SUPERIOR COURT OF JUSTICE B E T W E E N: THE …howgreenisthis.org/wp-content/uploads/2014/09/Factum... · 2014-09-28 · 1 Rules of Civil Procedure, RRO 1990, Reg 194 at r.63.02

Court File No.: 2056/14

ERT Case No.: 13-097/13-098

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

SHAWN DRENNAN and TRICIA DRENNAN

Appellants/

Appellants on Appeal

-and-

THE DIRECTOR, MINISTRY OF THE ENVIRONMENT

Respondent/

Respondent on Appeal

-and-

K2 WIND ONTARIO INC. OPERATING AS

K2 WIND ONTARIO LIMITED PARTNERSHIP

Respondent/


A N D B E T W E E N:

Court File No.: 2055/14

ERT Case No.: 13-084-13-087

SCOTTY DIXON, JENNIFER DIXON, THOMAS RYAN and CATHERINE RYAN

Appellants/

Appellants on Appeal

-and-

THE DIRECTOR, MINISTRY OF THE ENVIRONMENT

Respondent/


-and-

ST. COLUMBAN ENERGY LP

Respondent/


APPEAL UNDER Section 142.1 of the Environmental Protection Act

FACTUM OF THE APPELLANTS

MOTION FOR STAY PENDING APPEAL

August 29, 2014 FALCONERS LLP

10 Alcorn Ave, Suite 204

Toronto, ON M4V 3A9

Julian N. Falconer (LSUC 29465R)

Asha James (LSUC 56817K)

Tel: (416) 964-0495

Fax: (416) 929-8179

Counsel for the Appellants

TO: This Honourable Court

AND TO: Borden Ladner Gervais

Scotia Plaza

40 King Street West

Toronto, ON M5H 3Y4

Tel: (416) 367-6165

Christopher Bredt

Counsel for the Approval Holder & K2 Wind Power Inc.

AND TO: Davies LLP

155 Wellington Street West

Toronto, ON M5V 3J7

Tel: (416) 863-0900

Sarah Powell, James Bunting and Alexandria Pike

Counsel for the Approval Holder & K2 Wind Power Inc.

AND TO: McCarthy Tetrault LLP

TD Bank Tower

66 Wellington Street West, Suite 5300

Toronto, ON M5K 1E6

Tel: (416) 362-1812

Darryl Cruz, Eric Pellegrino and Chris Wayland

Counsel for Approval Holder, St. Columban Energy LP

3

TABLE OF CONTENTS

Part I: Overview

4

Part II: Facts

6

A. The Parties

6

I. St. Columban Project

6

II. K2 Wind Project

7

B. Regulatory Scheme for Renewable Energy Approvals

8

C. Appeal of the Director’s Decision to Grant the REAs

9

D. Appeal of the ERT Decision to this Honourable Court

9

E. Stay Pending Appeal

10

Part III: Issues

13

Part IV: Law and Analysis

13

Overview of the Test for a Stay Pending Appeal

13

A. Serious Question

15

B. Irreparable Harm

16

C. Balance of Convenience

23

I. The Inconvenience of the Respondents

23

II. The Public Interest

29

III. Analysis of the Balance of Convenience

32

Part V: Order Sought

33

Schedule “A” – List of Authorities

34

Schedule “B” – Legislation

35

4

PART I: OVERVIEW

1. The Appellants seek a stay of the construction of the St. Columban Energy LP Wind

Project and the K2 Wind Project, pursuant to Rule 63.02 of the Rules of Civil Procedure,1 s. 106

of the Courts of Justice Act2 and s. 24(1) of the Canadian Charter of Rights and Freedoms

3

restraining the Respondents St. Columban Energy LP (“St. Columban”), and K2 Wind Ontario

Inc., K2 Wind Ontario Limited Partnership (“K2 Wind”) from all construction-related activities

until the resolution of the appeals.

2. The appeal to the Divisional Court is brought jointly by three Appellants in this

proceeding. However, this motion for a stay pending appeal is only brought by the Dixon-Ryan

Appellants in respect of the St. Columban Project and the Drennan Appellants in respect of the

K2 Wind Project. No motion for stay pending appeal has been brought by the third appellant,

the Kroeplins, in the appeal before this Honourable Court.

3. These submissions will therefore address the St. Columban Project and the K2 Wind

Project.

4. The Appellants respectfully submit that the tripartite test for a stay is met in this case:

A. This appeal raises a serious question. This appeal challenges the

constitutionality of a regulatory scheme. Far from being frivolous or

vexatious, it engages the constitutional rights of rural Ontarians in respect

of the commercial development of an emerging technology.

1 Rules of Civil Procedure, RRO 1990, Reg 194 at r.63.02.

2 Courts of Justice Act, RSO 1990, c C.43 at s. 106.

3 Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK),

1982, c 11.

5

B. The Appellants are raising a Charter issue. They are seeking a revocation

of the REA rather than damages. The harms suffered by the Appellants in

issuing the REAs without engaging in any analysis of the health effects

and the constitutionality of the Director’s decision cannot be adequately

remedied by the revocation of the REA, because it is an ongoing harm.

Even if the appellants sought damages, their harms that they would suffer

are incapable of being remedied by damages.

C. The balance of convenience favours the Appellants. In the event that a

stay is granted, the Respondents’ liabilities to the OPA would be limited

because the stay would constitute a force majeure according to the terms

of the Respondents’ agreements with the OPA. Furthermore, the public

interest and the harms that would be suffered by the Appellants strongly

favour granting a stay.

5. This stay is vital to preserving the Charter rights of the Appellants. Should a stay not be

granted, the Appellants would be subjected to a continued deprivation of their security of the

person interests. They will be subjected to the construction of a wind project in respect of which

government authorities are uncertain as to the health effects.

6. Accordingly, the Appellants submit that this Honourable Court should grant a stay to the

Appellants.

6

PART II: FACTS

The Parties A.

