Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
April 10, 2015
CASE NO.:
15-011
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
Douglas Edward Dingeldein
Approval Holder:
Grey Highlands Nominee (No. 1) Ltd.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Renewable Energy Approval for Grey Highlands Zero Emission People Wind Facility
Reference No.:
5663-9R9JTB
Property Address/Description:
Various locations near the Community of McIntyre
Municipality:
Grey Highlands
Upper Tier:
Grey County
ERT Case No:
15-011
ERT Case Name:
Dingeldein v. Ontario (Environment and Climate Change)
Heard:
March 17, 2015 in Feversham, Ontario and by telephone conference call on March 31, 2015
APPEARANCES:
Parties
Counsel/Representative+
Douglas Edward Dingeldein
Asha James
Director, Ministry of the Environment and Climate Change
Andrew Weretelnyk and Leila Beheshti
Grey Highlands Nominee (No. 1) Ltd.
John Terry and Grant Worden
Participant
Municipality of Grey Highlands
Michael Sirdevan
Presenters
Brewster Lake Homeowners Association
Rob Coulter+
Virginia Stewart Love
Self-represented
Elizabeth Bellavance (March 31 only)
Self-represented
ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS
REASONS
Background
1On January 30, 2015, Vic Schroter, Director, Ministry of the Environment and Climate Change (the “Director”) issued Renewable Energy Approval Number 5663-9R9JTB (the “REA”) to Grey Highlands Nominee (No. 1) Ltd. under s. 47.5 of the Environmental Protection Act (“EPA”) for a Class 4 wind facility. The REA is for a renewable energy project known as the Grey Highlands Zero Emission People Wind Facility, consisting of the construction, installation, operation, use and retiring of five wind turbine generators with a total name plate capacity of 10 megawatts (MW) and one 44 kV 10 MVA transformer substation, located near the Community of McIntyre within the Municipality of Grey Highlands, Grey County, Ontario (the “Project”).
2On February 17, 2015, Douglas Edward Dingeldein (the “Appellant”), requested a hearing before the Environmental Review Tribunal (the “Tribunal”) pursuant to s. 142.1 of the EPA with respect to the REA issued by the Director. The Appellant requested the hearing on the grounds that “engaging in the Renewable Energy Project in accordance with the Renewable Energy Approval will cause serious and irreversible harm to plants, animals and the natural environment” (the “Environmental Test”), and “will cause serious harm to human health” (the “Health Test”).
3The Appellant also alleges that s. 47.5 and s. 142.1 of the EPA violate rights to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).
4A preliminary hearing took place on March 17, 2015, at which the Tribunal determined a request for participant status by the Municipality of Grey Highlands (the “Municipality”), requests for presenter status by Virginia Stewart Love and by the Brewster Lake Homeowners Association (“BLHA”), and scheduled the events relating to this proceeding.
5Following the preliminary hearing, the Tribunal received a request for participant status from Elizabeth Bellavance, who is a member of We’re Against Industrial Wind Turbines – Plymptom-Wyoming (“WAIT-PW”). The Tribunal directed that Ms. Bellavance’s request be addressed by way of a telephone conference call (“TCC”), which took place on March 31, 2015.
Relevant Rules
The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.
A Participant in a Hearing may:
(a) be a witness at the Hearing;
(b) be questioned by the Parties;
(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and
(e) attend site visits.
- A Participant in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) participate in a mediation, unless permitted to do so by the Tribunal; and
(f) claim costs or be liable for costs.
The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.
A Presenter in a Hearing may:
(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;
(b) be questioned by the Parties;
(c) provide the Tribunal with a written statement as a supplement to oral testimony; and
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter's interests.
- A Presenter in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(f) participate in a mediation, unless permitted to do so by the Tribunal;
(g) attend site visits unless permitted to do so by the Tribunal; and
(h) claim costs or be liable for costs.
Discussion, Analysis and Findings
6With respect to the Municipality, no party objected to its receiving participant status, but the Approval Holder and the Director both requested that conditions be imposed. Specifically, the Approval Holder and Director took the position that certain of the issues that the Municipality intends to raise may be outside the scope of the proceedings as outlined in the notice of appeal, in contravention of Rule 68(a) of the Tribunal’s Rules of Practice (the “Rules”), and/or outside the permitted grounds of appeal as outlined in s. 142.1(3) of the EPA.
7The Tribunal found that the Municipality’s interests may be directly and substantially affected by the hearing or its result (Rule 63(a)), and the Municipality has demonstrated a genuine interest in the subject matter of the proceeding (63(b)). The Tribunal found that it is premature to make any conclusions relating to the scope of the Municipality’s intended presentation, as it has thus far only indicated an intention to participate. So far, the Municipality has only forwarded its comments posted to the Environmental Registry and has not yet provided its written participant statement. The Tribunal reminds all parties, participants and presenters that its jurisdiction is restricted to issues relating to the permissible grounds of appeal (i.e., the Environmental Test and the Health Test), and that the Rules provide that participants (Rule 68(a)) and presenters (Rule 71(a)) may not address issues that have not already been raised in the notice of appeal.
