prepare the application in a form or format approved by the Director;
(b) obtain or prepare, as the case may be, any documents that,
(i) are required under this Part to be submitted as part of the application, or
(ii) are to be submitted as part of the application for the purposes of obtaining an exemption
from a provision of Part V; and
(c) comply with all other requirements in this Part.
9
(1.1) A person who proposes to engage in a renewable energy project but does not comply with the
requirements set out in subsection (1) may be eligible for the issue of a renewable energy approval
if the Director is of the opinion that failure to comply with those requirements will not compromise
an adequate understanding of the negative environmental effects of engaging in the renewable
energy project.
(1.2) A person who proposes to engage in a renewable energy project but does not comply with the
requirements set out in subsection (1) may be eligible for the issue of a renewable energy approval
if the Director is of the opinion that failure to comply with those requirements will improve
consultation respecting the project with the public, local authorities or any aboriginal communities.
…
39.
Although the Director was potentially empowered under subsections 12(1.1) and
12(1.2) to issue the Approval without ensuring compliance with the requirements of Reg. 359.09,
it is only in the event that the Director was either of the opinion that “failure to comply with
those requirements will not compromise an adequate understanding of the negative
environmental effects of engaging in the renewable energy project” or “that failure to comply
with those requirements will improve consultation respecting the project with the public, local
authorities or any aboriginal communities.”
40.
At no point prior to the issuance of the Approval did the Director indicate that either of
these opinions served as the basis for waiving these requirements. As a result, the Director did
not exercise his discretion in compliance with the criteria set out in Reg. 359/09, and the
Decision to issue the Approval was ultra vires the jurisdiction of the Director.
41.
However, in the alternative, if this Court finds these exemptions to have been validly
within the jurisdiction of the Director, the Applicant submits that the Decision was also issued in
violation of the principles of procedural fairness.
10
Issue 4: The Director’s Decision is Contrary to the Requirements of Procedural Fairness
42.
As noted above, a number of deficiencies existed in the process leading up to the
Approval. These deficiencies include: (1) the failure to comply with the thirty day notice
requirement; (2) the failure to comply with the requirement to publish the notice on two separate
days; (3) the failure to consult on the Project as approved; (4) the improper description of Project
lands in all REA documents; (5) the failure of the Proponent to disclose information respecting
health claims; and (6) the failure of the Director to ensure that archaeological study requirements
were complied with.
43.
The Applicant submits that these failures individually and/or collectively violated the
duty of procedural fairness.
44.
The existence of a duty of procedural fairness in administrative decisions was affirmed
by the Supreme Court in Cardinal v. Director of Kent Institution, where the Court stated: “...
there is, as a general common law principle, a duty of procedural fairness lying on every public
authority making an administrative decision which is not of a legislative nature and which affects
the rights, privileges or interests of an individual.” The Decision to issue the Approval impacts a
number of interests held by property owners in the Project area. As a result, the Applicant
submits that a duty of procedural fairness existed with respect to the Decision
Applicant’s Book of Authorities, Tab 5, Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 (QL)
[“Cardinal”] at para. 14; Tab 6, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817 (QL) [“Baker”] at para. 20
45.
The Court went on to note in Cardinal that the question to be asked is “what the duty of
procedural fairness may reasonably require of an authority in the way of specific procedural
rights in a particular legislative and administrative context…”
Applicant’s Book of Authorities, Tab 5, Cardinal, supra at para. 15
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46.
The Court in Baker enumerated the specific factors affecting the content of the duty of
fairness, which include: (1) the nature of the decision being made and the process followed in
making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the
individuals affected; (4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself. The Applicant submits that both the
importance of the decision and the failure to satisfy the legitimate expectations of the Applicant
suggest that the Director’s duty of procedural fairness was not met in making the Decision.
Applicant’s Book of Authorities, Tab 6, Baker, supra at paras. 21-27
i. Nature of the Decision and Process Followed in Making It
47.
The Decision in question is the issuance of a REA. Although the process to be followed
in determining whether to issue the approval requires public consultation and notice, it does not
resemble a judicial or quasi-judicial decision. As such, the nature of the decision does not attract
a standard of procedural fairness resembling that which would be required in a trial.
ii. The Nature of the Statutory Scheme
48.
The Court in Baker pointed to the relevance of the “role of the particular decision
within the statutory scheme.” In particular, the Court looked to whether an appeal procedure is
provided and whether the decision is final and determinative of the issue.
Applicant’s Book of Authorities, Tab 6, Baker, supra at para. 24
49.