I. St. Columban Project

7. The Dixon-Ryan Appellants live in Seaforth, Ontario, which is in Huron East County.

This is the same county which is host to the St. Columban Wind Project. The Dixons live on a

96.8 acre farm with their two young children. The St. Columban Project will consist of 15

industrial wind turbines, with a total name plate capacity of 33MW. The Dixons will have one

turbine located 551 meters from their home, and they will have a second turbine located 552

meters from their home.4

8. The Dixon’s daughter suffers from hyper-sensitive hearing and gets headaches from

noises such as sirens. The Dixon’s are concerned that the audible and inaudible noise (low

frequency and infrasound noise) from the turbines will negatively impact the health of their

daughter. When a wind company positions a wind turbine it must be 550 meters from the center

of a residence. Unfortunately, in the Dixon’s case, their children’s bedroom will be closer to the

turbine than this permissible set back distance because of where the bedrooms are located in their

home.5

9. The Ryan Appellants also live in Huron East County and have a 150 acre farming

property on which they operate a dairy farm with approximately 70 milking cows and 150 head

of cattle. The Ryan farm has been in the family for nearly 150 years and the Ryan Appellants

4 Affidavit of Jennifer Dixon, sworn, June 11, 2014, paras 1-2.

5 Ibid at paras 5-6.

7

have lived on the property for 33 years. The Ryan Appellants will have one turbine 551 meters

from their home and a second turbine will be located about 800 meters from their home.6

10. The Respondent, St. Columban, is the owner/operator of the St. Columban Project and,

received a REA from the Respondent, Director of the Ministry of the Environment on July 2,

2013.

II. K2 Wind Project

11. The Drennan Appellants live in the Township of Ashfield-Colborne-Wawanosh, which is

the site of the K2 Wind Energy Project. The Project will consist of 140 industrial wind turbines,

a 270 MW substation and a 500 KW transformer station, the latter of which will be located

approximately 500 meters from the Drennan family home. The Drennans will also have a wind

turbine located approximately 715 meters from their home with another 11 turbines within a 2

kilometer radius of their home.7

12. The Drennan farm has been in the family since 1922 when Shawn Drennan’s grandfather,

Wilfred Drennan, moved to the farm. Shawn Drennan’s father, James Drennan, was raised on the

property and took over the farm operation in 1956. Shawn Drennan took over the farm operation

in 1983, and he and his wife Tricia represent the third generation of Drennans to live on and farm

this property, with their children being the fourth generation.8

13. The K2 Wind Project is owned/operated by the Respondent, K2 Wind. K2 Wind received

a REA from the Respondent, Director of the Ministry of the Environment on July 23, 2014.


7 Affidavit of Shawn Drennan, sworn May 22, 2014, paras 1-2.


8

Regulatory Scheme for Renewable Energy Approvals B.

14. Before a wind company begins construction on a wind project, it must obtain a REA from

the Ministry of the Environment (“MOE”), as outlined in Ontario Regulation 359/09 –

Renewable Energy Approvals under Part V.0.1 of the Environmental Protection Act, R.S.O. 1990

c. E.19 (“EPA”). Prior to submitting a REA application, an applicant is required to hold two

public meetings within the community. The wind company is required by the regulation to have

specified documents available at the public meetings. Once a submitted application is deemed

complete, the Director may, pursuant to section 47.5(1) of the EPA, if in his or her opinion it is

in the public interest to do so: (a) issue or renew a renewable energy approval; or (b) refuse to

issue or renew a renewable energy approval.

15. “Public interest” is not defined in the EPA or its regulations. The Director is not required

to provide reasons which outline why the wind project that receives the REA was deemed to be

in the public interest. Currently, Health Canada has undertaken a study to determine the risk

posed to residents living in close proximity to these industrial sized wind turbines. Health

Canada undertook this study because as the lead investigator for the study, Dr. David Michaud

testified, “there is a data gap between the dose-response relationship related to wind turbine

emissions.”9 Put quite simply, our governments have no idea how these large scale machines

impact on Ontario residents. Despite this fact that the MOE does not require a wind company to

produce a single document which addresses any possible health impacts associated with living in

close proximity to wind turbines.

9 Affidavit of Shawn Drennan, sworn May 22, 2014, paras 19-23; Affidavit of Jennifer Dixon, sworn June 11, 2014,

paras 31-35.

9

Appeal of the Director’s Decision to Grant the REAs C.

16. Under the EPA, once approval for a wind project is granted, an appeal of that decision

may be brought before the Tribunal. An appeal to the Tribunal can only be brought on two

grounds. The onus is on the Appellant to show that the renewable energy project will cause: a)

serious harm to human health, or b) serious and irreversible harm to plant life, animal life or the

natural environment.

17. The Dixon-Ryan Appellants filed a Notice of Appeal and Notice of Constitutional

Question before the Environmental Review Tribunal (the “ERT”) on July 16, 2013.

18. The Drennans filed a Notice of Appeal and Notice of Constitutional Question before the

ERT on August 6, 2013.

19. Both Appellants raised issues surrounding the constitutionality of the Director’s decision

along with the constitutionality of the test before the Tribunal.

20. On January 16, 2014, the ERT issued its decision dismissing the appeal in respect of the

St. Columban Project.

21. On February 6, 2014, the ERT issued its decision dismissing the appeal in respect of the

K2 Wind Project.

Appeal of the ERT Decision to this Honourable Court D.

22. The Drennans, and the Dixon-Ryans, jointly appealed their respective ERT decisions to

this Honourable Court. Notices of Appeal to this Honourable Court were filed on February 14,

2014 and February 28, 2014 in respect of the St. Columban Project and the K2 Wind Project,

respectively.

10

23. A third ERT decision involving an appeal by Kenneth George Kroeplin and Sharon Anne

Kroeplin in respect of the SP Armow Wind Project was also appealed to the Divisional Court.

24. On May 13, 2014, the Kroeplins filed a Notice of Appeal to this Honourable Court.

25. The Drennan appeal, the Dixon-Ryan appeal and the Kroeplin appeal involved the same

legal issues and each of the Appellants were represented by the same counsel. As a

consequence, the Appellants were successful in their motion to join the appeals into the herein

proceeding before this Honourable Court.

Stay Pending Appeal E.

26. In an effort to stem construction-related activities near their homes, the Drennans and the

Dixon-Ryans brought a motion for a stay pending appeal. The Dixon-Ryan notice of motion was

filed on June 17, 2014. The Drennans’ notice of motion was filed on May 28, 2014.

27. Both the Dixons and the Drennans gave evidence before the Tribunal and again in the

affidavits filed in support of this stay motion regarding the constant worry and anxiety

experienced related to the unknown effects the project could have on their family. This concern

is heightened by the fact that Health Canada is currently engaged in a study to understand the

effects that industrial wind projects have on residents living in close proximity to them.

28. Additionally, one of the very first decisions released by the Tribunal in respect of a wind

project, Erickson v. Director, Ministry of the Environment, the Tribunal held at page 206 of that

decision that:

This case has successfully shown that the debate should not be simplified to one about

whether wind turbines can cause harm to humans. The evidence presented to the Tribunal

demonstrates that they can, if facilities are placed too close to residents. The debate has

11

now evolved to one of degree. The question that should be asked is: What protections,

such as permissible noise levels or setback distances, are appropriate to protect human

health?

