Friday, 2 March 2012

When tears are not enough

Middlesex-Lambton Wind Action Group Withdraws ERT Appeal

On March 1, 2011 the appellant, in the second Renewable Energy Approval (REA) appeal to have come before the Environmental Review Tribunal (ERT), withdrew its appeal.  Middlesex-Lambton Wind Action Group was appealing the REA that had been granted to Zephyr Farms Ltd. for their Brooke-Alvinston Wind Farm project in the County of Lambton.

As usual, each side in the case have different interpretations of what happened in the proceedings and what the rulings mean.

Fogler, Rubinoff LLP, who were counsel for the REA holder, made the following points on their environmental law blog :

In Reasons for Decision on a motion brought in Ontario’s second REA hearing released on February 29, 2012, the ERT confirmed that medical records of an REA Appellant’s lay witnesses who claim serious health effects due to proximity to wind turbines would appear to be highly relevant to an REA Appellant’s case. 
The ERT further confirmed that: 
1) all such medical records must be provided at the 3 week disclosure point set out in Appendix A to the ERT’s Rules, so that the other Parties can determine if they need to include other witnesses, expert or otherwise, along with their statements, at the 5.5 week disclosure point; 
2) that specific, relevant facts, such as the location where each lay witness 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 due at the 3 week disclosure point as well; 
3) the ERT’s 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 disease; and 
4) the usual way of presenting opinions on medical diagnoses or the causes of disease is through qualified medical experts who are familiar with the medical histories of the individuals and knowledgeable about the etiology of the disease those individuals suffer from.
In other words, if one side or the other is calling a lay witness (someone without relevant credentials) they must also present corroborating evidence from qualified experts.
To date, there has been no communication from Eric Gillespie, counsel for the appellant, regarding the ERT Decision.  However, Harvey Wrightman, of the Middlesex-Lambton Wind Action Group, provided a statement to Wind Concerns Ontario.
Wednesday, February 29, the ERT released a decision that has been very helpful for understanding what appellants need to bring before the Tribunal in order to be successful.

1) The Tribunal confirmed that the testimony of residents is important and will be accepted.

2) The Tribunal has indicated that certain additional documentation will assist them in making their decision. It is much better to have a clear directive from the Tribunal before the hearing rather than at, or after the full hearing has taken place.

It is clear that it will not be possible to obtain and organize documents for witnesses prior to the start date of the Zephyr appeal, which is currently scheduled for March 7th.  While we have an impressive staff, they cannot perform a Biblical miracle - i.e., produce in 6 days all the 23 witnesses' medical records for the past 10 years.

As a result, after consulting with the research team and counsel, the appellant, Middlesex-Lambton Wind Action Group Inc. has decided to withdraw the current Zephyr appeal.

In a subsequent entry, we'll condense what the Directors of the ERT had to say about this.