Hirsch v. Ontario (Environment and Climate Change), 2017 CanLII 11498

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: March 02, 2017

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: In writing

APPEARANCES:

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

ORDER DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS

REASONS

1This order provides reasons for orders issued by the Environmental Review Tribunal (“Tribunal”) on December 13, 2016 and December 23, 2016 with respect to motions brought by the Alliance to Protect Prince Edward County (“APPEC”). This proceeding involves appeals by APPEC and John Hirsch (collectively, “Appellants”) of Renewable Energy Approval No. 2344-9R6RWR (“REA”) issued by Mohsen Keyvani, Director, Ministry of the Environment and Climate Change (“MOECC”) to wpd White Pines Wind Incorporated (“Approval Holder”), which authorized the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of 27 wind turbines, two transformer substations, underground electrical cabling, distribution lines and associated infrastructure (“Project”), located in Prince Edward County.

2In an order dated February 26, 2016, the Tribunal found that, pursuant to s. 145.2.1(2) of the Environmental Protection Act (“EPA”), engaging in the Project in accordance with the REA will cause serious and irreversible harm to plant life, animal life or the natural environment. At that time, the Tribunal adjourned the proceeding in accordance with s. 59(2)1.ii of Ontario Regulation 359/09 respecting Renewable Energy Approvals. The remaining issue in the proceeding is for the Tribunal, under s. 145.2.1(4) of the EPA, to determine whether to revoke the decision of the Director, direct the Director to take such action as the Tribunal considers the Director should take in accordance with the EPA and its regulations, or alter the decision of the Director. This is referred to as the “remedy phase” of the proceeding.

3By order dated June 30, 2016, the Tribunal determined that the parties would be permitted to adduce additional evidence in the remedy phase and that the evidence and submissions would be limited to specified issues. The Director’s and Approval Holder’s witness statements were filed on July 22, 2016. In response to a motion brought by APPEC, in an order dated August 24, 2016, the Tribunal ruled that all evidence for the remedy phase would be received in writing. The Tribunal also directed that the procedural steps with respect to the remaining witness statements, reply witness statements and transcripts of cross-examinations were to be completed by September 30, 2016.

4On November 14, 2016, the Tribunal issued an order granting in part certain motions brought by APPEC respecting aspects of the evidence. APPEC then indicated it intended to bring further motions. On November 23, 2016, the Tribunal directed that all further motions were to be filed by November 25, 2016, with responses to be filed by November 29, 2016 and reply by November 30, 2016.

The December 13 Order

5In the November 14, 2016 order, the Tribunal ordered that APPEC have an opportunity to produce the documents contained in Exhibits F, G, and H of the affidavit of Sarah Quildon, sworn September 29, 2016, through a properly qualified affiant. In response to this order, on November 21, 2016, APPEC filed the affidavit of Tom Adams, attaching several documents. On November 25, 2016, APPEC brought a motion seeking an order qualifying Mr. Adams as an “energy consultant and research fellow”. The Tribunal granted this motion in part in its order issued December 13, 2016.

6In the November 14, 2016 order, the Tribunal further ordered APPEC to provide an article authored by its witness, Dr. Brock Fenton, and published in 1969 in the Canadian Journal of Zoology to the other parties and permitted them an opportunity to cross-examine him on this article. On November 25, 2016, APPEC brought a motion seeking an order to admit new evidence, specifically, two documents attached to an incomplete and unsworn additional affidavit of Dr. Fenton. APPEC filed an amended and sworn affidavit of Dr. Fenton on November 30, 2016. The Tribunal granted this motion in part in its order issued December 13, 2016.

7On December 5, 2016, APPEC brought a motion seeking an order to admit new evidence, specifically, documents attached as Exhibits E, F and G to Mr. Adams’ affidavit. The Tribunal granted this motion in part in its order issued December 13, 2016.

The December 23 Order

8In the November 14, 2016 order, the Tribunal ordered the Approval Holder to provide copies of two studies, referred to in the affidavit of its witness, Dr. Scott Reynolds, and ordered that the Appellants would have an opportunity to cross-examine Dr. Reynolds about these studies as well as “with respect to documents referred to in his evidence that were produced by the Approval Holder after the date of his initial cross-examination…” On November 28, 2016, counsel for APPEC cross-examined Dr. Reynolds. On December 16, 2016, APPEC filed a motion seeking an order directing that the continuation of the cross-examination of Dr. Reynolds take place before the Tribunal or, in the alternative, an order directing counsel for the Approval Holder to refrain from all further objections to questions during Dr. Reynolds’ cross-examination. The Tribunal dismissed this motion in its order issued December 23, 2016.