Given that the EPA only provides for a limited appeal of an REA approval on human
health or environmental grounds, and not on procedural grounds, this factor points to the
requirement of a somewhat higher standard of procedural fairness.
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iii. The Importance of the Decision to the Individuals Affected
50.
The Director’s Decision to issue the Approval holds great importance to the individuals
affected by the construction and operation of the Project.
51.
The Decision impacts dozens of landowners. For many of these individuals, their
homes, businesses and livelihoods are all brought into question by the Project. As such a high
standard of procedural fairness is warranted in order to ensure that these interests are not
adversely affected without proper procedural processes having been followed.
iv. The Legitimate Expectations of the Applicant
52.
The doctrine of legitimate expectations was discussed by the Supreme Court in Baker:
… the legitimate expectations of the person challenging the decision may also determine what
procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada,
this doctrine is part of the doctrine of fairness or natural justice, and that it does not create
substantive rights… As applied in Canada, if a legitimate expectation is found to exist, this will
affect the content of the duty of fairness owed to the individual or individuals affected by the
decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this
procedure will be required by the duty of fairness … Nevertheless, the doctrine of legitimate
expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as
applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness
take into account the promises or regular practices of administrative decision-makers, and that it
will generally be unfair for them to act in contravention of representations as to procedure, or to
backtrack on substantive promises without according significant procedural rights.
Applicant’s Book of Authorities, Tab 6, Baker, supra at para. 26
53.
The Supreme Court in Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour) noted that:
[the doctrine of legitimate expectations] looks to the conduct of a Minister or other public authority
in the exercise of a discretionary power including established practices, conduct or representations
that can be characterized as clear, unambiguous and unqualified, that has induced in the
complainants … a reasonable expectation that they will retain a benefit or be consulted before a
contrary decision is taken.
Applicant’s Book of Authorities, Tab 7, Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister
of Labour), [2003] 1 S.C.R. 539 (QL) at para. 131
13
54.
A number of legitimate expectations held by the Applicant were violated by the process
followed by the Director in issuing the Approval. Specifically, these expectations included that
the Director would ensure that public consultation would proceed in a fair and transparent
manner, that adequate notice would be provided, and that consultation would be based on
accurate information. In addition, these expectations also included that the Director would ensure
that the REA application requirements listed in Reg. 359/09 would be completed, including the
requirement to submit a Stage 2 archaeological study.
55.
Further as noted above, Doris Dumais, Director of the Approvals Program, committed
to residents that an additional meeting between residents and the MOE would take place after the
technical review was completed, but prior to the issuance of an approval. However, this
commitment was never fulfilled.
56.
The failures to meet the legitimate expectations of the Applicant amount to a breach of
due process. Although the doctrine of legitimate expectations does not create substantive rights,
it does, however, create a right to make representations and a right to be consulted.
Consequently, the failure to consult and make representations on the Project as approved was
contrary to the doctrine of legitimate expectations.
Applicant’s Book of Authorities, Tab 8, Reference re: Canada Assistance Plan (B.C.), [1991] S.C.J. No. 60
(QL) at para. 59
v. Choice of Procedure
57.
The final factor in the Supreme Court’s analysis is the “the choices of procedure made
by the agency itself, particularly when the statute leaves to the decision-maker the ability to
choose its own procedures, or when the agency has an expertise in determining what procedures
are appropriate in the circumstances.”
Applicant’s Book of Authorities, Tab 6, Baker, supra at para. 27
14
58.
The issues raised by the Applicant in respect of the processes followed, are statutorily
mandated requirements to be completed prior to the issuance of a REA. The substantive
requirements are clearly set out, but were not followed. The ability to waive under Reg. 359/09 is
also set out, but was not followed. These choices of procedure were available, but were not
complied with by the Director.
vi. Summary of Requirements of Procedural Fairness Applicable to the Decision
59.
In sum, (i) the nature of the statutory scheme, which provides for no appeal on
procedural grounds, (ii) the importance of the Decision to the individuals affected, (iii) the
legitimate expectations of the Applicant, and (iv) the choice of processes by the Director, which
deviated from the clear statutory requirements, all lead to the conclusion that the processes
followed by the Director violated what was required by the duty of procedural fairness in these
circumstances. The Director’s failures to comply with the legislated requirements for a REA
approval, therefore, constitute breaches of the duties of procedural fairness rendering the
Decision ultra vires.
PART IV – ORDER REQUESTED
60.
