KAWARTHA LAKES – A Superior Court judge came down hard on the City of Kawartha Lakes in deciding in favour of wpd Sumac Ridge Wind Incorporated in a case involving an access road.
In a decision released on Aug. 13, the Court ruled the City had acted in “bad faith” when council passed “an unwilling host bylaw” in 2014 denying the wind energy company the use of Wild Turkey Road in Manvers Township to access its provincially-approved wind turbine project. The case was heard in April.
The City was ordered to pay $55,000 to wpd, an amount fixed upon and agreed to by both sides prior to the hearing.
The company received provincial approval (called a Renewable Energy Approval or REA) for Sumac Ridge in 2013, and several groups, including Manvers Wind Concerns, launched an appeal through the Environmental Review Tribunal. They lost that appeal earlier this year and are currently awaiting a ministerial decision.
In its application for judicial review, wpd claimed that the City “deliberately frustrated the REA and acted in bad faith in denying wpd the use of a roadway, Wild Turkey Road, which wpd characterizes as the ‘spine’ of the project approved by the Province,” the court document states.
What is perhaps harsher is the judge’s finding that the City passed the resolution in a deliberate attempt to keep the Sumac Ridge project from moving forward and that council used its municipal power in bad faith.
“The City clearly and legally opposed the approval of the project in the course of the [Renewable Energy Approval] REA process,” the judge wrote.” “Once the REA was granted, however, it was not entitled to use its authority over roadways to collaterally attack the REA. Doing so amounted to bad faith.”
The judge noted that the courts “must be cautious about finding bad faith. But the evidence in this case leads to one inexorable conclusion: the prohibition on wpd’s use of [Wild Turkey Road] in the Resolution was driven by the City’s opposition to Sumac Ridge, not by the legitimate exercise of its jurisdiction over roadways.”
The judge clarified that the term ‘bad faith’ did not suggest wrongdoing on council’s part.
“To say that Council acted in what is characterized in law as ‘bad faith’ is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members…But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government.”
The Court found that since the City could not stop Sumac Ridge through the REA process, it passed a the bylaw using its jurisdiction over its own roads.
“The City clearly opposed the Sumac Ridge project,” the ruling states. “Like many other municipalities across Ontario, it passed an ‘unwilling host’ bylaw. In its consultation document, submitted as part of the REA process, the City urged the provincial government not to approve the project.
“The City was entitled to take these positions. However, it is not entitled to use its jurisdiction over roadways in order to thwart or frustrate Sumac Ridge as authorized by its REA.”
The Court also ruled that the City’s jurisdiction over roads is “curtailed” by the Green Energy Act.
“The record indicates that the Resolution was intended to accomplish indirectly that which the City had been unable to achieve directly through the REA process: to stop the Sumac Ridge IWT project. Given s. 14 of the Act, it was not open to the City to frustrate the REA,” the judge wrote.
Ward 16 Councillor Heather Stauble said she could not comment on the ruling as it has not yet gone before council. She said a report will come forward in September and council will discuss what happens next.
But, she said both wpd Canada and the Ministry of Environment and Climate Change knew, as far back as 2010, that the site proposed for Sumac Ridge was on the provincially-protected Oak Ridges Moraine, and that Wild Turkey Road is on the moraine.
“wpd assured us [the City] they would treat the entire project as if it was on the Moraine, and they have not,” she said.
In addition to the costs, the City must also “consider and decide in good faith wpd’s applications” to allow for the upgrading and use of Wild Turkey Road and any municipal permits necessary for the expeditious construction and operation of wpd’s Sumac Ridge Wind Project.
The ruling is available online at www.ontariocourts.ca /search-canlii/scj/newdecisions-en.php?link=http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4164/2015onsc4164.html.
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