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Court Decision

Court Decision

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CITAT ONJHanna v. AGO, 201 I ONSC 609 DIVI ION II AL C()URT FlLE NO.: 491109 DATE: 20110303

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SUPERIOR CO . RT OF ~ST;CE

DIVISIO AL, COURT [,

CUNNINGHAM, A.C. ,JENNIN S, kSTON JJ

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BETWEEN: I

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Ian Hanna Eric . G,VlespielJulia Croome, for the Applicaht I

Applicant I

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Attorney General for Ontario Sara Bl kelk,,-a Hewitt, for the Respondent

Respondent i .

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John 'er,.jIAlexander Smith,

mre~r !

lIEARD: January 24, 2011 RDECI~OJ

Canadian Wind Energy Association

Intervenor

REASONSF

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for the

ASTON ,J.

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[1] This application for judicial review c llenges th pro~ulgation of sections 35. 53, S4 and 55 of O. Reg. 359/09 made under Part .0.1 of th~ En~ironnten.lal Protection Act ("the EPA"). The title of this regulation is the" newable nex:gy Approvals Regulation." The impugned sections in the regulation prescribe inimum s ,I tbac~ requirements for wind energy

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facilities and require that they conform to the inistry 0' the I Environment's published "Noise Guidelines for Wind Farms." The regulation arne into ect on October 1, 2009, following a period of public consultation ending July 24,2 9.

[2] The regulation was enacted by the Lieu tenant Go emo~..:in~Counci1 on the advice of the Minister of the Environment. The minister's d cision to commend promulgation is at the heart

of this application for judicial review. ~ I

[3] Section 11 of the Environmental Btll.o Rights, S.q> 1993, c. 28 (the "EBR") requires the Minister of the Environment to "take every rea enable step to ensure that the ministry statement of environmental values (the "SEV") is consi red whenever ~ecisions that might significantly affect the environment are made in the minis ." The a~plicant submits that s. 11 of the EBR establishes a condition precedent for the decisi D by the nlnistk'lo recommend promulgation of the regulation, and a breach of that condition re ders his d~eisiGn. and the regulation, ultra vires. In particular, the ministry's statement of envi mnental11a!ues sets out principles the ministry will apply in developing Acts, regulations an policies. One of those principles is that "the ministry uses a precautionary science-based iii, proach in ts decision making to protect human health and the environment." The applicant contends the I'minister failed to consider that "precautionary principle."

[4] The applicant puts forward evidence fr m three 'd.i~l doctors who state there was no scientific evidence available to support the m' ister's co elusion that a 550 metre setback for industrial wind turbines from a residence is safe, The gist of their opinion evidence is that there is medical uncertainty about the impact on h aan health f living in proximity to an industrial wind turbine and that the "precautionary prin· ple" man tes~esolution of this scientific issue

before setting regulatory standards. . i

[5] The Attorney General for Ontario has brought a otion to strike out this evidence as inadmissible. I will return to that motion .lat in. these Ireasons. The Attorney General also opposes the application on the basis that the iss, es raised are pr~cluded from judicial review by a

full privative clause, are raised in the wran forum, d inappropriately ask the court to

adjudicate a hypothetical scientific issue. I

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[6] The intervenor supports the validity of e regulati n ahd takes the position the minister

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complied with all req ui rernents in validly enacti g the re" anon.

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Scope of this Court's Jurisdiction !

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[7] Section 37 of the EBR, found in Part II of the ct, ~tates "failure to comply with a provision of this Part does not affect the vall 'ty of any policy, Act, regulation or instrument except as provided in s. 118." This section applies to the I minister's duty to consider the statement of environmental values because s. 1 of the EB' 'is also in Part II.

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[8] Section 118( 1) reads "no action, dects on, failure to take action, or failure to make a

decision by a minister or his or her delegate un r this Act haUibe reviewed in any court."

