Environmental Review Tribunal
ISSUE DATE: October 21, 2015
CASE NO.: 15-028
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: East Oxford Community Alliance Inc.
Approval Holder: GHLP General Partner Inc. as general partner for and on behalf of Gunn’s Hill LP
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Renewable Energy Approval for Gunn’s Hill Wind Farm
Reference No.: 6862-9RDJZX
Property Address/Description: Middletown Line R.R. 4, Lot 12, Concession 5
Municipality: Norwich Township
Upper Tier: Oxford County
ERT Case No.: 15-028
ERT Case Name: East Oxford Community Alliance Inc. v. Ontario (Environment and Climate Change)
Heard: June 29 - 30, 2015 and July 7, 8, 14, and 16, 2015 in Woodstock, Ontario, and in writing.
APPEARANCES:
Parties
East Oxford Community Alliance Inc. Counsel/Representative: Ian Flett
Director, Ministry of the Environment and Climate Change Counsel/Representative: Sarah Kromkamp, Jocelyn Curry and Danielle Meuleman
GHLP General Partner Inc. Counsel/Representative: Albert Engel and Sarah Power
Presenter
Township of Norwich Counsel/Representative: Wayne Buchanan
DECISION DELIVERED BY MARLENE CASHIN AND DIRK VANDERBENT
REASONS
Background
1On April 9, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 6862-9RDJZX (the “REA”) to GHLP General Partner Inc., as general partner for and on behalf of Gunn’s Hill LP (the “Approval Holder”) under s. 47.5 of the Environmental Protection Act (“EPA”). The REA is for a renewable energy project known as the Gunn’s Hill Wind Farm, consisting of the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 18 megawatts, located on Middletown Line R.R. 4, Lot 12, Concession 5 in Norwich Township, County of Oxford, Ontario (the “Project”).
2On April 24, 2015, East Oxford Community Alliance Inc. (the “Appellant”) appealed the REA to the Environmental Review Tribunal (the “Tribunal”). The Appellant appeals under s. 142.1(3) of the EPA on the grounds that “engaging in the Project in accordance with the REA will cause serious harm to human health” (the “Health Test”) and also 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” (the “Environmental Test”).
3A preliminary hearing was held on May 25, 2015. At that time, the Tribunal granted the Township of Norwich’s request for presenter status, and gave procedural directions respecting the main hearing in the proceeding, as set out in the order of June 18, 2015.
4On June 29, 2015 the hearing commenced in Woodstock and continued over several days, continuing into July. On the second day of the hearing, when the Tribunal had heard the testimony from all of the Appellant’s witnesses, and following the Township of Norwich’s presentation, the Approval Holder brought a motion to dismiss. The Approval Holder had previously served and filed its Notice of Motion, as required by Rule 98 of the Tribunal’s Rules of Practice (the “Rules”) and had notified the other parties and the Tribunal regarding the intended timing of the motion.
5On July 7, 2015, the Approval Holder requested that the motion be heard orally. However, given the complexity of the issues raised by this motion and having regard to the expedited timeline for the main hearing of the evidence in this renewable energy approval appeal, the Tribunal directed that the motion be heard in writing. On consent of counsel for the Parties, the Tribunal set due dates for filing submissions in respect of this motion. At the request of the Approval Holder, and on consent of counsel for the Director and the Appellant, the Tribunal directed that the hearing would continue as previously scheduled. This Decision includes the Tribunal’s reasons and disposition of the Approval Holder’s motion.
6Having considered the evidence submitted in respect of the motion and the evidence adduced in the main hearing, as well as the submissions of the parties on the motion and on the main hearing, the Tribunal dismisses the motion to dismiss, dismisses the appeal. The decision of the Director is confirmed.
Relevant Legislation
7The relevant legislation is as follows:
- (1) “natural environment” means the air, land and water, or any combination or part thereof, of the Province of Ontario;
Director’s powers
47.5 (1) After considering an application for the issue or renewal of a renewable energy approval, the Director may, if in his or her opinion it is in the public interest to do so,
(a) issue or renew a renewable energy approval; or
(b) refuse to issue or renew a renewable energy approval.
Terms and conditions
(2) In issuing or renewing a renewable energy approval, the Director may impose terms and conditions if in his or her opinion it is in the public interest to do so.
Other powers
(3) On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so,
(a) alter the terms and conditions of a renewable energy approval after it is issued;
(b) impose new terms and conditions on a renewable energy approval; or
(c) suspend or revoke a renewable energy approval.
Same
(4) A renewable energy approval is subject to any terms and conditions prescribed by the regulations.
145.2.1(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.
(3) The person who required the hearing has the onus of proving that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b).
(4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,
(a) revoke the decision of the Director;
(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or
(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.
Issues
8The issues on the appeal are:
Whether engaging in the Project in accordance with the REA will cause serious harm to human health.
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.
Whether the Tribunal should grant the Approval Holder’s motion to dismiss the Appellant’s appeal on the basis that the Appellant has failed to establish a prima facie case.
9Because the Tribunal has dismissed the motion to dismiss, the Tribunal will address this as the third issue in this Decision.
Issue 1: Whether engaging in the Project in accordance with the REA will cause serious harm to human health.
Discussion, Analysis and Findings
Evidence of the Appellant
Overview
10The Appellant called seven lay witnesses: Joan Morris, Carol Hopkins-Engberts, Keith McKay, Michelle Poulin, George Rand, Karen Wesseling, and John Eacott. The Appellant also called one expert witness, William Palmer. With the exception of Mr. Palmer, the Appellant did not request that any of its witnesses be qualified to give opinion or technical evidence.
Joan Morris
11Joan Morris and her husband live on a farm in East Oxford. The Project’s closest turbine will be located approximately 700 metres (“m”) from their dairy barn. Ms. Morris did not request to be qualified as an expert witness in this proceeding, but she notes for the Tribunal’s information that she holds an Honours Bachelor of Science degree in Human Biology and a Master of Health Science degree in Community Health and Epidemiology, and that she is also a Certified Clinical Research Professional. She characterizes herself and her husband as “stewards of the land and ... guardians for our livestock”, and says her main concerns about the Project are for her family’s health and safety, and their ability to continue with their livelihood of dairy farming. Ms. Morris included a large number of documents in support of her testimony, and also gave evidence that she has communicated with other individuals in Ontario who have experienced health effects from living in proximity to wind turbines. Ms. Morris testified to the World Health Organization’s definition of health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, and referenced several documents pointing to the conclusion that the audible presence of wind turbines will cause annoyance in certain individuals.
Carol Hopkins-Engberts
12Carol Hopkins-Engberts testified on behalf of herself and her husband Gerhard Hopkins-Engberts. They live near the location of the Project and operate a farming business there. Four turbines will be located within 900 m of the Hopkins-Engberts property, and a further three turbines will be located within 1500 m. Ms. Hopkins-Engberts stated their concerns about the Project in terms of noise, environmental issues regarding birds, bats, insects, deer and other wildlife, land use, safety, and potential impacts of the Project on views from their home, and on the future sale of their property. Ms. Hopkins-Engberts expressed her concern and that of her husband, that “low-grade noise is a source of stress” and that the Project’s turbines could possibly cause illness related to lack of sleep.
Keith McKay and Michelle Poulin
13Keith McKay and Michelle Poulin provided a joint witness statement and gave oral testimony together. Their home is located in the vicinity of the Project, with turbines to be located to the east, west, and south of their property. They stated their concerns about the Project in terms of the negative effects on their personal health, and the impact of radar interference on air traffic, public safety and their own personal safety during takeoff and landing at the nearby Curries Aerodrome, where Mr. McKay hangars his plane and uses the runways for takeoff and landings. Attached to the Poulin/McKay witness statement is a letter from Paul A. Hayes, President of Aerocan Aviation Specialists Inc. to George Rand, owner of Curries Aerodrome. Mr. Hayes had recommended “a safety setback zone of 4 km from the ends of an aerodrome runway, and 2.5 km laterally from each side of the runway”. The document was included as having informed Ms. Poulin and Mr. McKay’s opinions but not was not admitted for the truth of its contents.
14Ms. Poulin and Mr. McKay testified to their concerns about adverse health effects caused by noise from wind turbines, saying in their joint witness statement, “infrasound emitted by turbines has negative effects on the mechanism of inner ear function which controls equilibrium”, and “regular frequency audible noise is an irritant which negatively impacts health”.