9These are the reasons for the December 13 and 23, 2016 orders.

Issues

10The issues are:

1. Whether Mr. Adams should be qualified as an “energy consultant and research fellow”;
2. Whether documents related to the evidence of Dr. Fenton should be admitted into evidence;
3. Whether Exhibits E, F, and G attached to the affidavit of Mr. Adams should be admitted into evidence; and
4. Whether the continuation of the cross-examination of Dr. Reynolds should take place before the Tribunal or, in the alternative, whether counsel for the Approval Holder should be ordered to refrain from all further objections to questions during Dr. Reynolds’ cross-examination.

Relevant Rules

11The relevant provisions of the Tribunal’s Rules of Practice (“Rules”) are as follows:

New Evidence

233. Once the Hearing has ended but before the decision is rendered, a Party may make a motion to admit new evidence.

234. The Tribunal shall not admit new evidence unless it decides that the evidence is material to the issues, the evidence is credible and could affect the result of the Hearing and either the evidence was not in existence at the time of the Hearing or, for reasons beyond the Party’s control, the evidence was not obtainable at the time of the Hearing.

Issue 1: Whether Mr. Adams should be qualified as an “energy consultant and research fellow”

The Parties’ Submissions

12APPEC requests that Mr. Adams be qualified to give opinion evidence as an “energy consultant and research fellow”. APPEC submits that Mr. Adams has professional experience as a consultant “focused on energy consumer concerns”, including work for several environmental organizations, service on the Independent Electricity System Operator (“IESO”) Board of Directors, presentations before committees and regulatory tribunals, and regular media commentary.

13The Director does not object to the proposed wording of the qualification, subject to reserving the right to make submissions as to the weight to be given to Mr. Adams’ evidence. The Director submits, however, that the additional evidence provided by Mr. Adams goes beyond the Tribunal’s November 14, 2016 order.

14The Approval Holder submits that the proposed qualification is extremely vague and lacks any professional or other expertise. Further, the Approval Holder submits, Mr. Adams’ background and qualifications do not qualify him to provide an opinion with respect to the documents in Exhibits F, G and H attached to the affidavit of Ms. Quildon.

Analysis and Findings

15APPEC has put Mr. Adams forward as a witness to proffer an opinion on the need for the Project, in light of the Ontario government’s recent policy announcements about the future of its Large Renewable Procurement (“LRP”) process. The parties have not fully argued the question of the relevance of this evidence to the decision that the Tribunal must make under s. 145.2.1(4) of the EPA. Thus, the Tribunal has not yet determined whether that issue is relevant. Nevertheless, the Tribunal ruled in its June 30, 2016 order that the parties should have an opportunity to make submissions with respect to how specific principles and policies the parties consider relevant apply to the disposition of this proceeding. As a result of this ruling the Tribunal permits APPEC an opportunity to make that argument fully, and the other parties an opportunity to respond fully. To be able to make that argument, evidence respecting the particular government policy APPEC considers relevant must be before the Tribunal.

16Under the Tribunal’s Practice Direction for Technical and Opinion Evidence, the Tribunal may qualify a person who has “specialized education, training or experience”. According to his curriculum vitae, Mr. Adams has work experience on issues related to electricity rates and supply in Ontario, among other energy regulatory issues. Mr. Adams is of course not qualified to speak to the intentions of the Ontario government in adopting its policy; however, the Tribunal accepts that, through his role as a consultant and commentator, Mr. Adams has developed experience and that he should be permitted to provide an opinion about the implications of the government’s policy change for the Project. The term “research fellow” appears to be Mr. Adams’ current job title and does not add to the character of his experience. The Tribunal qualifies Mr. Adams as an “energy consultant”.

Issue 2: Whether documents related to the evidence of Dr. Fenton should be admitted into evidence

The Parties’ Submissions

17APPEC seeks an order admitting two documents into evidence: Chapter 3 of the report by the Environmental Commissioner of Ontario, entitled “Small Steps Forward: Ontario Environmental Protection Report 2015/2016 – Volume Two: Biodiversity Under Pressure: Wildlife Declines in Ontario,” dated October 2016 (“ECO report”); and “Correspondence” from P. R. Lintott, et al., entitled “Ecological Impact Assessments Fail to Reduce Risk of Bat Casualties at Wind Farms,” published in the journal Current Biology on November 7, 2016 (“Lintott, et al.”). APPEC submits that these documents meet the test for new evidence in Rule 234.

