Hutton v. Ontario (Environment and Climate Change), 2015 CanLII 63222

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

October 2, 2015

CASE NO.:

15-041

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

Appellant:

Patti Hutton (File No.15-041)

Appellant:

William Ernest Young (File No. 15-042)

Approval Holder:

Meyer Wind Power (GP) Inc. o/a Meyer Wind Power LP

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Meyer Wind Farm

Reference No.:

0682-9TGSHV

Property Address/Description:

RR 3, Tiverton, Part South, Plan 33287-0115

Municipality:

Municipality of Kincardine

Upper Tier:

County of Bruce

ERT Case No.:

15-041

ERT Case Name:

Hutton v. Ontario (Environment and Climate Change)

Heard:

August 14, 2015 in Toronto, Ontario

APPEARANCES:

Parties

Counsel

Patti Hutton and William Ernest Young

Priya Vittal

Director, Ministry of the Environment and Climate Change

Andrew Weretelnyk

Meyer Wind Power (GP) Inc. o/a Meyer Wind Power LP

Scott Stoll and

Mark Strychar-Bodnar (Student-at-law)

ORDER DELIVERED BY MARLENE CASHIN AND JUSTIN DUNCAN

REASONS

Background

1On May 20, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 0682-9TGSHV (“REA”) to Meyer Wind Power (GP) Inc. o/a Meyer Wind Power LP (“Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 3 wind facility with two wind turbines and a total name plate capacity of 4.0 megawatts (“Project”). The Project is to be located at R.R. No. 3 Tiverton, Part South, Plan 33287-0115, in the Municipality of Kincardine, Bruce County, Ontario.

2On June 4, 2015, Patti Hutton and William Ernest Young (“Appellants”) filed a written notice requiring a hearing (the “Notice”) respecting the REA with the Environmental Review Tribunal (“Tribunal”) on the grounds that the Project will cause serious harm to human health (the “Health Ground”) and serious and irreversible harm to plant life, animal life or the natural environment (the “Environment Ground”).

3On June 30, 2015, the Approval Holder served and filed a notice of motion requesting particulars and seeking to strike out certain issues and material facts in the Appellants’ Notice.

4A preliminary hearing took place on July 7, 2015 at which time a hearing schedule was set, including a date for the hearing of the Approval Holder’s motion. Further background to the appeal is set out in the order of July 24, 2015.

5On August 14, 2015, the Tribunal heard the Approval Holder’s motion. In an order dated August 17, 2015, the Tribunal ordered procedural directions, granted the Approval Holder’s motion for particulars, and dismissed the Approval Holder’s motion to strike paragraphs 31 to 37 of the Appellants’ Notice with reasons to follow. These are the reasons for the Tribunal’s order.

Relevant Legislation and Rules

6The following Rules of Practice of the Environmental Review Tribunal (“Tribunal Rules”) and provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) are relevant on this motion:

The Tribunal Rules

7. During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.

8. A Notice of Appeal respecting a renewable energy approval filed under section 142.1 of the Environmental Protection Act shall include:

(a) the Appellant’s name, address, telephone number, facsimile number and email address and the name and contact information of anyone representing the Appellant;

(b) a copy of the renewable energy approval being appealed;

(c) identification of the portions of the renewable energy approval that the Appellant is appealing;

(d) a description of how engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(i) serious harm to human health, or

(ii) serious and irreversible harm to plant life, animal life or the natural environment;

(e) a statement of the issues and material facts relevant to the subject matter of the appeal that the Appellant intends to present at the main Hearing;

(f) a description of the relief requested; and

(g) an indication of whether the Appellant will seek a stay of the renewable energy approval.

A Notice of Appeal respecting a renewable energy approval is accepted by the Tribunal when it meets all the requirements for filing an appeal under the Environmental Protection Act.

111. A Party bringing a motion to dismiss a proceeding shall specify the basis for the motion, which may include that:

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;

(c) some aspect of the statutory requirements for bringing the proceeding has not been met; or

(d) another Party has caused undue delay or has not complied with orders, undertakings, written requests from the Tribunal or these Rules.

132. A Preliminary Hearing may be held to deal with issues such as the following:

(a) identifying Parties, Participants and Presenters, and the scope of their participation in the Hearing;

(b) determining the length, schedule and location of the Hearing;

(c) determining whether the Hearing will be conducted orally, electronically or in writing;

(d) hearing preliminary motions;

(e) identifying, defining or narrowing issues;

(f) establishing dates for the exchange among Parties of all documents relevant to the proceeding and in the possession, control or power of a Party, except for those documents that are privileged;

(g) establishing dates for the exchange among Parties and filing with the Tribunal of all documents, witness lists, witness statements and resumes of any expert witnesses that the Party intends to rely on at the main Hearing;

(h) where applicable, establishing dates for the exchange among all Parties and filing with the Tribunal of a common document book;

(i) establishing facts or evidence that may be agreed on;

(j) the settlement or withdrawal of any or all of the issues;

(k) scheduling Tribunal-assisted mediation;

(l) determining the order of presentation of evidence and submissions; and

(m) any other matters that may assist in the just and expeditious disposition of the proceeding.

