



COURT OF APPEAL FOR ONTARIO

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

DATE: 20150420

DOCKET: 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 on

behalf 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 County Field Naturalists

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

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

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

Stephen Hazell, for the intervener
    Nature Canada

Chris G. Paliare and Andrew K. Lokan,
    for the intervener Prince Edward County 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), dated February 20, 2014, with reasons reported at 2014 ONSC
    974, 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 the Environment (the Director), granted the respondent, Ostrander
    Point GP Inc. (Ostrander), a Renewable Energy Approval (REA). REAs are
    granted under the
Green Energy Act, 2009
, S.O. 2009, c. 12, Sched. A
    and amendments made under the
Environmental Protection Act,
R.S.O.
    1990, c. E.19 (
EPA
). The REA granted to Ostrander permits it to
    construct and operate a wind farm consisting of nine wind turbines on a parcel
    of Crown land in Prince Edward County.

[2]

The appellant, Prince Edward County Field
    Naturalists (Field Naturalists), opposes the Ostrander project. It filed an
    appeal of the Directors decision to grant the REA, pursuant to s. 142.1(3)(b)
    of the
EPA
, claiming that the Ostrander project would cause serious
    and irreversible harm to a variety of animal and plant species and the natural
    environment, namely birds, bats, butterflies, turtles and alvar plants and the
    alvar ecosystem.

[3]

Another group, the Alliance to Protect Prince
    Edward County (the Alliance), also filed an appeal. It sought to establish
    that the project would cause serious harm to human health.

[4]

The Environmental Review Tribunal found that the
    project would not cause serious harm to human health and dismissed the
    Alliances appeal. It also rejected the submissions that the project would
    cause serious and irreversible harm to birds, bats, butterflies, and alvar
    plants and the alvar ecosystem. It did, however, conclude that the project
    would cause serious and irreversible harm to one animal species, the Blandings
    turtle. The Tribunal allowed the Field Naturalists appeal with respect to the
    Blandings turtle and revoked the REA.

[5]

The Field Naturalists appealed to the Divisional
    Court from the Tribunals dismissal of their appeal regarding serious and
    irreversible harm to birds and alvar. Ostrander and the Director appealed from
    the Tribunals finding of serious and irreversible harm to the Blandings
    turtle and its decision to revoke the REA. The Divisional Court dismissed the
    Field Naturalists appeal and allowed the appeal of Ostrander and the Director.
    It set aside the Tribunals finding of serious and irreversible harm to the
    Blandings turtle and the revocation of the REA.

[6]

The Field Naturalists were subsequently granted
    leave to appeal to this court. Ostrander cross-appeals, claiming the Divisional
    Court erred in dismissing its fresh evidence application.

[7]

The main question before this court is whether
    the Divisional Court identified the appropriate standard of review and applied
    it correctly. For the reasons that follow, I would allow the appeal in part. I
    would restore the Tribunals conclusion that the project will cause serious and
    irreversible harm to the Blandings turtle. I would, however, dismiss the
    appeal from the Divisional Courts finding the Tribunal erred in how it dealt
    with remedy. I would remit the issue of what remedy is appropriate back to the
    Tribunal to 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 wind energy project without first obtaining an REA from the Director.

[9]

The REA issued to Ostrander, allows it to construct
    its wind farm project on a 324-hectare parcel of land known as the Ostrander
    Point Crown Land Block (the Project Site). Each turbine would require
    excavation and construction of an octagonal concrete platform 18 m in diameter.
    The platform for each turbine would be approximately 3 m in depth and would be
    anchored into the bedrock.

[10]

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

[11]

The Project Site is located on the south shore
    of Prince Edward County, one of the least developed areas of the County. It is a
    provincially significant wetland, known for its alvar vegetation. It provides
    habitat to Blandings turtle and the Whip-poor-will and serves as a migratory
    corridor for birds, bats and the Monarch butterfly.

(2)

The Blandings Turtle

[12]

Blandings turtle is a semi-aquatic, freshwater
    turtle that lives in northeastern and midwestern North America. It is spottily
    distributed in southern and central Ontario. It is currently designated as a threatened
    species 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. The International Union of Conservation of Nature (part of the
    United Nations Environment Program) has designated the turtle as globally
    endangered. The exact size of the population of Blandings turtle at the
    Project Site, in Prince Edward County and throughout Ontario is not known.

