Hirsch v. Ontario (Environment and Climate Change), 2015 CanLII 63220

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

September 30, 2015

CASE NO.:

15-068

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant:

Hirsch (ERT File No.15-068)

Appellant:

Alliance to Protect Prince Edward County (ERT File No.15-069)

Appellant:

The Prince Edward County South Shore Conservancy (ERT File No.15-070)

Approval Holder:

wpd White Pines Wind Incorporated

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for White Pines Wind Project

Reference No.:

2344-9R6RWR

Municipality:

Prince Edward County

ERT Case No.:

15-068

ERT Case Name:

Hirsch v. Ontario (Environment and Climate Change)

Heard:

September 9, 2015 in Wellington, Ontario and on September 18, 2015, by telephone conference call

APPEARANCES:

Parties

Counsel/Representative^+^

John Hirsch

Self-represented

Alliance to Protect Prince Edward County

Eric Gillespie and Priya Vittal

Director, Ministry of the Environment and Climate Change

Rebecca Crangle

wpd White Pines Wind Incorporated

Patrick Duffy

Participant

Brian Flack

Self-represented

Presenters

Jim Bowlby

Self-represented

Douglas Murphy

Self-represented

Hardie Wines Limited

Katie Worobeck^+^

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Approval Holder”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”).

2On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (the “Tribunal”), pursuant to s. 142.1 of the Environmental Protection Act (“EPA”), seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment. On July 31, 2015, the Alliance to Protect Prince Edward County (“APPEC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment and will cause serious harm to human health.

3Also on July 31, 2015, the Prince Edward County South Shore Conservancy (“PECSSC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the ground that the Project will cause serious and irreversible harm to animal life. Subsequently, on August 11, 2015, PECSSC informed the Tribunal that it wished to withdraw its appeal.

4Also on July 31, 2015, the Approval Holder filed a notice of appeal with the Tribunal pursuant to s. 139 of the EPA seeking an amendment to the REA to increase the total number of wind turbines in the Project to 29. The issues in that appeal relate to the protection of cultural resources and heritage properties. The Tribunal has assigned that appeal Case No. 15-071.

5The Tribunal held telephone conference calls (“TCC”) on August 18 and September 1, 2015 to discuss procedural matters affecting the two proceedings.

6On September 9, 2015, the Tribunal held preliminary hearings in the appeals brought by Mr. Hirsch, APPEC and PECSSC and in the appeal brought by the Approval Holder in Wellington, Ontario. The preliminary hearings were continued by telephone conference call on September 18, 2015. This Order addresses the issues raised at these preliminary hearings in the appeals brought by Mr. Hirsch, APPEC and PECSSC. A separate Order of the Tribunal addressing the issues raised at the preliminary hearing in Case No. 15-071 was issued on September 30, 2015.

Issues

7The issues are:

1. Whether the appeal brought by PECSSC should be dismissed; and

2. Whether to grant party, participant and presenter status to persons in the proceeding.

Relevant Rules

Rules of Practice of the Environmental Review Tribunal

Naming of a Party

62. The following persons are Parties for the purpose of the Rules:

(a) persons specified as Parties by or under the statute under which the proceeding arises;

(b) persons otherwise entitled by law to be Parties to the proceeding; and

(c) persons who request party status and are so specified by the Tribunal as parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. In deciding whether to name a person as a party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person’s interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal’s understanding of the issues in the proceeding.

Role of a Party

64. A Party to the proceeding before the Tribunal may:

(a) bring motions;

(b) be a witness at the Hearing;

(c) be questioned by the Parties;

(d) call witnesses at the Hearing;

(e) cross-examine witnesses;

(f) make submissions to the Tribunal, including final argument;

(g) receive copies of all documents exchanged or filed by the Parties;

(h) participate in a mediation;

(i) attend site visits; and

(j) claim costs or be liable to pay costs where permitted by law.

In proceedings other than those under section 142.1 of the Environmental Protection Act, a person granted Party status under Rule 62(c) may raise an issue that has not already been raised by persons referred to in Rule 62(a) and (b) with the permission of the Tribunal.

Naming of a Participant

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a party’s would be. A person who may otherwise qualify as a Party may request Participant status.

Role of a Participant

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant’s interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

Naming of a Presenter

69. The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a party to the proceeding. In deciding whether to name a person as a Presenter, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.