29. Currently, we do not have an answer to that question. That is precisely the question that

the Health Canada study seeks to answer. Despite knowing that harm will exist, and despite

knowing that the magnitude and degree of that harm is unknown to our government regulators,

the St. Columban and K2 Wind projects have been approved without any regard to the possible

health consequences for the Appellants. In effect, our government has relegated the Appellants to

guinea pigs in the name of green energy.

30. The fear and anxiety with being a guinea pig is only further heightened by the knowledge

that the Ontario Ministry of the Environment has placed a moratorium on off-shore wind turbines

because the environmental impact on the fish is unknown.10

In essence, the Appellants health

would have been more protected had they been fish.

31. The Dixon Appellants submit that the construction-related activities of St. Columban will

cause substantial and irreparable harm to them.

32. Jennifer Dixon’s eight year old daughter suffers from hyper-sensitive hearing which

causes her headaches. The intensity of her headaches varies based on the intensity and the

duration of the source of noise. The loud noise generated by construction activities of the St.

Columban Project will be a consistent source of discomfort for the Dixons’ daughter. In

addition, the Dixon’s daughter suffers from apneic periods at night and increased secretions.

10

Affidavit of Jennifer Dixon, sworn June 11, 2014 at para 30, Affidavit of Shawn Drennan, sworn May 22, 2014 at

para 18.

12

Disturbances during the night and the lingering effects of intense headaches could lead to a

permanent decrease in cognitive functioning. 11

33. The Drennan Appellants submit that the construction-related activities of the K2 Wind

Project will also cause substantial and irreparable harm to them.

34. The development of the K2 Wind Project creates a significant risk of serious and

irreversible damage to the Drennans’ property as a result of flooding. As part of its construction

activities, K2 has been illegally dumping drainage water onto the Drennans’ property.12

The

flooding of the Drennan property will cause deterioration in the quality of the soil as a result of

erosion. This in turn, results in lower crop yields.13

35. Furthermore, the construction activities are carried out in a manner that risks irreversibly

contaminating the region’s groundwater reserves.14

K2’s construction activities are undertaken

in areas where the depth to groundwater is less than 2 metres.15

36. Finally, in both cases, a decrease in property value is a real concern. The approval by the

Ministry of the Environment resulted in a decrease of 10% to the residential contributory value

of the Dixon’s property.16

Construction activities will inevitably result in a further decline in

property values. Attached as Exhibit “B” to the Affidavit of Jose Menendez, Vice-President of

St. Columban Energy, is a study by the Municipal Property Assessment Corporation.17

The

study is cited by Mr. Menendez as support for the proposition that wind turbines have no impact

on property values. The study in fact confirms the opposite. Mr. Menendez would be correct if

11

Affidavit of Jennifer Dixon sworn June 11, 2014 at paras 40 – 41. 12

Affidavit of Shawn Drennan sworn May 22, 2014 at para 38. 13



Transcript of Cross Examination of Paul Wendelgass, August 14, 2014 at page 73 16

Affidavit of Jennifer Dixon sworn June 11, 2014 at para 43. 17

Affidavit of Jose Menendez sworn July 21, 2014 at paras 24 – 25.

13

he confines the comparison to properties located within 1 kilometre of a wind turbine and

properties located between 2 and 5 kilometres of a wind turbines. The study concludes that there

is no statistically significant difference between property values in these two groups. However,

the study confirms that there is a significant difference in property values when comparing

properties located within 5 kilometres of a wind turbine and properties located more than 5

kilometres from a wind turbine.18

PART III: ISSUES

37. The issues before this Honourable Court is whether the Appellants meet the tripartite test

for granting a motion for stay, namely:

A. Is there a serious question to be tried?

B. Will irreparable harm result if a stay pending appeal is not granted?

C. Does the balance of convenience favour granting a stay pending appeal?

PART IV: LAW AND ANALYSIS

Overview of the Test for a Stay Pending Appeal

38. It is well-settled law that the tripartite test enunciated in RJR-MacDonald Inc. v. Canada

(Attorney General) applies in determining whether to grant a motion for a stay pending appeal.19

18

See Transcript of Cross-Examination of Jose Menendez dated August 15, 2014 at page 37 - 39. 19

RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 111 DLR (4th) 385, 1994 CanLII 117

[RJR MacDonald].

14

39. In the first part of the test, a court must engage in a preliminary assessment of the

strength of the case by determining whether the applicant has demonstrated that there is a serious

question to be tried.

40. In the second part of the test, a court must determine if the applicant would suffer

irreparable harm if the application was refused.

41. In the third and final part of the test, a court must assess “which of the parties would

suffer greater harm from the granting or refusal of the remedy pending a decision on the

merits”.20

In addition, a court must account for the public interest in this part of the test.21

This is

known as the balance of convenience.

42. It is noteworthy that in Morguard Corporation v. InnVest Properties Ottawa GP Ltd., the

Ontario Superior Court held that:

There was a time when the courts tended to treat each of the three branches of the

test as requiring separate treatment, each independent of the others. The

preferable approach is to consider all three and assess their collective impact:

The terms ‘irreparable harm’, ‘status quo’ and ‘balance of convenience’

do not have a precise meaning. They are more properly seen as guides

which take colour and definition in the circumstances of each case. More

importantly, they ought not to be seen as separate, water-tight categories.

These factors relate to each other, and strength on one part of the test

ought to be permitted to compensate for weaknesses on another.

(Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf

(Aurora: Canada Law Book, 2010) at para. 2.600)22

20

RJR MacDonald at para 43. 21


Morguard Corporation v. InnVest Properties Ottawa GP Ltd., 2012 ONSC 80 [This case considered whether to

grant an interlocutory injunction. It is trite law that the RJR MacDonald tripartite test applies to both stays and

injunctions. Accordingly, we rely on this case and other cases involving interlocutory injunctions as authority in

respect of stays pending appeal.].

15

43. In determining whether the test is met, a court must be careful to avoid determining

whether each of the three parts of the test is satisfied by the case. Instead, a court must assess the

three factors holistically.

Serious Question A.

44. The first branch of the test to determine whether a stay should be granted is whether the

case raises a serious question.

45. A court is not to enter into a rigorous analysis of the merits of the case. The threshold to

be met is simply that the claim is “not frivolous or vexatious”.23

The decision of a lower court

on Charter issues is relevant but it is not necessarily determinative of whether there is a serious

question to be tried.24

46. The Supreme Court of Canada has held that “[o]nce satisfied that the application is

neither vexatious nor frivolous, the motions judge should proceed to consider the second and

third tests”.25

47. Furthermore, this lower threshold is particularly suitable to cases where Charter rights

are engaged. The public interests engaged in Charter cases will often be sufficient to find that

there is a serious question to be considered by the Court. In RJR MacDonald, the Supreme Court

of Canada held that :

The Charter protects fundamental rights and freedoms. The importance of the

interests which, the applicants allege, have been adversely affected require every

court faced with an alleged Charter violation to review the matter carefully. This

is so even when other courts have concluded that no Charter breach has occurred.

