by Harvey Wrightman
When the Green Energy Act (GEA) was created in 2009 it was crafted to remove the planning powers of local councils. Recognizing that wind projects are complex, massively intrusive/destructive to local communities and create a lot of local resentment, an appeal process was set up where residents could file a formal appeal to the Environmental Review Tribunal (ERT) – a kind of safety valve where ordinary citizens could present their arguments. On receiving the appeal, the ERT could either accept the reasons for appeal as legitimate, or dismiss it straight away. All the appeals that have been filed against wind projects have been done by local groups or individuals who are acting “in the public interest” and do not stand to benefit personally from a favourable appeal decision. This is an important point that is generally accepted by the courts in this country. Notwithstanding this principle, both the Ministry of Environment (MOE) and various wind companies have sought costs awards in several ERT appeal hearings. Middlesex Lambton Wind Action Group Inc. has been the target of these motions in 3 of the 6 appeals we have been in – Zephyr, Varna, and most recently St. Columban. The decision in that case was provided on 2014/05/27 and has provided more guidance for future ERT appeals.
ORDER – The Approval Holder’s application for costs as against the MLWAG Appellants is dismissed.
From the decision:
On January 25, 2014, the Approval Holder informed the Tribunal that it intended to file with the Tribunal an application for costs with respect to the proceeding as against the MLWAG Appellants only. On January 27, 2014, the Tribunal wrote to the parties stating that the costs application would be heard in writing and requested that the parties agree to a schedule for submissions. On February 14, 2014, the Approval Holder served the parties and filed with the Tribunal its submissions with respect to the costs application. On February 26, 2014, the MLWAG Appellants filed submissions with respect to the costs applications. On February 26, 2014 and March 3, 2014, the Director and the Dixon/Ryan Appellants respectively wrote to the Tribunal stating that they would not be filing submissions. On March 4, 2014, the Approval Holder filed reply submissions.
That’s how the ERT describes the selective action taken by the approval—holder of the St. Columban wind project, owned by Veresen Inc. – a Calgary energy company that describes itself as, “Veresen is a leading diversified energy infrastructure company that owns and operates energy infrastructure assets across North America. We are engaged in three principal business lines…pipelines, midstream, renewable energy (wind).” Note, a gas/wind combo that is a common occurrence. Note also the selective nature of the application, the other appellants were not named. And lastly note that the “Approval Holder” Veresen is represented by McCarthy Tetrault, the same law firm that NextEra hired to pursue its SLAPP-suit against Esther Wrightman, who is my daughter.
Veresen applied for costs against MLWAG Inc. and Harvey Wrightman in the amount of $221,000. Interestingly the MOE declined to ask for costs or get involved in any way in this action, though they had sought costs in the Varna appeal. The other appellants chose not to file a submission. We had to defend ourselves alone against Veresen’s claims.
McCarthy Tetrault made four “submissions” on Veresen’s behalf claiming that MLWAG Inc. “…has been unreasonable, frivolous or vexatious or acted in bad faith.”
…pretty bad stuff – let’s see what the ERT has to say about it:
First, the Approval Holder submits that the MLWAG Appellants have no nexus to the Project in the sense that MLWAG’s corporate address and Mr. Wrightman’s residence are located 76 kilometres (“km”) from where the Project is sited.
The ERT’s finding on the “nexus” (proximity) of the appellants is rather simple:
…there are no express criteria or conditions precedent to the launching of an appeal except that the person must be resident in Ontario and not entitled to a hearing under s. 139 of the EPA. In this proceeding, the MLWAG Appellants are resident in Ontario. Hence, the fact that the Appellants do not reside in the vicinity of the Project alone does not suggest that the Appellants’ conduct is unreasonable.
Any Ontario resident can appeal – that’s how the legislation reads.
Second, the Approval Holder submits that the MLWAG Appellants’ appeal had no reasonable chance of success.
…and from the ERT:
…the MLWAG Appellants filed a Charter claim. Hence, the Appellants were, in effect, arguing a novel Constitutional issue since this was one of the first Charter claims with respect to the governing legislation. It follows that the MLWAG Appellants may have reasonably believed that the evidentiary requirements for the statutory test under the EPA could be different from those required for a successful constitutional claim.
The “Approval Holder” is expert in predictions. No, we did not win, nor apparently did we have much chance – we aren’t gifted in mind reading.