18The Director submits that the documents do not meet the test for admission under Rule 234. The Director submits that the ECO report chapter addresses the issue of threats to Little Brown Myotis due to white nose syndrome and makes only one reference to mortality to bats from collisions with wind turbines. The Director argues that the Tribunal heard evidence from expert witnesses on the issue of collision mortality, which the Tribunal relied on in reaching its findings under s. 145.2.1(2) of the EPA. The Director submits that the ECO report chapter does not touch on potential mitigation measures that could respond to concerns of collision mortality and, therefore, it is immaterial to the remaining issues before the Tribunal and could not affect the result of the remedy hearing.

19With respect to Lintott, et al., the Director submits that the document only comments on the effectiveness of environmental impact assessments in predicting the likelihood of bat casualties at European wind farm projects, concluding that such assessments can underestimate the likelihood of bat activity, without considering mitigation measures for reducing bat mortality, which is the issue currently before the Tribunal. The Director argues that this document is therefore immaterial to the issues currently before the Tribunal and could not affect the result of the remedy hearing.

20The Approval Holder submits that Rule 234 applies and that the Tribunal has stated that the purpose of the test is “to maintain the integrity of the hearing and prevent abuse of the Tribunal’s processes,” citing Bovaird v. Director, Ministry of the Environment, [2013] O.E.R.T.D. No. 75 (“Bovaird”), at para. 14. In addition, the Approval Holder argues, the Tribunal has applied stringent standards on such motions and excludes new evidence when it amounts to no more than evidence of “risks and uncertainties”. According to the Approval Holder, these documents do nothing but introduce “risks and uncertainties”, are not referred to in Dr. Fenton’s evidence (as it stood when the Approval Holder made its submissions), and are an attempt by APPEC to re-litigate the Tribunal’s findings in its February 26, 2016 order. The Approval Holder submits further that these documents are not material to the issues before the Tribunal in the remedy phase of the proceeding as set out in the Tribunal’s June 30, 2016 order, in that they do not address the effectiveness of the proposed mitigation measures, alternative remedies or applicable policies.

Analysis and Findings

21In August 2016, the Tribunal directed that the evidence for the remedy phase was to be completed by September 30, 2016, followed by final submissions. In similar circumstances in other proceedings, that is, where the hearing of evidence has been completed but the decision has not been issued, the Tribunal has relied on Rules 233 and 234, including when motions for the admission of new evidence have come forward after the scheduled hearing of evidence has ended but before final submissions have concluded (see, for example, Bovaird, at paras. 9 and 10, and Association for the Protection of Amherst Island v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 36, at para. 9). The purpose of these rules is to ensure that parties make their best efforts to put forward their full case at one time, to ensure fairness to the other parties in responding with their evidence and with cross-examination and so that the integrity of the hearing process may be maintained and the hearing may proceed in an orderly and timely manner. Multiple motions for new evidence after this time will, if granted, necessitate multiple extensions of the hearing in order to permit the other parties to challenge the new evidence and possibly provide responding evidence, which in turn necessitates an opportunity to challenge. Thus, Rule 234 provides that only evidence that could not have been adduced earlier is material and credible, and could affect the result of the hearing will be admitted after the time allotted for the presentation of a party’s complete case.

22The Lintott et al. correspondence was only published on November 7, 2016. It was not obtainable when Dr. Fenton’s original witness statement was filed. It does advance some commentary on the link between pre-construction environmental impact assessments and post-construction bat activity, with some limited reference to mitigation; thus, the Tribunal finds that it could be material to the remedy phase and could affect the result of the hearing. The parties made no submissions as to the credibility of the document. Given that this document was not obtainable when Dr. Fenton’s original witness statement was filed and it could be material to the remedy phase and could affect the result of the hearing, and finding no grounds to question the credibility of the authors of the document, the Tribunal grants the motion to admit this evidence. The Tribunal makes no findings at this time as to its weight.