The Applicant seeks under subsection 2(1) of the Judicial Review Procedure Act:
i. a declaration that the Director improperly exercised his discretion and acted outside
his jurisdiction in granting the Approval;
ii. an order quashing the Decision of the Director on the basis that he lacked jurisdiction
to make the Decision under the EPA;
iii. in the alternative, an order quashing the Decision of the Director on the basis that it is
in violation of the requirements of procedural fairness;
15
iv. the Applicant’s costs of this application on a substantial indemnity scale; and
v. such further and other relief as counsel may advise and this Honourable Court may
permit.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 15th DAY OF FEBRUARY, 2012.
__________________________
Eric K. Gillespie
__________________________
Rebekah L. Church
Of counsel for the Applicant
16
SCHEDULE A
Caselaw
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL)
Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 (QL)
Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 (QL)
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 1 (QL)
Erickson v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 29 (QL)
Orantes v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 261 (T.D.)
(QL)
Reference re: Canada Assistance Plan (B.C.), [1991] S.C.J. No. 60 (QL) Treatises
D.P. Jones and A.S. de Villars, Principles of Administrative Law (Toronto: Carswell, 2009)
17
SCHEDULE B
Environmental Protection Act, R.S.O. 1990, c. E.1
Director’s powers
47.5 (1) After considering an application for the issue or renewal of a renewable energy
approval, the Director may, if in his or her opinion it is in the public interest to do so,
(a) issue or renew a renewable energy approval; or
(b) refuse to issue or renew a renewable energy approval. 2009, c. 12, Sched. G,
s. 4 (1).
Terms and conditions
(2) In issuing or renewing a renewable energy approval, the Director may impose terms and
conditions if in his or her opinion it is in the public interest to do so. 2009, c. 12, Sched. G,
s. 4 (1).
Other powers
(3) On application or on his or her own initiative, the Director may, if in his or her opinion it is
in the public interest to do so,
(a) alter the terms and conditions of a renewable energy approval after it is issued;
(b) impose new terms and conditions on a renewable energy approval; or
(c) suspend or revoke a renewable energy approval. 2009, c. 12, Sched. G, s. 4 (1).
Same
(4) A renewable energy approval is subject to any terms and conditions prescribed by the
regulations. 2009, c. 12, Sched. G, s. 4 (1).
…
Hearing re renewable energy approval
142.1 (1) This section applies to a person resident in Ontario who is not entitled under section
139 to require a hearing by the Tribunal in respect of a decision made by the Director under
section 47.5. 2009, c. 12, Sched. G, s. 9.
Same
(2) A person mentioned in subsection (1) may, by written notice served upon the Director and
the Tribunal within 15 days after a day prescribed by the regulations, require a hearing by the
Tribunal in respect of a decision made by the Director under clause 47.5 (1) (a) or subsection
47.5 (2) or (3). 2009, c. 12, Sched. G, s. 9.
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Grounds for hearing
(3) A person may require a hearing under subsection (2) only on the grounds that engaging in
the renewable energy project in accordance with the renewable energy approval will cause,
(a) serious harm to human health; or
(b) serious and irreversible harm to plant life, animal life or the natural environment.
2009, c. 12, Sched. G, s. 9.
…
Regulations, general
175.1 (1) The Lieutenant Governor in Council may make regulations,
(a) exempting any person, licence holder, insurer, industry, contaminant, source of
contaminant, motor vehicle, motor, waste, waste disposal site, waste management system,
activity, area, location, matter, substance, sewage system, product, material, beverage,
packaging, container, discharge, spill, pollutant or thing from any provision of this Act
and the regulations and prescribing conditions for the exemptions from this Act and the
regulations;
Renewable Energy Approvals under Part V.0.1 of the Act, O. Reg. 359/09
Eligibility, renewable energy approval
12. (1) In order to be eligible for the issue of a renewable energy approval, a person who
proposes to engage in a renewable energy project shall, before submitting an application for the
issue of a renewable energy approval to the Director,
(a) prepare the application in a form or format approved by the Director;
(b) obtain or prepare, as the case may be, any documents that,
(i) are required under this Part to be submitted as part of the application, or
(ii) are to be submitted as part of the application for the purposes of obtaining
an exemption from a provision of Part V; and
(c) comply with all other requirements in this Part. O. Reg. 359/09, s. 12 (1); O. Reg.
521/10, s. 5 (1).
(1.1) A person who proposes to engage in a renewable energy project but does not comply with
the requirements set out in subsection (1) may be eligible for the issue of a renewable energy
approval if the Director is of the opinion that failure to comply with those requirements will not
compromise an adequate understanding of the negative environmental effects of engaging in the
renewable energy project. O. Reg. 521/10, s. 5 (2).
