Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: January 15, 2016

CASE NO: 15-068

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

Appellant: John Hirsch (File No.15-068)

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

Approval Holder: wpd White Pines Wind Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for White Pines Wind Project

Reference No.: 2344-9R6RWR

Municipality: County of Prince Edward

ERT Case No.: 15-068

ERT Case Name: Hirsch v. Ontario (Environment and Climate Change)

Heard: On November 2, 3 and 16, and December 8 and 15, 2015 in Wellington and Toronto, Ontario and in writing

APPEARANCES:

Parties	Counsel
John Hirsch	Self-represented
Alliance to Protect Prince Edward County	Eric Gillespie, Priya Vittal and Graham Andrews
Director, Ministry of the Environment and Climate Change	Sylvia Davis and Andrew Weretelnyk
wpd White Pines Wind Incorporated	Patrick Duffy and James Wilson

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

Background

1This Order provides reasons for procedural rulings on motions heard in this matter requesting the Tribunal to order additional disclosure by the Director and the Approval Holder, issue summonses to staff of the Ministry of Natural Resources and Forestry (“MNRF”), adjourn the hearing, and exclude reply witness statements and oral evidence. It also provides the Tribunal’s ruling and disposition on whether the Tribunal Members should recuse themselves from this proceeding.

2On July 16, 2015, Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Renewable Energy Approval No. 2344-9R6RWR (the “REA”) to wpd White Pines Wind Incorporated (the “Approval Holder”) authorizing the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer stations, underground electrical cabling, distribution lines and associated infrastructure, to be located in Prince Edward County, Ontario (the “Project”).

3On July 29, 2015, John Hirsch filed a notice of appeal of the REA with the Environmental Review Tribunal (the “Tribunal”), pursuant to s. 142.1 of the Environmental Protection Act (“EPA”), seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment. On July 31, 2015, the Alliance to Protect Prince Edward County (“APPEC”) filed a notice of appeal with the Tribunal seeking revocation of the REA on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment and will cause serious harm to human health. A third appeal, by the Prince Edward County South Shore Conservancy, was withdrawn and dismissed by the Tribunal in its Order dated September 30, 2015.

4The hearing in these appeals commenced on November 2, 2015 in Wellington, Ontario. On that date, APPEC served a notice of motion on the parties and the Tribunal seeking an order directing the Director and the Approval Holder to disclose copies of all documents in respect of species at risk (“SAR”) concerning the Project in the Director’s possession, control or power, including those in the possession, control or power of “third parties such as the Ministry of Natural Resources and Forestry and all consultants etc.” In the alternative, APPEC requested the Tribunal to issue summonses to two MNRF employees, Joe Crowley and Kathleen Pitt. APPEC also brought a motion to adjourn the hearing until all previously undisclosed relevant materials have been provided and APPEC’s experts have had an opportunity to review them.

5The motion for disclosure was opposed by the Director and the Approval Holder; however, despite a lack of notice, they agreed to waive notice and have the Tribunal hear the motion immediately. The Tribunal heard submissions on November 2, 2015. Rule 195 of the Tribunal’s Rules of Practice (“Rules”) allows a witness who objects to a summons to apply to the Tribunal to have it cancelled or varied. In this case, the Tribunal was informed that the witnesses would object to the issuance of the summonses. In order to effectively and efficiently address all the matters related to the summonses without undue delay, the Tribunal heard objections from Sunny Zhai, counsel for the MNRF, on behalf of Mr. Crowley and Ms. Pitt, at the same time as it heard submissions on whether to issue the summonses.

6On November 3, 2015, the Tribunal made an oral disposition, with reasons to follow, dismissing the motion for disclosure but granting APPEC’s request that the Tribunal issue summonses to Mr. Crowley and Ms. Pitt. On November 4, 2015, these summonses were issued, requiring them to attend and give evidence at the hearing and to produce all documents in their possession, control or power related to the “potential impacts of the Project on SAR in the vicinity of the Project area”. This Order provides the reasons for that disposition.

7Given the Tribunal’s disposition on the disclosure motion, APPEC then modified its motion for an adjournment. APPEC requested that only the hearing of the “environmental case” should be adjourned, and that such adjournment should be a “stop the clock” adjournment pursuant to s. 59(1) of Ontario Regulation 359/09, “Renewable Energy Approvals under Part V.0.1 of the Act” (“O. Reg. 359/09”). The purpose of a “stop the clock” adjournment request is to extend the statutory deadline, set out in s. 145.2.1(6) of the EPA and s. 59(1) of O. Reg. 359/09, which, as applied to this appeal proceeding, required the Tribunal to dispose of the proceeding by January 29, 2016. APPEC requested that the Tribunal extend this statutory deadline by a period of at least two months. APPEC’s amended motion was opposed by the Director and the Approval Holder and again they agreed to waive notice and have the Tribunal hear the motion immediately. The Tribunal heard the motion on November 3, 2015 and gave an oral disposition that day dismissing APPEC’s adjournment motion, with written reasons to follow. This Order provides those reasons.

8The Tribunal then revised the schedule for the hearing, so that Mr. Hirsch, the participant and presenters, and APPEC’s “health case” would go forward as originally scheduled, with the hearing of the “environmental case” to follow. As a result, the hearing continued but the commencement of the “environmental case” was postponed for three weeks.

9On October 29, 2015, during a telephone conference call (“TCC”), the Approval Holder raised a concern that the reply witness statements of Dr. Michael Hutchins and William Evans, filed by APPEC on October 26, 2015, contained material that was not proper reply. Because the hearing was to commence within two business days, the Tribunal directed the parties to address this issue at the commencement of the hearing. The Tribunal heard the Approval Holder’s submissions on November 3, 2015. APPEC objected to the hearing of submissions, arguing that the Approval Holder had not previously identified all the grounds for its motion and submitting that the requirements of the Tribunal’s Rule 93 be followed, specifically, that the Approval Holder should be required to serve and file a written notice of motion, and that APPEC should be given an opportunity to provide a written response. At that time, the Tribunal first observed that it has the authority to waive those requirements. The Tribunal then indicated that, despite its belief that all parties had agreed to proceed in this manner, it now appeared that APPEC had a different understanding of the Tribunal’s direction on October 29, 2015. Consequently, the Tribunal directed the Approval Holder to serve and file a notice of motion and it heard the motion on November 16, 2015. On November 17, 2015, the Tribunal granted the motion in part, with reasons to follow, finding that some of the material in the two witness statements was proper reply and some was not. This Order provides the reasons for that ruling.

10On November 17, 2015, APPEC delivered the reply witness statement of Daryl Cowell, dated November 14, 2015, replying to the witness statements of Ronald Donaldson filed on behalf of the Approval Holder, and Mark Phillips, filed on behalf of the Director. On that date, APPEC also delivered a reply witness statement of Roy Nagle, dated November 15, 2015, responding to Mr. Crowley’s testimony. On November 20, 2015, the Approval Holder filed a notice of motion in writing requesting that these witness statements be excluded and that these witnesses not be permitted to testify. On November 27, 2015, the Tribunal ruled orally that: (i) a part of Mr. Cowell’s witness statement could be filed and he would be allowed to testify; and (ii) Mr. Nagle would not be allowed to testify. This Order provides the reasons for these rulings.

11On November 23, 2015, APPEC brought a motion for an order that the Tribunal Members recuse themselves from this proceeding. The parties agreed to have the motion heard in writing and agreed to dates for the filing of responding and reply submissions. They also agreed that the hearing of evidence in the main hearing would continue pending the Tribunal’s disposition of this motion. Mr. Hirsch supported APPEC’s motion; the Approval Holder and the Director opposed it. This Order provides the Tribunal’s ruling, with reasons, on APPEC’s motion for recusal.

12On December 8, 2015, APPEC delivered a reply witness statement of Richard James, dated December 6, 2015, replying to the testimony of Denton Miller, who had testified on behalf of the Director. The Director and the Approval Holder opposed the filing of Mr. James’ reply witness statement and requested that he not be permitted to testify. On that day, after considering the oral submissions of the parties, the Tribunal ruled that Mr. James’ reply witness statement could be filed and that he would be allowed to testify. This Order provides the reasons for that ruling.

13On December 15, 2015, APPEC delivered a reply witness statement by Dr. Shawn Smallwood, dated December 13, 2015, replying to the evidence of Dr. Paul Kerlinger and Dr. Dale Strickland, both of whom testified on behalf of the Approval Holder. APPEC also delivered on that day reply witness statements of Robert McEwen, dated December 13, 2015, and Kari Gunson, dated December 14, 2015, replying to the evidence of Shawn Taylor, who testified on behalf of the Approval Holder. Again, the Approval Holder and Director objected to this proposed reply evidence. On that day, after considering the oral submissions of the parties, the Tribunal ruled that: (i) Dr. Smallwood’s reply witness statement could be filed and he would be allowed to testify; and (ii) Mr. McEwen’s and Ms. Gunson’s proposed reply evidence would not be heard. This Order provides the Tribunal’s reasons for those rulings.

Issues

14The issues are:

1. Whether to order disclosure by the Director and the Approval Holder or, in the alternative, whether to issue summonses to Mr. Crowley and Ms. Pitt of the MNRF;

2. Whether to adjourn the hearing;

3. Whether to exclude reply witness statements and oral evidence; and

4. Whether the Tribunal Members should recuse themselves from this proceeding.

Relevant Legislation, Regulations and Rules

15Environmental Protection Act

145.2.1 (6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

O. Reg. 359/09, Renewable Energy Approvals under Part V.0.1 of the Act:

59. (1) Subject to subsections (2) and (3), the prescribed period of time for the purposes of subsection 145.2.1(6) of the Act is six months from the day that the notice is served upon the Tribunal under subsection 142.1(2) of the Act.

(2) For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time:

1. Any period of time occurring during an adjournment of the proceeding if,

i. the adjournment is granted by the Tribunal on the consent of the parties, or

ii. the adjournment is,

A. On the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties,

B. Not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and

C. Necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.

Rules of the Tribunal

Motions for Adjournment

104. A Party seeking an adjournment shall provide evidence and submissions in support of the motion respecting:

(a) whether the other Parties consent to the request and the date suggested for the commencement or continuation of the Hearing;

(b) detailed reasons for the request, including, if appropriate, affidavit evidence;

(c) evidence that the Party made all reasonable efforts to avoid the need for the adjournment request;

(d) any urgency for the request because of the public interest;

(e) any inconvenience to other Parties, Participants and Presenters due to the adjournment; and

(f) any other factors relating to the considerations listed in Rule 105.