George Rand
15George Rand lives in the vicinity of the proposed Project and is the owner and operator of Curries Aerodrome, which has two airstrips. His main concern is air safety, for himself and for the general public using the airspace near the Project turbines. Mr. Rand also farms approximately 1100 acres spread throughout Norwich Township and in the past has conducted seed and fertilizer application by air. He states that these farming methods are in jeopardy now, stating that he has spoken with pilots who refuse to fly in areas where turbines are located. Mr. Rand testified that Curries Aerodrome is a registered Aerodrome, but it is not a certified airport. He confirmed that he is aware that, on occasion, some pilots will use his airstrips without notifying him in advance, and that he has given a generalized permission to flying clubs in the area and others, to use the strips. He also testified that he was unaware of Condition N in the REA that specifically requires development of any mitigation measures that may be required for the Curries Aerodrome.
Karen Wesseling
16Karen Wesseling and her family live adjacent to the Project site and operate a dairy farm. Turbine 4 will be located approximately 86 m from her property line. Ms. Wesseling expressed concern about not being able to use a walking path located on her property, due to its proximity to one of the Project’s turbines. She also expressed concern about the health and safety of her family and farm employees due to the possibility that debris or ice may be thrown from the nearest proposed turbine onto her property.
17Ms. Wesseling’s main concern is for the health of the cows on the property due to potential negative effects caused by the Project from stray voltage. Ms. Wesseling testified as to what she had been told by her veterinarian about negative impacts on cows near other wind projects. Ms. Wesseling testified in cross-examination that she did not know whether stray voltage will occur on her property as a result of the configuration of the turbines, and she confirmed that the buried electrical cable does not travel under her property.
18Ms. Wesseling also testified regarding her concern that shadow flicker will be a source of annoyance and create a safety risk for her husband and others working in and around her family’s milking barn.
William Palmer
19William Palmer is a professional engineer who retired from Bruce Power in 2004. Since retiring, Mr. Palmer has conducted research into public safety and acoustics, and has written and presented a number of technical papers at conferences. On consent of the parties, he was qualified by the Tribunal as a professional engineer with expertise in public safety risks due to turbine failure and some experience in the acoustics of wind turbines. Mr. Palmer’s testimony focussed on turbine safety issues, including blade throw, turbine collapse, fires, and ice throw. He also testified regarding amplitude modulation created by turbines and its possible contribution to annoyance. He cited a number of papers in support of this proposition, such as the Council of Canadian Academies report and the Health Canada study with regards to annoyance from wind turbine noise and health.
20In its final submissions, the Appellant summarizes Mr. Palmer’s evidence on the effects of noise from wind turbines on human health as follows:
He testified that wind turbine noise annoyance was found to be statistically related to several self-reported health effects including, but not limited to blood pressure, migraines, tinnitus, dizziness and perceived stress. While not an expert in health, Mr. Palmer factored available information into forming his opinion about the public safety risks created by wind turbines.
21Mr. Palmer’s testimony regarding safety concerns related to the Project was that nearby non-participating properties would be susceptible to debris, ice throw and tower collapse due to their proximity to the Project turbines. In his witness statement he referenced a table that he had compiled of turbine failure incidents in the last five years, and based on this table he estimated that the rate of failure is 0.0006 turbine failures per year in Ontario. In cross-examination, he corrected this to a failure rate of 0.0005. Mr. Palmer estimated that the probability is one in ten that a neighbour will be impacted by turbine failure within the 20 year Project life. Mr. Palmer confirmed in cross-examination, that he has not done an assessment of the probability that a person would be in the vicinity of a turbine when it failed and explained that his assessment assumed that there would be someone at the location of the turbine failure when the failure occurred, which he described as a deterministic risk assessment.
22Mr. Palmer also raised the issue of turbine fires and questioned the capacity of local fire services to effectively deal with a fire should one occur.
Evidence of the Approval Holder
Overview
23The Approval Holder called five expert witnesses: Terrance F. Kelly, Dr. Jim Salmon, Dr. Dariush Faghani, Dr. Christopher Ollson, and Dr. Robert McCunney. The Approval Holder also called two lay witnesses: Rochelle Rumney and Juan Anderson.
Terrance F. Kelly
24Terrance F. Kelly testified that he has been a pilot since 1974 and has held positions in the aviation safety field for approximately 35 years. He is a former employee of Transport Canada, the Canadian Aviation Safety Board, and of NAV Canada. Mr. Kelly was qualified by the Tribunal to provide expert opinion evidence in the field of aviation safety risk management including the proactive identification of aviation hazards and the development of mitigation strategies. The focus of his evidence was on the impacts of the Project on aviation safety.
25Mr. Kelly expressed his opinion that:
provided pilots operate their aircraft in accordance with Transport Canada regulations and standards, and supplementary procedures that will be developed and implemented in accordance with Condition N1 of the REA ̶ the future safety risks to aircraft operating at or in the vicinity of the Curries Aerodrome will be effectively mitigated.
26Mr. Kelly addressed the witnesses’ concerns that turbines will be obstacles to aircraft operating at or in the vicinity of the aerodrome; generate turbulent air; affect the safety of Ornge (air ambulance) operations; impact radar services provided by NAV Canada; and induce vertigo in pilots caused by ‘shadow flicker’.
27With regard to concerns about wind turbines being obstacles to aircraft operating at or in the vicinity of the aerodrome, Mr. Kelly’s evidence was that:
(i) The Canadian Aviation Regulations (CARs) direct and govern the safe operation of aircraft in the presence of obstacles such as wind turbines;
(ii) Prevailing winds will cause most flight operations to take place in directions away from the turbines;
(iii) Pilots will be aware of the location of the turbines because of information depicted on or contained within air navigation maps and charts, Notices To Airmen and the Canadian Flight Supplement;
(iv) Customized procedures for operating at the Curries Aerodrome will be published in the CFS, and conveyed to local pilots and organizations who regularly operate from or in the vicinity of the aerodrome; and
(v) Itinerant and other pilots will be advised of locally developed procedures when they seek permission to use the aerodrome.
28Regarding the concern that Project turbines will generate turbulent air, Mr. Kelly stated that he was not an expert in “turbulent air generated by wind turbines”, but was of the opinion that the concerns will be addressed because:
(i) Turbulence generated by Turbines 6 through 10 will occur at locations and altitudes at which aircraft do not normally operate;
(ii) Prevailing winds will cause turbulent air generated by Turbines 1 through 5 to exist at locations and altitudes at which aircraft do not normally operate;
(iii) Northerly winds will not be sufficiently strong to cause turbulent air generated by T1, T2 and T3 to be found in the vicinity of the runways;
(iv) Mitigation strategies can be developed to help detect and avoid turbine generated turbulent air; and
(v) On those few occasions when strong easterly winds could cause turbulence from T4 and T5 in the vicinity of runway 09, the runways will not normally be usable, and the conditions will normally be forecast, and mitigated.
29In response to the concern that Project turbines could affect the safety of Ornge operations, Mr. Kelly’s opinion was that modern navigational aids make it easy for all pilots to know precisely their position in relation to every wind turbine in Ontario, and thus navigate accordingly, and that the pilots of Ornge helicopters operating to and from the Woodstock General Hospital will manage the hazards and risks relating to the wind turbines that make up the Project.
30Mr. Kelly also responded to concerns regarding the Project’s impact on radar services provided by NAV Canada. He stated that the NAV Canada contract with the Approval Holder, signed in February 2015, describes a relatively standard mitigation strategy that NAV Canada employs to negate the effect of the turbines on radar facilities such as those at London and Hamilton. He stated that it was important to note that NAV Canada did not cite safety concerns in its correspondence with the proponent in 2014, or in its contract with Prowind in 2015.
31Mr. Kelly confirmed that he was not an expert in shadow flicker but was of the opinion that “research and evidence related to shadow flicker suggests that shadow flicker may occur infrequently – if ever – during takeoff and landing at the Curries Aerodrome, and in the rare case where it did exist, a pilot would experience very few changes in light intensity when passing through the area.