(1.2) A person who proposes to engage in a renewable energy project but does not comply with
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the requirements set out in subsection (1) may be eligible for the issue of a renewable energy
approval if the Director is of the opinion that failure to comply with those requirements will
improve consultation respecting the project with the public, local authorities or any aboriginal
communities. O. Reg. 521/10, s. 5 (2).
(2) If there is more than one person applying for the issue of a renewable energy approval in
respect of a renewable energy project, those persons shall jointly submit one application for the
issue of a renewable energy approval. O. Reg. 359/09, s. 12 (2).
(3) An application to alter the terms and conditions of a renewable energy approval shall be
prepared in a form or format approved by the Director and shall be submitted to the Director.
O. Reg. 359/09, s. 12 (3).
…
Notices of project and meetings
15. (1) A person who proposes to engage in a renewable energy project shall distribute,
(a) notice of the proposal to engage in the project; and
(b) notices of the location and time of at least two public meetings to be held for the
purpose of conducting consultations in respect of the project. O. Reg. 359/09,
s. 15 (1).
(2) Clause (1) (b) does not apply in respect of a proposal to engage in a renewable energy
project in respect of,
(a) a Class 2 wind facility;
(b) a Class 1 or 2 anaerobic digestion facility;
(c) a Class 1 thermal treatment facility, if the generating unit of the facility is located at
a farm operation; or
(d) a Class 2 thermal treatment facility. O. Reg. 359/09, s. 15 (2).
(3) A notice mentioned in subsection (1) shall be in a form approved by the Director and shall
be distributed in accordance with all of the rules set out in subsection (6),
(a) at least 30 days before the first public meeting is held and at least 60 days before
the final public meeting is held, if the notices mentioned in clauses (1) (a) and (b)
are required to be distributed; or
(b) at least 30 days before the application for the issue of a renewable energy approval
is submitted to the Director, if only the notice mentioned in clause (1) (a) is
required to be distributed. O. Reg. 359/09, s. 15 (3); O. Reg. 521/10, s. 6 (1, 2).
(4) The notices mentioned in clauses (1) (a) and (b) may be distributed together and in
combination with any other notice in respect of the renewable energy project if,
(a) this section is complied with in combining the notices; and
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(b) the combined notices include a clear description of all of the notices that are being
combined. O. Reg. 359/09, s. 15 (4).
(5) If the notices mentioned in clauses (1) (a) and (b) are both required to be distributed but are
not distributed together, the notice mentioned in clause (1) (a) shall be distributed before any
notice mentioned in clause (1) (b) is distributed. O. Reg. 359/09, s. 15 (5).
(6) A notice mentioned in clause (1) (a) or (b) shall be distributed in accordance with the
following rules:
1. The notice must be published on at least two separate days in a newspaper with
general circulation in each local municipality in which the project location is
situated.
2. If the project location is in unorganized territory,
i. the notice must be published on two separate days in a newspaper with
general circulation within 25 kilometres of the project location, or
ii. if no newspaper mentioned in subparagraph i exists, the notice must be
posted in at least six conspicuous locations within 25 kilometres of the
project location.
3. If it is reasonable to do so, the notice must be published in a newspaper printed by
each aboriginal community on the list obtained under section 14, if the list was
required to be obtained, and if such a newspaper exists and the publisher of the
newspaper permits the publication.
4. If the person mentioned in subsection (1) has a website, the notice must be posted on
the website.
5. A copy of the notice must be given to,
i. every assessed owner of land within 120 metres of the project location, if the
project is in respect of a renewable energy generation facility other than a
Class 3, 4 or 5 wind facility,
i.1 every assessed owner of land within 550 metres of the project location, if
the project is in respect of a Class 3, 4 or 5 wind facility,
i.2 every assessed owner of land abutting a parcel of land on which the project
location is situated, other than an owner described in subparagraph i or
i.1,
ii. every aboriginal community on the list obtained under section 14, if the list
was required to be obtained, and any other aboriginal community that, in
the opinion of the person mentioned in subsection (1), has or may have
constitutionally protected aboriginal or treaty rights that could be
adversely impacted by the renewable energy project or otherwise may be
interested in any negative environmental effects of the project,
iii. the clerk of each local municipality and upper-tier municipality in which the
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project location is situated,
iv. the secretary-treasurer of each local roads board of a local roads area in
which the project location is situated,
v. the secretary of each Local Services Board of a board area in which the
project location is situated,
vi. the secretary-treasurer of a planning board that has jurisdiction in an area in
which the project location is situated,
vii. the chair of the Niagara Escarpment Commission, if the project location is
in the area of the Niagara Escarpment Plan,
viii. the Director, and
ix. the Ministry’s district manager in each district in which the project location is situated.
