Dingeldein v. Ontario (Environment and Climate Change), 2015 CanLII 51502

Environmental Review Tribunal

Issue Date: August 13, 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: May 5, 6, 7, 8 and 11, 2015 in Flesherton, Ontario

APPEARANCES

Parties

Douglas Edward Dingeldein Counsel: Asha James

Director, Ministry of the Environment and Climate Change Counsel: Andrew Weretelnyk

Grey Highlands Nominee (No. 1) Ltd. Counsel: John Terry and Grant Worden

Participant

Municipality of Grey Highlands Representative: Terry Mokriy

Presenters

Brewster's Lake Homeowners Association Representative: Gary Fohr

Virginia Stewart Love Self-represented

Elizabeth Bellavance Self-represented

DECISION DELIVERED BY HEATHER I. GIBBS AND DIRK VANDERBENT

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. (the "Approval Holder") 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 REA 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 his rights to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter").

4The hearing was held May 5, 6, 7, 8, and 11, 2015 in Flesherton, Ontario. Closing submissions were filed in writing by the parties.

5The Tribunal has considered all of the evidence of the parties, participant, and presenters, and the parties' submissions, in detail. In this decision, the Tribunal has only included a summary of the more significant evidence and submissions provided.

6Pursuant to s. 145.2.1 of the EPA, the onus is on the Appellant to establish that engaging in the Project in accordance with the REA will cause serious harm to human health and/or serious and irreversible harm to plant life, animal life or the natural environment.

7For the reasons that follow, the Tribunal finds that the Appellant has failed to meet either the Health Test or the Environmental Test, and has not established the necessary elements of a s. 7 Charter violation, and, therefore, the appeal is dismissed.

Relevant Legislation

8Environmental 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.

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Issues

9The issues are:

Issue No. 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health;

Issue No. 2: Whether the REA contravenes the Appellant's right to security of the person under s. 7 of the Charter; and

Issue No. 3: Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

Discussion, Analysis and Findings

Issue No. 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health

10On this issue, the Appellant brought both lay witness testimony and expert opinion evidence. Mr. Dingeldein testified, and filed witness statements, medical documents and transcripts of testimony from other REA appeals by three individuals who allege to have suffered health effects due to living near wind turbine projects: Donna Weaver, Barbara Ashbee and Sandra McLeod ("post-turbine witnesses").

11In addition, presenters Virginia Stewart Love, Gary Fohr on behalf of Brewster's Lake Homeowners Association ("BLHA"), and Elizabeth Bellavance on behalf of We're Against Industrial Turbines – Plympton Wyoming Ontario ("WAIT-PW"), all testified in support of the Appellant's case on the Health Test. The participant Municipality of Grey Highlands (the "Municipality"), through its witness Terry Mokriy, also presented evidence of harm to human health regarding risks to public safety.

12The Appellant called expert opinion evidence from the following witnesses regarding the Health Test:

• Dr. Michael Nissenbaum was qualified by the Tribunal to give opinion evidence as a radiologist with expertise in diagnostic imaging, with knowledge of medical physics, internal medicine, and primary care;
• Dr. Jeffrey Aramini was qualified to give opinion evidence as an epidemiologist with knowledge of public health, statistics and statistical analysis;
• Dr. Roy Jeffrey was qualified to give opinion evidence as a family physician with specialized expertise in rural family medicine; and
• Richard James was qualified to give opinion evidence as an expert acoustician.

13The Approval Holder called expert opinion evidence from the following witnesses regarding the Health Test:

• Dr. Kenneth Mundt was qualified to give opinion evidence as an expert epidemiologist;
• Shant Dokouzian was qualified to give opinion evidence as an engineer with expertise in noise and shadow flicker and the design, impact assessment, including risk and public safety assessment, and post-construction monitoring, of wind farms;
• Dr. Robert McCunney was qualified to give opinion evidence as a medical doctor specializing in occupational and environmental medicine with particular expertise in health implications of noise exposure;
• Dr. Kieran Michael Moore was qualified to give opinion evidence as a physician with expertise in family and emergency medicine, public health, and preventative medicine; and
• Robert O'Neal was qualified to give opinion evidence as an expert acoustician with expertise in low frequency noise.

14The Director called one expert witness in its health case, Dejan Zivkovic, who was qualified to give opinion evidence as an engineer with expertise in noise, noise modeling and the application of the requirements of the Ministry of the Environment and Climate Change ("MOECC").

15The evidence provided by each of the witnesses that is relevant to the Tribunal's analysis is discussed throughout the submissions and analysis sections.

16Much of the evidence heard by the Tribunal in this appeal has been heard by previous Tribunal panels in other appeals. The Appellant focused on more recent studies and argued there is an evolving understanding of the impact of wind turbines on human health. The Tribunal will describe these recent studies before turning to the expert commentary on them, followed by evidence relating to infrasound, the post-turbine witnesses' health claims, and public safety.

Scientific Reports

17In this hearing, three recent scientific reports were the subject of comment by witnesses who testified, and the focus of counsel submissions. These reports are:

• Wind Turbine Noise and Health Study: Summary of Results, Health Canada, 2014-10-30 ("Health Canada Summary");
• Understanding the Evidence: Wind Turbine Noise. The Expert Panel on Wind Turbine Noise and Human Health, Council of Canadian Academies, 2015 ("CCA Report"); and
• Wind Turbines and Health: A Critical Review of the Scientific Literature, McCunney et al, Journal of Occupational Environmental Medicine, Volume 56, Number 11, November 2014 ("McCunney Review").

Health Canada Summary

18The full study undertaken by Health Canada has not yet been published, and the results are only available in summary form at this time. The Health Canada Summary states that it is "preliminary" and that the results should only be considered final after they have been peer-reviewed. It finds a statistical association between wind turbine noise (WTN) levels and self-reported annoyance. At s. 5.2, it states that a "statistically significant increase in annoyance was found when WTN levels exceeded 35 dBA."

19The Health Canada Summary notes in s. 5.2 "Community Annoyance Findings" that "Statistically significant exposure-response relationship were found between increasing WTN levels and the prevalence of reporting high annoyance. These associations where found with annoyance due to noise, vibrations, blinking lights, shadow and visual impacts from wind turbines. In all cases, annoyance increased with increasing exposure to WTN levels."

20Section 5.3, entitled "Annoyance and Health", concludes that "although Health Canada has no way of knowing whether these conditions may have either pre-dated, and/or are possibly exacerbated by, exposure to wind turbines, the findings support a potential link between long term high annoyance and health".

21The Health Canada Summary also states that the study results "do not permit any conclusions about causality" and "should be considered in the context of all published peer-reviewed literature on the subject."

CCA Report

22The CCA Report is a peer reviewed published paper describing a literature review conducted by a panel of experts who conclude, at p. 96, that "the evidence is sufficient to establish a causal relationship between exposure to wind turbine noise and annoyance. However, knowledge gaps remain on the question of whether factors such as visual impacts and personal attitudes modify the noise-annoyance relation." The CCA Report repeats, at p. 97 that "There is sufficient evidence to support a causal relationship for annoyance only."

23Two other aspects of the CCA Report that are relevant to this appeal are its definition of "annoyance", and its findings with respect to infrasound.

24The CCA Report used the following definition of annoyance, at p. 67: "a feeling of displeasure evoked by a noise", and "any feeling of resentment, displeasure, discomfort and irritation occurring when a noise intrudes into someone's thoughts and moods or interferes with activity." It states that the expert panel "used this broad descriptive definition, but stresses that in most studies described below, researchers used questionnaire data in which respondents replied based on their own perception and recollection of annoyance."

25With respect to infrasound, the CCA Report found, at p. 97, "no evidence that wind turbines routinely produce infrasound at levels significantly higher than other environmental sources, such as the wind itself, or at levels associated with the known health effects of infrasound."

McCunney Review

26Drs. McCunney and Mundt, both of whom testified as experts at this hearing, are two of the co-authors of this review. The review examined the literature related to health effects of wind turbines, and found, as summarized in an abstract provided at the beginning of this peer reviewed published paper:

Results:

(1) Infrasound sound near wind turbines does not exceed audibility thresholds.

(2) Epidemiological studies have shown associations between living near wind turbines and annoyance.

(3) Infrasound and low-frequency sound do not present unique health risks.

(4) Annoyance seems more strongly related to individual characteristics than noise from turbines.

27Regarding annoyance, the McCunney Review states:

Reviewing complaints in the vicinity of wind farms can be effective in determining the level and extent of annoyance because of wind turbine noise, but there are limitations to this approach. A complaint may be because of higher levels of annoyance (rather annoyed or very annoyed), and the amount of annoyance required for an individual to complain may be dependent on the personality of the person and the corresponding attitude toward the visual effect of the turbines, their respective attitudes toward wind energy, and whether they derive economic benefit from the turbines.

Expert Witness commentary

28Dr. Aramini testified that the link between chronic annoyance, sleep disturbance, and stress with a multitude of serious health outcomes has been well established in the literature. He testified that annoyance has been considered an "adverse health effect" in various publications, including by Health Canada, and cited a 2006 study (unrelated to wind turbines) which "confirmed a causal link between chronically strong annoyance [from neighbourhood and traffic noise] and increased morbidity" (Noise Health. 2006 Apr-Jun; 8(31):63-79).

29Regarding the Health Canada Summary, Dr. Aramini, at para. 7 of his witness statement, acknowledged that "the authors report of significant associations between WTN and annoyance, and WTN annoyance and adverse health effects, but that there were no significant associations between WTN and adverse health effects." Dr. Aramini then expressed his opinion that, although there may be epidemiological reasons for the author's conclusion that there are no significant associations between WTN and adverse health effects, the authors of the Health Canada Summary fail to provide sufficient information for the reader to scientifically assess and interpret these findings. Dr. Aramini nonetheless concluded at para. 4 of his witness statement that "there are key findings presented by the authors that lead me to believe that the study results support the hypothesis that wind turbine noise is associated with adverse health effects."

30Regarding the CCA Report, Dr. Aramini emphasized the authors' conclusion that there is sufficient evidence to establish a causal relationship between WTN and annoyance, but that there is inadequate evidence to draw conclusions about the presence or absence of a causal relationship between WTN as all other health effects.

31Dr. Aramini expressed his opinion that "more than enough evidence exists now to act to minimize public health risks associated with IWT [Industrial Wind Turbine] exposure."

