Renewable Energy Approval Appeal Proceedings at the ERT: Building Jurisprudence in Wind Appeals

Volume 22, No. 3 March 2013 Environmental Law Section Renewable Energy Approval Appeal Proceedings at the ERT: Building Jurisprudence in Wind Appeals Jack Coop, Dan Kirby, Jennifer Fairfax and Lindsay Rauccio* The decision by the Environmental Review Tribunal (the Tribunal or ERT ) in Erickson v. Ontario (Director, Ministry of the Environment) 1 was the first decision addressing an appeal from the issuance of a Renewable Energy Approval ( REA ). The Tribunal s decision in Erickson focused principally on the onus of proof necessary to establish that the renewable energy project will cause serious harm to human health pursuant to s. 145.2.1(2) of the Ontario Environmental Protection Act 2 ( EPA ). The Tribunal heard evidence from in excess of two dozen expert witnesses opining on the subject, but ultimately concluded that the appellants had failed to satisfy the onus of proof on a balance of probabilities. While the evidence showed that there may be some indirect risks and uncertainties associated with wind turbines that may merit further research, the risks and uncertainties were not sufficient to satisfy the appellants requirement to demonstrate a causative link between the project and serious harm. Since Erickson, wind appeals have proliferated at the ERT. To date, ten further REA wind appeals have been filed, eight of which have involved multiple preliminary procedural motions. Each REA appeal has involved multiple appellants and multiple related appeals for each wind project at issue. 3 Concurrently, Ontario s civil courts have been hearing disputes revolving around wind energy. 4 Wind has become the topic de jour. 1 2 3 4 (2011), 61 C.E.L.R. (3d) 261 (E.R.T.) [Erickson]. R.S.O. 1990, c. E.19 [EPA]. Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of the Environment, Case No. 11-208 (E.R.T.) [Zephyr Farms]; Preserve Mapleton Incorporated v. Director, Ministry of the Environment, Case No. 11-228 (E.R.T.) [Conestogo Wind]; Chatham-Kent Wind Action v. Director, Ministry of the Environment, Case No. 12-004 (E.R.T.) [Gesner Wind Farm]; Haldimand Wind Concerns v. Director, Ministry of the Environment, Case No. 12-018 (E.R.T.) [Summerhaven Wind]; Chatham-Kent Wind Action v. Director, Ministry of the Environment, Case No. 12-071 (E.R.T.) [South Kent Wind]; Haldimand Wind Concerns v. Director, Ministry of the Environment, Case No. 12-073 (E.R.T.) [Grand Renewable Wind]; Haldimand Wind Concerns v. Director, Ministry of the Environment, Case No. 12-098 (E.R.T.) [Port Dover and Nanticoke Wind]; Oppose Belwood Wind Farm Association v. Director, Minister of the Environment, Case Number 12-144 (E.R.T.) [Springwood Wind]; Manitoulin Coalition for Safe Energy Alternatives v. Director, Ministry of the Environment, Case Number 12-148 (E.R.T.) [McLean Mountain Project, which was withdrawn in December 2012 after the Director objected to a proposed amendment to the Notice of Appeal, and dismissed by the Tribunal on January 21, 2013]; and, most recently, Alliance to Protect Prince Edward County (APPEC) v. Director, Ministry of the Environment, Case No. 13-002 (E.R.T.) [Gilead Power]. An example of an action in the civil courts is Drennan v. K2 Wind Ontario Inc., Director of the Ministry of the

To date, four of the ten appeals to the Tribunal have been decided on their merits. Each has been dismissed by the ERT. 5 However, in two cases, the Tribunal decided to make recommendations to the Director and the approval holder regarding certain terms and conditions in the REAs, on the basis that the appeals presented legitimate concerns regarding the potential harm to plant life, animal life or the natural environment which warranted further study and monitoring, particularly in respect of the potential cumulative impact of wind turbines. The progress of these appeals demonstrates that the Tribunal is building a body of jurisprudence dealing with the procedural rules and the substantive harm-based test for REA appeals. This body of law provides a series of cautionary tales for both approval holders and appellants in navigating the fast-paced appeal process. Lessons Learned 1. The ERT Will Strictly Hold An Appellant to the 15-Day Deadline A number of appellants filed their Notices of Appeal in respect of the Grand Renewable Wind Project two days late. Despite the fact that the appellants emailed the approval holder and informed the Ministry of the Environment ( MOE ) before the deadline, the Tribunal held that it had no jurisdiction to extend the statutory limitation period for filing an originating process. The two potential exceptions, officially induced error and force majeure, were not applicable. 6 2. If a Notice of Appeal is Deficient, it Cannot be Fixed after the 15-Day Deadline In Ball v. Director, Ministry of the Environment, 7 a related appeal of the South Kent Wind project, the Notice of Appeal was deficient in content. 8 The Tribunal held that the appellant could not fix the deficient Notice of Appeal after the expiry of the 15-day period in which prospective appellants can file a Notice of Appeal. 