On August 13, 2015 the Ontario Divisional Court in Wpd Sumac Ridge Wind Inc. v. Corp. of the City of Kawartha Lakes 2015 ONSC 4164 quashed a reso- lution passed by the City which would have blocked all requests by the holder of a Renewable Energy Approval ("REA") for use of an unopened portion of Wild Turkey Road ("The Road") for the purpose of access and/or other vehicu- lar traffic to support its approved wind turbine development. The Court found that the Resolution could not operate to frustrate the REA and that in any event, the City had acted for the improper purpose of stopping the develop- ment project rather than the legitimate exercise of its jurisdiction over roadways and was for that reason acting in bad faith. It is important to note however, that even if the City had sincerely sought to exercise its legitimate jurisdiction over roadways, its resolution would have nevertheless been quashed. At par. 51 the Court stated:
" When the Ministry issues an REA, it approves the specific and detailed application submitted by the pro- poser. Consequently, the City’s argument that other ac- cess routes would be preferable to (The Road) is beside the point. The REA as granted contemplates (the Road) as the spine of the project. Refusing to permit its use as the Resolution purports to do, even if it were oth- erwise a legitimate exercise of the municipality’s jurisdic- tion over roadways, would frustrate the purpose of the REA. The Resolution must be declared inoperative to that extent. As previously noted, the City may legitimate- ly require agreements with respect to indemnity, liability, decommissioning costs and the like. But it may not ex- ceed the limits on its authority imposed by s.14 of the (Municipal Act ).”
This reasoning is consistent with two previous decisions of the same court, Suncor Energy Products Inc. v Plympton –Wyoming (Town), 2014 ONSC 2934, in which Fogler Rubinoff acted for the wind turbine developer and East Durham Wind Inc. v West Grey (Municipality), 2014 ONSC 4669.