32Dr. Nissenbaum expressed his opinion that, as it is known that sleep disturbance will over the short, medium, and long term result in a large basket of adverse health effects, the only 'proof' required in this proceeding is to demonstrate that IWTs placed in proximity to dwellings results in ongoing sleep disturbance. He stated that it follows that IWTs in proximity to dwellings can and will result in adverse health effects. Dr. Nissenbaum pointed out that Health Canada has accepted that "change in percent highly annoyed" is considered a noise induced endpoint as health effect. He also stated that the relationships between WTN, annoyance and sleep disturbances are easy to see from the qualitative point of view, less so from the quantitative.

33Dr. Nissenbaum referred to a study he conducted comparing sleep and general health outcomes between participants living close to IWTs and those living further away from them. The report of this study was published in a peer review journal in 2012 and concluded that there was a significant dose-response relationship between sleep quality and general health and log-distance to the nearest IWT after controlling for gender, age, and household clustering.

34The responding experts all testified that, based on the current research, no association between wind turbine noise and adverse health effects has been demonstrated.

35Dr. Mundt testified that in epidemiology "the critical evaluation of the individual studies and weight-of-evidence synthesis of the body of evidence available on a given topic is the preferred approach for determining causation." He testified that case reports and case series are very useful for hypothesis formulation, but "they cannot be used to test for the presence of a valid statistical association."

36Dr. Mundt confirmed that neither the results described in the Health Canada Summary, nor the CCA Report, change his overall conclusion that "there is no epidemiological evidence sufficient to conclude that IWTs cause harm to human health and that there is mounting evidence that self-reported annoyance (which is not an adverse health effect) likely reflects individual perception and attitudes toward the wind turbines rather than the noise emissions." He commented that Dr. Aramini's conclusions are beyond what the Health Canada study, as well as the CCA Report, can, and do, find. In particular, Dr. Mundt testified that Dr. Aramini's assertion that "annoyance causes health outcomes" is unsubstantiated. He pointed to the fact that Dr. Michaud, lead author of the Health Canada study stated in a recent presentation that the "associations found between the WTN annoyance and other health endpoints were no longer significant in any of the final multiple regression models, which adjust for all variables known to have an effect on the factors being assessed (e.g. BMI, smoking status, age, income, other annoyances, etc...)."

37In his witness statement, Dr. McCunney stated:

Significantly, the authors of the CCA literature review note that "little is known about the baseline prevalence of annoyance." I agree with this assertion. Without this information, it is impossible to determine whether an incremental increase in stimulus (audible or visual) has any impact on the baseline level of annoyance present as a result of the day-to-day rigors of life.

38Dr. McCunney expressed his opinion that annoyance associated with wind turbines is a subjective phenomenon, which appears to be related primarily to attitudes to the visual impact of wind turbines and economic benefit associated with wind farms. In his opinion, annoyance is not a health effect. He stated that he was unable to find "annoyance" in any medical dictionary, nor could he locate it in the 10th edition of the International Classification of Diseases. For this reason, he asserted that claims that "annoyance" is an adverse health effect reflect individual opinions and not the consensus of the international medical community. He stated that the constitution of the World Health Organization ("WHO") (1948) and its subsequent publications do not indicate that the WHO considers "annoyance" an adverse health effect.

39Dr. Moore noted that the CCA Report expert panel "found limited or inadequate evidence to show any correlation between wind-turbine noise and sleep disturbance, stress, cardiovascular disease, diabetes, hearing impairment, tinnitus, cognitive or task performance, psychological health (anxiety, depression, psychological distress) or health-related qualify of life issues."

40Dr. Moore stated that the Health Canada Summary includes "very reassuring evidence" in that there was "no association between cortisol concentration, blood pressure, sleep efficiency, and exposure to wind turbine noise." He concluded that "To date, the scientific literature does not provide any convincing evidence of health effects, at current regulated setbacks and sound levels in Ontario."

Evidence respecting Post-turbine witnesses

41As noted above, the Appellant filed witness statements, medical records and transcript of testimony by three individuals who allege to have suffered harm from wind turbine emissions. Dr. Jeffrey testified that he considers each of three post-turbine witnesses to be suffering from symptoms caused by wind turbines. In coming to his conclusion, Dr. Jeffrey reviewed their witness statements and available medical records. Dr. Jeffrey confirmed that he did not meet any of the post-turbine witnesses in person. He testified that, as a rural family physician, he relies on the information patients give him, in order to come to a provisional diagnosis and course of treatment. In this case, the self-reported symptoms of the post-turbine witnesses, together with their statements that they experienced relief when out of the vicinity of the turbines, indicate to Dr. Jeffrey that they "qualify for a presumed diagnosis of [adverse health effects from industrial wind turbines] AHE/IWT." Dr. Jeffrey gave his opinion as a family physician, having read the literature on impacts of wind turbines, that "certain conditions create a higher probability of adverse effects;" with variables being both "installation dependent" and "patient dependent."

42Dr. Moore testified that a proper medical assessment includes a comprehensive patient history as well as a physical exam. Having been asked to review the post-turbine witness' documentation, he found "a very limited exposure history and a possible bias towards stating that the wind turbines are the likely source of the symptoms." Dr. Moore testified that "to ascribe those symptoms to one etiology would be irrational given the evidence provided."

43Dr. McCunney had similar views respecting the post-turbine witness evidence, and testified:

A proper causality assessment for an individual includes a thorough review of symptoms and past medical history with appropriate diagnostic studies. The determination of causality is an important exercise in health care, but it is customarily only undertaken after diagnosis and treatment. A causality assessment where noise exposure may be a factor should also consist with a thorough review of noise measurements conducted in the vicinity of the individual's home along with a comparison of the symptoms, diagnosis and noise levels in light of what has been published in the peer-reviewed scientific literature.

Evidence respecting audible and inaudible (infrasound) noise emissions

44Mr. James testified respecting studies which indicate that modern industrial scale up-wind wind turbines produce infrasound pulsations related to the blade pass frequency. Mr. James described his work with some of the members of the Shirley community and the Wisconsin Brown County Board of Health in the United States respecting the Shirley Wind Farm "to better understand why some families have experienced adverse health effects sufficient to cause them to have vacated their homes." He also described the Cape Bridgewater (Australia) study, released in February 2015. Mr. James stated that study "supports the findings of the studies conducted at Shirley Wind", and "proves" that there are pathways, other than visual or audible stimuli, that affect some people.

45Mr. James also testified that there are deficiencies relating to confidence intervals in the sound modelling noise assessment submitted in support of the Approval Holder's application for the REA, which, if corrected, would increase the predicted noise level by 5 dBA. He said that at Mr. Dingeldein's residence this would result in an increase in the noise level from 31.9 dBA to 36.9 dBA.

46Dr. Moore commented that the CCA Report authors "found no evidence that wind turbines routinely produce infra-sound at levels significantly higher than other environmental sources such as the wind itself or at levels associated with known health-effects of infra-sound."

47Mr. O'Neal testified that, due to the evolution of modern wind turbine technology, it is not valid to draw conclusions about the sound profile of the Senvion MM92 wind turbines proposed for this Project (including low frequency and infrasound characteristics) on the basis of the performance of turbines of a different model. Similarly, generic comparisons cannot be made between wind farm projects because "the sound environment at a particular point in space depends on multiple other factors that are not related to turbine make and model." Mr. O'Neal outlined the specific reasons why he believes none of the studies relied on by Mr. James are applicable here. Mr. O'Neal also testified that he believes it is appropriate to use dBA weighting to measure wind turbine noise, and that the 40 dBA limit imposed by regulation in Ontario will ensure by default that low frequency and infrasound are below objective criteria recommended by the American National Standard Institute.

Evidence of Participant and Presenters

The Municipality of Grey Highlands

48Mr. Mokriy testified on behalf of the Municipality. He expressed the concern that the placement of turbines 1, 2, 3 and 4 of this Project will cause an "unacceptable risk to public safety", because the minimum setback under the Green Energy Act of blade length plus 10 metres ("m") (in this case 56.5 m), "is inadequate and if allowed will cause serious harm to health." Those turbines are sited at 61, 68, 117 and 186 m, respectively, from Municipal Road 63, which the Municipality submitted create various "real and palpable risks" to "the persons legitimately on that road and road allowance."

49The Municipality pointed to a local by-law requiring a setback for wind turbines from a road by a distance of 1.25x hub height + blade length (in this case a total of 183.125 m). It submitted that this greater setback is supported by a report by the Chief Medical Officer of Health which recommends that Ontario setback distances for wind turbines take into account the potential risk of injury from ice throw and structural failure of wind turbines, and states that the risk of injury is minimized with setbacks of 200 to 500 m. The Municipality also referenced a study conducted by KPFF Consulting Engineers, which concluded "a safety setback of 625 feet from each turbine tower will provide protection of people and facilities from the possibility of blade throw; tower failure and ice throw." It noted that no risk assessment was provided by the Approval Holder.

50The Municipality stated that its "case for the existence of real and palpable risk rests on the following:"

1. Known recent turbine failures, ranging from blade failure to fire to turbine collapse, that have occurred worldwide including in Ontario, in other provinces and nearby US states;
2. Information provided by turbine manufacturers and consultants;
3. Signage posted by Enbridge Energy on an Ontario provincial highway; and
4. The Emergency Response Plans provided to Grey Highlands Council regarding the Plateau Wind Project currently operating in the Municipality.

51The Municipality is "seeking to have the developer of this project directed to work with the Municipality to develop and implement acceptable means by which to mitigate the risks." It submitted that:

If this Tribunal is inclined to allow this Zero Emissions People Wind Farm in the Municipality of Grey Highlands to proceed without change, the Municipality of Grey Highlands respectfully requests that the approval be on condition that the proponent agrees to undertake and finance reasonable mitigating measures, as negotiated in good faith with the Municipality, to minimize the risk to road users and that those agreed to measures be committed to prior to the final authorizations for the project to proceed.

Virginia Stewart Love

52Ms. Stewart Love resides in the area of the existing Plateau Wind I and II projects. Ms. Stewart Love testified that she immediately began to experience negative health impacts once those projects began commercial operation in February 2012. She included a note from her family doctor stating that "she has no other physical explanation for her symptoms" and that the doctor does "not believe that the symptoms are psycho-somatic." The letter concludes with a statement that "it would appear that the main factor contributing to her symptoms is her proximity to the wind turbines."

53Ms. Stewart Love is of the view that the Tribunal should "give weight to the growing body of cautionary science as well as the first hand experiences of numerous others negatively affected by IWTs." She submits that the Tribunal should rescind the REA because "the health of a small but significant number of people living in close proximity to IWTs is negatively affected." She hopes the Government of Ontario with rethink the regulations "permitting the inappropriate siting of IWTs and the inappropriate protocols for measuring turbine noise, and maybe even a realization that people across the province that are suffering from a flawed renewable energy strategy need some redress."

