Couple ordered to pay wpd costs in turbine appeal – despite concern for citizens who try to challenge government

Sue Capon | Nov 07, 2017 | Comments 21

In July, 2015 two of 29 proposed turbines (closest to Brewers Road and Dainard Road) were not approved due to heritage concerns. In April 2017, the Environmental Review Tribunal found the wpd project would cause serious and irreversible harm to the natural environment (Blandings turtles and Little Brown bats) and removed 18 turbines from the project (all on the south shore and south of Royal Road). Not shown on this map is Gilead Power’s nine turbine project on the south shore that failed in 2016 following an ERT ruling after a six-year battle led by the Prince Edward County Field Naturalists. Construction has begun for wpd’s nine remaining turbines. wpd expects them to be operational by next fall. Two citizens groups – APPEC and CCSAGE – continue to pursue action through the courts. (Click to enlarge map)

Two County residents have been ordered to pay wpd Canada $75,000 in costs in the loss of their appeal of a judicial review decision they had hoped would deny industrial wind turbines due to cultural heritage impacts.

South Marysburgh residents Liz Driver and Edwin Rowse challenged the approval of the turbines based on the adequacy of consideration given to heritage resources in the hamlet. They also have property that will be affected by turbines.

The judicial review was heard in April at Osgoode Hall. They were informed, in June, that they lost their case.

“The decision, in our view, did not show that the court had considered all the evidence and the arguments were not well founded; therefore, we brought a motion for leave to appeal the decision,” said Driver.

One of three judges responsible for the appeal decision Oct. 24, 2017 did not agree with the awarding of costs and stated concern for citizens who want to challenge the government in court.

“My difficulty is with a concern for public participation,” said J. Lederer in dissention of the costs. “As a matter of social policy we want people to engage with government when they are unhappy with, or seek clarification of, decisions that have been made. We detract from that ambition if we too easily tell people they will have to pay costs if they engage, but do not succeed, particularly in amounts as high as $75,000.”

Lederer stated wpd Canada was in some sense a bystander to the main debate in the case.

“The primary submissions in response to the applicants were made on behalf of the Director (Ministry of Environment and Climate Change). It was with this party that the principal defence of the process rested.”

The Director (MOECC) did not seek costs.

“The concern of the corporation is a commercial concern,” Lederer stated. “To my mind, those who seek approvals to construct and operate projects that, by their nature, will be controversial, have to expect that those who are impacted will seek to express their concern… As I see it, companies wanting to undertake these projects have to be prepared, when the circumstances call for it, to accept this as a cost of obtaining the required approvals, in the vernacular, as a cost of doing business.”

Lederer stated that the Director not seeking costs was the correct approach, stating the parties seeking them should be left to pay their own.

wpd was successful in defeating the case and requested costs in the amount of $163,961.25. Driver and Rowse opposed any cost award being made against them and sought costs of $369,992.55, no costs, or reduced costs.

“Both wpd and the applicants rely on alleged misconduct of the other side in the course of the litigation in support of their cost claims,” said J. Kiteley and J. Matheson in their costs endorsement. “This was hard-fought litigation, but the conduct complained of by each side does not justify these extraordinary claims.”

Kiteley and Matheson recognized the applicants’ submission that the court should alternatively have made no order, or a reduced order of costs because the case engages issues of public interest and raises novel legal issues.

They agreed with the case’s elements of novelty and public interest but declared that was subsumed in a broad attack on the decision that went well beyond heritage issues and resulted in a protracted and more costly proceeding.

“We conclude that in this case novelty and public interest should be factored in to reduce the costs award… we order that the applicant pay costs to wpd, fixed at $75,000.”

In July, 2015, as a result of letters from Driver and Rowse, with support from the municipality and others, two of 29 proposed turbines (closest to Brewers Road and Dainard Road) were not approved due to heritage concerns. wpd filed a notice of appeal, but withdrew that in November.

The Judicial Review application was first submitted in September 2015, then withdrawn for resubmission when the Renewable Energy Approval and appeals were completed.

In July 2016, another turbine project – by Gilead Power Corporation – for nine turbines on the south shore ended following an Environmental Review Tribunal (ERT) ruling in a six-year battle led by the Prince Edward County Field Naturalists. During the process, in 2014, the Divisional Court found turbine project developer Gilead Power’s demand for $120,000 in legal costs from the Prince Edward County Field Naturalists “was too high” and lowered it to $40,000.

In April 2017, a separate Environmental Review Tribunal found the wpd project would cause serious and irreversible harm to the natural environment (Blandings turtles and Little Brown bats) and removed 18 of the 27 remaining turbines from the project (all on the south shore and south of Royal Road).

Construction has begun on the nine remaining turbine sites. wpd expects the turbines to be operational by next fall.

In the meantime, is action by the citizens’ group Alliance to Protect Prince Edward County, which has made an application to the Ontario Superior Court seeking a declaration that the FIT contract for the White Pines Wind Project is null and void, and an injunction on any further work on the project. A hearing is set for Nov. 17 at 44 Union St., Picton, beginning at 10 a.m.

Late last month, council unanimously supported the work of citizens’ group CCSAGE (Concerned Citizens for Safe and Appropriate Green Energy) which is seeking a Judicial Review in Divisional Court to challenge the Green Energy Act and how it relates to the Renewable Energy Approval for wpd’s project in South Marysburgh.

Steve Ferguson, the ward’s councillor, said resistance to the project should be directed at the legislation that allowed it to happen.

“Their initiative, like that of many others who have invested in excess of $1.5 million plus, the amount of time, is all being funded on their own dime (with citizen donations). That number keeps going up.”

Notwithstanding this setback, Driver and Rowse are seeking leave to appeal the dismissal of the application for judicial review.

UPDATE Dec. 2017: Request to appeal denied.