9 Additional submissions filed after this 15- day period cannot be considered as part of the notice. The Tribunal has no inherent jurisdiction to extend the statutory appeal period and no authority to permit the appellant to expand on the Environment, et al., Court File No. 200-2012, in which the plaintiffs seek $2 million in damages, $1 million in punitive damages and another $1 million in aggravated damages for nuisance and negligence regarding the Director s (potential) future decision to grant an REA to K2 Wind Project Inc. K2 Wind is in the process of applying for an REA. The Drennans also allege that the project will violate their s. 7 Charter rights and seek an interlocutory injunction. See also Trillium Power Wind Corp. v. Ontario, [2012] O.J. No. 4702 (Ont. C.A.), in which Trillium is appealing the dismissal of its action to the Ontario Court of Appeal. Trillium seeks $2.5 billion in damages occasioned by Ontario s February 2011 moratorium on offshore wind farms. 5 Monture v. Director (Ministry of the Environment) [2012] O.E.R.T.D. No. 50 [Monture 1]; Chatham-Kent Wind Action v. (Ontario) Ministry of the Environment, [2012] O.E.R.T.D. No. 64 [South Kent Wind Merits Decision]; Haldimand Wind Concerns v. Ontario (Ministry of the Environment), Case No. 12-098, dated January 31, 2013 (E.R.T.) [Port Dover and Nanticoke Wind Merits Decision]; and Monture v. Director, Ministry of the Environment, Case No. 12-054/12-072/12-073, dated December 24, 2012 (E.R.T.) [Monture 2]. 6 [2012] O.E.R.T.D. No. 39 at paras. 18-22. 7 Ball v. Director, Ministry of the Environment, [2012] O.E.R.T.D. No. 39 [Ball]. 8 Ibid. at paras. 39-40. 9 EPA, supra note 2 at s. 142.1. - 2 -

grounds of appeal in the notice after the 15-day period. 10 The Tribunal dismissed the appeal on this basis. 3. Level of Specificity Required for Notices of Appeals Motions Seeking Particulars Have Limited Success Although the Tribunal dismissed the approval holder s motion for particulars in Preserve Mapleton Incorporated v. Director, Ministry of the Environment, 11 it stressed that the level of specificity in the grounds of appeal in notices of appeal should increase as additional REA appeals are filed. 12 The Tribunal explained that its Rules of Practice require that a notice of appeal should identify issues and material facts with sufficient specificity to allow the other parties to properly prepare their responses and with sufficient clarity to avoid wasting time and resources on trying to anticipate every issue or fact that could possibly arise in the appeal. 13 The Tribunal stated that in future appeals, an appellant should set out allegations and material facts (but not evidence) with respect to: (i) the specific nature and kind of harm to human health that it alleges will occur as a result of the project under appeal; (ii) who will be harmed, and in what ways; (iii) the appellant s position on why the harm to human health is serious ; (iv) a description of the appellant s theory of how the project will cause serious harm to human health; (v) the facts or circumstances that identify how the project under appeal is similar or different from other renewable energy projects, such that a similar outcome of serious harm to human health will result (if alleged); and (vi) how any inadequacies, gaps or uncertainties in any laws or policies or in the implementation of any laws or policies (if alleged) will cause serious harm to human health. 14 However, in Monture v. Director 15 one such future appeal the approval holder brought a motion for precisely these particulars of human health impacts, and the motion was denied. Despite the approval holder s argument that the appellant had made only vague and sweeping allegations concerning health effects, the Tribunal refused to order the requested particulars. The notice of appeal, combined with the appellant s complete witness list, an ordered synopsis of each witness s testimony and the ordered medical records of each witness, gave the approval holder sufficient notice of the case it had to meet. 16 Most motions for particulars in REA appeal proceedings have failed. One must, therefore, query the value in bringing them, although the Tribunal may make collateral orders as a result of such motions that can provide the necessary specificity to allow a respondent to properly prepare its evidence. 10 11 12 13 14 15 16 Ball, supra note 7 at paras. 52-58. [2012] O.E.R.T.D. No. 20 [Preserve Mapleton Particulars]. Ibid. at para. 65. Ibid. at paras. 55-56 and 63-64. See also ERT Rules of Practice, Rule 29(e). Ibid. at para. 67. See Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of the Environment, Case No. 11-208, dated February 14, 2012, at pp. 23 and 27 (E.R.T.) [Zephyr Farms Motions to Dismiss]. [2012] O.E.R.T.D. No. 42 [Grand Renewable Wind Particulars]. Ibid. at paras. 46-52. - 3 -

4. New Evidence Can be Tendered at REA Appeals In another wind farm appeal challenging the Zephyr Farms project, the Tribunal dismissed a motion by the approval holder seeking to confine evidence on the appeal to what was before the Director during his decision-making process for the REA or, alternatively, to evidence that was in existence or obtainable by the appellant during that process. 17 Although the Tribunal agreed with the approval holder s position that, due to s. 145.2(2) of the EPA, an REA appeal is unlike other hearings under the EPA in that the Tribunal does not hold a new hearing, the Tribunal rejected the argument that the statutory framework in place for REA appeals to the ERT is indicative of a true appeal that must be confined to the record before the Director. 