105. In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(c) the integrity of the Tribunal’s process;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

Disclosure of Documents

166. All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.

167. All Parties shall provide without charge to all other Parties a copy of every relevant document discovered during the course of the proceeding.

Summons to Witness

191. 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.

192. 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.

193. 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.

194. 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.

195. 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

Issue 1: Whether to order disclosure by the Director and the Approval Holder or, in the alternative, whether to issue summonses to Mr. Crowley and Ms. Pitt of the MNRF

Introduction

16APPEC requests an order for disclosure by the Director and Approval Holder, or, alternatively, that the Tribunal issue summonses to two proposed witnesses, Mr. Crowley and Ms. Pitt.

17Mr. Crowley is a SAR herpetologist who was called as a witness by the Director in the continuation of a hearing related to a wind energy project proposed for a site adjacent to part of the Project under appeal in this proceeding: Prince Edward County Field Naturalists v. Director, MOECC, Tribunal Case No. 13-003 (the “PECFN hearing”). This adjacent site is known as the “Ostrander site”. The renewable energy approval for the Ostrander site was appealed to the Tribunal by APPEC and PECFN in 2013. In its decision released on July 3, 2013, the Tribunal allowed PECFN’s appeal, in part, finding that the project will cause serious and irreversible harm to Blanding’s Turtle, and revoked the approval (see: APPEC v. Ontario (Ministry of the Environment) (2013), 76 C.E.L.R. (3d) 171 (Ont. E.R.T.) (the “APPEC” decision)). That decision was appealed to the Divisional Court, which overturned the Tribunal’s decision (see: Ostrander Point GP Inc. v. PECFN (2014), 82 C.E.L.R. (3d) 86 (Ont. Div. Ct.) (“Ostrander”)). On further appeal, the Ontario Court of Appeal restored the findings of the Tribunal regarding serious and irreversible harm, but remitted the issue of remedy to the Tribunal for a hearing (see: Ostrander Point GP Inc. v. PECFN (2015), 2015 ONCA 269, 90 C.E.L.R. (3d) 180 (Ont. C.A.)). The PECFN hearing, which is ongoing, is addressing the issue of remedy, as directed by the Court of Appeal.

18Ms. Pitt is at present a Management Biologist at the MNRF’s Peterborough District Office. Previously, as a SAR Biologist, she oversaw the process for the issuance of the “overall benefit permit” pursuant to s. 17 of the Endangered Species Act, 2007 (the “ESA Permit”) with respect to three SAR affected by the Project.

Submissions of the Parties, Mr. Crowley and Ms. Pitt

The Appellants’ submissions

19APPEC seeks an order directing the Director and the Approval Holder to disclose:

… all written and electronic documents, including but not limited to emails and attachments, reports, correspondence and notes in respect of all [SAR] concerning [the Project] in MOECC’s possession, power and control, including but not limited to the such materials in the MOECC’s possession and/or over which they have any power and/or control in relation to third parties such as the [MNRF] and all consultants etc.

20In the alterative, APPEC seeks to have the Tribunal issue summonses to “such third parties as may have possession, power and/or control over such materials, such as MNRF etc.”

21APPEC submits that its counsel obtained documents about the presence of Blanding’s Turtle, a SAR, in the vicinity of the Project site in the course of the PECFN hearing. APPEC notes that it is not a party in that hearing, but its counsel represents PECFN. APPEC’s counsel states that these documents were unknown to him before they were produced in the PECFN hearing and he believes that they are relevant to this proceeding. APPEC asserts that these documents were in the control of the MNRF and should have been disclosed by the Director in this proceeding.

22In addition, APPEC submits, the MNRF documents relating to issuance of the ESA Permit are relevant and should be disclosed by the Director.

23APPEC relies on R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 (“Stinchcombe”), a criminal law case where the Supreme Court of Canada held that Crown counsel has a duty to disclose all relevant information that may assist the accused and on Naimer v. Municipal Property Assessment Corp. Region No. 3 (2008), 59 O.M.B.R. 214, in support of its position that disclosure is required for all documents having a “semblance of relevance” to matters in a proceeding. APPEC also relies on the Tribunal’s decision in Cham Shan Temple v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 55 (“Cham Shan Temple 1”), as the basis for its position that MOECC counsel has an obligation to make reasonable inquiries of the MNRF to have it disclose relevant documents. APPEC submits that the parties have a duty to disclose and that it is unfair to require APPEC to have to proceed with the hearing in this case where there has not been full disclosure.

24With respect to the request for summonses to Mr. Crowley and Ms. Pitt, APPEC submits that it brought the request as early as possible following Mr. Crowley’s testimony in the PECFN hearing. APPEC further argues that even though he may have no specific knowledge of the review of SAR for the Project, Mr. Crowley has general knowledge of Blanding’s Turtle in the area, which is enough to make his evidence relevant and necessary. APPEC asserts that Ms. Pitt has knowledge of the ESA Permit review process for the Project, so her evidence is both relevant and necessary.

25Mr. Hirsch supports APPEC’s position and relied on its submissions.

The Director’s submissions

26The Director submits that the information in the MNRF documents about the presence of Blanding’s Turtle in the vicinity of the Project site was known to APPEC for several years, as it was reflected in the findings of the Tribunal in the APPEC decision in 2013. In addition, the Director argues that he met his disclosure obligation under Rule 166 on August 10, 2015 and APPEC did not identify any gaps in the documents provided or request any further information, despite being aware of the presence of Blanding’s Turtle and the nature of the MNRF’s involvement in the ESA Permit process. The Director notes that the ESA Permit process is distinct from the renewable energy approval process and that he does not receive documents or communications associated with that process, so he does not have possession of documents related to MNRF’s determinations under the ESA. The Director also notes that the MNRF documents provided in the PECFN hearing relate to a different ESA Permit for a different project.

27The Director further submits that the MOECC and the MNRF are separate government entities and that he, not the MOECC, is the party to this proceeding. The Director asserts that he has no legal authority to force the MNRF to disclose documents. The Director cites R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, where the Supreme Court of Canada stated: with the “exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules.” Nevertheless, the Director considers that he has an obligation to use best efforts to obtain information relevant to the Project from the MNRF, and submits that he has fulfilled that obligation in this proceeding.

28With respect to the summons requests, the Director submits that Rule 192, which identifies the requirements to obtain a summons, has not been met. The Director argues that the first requirement, that the request be made as early as possible, has not been met and the late request should not be used as a “back door” request for an adjournment. Respecting Mr. Crowley, the Director submits that his evidence is neither relevant nor necessary. The Director submits that the test is no longer whether there is a “semblance of relevance”, but simply “relevance”, and Mr. Crowley’s evidence is not relevant to this proceeding because he has no specific knowledge about the Project and he did not participate in any review regarding SAR on the Project site or in the decision to issue the ESA Permit for the Project. Further, the Director argues that Mr. Crowley’s evidence regarding the life cycle of Blanding’s Turtle is not necessary because APPEC is already calling a witness who can provide the Tribunal with that information. The Director submits that it is not appropriate to issue a summons to compel a public servant to provide evidence that could be provided by a party’s own witness.

The Approval Holder’s submissions

29The Approval Holder submits that APPEC’s notice of motion is nominally directed at both the Director and the Approval Holder and contains an allegation that the Approval Holder failed to disclose documents; however, the relief requested is only for documents within the Director’s possession or control and APPEC has provided no specifics about what documents the Approval Holder has in its possession that it failed to disclose. The Approval Holder asserts that disclosure must be relevant to the issues in the appeal of the REA, and that this proceeding is not a “forensic audit” or appeal of the ESA Permit.

30The Approval Holder submits that there has been significant delay in APPEC bringing its motion, noting that APPEC’s counsel began talking about bringing such a motion in early September but waited until the first day of the hearing in November to do so. It argues that the issue of the presence of Blanding’s Turtle in the area has been known for more than two years and that information was disclosed. The Approval Holder also argues that the documents provided in the PECFN hearing have not been linked to this proceeding.

31With respect to the request for summonses, the Approval Holder submits that the request was not made as early as possible, as is required by Rule 192. In addition, the Approval Holder asserts that the witnesses are not necessary because APPEC could have hired its own experts to make its case rather than using summonses to get witnesses “on the cheap.” The Approval Holder asserts that APPEC did not bring the motion in a good faith attempt to get necessary evidence, but brought it at this stage of the hearing for the purpose of delaying the hearing.

Mr. Crowley’s and Ms. Pitt’s submissions

32Mr. Crowley and Ms. Pitt oppose the issuance of the summonses to them. Counsel for the MNRF made submissions on behalf of them. Mr. Crowley submits that his evidence is neither relevant nor necessary to this proceeding, pointing out that he has no knowledge of the specific impact of the Project on Blanding’s Turtle and has had no involvement in the review regarding SAR or in the process leading to the issuance of the ESA Permit. Mr. Crowley argues that his general knowledge about Blanding’s Turtle is not helpful to the determination the Tribunal must make in this proceeding. In addition, Mr. Crowley submits that APPEC is calling its own witness to provide general information about Blanding’s Turtle. Ms. Pitt does not dispute that her evidence may be relevant and necessary, but objects on the grounds that the request for a summons is not timely. She submits that Rule 192 requires a request be made as early as possible because it is otherwise neither efficient nor fair to her as a witness or to the other parties. Ms. Pitt notes that the ESA Permit was issued and posted on the Environmental Registry, under the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, on September 8, 2015, which was two months before the motion was brought, and that APPEC has provided no explanation for why it waited so long to make the request for a summons for her.

Findings

33The Tribunal recognizes the importance of disclosure to a full and fair proceeding. The requirement in Rule 166 is for each party to provide the others with a copy of “every relevant document” in its “possession, control or power.” The Tribunal agrees with the following comments made by the panel in Cham Shan Temple 1 with respect to the issue of disclosure, as set out at paras. 9, 22 and 23:

A party has a right to disclosure of all relevant documents. The Tribunal expects that counsel will comply with their professional obligations, that the parties will fulfill their disclosure obligations in good faith, and that they will cooperate in ensuring that relevant materials are provided as quickly as possible. Requests to the Tribunal for rulings should be seen as a last resort. …

[T]he Tribunal notes that the REA approval process was designed to provide a single, streamlined process that integrates a range of considerations falling within the mandates of several government ministries into a single consolidated decision, made by the Director, but in reliance on advice from other ministries. The Tribunal is concerned that the nature of this process may be masked by taking a narrow view of the obligations of the Director as the only party to an appeal and is concerned that members of the public seeking to bring an appeal might be disadvantaged by such a technical legal distinction.

