prince edward county field naturalists v. ostrander point gp inc., … · 2015-08-06 · neil...

Prince Edward County Field Naturalists v.Ostrander Point GP Inc., 2015 ONCA 269(CanLII)

Date: 2015-04-20

Docket: C59008

Citation:Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269

(CanLII), <http://canlii.ca/t/gh86g> retrieved on 2015-06-20

COURT OF APPEAL FOR ONTARIO

CITATION: Prince Edward County Field Naturalists v. Ostrander Point GPInc., 2015 ONCA 269

DATE: 20150420DOCKET: C59008

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Prince Edward County Field Naturalists

Appellant (Respondent on Cross-Appeal)

and

Ostrander Point GP Inc., as general partner for and onbehalf of Ostrander Point Wind Energy LP and

Director, Ministry of the Environment

Respondents (Appellant on Cross-Appeal)

Eric K. Gillespie and Erin Wallace, for the appellant Prince Edward CountyField Naturalists

Sylvia Davis and Sarah Kromkamp, for the respondent the Ministry of theEnvironment

CanLII - 2015 ONCA 269 (CanLII)

Neil Finkelstein, Douglas Hamilton and Brandon Kain, for the respondentOstrander Point GP Inc.

John B. Laskin and Alex Smith, for the intervener Canadian Wind EnergyAssociation

Stephen Hazell, for the intervener Nature Canada

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

Heard: December 8, 2014

On appeal from the judgment of the Divisional Court (Justices Ian V. B.Nordheimer, Maria T. Linhares de Sousa and Kevin W. Whitaker), datedFebruary 20, 2014, with reasons reported at 2014 ONSC 974 (CanLII),setting aside in part a decision of the Environmental Review Tribunal,dated July 3, 2013.

Juriansz J.A.:

A. INTRODUCTION

[1] On December 20, 2012, the Director for the Ministry of theEnvironment (the “Director”), granted the respondent, Ostrander Point GPInc. (“Ostrander”), a Renewable Energy Approval (“REA”). REAs aregranted under the Green Energy Act, 2009, S.O. 2009, c. 12, Sched. Aand amendments made under theEnvironmental Protection Act, R.S.O.1990, c. E.19 (“EPA”). The REA granted to Ostrander permits it toconstruct and operate a wind farm consisting of nine wind turbines on aparcel of Crown land in Prince Edward County.

[2] The appellant, Prince Edward County Field Naturalists (“FieldNaturalists”), opposes the Ostrander project. It filed an appeal of theDirector’s decision to grant the REA, pursuant to s. 142.1(3)(b) of the EPA,claiming that the Ostrander project would cause serious and irreversibleharm to a variety of animal and plant species and the natural environment,namely birds, bats, butterflies, turtles and alvar plants and the alvarecosystem.

[3] Another group, the Alliance to Protect Prince Edward County (“theAlliance”), also filed an appeal. It sought to establish that the project wouldcause serious harm to human health.

[4] The Environmental Review Tribunal found that the project would notcause serious harm to human health and dismissed the Alliance’s appeal.It also rejected the submissions that the project would cause serious andirreversible harm to birds, bats, butterflies, and alvar plants and the alvar


ecosystem. It did, however, conclude that the project would cause seriousand irreversible harm to one animal species, the Blanding’s turtle. TheTribunal allowed the Field Naturalists’ appeal with respect to the Blanding’sturtle and revoked the REA.

[5] The Field Naturalists appealed to the Divisional Court from theTribunal’s dismissal of their appeal regarding serious and irreversible harmto birds and alvar. Ostrander and the Director appealed from the Tribunal’sfinding of serious and irreversible harm to the Blanding’s turtle and itsdecision to revoke the REA. The Divisional Court dismissed the FieldNaturalists’ appeal and allowed the appeal of Ostrander and the Director. Itset aside the Tribunal’s finding of serious and irreversible harm to theBlanding’s turtle and the revocation of the REA.

[6] The Field Naturalists were subsequently granted leave to appeal tothis court. Ostrander cross-appeals, claiming the Divisional Court erred indismissing its fresh evidence application.

[7] The main question before this court is whether the Divisional Courtidentified the appropriate standard of review and applied it correctly. Forthe reasons that follow, I would allow the appeal in part. I would restore theTribunal’s conclusion that the project will cause serious and irreversibleharm to the Blanding’s turtle. I would, however, dismiss the appeal fromthe Divisional Court’s finding the Tribunal erred in how it dealt with remedy.I would remit the issue of what remedy is appropriate back to the Tribunalto decide after giving the parties the opportunity to be heard.

B. FACTUAL BACKGROUND

(1) The Ostrander Project

[8] In Ontario, a wind energy farm developer cannot construct a windenergy project without first obtaining an REA from the Director.

[9] The REA issued to Ostrander, allows it to construct its wind farmproject on a 324-hectare parcel of land known as the Ostrander PointCrown Land Block (the “Project Site”). Each turbine would requireexcavation and construction of an octagonal concrete platform 18 m indiameter. The platform for each turbine would be approximately 3 m indepth and would be anchored into the bedrock.