O. Reg. 359/09, s. 15 (6); O. Reg. 521/10, s. 6 (3).
…
Consultation with public
16. (1) A person who proposes to engage in a renewable energy project shall hold at least two
public meetings, each on a separate day, in accordance with this section,
(a) in each local municipality in which the project location is situated; and
(b) if the project location is in unorganized territory,
(i) within 25 kilometres of the project location, or
(ii) in the local municipality that is closest to the project location, if there is no
appropriate place to hold a public meeting in the area described in
subclause (i). O. Reg. 359/09, s. 16 (1).
(2) During a period of at least 30 days immediately before the first public meeting is held, a
person mentioned in subsection (1) shall make available a draft of the project description report
prepared in accordance with Table 1 by,
(a) posting the drafts on the person’s website, if the person has a website;
(b) making paper copies of the drafts available to the public in each local municipality
and in each part of unorganized territory in which the project location is situated;
(c) making paper copies of the drafts available in any aboriginal community on the list
obtained under section 14, if the aboriginal community agrees to the making of
the drafts available in the community; and
(d) distributing the drafts to each aboriginal community mentioned in subparagraph 5 ii
of subsection 15 (6). O. Reg. 521/10, s. 8.
(3) Revoked: O. Reg. 521/10, s. 8.
(4) At the first public meeting that is held, a person mentioned in subsection (1) shall make a
22
draft of the project description report prepared in accordance with Table 1 available for
inspection. O. Reg. 359/09, s. 16 (4).
(5) During a period of at least 60 days before the final public meeting is held, a person
mentioned in subsection (1) shall make available drafts of all documents mentioned in subsection
(6) by,
(a) posting the drafts on the person’s website, if the person has a website;
(b) making paper copies of the drafts available to the public in each local municipality
and in each part of unorganized territory in which the project location is situated;
(c) making paper copies of the drafts available in any aboriginal community on the list
obtained under section 14, if the aboriginal community agrees to the making of
the drafts available in the community; and
(d) distributing the drafts to each aboriginal community mentioned in subparagraph 5 ii
of subsection 15 (6). O. Reg. 359/09, s. 16 (5).
(6) For the purposes of subsection (5), drafts of the following documents shall be made available
if they are to be submitted as part of the application for the issue of a renewable energy approval:
1. All documents required under this Part to be submitted as part of the application,
other than the consultation report prepared in accordance with Table 1.
2. All documents that are to be submitted as part of the application for the purposes of obtaining
an exemption from a provision of Part V. O. Reg. 359/09, s. 16 (6).
…
Consultation with municipalities, local authorities
18. (1) A person who proposes to engage in a renewable energy project shall, in accordance
with subsections (3) and (4), distribute drafts of the documents mentioned in subsection (2) to,
(a) the clerk of each local municipality and upper-tier municipality in which the project
location is situated;
(b) the secretary-treasurer of the local roads board of each local roads area in which the
project location is situated; and
(c) the secretary of the Local Services Board of each board area in which the project
location is situated. O. Reg. 521/10, s. 11.
(2) The documents referred to in subsection (1) are:
1. A project description report.
2. A document mentioned in subsection 16 (6), other than the documents described in
clauses 22 (3) (a), 23 (3) (a), 28 (3) (b) and (c), 38 (2) (b) and (c), 41 (5) (b) and
(c) and 43 (3) (b) and (c).
3. A consultation form. O. Reg. 521/10, s. 11.
23
(3) If section 16 applies,
(a) the documents referred to in paragraphs 1 and 3 of subsection (2) shall be
distributed under subsection (1) at least 30 days before the first public meeting is
held for the purposes of subsection 16 (1); and
(b) the documents referred to in paragraph 2 of subsection (2) shall be distributed
under subsection (1) at least 90 days before the final public meeting is held for
the purposes of subsection 16 (1). O. Reg. 521/10, s. 11.
(4) If section 16 does not apply, the documents referred to in paragraphs 2 and 3 of subsection
(2) shall be distributed under subsection (1) at least 30 days before an application for a renewable
energy project is submitted to the Director. O. Reg. 521/10, s. 11.
