Ontario Court Backs Wind Developer at Ostrander Point

by Bennett Jones LLP
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In July 2013, the Environmental Review Tribunal (ERT) revoked the Renewable Energy Approval (REA) issued to Gilead Power to develop a nine-turbine, 22.5-megawatt wind power project at Ostrander Point in Prince Edward County. The ERT's decision was premised on the view that the local Blanding's turtle – a species protected under the Endangered Species Act (Ontario) (ESA) – would suffer serious and irreversible harm as a result of the wind farm development.

Gilead Power appealed the ERT's ruling to the Ontario Divisional Court and on February 20, 2014, the court ruled in favour of the developer. The court restored the original issuance of the REA, which will allow the project to proceed. In summary, the court concluded:

  1. the ERT failed to separately identify and explain its reasons for concluding that, if serious harm would result from the project, that the serious harm was irreversible;
  2. the ERT concluded that serious and irreversible harm would be occasioned to Blanding's turtle without any evidence as to the population size affected;
  3. the ERT concluded that serious and irreversible harm would be occasioned to Blanding's turtle arising from road mortality without any evidence as to the current level of vehicular traffic on the project site or any evidences as to the degree of increase in vehicular traffic arising from the project;
  4. the ERT failed to give sufficient weight to the existence of an ESA permit, the conditions attached to that permit, the obligation of the Ministry of Natural Resources to monitor and enforce the permit and the fact that the REA expressly required Ostrander to comply with the ESA permit;
  5. the ERT failed to give a proper opportunity to the parties to address the issue of the appropriate remedy and thereby violated the principles of natural justice and procedural fairness; and
  6. the ERT erred in finding that it was not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.

The court concluded that each error made by the ERT was fatal, as they are, of course, collectively. The ERT made findings without factual foundation, failed to interpret and apply the ESA harmoniously with the EPA, and failed to separately consider the issue of irreversible harm. Thus, the ERT's decision was not reasonable and was set aside. The parties have 15 days from the Ontario Divisional Court decision to appeal to the Ontario Court of Appeal.

The entire decision can be found here: Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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