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[9] Section 118(2) provides that any perso resident i • Ontario may make an application for

judicial review on the grounds that a minister his or her delegate "failed in a fundamental way to comply with the requirements of-Part II res cd a osal for an instrument." [emphasis added] Under the definitions in the EBR an 'instrument' includes a permit, licence, approval, authorization. direction, or order issued under the Act but does not, include a regulation. It is worth noting that during the debates on s. 11 a proposekI amendment to s. 118(2) that would have removed the words "respecting a propos for an insfrument'\ so that a regulation could be challenged through judicial review, was specifi ally rejeotJd., i

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[10] In short, s. 118(2) does not apply in thi case and e decision of the minister is protected from judicial scrutiny by two privative clauses, both s. 37 d~. 118(1) of the ERR. The court's

jurisdiction is therefore quite circumscribed. . I

[11] Furthermore, government policy, ex ressed thr uJ a regulation, is not subject to' judicial review unless it can be demonstrated l the regu~tiorl was made without authority or is

unconstitutional. A regulation may be said have beep made without authority only if the

~abinet has .faile~ to observe a eO?dition precedent set fO~ .. in ~~ enabling statute or if the pow7r IS Dot exercised in accordance With the PUlpo e of the le . slarion, See Apotex Inc. v. Ontario (Lieutenant Governor-of-Counsel} [2007] OJ. O. 3121 ( .A.)tat para. 32.

[12] The applicant agrees that the 'Validity 0 the regulltionlis only justiciable if it was made ultra vires. due to the minister's failure to meet a conditio precedent.

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[13] The applicant concedes that it is not this Court s function to weigh the evidence or information upon which the minister exercise his discre on .l However, he submits there must be some evidence that a 550 metre setback is fficient to protect against risks to hwnan health. Otherwise the minister's decision is purelybitrary an amounts to a failure to consider a fundamental part of the SEV, specifically the" recautionap principle."

[14] Was the minister required to comply wi, s. 11 of¢.e EhR as a condition precedent to his

decision to recommend promulgation of the re lation? Did he! do so?

[15] The Attorney General submits that the conSideratIon dr the statement of environmental values is not a condition precedent to the m . ster's detision because the SEV only reflects internal ministry policy, not a statute or regula ion. If thel Court must not engage in a review of. government policy, it should not engage in a r view of ~eth7r the minister has complied with government policy. Ms. Blake therefore subm' that then! is nb justiciable issue. Alternatively, she submits the minister did comply with the r uirements under s. 11 of the EBR.

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The Evidence

[16] The Regulation is part of a new rene ble enel:~ approval process (REA). A wind turbine, located on land, with a capacity of W of p0'rer does not require an REA. Wind facilities on land generating between 3kW. but ess than S@ kWj, require an REA but there are no mini~~ setback r~quir~ents ~n the t?~atio s .. ~e ~ete~ sections of the regula~jon in this application are for industrial wind facilities g' neranng ore !than 50 kW. Depending on the

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sound power level (a measure ofa turbine's '"lodneSS")1 st ot-these wind turbines must meet a minimum 550 metre setback from residences or other "noi~e receptors."

[17] On June 9, 2009, the government post. a propoJ ·for.l!the Renewable Energy Approval

regulation, as required by the EBR. The public omment ~1 closed July 24, 2009.

[18] The public consultation process is ou ined in le e0dence of Marcia Wallace. It describes standing committee hearings, techni al worksh~ps. bringing together knowledgeable persons such as scientists, engineers and a ademics, facil~~ated discussion groups, public information sessions and Aboriginal consults ion. sessiof , jThere were approximately 1300 written submissions. Of approximately 4,000 commentsthati were noted, about eight percent were directed at health issues related to wind' rbines, . 'applicant himself did not participate

in this process. i

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[19] The Ministry of the Envirorunent cons dered all ,f the public comments provided. In

addition, the Ministry considered more th 100 studies and- publicly available scientific literature, as identified in the Application Reeo d before this cqurt. As a consequence of all that

input, some changes were made to the proposed regUlat;ol !

[20] The applicant acknowledges that vi Uy all 9 th! information relied on by Dr.

McMurtry to form his assessment regarding health i pactk of industrial wind turbines was

known to the Ministry at the time the regulatio was being co~sidered. However, the applicant contends that this infomlation was never assess -d by any r . Ified medical expert other than the

applicant's own witnesses. II I

[21] The Attorney General's motion to strik out the JndJit evidence of the applicant was adjourned to the panel hearing the applicatio. Theap,lic~t has filed evidence from three medical doctors. They have each reviewed th record copsidered by the ministry. They stale there is no medical evidence 10 support a concl sion that l5Sd metre setback is safe. They say there is no accepted method to measure noise om indusJ~~ "nd turbines. They observe there is no evidence any person with medical knowle ge reviewed th~ regulation before it was passed. Based upon this, the applicant submits that ther is no expe)-t evidence or admissible evidence the minister "took every reasonable step to consid r" the SE and human health issues for persons in proximity to industrial wind turbines when t minister' decision was made.