Furthermore, the complex nature of most constitutional rights means that a motions

23



RJR MacDonald at para 50.

16

court will rarely have the time to engage in the requisite extensive analysis of the

merits of the applicant's claim. This is true of any application for interlocutory relief

whether or not a trial has been conducted.26

48. The Appellants raise a number of concerns regarding the constitutionality of the

procedure for approving the construction of wind projects. The number of such projects in

development will only increase as the government has declared that “green energy” is a priority

for Ontario. As a consequence, there will be an increasing number of Ontarians affected by the

scheme that regulates the development of wind farms.

49. The seriousness of the case is enhanced by the fact that the effects on human health are

not known by the regulatory authorities and they are not considered in the decision-making

processes for issuing a REA.

50. This appeal challenges the constitutionality of the regulatory scheme. Far from being

frivolous or vexatious, it engages the constitutional rights of rural Ontarians in respect of the

commercial development of an emerging technology.

Irreparable Harm B.

51. In RJR MacDonald, the Supreme Court of Canada held that the second part of the test for

granting a stay application is whether the applicant would suffer irreparable harm if the stay

application is not granted.

52. The Court further ruled that the harm suffered by the respondent is more appropriately

considered in the third part of the test.27

53. The Court elaborated on the second part of the test as follows:

26


RJR-MacDonald at para 57.

17

At this stage the only issue to be decided is whether a refusal to grant relief could

so adversely affect the applicants' own interests that the harm could not be

remedied if the eventual decision on the merits does not accord with the result of

the interlocutory application.

“Irreparable” refers to the nature of the harm suffered rather than its

magnitude. It is harm which either cannot be quantified in monetary terms or

which cannot be cured, usually because one party cannot collect damages from

the other.28

54. Courts have also emphasized that it is the nature of the harm, and not its magnitude, that

must be assessed in determining whether the harm is irreparable. In Buckland v. Prince Edward

Island, the Prince Edward Island Supreme Court held that:

In keeping with the Supreme Court of Canada’s ruling in R.J.R. MacDonald, I am

not to consider the extent of harm suffered by the applicants or any harm to the

defendant or the public interest at this stage, but must look only to the nature of

the harm suffered by the applicant. With those restrictions, I find that the

plaintiffs will suffer irreparable harm if their rights are affirmed after trial and

they have not been able to exercise those rights in the interim period.29

55. The nature of the harm assessed in that case was the exclusion of nine students from

French first language educational instruction pursuant to s. 23 of the Charter at the start of the

school year as opposed to at the conclusion of the trial. If successful at trial, students would be

eligible to receive French first language educational instruction. The Court ultimately found that

missed instruction constitutes irreparable harm because the relevant consideration is the nature of

the harm (i.e. missing out on instruction) and not the magnitude of the harm (i.e. the number of

days or months of missed instruction).

56. Crucially, the Supreme Court of Canada held that irreparable harm must be treated

differently in cases involving Charter rights than it would in a private law case.

28

RJR-MacDonald at para 59. 29

Buckland v. Prince Edward Island, 2004 PESCTD 66, 243 Nfld & PEIR 57 at para 24.

18

The assessment of irreparable harm in interlocutory applications

involving Charter rights is a task which will often be more difficult than a

comparable assessment in a private law application. One reason for this is that

the notion of irreparable harm is closely tied to the remedy of damages, but

damages are not the primary remedy in Charter cases.30

57. The Nunavut Court of Justice cited RJR MacDonald with approval in the 2003 case of

Nunavut Tunngavik Inc. v. Canada (Attorney General).31

In that case, the Court ruled that:

The same concerns identified by the Supreme Court of Canada with respect to

damage quantification for Charter breaches apply with equal, if not greater force

to alleged breaches of treaty rights protected by s. 35(1) of the Constitution Act

(1982). The law in this area remains very uncertain. On an interlocutory

application of this kind, this Court has no means of measuring the extent of

damage to "intangibles". For this reason, it is appropriate to follow the Supreme

Court's guidance in R.J.R. Macdonald and assume that the damage flowing from

the alleged breach of treaty rights will be irreparable.32

(emphasis added)

58. In this case, the Appellants do not seek a remedy of damages and so they cannot be

compensated for the harms that will inevitably result should the stay not be granted. The

Appellants are merely seeking a revocation of REAs issued by the Director of the Ministry of the

Environment and a declaration that the REAs are constitutionally invalid because they were

issued in a manner that is contrary to the Charter.

59. It would be difficult to quantify the harm resulting from the ongoing breach of the

Charter rights of the Appellants. The appeal before this Honourable Court raises issues about the

constitutionality of the Director’s decision in issuing the REA.

60. As outlined above in paragraphs 26-29, the REAs were issued in circumstances where

there is a “data-gap” relating to the distances and sound levels at which these industrial wind

30

RJR-MacDonald at para 60. 31

Nunavut Tunngavik Inc. v. Canada (Attorney General), [2003] Nu. J. No. 2, 1 WWR 122 [Nunavut Tunngavik]. 32

Nunavut Tunngavik at para 45.

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html


19

turbines affect residents. The government has selected an arbitrary setback distance and sound

levels without any valid research to support these standards.

61. Subjecting the Appellants to further violations of their security of the person in this

regard cannot be remedied and constitutes irreparable harm.

62. Additionally, the Dixons’ eight-year old daughter suffers from hyper-sensitive hearing.

Her hyper-sensitive hearing causes her intense headaches when she is exposed to loud noises

such as sirens. The loud and constant noises generated by the construction activities of St.

Columban will cause their daughter to suffer intense headaches. 33

63. The Dixons are not comforted by the assurances by Jose Menendez in his affidavit that

the loudest noises would emanate from the operation of construction vehicles one-half of one

kilometre from the Appellants’ homes. In an urban environment, machinery and other

construction equipment can make noise that will be barely perceptible to those in the vicinity.

Noise emanating from that same equipment will be amplified in a rural environment with little

ambient noise that features no structures to block the propagation of the noise. The relevant

consideration in this second branch of the test is not the magnitude of the harm but rather the

nature of the harm suffered.34

It is no answer to assert that the harm suffered by the Dixon’s

daughter will be confined to certain periods of time or that it will be limited by distance. The

fact remains that irrespective of how great or minimal the harm to the Dixons’ daughter, that

harm is irreparable.