[10] In addition, the project would require the building of 5.4 km of gravelroads on the Project Site to provide access to each of the nine turbines onthe site during their construction and subsequently for their maintenance.The roads would also be open to the public for recreational purposes. Theroads would be approximately 6 m wide with larger turnarounds. A gravelparking lot would also be built next to the transformer station, and cranepads measuring 20 x 40 m would be located next to the turbines to beused during construction and throughout the life of the project.


[11] The Project Site is located on the south shore of Prince EdwardCounty, one of the least developed areas of the County. It is a provinciallysignificant wetland, known for its alvar vegetation. It provides habitat toBlanding’s turtle and the Whip-poor-will and serves as a migratory corridorfor birds, bats and the Monarch butterfly.

(2) The Blanding’s Turtle

[12] Blanding’s turtle is a semi-aquatic, freshwater turtle that lives innortheastern and midwestern North America. It is “spottily distributed” insouthern and central Ontario. It is currently designated as a threatenedspecies under the Ontario Endangered Species Act, 2007, S.O. 2007, c. 6(“ESA”) and the federal Species at Risk Act, S.C. 2002, c. 29. TheInternational Union of Conservation of Nature (part of the United NationsEnvironment Program) has designated the turtle as globally endangered.The exact size of the population of Blanding’s turtle at the Project Site, inPrince Edward County and throughout Ontario is not known.

[13] Blanding’s turtles have a low annual reproductive output. Femaleturtles do not reach sexual maturity until they are 18 or 20 years of age andnot all females reproduce every year. A female turtle will lay 10 – 14 eggsonce in a breeding season. Nest success is low due to predators, andhatchlings have a very low chance of reaching maturity. There is high riskof predation when they migrate from the nest to the wetland, and once inthe wetland, it takes five to seven years to grow beyond the “gape” size.

[14] Throughout its annual cycle, Blanding’s turtle uses a variety ofwetland types, including emergent marshes, bogs, temporary pools andforested swamps. In most cases, a single wetland will not be able toaccommodate all the turtle’s needs. Thus, most Blanding’s turtles traveloverland and use several wetlands a year.

[15] In the early summer, female turtles will travel upwards of 6 km tolocate suitable nesting sites. Importantly, female turtles find the gravelshoulders and embankments of roadways to be particularly desirablenesting habitat. This increases the risk of mortality to adult females andhatchlings because they are easily killed by motor vehicles. Road mortalityposes the most serious threat to Blanding’s turtle survival.

[16] The Blanding’s turtle is also susceptible to predators, such asraccoons, foxes, skunks and coyotes. These predators typically attackBlanding’s turtle nests, and the threat is increased when the predators areable to use roadways to easily access nesting habitat.

[17] Poaching is another serious threat to the Blanding’s turtle because itis an attractive, pleasant species and makes a desirable pet.

(3) The ESA Permit

[18] As part of the approval process, Ostrander was required to considerpotential impacts of the project on species at risk and obtain a permit under


s. 17(2)(c) of the ESA. ESA permits are issued by the Ministry of NaturalResources and exempt a person from the general prohibition on killing,harming or harassing a member of an endangered or threatened speciesand the prohibition on damaging the habitat of that species.

[19] Ostrander successfully obtained an ESA permit exempting it fromprosecution for killing or harming the Blanding’s turtle and the Whip-poor-will.

C. THE TRIBUNAL’S REASONS

[20] The Tribunal’s jurisdiction to review the REA is found in s. 145.2.1(2)of the EPA, which provides:

The Tribunal shall review the decision of the Directorand shall consider only whether engaging in therenewable energy project in accordance with therenewable energy approval will cause,

a) serious harm to human health; or

b) serious and irreversible harm to plant life, animallife or the natural environment.

[21] The Tribunal conducted a 40-day hearing, in which it received 185exhibits and heard testimony from 31 expert witnesses. Drs. Beaudry,Shilling and Edge and Ms. Gunson were called as experts to discuss theimpact of the project on Blanding’s turtle.

[22] The Tribunal concluded the project would cause serious andirreversible harm to the Blanding’s turtle population that uses the ProjectSite and surrounding area.

[23] The Tribunal’s finding the project would cause serious andirreversible harm to Blanding’s turtle was not based on the constructionphase of the project. The Tribunal was satisfied the special mitigationmeasures the respondent would undertake would adequately protect theturtle during that phase. However, the Tribunal concluded the continuedexistence of the access roads that would be built for the project wouldcause serious and irreversible harm after construction of the project wascompleted.

[24] The scale adopted by the Tribunal defined the ambit of its seriousand irreversible harm analysis. It considered whether the project wouldcause serious and irreversible harm to the population of turtles that use“the Project Site and surrounding area” (the “Area”). It did not consider thebroader population of Blanding’s turtle in Ontario or Prince Edward Countyor the smaller scale of the population at the Project Site itself.