Brewster's Lake Homeowners Association

54Mr. Fohr, President of BLHA, testified to concerns that the Project will cause negative health effects for the community. He stated that Turbine 4 is 1.115 km from the southern residential area of Brewster's Lake.

55Mr. Fohr testified that numerous Noise Reports have been published on the Approval Holder's website over the years, but only the first version, which was found to be insufficient by the MOECC, was published for public comment on the Environmental Registry. He testified that the members of BLHA had no opportunity to comment on revisions made to the Noise Reports. He testified to his reasons for believing that the predicted 40 dB isopleth in the Noise Reports is unreliable. In addition, Mr. Fohr testified that there is a child residing in the community of Brewster's Lake with a particular sensitivity to noise.

Elizabeth Bellavance

56Ms. Bellavance is a member of WAIT-PW. She stated that WAIT-PW supports the Appellant because the REA will cause serious harm to human health "i.e. the physical, psychological and social well-being of sensitive Grey Highlands' residents forced to live in close proximity to IWTs."

57Ms. Bellavance submitted that "inequity in opportunity to negotiate setbacks is a key discriminatory element in the legislative framework and contributes to diminished health, particularly social well-being."

58With regard to infrasound and low frequency noise ("LFN"), she highlighted the fact that MOECC does not test for LFN, which she fears can harm humans. She stressed the importance of community health and well-being, and the negative effects of social injustice.

Submissions by the Appellant

59With respect to the issue of whether wind turbines cause harm to human health, the Appellant submitted that legal causation need not be the same standard as medical causation. For this reason the Appellant submitted that Dr. Mundt's opinion that none of the studies to date are capable of proving medical or scientific causation, is not helpful; the Tribunal is not tasked with addressing medical or scientific causality, but rather legal causality.

60The Appellant submitted that because a statistically significant association has been found between wind turbines and annoyance in a number of studies, the Tribunal can conclude on a balance of probabilities that "the association is not due to some other cause." The Appellant submitted this is the approach that was taken by the Canadian Council of Academies ("CCA") in its 2015 CCA Report, which found that there was sufficient evidence to find a causal relationship between wind turbine noise and annoyance.

61The Appellant also relies upon the opinion of Dr. Aramini, who testified that both the recently released Health Canada Summary and the CCA Report "provide strong evidence supporting a causal link between IWT (industrial wind turbine) exposure and annoyance." Dr. Aramini's view is that sufficient evidence "exists now to act to minimize public health risks associated with IWT exposure."

62The Appellant outlined the key findings of the CCA Report, set out in para. 10 of Dr. Aramini's witness statement, as follows:

• Sufficient evidence to establish a causal relationship between WTN and annoyance.
• Evidence to suggest a direct causal or an indirect (via annoyance) relationship between WTN and sleep disturbance. Evidence is however considered more limited than the relationship between WTN and annoyance.
• Lack of evidence of a direct association between WTN and stress. However, several studies showing an indirect association between WTN associated annoyance and stress.
• Evidence to suggest a lack of causality between WTN and hearing loss.
• Inadequate evidence to draw conclusions about the presence or absence of a causal relationship between WTN as all other health effects.

63The Appellant submitted that this is the evidence that the Tribunal was looking for in its decision in Erickson v. Director (Ministry of the Environment), [2011] O.E.R.T.D. No. 29 ("Erickson"), when it stated that further research was needed, especially in the area of indirect health effects. The Appellant quotes the following excerpt from para. 872 of Erickson:

This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the Tribunal demonstrates that they can, if facilities are placed too close to residents. The debate has now evolved to one of degree. The question that should be asked is: What protections, such as permissible noise levels or setback distances, are appropriate to protect human health?

64The Appellant submitted that the Health Canada Summary provides that the dBA level at which "annoyance" from wind turbines occurs is 35 dBA. The Appellant submitted that the Health Canada Summary also provides evidence of "the serious health effects associated with wind turbine noise which include, but are not limited to, sleep disturbance, increased blood pressure and hair cortisol", which he argues are "consistent with Health Canada's position that annoyance is a serious adverse health effect."

65Regarding the post-turbine witnesses, the Appellant submitted that the Tribunal should give significant weight to their evidence "given the extremes to which each witness has gone in order to try and gain relief from the adverse health effects they experienced from living in close proximity to industrial wind turbines."

66The Appellant submitted that the Tribunal should rely on Dr. Jeffrey's evidence, that the most reasonable presumed diagnosis for the three post-turbine witnesses is "adverse health effects from industrial wind turbines ("AHE/IWT")." The Appellant argued that in coming to this conclusion, Dr. Jeffrey relied upon "the peer reviewed, published, case definition of Dr. McMurtry, which is the only case definition that addresses adverse health effects associated with living in close proximity to industrial wind turbines." The Appellant submitted that it is not improper to provide a provisional diagnosis of AHE/IWT while ordering further testing.

67The Appellant submitted that Dr. McMurtry's case definition is not weakened by its inclusion of the criterion that it applies to a person living within 10 kilometres ("km") of an industrial wind turbine, as this is consistent with the Health Canada Summary that showed infrasound levels from wind turbines were measured up to 10 km from turbines. The Appellant submitted that, although annoyance or wind turbine syndrome is not a recognized classified disease, individuals nonetheless suffer adverse health effects from living in close proximity to wind projects, and that "diseases get classified as a result of individuals suffering from certain symptoms or a syndrome."

68The Appellant also relied on concessions made by the respondents' experts. In this regard, he highlighted Dr. McCunney's acknowledgement that it is possible that the body could react to frequencies below 10 hertz, and it is possible for a physician to make a provisional diagnosis and pursue further testing. Mr. O'Neal acknowledged that two sound sources at the same decibel level could have different sound qualities, due to their frequency or acoustic signatures.

69With respect to inaudible sound, the Appellant relied on the opinion evidence of Mr. James and his position that "there is a specific quality about the inaudible component of wind turbine sound that results in complaints of adverse effects."

70The Appellant argued that the responding evidence by the Approval Holder and Director (through witnesses Dokouzian, O'Neal and Zivkovic) provided no research or studies to support their hypothesis that the MOECC's sound modelling guidelines are "extremely conservative."

71The Appellant argued that the current 550 m setback and 40 dBA limit are "not protective of indirect health effects, in fact, the current limits ensure that the Appellant will suffer serious indirect health effects", and noted, in this regard, Dr. Moore's agreement that the current Ontario setbacks are concerned with protecting against direct adverse health effects only.

72The Appellant submitted that even if annoyance is a psychological response and not a physiological response, as suggested by the Respondents' medical experts, it could still be considered serious harm under the Health Test because psychological harm constitutes harm to human health. The Appellant submitted that where the psychological harm has driven an individual from his or her home and causes an increase in stress-related physiological effects, it must be found to be a serious harm to human health.

73The Appellant submitted that the harm from wind turbines is "serious harm" because of where it occurs; i.e., in an individual's home, at night. The Appellant argued that the indirect effects of wind turbines interrupt the body's regenerative process and "that because annoyance from wind turbine noise manifests itself through sleep disturbances, at a time when the body is trying to recover and regenerate, the level of harm is elevated to serious." The Appellant submitted that this harm is analogous to the intrusion on the sanctity of the home referenced by the Supreme Court of Canada in its comments on an individual's privacy rights under s. 8 of the Charter in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, ("Tessling") at para. 22.

74The Appellant argued that "it would be unconscionable to force the Appellant to suffer these serious adverse health effects so that science can catch up," and "at some point, that Tribunal has to prohibit the government and the wind companies from using rural residents living in close proximity to wind turbines as lab rats to understand their effects on health."

Submissions by the Approval Holder

75The Approval Holder submitted that its expert evidence should be preferred over that of the Appellant, and that evidence from lay witnesses such as Mr. Dingeldein, Ms. Bellavance, Ms. Stewart Love and Mr. Fohr is insufficient to prove that the operation of the Project will cause serious harm to the Appellant's health.

76The Approval Holder observed that the Tribunal has repeatedly found in previous REA appeals that there is general scientific consensus that causation has not been established between wind turbine noise and human health impacts at the setback distances regulated by the province of Ontario. The Approval Holder submitted that none of the evidence adduced by the Appellant in this case is "new" scientific evidence or challenges that established finding.

77The Approval Holder submitted that Mr. Dingeldein's concern about potential sleep deprivation is fully addressed by the expert evidence of Dr. McCunney, and that his claims of current typical nighttime noise levels at his home are unsupported by any measurement. The Approval Holder submitted that the Tribunal should rely on Dr. McCunney's opinion that there is insufficient information to make any medical diagnosis relating to Ms. Stewart Love, and that the BLHA's concern relating to children with autism spectrum disorder and wind turbines is unsupported by scientific or medical literature. With respect to Ms. Bellavance's presentation, the Approval Holder pointed out that it did not change Dr. Mundt's opinion as she did not apply proper epidemiological research methods which are critical to arrive at valid scientific conclusions.

78The Approval Holder submitted that the Project is in full compliance with the applicable noise regulations, and this was confirmed by expert testimony of Mr. Dokouzian and Mr. Zivkovic. The Approval Holder submitted the Tribunal should accept the expert opinion of these witnesses over that of Mr. James, who is not licensed or registered as a professional engineer and who, it alleged, is not impartial due to "anti-wind turbine advocacy activities." In any event, the Approval Holder submitted that any uncertainty in model predictions is inconsequential because the REA requires the implementation of mitigation measures if post-construction sound measurements exceed the values set out in the REA.

79The Approval Holder submitted that the Appellant has provided no relevant or meaningful information regarding low-frequency noise and infrasound. The Approval Holder argues that Mr. O'Neal testified that infrasound levels above 50 dB have existed in areas without wind turbines for many years without incident or complaint, and that there is no merit to Mr. James' suggestion that infrasound levels of 50 dB and above can cause adverse health effects, nor is he qualified to make such a statement.

80The Approval Holder submitted that the self-diagnosis evidence from Ms. Weaver, Ms. Ashbee and Ms. McLeod is unhelpful for a number of reasons, including prior undiagnosed conditions, alleged symptoms that went unreported to doctors, differences in turbine design and resulting sound emissions from earlier projects as compared to this Project, as well as the fact that this same evidence was rejected by the Tribunal in previous appeals.

