Day 5 of the Ostrander Point ERT Appeal — Dr. Catling cross-examination

[Here is a report on Day 5 by Karen Empringham.]

Ms. Davis (representing MOE) continued her cross examination of Dr. Paul Catling, the alvar expert. Ms. Davis tried to get Dr. Catling to agree that he said there was already prior and continued human disturbance from ATV traffic and beach parties. Dr.  Catling agreed to the ATV traffic but not to any evidence of the beach parties and further that he considered such disturbance from ATV’s to be minimal.  Ms. Davis took 3 1/2 hours to take us through an exhaustive list of references to particular plants that may or may not be present on site. lDr. Catling remained calm under fire and explained that just because a plant was not listed in a study 15 years ago did not mean it was not there then or now.

Ms. Davis continued to try to pin down Dr. Catling to agree with various statements to which Dr. Catling consistently replied No or Yes, but … basically refuting her point.

Ms. Davis tried to discredit one article written by Dr. Catling which listed species at the site as not being a comprehensive study worthy of a scientific journal, to which Dr. Catling agreed. He went on to say that sometimes articles are written more as a point of view and published as such, even in scientific journals. Occasionally the point of view articles are more popular and
re-prints requested more frequently than the scientific ones. Ms. Davis continued this line of questioning to the point where she asked whether the absence of detailed field notes would discredit the article. Dr. Catling simply replied, “People would rely on my reputation as an alvar expert with 30 years of experience.”

Ms. Davis did hand Dr. Catling one big opportunity to gain points. She asked if he was a qualified engineer during the discussion about access roads. He replied that he was not but since this was not an engineering problem, but a biology problem, being an engineer did not matter. Dr. Catling had been discusing the orientation of the roads. He stated that north to south access
roads such as the trails already there, were not as problematic as the east to west roads proposed for the site. The reason for this is that the site drains north to south. Putting an east-west road, even at grade, will disrupt the natural drainage of the site. Dr. Catling also noted that the profound crushing that would take place due to the weight of the construction vehicles, would
dramatically affect the flow of the groundwater within the site. Dr. Catling made the point that there had not been a hydrology study for the site and he considered that to be an omission.

Dr. Catling also discussed the natural disturbances which occur in nature – flooding, drought, and fire. Of these 3, fire was unlikely for this site, but the first 2 were likely to be consistent factors for this site. As a result, the plants there would be plants that are adaptable to the cycle of flood and
drought. Again Dr. Catling mentioned the lack of a hydrology study for the site. The flood/drought cycle is one that is very delicately balanced and it is very difficult, if not impossible, to get it right through management of the site.

Dr. Catling also maintained throughout his testimony that he was uncomfortable with the wording of the draft alvar management plan,where it stated that the site could be brought to “pre construction conditions”. He felt this was impossible to achieve and further that 4 years of post-construction monitoring was insufficient to even attempt to do this.

Ms. Davis asked Dr. Catling if he had participated in any successful restorations and he said he had. He did not say what the sites had been restored from. I am assuming that this will be part of Mr. Gillespie’s re-examination effort.

Still to come is the cross examination of Dr. Catling by the lawyers for Gilead.

Eric Gillespie pointed out the unfair advantage of having the MOE cross-examine Dr. Catling for a total of 5 1/2 hours and the estimated time for Gilead’s lawyers to also cross examine him for 4 to 5 hours versus only 1 1/2 hours by Mr. Gillespie (in the interest of the timeline) plus 1/2 hour estimated for re-examination.

Moving on, we heard from Dr. Alvin Goddard Hill, a family doctor with an undergraduate degree in biology who is an avid birder. Despite not being qualified as an expert witness, the tribunal did allow Dr. Goddard Hill to make his 15 minute presentation. The presentation was very general but one interesting point was that many years ago when he started birding at Prince Edward Point (before the bird observatory was established), car loads of naturalists were leaving Kingston to come to PEC (rather than to nearby Wolfe Island) because the birding at PEC was better.

We also heard from Mr. Parker Gallant, on behalf of WCO. Mr. Gallant’s testimony centered on bats only and the omissions or errors in the acoustical monitoring report for the site. Just one example is that the report stated site investigation revealed no bat roosting sites within 120 metres of the proposed turbine locations. This is based on a presumed assumption that bats will
venture no further than 120 meters in search of aerial insects when feeding, which is not realistic.  Further the monitoring reports did not cover the month of May, which is the most important month from a bat monitoring perspective.

The discussion around the motion for a stay to start construction was not heard. The lawyer for Gilead explained that until the draft alvar management report had been approved, no construction could take place. It is up for public comments until March 30th, the MNR must consider the comments made before approving or not. Construction has been precluded from May 1 to July 31 (breeding season). It is unlikely that Gilead will have time to start any construction activities, but if that were to change, Mr. Gillespie would be given ample advance notice and the motion to stay could be brought forward again.

Not so brief after all, but Dr. Catling’s testimony, in particular, was important to get down. Also, the feeling I got throughout was that although Ms. Davis stated at the outset that she was concerned about the timeline, she is the one, so far, who has been most guilty of wasting the court’s time. Her intention may be to drive up the cost of the hearing and hope the appellants drop out due to lack of funds.

Regards, Karen