Grey Highlands wants the provincial government to pay part of the cost of a failed court challenge.
A court awarded Plateau Wind Incorporated $20,000 in court costs after a Grey Highlands appeal of an Ontario Energy Board ruling on Feb. 23 in connection with power lines to wind turbines.
Three Divisional Court judges turned down the municipality’s appeal of an Ontario Energy Board’s decision that upheld the right of Plateau Wind and its parent company International Power Corporation to run transmission lines from its wind farm south of Maxwell across municipally owned road allowances to hook into the power grid.
In its Jan. 12, 2011 ruling, the OEB reasoned that Plateau Wind Inc., as a distributor of electricity, was entitled to bring electricity generated from its wind farm to the main transmission line.
Grey Highlands asked the OEB to review its ruling and on April 21, 2011 the board refused. The municipality challenged the refusal with an appeal to the Divisional Court.
On Feb. 23 the judges dismissed Grey Highlands’ appeal, saying the OEB’s decision to reject the request for review was reasonable, that there was no error identified in the original decision and that the legal issues raised in the court challenge were simply a restatement of those brought forward in the original hearing without introducing new evidence.
The judges also rejected the municipality’s argument that OEB was biased when it included a member from the original panel on the April 21, 2011, panel that refused to review the Jan. 12 ruling.
“Given the highly technical nature of matters before the Board, it makes sense that one of the original members would be present on the reconsideration. Therefore we would not give effect to this ground of appeal. The Board’s reasons clearly set out the basis for the decision and were transparent and intelligible. Therefore the appeal is dismissed,” wrote Justice J. Swinton in the Feb. 23, 2012 ruling.
The OEB didn’t ask for court costs, but the court ordered Grey Highlands to pay Plateau Wind $20,000 in costs.
Mayor Wayne Fitzgerald, who was against the judicial review of the OEB ruling from the start, on Monday as much as said I told you so.
“I didn’t think we stood a chance and I was concerned that we would have costs awarded. I’ve been involved in my past life in going to the OMB (Ontario Municipal Board) and review bodies and in my opinion, based on history, I thought there was a chance we would not only lose but have costs awarded,” said Fitzgerald.
He said legislation giving many utilities the right to use road allowances is longstanding. Without it, public services would be severally restricted.
“What you usually do is recognize the right and enter into an agreement. These things have been around for years. These things are allowed or we wouldn’t get things done . . . there are many types of utilities that are approved for this,” he said.
Fitzgerald noted that in the end IPC managed to find other ways of bringing electricity from its wind farm to the main transmission grid without crossing municipal road allowances. In his opinion the court challenge in the end was an academic exercise.
In his motion asking the province to reimburse the municipality, Coun. Stewart Halliday noted that the municipality’s lawyer had said that the Green Energy Act was unclear on this point and in his opinion Grey Highlands had control over the use of its road allowances.
“It was an unclear set of information on the part of the OEB . . . Our legal counsel said yes you do have rights. But on the other side he said if you win they probably will change the law. We didn’t win,” he said.
Council voted 6-1 in favour of Halliday’s motion. Coun. Dave Kell was the lone dissenter. He wouldn’t say why he voted against the motion.
It is no secret that council was opposed to the Plateau Wind project for more than two years. It dragged out the process of issuing building permits for the wind turbines and entrances permits into the properties where the turbines are located as long as it could.
Chief administrative officer Dan Best said the total cost to the municipality of “anything related to the IPC dating back to 2010” amounts to about $35,000. That doesn’t include the recent court ordered payment for the Plateau Wind legal costs.
“When you go to court you run the risk of costs. Where the OEB can’t assign costs the Divisional Court can,” Best said.
The Grey Highlands resolution and its preamble is to be sent to Premier Dalton McGuinty and circulated to all Ontario municipalities and MPPs.
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