8The Tribunal therefore named the Municipality a participant pursuant to Rule 66, on condition that the presentation be relevant to the grounds noted, and within the issues in the notice of appeal. The question of the proper scope of the Municipality’s presentation will be addressed at a later date, if need be.
9With respect to Ms. Stewart Love, no party objected to her request for presenter status, although the Director and the Approval Holder raised the same concern set out above that presenters are restricted to issues raised in the notice of appeal. Ms. Stewart Love’s home is located within the Plateau Wind Project in Grey Highlands and she wishes to provide information to the Tribunal relating to effects she states she has experienced from wind turbines. The Tribunal found that Ms. Stewart Love has a genuine interest in the proceeding and granted her presenter status under Rule 69, on the same condition outlined above relating to the Municipality. Ms. Stewart Love agreed to keep her presentation to 30 minutes or less.
10The BLHA represents a community of approximately 100 residents in the Municipality of Grey Highlands whose homes are clustered around Brewster Lake. The closest turbine in the Project would be approximately 1 kilometre from the lake. The parties did not object to the request for presenter status. The Tribunal found that the BLHA has a genuine interest in the proceedings and granted presenter status to the BLHA. Rob Coulter represented the association at the preliminary hearing, but indicated that its president, Gary Fohr, would be speaking on behalf of BLHA at the hearing.
11With respect to Ms. Bellavance’s request for participant status being brought after the preliminary hearing, it was explained that WAIT-PW is run by volunteers and it cannot afford legal representation. She added that although she was aware of the preliminary hearing taking place on March 17, 2015, WAIT-PW had only just completed its own appeal of another renewable energy approval at the end of February and it was uncertain whether Ms. Bellavance or another volunteer for the organization could appear at the main hearing of this appeal. Ms. Bellavance also explained that she has been granted status at REA appeals after preliminary hearings previously and has been led to believe that this was an acceptable practice. Ms. Bellavance also explained that she intends to speak to the issue of health inequities and social well-being in the context of the World Health Organization’s ( “WHO”) definition of health. Ms. Bellavance said that she was requesting participant status in order to provide the Tribunal with closing submissions that, she submitted, would differ from that of other parties. Finally, in reply to the submissions of the Approval Holder and Director (set out below), Ms. Bellavance indicated that she will comply with the deadlines for the remainder of the hearing that have been set by the Tribunal.
12The Approval Holder and the Director objected to Ms. Bellavance’s request on the following bases: Ms. Bellavance was aware of the requirement to seek status at the preliminary hearing and insufficient explanation was provided as to why status was not sought earlier; allowing requests for status after a preliminary hearing undermines the integrity of the Tribunal’s Rules; health concerns will be addressed by other parties and Ms. Bellavance’s participation will not add anything to the appeal; she wishes to speak to the issue of social well-being, which is not an issue raised in the notice of appeal; and finally, allowing an additional participant at this stage prejudices the responding parties as they will require time to identify witnesses to respond.
13The Appellant supported Ms. Bellavance’s request, arguing that as the initial deadline for filing witness statements in support of the appeal is April 13, 2015, no prejudice will accrue and, additionally, as the notice of appeal explicitly references the WHO definition of “health”, the issue Ms. Bellavance seeks to address is within the issues raised on the appeal.
14The Tribunal found that Ms. Bellavance has a genuine interest in the proceeding but decided that it would be more appropriate to grant her presenter status under Rule 69. The Tribunal concluded that her interest in the Project is less than a participant, because she resides in a different area of the province approximately three hours away. While Ms. Bellavance submitted she would speak to “community interests”, the Tribunal notes that local community interests are already represented in this proceeding by the Municipality and the BLHA. Ms. Bellavance was granted presenter status on the same conditions outlined above for the other presenters.
15The Tribunal wishes to stress that it would have been preferable for Ms. Bellavance to have raised her request for status at the preliminary hearing, and for her to have provided the background information requested of status applicants in the Tribunal’s standard “status request form”. The Tribunal’s rules in this regard are specifically designed to ensure procedural fairness for all persons involved in these proceedings, which operate under a short legislated time frame.
16At the preliminary hearing the parties presented the Tribunal with a detailed schedule of events leading up to the hearing, and for the hearing itself, that they had agreed to. The Tribunal agreed to the parties’ proposal, with minor adjustments regarding the reserved date for any preliminary motions that may be brought prior to the start of the hearing. The schedule of events is attached as Appendix A to this order. The Tribunal commends the parties for the cooperation shown, and their efficient use of time, in coming to the preliminary hearing with a consent schedule.