[25] The Tribunal noted that this scale of population was used in Stantec’sBlanding's Turtle Report, accorded with Dr. Edge's detailed description of


the area, and was consistent with the area Dr. Beaudry discussed, whichhe referenced on maps during his testimony.

[26] The Tribunal did not receive evidence of the exact size of the turtlepopulation in the Area, but it accepted the evidence of Dr. Beaudry that thepopulation size was likely quite small.

[27] All the experts agreed that the continued existence of the roadsconstructed for the project risked causing serious harm to the turtle. Theydiffered only about whether the proposed mitigation measures wouldprevent irreversible harm.

[28] The Tribunal noted that the testimony of Ms. Gunson, Dr. Beaudryand Dr. Edge all accorded with the conclusion of the Stantec Report thataccidental road mortality could have a significant negative impact on thelocal turtle population. Dr. Beaudry, in particular, testified the proposed 5.4km of roads to provide access to each turbine would be located directly inthe turtle’s critical habitat. This was particularly troubling consideringBlanding’s turtles can travel upwards of 10 to 15 km per season in searchof food, refuge, and nesting sites. He said that “the likelihood that any turtlewould cross one of the roads [in its annual cycle] is extremely high”. Theroads would also provide poachers and predators easier access to turtlehabitat and nesting sites. Ms. Gunson testified that the access roads wouldhave indirect impacts, including habitat loss and fragmentation andchanges to vegetation and hydrology.

[29] While the Tribunal was mindful of the testimony of all the experts, itbased its conclusion primarily on the evidence of Dr. Beaudry and Ms.Gunson. Both gave unreserved testimony that the project would causeserious and irreversible harm to the Blanding’s turtle population that usesthe Area and that the proposed mitigation measures would not prevent thatharm.

[30] Dr. Beaudry testified he could give this opinion without knowing theexact population size at Ostrander point. He explained that the size ofinitial population would only affect the end-time when the populationbecomes extinct.

[31] The Tribunal accepted Dr. Beaudry’s testimony that it wasunnecessary to know the exact population size to conclude the projectwould cause serious and irreversible harm. At para. 358, the Tribunalconcluded:

There is certainly enough information for the Tribunalto make findings on the conservation status of thespecies, its life history traits that make it vulnerable toharm from the Project, the precise type of harm thatthe Project will cause, and the significance of this type


of harm (road mortality and poaching) on Blanding’sturtle.

[32] The Tribunal also found that the fact Ostrander had been granted anESA permit did not determine whether the project would cause serious andirreversible harm to Blanding’s turtle. The Tribunal explained that beforeissuing the ESA permit, the MNR considered whether the project wouldhave an overall benefit to the species as a whole in Ontario, whereas theTribunal considered the status of the Blanding’s turtle population at theArea. As well, the Tribunal found the mitigation measures that the ESApermit required for the Blanding’s turtle would not adequately address theharm to the turtle in the Area.

[33] After reviewing all the evidence, the Tribunal concluded that themortality resulting from the continued existence of the access roads wouldcause serious and irreversible harm to the Blanding’s turtles at the Area:

The Tribunal finds that mortality due to roads, broughtby increased vehicle traffic, poaching and predators,directly in the habitat of Blanding’s turtle, a speciesthat is globally endangered and threatened in Ontario,is serious and irreversible harm to Blanding’s turtle atOstrander Point Crown Land Block that will not beeffectively mitigated by the conditions of the REA

[34] The Tribunal revoked the decision of the Director to grant the REA toOstrander.

D. THE DIVISIONAL COURT

[35] The Divisional Court held that the reasonableness standard appliedto its review of the Tribunal’s interpretation of the test under s. 145.2.1(2)of the EPA, as well as to the Tribunal’s interpretation of the ESA and itsrelationship to the EPA. The Court also held that Ostrander could notattack the Tribunal’s findings of fact because the right of appeal under theEPAwas confined to questions of law.

[36] The Divisional Court found that the Tribunal made a number of errorsthat made its finding of serious and irreversible harm unreasonable:

i. The Tribunal dealt with serious harm andirreversible harm together and failed to explainits reasons for concluding that the harm wouldbe irreversible;

ii. The Tribunal concluded there would be serious andirreversible harm without evidence of the size ofthe population of Blanding’s turtle, the currentlevel of vehicular traffic on the Area and the


degree of increase in vehicular traffic thatwould result from the project; and

iii. The Tribunal failed to give sufficient weight to theexistence of theESA permit, the conditionsattached to that permit, the obligation of theMNR to monitor and enforce the permit, andthe fact that the REA expressly requiredOstrander to comply with the ESA permit.

[37] The court also found the Tribunal erred in how it dealt with remedy,namely:

i. The Tribunal failed to give the parties an opportunityto address the issue of the appropriate remedyand thereby violated the principles of naturaljustice and procedural fairness;

ii. The Tribunal made a clear error of law in findingthat it was not in a position to alter the decisionof the Director, or to substitute its opinion forthat of the Director.