81With respect to Dr. Jeffrey's opinion on the post-turbine witnesses' documents, the Approval Holder submitted it should be given little weight as Dr. Jeffrey is an active opponent of wind projects, he did not conduct a proper diagnostic evaluation, and he relies on a proposed case definition that has been found by the Tribunal to be a "work in progress." The Approval Holder pointed to the opinions of Dr. Moore and Dr. McCunney that reliance by a medical professional on a proposed case definition that has not been validated may in fact cause harm to a patient.

82The Approval Holder submitted that the Appellant has led no evidence regarding public safety (i.e., potential for tower collapse, blade throw, ice throw and fire). The Approval Holder acknowledged that the Municipality raised these concerns, but stated that no expert evidence was led to support these lay expressions of concern. Rather, the Approval Holder pointed to the expert opinion evidence of Mr. Dokouzian that the risk of any of the listed concerns materializing is very low and continually decreasing due to improvements in turbine design.

Submissions by the Director

83The Director submitted that the evidence adduced by the Appellant fails to meet the Health Test threshold, namely the onus of establishing on a balance of probabilities that the Project will cause serious harm to human health.

84The Director submitted that, although Dr. Nissenbaum was qualified by the Tribunal as an expert in diagnostic imaging, the opinions he expressed did not fall within that area of expertise. The Director submitted that there is no evidence of a causal connection between wind turbine noise and serious harm to human health, pointing out that Dr. Nissenbaum himself regarded his 2010 questionnaire survey in Maine, which partly formed the basis for his opinion in this appeal, as "exploratory" and "equivalent to a phase 1 [drug] trial that raised serious questions."

85The Director submitted that Dr. Aramini's evidence is insufficient for the Tribunal to conclude that the Project will cause serious harm to human health, stating:

Dr. Aramini concludes that since the Health Canada study found an association between wind turbine noise and annoyance and an association between annoyance and several self-reported health effects, "exposure to WTN beyond some level will lead to adverse health effects in some people." He does not set out at what level this will occur.

86The Director submitted that the studies relied upon by Mr. James are unreliable for several reasons including: they are neither scientific studies nor health studies, they used unreliable equipment (unsophisticated version of a microbarometer), and are not comparable to the Project as they relate to very different wind turbine models. The Director pointed to Mr. James' admission in cross-examination that the Shirley and Cape Bridgewater studies, similar to Dr. Nissenbaum's survey in Maine, are "analogous to phase one of a drug trial". The Director submitted that Mr. James was not able to identify any errors in the Approval Holder's Noise Assessments, or any non-compliance with the MOECC Noise Guidelines.

87The Director argued no weight should be placed on the post-turbine witness testimony as it involved self-diagnosis by lay witnesses, and there were no sound measurements to accompany their testimony.

88The Director submitted that Dr. Jeffrey's diagnoses of "presumed AHE/IWT" for Ms. Ashbee, Ms. Weaver and Ms. McLeod "falls well below the standards of contemporary medicine and ought to be given no weight." In this regard, the Director argued that Dr. Jeffrey's diagnosis is inconsistent with the proper diagnosis process that he himself described, in that he had not taken a complete medical history or performed a physical examination. Further, the Director submitted that Dr. Jeffrey's reliance on Dr. McMurtry's article "Towards a Case Definition of AHE/IWT" is "misplaced". The Director also submitted that Dr. Jeffrey's evidence should be given no weight because he is not a neutral expert, as he actively opposes a wind project near his home, and is on the board of the Society for Wind Vigilance.

89The Director submitted that Mr. Dingeldein's evidence amounted to no more than an expression of concerns, with no evidence of the anticipated sound level from the closest turbine to his home. Similarly, the Director submitted that the public safety issues raised by the Municipality did not "rise above the level of concerns," noting there was no scientific risk analysis. The Director submitted that Mr. Dokouzian fully addressed the Municipality's concerns.

Discussion, Analysis and Findings on Issue 1

90The expert opinion evidence received in this proceeding indicates a divergence of opinion regarding:

• the meaning of "annoyance";
• whether annoyance, however this term may be defined, in and of itself, constitutes an adverse health effect;
• whether current research demonstrates that annoyance is caused by the presence and operation of industrial wind turbines or only shows that there is observed association between annoyance and the presence and operation of industrial wind turbines;
• whether annoyance associated with or caused by industrial wind turbines will indirectly result in adverse health effects; and
• whether factors such as visual impacts and personal attitudes modify the noise-annoyance relation.

91The Tribunal's role is to consider the totality of the scientific and other evidence presented in this hearing and make a legal determination whether the Appellant has established, on a balance of probabilities, that the Health Test has been met. Having considered the totality of the evidence, the Tribunal finds that the Health Test has not been met, on a balance of probabilities.

92As noted by the Approval Holder in its submissions, all of the studies before the Tribunal in this appeal, but for one additional literature review, were also before the Tribunal in Lambton (County) v. Ontario (Director, Ministry of the Environment and Climate Change), 2015 CarswellOnt 2990 ("Lambton"). The CCA Report, while it speaks to causation and has been carefully considered in this appeal, is a review of the same studies that have been before the Tribunal in previous REA appeals.

93The Tribunal notes that both the CCA Report and the McCunney Review are literature reviews, in which neither conducted their own independent empirical study to further clarify annoyance.

94The Health Canada Summary has been cited in many Tribunal hearings, and considered by the Divisional Court in Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404 ("Dixon"), specifically at para. 86, which states:

To the extent that the Health Canada Study suggested that there was an association between wind turbine noise and annoyance, it did not suggest anything which was unknown or disputed in the K2 and Armow Wind Project hearings. The opinion evidence before the Tribunal in those hearings was that an association was not sufficient to permit an inference of causation. The Health Canada Study dealt with the association between the two, but specifically declined to state an affirmative conclusion about causation.

95The Appellant argued that the "legal" standard of causation required under s. 145.2.1 of the EPA should not be as stringent as the "medical" standard of causation required by epidemiologists. The Appellant argued that the evidence supports a legal finding on a balance of probabilities, that wind turbines cause harm to human health and therefore this Project will do the same.

96This argument was raised by previous appellants in other REA appeals. Most recently, the Tribunal explained its analysis in Lambton, concluding that it could draw an inference of causation where the evidence so warranted. The Tribunal in this case adopts the following analysis from Lambton, itself citing an earlier Tribunal decision in Kroeplin (which was upheld by the Divisional Court as part of the Dixon decision):

124The appellants in the Kroeplin proceeding asserted that the Tribunal in past decisions had wrongly required that (i) the appellants prove with scientific certainty that industrial wind turbines cause harm; and (ii) the evidence of post-turbine witnesses alone, without the qualified diagnostic skills of a health professional, is not sufficient to prove causation. Relying on several cases, including the Supreme Court of Canada decisions in Snell, Athey and Clements, the appellants in Kroeplin argued that the requirement for a qualified medical diagnosis was inconsistent with the law of causation and that "these decisions allow the Tribunal to draw an inference of causation from the evidence adduced in this case, in the absence of scientific proof, through the application of reason and common sense."

125The Tribunal in Kroeplin, at para 197, noted that Tribunal decisions had consistently held that the burden of proof on renewable energy approval appellants is the balance of probabilities, meaning that an appellant must meet the EPA statutory onus by proving that it is more likely than not that serious harm to human health will result from the operation of a renewable energy project, under s. 145.2.1 of the EPA. The Tribunal in Kroeplin further noted that the Tribunal had not in any case demanded that harm be proved to a level of scientific certainty.

126The Tribunal in Kroeplin held, at para. 200, that the role of the Tribunal:

is to review and weigh the evidence that is put before it and to reach findings based on that evidence. While there is no impediment to the Tribunal drawing an inference of causation in appropriate circumstances, the appropriateness of that step will depend on the nature and quality of the evidence that is before it.

127The Tribunal in Kroeplin went on to review the evidence before it in that manner, in particular the evidence of post-turbine witnesses testifying regarding the health conditions and symptoms they had experienced, which they believed had been caused or exacerbated by living near wind turbines. The Tribunal in Kroeplin cited past Tribunal jurisprudence concerning the need for a qualified medical diagnosis for the Tribunal to reach a reliable conclusion on causation, stating that because there may be a number of potential causes for medical conditions and symptoms, there is a need to prove the causal link with exposure to wind turbines (para. 201 to 203).

128The Tribunal concluded, at para. 204 of Kroeplin, that a finding of causation must be justified on the evidence, and that a flexible approach to causation is not a substitute for evidence and does not reduce the level of proof required. The Tribunal in Kroeplin also observed, at para. 205, that the evidence of an appellant is not the only evidence the Tribunal must weigh:

There is also the evidence of the respondents, who proffered several experts to contradict the Appellants' evidence. As the Court held in Snell, an inference of causation may be appropriate in the absence of any evidence to the contrary, but that where there is contradictory evidence adduced, the exercise that must be carried out is to weigh all of the evidence and reach a finding that is justified. While this approach may demand that respondents adduce evidence to counter an adverse inference possibly arising from an appellant's evidence, it does not mean that the onus shifts to the respondents to prove an alternate explanation for the symptoms experienced by the post-turbine witnesses.

97The Tribunal in this case applies the same analysis as that described in Kroeplin, i.e., there is no impediment to the Tribunal drawing an inference of causation in appropriate circumstances, but the appropriateness of that step will depend on the nature and quality of the evidence that is before it. The Tribunal finds that the nature and quality of the evidence before it in this case, including the CCA Report and the Project-specific evidence (Dr. Jeffrey's opinion on the post-turbine witnesses, Mr. James' critique of the Noise Report, as well as lay evidence), when considered in light of the expert opinions provided by Drs. McCunney, Mundt and Moore, is insufficient for such an inference.

98The evidence of the post-turbine witnesses was entered as a foundation for Dr. Jeffrey's opinion. With regard to the post-turbine witnesses' health claims, the Tribunal finds that the evidence adduced does not establish, on a balance of probabilities, that wind turbines cause serious harm to human health at the regulated setback distance and noise emission levels, and does not establish that this Project will cause such harm for the following reasons.

99First, the evidence does not establish that AHE/IWT is a recognized diagnosis. In making his "presumed" diagnosis, Dr. Jeffrey acknowledged that he relied on a proposed case definition of AHE/IWT that has not been validated, which is a required step in the development of any new case definition.

100Second, Dr. Jeffrey's diagnosis respecting these three individuals was not based on an in-person meeting or interview with the patients and a review of the patients' complete case histories; rather Dr. Jeffrey simply reviewed the documents they sent him and relied on their own assertions. The Tribunal accepts the evidence of Drs. McCunney and Moore, who testified that a proper medical diagnosis includes a thorough review of the history of the patient's complaints or symptoms as well as a physical assessment – that was not done with respect to these three witnesses.

