Environmental Review Tribunal dismisses motion to add appellants in Armow Wind case
By Liz Dadson


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Six prospective appellants will not be allowed to add their names to the case against the Armow Wind project in the Municipality of Kincardine.

Ken and Sharon Kroeplin of the 7th Concession of Kincardine Township, launched an appeal, Oct. 23, against the 92-turbine, 180-megawatt industrial wind facility, to be constructed in their neighbourhood by Samsung-Pattern.

An Environmental Review Tribunal heard evidence during a preliminary hearing Nov. 21 in Kincardine. At that time, the appellants' counsel, Asha James, put forward a motion, asking that six more names be added to the appeal: David and Cindy Robertson, Dave and Pat Fritz, and Dennis and Dilsa Morris, representing three landowners in the area affected by the proposed wind facility.

Speaking before tribunal chairman Jerry DeMarco, James argued that the Kroeplins had received two offers to purchase their property, from the approval holder (Samsung Pattern Armow Wind Ontario GP), on the condition they withdraw their appeal. 

She said the Kroeplins were concerned, as was the group HALT (Huron-Kinloss Against Lakeside Turbines) with which they are associated. This prompted the request to have the six names added to the appeal; all six are members of HALT.

James said no new issues are being raised or a new notice of appeal. It was simply a matter of adding the six names, their addresses and phone numbers, to the appeal.

Danielle Meuleman, counsel for the Ontario Ministry of the Environment (MOE) director, who approved the project, said that James is "simply incorrect" in stating that this is a simple amendment to the notice of appeal.

"There is no notice of appeal for these six people," she said. "We currently have two appeals - from Mr. Ken Kroeplin and from Mrs. Sharon Kroeplin. They have been put together in one appeal, but they are still two different appeals.

"These six people had 15 days after the approval was filed to put their names in as an appellant. What's being asked now, is to allow these new appellants to file a notice of appeal after the 15 days."

Sarah Powell, counsel for Armow Wind, echoed Meuleman's view of the law. "The Environmental Review Tribunal does not have jurisdiction to extend this strict statutory deadline," she said.

At the preliminary hearing, DeMarco reserved a decision on the motion until the tribunal had an order in writing which would then be posted on the Environmental Review Tribunal website.

That order was posted Nov. 29, stating that the tribunal's role is not to try and unravel the decision-making process that the Kroeplins, HALT or the moving parties may have undertaken prior to the filing of the appeals or to predict whether the Kroeplins will sell their property and withdraw their appeals.

"Those decision-making processes have no effect on the statutory provisions regarding REA (Renewable Energy Approval) appeals," states the order. "Importantly, the REA provisions include a limitation period for initiating an appeal. The only appellants who filed appeals during the limitation period are the Kroeplins and they alone are the appellants in this proceeding.


The order also states there is no discretion in the statute that authorizes the tribunal to extend the 15-day deadline for appealing. "The Kroeplins appealed. Others did not. Those who did not appeal forewent the opportunity to gain a greater degree of control over the prosecution of the appeal, and the tribunal has no jurisdiction to undo what was done."

In addition, the order states that if the Kroeplins decide to withdraw their appeals and the existing parties do not seek to amend the REA as part of any settlement agreement, then Rule 199 of the Tribunal’s Rules will apply. That rule provides that the “tribunal shall issue a decision dismissing the proceeding” where there is a proposed withdrawal of an appeal that is agreed to by the parties and there is no alteration of the decision under appeal.

"While that scenario may cause a significant concern to HALT, its members and the moving parties, the tribunal cannot undo their decision not to appeal. That decision has been made and the time for second-guessing it, ended with the 15-day limitation period.

"To summarize, the tribunal finds that there is no jurisdiction for the tribunal to grant the relief being sought as it amounts to a request to extend the 15-day limitation period. There is no statutory authority for the tribunal to extend the 15-day limitation period in these circumstances. The motion must, therefore, be dismissed."

To read the entire Environmental Review Tribunal order, click here.

The hearing is slated to run Dec. 19-20, in Kincardine, listening to participants and presenters, then break for the Christmas holidays, and reconvene Jan. 6, 2014.

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Friday, December 06, 2013