In December 2019, the Ontario Minister of the Environment, Conservation and Parks revoked the Renewable Energy Approval (“REA”) issued for the construction and operation of the Nation Rise Wind Farm. The Minister’s decision to revoke the approval was based largely on the potential of the project to harm bats in the local area. The Minister’s decision was surprising for a number of reasons: (1) the Minister revoked a decision made by a Director of his own Ministry to issue the REA; (2) the project had already been subject to and successful in an appeal before the Environmental Review Tribunal (“ERT”); and (3) Nation Rise Wind Farm, a 100 megawatt wind turbine project, was already well under construction.
On May 13, 2020, the Ontario Divisional Court quashed the Minister’s decision to revoke the REA finding that the Minister’s decision was unreasonable because the Minister had acted without statutory authority in raising new issues on the appeal, applied the wrong legal test in making his decision, and made factual conclusions that were not supported by the evidentiary record.[1] In doing so, the Divisional Court also confirmed the application of a correctness standard to cases raising issues of procedural fairness.
Background
A REA, issued under the Ontario Environmental Protection Act (the “EPA”), is the key approval required to construct and operate a wind farm in Ontario. Proponents are required to prepare a comprehensive application for a REA, including various studies related to the natural environment, heritage features, noise impacts, and potential impacts to birds and bats in the area. The application is submitted to the Ministry of Environment, Conservation and Parks (“MECP”). The Director considers the application and may issue the REA (including any conditions) if he or she is of the opinion that it is in the public interest.[2]
In May 2018, the Director issued a REA for the Nation Rise Wind Farm. The REA included various conditions, including conditions that required the company to monitor the impacts to bats and to implement plans to mitigate such impacts. Shortly after the Director issued the REA, the Concerned Citizens of North Stormont (“CCNS”) appealed the decision to the ERT.
An appeal before the ERT may only be required on the grounds that engaging in the project will cause: (a) serious harm to human health; or, (b) serious and irreversible harm to plant life, animal life or the natural environment.[3] These are also the only grounds that the Tribunal may consider and, if the Tribunal determines that engaging in the project in accordance with the REA will not cause these harms, the Tribunal must confirm the decision of the Director.[4]
Evidence before the ERT during the Nation Rise hearing included expert testimony about anticipated bat mortality rates. The ERT cited two experts on behalf of Nation Rise in concluding that the project would not cause serious and irreversible harm to bats. The ERT found that CCNS had not met the onus of proving that the project would cause serious and irreversible harm to bats and dismissed the appeal. The specific issue of bat maternity colonies was never raised by any party before the ERT and was not mentioned in the ERT’s decision.
Following the ERT’s decision, CCNS launched a further appeal to the Minister. The EPA allows a decision of the ERT to be appealed to the Minister “on any matter other than a question of law” and the Minister “shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest”[5].
Prior to issuing a decision, the Minister requested submissions from the parties. Nation Rise argued that the ERT made no error, that deference was owed to the ERT, that new issues could not be raised on the appeal, and that the appeal was not an appropriate avenue for effecting broader policy change. CCNS argued that the “public interest” consideration under the EPA gave the Minister broad discretion to interfere with the ERT’s decision. The Minister requested additional submissions, including with respect to bats, which the parties provided. However, once again, none of the submissions discussed bat maternity colonies.
On December 4, 2019, the Minister granted CCNS’ appeal and revoked the REA issued to Nation Rise. Although he found the ERT decision to be “thorough and well-reasoned”[6], he decided that the harm to bat maternity colonies would be “serious and irreversible”[7]. He went on to conclude that the project was not in the public interest when the supposed harm to bats was weighed against the “minimal contribution the project is likely to have to the electricity supply in Ontario”[8].
Nation Rise filed an application seeking judicial review of the Minister’s decision. Nation Rise sought to quash the Minister’s decision on the basis that it was unreasonable, procedurally unfair, and that the Minister had acted with a reasonable apprehension of bias.
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