Bryce et al. v. The Director, Ministry of the Environment and Climate Change Suncor Energy Products Incorporated v. Fohr The Director, Ministry of the Environment and Climate Change v. Grey Highlands Clean Energy GP Corp., Operating as Grey Highlands Clean Energy Development LP

[Indexed as: Bryce v. Ontario (Director, Ministry of the Environment and Climate Change)]

Ontario Reports

Ontario Superior Court of Justice, Divisional Court, Sachs, Horkins and Pattillo JJ.

June 28, 2016

132 O.R. (3d) 767 | 2016 ONSC 4191

Case Summary

Administrative law — Natural justice — Adjournment — Appellants appealing director's decision to issue renewable energy approval for wind turbine project — Tribunal denying appellants' request for adjournment to retain expert to review source data from Health Canada summary that was released before hearing concluded on basis that appellants failed to demonstrate that summary data were necessary for full and fair hearing — Appellants not denied natural justice. [page768]

Environmental law — Approval — Review — Confirmation under s. 145.2.1 of Environmental Protection Act of director's decision to issue renewable energy approval not involving two-step process with onus shifting to approval-holder at second step to prove that engaging in renewable energy project will not cause harm described in s. 145.2.1(2)(a) or (b) of Act — "Material contribution" test generally not applying to determination of causation under s. 145.2.1 — Environmental Protection Act, R.S.O. 1990, c. E.19, s. 145.2.1.

In two separate cases, the appellants appealed decisions of the Environmental Review Tribunal confirming decisions of the director to issue renewable energy approvals for wind turbine projects.

Held, the appeals should be dismissed.

The tribunal did not err in ruling that s. 145.2.1 of the Environmental Protection Act does not establish a two-step process for confirming a director's decision to issue an REA, with the onus shifting to the approval-holder at the second step to establish that engaging in the renewable energy project will not cause the harm described in s. 145.2.1(2)(a) or (b) of the Act if the appellant fails to establish at the first step that the renewable energy project will cause that harm. Section 145.2.1 imposes a single onus on the appellant. In both cases, the tribunal reasonably concluded that the appellant provided insufficient evidence to establish that engaging in the wind turbine project in accordance with the REA will cause the harm described in s. 145.2.1(2)(a) or (b).

The tribunal did not err in rejecting a less onerous "material contribution" test for causation under s. 145.2.1 of the Act.

The appellants in one case were not denied procedural fairness when the tribunal refused their request for an adjournment to retain an expert to review the source data from a Health Canada summary that was released before the hearing was concluded. The tribunal refused the adjournment because the appellants filed insufficient evidence to demonstrate that the data were necessary for a full and fair hearing of the claim. The only evidence failed by the appellants was an affidavit from a legal assistant with a law firm addressing the process taken to try to obtain the raw data. Moreover, the limitations on the usefulness of the study were clearly stated in the Health Canada summary, which stated that Health Canada's results did not permit any conclusions about causality.

Clements v. Clements, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32, 2012 SCC 32, 331 B.C.A.C. 1, 431 N.R. 198, 2012EXP-2458, J.E. 2012-1292, [2012] 7 W.W.R. 217, 31 B.C.L.R. (5th) 1, 93 C.C.L.T. (3d) 1, 29 M.V.R. (6th) 1, 346 D.L.R. (4th) 577, 215 A.C.W.S. (3d) 1035; Dixon v. Ontario (Director, Ministry of the Environment), [2014] O.J. No. 6170, 2014 ONSC 7404, 325 C.R.R. (2d) 226, 92 C.E.L.R. (3d) 290, 332 O.A.C. 304, 248 A.C.W.S. (3d) 102 (Div. Ct.), consd

Other cases referred to

Erickson v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 29, 61 C.E.L.R. (3d) 1; Fohr v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 43; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment), [2012] O.J. No. 2378, 2012 ONSC 2708, 293 O.A.C. 148, 67 C.E.L.R. (3d) 123, 349 D.L.R. (4th) 496, 215 A.C.W.S. (3d) 125 (Div. Ct.); [page769] Lambton (County) v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 10, 93 C.E.L.R. (3d) 254; Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, [2015] O.J. No. 1988, 2015 ONCA 269, 90 C.E.L.R. (3d) 180, 332 O.A.C. 374, 252 A.C.W.S. (3d) 737; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, D.T.E. 98T-154, 76 A.C.W.S. (3d) 894; Senjule v. Law Society of Upper Canada, [2013] O.J. No. 2347, 2013 ONSC 2817, 309 O.A.C. 1 (Div. Ct.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Environmental Protection Act, R.S.O. 1990, c. E.19, Part V.0.1 [as am.], ss. 47.5, (1), (3), 142.1, (1), (2), (3), 145.2, 145.2.1, (2), (a), (b), (3), (4), (5), (6) 145.6

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 [as am.], s. 21

Rules and regulations referred to

Renewable Energy Approvals under Part V.0.1 of the Act, O. Reg. 359/09 [as am.]

Authorities referred to

Driedger, E., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

APPEALS from decisions of the Environmental Review Tribunal.

Asha James and Meaghan T. Daniel, for appellants.

Andrea Huckins, for respondent.

Albert M. Engel, for respondent.

John Laskin and Aria Laskin, for respondent.

The judgment of the court was delivered by

HORKINS J.: —

Introduction

[1] There are two appeals before this court. Both arise from the issuance of a renewable energy approval ("REA") for a wind turbine project in Ontario.

[2] In August 2014, the respondent, the Director, Ministry of the Environment and Climate Change (the "director") issued a REA to the respondent Suncor Energy Products Incorporated ("Suncor") for a wind turbine project located in Lambton County. The appellants Kimberley Bryce and Richard Lance Bryce are residents who live close to the Suncor wind turbine project. They appealed the director's decision to the Environmental Review Tribunal (the "tribunal"). The tribunal confirmed the director's decision to issue the REA.

[3] In August 2015, the director issued a REA to Grey Highlands Clean Energy GP Corp. operating as Grey Highlands Clean Energy Development LP ("Grey Highlands") for a wind [page770] turbine project located in Grey County. The appellant Gary Fohr is a resident who lives close to the Grey Highlands wind turbine project. He appealed the director's decision to the tribunal. The tribunal confirmed the director's decision to issue the REA [Lambton (County) v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 10, 93 C.E.L.R. (3d) 254].

