CITATION: Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935
DIVISIONAL COURT FILE NO.: 528/10
DATE: 20131112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ADA LOCKRIDGE and RONALD PLAIN
Applicants
- and -
DIRECTOR, MINISTRY OF THE
ENVIRONMENT, HER MAJESTY THE
QUEEN IN RIGHT OF ONTARIO, AS
REPRESENTED BY THE MINISTER OF
THE ENVIRONMENT, THE ATTORNEY
GENERAL OF ONTARIO and SUNCOR
ENERGY PRODUCTS INC.
Respondents
Justin Duncan, Lara Tessaro, Margot
Venton, for the Applicants, Moving Party
Jack Coop, Jennifer Fairfax, Lindsay
Rauccio, for the Respondent, Suncor Energy Products Inc.
Robin Basu, Matthew Horner, Lise Favreau, Kristin Smith, for the Respondent, Director, Ministry of the Environment, Her Majesty the Queen in right of Ontario, as represented by the Minister of the Environment, the Attorney General of Ontario
HEARD: September 9, 2013
Harvison Young J.
[1] The applicants, Ada Lockridge and Ronald Plain, brought a motion seeking an order granting them leave to file seven reply affidavits, which I heard on September 9, 2013.
[2] Initially, there appeared to be two issues. The first issue was whether, in light of the litigation schedule in place pursuant to my order dated November 23, 2012, the applicants were entitled to file reply affidavits at all. The second issue was, assuming that the answer to the first issue is “yes”, whether the affidavits filed constituted proper reply.
[3] With respect to the first issue, the litigation schedule contemplated that cross-examination would be completed by September 30, 2013. In fact, it has not yet begun. In any event, the parties now agree that my order dated November 23, 2012, did not preclude the filing of otherwise proper reply evidence and I find that that order did not do so. Accordingly, the only issue is whether the reply affidavit evidence filed is proper.
[4] The respondents Suncor Energy Products Inc. (“Suncor”) and The Director, Ministry of the Environment, Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Environment, the Attorney General of Ontario (the “Director”) raise a number of objections to all or many paragraphs in each of the seven affidavits that the applicants seek to file. The grounds the respondents raise are set out at para. 1 of Suncor’s factum:
The vast majority of the Applicants’ proposed reply evidence is not proper reply and should not be permitted for one or more of the following reasons:
(a) It consists of confirmatory or clarifying evidence which seeks to expand upon (or quote verbatim from) points already made in the Application Record;
(b) It relies upon documents that were already in existence and available to the Applicants prior to tendering their initial evidence in April 2011, and ought to have been submitted then. In fact, the Applicants, themselves, admit that they had some of these documents in their possession as early as February 2010;
(c) It relies upon additional studies and publications, all but one or potentially two of which predate the Applicants’ initial expert reports sworn in April 2011;
(d) It is not responsive to the Respondents’ evidence (to which it purports to reply), nor is it responsive or relevant to the issues on the application;
(e) It raises new issues, not previously in issue and not raised by the Respondents;
(f) It seeks to re-introduce evidence that was already struck out by this Honourable Court as inadmissible on an earlier preliminary motion;
(g) It contains improper speculation; and,
(h) The expert reports are longer than, if not the same or similar length as, their original reports. This is a tell-tale sign that something is amiss.
[5] This motion is reminiscent of the motion brought by the respondents in 2012 to strike the application or, in the alternative, to strike the affidavits: see Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316, 350 D.L.R. (4th) 720, in which the respondents took issue with the admissibility of hundreds of paragraphs of affidavit evidence submitted by the applicants. There, as here, I was grateful for the cooperation of counsel in submitting a chart that sets out each paragraph to which the respondents object and indicates the basis of objection. I note that the grounds of objection raised by the respondents were generally consistent as among themselves. I am particularly grateful for the consolidated chart that shows each paragraph with the objections of all respondents on the same chart. The chart submitted is 54 pages in length.
[6] At the beginning of the hearing on this motion, I proposed, and counsel agreed, that I would set out the general principles to be applied in considering whether the reply evidence was proper, and then indicate very briefly my ruling on each paragraph objected to on the chart. Accordingly, these reasons will consist of a summary of the principles I apply to the determinations, and the chart containing the rulings with respect to each paragraph will be annexed as Appendix A.
The Parties’ Submissions on the Applicable Standard
[7] The applicants submit that the court should apply a “liberal and flexible approach”, consistent with the rule that any application party can submit affidavits at any time prior to commencing cross-examinations: see Rules of Civil Procedure, r. 1.04, 37 to 39, and 68. In support, they cite Friends of Lansdowne v. Ottawa (City), 2011 ONSC 1015, and Melrose Homes Ltd. v. Donald Construction Ltd., [2000] O.J. No. 5275 (S.C.). Friends of Lansdowne involved an application to quash certain by-laws. Master MacLeod noted, at paras. 55 to 56, that “ordinarily either party is at liberty to serve affidavits up until cross-examinations commence,” but when a case management order sets out the timing and order for each side’s affidavits,
the parties are intended to proceed in a manner similar to a trial. As such, reply evidence should be limited to proper reply. That is it should respond to evidence raised by the other party and it should not be evidence that ought to have been submitted in the first place. Though that was clearly the intent of the [case management] order [issued there], procedural orders are intended to bring order to the proceedings and ensure fairness. They are not intended to be rigidly applied so as to suppress evidence that may be important. Striking the affidavits is a simplistic response. [Footnotes omitted.]
[8] In Melrose Homes, the applicant filed a reply affidavit beyond the time permitted in the case management order but before cross-examinations had begun. Master Polika considered only whether the applicant had engaged in improper case-splitting. He declined to exclude the affidavit because, at para. 16, the affidavit responded to new evidence introduced by the respondent’s deponent and the respondent had the ability to cross-examine the affiant.
[9] The applicants submit that their motion should be allowed because (a) the evidence will assist the court by ensuring a complete record; (b) there can be no prejudice to the respondents because cross-examinations have not yet begun; and (c) the supplementary affidavits constitute true reply, i.e., they introduce no new issues, and respond only to matters raised by the respondents or “to new evidence not previously available to the Applicants”.
[10] The Director’s position as to the applicable standard was not entirely clear. The Director states that the four elements in Merck-Frosst - Schering Pharma GP v. Canada (Minister of Health), 2009 FC 914, 78 C.P.R. (4th) 100, constitute the governing test for determining whether to allow reply evidence. That test looks to whether the reply evidence (a) serves the interests of justice; (b) assists the court in making its determination on the merits; (c) would cause substantial or serious prejudice to the other side; and (d) was available and/or could not have been anticipated as being relevant at an earlier date: Merck-Frosst, at para. 10.
[11] The Director continues to state that a stricter standard than the one proposed by the applicants should apply, and that the strict standard should reflect the scope-limiting principles found in my reasons in Lockridge, supra. The Director does not explicitly endorse the Merck-Frosst test as the stricter standard it seeks, and its analysis does not address all of the components of that test. On the other hand, the applicants’ arguments do address each of the test’s elements, albeit without stating they are doing so.
[12] Suncor proposes the strictest test of the three parties on the grounds that the application is already complex and lengthy, a judicial review application should be dealt with expeditiously and the court has established a timetable and case management order. It submits that the court’s sole inquiry should be whether the applicants’ evidence is “proper reply” as that term is understood in the context of a trial, emphasizing that proper reply evidence is evidence that is responsive to a new issue raised by the respondent that the applicant had no prior opportunity to address and which the applicant could not reasonably have anticipated.
[13] To that end, Suncor’s submissions focus almost exclusively on what it sees as the improper case-splitting and non-responsive features of the applicants’ reply evidence. Suncor does not address the Merck-Frosst test from the Director’s factum. Likewise, Suncor cites the above-quoted language in Friends of Lansdowne but does not reflect Master MacLeod’s caution that the goal of applying a stricter standard when there is a case management order is to bring order and ensure fairness, and not “to suppress evidence that may be important.”
Principles for Adducing Reply Evidence
Proper reply in the strictest sense, i.e., at trial
[14] It may be most helpful to begin with the strictest principles for adducing reply evidence, namely, those that apply during a trial or similar hearing on the merits. The rules are well established: see John Sopinka et al, The Law of Evidence in Canada, 3rd ed. (Toronto, ON: LexisNexis, 2009), at pp. 1165-68.
a. Case splitting: Under the rule against case splitting, reply evidence cannot simply confirm the evidence presented in the party’s case in chief. “It is well settled that where there is a single issue only to be tried, the party beginning must exhaust his evidence in the first instance and may not split his case by first relying on prima facie proof, and when this has been shaken by his adversary, adducing confirmatory evidence”: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., 1966 282 (ON CA), [1967] 1 O.R. 18 (C.A.), at p. 21.
b. New issues: The reply evidence cannot introduce any new issues; it must respond only to those matters raised by the defendant:[^1] see R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466, at p. 474.
c. Unanticipated need: The replying party can only offer evidence that it could not have anticipated as being relevant when it presented its case in chief: Krause, at p. 474; and Halford v. Seed Hawk Inc., 2003 FCT 141, 24 C.P.R. (4th) 220, at paras. 15-16 (reserving discretion to admit it anyway).
d. New evidence not previously available: On occasion, a party wishes, after the close of its case at trial, to introduce new evidence that was not previously available. This is not strictly reply evidence, but rather newly-discovered evidence. Sopinka, at p. 1170, states that in civil cases the court’s discretion to permit this
should be exercised in light of the broad principles which are the basis for the restriction on reply evidence. These principles are designed to ensure that the defendant knows the case to be met and that the plaintiff is not permitted to split his or her case. The rationale for the latter principle is that trials should not be unduly prolonged by creating a need for surrebuttal. Within these broad parameters, the trial judge has discretion to permit reply evidence when it is the reasonable and proper course to follow.
[15] As indicated by Sopinka, these rules are designed to prevent prejudice and unfair surprise to either side and to avoid confusion and unnecessary delay in the presentation of the evidence within the strictures of trial: Krause, at pp. 473-74. When adhering to the above-stated principles, rebuttal “will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other”: Krause, at p. 474.
Adducing reply evidence on an application prior to trial or a hearing on the merits
[16] There is less chance of prejudice, unfair surprise, confusion, and undue delay when reply evidence is offered on an application prior to the hearing on the merits than when the parties have already put their case in chief before the decisionmaker. Indeed, each party’s ability to make full submissions and defence at the determination stage depends on each party receiving a fair (and properly scoped) opportunity to develop the record in advance. Thus, as demonstrated below, the standard for permissible reply evidence is less strict when the evidence is introduced well in advance of a hearing on the merits, particularly when cross-examinations have not yet begun.
[17] For example, in Mead Johnson Canada v. Ontario (Ministry of Health) (1999), 117 O.A.C. 121 (Div. Ct.), Sharpe J. considered supplemental affidavits filed by the applicant on an application for judicial review before cross-examinations had begun. Sharpe J. stated, at para. 7:
I would also reject the argument that the impugned material should be struck on the basis that the applicant has improperly split its case. The impugned material is filed in response to material filed by Abbott which was not named in the initial application but rather, was added as a party respondent on its own motion. There has been no cross-examination to date and I fail to see how there is any unfairness or prejudice in permitting the applicant to file this material by way of reply. The situation is plainly distinguishable from that which exists at trial where prejudice may well occur if a party does not put its entire case forward in chief; compare Allcock Laight and Westwood Ltd. v. Patten, Bernard and [Dynamic] Displays Ltd., 1966 282 (ON CA), [1967] 1 O.R. 18 (C.A). [Emphasis added.]