In light of the lack of legal submissions on this question, the Tribunal is not in a position to determine whether the documents held by other ministries can be considered to be within the ‘possession, control or power’ of the Director. To the extent that those documents are relevant to this appeal and not privileged, however, the Tribunal notes that the Appellants should have access to them. Practically speaking, this can be accomplished most expeditiously through the Director making reasonable inquiries of other government ministries that are directly tasked with reviewing REA applications and the supporting documentation. If those ministries refuse or fail to disclose those documents, the Appellants have the option of requesting a summons from the Tribunal …

34In this proceeding, APPEC sought additional disclosure from the Director of documents held by him or the MNRF relating to SAR. The Tribunal did not order further disclosure by the Director as it was not satisfied that the Director had further relevant documents in his possession, control or power. The Director submits that he followed the Tribunal’s direction in Cham Shan Temple 1 and requested the MNRF to provide relevant documents in its possession to the parties. In response to the Director’s disclosure in August, and despite its notice of appeal which asserts that the Project will have impacts on Blanding’s Turtle and other SAR, APPEC made no request for further documents either from the Director or the MNRF until the start of the hearing in November. APPEC’s only evidence in support of its assertion that the Director’s disclosure was incomplete was the evidence provided by Mr. Crowley in the PECFN hearing. Consequently, the Director had possession of Mr. Crowley’s documents at the time of his testimony, but subsequently did not disclose them to APPEC for the purpose of this hearing because, as the Director has stated, he did not consider them to be relevant.

35The Tribunal notes that the Director accepts his continuing obligation to disclose all relevant documents in his possession, control or power and his obligation to make a request of the MNRF to do the same. Counsel for the Director states that she only reviewed the documents provided by the MNRF to determine if any were privileged. The Tribunal observes that requests by the Director of other government ministries for documents in a renewable energy approval appeal need to be more than a cursory request. The Director should be informed by the issues in the appeal in making the initial request and the Director must follow up on such requests so as to satisfy himself or herself that all documents which are relevant to the issues in an appeal have been disclosed.

36In this proceeding, the Tribunal has some concern that, in responding to the Director’s request, the MNRF may have narrowly construed what it considered to be documents that are relevant to the issues in the appeal. Generally, when an allegation in a notice of appeal is that a renewable energy project will cause serious and irreversible harm to SAR, documents such as assessments, reports and correspondence related to the impacts of the project on SAR should be reviewed to determine if they are in fact relevant. Even though the ESA Permit determination is a separate process under a different statute and the Tribunal has no authority to review that process, it may be that at least some of the documents created in the course of that process will be relevant to the issue of the impacts of a project on SAR. The evidence presented to the Tribunal does not indicate what documents were provided by the MNRF in response to the Director’s initial request. However, it appears that some relevant documents in the MNRF files were produced for the first time by Ms. Pitt following the issuance of the summons to her. In future, the MNRF should take a broader view of the scope of documents that may be relevant and the Director must follow up on his or her request to ensure that he or she is reasonably satisfied that all documents relevant to the issues in the appeal have been disclosed. It is also incumbent on appellants to make specific and timely requests if they believe categories of documents may not have been disclosed. They should not wait until after a hearing commences before they do so.

37In this proceeding, in light of all the circumstances and taking into account the objections, the Tribunal issued summonses to Mr. Crowley and Ms. Pitt, and directed each of them to produce all documents in his or her possession or control “related to the potential impacts of the White Pines Project on SAR in the vicinity of the Project area.” The Tribunal issued the summonses despite the delay by APPEC in bringing forward the request. In some instances, such a delay could result in unfairness to other parties or to a witness and could result in delays in the hearing of the appeal. In this proceeding, however, the Tribunal determined that there would be no material delay in hearing the evidence of Mr. Crowley, and no significant delay in the hearing of APPEC’s environmental case due to the expected time needed for Ms. Pitt to produce the relevant documents and prepare for her testimony.

38The Tribunal is aware that Mr. Crowley has no knowledge of the specific location, size or components of the Project itself and did not participate in the MNRF review of the Project or in the process that led to the issuance of the ESA Permit. Nevertheless, based on the information provided, it appeared that Mr. Crowley, because of his involvement on the Ostrander site, has knowledge of the presence of Blanding’s Turtle in the vicinity of the Project site and possibly of the cumulative effects of the two projects on Blanding’s Turtle, which would be relevant to the issues in this proceeding.

39Ms. Pitt was identified as the lead person within the MNRF responsible for the development of the ESA Permit. The Tribunal finds that her evidence is both relevant and necessary to the issue of the impacts of the Project on SAR.

Issue 2: Whether to adjourn the hearing

The Appellants’ submissions

40APPEC sought an adjournment of the hearing until the documents requested in the motion for disclosure had been provided and APPEC and its consultants had had an opportunity to review and address the documents. Given the Tribunal’s ruling on the disclosure motion, APPEC modified its request to an adjournment of the environmental case only. APPEC submits that once Ms. Pitt produces her materials, APPEC will require time after that to review those materials and prepare further evidence in response. APPEC argues that the environmental case should be adjourned until January in order to allow sufficient time for it to prepare. APPEC submits that the statutory deadline for the Tribunal to dispose of the proceeding should be extended through an adjournment that has the effect of “stopping the clock” under s. 59(2) of O. Reg. 359/09. APPEC notes that the Divisional Court in Ostrander stated that the Tribunal should consider “stopping the clock” when necessary to ensure a fair proceeding.

41APPEC addresses Rules 104 and 105 with respect to its request for an adjournment. APPEC notes that, although the responding parties oppose the request, the circumstances demand that it be afforded more time to review Ms. Pitt’s disclosure and prepare further evidence. APPEC submits that, if the Tribunal refuses the adjournment request, it would be severely prejudiced in its ability to fully present its case. APPEC further submits that granting an adjournment will cause no prejudice to the other parties.

42APPEC submits that it brought the motion as soon as practicably possible following Mr. Crowley’s testimony in the PECFN hearing. It argues that an adjournment will uphold the integrity of the Tribunal’s process by recognizing that APPEC has been prejudiced by inadequate disclosure. APPEC points to other renewable energy approval appeals where the Tribunal did “stop the clock”.

43Mr. Hirsch supports APPEC’s motion and relies on its submissions.

The Responding Parties’ submissions

44The Approval Holder opposes an adjournment that “stops the clock”. It notes that the Tribunal dismissed the motion for disclosure and argues that APPEC’s adjournment motion was based on disclosure being ordered. With respect to Mr. Crowley and Ms. Pitt, the Approval Holder submits that, as they are being called by APPEC, APPEC has no right to file responding witness statements and thus does not require extra time for their preparation. It states that APPEC is choosing to rely on witnesses appearing under summons, rather than calling its own witnesses, and has to bear the risk of what they will say in their testimonies. The Approval Holder argues that APPEC does not need a lengthy period to review Ms. Pitt’s production and that there is room in the schedule to be able to hear APPEC’s environmental case without the need for a “stop the clock” adjournment.

45With respect to the factors in Rule 105 that the Tribunal is to consider, the Approval Holder asserts that because APPEC’s situation was created by its own delay in requesting the summonses, a lengthy adjournment is not justified. The Approval Holder submits that the integrity of the Tribunal’s process would be undermined by a lengthy adjournment and that, given that the hearing is scheduled and the parties, witnesses and the Tribunal are all available, the public interest in a just, timely and cost effective process favours continuing with the hearing.

46With respect to “stopping the clock”, the Approval Holder states that the Tribunal can only do so in accordance with s. 59(2) of O. Reg. 359/09, that is, only if it is “necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.” The Approval Holder argues that the Tribunal is master of its process and should not be bullied into granting an adjournment by APPEC.

47The Director takes no position on the motion.

Findings

48In determining a motion for an adjournment, the Tribunal considers the factors set out in Rule 105. If the motion is within the context of a renewable energy approval appeal and is for an adjournment to “stop the clock” on the statutory deadline, the Tribunal must also determine whether, in its opinion, such an adjournment is “necessary… to secure a fair and just determination of the proceeding on its merits,” as is required by s. 59(2) of O. Reg. 359/09.

49APPEC’s rationale for an adjournment is to allow it time to review the documents that are to be produced by Ms. Pitt pursuant to the summons and to prepare responding evidence. APPEC provides no legal authority regarding its right to respond to evidence provided by its own witness and the Tribunal makes no finding as to whether APPEC would be entitled to do so. The Tribunal did agree, however, that APPEC should have time to review the documents produced by Ms. Pitt in order to prepare for her examination, and thus agreed that a delay in the start of its environmental case is warranted.

50However, the Tribunal, after considering the factors in Rule 105, found that an adjournment of the hearing is not necessary and would not be in the public interest. Mr. Hirsch, the participant, the presenters and the parties’ health witnesses were scheduled within the following two weeks and there was no reason provided as to why they could not go forward in accordance with the original schedule. Mr. Crowley was also available to give his evidence within that period. APPEC’s counsel already had the documents Mr. Crowley produced in the PECFN hearing and he indicated that he did not anticipate that there would be many, if any, additional documents provided by Mr. Crowley. Thus, APPEC did not need extra time to prepare for his examination. The Tribunal found that a reasonable amount of time was available within the schedule to allow APPEC sufficient time to review Ms. Pitt’s documents and prepare for her examination, provided that these documents were produced in a timely fashion. Based on the available information, there was no reason to believe that this would not occur. The parties indicated that Ms. Pitt was available and could testify at the end of November or in early December, giving APPEC a reasonable period in which to address her documents and prepare for her examination.

51Given that APPEC’s environmental case could be accommodated through a delay in the start of its environmental case and an adjustment to the schedule, allowing the hearing of evidence to proceed during November and conclude in early December, with final submissions by mid-December, the Tribunal found that it was not necessary to adjourn the hearing pursuant to s. 59(2) of O. Reg. 359/09in order to secure a “fair and just determination of the proceeding on its merits.”

Issue 3: Whether to exclude witness statements and oral evidence

52During the course of the hearing, the Tribunal heard several requests that reply witness statements submitted on behalf of APPEC be excluded and proposed witnesses not be permitted to testify. These requests were made by the Approval Holder with respect to the witness statements of:

(a) Michael Hutchins, dated October 26, 2015;

(b) William Evans, dated October 29, 2015;

(c) Daryl Cowell, dated November 14, 2015;

(d) Roy Nagle, dated November 15, 2015;

(e) Richard James, dated December 6, 2015;

(f) Shawn Smallwood, dated December 13, 2015;

(g) Robert McEwen, dated December 13, 2015; and

(h) Kari Gunson, dated December 14, 2015.

