Tuesday, 6 March 2012

When tears are not enough - Part 2



This post is a followup to "When tears are not enough", that covered the withdrawal of the appeal by the Middlesex-Lambton Wind Action Group of the Renewable Energy Approval that had been awarded to Zephyr Farms.  The appeal was being heard by the Environmental Review Tribunal.  In a previous post, we showed the interpretations of what happened in the proceedings from MLWAG and from the counsel for Zephyr Farms.
In this post we'll quote from the Tribunals Decision.
The first part of the Decision covered the timing leading up the Decision.  It's important to keep these dates in mind as context while reading the Decision.

2011Oct31 REA issued to Zephyr
2011Nov15         MLWAG filed appeal
2011dec15         Tribunal sets schedule
2011jan06 Deadline for initial discovery documents
2012jan13 MOE files motion requesting, among other things: 
  a. medical records for those claiming serious health effects
  b. records of lawsuits brought by witnesses against 
                                      wind turbine operators
  c. real estate records from witnesses alleging that 
                                      they were forced to sell or abandon 
2012jan20 Tribunal orders that motion be heard in writing
2012feb02 Tribunal orders that: 
  a. Appellant provide documents in a,b,c by 2012feb09
  b. Parties exchange all other documents and witness 
                                      statements by 2012feb16
  c. Parties exchange any reply witness statements
                                      by 2012feb24
2012feb21 Original date for commencement of hearing
2012feb29 Date of reasons for ERT Decision on MOE motion
After a preamble regarding which statutes cover the proceedings, the Tribunal covered three issues:
1. Whether the motion for production of documents be heard in writing:  
The Tribunal ruled in favour of written submissions.
2. Whether the Director's Motion for production of documents pertaining to medical records for the witnesses who are claiming serious health effects due to proximity to wind turbines, information and records concerning any and all lawsuits filed by witnesses against wind turbine operators and all real estate records from those witnesses alleging that they were forced to sell or abandon their homes, should be granted.

Here are the relevant extractions from a long Decision:

.... 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 disease.  The usual way of presenting such evidence is through qualified medical experts who are familiar with the medical histories of the individuals and knowledgeable about the etiology of the diseases those individuals suffer from.  To this extent, complete medical records of the Appellant's proposed witnesses would appear to be highly relevant to the Appellant's case. ....
....The Tribunal must balance the interests of all of the Parties, and, in light of the regulated timeline, the public interest in a fair and timely resolution of this appeal. Given these interests, the Tribunal finds that a lengthy adjournment to gather complete medical records for each witness is not appropriate. The Appellant knew of the time constraints on REA appeals when it filed its Notice of Appeal on November 15, 2011. More than two months later, it has provided no explanation for its inability to obtain a single medical record for any of the witnesses it proposes to call. According to the cross-examination of the affidavit of Ms. Croome by Counsel for the Director, as of January 23, 2012, it appears that the only records that have been requested by Counsel for the Appellant are records in the hands of the witnesses themselves and no request has been made for records directly from physicians; hospitals, or OHIP. ....
.... It seems difficult to believe that not one set of medical records has been obtained, or could have been obtained, by this point. ....
.... With respect to the Director's request that the Tribunal prohibit witnesses from testifying about their own health status, the Tribunal will not at this stage issue an order preventing lay witnesses from giving testimony as to symptoms they experience. The Tribunal will ultimately have to assess the relevance and weight of this testimony, but will not now preclude introduction of that evidence. ....
.... The Tribunal's direction to the Parties in its December 15, 2011 Order required, by January 6,2012, a summary of intended "evidence", that is, a summary of the evidence (factual and opinion) that each witness will testify about. 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. ....

So, witnesses may be heard, but their evidence will be weighed by the facts supporting their claims.  In other words, tears are not enough. In addition, those facts must be made available to the other counsel during discovery.

3. Whether the Tribunal should grant an order striking the Appellant's Witness List "B" as an abuse of process.
List "B" are the expert witnesses, most of whom had been called in the previous ERT hearing.  The Tribunal ruled that they could be heard but only on issues relevant the this particular project and only on information that has become available since the last hearing.  In other words, the Appellant could not re-litigate the previous hearing.

Then, as reported in the previous post, the Appellant withdrew its appeal.

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