The Ontario Court of Appeal has accepted a tribunal’s determination that a windfarm approval may cause “serious and irreversible harm” to a local species of turtle, but has overturned the tribunal’s revocation of approval and has sent the matter back to the tribunal for a reconsideration of appropriate remedy.
In December 2012 the Ostrander Point windfarm in Prince Edward County had received its Renewable Energy Approval (REA) from the Ontario Ministry of the Environment and Climate Change to go ahead with construction. In July 2013 Ontario’s Environmental Review Tribunal (ERT) revoked the approval, citing “serious and irreversible harm” that it found would befall the Blanding’s turtle, an endangered species in the area, as a result of the project. Subsequently, the Divisional Court of Ontario reinstated the approval. That reinstatement has now been overturned by the Court of Appeal’s April 20 decision. The Court of Appeal holds that the ERT’s decision to revoke the REA was unreasonable, even though its finding of harm to the turtle was not.
An analysis by several lawyers at Osler Hoskins & Harcourt of the sequence of decisions is that both the revoking of the REA and its reinstatement by the Divisional Court are significant firsts.
The full article, by Daniel Kirby, Jack Coop, Richard J. King, Jacob A. Sadikman and Jennifer Fairfax at Osler is available at www.osler.com, here.