[13]

Blandings turtles have a low annual
    reproductive output. Female turtles do not reach sexual maturity until they are
    18 or 20 years of age and not all females reproduce every year. A female turtle
    will lay 10  14 eggs once in a breeding season. Nest success is low due to
    predators, and hatchlings have a very low chance of reaching maturity. There is
    high risk of predation when they migrate from the nest to the wetland, and once
    in the wetland, it takes five to seven years to grow beyond the gape size.

[14]

Throughout its annual cycle, Blandings turtle
    uses a variety of wetland types, including emergent marshes, bogs, temporary
    pools and forested swamps. In most cases, a single wetland will not be able to
    accommodate all the turtles needs. Thus, most Blandings turtles travel
    overland and use several wetlands a year.

[15]

In the early summer, female turtles will travel
    upwards of 6 km to locate suitable nesting sites. Importantly, female turtles find
    the gravel shoulders and embankments of roadways to be particularly desirable
    nesting habitat. This increases the risk of mortality to adult females and
    hatchlings because they are easily killed by motor vehicles. Road mortality
    poses the most serious threat to Blandings turtle survival.

[16]

The Blandings turtle is also susceptible to
    predators, such as raccoons, foxes, skunks and coyotes. These predators
    typically attack Blandings turtle nests, and the threat is increased when the
    predators are able to use roadways to easily access nesting habitat.

[17]

Poaching is another serious threat to the
    Blandings turtle because it is an attractive, pleasant species and makes a
    desirable pet.

(3)

The
ESA
Permit

[18]

As part of the approval process, Ostrander was
    required to consider potential 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 Natural Resources and exempt a person from the
    general prohibition on killing, harming or harassing a member of an endangered
    or threatened species and the prohibition on damaging the habitat of that
    species.

[19]

Ostrander successfully obtained an
ESA
permit
    exempting it from prosecution for killing or harming the Blandings turtle and
    the Whip-poor-will.

C.

The Tribunals reasons

[20]

The Tribunals 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
    Director and shall consider only whether engaging in the renewable energy
    project in accordance with the renewable energy approval will cause,

a)

serious harm to human health; or

b)

serious and irreversible harm to plant life, animal life or the
    natural environment.

[21]

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

[22]

The Tribunal concluded the project would cause
    serious and irreversible harm to the Blandings turtle population that uses the
    Project Site and surrounding area.

[23]

The Tribunals finding the project would cause serious
    and irreversible harm to Blandings turtle was not based on the construction
    phase of the project. The Tribunal was satisfied the special mitigation
    measures the respondent would undertake would adequately protect the turtle
    during that phase. However, the Tribunal concluded the continued existence of
    the access roads that would be built for the project would cause serious and
    irreversible harm after construction of the project was completed.

[24]

The scale adopted by the Tribunal defined the
    ambit of its serious and irreversible harm analysis. It considered whether the
    project would cause serious and irreversible harm to the population of turtles
    that use the Project Site and surrounding area (the Area). It did not
    consider the broader population of Blandings turtle in Ontario or Prince
    Edward County or the smaller scale of the population at the Project Site
    itself.

[25]

The Tribunal noted that this scale of population
    was used in Stantecs Blanding's Turtle Report, accorded with Dr. Edge's detailed
    description of the area, and was consistent with the area Dr. Beaudry discussed,
    which he referenced on maps during his testimony.

[26]

The Tribunal did not receive evidence of the
    exact size of the turtle population in the Area, but it accepted the evidence
    of Dr. Beaudry that the population size was likely quite small.

[27]

All the experts agreed that the continued
    existence of the roads constructed for the project risked causing serious harm
    to the turtle. They differed only about whether the proposed mitigation
    measures would prevent irreversible harm.

[28]

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


[29]

While the Tribunal was mindful of the testimony
    of all the experts, it based its conclusion primarily on the evidence of Dr.
    Beaudry and Ms. Gunson. Both gave unreserved testimony that the project would
    cause serious and irreversible harm to the Blandings turtle population that
    uses the Area and that the proposed mitigation measures would not prevent that
    harm.

[30]

Dr. Beaudry testified he could give this opinion
    without knowing the exact population size at Ostrander point. He explained that
    the size of initial population would only affect the end-time when the
    population becomes extinct.