18 The Tribunal is required to do more than just review the Director s decision. It must make independent findings of fact regarding a narrow issue serious harm that the Director may not have considered. As a result, the Tribunal concluded that the REA hearing fits somewhere on a spectrum between a true appeal and a new hearing and has elements of both. 19 Given the novel nature of an REA hearing, the Tribunal concluded that an REA hearing is narrow in terms of the issues that may be raised, but not in the scope of evidence that can be brought before the Tribunal by the appellant. 20 As a result, relevant information can be tendered, even if that information was not submitted to the Director at an earlier stage. 5. When Motions to Adjourn Can Extend the 6 Month Timeline The Tribunal Can No Longer Grant an Adjournment to Await the Resolution of Judicial Review Applications The statutory scheme contemplates that the Director s decision will be deemed to be confirmed if an REA appeal is not disposed of by the Tribunal within six months. 21 In such circumstances, the Tribunal is obligated to dismiss the appeal. Until it was recently amended on November 2, 2012, s. 59(2) of Reg. 359 provided that this six month period would not include, inter alia, the period of time that a related judicial review proceeding remained outstanding (from the day that the judicial review application was commenced until the day that the application was disposed of) if the Tribunal granted an adjournment of the Tribunal proceedings as a result of the judicial review application. 22 In the REA appeal challenging the Conestogo Wind project, the appellant sought to use s. 59(2) by seeking an adjournment of the Tribunal hearing pending the disposition of the appellant s judicial review application before the Divisional Court. 23 In granting the adjournment, the Tribunal appears to have been persuaded by the argument that, if successful, the judicial review 17 18 19 20 21 22 23 Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of the Environment (2012) 66 C.E.L.R. (3d) 1 (E.R.T.) [Zephyr Farms - Evidence]. Ibid. at para. 92. Ibid. at para. 100. Ibid. at para. 103. EPA, supra note 2 at s. 145.2.1(6), and O. Reg. 359/09, s. 59(1) [Reg. 359 or the REA Regulation ]. Reg. 359, ibid. at s. 59(2). However, s. 59(2) was recently amended, as outlined in this article. See Preserve Mapleton Incorporated v. Director, Ministry of the Environment, [2012] O.E.R.T.D. No. 19 [Conestogo Wind Motion to Adjourn #1]. - 4 -

application would invalidate the REA, thereby obviating the need for a long and costly appeal. 24 Responding to submissions that the six month appeal period could be rendered meaningless by any unmeritorious judicial review application, the Tribunal ruled that the viability of the judicial review application was relevant to an adjournment decision. 25 At face value, this decision invited opponents of any wind farm to bring a parallel judicial review application to the Divisional Court challenging the validity of an REA in order to delay the Tribunal s REA appeal proceeding. Possibly as a result of the Conestogo Wind decision, on November 2 nd, the Government amended s. 59 of Reg. 359 to revoke the Tribunal s power to adjourn an REA appeal because of an outstanding judicial review application. 26 Subsection 59(2) now only excludes the following time periods from the calculation of the six months in which an REA appeal must be decided by the Tribunal: (i) an adjournment granted by the Tribunal on the consent of the parties; or (ii) an adjournment that is: (a) on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties; (b) not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and (c) necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits. 27 As a result of this amendment to Reg. 359/09, an outstanding judicial review proceeding can now only delay the running of the six month time period in which an REA appeal must be decided if the Divisional Court grants a stay of the proceeding before the Tribunal. 28 Ironically, when the Divisional Court dismissed the judicial review application relating to the Conestogo Wind project on the grounds that it was completely lacking in merit, 29 thereby ending the first adjournment and the postponement of the 6-month period, the appellant was once again 24 25 26 27 28 Ibid. at paras. 18, 26 and 30. The judicial review application raised a number of legal issues challenging the validity of the underlying REA. The Tribunal held that its adjournment would cause a suspension of the six month appeal period under s. 59(2) of the EPA because a fair and just determination of an REA appeal depends upon the existence of a valid REA (at para. 59). Ibid. at paras. 43-45. The Tribunal refused to set too high a threshold, as this would force the parties to argue the judicial review application before the Tribunal. Where no argument is made that the judicial review application is frivolous and vexatious, the Tribunal would merely consider whether it raises a serious issue. Ontario Regulation 333/12, Amending O. Reg. 359/09, s. 19 [Amended Reg. 359]. Ibid. at s. 19(2), outlining the new s. 59(2)1(ii) (emphasis added). Ibid. at s. 19(3), outlining the new s. 59(2)2. The Government also added a new provision, s. 59(3), outlining transition rules to address those adjournment requests already granted by the Tribunal before the coming into effect of this amending legislation. 29 See Preserve Mapleton Incorporated v. Director, Ministry of the Environment, 69 C.E.L.R. (3d) 231 (Ont. Div. Ct.), in which the Divisional Court ruled that the appellant: (i) lacked both private and public interest standing to bring the judicial review; (ii) was in no way denied procedural fairness by the Director; and (iii) could mount no credible challenge to the reasonableness of the Director s decision. - 5 -