Accord Melrose Homes, at para. 16.
[18] In Abbott Laboratories v. Canada (Minister of Health), 2003 FC 1512, at paras. 19 and 21, Heneghan J. expressed a similar view:
In my opinion, the strict test characterizing reply evidence in a trial does not necessarily apply in respect of proceedings taken … by way of application….
Abbott here is attempting to impose a technical, legalistic meaning on the words ‘proper proceeding reply evidence’ which is unwarranted. This is an application for judicial review, it is not a trial and the general rules concerning admissibility of evidence do not apply.
[19] Even when the proceeding is an action and not an application, some courts have applied a lower threshold for adducing reply evidence before trial. In Cannon v. Funds for Canada Foundation, 2011 ONSC 2960, Strathy J. (as he then was) allowed the plaintiffs to file an affidavit as a supplement to their motion record on a motion for class certification, and he gave leave to the defendants to file sur-reply. The plaintiffs had asked the court to apply a more lenient test for reply evidence on a motion than that which exists at trial. Strathy J. stated, at paras. 16 to 18:
The point is a fair one. The rule against case-splitting, in the trial context, is designed to prevent unfairness to the opposite party who has no chance to reply to the “surprise” evidence. In the motions context, the unfairness can be mitigated by giving the disadvantaged party an opportunity to respond, possibly with appropriate time extensions or costs consequences.
That being said, class proceedings are case managed and important motions like certification or summary judgment are invariably subject to a timetable that requires each party to think carefully about the evidence it will produce. It can be unfair, inefficient and expensive for one party – whether through inadvertence, lack of foresight or deliberate tactics – to introduce new and unanticipated evidence at a late stage in the proceedings.
Ultimately, it is a balancing exercise, with the goal of ensuring that each party has a fair opportunity to present its case and to respond to the case put forward by the other party.
Compare Pollack v. Advanced Medical Optics, Inc., 2011 ONSC 850, 16 C.P.C. (7th) 316, in which Strathy J. declined to permit reply evidence on a motion for class certification. In Pollack, when the plaintiffs submitted the challenged affidavit, the parties were one week away from the certification hearing, had long ago agreed not to conduct cross-examinations and had exchanged evidence only on a limited issue, and the plaintiffs had already submitted reply evidence once before: Pollack, at paras. 6-8, 13. The challenged affidavit raised a new issue, was hearsay and improper opinion evidence and was not, by the plaintiffs’ own admission, “reply evidence”: Pollack, at paras. 13, 30-31, 38, 51. Strathy J. ultimately struck the affidavit “without prejudice to the entitlement of the plaintiffs to move, after certification, to amend the common issues, on a proper evidentiary basis” to include the new issue raised in the struck affidavit: Pollack, at para. 54.
[20] As a general rule, the parties to an application may exchange affidavits in any order until cross-examinations begin: see Rule 39.02(2); Friends of Lansdowne, at para. 55.
[21] A case management order may restrain this liberty. Because the case management order is meant to ensure order and fairness to both sides in an otherwise costly and complex matter, the parties subject to such an order “are intended to proceed in a manner similar to a trial…. That is it [the reply evidence] should respond to evidence raised by the other party and it should not be evidence that ought to have been submitted in the first place”: Friends of Lansdowne, at para. 56. The court may engage in a balancing test to determine whether the reply evidence should be adduced, weighing the need for the orderly exchange of evidence and fairness to the opposing party against the need not to apply the rules so rigidly as to exclude important evidence: Friends of Lansdowne, at para. 56. C.f. Cannon, at paras. 16-18. But see Burton v. Oakville (Town) (2004), 2004 18068 (ON SC), 69 O.R. (3d) 771 (S.C.), at para. 23 (striking a late-filed reply affidavit in a case-managed application to quash election results because the affidavit raised a new issue, contained inadmissible evidence, was not helpful to the court, and given the special need in election result cases to proceed expeditiously and orderly).
[22] However, the present case is not one in which it may fairly be claimed that the filing of the reply evidence flies in the face of the case management order. As noted above, my order of November 23, 2012, did not preclude the filing of otherwise proper reply evidence and was silent on the schedule for doing so.
[23] Once cross-examinations begin, the standard for reply evidence is higher but still not the same as at trial. Rule 39.02(2) of the Rules of Civil Procedure requires that, once a party has begun to cross-examine the opposing party’s affiants, that party must obtain leave of the court or consent before adducing any additional affidavits. This rule applies to applications for judicial review as well as standard applications: see Arfanis v. University of Ottawa (2004), 7 C.P.C. (6th) 371 (Ont. S.C.).
[24] When deciding whether to grant leave under Rule 39.02(2), the court must ask the following:
Is the evidence relevant?
Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?
Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?
First Capital Reality Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at para. 13. “A flexible, contextual approach is to be taken …, having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute”: ibid., at para. 14.
[25] Here, of course, cross-examinations have not yet begun.
[26] In the Federal Court, an applicant must seek leave of the court to file a reply or supplemental affidavit in every application: Federal Court Rules, r. 312(a). This is a stricter rule than the rule in Ontario because it applies without regard to whether cross-examinations have begun. However, the Federal Court’s test for granting leave reflects principles similar to those found in the Ontario jurisprudence.
[27] Although Merck-Frosst, which the Director cited, applied a four-factor test, the Federal Court has since added undue delay as a fifth consideration: Janssen-Ortho Inc. v. Apotex Inc., 2010 FC 81, at para. 33. Therefore, when evaluating an applicant’s request to file reply or supplemental affidavits, the Federal Court judge asks whether the reply evidence
(i) serves the interests of justice;
(ii) assists the court in making its determination on the merits;
(iii) will cause substantial or serious prejudice to the other side;
(iv) was available and/or could not be anticipated as being relevant at an earlier date; and
(v) would cause an undue delay in the proceeding.
Janssen-Ortho, at para. 33. These factors afford the judge “‘vast discretion’” that “‘is incompatible with a mechanical application of any set test or formula’” (citation omitted): Canada (Attorney General) v. United States Steel Corp., 2011 FC 742, at para. 27. “‘The factors mentioned above are not exhaustive and the jurisprudence does not prescribe how they are to be weighed by the judge or the prothonotary. Further, because each decision is discretionary and will be fact-specific, there may be other factors in any given case’” (citation omitted): ibid.
[28] With respect to the fourth element, the court in Merck-Frosst, at paras. 23 to 25, identified a two-step approach to evaluate whether the evidence should have been introduced earlier:
The first step is to ask whether the proposed evidence is properly responsive to the other party’s evidence. It is responsive if it is not a mere statement of counter-opinion but provides evidence that critiques, rebuts, challenges, refutes, or disproves the opposite party’s evidence. It is not responsive if it merely repeats or reinforces evidence that the party initially filed.
If the proposed evidence is found to be responsive, one must then ask whether it could have been anticipated as being relevant at an earlier date. If it could have been anticipated earlier to be relevant, then it is being offered in an attempt to strengthen one’s position by introducing new evidence that could and should have been included in the initial affidavit. Such evidence is not proper reply evidence as the party proposing to file it is splitting his case. A party must put his best case forward for the other to meet, he cannot lie in the weed and after the party opposite has responded file additional evidence to bolster his case in light of the defence that has been mounted. It is improper because it could have been filed in the initial instance and the other party now has no opportunity to respond to it.
[29] In other words, according to Merck-Frosst, concerns about unfairness, inefficiency, and confusion that can result from non-proper reply evidence do not fall away. Purely confirmatory evidence is barred and the evidence must be responsive to the respondent’s case for leave to be granted under rule 312(a) of the Federal Court Rules.
[30] No court in Ontario has applied the Federal Court’s test, though one Ontario tribunal has: 1775091 Ontario Inc. (c.o.b. Canadian Best Auto Inc.) (Re), [2012] O.L.A.T.D. No. 173, at para. 10 (concerning reply evidence introduced during a hearing before the Registrar of Motor Vehicles).
The principles to be applied
[31] On the basis of the foregoing, the following principles will be applied to the present motion and the respondents’ objections. The court will consider the potential prejudice and unfair surprise to the respondents; whether the evidence is responsive to the respondents’ case or is merely confirmatory; whether the evidence will assist the court in making its determination on the merits; whether the evidence was available and/or could not have been anticipated as being relevant at the time the application was filed; and the applicants’ reasons for their delay in adducing the evidence. To the extent the respondents object on the grounds that the reply affidavits contain irrelevant, speculative, or argumentative evidence, I have applied the principles stated in my judgment on the respondents’ earlier motion to strike: see Lockridge, supra. The goal will be to ensure that each party has a fair opportunity to prepare its case and its response to the other side’s evidence.
[32] I decline the respondents’ invitation to apply the strict test for reply evidence adduced at trial or (in an application) after cross-examinations are complete. Such a standard is not justified in the present circumstances. There can be little prejudice or unfair surprise to the respondents at this stage of the case, especially because the parties will have the opportunity to conduct cross-examinations. With respect to cross-examination, note that any reference in my dispositions in Appendix A to the parties’ ability to cross-examine an affiant on a particular point should not be interpreted as expanding or restricting the scope of otherwise-permissible cross-examination.
[33] Suncor has requested leave to file sur-reply to certain paragraphs of the applicants’ reply affidavits. I have noted the disposition of these requests in the chart annexed as Appendix A. When sur-reply is permitted, it should be filed promptly. The parties are expected to confer with each other to establish a specific deadline for filing the sur-reply. In the absence of an agreement on the timeline, the parties may make brief submissions to me in writing or arrange a conference call with me, which might also address other scheduling issues arising in light of the changed timetable.
[34] If the parties are unable to agree as to the costs of this motion, they may make brief submissions to me on a timetable to be agreed upon among themselves.
Harvison Young J.
Released: November 12, 2013
CITATION: Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935
DIVISIONAL COURT FILE NO.: 528/10
DATE: 20131112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ADA LOCKRIDGE and RONALD PLAIN
Applicants
- and -
DIRECTOR, MINISTRY OF THE
ENVIRONMENT, HER MAJESTY THE
QUEEN IN RIGHT OF ONTARIO, AS
REPRESENTED BY THE MINISTER OF
THE ENVIRONMENT, THE ATTORNEY
GENERAL OF ONTARIO and SUNCOR
ENERGY PRODUCTS INC.
Respondents
REASONS FOR JUDGMENT
Harvison Young J.
Released: November 12, 2013
APPENDIX A”
CONSOLIDATED CHART OF THE OBJECTIONS TO THE APPLICANTS’ PROPOSED REPLY EVIDENCE
OF THE RESPONDENTS, HMQO and SUNCOR
A. AFFIDAVIT OF DR. MANUEL REIMER
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor Energy Products Inc. (“Suncor”)
Entire affidavit and report,
p. 33
Question posed: Throughout the expert reports filed by the Respondent Suncor, it is asserted that you and other experts retained by the Applicants were working from an improper assumption that the Decision resulted in an increase in refinery production, and ergo an increase in pollution from the entire refinery. This allegation that you misunderstood what the actual Decision related to is repeated at numerous other places in Suncor’s expert reports and affidavits. Can you confirm your understanding of the Decision at issue in this case?