[31]

The Tribunal accepted Dr. Beaudrys testimony
    that it was unnecessary to know the exact population size to conclude the project
    would cause serious and irreversible harm. At para. 358, the Tribunal
    concluded:

There is certainly enough information for the
    Tribunal to make findings on the conservation status of the species, its life
    history traits that make it vulnerable to harm from the Project, the precise
    type of harm that the Project will cause, and the significance of this type of
    harm (road mortality and poaching) on Blandings turtle.

[32]

The Tribunal also found that the fact Ostrander had
    been granted an
ESA
permit did not determine whether the project would
    cause serious and irreversible harm to Blandings turtle. The Tribunal
    explained that before issuing the
ESA
permit, the MNR considered
    whether the project would have an overall benefit to the species as a whole in
    Ontario, whereas the Tribunal considered the status of the Blandings turtle
    population at the Area. As well, the Tribunal found the mitigation measures
    that the
ESA
permit required for the Blandings turtle would not
    adequately address the harm to the turtle in the Area.

[33]

After reviewing all the evidence, the Tribunal
    concluded that the mortality resulting from the continued existence of the
    access roads would cause serious and irreversible harm to the Blandings
    turtles at the Area:

The Tribunal finds that mortality due to
    roads, brought by increased vehicle traffic, poaching and predators, directly
    in the habitat of Blandings turtle, a species that is globally endangered and
    threatened in Ontario, is serious and irreversible harm to Blandings turtle at
    Ostrander Point Crown Land Block that will not be effectively mitigated by the
    conditions of the REA

[34]

The Tribunal revoked the decision of the
    Director to grant the REA to Ostrander.

D.

The divisional Court

[35]

The Divisional Court held that the reasonableness
    standard applied to its review of the Tribunals interpretation of the test
    under s. 145.2.1(2) of the
EPA,
as well as to the Tribunals
    interpretation of the
ESA
and its relationship to the
EPA.
The
    Court also held that Ostrander could not attack the Tribunals findings of fact
    because the right of appeal under the
EPA
was confined to questions of
    law.

[36]

The Divisional Court found that the Tribunal
    made a number of errors that made its finding of serious and irreversible harm
    unreasonable:


i.

The Tribunal dealt with serious harm and
    irreversible harm together and failed to explain its reasons for concluding
    that the harm would be irreversible;


ii.

The Tribunal concluded there would be serious
    and irreversible harm without evidence of the size of the population of
    Blandings turtle, the current level of vehicular traffic on the Area and the
    degree of increase in vehicular traffic that would result from the project; and


iii.

The Tribunal failed to give sufficient weight to
    the existence of the ESA permit, the conditions attached to that permit, the
    obligation of the MNR to monitor and enforce the permit, and the fact that the REA
    expressly required Ostrander 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
    opportunity to address the issue of the appropriate remedy and thereby violated
    the principles of natural justice and procedural fairness;


ii.

The Tribunal made a clear error of law 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.

[38]

The Divisional Court allowed the appeal and set
    aside the Tribunals decision.

E.

Analysis

(1)

Proper Approach on Judicial Review

[39]

Though this case involves a statutory appeal, the
    parties relied on judicial review authorities in their submissions regarding
    the proper standard of review. This was entirely appropriate.

[40]

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

[41]

Counsel for the intervener, Prince Edward County
    South Shore Conservancy, urges this court to apply the approach outlined in
Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador
    (Treasury Board)
, 2011 SCC 62, [2011] 3 S.C.R. 708.
    In that case, the Supreme Court endorsed the observation of Professor Dyzenhaus
    that deference to an administrative tribunal requires respectful attention to
    the reasons offered or which could be offered in support of [the Tribunals]
    decision. Even if the reasons do not seem wholly adequate to support the
    decision, the court must first seek to supplement them before it seeks to
    subvert them: at para. 12, citing David Dyzenhaus, "The Politics of
    Deference: Judicial Review and Democracy", in Michael Taggart, 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, [2011] 3 S.C.R. 654, where the Supreme Court cautioned
    a reviewing court against reformulating a Tribunals decision in a way that casts
    aside an unreasonable chain of analysis in favour of the courts own rationale
    for the result: at para. 54, citing
Petro-Canada v. British Columbia (Workers
    Compensation Board),
2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56.

