In the World of Wind: Setback Shmetback – Divisional Court Says Not Their Call

10 août 2011 | Tamara Farber

( Disponible en anglais seulement )

Hanna v. Ontario (Attorney General)1 is at the centre of some controversy amongst those in the environmental and renewable energy bar. What seemed to start out as an attempt by a local resident to potentially quell wind power development in his community turned into a full blown assault by Hanna’s legal team on how the Ministry of Environment (“MOE”) came up with a policy for setbacks on wind turbine development. Procedurally, the case began as a judicial review challenging the promulgation of various sections of the renewable energy approvals regulation,2 which sets out the minimum setback requirements for wind energy developments. The regulation, as with most regulations relating to environmental or potential environmental issues, was the subject of public consultation prior to enactment.

The heart of the challenge was that the government failed to abide by its own requirements to “take every reasonable step to ensure the MOE’s Statement of Environmental Values (“SEV”) is considered whenever decisions that might significantly affect the environment are made by the Ministry.” Hanna claimed that the Ministry’s SEV required it to use a precautionary approach in decision-making that was protective of human health and the environment. He claimed that the Ministry had no medical studies in support of the recommended 550 m setback requirements for industrial wind facilities (generating power in excess of 50 kW), and that as a result, it did not have sufficient information to make a decision that was protective of human health and consequently failed to abide by its own SEV.

Hanna’s concentration on medical evidence, as distinct from other forms of evidence, formed the basis of the allegation that the setback was arbitrary. He called various medical witnesses on the lack of medical support for a 550 m setback and focused on the absence of anyone qualified as a medical expert at the Ministry having reviewed studies available about the setback policy. But perhaps Hanna lost sight of the significance (at least in the Divisional Court’s view) of the public consultation process preceding the passing of the regulation; a process which the court noted Hanna did not participate in. The Court found that eight percent of the comments received through this process were directed at health issues relating to wind turbines. The Court also found that there was some technical basis for the 550 m setback (interestingly, the Court relied upon studies introduced into evidence by witnesses who did not conduct the studies).

Ultimately, the Divisional Court rejected the application, holding that Ministry’s decisions were protected by the existence of a privative clause and that the legislative requirements simply require a minister to “consider” SEVs in decision-making. The legislative initiative itself, being the reduction of greenhouse gas emissions for the purpose of protecting the environment, seemed to qualify as consideration of many of the MOE’s components of its SEV. The Divisional Court also noted that a legislative challenge was not the only remedy available: since approvals are required under the regulation, a person could challenge the particular approval itself (a separate hearing before the Environmental Review Tribunal). If the Tribunal had concerns about the setback in a particular case, it could revoke the permit or require an increase in the setback.

So what’s the next chapter of the story?

  1. Hanna is seeking leave to appeal the Divisional Court decision.
  2. No judicial decision has really been made about whether the 550 m setback is appropriate or not. The Divisional Court simply indicated that, from a process perspective, the Ministry didn’t do anything wrong and it wasn’t their call as to whether the Ministry made a good decision or not.
  3. Debate will continue as to what the significance of the Divisional Court’s decision is and whether it means added scrutiny of SEVs provincially (various other ministries have SEVs).
  4. There is an ongoing hearing currently before the Environmental Review Tribunal challenging the setback distance: Erickson v. MOE (also known as the Kent Breeze Wind Power Project).3 Hanna is not involved in this case, but his counsel represents the applicant. The approval for the project was issued November 12, 2010. The hearing is expected to conclude late May 2011, with a decision by mid-July 2011. Witnesses at the hearing include the same medical witnesses that testified in Hanna.


1 2011 ONSC 609 (Div. Ct.) per Cunningham, A.C.J., Jennings and Aston JJ. (March 3, 2011).

2 O. Reg. 359/09 (Renewable Energy Approvals Under Part V.0.1 of the Act), made under the Environmental Protection Act, R.S.O. 1990, c. E.19.

3 ERT file No. 10-121.

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