33

Affidavit of Jennifer Dixon sworn June 11, 2014 at paras 40. 34

RJR MacDonald at para 59.

20

64. Furthermore, the development of a project as complex as a wind farm can also lead to

expected or unexpected occurrences that may require the use of other machinery or prolonged

construction activities.

65. In the affidavit of Jose Menendez, St. Columban takes the position that construction will

be complete prior to the hearing of the appeal. While the laying of foundation may be complete,

this does not take into account the use of large scale cranes that will be used to erect the turbine

bases and blades. The turbine hub alone will be 99.5m in height. The Appellants respectfully

submit that it cannot be said that the construction in erecting these large scale machines will not

introduce a significant amount of noise into the Appellants environment.

66. In addition to hyper-sensitive hearing, the Dixons’ daughter suffers from sleep apnea.

She has also been having issues with increased secretions.35

The Dixons’ daughter is currently

consulting with an otolaryngologist and a pulmonologist to treat these conditions. The Dixons

are concerned that the effects of the construction activities will exacerbate these conditions and

cause her to suffer unnecessarily. Construction in the vicinity of the Dixon home will inevitably

generate dust and possibly toxins and contaminants over a prolonged period of time. These

particles will have an adverse effect on the health of a young child suffering from a respiratory

condition.

67. The harm to the Dixon’s eight-year old daughter, particularly at this key time in her

growth and development, cannot be quantified and would not be compensable by damages, even

if the Appellants were seeking damages as a remedy. In short, the harm suffered by the Dixons

would be irreparable by a declaration that the REA should be revoked.

35

Affidavit of Jennifer Dixon sworn June 11, 2014 at para 41.

21

68. The ongoing construction activities related to the K2 Wind Project has caused water

management issues that the Respondent, K2 Wind Ontario Inc., is unable to contain. This has

two consequences.

69. The first consequence is that the Drennans’ farm property has been repeatedly flooded by

water being dumped from K2 Wind Project lands. Flooding in this manner erodes soil and

results in lower quality soil. The effect of this is less productive areas of land and a reduction in

crop yields.36

The flooding is of particular concern to the Drennans because they have observed

that the water flooding their property is contaminated with an unknown substance. The water is

not clear but rather has a cloudy appearance.37

70. The second consequence of the Respondent’s demonstrated inability to contain the water

flowing from its land is the risk of contaminating the water supply of the Township of Ashfield-

Colborne-Wawanosh. This risk arises because the Project site is situated on a close-to-surface

water aquifer and it is located near a significant groundwater recharge area. These important

underground water structures are connected to the water supply of the Township of Ashfield-

Colborne-Wawanosh, in some cases they are located less than 2 metres of the surface.38

71. The Drennans’ concerns stem from the fact that none of the regulatory authorities,

including the Ministry of the Environment, the Maitland Valley Conservation Authority and

Hydro One, are aware of the proper permitting requirements for water use and drainage.39

This

is apparent from the Drennans’ repeated correspondence dating to 2011 to the regulatory

authorities expressing concern about the potential of construction activities to contaminate the

36

Affidavit of Shawn Drennan sworn May 22, 2014 at paras 28 and 60. 37


Affidavit of Shawn Drennan sworn May 22, 2014 at paras 29 – 35. 39

Affidavit of Shawn Drennan sworn May 22, 2014 at para 62.

22

Township’s water supply.40

The Appellants have no choice but to raise the concern in these

proceedings because the regulatory authorities will not take the responsibility to protect the water

supply of the residents of the Township.

72. While the Respondent, K2 Wind, has taken steps to address some of the water issues, all

steps taken were only in relation to surface water and not ground water. During the cross

examination of Mr. Wendelgasss, he conceded that any efforts taken by K2 do not affect any

ground water issues, but rather only surface water issues.41

73. This position taken by K2 however, is contradictory to the positions taken in the

hydrological report prepared for K2 by its consultant Stantec, which indicates that “groundwater

is present in the sand pockets beneath the site and have found to be under pressurized conditions,

with groundwater within these deposits often rising to ground surface once the lower

permeability sandy to clayey silt overlying the sand has been removed.”42

K2 has conceded that

they have taken no steps to address this problem with the groundwater, which the Appellant

contends is the issue that is causing them the irreparable harm.

74. The harms to the Drennans arising from any contamination of their water supply or the

water supply of the Township cannot be calculated and could result in a variety unforeseeable of

harms to human health. In sum, these harms would be irreparable by a declaration that the REA

should be revoked or if the matter is remitted to the Tribunal for hearing and K2 is permitted to

continue construction.

40

Affidavit of Shawn Drennan sworn May 22, 2014 at paras 29 -65. 41

Transcript evidence of Paul Wendelgass, August 14, 2014, page 9. 42

Ibid, page 74.

23

Balance of Convenience C.

75. The third part of the test for a stay is referred to as the balance of convenience. In this

part of the test, a court must determine “which of the parties would suffer greater harm from the

granting or refusal of the remedy pending a decision on the merits”.43

76. The Supreme Court of Canada has held that “[t]he factors that must be considered in

assessing the ‘balance of convenience’ are numerous and will vary in each individual case”.44

Such factors may include the nature of the relief sought, the harm claimed by the parties, the

nature and purpose of the legislation involved, which of the parties acted to alter the status quo

and the nature and expectations of the parties.45

I. The Inconvenience of the Respondents

77. The inconvenience or harm cited by the Respondents is that a pause in construction of

four months in the form of a stay would amount to a multi-million dollar loss due to liquidated

damages clauses in agreements with the Ontario Power Authority (the “OPA”).46

78. In addition, the Respondents state that a pause in construction of four months could delay

the commercial operation of the project past the drop dead date for commercial operation. A

delay beyond the drop date for commercial operation would constitute an event of default that

would allow the Ontario Power Authority to terminate the agreement.

43



Merck & Co., Inc. v. Canada (Attorney General), 1999 CanLII 9185, 4 CPR (4th) 91; 179 FTR 247 at para 22;

J.A. Brink Investments Ltd. v. BCR Properties Ltd., 2009 BCSC 620 at para 24; CBS Canada Holdings co v. All

Vision Canada Company, 2012 ONSC 3679; Canada Post Corporation v. Canadian Union of Postal Workers, 2011

ONSC 38. 46

Affidavit of Jose Menendez sworn July 21, 2014 at para 42; Affidavit of Paul F. Wendelgass sworn July 21, 2014

at para 55.

