



COURT OF APPEAL FOR ONTARIO

CITATION: Alliance to Protect Prince Edward County v. Ontario
    (Environment and Climate Change), 2018 ONCA 576

DATE: 20180622

DOCKET: M49284 and M49286

Lauwers J.A. (Motion
    Judge)

BETWEEN

Alliance to Protect Prince Edward
    County

Applicant/Appellant

and

The Ministry of the Environment and Climate Change

and WPD White Pines Wind Incorporated

Respondents

Eric K. Gillespie, for the applicant/appellant

Jon Bradbury, for the respondent Ministry of the
    Environment and Climate Change

Patrick G. Duffy, for the respondent WPD White Pines
    Wind Incorporated

Heard: June 20, 2018

REASONS
    FOR DECISION

[1]

The applicant moves for an order staying the operation of Renewable
    Energy Approval No. 2344-9 R6RWR (REA), pending this courts decision on
    whether to grant leave to appeal from the order of Conway J., dated May 23,
    2018.

A.

The Factual Context

[2]

WPD White Pines Wind Incorporated (WPD) has approval from the Ministry
    of the Environment and Climate Change to construct certain wind turbines in
    Prince Edward County. The approval provides, at s. L1(1), that WPD shall avoid
    all Blandings Turtle overwintering habitat, during the overwintering period of
    October 15 to April 15. The approval goes on to say, at s. L1(3):

Where possible, construction and maintenance activities
    including vegetation clearing, road construction and site preparation for
    project components located within Blandings Turtle habitat shall only occur
    between October 15 and April 30.

(a)        If
    construction and maintenance activities between May 1 and October 14 are
    unavoidable, every attempt must be made to avoid harassment or injury to
    Blandings Turtles.

[3]

There is a factual dispute about whether construction is occurring in
    relation to all nine approved wind turbines or only one, and whether Blandings
    Turtle habitat is affected. In a letter dated November 15, 2017, the director
    of the Environmental Approvals Access and Service Integration Branch of the
    Ministry of the Environment and Climate Change stated:

As of October 15, 2017, construction is proceeding throughout
    the site. The Proponent [WPD] has proposed a construction schedule that will
    complete all construction in Blandings Turtle habitat between October 15, 2017
    and April 30, 2018
with the exception of the erection of one turbine, of
    which the Proponent has successfully proven to the [M]inistry is unavoidable
.

Construction for the project is proceeding in phases. The
    [M]inistrys local district office continues to conduct site visits and is in
    regular contact with the [P]roponent to discuss all aspects of the project and
    to ensure that both the requirements of the REA [Renewable Energy Approval] and
    commitments made by the company are being met. [Emphasis added.]

[4]

Based on this, the applicant sought judicial review of the above
    decision, asserting that this letter demonstrates the Ministrys continued
    supervision.

B.

The Order under Challenge

[5]

The proceeding before Conway J. consisted of a stay motion by the
    applicant, pending its application for judicial review, and a cross-motion by WPD,
    which was supported by the Ministry of the Environment and Climate Change. Justice
    Conway was sitting as a single judge of the Divisional Court hearing the matter
    as one of urgency, although not under s. 6(2) of the
Judicial Review
    Procedure Act
, R.S.O. 1990, c. J.1
.

[6]

The applicant sought a stay of the operation of the Ministrys approval
    on the ground that proceeding with the construction after April 30, 2018
    violated the terms of the REA. The notice of motion asserted that a motion was
    originally brought on April 27, 2018 to stay the construction activities, but
    it was allegedly settled on the understanding that construction was only to
    continue at one turbine site after May 1, 2018. However, construction was
    continuing at multiple turbine sites.

[7]

The cross-motion by the respondents before Conway J. was for an order
    dismissing the [underlying] application for judicial review  for lack of
    jurisdiction under the
Judicial Review Procedure Act
.

[8]

Justice Conway dismissed the applicants motion for a stay and granted
    the WPD motion to dismiss the judicial review application as the underlying basis
    for it cannot be established. She gave two reasons for these decisions:

First
, I do not consider that any decision reflected
    in the Nov. 15/17 letter is a statutory power of decision subject to judicial
    review under the [
Judicial Review Procedure Act
]
. The Director issued the REA that
    stipulated the conditions to be followed by WPD in constructing turbines and
    mitigating and protecting the impact on the Blandings [T]urtle, both in
    delineating their habitat areas and dealing with access roads. That decision
    was reviewed and amended by the [Environmental Review] Tribunal. An appeal from
    the ERT was not pursued. The Ministrys letter of Nov. 15 deals with
    construction at one site being unavoidable. There was no requirement in the REA
    for WPD to seek the M[inistry]s approval in this respect before continuing
    with construction and I fail to see how that can be regarded as a statutory
    power of decision. (I note that there is no direct communication with WPD and
    the Ministry or application by WPD that might support APPECs [the applicants]
    decision).

With respect to the alleged decision regarding the boundaries
    of the habitat, the letter incorporates the Report that is [referenced] in the
    REA. The decision [with respect to] the boundaries of the habitat are the
    subject of the REA, not the Ministrys call. I regard the Ministry as
    implementing the decisions made in the REA and not making decisions that are
    subject to judicial review.

Second
, in my view, the APPEC is seeking to challenge
    the REA and the determination of what the appropriate boundaries of the habitat
    are and what protective measures are to be taken to preserve the Blandings [T]urtle.
    The [judicial review] application is a disguised attempt to rewrite these
    boundaries and conditions. The process and appeal routes for challenging those
    issues is well-defined. [Emphasis in original.]