Dr. Jim Salmon
32Dr. Jim Salmon is the President of Zephyr North, a wind energy consulting company. He has completed 30 to 40 noise assessments of wind projects in the last five to six years, and previously completed wind resource assessments for the Meteorological Service of Canada (previously Atmospheric Environment Service), a service of Environment Canada. Dr. Salmon was qualified by the Tribunal to provide expert opinion evidence with respect to wind resources assessment including wind farm design, energy production, shadow flicker, and noise assessment. The focus of his evidence was on the noise expected to be generated by the Project.
33Dr. Salmon expressed his opinion that Mr. Palmer's concerns with respect to noise assessment are generally irrelevant with regard to amplitude modulation. Dr. Salmon stated in response to many of the paragraphs contained in the witness statement of Mr. Palmer, that there is no requirement “in Ontario O. Reg.359/09 and amendments, Ontario MOECC Guidelines for Wind Farms (2008), or the ISO 9613-2 Standard to consider “amplitude modulation” in noise assessments.”
34In response to the McKay/Poulin evidence, Dr. Salmon testified that: their residence is located 1048 m from the nearest project turbine (T3); the estimated cumulative sound pressure level at this site is 34.3 dBA; and this level is 5.7 dB below the 40 dBA level mandated by the MOECC. Regarding the Hopkins-Engberts property, he testified that, the estimated cumulative sound pressure level at this site is 38.1 dBA, which is 1.9 dB below the 40 dBA level.
Dr. Dariush Faghani
35Dr. Dariush Faghani is a Senior Engineer in Development and Engineering Services at DNV GL, where he has been employed since 2006. His work involves the design, configuration, and optimization of wind farms. Dr. Faghani has worked on a dozen ice throw, shadow flicker, and/or overall risk assessments for wind farms. He was qualified by the Tribunal to provide expert opinion evidence with respect to public safety risks associated with wind turbines, and testified in respect of shadow flicker, turbine fires, ice throw, and debris and blade failure.
36Dr. Faghani responded to Mr. Palmer’s evidence regarding safety concerns. With respect to ice throw, he referred to a letter from the wind turbine supplier Senvion, which indicates that the radius around a turbine where ice might fall is 290 m. Dr. Faghani testified that beyond 290 m the risk of ice throw is “negligible”. He also testified that the turbines to be used in the Project are equipped with a blade icing detection system and an automated shutdown mode, which are designed to reduce the chance of ice build-up and of ice being thrown by the blades. Dr. Faghani also testified that the risk of blade failure or tower collapse is very low.
37Dr. Faghani responded to Ms. Wesseling’s concern regarding shadow flicker. He testified that there are no local or Canadian regulations on shadow flicker, and that noise receptor setbacks typically mitigate the risk of shadow flicker annoyance. He further testified that the estimated annual shadow flicker calculated for Ms. Wesseling’s residence is low.
38Dr. Faghani also expressed his opinion that the risk that a fire may occur in this Project is low. However, he agreed under cross-examination that he could not say the extent of harm that might result should a fire occur.
Dr. Christopher Ollson
39Dr. Christopher Ollson is the Vice President, Strategic Development, and Senior Environmental Health Scientist at Intrinsik Environmental Sciences Inc. Dr. Ollson holds Bachelor of Science, Master of Science, and Doctorate of Philosophy, Environmental Science degrees, and teaches at the Royal Military College of Canada and the University of Toronto. He was retained by the Approval Holder in 2012 to provide expertise and information on the current scientific and government literature related to wind turbines and health matters. Dr. Ollson was qualified by the Tribunal to provide expert opinion evidence in the field of environmental health science as it relates to windfarms. The focus of his evidence was on shadow flicker, stray voltage, and potential health impacts of the Project. Dr. Ollson’s evidence on the health effects of wind turbines was unequivocal, and he concurred with Dr. McCunney in concluding that the Project would not cause serious harm to human health.
40Dr. Ollson responded to the concerns expressed by the Appellant’s witnesses respecting stray voltage, stating that the potential for stray voltage to affect livestock health can be prevented through adequate design, and that in his opinion, the operation of the Project in accordance with its REA will not result in serious or irreversible harm to livestock.
41Regarding concerns expressed respecting shadow flicker, Dr. Ollson testified that the frequency of the flickering should not cause a significant risk to health, and that he is not aware of any such issues from a health and safety perspective.
Dr. Robert McCunney
42Dr. Robert McCunney is a medical doctor, board certified in occupational and environmental medicine, a research scientist at the Massachusetts Institute of Technology, a staff physician in occupational/environmental medicine at Brigham and Women’s Hospital in Boston, and a co-author of a recent review of the peer-reviewed scientific literature with respect to wind turbines and human health. He is also lead author of an article published in the Journal of Occupational and Environmental Medicine, entitled “Wind Turbines and Health: A Critical Review of the Scientific Literature.” He was qualified by the Tribunal to give expert opinion evidence as a medical doctor specializing in occupational and environmental medicine with particular expertise in health implications of noise exposure. The focus of his evidence was with respect to the potential health implications of the Project. Dr. McCunney’s overall conclusion was that the Project operating in accordance with the REA will not cause harm to human health.
43Regarding the concerns about shadow flicker from the Project affecting human health, Dr. McCunney testified that the major concern has to do with whether shadow flicker could trigger photosensitive epilepsy. He testified that, at the speed at which modern turbines rotate, this is not a concern.
44In response to Ms. Morris’ evidence, Dr. McCunney testified that the World Health Organization definition of health is a hypothetical ideal which is not used by physicians because it is so broad as to have no useful diagnostic application.
45Dr. McCunney contradicted the evidence of Mr. Palmer with respect to several of the documents provided by Mr. Palmer to support his proposition that the Project’s wind turbines could cause harm to human health through annoyance. Regarding the Health Canada Summary of Results, Dr. McCunney noted that it expressly indicates that the study should only be considered final following peer review and publication in the scientific literature, and that the authors of the summary were explicit that it did not permit any conclusions about causality. With respect to the Council of Canadian Academies study, his opinion was that while the evidence supports an association between wind turbine noise and annoyance, it does not support causation. Dr. McCunney also testified that annoyance is not an adverse health effect recognized by the international medical community, and not recognized in the International Classification of Diseases. He described annoyance as an “outcome measure” that has been used for many decades in the context of environmental noise regardless of the noise source, (highways, airports, construction, etc.) but not as a health effect.
Rochelle Rumney
46Rochelle Rumney is the Environmental Coordinator at Prowind Canada Inc., and has been working in the wind energy industry since 2007. Gunn’s Hill Wind Farm has been the primary focus of her work since mid-2012 and she is primarily responsible for environmental application preparation, including environmental permitting and managing environmental field work. Ms. Rumney testified as to her involvement in the design of the Project and the REA application process.
Juan Anderson
47Juan Anderson is Vice President, Director and Secretary of Prowind Canada Inc., which is a limited partner in Gunn’s Hill LP. Mr. Anderson has worked on 10 wind projects that are now in operation or construction in seven Canadian provinces. He oversaw the submission of the application for the REA that is under appeal, and worked on the preparation of the application from its inception in 2009. He testified regarding his involvement in the design of the Project and the REA application process.
48Mr. Anderson also provided additional evidence on the issue of fire safety, confirming that the nearest fire hall to the Project is located between 1 and 3.2 kilometres (“km”) from every entrance to the turbine access roads, with the closest being 800 m from the fire hall.
49In response to the concerns raised by Mr. Rand, Ms. Poulin and Mr. McKay regarding air safety, Mr. Anderson provided evidence in his witness statement that the Approval Holder designed a Project turbine layout that:
a. Allowed significant separation distance from turbines to the ends of runways (1.5 km from T3 to end of runway 35, 1.8 km from T1 to end of runway 35) to allow sufficient space for a pilot who is not comfortable with flying above or between turbines to make a slight turn to avoid them all together;
b. Provided for optional use of a common right-hand approach circuit where desired so that each runway has an approach option that does not involve flying directly above turbines, should a pilot be uncomfortable with this permitted procedure of flying over obstacles;
c. Allowed sufficient separation distance between T1 and T2/T3 to allow for flying between the turbines on takeoff/ approach to runways 17/35 should it be deemed desirable or necessary;
d. Allowed sufficient lateral separation of turbines T5, T8, and T9 from the runway 09/27 centre line to allow for unimpeded use of that runway.
