Administrative law – Decisions of administrative tribunals – Ministerial orders – Environmental matters – Judicial review – Parties – Standing – Public interest – Procedural requirements and fairness – Compliance with legislation
Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment),  O.J. No. 2037, 2012 ONSC 2115, Ontario Superior Court of Justice, April 24, 2012, J.D. Cunningham A.C.J.S.C.J., D.S. Crane and K.E. Swinton JJ.
The applicant, Preserve Mapletown Incorporated (“PMI”) applied for judicial review to challenge the decision of the Director, Ministry of the Environment (“MOE”), to issue a Renewable Energy Approval (“REA”) to the respondent, Conestogo Wind, LP (“Conestogo”) for the construction and operation of a Class 4 wind facility in the Township of Mapletown. The REA was issued to Conestogo after almost 5 years of public consultation and project study. The Director has a broad discretion to issue a REA, with or without conditions, or refuse the application if it is in the public interest to do so. Any resident of Ontario has the right to appeal the Director’s decision to the Environmental Review Tribunal (ERT), and PMI exercised its right to appeal to the ERT as well as commencing an application for judicial review.
Conestogo raised the issue of PMI’s standing at the hearing of the judicial review application. The Court noted that PMI did not meet the test of personal standing, as it has not shown that it has suffered an injury as a result of the Director’s decision distinguishable from that sustained by the general public. PMI had not shown it was prevented from participating in the public consultation process or affected by the way in which the archeological assessment was carried out. Nevertheless, a Court has discretion to grant public interest standing, where the impugned action of the public or quasi-public body would otherwise be shielded from judicial review. The Supreme Court of Canada has established a three part test for public interest standing: (1) is there a serious issue respecting the invalidity of legislation or the decision of a public body; (2) has the applicant demonstrated a genuine interest in the issues; and (3) is there another reasonable and effective way to bring the issue before the Court: [Canadian Council of Churches v. Canada (Minister of Employment and Immigration),  1 SCR 236].
The Court concluded that PMI had not shown a genuine or long and continuing interest. There was no explanation in the record as to how it was formed, or who its members where, and nothing to suggest it existed throughout the consultation process or that it had expertise or experience in the area of environmental approvals. The fact that a favourable decision in the application for judicial review may assist in its appeal to the ERT was insufficient to create a genuine interest in the issues. As well, there was another reasonable way to bring the issue before the court through the appeal right to the ERT, which PMI had exercised. Accordingly, the Court dismissed the application for judicial review on the basis that PMI lacked standing. The Court also concluded that the Director’s decision to dispense with compliance with the procedural requirements regarding the first public meeting was reasonable, as was the Director’s decision regarding the archeological assessment.
To stay current with the new case law and emerging legal issues in this area, subscribe here.