The Tribunal gave oral rulings responding to these requests throughout the course of the hearing. The Tribunal’s reasons for each of these rulings are set out below.

Michael Hutchins and William Evans

Introduction

53On October 23, 2015, APPEC filed with the Tribunal the witness statement of Dr. Smallwood addressing, among other issues, whether the proposed Project will cause serious and irreversible harm to birds and bats. On October 27, 2015, the Approval Holder responded with the witness statements of Dr. Kerlinger and Dr. Strickland. On October 29, 2015, APPEC provided a reply witness statement from Dr. Smallwood as well as reply witness statements of Dr. Hutchins and Mr. Evans.

54The Approval Holder brought a motion requesting that the reply witness statements of Dr. Hutchins and Mr. Evans be excluded and the witnesses not be permitted to testify. The motion was heard on November 3 and November 16, 2015. The Tribunal made an oral ruling on the motion on November 17, 2015.

Submissions of the parties

55The Approval Holder submits that Dr. Hutchins’ and Mr. Evans’ reply witness statements do not constitute proper reply. It submits that they bolster Dr. Smallwood’s evidence and introduce new issues. The Approval Holder argues that these two additional witnesses are not needed and that Dr. Smallwood has the requisite expertise to reply to issues raised in the Kerlinger and Strickland witness statements. The Approval Holder submits that Mr. Evans’ reply witness statement also opines on the potential impacts of the Project on a bird species, Purple Martin, which it submits is a new issue that was not previously raised by APPEC. The Approval Holder argues that the timing of these reply witness statements reflects an attempt to split APPEC’s case by submitting evidence late in the process, thereby limiting the Approval Holder’s full ability to respond. It argues that allowing these reply witness statements to be introduced as evidence and allowing these proposed witnesses to testify would prejudice the Approval Holder either by requiring it to bring forward new responding witnesses, thereby forcing an adjournment, or by foreclosing its right to respond.

56The Approval Holder refers to the Tribunal’s order in Corporation of the City of Guelph v. Director, Ministry of the Environment, [2014] CarswellOnt 2546 (E.R.T.) (“Guelph”), at para. 14, which sets out principles for determining proper reply evidence:

• an applicant is expected to put its complete case forward in its leave application;

• in reply, an applicant may not add new issues or evidence that it was aware of or could have reasonably anticipated and addressed in its application;

• in reply, an applicant may respond directly to a new issue or new evidence contained in the respondent’s submissions; and

• in reply, an applicant may not simply repeat earlier submissions or attempt to bolster its application, but may clarify or amplify an earlier submission, especially where a response misconstrues its position or where an initially less significant issue takes on greater importance because of the response.

The Approval Holder also refers to Cham Shan Temple v. Director, Ministry of the Environment and Climate Change, [2015] O.E.R.T.D. No. 9 (“Cham Shan Temple 2”), in which it submits these principles were applied.

57The Director supports the Approval Holder’s motion to exclude these witness statements, but did not make submissions.

58APPEC submits that the impugned witness statements constitute proper reply. It submits that each of its proposed reply witnesses possesses different training, knowledge and expertise and, thereby, each of them provides distinct insights on the issues. APPEC argues that their evidence is necessary for APPEC adequately reply to the witness statements provided by Dr. Kerlinger and Dr. Strickland and for it to fairly present its case.

59APPEC argues that the Approval Holder’s case law does not provide principles of general application, but addresses only specific situations where a responding party’s evidence has been completed and no further evidence or submissions are foreseen. It submits that in the present case, Dr. Kerlinger and Dr. Strickland have not yet testified and, therefore, they will have an opportunity to respond to APPEC’s reply evidence. It submits that there is no prejudice to the Approval Holder, as the Approval Holder knows the case that it must meet and it will have an opportunity to respond. On the other hand, if these witness statements are excluded and the witnesses are prevented from testifying, APPEC argues that significant portions of its evidence will be struck from the record, denying it the opportunity to respond and to fully and fairly present its case to the Tribunal.

60APPEC submits that it meets the reply test used in Guelph. It submits that the reply witness statements assess Dr. Kerlinger’s and Dr. Strickland’s evidence and properly reply to them. It states that given the expedited nature of renewable energy approval appeals, it cannot anticipate every issue to be raised by the Director and Approval Holder, but rather must be allowed to reply. It submits that Mr. Evan’s evidence on Purple Martin pertains to the effects of wind turbines on avian species, which is an issue under appeal.

61Mr. Hirsch supports APPEC’s position, but made no submissions.

Findings

62In Guelph, at para. 14, the Tribunal outlined principles that it applies when determining whether evidence is properly adduced in reply. In Guelph, the Tribunal addressed a leave to appeal application, which was heard in writing, so there were no further opportunities for parties to respond after reply evidence was filed (e.g., through oral evidence at a hearing). The reasoning in Guelph aligns with that in R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466 (“Krause”), at pp. 473-4, in which the Supreme Court of Canada found:

The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown’s case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.

63The Tribunal finds that application of the Guelph principles is not limited to leave to appeal applications. In Cham Shan Temple 2, a renewable energy approval appeal proceeding, these principles were applied where requests to introduce reply evidence were made at the end of the hearing, after the Approval Holder’s case had closed. As in a leave to appeal application, there were limited opportunities for the Approval Holder to respond. These principles may also be of assistance at earlier stages of a proceeding, including here, where oral testimony has yet to commence and parties still have opportunities to respond through oral testimony. Given the variety of situations in which the appropriateness of reply witness statements must be determined, the Tribunal takes into account such considerations as the nature and stage of proceedings and any prejudice that may arise by permitting the reply witness statements to be filed.

64When applying these principles in the context of a renewable energy approval appeal, the Tribunal takes into account the expedited nature of the proceeding, so that the Tribunal can meet the six-month deadline imposed by the EPA and O. Reg. 359/09. In these proceedings, the Tribunal strives to ensure fairness to all parties by requiring them to identify all of their witnesses and produce and exchange detailed witness statements well in advance of the hearing, in accordance with a “schedule of events” outlined in Appendix A to the Tribunal’s Rules. Where a party does not comply with this schedule, it is often the case that the schedule of events must be altered in order to ensure that the responding party has a sufficient opportunity to prepare for this new evidence. This leads to delays in the hearing of oral evidence, which then risks leaving the Tribunal with insufficient time to conduct its deliberations and issue a decision by the statutory deadline.

65At the time the reply witness statements of Dr. Hutchins and Mr. Evans were filed, oral evidence on the relevant issues had not commenced. Thus, the Tribunal found that the other parties would have an opportunity to respond in their oral evidence and that the process would not be unduly delayed by allowing the proposed witnesses to testify. The Tribunal found that both the Hutchins and Evans reply witness statements included some proper reply and that allowing the witness statements to be filed and the witnesses to testify with respect to matters in reply to the witness statements of Dr. Kerlinger and Dr. Strickland would not unfairly prejudice the other parties. The Tribunal found that proposed evidence with respect to matters that had not been raised before was not proper reply and could prejudice the other parties, as there would be insufficient time for them to effectively respond. The Tribunal did not identify specific sentences or paragraphs in the reply witness statements that were improper, but relied on APPEC to conduct its examination of the witnesses so that their oral reply evidence would meet the Guelph principles. Thus, the Tribunal allowed the reply witness statements in their entirety to be filed with the Tribunal, but stated that it would only allow oral reply evidence that met the principles set out above.

Daryl Cowell

Introduction

66On October 14, 2015, APPEC filed with the Tribunal the witness statement of Dr. Craig MacRae, a hydrologist, addressing, among other issues, the impact of the Project on hydrologic conditions on the Project site. On November 6, 2015, the Approval Holder responded with a witness statement of Mr. Donaldson, a hydrogeologist, and the Director responded with a witness statement by Mr. Phillips, a surface water specialist.

67On November 17, 2015, APPEC responded to these with a reply witness statement of a new witness, Mr. Cowell, a geoscientist. It did not file a reply witness statement from Dr. MacRae.

68On November 20, 2015, the Approval Holder filed a notice of motion in writing requesting that Mr. Cowell’s witness statement be excluded and that he not be permitted to testify. The Approval Holder and the Director both argued that the reply witness statement of Mr. Cowell is not proper reply and should be excluded. The Tribunal made its ruling on November 27, 2015 that Mr. Cowell’s witness statement could be filed, and that he would be allowed to testify.

Submissions

69The Approval Holder submits that Mr. Cowell’s reply witness statement should be excluded because, in its view, it is an attempt to bolster Dr. MacRae’s evidence, which, it submits, largely extends outside of Dr. MacRae’s area of expertise. It also submits that Mr. Cowell’s witness statement states that he was retained by APPEC prior to Dr. MacRae’s engagement and, therefore, his witness statement should have been submitted with the rest of APPEC’s initial evidence in September 2015. The Approval Holder submits that the delivery of the Cowell reply witness statement is an attempt by APPEC to split its case. In support of this submission, the Approval Holder relies on the principles for determining proper reply as set out in Guelph and Cham Shan Temple 2 above.

70The Director supports the Approval Holder’s position. He argues that the late introduction of Mr. Cowell’s reply witness statement is an abuse of process and is disrespectful of the Tribunal’s procedures.

71APPEC disagrees. It submits that Mr. Cowell’s reply witness statement replies to new evidence led by Mr. Donaldson on behalf of the Approval Holder and Mr. Phillips on behalf of the Director. It submits that Mr. Cowell’s reply witness statement was delivered in a timely manner. It submits that the Director and Approval Holder have had full notice and will have the opportunity to cross-examine Mr. Cowell and to have their witnesses respond to his testimony in their oral evidence. It submits that Mr. Cowell has different expertise from Dr. MacRae and was promptly retained. Also, it submits that the hearing schedule can accommodate Mr. Cowell’s testimony.

72Mr. Hirsch supported APPEC’s position, but made no submissions.

Findings

73The Tribunal found that Mr. Cowell’s reply witness statement includes both proper reply and some improper reply. Although the hearing had already commenced, the Tribunal found that there was no unfairness or prejudice that was identified by the Approval Holder or the Director by admitting Mr. Cowell’s reply witness statement and allowing him to testify, provided that Mr. Cowell’s oral evidence was presented before the Approval Holder’s and Director’s water experts testified, so that they would have a full opportunity to respond. The Tribunal found that the portions of the reply witness statement that assess the REA’s conditions and the application documents prepared by the Approval Holder’s consultants, and which could have been addressed in APPEC’s original witness statements, were improper. The Tribunal refused to allow Mr. Cowell to testify with respect to these matters.