Role of a Presenter

70. A Presenter in a Hearing may:

(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing’s regular day-time session or at a special evening session;

(b) be questioned by the Parties;

(c) provide the Tribunal with a written statement as a supplement to oral testimony; and

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Presenter’s interests.

71. A Presenter in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(f) participate in a mediation, unless permitted to do so by the Tribunal;

(g) attend site visits unless permitted to do so by the Tribunal; and

(h) claim costs or be liable for costs.

Termination of Proceedings

199. Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, … the Tribunal shall issue a decision dismissing the proceeding.

Issue 1: Whether the appeal brought by PECSSC should be dismissed

9As noted above, PECSSC informed the Tribunal by letter on August 11, 2015 that it wished to withdraw its appeal. Rule 199 provides that where a proposed withdrawal of an appeal is agreed to by all parties and the decision under appeal is not altered by a settlement agreement, the Tribunal shall dismiss the appeal. At the preliminary hearing, all of the parties indicated their agreement with PECSSC’s withdrawal of its appeal and there is no settlement agreement at issue. As a result, the Tribunal dismisses PECSSC’s appeal (Case No. 15-070).

Issue 2: Whether to grant party, participant and presenter status to persons in the proceeding

Requests for participant and presenter status

10The Tribunal granted participant and presenter status in the proceeding, as set out in the following paragraphs. In addition, the Tribunal orders that all those granted status are required to:

a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the EPA and as set out in the notices of appeal;

b. comply with the Tribunal’s directions regarding the date for filing their written presentations and supporting documents;

c. if expert qualification is requested, file a resume, a signed Form 5 Acknowledgement of Expert’s Duty, and a statement of the qualification sought;

d. limit their oral presentations at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal; and

e. coordinate with other participants and presenters raising similar issues, if directed to do so by the Tribunal.

11Brian Flack sought participant status. Mr. Flack and his wife, Susan Straiton, live near the proposed Project. Mr. Flack seeks to provide evidence regarding the impact of the Project on their health. None of the parties objected to the granting of status to Mr. Flack and the Tribunal granted participant status to him. The Tribunal is satisfied that he has a genuine interest in the subject matter of the appeals and will make a relevant contribution to the Tribunal’s understanding of the issues.

12James Bowlby sought presenter status. Mr. Bowlby lives near the proposed Project site and has a professional interest in sustainable ecosystem management. He seeks to provide evidence regarding the impact of the Project on bats and bat habitat and on migratory birds. The Appellants did not object to the granting of presenter status to Mr. Bowlby. The Director and the Approval Holder did not object to presenter status being granted to him provided that, if he seeks qualification as an expert, they retain the right to object to his qualifications. The Tribunal granted presenter status to Mr. Bowlby. The Tribunal is satisfied that he has a genuine interest in the subject matter of the appeals and will make a relevant contribution to the Tribunal’s understanding of the issues.

13Hardie Wines Limited (“Hardie Wines”) is located near the proposed Project site. It seeks presenter status in order to present evidence regarding the impact of the Project on local environmental conditions, including the shoreline of Lake Ontario, limestone formations, groundwater and surface water bodies, and on how those impacts will affect the economic future of the winery and the greater community of Prince Edward County. The Appellants did not object to this request. The Director and the Approval Holder opposed the request, arguing that Hardie Wines’ concerns regarding the economic impacts of the Project are outside the Tribunal’s jurisdiction and that some of the issues, such as water impacts and limestone, were not raised in the notices of appeal. The Tribunal granted presenter status to Hardie Wines. The Tribunal is satisfied that Hardie Wines has a genuine interest in the subject matter of the appeals. The Tribunal agrees that the issue of economic impact, per se, is beyond its jurisdiction under s. 142.1 of the EPA; however, there are several issues that Hardie Wines seeks to address in its presentation that are raised in the notices of appeal, specifically, wetlands, alvar and groundwater impacts. The Tribunal finds that the condition limiting presentations to issues within the scope of its jurisdiction and within the issues raised in the notices of appeal will address the responding parties’ concerns respecting the scope of Hardie Wines’ evidence.