24

79. In his affidavit, Jose Menendez, Vice President of St. Columban Energy Inc., states that

the drop dead date for commercial operation of the St. Columban Project is August 16, 2016,

nearly two full years from now.47

Paul F. Wendelgass, Director of Business Development,

Northeast for Capital Power Corporation (a partner in the K2 Wind Ontario Limited Partnership),

states in his affidavit that the drop dead date for commercial operation is January 3, 2017, nearly

two and a half years from now.

80. The affiants on behalf of each of the Respondents failed to disclose to this Honourable

Court material clauses that would mitigate the financial penalties and prevent an event of default

from occurring should a stay be granted.

81. In cross-examinations, Mr. Wendelgass and Mr. Menendez both conceded that their

companies’ agreements with the OPA (“the OPA Agreements”) contained force majeure clauses.

If the force majeure clauses in the OPA Agreements are triggered, the date that the Respondents

are required to have the projects prepared for commercial operation is delayed by the length of

time of the delay caused by the force majeure event.

82. “Relevant extracts” of the OPA Agreement are included as Exhibit “M” to the

Wendelgass affidavit. However, the portion of the OPA Agreement that is most relevant to these

proceedings was excluded from Exhibit “M”. The Appellants were able to obtain a copy of the

OPA Agreement that was filed in a related proceeding with the Ontario Energy Board. The full

OPA Agreement is filed as Exhibit 3 to the Cross-Examination of Mr. Wendelgass.

47

Affidavit of Jose Menendez sworn July 21, 2014 at para 45; Affidavit of Paul F. Wendelgass sworn July 21, 2014

at para 56.

25

83. Section 10 of the K2 OPA Agreement provides for a force majeure clause which allows

one party to be excused for non-performance of its obligations under certain limited

circumstances set out in the agreement. Section 10.1(a)(iii) provides as follows:

If, by reason of Force Majeure: …

(iii) either Party is unable, wholly or partially, to perform or comply with its other

obligations (other than payment obligations) hereunder, including the Supplier

being unable to achieve Commercial Operation by the Milestone Date for

Commercial Operation,

then the Party so affected by Force Majeure shall be excused and relieved from

performing or complying with such obligations (other than payment obligations)

and shall not be liable for any liabilities, damages, losses, payments, costs,

expenses (or Indemnifiable Losses, in the case of the Supplier affected by Force

Majeure) to, or incurred by, the other Party in respect of or relating to such Force

Majeure and such Party's failure to so perform or comply during the continuance

and to the extent of the inability so caused from and after the invocation of Force

Majeure.48

(emphasis added)

84. This section provides that if a force majeure event occurs, the party subject to the force

majeure is excused from performing its obligation. It explicitly includes among the obligations

excused, the obligation to achieve commercial operation by the milestone date for commercial

operation.

85. What constitutes a force majeure event is defined at s. 10.3 of the K2 OPA Agreement:

For the purposes of this Agreement, the term "Force Majeure" means any act,

event, cause or condition that prevents a Party from performing its obligations

(other than payment obligations) hereunder, that is beyond the affected Party's

reasonable control, and shall include: …

(g) an order, judgment, legislation, ruling or direction by Governmental

Authorities restraining a Party, provided that the affected Party has not applied for

48

Exhibit 3 to Cross-Examination of Paul F. Wendelgass, Power Purchase Agreement dated August 3, 2011

between Ontario Power Authority and K2 Ontario Limited Partnership at s. 10.1(a)(iii) [“K2 OPA Agreement”].

26

or assisted in the application for and has used Commercially Reasonable Efforts

to oppose such order, judgment, legislation, ruling or direction49

(emphasis added)

86. The terms of s. 10.3 are clear: an “order” by a court that “restrains” a party from

performing its obligations amounts to a force majeure. A court order would of course include an

order for a stay pending appeal.

87. Section 10.1(f) explicitly provides that if a force majeure causes K2 not to achieve

commercial operation by the milestone date for commercial operation, then the milestone date

for commercial operation would be extended for a period equivalent to the delay caused by the

force majeure:

If an event of Force Majeure causes the Supplier to not achieve Commercial

Operation by the Milestone Date for Commercial Operation, then the Milestone

Date for Commercial Operation shall be extended for such reasonable period of

delay directly resulting from such Force Majeure event. After the Commercial

Operation Date, an event of Force Majeure shall not extend the Term.50

(emphasis

added)

88. Finally, section 9.1(j) of the K2 OPA Agreement provides that it is an event of default if:

The Commercial Operation Date has not occurred on or before the date which is

18 months after the Milestone Date for Commercial Operation, or otherwise as

may be provided herein.51

89. In sum, a portion of the K2 OPA Agreement that was not disclosed to this Honourable

Court includes a clause that contradicts a large portion of the evidence of Mr. Wendelgass.

90. That clause would operate to extend the milestone date for commercial operation should

this Honourable Court order a stay precluding any liquidated damages from being assessed

against K2.

49

K2 OPA Agreement at s. 10.3. 50

K2 OPA Agreement at s. 10.1(f). 51

K2 OPA Agreement at s. 9.1(j).

27

91. Furthermore, the force majeure clause would operate to extend the drop dead date for

commercial operation. This is because the drop dead date for commercial operation is calculated

by reference to the milestone date for commercial operation. If the milestone date for

commercial operation is extended, the drop dead date for commercial operation would also be

extended.

92. By its terms, the force majeure clause would relieve K2 of any liability vis-à-vis the OPA

arising from a court-ordered stay.

93. The Menendez affidavit does not attach the St. Columban OPA Agreement. However, in

cross-examinations, Mr. Menendez and his counsel indicated that the terms and conditions of the

St. Columban OPA Agreement are available on the OPA website as FIT Contract version 1.5.52

FIT Contract version 1.5 was made Exhibit 1 to the Cross-Examination of Jose Menendez.

94. The force majeure provisions of the St. Columban OPA Agreement are identical to the

force majeure provisions of the K2 OPA Agreement.

95. Section 10.1(a)(iii) provides the general effect of invoking a force majeure which is that:

If, by reason of Force Majeure: …

either Party is unable, wholly or partially, to perform or comply with its other

obligations (other than payment obligations) hereunder, including the Supplier

being unable to achieve Commercial Operation by the Milestone Date for

Commercial Operation,

then the Party so affected by Force Majeure shall be excused and relieved from

performing or complying with such obligations (other than payment obligations)

and shall not be liable for any liabilities, damages, losses, payments, costs,

expenses (or Indemnifiable Losses, in the case of the Supplier affected by Force

Majeure) to, or incurred by, the other Party in respect of or relating to such Force

Majeure and such Party’s failure to so perform or comply during the continuance

52

Transcript of Cross-Examination of Jose Menendez dated August 15, 2014 at p 7, line 6 and p 11, line 11.

