CCSAGE Charter Challenge

 
July 25, 2018:  The Act to Terminate the White Pines Wind Project (Bill 2) delivered the very remedy we were seeking in our judicial review application.  It cancelled both the Renewable Energy Approval and Harassment Permit that allowed WPD to commence construction of IWTs in Prince Edward County.  It also deemed our JR proceeding dismissed without costs as of the date of enactment.  What the Act didn’t and couldn’t do was to terminate our Charter challenge of the Green Energy Act.  The subsequent Act to Repeal the Green Energy Act (Bill 34) removed some of our concerns about future projects and appeared to reinstate municipal control, but it did nothing to remedy the deleterious effects that the GEA has perpetrated on communities across Ontario that now house the over 4,200 operating IWTs.
 
CCSAGE could have declared a victory, but instead has decided to continue with the Charter challenge in the hope of securing some remedial action for owners of lands abutting existing IWTs. Unfortunately, with the judicial review now moot, the Divisional Court no longer has the jurisdiction to hear our Charter challenge simpliciter.  As such, the Ottawa proceeding had to be withdrawn, with a new  Application commencing in the Superior Court in Picton. The Record has to be transferred from Ottawa to Picton, adding an additional Volume 15 to bring matters up to date.
 
January 31 2019:  The Record was recovered from Ottawa and updated.
 
February 15, 2019:  A new Notice of Application was submitted in the Superior Court in Picton to have the GEA declared discriminatory and thus unconstitutional
The Attorney General will be the only respondent.
In addition, as our lawyer, Alan Whitely is retiring from law, he is seeking an order permitting CCSAGE to represent itself (by him as a non-lawyer) in the new proceeding.
 
June 11, 2019:  The Factum and the 15 volume Record were filed at the Court House in Picton
 
December 6, 2019:  AG brought a motion to delete all or parts of some of the affidavits on the grounds that (1) they purport to offer expert evidence, (2) they are hearsay and not direct testimony, or (3) they are irrelevant to the Charter challenge.
 
January 17, 2020:   There was a hearing of the new Application in Picton. At it, a schedule of future hearings was set:
 

1.   A. Whiteley’s request to be granted leave to represent CCSAGE: She requested additional information in A. Whiteley’s submission, and that the AG (C. Harrison) submit a position. She was concerned that having a non-lawyer represent such an important and potentially influential case was precedent setting and dangerous.

Time required: One half day, after May 15th

2.  Motion to strike the court case: This would be heard in tandem with the alternative motion to strike specific paragraphs.

Time required: 2 days

3.   Motion to subpoena MPs as requested by A. Whiteley:

Time required: 1 full day.

4. Full substantive Application would be heard after and pending the outcome of the previous hearings.

Time required: a minimum 5 days

APPLICATION FOR JUDICIAL REVIEW – AN EXPLANATION

CCSAGE NATURALLY GREEN has commenced an Application for Judicial Review (JR) of the process by which a Renewable Energy Approval (REA) was issued in Prince Edward County. The Application is for the purpose of asking the Supreme Court of Ontario the following questions:

(A) Is the REA issued to White Pines (wpd Canada) to construct an industrial wind turbine factory of 27 turbines and associated transmission and collector lines the result of institutional bias in the Green Energy Act (GEA) and/or operational bias by the various Ministries?

(B) If the GEA is essential, is it fair to place the burden entirely on the minority who live in rural areas in Ontario?

Two other important issues that will be raised in the process are:

(C) Is the GEA necessary or even desirable?

(D) What will Ontario be like after IWTs cover rural areas and will it be worth saving?

The Application is based on evidence of institutional and procedural bias, infringement of natural justice, and on a denial of rights created under the Charter of Rights and Freedoms in that residents of rural Ontario are discriminated against as turbines will never, ever, be inflicted on urban communities. Evidence is by way of sworn affidavits. Currently some 15 have been prepared by different individuals dealing with various aspects of the allegations. By way of example, the GEA removes powers from Municipalities and takes no meaningful account of the impact on health, endangered species, or local economy, tourism or property and business values, and the affidavits address all these concerns and more.

The Application will eventually be heard by a panel of three Justices sitting in Ottawa. It challenges the GEA, the acts and omissions of the Ministry official who issued the REA, the Ministry permit to kill endangered species and the Ontario Energy Board’s cursory approval of the 28 kilometre long transmission line bisecting the County.

The JR has the potential to help protect all rural Ontario from the continued onslaught of these industrial machines.

The main critical dates are as follows:
Oct 16, 2016:  Motions regarding wpd requesting party status, North Frontenac mayor as intervener, were presented.
Dec 30, 2016:  Alan’s arguments convinced the judge to deny WPD full participation in the case, but did grant them intervenor status with restrictions that limit their witnesses, evidence, and examination of witnesses, to the impact of the proceedings on their particular interests. Mayor Ron Higgins was not granted intervenor status but he will include an affidavit in the JR.
June 14, 15, 2017:  Our motion to protect CCSAGE from costs, and one to compel the government agencies to produce the records of their decisions regarding the approval of wpd White Pines and the transmission lines. A motion will be filed by OEB regarding their removal from the case.

CCSAGE argue this is a public interest case, as it potentially affects the over 100 municipalities that have declared themselves “not willing hosts” to turbines, so are asking for protection from cost awards – for both sides.

Jan 9, 2018: The Court recognized all of our arguments but relied on the fact that we had not filed our complete set of affidavits to conclude that it was premature to decide the issues we had asked to be decided.   In addition, it was ruled that our request for a Record from the decision-makers was a “fishing expedition”. This even though there is no explanation as to the basis of the approval decisions. (We did not file a complete Record initially because the question of whether the Respondents had to file a Record first had not been determined, protective costs were being sought, and combining issues as we did would reduce court time.)
None of this prevents CCSAGE from filing a complete Record and proceeding with the JR.
CCSAGE has studied Justice Labrosse’s decisions and found them to contain numerous errors and misunderstandings. Consequently, we are appealing all the negative decisions to the Divisional court, in a Motion to Vary. To view both the Labrosse decision and our appeal, click to read the Motion to Vary and Labrosse Decision. We believe our arguments are sound.

Feb 7, 2018: WPD applied for costs from CCSAGENG, even though they are only intervenors (the requested Party status was not granted). CCSAGE responded with their own Cost Request.

June 12, 2018: JR record was served in Ottawa. It includes about 50 affidavits from across the province.

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