[38] The Divisional Court allowed the appeal and set aside the Tribunal’sdecision.

E. ANALYSIS

(1) Proper Approach on Judicial Review

[39] Though this case involves a statutory appeal, the parties relied onjudicial review authorities in their submissions regarding the properstandard of review. This was entirely appropriate.

[40] The Supreme Court has noted that "[t]he term 'judicial review'embraces review of administrative decisions by way of both application forjudicial review and statutory rights of appeal": Dr. Q. v. College ofPhysicians& Surgeons of British Columbia, 2003 SCC 19 (CanLII), [2003]1 S.C.R. 226, at para. 21 (emphasis added). Moreover, the standards ofreview established by the Supreme Court of Canada in Dunsmuir v. NewBrunswick, 2009 SCC 9 (CanLII), [2008] 1 S.C.R. 1990, apply not only tojudicial review, but also to statutory appeals from tribunals: First OntarioRealty Corp. v. Deng, 2011 ONCA 54 (CanLII), 274 O.A.C. 338, at para.16.

[41] Counsel for the intervener, Prince Edward County South ShoreConservancy, urges this court to apply the approach outlined inNewfoundland and Labrador Nurses Union v. Newfoundland and Labrador(Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708. In thatcase, the Supreme Court endorsed the observation of Professor


Dyzenhaus that deference to an administrative tribunal requires “respectfulattention” to the “reasons offered or which could be offered in support of[the Tribunal’s] decision”. Even if the reasons do not seem wholly adequateto support the decision, “the court must first seek to supplement thembefore it seeks to subvert them”: at para. 12, citing David Dyzenhaus, "ThePolitics of Deference: Judicial Review and Democracy", in MichaelTaggart, ed., The Province of Administrative Law (1997), 279, at p. 304.

[42] Counsel for Ostrander submits this court should apply Alberta(Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61 (CanLII),[2011] 3 S.C.R. 654, where the Supreme Courtcautioned a reviewing court against reformulating a Tribunal’s decision in away that “casts aside an unreasonable chain of analysis in favour of thecourt’s own rationale for the result”: at para. 54, citing Petro-Canada v.British Columbia (Workers’Compensation Board), 2009 BCCA 396(CanLII), 276 B.C.A.C. 135, at paras. 53 and 56.

[43] In this case, I find it unnecessary to address the different nuances inthe decisions cited to us[1]. The parties all recognize that the reviewingcourt must adopt a deferential approach to the Tribunal’s decision. Thelegislature confided to the Tribunal the question whether the project shouldbe disallowed because it will cause “serious and irreversible harm to plantlife, animal life or the natural environment”. The Tribunal has the task of thebalancing the different and potentially opposing values involved inanswering that difficult question.

[44] On appeal the question for the court is whether the Tribunal’sdecision is reasonable. In determining whether the decision is reasonable,the reviewing court is concerned with “justification, transparency andintelligibility” of the Tribunal’s reasons: Dunsmuir, at para. 47. It is sufficientif the Tribunal’s reasons serve the purpose of showing that the result fallswithin a range of possible reasonable outcomes.

(2) The Tribunal’s “Serious and Irreversible Harm” Analysis

[45] The Divisional Court found that the Tribunal’s analysis was faulty inlaw because its reasons did not “reveal a separate and intelligible analysison the issue of irreversible harm that this court can review.”

[46] The Court did not quarrel with the Tribunal’s conclusion that the issueof “serious and irreversible harm” must be interpreted on a case by casebasis. However, the Divisional Court stated that “the Tribunal did notseparate out, in the course of its determination of whether the test was metin relation to Blanding’s turtle, it’s analysis of the serious harm factor fromits analysis of the irreversible harm factor.” Therefore, the Divisional Courtconcluded that the Tribunal’s reasons were not intelligible.

[47] I agree with the Divisional Court that the Tribunal was entitled toadopt a case by case approach to the application of the serious and


irreversible harm test. I also agree with the Divisional Court that the “twofactors address very different issues”. However, it is clear from its reasonsas a whole that the Tribunal was aware the test involved both factors. Forexample, when considering potential damage to alvar vegetation and thealvar ecosystem, the Tribunal conducted an analysis where it kept the twofactors separate: at paras. 616-617.

[48] I disagree that the Tribunal erred in failing to separately considerwhether the project would cause irreversible harm to the Blanding’s turtle.

[49] At the hearing before the Tribunal, all the parties agreed that theproject would inevitably result in an increase in Blanding’s turtle mortality.There was no dispute that loss of life of a threatened species with a slowreproductive rate constitutes serious harm.

[50] The Divisional Court recognized this. It said it was “unquestionablefrom the evidence that was placed before the Tribunal that there was a riskof serious harm to Blanding’s turtle from the project”. It acknowledged that“[g]iven the fragile status of Blanding’s turtle as a species, it would bedifficult to characterize any increase in mortality arising from the Project asanything other than serious.” For this reason, the Divisional Courtconcluded that “the real issue” was “whether that harm was alsoirreversible.”

