Rewind re Wind

Tamara Farber, Toronto

The latest case to challenge wind turbines and related health effects got, and then lost, some wind in its sails in February 2012 when the Ontario Environmental Review Tribunal ruled on 2 separate motions in the Zephyr Farms case.  Middlesex-Lambton Wind Action Group (“Wind Action”) appealed the Renewable Energy Approval obtained by Zephyr Farms in October 2011 involving the construction and operation of 4 wind turbines with a total generation of 10 MW. 

In the first of the two motions referenced, Zephyr brought a motion to limit the evidence that the tribunal would hear.  The relevant provisions of the Ontario Environmental Protection Act (s. 145.2.1) require the Tribunal to consider whether the project will cause serious harm to human health or serious and irreversible harm to plant/animal life or the natural environment.   The onus at the hearing lies on the person/group who requested the hearing – i.e. Wind Action.   

Zephyr argued that

• the evidence for the tribunal to consider should be limited to what the Director had before him in his decision making process (when he issued the approval) and any new information that the Director did not have that could affect the result of the hearing (which would accord with the admissibility of fresh evidence in civil or criminal appeals).  It argued that the hearing was not a re-evaluation of the entire approval de novo; rather, it argued the purpose of the appeal was to assess whether the Director made a reviewable error of fact, law or procedure;
• Wind Action did not participate in the public comment process prior to the issuance of the approval.  The interpretation of the scheme of the approval process required appellants to raise issues during the public consultation process and not wait in the weeds for an appeal;
• evidence previously heard by the Tribunal in similar cases (the Hanna¹ and Erickson² cases) should not be reconsidered.  It should not to have to re-litigate health issues on every project if the Tribunal has already heard evidence in a similar case and ruled in favour of a project.

Wind Action viewed the suggested scope as too narrow, with broad implications for all future appeals of renewable energy approvals. They agreed that the hearing was not a new hearing in its entirety but offered a hybrid view of the scope of the appeal to include any information reasonably available to the Director in making the decision to issue the approval.  They argued that if environmental protection is the primary goal of the legislation, curtailing the evidence before the tribunal would be inconsistent with that goal.  It also argued that the Tribunal’s job to assess serious harm is not necessarily the same role as the Director in making the approval decision.  The test is broader and evidence should be allowed to match the test.  Further, a process of vetting such evidence would create substantial delays and procedural motions before the tribunal.

The Tribunal agreed with Wind Action that an appeal of a renewable energy hearing is not a new hearing but held that the role of the tribunal was to review the Director’s decision and consider whether harm would result.  If the hearing was meant to be a true appeal, the legislation should have provided some parameters on the standard of review or the threshold test before a hearing could be held.  It viewed its role as requiring it to make independent findings of fact on considerations of harm.  It agreed with Wind Action that the Director is tasked with a different set of criteria for determining if a project should be approved – whether it is in the public interest.  While the appeal is not a new hearing, there is a limited issue for consideration – serious harm.   There is no limit on the evidence to be heard other than relevance to these issues as set out by the statutory test and the contents of the notice of appeal.  It also held that an appellant could raise issues for the first time in an appeal even if it had an opportunity during the public consultation process.

With the wind apparently blowing in favour of the appellant, it was anticipated that many of the expert witnesses that previously testified in the Hanna and Erickson cases would get a “do-over”.   The hearing was scheduled to start in late February but the Ontario Ministry of Environment (the Director) brought its own motion requesting significant disclosure from Wind Action’s lay witnesses who were claiming health impacts.  The Director sought medical records as well some other information, reasoning that if a witness was going to testify about their own health impacts, the testimony ought to be corroborated by medical records.  If there was no such corroboration, the testimony would be prejudicial, of minimal probative value, and would consume an unwarranted amount of hearing time.  A subjective report of symptoms is not the same as diagnostic skills of medical professionals.  Whether a symptom could be linked to specific impacts from a wind turbine would not be something a lay witness could testify to.

The appellant’s witness list contained multiple witnesses proposing to testify about health effects each personally suffered living in close proximity to other wind turbines without linking any effect to the operation of the specific wind turbine approved in this case.  The witness summaries contained no specifics of the health effects, what aspect of the project was alleged to cause these effects, or medical records supporting these claims.  The appellant initially advised the Ministry that it did not have the requested records or the requested information was irrelevant.  Wind Action argued that the records were too voluminous, would delay matters and would be costly to the appellant to produce. Citing proportionality concerns, it argued that the request was incompatible with the schedule for renewable energy appeals.

The Tribunal ruling was released at the end of February 2012, ordering disclosure of medical and real estate records, siding with the Director’s requests for information.  The Tribunal held that proportionality in the civil context was not analogous to its procedures.  It held that since the case was about health effects, the requested disclosure was “highly relevant”.  The Tribunal denied the MOE’s request to prevent lay witnesses from testifying as this was a matter of the weight to be accorded to subjective testimony.  The Tribunal also gave some parameters regarding its understanding of what is to be contained in a witness summary in cases of this sort:

It is not sufficient at this point, on the eve of the Hearing, to say only, for each of approximately 18 individuals, that he or she “lives in close proximity to an industrial wind turbine” project and has suffered “serious health effects”. Specific, relevant facts, such as the location where each individual lives in relation to a turbine project, information about each wind turbine project, measured noise levels at each location, and the specific symptoms and particular medical conditions suffered by each individual, must be stated in the summary of evidence.

Wind Action withdrew its appeal in early March 2012.  The matter was formally dismissed by the Tribunal on March 14, 2012.

There are two other wind appeals currently in process with the Tribunal – one involving a wind farm in Wellington County (the proponent is Conestogo Wind LP) and one in Chatham Kent County (the proponent is Gesner Wind Farm LP, represented by Miller Thomson). In the Gesner case, the appellant has also expressed its interest in withdrawing the appeal, subject to approval of the Tribunal which is still pending.

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