in front of the Tribunal asking for a second adjournment of the Tribunal proceedings. This time, it argued that the hearing should be adjourned pending the determination of another REA appeal concerning a different project, before a different panel of the Tribunal. 30 The Tribunal dismissed this second adjournment motion, accepting that the continued prejudice to the approval holder (i.e., the practical problems with beginning construction while an appeal is outstanding), the importance of the six month statutory scheme, and the fact that one 89-day adjournment had already been granted militated against any further adjournment. A further adjournment would not be in the public interest. 31 Ultimately, whether an adjournment should be granted will be determined on a case-by-case basis in accordance with the factors set out in Rule 105 of the Tribunal s Rules of Practice: the general principle that each request for adjournment must be determined on its own merits also applies to a motion for adjournment with respect to a REA. 32 6. The Right to Counsel of Choice is not Absolute the Six Months Mandatory Timeline Must be Considered by Appellants When Retaining Counsel The Tribunal has recently released two sets of reasons that further elucidate the Tribunal s approach in considering a motion for an adjournment in the context of an REA appeal. 33 First, Oppose Belwood Wind Farm Association ( Oppose Belwood ) sought an adjournment, in part, because its legal counsel had scheduling conflicts and it needed sufficient time to prepare its case, which included the intended evidence of 50 witnesses to be called over a period of 10 consecutive days. In dismissing the motion, the Tribunal ruled that the right to be represented by counsel of choice is not absolute. Rather, in retaining counsel, there are some qualifications (i.e., the availability of counsel to appear on a party s behalf within the reasonable time requirements of the Tribunal) which must circumscribe the manner in which this choice is exercised. 34 Appellants need to be cognizant of the uniqueness of REA appeals in that the Tribunal must dispose of the matter within six months from the filing of the notice of appeal. Knowing these timing constraints, Oppose Belwood failed to adduce sufficient evidence regarding its efforts to find alternate counsel who was available during the statutorily prescribed time period. 35 Perhaps 30 31 See Preserve Mapleton Incorporated v. Director, Ministry of the Environment, Case Nos. 11-228/11-229, dated July 26, 2012 (E.R.T.) at p. 4 [Conestogo Wind Motion to Adjourn #2]. Both appeals involved the same appellant s counsel and the same or a similar group of witnesses. The appellant argued that to allow both hearings to proceed risked inconsistent results, placed too much stress on the same witnesses and could result in an inefficient use of resources (see pp. 5-9). Ibid. at pp. 10-12. See also Monture v. Director, [2012] O.E.R.T.D. No. 51, in which the appellant s adjournment request was also refused on the basis that it was not in the public interest to delay matters further. 32 Oppose Belwood Wind Farm Association v. Director, Ministry of the Environment, Case No. 12-144, Order dated November 26, 2012, reasons dated January 3, 2013 at para. 29 (E.R.T.) [Oppose Belwood Adjournment Motion]. 33 Ibid. See also Port Dover and Nanticoke Wind, supra note 3, Case Nos. 12-098/12-100, dated December 7, 2012 (E.R.T.) [HWC Adjournment Request #2]. 34 35 Oppose Belwood, supra note 32 at paras. 35-37, citing Pierre v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 849 (Fed. C.A.) at para. 89. Ibid. at paras. 37-38 and 40-41. Oppose Belwood not seek to extend the six-month time period. Since the notice of appeal was filed on November 1, 2012, the Tribunal had to dispose of the matter by May 1, 2013. - 6 -

as a result of the Tribunal s decision to deny Oppose Belwood s motion for an adjournment, it later withdrew its appeal. 36 Second, in its appeal of the Port Dover and Nanticoke Wind project, HWC made a second adjournment request (its first having been dismissed a few weeks before) on the same basis as the request made by Oppose Belwood: scheduling conflicts of its legal counsel. The Tribunal rejected HWC s argument that any efforts it had made to find alternative legal counsel due to its counsel s unavailability were protected by litigation privilege. Rule 104(c) requires that a party requesting an adjournment provide evidence that it made all reasonable efforts to avoid the need for the adjournment. Thus, the effort undertaken by HWC to find alternative counsel (not necessarily the content of any letters or communications that may have occurred in making those efforts) was relevant. 37 In other words, in an REA appeal, all parties are aware of the statutorily imposed six-month time limit and must govern themselves accordingly. Excuses of unavailability either of counsel or of witnesses will generally not win over the Tribunal. 