[51] I agree with this observation.

[52] In the case of the Blanding’s turtle, the only real question for theTribunal to decide was whether the increase in mortality resulting from theroads would be irreversible. On my reading, the Tribunal’s reasons areentirely focused on that question. In applying the serious and irreversibleharm test in this case, there was no need for the Tribunal to separatelyanalyze what was evident and not disputed – whether the harm wasserious.

[53] The Divisional Court also implies the Tribunal could not havereasonably relied on Dr. Beaudry’s opinion because he too failed todistinguish between serious harm and irreversible harm. In fact, the courtsuggests that the Tribunal’s reliance on Dr. Beaudry may have led to theTribunal’s own failure to separately discuss“irreversible” harm in itsreasons.

[54] Dr. Beaudry did testify that he would not distinguish between“serious” and“irreversible” harm. However, it must be remembered that hedefined “serious and irreversible harm” as “something that can lead to alower reproductive output or a higher mortality rate, enough so to lead alocal population to extinction.” As discussed above, there was no disputethat any increase in mortality arising from the project was anything otherthan serious. Dr. Beaudry’s focus on a mortality rate sufficient to “lead thelocal population to extinction” clearly encompasses both factors.


[55] Dr. Beaudry explained that studies have shown that Blanding’s turtleadult survivorship is estimated at 96 percent. As soon as there is anadditional two percent decline in survivorship, the “population starts todecline fairly quickly”.This rapid decline in population would constituteserious and irreversible harm, or in Dr. Beaudry’s words, “lead a localpopulation to extinction.” Dr. Beaudry also indicated that a decrease inannual survivorship in the one to two percent range can cause thepopulation to decline, but the decline would occur at a slower rate.

[56] Dr. Beaudry was of the view that the increased road mortality anddecrease in reproductive output caused by the project would be sufficientto lead to such a decline in population.

[57] The assessment of Dr. Beaudry’s testimony was a matter for theTribunal, not the Divisional Court.

[58] I conclude that the Divisional Court erred in finding that the Tribunalerred in failing to engage in a separate analysis of serious harm andirreversible harm in this case. Whether the project would cause seriousharm required no analysis and the Tribunal’s analysis focused on whetherthe harm was irreversible.

(3) Lack of Numerical Data of Population Size and Traffic Flow

[59] The Divisional Court held the Tribunal could not conclude therewould be irreversible decline in the population, without any data on the sizeof the population impacted, the extent of road mortality currentlyexperienced at the site, the current vehicular traffic on the site and theincrease in vehicular traffic that would result from the project. Without thisinformation, the Divisional Court said it would not seem possible todetermine whether the mortality rate after the project was built would fallinside or outside the two to five percent mortality that the population couldsustain.

[60] With respect, the Divisional Court erred in this conclusion.

[61] First, the Tribunal had expert evidence that numerical data of thepopulation level and of the increase in vehicular traffic was not needed tosupport the conclusion there would be serious and irreversible harm. TheTribunal accepted that evidence. As I have said, it was not for theDivisional Court to assess the credibility of expert evidence and concludethat the Tribunal should not have accepted it.

[62] Second, the Tribunal did have some evidence of the magnitude ofpopulation, mortality rate and traffic volume. That evidence was notexpressed in numbers, but numbers without context lack meaning. Thenumber of Blanding’s turtle, no matter what that number is, satisfies thecriteria for the turtle to be classified as “threatened” under the ESA and as“endangered” by the International Union for Conservation of Nature. Dr.Beaudry testified he expected the population in the Area was “likely small.”


He added: “I have strong reasons to believe that the population is notlarge” (emphasis added).

[63] The Tribunal also had some evidence about vehicular traffic on theexisting and on the proposed roads. At the time of the hearing, the ProjectSite contained several kilometers of tertiary road that was passable onlywith four-wheel drive and all-terrain vehicles. The project would require theconstruction of an additional 5.4 km of roads providing access to each windturbine. These access roads would be accessible by other forms of motorvehicle. Dr. Beaudry assumed the volume on the proposed roads would be“low”. Dr. Shilling estimated there would be, at most, “a few cars a day”. Allthe experts agreed that the roads would result in an increase of vehiculartraffic within the Area.

[64] As summarized above, Dr. Beaudry and Ms. Gunson explained indetail how the local population would be affected by the project roads.They would lead to greater turtle mortality and a consequent decrease inreproductive output. While Dr. Beaudry may not have used numericalmeasures of population, vehicles and traffic data and mortality rates, histestimony was based on a sense of the magnitudes involved. Dr. Beaudryalso proceeded on what the Tribunal described as the “best casescenario”. He ignored the natural fluctuations due to climate or an increasein predator populations that small or thinly distributed populations cansuffer by assuming the population would be stable apart from roadmortality. As well, the Tribunal had the evidence of Ms. Gunson whotestified there was no direct correlation between traffic volume andmortality.