Evidence of the Director
Denton Miller
50Denton Miller is a Senior Review Engineer with MOECC’s Environmental Assessment Branch, Renewable Energy Assessment Section, and has been employed by MOECC since 1991. He has reviewed over 800 applications involving various industrial sectors, including approximately 40 wind energy generation projects. Mr. Miller was qualified by the Tribunal as a noise engineer with specific expertise in the MOECC’s Noise Guidelines and Compliance Protocols for Wind Turbines. His evidence focused on the noise implications of the Project.
51In responding to Mr. Palmer’s position with respect to amplitude modulation, that New Zealand imposes a penalty for amplitude modulation but Ontario does not, but should, Mr. Miller explained that the New Zealand standard imposes a 6 dB penalty where special audible characteristics of wind turbine sound are experienced. However, he said, this penalty is not applied in calculating predicted noise levels, but is applied when the project is in the operational stage and these characteristics are observed. Mr. Miller further explained that no jurisdiction currently requires a penalty for amplitude modulation in predicting noise levels, that this phenomenon happens very infrequently (about 0.25 percent of the time), and that if this phenomenon occurs, audits would be able to identify it, and the MOECC could impose a penalty if necessary.
52Mr. Miller also responded to Mr. Palmer’s comments regarding MOECC standard NPC-104, explaining that while NPC-104 requires proponents to account for beating or other amplitude modulation, this is not required by the Wind Turbine Noise Guidelines. He explained that an adjustment for special quality of sound in NPC-104 is typically not used for modelling, but rather for compliance purposes and that thumping sounds are not expected to occur in this Project as they are associated with older models of downwind turbines, not with the type that will be used in this Project.
Michael Lucking
53Michael Lucking is the Technical Team Lead, Civil Aviation Safety Operations, Specialties, for Transport Canada, Civil Aviation – Ontario Region. In his previous position with Transport Canada he was an Aerodromes and Air Navigation Inspector for 7.5 years. Mr. Lucking was qualified by the Tribunal as an expert in civil aviation safety, with special expertise in aerodromes and air navigation. He testified with respect to the impacts of the Project on aviation safety.
54Mr. Lucking testified that the Curries Aerodrome is not classified as an airport, and, therefore, is not subject to the strict regulations and standards applicable. He explained that the Curries Aerodrome is day use only in visual flight rules conditions and pilots are required to get prior permission to use the aerodrome. He further explained that pilots are responsible to contact the aerodrome operator for current conditions and ensure it is suitable for their intended flight. He stated that there are many aerodromes in Canada where obstacles, including wind farms, are located in close proximity, and that these obstacles are assessed to determine if they are a hazard to air navigation and if they require marking and lighting in accordance with the Canadian Aviation Regulations.
55Mr. Lucking noted that the MOECC submitted a request to Transport Canada to review an assessment of the Curries Aerodrome, which was prepared on behalf of the Approval Holder and submitted in support of its application for the REA. Mr. Lucking stated that Transport Canada agreed with the assessment’s recommendations for lighting and marking of eight wind turbines. He further observed that, recognizing that standard operating procedures are for left-hand circuits, Transport Canada also indicated that should the aerodrome operator request right-hand circuits as further mitigation to the proximity of the turbines, then Transport Canada would certainly consider authorizing them. He expressed his opinion that these mitigating measures as well as publication of the obstacles provide an effective means of indicating the presence of objects likely to present a hazard to aviation safety so that they may be visually detected and avoided by pilots of aircraft. He further stated that based on the above, Transport Canada advised that it has no concerns regarding the proposed wind farm and recommended that consultation with the aerodrome operator should proceed.
Evidence of the Presenter, the Township of Norwich
56Wayne Buchanan made a presentation on behalf of the Township of Norwich. Mr. Buchanan’s written and oral presentations focused on the Township of Norwich’s past and ongoing objections to the Project. He provided the Tribunal with a copy of three letters:
a letter dated October 14, 2011 to then Premier Dalton McGuinty, requesting a moratorium on industrial wind turbine projects until additional health studies are completed;
a letter, dated September 27, 2012, to the Approval Holder requesting postponement of any development until noise and health studies are available; and
a letter, dated April 15, 2013, to Premier Kathleen Wynne advising of the Township of Norwich’s declaration, in 2011, that it is an unwilling host of industrial wind turbines.
Submissions of the Appellant
57The Appellant relies on the evidence of its witnesses, and submits that this evidence established that the Project will cause harmful health effects which include:
...sleep disturbance, headache, tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability, problems with concentration, memory and panic episodes associated with sensations of internal pulsation or quivering when awake or asleep, excessive tiredness, loss of quality of life and the further impacts that these effects can lead to, these being increased morbidity and significant chronic disease and health effects.
58The Appellant, acknowledging that it has the onus of proving on a balance of probabilities that engaging in the Project in accordance with the REA will cause serious harm to human health, submits that an application of the facts to the law in this instance clearly dictates a finding of serious harm to human health. The Appellant submits that as such, it has led sufficient evidence to meet its onus, and, therefore, the REA should be revoked.
Submissions of the Director
59The Director submits that none of the testimony of the Appellant’s witnesses was supported by expert medical evidence to speak directly to the Health Test. The Director further submits that the Appellant has failed to prove on a balance of probabilities that engaging in the Project in accordance with the REA will cause the harm it alleges, and at its highest, the Appellant’s evidence establishes that the Project may result in harm, not that it will result in harm, as is the Appellant’s burden of proof under the EPA.
60Finally, the Director submits that the expert evidence called by the Director and Approval Holder responds to all of the Appellant witnesses’ concerns, and establishes that the Project will not result in serious harm to human health. Accordingly, the Director submits that the Tribunal should dismiss the appeal and confirm the decision of the Director to issue the REA.
Submissions of the Approval Holder
61The Approval Holder submits that the Appellant has fallen far short of meeting its onus of proving on a balance of probabilities that proceeding with the Project in accordance with the REA will cause serious harm to human health. The Approval Holder further submits that “neither the expert evidence, nor the evidence of the fact witnesses establishes that the Project will result in any harm, much less serious harm, to health”, and “the Appellant has not presented any evidence from a qualified medical professional to link any of the expressions of concerns with the Health Test”.
62The Approval Holder asks that the Tribunal confirm the decision of the Director to issue the REA, and dismiss the appeal.
Findings on Issue 1
63The Appellant relies primarily on the testimony of Ms. Morris, Ms. Hopkins-Engberts, Ms. Poulin, Mr. McKay, and Mr. Palmer to support its position that noise from the Project will cause serious harm to human health. However, as noted by the Director and Approval Holder, with the exception of the evidence of Mr. Palmer, the Appellant has provided no expert opinion evidence to support the opinions expressed by its lay witnesses. The Tribunal clearly indicated that it would only accept these opinions as an expression of the witnesses’ views, and would only accept the scientific/technical papers filed by them, as information which describes and informs their views. The Tribunal notes that all of the views and expressions of concerns expressed by the Appellant’s witnesses in respect of the Health Test pertain to matters requiring expert or technical expertise. As no such supporting opinion evidence has been adduced by the Appellant, the Tribunal cannot rely on the lay opinions to make a finding of causation in respect of the health effects of noise and finds that the evidence adduced by Appellant’s lay witnesses, at best, only rises to the level of an expression of concern.
64The remaining evidence on which the Appellant relies, is the opinion evidence of Mr. Palmer. Most of Mr. Palmer’s opinion evidence in this proceeding is similar to the opinion evidence he has given in previous proceedings, in particular, Mothers Against Wind Turbines Inc. v. Ontario (Director, Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 19 (“MAWT”). In MAWT, the Tribunal provided specific analysis and findings respecting Mr. Palmer’s evidence, as set out in paras. 229 to 235. The Tribunal finds that the analysis and findings in MAWT, apply equally in this case.
65Although Mr. Palmer also raised the issue of turbine fires and questioned the capacity of local fire services to effectively deal with a fire should one occur, he provided no evidence to indicate the likelihood that such a fire will occur, and if so, the likelihood that it would result in injury. Therefore, the Tribunal finds that his evidence, again, raises only a concern, which falls short of establishing that the Health Test has been met.