[43]

In this case, I find it unnecessary to address
    the different nuances in the decisions cited to us
[1]
. The parties all recognize
    that the reviewing court must adopt a deferential approach to the Tribunals
    decision. The legislature confided to the Tribunal the question whether the
    project should be disallowed because it will cause serious and irreversible
    harm to plant life, animal life or the natural environment. The Tribunal has
    the task of the balancing the different and potentially opposing values
    involved in answering that difficult question.

[44]

On appeal the question for the court is whether
    the Tribunals decision is reasonable. In determining whether the decision is
    reasonable, the reviewing court is concerned with justification, transparency
    and intelligibility of the Tribunals reasons:
Dunsmuir,
at para. 47.
    It is sufficient if the Tribunals reasons serve the purpose of showing that
    the result falls within a range of possible reasonable outcomes.

(2)

The Tribunals Serious and Irreversible Harm
    Analysis

[45]

The Divisional Court found that the Tribunals
    analysis was faulty in law because its reasons did not reveal a separate and
    intelligible analysis on the issue of irreversible harm that this court can
    review.

[46]

The Court did not quarrel with the Tribunals
    conclusion that the issue of serious and irreversible harm must be
    interpreted on a case by case basis. However, the Divisional Court stated that
    the Tribunal did not separate out, in the course of its determination of
    whether the test was met in relation to Blandings turtle, its analysis of the
    serious harm factor from its analysis of the irreversible harm factor.
    Therefore, the Divisional Court concluded that the Tribunals reasons were not
    intelligible.

[47]

I agree with the Divisional Court that the Tribunal
    was entitled to adopt a case by case approach to the application of the serious
    and irreversible harm test. I also agree with the Divisional Court that the
    two factors address very different issues. However, it is clear from its
    reasons as a whole that the Tribunal was aware the test involved both factors. For
    example, when considering potential damage to alvar vegetation and the alvar
    ecosystem, the Tribunal conducted an analysis where it kept the two factors
    separate: at paras. 616-617.

[48]

I disagree that the Tribunal erred in failing to
    separately consider whether the project would cause irreversible harm to the
    Blandings turtle.

[49]

At the hearing before the Tribunal, all the
    parties agreed that the project would inevitably result in an increase in
    Blandings turtle mortality. There was no dispute that loss of life of a
    threatened species with a slow reproductive rate constitutes serious harm.

[50]

The Divisional Court recognized this. It said it
    was unquestionable from the evidence that was placed before the Tribunal that
    there was a risk of serious harm to Blandings turtle from the project. It
    acknowledged that [g]iven the fragile status of Blandings turtle as a
    species, it would be difficult to characterize any increase in mortality
    arising from the Project as anything other than serious. For this reason, the
    Divisional Court concluded that the real issue was whether that harm was
    also irreversible.

[51]

I agree with this observation.

[52]

In the case of the Blandings turtle, the only
    real question for the Tribunal to decide was whether the increase in mortality
    resulting from the roads would be irreversible. On my reading, the Tribunals
    reasons are entirely focused on that question. In applying the serious and
    irreversible harm test in this case, there was no need for the Tribunal to
    separately analyze what was evident and not disputed  whether the harm was
    serious.

[53]

The Divisional Court also implies the Tribunal
    could not have reasonably relied on Dr. Beaudrys opinion because he too failed
    to distinguish between serious harm and irreversible harm. In fact, the court
    suggests that the Tribunals reliance on Dr. Beaudry may have led to the
    Tribunals own failure to separately discuss irreversible harm in its
    reasons.

[54]

Dr. Beaudry did testify that he would not
    distinguish between serious and irreversible harm. However, it must be
    remembered that he defined serious and irreversible harm as something that
    can lead to a lower reproductive output or a higher mortality rate, enough so
    to lead a local population to extinction. As discussed above, there was no
    dispute that any increase in mortality arising from the project was anything
    other than serious. Dr. Beaudrys focus on a mortality rate sufficient to lead
    the local population to extinction clearly encompasses both factors.