Roy Nagle

Introduction

74On APPEC’s request, the Tribunal issued a summons to Mr. Crowley, a SAR herpetologist employed by the MNRF. Mr. Crowley, who gave evidence before the Tribunal on November 10, 2015, was examined in chief by APPEC. During that examination, APPEC requested that the Tribunal find Mr. Crowley to be an adverse witness so that APPEC could cross-examine him with respect to an alleged prior inconsistent statement. The Tribunal refused to grant this request because it found that the witness was cooperative and APPEC failed to prove that Mr. Crowley had made a prior inconsistent statement that would justify such a finding.

75On November 17, 2015, APPEC delivered the reply witness statement of Mr. Nagle, a biologist, in response to Mr. Crowley’s testimony.

76On November 20, 2015, the Approval Holder filed a notice of motion in writing requesting that Mr. Nagle’s reply witness statement be excluded and that he not be permitted to testify. On November 27, 2015, the Tribunal granted the motion and ruled that Mr. Nagle would not be permitted to testify.

Submissions

77The Approval Holder argues that Mr. Crowley was summonsed at APPEC’s request and was produced as an expert witness as part of APPEC’s case. The Approval Holder argues that it would be unfair to allow APPEC to reply to its own witness and that it took a risk by having a witness summonsed who may provide evidence that was not helpful to its case. The Approval Holder further argues that Mr. Nagle’s reply witness statement solely bolsters Mr. Crowley’s evidence and its late delivery is an attempt to delay the proceeding.

78The Director supports the Approval Holder’s position. The Director argues that Mr. Nagle’s reply witness statement endorses Mr. Crowley’s evidence and is an attempt at bolstering it and the evidence of Ms. Gunson (a road ecologist called by APPEC). The Director submits that Mr. Crowley’s evidence was not new, but rather replicates the Tribunal’s findings of fact in the APPEC decision, at paras. 235-363, and thus was known to APPEC prior to Mr. Crowley’s testimony. The Director submits that if APPEC was not satisfied with Mr. Crowley’s evidence, it should have put Mr. Nagle forward as a witness from the outset of the appeal. The Director submits that APPEC’s delivery of Mr. Nagle’s witness statement is an attempt to split its case. He refers to the rules against case splitting set out in Lockridge v. Ontario (Director, Ministry of Environment), [2013] ONSC 6935, at para. 14. The Director argues that these rules prevent prejudice, unfair surprise, confusion and delay. The Director submits that the tight timeline in renewable energy approval appeals requires parties to prepare and rely on witness statements and documents setting out their evidence and that testimony is limited. He argues that, once a hearing has commenced, neither the schedule nor the identity of witnesses should be changed. The Director submits that the delivery of this reply witness statement is an attempt by APPEC to force an adjournment of the hearing, which he states would be required if the Director and Approval Holder were required to call further witnesses to respond to Mr. Nagle.

79APPEC disagrees. It submits that the Director and Approval Holder have had full notice and will have the opportunity to cross-examine Mr. Nagle. It submits that their witnesses can also respond to him in their oral evidence. It argues that the fact that Mr. Nagle’s evidence responds to a summonsed witness does not alter the need to apply basic procedural fairness and natural justice considerations. APPEC argues that the case law does not distinguish between replying to a summonsed witness and any other witness and that the fundamental issue is that each party must be given a full, fair and complete opportunity to reply to new evidence. It submits that similar evidence introduced in the Ostrander appeal does not make it evidence in this proceeding. Moreover, APPEC argues that Mr. Crowley’s evidence is relevant and was in the Director’s power, control or possession prior to the hearing. It submits that, under the Tribunal’s Rules, the Director should have disclosed this evidence prior to the hearing and not have forced APPEC to summons Mr. Crowley in order to obtain this evidence. It submits that the Director cannot now rely on its contravention of the Tribunal’s Rules in order to prevent that information from becoming evidence or to prevent APPEC from replying to it. It submits that Mr. Nagle’s reply witness statement and testimony are APPEC’s opportunity to reply to this evidence.

80APPEC also submits that Mr. Nagle’s expertise as a biologist is distinct from Ms. Gunson’s and these experts are being called to provide their perspectives, based on their different qualifications and experience. It states that the introduction of Mr. Nagle’s witness statement is not an attempt to bolster evidence or split its case, so long as Mr. Nagle confines himself to replying to the evidence put forward by the other side. In this regard, it submits that Mr. Nagle relies on different reasoning and documentation from Mr. Crowley and Ms. Gunson. APPEC also submits that the Tribunal must ensure that it has the best evidence before it, arguing that it is necessary and in the public interest for the Tribunal to have all the relevant information before it concerning SAR such as Blanding’s Turtle, which, it argues, Mr. Nagle would provide.

81APPEC also submits that the hearing schedule can accommodate Mr. Nagle’s testimony.

82Mr. Hirsch supported APPEC’s position, but made no submissions.

Findings

83The Tribunal found that Mr. Nagle’s reply witness statement is not proper reply. The Tribunal found that in it Mr. Nagle states his agreement with Mr. Crowley’s statements and conclusions and addresses the subject of road mortality, which is the subject of Ms. Gunson’s evidence. As such, Mr. Nagle’s reply witness statement merely bolsters the evidence of APPEC’s other witnesses. Moreover, the Tribunal notes that no authorities were provided justifying a right to reply to a party’s own witness, whether appearing under summons or not.

Richard James

Introduction

84On November 25, 2015, Denton Miller, a noise engineer who works at the MOECC, gave evidence before the Tribunal. During Mr. Miller’s testimony, the Director advised the Tribunal that an acoustic engineering assessment on the Project, prepared by Mr. Miller in January 2015 and referred to in his witness statement, had been disclosed to the parties but, because of an oversight, had not been produced as a document to be relied on at the hearing.

85On December 8, 2015, APPEC filed the reply witness statement of Mr. James, an acoustician, dated December 6, 2015. It purports to reply to Mr. Miller’s testimony on: the acoustic engineering assessment; the impact of forthcoming changes in MOECC noise guidelines for wind projects with respect to the ground attenuation factor used in sound propagation modelling; and the impact on noise modelling for the Project as a result of the Director’s decision to limit the number of wind turbines in the Project to 27. The Director and the Approval Holder opposed the filing of Mr. James’ reply witness statement and requested that he not be permitted to testify in reply.

86On December 8, 2015, the Tribunal heard oral submissions from the parties and ruled that that Mr. James’ reply witness statement could be filed and he would be allowed to testify.

Submissions

87The Approval Holder submits that the acoustic engineering assessment was disclosed to the parties and discussed in Mr. Miller’s witness statement and therefore is not new evidence. Regarding a possible future change in the MOECC’s noise guidelines, the Approval Holder submits that, as this is not the subject matter of the appeal, is not within the Tribunal’s jurisdiction to address and is not justiciable. Moreover, it argues that much of Mr. James’ reply witness statement addresses compliance issues regarding whether noise levels will be over the limits set in the REA, which the Approval Holder asserts is not within the Tribunal’s jurisdiction, as the Tribunal’s jurisdiction is limited to determining whether operating the Project in accordance with the REA will cause the specific harms set out in the EPA. It submits that the proposed reply evidence does not satisfy the requirements set out in the Guelph principles, as it does not reply to new evidence and APPEC had the opportunity to address these matters when initially putting its case forward.

88The Director also supports the Approval Holder’s position. The Director submits that the acoustic engineering assessment was disclosed and, in any event, the reply witness statement focuses on issues that were not addressed in the assessment. He submits that Mr. James’ evidence regarding updating noise modelling to account for 27 rather than 29 wind turbines, could have been addressed in Mr. James’ initial testimony, but was not. The Director also agrees with the Approval Holder that Mr. James’ proposed evidence on forthcoming changes in the MOECC’s noise guidelines is irrelevant.

89APPEC refers to the Guelph principle that a party may not add new issues or evidence in reply that it was aware of or could have reasonably anticipated and addressed in its initial materials. APPEC submits that this principle should not be applied in the context of renewable energy approval appeals, where there is extensive disclosure of documents prior to the hearing and a short time period to produce witness statements. APPEC argues that a party should not benefit from dumping the other parties with documents and then not properly identifying those materials that it will rely on at the hearing, as required under the Tribunal’s Rules. APPEC argues that it should not be prejudiced by the Director’s non-compliance with the Tribunal’s Rules. It submits that the application of this principle also leads to an inefficient use of the Tribunal’s time, because it necessitates lengthy submissions on what constitutes proper reply evidence, which consumes valuable hearing time. Regarding whether the Tribunal may consider proposed future changes to the MOECC’s noise guidelines and whether compliance issues are relevant, APPEC argues that it wishes to make submissions on these issues at the end of the hearing, but will be foreclosed from doing so if evidence on these matters is not permitted at this stage.

90Mr. Hirsch supported APPEC’s position, but made no submissions.

Findings

91The Tribunal found that Mr. James’s reply witness statement is proper reply. The Tribunal found that Mr. James’ proposed evidence addresses the report that was not included with Mr. Miller’s witness statement but was referenced by Mr. Miller in his oral testimony, as well as issues commented on by Mr. Miller in his oral evidence. Thus, the admission of Mr. James’ reply evidence aligns with the principles set out in Guelph. The Tribunal did not, however, determine whether this evidence is relevant or not. The Tribunal noted that the parties can make submissions on the relevance of this and similar evidence in their final submissions and the Tribunal will address their submissions in its final decision.

Shawn Smallwood

Introduction

92On December 4 and 11, 2015, Dr. Kerlinger and, Dr. Strickland, respectively, gave evidence on whether the proposed Project will cause serious and irreversible harm to birds and bats. On December 15, 2015, APPEC delivered a reply witness statement by Dr. Smallwood replying to comments made by Dr. Kerlinger in his testimony on the impacts of wind projects on Golden Eagles, a SAR, and comments on whether displacement due to wind turbines can have significant impacts on birds. He also replied to comments made by Dr. Strickland in his testimony on pre-construction surveys for bats. The Approval Holder and Director agreed that Dr. Smallwood’s proposed evidence on Golden Eagles was proper reply, but that his proposed evidence on bat surveys and bird displacement were not. Oral submissions were heard by the Tribunal on these issues and, on December 15, 2015, the Tribunal ruled that Dr. Smallwood’s reply witness statement could be filed and he would be allowed to testify.

Submissions

93The Approval Holder argues that Dr. Smallwood’s reply materials on bat surveys and bird displacement do not respond to new evidence and that these issues could have been fully addressed in his initial witness statement. The Approval Holder argues that bat surveys are addressed in Dr. Strickland’s witness statement and displacement is fully addressed by Dr. Kerlinger in his. The Director supports the Approval Holder’s position.