28

and to the extent of the inability so caused from and after the invocation of Force

Majeure.53

96. The various events that would constitute a force majeure event are described at s. 10.3 of

the St. Columban OPA Agreement:

For the purposes of this Agreement, the term "Force Majeure" means any act,

event, cause or condition that prevents a Party from performing its obligations

(other than payment obligations) hereunder, that is beyond the affected Party's

reasonable control, and shall include: …

(g) an order, judgment, legislation, ruling or direction by Governmental

Authorities restraining a Party, provided that the affected Party has not applied for

or assisted in the application for and has used Commercially Reasonable Efforts

to oppose such order, judgment, legislation, ruling or direction54

(emphasis added)

97. Section 10.1(f) of the St. Columban OPA Agreement, as with section 10.1(f) of the K2

OPA Agreement, explicitly provides that if a force majeure causes St. Columban not to achieve

commercial operation by the milestone date for commercial operation, then the milestone date

for commercial operation would be extended by a period of time equivalent to the delay caused

by the force majeure event:

If an event of Force Majeure causes the Supplier to not achieve Commercial

Operation by the Milestone Date for Commercial Operation, then the Milestone

Date for Commercial Operation shall be extended for such reasonable period of

delay directly resulting from such Force Majeure event. After the Commercial

Operation Date, an event of Force Majeure shall not extend the Term.55

(emphasis

added)

98. Finally, section 9.1(j) of the St. Columban OPA Agreement provides that it is an event of

default if:

53

Exhibit 1 to Cross-Examination of Jose Menendez, Relevant Excerpts of Feed-in-Tariff Contract version 1.5 dated

June 3, 2011) at s. 10.1(a)(iii) [“St. Columban OPA Agreement”]. 54

St. Columban OPA Agreement at s. 10.3. 55

K2 OPA Agreement at s. 10.1(f).

29

The Commercial Operation Date has not occurred on or before the date which is

18 months after the Milestone Date for Commercial Operation, or otherwise as

may be provided herein.56

99. In sum, the St. Columban OPA Agreement, like the K2 OPA Agreement, contradict key

portions of the evidence of Jose Menendez. Mr. Menendez’s states that a stay issued by this

Honourable Court would result in a liability of $3,000,000 in liquidated damages and the

likelihood that St. Columban will be forced into an event of default.

100. The force majeure clause significantly impacts the balance of convenience analysis

because the Respondents can no longer conclusively state that the projects will be jeopardized by

a motion to stay. The Respondents may suffer some financial consequences but these

consequences are a result of the bargain the Respondents voluntarily struck with service

providers and financiers. In other words, any adverse financial consequences are a cost of doing

business borne by the Respondents with knowledge of the legal challenges mounted by the

Appellants and many other rural Ontarians in respect of other wind farms.

II. The Public Interest

101. The public interest is a key factor in the balance of convenience analysis and must be

considered by a court. In RJR MacDonald, the Supreme Court of Canada ruled that “in all

constitutional cases, the public interest is a ‘special factor’ which must be considered in

assessing where the balance of convenience lies and which must be ‘given the weight it should

carry’”.

102. In Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission), the

Court of Appeal for Ontario expounded on the meaning of the public interest in the context of a

56

K2 OPA Agreement at s. 9.1(j).

30

balance of convenience analysis. That case arose as a result of a direction of the Health Services

Restructuring Commission that the emergency department of the Pembroke Civic Hospital be

required to close. The court held that:

In this circumstance, each party contending for opposite results on this motion can

legitimately claim to speak for a part of the public interest. In my view, however,

the overriding public interest is best served by recognizing that hospital

restructuring is a wrenching social experience for a community and that if

possible full legal debate be accorded before major change is undertaken.57

103. In Pembroke, the decision of an administrative tribunal tasked with promoting the public

interest was set aside in favour of a greater public interest identified by the court.

104. The question of what is in the public interest with respect to this motion is resolved by an

analysis of two factors. The first factor is the remedy sought by the Appellants. The second

factor is the objective of the legislation which the Appellants claim is unconstitutional.

105. The remedy sought by the Appellants is very narrow. The Appellants are seeking a stay

of construction for two wind projects. Unlike many constitutional cases, the Appellants do not

seek the suspension of legislation or another remedy of broad application.

106. In Rogers v. Sudbury (Administrator of Ontario Works), the Ontario Superior Court of

Justice found that the public interest is less likely to be endangered when the applicant merely

seeks a personal exemption as opposed to a suspension of a law:

There are two types of interlocutory orders that may be sought in

a Charter proceeding. An applicant may seek an order suspending the operation of

the impugned law pending determination of the case on the merits or may only

seek to be exempted personally from the operation of the law. The Supreme Court

has indicated that public interest considerations will weigh more heavily where

the applicant seeks suspension of the impugned law than in an exemption

57

Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission), [1997] OJ No 3167, 102 OAC

207 at para 12.


31

situation where she seeks personal exemption. Obviously, that is because

the public interest is much less likely to be detrimentally affected when a discrete

and limited number of applicants are exempted from the law in question.58

107. The Appellants in the case at bar seek a limited remedy that will affect two wind projects.

The consequence of staying these two wind projects, however, means that the hundreds of

individuals that live in the vicinity of these two projects will be relieved of the harms that will

result should a stay pending appeal not be granted.

108. In RJR MacDonald, the Supreme Court of Canada held that:

When the nature and declared purpose of legislation is to promote the public

interest, a motions court judge should not be concerned whether the legislation

actually has such an effect. It must be presumed to do so. In order to overcome

the assumed benefit to the public interest arising from the continued application of

the legislation, the applicant who relies on the public interest must demonstrate

that the suspension of the legislation would itself provide a public benefit.59

(emphasis added)

109. The legislation that provides for appeals of a REA to the ERT was enacted with a focus

on environmental protection and the promotion of renewable energy development. The

Appellants concede that there is a public interest in the protection of the environment and the

responsible development of renewable energy sources. However, that public interest must be

tempered by the public interest in meaningful access to justice.

110. Courts have held that the public perception of a court’s ruling is an important

consideration in determining the public interest.60

A failure to grant the stay would send a signal

to the public that both the legislature and the judiciary will allow economic interests to prevail

over the public interest in health and safety. This is particularly so in the context of the political

58

Rogers v. Sudbury (Administrator of Ontario Works), 2001 CanLII 28086 (ON SC), 57 OR (3d) 460; OJ No 2167

at para 15. 59


See e.g. Ontario (Attorney General) v. Ontario Teachers' Federation, 1997 CanLII 12182, 36 OR (3d) 367; OJ

No 4361.