23The ECO report chapter addresses white nose syndrome, the impact of white nose syndrome on certain bat species in Ontario, and the Ontario government’s response plan for ensuring recovery of bat species at risk. The only reference to wind turbines is a short reference to them as an example of a threat that puts “additional pressure on bat populations”. In its February 26, 2016 order, the Tribunal found that the Project will cause serious and irreversible harm to plant life, animal life or the natural environment in part because of evidence of the likely impact of the Project on Little Brown Myotis. The issues the Tribunal will consider in the remedy phase include the effectiveness of the Approval Holder’s proposed mitigation measures. The ECO report chapter does not address this issue or any other issue material to the remedy phase. Thus, the Tribunal refuses the motion to admit this evidence.

24APPEC did not comply with the deadline for the provision of its motion record, serving and filing solely the two documents that it proposed as new evidence and an incomplete and unsworn affidavit for Dr. Fenton by the deadline. APPEC did not provide Dr. Fenton’s completed affidavit until November 30, 2016, after the responding parties had already filed their responses to the motion. At that point, APPEC’s counsel requested accommodation for the filing of further materials due to circumstances that made it difficult for his office to complete this work. The Tribunal accommodated APPEC’s counsel by permitting the responding parties an opportunity to file additional responses and by extending the deadline for filing of reply to December 5, 2016. The day after APPEC filed its reply, on December 6, 2016, APPEC attempted to file an amended reply. APPEC’s amended reply is not proper reply and has been disregarded by the Tribunal.

Issue 3: Whether Exhibits E, F, and G attached to the affidavit of Mr. Adams should be admitted into evidence

The Parties’ Submissions

25APPEC submits that the following documents attached to Mr. Adams’ affidavit meet the test for new evidence in Rule 234:

• a report entitled “Ontario Planning Outlook: A technical report on the electricity system prepared by the IESO”, dated September 1, 2016 (“IESO report”);
• a Canadian Press article dated November 19, 2016 and entitled “Ontario Premier Kathleen Wynne takes responsibility for high electricity prices, calling them a mistake”; and
• a Fraser Institute report authored by Ross McKitrick and Mr. Adams dated October 2014 and entitled “What Goes Up… Ontario’s Soaring Electricity Prices and How to Get Them Down” (“McKitrick and Adams report”).

26APPEC submits that the issues considered in these documents, the future of the LRP process and electricity prices, only became relevant when Mr. Adams was put forward as a witness. APPEC argues that the issues in the documents flow from announcements that could not reasonably have been anticipated at the time it was expected to file its evidence. It argues that the documents were written by credible authors, are material as they relate to issues to be considered in the MOECC’s Statement of Environmental Values (“SEV”), and could affect the result of the hearing as they are relevant in the Tribunal’s consideration under the SEV of the economic impacts of the Project.

27The Director submits that Rule 234 applies in this circumstance and that the test for admission of new evidence is onerous, in that not only must the evidence be “new”, but it also must “have such significant probative value that it could affect the result of the hearing.” The Director argues that the McKitrick and Adams report is not new, having been published more than two years ago, and that neither it nor the article referring to the Premier’s statement are relevant to issues before the Tribunal. In addition, the Director disagrees with APPEC that the issues in the documents became relevant when Mr. Adams was put forward as a witness, arguing that relevance is determined by reference to the subject matter of the proceeding; thus, APPEC’s choice of a witness cannot make an issue relevant.

28Finally, the Director submits that APPEC’s course of conduct in filing motions after the deadline established by the Tribunal is unreasonable and interferes with the Tribunal’s ability to secure the just, most expeditious and cost-effective determination of this proceeding.

29The Approval Holder submits that APPEC’s motion was filed late and should be disregarded. It also argues the new evidence that APPEC wishes to have admitted is irrelevant to the remedy hearing as it is focuses on economic issues and does not address the proposed remedies. The Approval Holder further argues that APPEC is attempting to re-argue the merits hearing on economic grounds and, like the Director, argues that the McKitrick and Adams report was published two years earlier and is not new evidence.

Analysis and Findings

30The three documents attached to the Quildon affidavit relate to the recent policy announcement by the Ontario government regarding the future of the LRP. They are: a news release from the Ontario Ministry of Energy dated September 27, 2016 entitled “Ontario Suspends Large Renewable Energy Procurement,” a letter from the Minister of Energy to the President and Chief Executive Officer of the IESO regarding “Large Renewable Procurement (LRP) II and Energy from Waste Standard Offer Program (EFWSOP)”, and an excerpt from the IESO report. In its earlier motion, APPEC argued that these documents are relevant to an argument it intended to make in its final submissions regarding applicable policies that affect the appropriate remedy. In its November 14, 2016 order, the Tribunal found that these documents “may be relevant to the issues that the Tribunal must determine” and ruled that, because the documents had been released after the final date for the filing of evidence relevant to the remedy phase, APPEC should have an opportunity to adduce these documents.

