In 2009, the Province of Ontario passed the Green Energy and Green Economy Act, 2009, which introduced a new Renewable Energy Approval (“REA”) process for wind, solar, and other renewable energy facilities. Fraser Milner Casgrain LLP (FMC) previously published a newsletter summarizing these developments. One of the highlights of the REA process was a curtailed and streamlined right of appeal by project opponents to the Environmental Review Tribunal (“ERT”).

On May 14, 2010, the ERT finally published draft rules for the REA appeals process (the “Draft Rules”). Stakeholders can comment on the Draft Rules until June 14, 2010. A complete copy of the Draft Rules can be obtained at www.ert.gov.on.ca/english/home.html.

The 2009 REA amendments require the ERT to adhere to a six-month processing timeline between the issuance of a notice of appeal and the rendering of a decision. This requirement has translated into tight timelines in the proposed appeal process. The ERT has further published a draft “Guide to Appeals by Members of the Public regarding Renewable Energy Approvals under section 142.1 of the Environmental Protection Act” (the “Guide”), which sets out additional timelines not directly reflected in the Draft Rules. The Guide can also be accessed at www.ert.gov.on.ca/english/home.html.

Between the Draft Rules and the Guide, the ERT has set up the following standard timetable for various steps in the appeal process:

  • Service and filing of a notice of appeal within 15 days of the decision by the Director of the Ministry of the Environment to issue an REA. This timeline is a statutory requirement arising from section 142.1(2) of the Environmental Protection Act.  
  • Within 14 days of the notice of appeal having been served and filed, the Director must serve and file responding materials.  
  • Within four weeks of the deadline for filing a notice of appeal, the ERT will hold a preliminary hearing.  
  • At least four days before the preliminary hearing, any person seeking status as a party, participant or presenter, must file a written request for status, as well as a statement of issues and submissions with respect to the substantive issues on the appeal.  
  • At least one day before the preliminary hearing, the appellant, Director and holder of the REA must each serve and file responding submissions to any requests for status.  
  • If applicable, within five weeks of the deadline for appealing the REA, the ERT offers a voluntary mediation by an ERT member that cannot sit on the subsequent hearing. This service is provided at no cost to the parties.  
  • Within 5.5 weeks of the deadline for appealing the REA, all parties must disclose any additional documents and witness statements to be relied on at the hearing, as well as the resumes of any expert witnesses. Witness statements include those of qualified experts and their opinion evidence.  
  • Within eight weeks of the deadline for appealing the REA, the ERT will hold the hearing.
  • At least seven days before the hearing, the parties must file a brief, setting out any material facts and issues still in dispute.  
  • At least four days before the hearing, the ERT will schedule a further preliminary hearing to finalize issues and witness lists, and provide procedural direction with respect to the hearing.  
  • Within six months of the appeal being launched, the ERT will render a decision on the hearing.  

While this timeframe represents an ambitious commitment to provide a fast track hearing process, there is currently no commitment by the Province of Ontario to provide additional resources to the ERT. In light of the fact that the Ontario Power Authority awarded 184 FIT contracts in April 2010, with an additional 256 applications still awaiting the economic connection test, it is likely that the ERT will see a significant increase in activity. Accordingly, there is a risk of other ERT matters being delayed if the ERT must prioritize REA appeals.

It should further be noted that the ERT can “stop the clock” with respect to the above-noted timeline at any time on consent, or where “the Tribunal determines that an adjournment is necessary to secure a fair and just determination of the proceeding on its merits.” As such, it remains to be seen how the process will work in practice, and whether the ERT will develop a practice of granting adjournments on its own accord.