66In addition to his evidence respecting public safety risks, Mr. Palmer also testified respecting noise issues. His evidence refers to his views regarding deficiencies in the noise assessment submitted to the MOECC in support of the Approval Holder’s application for the REA. However, the Tribunal notes that Mr. Palmer did not conduct his own modelling assessment. Instead, he referred to published papers by other authors. The problem with this evidence is that it does not address an evaluation of the noise levels to be produced by the wind turbines approved for this Project. He expresses his opinion that the noise assessment submitted by the Approval Holder under-estimates the noise levels that will be generated by the Project’s wind turbines. However, the Health Test requires that the Tribunal consider only whether engaging in the Project, in accordance with the REA, will cause serious harm to human health. The REA includes a condition, generally referred to as the 40 dBA limit, which imposes limits on noise immissions, i.e. the permitted noise levels at a receptor. In previous decisions, the Tribunal has consistently found that the Health Test requires that an appellant must establish that serious harm to human health will be caused by noise immission levels at or below the 40 dBA limit, which is a requirement of the REA. The Tribunal finds that Mr. Palmer’s evidence does not address this requirement. His evidence, if accepted, could only establish that noise immission levels would exceed 40dBA, which is not permitted under the conditions of the REA.
67The Tribunal notes that Mr. Palmer’s evidence does include reference to amplitude modulation which is not expressly governed by a condition in the REA. However, his evidence only includes discussion of papers on amplitude modulation, and his assertions that these papers indicate amplitude modulation explains why people find wind turbine noise particularly annoying. Even if Mr. Palmer’s evidence respecting amplitude modulation and annoyance were to be accepted by the Tribunal, Mr. Palmer has clearly acknowledged that he is not a health expert, and this aspect of his evidence cannot be given the weight that could be ascribed to expert evidence. In his evidence, he refers only to the Health Canada Study, asserting that its findings support a potential link between long term annoyance and health. The Tribunal finds that, despite his reference to amplitude modulation as a mechanism whereby harm to human health could occur, there is nothing in his evidence to confirm that harm to human health will occur. Consequently, the Tribunal finds that his evidence falls short of establishing that the Health Test has been met.
68With respect to the evidence of the Appellant’s witnesses regarding the Project’s potential impact on the safe operation of the Curries aerodrome, and the impact of wind turbines on radar services provided by NAV Canada, the Tribunal notes, again, that none of the Appellant’s witnesses who testified respecting these issues were qualified to give opinion evidence. As such, the opinions they expressed rise only to the level of statements of concern. The Tribunal finds that their evidence did not undermine the evidence of Mr. Kelly and Mr. Lucking.
69Regarding Mr. Buchanan’s testimony on behalf of the presenter, the Township of Norwich, his testimony includes only a statement of the Township’s position on the issues raised in this appeal, as well as the Township’s agreement with the material facts set out in the Appellant’s Notice of Appeal. As such, his testimony did not provide any probative evidence for the Tribunal to consider.
70In determining whether the Health Test has been met, the Tribunal must also consider the evidence of the Director and the Approval Holder. In this case, the Tribunal notes that the expert evidence of the Director’s and Approval Holder’s witnesses directly contradict the assertions made by the Appellant’s lay witnesses and Mr. Palmer.
71In summary, in considering the totality of the evidence, the Tribunal finds that the Appellant’s evidence, at best, rises only to the level of expressions of concern that harm could occur.
Conclusion on Issue 1
72Based on the above analyses and findings in respect of Issue 1, the Tribunal finds that, in the circumstances of this case, the Appellant has failed to establish, on a balance of probabilities, that the Health Test has been met.
Issue 2: 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
Evidence of the Appellant
John Eacott
73Mr. Eacott testified that he has lived for some 40 years in the area where the Project will be situated. Mr. Eacott states that he is intimately familiar with the natural life of the area. He testified that he has planted endangered species of trees and created an amphibian pond on his property.
74Mr. Eacott expressed his view respecting the anticipated rate at which wind turbines across Ontario are expected to kill birds, raptors and bats. He indicated that, to the best of his knowledge, the MOECC is ignoring the cumulative effect of these deaths on those affected species. He extrapolated the anticipated kill rate for his estimate of 7000 wind turbines proposed or existing in Ontario, expressing the view that in 20 years, renewable energy projects will kill some 1,400,000 bats and 2,000,000 birds.
75Mr. Eacott expressed his view that the methodologies employed by those hired to carry out the studies for the Project are conflicting and inadequately detailed to provide for the protection of any endangered species. He stated that while there are two examples of endangered raptors given, he asserts that no mention is made of other birds on the list which are known to nest within the designated area of study, notably, Barn Swallow, and Eastern Meadowlark. He maintained that inadequate study and protective measures will leave species at risk vulnerable to serious harm from the Project construction and operation, asserting that Project plans have not accounted for their habitat and natural environment.
76In cross-examination, Mr. Eacott stated that he could not say for sure whether he had reviewed the Species at Risk report prepared for the Project, and is not familiar with O. Reg. 359/09 or the MOECC’s Natural Heritage Assessment Guide for Renewable Energy Projects.
77Mr. Eacott confirmed that he did not have the benefit of reviewing the confidential Species at Risk report, but that he is very concerned that Barn Swallows, an endangered species, thrive in the area. He indicated that he has no confidence in the measures proposed by the Approval Holder to monitor the presence of this bird. As such, he expressed his view that it is quite likely that the destruction of Barn Swallows or their habitat will cause serious and irreversible harm to animal life.
78Mr. Eacott also expressed his view that the alignment of the Project turbines will act like a screen that filters animal life coming and going from nearby wetlands. He expressed his concern that this screen will, in effect, kill animal life, including Canada Geese and Monarch Butterflies.
79Mr. Eacott expressed his concern for a maternal colony of Little Brown Bat (an endangered species) which he stated exists within the Project area, but has remained unidentified because of the limitations in what the Approval Holder is required to include in its studies.
Ms. Morris and Ms. Wesseling
80Both Ms. Morris and Ms. Wesseling referred to the effects of stray voltage or low level sound on cattle, attaching to their witness statements, articles which inform their views. Ms. Wesseling summarized their concerns as follows: “In summary, given the effects known to have occurred in the vicinity of operating wind turbine projects, lack of adequate safeguards, and the proximity of this project to homes and livestock, including ours, there is overwhelming evidence of the serious harm to human and animal health this project poses.”
Evidence of the Director
81The Director called no witnesses in respect of the Environmental Test.
Evidence of the Approval Holder
David Charlton
82David Charlton is a Senior Principal, Environmental Management at Stantec, and certified as a Professional Agrologist. He has participated in environmental assessments for many proposed wind energy generating facilities across Ontario and has helped develop, implement, and monitor mitigation measures to minimize environmental impacts of wind power projects. Mr. Charlton was qualified by the Tribunal to provide expert opinion evidence as an ecologist with expertise in conducting environmental assessments including natural heritage assessments and species at risk assessments for wind energy projects.
83In reviewing the evidence of Ms. Morris and Ms. Wesseling, Mr. Charlton expressed his opinion that they cite no evidence in support of their assertions. He noted that “much of the material presented by the appellants is not scientific peer reviewed papers and relates to anecdotal concerns with “stray voltage” or uncontrolled electricity…”, and stated that he has “not seen any independent evidence that wind farm projects contribute to the on farm problem anymore than the rest of Ontario’s electrical system, or that the problem could be considered ‘serious and irreversible harm to animal life’.”
84Respecting Mr. Eacott’s concerns that the natural environment studies completed for the Project were inadequate, Mr. Charlton disagreed, stating the Ministry of Natural Resources and Forestry (“MNRF”) has confirmed that the Natural Heritage Assessment and Environmental Impact Studies :
were conducted using procedures, methods and criteria established by, or accepted by, the MNRF. These measures are designed to ensure an acceptable standard of due diligence and consistency in planning for the protection of the natural environment during turbine location and impact mitigation.
85Mr. Charlton further noted that Mr. Eacott’s concerns regarding “study and protective measures” for species at risk are dealt with in the Species at Risk report, which includes the results of field studies and mitigation measures targeted specifically at Barn Swallow, Bobolink and Eastern Meadowlark. He noted that the Species at Risk report was accepted by the MNRF on June 10, 2014 and includes measures to prevent harm to individuals or habitat for Species at Risk.
86Mr. Charlton emphasized that conditions I and J of the REA establish a complete range of natural environment thresholds and mitigation requirements to be implemented through a comprehensive monitoring program and regular reporting to the MNRF.
