Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 8, 2015
CASE NO.:
15-026
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
Gary Fohr
Approval Holder:
Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Renewable Energy Approval for Grey Highlands Clean Energy Project
Reference No.:
9022-9STQS5
Property Address/Description:
Various Locations
Municipality:
Grey Highlands
Upper Tier:
Grey County
ERT Case No.:
15-026
ERT Case Name:
Fohr v. Ontario (Environment and Climate Change)
Heard:
May 14, 2015 in Flesherton, Ontario and on May 19, 2015 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
Gary Fohr
Asha James
Director, Ministry of the Environment and Climate Change
Andrew Weretelnyk
Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP
John Terry and Grant Worden
Participants
Municipality of Grey Highlands
Dan Best+
Brewster Lake Home Owners’ Association
Rob Coulter+ and Richard Lemoine+
Presenters
Nicholas Kouwen, Virginia Stewart Love, Jonathan Nichols, Richard Kitchen and Sandra Neil
Self-represented
ORDER DELIVERED BY ROBERT V. WRIGHT
REASONS
Background
1These are the reasons for the order granting requests for participant and presenter status that were dealt with at the preliminary hearing in this proceeding.
2On April 1, 2015, Mansoor Mahmood, Director, Ministry of the Environment and Climate Change, issued Renewable Energy Approval No. 9022-9STQS5 (the “REA”) to Grey Highlands Clean Energy GP Corp., operating as Grey Highlands Clean Energy Development LP (the “Approval Holder”), authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility with a total name plate capacity of 18.45 megawatts and a total of nine turbines in the Municipality of Grey Highlands, Grey County, Ontario (the “Project”).
3On April 16, 2015, Gary Fohr (the “Appellant”) filed a notice of appeal with the Environmental Review Tribunal (the “Tribunal”) seeking to revoke the decision of the Director on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to the natural environment. In addition, on the same date, the Appellant filed a notice of constitutional question seeking an order that s. 47.5, s. 142.1 and s. 145.2.1 of the Environmental Protection Act are invalid on the basis that they violate the Appellant’s right not to be deprived of security of the person except in accordance with the principles of fundamental justice, guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.
4The preliminary hearing was convened on May 14, 2015 in Flesherton, and continued by telephone conference call on May 19, 2015.
Relevant Rules
5Rules of Practice of the Environmental Review Tribunal
Naming of a Party
- In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:
(a) a person's interests may be directly and substantially affected by the Hearing or its result;
(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and
(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.
Naming of a Participant
- 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.
Role of a Participant
- 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.
Naming of a Presenter
- 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.
Role of a Presenter
- 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.
Similar Interests
- The Tribunal may direct persons who have similar interests to designate one person to act as their representative or to co-ordinate their participation in the proceeding.
Issues
6The issues are:
whether to grant requests for participant and presenter status in the hearing; and
procedural directions related to the scheduling of the hearing
Issue 1: Whether to grant requests for participant and presenter status in the hearing.
Municipality of Grey Highlands
7The Municipality of Grey Highlands (“Grey Highlands”) is the host municipality for the Project. It is represented by Dan Best, the Chief Administrative Officer. It seeks participant status in order to address the issue of shadow flicker and its potential impact on the health and safety of its residents. Grey Highlands states that the Project will have a direct impact on its residents and that it has a genuine public interest in the subject matter of the proceeding. It proposes to call one fact witness.
8The Director and the Approval Holder do not object to the request for participant status by Grey Highlands, and certain other persons seeking status, on the basis that the persons seeking status agree to abide by the procedural directions set out in the Approval Holder’s written response to the status requests dated May 13, 2015. The general terms of these proposed directions were agreed to by the parties, the persons seeking status and the Tribunal, as follows:
written and oral submissions are to be within the scope of the notice of appeal and the jurisdiction of the Tribunal;
sufficient details of the intended presentation and materials to be relied on are to given to the parties and filed with the Tribunal by Monday, May 25, 2015;
if applicable, files with the presentation a resume for any proposed expert witness, Form 5 Acknowledgment of Expert’s Duty and statement of qualification sought;
presentations will be approximately 30 minutes in length, unless the Tribunal has specified otherwise; and
where appropriate, evidence will not be duplicated.
9The Tribunal finds that Grey Highlands has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding, and grants it participant status subject to the above directions.
