Wind turbine appellants denied costs

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The environmental review tribunal hearing appeals from several parties with regard to the approval of a wind turbine project by wpd Fairview Wind Incorporated in Clearview Township has dismissed the appellants’ application for costs.

“Having considered the applicants’ submissions on the threshold issue of whether the conduct or course of conduct of the approval holder and director [Ministry of the Environment and Climate Change] was unreasonable or vexatious and whether either of them acted in bad faith, the tribunal finds that the applicants have failed to demonstrate that the approval holder or director engaged in such conduct,” states the Feb. 21 ruling. “Given this finding, there is no need for the tribunal to address the second and third steps for determining an award of costs.”

John Wiggins, Gail and Kevin Elwood, Preserve Clearview, Collingwood, the County of Simcoe and the Township of Clearview all applied for costs associated with fighting the project, hoping to demonstrate improper conduct on the part of wpd and the ministry.

“It’s a bit of a disappointment that the public has to take care of public safety from an upper tier government,” Kevin Elwood reported to fellow Clearview council members at Monday’s meeting.

In October, the tribunal found the project would cause serious and irreversible harm to plant life, animal life or the natural environment, and serious harm to human health. The project was found to impact aviation safety and the welfare of little brown bats, a species at risk.

As a result of a subsequent remedy hearing, the tribunal ordered that the decision of the approval of the wind turbines be revoked after wpd proposed ways to reduce bat mortality but did not address the serious harm to human health.

Collingwood and Simcoe County were seeking costs of $365,891 associated with the remedy hearing, stating that the approval holder deliberately failed to produce evidence that human health impacts could be mitigated and that the Approval Holder knew that the REA would be revoked as a result.

Clearview Township was seeking $108,755.43 in costs, arguing that it was unreasonable for the director to review and approve the renewable energy approval (REA) without properly considering the risks associated with the project and then change his position mid-hearing after forcing a lengthy and expensive hearing.

The Elwoods, seeking $179,647.26 in costs, submitted that neither the approval holder nor the director took responsibility for the protection of human health or the environment, which is contrary to the public interest and that their conduct throughout the REA process and hearing was unreasonable and indicative of bad faith.

Preserve Clearview was claiming $79,455.65 in costs solely regarding the remedy hearing, saying the approval holder’s pursuit of a remedy on the tribunal’s finding of serious and irreversible harm to plant life, animal life or the natural environment was unreasonable, vexatious and/or undertaken in bad faith because the issue was made moot by the approval holder’s failure to propose remedies to the serious harm to human health that would be caused by the project.

Wiggins was seeking $119,965.89 in costs but did not provide detailed submissions.

Wpd submitted, “this is in essence a request that the applicants be awarded costs for being the successful parties, which is not a ground for costs under the tribunal’s rules. The approval holder submits that it followed all the legislative requirements, consulted with stakeholders and government authorities and was issued the REA. It submits that these actions were reasonable.”


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