[4] The appellants in each case appealed the tribunal's decision to this court. The appeals were heard together because the central issue in both is the same: what is the meaning and effect of s. 145.2.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the "EPA")? This is the only issue in the appeal involving the respondent Grey Highlands (the "Fohr appeal").

[5] Section 145.2.1 governs the tribunal's review of the director's decision. In particular, it sets out what the tribunal shall consider, the onus of proof that rests on the person requesting the hearing and the powers of the tribunal.

[6] In the other appeal (the "Bryce appeal"), the appellants raise two additional issues. First, did the tribunal err when it failed to apply the material contribution test to s. 145.2.1(2) of the EPA? Second, were the appellants denied natural justice when the tribunal refused their motion to adjourn the proceedings?

[7] For the reasons set out below, these appeals are dismissed.

The Court's Jurisdiction

[8] The EPA gives the appellants two avenues of appeal. Pursuant to s. 145.6 of the EPA, a party to a hearing before a tribunal may appeal to this court "on a question of law" and may appeal, in writing, to the Minister of the Environment "on any matter other than a question of law".

[9] Accordingly, the scope of this court's appellate review is limited to questions of law.

Standard of Review

[10] The appellants submit that the standard of review is correctness. The appellants cite Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 for the proposition that questions of law should be reviewed on a correctness standard.

[11] I reject this position and agree with the respondents that the standard of review is reasonableness. The standards arising from Housen relate to appeals from court decisions, rather than statutory appeals in an administrative law context.

[12] In these appeals, the tribunal was interpreting the EPA, a statute closely related to its function and with which it has particular familiarity. As such, the appropriate standard of review [page771] to apply to the tribunal's decisions is reasonableness (see Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, [2015] O.J. No. 1988, 2015 ONCA 269, at paras. 39-44; Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment), [2012] O.J. No. 2378, 2012 ONSC 2708 (Div. Ct.), at para. 52).

The Section 145.2.1 Issue

[13] The starting point for the central issue on these appeals is a review of the statutory scheme for the issuance and review of an REA that is set out in Part V.0.1 of the EPA.

[14] With the benefit of this statutory review, I will summarize the position of the parties, provide an overview of the tribunal's decisions, explain why the decisions are reasonable and why Dixon v. Ontario (Director, Ministry of the Environment), [2014] O.J. No. 6170, 2014 ONSC 7404 (Div. Ct.) ("Dixon") does not support the appellants' position.

1. The statutory scheme

[15] The relevant features of the statutory scheme in the EPA are set out below.

[16] Section 47.5(1) authorizes the director to issue an REA if the director believes that it is in the public interest to do so. Once the REA is issued, s. 142.1(2) entitles any Ontario resident to require a hearing before the tribunal regarding the REA. The focus of this hearing is limited to the grounds that the project "will cause" either or both of serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment (s. 142.1(3)).

[17] The tribunal's task at the hearing is clearly set out in s. 145.2.1(2) as follows:

145.2.1(2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

[18] The onus rests on the party who requests the hearing, to prove on a balance of probabilities "that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b)" (s. 145.2.1(3)).

[19] If the tribunal determines that "engaging in the renewable energy project in accordance with the renewable energy [page772] approval will cause harm referred to in clause (2) (a) or (b)", s. 145.2.1(4) states that the tribunal may do the following:

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

[20] Subsection 145.2.1(5) provides that if the tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval "will not cause harm" described in clause s. 145.2.1(2)(a) or (b), then the tribunal "shall confirm the decision of the Director".

[21] Finally, s. 47.5(3) of the EPA gives the director the power to make orders concerning an approved REA as follows:

47.5(3) On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so,

(a) alter the terms and conditions of a renewable energy approval after it is issued;

(b) impose new terms and conditions on a renewable energy approval; or

(c) suspend or revoke a renewable energy approval.

2. Position of the parties

The appellants

[22] The appellants argue that confirmation of a director's decision under the EPA is a two-step process. The first step involves the task of the tribunal under s. 145.2.1(2) (a) and/or (b). If, as in this case, the party requesting the hearing fails to prove that the REA will cause the harm in s. 145.2.1(2)(a) and/or (b), the tribunal must proceed to the second step. It can only confirm the director's decision under s. 145.2.1(5) if the "Tribunal determines that engaging in the renewable energy project . . . will not cause harm described in clause (2) (a) or (b)".

[23] The appellants argue that in both cases the tribunal confirmed the director's decision without taking the second step and determining that the REA will not cause harm. They say that the failure to take the second step is contrary to the direction in Dixon and the plain language of the EPA.

[24] Further, the appellants say that the totality of the evidence clearly demonstrates that the scientific evidence that was before the tribunal is incapable of proving or disproving causality between wind turbines and their effects on human health. As [page773] a result, the appellants state that there was no evidentiary basis upon which the tribunal could have confirmed the director's decision, if it had taken the second step. The tribunal should have dismissed the appeals and refused to confirm the director's decision.

[25] The relief that the appellants are seeking was narrowed at the hearing of the appeals. The appellants are not asking that the director's decision to approve the REAs be revoked. They are asking the court to set aside the tribunal's confirmation of the director's decision. The approval of the two wind turbine projects would remain in place and the respondents would be allowed to continue with the projects, subject to any order the director may make under s. 47.5(3).

[26] The appellants argue that if confirmation of the director's decisions is set aside, this would be a basis to ground their application to seek relief from the director under s. 47.5(3). As set out above, the director has various powers under this section and can, in summary, change, suspend or revoke the REA if it is "in the public interests to do so".

[27] The appellants have withdrawn their argument that the tribunal's decisions resulted in a breach of the Canadian Charter of Rights and Freedoms ("Charter").

Position of the respondents

[28] The respondents state that the appellants' proposed interpretation of s. 145.2.1 is contrary to the rules of statutory interpretation, fundamentally inconsistent with the statutory scheme in the EPA and is not supported by Dixon. For the reasons set out below, I accept the respondents' position.

3. Overview of the tribunal's decisions

The Bryce appeal

Overview

[29] The REA issued to Suncor, approved a class 4 wind facility with a total name plate capacity of 100 megawatts, consisting of 46 wind turbines within Lambton County.

[30] On September 5, 2014, the appellants filed a notice of appeal with the tribunal pursuant to s. 142.1 of the EPA, asserting that the wind turbine project would cause serious harm to human health. They also asserted that ss. 47.5, 142.1 and 145.2 of the EPA violate s. 7 of the Charter. As noted, the appeal on the Charter issues is withdrawn. As a result, it is not necessary to consider this part of the tribunal's decision. [page774]

[31] The hearing before the tribunal took place over eight days in November 2014 and January 2015. On December 10, 2014, the appellants filed a motion to adjourn the hearing. The tribunal dismissed the motion. On March 4, 2015, the tribunal released its decision dismissing the appeal and confirming the director's decision to issue the REA.