Brewster Lake Home Owners’ Association
10The Brewster Lake Home Owners’ Association (the “Association”) represents the residents of a community of 51 homes clustered around Brewster Lake. Its spokesperson for the preliminary hearing is Rob Coulter. Mr. Coulter or Mr. Lemoine would represent the Association at the hearing. The closest wind turbine in the Project will be located less than 800 metres (“m”) from a residence in the community, and less than 1 kilometre from the lake. The Association seeks participant status to address the issues of serious harm to human health and serious and irreversible harm to animal life and the natural environment. The Association asserts that it has a public interest in the proceeding.
11The Director objects to the granting of participant status to the Association. He notes that the Appellant is the President of the Association and that he acted as the representative of the Association in another recent renewable energy approval appeal heard by the Tribunal, Dingeldein v. Director (ERT Case No. 15-011), in which the Association was granted participant status. In addition, there is a request for presenter status in this proceeding made by Mr. Kitchen, who is a member of the Association. The Director argues that he seeks to address similar issues. The Director submits that the interests of the Association will be ably represented by the Appellant and it has not been demonstrated how the Association and Mr. Kitchen will make a relevant contribution to the hearing.
12The Approval Holder states that the Appellant, the Association and Mr. Kitchen have given few details of their proposed evidence. It takes the position that the issues of concern to the Association can be ably addressed by the Appellant on behalf of the Association, and that the Tribunal should refuse status to the Association and Mr. Kitchen as their participation and presentation, respectively, are unnecessary and an inefficient use of the Tribunal’s resources.
13In this hearing the Appellant is acting in his individual capacity and on behalf of his family. He does not seek to represent the Association. The Tribunal finds that the Association represents a large number of persons whose interests may be directly and substantially affected by the hearing or its result, has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. The Association is granted participant status as requested.
14The Association agreed to present its evidence through a representative on a panel with Mr. Kitchen, who is given presenter status as discussed below. They will give their evidence and presentations in accordance with the directions set out above regarding the granting of status to Grey Highlands, except that the approximate time limit for the panel presentation is extended to 45 minutes.
Richard Kitchen
15Mr. Kitchen seeks presenter status. He wishes to address environmental issues relating to the Natural Heritage Report. He believes that it did not take enough information, including documents, into consideration. He is not seeking qualification as an expert. He said that he would be prepared to testify as a member of panel with a representative of the Association and that they would work together to ensure as little duplication of their evidence as possible. The parties do not oppose Mr. Kitchen being granted presenter status and agreed with the panel arrangement.
16The Tribunal finds that Mr. Kitchen has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. He is granted presenter status subject to the directions set out above regarding the granting of status to Grey Highlands. His evidence will be in respect of environmental issues and is to be given as member of a panel with a representative of the Association. The panel shall make reasonable efforts to not give evidence in duplicate.
Nicholas Kouwen
17Mr. Kouwen requested presenter status. He is a retired professor of Civil and Environmental Engineering and a member of “Preserve Grey Highlands”. He lives 10 to 12 kilometers to the west of the Project. He seeks to make a presentation in the hearing regarding noise levels from the Project and their impacts.
18The Director objects to Mr. Kouwen’s request because it appears that he proposes to demonstrate that the noise modelling done for the Project does not accurately predict sound power levels at the noise receptors. He submits that the Tribunal has consistently held in prior cases that it must assume that the Project will operate in accordance with the limits set out in the REA. The Approval Holder agrees with the Director’s submission that Mr. Kouwen’s concern is beyond the Tribunal’s jurisdiction.
19The Tribunal finds that Mr. Kouwen has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. He is granted presenter status subject to the directions set out above regarding the granting of status to Grey Highlands, and without prejudice to the Director and Approval Holder making objections at the hearing that some of Mr. Kouwen’s proposed evidence is outside the jurisdiction of the Tribunal because it relates to whether the Project will operate in accordance with the limits set out in the REA.
Virginia Stewart Love
20Ms. Stewart Love lives in the vicinity of the Plateau Wind Project in Grey Highlands and seeks presenter status to address her experience with the health effects she has suffered since that project commenced. She states that her interest is both private and public, as she seeks to prevent the installation of more wind turbines that she alleges will have a cumulative effect contributing to the harm of more people.