94APPEC submits that both Dr. Kerlinger and Dr. Strickland expanded on the issues of bat surveys and bird displacement in their oral testimonies and that it must have the opportunity to reply to the Approval Holder’s expanded focus on these issues.

95Mr. Hirsch supported APPEC’s position, but made no submissions.

Findings

96The Tribunal found that Dr. Smallwood’s reply witness statement is proper reply evidence. The Tribunal found that Dr. Smallwood’s reply evidence addresses issues that were elaborated on by Dr. Kerlinger and Dr. Strickland in their oral testimonies and that the admission of Dr. Smallwood’s evidence aligns with the principles set out in Guelph.

Robert McEwen and Kari Gunson

Introduction

97During his oral testimony on behalf of the Approval Holder on December 4, 2015, Mr. Taylor, an ecological restoration and construction mitigation specialist, testified that he visited the Project site the day before his testimony. He testified concerning the conditions of the roads in the vicinity of the Project, based on what he observed during this visit.

98On December 15, 2015, APPEC delivered reply witness statements of Mr. McEwen, a professional engineer, and Ms. Gunson, a road ecologist, respectively setting out their opinions on the condition of the roads and road reconstruction standards and on the geography of the roads and the natural habitats through which these roads run. The Approval Holder and the Director requested that these witness statements be excluded and that these witnesses not be permitted to give reply evidence. Oral submissions were heard by the Tribunal on these issues and, on December 15, 2015, the Tribunal ruled that Mr. McEwen’s and Ms. Gunson’s proposed reply evidence would not be heard.

Submissions

99The Approval Holder submits that Ms. Gunson’s reply witness statement bolsters and attempts to rehabilitate her previous evidence on the geography surrounding the roads in question. It submits that Ms. Gunson’s reply witness statement does not respond to new issues raised by Mr. Taylor and, in any event, she is not an expert in road construction and is not qualified to give much of the evidence contained in her reply witness statement. Regarding Mr. McEwen’s reply witness statement, the Approval Holder submits that it addresses engineering issues that have not been previously raised by any witness and, had the Approval Holder been given notice that APPEC planned to call engineering evidence, the Approval Holder would have structured its case differently. The Approval Holder argues that it would be unfair if the Tribunal were to allow such evidence at the present stage of proceedings because it would either foreclose the Approval Holder from responding to this evidence or, alternatively require it to ask the Tribunal to adjourn the hearing to allow the Approval Holder to retain experts and produce responding evidence.

100The Director supports the Approval Holder’s position. He refers to Krause to argue that reply evidence must not be allowed if it will result in case splitting, unfair surprise, confusion or prejudice. The Director submits that Ms. Gunson’s reply witness statement attempts to bolster her previous evidence and goes beyond her area of expertise. Regarding Mr. McEwen’s reply witness statement, the Director submits that no engineering evidence has been presented to date and that this represents new evidence. He argues that it is therefore not proper reply.

101APPEC submits that Mr. Taylor’s recent observations are new evidence to which it has the right to reply. APPEC submits that Krause states that evidence will be permitted when it is necessary to ensure that each party has an equal opportunity to respond to the submissions of the other. It also argues that Ms. Gunson’s reply witness statement does not attempt to bolster her earlier evidence. APPEC submits that an opposing party has the right to reply where evidence, such as Ms. Gunson’s, has been misconstrued by another party. APPEC further submits that Mr. Taylor was not qualified to give evidence on road conditions and that, in order for the Tribunal to have the best evidence before it, the Tribunal should hear the evidence of Mr. McEwen who is an engineer with experience assessing such conditions.

102Mr. Hirsch supported APPEC’s position, but made no submissions.

Findings

103The Tribunal found that Ms. Gunson’s reply witness statement is not proper reply evidence. The Tribunal found that the issue of the conditions of the roads in the vicinity of the Project is not new, as it was addressed in detail by Ms. Gunson in her original evidence, to which Mr. Taylor was responding. The Tribunal also found that the proposed reply evidence would not reply to any opinion evidence provided by Mr. Taylor within his area of expertise but would only reinforce and bolster her previous evidence on this issue. The only evidence beyond that in his witness statement adduced by Mr. Taylor arising from his driving through the area shortly before his testimony related to the conditions of certain roads. These conditions were described in other testimony and were also observed by the Tribunal during its site visit with counsel for all the parties at the commencement of the hearing. Based on these findings, the Tribunal concluded that admission of this proposed evidence would not align with the principles set out in Guelph and found that Ms. Gunson’s reply witness statement is not proper reply evidence.

104Regarding the witness statement of Mr. McEwen, the Tribunal found that it would constitute new evidence, which, if admitted, would result in the splitting of APPEC’s case. The Tribunal found that given the late stage of the proceeding, on the last day scheduled for hearing evidence, and the inability of the Approval Holder and Director to respond to the proposed evidence on a timely basis, these parties would be unfairly prejudiced by the admission of this proposed evidence. Based on these findings, the Tribunal concluded that allowing such evidence would not align with the principles in Guelph, and found that Mr. McEwen’s reply witness statement is not proper reply evidence.

Issue 4: Whether the Tribunal Members should recuse themselves from this proceeding

The Appellants’ submissions

105APPEC submits that there exists a reasonable apprehension of bias with respect to each of the Tribunal Members due to prior statements. In addition, it submits that certain rulings made by the Tribunal Members jointly during the course of this proceeding demonstrate bias or an apprehension of bias. The Tribunal will address the submissions with respect to each Member separately for their individual prior statements and will address the submissions for the Members’ joint decisions together.

106APPEC states that the conduct of the Tribunal Members meets the test for reasonable apprehension of bias. It submits that the test is:

… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly (R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 (“R. v. S.(R.D.)”), para. 31).

107With respect to Member Wilkins, APPEC submits that he is the author of an article published in 2012, which contains the following statements:

Ontario’s Green Energy Act is an essential piece of legislation for combating climate change and converting our dirty coal energy generation in Ontario to renewables. At its core, it is about spurring the development of clean energy so that dirty energy supplies can be phased out…

Ontario’s actions in fostering the renewable energy sector in the province is important to the health and well-being of Canadians and are fundamental to ensuring that Ontarians have a clean and healthy environment.

108APPEC argues that these statements and an article co-authored by Member Wilkins in 2007 regarding the environmental risks of nuclear energy “appear to be highly supportive of the Ontario government’s policies and legislation regarding renewable energy.” APPEC argues that it is not appropriate for a person who has expressed such views to adjudicate on a matter in which that legislation must be applied.

109With respect to Member Valiante, APPEC submits that, on July 9, 2014, she “retweeted” a link to information in a “tweet” using Twitter. The entire tweet states:

Ontario’s elimination of coal-fired electricity is North America’s single biggest #climate change initiative; #CoalFreeON; Ontario has stopped burning coal for electricity; Ending coal-fired electricity is the single largest climate change initiative in North America; Closing Ontario’s coal-fired plants = taking 7 million cars off the road.

110APPEC states: “these statements also appear to be highly supportive of the Ontario government’s policies and legislation regarding renewable energy”. APPEC repeats its position that it is not appropriate for a person who has expressed such views to adjudicate on a matter in which that legislation must be applied. In addition, APPEC states that Member Valiante posted the link at a time when she was adjudicating in other renewable energy approval appeals and that those appeals were dismissed. APPEC states: “no one deciding a legal case should be ‘tweeting’ on the same subject matter in the middle of the case.”

111APPEC further submits that the Tribunal Members’ conduct during the course of the hearing affirms they are biased against APPEC. This conduct includes making rulings that did not grant requests or motions brought by APPEC, the scheduling of the hearing, and making certain comments. APPEC submits that this conduct demonstrates that both Tribunal Members have closed minds on the matters under appeal.

112Mr. Hirsch supports APPEC’s motion but made no submissions.

The Approval Holder’s submissions

113The Approval Holder submits that the test for reasonable apprehension of bias is an objective one, requiring that the person viewing the matter be both reasonable and informed and that the apprehension of bias be reasonable.

114The Approval Holder identifies a number of applicable principles. First, the Approval Holder submits, the courts apply a presumption that adjudicators are impartial, which puts the onus on the party asserting reasonable apprehension of bias to establish it with clear and cogent evidence.

115Second, the Approval Holder argues, the Supreme Court of Canada has consistently held that a “mere suspicion” of bias is not sufficient to meet the test; rather, APPEC must demonstrate that there is a real likelihood of bias. According to the Approval Holder, the Supreme Court has held that the duty of impartiality does not mean that a judge does not or cannot bring to the bench many existing sympathies, antipathies or attitudes.

116Third, the Approval Holder submits that the Tribunal Members are expected to have knowledge, understanding and experience in the subject matter areas on which the Tribunal adjudicates. It cites the following comments of the Ontario Superior Court in Large v. Stratford (City) Police Department, 1992 7612 (ON CTGD), [1992] O.J. No. 1185 (“Large”), which were made with respect to members of human rights tribunals, and argues they are analogous to the Tribunal:

Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude anyone who [has] ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy.

117Fourth, the Approval Holder submits that an inquiry into bias is highly fact-specific that requires careful consideration, in light of the entire context.

118Fifth, the Approval Holder argues that, given the seriousness of the allegations, a recusal motion should not be used as a litigation tactic and that costs may be awarded personally against counsel who brings a recusal motion for such ulterior motives.

119The Approval Holder also submits that the past statements of the Tribunal Members do not give rise to a reasonable apprehension of bias. The Approval Holder asserts that the statements made by Member Wilkins and the information tweeted by Member Valiante do not relate to the matters that are in dispute in these appeals. It also notes that Member Wilkins’ writings were made before he was appointed to the Tribunal and were made when he was acting in his capacity as a lawyer. It points out that the tweet by Member Valiante was of a link made when she was also a Professor at the Faculty of Law at the University of Windsor, who focused on Canadian and international environmental law and policy. The Approval Holder submits that her interest in the topic of climate change is not untoward. It submits that no reasonable person would interpret Member Wilkins’ statements or Member Valiante’s tweet as indicating a closed mind on any of the issues in these appeals.

120The Approval Holder further asserts that APPEC had an obligation to bring the motion for recusal in a timely way, but that it did not do so. It notes that Member Wilkins’ statements were published in 2007 and 2012 and the tweet by Member Valiante was made in 2014 and the hearing panel was known to the parties in September 2015. The Approval Holder submits, therefore, that it is not timely for APPEC to bring this motion in the middle of the hearing.