[32] Before the tribunal, the Bryce appellants did not argue that s. 145.2.1 involves a two-step process. As a result, this tribunal did not consider whether a tribunal can only confirm the director's decision under s. 145.2.1(5) if the "Tribunal determines that engaging in the renewable energy project . . . will not cause harm described in clause (2) (a) or (b)".

[33] The tribunal dealt with the appellants' argument that causation should be assessed using the material contribution test. On the basis of this less onerous test, the appellants argued that they had satisfied their onus to prove that "engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b)". The tribunal rejected the material contribution test.

[34] As explained below, the appeal on the material contribution issue is dismissed. These appellants do not take issue with the tribunal's decision that they failed to prove on a balance of probabilities "that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b)" (s. 145.2.1(3)). This leaves the issue of whether confirmation of the director's decision was unreasonable because the tribunal failed to follow the two-step test and find that the REA will not cause the harm described in s. 145.2.1(2)(a) or (b).

The health appeal

[35] The Bryce appellants testified. They live with their four children in the vicinity of the wind turbine project. The closest proposed turbine would be approximately 1,285 m from their home and there would be a total of eight or nine turbines within approximately 3 km of their home. Two of their children attend a school located next door to the family's home and the other two children attend a high school in Forest, which is also in the vicinity of proposed turbines.

[36] The Bryce appellants explained that they and three of their children have a range of existing medical conditions and they fear that noise from the project will exacerbate them. The conditions that members of the Bryce family experience include ulcerative colitis, which flares up during times of stress; thyroid gland failure, which includes symptoms such as memory loss [page775] and fatigue; a learning disability with a sensitivity to sound that requires a quiet environment for studying and is exacerbated by lack of sleep; a learning disability that is exacerbated by background noises; and ear infections that have required the insertion of ear tubes and resulted in sensitivity to loud noise.

[37] The Bryce appellants are concerned that their family's medical conditions will be exacerbated due to noise from the turbines as well as annoyance and stress. They fear that the wind turbines will affect their children while they are in their home and also at school.

[38] The Bryce appellants introduced evidence from two "post-turbine" witnesses, who testified about their experiences living in close proximity to existing, operational wind turbine projects. The post-turbine witnesses attributed a wide variety of symptoms to wind turbines, including, sleep deprivation, humming and ringing in ears, soreness in the hip, increased blood pressure, blurred vision, issues with memory, heart palpitations, grinding of teeth, and feelings of disorientation and dizziness, among others. Their testimony was not supported by a medical diagnosis from a health professional. They admitted that they had self-diagnosed wind turbines as the alleged cause of their symptoms.

[39] The appellants argued that they could establish serious harm to human health indirectly by proving that wind turbines cause annoyance and that annoyance can lead to serious health effects. However, the following evidence that they called did not prove this causal connection.

[40] The appellants called an expert witness, Dr. Arline Bronzaft, who testified that based on her research on the impact of noise from trains on children in the range of 59 to 89 dB(A), noise may impact a child's ability to learn. However, Dr. Bronzaft did not conduct any research on the impact of wind turbine noise on people.

[41] The tribunal found that Dr. Bronzaft's evidence contributed to the general body of knowledge on the association of noise and annoyance, but did not provide a basis for finding that the wind turbine project, which cannot exceed a noise level limit of 40 dB(A) based on the limits established by the approval, would cause serious harm to human health.

[42] The appellants also called Dr. Jeffery Aramini. He testified about a report undertaken by Health Canada titled "Wind Turbine Noise and Health Study: Summary Results" (the "Health Canada summary"). He opined that the Health Canada summary that found an association between wind turbine noise and annoyance and an association between annoyance and adverse [page776] health effects might support his hypothesis that wind turbine noise could also be associated with adverse health effects. Dr. Aramini acknowledged that one study alone could not prove or disprove his hypothesis. The tribunal found that Dr. Aramini's evidence about the Health Canada summary did not change the "scientific knowledge and consensus and demonstrate that wind turbine noise causes annoyance and that annoyance causes serious harm to human health".

[43] Suncor called Drs. Mundt and McCunney as expert witnesses. They acknowledged and discussed the epidemiological studies that have found an association between wind turbines and annoyance. However, both stated that exposure to wind turbines does not cause health effects, let alone serious harm to human health. The tribunal summarized the evidence of Dr. Mundt dealing with the association between wind turbine noise and annoyance as follows, at para. 96:

[Dr. Mundt] concluded that the literature does not establish that residential exposure to wind turbines causes any harm to human health, let alone serious harm. He further stated that, at most, the literature reports an association or correlation between sound pressure levels and self-reported or perceived annoyance, although these findings may reflect attitudes toward wind turbines or perceptions of economic loss or aesthetic degradation.

[44] The tribunal dismissed the Bryce appeal. In arriving at this decision, the tribunal relied on the principle underpinning the EPA regulatory scheme that the court discussed in Dixon as follows [at para. 191]:

The Divisional Court in Dixon, Drennan, Kroeplin comprehensively reviews the renewable energy approval legislative scheme. The Court describes Ontario Regulation 359/09 as a "principle underpinning the EPA's renewable energy project regulatory regime" and states that the consensus scientific view is that wind farms meeting the minimum setbacks and noise levels do not cause serious harm to human health. As noted above, this is contingent upon the current state of scientific knowledge.

[45] The tribunal noted that the Bryce appellants "would not be living within the prescribed minimum setbacks and noise levels for the Project". The Bryce appellants did not provide any expert evidence, specific to the wind turbine project, as to how wind turbine noise will affect their family. The tribunal concluded that there was "insufficient evidence to establish, on a balance of probabilities, that the Bryce family will suffer serious harm to their health, under either the Charter or EPA harm tests, or even the EPA test proposed by the Bryce Appellants".

[46] The tribunal concluded that the Bryce appellants did not meet the "serious harm" test under the EPA. The tribunal dismissed the appeal and confirmed the director's decision. [page777]

The Fohr appeal

Overview

[47] The REA issued to Grey Highlands approved a class 4 wind facility with a name plate capacity of 18.45 megawatts, comprising nine turbines, one transformer substation and the requisite infrastructure.