135. A member who presides at a Preliminary Hearing may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding.

Statutory Powers Procedure Act

23. (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

Issues

7The issues on this motion are:

1. Whether the motion for particulars should be granted; and

2. Whether the motion to strike a portion of the Notice should be granted.

Submissions of the Parties

8In its motion, the Approval Holder seeks an order compelling the Appellants to immediately provide particulars in respect of paragraphs 3 through 30 of the Notice, pursuant to Rules 7, 132 and 135 of the Tribunal Rules, and pursuant to s. 23 and s. 25.0.1 of the SPPA, for the reason that the Notice is improper as it sets out, in respect of the Health Ground, generic pleadings that have previously been considered by the Tribunal and which do not provide sufficient details about how the Project under appeal will impact health.

9The Approval Holder submits that such a pleading is contrary to Rules 29(d) and (e) of the Tribunal’s Rules which incorporate the requirements of s.142.2 of the EPA and furthermore, does not accord with the directions of the Tribunal in previous hearings with regard to the specificity of pleadings required in appeals of this nature.

10The Approval Holder further moves to strike the Environment Ground, contained at paragraphs 31 through 37 of the Notice pursuant to Rule 111 of the Tribunal Rules, on the basis that such the issues raised are frivolous as there is no genuine issue to be determined. The Approval Holder states that in those paragraphs of the Notice, the Appellants assert that engaging in the Project in accordance with the REA will cause serious and irreversible harm to plants, animals and the natural environment. The Approval Holder submits however, that the Notice sets out general assertions with no specific reference to this Project. They cite as an example, that at paragraphs 36 and 37, the Appellants refer to potential harm to the bobolink and to bats, but that the Project reports themselves, reveal no grounds to assert these potential harms.

11The Approval Holder further submits that in their disclosure of June 25, 2015, the Appellants did not provide any documents related to these alleged harms in the context of this Project, that the initial witness list provided by the Appellants does not include any expert to address the Environment Ground, and that as a result, there is no basis to suggest that the Appellants have a genuine issue for hearing with respect to the Environment Ground.

12The Director concurred with the Approval Holder’s submissions, stressing that in previous decisions of the Tribunal when appeals from renewable energy approvals were first brought before the Tribunal that the Tribunal had directed, as experience with these appeals matured, that more specificity in pleadings would be expected of appellants. The Director submits that such specificity remains lacking in the Appellants’ Notice.

13The Appellants, in response to the request for particulars, said that they have clearly stated the issues they intend to address in the appeal, and will provide further particulars on August 28, 2015, through their witness statements and documents to be relied upon at the hearing. They further submitted that they have met their obligations as appellants, since the notice of appeal filed in this matter is “substantially similar to previous notices issued by the same counsel and the Tribunal has found those Notices in conformity with all statutory requirements and rules.”

14The Appellants submit that the appeal is not frivolous or vexatious, has been filed in good faith, and is based on genuine concerns about the environmental impacts that will result from the Project. The Appellants also submit that the purpose of the Notice of Appeal is to set out the nature and scope of the appeal rather than to provide extensive evidence, and they say that numerous Tribunal decisions have determined that at this stage in the proceedings, a lack of sufficient evidence does not demonstrate that there is no genuine issue to be heard.

15Finally, the Appellants say that although they have not yet identified a witness who will testify to issues regarding the potential for serious harm to the environment caused by the Project, they are currently seeking at least one witness to provide expert evidence on potential harm to bats and birds.

Discussion, Analysis and Findings

Issue 1: Whether the motion for particulars should be granted

16In Preserve Mapleton Inc. v. Ontario (Ministry of Environment), [2012] O.E.R.T.D. No. 20 (“Preserve Mapleton”) the Tribunal denied a motion for particulars, but provided guidance to Appellants in drafting future notices of appeal challenging renewable energy approvals as follows (at para. 65):

The Tribunal has accepted the Notices of Appeal in the first few REA appeals as meeting the minimum statutory requirements and the minimum expectations of Rule 29(e). However, these should not be interpreted as precedents for all future cases. As more REA appeals are filed, the Tribunal expects that Appellants will provide more specificity in their Notices of Appeal, particularly where the basis for the appeal is substantially similar to that being argued in these first appeals. The expedited nature of the REA appeal process demands that the parties make their best efforts to provide as much information to each other as early as possible within the limited time period available. The sooner this information is provided, the more efficiently the REA appeal hearings will run.