[65] As well, it must be remembered all the experts agreed that the roadswould harm the turtle. They differed only about whether the proposedmitigation measures would prevent irreversible harm. The Tribunal’sconclusion that the mitigation measures would not be effective left it withunanimous expert evidence that the roads would harm the turtle and theevidence of Dr. Beaudry that the serious harm could not be adequatelymitigated and would be irreversible.

[66] The Divisional Court did say that mathematical precision was notrequired, but it seems to me the court thought it necessary the Tribunal beable to make calculations using quantitative orders of magnitude thatproved that road mortality would lead to a decline in the populationresulting in eventual extinction. I do not accept that. It was for the Tribunalto decide whether the qualitative indications of magnitude the expertsproceeded upon provided an adequate base for their conclusions.

[67] The Divisional Court also stated the Tribunal needed to know theturtle’s population size in Prince Edward County and in all of Ontario.There is nothing in the EPA to support this suggestion. The scale to be


considered in assessing whether there will be serious and irreversibleharm is entirely within the expert Tribunal’s authority to decide.

[68] When considered in light of all the evidence, I am satisfied theTribunal could reasonably accept the evidence of Ms. Gunson and Dr.Beaudry that the project would cause serious and irreversible harm withouthaving specific numerical data on the turtle’s population size, the volume oftraffic, and the rate of mortality. I am also satisfied that the Tribunal’sreasons for accepting the opinions of these experts are intelligible, and itsconclusion there would be serious and irreversible harm falls within therange of reasonable outcomes and should not be disturbed.

(4) The ESA Permit

[69] The Divisional Court also found the Tribunal erred in failing to attachproper weight to the ESA permit and failing to adequately explain theconflict between the MNR’s decision to issue the permit and its ownconclusion.

[70] I have no difficulty in understanding the Tribunal’s explanation of thedifferent results. The Tribunal pointed to the evidence of an MNR officialwho testified that in granting the ESA permit, the MNR concluded that theproject would bring an “overall benefit” to Blanding’s turtle in Ontario. Onthe other hand, the Tribunal explained it considered a much smaller scaleof population and assessed the project’s impact on the local population ofBlanding’s turtle in the Area.

[71] In any event, the ESA permit was not binding on the Tribunal. Ratherthe permit expressly states that it does not release Ostrander from the“obligation to obtain permission under or to comply with all applicablefederal, provincial and municipal laws.” Hence, Ostrander was obliged tocomply with the EPA’s requirement that it obtain an REA and abide by thedecision of the Tribunal if the REA were appealed.

[72] I agree with the Tribunal’s comment that “[a]lthough [Ostrander] isbound by the ESAPermit, a contravention of which may lead to prosecutionunder the ESA, for the Tribunal's purposes in this analysis it is simplyevidence relevant to conditions to the REA, which must be assessed aswould any other condition.”

[73] The Tribunal carefully considered the mitigation measures requiredby the ESApermit and concluded they were incomplete and would not beeffective. The Tribunal exercised its independent judgment and found thatthe evidentiary value of the permit was outweighed by the expert evidenceintroduced. In doing so, the Tribunal was carrying out its distinct statutorymandate under s. 145.2.1(2) of the EPA.

[74] In my opinion, therefore, the Divisional Court erred by concluding theTribunal erred in how it dealt with the ESA permit.


(5) The Tribunal’s Approach to Remedy

[75] After concluding that the Tribunal’s finding of serious and irreversibleharm should be set aside, the Divisional Court went on to find that theTribunal erred in dealing with remedy.

[76] First, the Divisional Court found the Tribunal failed to accord theparties procedural fairness when it decided to revoke the REA withouthearing from them. This remedy was of such consequence that proceduralfairness required the Tribunal allow the parties to make submissions.

[77] Second, the Divisional Court concluded the Tribunal erred in law bytaking a limited view of its remedial jurisdiction. The Divisional Courtfocused on the Tribunal’s remark that it was “not in a position to alter thedecision of the Director, or to substitute its opinion for that of the Director.”The Divisional Court said this statement was plainly wrong because it isclearly contradicted by the express wording of s. 145.2.1(4)(c). Section145.2.1(4)(c) authorizes the Tribunal to "alter the decision of the Director,and, for that purpose, the Tribunal may substitute its opinion for that of theDirector."

[78] Before addressing the appeal of the Divisional Court’s finding theTribunal committed these errors, it is necessary to deal with the cross-appeal.

(a) Cross-Appeal

[79] After the Tribunal’s decision was released, Ostrander took steps toobtain the MNR’s agreement to lease the property at the Project Site to itso that it could prohibit public access to the roads constructed on the site.On November 15, 2013, the Minister approved an Impact Monitoring Planunder which the new access roads would be closed to the public. The ESApermit, which incorporates the Impact Monitoring Plan by reference, nowrequires that the new access roads be closed to the public.