[48] In April 2015, the appellant filed a notice of appeal with the tribunal pursuant to s. 142.1 of the EPA. The appellant argued that the wind turbine project will cause serious harm to human health and serious and irreversible harm to local animal life.

[49] The appellant argued that a material contribution test should be used to determine causation. He also filed a notice of constitutional question asserting that ss. 47.5, 142.1 and 145.2 violate s. 7 of the Charter.

[50] As noted, the appeal on the Charter issues in this court was withdrawn. The tribunal rejected the material contribution test, as it did in Bryce. The appellant has not appealed the material contribution issue. As a result, it is not necessary to review the tribunal's reasons on these issues.

[51] Before this court, the appellant does not dispute the tribunal's finding that he failed to satisfy his onus to prove on a balance of probabilities "that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b)" (s. 145.2.1(3)). The sole issue that this appellant raises is whether confirmation of the director's decision was unreasonable because the tribunal failed to follow the two-step test and find that the REA will not cause the harm described in s. 145.2.1(2)(a) or (b).

The health appeal

[52] The appellant testified about the effects that he believes the wind turbines will have on his health. The tribunal also heard evidence from three "post-turbine" witnesses, all of whom had previously testified before the tribunal on other REA tribunal hearings. The tribunal had previously found this evidence to be insufficient to discharge the appellant's onus of demonstrating serious harm to human health (see Lambton (County) v. Ontario (Ministry of the Environment and Climate Change), supra, at paras. 171-72).

[53] The appellant led evidence from two medical experts, Dr. Roy Jeffrey, a family physician with specialized experience in rural family medicine, and Dr. Nissenbaum, a doctor with specialized training and experience in radiology. [page778]

[54] Dr. Roy Jeffrey offered an opinion on the health concerns of the "post-turbine" witnesses without examining them or taking their history. Dr. Nissenbaum offered his views on the impact of wind turbines on human health.

[55] The appellant called no epidemiological evidence in support of the health appeal. Instead, he relied on the evidence of the respondent's witnesses (in particular, Dr. Baines and Dr. McCunney) regarding the state of scientific research on the purported link between wind turbines and human health.

[56] Grey Highlands led evidence from Drs. McCunney, Baines and Moore. They testified about the current state of scientific knowledge regarding wind turbines and human health. They opined that some of the more rigorous types of studies such as cohort studies, which would enable more conclusive determinations on causation, have yet to be performed. However, as Dr. McCunney testified, there is a substantial body of accumulated knowledge about sound and health, and this body of research provides no evidence that the audible or sub-audible sounds emitted by wind turbines have any direct adverse physiological effects.

[57] Drs. McCunney and Moore concluded that the wind turbine project would not cause harm to human health. Dr. McCunney offered the opinion that"[i]n my view, based on the documents I have reviewed and my review of the scientific literature, the Grey Highlands wind project, if operated in accordance with the Renewable Energy Approval, will not cause serious harm to human health". Dr. Moore offered a similar opinion, stating that"[i]n summary, based on my review of the witness information provided to me and my review of the literature on the health effects of wind turbines, I am of the opinion that the proposed wind project, operating in accordance with its approval, will not cause serious harm to human health".

[58] The testimony of these witnesses was not new. Dr. McCunney's evidence was consistent with what he stated in Dixon, where he also concluded"[i]n my view, based on the documents I have reviewed and my update of my review of the scientific literature, the Project, if operated in accordance with the REA, will not cause serious harm to human health" (Dixon, at para. 30).

[59] The appellant argued that confirmation of a director's decision under s. 145.2.1 is a two-step process, with a shifting onus. The first step involves the task of the tribunal under s. 145.2.1(2)(a) and/or (b). If the party requesting the hearing fails to prove that the REA will cause the harm in s. 145.2.1(2)(a) and/or (b), the tribunal must proceed to the second step. The onus then shifts to the approval-holder, to prove under [page779] s. 145.2.1(5) "that engaging in the renewable energy project . . . will not cause harm described in clause (2)(a) or (b)". The director's decision can only be confirmed if the approval-holder satisfies this onus. The appellant relied on Dixon to support this approach.

[60] The tribunal rejected the appellant's position that confirmation of a director's decision under s. 145.2.1 is a two-step process, with a shifting onus. In particular, the tribunal rejected the argument that Dixon requires this approach. The tribunal [Fohr v. Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 43] found [at para. 202] that the appellant's interpretation of s. 145.2.1 was "not consistent with the wording of the EPA" or the principles of statutory interpretation.

[61] The tribunal described [Fohr, at para. 195] s. 145.2.1 as a "self-contained hearing process with provisions that are interrelated and give meaning to each other in the context of the whole section". It held that where an appellant has not proven the harm specified by s. 145.2.1(2), then the decision of the director is confirmed under s. 145.2.1(5).

[62] Regarding the health appeal, the tribunal noted that the evidence was consistent with the testimony in previous hearings. The evidence fell short of satisfying the legal requirement under s. 145.2.1(2) that the project will cause serious harm to human health.

[63] The tribunal found that the state of the science remains nascent, and that "the science is uncertain at both ends of the debate". Referring to its decision in Erickson v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 29, 61 C.E.L.R. (3d) 1, the tribunal stated that "despite the optimism of the Tribunal in Erickson, there has not been a significant advance in the science from a causation perspective". It found that, contrary to the appellant's assertions that expert witnesses had made new concessions about the state of the science"this evidence is not based on new studies that have not already been considered by the Tribunal".

[64] The tribunal noted that it had heard virtually the same expert evidence in a series of hearings, including Lambton, which the tribunal had recently decided. In Lambton, after hearing similar expert evidence and reviewing all of the same studies and all but one of the same literature reviews, the tribunal concluded that the current state of scientific knowledge did not demonstrate a causal connection between wind turbine noise and harm to human health.

[65] In summary, the tribunal concluded that the appellant provided insufficient evidence to establish that engaging in the [page780] wind turbine project in accordance with the REA will cause the harm described in s. 145.2.1(2)(a) and (b) of the EPA. The tribunal dismissed the appeal and confirmed the director's decision.

The environmental appeal

[66] The appellant alleged that the wind turbines will cause serious and irreversible harm to a specific species of salamander, the Jefferson salamander. Grey Highlands took the position that the Jefferson salamander did not reside in the project area.