7. No Jurisdiction to Adjudicate Adequacy of Process or Duty to Consult Jurisdiction is Limited to Whether the Project will Cause Serious Harm In Conestogo Wind Motion to Adjourn #1, 38 an appellant, the Haudenosaunee Development Institute ( HDIˮ), brought a motion seeking a wide range of relief from the Tribunal, 39 all predicated upon an alleged failure of Ontario to discharge the Crown s duty to consult the appellant in accordance with its aboriginal rights provided by the Constitution Act, 1982. 40 In dismissing the motion, the Tribunal ruled that it only has jurisdiction to consider whether engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health or serious and irreversible harm to plant life, animal life, or the natural environment. 41 Thus, the relief sought by HDI was beyond the jurisdiction of the Tribunal. A similar result was reached when the Tribunal dismissed an appeal of the Summerhaven Wind Project because it related exclusively to an alleged failure to consult. 42 However, the Tribunal permitted the appellant to adduce evidence on the violation of aboriginal and treaty rights to the extent it related to harm to human health, plant/animal life, or the natural environment. 43 36 37 38 39 40 41 42 43 Oppose Belwood Wind Farm Association v. Director, Ministry of the Environment, Case No. 12-144, dated January 4, 2013 (E.R.T.). HWC Adjournment Request #2, supra note 33, at para. 20. Supra note 23. The appellants sought, inter alia, a stay of the operation of the REA, an order compelling the Director to engage in aboriginal consultations, and an interim costs award. 1982, c. 11 (U.K.), Schedule B. EPA, supra note 2; Conestogo Wind Motion to Adjourn #1, supra note 23 at paras. 67-80. For the same reasons, the Tribunal had no jurisdiction to order the Director to conduct or pay for aboriginal consultations, or to prepare a list of documents pertaining to the appellant s treaty rights (at para. 82). Monture v. Director, Ministry of the Environment, Case Nos. 12-015/12-018, dated July 9, 2012 at pp. 7-8 (E.R.T.) [Summerhaven Motion to Dismiss]. Ibid. at pp. 8-9. - 7 -

Although aboriginal consultation is not a factor that the Tribunal can consider on the REA appeal test, it can be relevant to the terms and conditions imposed upon an approval holder in a REA. 44 8. Scope of Disclosure Medical Documents May or May Not Be Ordered In a number of REA appeals, the Tribunal has decided whether an appellant alleging serious harm to human health is required to produce medical documents (and the appropriate scope of that disclosure). In some of those appeals, the Tribunal has ordered appellants to produce the medical evidence relating to their witnesses alleged medical conditions associated with wind turbines. In other REA appeals, the Tribunal has refused to order medical disclosure. Upon a review of the ERT s reasons, it is difficult to understand the rationale for ordering disclosure in some cases but not in others. Although the panel in one REA appeal proceeding is not bound by the rulings of another panel as a result of stare decisis, some consistency in the Tribunal s approach would be welcome. For instance, in an earlier REA appeal, Zephyr Farms, the Tribunal granted motions by the Director and the approval holder requiring the production of (i) the complete medical records of the appellant s proposed witnesses who claimed serious health effects due to proximity to wind turbines and (ii) all real estate records of those witnesses who alleged that they were forced to sell or abandon their homes. 45 The Tribunal denied the appellant s request for a lengthy adjournment to gather the complete medical records for each witness, given the public interest in a fair and timely resolution of the appeal. The appellant knew of the time constraints on REA appeals when it filed its Notice of Appeal and it had provided no explanation to the Tribunal for its inability to obtain a single medical record for any of the witnesses it proposed to call. 46 After the Tribunal s ruling regarding medical evidence and required disclosures, the appellant in Zephyr Farms withdrew its appeal. 47 However, the Tribunal most recently refused to order medical disclosure in Haldimand Wind Concerns v. Director (Port Dover and Nanticoke), 48 without prejudice to the Director or the approval holder raising the issue in the future, if either of those parties feels that they are prejudiced in their ability to conduct cross-examination of material and probative evidence. 49 The Tribunal appeared to be more concerned about the practical constraints of ordering medical disclosure and delaying the proceeding. 50 The Tribunal explained that its role, as the manager of the hearing process, was to ensure that the hearing proceeds in a way that is fair to all parties and meets the timetable set by the governing legislation for REA appeals. 51 44 45 46 47 48 49 50 51 Monture 2, supra note 5 at para. 83. Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of the Environment, Case No. 11-208, dated February 29, 2012 (E.R.T.). Ibid. at p. 22. See Chatham-Kent Wind Action Inc. v. Director, Ministry of the Environment, Case No. 12-071, dated September 28, 2012, at pp. 15-16 (E.R.T.) and Grand Renewable Wind Particulars, supra note 15 at paras. 49 and 51-52. In the latter, the Tribunal ordered the appellant to disclose all relevant medical documents for postturbine witnesses (witnesses who allegedly have experienced serious harm due to existing wind turbines at other locations). Haldimand Wind Concerns v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 53 (E.R.T.). Ibid. at p. 11. Ibid. at p. 10. Ibid. at p. 19, citing Summerhaven Motion to Dismiss, supra note 42. - 8 -