17The Tribunal then went on to set out in detail, its expectations in future renewable energy appeals as follows (at paras. 66 and 67):

With respect to REA appeals, it is important to recall the requirements in the EPA with respect to the Notice of Appeal, namely, that the notice shall include a description of how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. In addition to the general principles noted above, the key focal point is whether the Notice of Appeal provides sufficient detail to allow both the Director and the Approval Holder to fairly, comprehensively and expeditiously respond with evidence to the allegations made [in] the Notice of Appeal.

Generally speaking, in applying the basic principles regarding the purpose of particulars to this requirement, in the context of [a] REA appeal based on allegations that a project will cause serious harm to human health, the Tribunal expects that, to the extent this information is known at the time the Notice of Appeal is filed, in future Appellants should set out allegations and material facts with respect to:

• the specific nature and kind of harm to human health that it alleges will occur as a result of the project under appeal;

• who will be harmed, and in what ways;

• the Appellant’s position as to why the harm to human health is “serious,”

• a description of the Appellant’s theory as to ”how” the project approved by the REA will cause the serious harm to human health;

• when referring to other renewable energy projects, the facts and circumstances that identify how the project under appeal is similar or different such that a similar outcome of serious harm to human health will result; and

• when alleging the inadequacies, gap or uncertainties of any law or policies or the implementation of any law or policies, how those inadequacies, gap or uncertainties will cause serious harm to human health.

18In determining the particulars required in the context of renewable energy approvals, it is necessary to consider the need to provide responding parties with adequate notice of an appellant’s case. Given the expedited time lines for hearing renewable energy appeals, respondents could suffer prejudice by not knowing the case they must be prepared to meet, if they are not provided with adequate particulars.

19On the other hand, the Tribunal is cognizant that the expedited timelines for these appeals also pose a major challenge to appellants who are required to meet the statutory requirement to file an appeal within 15 days.

20With these competing challenges in mind, the Tribunal finds that the particulars required from appellants should now be meeting the direction provided by the Tribunal in Preserve Mapleton.

21Applying these principles in this case, the Tribunal notes that it has been three years since the decision in Preserve Mapleton, yet the Notice in this proceeding remains substantially similar to those filed in the early renewable energy appeals. The Tribunal finds that the particulars, as described in Preserve Mapleton, should have been provided in the Notice but have not been. However, based on the principles set out above, the Tribunal also does not consider it necessary for the Appellant to provide the level of detail requested by the Approval Holder which would be overly burdensome for the Appellants to have provided in the timeframe provided for under the EPA for the filing of the Notice. The expectations set out in Preserve Mapleton strike the proper balance between the competing pressures on the Appellants and the responding parties imposed by the expedited nature of this appeal.

22Overall therefore, the Tribunal finds that the Tribunal’s articulation of principles and direction to parties as set out in Preserve Mapleton have not been satisfied in this appeal and those particulars ought to be supplied by the Appellants.

Issue 2: Whether the motion to strike portion of the Notice should be granted

23Based on the Appellants’ assertion that one of their lay witnesses will speak to the environment issues and that they are currently seeking an expert to testify in relation to impacts to birds and bats, the Tribunal finds that it would be premature to strike paragraphs 31 to 37 of the Notice, as it appears that there could be a genuine issue to be heard in relation to the Environment Ground.

24However, as the Appellants’ witness statements and supporting documents are due to be filed on August 28, 2015, the Tribunal expects that the Appellants will be fully aware by August 24, 2015 what issues in the Notice they intend to pursue. The Tribunal directs the Appellants to file, by August 24, 2015, an amended Notice which sets out the matters that remain at issue at that time in order that the Approval Holder and Director are put on notice of what grounds and issues remain at issue in the appeal.

ORDER

25The Tribunal directs Patti Hutton and William Ernest Young (the “Appellants”) to advise Meyer Wind Power (GP) Inc. o/a Meyer Wind Power LP (the “Approval Holder”) and the Director, Ministry of Environment and Climate Change which matters raised in their Notice of Appeal remain in issue and which matters will no longer be pursued on the appeal by August 24, 2015.