101Third, Dr. Jeffrey referred to his conclusion as a "provisional diagnosis", which he described as a working diagnosis a doctor would use to treat a patient in the interim, until confirmatory tests could be made. He testified that no confirmation was done here.

102For the reasons noted above, the Tribunal places very little weight on Dr. Jeffrey's provisional diagnoses.

103The Tribunal finds that it can place little weight on Ms. Stewart Love's testimony. Although she filed a note from her family doctor stating that "it would appear" that proximity to wind turbines is a contributing factor to her symptoms, he was not called as a witness for cross-examination. Dr. Moore, who was available for cross-examination, testified that her complaints are common in family practice, that no medical records were provided for review, and that, from his review of the existing studies, the current set-back regulations are appropriate and evidence-based.

104With respect to the Municipality's concerns that the Project will create an unacceptable risk to public safety, the Tribunal relies on the uncontradicted expert evidence of Mr. Dokouzian, who has conducted ice throw assessments, shadow flicker assessments and risk assessments for numerous wind turbine projects. Mr. Dokouzian opined that wind turbine failures are rare events. In particular, tower collapse is "an extremely remote possibility" (1 in 17,000 turbines per year); blade failure is rare and on a downward trend (averaging 0.0002 turbines per year); turbine fire risk is "very low" due to numerous safety features; and ice throw risk is "very low to negligible" given the proven ice detection systems used on the turbine model for this Project.

105With regard to infrasound and low frequency sound, the Tribunal notes that numerous Tribunal panels have considered Mr. James' 2012 study and found it to be insufficient evidence that infrasound or low frequency noise from wind turbines impact human health. This panel agrees with those findings. The Tribunal finds that the Cape Bridgewater study does not ground a finding of negative health effects due to infrasound from wind turbines, given that its authors specifically clarified in a February 2015 statement that the study was "not a scientific study", was "not a health study," and "did not seek or request any particulars as to health impacts."

106In this case, the Appellant also relied on the CCA Report and its conclusion that there exists a causal relationship between exposure to wind turbine noise and annoyance. However, there was insufficient evidence to establish that "annoyance" as referenced in the CCA Report could be considered "serious harm to human health". The Appellant also sought to draw a link between infrasound and annoyance through the evidence of Mr. James. However, as noted by Dr. Moore, the CCA Report "found no evidence that wind turbines routinely produce infrasound at levels significantly higher than other environmental sources, such as the wind itself, or at levels associated with the known health effects of infrasound."

107The Tribunal notes that the Health Canada Summary indicates that "Due to the large volume of acoustical data, including that related to infrasound, analysis will continue over subsequent months with additional results being released at the earliest opportunity throughout 2015." However, no additional results were adduced into evidence in this proceeding.

108Dr. Nissenbaum also testified with respect to low frequency noise and infrasound. However, the Tribunal, for the following reasons, concludes that it can put very little weight on many of Dr. Nissenbaum's opinions:

• Many of his opinions are outside of his recognized area of expertise. For example, his conclusion at p. 41 of adverse effects the current project is likely to have on residents, and whether noise modeling used by the MOECC is predictive of "physiologically significant noise", are wholly outside his expertise as a radiologist;
• Dr. Nissenbaum's witness statement and analysis include unmeasured criticisms which appear to lack the objectivity and impartiality expected of an expert witness under s. 7 and 9(a) of the Tribunal's Practice Direction for Technical and Opinion Evidence. For example, he labels one study as "ludicrously problematic and a parody of objective scientific inquiry." Similarly he expresses personal opinions, not clearly substantiated, that other experts are biased or have misrepresented their findings (in this regard see, for example, his comments at p. 33 of his witness statement).
• He attempts to rely on studies he is also trying to discredit. For example, at p. 37 of his witness statement, he cites methodological weaknesses in the Health Canada Summary which, he states "if unaddressed would be lethal to its validity". Later, he urges the Tribunal to reject the "negative summary findings", due to these methodological errors and "errors in conception." At the same time, Dr. Nissenbaum endorses the findings of this same study, despite the alleged methodological weaknesses, where they accord with his views: "Importantly, the Health Canada Study did find (WTN /annoyance association)."

109By contrast to Mr. James and Dr. Nissenbaum, Mr. O'Neal's expert opinion is that infrasound from wind turbines is no different from other sources of infrasound and wind turbines do not make a noticeable contribution to infrasound levels in residences. Mr. O'Neal is a noise control engineer certified by the Institute of Noise Control Engineers, with extensive experience in noise impact evaluation, whose research has included a "literature review on guidelines and standards used to evaluate low frequency noise and infrasound", and a field study respecting wind turbines. Mr. O'Neal's evidence has not been impugned and the Tribunal puts full weight on his opinion.

110For these reasons, the Tribunal finds that the evidence adduced in this proceeding does not establish that infrasound and low frequency noise emitted by industrial wind turbines will result in adverse health effects that would meet the Health Test.

111With respect to Mr. James' critique of the Noise Assessment Report, the Tribunal finds it is not helpful in the Health analysis. The Tribunal finds that even if it accepted Mr. James' view that the application of the MOECC Guidelines resulted in underestimating sound levels for a number of receptors in the Project area, this would not by itself satisfy the Health Test. The Appellant nonetheless must establish through the evidence that the alleged noise levels will cause serious harm to human health. As noted throughout these reasons, such evidence has not been adduced.

112With respect to Mr. Dingeldein's particular circumstances, he testified that his doctor has indicated that any sleep disturbance could have a deleterious effect on his current medical condition. In his witness statement, he stated that "the closest turbine (turbine No. 5) in the Grey Highlands Nominee (No.1) project to my home is 997 meters, and I will have all five of the project turbines within a 2.5 km radius of my home." He further affirmed that "where we live it is usually very quiet. Typical night time noise levels are 25 dB(A)."

113Mr. Dokouzian observed that Mr. Dingeldein does not specify if these "typical values" are inside or outside of his home, or over what periods of time, or atmospheric conditions including wind speed. Mr. Dokouzian stated that from his experience noise levels can reach 25 dBA during calm nights, and "more likely during the late hours of the night (after midnight, but before sunrise), and with absence of any traffic or natural sounds." He noted, however, that when winds pick up "in the order of magnitude necessary for wind turbines to produce nominal energy, the ambient sound levels outside can significantly exceed 25 dBA." The MOECC Noise Guidelines take the noise of the wind itself into account, as they "base the permissible noise limits for a new facility on the wind speed, by adding approximately 7 dB to the expected ambient sound during different wind conditions."

114The Noise Assessment Report predicts that the turbine noise emissions outside Mr. Dingeldein's home will be 31.9 dBA. Even by Mr. James' calculation of 36.9 dBA, the modeled noise emissions at the Appellant's home will remain below the 40 dBA threshold provided by regulation. There is simply no reliable evidence before the Tribunal that wind turbine emissions at this distance and decibel level will cause any sleep disturbance that will exacerbate Mr. Dingeldein's medical condition.

115For the reasons set out above, the Tribunal finds that the Appellant has not established, on a balance of probabilities, that the Project, operating in accordance with the REA and at the regulated set-back distances and noise levels, will cause serious harm to human health. Therefore, the Tribunal finds that the Appellant has not established that the Health Test has been met.

Issue No. 2: Whether the REA contravenes the Appellant's right to security of the person under [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html).

Submissions

116The Appellant submits that the appropriate Health Test before the Tribunal on REA appeals is whether or not there is a reasonable prospect of serious harm. While the Appellant acknowledges that that this test was recently advanced before the Divisional Court in Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404, he submits that the Divisional Court "did not address whether, in light of the state of the scientific evidence, this was a more appropriate test before the Tribunal." In addition, the Appellant submits, the Divisional Court did "not have the benefit of expert evidence as it relates to the Health Canada Summary and the Canadian Council of Academies on the adverse health effects associated with wind turbine noise."

117With respect to the Appellant's first point, whether a "reasonable prospect of serious harm" is a more appropriate Health Test, the Appellant argues that the Project as approved will cause indirect harm to Mr. Dingeldein in that it "places the Appellant at risk for the prospect of serious harm to his health."

118The Director argued that this proposed version of the Health Test was squarely before the Divisional Court in Dixon, citing para. 59 of that decision. In addition, the Director argues, the Tribunal in Lambton, faced with this same argument by Appellant's counsel, found the Divisional Court "fully considered" and rejected the argument that the EPA Health Test should be read down to a "reasonable prospect of serious harm to human health" by virtue of s. 7 of the Charter. The Director further argued that because the Tessling case relates to s. 8 of the Charter, it bears no relation of the question of whether wind turbines cause serious physical or psychological harm.

Findings on Issue 2

119The Tribunal first observes that it has found, based on the evidence adduced in this hearing, including expert testimony for all parties, that the recent studies referenced above have not changed the Tribunal's conclusions from those made by the Tribunal and affirmed by the Divisional Court in Dixon. That is, the Tribunal finds that there is no additional evidence that satisfies the legal requirement in s. 145.2.1 that the Project will cause serious harm to human health.

120Section 7 of the Charter provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

121In advancing his Charter claim, the Appellant has confirmed that he relies on the same evidence adduced in respect of the Health Test.

122The Tribunal has followed the guidance of the Supreme Court of Canada in its approach to analyzing a Charter claim in previous renewable energy approval appeals (see Dixon, as well as Drennan v. Director, Ministry of the Environment (2014), 85 C.E.L.R. (3d) 57, (Ont. E.R.T.)). In a s. 7 claim the appellant must demonstrate:

1. proof of "serious" physical or psychological harm,
2. harm that is state imposed, and
3. a "sufficient causal connection" between the harm and the impugned state action.

123In Dixon, the Tribunal stated, at para. 170:

The Tribunal will make no finding as to whether the "serious harm to human health" test set out in s. 145.2.1 of the EPA and the threshold of "serious physical harm" or "serious and profound psychological harm" required to establish a deprivation as required in a s. 7 Charter claim, are the same or similar. Further, the Tribunal will not make any specific finding as to whether the test in s. 145.2.1 of the EPA requiring the Appellants to establish that the Project "will cause" serious harm to human health is the same as the need to establish a "sufficient connection" as required in a s. 7 Charter claim. However, it is abundantly apparent from the jurisprudence pertaining to both the EPA test and s. 7 Charter test, that a solid evidentiary foundation is required for both tests.

124As noted above, the Tribunal decision in Dixon was upheld by the Divisional Court. The Tribunal in this case also adopts this approach. Therefore, the first step is to consider whether there is a solid evidentiary foundation establishing that serious physical or psychological harm will occur. For the reasons listed in Issue No. 1 above, the Tribunal finds that such an evidentiary foundation is lacking.