[67] Two expert witnesses testified. The appellant called Sal Spitale, who did not opine, either in his witness statement or in oral testimony, that the wind turbine project, operated in accordance with the REA, will cause any serious and irreversible harm to this species. Andrew Taylor testified for Grey Highlands. He offered the opinion that it is highly improbable that Jefferson salamanders are present in the project area. Therefore, he did not expect the wind turbine project to have any impact on this species.

[68] Mr. Taylor explained that the closest historical occurrence of a Jefferson salamander is over 30 kilometers from the project area. On cross-examination, Mr. Taylor was shown a map from a 2010 report titled the "Committee on the Status of Endangered Wildlife in Ontario". This report covers the period of 1985-2000, and purports to show the Jefferson salamander habitat in Grey County during that period. Mr. Taylor explained that this map was prepared before the advent of genetic testing methods, which are necessary to allow researchers to distinguish between Jefferson salamanders (which are endangered) and other kinds of salamander (which are not at risk). He explained that the map was insufficient to distinguish between these two species.

[69] Mr. Taylor further explained that the "Recovery Strategy for the Jefferson Salamander" is more recent and is the authority that he, as an amphibian specialist, consults for information on the Jefferson salamander. Jefferson salamanders have not been identified in the project area by either the Ministry of Natural Resources or the recovery strategy.

[70] Further, no Jefferson salamanders were observed during the extensive site investigations that took place over a lengthy period of time as part of the Natural Heritage Assessment prepared in support of the REA application.

[71] The tribunal found that the evidence as a whole did not demonstrate that the Jefferson salamander was likely to be present in the project area. Further, the appellant did not prove [page781] that project will cause serious and irreversible harm to the Jefferson salamander.

[72] The tribunal found that the appellant had not discharged his onus under s. 145.2.1(3) of proving that the wind turbine project would cause serious and irreversible harm to the Jefferson salamander. The tribunal dismissed the environmental appeal and confirmed the director's decision.

4. The reasonableness analysis

Section 145.2.1 -- There is no two-step process

Overview

[73] The tribunal in Bryce did not consider the two-step process because the appellants did not present this argument. In Fohr v. Ontario (Ministry of the Environment and Climate Change), supra, the applicant raised the argument and the tribunal rejected it with detailed reasons.

[74] Before this court, the appellants, in both cases, argue that the tribunal decisions are unreasonable because the tribunals did not follow the two-step process. Instead, the tribunals confirmed the director's decision without determining under s. 145.2.1(5) that "engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b)".

[75] The appellants are not arguing (as the appellant did before tribunal in Fohr) that s. 145.2.1(5) places an onus on the approval-holder to prove that the REA will not cause harm. Rather, they now say that the tribunal must make a determination, based on the evidence before it, that "engaging in the renewable energy . . . approval will not cause harm described in clause (2) (a) or (b)".

Dixon does not require a two-step process

[76] The starting point of the reasonableness analysis is Dixon. This was an appeal from three tribunal decisions in REA hearings. The Bryce and Fohr appellants state that the tribunal's failure to follow the two-step process is contrary to the binding authority of Dixon. They describe this as an "extraordinary situation where an administrative tribunal has effectively overruled an appellate court on a question of law".

[77] I reject the argument that Dixon mandates the two-step process. The tribunal in Fohr rejected this interpretation of Dixon and provided clear and cogent reasons. The following analysis demonstrates the reasonableness of the tribunal's decision. [page782]

[78] The issue on appeal in Dixon was whether ss. 142.1(3) and 145.2.1(2) violate s. 7 of the Charter. The issue was not whether s. 145.2.1 creates a two-step process. The appellants in those hearings did not argue that the tribunal had to make a positive finding under s. 145.2.1(5) before confirming the director's decision. The parties did not raise this novel argument before the tribunal or the court in Dixon.

[79] In the three hearings, the tribunal dismissed the appeals without explicitly confirming the director's decision. Before embarking on its s. 7 Charter analysis, the court in Dixon briefly addressed the absence of a confirmation of the director's decision. At paras. 26-28 and 33, the court described the task of the tribunal, observed that s. 145.2.1(5) requires confirmation and found that the tribunal had confirmed the director's decisions by implication:

The Director was required to consider the three applications for REAs. The Director did so and issued approvals. Once a hearing was requested, the EPA required the Tribunal to conduct a hearing in the nature of a review, not in the nature of an appeal. The Tribunal had to determine whether engaging in each of the renewable energy projects in accordance with their respective REAs would cause serious harm to human health:

(i) If the Tribunal determined that it would, the Tribunal was authorized to revoke the Director's decision to issue the REA;

(ii) However, if the Tribunal determined that engaging in the particular renewable energy project in accordance with its REA would not cause serious harm to human health, the Tribunal was required to confirm the Director's decision issuing the REAs.

In none of the three hearings which are the subject of these appeals did the Tribunal confirm the Director's decision. Nor did the Tribunal expressly determine "that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]" as required by EPA s. 145.2.1(5).

There is a difference between a negative determination that serious harm to human health has not been proven and a positive determination that engaging in the renewable energy project in accordance with the renewable energy approval will not cause serious harm to human health. Although no party raised as an issue on these appeals the failure of the Tribunal to confirm the decisions of the Directors, it is important that a tribunal follow its statutory mandate. Based on a substantive review of the Tribunal's three decisions, we are satisfied that the Tribunal, in effect, complied with the requirements of EPA s. 145.2.1(5).

Given the Tribunal's express acceptance of the evidence of Drs. Mundt, McCunney, Moore and Richarz, it is appropriate to conclude that the Tribunal was satisfied that engaging in the three renewable energy projects in accordance with the REAs would not cause serious harm to human health. As well, when the Tribunal recorded that the appeals were dismissed, [page783] by implication it confirmed the Director's decisions to issue the respective renewable energy approvals.

[Emphasis added; footnote omitted]

[80] It is clear from the above excerpt in Dixon that the court interpreted s. 145.2.1 as imposing a single onus on the appellant. In reviewing the statutory framework, the court held [at para. 26] that "[t]he Tribunal had to determine whether engaging in each of the renewable energy projects in accordance with their respective REAs would cause serious harm to human health". This is consistent with the court's express observation, in para. 6(iii), that "[u]nder the statute the onus of proving such harm rested with the Appellants". If the court in Dixon had intended a separate inquiry under s. 145.2.1(5), the court would not have decided that the director's decisions were confirmed "by implication".