21The Director and the Approval Holder did not object to the granting of presenter status for Ms. Stewart Love.
22The Tribunal finds that Ms. Stewart Love has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. She is granted presenter status subject to the directions set out above regarding the granting of status to Grey Highlands.
Jonathan Nichols
23Dr. Nichols owns property in the vicinity of the Project and is in the process of obtaining conservation authority approval to build an access road so that he may then obtain a building permit to build a retirement home on his property. Dr. Nichols requests presenter status to present his concern that his proposed building site would be within 550 m of one of the wind turbines in the Project, which would result in serious harm to his health, and that he has no other location available on which to build.
24The Director objects to the request, submitting that the concerns expressed by Dr. Nichols raise a land use planning issue, that is, that the REA will restrict his choice of building location, and do not relate to issues within the Tribunal’s jurisdiction. The Approval Holder argues that Dr. Nichols is saying that the Project could limit what he may be able to build and safely occupy on his land in the future, which is highly speculative, and is in essence a future land use concern, which is beyond the Tribunal’s jurisdiction.
25The Tribunal finds that Dr. Nichols has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. He is granted presenter status subject to the directions set out above regarding the granting of status to Grey Highlands, and without prejudice to the Director and Approval Holder making objections at the hearing that some, or all, of Dr. Nichols’ proposed evidence is outside the issues of the notice of appeal and the jurisdiction of the Tribunal.
Sandra Neil
26Ms. Neil lives close to Turbine 5 in the Project, and she requests presenter status in order to address the health conditions of herself and two neighbours, whom she believes will be seriously affected by its construction. She said that these neighbours also work on her farm.
27The Director and the Approval Holder do not oppose Ms. Neil being granted presenter status but they object to her giving any evidence on behalf of her neighbours on the basis they would have a limited ability to respond to that evidence and no means of testing it at the hearing because a presenter cannot call witnesses and it would be hearsay evidence.
28The Tribunal finds that Ms. Neil has a genuine interest in the subject matter of the proceeding and would make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding. She is granted presenter status subject to the directions set out above regarding the granting of status to Grey Highlands. In addition, her presenter status is without prejudice to the Director and Approval Holder objecting at the hearing to some, or all, of Ms. Neil’s proposed evidence regarding her neighbours’ health issues.
Issue 2: Procedural directions related to the scheduling of the hearing
29The Tribunal, with the agreement of the parties, established the schedule for the filing of witness statements and documents to be relied on in the hearing, participants’ and presenters’ statements, the hearing of motions, the hearing of evidence, and the filing of closing submissions, as set out in the order below.
ORDER
30The Tribunal grants the Municipality of Grey Highlands and Brewster Lake Home Owners' Association participant status, and grants Nicholas Kouwen, Virginia Stewart Love, Jonathan Nichols, Richard Kitchen and Sandra Neil presenter status, in this proceeding subject to any objections at the hearing by the Director and Approval Holder for reasons referred to above, and subject to the following directions:
written and oral submissions are to be within the scope of the notice of appeal and the jurisdiction of the Tribunal;
sufficient details of the intended presentation and materials to be relied on are to given to the parties and filed with the Tribunal by Monday, May 25, 2015;
if applicable, a resume for any proposed expert witness, Form 5 Acknowledgment of Expert’s Duty and statement of qualification sought, are to filed with the presentation;
presentations will be approximately 30 minutes in length, except for the panel presentation by the Association and Mr. Kitchen, which may be approximately 45 minutes in length; and
where appropriate, evidence will not be duplicated.
31The Tribunal gives the following procedural directions regarding scheduling:
May 25, 2015
Filing of Appellant’s witness statements and documents to be relied on in the hearing, filing of participants’ statements and presenters’ statements
June 5, 2015
Motions day, if required
June 8, 2015
Filing of Respondents’ witness statements and documents to be relied on in the hearing
June 15-17 and 24-26, 2015
Hearing
July 13, 2015
Filing of Appellant’s closing submissions
July 27, 2015
Filing of Respondents’ closing submissions
August 4, 2015
Filing of Appellant’s reply submissions
Participant Status Granted
Presenter Status Granted
Procedural Directions Ordered
“Robert V. Wright”
ROBERT V. WRIGHT
VICE-CHAIR
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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