Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: May 4, 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: April 24, 2015 in Toronto, Ontario

APPEARANCES:

Parties	Counsel
Douglas Edward Dingeldein	Asha James
Director, Ministry of the Environment and Climate Change	Andrew Weretelnyk
Grey Highlands Nominee (No. 1) Ltd.	John Terry

ORDER DELIVERED BY HEATHER I. GIBBS

REASONS

Background

1These are the reasons for the April 27, 2014 disposition of the Environmental Review Tribunal (the “Tribunal”) in a preliminary motion by Grey Highlands Nominee (No. 1) Ltd. (the “Approval Holder”), brought on April 24, 2015, to strike portions of two witness statements filed on behalf of Douglas Edward Dingeldein (the “Appellant”). Further background to this appeal can be found in an order of the Tribunal dated April 10, 2015.

Relevant Legislation

2Environmental Protection Act

Hearing required under s. 142.1

145.2.1 (1) This section applies to a hearing required under section 142.1.

What Tribunal must consider

(2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

Issues

3The issues are:

Issue No. 1: Whether portions of the witness statement of Donna Weaver should be struck as falling outside of the notice of appeal and outside of the Tribunal’s jurisdiction;

Issue No. 2: Whether portions of the witness statement of Richard James should be struck as relating to future compliance which is a matter outside the Tribunal’s jurisdiction; and

Issue No. 3: Whether portions of the witness statement of Richard James should be struck as being outside of his expertise.

Discussion, Analysis and Findings

Issue No. 1: Whether portions of the witness statement of Donna Weaver should be struck as falling outside of the notice of appeal and outside of the Tribunal’s jurisdiction

4The Approval Holder points out that in the third paragraph of page 3 of Ms. Weaver’s witness statement, she discusses property values. The paragraph begins with: “We are currently preparing to sell our property in the Spring of 2014…”

5The Approval Holder, supported by the Director, argues that the issue of property values has been found by the Tribunal on numerous occasions to be outside of its narrow scope of jurisdiction in appeals of renewable energy approvals under s. 145.2.1 of the Environmental Protection Act (“EPA”).

6Section 145.2.1 provides that the Tribunal is to consider only whether the renewable energy project will cause (a) serious harm to human health, or (b) serious and irreversible harm to plant life, animal life, or the natural environment. The Tribunal agrees that it has found in numerous cases that economic impacts of a renewable energy project fall outside of its jurisdiction on a REA appeal; one example being Fata v. Director (Ministry of the Environment), 2014 CarswellOnt 2352 (Ont. Env. Rev. Trib.), para. 36.

7The Appellant consented to striking this paragraph of Ms. Weaver’s witness statement. On consent, the Tribunal struck the paragraph on page 3 of Ms. Weaver’s witness statement relating to property values.

Issue No. 2: Whether portions of the witness statement of Richard James should be struck as relating to future compliance which is a matter outside the Tribunal’s jurisdiction

8The Approval Holder requests that any evidence from Mr. James directed in support of the allegations that the Project will not operate in accordance with the REA should be struck, specifically the evidence in his witness statement running from page 3 under the heading “3.0 Overview” to page 8 up to and including the paragraph before the one beginning “Question 3”.

9The Approval Holder argues that the statutory language of the EPA requires the Tribunal to presume compliance with the approval and its conditions, when undertaking its analysis of the Project in a REA appeal. Specifically, it points to the phrase “in accordance with the renewable energy approval,” found in s. 142.1(3), s. 142.2(1), s. 145.2.1(2), s. 145.2.1(3), s. 145.2.1(4) and s. 145.2.1(5). The Approval Holder argues that, as a consequence of this language, “any evidence relating to the speculative assertion that the Project may or will not operate in accordance with its REA is outside of the Tribunal’s jurisdiction to consider and must therefore be excluded as irrelevant to the proceeding.” In this regard the Approval Holder relies on Wrightman v. Director (Ministry of the Environment), [2013] O.E.R.T.D. No. 83 (“Wrightman”) at paras. 37-38, and Monture v. Director (Ministry of the Environment) (2012), 68 C.E.L.R. (3d) 191 (Ont. Env. Rev. Trib.) (“Monture”) at para. 97.

10The Approval Holder argues that Mr. James’ witness statement, in speculating that the Project will exceed sound level limits at receptors, is asking the Tribunal to consider factors over which it has no jurisdiction. The Director supports this position.

11The Appellant argues that “one of the key issues before this Tribunal is to determine at what sound levels harm to human health may occur.” The Appellant will present evidence of a statistical association between wind turbine noise and annoyance at levels of 35 dBA or higher. The Appellant submits that Mr. James’ evidence is germane to the issue of whether or not the Project may result in readings above 35 dBA at receptors, “thus increasing the risk that an individual receptor may experience annoyance form the project.”

12The Appellant also argues that a Charter question has been raised, relating to s. 7 (security of the person). The Appellant argues that, as the Tribunal found in Kroeplin v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 24 at Appendix A (“Kroeplin”), evidence that might be strictly outside the jurisdiction of the Tribunal in a s. 145.2.1 analysis may, nevertheless, be relevant to its s. 7 analysis, which requires more contextual information.