C.

The Jurisdictional Question

[9]

The motion for a stay in this court raises a jurisdictional question
    arising from the interpretation of s.21 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, which
provides:

(3)     A motion in the Divisional Court shall be heard and
    determined by one judge, unless otherwise provided by the rules of court.



(5)     A panel of the Divisional Court may, on motion, set
    aside or vary the decision of a judge who hears and determines a motion.

[10]

The
    jurisdictional issue is whether the decision of Conway J. can only be reviewed
    under s. 21(5) of the
Courts of Justice Act
or whether, because she
    dismissed the application for judicial review, an appeal lies to this court
    with leave under s. 6(1)(a) of the
Courts of Justice Act
.

[11]

In
Overseas Missionary Fellowship v. 578369 Ontario Ltd.
(1990), 73 O.R.
    (2d) 73 (C.A.), a single judge of the Divisional Court dismissed a motion to
    restore an abandoned appeal to the list. Associate Chief Justice Morden said,
    in an oral judgment, that he considered the order to have been an interlocutory
    motion within the proceeding, and then laid out the correct approach:

[I]n our view, the matter is squarely covered by s. 16(3)(b)
    [the equivalent to s. 21(5)]. The order in question is a decision of a judge of
    the Divisional Court made on a motion in that court and, as such, is reviewable
    by a panel of that court on a motion to set aside or vary. In the context of s.
    16(3)(b) we think that by the use of "set aside or vary" it was
    intended to give the panel all of the powers of the single judge with respect
    to the proper disposition of the motion.

[12]

He
    added that the most sensible interpretation was that the terms in s. 21(5)
    should take precedence over and exclude the general terms of the appeal right
    in s. 6(1)(a).

[13]

I
    am not only bound by this analysis, but I agree with it. In short, the
    structure of the legislation requires a person to exhaust the remedial
    jurisdiction of the Divisional Court before coming to the Court of Appeal. This
    is an eminently reasonable division of labour between the two courts. Nothing
    in the legislation or the jurisprudence supports the approach the applicant
    takes here.

[14]

I
    am fortified in my view by the wording of s. 6 of the
Judicial Review Procedure
    Act
. It was open to the applicant under s. 6(2) to apply to a judge of the
    Superior Court for judicial review with leave of a judge of that court, where
    it is made to appear to the judge that the case is one of urgency and that the
    delay required for an application in the Divisional Court is likely to involve
    a failure of justice. Although Conway J. treated this application as a matter
    of urgency, it was not brought under s. 6(2). Notably, had it been so brought,
    then under s. 6(4), an appeal would lie directly to the Court of Appeal with
    leave, and there is no prospect of a review by a panel of the Divisional Court.
    Given the contrast between the wording of the
Courts of Justice Act
and
    the
Judicial Review Procedure Act
, I assume the difference in treatment
    was legislatively intended.

[15]

Counsel
    for the applicant submits that
Overseas Mission
is distinguishable, because
    it did not consider whether the panel review process in s, 21(5) should apply
    to a final order. I would not give effect to this argument. The subsection does
    not distinguish between interlocutory and final orders, nor is it necessary to
    do so to arrive at a sensible interpretation of the provision.

[16]

Counsel
    relies on the chambers decision of Blair J.A. in another case about Blandings Turtles
    and suggests that I take a similar approach. In
Prince Edward County Field
    Naturalists v. Ostrander Point GP Inc.
, 2014 ONCA 227, 119 O.R. (3d) 704, the
    applicant sought a stay of the Divisional Courts reinstatement of the Ministers
    approval of a wind energy project, pending the disposition of the applicants
    motion for leave to appeal. This court ultimately granted leave and allowed the
    appeal in part: 2015 ONCA 269, 332 O.A.C. 374.

[17]

Justice
    Blair granted the stay after considering the customary criteria, which he
    listed at para 12: the moving party must show that (a) there is a serious issue
    for consideration on appeal; (b) it will suffer irreparable harm if a stay is
    not granted; and (c) the balance of convenience favours such an order. See
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311.

[18]

While
    Blair J.A.s decision contains some discussion about Blandings Turtles upon
    which the appellant wishes to draw, the important jurisdictional point is that
    there was a judicial decision capable of being stayed because there was a
    Divisional Court order on the merits of the appeal. That is not the case here.

[19]

I
    make two additional comments. First, the applicant is before this court in part
    because it believes that the Divisional Court is incapable of constituting a
    review panel urgently, and the construction is proceeding every day. If it is
    required to wait until September, then the construction will be completed, and
    the review will be moot. I accept that the urgency exists, but urgency does not
    give this court jurisdiction. I am confident that the Divisional Court can
    respond with alacrity in these circumstances.

[20]

Second,
    counsel for the applicant expresses the concern that any motion for interim relief
    to prevent further construction while the review is pending will be resisted by
    the respondent on the basis that it is res judicata. Counsel for WPD agreed he
    would make that argument. He submits that this continued litigation is the
    appellants effort to press claims already addressed in the proceedings before
    the Environmental Review Tribunal.

[21]

I
    do not see a motion for interim relief pending the panel review to be the same
    beast as the motion before Conway J., regardless of how frustrated the
    respondent might be at having to make similar arguments again.

D.

Disposition

[22]

The
    motion for a stay is quashed with costs payable by the appellant to WPD in the
    amount of $3,000, inclusive of taxes and disbursements.

P. Lauwers J.A.


