To appeal or not to appeal: COVID-19 crisis buys province time to decide next move on Nation Rise

Jeff Yurek, Ontario Minister of Environment, Conservation and Parks.

NORTH STORMONT —  The COVID-19 crisis has delivered a dose of extra time for Jeff Yurek and the province’s legal machinery to consider appealing the May 13 court decision reviving the Nation Rise Wind Farm project in this rural township.

The Ontario Superior Court (Divisional Court) ruled May 13 that Yurek, the Environment, Conservation and Parks minister, was wrong in revoking the project’s prior approval in December 2019 — a decision that stilled construction on the partially completed $450-million, 29-turbine development. In so doing, the court reinstated the project’s Renewable Energy Approval, which had earlier survived a challenge by the Concerned Citizens of North Stormont in front of the ministry’s Environmental Review Tribunal. It was that Tribunal’s affirmation that Yurek quashed, rescinding Nation Rise’s REA on the claim of protecting bat species, months after the citizens’ group appealed the Tribunal’s decision to the minister.

But will the seesaw legal battle continue?

The losing party in this situation would usually have 15 days to indicate their intention of taking it to the next level — which would have been May 28 in this case. But that was before the pandemic.

“The current state of emergency has suspended the 15-day deadline to serve a notice of motion seeking leave to appeal, subject to the direction of the Court of Appeal,” explained Jenessa Crognali, Senior Communications Advisor and Press Secretary to the Attorney General, in a May 28 email to NVN. The office of Attorney General Doug Downey has been handling questions about the potential next steps for Yurek’s ministry after the recent court decision on Nation Rise.

“A party wishing to appeal the Divisional Court’s decision must first bring a motion seeking leave of the Court of Appeal to do so,” added Crognali, concluding: “As this matter is within an appeal period, it would be inappropriate to comment further.”

Township resident Margaret Benke of the Concerned Citizens of North Stormont (CCNS) told NVN by email that the minister could theoretically pursue such an appeal without the involvement of the local group. However, the CCNS did participate as respondent alongside Yurek’s ministry during the last go-round in court versus the successful appellants, Nation Rise Wind Farm Limited Partnership and Nation Rise Wind Farm GP Inc. But Benke hinted at the importance of taking part again from her perspective: “If we’re not still invested, however, and if he doesn’t hear that it is the will of the local people and of people across the province to continue the court challenge, they might not see it as the same priority. Having said that, I’m sure they are looking at all of the options.”

However, North Stormont’s political representatives doubt the will of local residents to pursue these matters further, as township council voted 4-1 this week against a resolution urging the minister to appeal the Divisional Court decision.

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