Third, the Approval Holder states that the MLWAG Appellants failed to comply with the Tribunal’s processes and procedural orders.
…and from the ERT:
…The Approval Holder alleges that many of the documents disclosed by the MLWAG Appellants were irrelevant. Certainly, if true, the disclosure of irrelevant documents is something that should be discouraged. However, the Tribunal must also consider that, had the MLWAG Appellants used too conservative an approach in disclosing documents, they could be criticized for not providing documents that should have been disclosed.
The ERT agreed with our counsel’s submission that it was a damned-if-you-do-damned-if-you-don’t situation. There is no satisfying an opposing counsel with whatever you offer as evidence, argument, or simple common sense. It’s never enough.
A similar issue arose in the Varna hearing where evidence re: “public safety” was not allowed to be considered as part of the “health effects” argument. That decision allows Nextera to place wind turbines within 75m (243’) of 1200psi gas wells and pipeline. It’s all words folks. Gas well explosions caused by a wind tower failure/collapse resulting in injury/death are not deemed to be “health effects” in the legal sense.
Fourth, the Approval Holder states that the MLWAG Appellants are experienced litigants and knew or ought to have known that an unsuccessful appellant in a REA appeal may be held liable for costs.
… “experienced litigants” – like we do this for an $800/hour living?
The Approval Holder states that the MLWAG Appellants have been involved in no less than six REA appeals and encourage opposition to wind energy projects. The Approval Holder also states that “MLWAG now attempts to encourage public opposition to wind farm development by advising would-be appellants that it will extend “corporate protection” to shield them from personal liability for costs.” The Approval Holder suggests that the MLWAG corporate entity was acting as a “straw man” in another case before the Tribunal and that they are experienced litigants and should be aware of the possibility of an adverse costs award.
To this the ERT replies:
The MLWAG Appellants have participated in other hearings and have been clear in their opposition to wind energy projects. The very fact that they have appealed other projects, have a record of opposition to such projects and interact with other persons appealing projects is not, on its face or in substance, unreasonable conduct. The very nature of the appeal process is to allow residents of Ontario to challenge the Director’s decision to approve an application for a renewable energy approval. The fact that the MLWAG Appellants involve themselves in multiple hearings does not make their conduct unreasonable. Instead, the standard is whether the conduct or course of conduct interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of the proceeding before it. There is no evidence that the MLWAG Appellants’ conduct with respect to participating in multiple hearings and organizing opposition to wind energy projects is “unreasonable” in this context.
The ERT basically says, “So what?” – and goes on to pointedly stress:
Further, it should be recognized that while the corporate entity “MLWAG” may have some limited liability, Mr. Wrightman also appealed personally.
-hardly the tactic of using a “strawman” if one puts it on the line personally.
It’s interesting that McCarthy Terault chose to make, and the ERT chose to publish the last allegation, “…that MLWAG now attempts to encourage public opposition to wind farm development by advising would-be appellants that it will extend “corporate protection” to shield them from personal liability for costs.”
It’s so nice of McCarthy Tetrault to bring up this matter. The only case where a co-appellant filed under MLWAG Inc. was the Suncor Adelaide appeal. I wouldn’t mind a public discussion of that abbreviated appeal, though I doubt that either Suncor, their counsel, the MOE or the ERT would choose to do so.
Check the ERT file, Case # 13-138 to see why.
The last document in this decision is a “withdrawal of appeals” (Notice of Withdrawal of Appeals – 8279-9AUP2B) document that was signed on our behalf, but was not presented to the officers of MLWAG Inc., nor was it authorized by anyone in MLWAG Inc. In fact, we never saw a copy of what was signed on our behalf until 12 days later and I had to ask the ERT panel member for a copy.
The document was also signed by a Suncor rep and the Director for the MOE. No one bothered to give us a copy or provide the exact nature of the details behind the withdrawal. We still don’t know why. None of this mattered to the ERT. The appeal was quickly wrapped up.
I’d also like to know why MLWAG Inc. and “the Wrightmans” as we were described in that ERT decision, appear to be targets of the of the wind industry and perhaps the government.
There’s 3 words that I’m trying to recall, maybe you could help:
the first one begins with collu…
the second is corru…
And the third starts with “f” and rhymes with fraud.