13The Approval Holder responds that the Tribunal in Kroeplin noted the novelty of the argument at the time, and submits that the argument is no longer novel, having been determined on several occasions by the Tribunal, as well as by the Divisional Court in the case of Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404. The Appellants note that Dixon is awaiting leave to appeal to the Ontario Court of Appeal, and submit the point still has not been determined.

14The Tribunal grounds its analysis in the basic rule, enunciated in s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S. 22 that a tribunal may admit as evidence at a hearing anything that is relevant to the subject-matter of the proceeding. Thus, relevance to the subject-matter of the proceeding is a key determining factor in this motion.

15The Tribunal concurs with the finding in Monture (para. 97), that “any harm that may be caused by exceedances will not be relevant to the Tribunal’s decision” in a s.145.2.1 appeal. However, the question of how much noise will be generated by a renewable energy project at specific locations may be a fact that is relevant to a different argument in an appellant’s case. The Tribunal made this distinction in Wrightman, where it ordered that “any testimony by Mr. James directed only at showing that the project will not meet the terms and conditions of the REA be excluded” (para 38, emphasis added).

16In this case the Appellant argues that the Project will cause serious harm to human health starting at noise levels of 35 dBA, which is within the REA’s permitted noise emissions. The level of noise emitted by this Project is clearly relevant to this issue. This conclusion is consistent with the findings in Monture, where the Tribunal commented at para. 100:

At this point in the proceedings, prior to having heard evidence, the Tribunal is not in a position to determine whether these allegations indeed raise a separate ground from that of exceedances. The Tribunal found that HWC has the right to argue that there is no ability to predict or control noise emissions from an IWT project, but not issues related to compliance, since the test refers to engaging in the project in accordance with the REA. To the extent the ground is based on serious harm to human health due to exceedances of approved limits at the proposed Site or other project sites, it is not relevant to the test before the Tribunal. In any event, HWC’s argument will have to tie the uncertainties in measurement to the ultimate test of whether engaging in the Project in accordance with the approval will cause serious harm to human health.

17Further, the Appellant in this case is arguing that his s. 7 Charter rights have been infringed. The Tribunal agrees with the Appellant that Mr. James’ evidence is arguably relevant to the first prong of a Charter analysis, i.e., whether or not s. 7 has been infringed. In this regard the present case is on all fours with Kroeplin, where the Tribunal did not strike the witness statement in question. The Tribunal endorses the approach taken in that case, as follows (at Appendix A, procedural rulings, p.79) :

Some of the evidence that the Appellants seek to put forward might be beyond the Tribunal’s jurisdiction in the context of an appeal based solely on s.142.1(3)(a) of the EPA However, the Tribunal accepts that this evidence may be relevant to the questions to be determined in relation to the Charter challenge. As submitted by the Appellants, this evidence, and legal argument concerning it, must be heard in order for the Tribunal to make a determination on its relevance or what weight should be accorded to it.

18For the reasons stated, the Tribunal declines to strike the impugned portions of Mr. James’ witness statement.

Issue No. 3: Whether portions of the witness statement of Richard James should be struck as being outside of his expertise

19The Approval Holder argues that Mr. James is not an expert on human health, yet attempts to provide an opinion as to the human health impacts of noise, and especially low frequency noise and infrasound. The Approval Holder submits that Mr. James’ “opinions relating to the purported impacts of low frequency noise and infrasound on health is clearly outside of his expertise and should be excluded.” It asks that the Tribunal strike “any evidence relating to health issues, specifically the third full paragraph on p. 11 and the 1st full paragraph on p. 12”. In this regard the Approval Holder relies on the Tribunal’s Practice Direction for Technical and Opinion Evidence (paras. 4, 5, 6, 9(c) and 9(d)). The Director supports the Approval Holder’s position.

20The Appellant argues that it is premature to make any such findings, as Mr. James’ expertise has not yet been considered by the Tribunal. He has not yet appeared for cross examination on his qualifications, nor has the Tribunal made any findings as to the scope of his expertise. The Appellant states that Mr. James does not purport to provide a medical opinion, but that as an acoustician he has been qualified at various hearings to “provide evidence about the effect of noise on people.” The Appellant submits that any determination as to the qualification of Mr. James or the weight to be given to his evidence should be done after all evidence has been heard and parties have made final submissions.

21The Tribunal agrees with the Appellant that it is premature to make any findings on the extent of Mr. James’ qualifications. He is not purporting to be qualified as an expert in human health. It is an arguable issue whether his expertise as an acoustician is sufficient to qualify him to give the opinion evidence challenged by the Approval Holder, and the Tribunal finds that further clarification as to Mr. James’ expertise will be required in order to determine whether to strike this evidence. As a result, the Tribunal declines to strike the paragraphs at this time, with the caveat that it makes no finding as to whether the statements will ultimately be found to be within the scope of Mr. James’ expertise.

ORDER

22With respect to the motion to strike, the Tribunal orders the following:

• The second full paragraph on page 3 of the witness statement of Donna Weaver is struck, on consent of the parties;
• No portion of the witness statement of Richard James is struck at this time.

Motion to Strike Portions of Witness Statement of Donna Weaver Granted

Motion to Strike Portions of Witness Statement of Richard James Dismissed

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

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