125In summary, the Tribunal finds that there is insufficient evidence to establish that the Health Test has been met under s. 145.2.1 of the EPA, or that engaging in the Project will cause "serious and profound physical or psychological harm" as required in a s. 7 Charter analysis. Therefore, in conclusion, the Tribunal finds that the Appellant has not established that Mr. Dingeldein's Charter rights have been infringed.

Issue No. 3: Whether engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

Appellant's Witness

Sal Spitale

126Mr. Spitale was qualified to give opinion evidence as an ecologist. In addition to his academic qualifications and other training, his work experience includes working on renewable energy projects in southern Ontario, including completing Species at Risk surveys, and particularly open-country breeding bird surveys, for wind farm applications since 2011.

127Mr. Spitale confirmed that his evidence was based on a review of reports respecting assessments/evaluations which were submitted by the Approval Holder in support of its application for the REA. Mr. Spitale raised a number of concerns respecting the assessments/evaluations, which he summarized in his witness statement as follows:

1. Habitat for four Species at Risk (Eastern Meadowlark, Bobolink, Common Nighthawk and Barn Swallow) was documented during site investigations as occurring within 120 m of the Project components. However, the impacts to these Species at Risk were not evaluated. This habitat should have been assessed, and potential impacts evaluated, as habitat for Species at Risk. A Species at Risk report should have been prepared for the Ministry of Natural Resources and Forestry ("MNRF"), and referenced in the Project Description Report.
2. Methods for surveying open-country Species at Risk did not follow MNRF protocols, and for two of the three visits, only 20 minutes were spent surveying birds in the entire study area. This would have resulted in an under-estimation of the numbers and possibly species of open-country bird SAR within 120 m of the Project components.
3. Methods for surveying Common Nighthawk did not follow MNRF protocols, and this species' abundance was likely under-estimated in the study area.
4. Barn Swallow habitat was not investigated, which would have under-estimated the numbers of this species breeding in the study area.
5. Habitat for Barn Swallow should at least have been evaluated as potential significant wildlife habitat ("SWH"), since the species was evaluated by the Committee on the Status of Endangered Wildlife in Canada ("COSEWIC") as Threatened in May of 2011, before the REA application was completed. This evaluation should have been updated as an assessment of impacts to SAR and submitted to MNRF once the species was listed under the Endangered Species Act, 2007, S.O. 2007, c. 6 ("ESA").
6. Habitat for Common Nighthawk should have been assessed as Candidate SWH as is appropriate for species of Special Concern.
7. The construction of turbines and access roads has the potential to eliminate habitat for these species. Habitat for Bobolink, Eastern Meadowlark and Barn Swallow is regulated under the ESA.
8. Bobolink and Eastern Meadowlark are area-sensitive, such that fragmentation of the habitat with access roads and turbines has the potential for negative impacts on habitat for SAR, which is regulated under the ESA.
9. Removal of nest structures such as barns and destruction of foraging habitat has the potential for impacts to habitat for Barn Swallow, which is regulated under the ESA.
10. Removal of habitat and vehicle traffic both have the potential for impacts on Common Nighthawk, which nests on the ground in very specific areas with a rocky or gravelly substrate.
11. The need for a permit and/or following specific rules under the ESA to destroy habitat for Bobolink, Eastern Meadowlark and Barn Swallow should have been assessed.

128Mr. Spitale's overall conclusion states:

[I] conclude that without compensation for the habitat that will be lost because of development of the wind turbines, as set out in [O. Reg. 242/08 made under] the Endangered Species Act Section 23.6, there will be serious and irreversible harm to animal life, specifically to the nesting habitat for Bobolink and Eastern Meadowlark. Without compensation for habitat loss as described in [O. Reg. 242/08 made under] the Endangered Species Act Section 23.5, habitat for Barn Swallow would be eliminated if nesting areas are removed. Common Nighthawk, if their specific nesting areas are removed, would be harmed irreversibly. The harm will be caused by removing some portions of the habitat and fragmenting and increasing disturbance in the remaining habitat so it would support fewer individuals within the habitat where they were reported. Though these fields were reportedly converted to row crops in 2012, habitat compensation must still be addressed as construction of wind turbines is not an activity exempt from the ESA regulation.

Presentation by BLHA

129Mr. Fohr testified on behalf of BLHA. In summary, he indicated that BLHA maintains that the Natural Heritage Assessment submitted in support of the Approval Holder's application for the REA, failed to identify Brewster's Lake and its surrounding residential homes immediately adjacent to the Project. BLHA further maintains that Brewster's Lake is environmentally important as this lake and its surrounding area is home to many songbird, raptor and waterfowl populations.

130In his evidence, Mr. Fohr asserted that the area's ecological importance has not been adequately studied by the Approval Holder's consultants, and he expressed concern that, in conducting the Approval Holder's Natural Heritage Assessment, the sources used to characterize the local natural habitat do not contain sufficient data to characterize the real habitat. He maintains that the Natural Heritage Assessment implemented only limited spot observations backed by old and incomplete government lists, and asserts that these are no substitute for life-long daily observation by informed individuals living in the habitat area.

131Mr. Fohr submits, therefore, that the area has not been adequately considered in the Approval Holder's natural heritage reports, and that this failing is further compounded by the negligence of the MOECC and MNRF in failing to identify this oversight.

132In reply to evidence adduced by the Approval Holder, Mr. Fohr stated that amateur bird observations account for an important part of the data submitted to studies conducted by organizations which are a source of data for bird populations and migration. He noted that Mr. Dingeldein placed an Environment Canada EcoGift Conservation Easement on his 200 acre farm in 2013, which required an on-site survey by a qualified wildlife biologist. He noted that material from the survey report has been included in his witness statement. He maintained that the original study conducted by the consultant on behalf of the Approval Holder was conducted over three days in 2010 for a total of 50 minutes, and that the Natural Heritage Evaluation of Significance Report study respecting survey of bird species was completed over a three day period in the middle of winter when, he asserted, very few species at risk or migrating birds are present. He stated that Brewster's Lake is one of the few larger water bodies in the region, and that it is an important stop-over for migrating birds, with the proposed turbines being in the direct path of migration routes south of the lake. He also stated that citizen observation has identified 11 birds that are species at risk as opposed to the two species at risk referenced in the Approval Holder's study.

Director's Witnesses

133The Director called no witnesses in respect of Issue No. 3.

Approval Holder's Witnesses

Andrew Taylor

134Mr. Taylor was qualified to give opinion evidence as an expert in terrestrial biology and the assessment and mitigation of environmental impacts at wind farms with respect to birds. His experience includes involvement in 20 wind energy projects across Ontario.

135He testified that he has conducted studies on the abundance and behaviour of various groups of birds in proximity to wind turbines, including migratory waterfowl, raptors, shorebirds and passerines, breeding forest and marsh birds, as well as wintering raptors and owls. He stated that he has conducted extensive studies to assess direct and indirect impacts to grassland birds, including Bobolink and Eastern Meadowlark, from operation of wind turbines. He further noted that he has also developed mitigation and compensation plans and conducted monitoring programs to evaluate their success.

136Mr. Taylor confirmed that consultants on behalf of the Approval Holder conducted a natural heritage assessment and environmental impact study ("NHA/EIS") in compliance with the process mandated by Ontario Regulation ("O. Reg.") 359/09. He further confirmed that the report documenting these assessments was reviewed by MNRF in accordance with this regulation, and confirmed by MNRF on July 6, 2012. He also noted that these assessments conclude that implementation of the mitigation and monitoring measures contained in the REA application will minimize any Project-related environmental impacts to the natural environment, such that no significant residual impacts are anticipated as a result of the construction, operation or decommissioning of the Project. He expressed his opinion agreeing with this assessment and conclusion.

137Mr. Taylor's evidence also responded to the evidence adduced by the witnesses for the Appellant and BLHA.

138Regarding Species at Risk surveys, his evidence included the following:

1. Details of surveys that were conducted to identify the potential presence of any species at risk birds in the Project area;
2. Confirmation that Bobolink, Eastern Meadowlark and Barn Swallow were identified in the Project Area, and that these are the only threatened or endangered bird species under the ESA in the Project Area;
3. There will only be approximately 11.6 hectares of Bobolink and Eastern Meadowlark habitat within the Project area impacted. The Approval Holder has committed to providing 17.5 hectares of compensation habitat which satisfies the habitat requirements required by the ESA.
4. The Project Location does not overlap with any structures suitable for Barn Swallow nesting such as barns or other outbuildings that are open to access and provide shelter, and no such structures will be impacted through construction of the Project. As such, no Barn Swallow habitat will be impacted by the Project; and
5. A Common Nighthawk (a species of special concern under the ESA), was observed during the site investigation. Even if the individual was part of a breeding pair, the most suitable nearby habitat is more than 120 m from the Project Location. Therefore, the Project will not impact this habitat.

139Regarding potential impacts of the Project to identified species and their habitat, his evidence included the following:

1. Details of surveys that were conducted to identify the potential presence of any species at risk birds in the Project area;
2. The small amount of habitat removal required for the construction of the Project will not have any significant impact on Bobolink or Eastern Meadowlark or their habitat. In his experience, conducting studies on grassland breeding birds at wind farms that are now operational, the construction and use of access roads and wind turbines do not fragment the habitat or materially affect the density of the numbers of breeding Bobolinks or Eastern Meadowlarks;
3. Authorization under the ESA in respect of the removal of Bobolink and Eastern Meadowlark habitat is required prior to construction of the Project. Regulations under the ESA specify various mitigation measures that must be implemented as a condition of that authorization, which Mr. Taylor described in his evidence. He also noted that Condition K of the REA requires the REA holder to ensure that activities requiring ESA authorization (in this case, the construction of the Project) will not commence until the necessary authorizations are in place.

140Regarding other mitigation measures, Mr. Taylor expressed his opinion that no impact on bird species is expected to occur. In support of this opinion, his evidence includes the following:

1. He noted that Condition J of the REA requires three years of post-construction mortality monitoring to be undertaken at all turbines with the Project to confirm direct impacts to Bobolink, Eastern Meadowlark, Barn Swallow, and certain other species;
2. He noted that Conditions A1 and J of the REA require that the Project implement an extensive list of mitigation measures to minimize impacts to birds or bird habitat generally; and
3. He stated that these measures will require the impact of the Project on birds or bird habitat to be closely monitored, and will require operational changes to be implemented as needed to prevent any significant impact to bird populations.