Response: While your wording in the court document could have been interpreted to imply that you were referring to general production at Suncor’s refinery plant, it was very clear through direct communication with you as well as the applicants and my personal visit to Sarnia that the director’s decision was about allowing a 25% increase of production for a specific stack at the sulphur recovery unit at Suncor’s refinery in Sarnia. Thus, my opinion was based on that knowledge and understanding.
Entire affidavit and report
Confirmatory evidence and/or case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.).
Unresponsive – responding to unspecified evidence: Eli Lilly Canada Inc. v. Apotex Inc., 2006 FC 953 (T.D., P.C.).
Cross-references to Suncor’s factum: Paras. 24-25, 35, and 49(a)
Permitted.
This is not confirmatory but addresses a question regarding Dr. Reimer’s premises, which was directly put in issue by the Lynch affidavit.
B. AFFIDAVIT OF WILLIAM AUBERLE
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor and Her Majesty the Queen in Right of Ontario (“HMQO”)
Q.1, p. 37
Question 1: Throughout his affidavit, including at p. 9, Peter Lynch states that the Applicants have “fundamentally confused sulphur production levels with the overall processing capacity of Plant 4.” Peter Lynch states in his affidavit that there was no change in the volume of the product produced as a result of the decision to allow an increase in sulphur production. Can you clarify your understanding of the decision?
Response: Based on the data provided by Mr. Lynch, it does appear that overall fuel production at the facility is independent of sulphur production, and thus that the increase in sulphur production allowed by the April 2010 MOE decision does not necessarily involve an increase in fuel production. It should be noted, however, that in two letters from Suncor and their consultant Jacques Whitford to the MOE dated August 13th and August 14th of 2008, they strongly imply that overall fuel production had been limited by the enforced reduction in sulphur production. Copies of these two letters were provided to me by Dr. Elaine Macdonald, and I understand she will be attaching these letters to her own reply affidavit.
Inadmissible Evidence: impermissible speculation
Entire question & answer is improper
Confirmatory evidence and/or case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Evidence was available to the Applicants prior to filing their Application Record, and ought to have been submitted in chief: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Improper speculation.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 24-25,29-30,32-34,49(b),50,51(a),55 and57
Permitted.
The reasoning in the disposition above regarding Dr. Reimer’s affidavit applies here as well. The relationship of sulphur production to overall fuel production is central to this application for judicial review, and Peter Lynch’s materials suggesting misunderstandings of this relationship, are important to issues to be decided.
This is not confirmatory evidence, just clarifying. I do not accept that it is speculative. These are expert opinions. Such positions may be explored on cross-examination, and the panel may determine their weight. It should be permitted.
Sur-reply on this point is allowed because the point is central and should be before the court. The panel may determine the evidence’s relevance.
Suncor and HMQO
Q.2, p. 37
Question 2: Throughout their affidavits, including at pgs. 14, 34 and 44 of the report of Gregory Crooks and Michael Murphy and page 55 (paragraph 141) of the affidavit of Peter Lynch, the Respondents assert that the only relevant pollutants affected by the decision were SO2 and H2S. Exhibits 19 and 22 of the affidavit of Peter Lynch attach new information about emissions from the sulphur plant. Can you comment on this new data and what it tells us about the pollutants from the sulphur plant affected by the decision?
Response: Exhibits 19 and 22 of the affidavit of Peter Lynch describe emissions of pollutants other than SO2 and H2S from Plant 4, which contains the desulphurization unit. In particular, they detail a number of volatile organic compounds (VOCs) which can be emitted as "fugitives" from leaks in valves, flanges, and seals. Page 629 of Mr. Lynch's exhibit 22, for example, lists VOCs such as toluene, ethylbenzene, and xylene among these potential fugitives. With regard to the decision to allow for increased sulphur production in Plant 4, it is likely that increased throughput of Plant 4 would result in increased fugitive emissions of these pollutants.
Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled on many of these issues.
Inadmissible Evidence: Speculative as to the effect of fugitive gasses
Entire answer is improper
Evidence was available to the Applicants prior to filing their Application Record, and ought to have been submitted in chief: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
New issues or arguments cannot be raised in reply: Ontario (Burton v. Town of Oakville, 2004 18068 (ON SC)).
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 29-30,32-34,50,51(a),54(a),55 and 57
Permitted.
It is unfair, on the one hand, to criticize the applicants for their failure to focus on sulphur production as compared to overall fuel production and then to refuse to permit clarification on this issue.
Moreover, this is directly responsive to the Lynch affidavit regarding emissions from the sulphur plant.
Sur-reply by Suncor is permitted.
Suncor
Q.3, pp. 37-38
Question 3: In the affidavit of Peter Lynch at page 11 (paragraph 23), page 50 (paragraph 130), and exhibits 59 and 60, and the affidavit of Michael Parker at page 22 (paragraph 81) and 2 exhibit CC, they discuss the addition of lift gas to the flare stack at Plant 3 to disperse sulphur dioxide during flaring. Can you comment on the relationship between the Decision and the use of lift gas?
Response: The addition of lift gas to the Plant 3 flare was intended to allow the facility to increase its sulphur production and still meet the POI standards during an upset condition. By creating the higher gas velocity and a hotter exit velocity, the exhaust gases are more buoyant, and the pollutants are dispersed more widely. This is a reprise of the adage that “the solution to pollution is dilution,” and although the addition of lift does indeed decrease POI concentrations, particularly for nearby receptors, the overall mass emissions to the air actually are increased as burning the lift gas adds additional pollutants to the air. ...
Entire question & answer is improper
Question is not responsive to this application for judicial review: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Answer is not responsive to the evidence to which it purports to reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence was available to the Applicants prior to filing their Application Record, and ought to have been submitted in chief: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 29-30,32-35, 50,51(a),52,53(a),55 and57
Permitted.
This is relevant to this application for judicial review. Strictly speaking, it was available to applicants before filing their application record. But in the interests of justice, fairness, and focusing the issues, I would allow it. There has been no cross-examination, there is no surprise and there is no prejudice as the respondents clearly have been alive to the issues being about sulphur production and not overall fuel production.
Sur-reply is permitted on this point.
Suncor
Q.4,
p. 38
Question 4: Throughout their affidavits ..., the Respondents assert that the original Certificate of Approval for the sulphur plant authorizes the plant to process up to 250 tonnes per day of sulphur ... Can you comment on the factual accuracy of these witnesses’ evidence that the Certificate of Approval authorizes the plant to process up to 250 tonnes per day of Sulphur?
Response: From my reading of the original Certificate of Approval there is no authorization contained therein for the plant to process any specific amount of sulphur.
Entire question & answer is improper
New issues or arguments cannot be raised in reply: Ontario (Burton v. Town of Oakville, 2004 18068 (ON SC)).
In the alternative, if permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 32-34,50, 51(a),55 and57
Not permitted.
I note that the applicants will have the opportunity to cross-examine the respondents’ affiants on these points if they wish.
HMQO and Suncor
Q.5,
p.38
Question 5: In section 4(b) on O. Reg 419/05 (pages 4 to 7) of his affidavit, Michael Parker describes the new air standards under O. Reg 419/05 and uses the term "more stringent" when comparing to the standards under Regulation 346. In the same section Michael Parker refers to the change that occurred in the SO2 standard from Regulation 346 to O. Reg. 419/05. In this discussion Mr. Parker references an "Air Dispersion Modelling Guideline for Ontario" (attached as exhibit D to his Affidavit), which includes Section 4. 4 titled"Averaging Period (Conversion Factor)". Can you comment on the accuracy of Michael Parker's discussion of the change to the SO2 standard?
Response: In contrast to the statement made by Mr. Parker in his affidavit that the change in allowable SO2 POI concentrations from the older Regulation 346 to the newer Regulation 419/05 results in a more stringent standard, there is no substantial change to the standard in the new regulation (and in fact the new value is actually slightly less stringent than the original standard). Section 4.4 of
the "Air Dispersion Modelling Guideline for Ontario" document referenced by Mr. Parker in his affidavit presents calculations to convert data modeled with the dispersion model AERMOD over 1 hour (as required in Regulation 419/05) to the equivalent value averaged over 30 minutes (as in the older Regulation 346 standard). According to the calculations therein 1-hour AERMOD values can be converted to 30-minute values by dividing the 1-hour number by the factor 0.5. Thus with the new 1-hour standard for SO2 of 690 µg/m3 the equivalent 30-minute value becomes 838 µg/m3, which is slightly higher (and thus less stringent) than the old Regulation 346 standard of 830 µg/m3 averaged over 30 minutes.
Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled on many of these issues.
In the Motion to Strike Decision, the Court determined that the nature of O. Reg 419/05 is not relevant to determining the application.
Suncor adopted HMQO’s objection at the hearing.
Permitted.
Suncor
Q.6,
p. 39
Question 6:... Can you comment on the failure analysis around flaring presented in these documents and Gregory Crooks’ and Michael Murphy’s discussion of flaring and the 2010 [Technology Benchmarking] Report?
Response:... Of primary importance is that these predictions are made based on the likelihood of equipment failure only, and do not take into account process upsets, operator errors, or maintenance and engineering errors.(3). ... and thus the actual rate of failures can often be much higher than the predictions. ... points out the dubious nature of such predictions.
Evidence was available to the Applicants prior to filing their Application Record, and ought to have been submitted in chief: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 29-30, 50, 51(a), 55 and 57
Permitted.
This is directly put in issue by the respondent’s materials.
No sur-reply is permitted on this point.
HMQO
Q.7
p. 39
Question 7: Please review the Final Report- Phase 1 Suncor Sarnia Refinery's Reliability and Capacity of Sulphur Recovery Units for Removing H2S, attached as exhibit 49 of the affidavit of Peter Lynch and discussed by Peter Lynch on pages 42 and 43. Can you comment on Peter Lynch 's characterization of the report?
Response: In paragraph 113 of Mr. Lynch's affidavit (page 43) he summarizes the conclusions of the report commissioned by the MOE and conducted by Environmental Health Strategies to examine the ability of the plant to minimize acid gas flaring and appropriately handle the acid gas coming in from the sour water stripper and amine units. His summary casts the report writers' conclusions in a particularly positive light, and downplays the seriousness of the second part of the conclusions. He is correct in noting that the report found that "Suncor had addressed or had plans to address the vast majority of ... problems that led to process upsets since the start-up of the Sulphur Plant in 2007." But whereas Mr. Lynch's summary of the second part of the conclusions is that "The EHS Final Report made some recommendations to optimize the redundancy of the
Sulphur Plant, which were investigated by Suncor" the text in question actually reads "In order to achieve the level of reliability that is practiced elsewhere, Suncor should provide significant redundancies in its SRU operational design." Clearly the report writers felt that Suncor should do more to provide for safe, reliable operation of the plant, and Mr. Lynch's assertion that the report "concluded that the Sulphur Plant is capable of operating safely at a production rate of 180 tonnes per day" is not supported by the report's actual contents.