87Regarding the Little Brown Bat, Mr. Charleton stated that, in his experience, the documentation in Ontario from multiple wind farms supports the ongoing position of the MNRF that the mortality rates of birds and bats is relatively low compared to other population pressures and can be controlled to stay below established mortality thresholds. Mr. Charleton responded to Carol Hopkins-Engbert’s statement that there is “Documented proof of the destruction of birds, bats and insects that would be disseminated by the intrusion of the turbines.” He stated that this does not reflect the way in which the rigorous post-construction mortality monitoring, mandated by the conditions of the REA, prevent serious harm to animal life, specifically birds and bats.
88Mr. Charlton stated in cross-examination that he was aware that there are individuals of this species within the Project location, and expressed his opinion that, although some bat mortalities will occur, serious harm to this species will not occur, and would not be irreversible, considering the monitoring and mitigation measures required by the conditions of the REA. He also confirmed that a permit in respect of the Little Brown Bat is required under Endangered Species Act, 2007, S.O. 2007, c. 6 (“ESA”) but he was unsure of how far the Approval Holder’s permit application process had progressed in this regard.
Submissions of the Appellant
89The Appellant relies on the evidence of Mr. Eacott, in submitting that the Environmental Test has been met. The Appellant maintains that there is no question Little Brown Bats live in the area, noting that the Approval Holder’s expert, Mr. Charlton is also of the opinion the Project will kill bats. The Appellant relies on Mr. Eacott’s contention that those deaths alone are sufficient to meet the threshold for serious and irreversible harm to animal life.
90The Appellant also asserts that the Project poses an immediate threat to certain species and also represents a cog in a province-wide mechanism that will bring certain species to the tipping point towards extinction from which it is impossible to recover.
91The Appellant cites Monture v. Ontario (Ministry of the Environment) (2012), 68 C.E.L.R. (3d) 191, in support of its assertions that: (i) the Environmental Test does not require a consideration of the harm caused to the sustainability of the plant population, animal population or the natural environment or the level of sustainability of a population; and (ii) although a single mortality does not automatically satisfy the Environmental Test, this does not preclude that a single mortality could, in some circumstances, meet this Test.
Submissions of the Director
92The Director maintains that Mr. Eacott’s evidence amounts to expressions of concern about the Project, and that his evidence is not supported by expert environmental evidence that speak directly to the Environmental Test. As such, the Director submits that the Appellant has failed to prove, on a balance of probabilities, that engaging in the Project in accordance with the REA will cause the environmental harm it alleges. The Director further submits that, at its highest, the Appellant’s evidence establishes that the Project may result in harm, not that it will result in harm, the latter being the Appellant’s burden of proof under the EPA.
93The Director submits that the expert evidence called by the Approval Holder is extensive and responds to all of the Appellant witnesses’ concerns and establishes that the Project will not result in serious and irreversible harm to plant life, animal life or the natural environment.
Submissions of the Approval Holder
94The Approval Holder’s submissions are essentially the same as the submissions of the Director.
Findings on Issue 2
95As the Director and Approval Holder have correctly pointed out, the Appellant has adduced no expert opinion evidence to support the opinions advanced by its lay witnesses. As the Tribunal has already stated in its findings respecting the Health Test, the Tribunal clearly indicated that it would only accept the opinions expressed by lay witnesses as an expression of their views, and would only accept the scientific/technical papers filed by them, as information which describes and informs their views. The Tribunal notes that many of the views and expressions of concerns expressed by the Appellant’s witnesses in respect of the Environmental Test pertain to matters requiring expert or technical expertise. No such supporting opinion evidence has been adduced by the Appellant. Furthermore, the relevant factual evidence that has been adduced by the Appellant’ witnesses in this proceeding is limited, and in and of itself, is insufficient to establish that the Environmental Test has been met. For these reasons, the Tribunal finds that the evidence adduced by the Appellant’s witnesses, at best, only rises to the level of an expression of concern. In this proceeding, the Tribunal must also consider the evidence of the Approval Holder’s witness, which contradicts the assertions made by the Appellant’s witnesses. The Tribunal finds that, having considered all of the opinion and factual evidence adduced in this proceeding, the Appellant has not established, on a balance of probabilities, that the Environmental Test has been met.
Conclusion on Issue 2
96Based on the above analysis and findings in respect of Issue 2, the Tribunal finds that, in the circumstances of this case, the Appellant has failed to establish, on a balance of probabilities, that the Environmental Test has been met.
Issue 3: Should the Tribunal grant the Approval Holder’s motion to dismiss the Appellant’s appeal on the basis that the Appellant has failed to establish a prima facie case.
Introduction
97After the Appellant had completed calling its witnesses, and the Township of Norwich had given its presentation, and before the Approval Holder and the Director called their witnesses, the Approval Holder, by way of motion, requested that the Tribunal dismiss the Appellant’s appeal on the grounds that the Appellant had failed to establish a prima facie case. This motion is described by the Approval Holder as a “non-suit” motion. Due to the complexity of this motion, the Tribunal indicated that it could not rule on the motion based on brief oral submissions. Consequently, on consent of the parties, the Tribunal directed that this motion would be heard in writing. As the request for dismissal raises complex issues, the Tribunal directed the parties to file comprehensive written submissions in respect of this motion.
98As the hearing of this motion could not be completed before the Approval Holder’s witnesses were scheduled to testify, a question arose as to whether the Approval Holder would call these witnesses in accordance with the existing hearing schedule or seek an adjournment of the main hearing to call these witnesses at a later date, if its motion to dismiss was denied. The Tribunal questioned whether the Approval Holder’s witnesses could be called at a later date that would provide the Hearing Members with sufficient time to complete their deliberations and issue a decision by October 23, 2015, following which, by operation of s. 145.2.1(6) of the EPA, there will be a deemed confirmation of the REA if no decision has been issued. The parties conferred, and counsel for the Approval Holder advised the Tribunal that, although the Approval Holder was proceeding with its motion to dismiss, the Approval Holder would proceed to call its witnesses in accordance with the existing hearing schedule.
Submissions of the Approval Holder
99The Approval Holder submits that the Appellant has presented and closed its case, noting that the Appellant has the onus of proving that the Health and Environmental Tests have been met. The Approval Holder submits that the Appellant's evidence, together with the presentation of the presenter, the Township of Norwich, both taken at their highest, fail to make out a prima facie case for either of these tests and as such, the appeal should be dismissed without requiring the Approval Holder and Director to call evidence.
100In support of its assertion that the Appellant has failed to make out a prima facie case, the Approval Holder submits that the Appellant’s evidence before this Tribunal consists of expressions of concern from seven non-expert "pre-turbine witnesses", and evidence from a single expert, whose evidence has previously been considered by the Tribunal in other renewable energy approval hearings and found to be insufficient. The Approval Holder further asserts that the evidence presented by the presenter, the Township of Norwich, similarly constitutes expressions of concern without supporting expert opinion. The Approval Holder asserts that the Tribunal has consistently held that evidence of expressions of concern, without expert evidence capable of linking the concerns to the alleged harms, is not sufficient to meet either the Health Test or the Environmental Test.
101In its submissions, the Approval Holder reviews the evidence of the witnesses who testified for the Appellant and the County of Norwich in support of the above submissions. The Approval Holder then asserts that the Appellant has fallen far short of meeting its onus of proving, on a balance of probabilities, that proceeding with the Project in accordance with the REA will cause serious harm to human health. The Approval Holder submits that neither the expert evidence, nor the evidence of the fact witnesses, establishes that the Project will result in any harm, much less serious harm, to health or establish that the Environmental Test has been met.
102Regarding the legal test to be applied on a motion to dismiss, the Approval Holder refers to Rules 96 and 111 of the Tribunal’s Rules, stating that, at this stage of the proceeding, its motion to dismiss is in effect a “non-suit” motion. The Approval Holder submits that the principles governing “non-suit” motions before administrative tribunals have recently been summarized by the Ontario Grievance Settlement Board in Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources and Forestry), [2015] OGSBA No. 4015 (“OPSEU v. MNRF”) at paragraph 8 as follows:
i. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
ii. In a non-suit motion, the issue is whether the party responding to the motion has made out a prima facie case.
iii. In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, if the Board assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. No weight, however, should be given to the evidence of a witness on a point about which he or she has given contradictory accounts. (See Ontario Public Service Employees Union (Gareh) v. Ontario (Ministry of the Attorney General), 2002 45791 (ON GSB) at paragraphs 8 - 10.)
iv. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
v. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.