[81] The tribunal in Fohr considered two possible interpretations of s. 145.2.1(5). The appellants argued that Dixon mandated the second possible interpretation. The tribunal sated as follows [at paras. 197 and 198]:

The first is that on a hearing under ss. (2) the Tribunal makes its determination regarding the harm described in ss. (2)(a) and (b) and then either employs its remedial powers under ss. (4) or, if the appellant has not demonstrated such harm, then the decision of the Director is confirmed under ss. (5).

The second possibility is that ss. (5) requires an independent determination of a "will not cause harm" test. The difficulty with this interpretation is that it can lead to a result where the appellant has not met the ss. (2) harm tests and the Director and Approval Holder have not met the "will not cause harm test" that the Appellant argues exists under ss. (5). In such a case, the appellant will not have made its case but the Director's decision cannot be confirmed.

[82] After providing extensive reasons, the tribunal rejected the appellant's interpretation of s. 145.2.1. It concluded that the first possible interpretation is consistent with the scheme of s. 145.2.1, the scheme of the statute, its objective and the intention of the legislature.

[83] The tribunal found that confirmation of a director's decision logically flows from the appellant's failure to prove on a balance of probabilities that the REA will cause harm and the dismissal of the appeal. Subsection 145.2.1(5) is tied back to s. 145.2.1(2).

[84] In summary, the tribunal's interpretation of Dixon was reasonable. I agree with the tribunal when it stated, at para. 201, that the court in Dixon "was not proposing a second stage determination under ss. (5) but was drawing the inference that [page784] a determination under ss. (2) satisfies the determination to be made under ss. (5)". This interpretation of Dixon "is consistent with ss. (5) incorporating the harm described in ss. (2)(a) and (b), s. 145.2.1 being a self-contained provision, and the interpretation that ss. (5) does not require a separate determination". It is also consistent with the context and scheme of the EPA that I will now consider.

The context and scheme of the EPA -- Section 145.2.1

[85] The tribunal recognized and followed the guiding principle of statutory interpretation. The "words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (see Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at p. 41 S.C.R. (quoting E. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87).

[86] The "principle underpinning the EPA's renewable energy project regulatory regime" is described in Dixon, at para. 75: "that wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge".

[87] This principle is the starting point for a party seeking a REA for a wind turbine project. Specifically, approval is granted when the setbacks and noise levels are followed because serious harm to human health is not known to occur. The appellants' two-step process ignores this principle because it would require the approval-holder to prove what is already acknowledged and accepted.

[88] The regulatory framework underlying the EPA presumptively maintains the status quo during the pendency of a REA appeal. The REA approval remains in force and project construction may commence. If the appellant's interpretation of s. 145.2.1(5) is correct, it is logical to assume that the legislature would have provided for an REA to be stayed on appeal, pending proof from the approval-holder that the wind turbine project will not cause one of the specified harms.

[89] Section 145.2.1 is "a self-contained hearing process with provisions that are interrelated and give meaning to each other in the context of the whole section". The tribunal's analysis of s. 145.2.1 clearly reveals that there is no place for a two-step [page785] process in the section and that such an approach "would stand the review process on its head" (Fohr, at paras. 195 and 202).

[90] Subsection 145.2.1(2) specifically describes and limits the tribunal's task. It [Fohr, at para. 6] "shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause, (a) serious harm to human health; or (b) serious and irreversible harm to plant life, animal life or the natural environment". The tribunal is not directed to "consider" whether the REA "will not cause harm".

[91] As the tribunal noted, it is a creature of statute and its remedial powers in an REA proceeding must be found in the statute. The remedial powers in s. 145.2.1(4) flow solely from a determination under s. 145.2.1(2) that the REA will cause harm.

[92] The tribunal's remedial powers in s. 145.2.1(4) do not address what happens when the appellant fails to meet the onus. Logically, it follows that if the appellant does not meet the onus, then the appeal should be dismissed and the director's decision should be confirmed.

[93] Subsection 145.2.1(5) is the only section that gives the tribunal the power to confirm the director's decision. While I recognize that the drafting of s. 145.2.1(5) lacks come clarity, the guiding principle of statutory interpretation cures this problem and supports the tribunal's interpretation of this section. There is simply no rational basis for accepting the appellants' interpretation.

[94] If, as the appellants' argue, the tribunal is required to make a separate determination that the REA will not cause harm, what happens if the approval holder fails to provide proof? Subsection 145.2.1 is silent. The tribunal has no remedial powers to address this situation. As the tribunal in Fohr stated [at para. 199]"[t]his gap in the s. 145.2.1(5) scheme would create significant uncertainty in hearings under the section".

[95] To fill this gap, the appellants argue that the director can rely on its powers under s. 47.5(3) to take the appropriate steps that are not set out in s. 145.2.1. This does not solve the problem because the decision of a director is appealable under s. 142.1(1) and such appeal is governed by s. 145.2.1. The parties would be thrown back into the same uncertainty.

[96] Subsection 145.2.1(3) clearly and unambiguously places the onus of demonstrating serious harm to human health, or serious and irreversible harm to the environment, on the appellant. The section makes no reference to a shifting, or secondary, [page786] onus. Indeed, the plain language of the section places no onus on the approval-holder whatsoever.

[97] Before the tribunal, the appellant Fohr argued that s. 145.2.1(5) imposes an onus on the approval holder to demonstrate that the wind turbine project will not cause harm. On this appeal, the appellants abandoned this position. They now agree that s. 145.2.1(5) does not impose an onus on the approval holder. Instead, the appellants say that s. 145.2.1(5) simply requires the tribunal to make a determination, on the evidence before it, that the wind turbine project will not cause harm. Without this determination, the appellants state that tribunal cannot confirm the director's decision.

[98] In my view, the appellants' reframed argument does not change the fact that the two-step process would impose a burden of proof on the approval-holder. It is not the role of the tribunal, the decision maker, to present evidence. The approval-holder has a vested interest in obtaining confirmation of the director's decision from the tribunal. To state the obvious, it is the only party before the tribunal that would lead evidence to show that the wind turbine project will not cause harm.

[99] On the appellants' interpretation of s. 145.2.1(5), an appellant could choose to present minimal or no evidence, to discharge his or her statutory onus. This would leave the approval-holder with the burden to prove the opposite proposition, to obtain confirmation of the director's decision. This absurd result illuminates the fundamental flaw in the appellant's argument: it shifts the onus to the approval-holder and would render the onus in s. 145.2.1(3) superfluous.

[100] Finally, s. 145.2.1(6) provides that the director's decision "shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing . . . within the period of time prescribed by the regulations". The fact that the section provides for this deemed confirmation is further context that supports the tribunal's interpretation of s. 145.2.1(5). It is consistent with the principle underpinning the EPA's renewable energy project regulatory regime.