Improper Reply: Evidence was available at outset and its relevance could have been anticipated.
Inadmissible Evidence: Argumentative
HMQO objection withdrawn at the hearing
Permitted.
The panel can determine the weight of the evidence.
C. AFFIDAVIT OF DAVID CARPENTER
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor
Q.1,
p.44
Question 1: Throughout the expert reports, and in particular at a paragraph 96 of Dr. Mundt’s report, he states: Dr. Carpenter appears to be working from an improper assumption that the Decision ... resulted in an increase in refinery production, and ergo an increase in pollution. This alleged improper assumption is repeated at paragraphs 146 and 154 of the Mundt Report. A similar statement is made at paragraph 33 (page 2262) of the Report of Dr. Mary McDaniels [sic]; pages 1899, 1994 and 1999 of the report of Dr. Ollson, and at page 36 of the affidavit of Peter Lynch. Can you confirm your understanding of the Decision at issue in this case?
Response: These reports are making a completely incorrect assumption. My understanding of the Decision is that Suncor was approved to increase sulfur production from 145 to 180 tons production per day, but that overall fuel product production from the plant was not changed. The Decision did not alter requirements on emission of other pollutants. This has nothing to do with the mix of crude oils process. See the expert report of Mr. William M. Auberle.
Entire Affidavit and Reply Report
Entire question & answer is improper
Confirmatory evidence and/or case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and 49(c)
Permitted for the same reasons as regarding the affidavits of Dr. Reimer and Mr. Auberle.
Suncor and HMQO
Q. 2 (second bullet),
pp. 44-45
Question 2: In his report, Dr. Ollson conducts a risk assessment of exposure to SO2 and total reduced sulphur (TRS) and finds that there is no cumulative risk for individuals or population as a whole as a result of the Director's 2010 decisions (page 1956).
- Could you reply to this conclusion in particular with reference to the document "Letter on Potential Human Health Effects Associated with theoretical Acid Gas flaring Scenarios" (Golder Associates Report) attached as Exhibit EE to the affidavit of Michael Parker that we have provided to you?
Response: Dr. Ollson’s “risk assessment” is not a real risk assessment and is inadequate to evaluate cumulative health risk to the applicants. ... Dr. Olsson’s [sic] risk assessment is inadequate and without merit.
With regard to the second question, the Golder Associates report presents data on predicted SO2 and H2S levels associated with flaring events. They specifically admit that acid gas flaring will result in "notable discomfort or irritation". This is not a trivial issue! Nearby residents who live near Suncor will experience respiratory irritation as well as stress from the smell and discomfort. The Minister of the Environment (MOE) review of the Golder Report notes that many of the complaints resulting from elevations in SO2 levels in their Sudbury studies are not associated
with exceedances above the 858 µg/m3 30 min limit, but rather are related to short duration peaks of high concentrations of SO2 falling to the ground. They note specifically that these short term SO2 peaks have been correlated with potential health effects in susceptible populations such as the young, the elderly and people with respiratory disease, and note that Golder Associates has not considered short term exposures. They conclude that levels of SO2 in the range of 286-1430 µg/m3 and above for time periods as short as 5 min can adversely affect asthmatic individuals. They state that MOE data show that asthmatics react to SO2 and H2S at levels much below the AIHA guidelines which were used. They also note that Golder Associates "has not taken odour into account in the selection of most sensitive receptors or in the evacuation plan" and has not selected asthmatics as the most sensitive population. They note specifically that the Golder Report grossly underestimate the risk of SO2 to both asthmatics and the general public.
Improper Reply: This evidence only repeats the MOE review of the Golder Report. The relevance of the evidence could have been anticipated.
Entire answer is improper
Question is not responsive to this application for judicial review: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Bare assertions, without a substantive discussion are not proper reply.
Answer is not responsive to the evidence to which it purports to reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 35, 52, 53(b), 55 and57
Permitted.
It is in the interests of justice to focus on the real and central issues of the application, as this reply evidence does in discussing sulphur dioxide and hydrogen sulfide, and not leave lingering confusion with respect to overall emissions.
Suncor is permitted to file sur-reply on this point.
Suncor and HMQO
Q. 3,
p. 46
Question 3: In his report Dr. Ollson asserts, including at page 1973 that "air quality is improving in the Sarnia area". Could you reply to this assertion, in particular with reference to new data on pollution in Aamjiwnaang First Nation (AFN) presented in exhibits K and M of the affidavit of Michael Parker?Response: As indicated above, most of the evidence that air quality in the Sarnia area is improving presented by Dr. Ollson comes from period of times prior to the increased allowable releases. In addition as documented by the affidavit of Mr. Crooks (at page 1714) it is apparent that as of 2012 Suncor has not yet increased sulphur production to the allowable limit, because the level has not changed significantly since 2008 while the limit was raised in 2010. The air quality may be improving over what it was in the past, but this is no indication that it is safe. We do not know what a "safe" level is, particularly because SO2 is present together with particulates, volatile organics, NO2 and ozone.
In addition this data is not consistent with the evidence presented in the Ontario Ministry of the Environment Technical Report on Aamjiwnaang First Nation Community Air Monitoring Station for 2011. This report finds that levels of ground level ozone, suspended particulates, and most VOCs increased upon hourly measurements, while SO2 and the total reduced sulphur decreased.
Irrelevant to Claim: Evidence not necessary to determine application. Court has already ruled that particulates and VOCs are irrelevant.
Inadmissible Evidence: impermissible speculation as to “what a safe level is.”
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Cross-references to Suncor’s factum: Paras. 29-30, 50 and51(b)
Not Permitted.
The Parker exhibits K and M were available in 2011, per paragraphs 49 and 50 of the Parker affidavit (filed as a compendium by the Director).
Suncor and HMQO
Q.4,
p.46
Question 4: In his report Dr. Mundt, at paragraph 108, states: "Dr. Carpenter provides no empirical evidence to substantiate his speculative conclusion that data demonstrate that the residents of Sarnia/Aamjiwnaang are subjected to extremely high levels of a variety of air pollutant, and this to a much greater degree than residents of the rest of Ontario." Additionally, the Dr. Ollson Report at 5.4.6 (page 1969-1971) compares SO2 concentrations in Sarnia and Hamilton and in section 7.1.1 (pages 2004-2005) critiques your comparison of pollution in Aamjiwnaany [sic] First
Nation with other communities. Can you reply to this comparison of pollution between communities in Ontario presented in these Repo11s and comment on what this evidence tells us?
Response: The World Health Organization provides information on particulate levels in all of the major cities of the world (http://www.who/int/phe/health_topics/outdoorair/databases/en/index.html). Below are listed the concentrations of PM10 in outdoor air in major Ontario cities:
Sarnia 34 µg/m3
Toronto 21 µg/m3
Peterborough 18 µg/m3
Ottawa 16 µg/m3
Cornwall 18 µg/m3
Guelph 19 µg/m3
Hamilton 24 µg/m3
Kingston 21 µg/m3
London 20 µg/m3
Sudbury 12 µg/m3
Windsor 26 µg/m3
Clearly air concentrations in Sarnia are higher than other major cities in Ontario. The comparison by Dr. Ollson of Sarnia and Hamilton is ridiculous- comparing one dirty city to another, but even here Sarnia is worse.
Improper Reply: This is adding evidence of other PM10 concentrations that was available when the applicants’ initial evidence was filed. The relevance of the evidence could have been anticipated.
Entire answer is improper
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Confirmatory evidence and/or case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Bare assertions are not proper reply.
Answer is not responsive to the application: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: Paras. 24-25, 29-30,32-33,35,49(c),52 and53(b)
Not permitted.
The evidence is not appropriate. It is not relevant and, in any event, the applicants will have the opportunity to cross-examine the respondents’ affiant on these points.
Suncor and HMQO
Q.5,
pp.47-48
Question 5: Pages 2137-2140 of the Mundt Report describes various health studies conducted for all of Lambton County. At pages 2161-2162 Dr. Mundt describes the Dunn Report which examines live birth data for the yeas [sic] 1981-2001 comparing birth rates and genders in Lambton County. Inparagraphs 131-132 and 143 of his report, Dr. Mundt is critical of your report for not referencing Lambton County health status report in your comments regarding health in the community of Aamjiwnaang First nation. Dr. Ollson similarly refers to Lambton County studies in section 6.3
to 6.5 of his report (starting on page 1979), and critiques your failure to refer to the Lambton County health studies at page 2001.
Could you reply by indicating whether county-wide studies assist in determining health effects in
AFN?
a. Can you reply to Dr. Mundt's characterization of and conclusions regarding Lambton County health status reports, including his conclusion at paragraph 80 of
his report that "these reports provide evidence that as a community the health and disease experience of the AFN is no different than Sarnia or the rest of Ontario"?
b. Can you reply to Dr. Mundt's characterization of the conclusions regarding the Dunn report at paragraphs 141-142 of his report by reading the Dunn report?
Response: The most serious health risk documented at Aamjiwnaang is that the ratio of male to female births has declined over the period 1994 to 2003 (Mackenzie et al., 2005). There has been a decline in this ratio that appears to be increasing in recent years (ratio 0.35 for the period1999-2003), whereas it was stable with the expected slightly greater percentage of male births prior to 1992 (ratio 0.58). This obviously has a very significant effect on the community. The so-called Dunn report looked at sex ratios in all of Lambton County and did not find the changes reported by Mackenzie et al. to apply to county-wide data. However Lambton County is large and has a diverse population. In contrast Aamjiwnaang is small, and has a First Nations population of about 800. Sources and extent of exposures are not the same, and the failure to detect changes in sex ratio at the county level in no way invalidates the results reported by Mackenzie et al. (2005). The Dunn report does find local differences within Lambton County, but did not report on Aamjiwnaang. Therefore this criticism is without merit.
The Community Health Survey done in 2004-2005 and the Open Houses Summary Report of January, 2011 provide information about the perception of health status in the community. Neither is a systematic survey of all community members, and thus cannot be considered to be "scientific". This does not mean, however, that these reports have no validity in assessing the concerns of the community. The earlier survey was of 263 adults and l148 children. Of this group 40% required the use of an inhaler, 17% had asthma, asthma in children under age 16 was
21% and the rate of asthma for those 12 and over was 22%, as compared to only 8.2% for Lambton county residents of the same age range. These are exceptionally elevated rates of asthma. In the US the percentage of children ages 6 to 16 with either atopic or non-atopic asthma is 6. 7% (Kelley et al., 2005). While 26% of adult reported having hypertension, this number is consistent with the report that 26.4% of adult in the world have hypertension (Appel et al., 2006). Worldwide it is estimated that over 5% of children suffer from ADHD (Polanczyk et al., 2007), as compared to 13% in this survey. Rates of smoking and alcohol consumption arc significantly higher than elsewhere in Canada, and this number may in part reflect the stress coming from living in this community. The comments from the individuals surveyed focus on the air pollution, the smells and the difficulty breathing with the resulting headaches.
While there are multiple components to the smells, certainly H2S is a major contributor.