9. Dismissal of REA Appeals on their Merits: Insufficiency of Evidence To date, four REA appeals have been heard by the Tribunal on their merits. In each case, the Tribunal dismissed the appeals, ruling that there was insufficient evidence of serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. These decisions confirm that the REA approvals issued by the Director to date have been largely protective of human health and the environment. They also confirm that the tests of serious harm or serious and irreversible harm under s. 142.1(3) of the EPA will be difficult to meet. Mental Health Impacts Touched Upon in South Kent Wind In respect of the South Kent Wind project challenged by Chatham-Kent Wind Action Inc., the Tribunal dismissed the appeal on the basis that the appellant, who elected to call no evidence at the hearing and to make no oral submissions, had provided no evidentiary basis whatsoever for the Tribunal to find there will be serious harm to human health from the operation of the Project. 52 Of interest, an individual participant in this appeal also argued that the wind turbines have mental health effects that can negatively affect physical health that fear and anxiety arising from the presence of wind turbines can lead to physical illness and, thus, to indirect human health problems. 53 The Tribunal declined to comment upon the approval holder s argument that allegations of harm arising from individuals negative perceptions of wind turbine development, independent of the operation of the Project, are not relevant to the statutory test and would render it meaningless: if negative perceptions automatically constitute serious harm to human health, then any renewable energy project could be defeated by the simple presence of opposition to it. 54 Instead, the Tribunal focussed on its previous ruling in Erickson, in which the Tribunal had noted that it can consider direct and indirect effects on human health, such as stress-related impacts. 55 Serious and Irreversible Harm to Birds/Bats: Sufficiency of Evidence, Cumulative Effects In Monture 1, the aboriginal hearing participants, led by Mr. Monture, a member of the Six Nations of the Grand River, alleged that the Summerhaven Wind Project would cause serious and irreversible harm to plant life, animal life or the natural environment, contrary to s. 145.2.1(2)(b) of the EPA. 56 No evidence was adduced to support the ground that the project would cause serious harm to human health. 57 52 53 54 55 56 57 South Kent Wind Merits Decision, supra note 5 at para. 59. Ibid. at para. 31. Ibid. at para. 43. Ibid. at para. 58. Monture 1, supra note 5. The appellants alleged impacts upon: (i) the habitats of birds and bats; (ii) land use change, resulting in the loss of plant life traditionally valued for medicinal purposes; and (iii) the right of First Nations peoples to move freely across the land and the right to hunt and gather. Ibid. at para. 13. - 9 -

The Tribunal dismissed Mr. Monture s appeal, but left the door open to other appellants to successfully appeal an REA on the basis that an approved project will cause harm to birds, bats, other animal habitats, or other components of the natural environment. Some of the more important submissions made by the parties, and findings of the Tribunal, related to the serious and irreversible harm test for plant and animal life: the Director and the approval holder made extensive submissions on the meaning of s. 145.2.1(2)(b), arguing that the test of serious and irreversible harm to plant or animal life could not be satisfied by proof, as offered by the appellant, of one bird or bat death. It was well known at the time of the section s enactment and the concurrent enactment of the REA Regulation 58 that every wind farm project will have some bird and bat deaths. The appellant s interpretation would make it impossible for any wind farm project to obtain an REA approval, a result which the legislature could not have intended; 59 the Tribunal agreed with the Director and approval holder and rejected the appellant s position that one bird or bat mortality will always constitute serious and irreversible harm to plant life, animal life or the natural environment. This would make the threshold for s. 145.2.1(2)(b) so low as to render it meaningless because the threshold would always be satisfied in respect of any wind energy project. 60 However, the Tribunal was careful not to prescribe an exhaustive definition of s. 145.2.1.(2)(b), and left open the possibility that a single mortality in some circumstances might constitute serious and irreversible harm ; 61 the Tribunal panel adopted the reasoning in Erickson: what is serious and irreversible harm requires a case-by-case assessment according to all relevant factors; 62 the Tribunal preferred the detailed, expert evidence of biologists for the Director and the approval holder concerning acceptable bird and bat mortality, as more probative and relevant than the general documentary evidence filed by the appellant ; 63 and the Tribunal found that the onus is on an appellant to establish that serious and irreversible harm will occur, on a balance of probabilities (i.e., more likely than not). 