121The Approval Holder submits that the procedural rulings made by the Tribunal Members during the course of the proceeding do not demonstrate a reasonable apprehension of bias. It takes the position that the courts have held that a consistent series of rulings does not give rise to an apprehension of bias. Further, it submits that the list of procedural rulings APPEC tendered in its notice of motion is taken completely out of context and is misleading. It notes in particular that APPEC failed to mention any of the rulings and accommodations that the Tribunal has made in APPEC’s favour. It also submits that the comments identified by APPEC in its motion record are taken out of context and misconstrued.

The Director’s submissions

122The Director submits that APPEC has not met its burden of proving that there are grounds for recusal of the Tribunal Members. The Director notes that there is a strong presumption that the Tribunal Members will act fairly and impartially in the absence of evidence to the contrary, asserting that this is a very high threshold to meet.

123The Director submits that bias denotes a state of mind that is in some way predisposed to a particular result or that is closed to a particular issue, and argues that there is nothing in APPEC’s submissions to prove that the Tribunal Members took any actions or made any decisions with minds that were predisposed to a particular result or closed to the particular issues in this proceeding.

124The Director argues that the statements written by Member Wilkins were made two or more years prior to his appointment to the Tribunal and pertain to Ontario environmental policy broadly, not to the facts, issues or parties in this proceeding. The Director further notes that the content of the tweet by Member Valiante is with respect to the elimination of coal-fired electricity in Ontario, arguing that this is not the same subject matter of this or any other renewable energy approval appeal proceeding.

125The Director submits that a party seeking recusal has an obligation to bring the motion as soon as possible, and that, as the impugned statements were made in 2012 and 2014, APPEC has not done so.

126In addition, the Director submits that the Tribunal benefits from appointments of members with knowledge about environmental matters and states that it would be: “unrealistic and undesirable to expect that Members who have been appointed to the Tribunal because of their environmental expertise should avoid commenting on environmental issues unrelated to the cases that they are adjudicating, for fear of having to recuse themselves.”

127The Director also argues that a pattern of unfavourable decisions in this proceeding or in other cases is not evidence of a closed mind or bias.

128The Director submits that a new hearing at this stage of the proceeding would not be in the best interests of the parties, nor would it be in the interest of justice.

APPEC’s reply submissions

129In reply, APPEC argues that the evidence demonstrates that the Tribunal Members’ minds are closed to any submission that would alter the January 29, 2016 date for delivery of their decision. APPEC submits that the Tribunal’s failure to respond favourably to its evidence and submissions in support of extending that date defeats any presumption that the Tribunal Members are impartial.

130APPEC disagrees with the Approval Holder and the Director that the Tribunal Members have expertise in environmental or health matters.

131APPEC disagrees that the motion could have been brought earlier, because the primary evidence on which it relies only arose during the hearing.

132APPEC argues that the need for a new hearing at this stage of the proceeding is a reasonable request.

Findings

Introduction

133An allegation of reasonable apprehension of bias is extremely serious as it goes to the integrity of decision-making. Impartiality is a fundamental requirement for individual members and for the Tribunal and the administration of justice more generally.

134The parties have set out the test for reasonable apprehension of bias, as well as several important principles applied by the courts. As noted by the parties, the test applied by the Supreme Court of Canada at para 31 of R. v. S.(R.D.) is:

… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that the [decision-maker], whether consciously or unconsciously, would not decide fairly?

135It is also important to repeat the principles that have been applied by the courts in this regard:

1. Tribunal Members have a duty of impartiality. The Supreme Court of Canada in R. v. S. (R.D.) stated, at para. 104 and 105, that impartiality can be described as “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions” and that bias “denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues;”

2. the courts recognize a presumption that adjudicators will be fair and impartial, in accordance with their oath of office;

3. suspicions of bias are not sufficient to meet the test, there must be a “real likelihood” or probability of bias;

4. such allegations should be brought forward as soon as they are known;

5. the inquiry into reasonable apprehension of bias is highly fact-specific and the context and particular circumstances are of supreme importance (Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77); and

6. the person moving for recusal has the onus of establishing reasonable apprehension of bias or actual bias by clear and convincing evidence. As the Supreme Court held in R. v. S. (R.D.) at para. 113, “the threshold for a finding of a real or perceived bias is high.”

136APPEC argues two bases for recusal: (i) prior statements by the Tribunal Members; and (ii) conduct in the course of this proceeding, specifically, interim rulings and comments. These are addressed separately below.

(i) Prior statements by the Tribunal Members

137The impugned statements are those written by Member Wilkins in 2007 and 2012 and the re-tweet by Member Valiante in 2014. APPEC did not bring the motion with respect to these statements in a timely way, but waited until significant time and resources had been expended on the hearing before raising the issue of reasonable apprehension of bias.

a. Whether there is a reasonable apprehension of bias with Member Wilkins

138The statements by Member Wilkins were written at least two years prior to his appointment to the Tribunal and were made in the context of his work as a lawyer. In substance, statements in one article are on the application of Article XX of the General Agreement on Tariffs and Trade to international trade subsidy rules. The article discusses whether the domestic content requirement of the Green Energy and Green Economy Act is compliant with those World Trade Organization (“WTO”) rules. The overall sentiment of the article can be found in statements not excerpted by APPEC, that is, that the WTO should exempt policies that protect human, animal and plant life and health and relate to the conservation of exhaustible natural resources from international trade subsidy rules and that “energy production” should “not threaten human lives and health [or] threaten our climate, biodiversity, ecosystems and lives.” The statements in the second article relate to advertising by the Canadian Nuclear Association on the environmental, health and other impacts of nuclear power. The focus of that article is on a complaint filed by Member Wilkins as lawyer on behalf of several organizations to the federal Competition Bureau regarding communications made by the Canadian Nuclear Association on the benefits of nuclear power. At most, these statements reflect those organizations’ views on broad policy matters. None of the matters addressed in the statements are at issue in this, or any, renewable energy approval appeal that comes before the Tribunal. At no time did Member Wilkins comment on or express an opinion regarding any of the issues or parties in this proceeding.

139It is important to note the courts’ acceptance that, because of their knowledge of and experience with issues and concerns related to the mandates of their tribunals, persons appointed to administrative tribunals are likely to have made statements connected to such issues and concerns in the past, and that this alone does not give rise to a reasonable apprehension of bias. The Tribunal adopts the Ontario Court’s comments in the Large case, cited by the Approval Holder. There, Robert Kerr, the Chair of the Human Rights Tribunal and a law professor, publicly expressed his opinion as to the general undesirability of mandatory retirement while sitting on a case where the issue to be decided was whether mandatory retirement at age 60 was a bona fide occupational requirement for Stratford’s police officers. The court found, at para. 5, that the question on which he had expressed his opinion was “never in issue before him in this case and he was not called upon to decide it.” The court went on to find, at para. 7:

These comments do not violate the well-established principles of administrative neutrality. Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude anyone who [has] ever expressed a view on human rights would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy.

140Similarly, in this proceeding, the prior statements made by Member Wilkins in 2007 and 2012 addressed general environmental policy matters that are not in issue before him and that he is not called on to decide in this or any other renewable energy approval appeals. APPEC provided no evidence, much less clear and convincing evidence, establishing that these statements would lead an informed and reasonable person to conclude that Member Wilkins would not decide the issues in this proceeding fairly.

b. Whether there is a reasonable apprehension of bias with Member Valiante

141The re-tweet by Member Valiante was made in 2014 when she was a Professor of Law at the University of Windsor and a part-time Member of the Tribunal. As an environmental law professor, she would occasionally post links to articles on Twitter which were of potential interest to her students or colleagues at other law schools. The impugned tweet expresses merely factual statements regarding Ontario having stopped burning coal for electricity as a climate change initiative and the impact of this initiative on air quality. Member Valiante provides no comment and expresses no opinion on the substance of those statements. Posting a link on Twitter is not necessarily an endorsement of the item posted or the views expressed therein. Moreover, there is nothing in the statement posted by Member Valiante that relates to any issue that might come before the Tribunal in this, or any, renewable energy approval appeal.

142Similar to its findings above with respect to Member Wilkins, the Tribunal adopts the Ontario Court’s comments in Large and notes that the tweet by Member Valiante related to a general environmental policy matter that is not in issue before her in this proceeding or other renewable energy approval appeals. APPEC provided no evidence, much less clear and convincing evidence, establishing that this statement would lead an informed and reasonable person to conclude that Member Valiante would not decide the issues in this proceeding fairly.

143For these reasons, the Tribunal finds that the impugned statements do not give rise to a reasonable apprehension of bias with respect to either Member.

(ii) Conduct during the course of the hearing

144APPEC also argues that interim rulings and certain comments made jointly by the Tribunal Members demonstrate that they both have closed minds to the issues in this proceeding. To demonstrate that they are biased or that there is a reasonable apprehension of bias, APPEC lists a number of interim rulings in which APPEC’s submissions were not accepted by the Tribunal. One of these rulings relates to a different hearing and for which the Tribunal provided written reasons. Some of the rulings relate to motions brought by APPEC and some relate to APPEC’s requests regarding procedural matters, including, in particular, the scheduling of the hearing. APPEC, in its submissions, does not list any of the rulings made by the Tribunal in APPEC’s favour, of which there have been several. In every case, rulings in APPEC’s favour were made over the vigorous opposition of the other parties. Thus, APPEC’s affidavits and submissions do not accurately describe, and are not a fair representation of, the course of this proceeding.

145In addition, APPEC provides no evidence at all that any of the Tribunal’s rulings demonstrates a closed mind by either Member. All of the rulings identified by APPEC, as well as many others made in the course of the hearing, were made on the basis of submissions from the parties and after careful deliberation by the Members. APPEC provides no evidence at all that any of these rulings was made for any reason other than on the merits.

146Furthermore, the courts have held that a ruling that goes against a party is not evidence of bias. As the Ontario Court of Appeal noted in Clayson-Martin v. Martin, 2015 ONCA 596, at para. 121:

While the wife may disagree with the decision for any number of reasons, in my view, the trial judge’s decision to issue an interim ruling at this time does not demonstrate “bias” as that term is understood in the authorities. The decision goes against the wife, in the sense that the trial judge did not accept her submissions. But clearly that alone does not evidence bias.

147Similarly, courts have consistently held that neither decisions of judges on similar questions in previous cases nor rulings by judges on issues that come up again in the same case are grounds for recusal. As the Alberta Court of Appeal in R. v. A. (J.L.), 2009 ABCA 344, stated, at para. 39:

This court has already dismissed the notion that judicial continuity gives rise to an apprehension of bias or that losing a motion before a judge entitles a litigant to forever be free of that judge, whether in other law suits, later motions in the same suit or motions to rehear or reconsider previous rulings.