The Open Houses Summary Report came from a series of five meetings where questions, comments and concerns were expressed. While there were a smaller number of participants, the concerns and questions were very much the same, rei1ecting worry about releases, especially to air, the constant smells, and what would be the resulting health effects. There was also a concern expressed about the ei1ect of these releases on the environment. It is important to note that Atari et al. (2009 a and b) have correlated odor annoyance scores with releases of NO2 and SO2, likely
reflecting the concomitant releases of H2S and odoriferous VOCs.
Improper Reply: The second and third paragraphs are new evidence about a Community Health Survey and Open Houses Summary Report that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated.
Entire answer is improper
Confirmatory evidence and/or case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Answer is not responsive to evidence filed by the Respondent, Suncor: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Citing more studies (particularly those that pre-date the initial report) to buttress conclusions smacks of case splitting: Eli Lilly Canada Inc v Apotex Inc., 2006 FC 953, 2006 F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence
Cross-references to Suncor’s factum: Paras. 24-26,29-33,35,49(c),50, 51(b), 55 and57
Permitted.
It is not clear that this evidence has any relevance but, as per my earlier decision regarding relevance, I would leave this issue to the panel: see Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316, 350 D.LR. (4th) 720, at paras. 81, 90.
The evidence may have been available earlier, but was struck as improper expert evidence.
Allowing this evidence will result in neither prejudice nor surprise to the respondents, and it is in the interests of justice to put the evidence before panel.
Suncor is permitted brief sur-reply.
Suncor and HMQO
Q.6,
pp.48-9
Question 6: In his report on page 2168 Dr. Mundt asserts that exposure concentrations of SO2 and H2S measured in the ambient air in Sarnia and Aamjiwnaang are not capable of causing the health effects claimed by the Applicants. Similarly Dr. McDaniel asserts on page 2270 that "in most cases the exposures necessary to result in observed health effects are much higher than the concentration of air pollutants in Sarnia and Aamjiwnaang. Can you reply to these assertions?
Response: These conclusions are simply unjustified. There is acknowledgement that these concentrations of SO2 and H2S are sufficient to cause discomfort or irritation (the Golder
Associates report). Discomfort and irritation result in stress and disease. The MOE documents based on their results from Sudbury that concentrations averaged over period of 30 min or longer will not catch shorter periods of extremely elevated concentrations of SO2 and H2S, which in their experience cause adverse health effects in sensitive population. One of the additional problems here is the issue of co-exposures with other air pollutants, because contaminated air often contains several dangerous compounds making it difficult to separate out the effects of just SO2 or H2S.
On the basis of the concentrations of SO2 documented to be present in the air at Aamjiwnaang and these documented health hazards known to result from inhalation of SO2, it is my conclusion that the residents of Aamjiwnaang are at significantly elevated risk of asthma, respiratory infections, chronic obstructive pulmonary disease and death from cardiovascular and respiratory disease. [verbatim quote from initial report]
Hydrogen Sulfide: According to the Agency for Toxic Substances and Disease Registry in their report, Toxicological Profile for Hydrogen Sulfide (2006), H2S may cause headaches, poor attention span, poor memory and poor motor function, and some of these effects may be long-term or even permanent. This report documents many animal studies showing respiratory disease when H2S was inhaled for prolonged periods.
In humans, asthmatics exposed to H2S may have difficulty breathing. Since H2S is heavier than air, children are more likely to be exposed than adults. High but short term exposure to H2S results in ocular, respiratory and neuropsychological symptoms (Haaahtela et al., 1992). In a study of symptoms in individuals living in a slightly polluted community, Partti-Pellinen et al. (1996) reported increased eye irritation, nasal irritation, cough, breathlessness, headache and migraine. The most significant symptom was headache (OR=1.82, 95% CI=1.06-31.5) and cough (OR=1.64, 95% CI=l.01-2.64). Campagna et al. (2004) found increased hospital visit for all respiratory diseases among children and for asthma in adults the day after H2S levels were elevated in study done in South Dakota. Bates et al. (1997) reported a significantly elevated death rate from respiratory diseases in New Zealand residents living in an area of high geothermal activity that emitted H2S. The latter study also documented elevations in cardiovascular disease
There is strong evidence that exposure to 1-hS can cause eye problems, particularly keratoconjunctivitis (Arnold et al., 1985; Jaakkola et al., 1990). While these effects may last for several days they are reversible provided that exposure is stopped. These studies also reported disturbed equilibrium, nausea, headache, poor memory, insomnia, irritability, delirium, severe vertigo and other neuropsychological symptoms in exposed individuals. Prolonged exposure to H2S has resulted in permanent neurobehavioral effects (Kilburn, 1997).
There is two reports suggesting a relationship between exposure to H2S and spontaneous abortion or miscarriage (Hemminki and Niemi, 1982; Xu et al., 1998). In the latter study exposure to H2S was associated with an OR=2.3 (95% CI= 1.2-4.4) for spontaneous abortion.
There is evidence that prolonged exposure to H2S leads to chronically reduced lung function and chronic obstructive lung disease (Richardson, 1995).
On the basis of the concentrations of H2S documented to be present in the air at Aamjiwnaang and these documented health hazards known to result from inhalation of H2S, it is my conclusion
that the residents of Aamjiwnaang are at significantly elevated risk of neurotoxicity, cardiac arrhythmias, and chronic eye irritations, as well as being subjected to chronic stress from the smell. [verbatim quote from initial report]
Improper Reply: The highlighted portion is new evidence the effects of H2S that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated.
Entire answer is improper (in particular, paragraphs 2 and 8 of the answer).
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Citing more studies (particularly those that pre-date the initial report) to buttress conclusions smacks of case splitting: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence
Cross-references to Suncor’s factum: Paras. 24-26,29-30,35,49(c),50, 51(b), 55 and57
Permitted, except that the objected-to verbatim quotes from the initial report are struck from the reply affidavit.
This evidence is a direct and specific response to the respondents’ assertions in their evidence.
The respondents argue that they were entitled to think that the applicants had tendered their full case when the respondents filed their response. They point to my prior decision, which did not permit the applicants to file a new application or new affidavits. The concern was that those actions would have protracted and further complicated the proceedings. But to the extent that the responding materials raised more focused issues pursuant to the “scoped” application that resulted from my prior ruling, it is not in the interests of justice or fairness to prohibit reply evidence. The respondents suffered no prejudice or surprise.
To the extent that, even in the context of the previous comments, this is confirmatory evidence that simply restates or refers to the initial report, counsel may raise this matter before the panel and it will be considered regarding the evidence’s weight. To the extent that the affidavit repeats verbatim the original report, it should be deleted.
There is no need for sur-reply.
Suncor and HMQO
Q. 7,
pp. 49-50
Question 7: At paragraph 116 (pages 2152-2153) Dr. Mundt concludes that "having air concentrations that are below the AAQC implies that, based on the scientific evidence, health effects are not anticipated as a result of these exposures.” Section 5 .3.1.4 of the Ollson Report describes the regulatory standards for SO2 (pages 1934-1940).
- Can you reply to Dr. Mundt's conclusions generally and in consideration of Table 5-2 in Dr. Ollson’s Report at page 1935 which presents various different SO2 standards?Can you comment on Dr. Ollson's comparison of the Ontario standards for SO2 to other standards?
Response: Many standards are a compromise between protection of human health and protection of economic development. As such they cannot alone be considered to indicate a level of exposure that is "safe", especially when the exposure include a residential area with infants and
children, pregnant women and the elderly and where exposure occurs 24 hours a day and seven days a week.
It is clear from the Table 5-2 in Dr. Ollson's report that different agencies have quite different standards, and that the standards vary based on duration of sampling. As discussed above the MOE had documented that very brief exposures to SO2 can result in adverse health effects even when standards for 30 min or longer exposures are not exceeded. It is clear that the WHO standards of 500 µg/m3, set in 2005, is significantly more rigorous than the MOE standard of 830 µg/m3 set in 2001, reflecting both the importance of duration of sampling and the increasing understanding of the toxicity of SO2. The most important consideration with regard to Aamjiwnaang is that the elevations in SO2 and H2S are brief but extreme events that cause health effects not identified by standards of exposure over longer periods of time.
Improper Reply: The highlighted portion is evidence about the regulatory standards that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated.
Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled that evidence about regulatory standards that are not being challenged on this application are not relevant to determining the application.
Improper speculation
Bare assertions are not proper reply.
Cross-reference to Suncor’s factum: Paras. 35, 52 and 53(b)
Permitted.
This evidence should be left to the panel: Lockridge, at para. 90.
Suncor and HMQO
Q. 8,
p. 50
Question 8: Dr. McDaniel states at paragraph 33.6 of her Report (page 2265) that ''Dr. Carpenter does not specifically say what diseases or health outcomes he believes the additional health risk will cause". Please clarify, with reference to your report, what "diseases or health outcomes" you had in mind.
Response: Most of this information is contained in my original report, together with extensive references, and those reports will not be repeated here. I have also expanded on the diseases specifically associated with SO2 and H2S exposure in answer to question 6 above. In addition there is some information which indicates that different air pollutants have different effects, which would be most consistent with additive actions. Dales et al (2006) studied hospitalization rates for neonatal respiratory disease in large Canadian cities. He reports that while the independent effect of all pollutants was OR= 9.61, that for ozone was 3.35, for NO2 was 2.85, for SO2 was 1.66 and for CO was 1.75. Thus this is consistent with the conclusion that effects are additive. Wang et al (2009) investigated cardiovascular mortality clue to SO2, NO2 and ozone in
Brisbane, Australia and found a relationship with SO2 (OR=4.7, 95% CI=0.7-8.9) but none with NO2 or ozone. Liu et al. (2009) investigated markers of oxidative stress in asthmatic children, and found relations with SO2, N02 and PM2.5, but none with ozone. Braga et al. (2001) in a
study of Brazilian children, found greater hazard from SO2 and NO2 in young children, while older children were more vulnerable to PM10 and ozone. Moolgavkar (2000) in a study in several urban areas reported that SO2 was associated with hospital admission for COPD in Los Angeles (California) and Maricopa (Phoenix, Az) counties where levels were relatively low, but not in Cook County (Chicago) where levels were high, and that this was so particularly for the youngest age group. He suggests that SO2 may be a proxy marker for a mix of air pollutants
associated with COPD hospitalization. Chiusolo et al. (2011) investigated mortality in Italian cities in relation to NO2, PM10 and ozone, and found strong relations with N02 but none with the others. In summary these various studies are most consistent with the criteria air pollutants
having independent effects on respiratory function, but when individuals are exposed to SO2, NO2, ozone and/or particulates, the effects are additive.
Improper Reply: This is new evidence that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated.
Entire question and answer is improper
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Replying to a criticism regarding the insufficiency or paucity of one’s expert by attempting to correct that insufficiency or paucity is the quintessential example of improper confirmatory reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Citing more studies (particularly those that pre-date the initial report) to buttress conclusions smacks of case splitting: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 24-26, 29-30, 35, 49(c), 50, 51(b), 55 and 57
Not permitted.
To extent the affiant is repeating what he said previously, or repeating verbatim paragraphs, this evidence should be struck. The question asks Dr. Carpenter to clarify, and to the extent he repeats the prior report, it should be struck.
To extent that the affiant refers to additional authorities that were available in 2010 that do not respond to any new points raised, this evidence should be struck.
