In his March 25, 2014 decision in Prince Edward County Field Naturalists v. Ostrander Point GP Inc., Justice Blair of the Ontario Court of Appeal considered two aspects of appellate litigation in the environmental context. In addition to illustrating how to apply the test for a stay pending appeal in this context, it is also interesting for the rejection of the respondent’s contention that the appellant was actually seeking an interlocutory injunction.

As background, the Minister of the Environment had issued a Renewable Energy Approval (“REA”) to the respondent Ostrander in relation to a wind energy project in an area inhabited by Blanding’s turtle, an endangered species. The Environmental Review Tribunal (“ERT”) allowed an appeal from this decision. The Divisional Court then overturned the ERT. The Divisional Court’s decision had the effect of re-instating the REA. Prince Edward County Field Naturalists, which had become a party to the litigation, sought leave to appeal the Divisional Court’s decision and brought a motion for a stay of the Divisional Court’s judgment pending appeal.

As a preliminary matter, Ostrander submitted that the appellant was in reality seeking an interlocutory injunction prohibiting the operation of the REA, and thus an undertaking for damages was required. This was not accepted:

[9] PECFN seeks leave to appeal from the order of the Divisional Court. Although the relief claimed in PECFN’s notices of motion for the stay asks to stay the operation of the REA, that relief is the substance and effect of staying the order of the Divisional Court, which reinstated the REA provisions regarding Blanding’s turtle. In my view, this is not a request for an interlocutory injunction.

The test for a stay pending appeal is well established, bearing similarity to the test for an injunction (save for the undertaking as to damages):

[12] The moving party must show (a) that it has raised, or will raise if leave is granted, a serious issue for consideration on appeal; (b) that it will suffer irreparable harm if a stay is not granted; and (c) that the balance of convenience favours such an order: RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. For leave to appeal to be granted, the proposed appeal must raise an issue of some public importance: Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.).

Blair J.A. noted that the bar of “a serious issue for consideration on appeal” is not high and though the Divisional Court identified six errors of law committed by the ERT, he clearly felt there was some merit to the appellant’s submission that these were not “errors of law” at all but rather errors of fact or errors of mixed fact and law. (The Divisional Court only has jurisdiction to review ERT decisions for errors of law.) He also noted that the issues raised in the appeal were of importance to the practice of environmental law generally. Most of the argument appeared to focus on whether irreparable harm would result if a stay were not granted. Blair J.A. held:

[17] Clearly the moving party must meet this criterion, but in my view this type of case is not one in which the evidence is to be parsed and fine distinctions drawn. Once a habitat is destroyed, it is destroyed – for at least short-term purposes, in any event – and the species sought to be protected here is a vulnerable and endangered species.

[18] The ERT made a finding that “engaging in the Project in accordance with the REA will cause serious and irreversible harm to Blanding’s turtle”. The ERT concluded that this problem could be tempered by the provisions in the REA prohibiting construction and maintenance activities between May 1 and October 15. However, since the project is on Crown land and open to public access, these measures would not prevent harm from the use of the roads in the post-construction period by members of the public, including poachers. Nor would these measures prevent increased nest predation by other species (because of the increased use of the roads) or loss of habitat.

Blair J.A. proceeded to hold that Ostrander’s submissions that it has taken steps to control the property were an improper attempt to rely on evidence that had been rejected on a fresh evidence application before the Divisional Court. He further rejected a submission that the ERT’s findings were insufficient evidence of irreparable harm to Blanding’s turtle. He also did not rely upon Ostrander’s assertion that it would not do much work that could harm the turtle before a construction moratorium became effective as Ostrander refused to disclose anything about the proposed scope of the contemplated work, or its start dates.

Turning to balance of convenience, Blair J.A. noted the following:

[26] If – as Ostrander contends – little can be accomplished in the way of preparatory work between now and May 1, then little is lost by a stay precluding Ostrander from doing any work pending the determination of PECFN’s motion for leave to appeal. Here, the balance of convenience clearly favours granting a stay, given the irreparable harm considerations referred to above. On the other hand, if – as PECFN fears – Ostrander is able to accomplish a great deal and perhaps ready the roads for access or damage the habitat with other construction and preparatory measures, the balance of convenience also favours granting a stay.

[27] In addition, as outlined above, the issues raised on the proposed appeal are issues of broad public implication in the field of environmental law. All three elements of the RJR test were thus met and the stay was accordingly granted. As an interesting side issue, Blair J.A. permitted counsel for a prospective intervener to make submissions as amicus curaie even though intervener status had not been granted (para. 11).