141Regarding other bird species referenced by Mr. Spitale as being identified in the Breeding Bird Atlas of Ontario, Mr. Taylor testified that the Project is not expected to impact any of these species, citing reasons which vary depending on the species, the most common one being that no candidate significant wildlife habitat was identified within 120 m of the proposed location of any Project component.

142Mr. Taylor also responded to Mr. Fohr's evidence on behalf of the BLHA. He disputed Mr. Fohr's assertion that Brewster's Lake is immediately adjacent to the Project, stating that Brewster's Lake is located approximately 1.4 km from the nearest Project infrastructure. He further stated that, through the Records Review in the NHA/EIS, no significant features were identified within the Brewster's Lake area, such as significant wetlands or woodland, Areas of Natural and Scientific Interest or conservation reserves. Mr. Taylor further emphasized that Mr. Fohr stated that Brewster's Lake is immediately surrounded by 51 homes occupied by more than 130 residents and, Mr. Taylor therefore stated, Brewster's Lake has already undergone extensive development and is not a pristine environment.

143Regarding Mr. Fohr's evidence that Brewster's Lake residents observed certain bird species in the years from 1989 to 2015, Mr. Taylor noted that: these sightings do not appear to be observations made by trained biologists; that protocols or the methodology of these observations were not disclosed; and that it is unclear what time of year the sightings were made, or which of the sightings were made recently.

144Mr. Taylor stated that he remains of the opinion that the bird surveys undertaken on behalf of the Approval Holder are sufficient to identify the presence of any threatened and endangered species breeding within the Project area. He further stated that, even if the residents' observations were accurate, Mr. Fohr's evidence only identifies two species at risk that were purportedly sighted within the Project Area, namely Bobolink and Eastern Meadowlark, noting that these species have already been identified in the bird surveys. Regarding other species observed by residents within and outside the Project area, Mr. Taylor expressed his opinion that none of these species or their habitat will be impacted by the Project in any significant way.

145In his evidence Mr. Taylor explained that the calculation of the area of Bobolink or Meadowlark habitat that is impacted by a wind turbine is in accordance with Ministry guidelines, and is presumed to be an area extending 100 m around each turbine. Mr. Taylor indicated this is a conservative assumption, stating that Bobolink and Meadowlark have been observed using the habitat within 100 m of wind turbines at other operating projects. Although he indicated that there remains a concern that group densities in these areas may be lowered, he also testified that in conducting studies of wind projects on Wolfe Island, Ontario, he has not observed a significant decrease in group density in study areas extending up to 300 m from a wind turbine. He explained that this is why he considers the 100 m assumption to be conservative.

Dr. Paul Kerlinger

146Dr. Kerlinger was qualified to give opinion evidence as an expert on birds and the impact of wind energy projects on birds. Dr. Kerlinger holds a doctorate degree in bird behaviour, ecology, and research design/statistics, has published peer reviewed papers on bird biology, ecology and behaviour. His experience includes work commencing in 1997 on the impacts of wind turbines and communication towers on birds, having served as team leader for pre-construction studies for approximately 3,000 wind turbines operating in the United States and other countries.

147Regarding a biologist's definition of serious harm, Dr. Kerlinger testified that this would be an impact that causes a biologically serious impact, which is an impact that results in a material decline, a material acceleration of an existing decline, or a fundamental destabilization of a given population of a particular species. He notes that, in the context of wind energy development, one must therefore assess how many birds would be impacted for that impact to result in a material decline or a material acceleration of an existing decline of the population of a given species. In addition, one must determine if individuals are displaced from a project location and, if so, to what degree and in what numbers.

148Dr. Kerlinger testified that the simplest method to determine whether an impact to a population or a species is biologically significant is to calculate the percentage of the total population or species that is likely to have been killed or displaced by a perturbation. He referred, for example, to a study by a research team from Environment Canada (Zimmerling et al. 2013), using data from 50 post-construction fatality studies done at wind turbine projects in Canada, which concluded that impacts to birds at wind energy projects, including 33 in Ontario (based on data prior to 2013) were not likely having any significant impact.

149Dr. Kerlinger also indicated that a second method to determine whether an impact to a population or a species is biologically significant is to use statistical modelling of population trends, noting, however, that this approach is generally used when impacts are at generally high levels.

150Regarding a biologist's definition of "irreversible harm", Dr. Kerlinger testified that from a population biology perspective, there is a difference between "serious" and "irreversible" harm. He stated that, for serious harm to be irreversible, it would have to be harm from which a population cannot recover. He noted that if the harm is capable of being reversed – if a reversal or mitigation of the harm is possible – it cannot be described as irreversible. He observed that irreversible declines lead to extinction of a population or a species in some cases.

151Dr. Kerlinger also addressed the question of the relevant geographic scope and size of the population of birds to consider in respect of impacts by this Project. He described the natural dispersal of breeding between species individuals, and the expansion of the geographic area where a species may occur due to sequential generation dispersal.

152He stated that this is why in his view the concept of "local populations" of birds is generally a misconception. He described such generational dispersal for species nesting in the Project Area. He explained that dispersal is simply a means to avoid inbreeding which can doom a population to extinction.

153Dr. Kerlinger also indicated that consideration must be given to migrating species which come from one or more regional populations.

154Dr. Kerlinger testified that wind energy generally in North America, including in Ontario, has not been demonstrated to cause any serious (i.e. biologically significant) or irreversible harm to bird species. He noted that, for a biologically significant impact to potentially occur, the number of wind turbines on the landscape and fatalities would have to increase dramatically, citing the above referenced study conducted by Zimmerling et al., as well as other Canadian and United States studies.

155Regarding potential construction phase impacts of the Project, Dr. Kerlinger testified that they will, in all likelihood, be relatively minor and not biologically significant, citing three main reasons in support of this opinion:

1. As the Project will take place primarily on active agricultural lands, this will not result in material loss of nesting habitat;
2. The habitat within the Project area is not the type of habitat identified by wildlife agencies and experts as being highly sensitive or rare; and
3. Habitat within the Project area is not the type considered critically important for nesting, wintering or migrating birds, again because of the annual disturbance by tilling and other agricultural practices.

156Regarding potential operation phase impacts of the Project, Dr. Kerlinger testified that the Project will also not cause any biologically significant impacts to birds. In support of this opinion, he testified that:

1. He expects bird fatalities to be low and consistent with mortality rates at other wind projects in similar landscapes which, he stated, has been repeatedly demonstrated at other projects;
2. Based on available data, for most of the 33 wind projects in Ontario where post-construction fatality studies have been conducted, none of these projects have exceeded the mortality thresholds adopted in the Bird Guidelines issued by the MOECC, and, for most projects, the mortality rates were fewer than one-half of these thresholds; and
3. The threshold mortality rates in the Bird Guidelines are reasonable and conservative thresholds to ensure protection of birds, but do not establish that such harm is biologically significant or irreversible. In this regard, the REA's requirements for mitigation measures would further serve to protect birds from any biologically significant impact from occurring.

157Respecting displacement impacts, Dr. Kerlinger testified that there is a growing body of data which indicates that displacement of nesting and other birds caused by wind turbines is not significant.

158Dr. Kerlinger also provided opinions specifically in respect of Bobolink, Eastern Meadowlark and Barn Swallow. Dr. Kerlinger stated his conclusion that Project impacts will not result in serious or irreversible harm to these species.

159Regarding the loss of nesting habitat, Dr. Kerlinger noted that the Natural Heritage Assessment indicates that no nesting habitat will be lost to construction of the Project, and, for Bobolink and Eastern Meadowlark, only a small percentage of grassland breeding habitat will be removed. He expressed his opinion that removal of a small area of nesting habitat for Bobolink and Eastern Meadowlark would not result in any significant harm, even before the habitat compensation measures are considered.

160Dr. Kerlinger also stated that there is little significant habitat present in the Project area for these species of birds. He noted that the habitat is marginal for these species at best, being degraded by tilled agriculture and in those locations where there is hay, it is typically mowed. He explained that Bobolink and Eastern Meadowlark generally nest in high quality, larger grasslands fields, and they are most successful in fields that are not mowed until after their first clutch has left the nest successfully. He noted that such habitat is not generally present in the Project area. He observed, in particular, that habitat at and near the proposed site for the Project wind turbines is not high quality grassland, and any suitable habitat that was once present has been and continues to be disturbed by agricultural practices. He further stated that hay field and pasture may be tilled at any time by the landowner, thereby eliminating suitable habitat for these species.

161Dr. Kerlinger testified that, based on his understanding that Project construction will result in the loss of only a small percentage of grassland breeding habitat for these species, the loss of this habitat would not result in any significant harm, even before the habitat compensation measures in the REA are considered.

162Regarding mortality rates, Dr. Kerlinger also noted that low fatality rates for each of Bobolink, Eastern Meadowlark and Barn Swallow have been demonstrated for wind farms in Canada and Ontario, and similarly low fatality rates have been demonstrated for wind farms in upstate New York and other parts of the United States where Bobolink is more common.

163Regarding displacement impacts, Dr. Kerlinger stated that he does not expect the Project to pose any significant displacement risk to Bobolink, Eastern Meadowlark or Barn Swallow, given the lack of significant suitable habitat, and because there are not many birds of these species present near wind turbine locations. In support of this opinion, Dr. Kerlinger also noted that recent findings respecting grassland nesting birds suggests that displacement impacts to most species are minimal or non-existent, and are not biologically significant. For Eastern Meadowlark and some other grassland nesting birds, he further noted that recent studies at large wind projects have demonstrated minimum or no displacement impacts.

164Regarding other bird species referenced by Mr. Spitale as being identified in the Breeding Bird Atlas of Ontario, Dr. Kerlinger testified that the Project is not expected to impact any of these species citing reasons which vary depending on the species, the most common reason being that there is no suitable nesting habitat in the Project area.

Submissions by the Appellant

165The Appellant argues that engaging in the Project in accordance with the REA will cause serious and irreversible harm to Bobolink and Eastern Meadowlark, within the Project area, emphasizing that they are both Species at Risk under the ESA. The Appellant relies on the evidence of its expert, Mr. Spitale, who testified that, without sufficient compensation for their habitat which is impacted or lost due to installation of Project components, there will be serious and irreversible harm to the species in the Project area. In determining this issue, the Appellant asserts that the Tribunal must consider whether or not the harm would be caused to the population at issue at the Project site and surrounding area and not necessarily to the population as a whole. The Appellant submits that the Tribunal should not be concerned about the broader population of the species in Ontario or North America.