[55]

Dr. Beaudry explained that studies have shown
    that Blandings turtle adult survivorship is estimated at 96 percent. As soon
    as there is an additional two percent decline in survivorship, the population
    starts to decline fairly quickly. This rapid decline in population would
    constitute serious and irreversible harm, or in Dr. Beaudrys words, lead a
    local population to extinction. Dr. Beaudry also indicated that a decrease in
    annual survivorship in the one to two percent range can cause the population to
    decline, but the decline would occur at a slower rate.

[56]

Dr. Beaudry was of the view that the increased
    road mortality and decrease in reproductive output caused by the project would
    be sufficient to lead to such a decline in population.

[57]

The assessment of Dr. Beaudrys testimony was a
    matter for the Tribunal, not the Divisional Court.

[58]

I conclude that the Divisional Court erred in
    finding that the Tribunal erred in failing to engage in a separate analysis of
    serious harm and irreversible harm in this case. Whether the project would
    cause serious harm required no analysis and the Tribunals analysis focused on
    whether the harm was irreversible.

(3)

Lack of Numerical Data of Population Size and Traffic
    Flow

[59]

The Divisional Court held the Tribunal could not
    conclude there would be irreversible decline in the population, without any
    data on the size of the population impacted, the extent of road mortality
    currently experienced at the site, the current vehicular traffic on the site
    and the increase in vehicular traffic that would result from the project.
    Without this information, the Divisional Court said it would not seem possible
    to determine whether the mortality rate after the project was built would fall
    inside or outside the two to five percent mortality that the population could
    sustain.

[60]

With respect, the Divisional Court erred in this
    conclusion.

[61]

First, the Tribunal had expert evidence that numerical
    data of the population level and of the increase in vehicular traffic was not
    needed to support the conclusion there would be serious and irreversible harm.
    The Tribunal accepted that evidence. As I have said, it was not for the
    Divisional Court to assess the credibility of expert evidence and conclude that
    the Tribunal should not have accepted it.

[62]

Second, the Tribunal did have some evidence of the
    magnitude of population, mortality rate and traffic volume. That evidence was
    not expressed in numbers, but numbers without context lack meaning. The number
    of Blandings turtle, no matter what that number is, satisfies the criteria 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 not large
(emphasis added).

[63]

The Tribunal also had some evidence about vehicular
    traffic on the existing and on the proposed roads. At the time of the hearing,
    the Project Site contained several kilometers of tertiary road that was
    passable only with four-wheel drive and all-terrain vehicles. The project would
    require the construction of an additional 5.4 km of roads providing access to
    each wind turbine. These access roads would be accessible by other forms of
    motor vehicle. 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. All
    the experts agreed that the roads would result in an increase of vehicular
    traffic within the Area.

[64]

As summarized above, Dr. Beaudry and Ms. Gunson
    explained in detail how the local population would be affected by the project
    roads. They would lead to greater turtle mortality and a consequent decrease in
    reproductive output. While Dr. Beaudry may not have used numerical measures of population,
    vehicles and traffic data and mortality rates, his testimony was based on a
    sense of the magnitudes involved. Dr. Beaudry also proceeded on what the
    Tribunal described as the best case scenario. He ignored the natural fluctuations
    due to climate or an increase in predator populations that small or thinly
    distributed populations can suffer by assuming the population would be stable apart
    from road mortality. As well, the Tribunal had the evidence of Ms. Gunson who testified
    there was no direct correlation between traffic volume and mortality.

[65]

As well, it must be remembered all the experts
    agreed that the roads would harm the turtle. They differed only about whether
    the proposed mitigation measures would prevent irreversible harm. The
    Tribunals conclusion that the mitigation measures would not be effective left it
    with unanimous expert evidence that the roads would harm the turtle and the
    evidence of Dr. Beaudry that the serious harm could not be adequately mitigated
    and would be irreversible.

[66]

The Divisional Court did say that mathematical
    precision was not required, but it seems to me the court thought it necessary the
    Tribunal be able to make calculations using quantitative orders of magnitude that
    proved that road mortality would lead to a decline in the population resulting
    in eventual extinction. I do not accept that. It was for the Tribunal to decide
    whether the qualitative indications of magnitude the experts proceeded upon provided
    an adequate base for their conclusions.

[67]

The Divisional Court also stated the Tribunal
    needed to know the turtles 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
    irreversible harm is entirely within the expert Tribunals authority to decide.