Suncor and HMQO
Q. 9,
p. 51
Question 9: In paragraph 33.8 (page 2267) of her Report, Dr. McDaniel questions the accuracy of the community body mapping study conducted at Aamjiwnaang. Dr. Ollson, on page 1999 of his report, calls the body mapping study "unscientific". Can you comment on what utility the body mapping study might have, if any?
Response: This criticism is unwarranted. The results of this survey are the only documentation specific to the residents of Aamjiwnaang, and the clear finding that 44% of residents complain about the smell, 32% suffer from trouble breathing and 14% suffer from headaches is evidence that the odors and air pollutants are leading to elevated rates of disease. Please see the answer to question 5 above for further response.
Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled that evidence about the body mapping study should be struck.
Inadmissible Evidence: Argumentative
Entire answer is improper
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: Paras. 24-25,35and 49(c)
Permitted.
It is not fair for the respondents to assert that evidence regarding body mapping is not necessary and the reply should be struck when the issue is referred to and critiqued in Suncor’s own responding material.
Suncor
Q. 10,
p. 51
Question 10: Dr. Olsson’s [sic] report discusses potential culmulative health risks associated with respiratory irritants in section 5.4.4. (pages 1967-1969). Dr. Ollson finds that PM2.5 is the leading contributor to the risk. Can you reply to his analysis in the context of the Decision at issue in this case.
Response: … But the major concern here is what happens when emission of SO2 and H2S are increased, assuming that levels of particulates do not change or even increase. These are also hazardous substances and they interact with particulates in either additive or synergistic fashions to increase the risk of disease. These data presented both by Dr. Ollson and in my original report provide strong support for the conclusion that one cannot consider any of these air pollutants in isolation, because they interact and many of them target the same organ systems, including particularly the respiratory system. The observation that particulates are major contributors to respiratory disease, in light of clear evidence that SO2 and H2S also contribute to respiratory disease, if [sic] further proof that elevations in release of sulphur compounds should not be tolerated.
Entire question and answer is improper
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: Paras. 24-25,35 and49(c)
Permitted except that the highlighted portion is merely confirmatory and should be struck.
Suncor and HMQO
Q. 11,
pp. 51-52
Question 11: In his report Dr. Mundt describes your summary of the Intrinsik report as "inaccurate" and suggest you “falsely attribute [your] conclusions to the authors". Can you comment on the accuracy of your summary of the Intrinsik report.
Response: My statements about the Intrinsik report are accurate. Intrinsik (2010) has performed a systematic review of health effects found associated with living in proximity to petrochemical industries. This report concludes that cancer (especially lung cancer, bladder, pancreatic, brain and cancer of the lymph and blood), reproductive adverse outcomes, neurotoxic effects, asthma and respiratory infections and diseases caused by stress and anxiety are elevated in populations living near petrochemical industries, as compared to those that are not. The report acknowledges, as I do, that there are limitations in some of the studies quoted, in that often exposure assessment was measured only by residence near to the petrochemical plant and that control for socio-economic status was often imperfect. Nonetheless most of the studies identified in the systematic review document elevations in the diseases listed above. To say that this summary is "inaccurate" is totally inaccurate.
Inadmissible Evidence: Argumentative
Entire question and answer is improper
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and49(c)
Permitted.
Although this evidence is arguably confirmatory, it may be useful to focus the disagreement between the experts. To extent that it is merely confirmatory, the panel may affect decide the weight to attribute to it.
Suncor and HMQO
Q. 12,
p. 52
Question 12: In section 7.1 (pages 1994-2007), Dr. Ollson critiques your expert report. On pages 1996 Dr. Ollson states that your conclusions are "incorrect" because of “f1awed methodology and lack of any substantive quantitative analysis”. Can you clarify and explain what analysis techniques you used in coming to the opinions contained in your report?
Response: My conclusions are not incorrect and if there is any flawed methodology it is that of Dr. Ollson. My analysis is based entirely on the peer-reviewed scientific literature and
demonstrated "weight of the evidence" for human health hazards from exposure to air pollution, including that from SO2 and H2S exposure.
Inadmissible Evidence: Argumentative
Entire question and answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and49(c)
Permitted.
I would not remove this evidence. The reply evidence can be the subject of cross-examination. To the extent the statements could be seen as confirmatory or conclusory, that may well affect the weight given to them by the panel.
Suncor and HMQO
Q. 13,
p. 52
Question 13: On Page 1998, Dr. Ollson states you "cherry-picked studies". Can you explain how you selected the studies for your report?
Response: The studies I cited are results published in scientific journals of high stature and ones that report investigations that are well-designed with carefully analyzed data. This is not cherry-picking. This is my area of research and I have many publications on the effects of air pollution on human health. I know the literature extremely well and have presented studies directly relevant to the situation at Aamjiwnaang.
Inadmissible Evidence: Argumentative
Entire question and answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and49(c)
Permitted.
The evidence is appropriate and in direct response to Dr. Ollson’s (somewhat argumentative) allegation of “cherry-picking”.
D. AFFIDAVIT OF HENRY COLE
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor
Q. 2,
p. 64
Question 2: Please review the new information on emissions of various pollutants from chemical valley facilities, based on the National Pollutant Release Inventory reports for 2010 and 2011 set out in Appendix C. Based on this new information, comment on the trend since the decision in April 2010 to increase sulphur production and the accuracy of Mr. Crooks’ and Mr. Murphy’s assertions in their report regarding this new data.
Response: ... The data I used for SO2 is the National Pollutant Release Inventory (NPRI) as set out in Suncor 4 Appendix C for the period 2010 and 2011 and from the NPRI as reported in my April 2011 submittal for the period 2005-2009. The table from my April 2011 report copied below shows a decreasing trend until the 2009 period when emissions were fairly constant. ...
Entire question & answer is improper
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 29-30,35,50,51(c),55 and57
Suncor withdrew its objection to this question & answer at the hearing.
Therefore, this evidence is permitted.
Suncor and HMQO
Q. 3,
p. 66
Question 3: At page 1743-4 of the record (p. 66-7 of his report), Mr. Crooks states that "Dr. Cole provides no basis for how he arrived at his judgement that "the number and location of air quality monitors in and near the AFN is insufficient to assess the combined air quality impact of emissions ...". In reply, can you explain what caused you to reach this conclusion?
Response: As I stated in my April 2011 report, in my judgment the number and location of air quality monitors in and near the Aamjiwnaang First Nation is insufficient to assess the combined air quality impact of emissions from the numerous and large sources on residents of the Aamjiwnaang First Nation area including the Applicants. Similarly, I judge that the number and location of monitors in the area is insufficient to assess how Suncor's emissions including those
potentially occurring via MOE's April2010 decision would affect the pollutants and concentrations which expose Applicants and residents of the Aamjiwnaang First Nation area.
Moreover, the impact of specific large, sources with various release heights is further complicated by the effect of Lake Huron on the mesoscale circulation patterns and dispersion
regimes (fumigation, reduced mixing heights, plume trapping, pollutant recirculation, etc.). In addition, the monitoring network is not sufficient to determine cumulative effects of overlapping plumes as aligned under different wind and dispersion conditions. A recent paper by Brook, et al. based on an extensive series of studies of pollutants in southwestern Ontario concludes that the presence of the Great Lakes has a profound affect [sic] on the distribution of pollutants especially during frequent occurrences of Lake Breezes.[^2] In my judgment, a denser network of monitors is necessary to measure the impact of single sources such as the Suncor plant, and multiple sources such as exist and impact cumulative impacts that effect [sic] the applicants and other residents of the
areas.
I have examined the maps/photos recently sent by respondents showing locations of monitoring sites. These are similar to the maps used in my April 2011. My opinion remains the same; the current monitoring network is insufficient to determine the cumulative impact resulting from Suncor emissions and other sources over time.
The Crooks and Murphy report states that an increase in the number of monitors would impose an unreasonable burden on Suncor. However, this is a value judgment and has no basis in
science, especially when applied to the concepts of cumulative impacts and the discretionary principle. An alternative value judgment can be made that the residents of AFN will be unable to assess their situation adequately because the monitoring network that inadequate to measure the cumulative impact and precautionary principle.
Irrelevant to Application: Evidence about the location of air monitors is not necessary to determine the application. The location of the air monitors is not being challenged in this application and in any event, it does not assist the Court in determining the merits of the application.
Entire question and answer is improper
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Replying to a criticism regarding the insufficiency or paucity of one’s expert by attempting to correct that insufficiency or paucity is the quintessential example of improper confirmatory reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 24-25, 35, 49(d), 55 and 57.
Permitted.
The response is a specific answer to Mr. Crooks’ statement that Dr. Cole provided “no basis” for how he arrived at his judgment. There is no prejudice to the respondents in allowing this reply, and I see no basis or need for sur-reply. The affiants’ positions are clearly set out and may be tested in cross-examination.
Suncor
Q. 4,
p. 67
Question 4: Throughout his affidavit, including at p. 9, Mr. Lynch states that the Applicants and their experts fundamentally misunderstand the nature of the decision. Specifically, they failed to understand that the decision concerning production levels at the sulphur plant did not affect production levels at the refinery. Can you clarify your understanding of the decision?
Response: From the beginning of my involvement in 2011, I understood that the nature of MOE’s decision was to allow Suncor to increase the level of sulphur production at Plant #4 (desulphurization) from 145 tonnes per day to 180 tonnes per day. As stated in my April 2011 report, counsel to the applicants requested that I provide a report to evaluate the basis and adequacy of MOE’s decision with regard to cumulative air quality impacts.
Entire question & answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and49(d)
Permitted on the same basis as for similar questions regarding the other expert affidavits.
Suncor
Q. 5,
p. 67
Question 5: If your original understanding has changed, does that alter your opinion provided in your April 2011 report?
Response: My understanding has not changed.
Entire question and answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-references to Suncor’s factum: Paras. 24-25 and49(d)
Permitted.
Suncor
Q. 6,
p. 67
Question 6: At p. 53 of his report Mr. Lynch discusses your consideration of the 2010 ESDM Report stating that the 2010 report is irrelevant. Can you respond explaining why information contained in an ESDM report is useful for understanding pollution in Chemical Valley and also why you relied on the 2010 ESDM report specifically.
Response: Counsel requested in 2011 that I provide expert opinion on the potential impact of MOE’s 2010 decision allowing Suncor to increase sulphur production from a limit of 145 to a limit of 180 tonnes per day. Counsel also requested that I assess the potential cumulative impact limit of MOE’s decision. In preparing my 2011 report, I used the most recent and complete data on emissions and modeling results available to me at the time. A great deal of this information was contained in the 2010 ESDM report for Suncor and Executive Summary ESDM reports for other major emission sources in the Sarnia area. In addition, the ESDMs are official documents required to meet MOE regulations and guidance. The standard of “good science” is to use the available information that the scientist and in this case Suncor and other corporations in Sarnia believe to be accurate and complete.
Entire question and answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Cross-reference to Suncor’s factum: Paras. 24-25 and49(d)
Permitted.
This evidence is not problematic. It simply explains why Mr. Cole provided what he did. It provides some context, though it may be accorded little weight. There is no prejudice to the respondents whatsoever.