[80] On appeal to the Divisional Court, Ostrander tendered evidence ofthe steps it was taking to have the roads closed to the public as freshevidence. The Divisional Court dismissed Ostrander’s fresh evidenceapplication for two reasons. First, it found that Ostrander could have ledthe evidence before the Tribunal if it had exercised reasonable diligence.The Divisional Court reasoned that Ostrander knew that road mortality wasan issue at the time of the Tribunal hearing, and it could have taken stepsto lease the property and close the access roads prior to the end of thehearing. If it had done so, Ostrander could have led evidence of the roads’closure before the Tribunal.

[81] The second reason for dismissing the fresh evidence application wasthat, in the Divisional Court’s view, the fresh evidence pertained to the“facts”. The Divisional Court noted that its jurisdiction on the appeal waslimited to questions of law under s. 145.6 of the EPA. In its appeal to the


Divisional Court, Ostrander argued that the Tribunal had made palpableand overriding errors of fact and that a palpable and overriding error of factamounts to a question of law. The Divisional Court considered it would beunfair to allow Ostrander to advance that argument by changing theunderlying factual evidence that was before the Tribunal.

[82] In my view, the Divisional Court applied the fresh evidence test toostrictly. I would not have expected Ostrander to have taken steps to closethe roads at the time of the Tribunal hearing. The parties were not in aposition to address remedy without knowing the Tribunal’s decision on themerits. As the Divisional Court observed later in its reasons:

There were many different attacks launched againstthe Renewable Energy Approval. There was anallegation of harm to human health, to Blanding'sturtles, to birds, to bats, to butterflies and to alvar. Itwould, of course, be unknown to the parties whetherany of these allegations of harm would be made outand, if so, which ones. It follows from that practicalreality that the nature of the appropriate remedy mightwell vary, perhaps considerably, depending on theharm that was found to exist. For example, theappropriate remedy for harm to human health mightbe very different from the appropriate remedy forharm to alvar.

[83] Ostrander could not reasonably have been expected to address theappropriate remedy in relation to each of the many different attacksmounted by the Field Naturalists and the Alliance.

[84] I do not agree that the fresh evidence was tendered solely to addressfactual issues. Questions before the court included whether the Tribunalfailed to provide the parties with procedural fairness and whether theTribunal misinterpreted its statutory remedial authority. These arequestions of law. The fresh evidence provides some illumination of thesequestions. It shows concretely what Ostrander could have contributed hadit been accorded the opportunity to address the issue of the appropriateremedy.

[85] I would allow the cross-appeal and admit the fresh evidence.

(b) Analysis of The Tribunal’s Approach to Remedy

[86] I approach the matter somewhat differently than did the DivisionalCourt but reach the same result that the Tribunal should have accorded theparties the opportunity to address remedy.

[87] I am not satisfied the Tribunal made the clear error of law identifiedby the Divisional Court. I do not read the Tribunal’s reasons to suggestthat, as a matter of law, it lacked the authority to alter the decision of the


Director and substitute its opinion for that of the Director. That said, I find itdifficult to discern what the Tribunal meant by this remark. For that reason Icannot regard the Tribunal’s decision on remedy to be reasonable. Inaddition, I agree with the Divisional Court that, in the circumstances of thiscase, the Tribunal should have allowed the parties to address remedy.

[88] I begin by observing that the Tribunal was well aware of the terms ofs. 145.2.1(4). In the title of its reasons on remedy, the Tribunal queriedwhether it “should revoke the decision of the Director, by order direct theDirector to take some action, or alter the decision of the Director.” In para.636, the Tribunal set out the complete text of s. 145.2.1(4) and stated thatit could do one of the following:

(a) revoke the decision of the Director;

(b) by order direct the Director to take such actionas the Tribunal considers the Director should take inaccordance with the EPA and the regulations; or

(c) alter the decision of the Director, and, for thatpurpose, the Tribunal may substitute its opinion forthat of the Director.

[89] After setting out its statutory remedial authority, the Tribunal revieweddocuments that indicated the government, as a matter of policy, intendedthat the Ostrander Crown Land Block should be available to the public forrecreational uses. Some of the documents reviewed emanate from theMinistry of Natural Resources, for example the Non-Forestry Road-UseManagement Strategy Declaration, attached to the Work Permit issued bythe MNR and the MNR’s Free Land Use Policy (PL.3.03.01). However, theREA, issued by the Director of the Ministry of the Environment, is notamong the documents reviewed. In fact, the REA itself does not addresswhether the access roads should be open to the public. Perhaps what theTribunal meant was that the government’s road policy was beyond theauthority of the Director who issued the REA, and the Tribunal’s authorityto interfere with the Director’s decision was no greater than the Director’sown authority.

[90] This, however, cannot be the case. The Tribunal specifically referredto the Director, saying it was “not in a position to alter the decision of theDirector, or to substitute its opinion for that of the Director” (emphasisadded). It is apparent the Tribunal did not mean that the public’s access tothe roads was rooted in some broad government policy that was beyondthe authority of the Director and hence its own. It is necessary to considerwhat else the Tribunal might have meant.