[68]

When considered in light of all the evidence, I
    am satisfied the Tribunal could reasonably accept the evidence of Ms. Gunson
    and Dr. Beaudry that the project would cause serious and irreversible harm
    without having specific numerical data on the turtles population size, the volume
    of traffic, and the rate of mortality. I am also satisfied that the Tribunals
    reasons for accepting the opinions of these experts are intelligible, and its
    conclusion there would be serious and irreversible harm falls within the range
    of reasonable outcomes and should not be disturbed.

(4)

The
ESA
Permit

[69]

The Divisional Court also found the Tribunal
    erred in failing to attach proper weight to the
ESA
permit and failing
    to adequately explain the conflict between the MNRs decision to issue the
    permit and its own conclusion.

[70]

I have no difficulty in understanding the Tribunals
    explanation of the different results. The Tribunal pointed to the evidence of
    an MNR official who testified that in granting the
ESA
permit, the MNR
    concluded that the project would bring an overall benefit to Blandings
    turtle
in Ontario
. On the other hand, the Tribunal explained it considered
    a much smaller scale of population and assessed the projects impact on the
    local population of Blandings turtle in the Area.

[71]

In any event, the
ESA
permit was not
    binding on the Tribunal. Rather the permit expressly states that it does not
    release Ostrander from the obligation to obtain permission under or to comply
    with all applicable federal, provincial and municipal laws. Hence, Ostrander
    was obliged to comply with the
EPA
s requirement that it obtain an REA
    and abide by the decision of the Tribunal if the REA were appealed.

[72]

I agree with the Tribunals comment that [a]lthough
    [Ostrander] is bound by the
ESA
Permit, a contravention of which may
    lead to prosecution under the
ESA
, for the Tribunal's purposes in this
    analysis it is simply evidence relevant to conditions to the REA, which must be
    assessed as would any other condition.

[73]

The Tribunal carefully considered the mitigation
    measures required by the
ESA
permit and concluded they were incomplete
    and would not be effective. The Tribunal exercised its independent judgment and
    found that the evidentiary value of the permit was outweighed by the expert
    evidence introduced. In doing so, the Tribunal was carrying out its distinct
    statutory mandate under s. 145.2.1(2) of the
EPA.


[74]

In my opinion, therefore, the Divisional Court
    erred by concluding the Tribunal erred in how it dealt with the
ESA
permit.

(5)

The Tribunals Approach to Remedy

[75]

After concluding that the Tribunals finding of
    serious and irreversible harm should be set aside, the Divisional Court went on
    to find that the Tribunal erred in dealing with remedy.

[76]

First, the Divisional Court found the Tribunal
    failed to accord the parties procedural fairness when it decided to revoke the
    REA without hearing from them. This remedy was of such consequence that
    procedural fairness required the Tribunal allow the parties to make
    submissions.

[77]

Second, the Divisional Court concluded the Tribunal
    erred in law by taking a limited view of its remedial jurisdiction. The
    Divisional Court focused on the Tribunals remark 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 Divisional Court said this statement was plainly
    wrong because it is clearly contradicted by the express wording of s.
    145.2.1(4)(c). Section 145.2.1(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 the Director."

[78]

Before addressing the appeal of the Divisional
    Courts finding the Tribunal committed these errors, it is necessary to deal
    with the cross-appeal.

(a)

Cross-Appeal

[79]

After the Tribunals decision was released,
    Ostrander took steps to obtain the MNRs agreement to lease the property at the
    Project Site to it so that it could prohibit public access to the roads
    constructed on the site. On November 15, 2013, the Minister approved an Impact
    Monitoring Plan under which the new access roads would be closed to the public.
    The
ESA
permit, which incorporates the Impact Monitoring Plan by
    reference, now requires that the new access roads be closed to the public.

[80]

On appeal to the Divisional Court, Ostrander tendered
    evidence of the steps it was taking to have the roads closed to the public as
    fresh evidence. The Divisional Court dismissed Ostranders fresh evidence application
    for two reasons. First, it found that Ostrander could have led the evidence
    before the Tribunal if it had exercised reasonable diligence. The Divisional
    Court reasoned that Ostrander knew that road mortality was an issue at the time
    of the Tribunal hearing, and it could have taken steps to lease the property
    and close the access roads prior to the end of the hearing. 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 was that, in the Divisional Courts view, the fresh
    evidence pertained to the facts. The Divisional Court noted that its
    jurisdiction on the appeal was limited 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 palpable and overriding errors of fact and that a
    palpable and overriding error of fact amounts to a question of law. The Divisional
    Court considered it would be unfair to allow Ostrander to advance that argument
    by changing the underlying factual evidence that was before the Tribunal.

