*UPDATED* At the start of the hearing of the motions on March 1, 2012 the Appellant announced that it wished to withdraw its appeal. All parties consented to the withdrawal of the appeal.
Ontario’s second REA hearing alleging “serious harm to human health” has seen its fair share of motions attempting to define the nature of REA hearings.
On February 6, 2012, the ERT released its decision on a motion brought by the approval holder on November 22, 2011 that sought to limit the scope of evidence permissible in an REA hearing on the basis that the EPA provisions that apply to new hearings are specifically excluded from applying to REA hearings. The ERT determined that the nature of an REA hearing is neither a new hearing or a “true appeal” but has elements of both. It is a novel regime designed to further the legislative scheme promoting renewable energy while respecting the government’s obligations to protect human health and the environment. On the issue of the scope of permissible evidence, the ERT held that an REA hearing is narrow in terms of the issues that may be raised in it, but not in the scope of the evidence that can be brought before the ERT by an Appellant with respect to the narrow issues. Ultimately, the Tribunal held that information relevant to the issues in the appeal can be brought before the ERT even if that information was not submitted to the Director at an earlier stage. Such information is not required to pass the new evidence test, but rather the key determinant of its admissibility as evidence at an REA hearing should be the relevance of the information to the issues under consideration, as defined in an Appellant’s Notice of Appeal and limited by the EPA.
On February 14, 2012 the ERT released its reasons for a decision issued on December 16, 2011 dismissing a motion to dismiss the hearing due to deficient Notices of Appeal. The ERT ultimately reasoned that the various iterations of the Notice of Appeal at issue provided sufficient indication of the Appellant’s case to satisfy the requirements of both the EPA and the ERT’s Rules. The ERT noted that it is apparently the view of the Appellant that it does not need to demonstrate “unique” harm in this hearing based on its contention that all similar projects cause harm. The ERT pointed out that this approach is similar to what occurred in Erickson v. Ontario (Director, Ministry of the Environment) (2011), 61 CELR (3d) 1 (“Erickson”), and indicated that while it is open to the Appellant to hold such a view, it will have to bring forward sufficient evidence to prove that contention, and there was not such sufficient evidence in Erickson.
On February 29, 2012 the ERT released its reasons for a decision issued on February 2, 2012 ordering amongst other things the disclosure of medical records and real estate records relevant to the subject matter of the appeal that are in the possession, control or power of the Appellant. The issue arose after the Appellant proposed to call approximately 18 individuals that live in close proximity to a wind farm to testify about suffering “serious health effects”, but failed to disclose any medical records related to those individuals on the disclosure date of January 6, 2012. In its reasons, the ERT pointed out that its Rules provide that lay witnesses are only permitted to give testimony with respect to facts as they observe them and are not permitted to express opinions on medical diagnoses or the causes of diseases. The usual way of presenting medical diagnoses or the causes of disease is through qualified medical experts who are familiar with the medical histories of the individuals making the claims and the etiology of the diseases those individuals suffer from. On this basis, the ERT ruled that complete medical records of the Appellant’s proposed witnesses would appear to be highly relevant to the Appellant’s case and any that were in the possession, control or power of the Appellant should have been disclosed on January 6, 2012. The ERT then balanced the need for complete medical records with the public interest in a fairly and timely resolution of the appeal in light of the 6 month regulated timeframe and held that it would be inappropriate to grant a lengthy adjournment to allow the Appellant to gather complete medical records for each of its proposed witnesses. The ERT observed that the Appellant knew of the time constraints associated with REA appeals when it filed its Notice of Appeal on November 15, 2011, that the Appellant provided no explanation for its inability to obtain a single medical record for any of the witnesses that it proposed to call by January 6, 2012 and that it would be neither fair nor reasonable to adjourn the hearing for many months to the permit the Appellant to gather the evidence to present its case. The ERT declined to prohibit the Appellant’s proposed lay witnesses from testifying as to symptoms that they experience, but will ultimately assess the relevance and weight of any such testimony. The ERT also decline to prohibit the Appellant from calling the same witnesses to testify in this hearing as were called by the Appellants to testify in Erickson because it does not know whether these witnesses intend to testify about new studies or present other new evidence that might support different findings of fact from those that were found in Erickson. However, the ERT pointed out that it has the power to prevent the Appellant from re-litigating the factual findings in Erickson as well as admit evidence from other proceedings under s.15.1 of the SPPA, and that the findings of fact in Erickson are relevant to the current appeal.
The ERT’s February 29, 2012 reasons also provide guidance with respect to the disclosure process in an REA appeal. The ERT stated that the “intended purpose of the two points of disclosure is to have all “existing” or known witnesses identified and complete summaries of their evidence provided at the first disclosure date. Then, as each Party evaluates the information provided by the others, each can add witnesses as needed to respond to the evidence the other Parties will present. Details about this additional evidence must then be provided by the second disclosure date. The intention is not to have a Party divide its known witnesses and summaries of their evidence between the two points of disclosure, as it deems most convenient or strategic.” With respect to this particular hearing the ERT pointed out that the Appellant’s intention of providing full witness statements and documents at the second disclosure point for those witnesses who were known prior to the first disclosure point was not in compliance with the ERT’s disclosure order, but permitted this process to occur because of what appeared to be a misunderstanding on the part of the Appellant’s Counsel about the nature of the first and second rounds of disclosure ordered by the Tribunal.
On March 1, 2012, several additional motions are set to be heard by the ERT in this case on issues ranging from confidentiality of personal medical information of some of the Appellant’s lay witnesses to the relevance of certain information that the Appellant’s proposed witnesses hope to rely on at the hearing.
The hearing is set to begin on March 7, 2012.
Stay tuned.
Albert is an Associate whose practice involves all aspects of Renewable Energy and Environmental Law. He joined Foglers in 2010 after 10 years with Ontario’s Ministry of the Environment. He is a graduate of York University’s joint MES/LLB program and also has a B.Sc. in Biology from York. He can be reached at aengel@foglers.com or 416-864-7602.