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lica'tion., if it is admissible as expert

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pact of industrial wind turbines on

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no studies conducted to date ha been so gni'ijcantly rigorous as to resolve this

uncertainty; and I

notwithstanding the scientific U certainty, there is at least some evidence that persons living within close prox mity of in. ustrial wind turbines may experience adverse and potentially signific t health ,I ec~ in various forms such as sleep

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[22] The evidence tendered by the applican

opinion, would establish the following:

scientific uncertainty exists reg human health;

(ii)

(iii)

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d~fficulties, physiological ~s. ess, em9t~on~ stress, headaches, auditory disturbance and other coaoomir t or cons1uen11al health problems.

[23] Peer reviewed scientific research kno to the~ni~try is said to confirm that low frequency noise can cause adverse health fects, hi .ly ~ariable among people and not necessarily dependent on whether the emitted n ise is audi le ot not.

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[24] The applicant does concede that there was non:-.rhedi9a1 scientific evidence and other information considered by the minister, his adv sors and .5#' It .included. studies reeommerrding night time noise limits to protect against sle djst'Utb~ce. and the "Pederson study" which found that with a setback of 550 metres the n ise level Om the noisiest class of wind turbine included in the regulation would be less 40 d A. ! Thi s represents a dBA figure recommended by the World Health Organizati n and prescribed by the ministry's Own "Noise

Guidelines for Wind Farms." j

ADalysi.~

[25] As noted, s. II of the Environmental ill of lUg IS "lIef requires the minister to "take every reasonable step" to ensure that the ministry's s tenient of environmental values is "considered" whenever decisions that might si ificantly EhIect the environment are made in the

ministry. I

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The Ministry of the Environment is c .. itted to applying the purposes of the

EBR ~h~n decision~ that might signifi. tly.affec thele~v~tonlYlent a:e, made ~i1 the Ministry, As It develops Acts, r gulations tfudp'ohcles, the Ministry will

apply the following principles: I

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• The Ministry adopts an eeesyst In appro a to I environmental protection and resource management. 11 is approach views the ecosystem as composed of air, land. water an. living orgl '11 s, including humans, and the interactions among them.

• The Ministry considers the ell ulative effi!ec:s lon the en.vironment; the interdependence of air, land, water an hVlr1g organisms; and the relationships among the enviro ent, the ed no~y and society.

• The Ministry considers the effeets of its dLiSibns on current and future generations, consistent with sus {gable dev~lol'rhent principles.

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science- ased a . roach in its decision ..

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[26]

The SEV provides, in part (emphasis aded.):

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• The Ministry's environmental rctection stra~gy will place priority on preventing pollution and mini . zing the breatioll of pollutants that can

adversely affect the environmen, I I

• The Ministry endeavours to ha e the perpJtratqr of pollution pay for the cost of cleanup andrehabilit tion cons. stent with the polluter pays

principle. I

• In the event that significant en . ronmenta ,11arln is caused" the Mini stry

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will work to ensure that the e vironmen is rehabilitated to the extent

feasible. I

• Planning and management for nvironmen 1 ptotection should strive for continuous improvement and e . ctiveness ' otigh adaptive management.

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• The Ministry supports andpr motes a ang~ of tools that encourage

environmental protection and ustainabili (elg, stewardship, outreach.

education). :

• The Ministry ~ill encourage in re.ased trall>p~bncy, timely re~ort;ng and enhanced ongoing engagement ,th the pUbhcl as part of environmental

decision making. I

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(27) The government of Ontario has a long standing P'. }icy I aimed at the reduction of annual

greenhouse gas emissions for the purpose of roteQ'tirig.",e environment and the health of the general public. One initiative is to work towar 'replecement 6r coal-fired electricity generation by increasing electricity generation capacity . om renewAble energy sources such as industrial wind turbines. The policy development proce that begah in 2003 culminated in the enactment of the Green Energy and Green Economy A l 2009 ("tEA,!) on May 14, 2009. The main purpose of the GEA is to streamline the proc for deve1&ping green energy projects, including wind facilities, The GEA did this by amen 'g the EP to iadd Part V.O.1 which deals with renewable energy. The GEA amended the PA to est blish processes for the approval of renewable energy projects, such as wind turbin s, and the uth6rization of regulations governing those projects. Section 11 of the EBR and the EV are p s ofla broad environmental policy.