Suncor and HMQO
Q. 7,
pp. 68-69
Question 7: In section 5.4.4 of his report Dr. Ollson examines the cumulative health risk of respiratory irritant mixtures (pages 1967-1969) using air monitoring station data at Centennial Park and Front Street stations for N02, S02 and PM2.5. Dr. Ollson finds on page 1968 that PM2.5 is the leading respiratory irritant contributor. Does the decision to increase sulphur production affect PM2.5 emissions and/or concentrations in AFN. If so, can you explain how?
Response: As stated previously, I conclude that neither the affidavits of Mr. Crooks nor of Mr. Lynch have provided sufficient information to assure that increasing sulphur production from current levels to 180 tonnes per day can be accomplished without causing increased ambient levels of sulphur dioxide and/or hydrogen sulphide. I would defer to William Auberle's expert judgment regarding potential problems with pollution control equipment and plant upsets and their relationship to increased levels of sulphur production.
Dr. Ollson states that PM2.5 (particles with smaller diameters than 2.5µm) is the leading respiratory irritant contributor. Without judging his conclusion, I would add that a thorough
assessment of secondary pollutants would be necessary to evaluate the full impact of Suncor emissions on exposures and potential impacts. Both SO2 and H2S undergo atmospheric chemistry including oxidation and sulphate aerosol formation.[^3],[^4],[^5] H2S is oxidized in the atmosphere to form SO2[^6] thus adding to SO2 concentrations. SO2 is oxidized to form both sulphuric acid and sulphate aerosols (very fine particulates).[^7] Conditions which favor sulphate formation include high ozone days (frequent during the summer in Sarnia)[^8] and atmospheric moisture plumes from Suncor and many other industrial facilities in the area.
To my knowledge the respondents' experts have not submitted modeling needed to provide qualitative or quantitative evidence on the impact of atmospheric chemistry affect Suncor's SO2 and H2S emissions including the formation of very fine particulates. In my judgment, the neglect of aerosol formation causes the respondents' experts to underestimate the cumulative impact of Suncor' s SO2 and H2S emissions on the applicants and other residents of the AFN area.
Many studies have shown that the oxidation of SO2 and sulfuric acid to formation of atmospheric sulfate aerosols.
I defer to Dr. Carpenter's reports on adverse health impacts of the potential effects of sulphuric acid, and aerosols resulting from the oxidation of sulphur bearing emissions. However, asatmospheric scientists, I am aware of numerous studies showing that such aerosols have very small diameters, i.e. less than 1 micrometer (1µm=1000 nanometers, nm) and tend to have much higher concentration in terms of particle numbers than do coarser particles.[^9],[^10]
The scientific literature on particle size distributions also show that aerosols tend to have very large surface area / volume ratios which promotes the condensation and adsorption of additional toxic chemicals on their surfaces.[^11],[^12] Additionally, the 2013 article by Brook et al. concludes that warm season lake breeze circulation patterns in coastal zones and to limit dispersion and promote conditions that favor the formation of secondary aerosols.[^13]
Again I defer to Dr. Carpenter to opine on the relationship between particle size and the potential for adverse health effects. Such consideration should be given based on both the precautionary principle and the requirement to consider cumulative effects.
Improper Reply: Evidence was available at outset and its relevance could have been anticipated.
In addition, the evidence does not assist the court in determining the merits of the application as the evidence merely defers to the expert opinions of Dr. Auberle and Dr. Carpenter. The deferral to Dr. Auberle in particular is of no value to the Court because Dr. Auberle does not provide an opinion on “potential problems with pollution control equipment and plant upsets and their relationship to increased levels of sulphur production.”
Entire answer
Answer is not responsive to evidence filed by the Respondent, Suncor: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
New issues or arguments cannot be raised in reply: Ontario (Burton v. Town of Oakville, 2004 18068 (ON SC)).
Citing more studies (particularly those that pre-date the initial report) to buttress conclusions smacks of case splitting: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-reference to Suncor’s factum: Paras. 26, 29-30,32-35,50,51(c), 54(b),55 and57
Permitted.
Again, this evidence focuses on the issue of the effects of increased sulphur production. The reference to Dr. Auberle may be of “no value”, but this is something that may be addressed in cross-examination and argument.
I would allow sur-reply to permit the respondents, if they desire, to provide any modelling or qualitative/quantitative evidence on the impact of atmospheric chemistry affecting Suncor’s sulphur dioxide and hydrogen sulphide emissions.
E. AFFIDAVIT OF TERRY MITCHELL
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor and HMQO
HMQO objects to the entire affidavit and report.
Suncor objects to the following portions of the report: Q. 2, Q. 3, Q. 7 (paras. 2 and 3) and Q. 8.
All of the evidence in this report is irrelevant to the application and it is improper reply as it will not assist the Court in making a determination of the merits of the application. The evidence in this report addresses indigenous models of development, self-determination and self-governance is well beyond the scope of this judicial review application.
Permitted.
To the extent that a respondent has filed affidavit evidence on this issue, the respondents cannot now claim that it is irrelevant to the application. In addition, as I stated in my earlier reasons for decision, it is not appropriate to exclude such evidence based on relevance at this stage as doing so would risk prejudging the merits of the application: see Lockridge, at paras. 50 and 81.
Suncor
Q. 2,
pp. 76-78
Question 2: Can you reply to Mr. Graham’s characterization and reliance on the Stephen Cornell and Joseph Kalt “Sovereignty and Nation-Building: the Development Challenge in Indian Country today” report? What utility does the report have in the Canadian context and in Aamjwnaang?
Response:... The Cornell and Kalt (2003) article is a very useful article for understanding the important intersections of culture and economic development. ... Internal governance at Aamjiwnaang is affected by the longstanding administration of the Department of Aboriginal Affairs and Northern Development as well as provincial policy and regulations and the environmental impacts of the surrounding industrial complex. ...
Entire question and answer is improper
Answer is not responsive to evidence filed by the Respondent, Suncor, to which it purports to reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence of Dr. Graham has been taken out of context to provide an opportunity to expand on a subject not germane to the argument that Mitchell purports to reply to: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Bare assertions are not proper reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: Paras. 35, 52 and53(c)
Permitted.
The respondents suffer no prejudice from this evidence and, in context, I do not find these statements to constitute the sort of “bare reply” proscribed in the case law. The merit of the positions stated can be fully tested on cross-examination.
Q. 3,
pp. 78-79
Question 3: Can you reply to Mr. Graham’s reliance on the four principal success factors for economically successful First Nations in Canada beginning on page 13 of his report?
Response: ... The fourth, useable land, he curiously suggests “is only a factor if good governance is present”. He provides no rationale for this unlikely conclusion. Rather, it seems the reverse is likely true for Aboriginal communities. As the report is unpublished I am unable to review it to answer why Mr. Graham would assert that the fourth factor of good governance [sic] is “only a factor if good governance is present.” ...
“Useable land”, though not defined in the quote provided on page 14 of Mr. Graham’s report is a critical concept to the applicant’s concerns regarding environmental impacts and the community of Aamjiwnaang. As discussed by Mr. Graham, through his presentation of the Community Well Being Index data, the greatest concern for Aamjiwnaang is neither poverty, nor development; neither as he argues is it internal governance. The main issue as identified by the applicants may be linked rather to “useable” land and its relationship to the decision of the Minister regarding the regulation of emissions.
Entire question and answer is improper
Answer is not responsive to evidence filed by the Respondent, Suncor, to which it purports to reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Evidence of Dr. Graham has been taken out of context to provide an opportunity to expand on a subject not germane to the argument that Mitchell purports to reply to: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Bare assertions are not proper reply: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
In the alternative, if this evidence is permitted, Suncor should be permitted to file sur-reply evidence.
Cross-references to Suncor’s factum: Paras. 35, 52,53(c),55 and57
Permitted for the same reasons as in the prior disposition.
There is no need for sur-reply. The respective positions are set out and can be fully tested on cross-examination.
Q. 7,
pp. 83-84
Question 7. Can you reply to Dr. Hobfoll’s assertion that “More to the point, however, is that the very question overlooks the greater issue at hand. People in the region of Sarnia have the availability of industry, and the related jobs that support their livelihoods, educational possibilities, and other aspects of quality of life.”
The relationship between land, identity, and wellbeing [sic] has been demonstrated in the literature and addressed in international law. Indigenous peoples, including Canadian First Nations are by their very identity linked to the land, and to lifestyle and cultural practices that are tied to the land. First Nations are also culturally and spiritually tied to specific territories, specific areas of land that they have spiritual and physical ties to. This is not hypothetical; this is the lived reality, the identity of Indigenous peoples worldwide. This identity, culture, land, health, link is so consistent across Indigenous peoples, including Canadian First Nations, that it has been recognized in the United Nations Declaration of the Rights of Indigenous peoples that Canada became a signatory to in 2010.
Paragraphs 2 and 3 of answer are improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Cross-references to Suncor’s factum: paras. 24-25, 29-30 and 49(e)
Permitted.
This is opinion evidence, to begin with, and it is directly responsive to a specific assertion made by Dr. Hobfoll. The experts will be subject to cross-examination. It is up to the panel to determine the weight accorded to their evidence, to extent the panel determines that such evidence is relevant to the application.
Q.8,
pp. 84-88
Question 8: Can you reply to Dr. Hobfoll’s opinion on post traumatic stress disorder in this context?
Response: As I have discussed elsewhere post traumatic stress is a unique diagnosis within the DSM, the diagnostic and Statistical Manual of the American Psychological Association. PTSD is the only diagnosis that is not based on the individual`s status alone – it requires an external traumatic event. It is therefore a strong explanatory framework for examining past and current societal stressors endured by Aboriginal populations in Canada. The industrial and regulator issue raised by the applicants is a phenomenon that may be understood through this lens. ...
As I have outlined below, PTSD is classically defined and diagnosed by the following six criteria and is related to the human response to exposure to an external event. ...
It is reasonable to determine that the applicants in particular, and the Aamjiwnaang community in general, are confronted with an ongoing threat to the physical integrity of self or others, that has endured for more than a month, and results in social and occupational impairment as well as the noted criteria of emotional, physical and psychological impacts. My work on post traumatic stress discusses colonial trauma as complex, comprehensive, compounding, cumulative and collective. This is the stress that the applicants are speaking of.
Entire question and answer is improper
Confirmatory evidence is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: paras.: 24-25,29-30,35 and49(e)
Not permitted.
The objected-to language repeats and expands on earlier evidence, and is merely confirmatory. It is not appropriate reply and should be struck.
E. AFFIDAVIT OF ADA LOCKRIDGE
Parties Obejcting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor
¶3
(pp.9394)
I have been keeping a calendar documenting incidents such as spills and other accidents form industry in Chemical Valley since January 2004. I find out about spills and incidents when people (including representatives from facilities) call me directly or I call them or alternatively, when I feel, see, hear or smell an incident directly and call the Ministry of the Environment or industries for details. For example, over the years I have been in direct communication with various Suncor employees such as Mr. Marc Mageau, Vice President of the Sarnia Refinery and Jason Vaillant, Director of Communications and Stakeholder Relations, at various times about incidents at the Suncor refinery.