(5) The consultation form referred to in paragraph 3 of subsection (2) shall be distributed for the
purpose of consulting on matters relating to municipal or local infrastructure and servicing and
shall be in a form and format approved by the Director. O. Reg. 521/10, s. 11.
(6) This section does not apply to a person who proposes to engage in a renewable energy
project in respect of a Class 2 wind facility. O. Reg. 521/10, s. 11.
…
Consideration of archaeological and heritage resources
20. (1) A person who proposes to engage in a renewable energy project shall consider whether
engaging in the project may have an impact on any of the following:
1. An archaeological resource at the project location.
2. A heritage resource at the project location, other than at a part of the project location
that is on a property described in Column 1 of the Table to section 19.
3. A property described in Column 1 of the Table to section 19 that abuts the parcel of
land on which the project location is situated. O. Reg. 359/09, s. 20 (1).
(2) If, as a result of the consideration under subsection (1), the person mentioned in subsection
(1) concludes that there is no possibility of impact on a resource or a property described in
paragraph 1, 2 or 3 of subsection (1), the person shall submit, as part of an application for the
issue of a renewable energy approval, a written summary of the matters addressed in the
consideration of the resource or property. O. Reg. 359/09, s. 20 (2).
(3) This section does not apply to a person who proposes to engage in a renewable energy
project in respect of,
(a) a Class 2 wind facility;
(b) a Class 1 or 2 anaerobic digestion facility;
(c) a Class 1 thermal treatment facility, if the generating unit of the facility is located at a
farm operation; or
24
(d) a Class 2 thermal treatment facility. O. Reg. 359/09, s. 20 (3).
…
Archaeological assessment
22. (1) This section applies to a person if,
(a) as a result of the consideration mentioned in subsection 20 (1), the person
concludes that engaging in the renewable energy project may have an impact on
an archaeological resource described in paragraph 1 of subsection 20 (1); or
(b) the person concludes, after complying with section 21, that the project location is
situated as described in subclause 21 (2) (a) (i) or (ii) or clause 21 (2) (b). O. Reg.
359/09, s. 22 (1).
(2) A person to whom this section applies shall ensure that,
(a) an archaeological assessment is conducted by a consultant archaeologist; and
(b) an archaeological assessment report is prepared by the consultant archaeologist
mentioned in clause (a) and submitted to the Ministry of Culture. O. Reg. 359/09,
s. 22 (2).
(3) As part of an application for the issue of a renewable energy approval, a person to whom this
section applies shall submit,
(a) written comments provided by the Ministry of Culture in respect of the
archaeological assessment conducted under clause (2) (a);
(b) the archaeological assessment report prepared under clause (2) (b); and
(c) if the project location is on property described in subclause 21 (2) (a) (ii), a copy of
the permit issued by the Minister of Culture to excavate or alter the property or to
remove an artifact from that property, as the case may be. O. Reg. 359/09, s. 22
(3).
(4) In this section, a reference to a consultant archaeologist is a reference to a consultant
archaeologist within the meaning of Ontario Regulation 8/06 (Licences under Part VI of the Act
— Excluding Marine Archaeological Sites) made under the Ontario Heritage Act. O. Reg.
359/09, s. 22 (4).
…
Date of deemed confirmation
59. (1) Subject to subsection (2), the prescribed period of time for the purposes of subsection
145.2.1 (6) of the Act is six months from the day that the notice is served upon the Tribunal
under subsection 142.1 (2) of the Act.
(2) For the purposes of calculating the time period mentioned in subsection (1), any of the
25
following periods of time shall be excluded from the calculation of time:
1. Any period of time occurring during an adjournment of the proceeding if,
i. the adjournment is granted by the Tribunal on the consent of the parties, or
ii. the adjournment is on the initiative of the Tribunal or granted by the Tribunal on the
motion of one of the parties and the Tribunal determines that an adjournment is
necessary to secure a fair and just determination of the proceeding on its merits.
2. If an application for judicial review under the Judicial Review Procedure Act has been
commenced with respect to the proceeding, the period of time from the day that the
application is commenced until the day that the application is disposed of, if an
adjournment of the proceeding before the Tribunal is granted by the Tribunal or a stay of
the proceeding before the Tribunal is granted by the Divisional Court.
Judicial Review Procedure Act, RSO 1990, c J.1
Applications for judicial review
2. (1) On an application by way of originating notice, which may be styled “Notice of
Application for Judicial Review”, the court may, despite any right of appeal, by order grant any
relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition
or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in
relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory
power.
26