14Douglas Murphy sought presenter status. He and his wife live on a dairy farm located near the proposed Project site. Mr. Murphy seeks to provide evidence regarding the impacts of the Project on a designated Area of Natural and Scientific Interest and impacts on his family’s health due to shadow flicker from the proposed wind turbines. The Appellants did not object to Mr. Murphy’s request. The Director and the Approval Holder did not object to his participation in the hearing, but questioned whether all of the issues Mr. Murphy seeks to raise are within the scope of the notices of appeal. The Tribunal granted Mr. Murphy presenter status. The Tribunal is satisfied that he has a genuine interest in the subject matter of the appeals and that he will make a relevant contribution to its understanding of the issues. The Tribunal finds that the condition limiting presentations to issues raised in the notices of appeal will address the responding parties’ concerns with the scope of his evidence.

Requests for party status

15The Municipality of Prince Edward County (the “County”) requested, and was granted, party status in the Approval Holder’s appeal of the REA (Case No. 15-071) (see the Tribunal’s Order in that proceeding, dated September 30, 2015). It also requested party status in this proceeding, but framed it as a request for the sole purpose of enabling the County to participate as a party to the appeals “for all procedural matters, questions and issues as may arise from time to time in the course of the appeals including the hearing(s) and any related appeals or applications for judicial review related in whole or part to such procedural matters, questions and issues”. The County stated that it would not participate “in relation to any substantive issue to be decided in the appeals”. The County stated that it would lead no evidence, cross-examine no witnesses, and make no submissions on the merits of the appeals.

16Elizabeth Driver and Edwin Rowse were also granted party status in Case No. 15-071. Ms. Driver and Mr. Rowse requested party status in this proceeding on the same terms as the County’s request. They are represented by counsel, but their counsel did not appear at the preliminary hearings on September 9, 2015. Instead, their counsel provided a letter to the Tribunal and asked the County’s counsel to represent their interests at the preliminary hearings on the basis that they have a similar interest and a similar rationale for being granted status in this proceeding.

17In addition, APPEC informed the Tribunal it was seeking the same type of party status in Case No. 15-071.

18The County submitted that being granted party status but limiting it to “procedural matters” is necessary because of the potential for events in one proceeding, where the same REA is under appeal, to have an impact on the other proceeding. The County argued that it, Ms. Driver and Mr. Rowse can only protect their interests if they have party status because neither participant nor presenter status allows a person to participate fully in all aspects of a proceeding. None of the parties objected to these requests for party status on these terms.

19At the preliminary hearing, the Tribunal reserved its decision on whether to grant the requests for status to these persons.

20The Tribunal finds that granting party status for procedural purposes is not necessary at this time. To date, the Tribunal has facilitated the involvement of all interested persons in procedural decision-making in both proceedings in order to ensure the fair and efficient conduct of both. It has held TCCs involving all parties and interested persons to address these issues and will continue to do so, as needed. At the request of the parties in both proceedings, the Tribunal has agreed to hear the two proceedings one immediately after the other. The same panel of members will conduct both hearings. To date, the parties have cooperated by coordinating scheduling and other procedural matters to ensure that these two proceedings move forward in an efficient manner. For this reason, the Tribunal considers that the need for the County, Ms. Driver and Mr. Rowse to have party status has not been demonstrated at this time. There is no imminent problem or issue identified by anyone that would necessitate that parties in one proceeding be given status in the other in order to protect their interests or to contribute to the Tribunal’s understanding of the issues. Even if a problem or issue were to arise, it is not self-evident that the Tribunal would be unable to resolve it in a fair manner without the County, Ms. Driver and Mr. Rowse participating as added parties. However, the Tribunal confirms that they may renew their requests for party status if circumstances change in the future. The Tribunal will continue to facilitate inclusive procedural discussions with the parties to both proceedings as necessary to ensure that procedural issues are dealt with fairly.

Procedural directions related to the continuation of the preliminary hearing and to the hearing of the appeals

21Prior to the preliminary hearings, problems arose with service of the Notices of Preliminary Hearing and Hearing, so that some individuals entitled to notice did not get timely notification of the preliminary hearings. This left some individuals without sufficient time to submit requests for status in the hearing before the deadline set out in the Notices. As a result, the Approval Holder agreed at the preliminary hearings on September 9, 2015 to serve revised notices.