32

controversy surrounding wind turbine development in Ontario. The public interest advanced by

the governing legislation is responsible development of renewable energy resources. The crux of

the appeal and this motion is that the Respondents have acted irresponsibly in developing the St.

Columban Project and the K2 Wind Project.

III. Analysis of the Balance of Convenience

111. The balance of convenience favours the Appellants.

112. Should a stay not be granted, the Appellants will suffer the irreparable harms canvassed

above. The Charter breach suffered by the Appellants will continue and will not be

compensated should they be successful on the appeal. In effect, the message that would be sent is

that the Appellants are to be guinea pigs until the court makes a determination on the main

appeal.

113. If the stay is granted, the Respondents may suffer a financial loss that they voluntarily

undertook in pursuing a business opportunity. Importantly, these risks were undertaken with

knowledge that the REAs were subject to a constitutional challenge by the Appellants.

114. Should the stay be granted, the Respondents may renegotiate their agreements, deploy

leased equipment for other uses or engage in a multitude of other strategies to mitigate their loss.

115. The Appellants have no reasonable options to mitigate their loss. The Dixons cannot

reasonably live elsewhere while St. Columban builds wind turbines. The Drennans have

exhausted their options to mitigate the flooding of their property as is evident from the long trail

of correspondence to regulatory authorities documented in the Affidavit of Shawn Drennan.

116. Finally, the public interest favours granting the stay.

33

PART V: ORDER SOUGHT

117. The Appellants respectfully request that this Honourable Court grant the Appellants’

motion to stay the construction of the St. Columban Project and the K2 Wind Project.

118. The Appellants further request that this Honourable Court order costs in respect of the

Appellants stay motion.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

DATED at Toronto this 29th

day of August, 2014.

Julian N. Falconer (LSUC 29465R)

Asha James (LSUC 56817K)

Falconers LLP

10 Alcorn Avenue, Suite 204

Toronto, Ontario M4V 3A9

Tel: (416) 964-0495

Fax: (416) 929-8179

Lawyers for the Appellants

34

Schedule “A” – List of Authorities

1. Buckland v. Prince Edward Island, 2004 PESCTD 66, 243 Nfld & PEIR 57

2. Canada Post Corporation v. Canadian Union of Postal Workers, 2011 ONSC 38

3. CBS Canada Holdings co v. All Vision Canada Company, 2012 ONSC 3679

4. J.A. Brink Investments Ltd. v. BCR Properties Ltd., 2009 BCSC 620

5. Merck & Co., Inc. v. Canada (Attorney General), 1999 CanLII 9185, 4 CPR (4th) 91;

179 FTR 247

6. Morguard Corporation v. InnVest Properties Ottawa GP Ltd., 2012 ONSC 80

7. Nunavut Tunngavik Inc. v. Canada (Attorney General), [2003] Nu. J. No. 2, 1 WWR 122

8. Ontario (Attorney General) v. Ontario Teachers' Federation, 1997 CanLII 12182, 36 OR

(3d) 367; OJ No 4361.

9. Pawlowski v. Calgary (City of), 2007 ABQB 226, 75 Alta LR (4th) 241

10. Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission), [1997]

OJ No 3167, 102 OAC 207

11. RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 111 DLR (4th)

385, 1994 CanLII 117

12. Rogers v. Sudbury (Administrator of Ontario Works), 2001 CanLII 28086, 57 OR (3d)

460; OJ No 2167

35

Schedule “B” – Legislation

Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the

Canada Act 1982 (UK), 1982, c 11

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been

infringed or denied may apply to a court of competent jurisdiction to obtain such remedy

as the court considers appropriate and just in the circumstances.

Courts of Justice Act, RSO 1990, c C.43, s. 106

Stay of Proceedings

106. A court, on its own initiative or on motion by any person, whether or not a party, may

stay any proceeding in the court on such terms as are considered just. R.S.O. 1990,

c. C.43, s. 106.

Environmental Protection Act, RSO 1990, c E.19

Director’s powers

47.5 (1) After considering an application for the issue or renewal of a renewable energy

approval, the Director may, if in his or her opinion it is in the public interest to do so,

(a) issue or renew a renewable energy approval; or

(b) refuse to issue or renew a renewable energy approval. 2009, c. 12, Sched. G, s. 4 (1).

Rules of Civil Procedure; RRO 1990, Reg 194, Rule 63.02

Stay by Order

By Trial Court or Appeal Court

63.02 (1) An interlocutory or final order may be stayed on such terms as are just,

(a) by an order of the court whose decision is to be appealed;

(b) by an order of a judge of the court to which a motion for leave to appeal has been made

or to which an appeal has been taken. O. Reg. 465/93, s. 8.

http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html

http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html

http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec106_smooth

36

Expiry of Trial Court Stay

(2) A stay granted under clause (1) (a) expires if no notice of motion for leave to appeal or

no notice of appeal, as the case may be, is delivered and the time for the delivery of the

relevant notice has expired. O. Reg. 534/95, s. 7.

Setting aside or Varying Stay

(3) A stay granted under subrule (1) may be set aside or varied, on such terms as are just,

by a judge of the court to which a motion for leave to appeal may be or has been made or

to which an appeal may be or has been taken. O. Reg. 465/93, s. 8.

Support Order

(4) A party who obtains a stay of a support order shall obtain a certificate of stay

under subrule 63.03 (4) and file it forthwith in the office of the Director of the Family

Responsibility Office. O. Reg. 292/98, s. 2.

w:\general\doc\d\drennan.shawn & tricia.1300-11\court\div. crt. appeal\motion for stay\factum\factum - stay - august 29 2014 draft 4.docx

http://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html#sec63.03subsec4_smooth

Dixon et al.

-and- Director, Ministry of the Environment et al.

Court File No.: 2055/14, 2056/14

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

Proceedings Commenced in London

FACTUM OF THE APPELLANTS

MOTION FOR STAY PENDING APPEAL

FALCONERS LLP

10 Alcorn Ave, Suite 204

Toronto, ON M4V 3A9

Julian N. Falconer (LSUC #29465R)

Asha James (LSUC #56817K)

Tel: (416) 964-0495

Fax: (416) 929-8179

Counsel for the Appellants

Documents

SUPERIOR COURT OF JUSTICE B E T W E E N: THE …howgreenisthis.org/wp-content/uploads/2014/09/Factum... · 2014-09-28 · 1 Rules of Civil Procedure, RRO 1990, Reg 194 at r.63.02