Divisional Court Refuses to Award Costs in Judicial Review of the White Pines Wind Project

Written by on August 20, 2018. Posted in Green energy

The Honourable Marc Labrosse of the Divisional Court recently refused both moving parties’ demands for costs in the latest iteration of CCSAGE Naturally Green’s (“CCSAGE”) judicial review challenging various administrative decisions relating to the White Pines Wind Project. Labrosse J’s costs endorsement of August 9, 2018 (reported as CCSAGE Naturally Green v. Director, Sec. 47.5 EPA, MNRF and OEB, 2018 ONSC 4802) was released two weeks after the Ontario government’s cancelation of the White Pines Wind Project through the White Pines Wind Project Termination Act, 2018.

The costs endorsement arose from various preliminary motions brought pursuant to CCSAGE’s judicial review application seeking to challenge the following:

  1. A decision of the Director to issue a Renewable Energy Approval to wpd White Pines Wind Incorporated (“wpd White Pines”);
  2. A decision of the Minister of Natural Resources and Forestry to issue a permit under the Endangered Species Act, 2007, S.O. 2007, c.6 (“ESA”), in respect of activities related to the White Pines Wind Project,
  3. A decision of the Ontario Energy Board to grant leave to wpd White Pines to construct a transmission line for the White Pines Energy Project; and,
  4. The constitutionality of various statutory and regulatory provisions relating to the above decisions.

The motions in question consisted of a motion brought by wpd White Pines to obtain party or intervener status in the main application (motion #1), and a motion brought by CCSAGE to obtain protective costs due to wpd White Pines’ alleged failure to adhere to conditions imposed by the Court relating to its role as an intervener (motion #2). Both wpd White Pines and CCSAGE sought to recover costs for each motion.

According to Labrosse J., CCSAGE was the successful party in motion #1, as wpd White Pines was awarded only intervener (as opposed to party) status, and CCSAGE had offered to consent to wpd White Pine’s intervener status prior to the motion. Labrosse J. then found that wpd White Pines was the successful party in motion #2, as it had not been determined that wpd White Pines had failed to comply with the conditions of its status as intervener. Labrosse J. noted that both moving parties would have been aware of the possibility of adverse consequences for each motion.

As a result of the above findings, Labrosse J. concluded that each moving party was entitled to costs, and held that CCSAGE’s entitlement to costs for Motion #1 was off-set by the Respondent’s entitlement for costs of Motion #2. The Court consequently refused to order costs to either moving party.

The failure to recover costs in these motions is the latest loss sustained by wpd White Pines, who has not only had its project canceled, but is also precluded by the White Pines Wind Project Termination Act, 2018 from seeking any legal remedy from the Crown for the cancelation. Fortunately for wpd White Pine, however, s.6 of the Act requires the Crown to compensate wpd White Pines in an amount to be determined by the formula set out in that section.

The formula in determining compensation takes into consideration the expenses reasonably incurred by wpd White Pines Wind Incorporated for the White Pines Wind Project including: development, acquisition, leasing and construction costs; employee termination payments; subcontractor losses or landowner losses; and decommissioning costs and other costs required to wind up the project; the debt amount; any additional amount or thing that may be prescribed; minus all receivables; and, any such rights and assets not included in the receivables.

The White Pines Wind Project was a Class 4 Energy Project proposing to construct 9 wind Turbines in Prince Edward County, Ontario. In light of the enactment of the White Pines Wind Project Termination Act, 2018, it is likely that the CCSAGE’s application for judicial review is now moot.