[82]

In my view, the Divisional Court applied the
    fresh evidence test too strictly. I would not have expected Ostrander to have
    taken steps to close the roads at the time of the Tribunal hearing. The parties
    were not in a position to address remedy without knowing the Tribunals
    decision on the merits. As the Divisional Court observed later in its reasons:

There were many different attacks launched
    against the Renewable Energy Approval. There was an allegation of harm to human
    health, to Blanding's turtles, to birds, to bats, to butterflies and to alvar.
    It would, of course, be unknown to the parties whether any of these allegations
    of harm would be made out and, if so, which ones. It follows from that
    practical reality that the nature of the appropriate remedy might well vary,
    perhaps considerably, depending on the harm that was found to exist. For
    example, the appropriate remedy for harm to human health might be very
    different from the appropriate remedy for harm to alvar.

[83]

Ostrander could not reasonably have been
    expected to address the appropriate remedy in relation to each of the many
    different attacks mounted by the Field Naturalists and the Alliance.

[84]

I do not agree that the fresh evidence was
    tendered solely to address factual issues. Questions before the court included
    whether the Tribunal failed to provide the parties with procedural fairness and
    whether the Tribunal misinterpreted its statutory remedial authority. These are
    questions of law. The fresh evidence provides some illumination of these
    questions. It shows concretely what Ostrander could have contributed had it been
    accorded the opportunity to address the issue of the appropriate remedy.

[85]

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

(b)

Analysis of The Tribunals Approach to Remedy

[86]

I approach the matter somewhat differently than did
    the Divisional Court but reach the same result that the Tribunal should have
    accorded the parties the opportunity to address remedy.

[87]

I am not satisfied the Tribunal made the clear
    error of law identified by the Divisional Court. I do not read the Tribunals
    reasons to suggest that, 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 it difficult to discern what the Tribunal meant by
    this remark. For that reason I cannot regard the Tribunals decision on remedy
    to be reasonable. In addition, I agree with the Divisional Court that, in the
    circumstances of this case, the Tribunal should have allowed the parties to
    address remedy.

[88]

I begin by observing that the Tribunal was well
    aware of the terms of s. 145.2.1(4). In the title of its reasons on remedy, the
    Tribunal queried whether it should revoke the decision of the Director, by
    order direct the Director 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 that it could do one of the following:

(a)     revoke the decision of the Director;

(b)     by order direct the Director to take
    such action as the Tribunal considers the Director should take in accordance
    with the EPA and the regulations; or

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

[89]

After setting out its statutory remedial
    authority, the Tribunal reviewed documents that indicated the government, as a
    matter of policy, intended that the Ostrander Crown Land Block should be
    available to the public for recreational uses. Some of the documents reviewed
    emanate from the Ministry of Natural Resources, for example the Non-Forestry
    Road-Use Management Strategy Declaration, attached to the Work Permit issued by
    the MNR and the MNRs Free Land Use Policy (PL.3.03.01). However, the REA,
    issued by the Director of the Ministry of the Environment, is not among the
    documents reviewed. In fact, the REA itself does not address whether the access
    roads should be open to the public. Perhaps what the Tribunal meant was that
    the governments road policy was beyond the authority of the Director who
    issued the REA, and the Tribunals authority to interfere with the Directors
    decision was no greater than the Directors own authority.

[90]

This, however, cannot be the case. The Tribunal
    specifically referred to the Director, saying it was not in a position to
    alter the decision
of the Director
, or to substitute its opinion for
    that
of the Director
 (emphasis added). It is apparent the Tribunal
    did not mean that the publics access to the roads was rooted in some broad
    government policy that was beyond the authority of the Director and hence its
    own. It is necessary to consider what else the Tribunal might have meant.

[91]

The Tribunal went on to say, Whether or not
    Crown land should be closed 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. It added, At its essence, it is a decision whether the
    Ostrander Point Crown Land Block will be used for wind energy generation, rather
    than current Crown land uses which do not involve road development.

