Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
February 23, 2016
CASE NO.:
15-084
PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
Association for the Protection of Amherst Island
Approval Holder:
Windlectric Inc.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Renewable Energy Approval for Amherst Island Wind Project
Reference No.:
7123-9W9NH2
Location:
Various locations
Municipality:
Loyalist Township
Upper Tier:
County of Lennox and Addington
ERT Case No.:
15-084
ERT Case Name:
Association for the Protection of Amherst Island v. Ontario (Environment and Climate Change)
Heard:
November 24, 2015 in Toronto, Ontario
APPEARANCES:
Parties
Counsel
Association for the Protection of Amherst Island
Priya Vittal
Director, Ministry of the Environment and Climate Change
Andrea Huckins
Windlectric Inc.
John Terry
ORDER DELIVERED BY JUSTIN DUNCAN AND ROBERT V. WRIGHT
REASONS
Background
1On August 24, 2015, Ian Greason, Director, Ministry of the Environment and Climate Change (the “MOECC”) issued Renewable Energy Approval No. 7123-9W9NH2 (the “REA”) to Windlectric Inc. (the “Approval Holder”), granting approval for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 74.3 megawatts, consisting of 26 wind turbines, a transformer substation and a temporary ready-mix Concrete Batching Plant (collectively the “Project”). The Project is to be located at various locations in Loyalist Township, County of Lennox and Addington, Ontario.
2On September 8, 2015, the Association for the Protection of Amherst Island (the “Appellant”) appealed the REA to the Environmental Review Tribunal (the “Tribunal”) on the grounds that the Project will cause serious harm to human health and serious and irreversible harm to the natural environment and animal life.
3The Tribunal held the preliminary hearing in Bath, Ontario on October 15, 2015. At that time, the Tribunal granted participant and presenter status to various individuals and organizations, and discussed procedural matters regarding the hearing and the steps leading up to the hearing.
4On November 24, 2015, the Tribunal heard submissions relating to requests by the Appellant to issue three summonses to witness. After discussion amongst the parties, the Appellant deferred the request for the summonses for two individuals and pursued its request that a summons issue for Joe Crowley, a species at risk herpetology specialist with the Ministry of Natural Resources and Forestry (the “MNRF”). The Tribunal also heard an application by Mr. Crowley and the MNRF, supported by the Director and the Approval Holder, that the summons be cancelled if issued by the Tribunal.
5The Tribunal made an order granting the Appellant’s request to issue the summonses to witness and subsequently allowed the application by Mr. Crowley and the MNRF to cancel his summons. These are the reasons for that order.
Issues
6The issues are:
whether the Tribunal should issue a summons to witness to Joe Crowley; and
if the Tribunal issues the summons, whether it should be cancelled.
Relevant Legislation and Rules
7The following provisions of the Statutory Powers Procedure Act (the “SPPA”) and the Rules of Practice of the Tribunal (the “Rules”) are applicable to the summons request and the request to cancel the summons:
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
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;
(c) an explanation of why the evidence of the witness would be relevant and necessary;
(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
8As set out in previous Tribunal orders (Gillespie v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 4 and Biddle v. Ontario (Environment and Climate Change), [2015], O.E.R.T.D. No. 59, a 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 Tribunal has discretion to issue a summons under Tribunal Rules 191, 193 and 195, and s. 12(1) of the SPPA.
9Additionally, and as discussed in the above Tribunal Orders, in 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. Here, at the request of counsel for the parties and the proposed witness, the Tribunal exercised its discretion to consider the request to issue and the request to cancel the summons together as a matter of expediency.
Issue 1: Whether the Tribunal should issue a summons to witness to Joe Crowley
10The Appellant’s request to issue the summons is on that basis that Mr. Crowley, as a herpetologist with MNRF, has relevant testimony to provide in relation to how the Project may impact species of turtles. The Appellant submits that:
Mr. Crowley is the most knowledgeable individual within the MNRF on Blanding’s Turtles based on his expertise in herpetology and his work regarding Blanding’s Turtles in the region. In his role at the MNRF he has previously been responsible for considering the impacts of wind turbines on Blanding’s Turtles. In addition, he has appeared twice before a Tribunal to speak to such matters. His evidence is necessary to provide a greater understanding of the species and how they will be impacted by this particular Project. His evidence will be beneficial to the parties and the Tribunal when contemplating the issue of serious and irreversible harm to the Blanding’s Turtle. Without Mr. Crowley, the parties and Tribunal lack a complete understanding of the impacts on these species and therefore cannot make a full, fair and proper decision on the issue of serious and irreversible harm to these species and their habitat.
11The Tribunal finds that the information provided by the Appellant in its request to issue the summons to Mr. Crowley, meets the Rule 192 requirements on its face, including the explanation above in relation to relevance and necessity, and that the summons may be issued. In particular, the evidence that the Appellant seeks to elicit from Mr. Crowley appears relevant and necessary to an issue raised on the appeal, namely impacts to turtles, 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
12Rule 195 provides that a proposed witness may apply to cancel a summons. Under that rule, 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.
13Under Rule 195 there is an opportunity for the Tribunal to receive and consider additional information as to whether the issuance of the summons should stand. Mr. Crowley, through his counsel who appeared before the Tribunal, objects to the summons and applies to have it cancelled; the submissions in support of its cancellation can be summarized as follows:
- general information about turtle species is not relevant to the hearing as it will not assist in providing relevant information about the potential for harm from this specific Project;
- Mr. Crowley has had no involvement with the Project to date and cannot provide relevant evidence about the potential for impacts without significant preparation;
- a summonsed witness cannot be compelled to prepare in advance of their appearance and it could waste significant hearing time to allow Mr. Crowley to properly answer questions about the Project;
- it is not appropriate to summons a government employee in order for the Appellant to save the costs of hiring their own expert;
- any evidence that he may provide is not necessary as the Appellant has already retained an expert in turtles, Christina Davy, who will provide testimony in relation to impacts to turtles; and
- it is premature to summons Mr. Crowley as the Director may call an MNRF biologist with expertise in turtles.
14In response, the Appellant submits that Mr. Crowley was summoned in a previous renewable energy approval appeal and that he has knowledge of the species of turtle alleged to be in the Project area. The Appellant also submits that another MNRF expert that may be called by the Director would not have the same specific expertise in relation to Blanding’s turtle as Mr. Crowley.
15The Tribunal finds that, although Mr. Crowley would have some relevant evidence to provide, his evidence is not necessary given that the Appellant is calling an expert who will provide evidence in relation to the Project’s impacts on turtles and Blanding’s turtle in particular.
16The Tribunal therefore granted the application brought by Mr. Crowley to cancel the summons under Rule 195.
ORDER
17The Appellant’s request that the Tribunal issue a summons to witness for Joe Crowley is granted but the application by Mr. Crowley and the MNRF to cancel the summons is also granted.
Request to Issue Summons Granted
Application to Cancel Summons Granted
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Robert V. Wright”
ROBERT V. WRIGHT
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