22The Tribunal and the parties agreed to continue the preliminary hearings at 10 a.m. on October 14, 2015, at the Wellington Community Centre, 111 Belleville Street in Wellington, Ontario. At that time, the Tribunal will consider any additional requests for status. In addition, the Tribunal will hear at that time any motions brought by the parties.

23The parties raised an issue as to whether this proceeding should relate to the 27 wind turbines approved in the REA or should relate to the 29 wind turbines for which the Approval Holder originally sought approval. On consent of the parties, the Tribunal confirmed that this issue would be heard by way of a motion in writing, in accordance with the Tribunal’s directions as set out in the Order below.

24The parties presented a proposed schedule for the hearing and for the procedural steps leading up to the hearing and agreed that this proceeding and the proceeding in Case No. 15-071 will be heard one immediately after the other, with the hearing in this proceeding commencing first. The Tribunal confirmed the schedule, as set out below, subject to any further direction from the Tribunal, as required.

ORDER

25The Tribunal grants participant status to Brian Flack.

26The Tribunal grants presenter status to James Bowlby, Hardie Wines Limited and Douglas Murphy.

27The Tribunal denies the requests for party status of the Municipality of Prince Edward County, Elizabeth Driver and Edwin Rowse.

28The Tribunal orders that those granted status:

a. keep their presentations within the scope of the Tribunal’s jurisdiction as defined by the EPA and as set out in the notices of appeal;

b. comply with the Tribunal’s directions regarding the date for filing their written presentations and supporting documents;

c. if expert qualification is requested, file a resume, a signed Form 5 Acknowledgement of Expert’s Duty, and a statement of the qualification sought;

d. limit their oral presentations at the hearing to 30 minutes, unless that time is extended by direction of the Tribunal; and

e. coordinate with other participants and presenters raising similar issues, if directed to do so by the Tribunal.

29The Tribunal dismisses the appeal filed by PECSSC on July 31, 2015 (Case No. 15-070).

30The Tribunal orders that this proceeding (Case Nos. 15-068 and 15-069) and the proceeding in Case No. 15-071 will be heard one immediately after the other, with the hearing in this proceeding commencing first.

31The Tribunal confirms the following schedule:

September 14, 2015

Approval Holder’s motion record requesting that these proceedings address the 29 wind turbines for which the Approval Holder originally sought approval to be filed with the Tribunal and served on the parties

September 18, 2015

Responding motion records to the Approval Holder’s motion to be filed with the Tribunal and served on the parties

September 21, 2015

Approval Holder’s reply materials (if any) for its motion to be filed with the Tribunal and served on the parties

September 28, 2015

Appellants’ disclosure, documents to be relied on at the Hearing, witness lists, witness statements and statements of areas of proposed qualifications of expert witnesses to be served on the other parties

October 2, 2015

Motion records for any motions to be heard on October 14, 2015 to be filed with the Tribunal and served on the other parties (if applicable)

October 9, 2015

Responding motion records to be filed with the Tribunal and served on the other parties (if applicable)

October 9, 2015

Additional requests for status to be filed with the Tribunal

October 13, 2015

Reply motion materials to be filed with the Tribunal and served on the parties (if applicable)

October 14, 2015 at 10 a.m.

Hearing of any motions and continuation of the Preliminary Hearing at the Wellington Community Centre, 111 Belleville Street, Wellington, Ontario

October 19, 2015

Respondents’ documents to be relied on at the Hearing, list of witnesses, witness statements and statements of areas of proposed qualification for expert witnesses to be served on the other parties

October 19, 2015

Participants’ and presenters’ documents to be relied on at the hearing, witness statements and statements of areas of proposed qualification for expert witnesses to be served on the parties

October 26, 2015

Appellants’ reply documents, list of supplementary witnesses, supplementary witness statements, documents to be relied on at the Hearing, and statements of areas of proposed qualification for expert witnesses to be served on the other parties

October 26, 2015

One electronic copy and two hard copies of all witness statements, documents to be relied on at the Hearing, and statements of areas of proposed qualification for expert witnesses to be filed with the Tribunal

November 2, 2015 at 10 a.m.

Hearing commences at the Wellington Community Centre, 111 Belleville Street, Wellington, Ontario

Appeal in Case No. 15-070 Dismissed

Requests for Participant and Presenter Status Granted

Requests for Party Status Denied

Procedural Directions Given

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248