Biddle v. Ontario (Environment and Climate Change), 2015 CanLII 85982

December 15, 2015

14-063

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

Appellant:

Scott Biddle

Approval Holder:

8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership

Respondent:

Director, Ministry of the Environment and Climate Change

Subject of appeal:

Renewable Energy Approval for Port Ryerse Wind Power Project

Reference No.:

No. 6498-9HKHN3

Property Address/Description:

Parts of Lots 3-5

Upper Tier:

Norfolk County

ERT Case No:

14-063

ERT Case Name:

Biddle v. Ontario (Environment and Climate Change)

Heard:

October 19, 2015 in Toronto, Ontario

Parties

Counsel

Scott Biddle

Graham Andrews

Director, Ministry of the Environment and Climate Change

Andrew Weretelnyk

8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership

Jonathan Kahn

ORDER DELIVERED BY JUSTIN DUNCAN AND ROBERT V. WRIGHT

REASONS

Background

1On August 20, 2014, Vic Schroter, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Renewable Energy Approval No. 6498-9HKHN3 (the “REA”) to 8437084 Canada Inc., operating as Port Ryerse Wind Farm Limited Partnership (“the Approval Holder”) under s. 47.5 of the Environmental Protection Act (“EPA”). The REA is for a renewable energy project known as the Port Ryerse Wind Power Project, consisting of the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 10 megawatts, located east of Port Ryerse in Norfolk County, Ontario (the “Project”).

2On September 4, 2014, Scott Biddle (File No. 14-063) and William Irvin (File No. 14-064) separately appealed the REA to the Environmental Review Tribunal (the “Tribunal”). Mr. Biddle (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 and irreversible harm to plant life, animal life or the natural environment” (the “Environmental Appeal”). Mr. Irvin 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 Appeal”).

3At the first appearance for the preliminary hearing, on October 6, 2014, the Tribunal granted an adjournment of the hearing of the appeals as the Director had been advised by the Ministry of Natural Resources and Forestry (“MNRF”) that there had been a confirmed sighting of a Barn Owl in close proximity to the Project. Barn Owl is listed as endangered under Schedule 2 of Ontario Regulation 230/08 (“O. Reg. 230/08”) of the Endangered Species Act, 2007 (“ESA”). The Approval Holder subsequently advised the Tribunal that it was required to apply for a permit, pursuant to s. 17 of the ESA, to engage in activities within Barn Owl habitat, which is prescribed under O. Reg. 230/08, and that it had made such application. The preliminary hearing respecting both appeals was adjourned several times, as the parties agreed that the outcome of the ESA permit application was relevant to the Environmental Appeal.

4During a continuation of the preliminary hearing on April 7, 2015, the parties agreed to have the two appeals heard separately so that Mr. Irvin could proceed with the Health Appeal, which was not affected by the circumstances relating to the Barn Owl sighting. As a result, the Tribunal heard the Health Appeal on June 3 and 8, 2015. The Tribunal gave its decision on the Health Appeal on August 20, 2015.

5The Approval Holder advised the Tribunal on July 28, 2015 that the MNRF had determined that an ESA permit would not be required for the Project. A telephone conference call was held on August 11, 2015 at which time filing deadlines and hearing dates of October 5 to 8, 2015 were set for the hearing of the Environmental Appeal. The October 5 to 8 hearing dates were subsequently vacated and the hearing of the Environmental Appeal was re-scheduled for November 3 to 6, 2015.

6On October 19, 2015, the Tribunal heard submissions relating to a request by the Appellant to issue a summons to witness for Chris Risley, who is an Avian and Mammalian Species at Risk Specialist with the MNRF. The Tribunal also heard an application by the Director’s counsel, acting as agent for the MNRF and Mr. Risley, which application is supported by the Approval Holder, that the summons be cancelled if issued by the Tribunal. The Tribunal made an order granting the Appellant’s request to issue the summons to witness and dismissing the application to cancel the summons. These are the reasons for that order.

Issues

7The issues are:

whether the Tribunal should issue a summons to witness to Chris Risley; and
if the Tribunal issues the summons, whether it should be cancelled.

Relevant Legislation and Rules

8The following provisions of the Statutory Powers Procedure Act (“SPPA”) and the Rules of Practice of the Tribunal (the “Rules”) are applicable to the summons request:

Statutory Powers Procedure Act (the “SPPA”)

Summonses

12(1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at any oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject matter of the proceeding and admissible at a hearing.

What is admissible in evidence at a hearing

15(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing;

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

Rules of Practice of the Tribunal

Summons to Witness

A Party who wishes to summon a person to give testimony and to produce documents at a Hearing shall prepare and complete a Summons to Witness in Form 3 (Oral Hearings) found in Appendix D or Form 4 (Electronic Hearings) found in Appendix E. However, in the case of Niagara Escarpment Plan amendment proceedings under the Niagara Escarpment Planning and Development Act, a summons shall be in Form 1 prescribed under section 33(4) of the Public Inquiries Act, 2009. The summons is to be submitted to the Case Coordinator for consideration by the Chair, if a panel has yet to be constituted, or, by the panel, if the Hearing has commenced.
The Party shall request a summons as early as possible before the Hearing so that it can be served on the witness in time to allow him or her to arrange to attend the Hearing, and shall include in their written request the following information:

(a) the name of the witness and his or her address for service;

(b) a brief summary of the evidence to be given by the witness;

(d) details of any documents or things which the witness should be required to bring to the Hearing; and

(e) why the summons is required.