64 Evidence of uncertainty or risk is insufficient to meet this test. Similar to the evidence in Erickson, the evidence adduced by the appellant predominantly raised questions and 58 59 60 61 62 63 64 The REA Regulation (Reg. 359), supra note 21, adopted the Ministry of Natural Resources Bird and Bat Habitats: Guidelines for Wind Power Projects, 1st ed. (Ontario, Ministry of Natural Resources, 2011) [Bird Guideline], both of which clearly anticipate that some deaths of birds and bats can occur without reaching a significance threshold. Monture 1, supra note 5 at paras. 30-57. Ibid. at para. 71. The ERT explained at para. 73 that [n]o one disputes that the construction and operation of a wind energy project, of necessity, will cause the death of some individual plants and animals. Ibid. at para. 80. The Tribunal also found that serious and irreversible harm can occur in situations where a proponent has demonstrated compliance with the requirements of the Regulation (para. 81). Ibid. at para. 79. Ibid. at para. 89. Ibid. at para. 82. - 10 -

expressions of concern regarding the potential for harm, as opposed to evidence that harm will occur. 65 Mr. Monture also challenged the Grand Renewable Wind project, which neighboured the Summerhaven Wind Project discussed above, 66 on the basis of both harm to human health and harm to plant/animal life or the natural environment. A more recent decision regarding the Port Dover and Nanticoke Wind Project also focussed on serious and irreversible harm to plant/animal life or the natural environment, and, specifically, on harm to certain bird species. 67 After losing its second adjournment request, HWC, who had challenged the project on the basis of harm to human health, presented no evidence other than filing some academic articles. 68 Without sufficient evidence to buttress HWC s concerns, the Tribunal dismissed HWC s appeal. 69 In addition, an individual participant (a retired farmer from the area) argued (with supporting evidence from a research scientist) that the Port Dover and Nanticoke Project would cause bird collision mortality and bird habitat loss. 70 The approval holder presented evidence that, although there will be some mortality of resident and migratory species of birds as a result of the project, it would not rise to a level of serious and irreversible harm to bird populations. 71 However, the approval holder s expert agreed that, although the risk to individual species is low, the cumulative effect of all proposed projects along the Lake Erie shoreline bears monitoring. 72 In fact, [a]ll the expert witnesses agreed that knowledge gaps remain with respect to wind turbine impacts on birds. 73 10. Disturbing Trend: Tribunal Makes Recommendations to Director and Approval Holder on Terms and Conditions In both Monture 2 and the Port Dover and Nanticoke appeals, the appeals were dismissed in their totality. The appellants in both cases failed to prove the requisite harms under s. 142.1 of the Act. However, the Tribunal in both cases went on to make recommendations to the approval holder and the Director on how the terms and conditions of the REA should be revised or expanded. In Monture 2, the Tribunal was of the view that improvements could be made to [the REA s] terms and conditions, and made certain recommendations for the approval holder and the Director to conduct natural heritage pre-construction and post-construction studies, monitoring and data collection (including aboriginal traditional knowledge) to more fully evaluate impacts 65 66 67 68 69 70 71 72 73 Ibid. at para. 70. Monture 2, supra note 5. Port Dover Merits Decision, supra note 5. Ibid. at paras. 4 and 14-15. Ibid. at paras. 15, 18 and 107. Ibid. at paras. 19-20. Ibid. at para. 72. Ibid. at para. 78. Ibid. at para. 130. - 11 -

following the construction and operation of the wind project, and to evaluate cumulative impacts as other renewable energy projects along the north shore of Lake Erie are constructed. 74 In Port Dover and Nanticoke, the Tribunal recommended additional conditions for tundra swan bird surveys. 75 The Tribunal s issuance of recommendations is a disturbing turn of events and potentially problematic for a number of reasons. First, it is arguably an excess of the Tribunal s jurisdiction. Although the Tribunal has the power to issue binding directions in an REA hearing, it can only do so if it has made a finding of serious harm. Its powers at the conclusion of an REA hearing are limited by s. 145.2.1 of the Act. If a prescribed serious harm is not present, the Tribunal must confirm the decision of the Director. If a prescribed serious harm is present, the Tribunal is given latitude to do one of three things: (a) revoke the decision of the Director, (b) direct the Director to take such action as the Tribunal considers the Director should take in accordance with the Act and the regulations, or (c) alter the decision of the Director, and substitute its opinion for that of the Director. But it must be noted that in either event (i.e., whether there is serious harm or no serious harm) the Legislature has given the Tribunal no statutory power to make recommendations to the Director and approval holder on matters outside its jurisdiction, such as terms and conditions which are not necessary to cure a serious harm but which the Tribunal feels are