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[28] The issue raised by this judicial review pplication singles out the precautionary sciencebased approach, one of ten principles in th SEV. t is [deSCribed as "the precautionary principle." This application rests primarily on its emphasis of the medical science and potential health effects for persons living in proximity to wind hrrbipeS. iHowever, under s. 11 of the ERR, the minister must take every reasonable step to consider ani ten principLes, a process which involves a policy laden weighing and balanci g of cOmPeting_ principles. One of those SEV principles is to "place priority" on preventing d minimizing ~'ollution.

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[29] The health concerns for persons liv ng inpr i.mi;ty to wind turbines cannot be denigrated, but they do not trwnp all other co iderations This is particularly so because those

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pers~ns. do have a remedy .. Any p.erson residJ in ontaIjio. ~hetb.er or ~ot the. pers~n lives. in proximity to a proposed WInd turbine, can eha, lenge the lfPproval of an industrial wind turbine under the EPA amend~ents that came. into f~rc with the <f~.1 This ch~lenge takes the fonn of an appeal to the Environmental Review Tribunal (the "t.rih~") which has the mandate to determine, on a case by case basis, whether a renewable energy approval would cause serious

harm to human health. Thus. if the Trib is petsed ~Y evidence that the 550 metre

minimum setback is inadequate to protect h· health from serious harm, the Tribunal has

authority to revoke the decision of the Direct r, or at th req~est of the applicant increase the minimum setback prescribed for the proposed . dturb '·s. The Tribunal would hear relevant expert evidence and would be able to consider .... pography win~ patterns, make, model, size and dBA specifications of the wind turbine, its exact lac, 'on,1 and the location of any other ~roxim~te turbines or ~loise l'ec~pt~rs (i.e. r.esi~Qnces~. 'fhe ~rib.~al. can conduct site mspecnons, It has authority to appoint Its ownSlentifice.xtperts!to assrst It In Its endeavours.

[30] It was in this context that the minister c nsidered ill SEiV.

[31] It. is not the court's function .t~ questio the wisd m ot the minister's decision, or even whether It was reasonable. If the minister foll wed the process mandated by s. II of the EBR, his decision is unassailable on a judicial reviw application. I If he did not comply with the mandated process, the court would have to dec de if thef: "huel to do so means he acted without

lawful authority. 1

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Decision

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[32] We are satisfied that the minister com lied with ilieProc.ess mandated by s. 11 of the

Environmental Bill of Rights, . 1 I

[33J .T~ere. was a,full ~ublic cons':llt:atio~ and a c?nsider tionlofthe views of interested parties. The ministerial revrew included science-base eV1dence~suc~ as reports of the World Health Organization and the .opinions ~f acoustic:~. DgJ .. ineering ~xp .. ~rts, Co:gn.izant of the possible health concerns the minister decided the mmt urn 550 . . . tre setback was adequate. He made that decision knowing the adequacy of the inimum 'etb~~k could be challenged in any particular case before a specialized tribunal. i I

[34] I~ the context o~ the b~oad policy issue... at play, :e al~e~ative protections provided by the Environmental Review Tribunal and the a sence of learlevidence the 550 metre setback requirement is necessarily insufficient we find . at the~t'er did comply with the requirement in s. 11 of the EBR, notwithstanding the 'precautioary principle" in the statement of environmental values. The precautionary ptinc le doesm t pr:ecIude the decision that was taken

by the minister. -. . I

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[35] I: is not necessary parse the applic~t s eVi,dence ,to. ~]e on the !esp.ondent's motion, Suffice It to say that at least some of that evidence isad lss11:)le and nothing m the rest of that evidence, taken at its highest, would lead us to different d,ncltision,

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[36]

The application is therefore dismissed.

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[37] If counsel are unable to agree on costs, next thirty (30) days.

Released: loA. ~HtCI4 ~I 2011

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submissions may be made within the . I

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Released: March 3, 2011

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CIT~TI, N:iUanna v. AGO, 2011 ONSC 609 DIVI IONAL COURT FILE NO.: 491109

! DATE: 20110303

ONTARIO SUPERIOR C~URl' OF JUSTICE I

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'. A.<l'.J., JENNINGS, ASTON JJ

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Attorne Generalf 01).' ario

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Canadi Wind Enegy Association

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CUN

Applicant

Respondent

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Intervenor

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REASONS FOR JUDGMENT II

Aston J.

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