166The Appellant submits that the evidence of Dr. Kerlinger is, therefore, not helpful to the Tribunal in respect of the Environmental Test on this appeal, emphasizing that Dr. Kerlinger focused his evidence on the overall decline to the population of Bobolink and Eastern Meadowlark in North America and not specifically in the Project area. The Appellant further submits that Dr. Kerlinger was unable to provide any evidence relating to the possible cumulative effects on the area population for these species of birds which have been classified as "species at risk".

167In support of this submission, the Appellant emphasizes that the ESA addresses the population of a species in the Province and not just in a specific or defined area. The Appellant also submits that obtaining a permit or authorization under the ESA to engage in activity that will damage or destroy habitat does not necessarily mean that the Project will not cause serious and irreversible harm to animal life. More specifically, the Appellant also notes that, under s. 17 of the ESA, a permit may be issued if there is an overall benefit to the species, which, the Appellant submits, is not the standard to be applied by the Tribunal in making its decision in respect of the Environmental Test.

168The Appellant submits that there is no evidence before the Tribunal regarding the adequacy and sufficiency of the compensation habitat that is being proposed. The Appellant maintains that the only information provided by the Respondent's witnesses regarding the compensation habitat, is the size of that habitat.

169The Appellant submits that the evidence before the Tribunal demonstrates that the habitat for the Bobolink and the Eastern Meadowlark will be harmed by the construction and operation of the Project, and, as such, constitutes serious and irreversible harm to these species at risk.

Submissions by the Approval Holder

170The Approval Holder relies on the opinion evidence of Dr. Kerlinger and Mr. Taylor that the construction and operation of the Project will not result in any significant harm, even before the habitat compensation measures are considered.

171Regarding the relevant geographic scope to be considered when determining whether serious or irreversible harm will occur to either of the species, the Approval Holder submits that the only evidence before the Tribunal is the evidence of Dr. Kerlinger, stating that he has been clear that given the natural range and dispersal characteristics of these two species, the appropriate geographical population scope is beyond the borders of the Project area.

172The Approval Holder emphasizes that Mr. Spitale did not take any issue with Dr. Kerlinger's evidence on this point, either by way of written reply or in his oral testimony, noting that Mr. Spitale had ample opportunity to review and respond to Dr. Kerlinger's witness statement. For this reason, the Approval Holder submits that the Appellant's assertion that the Tribunal, in determining this appeal, should consider only a population scope that is local to the Project area, is not only without evidentiary support in the record, it is directly contrary to the body of evidence adduced in this proceeding. The Approval Holder further submits that even if the Appellant's submission in this regard is accepted, both Dr. Kerlinger and Mr. Taylor concluded that there would not be serious and irreversible harm to either of these species in the Project area.

173The Approval Holder notes that Condition K of the REA requires that the Approval Holder shall ensure that activities requiring authorization under the ESA will not commence until necessary authorizations are in place. The Approval Holder emphasizes (as does the Director in his submissions) that Mr. Spitale agreed that any risk of harm to these species would be mitigated by the habitat compensation required under the ESA, and that this would ameliorate his concerns. Accordingly, the Approval Holder submits that all the experts who testified in this proceeding agreed that the Project, operating in accordance with the REA, including Condition K, will not cause serious and irreversible harm to Bobolink or Eastern Meadowlark. The Approval Holder submits, therefore, that the Appellant has not met its burden to establish that engaging in the Project in accordance with the REA will cause serious and irreversible harm to animal life.

Submissions of the Director

174The Director submits that the summary of opinions in Mr. Spitale's witness statement sets out concerns that the construction of the wind turbines and access roads has the potential for negative impacts on the habitat of Bobolink, Eastern Meadowlark, Barn Swallow, and Common Nighthawk, and that concerns are not sufficient to meet the test under s. 145.2.1(2)(b) of the EPA.

Findings on Issue No. 3

175It is not disputed that, in cross-examination, the Appellant's expert witness, Mr. Spitale, agreed that the essence of his concern respecting the Project's impact on Bobolink and Eastern Meadowlark is the lack of compensation for the loss of their habitat being removed or impacted by the Project. However, Mr. Spitale agreed that this concern would be ameliorated if there were compensation in the form of replacement habitat in accordance with s. 23.6 of O. Reg. 242/08 made under the ESA. It is not disputed that Condition K of the REA requires compliance with the ESA. However, the Appellant correctly points out that the precise location of replacement habitat, as required under the ESA for Bobolink and Eastern Meadowlark, has yet to be determined, and therefore there is no evidence before the Tribunal where this habitat will be located, other than the ESA requirement that this habitat must be included in the same or an adjacent eco-region. The Appellant also correctly points out that there is no evidence before the Tribunal that such compensatory habitat will be located within the Project Area.

176As noted above in his submissions, the Appellant argues that, in determining whether there will be serious and irreversible harm to these species, the Tribunal must consider whether or not serious and irreversible harm would be caused to the population at issue at the Project site and surrounding area. The Approval Holder replies that the expert evidence adduced by its expert witnesses, Mr. Taylor and Dr. Kerlinger, take the view that the Project's impact should not be assessed based on consideration of impact on only bird populations local to the Project site and surrounding area.

177In the evidence adduced in this proceeding, the Appellant's only expert, Mr. Spitale, expressed his view that the Approval Holder had failed to evaluate the impact to Bobolink and Meadowlark habitat and file a Species at Risk report. Mr. Taylor testified that these assertions were incorrect. The Tribunal notes that Mr. Spitale did not provide reply evidence to dispute Mr. Taylor's evidence in this regard. Although Mr. Spitale has expressed his opinion that there will be serious and irreversible harm to animal life, specifically to the nesting habitat for Bobolink and Eastern Meadowlark, the only evidence he provides in support of this conclusion is his statement that the construction of turbines and access roads has the potential to eliminate habitat for these species. This evidence is contradicted by the opinion evidence adduced by Mr. Taylor and Dr. Kerlinger, who each concluded that the Project will not have any significant impact on Bobolink or Eastern Meadowlark or their habitat, even if the habitat replacement required under the ESA is not included as a relevant factor for consideration. In summary, their reasons in support of this conclusion are as follows:

(a) As the Project will take place primarily on active agricultural lands, this will not result in material loss of nesting habitat;

(b) The habitat within the Project area is not the type of habitat identified by wildlife agencies and experts as being highly sensitive or rare;

(c) Habitat within the Project area is not the type considered critically important for nesting, wintering or migrating birds, again because of the annual disturbance by tilling and other agricultural practices; and

(d) Mr. Taylor's experience in conducting studies on grassland breeding birds at wind farms that are now operational, indicates that the construction and use of access roads and wind turbines do not fragment the habitat or materially affect the density of breeding Bobolink or Eastern Meadowlark.

178In contrast to the evidence of Mr. Taylor and Dr. Kerlinger, the Tribunal notes that Mr. Spitale's evidence only indicates that there is a potential for habitat to be eliminated.

179Condition K of the REA specifically requires that the Approval Holder shall ensure that activities requiring authorization under the ESA will not commence until necessary authorizations are in place. Mr. Spitale clearly testified respecting harm to Bobolink and Meadowlark in the Project area and surrounding area. He was well aware of the requirements of the ESA, and, in cross-examination, he testified that any risk of harm to these species would be ameliorated by the habitat compensation measures required under the ESA. In making this statement, Mr. Spitale did not stipulate that the replacement habitat had to be located within the Project area and surrounding area, as opposed to the requirement under the ESA that the replacement habitat must be located in the same or adjacent eco-region.

180The REA before the Tribunal does not state the size or specific location of the compensation habitat that will be provided pursuant to the ESA. The Tribunal is therefore not able to fully assess its effectiveness as a mitigation measure in this analysis. However, Mr. Taylor testified that approximately 11.6 hectares of Bobolink and Eastern Meadowlark habitat within the Project area will be impacted, and the Approval Holder has committed to providing 17.5 hectares of compensation habitat which satisfies the habitat requirements required by the ESA. Mr. Taylor also stated that this compensation habitat will consist of protected areas of land planted with species of grasses as required under the ESA. Furthermore, he gave uncontradicted evidence that protecting habitat from mowing during the chick-rearing period of the Bobolink life cycle is very effective, and that a hayfield protected from harmful farming practices is better quality Bobolink habitat than an unprotected hayfield of the same size.

181The Tribunal, therefore, finds that, even if the evidence were to support a finding that the Project will cause harm through elimination or disruption of Bobolink or Eastern Meadowlark habitat in the Project area, the evidence adduced by the Appellant does not establish that, if the habitat replacement measures required under ESA are implemented, such harm would be serious and irreversible, even if the harm is being assessed at the local level.

182The Tribunal has also considered Mr. Fohr's evidence on behalf of BLHA, which has been of assistance to the Tribunal in understanding the environmental issue raised by the Appellant, and puts the evidence of the Approval Holder into context. However, Mr. Fohr's concerns are opinions. If they are to be accepted by the Tribunal as evidence, they must be supported by a witness who is qualified to give opinion evidence. The BLHA did not adduce expert opinion evidence. Consequently, the Tribunal finds that the limited factual evidence and views expressed by Mr. Fohr on behalf of BLHA, at best, amount to statements of concern, which falls far short of establishing that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

183Finally, the Tribunal notes that Mr. Spitale gave evidence of other concerns respecting the adequacy of the site investigation methods implemented by the Approval Holder's consultants, and the nature of the Project's impacts on other species such as Common Nighthawk and Barn Swallow. As described earlier in this decision, Mr. Taylor in his evidence counters the assertions made by Mr. Spitale and Mr. Fohr. On balance, the Tribunal accepts Mr. Taylor's evidence in this regard as it responds specifically and substantially to Mr. Spitale's concerns. In making this finding, the Tribunal further notes that Mr. Spitale did provide reply evidence impugning Mr. Taylor's evidence. Regarding Mr. Fohr's concerns regarding the adequacy of site investigation, the Tribunal again observes that he was not qualified to give opinion or technical evidence. The Tribunal finds that the factual evidence he has provided does not undermine the validity of Mr. Taylor's opinion evidence.

184In summary, the Tribunal finds that the Appellant has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

Summary of Conclusions

185The Tribunal finds that the Appellant has not established that engaging in the Project in accordance with the REA will cause serious harm to human health.

186The Tribunal finds that the Appellant has not established that s. 142.1 of the EPA violates the right to security of the person under s. 7 of the Charter.

187The Tribunal further finds that the Appellant has not established that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment.

DECISION

188The Tribunal dismisses the appeal and confirms the decision of the Director.

Appeal Dismissed

"Heather I. Gibbs"

HEATHER I. GIBBS VICE-CHAIR

"Dirk VanderBent"

DIRK VANDERBENT VICE-CHAIR

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