[101] In summary, the tribunal applied the only reasonable interpretation of s. 145.2.1(5). Confirmation of the director's decision under s. 145.2.1(5) is a procedural step that follows when the appellant does not meet the onus under s. 145.2.1(3).

The scientific certainty issue

[102] Since I have concluded that s. 145.2.1 does not create a two-step process, it is not necessary to deal with the scientific [page787] certainty issue. However, since this issue was a central feature of the appellants' submissions, I will explain why it has no merit.

[103] The appellants argue that the scientific evidence that was before the tribunal is incapable of proving or disproving causality between wind turbines and their effects on human health. As a result, they say there was no evidentiary basis upon which the tribunal could have confirmed the director's decision, if it had taken the second step in the process. The tribunal should have dismissed the appeals and refused to confirm the director decision.

[104] Various experts testified about the types of studies that can be conducted to assess the causal link between wind turbines and effects on human health. Dr. McCunney and Dr. Moore testified about the current state of scientific knowledge regarding wind turbines and human health. They opined that some of the more rigorous types of studies such as cohort studies, which would enable more conclusive determinations on causation, have yet to be performed. It is the lack of such cohort studies that is the basis for the appellants' position.

[105] This scientific certainty argument has no merit. Scientific certainty is not required when, as in this case, proof is on a balance of probabilities.

The Material Contribution Test -- Bryce Appeal

[106] The appellants state that the tribunal's rejection of the less onerous material contribution test was unreasonable. They argue that the material contribution test is appropriate when the issue under consideration is not damages and the direct cause of the alleged harm from the wind turbines is not precisely ascertainable under the current state of scientific knowledge. Further, they state that a less onerous causation test is important, where an imbalance of resources to marshal evidence exists between the parties.

[107] The tribunal considered and rejected the less onerous material contribution test. The tribunal noted that tribunal decisions have consistently held that the burden of proof in s. 145.2.1(3) is on a balance of probabilities.

[108] This decision was reasonable because it followed the direction in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32 that the material contribution test should only be used in exceptional circumstances.

[109] In Clements (at paras. 7-13), the court stated that "the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiffs injury on the aebut for' test". This is a test [page788] that [at para. 9] "must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant's negligence made to the injury." The tribunal recognized, at para. 135, that the "test in s. 145.2.1(2) of the EPA may be met even if the exact mechanism is unclear".

[110] In exceptional circumstances, it is appropriate to rely on the material contribution test. As the court explained in Clements, at para. 40, this does not eliminate the "but for" test:

The cases that have dispensed with the usual requirement of "but for" causation in favour of a less onerous material contribution to risk approach are generally cases where"but for" the negligent act of one or more of the defendants, the plaintiff would not have been injured. This excludes recovery where the injury "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell, 1990 70 (SCC), [1990] 2 S.C.R. 311, per Sopinka J., at p. 327. The plaintiff effectively has established that the "but for" test, viewed globally, has been met. It is only when it is applied separately to each defendant that the "but for" test breaks down because it cannot be shown which of several negligent defendants actually launched the event that led to the injury. The plaintiff thus has shown negligence and a relationship of duty owed by each defendant, but faces failure on the "but for" test because it is "impossible", in the sense just discussed, to show which act or acts were injurious. In such cases, each defendant who has contributed to the risk of the injury that occurred can be faulted.

[111] The appellants' proposed justification for using the material contribution test falls well outside the exceptional circumstances considered in Clements. While the court in Clements left open the possibility that new situations may arise that justify using the material contribution test, the tribunal was reasonable in its rejection of the test in this case. In particular, the material contribution test is inconsistent with the clear and unambiguous test in s. 145.2.1(2) that requires proof that the REA will cause the specified harms. It is also inconsistent with the principle underpinning the EPA's renewable energy project regulatory scheme that "wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge" (Dixon, at para. 75).

[112] In summary, the tribunal's rejection of the material contribution test was reasonable.

Refusal of the Adjournment -- Bryce Appeal

[113] The appellants argue that they were denied natural justice when the tribunal refused their motion to adjourn the proceedings. They requested the adjournment to retain an [page789] expert to review the source data from the Health Canada summary that was released before the hearing concluded.

The background

[114] On November 6, 2014, Health Canada released the Health Canada summary and announced that the raw data from this summary would be made available to the public and researchers.

[115] The appellants presented their evidence to the tribunal on November 12, 13 and 14, 2014. The appellants did not file a copy of the Health Canada summary as part of their case, but a participant at the hearing did, on the basis that it informed the participant's concerns about wind turbines, but not for the truth of its contents.

[116] During the November hearing dates, counsel for Suncor advised that he would be calling expert evidence regarding the preliminary results of the Health Canada summary. On November 26, 2014, the appellants advised the tribunal that in response they wished to call further evidence concerning the Health Canada summary.

[117] The appellants retained Dr. Jeff Aramini. They discussed with him his ability to analyze the raw data from the Health Canada summary. Dr. Aramini advised that it would take approximately three to four months to review and analyze the raw data, once received.

[118] The appellants contacted Health Canada and Statistics Canada to request access to the raw data. They were advised that an application would have to be made for the data and that it would take about two months to process the application. The appellants determined that they needed a six-month adjournment to obtain the raw data from Health Canada, have it reviewed and analyzed by Dr. Armani and to present expert evidence, if so advised.

[119] On December 10, 2014, the appellants filed a notice of motion with the tribunal seeking (a) a six-month adjournment of the hearing so that they could retain an expert to review the data emerging from the Health Canada summary in respect of health effects related to wind turbines; and (b) an order that the six-month time period for rendering a decision prescribed by the EPA and Renewable Energy Approvals under Part V.0.1 of the Act, O. Reg. 359/09 exclude the period of the adjournment requested by the appellants.

[120] In support of their motion, the appellants filed an affidavit from a legal assistant that described the process and time required to access the data from the Health Canada summary. [page790] At the hearing of the motion, the appellants' counsel argued that the evidence they were seeking went to the fundamental question on appeal before the tribunal: will the wind turbine project cause them serious harm? Further, they argued that such evidence was vital to their right to a full and fair hearing.

[121] On December 16, 2014, Suncor and the director filed materials in response to the motion. Suncor's materials included an affidavit from Dr. Ollson. He concluded that an independent evaluation of Health Canada's raw data will not overcome the limitations that Health Canada described in the Health Canada summary. In particular, the study states that "the results may not be generalized to areas beyond the sample as the wind turbine locations in this study were not randomly selected from all possible sites operating in Canada" and "the results do not permit any conclusions about causality".