103In its submissions, the Approval Holder then cites its understanding of the relevant Tribunal decisions which address the scope of the legal test under s. 145.2.1 of the EPA, as well as decisions in support of the Approval Holder’s assertions that:
evidence of expressions of concern without supporting expert opinion is insufficient to establish that either the Health or Environmental Tests have been met;
without a connecting medical diagnosis, "post-turbine witness" evidence cannot prove that wind turbines have caused harm to human health;
“pre-turbine witnesses" cannot rely on the evidence of “post-turbine witnesses” to establish that exposure to wind turbines will cause serious harm to human health;
responding parties are not required to prove an alternate explanation for the symptoms experienced by “post-turbine” witnesses; and
consistency in decision-making is a principle of administrative law applicable to appeals of renewable energy approvals.
Submissions of the Director
104The Director agrees with the Approval Holder’s submission that the Appellant has not established a prima facie case. The Director’s submission also includes a review of the evidence of the witnesses who testified for the Appellant in support of this submission.
105Regarding the legal test to be applied on a motion to dismiss, the Director submits that the Tribunal has the ability to dismiss an appeal mid-hearing. The Director notes that, Rule 111, which allows motions for dismissal, lists four grounds for such a motion. However, the Director emphasizes that Rule 111 states that the motion “may include” these grounds. The Director submits, therefore, that the grounds listed as (a) to (d) in Rule 111, are a non-exhaustive list of potential bases for dismissing an appeal. The Director submits that it is consistent with the purposes and interpretive principles of the Rules to interpret Rule 111 to include dismissing a hearing where no prima facie case has been established.
106The Director also submits that the Approval Holder’s “non-suit” motion falls within the ground set out in Rule 111 (c), namely that some aspect of the statutory requirements for bringing the proceeding has not been met. In this regard, the Director argues that, in failing to establish a prima facie case, the Appellant has not met the statutory requirement under the EPA, more specifically, that the Health and Environmental Tests have not been met.
107The Director further submits that the Approval Holder’s “non-suit” motion falls within Rule 111 (a), namely, that this proceeding is frivolous. The Director maintains that the Tribunal, in previous proceedings, has interpreted “frivolous” in the context of Rule 111(a) as meaning lacking “a legal basis or legal merit” and raising “no genuine issue” or having “no foundation in fact or law.” The Director maintains that this interpretation of “frivolous” as including “no genuine issue for a hearing” has been applied by the Tribunal in the context of motions to dismiss appeals in previous renewable energy appeals. In this regard, the Director notes that, while all of these motions in previous proceedings were dismissed, they were all brought before the start of the hearing, before the Tribunal had heard the appellant’s evidence. The Director asserts that the Approval Holder’s motion to dismiss was brought at an appropriate time. The Director maintains that, as the Tribunal has had the benefit of hearing the Appellant’ evidence, and no experts in health or natural heritage issues have testified, it is clear that the Appellant cannot prove its case.
108The Director also submits that, in the context of renewable energy appeals in particular, where any person in Ontario may appeal a renewable energy approval and leave to appeal is not required, and in practice where many of these appeals are brought on similar grounds, it is appropriate for Rule 111 to be interpreted in a manner that provides a mechanism whereby an appeal that lacks an adequate evidentiary base can be dismissed without a full hearing.
109The Director cites Rule 1:
The purposes of these Rules are: to provide a fair, open, accessible and understandable process for Parties and other interested persons; to facilitate and enhance access and public participation; to encourage co-operation among Parties; to assure the efficiency and timeliness of proceedings; and to assist the Tribunal in fulfilling its statutory mandate. [emphasis added]
110The Director also cites Rule 4:
These Rules shall be liberally construed to secure the just, most expeditious and cost effective determination of every proceeding on its merits. [emphasis added]
111In light of these Rules, the Director submits that dismissing this appeal without requiring the responding parties to call evidence and prepare final submissions would save considerable time and resources. The Director asserts that a motion to dismiss at the close of the Appellant’s case strikes the appropriate balance between the purposes of enhancing “access and public participation”, arguing that the Appellant has had an opportunity to present its case. The Director further asserts that allowing “non-suit” motions will assure “efficiency and timeliness of proceedings”, by allowing appeals to be dismissed without a full hearing where an appellant has not established a prima facie case. The Director submits that this interpretation is also consistent with Rule 4, in that it would provide a just, expeditious and cost effective determination of a proceeding based on the merits of an appellant’s case.
Submissions of the Appellant
112The Appellant submits that Approval Holder’s motion to dismiss should be dismissed and the Tribunal should render its decision based on its weighing of the totality of the evidence.
113The Appellant emphasizes that the Approval Holder was presented with a choice to adjourn the main hearing to accommodate written submissions on its Notice of Motion or arrive at another approach in discussion with counsel. The Appellant states that, on consent of the parties, the Approval Holder chose to continue with the hearing of evidence in spite of the allegation in its Notice of Motion that the Appellant had not met its evidentiary burden. The Appellant submits that, in so doing, the Approval Holder has effectively rendered its motion for dismissal moot, since the test for the appeal and the motion are identical for all intents and purposes.
114The Appellant maintains that, although all counsel consented to the continuation of the hearing, while keeping the motion “alive” to respect the time constraint for issuing a decision in this proceeding, this should not preclude the conclusion that the motion is redundant to the question before the Tribunal.
115The Appellant argues that, more importantly, it would be an absurd result for the Tribunal to pretend it has arrived at its findings on the motion as though it had not heard the Approval Holder’s and the Director’s cases. The Appellant submits that such a fictive weighing of the evidence would render the Tribunal’s reasons meaningless without some way of knowing whether its conclusions were based solely on the Appellant’s evidence or also on the contradictory evidence of the Director and Approval Holder.
Submissions of the Approval Holder in reply
116The Approval Holder submits that, in light of the agreement reached by counsel, the Appellant's claim that the motion to dismiss is redundant or moot because the Approval Holder and the Director presented their evidence on the appeal, should be rejected as improper, unfair, and prejudicial. Instead, the Approval Holder submits that this Tribunal should proceed to hear the motion on its merits, in writing, as agreed to by counsel for the Appellant.
117In determining whether the motion to dismiss is moot, the Approval Holder refers to the general principles stated by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 SCR 342. The Approval Holder maintains that there is no hypothetical or abstract question before the Tribunal as to whether the Appellant has presented a prima facie case, and that the decision in respect of the motion to dismiss will have the effect of resolving a controversy which affects, or may affect, the rights of the parties.
118The Approval Holder disputes the Appellant’s assertion that proceeding with the motion to dismiss, where the witnesses for the Approval Holder and Director have been heard, would require fictive weighing of the evidence in support of the motion. The Approval Holder cites a decision of the Supreme Court of Canada in R v. Stinchcombe, [1991] 3 SCR 3265, in support of its assertion that knowledge of the Approval Holder’s evidence does not, at law, prejudice the Tribunal's ability to determine the motion to dismiss on the basis of the Appellant's evidence alone. The Approval Holder maintains that, “simply put, the Tribunal is fully capable of assigning no weight to the Approval Holder and Director's evidence for the purpose of determining the Motion.”
Findings Respecting Motion to Dismiss
119The Tribunal first turns to consideration of its jurisdiction to entertain a “non-suit” motion. Rule 111, which addresses motions to dismiss, states:
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.
120The Director submits that the Approval Holder’s “non-suit” motion falls within ground (a) of Rule 111, asserting that this proceeding is frivolous because the Appellant’s case raises no genuine issue. In support of this submission the Director asserts that the Appellant cannot prove its case. For the following reasons, the Tribunal does not accept this submission. The Tribunal notes that frivolous conduct, though not necessarily accompanied by an improper motivation, involves putting forward groundless arguments. A frivolous argument is not synonymous with an unsuccessful argument (see Spellman v. Ontario (Director, Ministry of the Environment) (2007), 34 C.E.L.R. (3d) 83 (Ont. Env. Rev. Trib.) at para 109). In this proceeding, it is not disputed that the Appellant has advanced proper grounds in support of its appeal. Rather, the Approval Holder and the Director argue that the Appellant has adduced insufficient evidence to establish the Health and Environmental Tests have been met. If that is so, all that can be said is that the Appellant’s arguments will be unsuccessful. To repeat, a frivolous argument is not synonymous with an unsuccessful argument. The Tribunal also notes that the Director advanced no other grounds for finding that the Appellant’s appeal is frivolous.