148The scheduling of this hearing forms a central part of APPEC’s argument that the Tribunal Members are biased against APPEC and have closed minds, particularly with respect to the issue of a “stop the clock” adjournment. Addressing this argument requires some detailed explanation.

149As noted earlier, the legislative scheme establishing the process for renewable energy approval appeals requires the Tribunal to issue its decision within six months of the filing of the notice of appeal. This statutory deadline places certain constraints and demands on the Tribunal and the parties to these proceedings so that the hearing may occur and the decision may be rendered within the statutory deadline. To accommodate the special expedited nature of these proceedings, the Tribunal modified its Rules to set out a standard “schedule of events” that would be followed in all such proceedings. In most renewable energy approval appeal proceedings, the Tribunal relies on the parties to cooperate in determining the detailed day-by-day schedule of evidence and motions that will fit within the standard schedule of events. As a proceeding progresses, the schedule is often modified to respond to any exigencies as as they arise.

150In this case, the expected start of the hearing was delayed by one month at the request of and with the consent of all parties. The parties agreed to a schedule for the order of witnesses who would testify at the hearing and submitted it to the Tribunal in October, prior to the commencement of the hearing. According to that schedule, the hearing was to commence on November 2, 2015, the parties would call two witnesses per day over 14 hearing days and the hearing would be completed on December 1, 2015.

151As has been discussed, on November 3, 2015, the Tribunal issued the summonses to Mr. Crowley and Ms. Pitt. As a result, the Tribunal agreed to delay the start of APPEC’s environmental case, which was originally scheduled to be heard first, until after it heard the health case. This necessitated the cancellation of hearing dates and the need to add dates beyond those originally scheduled. The Tribunal asked the parties to agree on a new daily schedule of witnesses, but they were unable to do so. After lengthy oral submissions, the Tribunal directed the parties to provide written submissions justifying their proposed schedules. The Approval Holder’s proposed schedule kept the health witnesses in place as was set out in the original schedule; for the environmental witnesses, its proposed schedule reflected the spirit of the original schedule, with two to three witnesses per day, allowing the hearing to end in early December. After having agreed to the framework of the original schedule, APPEC proposed to cast out the entire original schedule and have the time for its witnesses (but not the responding parties’ witnesses) expanded so that the evidence would continue well into January, effectively forcing the Tribunal to grant a “stop the clock” adjournment, something that it had recently determined was not necessary.

152APPEC offers two justifications for its proposed schedule. The first is the view that a full and fair hearing requires that its witnesses have a significant amount of time to present their evidence in chief. The second justification is the convenience of APPEC’s counsel.

153The Tribunal does not consider that either justification merits such a significant adjustment to the schedule, so that a “stop the clock” adjournment becomes inevitable. O. Reg. 359/09 constrains the Tribunal’s ability to grant such adjournments to circumstances where it is of the opinion that to do so is “necessary … to secure a fair and just determination of the proceeding on its merits.” The Tribunal has found the use of “stop the clock” adjournments to be necessary only in exceptional circumstances, where they truly were “necessary” to ensure a fair proceeding, not just convenient for a party or counsel. This is reflected in the fact that over the more than five years of applying this provision, the Tribunal has rarely granted “stop the clock” adjournments.

154With respect to the time for examination in chief, the Tribunal notes that it is not uncommon in renewable energy approval appeal hearings for the Tribunal to hear more than two witnesses per day. Given that there may be objections or procedural issues that arise, it is also necessary in virtually every case to adjust the daily sitting hours as needed to complete the scheduled evidence for the day, so that the hearing proceeds in a way that is fair to all parties and enables the Tribunal to comply with its statutory mandate. One reason this can be accomplished is that the Tribunal requires all witnesses to serve and file detailed witness statements and all of the documents on which they will rely well in advance of the hearing; as a result, examination in chief is used for the purpose of allowing a witness to set out the framework of his or her evidence and to emphasize the most salient aspects of the evidence presented in the witness statement, but not to repeat the written evidence in detail. Thus, it is common practice for the Tribunal in renewable energy approval appeals to limit the time for examination in chief. This practice is well-known to APPEC’s counsel, as he has represented parties in a significant number of these proceedings.

155In this proceeding, given the nature of the evidence to be presented and the requirement to file comprehensive written witness statements, the Tribunal considered the time allocation for examination in chief to be fair and appropriate, and adjusted the time for each witness individually, as needed. Where any witness indicated a desire to elaborate on his or her testimony, the Tribunal allowed this to happen within reasonable limits. APPEC has not identified any aspect of this process that reflects a reasonable apprehension of bias or a closed mind with respect to its needs and interests.

156With respect to the restrictions on daily hearing hours and specific hearing dates repeatedly demanded by APPEC’s counsel, the Tribunal observes that it is necessary to accommodate the different needs of all the parties and their counsel within the schedule. The convenience of one party’s counsel is only one factor that must be considered.

157In Dixon v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 3, with respect to requests for “stop the clock” adjournments in two related hearings in order to accommodate the appellants’ counsel’s schedule, counsel for the appellants argued that he was being forced to conduct a hearing when he was not available, claiming that the six-month timeline is arbitrary and does not comply with natural justice and procedural fairness. In Dixon, the Tribunal refused to grant the adjournments, because: (i) granting the adjournment would result in the Tribunal failing to meet the statutory deadline; and (ii) the Tribunal found that an adjournment was not necessary in order to secure a fair and just determination of the proceeding on its merits. The Tribunal stated, at paras. 65 and 66:

Counsel availability is not a compelling reason to grant a lengthy adjournment of a REA appeal proceeding…The applicable legislation and regulation call for an expedited hearing process and it would be contrary to that legislative direction for the Tribunal to allow parties (whether appellants or respondents) to dictate the timing of the hearing according to their chosen counsel’s calendars.

158On appeals from the Tribunal, the Divisional Court in Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404 (“Dixon”), held, at para. 126:

We conclude that the ERT did not exercise its discretion to deny what it considered would be lengthy adjournments of the St. Columban Wind and K2 Wind proceedings in an unreasonable or non-judicious fashion. The Tribunal was required to exercise its discretion in the context of a regulatory scheme which required the disposition of a hearing within six months of the filing of a notice of appeal, absent the granting of an adjournment. The Tribunal had adopted comprehensive and reasonable Rules governing requests for adjournments. As can be seen from the lengthy extract of the Tribunal’s reasons set out above, the ERT applied those Rules in a considered fashion to the evidence placed before it. The Tribunal reasonably concluded that an adjournment of any significant length should only be granted when necessary to secure a fair and just determination of the issues, and the Tribunal reasonably concluded that, as a general rule, parties contemplating an appeal should choose a legal representative who was available to meet the ERT’s procedural deadlines.

159The Tribunal considers that similar principles apply to its determination about scheduling. In this proceeding, the parties were unable to agree to a new schedule. After hearing more than five hours of argument on the schedule over two days, the Tribunal directed that the hearing would be completed in accordance with a new schedule which the Tribunal provided. In giving this procedural direction, the Tribunal sought to balance the needs and interests of all the parties and the availability of witnesses and counsel, within the tight statutory deadline in which it is given to adjudicate. The Tribunal ensured that each party had a full opportunity to present its case within the confines of that statutory timeframe and made particular efforts to accommodate the APPEC’s concerns and requests. The Tribunal also repeatedly accommodated APPEC’s counsel’s availability in the schedule so that he could attend hearings in other matters, over the strong objections of the other parties.

160As noted in Ostrander, at paras. 81 and 82,

while the determination of the procedure to be followed is a matter within the discretion of the Tribunal, whatever procedure is adopted must provide the necessary degree of procedural fairness. … [There is] a duty on the [Tribunal] to provide all parties with the opportunity to present their case fully and fairly.

161In addition, where, based on s. 59 (2) of O. Reg. 359/09, in the opinion of the Tribunal an adjournment is necessary to secure a fair and just determination of the proceeding on its merits, the six-month statutory deadline may be extended. The Tribunal has an obligation to make best efforts to meet the statutory deadline, while ensuring fairness to each party. The Tribunal finds that, in this case, that obligation has been met. APPEC provides no evidence showing that the final schedule adopted denied it an opportunity to present its case fully and fairly or indicating that the Tribunal Members had a closed mind to APPEC’s needs and interests in their approach to determining the scheduling of the hearing. The record demonstrates that the Tribunal, after spending a significant amount of hearing time hearing the arguments of the parties with respect to scheduling, did address APPEC’s needs and interests and did make reasonable efforts to accommodate its counsel.

162APPEC encouraged the Tribunal to issue a “stop the clock” adjournment of the proceeding to accommodate its counsel’s preferred schedule, but did not bring a further motion for adjournment. As a result, the Tribunal made no further ruling on whether a “stop the clock” adjournment of the proceeding at that point was necessary to secure a fair and just determination of the proceeding on its merits.

163The comments, which APPEC asserts indicate that the Members each had a closed mind, are taken out of context and do not reflect, in any fair way, a pattern of conduct of the Tribunal in this proceeding to suggest a reasonable apprehension of bias against APPEC. Despite APPEC’s allegations, a fair reading of the full transcript of the hearing would show that the Members carefully and diligently read each of the witness statements that were filed with the Tribunal before the hearing and responded to counsel throughout the hearing in a fair, respectful and balanced manner.

164For these reasons, the Tribunal finds that APPEC has provided no evidence, much less clear and convincing evidence, establishing that an informed and reasonable person would conclude that, due to the conduct of the Tribunal Members in this proceeding, they would not decide fairly.

Conclusion on Issue 4

165The Tribunal finds that there is no evidence to support a finding of reasonable apprehension of bias with respect to either or both Members. Based on the considerations outlined above, the Tribunal finds that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that it is more likely than not that either Member Wilkins or Member Valiante would not decide fairly.

166The Tribunal makes no findings at this time with respect to the issue of costs. Should a party choose to pursue costs for this motion, the Tribunal will revisit that question at the conclusion of the overall proceeding.

ORDER

167The Tribunal dismisses the motion for disclosure.

168The Tribunal grants the requests for summonses to Joe Crowley and Kathleen Pitt of the MNRF.

169The Tribunal dismisses the motion for an adjournment.

170The Tribunal grants the motions and requests to exclude reply witness statements in part.

171The Tribunal dismisses the motion for recusal with respect to Member Wilkins.

172The Tribunal dismisses the motion for recusal with respect to Member Valiante.

Motion for Disclosure Dismissed

Requests for Summonses Granted

Motion for Adjournment Dismissed

Motions to Exclude Reply Witness Statements Granted in Part

Motion for Recusal Dismissed

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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Environmental Review Tribunal

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