[122] The tribunal dismissed the appellants' request for an adjournment because they did not demonstrate that the Health Canada summary data was necessary for a full and fair hearing.

Standard of review

[123] The crux of this issue is that the refusal to grant the adjournment was a denial of natural justice. As a result, the standard of review does not apply in the usual sense. The court must determine whether a party has been denied procedural fairness or natural justice. If so, the hearing was unfair and any resulting decision must be set aside (see Senjule v. Law Society of Upper Canada, [2013] O.J. No. 2347, 2013 ONSC 2817 (Div. Ct.), at para. 20; Dixon, at para. 118).

Analysis

[124] The appellants argue that they were denied natural justice for three reasons:

(1) When the tribunal found that they appellants filed insufficient evidence to support the adjournment request, this imposed a "necessity" requirement on them that is not in the Rules of Practice of the tribunal or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA").

(2) The tribunal imposed an impossible burden on them by requiring them to demonstrate that a review and analysis of the raw data that they did not have would produce relevant evidence about causation.

(3) The tribunal imposed a requirement that their motion be supported with expert evidence. [page791]

[125] As explained below, I reject the appellants' argument.

[126] The tribunal reviewed s. 21 of the SPPA and the Rules of Practice that deal with an adjournment request. Section 21 of the SPPA provides that a "hearing may be adjourned from time to time . . . where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held". Rule 104 of Rules of Practice states in part:

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

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

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

[Emphasis added]

[127] Rule 105 of Rules of Practice states as follows:

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.

(Emphasis added)

[128] The decision not to allow the adjournment was an exercise of the tribunal's discretion. The tribunal refused the adjournment because the appellants filed insufficient evidence [page792] to "demonstrate that the Study Summary data is necessary for a full and fair hearing of the health claim". The only evidence that the appellants filed was an affidavit from a legal assistant with Falconers LLP, and it only addressed the process undertaken to try to obtain the raw data.

[129] During submissions, the appellants argued that the evidence concerning the raw data was necessary because the Health Canada summary identifies, for the first time, a statistically significant increase in annoyance when wind turbine noise exceeds 35 dBA. As the tribunal noted, this was counsel's assertion and was not supported by any evidence.

[130] The appellants argue that they were denied natural justice because the tribunal imposed a "necessity" requirement on them and a requirement that they file expert evidence. They say that this resulted in an impossible burden. The context of the tribunal's reasons does not support these arguments.

[131] The tribunal noted that the responding affidavit from Dr. Ollson explained that a review of the raw data that the appellants were seeking, would not assist the tribunal. He based this opinion on the Health Canada summary that Health Canada had released to the public. The tribunal explained as follows:

In contrast, the Approval Holder has brought forward supporting affidavit evidence from two witnesses, including evidence of Dr. Ollson that the results described in the Study Summary "are consistent with the past decade of research in the field of wind turbine noise and community health" and that nowhere "does Health Canada state that individuals should be concerned about serious harm to their health as a result of living near wind turbines." Dr. Ollson states that the raw data will not assist the Tribunal in determining whether the Project will cause serious harm to human health.

[132] Further, the limitations on the usefulness of the study were clearly stated in the Health Canada summary: "the results may not be generalized to areas beyond the sample as the wind turbine locations in this study were not randomly selected from all possible sites operating in Canada" and "the results do not permit any conclusions about causality".

[133] Within this context, the tribunal's criticism of the appellants' evidence was understandable. It did not impose an impossible burden on the appellants. The legal assistant's affidavit was insufficient and there was no expert affidavit to address the fact that Health Canada had stated that its results do not permit any conclusions about causality.

[134] While the appellants had retained Dr. Armani, there was no evidence from this expert in support of the adjournment motion. Dr. Armani did, however, testify for the appellants in reply. His evidence was consistent with Dr. Ollson's evidence. [page793]

[135] The tribunal reviewed Dr. Armani's evidence in the main reasons. Dr. Armani agreed that the Health Canada summary alone would not be determinative or conclusive with respect to causation. Furthermore, the tribunal found that Dr. Aramini did not say that a review and analysis of the raw data would, or could, change the scientific knowledge and consensus and demonstrate that wind turbine noise causes annoyance and that annoyance causes serious harm to human health.

[136] A month after the tribunal refused the request for an adjournment, Dixon was released. On the appeal before the Divisional Court in Dixon, the appellants brought a motion to file the same Health Canada summary as fresh evidence on the appeal. The motion was denied. The court found that the Health Canada Study summary did not assist the appellants. At paras. 83-84, the court in Dixon described the limitations in the use of the Health Canada summary. These are the same limitations that led the tribunal in Bryce to deny the adjournment.

However, when reviewed, the conclusions of the Study Summary do not assist the Appellants. First, the Study Summary clearly stated that its "results do not permit any conclusions about causality". Second, it stated that the "results should be considered in the context of all published peer-reviewed literature on the subject".

Third, the Study Summary reported that from the self-reported questionnaire results, the following were not found to be associated with wind turbine noise exposure: (i) self-reported sleep (e.g., general disturbance, use of sleep medication, diagnosed sleep disorders); (ii) self-reported illnesses (e.g., dizziness, tinnitus, prevalence of recurrent migraines and headaches) and chronic health conditions (e.g., heart disease, high blood pressure and diabetes); and (iii) self-reported perceived stress and quality of life. The Study Summary did report that annoyance towards several wind turbine features -- noise, shadow flicker, blinking lights, vibrations, and visual impacts -- were found to be statistically associated with increasing levels of wind turbine noise.

[137] In summary, the tribunal did not deny the appellants natural justice when the adjournment was refused. The tribunal followed the Rules of Practice. It carefully considered the evidence and found that the appellants had "adduced insufficient evidence to demonstrate that the [Health Canada summary] data is necessary for a full and fair hearing of the health claim . . . as required under Rules 105(a), or for an aeadequate' hearing of those claims under s. 21 of the SPPAP". As a result, the motion for an adjournment was denied.

Conclusion

[138] The appeals are dismissed. The parties are encouraged to settle the costs of these appeals. The director has confirmed [page794] that it is not seeking costs. The other respondents have each filed a bill of costs. If costs cannot be settled, the parties may file brief written submissions no later than July 25, 2016.

Appeals dismissed.

End of Document