31However, attached to Mr. Adams’ affidavit were additional documents. One is the complete IESO report from which the excerpt included with the Quildon affidavit was taken. As such, the Tribunal accepts that this report is covered by its November 14, 2016 order and it is admitted into evidence. Neither of the other documents was addressed in the November 14, 2016 order.

32In the circumstances of this proceeding, it is clear that the McKitrick and Adams report was in existence in 2014 and was obtainable at the time of the hearing. In its order dated June 30, 2016, the Tribunal ruled on the issues it would consider in the remedy phase, thus identifying the scope of the issues to be considered by the Tribunal and providing the scope for what evidence would be relevant for this phase of the proceeding. This included evidence related to the policies each party intended to raise and argue as material to the Tribunal’s determination of the remedy phase. As the McKitrick and Adams report makes clear, the issue of electricity prices is not a new concern. The fact that the Premier expressed a view on household electricity prices in the November 2016 article does not make it a new concern. Unlike the documents regarding the LRP, neither document evidences a change in policy that might affect the Project. Thus, to the extent that the issue may be material to this proceeding, APPEC was in a position to raise the issue at the time it was expected to complete its evidence. The Tribunal finds, therefore, that these documents do not meet the test for admission of new evidence under Rule 234.

Issue 4: Whether the continuation of the cross-examination of Dr. Reynolds should take place before the Tribunal or, in the alternative, whether counsel for the Approval Holder should be ordered to refrain from all further objections to questions during Dr. Reynolds’ cross-examination

The Parties’ Submissions

33APPEC submits that the conduct of the Approval Holder’s counsel during the cross-examination of Dr. Reynolds on November 28, 2016 rendered his cross-examination futile. APPEC asks that Dr. Reynolds’ cross-examination be continued before the Tribunal or, in the alternative, that the Tribunal direct the Approval Holder’s counsel to refrain from all further objections.

34APPEC asserts that the Approval Holder’s counsel refused proper questions prior to the commencement of the cross-examination and proper questions put to Dr. Reynolds during the cross-examination, and interrupted the questioning by APPEC’s counsel. APPEC argues that the Approval Holder’s counsel provided no basis for refusals or interruptions and asserts that the questions were directly relevant to the documents on which the Tribunal permitted cross-examination “and/or the credibility of” Dr. Reynolds.

35APPEC submits that the transcript of Dr. Reynolds’ cross-examination was not available until December 6, 2016 and that for various reasons, counsel was not available to prepare its motion until December 15, 2016.

36The Approval Holder submits that the Tribunal’s November 14, 2016 order limited the scope of the continued cross-examination of Dr. Reynolds. It asserts that APPEC falsely alleges that the Approval Holder’s counsel refused questions in advance of the cross-examination and states that the Approval Holder’s counsel invited APPEC’s counsel to identify the documents he intended to put to the witness and identify their connection to the limited scope of the continued cross-examination of Dr. Reynolds. The Approval Holder submits that its counsel did provide a basis for refusing the questions that were refused. The Approval Holder argues that its counsel acted properly and repeatedly invited APPEC’s counsel to put relevant questions to the witness, yet APPEC’s counsel refused to do so.

37The Approval Holder argues that there is no basis for the relief sought by APPEC. It asserts that an order directing cross-examination of Dr. Reynolds before the Tribunal would require the Tribunal to revisit its previous ruling that the remedy phase hearing would be in writing and would cause an unnecessary expenditure of the parties’ and the Tribunal’s resources and delay the determination of the proceeding. The Approval Holder submits that there is no precedent for the alternative relief sought, and APPEC cites no authority. It argues that directing counsel to refrain from making objections during cross-examination would undermine “the very tenets of legal representation in adversarial proceedings,” and “based on the conduct to date it is a guarantee of abuse…”

38The Approval Holder further submits that APPEC delayed three weeks in bringing this motion, without adequate explanation. Contrary to APPEC’s assertion, the Approval Holder submits that the transcript was provided to the parties and the Tribunal on November 30, 2016 and the motion was not filed until after close of business on December 16, 2016. The Approval Holder argues that the reasons given for the delay by APPEC’s counsel do not explain why he was able to conduct other business over this period but not bring this motion until the eve of the winter holidays.