121The Director also submits that the Approval Holder’s “non-suit” motion falls within ground (c) of Rule 111, asserting that the Appellant, in failing to establish a prima facie case, has not met the statutory requirement under s. 145.2.1 of the EPA, i.e. the Health and Environmental Tests. For the following reasons, the Tribunal does not accept this submission. The Tribunal notes that Rule 111 (c) states that “some aspect of the statutory requirements for bringing the proceeding has not been met [emphasis added]”. Under s. 145.2.1 of the EPA the Health and Environmental Tests are not statutory requirements for bringing the proceeding. They are part of the grounds to be addressed in the proceeding. Consequently, the Tribunal finds that Rule 111(c) does not apply to the circumstances of this case.
122The Tribunal now turns to the Director’s submission that Rule 111 allows the Tribunal to consider motions to dismiss based on “non-suit”. It is not disputed that the Tribunal’s Rules do not include a rule which expressly governs motions to dismiss on the basis of “non-suit”. As noted in the Director’s submissions, Rule 111 provides that the moving party shall specify the basis for its motion to dismiss which “may include” the enumerated grounds (a) to (d). The Tribunal accepts the Director’s submission that the phrase “may include”, indicates that this is not an exhaustive list. In other words, the moving party may advance another basis in support of its motion to dismiss, which can include “non-suit”. However, Rule 111 does not state that the Tribunal must entertain another basis. Under s. 25.0.1 of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22, a tribunal has the power to determine its own procedures and practices. Therefore, the first question which the Tribunal must address, is whether it should entertain a “non-suit” motion in this proceeding. This, in turn, requires consideration of what a “non-suit” motion means.
123The Approval Holder relies on OPSEU v. MNRF, in maintaining that a “non-suit” motion is a motion to dismiss a proceeding, which is made by a responding party, after an appellant has called its witnesses. In such a motion, an administrative tribunal may at its discretion, based on considerations of efficiency and fairness, decide that it will not put the moving party “to an election of whether or not to call its own evidence as a matter of course.”
124This definition raises several questions. First, it is unclear whether the “election” requires that the moving party must choose not to call its witnesses at all, thus relying solely on its motion to dismiss, or whether, if the motion to dismiss is denied, the moving party may then proceed to call its witnesses. Secondly, the Tribunal notes that the Approval Holder relies on the statement of principles which apply to “non-suit” motions as set out in the decision of the Ontario Grievance Settlement Board in OPSEU v. MNRF. However, the Approval Holder has failed to point out that the decisions, on which the Board relied to formulate its statement of principles, are all decisions of that Board. The Tribunal is not bound by a decision of the Ontario Grievance Settlement Board. However, the Tribunal received no submissions on this point. In this proceeding, none of the parties provided the Tribunal with jurisprudence from the courts or other administrative boards or tribunals to indicate whether the approach taken by the Ontario Grievance Settlement Board is accepted practice and procedure, either in the courts, or under administrative law generally. In particular, none of the parties indicated whether such a “non-suit” motion has been previously considered by this Tribunal, or its predecessor boards. Similarly, the parties did not make submissions on whether the courts have addressed this issue in the context of an appeal or judicial review of a decision of an administrative tribunal. Furthermore, OPSEU v. MNRF does not indicate the source of its jurisdiction to adopt such practice and procedure.
125The Director, in referring to Rule 1, asserts that a motion to dismiss at the close of the Appellant’s case strikes the appropriate balance between the purposes of enhancing “access and public participation” and argues that the Appellant has had an opportunity to present its case. The Tribunal finds that this is too narrow an interpretation of Rule 1. The Tribunal adjudicates in the public interest, which is why Tribunal practice and procedure includes the opportunity for members of the public to participate in proceedings as added parties, participants or presenters. In light of this public interest consideration, the question arises whether the public interest requires that all available evidence should be heard? If the answer is yes, this, in turn, raises the question whether the Tribunal should adopt such a “non-suit” motion procedure, and, if it does, whether the moving party should be allowed to proceed with its motion without calling its witnesses.
126It must be emphasized that, in most appeals of renewable energy approvals, there are two responding parties, namely the MOECC director, and the approval holder. Where their positions align, for efficiency purposes, and to avoid repetition of evidence, they will often co-ordinate the witnesses to be called, i.e., one of them may not call its own witness, relying instead, on a witness to be called by the other. In such circumstances, if the Tribunal entertains a “non-suit” motion by one respondent which is unsuccessful, and that respondent has been put to its election and has decided not to call its witnesses, would this outcome be prejudicial to the other respondent’s case?
127Similarly, the Tribunal must also consider that an appellant’s case is not based solely on the evidence adduced by its own witnesses, but on evidence obtained by cross-examining the witnesses testifying on behalf of the director and approval holder. Should the Tribunal have the benefit of hearing this evidence, when adjudicating in the public interest?
128Assuming that the Tribunal would entertain motions for dismissal based on “non-suit”, the Tribunal, when evaluating whether a prima facie case has been made out, would have to determine whether the evidence of added parties, participants, and presenters should be considered. The Approval Holder implicitly assumes that the Tribunal must do so, as its submissions addressed the evidence of the presenter (the County of Norfolk) in this proceeding. However, the submissions of the Director did not appear to take this evidence into account. It must be emphasized that participants and presenters have separate status from an appellant, and, while individual or group participants or presenters may wholly support an appellant’s position, this is not always the case. In such circumstances, is the Tribunal is to consider the evidence of participants and presenters when evaluating whether a prima facie case has been made out, and, if so, is the Tribunal to exclude from this consideration, evidence which does not support the appellant’s case?
129The Tribunal notes again, that it received no submissions from the parties respecting any of these considerations of procedural fairness to be taken into account when adjudicating in the public interest.
130Assuming that the Tribunal would entertain motions for dismissal based on “non-suit”, the Tribunal would also have to determine the test to be applied in determining whether a “prima facie” case has been made out. The Approval Holder relies on the statement of the Ontario Grievance Settlement Board in OPSEU v. MNRF that “In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, …”. Again, the authority cited by the Board in support of this conclusion is one of the Board’s previous decisions. Therefore, the question arises whether the test to be applied by this Tribunal should be that an appellant must prove its case on a balance or probabilities, or should the appellant be required to meet a less onerous test, such as whether the appellant’s case establishes a reasonable prospect of success, or, whether the appellant’s case establishes a case for the responding parties to answer. None of the parties referred the Tribunal to decisions by the courts or other boards or tribunals to assist in answering this question. The parties also did not address whether the courts have addressed this question in the context of an appeal or application for judicial review of a decision of an administrative board or tribunal. Finally, the Tribunal was provided with no submissions on whether the expedited timelines for REA appeals is another factor that the Tribunal should consider when deciding whether or not to add procedures to allow for “non-suit” motions in REA hearings.
131The onus is on the moving party to establish that its motion to dismiss should be granted. As noted above, the parties have not addressed the important questions which the Tribunal must consider in making a determination of this matter. As such, the Tribunal finds that it has insufficient information on which it can base a finding to grant the relief requested by the Approval Holder in its motion to dismiss. Consequently, the Tribunal finds that the Approval Holder has not met its onus to establish that its motion to dismiss should be granted, and, therefore, the motion is dismissed. For purposes of clarity, the Tribunal confirms that it has not made a general determination, one way or the other, whether a motion to dismiss, based on some form of “non-suit” procedure, would be appropriate in another hearing. Such a determination is left to be addressed in a future proceeding in which the parties provide more comprehensive and relevant authorities and properly address the expedited and public interest context in which renewable energy approval appeals take place.
Overall Conclusion
132The Tribunal finds that the Appellant has failed to meet the onus required by the statutory test, to show that engaging the Project in accordance with the REA will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment, and that, therefore, the appeal should be dismissed.
DECISION
133The appeal by East Oxford Community Alliance Inc. is dismissed and the decision of the Director is confirmed.
Appeal Dismissed
Decision of Director Confirmed
“Marlene Cashin”
MARLENE CASHIN member
“Dirk VanderBent”
DIRK VANDERBENT VICE-CHAIR
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Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248