[92]

These observations might suggest the Tribunal considered
    that its role did not extend to making the value judgment about which of two different
    and incompatible government policies should be given effect.

[93]

This too cannot be the meaning of the Tribunals
    remark. The Tribunal did choose between the two incompatible government
    policies. The effect of the remedy the Tribunal granted, revocation of the
    Directors decision, was to decide the government-approved wind project would
    give way to the governments policy that the Crown land should be available to
    the public for recreational use. The Tribunal must have meant something else.

[94]

Another view of what the Tribunal meant is to
    note it said it was not in a position to alter the decision of the Director,
    not that it lacked the authority to do so. This might be lead to the inference the
    Tribunal meant it lacked sufficient information about the governments
    attitudes towards its two competing government policies to exercise its legal
    authority to choose between them. If so, this would provide support for the
    Divisional Courts conclusion the Tribunal should have allowed submissions on
    remedy. The Director, in particular, was a party and could have shed light on
    the governments attitude.

[95]

I am reluctant to conclude the Tribunal made an
    obvious error of law in regard to a basic provision of its home statute, but I
    am unable to understand what the Tribunal meant in remarking it was not in a
    position to alter the Directors decision. The remark was a pivotal link in
    the Tribunals justification of its choice of remedy. The Tribunal said it was
    as a result of its remark that it revoked the decision of the Director. As I
    am unable to understand the Tribunals reasons for choosing the remedy it
    ordered, I am unable to regard the Tribunals choice of remedy as reasonable.

[96]

Whatever the Tribunal meant by the remark, it is
    clear the Tribunal either adopted a limited view of its remedial power or
    considered that it lacked the information necessary to exercise it. Whether one
    or the other, the Tribunal should have provided the parties with the opportunity
    to address remedy. The potential limitation of the Tribunals remedial power
    was a new issue that the Tribunal introduced itself. The parties might have
    provided helpful submissions on the following: the proper interpretation and
    application of s. 145.2.1(4) as it affects the scope of the Tribunals remedial
    power; the ambit of the Directors authority; the relevant government policies
    and how they intersected at the site; and the governments preferred remedy. I
    have already noted that the Director was a party before the Tribunal.

[97]

I also agree with the Divisional Court that,
    given the broad and varied range of attacks launched against the REA, it was
    not realistic to expect the parties to address the appropriate remedy at the
    end of the hearing of the merits without knowing what the Tribunals findings
    were in regard to the broad range of alleged harms. Without the contributions
    of the parties on the question of remedy, it is not surprising the Tribunal
    found itself not in a position to consider the full range of remedial
    options.

[98]

While I conclude the Tribunal erred by failing
    to allow the parties to address the scope of its remedial jurisdiction and what
    the appropriate remedy was,
I reject Ostranders
    submission that this court should exercise its jurisdiction under s. 134(1) of
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43

and
permit the project to proceed in light of the fresh evidence.

[99]

In making this submission, Ostrander points out
    that the Tribunals finding of serious and irreversible harm arose from the
    fact that the new access roads could be used by public vehicles and the fresh
    evidence shows that is no longer the case. Thus, it submits there is no reason
    to send the matter back to the Tribunal.

[100]

This submission is without merit. It is inconsistent with
    Ostranders position, successful on appeal, that the parties should be accorded
    the opportunity to address remedy. As well, that the Tribunal will allow the
    project to proceed upon the roads closure should not be regarded as a foregone
    conclusion. I note the Tribunal had evidence of how the proposed access roads
    would cause harm to the turtles habitat quite apart from collisions with motor
    vehicles. Finally, the Tribunal has yet to determine the scope 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 the merits
    and restore the Tribunals conclusion that the project will cause serious and
    irreversible harm to the Blandings turtle. I would allow the cross-appeal and
    the fresh evidence application. I would dismiss the appeal from the Divisional Courts
    finding that the Tribunal erred in dealing with remedy. I would remit the
    matter back to the Tribunal to address remedy 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. Juriansz J.A.

I
    agree E.A. Cronk J.A.

I agree Gloria Epstein J.A





[1]
See
Lemus v. Canada
    (Citizenship and Immigration)
, 2014 FCA 114, 372 DLR (4
th
)
    567, for a discussion of the differences between the two decisions.