desirable because they serve some other laudable environmental objective. Second, there is no suggestion in the reasons of either decision that any party proposed the recommendations, or that the Tribunal proposed them to the parties on its own initiative, and that the Director and approval holder were given an opportunity to make submissions on the proposed recommendations before they were issued by the Tribunal. As a result, the Tribunal s recommendations in both cases could represent a denial of natural justice. Third, from a procedural point of view, the Tribunal s willingness to impose recommendations that go beyond the narrow test set out in the EPA could have the effect (in future hearings) of encouraging parties to adduce extensive evidence which is irrelevant to the narrow test and only relevant to general issues of what is environmentally reasonable or acceptable. This could have the effect of transforming future REA hearings into full-blown ERT hearings, in which all environmental issues may be considered. This was obviously not the Legislature s intent in creating the limited test in s. 145.2.1. While it is true that these recommendations can, in theory, be ignored by the Director and approval holder, as they are presumably not legally binding, the Tribunal should recognize that they may have the unfortunate effect of creating community expectations. If these recommendations made without the input of any party prove themselves to be unworkable or ill-advised, the Director s or approval holder s refusal to implement them could result in an unhappy public and additional litigation in venues outside the ERT hearing process. 74 Ibid. at paras. 12-13 and 323. The Tribunal noted that it, currently, would be difficult for any appellant to tender sufficient evidence to satisfy its onus of proof in challenging an REA on the basis of serious harm to bats because there is insufficient baseline data on bat conditions and the ability to measure potential impacts from wind turbines (paras. 288-290). 75 Ibid. at paras. 10-11, 125-126, 172-173 and 175-176. - 12 -

For all these reasons, we hope the Tribunal ends this questionable practice of making recommendations in REA hearings. Conclusion: New Directions Include Extensive Preliminary Motions, the Decline of Human Health Allegations, More Appeals on Impacts to Plant and Animal Life, and the Practice of Making of Recommendations In recent cases, wind farm opponents alleging serious harm to human health have faced a slew of preliminary motions and have been ordered on some occasions to disclose all relevant medical records and to answer written interrogatories. Most of these appeals have been formally abandoned. Others have been informally abandoned, in the sense that the appellants have declined to submit any supporting evidence. It seems these actions are, in part, due to the Tribunal s reluctance to grant an adjournment, particularly when that adjournment would render it practically impossible for the Tribunal to dispose of the matter within the statutorily imposed six-month time limit for REA appeals. Left in the fray are indigenous groups and individual participants, such as local farmers, who are taking action to fight wind farms at the Tribunal level. The Tribunal has ruled out a consideration of the Crown s duty to consult in an appeal under s. 145.2.1 of the EPA, but First Nations have and may continue to fight wind farms at the Tribunal level on the basis of serious and irreversible harm to plant or animal life. These challenges are likely to prove ineffective in satisfying the appellant s onus of proof if they continue to be based solely upon general documentary or anecdotal evidence, rather than credible expert evidence. Other factors may impact upcoming REA appeal hearings. In July 2012, Health Canada announced a two-year study to explore the relationship between wind turbine noise and effects reported by, and objectively measured in, people living near wind power developments. 76 It is possible that this study could breathe new life into the human health objections to wind farms. The recent Tribunal practice of issuing recommendations for new REA terms and conditions, without the submissions of the parties, and without statutory jurisdiction, is a disturbing new trend which the Tribunal will hopefully take immediate steps to eliminate. It is clear that REA appeals before the ERT are still in their infancy and are continually evolving. In the time span of writing this article, multiple Tribunal decisions were released, three new appeals were filed with the ERT and amending legislation came into force. As a result, it will be important to keep a close watch for new developments. *Jack Coop and Dan Kirby are partners and Jennifer Fairfax and Lindsay Rauccio are associates at Osler, Hoskin & Harcourt LLP. Visit http://www.osler.com/ourpeople/ for contact information. An earlier version of this article appeared in the January 2013 issue of The Resource, the official newsletter of the Ontario Bar Association Natural Resources and Energy Section. 76 Health Canada, News Release, Health Canada Announces Wind Turbine Noise and Health Study (18 July 2012), online: http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/_2012/2012-109-eng.php. See new study details, released on February 10, 2013: http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/_2013/2013-021-eng.php. - 13 -