Court of Appeal quashes Kawartha Lakes council’s decision to block access to Sumac Ridge wind turbine site 

MANVERS TWP – The City of Kawartha Lakes has been ordered to pay $30,000 in legal costs after the Court of Appeal upheld a 2015 court decision allowing wpd Canada to use a City road to access its Sumac Ridge wind turbine project.

The Ontario Court of Appeal released its decision on Wednesday (June 22).

Divisional Court proceedings on the matter last year resulted in the City being ordered to pay $55,000 in legal costs to wpd Canada. City staff confirmed Wednesday the City’s legal costs are $284,000.

That brings the total costs to the City to $369,000.

Sumac Ridge was granted a Renewable Energy Approval (REA) from the Province in 2013 to build five industrial wind turbines south of Bethany near Ballyduff and Gray Roads.

The issue between the City and the wind company relates to the use of Wild Turkey Road, which Sumac Ridge requires as an access road to the site.

In April 2015 wpd argued in the Ontario Divisional Court that the City was acting in bad faith in processing its applications relating to the use of Wild Turkey Road.

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 City subsequently appealed to the Court of Appeal, which resulted in Wednesday’s ruling.

In a press release issued Wednesday, wpd Canada stated the court’s ruling means the company can continue to use Wild Turkey Road to access the site.

“The presiding judges in the original case found that the City of Kawartha Lakes clearly acted in bad faith, and their reasoning for reaching this decision was pretty definitive,” said wpd spokesperson Kevin Surette. “Today’s ruling by the Court of Appeal not only unanimously reaffirmed the decision in the original case, but also determined that the panel of judges carefully examined and considered all the evidence of the City’s actions in determining it acted in bad faith. Permits, as today’s decision states, may not be refused simply because the municipality disagrees with the overall project.”

In addition to its own legal costs for the Divisional Court and Court of Appeal proceedings, the City of Kawartha Lakes must pay a total of $85,000 towards wpd’s legal costs.

The Court of Appeal decision states that when the matter was heard in Divisional Court, it was determined Wild Turkey Road is an “artery” to the Sumac Ridge site, and that construction could not proceed without that access. Because of that, the Divisional Court ruled, council’s resolution to disallow wpd to use the road “must be quashed.”

The Court of Appeal ruled the against the City’s argument that the Divisional Court erred in finding the City acted in bad faith by exercising its jurisdiction over roads for an improper purpose – to frustrate the Sumac Ridge Approval and prevent wind energy projects from being constructed.

The appeal court judge agreed that the City had rebuffed Sumac Ridge’s efforts to discuss Wild Turkey Road and did not express any objections to using or upgrading it prior to the completion of the REA process.

He also agreed with the Divisional Court that the City “only chose to object to the use of Wild Turkey Road after the window for addressing these purported concerns had passed and Sumac Ridge was locked into its Renewable Energy Approval that depended on the use of Wild Turkey Road.”

CAO Ron Taylor provided a response to This Week via email: ““We are understandably very disappointed in the decision, given the very public opposition to this development within the sensitive environmental feature of the Oak Ridges Moraine. We do, however, respect the court’s decision, and will cooperate with the proponent to implement the Provincial Renewable Energy Approval.”

In the wpd press release, Mr. Surette added, “Construction activity for the project will begin this summer. Clearing activity along Wild Turkey Road was undertaken earlier this spring. Widening of the roadway by up to one metre (3.3 feet) and additional site work will be undertaken later this summer and into the fall.”

Once constructed, the $40 million Sumac Ridge project will feed an estimated 26,497,200 kWh of clean, renewable energy annually into the electricity grid: this is equivalent to the average annual power use of 1,514 homes, the release states.