Environmental Review Tribunal Denies Costs for Successful REA Appellants

Written by on April 02, 2018. Posted in Green energy

In the latest chapter in the appeal of the renewable energy approval (“REA”) for a wind farm in Clearview Township, Simcoe County, the Environmental Review Tribunal (“Tribunal”) denied the Appellants’ request for costs.

The Appellants, comprised of an assortment of individuals, municipalities, and a corporation, appealed a REA issued in 2016 by the Director of the Ministry of the Environment and Climate Change (“Director”) to wpd Fairview Wind Incorporated (“wpd”) for the construction of a proposed 8-turbine wind farm (“Project”). The Appellants argued that the Project would cause both serious harm to human health, due to its proximity to two aerodromes, and serious and irreversible harm to plant life, animal life or the natural environment, due to its potential impact upon the little brown bat.

The Tribunal ultimately ruled in favour of the Appellants, finding that the proposed locations of the wind turbines were too close to the takeoff and landing areas of the aerodromes and would be unable to prevent collisions and may result in serious harm. For purposes of the human health test, the Tribunal found that even one incident of serious injury or death would satisfy the test.

The Tribunal also found that there would be serious and irreversible harm to the little brown bat, which is a protected species in Ontario. The Tribunal found that these bats are susceptible to wind turbine strikes, and therefore the Project would cause fatalities over the Project’s lifespan.

In a subsequent hearing on the appropriate remedy, the Tribunal revoked the Ministry of the Environment and Climate Change’s (“Ministry”) decision to issue the REA.

Most recently, following their successful appeal, the Appellants sought an order from the Tribunal awarding them the costs of their appeal as against both wpd and the Director.

In its decision (Wiggins v Ontario (Environment and Climate Change), 2018 CanLII 8110), the Tribunal denied the Applicant’s request for costs. Unlike most civil proceedings, where costs are generally awarded to the successful party, successful appellants before the Tribunal do not necessarily get their costs—a fact confirmed by the Tribunal. Both Section 17.1 of the Statutory Powers Procedure Act, as well as the Tribunal’s Rules of Practice (“Rules”), limit the circumstances under which a Tribunal can award costs. Section 17.1 only permits the Tribunal to award costs when a party’s conduct has been frivolous or vexatious or where a party has acted in bad faith. The Rules underscore that the Tribunal’s power to award costs is only to be exercised in rare circumstances.

The Appellants had failed to demonstrate that the behavior of either the Director or wpd had been unreasonable or vexatious. There was no evidence that either the Director or the proponent had acted with improper motivation or took actions that undermined the integrity of the hearing process. The Tribunal reiterated that in determining whether the impugned behaviour is unreasonable, it will consider whether the conduct interferes with its ability to conduct the matter in a cost effective, just, and expeditious manner. To establish the impugned conduct was vexatious or in bad faith, the Appellants would need to establish improper motivation.

Moreover, to the extent that the costs sought by the Appellants pertained to actions that the Director and wpd had undertaken during the REA approval process—that is, before the appeal before the Tribunal had commenced—they were outside Tribunal’s jurisdiction to award. Additionally, the mere fact that the Director and wpd had responded to the appeal did not amount to unreasonable conduct.

The decision highlights again the challenge that successful parties will face when seeking their costs at the Tribunal.