Entire Affidavit
Confirmatory evidence and case splitting is not proper reply: Allcock, Laight & Westwood Ltd. v. Patten, 1966 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.)
Evidence was available to the Applicants prior to filing their Application Record and ought to have been filed then: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Verbatim quote, repetition and expansion of earlier evidence is improper reply evidence: Eli Lilly Canada Inc v Apotex Inc., [2006] F.C. 953.
Cross-references to Suncor’s factum: Paras. 24-25,29-30,35 and49(f)
Permitted.
This affidavit is responding to Dr. Hobfoll’s assertion that the affiant’s stress is likely due to causes other than the 2010 Decision and pollution from the Suncor factory. The affiant appears to describing the reasons she is stressed, rather than alleging that the reports of pollution causing her stress are accurate. Further, this affidavit is not offered as expert evidence. It is in the interests of justice and fairness to permit this reply evidence.
Suncor and HMQO
¶5 and Exhibit A
(pp. 95 and 96-211)
Attached as Exhibit "A" to this affidavit is a complete copy of the calendars I have been maintaining since 2004 documenting the various spills and other incidences in
Chemical Valley.
Improper Reply: The calendar starts in 2004. This is new evidence that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated.
Entire Affidavit
Evidence was available to the Applicants prior to filing their Application Record (particularly since para. 179 of Ms. Lockridge’s initial affidavit specifically referenced and relied upon this calendar): Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Cross-references to Suncor’s factum: Paras. 24-25, 29-30, 35, 49(f)
Permitted for the same reasons as stated in the prior disposition.
F. AFFIDAVIT OF ELAINE MACDONALD
Parties Objecting
Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record)
HMQO’s Objection
Suncor’s Objection
Disposition
Suncor
pp. 213-409
Entire Affidavit
Evidence was available to the Applicants prior to filing their Application Record: Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466.
Evidence was previously struck: Lockridge v. Ontario (Director, Ministry of the Environment) (2012), 2012 ONSC 2316, 350 D.L.R. (4th) 720.
Applicants are not “entitled to adduce evidence to replace inadmissible evidence”: Andersen v. St. Jude Medical Inc., 2011 ONSC 1489.
The doctrine of abuse of process seeks to prevent the “re-litigation of an issue determined in earlier proceedings”: Reddy v. Oshawa Flying Club, [1992] O.J. No. 1337.
Cross-references to Suncor’s factum: Paras. 29-30, 50 and 51(d)
Not permitted.
This affidavit is not responsive. It is, in reality, a fresh affidavit and not proper reply. The applicants can question the respondents’ affiants about the affidavit’s exhibits in cross-examination.
Suncor and HMQO
¶3, p.214
From my involvement in this proceeding to date, I understand that the decision challenged by the Applicants in this proceeding allowed for an increase in sulphur production at the Suncor refinery in Sarnia. I do not assume that the increase in sulphur production affected overall fuel production.
Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled that evidence about this affiant’s understanding of sulphur production should be struck.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶4 and Exhibit A
(pp. 214 and 216218)
Attached as Exhibit A are copies of two letters that I obtained and photocopied on February 22, 2010. I photocopied these letters while reviewing the Ministry of Environment ("MOE") file regarding a Suncor certificate of approval application, at the office of the MOE's Environmental Assessment and Approvals Branch ("EAAB"). The first letter is dated August 13, 2008 and is from Don D'Souza and Ben Coulson of Jacques Whitford
Environmental Engineering Scientific Management Consultants to the Director of the EAAB of the MOE. The second letter is dated August 14, 2008 and is from Michael Thornton, Manager, Environment Health and Safety, Suncor Energy Inc. to Doris Dumais, Director, Certificates of Approvals, EAAB of the MOE. The two letters in Exhibit A are referred to by Mr. Auberle in answering question 1 of his reply expert report at page 1.
Improper Reply: It is not proper reply evidence to file documents that could be made evidence through cross-examination of a witness who has already filed an affidavit in the proceeding.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶5 and Exhibit. B (pp.214and219)
With regard to the report of Mr. Crooks and Dr. Murphy filed by the Respondent Suncor, attached as Exhibit B is a copy of a Stantec press release, dated January 2, 2009, announcing Stantec's acquisition of the engineering consulting company Jacques Whitford who worked directly on behalf of Suncor on the decision in this case. On June 21, 2013, I accessed this press release on Stantec's website at http://www.stantec.com/news.html#news97.
Improper Reply: It is not proper reply evidence to file documents that could be made evidence through cross-examination of a witness who has already filed an affidavit in the proceeding.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶ 6 and Exhibit C
(pp.214 and 220-325
In reply to paragraphs 137 to 140 of the Affidavit of Mr. Lynch and pages 1742- 43 and 1746 of the Report ofMr. Crooks and Dr. Murphy, attached as Exhibit C is an excerpted copy of the Emission Summary Dispersion Modelling ("ESDM") Report of Suncor Energy
Products Inc. Sarnia Refinery dated January 2010. I first obtained this report in November 2010 from the MOE, pursuant to a request that I had made under Ontario's Freedom of Information and Protection of Privacy Act. I later obtained from MOE an electronic version of this same report, which version is excerpted in Exhibit C. Exhibit C is referred to by Dr. Cole in his initial expert report, at pages 812 and 815-818 of the Applicants' Application
Record, and in his reply expert report at page 10. Exhibit C is also referred to by Mr. Auberle in his initial expert report, at pages 801-801 of the Applicants' Application Record.
Improper Reply: The ESDM Report in Exhibit C was available when the applicants’ initial evidence was filed and was referred to in the initial affidavit of Henry Cole. The relevance of Exhibit C could have been anticipated.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶7 and Exhibit D
(pp.215 and 326-400)
Attached as Exhibit D are copies of the executive summaries of the ESDM reports of 16 facilities in the Chemical Valley area. I obtained these executive summaries by requesting them from each facility at various times between the fall of 2010 and spring of 2011.
Executive summaries of these ESDM reports are referred to by Dr. Cole in both his initial affidavit containing his expert report, at pages 820-821 of the Applicants' Application Record, and his reply expert report on page 10.
Improper Reply: The ESDM Report in Exhibit D was available when the applicants’ initial evidence was filed and was referred to in the initial affidavit of Henry Cole. The relevance of Exhibit D could have been anticipated.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶8 and Exhibit E
(pp.215 and 401-402)
In reply to paragraph 143 of the Affidavit of Mr. Lynch, attached as Exhibit E is a letter dated June 1, 2010 from Jack Wysman, Manager, Environmental Health and Safety at the Suncor Energy Products Inc. St. Clair Ethanol Plant, which was sent to Ecojustice Canada.
Improper Reply: It is not proper reply evidence to file documents that could be made evidence through cross-examination of a witness who has already filed an affidavit in the proceeding.
See Suncor’s objection to entire affidavit below
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶9 and Exhibit. F
(pp. 215 and 403-404)
In reply to paragraphs 97-99 of the Affidavit of Mr. Parker, attached as Exhibit F is a copy of a memorandum by Mr. Szober of the MOE dated April14, 2010. I received this document in November 2010, pursuant to a request that I made under Ontario's Freedom of Information and Protection of Privacy Act. Exhibit F is referred to by Mr. Auberle in answering question 6 of his reply expert report, at page 3.
Improper Reply: It is not proper reply evidence to file documents that could be made evidence through cross-examination of a witness who has already filed an affidavit in the proceeding.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
Suncor and HMQO
¶10 and Exhibit G
(pp. 215 and 405-408)
In reply to paragraph 100 of the Affidavit of Mr. Parker, attached as Exhibit G is a copy of an email dated April 28, 2010 from Amy Breathat of Suncor to Mike Parker of the MOE. I received this document in November 2010, pursuant to a request that I made under Ontario’s Freedom of Information and Protection of Privacy Act.
Improper Reply: It is not proper reply evidence to file documents that could be made evidence through cross-examination of a witness who has already filed an affidavit in the proceeding.
See Suncor’s objection to entire affidavit above
Not permitted for the reasons stated in the disposition of the objection to the entire MacDonald affidavit.
[^1]: Suncor submits that “responsiveness” means that the affidavit “must actually contradict, qualify or impeach what is actually stated by the opposing party’s evidence, by their specific analysis or argument and not merely their conclusion”: Suncor Factum at para. 35 (citing Eli Lilly Canada Inc. v Apotex Inc., 2006 FC 953, 298 F.T.R. 70). Much of this position overlaps with the principles stated above. To the extent it articulates a narrower standard of responsiveness than found elsewhere in the jurisprudence, Eli Lilly may be distinguishable. In Eli Lilly, the respondent already had been granted leave to file sur-reply affidavits and the sole question was whether the materials filed were adequately responsive. The court, at para. 26, took a “fairly strict view of responsiveness” because, in part, sur-reply evidence is “an exceptional step” that should “be limited to essential and vital points.” No court has cited Eli Lilly’s view of responsiveness in the context of reply, as opposed to sur-reply, evidence.
[^2]: J.R. Brook et al., “Exploring the nature of air quality over southwestern Ontario: main findings from the border air quality and meteorology study, Discussion Paper, Atmospheric Chemistry and Physics, April 2013.
[^3]: Chang, L.P. et al., Influence of ozone and humidity on the formation of sulfate and nitrate in airborne fine particles. Journal of Environ Sci Health and Toxic Hazard Substance Environ Eng. 2009 July 1; 4(8): 767-77.
[^4]: Middleton, P. et al., Theoretical estimates of the relative importance of various urban sulfate aerosol production mechanisms, Atmospheric Environment, 1980.
[^5]: Khoder, MI, Atmospheric conversion of sulfur dioxide to particualte sulfate and nitrogen dioxide to particulate nitrate and gaseous nitrate acid in an urban area., Chemosphere, 2002 Nov; 49(6): 675-84.
[^6]: U.S. Agency for Toxic Substances and Disease Registry (ATSDR), Toxicological Profile for Hydrogen Sulfide, http://www.atsdr.cdc.gov/toxprofiles/tp114-c6.pdf
[^7]: J. Seinfeld, Air Pollution: Physical and Chemical Fundamentals, 1975, McGraw Hill.
[^8]: MOE air quality data: http://www.airqualityontario.com/press/advisories.php?y=2012
[^9]: Q Zhang, “A Case Study of Urban Particle Acidity and Its Influence on Secondary Organic Aerosol,” Environ. Sci. Technol. 2007, 41, 3213-3219.
[^10]: J. Wagman et al, “Influence of some atmospheric variables on the concentration and particle size distribution of sulfate in urban air,” Atmospheric Environment (1967), Volume 1, Issue 4, July 1967, Pages 479-489.
[^11]: Rodriguez et al, A study on the relationship between mass concentrations, chemistry and number size distribution of urban fine aerosols in Milan, Barcelona and London, Atmos. Chem. Phys., 7, 2217-2232, 2007.
[^12]: Lighty JS et al., “Combustion aerosols: factors governing their size and composition and implications to human health.” J Air Waste Manag Assoc. 2000 50(9): 1565-618.
[^13]: J.R. Brook et al., “Exploring the nature of air quality over southwestern Ontario: main findings from the border air quality and meteorology study, Discussion Paper, Atmospheric Chemistry and Physics, April 2013.