26The Tribunal grants the Approval Holder’s motion for particulars and dismisses the motion to strike paragraphs 31 to 37 of the Appellants’ Notice of Appeal. Specifically, the Tribunal:

a. Grants the Approval Holder’s motion for particulars on the health issues and orders the Appellants to serve and file the following particulars by August 24, 2015 on those matters that remain in issue:

i. the specific nature and kind of harm to human health that is alleged will occur as a result of the project under appeal;

ii. who will be harmed, and in what ways by the project under appeal;

iii. the Appellants’ position as to why the harm to human health is “serious”;

iv. a description of the Appellants’ theory as to “how” the project approved by the REA will cause the serious harm to human health;

v. in referring to other renewable energy projects, the facts and circumstances resulting in serious harm to human health impacts and how the project under appeal will result in similar harms; and

vi. if intending to allege inadequacies, gaps or uncertainties of any law or policies or the implementation of any law or policies related to the project at issue, how those inadequacies, gaps or uncertainties will cause serious harm to human health.

b. Dismisses the Approval Holder’s motion to strike paragraphs 31 to 37 of the Notice of Appeal relating to environment issues.

Procedural Direction Ordered

Motion for Particulars Granted

Motion to Strike Dismissed

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

If there is an attachment referred to in this document,

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

Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

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

Attachment 1

(a) Which of the alleged causal factors (e.g., infrasound, audible sound, shadow flicker, etc.) is said to cause which specific serious health effects;

(b) In respect of infrasound:

(i) How exposure to infrasound is alleged to be a cause of serious health effects; and

(ii) Which individuals at which receptors are alleged to be subject to the allegedly harmful infrasound;

(c) In respect of low frequency noise:

(i) How exposure to low frequency noise is alleged to be a cause of serious health effects; and

(ii) Which individuals at which receptors are alleged to be subject to the allegedly harmful low frequency noise;

(d) In respect of audible noise:

(i) How exposure to audible noise is alleged to be a cause of serious health effects;

(ii) Which receptors are alleged to be subject to the allegedly harmful audible noise;

(e) In respect of “visual impact”:

(i) What aspect of the “visual impact” of wind turbines is alleged to cause serious health effects;

(ii) How the “visual impact” of wind turbines is alleged to be a cause of serious health effects; and

(iii) Which individuals at which receptors are alleged to be subject to the allegedly harmful “visual impact”;

(f) In respect of shadow flicker:

(i) How exposure to shadow flicker is alleged to be a cause of serious health effects; and

(ii) Which individuals at which receptors are alleged to be subject to the allegedly harmful shadow flicker;

(g) In respect of stray voltage and/or electromagnetic fields:

(i) How exposure to stray voltage and/or electromagnetic fields is alleged to be a cause of serious health effects; and

(ii) Which individuals at which receptors are alleged to be subject to the allegedly harmful stray voltage and/or electromagnetic fields;

(h) In respect of tonality as a contributing factor:

(i) Precisely what is meant by “tonality”:

(ii) How the “tonality” of a wind turbine is alleged to contribute to negative health impacts; and

(ii) Which individuals at which receptors are alleged to be subject to the allegedly harmful “tonality”;

(i) In respect of lack of nighttime abatement as a contributing factor:

(i) Precisely what is meant by “lack of nighttime abatement”;

(ii) How the lack of “lack of nighttime abatement” of a wind turbine is alleged to contribute to negative health impacts; and

(iii) Which individuals at which receptors are alleged to be subject to the allegedly harmful “lack of nighttime abatement”;

(j) Which of the health effects listed at paragraph 3 of the Notice is said to be “serious”;

(k) What percentage of persons living in proximity to wind turbines are alleged to suffer each of the listed health effects;

(l) Which of the health effects listed at paragraph 3 of the Notice is said to be caused by which of the alleged causal factors listed at paragraph 4;

(m) Which mechanisms set out in paragraph 4, either alone or combination with others, cause health effects and precisely which health effects;

(n) Specifically who will suffer “serious health effects” from the operation of the Project, and in what ways;

(o) How each of the “Previous Projects” described in paragraph 10 of the Notice is alleged to have caused “serious harm to human health”;

(p) How the “Previous Projects” described in paragraphs 10 and 12 of the Notice are alleged to relate to the Project and its alleged impact on human health;

(q) How the assertions set out in paragraphs 17 and 18 regarding noise effects relate to the Project and its alleged impact on human health;

(r) What is the actual risk for accidents and fires related to the turbines to be used for this Project and how has that been determined;

(s) Are the actual turbines to be used in this Project likely to have blade shatter and ice throw?

(t) Which “nearby residents” are at risk from blade and ice throw?

(u) Which contaminants are likely to be spilled and which underground aquifers will such contaminants enter into;

(v) What specific components of the Project will cause oil spills, as alleged in paragraph 29 of the Notice; and

(w) Which combination of issues and under what circumstances will cause serious harm to human health, as alleged in paragraph 30 of the Notice?