After considering the requesting Party’s explanation, the Chair may choose not to issue a summons and refer the matter to the panel conducting the Hearing for consideration. Where a summons has been issued before the Hearing, the panel conducting the Hearing may decide that the summons should be cancelled or varied, or, if the witness is present, that they may be excused from the remainder of the Hearing.
A Summons to Witness shall be served on the witness by the Party requesting the summons personally. The witness summoned is entitled to receive the same fees or allowances for attending at or otherwise participating in the Hearing as are paid to a person summoned to attend before the Superior Court.
A witness who is subject to a summons may object to the summons by applying to the Tribunal to have it cancelled or varied. The application may be made to the Chair prior to the Hearing or to the panel during the Hearing. If the Tribunal is satisfied that the evidence sought from the witness is not relevant or necessary or the evidence is protected by privilege at law or if the witness is not able to supply the evidence sought, the Tribunal may cancel or vary the summons.

Discussion, Analysis and Findings

9A party seeking testimony or production of documents at a hearing from a person who is not a party prepares and submits to the Tribunal a summons to witness in a form identified in Rule 191 containing information set out in Rule 192. The information to be provided is relatively straightforward and not extensive. The Tribunal has discretion to issue a summons under Tribunal Rules 191, 193 and 195, and s. 12(1) of the SPPA.

10In the normal course, the Tribunal first considers a request to issue a summons, and then, if the request is granted, and after the summons is served, considers a request by the proposed witness to cancel the summons. In this proceeding, the parties asked that the request to issue the summons to Mr. Risley, and the application to cancel the summons, be heard together. The Tribunal exercised its discretion to do so as, in this instance, the parties and the proposed witness were represented by counsel and they jointly asked that the issuance and cancellation of the summons be considered at the same time as a matter of expediency. Whether this is an appropriate process in a particular proceeding will depend upon the circumstances of each case (also see Gillespie v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 4)).

Issue 1: Whether the Tribunal should issue a summons to witness to Chris Risley

11The Appellant’s request to issue the summons is on that basis that the disclosure provided by the Director identifies Mr. Risley as one of the MNRF staff who processed the application for the ESA permit in relation to Barn Owl. The Appellant seeks evidence from Mr. Risley in the Environmental Appeal regarding the permitting process under the ESA for Barn Owl and his knowledge of other species at risk in the Project area.

12The Tribunal finds that the information provided by the Appellant in its request to issue the summons to Mr. Risley meets the Rule 192 requirements and that the summons may be issued. In particular, the evidence that the Appellant intends to elicit from Mr. Risley is relevant and necessary to an issue raised in the Environmental Appeal, which meets the Rule 192(c) requirement. It is not in dispute that the request to issue the summons meets the other requirements of Rule 192.

Issue 2: If the Tribunal issues the summons whether it should be cancelled

13In an application by a proposed witness under Rule 195 to cancel a summons, the Tribunal must be satisfied that the evidence that the witness is requested to provide is not relevant or necessary to the proceeding, is protected by privilege at law, or cannot actually be supplied. Under Rule 195 there is an opportunity for the Tribunal to receive and consider additional information as to whether the issuing of the summons was appropriate.

14In support of his objection to the summons and application to have it cancelled, Mr. Risley provided an affidavit explaining that, although he had some involvement in processing the Approval Holder’s application for the ESA permit, namely the provision of information to the MNRF’s Aylmer District Office in relation to Barn Owl, he does not possess any special expertise in relation to the two species that are the focus of the Environmental Appeal, namely, Barn Owl and Bald Eagle.

15Counsel for Mr. Risley submits that the standard applicable in an application for an ESA permit differs from the standard applicable on REA appeals and that the ESA permitting process and documentation are not relevant to this appeal. Counsel for the Approval Holder supports this submission.

16It appears from the information provided by the Appellant in the request to issue the summons and from the additional material filed with the Tribunal in respect of the application to cancel the summons, that Mr. Risley is in the best position of any of the proposed witnesses to give testimony explaining the ESA permitting process in relation to Barn Owl and other species at risk and to put in evidence documents generated during that process. The Tribunal finds that the evidence sought from Mr. Risley is relevant and necessary for the determination of the Environmental Appeal in relation to Barn Owl and species at risk in relation to the Project.

17Counsel for the proposed witness does not argue that the information sought from Mr. Risley is privileged or that he is not able to provide the evidence requested by the Appellant, which are additional considerations as to whether a summons should be cancelled or varied.

18The Tribunal finds that the application brought by Mr. Risley to cancel the summons fails to meet the requirements of Rule 195 and the application is, therefore dismissed.

19The Tribunal’s findings and order are without prejudice to the Director and the Approval Holder to make submissions about the relevance of any evidence that Mr. Risley may provide at the main hearing.

ORDER

20The Appellant’s request that the Tribunal issue a summons to witness for Chris Risley is granted.

21The application to cancel the summons is dismissed.

Request to Issue Summons Granted

Application to Cancel Summons Dismissed

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Robert V. Wright”

ROBERT V. WRIGHT

VICE-CHAIR

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