39The Director supports the position of the Approval Holder, arguing that the Tribunal granted APPEC an opportunity to conduct limited further cross-examination of Dr. Reynolds and that APPEC’s counsel did not ask any substantive questions within the scope permitted by the Tribunal in its November 14, 2016 order.

Analysis and Findings

40The Tribunal agrees with the Director and the Approval Holder that the cross-examination of Dr. Reynolds on November 28, 2016 was limited in scope. Dr. Reynolds was first cross-examined by counsel for APPEC on September 29, 2016. In its order of November 14, 2016, the Tribunal permitted further cross-examination of Dr. Reynolds with respect to certain documents relied on by Dr. Reynolds that had not been provided to APPEC prior to this initial cross-examination. The purpose of permitting further cross-examination was fairness, that is, to ensure that APPEC had an opportunity to question Dr. Reynolds about documents which it had previously not had an opportunity to review and ask questions on. All other materials were available to APPEC in advance of Dr. Reynolds’ cross-examination in September; thus, it appears that APPEC had a full opportunity at that time to cross-examine him about his affidavit, his reply affidavit, these other materials and any other relevant matters.

41The Tribunal has reviewed the transcript of the November 28, 2016 cross-examination of Dr. Reynolds. The Tribunal finds that there is insufficient evidence to demonstrate that counsel for the Approval Holder acted improperly. Contrary to APPEC’s assertions, the Approval Holder’s counsel did not refuse questions at the outset of the cross-examination and did provide a basis for his objections to certain questions. These objections were largely in response to questions that raised an issue of privilege with respect to the preparation of Dr. Reynolds’ affidavit. On this issue, the Tribunal, in its November 14, 2016 order, had already ruled that litigation privilege applies. The Approval Holder’s counsel also objected to questions outside of the scope of the cross-examination permitted under the November 14, 2016 order. However, he repeatedly invited APPEC’s counsel to ask questions of Dr. Reynolds within the scope of the November 14, 2016 order. APPEC sets out no legal or factual grounds on which the Tribunal could base what would be an extraordinary order prohibiting legal counsel from raising further objections during a cross-examination of its witness.

42The Tribunal ruled in its August 24, 2016 order that the evidence in the remedy phase would be in writing. The Tribunal’s reasons for doing so were that it considered this approach to be appropriate and fair in the circumstances, to ensure reasonable time for evidence-in-chief and cross-examination, and to provide the Tribunal with the best evidence. APPEC has provided insufficient evidence and argument as to why the cross-examination of Dr. Reynolds should now take place before the Tribunal. With respect to refusals, APPEC has not identified specific questions it considers to be proper that were refused, nor has it provided any argument rebutting the Approval Holder’s grounds for refusing specific questions. As a result, the Tribunal dismisses the motion.

ORDER

43The Tribunal orders:

a. APPEC’s November 25, 2016 motion for an order qualifying Mr. Adams is granted in part and Mr. Adams is qualified as an “energy consultant” for the purpose of providing evidence in accordance with the Tribunal’s Practice Direction for Technical and Opinion Evidence;

b. APPEC’s November 25, 2016 motion for an order to admit new evidence is granted in part, and the document attached as Exhibit “B” to Dr. Brock Fenton’s affidavit and titled “Ecological Impact Assessments Fail to Reduce Risk of Bat Casualties at Wind Farms” is admitted into evidence. The remainder of the November 25, 2016 motion to admit new evidence is dismissed. The Approval Holder and the Director were granted an opportunity to cross-examine Dr. Fenton on this document, to be completed within five days of the release of the December 13, 2016 order;

c. APPEC’s December 5, 2016 motion for an order to admit new evidence is granted in part, and the document attached as Exhibit “E” to Mr. Adams’ affidavit and titled “Ontario Planning Outlook: A technical report on the electricity system prepared by the IESO” is admitted into evidence. The remainder of the December 5, 2016 motion to admit new evidence is dismissed. The Approval Holder and the Director were granted an opportunity to cross-examine Mr. Adams on this document, to be completed within five days of the release of the December 13, 2016 order; and

d. APPEC’s December 16, 2016 motion for an order directing that the continuation of the cross-examination of Dr. Reynolds take place before the Tribunal or, in the alternative, an order directing counsel for the Approval Holder to refrain from all further objections to questions during Dr. Reynolds’ cross-examination is dismissed.

Motions Granted in Part

“Marcia Valiante”

MARCIA VALIANTE

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

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Environmental Review Tribunal

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