[91] The Tribunal went on to say, “Whether or not Crown land should beclosed to public access in order to allow a wind development to proceed is


a value judgment that is not within the purview of the Tribunal to make.” Itadded, “At its essence, it is a decision whether the Ostrander Point CrownLand Block will be used for wind energy generation, rather than currentCrown land uses which do not involve road development.”

[92] These observations might suggest the Tribunal considered that itsrole did not extend to making the value judgment about which of twodifferent and incompatible government policies should be given effect.

[93] This too cannot be the meaning of the Tribunal’s remark. TheTribunal did choose between the two incompatible government policies.The effect of the remedy the Tribunal granted, revocation of the Director’sdecision, was to decide the government-approved wind project would giveway to the government’s policy that the Crown land should be available tothe public for recreational use. The Tribunal must have meant somethingelse.

[94] Another view of what the Tribunal meant is to note it said “it was notin a position”to alter the decision of the Director, not that it lacked theauthority to do so. This might be lead to the inference the Tribunal meant itlacked sufficient information about the government’s attitudes towards itstwo competing government policies to exercise its legal authority to choosebetween them. If so, this would provide support for the Divisional Court’sconclusion the Tribunal should have allowed submissions on remedy. TheDirector, in particular, was a party and could have shed light on thegovernment’s attitude.

[95] I am reluctant to conclude the Tribunal made an obvious error of lawin regard to a basic provision of its home statute, but I am unable tounderstand what the Tribunal meant in remarking “it was not in a positionto alter” the Director’s decision. The remark was a pivotal link in theTribunal’s justification of its choice of remedy. The Tribunal said it was “asa result” of its remark that it revoked the decision of the Director. As I amunable to understand the Tribunal’s reasons for choosing the remedy itordered, I am unable to regard the Tribunal’s choice of remedy asreasonable.

[96] Whatever the Tribunal meant by the remark, it is clear the Tribunaleither adopted a limited view of its remedial power or considered that itlacked the information necessary to exercise it. Whether one or the other,the Tribunal should have provided the parties with the opportunity toaddress remedy. The potential limitation of the Tribunal’s remedial powerwas a new issue that the Tribunal introduced itself. The parties might haveprovided helpful submissions on the following: the proper interpretation andapplication of s. 145.2.1(4) as it affects the scope of the Tribunal’s remedialpower; the ambit of the Director’s authority; the relevant governmentpolicies and how they intersected at the site; and the government’s


preferred remedy. I have already noted that the Director was a party beforethe Tribunal.

[97] I also agree with the Divisional Court that, given the broad and variedrange of attacks launched against the REA, it was not realistic to expectthe parties to address the appropriate remedy at the end of the hearing ofthe merits without knowing what the Tribunal’s findings were in regard tothe broad range of alleged harms. Without the contributions of the partieson the question of remedy, it is not surprising the Tribunal found itself “notin a position” to consider the full range of remedial options.

[98] While I conclude the Tribunal erred by failing to allow the parties toaddress the scope of its remedial jurisdiction and what the appropriateremedy was, I reject Ostrander’s submission that this court should exerciseits jurisdiction under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43and permit the project to proceed in light of the fresh evidence.

[99] In making this submission, Ostrander points out that the Tribunal’sfinding of serious and irreversible harm arose from the fact that the newaccess roads could be used by public vehicles and the fresh evidenceshows that is no longer the case. Thus, it submits there is no reason tosend the matter back to the Tribunal.

[100] This submission is without merit. It is inconsistent with Ostrander’sposition, successful on appeal, that the parties should be accorded theopportunity to address remedy. As well, that the Tribunal will allow theproject to proceed upon the roads closure should not be regarded as aforegone conclusion. I note the Tribunal had evidence of how the proposedaccess roads would cause harm to the turtle’s habitat quite apart fromcollisions with motor vehicles. Finally, the Tribunal has yet to determine thescope of its remedial jurisdiction in the context of this case.

F. DISPOSITION

[101] I would allow the appeal in part. I would allow the appeal on themerits and restore the Tribunal’s conclusion that the project will causeserious and irreversible harm to the Blanding’s turtle. I would allow thecross-appeal and the fresh evidence application. I would dismiss theappeal from the Divisional Court’s finding that the Tribunal erred in dealingwith remedy. I would remit the matter back to the Tribunal to addressremedy after giving the parties the opportunity to be heard.

[102] In light of the mixed success, this is not a case for costs.

Released: April 20, 2015(EAC) “R.G. JurianszJ.A.”

“I agree E.A. CronkJ.A.”


“I agree Gloria EpsteinJ.A”

[1] See Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114 (CanLII), 372 DLR

(4th) 567, for a discussion of the differences between the two decisions.

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prince edward county field naturalists v. ostrander point gp inc., … · 2015-08-06 · neil...

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