Court File and Parties

CITATION: Hanna v. Attorney General for Ontario, 2010 ONSC 4058

COURT FILE NO.: 491/09

DATE: 20100719

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Ian Hanna (Applicant/Responding Party)

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Attorney General for Ontario (Respondent/Moving Party)

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Canadian Wind Energy Association (Intervenor)

BEFORE: Justice Swinton

COUNSEL: Eric Gillespie for the Applicant/Responding Party Sara Blake for the Respondent/Moving Party John Terry for the Intervenor

HEARD at Toronto: July 15, 2010

ENDORSEMENT

Swinton J.:

[1] The Attorney General for Ontario brings this motion seeking to strike the affidavit and supplementary affidavit of Dr. Robert McMurtry, submitted by the applicant Ian Hanna as the evidence in support of his application for judicial review.

[2] Essentially, the applicant argues that ss. 35, 53, 54 and 55 of O. Reg. 359/09, made under the Environmental Protection Act, R.S.O. 1990, c. E.19, are invalid. The provisions prescribe setbacks for wind energy facilities and require that they meet Ministry of the Environment (“MOE”) Noise Guidelines for Wind Farms. The regulation came into effect on October 1, 2009, following a period of public consultation ending July 24, 2009.

[3] In the application, the applicant will argue that the regulation was not properly adopted. Section 11 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 requires the Minister of the Environment to “take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry”.

[4] In the Statement of Environmental Values (“SEV”), the Ministry sets out principles it will apply in developing Acts, regulations and policies. Ten bullets follow, one of which is “The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment”.

[5] The applicant will argue that the provisions under challenge do not comply with the precautionary principle. The affidavits in support of his position set out concerns about the adverse health effects of wind turbines and the uncertainty surrounding this issue. They are meant to show the government’s lack of compliance with the precautionary principle, as established in the SEV and in international law and the common law.

[6] The respondent argues that the affidavits are irrelevant and inadmissible in a challenge to the validity of a regulation; they contain material that post-dates the public consultation process; Dr. McMurtry is not qualified to give expert evidence; and the affidavits contain hearsay evidence.

[7] Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits (876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 12196 (ON SC), 37 O.R. (3d) 70 (Gen. Div.) at p. 7 (Quicklaw version); Elementary Teachers’ Federation of Ontario v. Ontario (Minister of Labour), [2008] O.J. No. 662 (Div. Ct.) at paras. 22-23).

[8] The respondent argues that it is clear that the evidence deals with the policy choices made by the Lieutenant Governor in Council in adopting the regulation, and it is therefore irrelevant (Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), 2002 41606 (ON CA), 211 D.L.R. (4th) 741 (Ont. C.A.) at paras. 49 and 53). A court cannot re-weigh scientific studies and literature that call into question the policy choices made by government in adopting legislation.

[9] While I accept this general proposition, I note that the applicant here is seeking to show that the process leading to the adoption of the provisions of the regulation was flawed because of the failure to make reasonable efforts to comply with the precautionary principle. I am not prepared, as a motions judge, to say that the material filed about health effects is clearly irrelevant. The panel hearing the merits of the application will be better suited to determine that question. As well, the panel should determine the admissibility and weight to give to the hearsay evidence in the affidavits.

[10] Similarly, the issue of the effect of s. 118 of the EBR is best left to the panel, as it raises a novel and important point of statutory interpretation.

[11] I also decline to determine Dr. McMurtry’s qualification to give expert evidence. Whether he is qualified to give opinion evidence and whether he lacks impartiality are questions best determined after the cross-examinations, which have yet to be held.

[12] In one respect, I agree with the respondent’s submission that some of the material in the affidavits is irrelevant and should be struck. Dr. McMurtry includes reference to studies and information acquired by him that post-dates the adoption of the regulation. The respondent submits that the only material that could possibly be relevant is material available during the public consultation process.

[13] Scientific material published after the public consultation period but available prior to the adoption of the regulation is arguably relevant, as it could have informed the regulatory decision. However, there can be no merit to an argument that the Minster failed to make reasonable efforts to comply with the SEV principles when adopting the regulation because of the failure to consider studies that post-date adoption.

[14] The applicant argued that the precautionary principle is part of international law and common law, and therefore, the government has a continuing obligation to assess the compliance of the regulation with the precautionary principle in light of emerging scientific evidence. However, the case on which he relies, 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, does not stand for the proposition that legislation can be struck down as invalid because of non-compliance with the precautionary principle. Rather the Supreme Court stated that principles of international law, both customary and conventional, form part of the legal context within which legislation is enacted and can assist in statutory interpretation (at paras. 30-31). The Court does not say that such a principle can override a validly adopted law or regulation. Indeed, international treaties and conventions are not part of Canadian law unless they have been implemented by statute (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 69).

[15] Therefore, I order that any references in the affidavits to studies that post-date September 30, 2009 be struck.

[16] Given my decision, counsel for the respondent has indicated that the respondent will file further responding material pertaining to the studies and literature relied upon. As cross-examinations have yet to be held, she asked that the September 30, 2010 hearing date be vacated.

[17] Depending on what is produced, the intervenor indicated that it might seek to revisit the issue of its role.

[18] It is evident that the September 30, 2010 hearing date is not feasible, and I order that it be vacated.

[19] As I indicated in the oral hearing, it may be appropriate to hold a case conference to deal with the issue of scheduling. If the parties so wish, they may contact my assistant to set up a meeting the week of August 9, 2010, if they are available. Otherwise, I will be available the week of August 30, 2010.

[20] If the parties cannot agree on costs, they may make brief submissions in writing within 30 days of the release of this decision.

Swinton J.

Released: July 19, 2010