ORDER
17The Tribunal grants participant status to the Municipality of Grey Highlands, and presenter status to Virginia Stewart Love, the Brewster Lake Homeowners Association and Elizabeth Bellavance, on the following conditions:
a. An electronic copy of the presentations shall be filed with the Tribunal and copied by e-mail to all parties by Monday, April 13, 2015. Two paper copies of the presentation shall be brought to the hearing to be filed with the Tribunal.
b. The presentations shall be relevant to the permissible grounds of appeal (i.e., the Environmental Test or the Health Test outlined in s.145.2.1 of the EPA), and be confined to the issues raised in the Appellant’s notice of appeal.
18The Tribunal makes the following procedural directions:
a. The parties, participant and presenters are directed to file with the Tribunal at least seven days prior to the commencement of the main hearing, an electronic copy of all witness statements and any other documents to be filed as exhibits at the main hearing. The page numbers of the electronic documents should match the page numbers of the paper copy of the document. Alternatively, a written summary cross-referencing electronic and hard copy page numbers may be provided.
b. Where a witness wishes to use a PowerPoint presentation when giving his/her evidence, each statement of evidence shown in the PowerPoint presentation must cite a reference to the evidence in the witness statement (page and paragraph number). A witness will not be permitted to adduce evidence in his/her PowerPoint presentation that has not been referred to in his/her witness statement. A witness may prepare his/her witness statement in PowerPoint format only, if the witness prefers to do so. All PowerPoint presentations must include the slide number of each slide.
c. The hearing is scheduled to take place May 4 to 8, 11 and 12, 2015 at the Flesherton Kinplex, located at 2 Highland Drive in Flesherton, Ontario.
19The Tribunal orders that the proceedings follow the schedule that is attached as Appendix A to this order.
Request for Participant Status Granted
Requests for Presenter Status Granted
Procedural Directions Ordered
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Heather I. Gibbs”
HEATHER I. GIBBS
VICE-CHAIR
Appendix A – Schedule of remaining hearing events for Appeal 15-011
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Appendix A
Schedule of remaining hearing events for Appeal 15-011
GREY HIGHLANDS REA Hearing Schedule
APRIL 2015
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
1
2
3 Good Friday
4
5
6 Easter Monday
7
8
9
10
11
12
13
Appellant’s witness statements due by 4 p.m.
14
15
9 a.m. case management conference call
16
17
18
19
20
Motion records due by 4 p.m. (if any motions)
21
22
Responding motion records due by 4 p.m. (if any motions)
23
Reply motion records due by 4 p.m. (if any motions)
24
Motions Day in ERT hearing room in Toronto (if any motions)
Respondents’ witness statements due by 4 p.m.
25
26
27
28
29
30
GREY HIGHLANDS REA Hearing Schedule
MAY 2015
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
1
10 a.m. conference call - continuation of Preliminary Hearing
Reply witness statements (if any) due by 4 p.m.
2
3
4
Main Hearing[1]
Introduction
Opening statements
Dingledein
MacLeod
Ashbee
Weaver
5
Fohr
Love
Municipality of Grey Highlands
James
Aramini
6
Nissenbaum
Jeffrey
Mainguy
7
Eva McCunney Approval Holder Expert 2[2]
8
Approval Holder Expert 3
Approval Holder Expert 4
Approval Holder Expert 5
9
10
11
Approval Holder Expert 6
Zivkovic
MOE Expert 2
12
MOE Expert 3
MOE Expert 4
13
14
15
16
17
18 Victoria Day
19
20
21
22
23
24
/31
25 Memorial Day
26
27
28
29
30
GREY HIGHLANDS REA Hearing Schedule
JUNE 2015[3]
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
1
2
Appellant’s written closing submissions due by 4 p.m.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Respondents’ written closing submissions due by 4 p.m.
17
18
19
20
21
22
23
Written reply submissions due by 4 p.m.
24
25
26
27
28
29
30
1This schedule provides a 6.5 hour hearing day with a 60 min lunch break and two 15 minute breaks, one in the morning and one in the afternoon. The hearing will begin on Monday, May 4th at 10 a.m., and on each subsequent day at 9 a.m. Other details of the schedule include a 20 minute opening by the Tribunal explaining its process; opening statements by each party of 15 minutes (45 min, total); 60 minutes per fact witness (15 to 30 min chief, 15 to 30 min cross); 1 hour and 45 minutes per proposed expert (30 to 45 min chief, 45 to 60 min cross) and 30 minutes for any qualification challenge, and 30 minutes for the evidence of participants and presenters.
2The Approval Holder may call up to 6 expert witnesses, and the MOE may call up to 4 expert witnesses, depending on the Appellant’s evidence.
3Closing oral arguments by parties on Wednesday, July 8.