Ostrander Point ERT preliminary hearing — report by Ian Hanna
[The preliminary hearing will be continued in Toronto on Thursday, February 14, 09:30. You may attend via teleconference by dialing 1-866-500-5845 and entering the conference ID: 1219634# .]
Environmental Tribunal Preliminary Hearing – Ostrander Point
by Ian Hanna
Friday February 8, 2013 – Picton
A standing room only crowd packed the meeting room above the Picton Fire Hall, Friday morning, as the Ontario Environmental Review Tribunal Preliminary Hearing began at 11:00 AM. With a major snowstorm predicted for the afternoon, one could be forgiven for conjuring up images of Bill Murray; Punxsutawney, Pennsylvania; and the comedy classic, Groundhog Day. In fact, one wonders if Sylvia Davis, Ministry of the Environment Legal Counsel, feared repeating this day over and over again as she surveyed the rapidly deepening snowfall, outside the tiny building, in this most rural of rural settings. Perhaps that was what occupied her mind when she quipped “if we ever get out of this place” to Commissioner Robert Wright, in reply to his request for discussion about the post-lunch timetables.
The hearing began with Mr. Wright seeking to qualify applications from six or eight individuals and one organization for status as either participants or presenters at the upcoming Environmental Review Tribunal. Each (presenter or participant) allows a person/organization, with an interest in the proceedings, special status to provide information which may otherwise not be available or, perhaps, overlooked by the Tribunal. Neither affords the right to full participation in the hearings or, for example, to call witnesses.
This process was rather lengthy and quite difficult to endure for many of the 100 plus citizens who attended the hearings. However, it was (and will continue to be, well into next week) a necessary process through which this Tribunal must go.
Gilead opposed all applications from individuals who are against the project and also opposed the only organization seeking presenter status, Wind Concerns Ontario – and it supported the applications from two individuals who have clearly indicated their full support for the project. This was hardly surprising.
Counsel for APPEC and PECFN did not initially take a position in opposition to any applicant – thereby accepting the right of these individuals and organizations to be heard in a public hearing.
Most disturbing, however, was the fact that the Ministry of the Environment opposed all individuals and organizations that do not support the project, but it supported the applications of the two individuals who fully support the project. It is an outrage that the Ontario Government only recognizes or supports the right to expression for those who agree with them! Indeed, even more alarming, is that it would take a strong position attempting to strip any citizen of this right.
Perhaps Ms. Davis was again dreading a pending “Groundhog Day experience” when she turned to the crowd of over 100 citizens, with what could only be described as a used-car-dealer, disingenuous smile and blurted out: “it’s because we have such an expedited process and there just wouldn’t be enough time to hear everyone”. Does this Government lawyer just figure we’re a bunch of slow learners? If the process is so expedited, Counsellor, why support the rights of some but not others? – Oh, and just for good measure, let’s remember – it was your employer, your client, that created the artificial six-month deadline on this process.
Shortly after the lunch break, Commissioner Wright deferred final decisions on most of these applications. Further discussion on status for these various parties and final decisions will be handed down next week.
The Commissioner then forged ahead into hearing preliminary motions which had been brought by the Proponent and the MOE.
When Commissioner Wright called this meeting to order, he took the time to explain some important procedural items to the public. He explained he would be hearing various items on the agenda for this preliminary meeting (including those applications described above) and a number of initial motions already before the Tribunal. He would also hopefully be able to set some dates and schedule meetings leading up to the actual Tribunal hearings set to begin in early March. He pointed out there would be either 2 or 3 commissioners for the actual tribunal hearings (he might or might not be one of them).
The first motions brought by the MOE concerned medical records and interrogatory questionnaires. The MOE asked the Tribunal to rule that the appellant (in this case, APPEC – as APPEC’s appeal is based on the serious harm Turbines create for humans), be forced to provide 15 years of medical records for each and every one of 23 witnesses (identified in the APPEC list of witnesses for this hearing) and that each of these witnesses be compelled to complete exhaustive interrogatory questionnaires provided by the MOE. Much was made by MOE’s Counsel about decisions in prior ERT hearings concerning the need for medical records. She finished her comments by suggesting that Counsel for the Appellant had been involved in prior ERT’s and had not yet provided the requested medical evidence – commenting in a condescending, Holier-than-Thou, way that this behaviour must be seen as “abuse of process!!”
Counsel for the Appellant replied and agreed that the medical records would be extremely helpful and important. He, however, had a completely different “take” on the situation and asked the Commissioner to consider seriously the fact that the cost of collecting such medical evidence was enormous and well beyond the ability of either the appellant or individual witnesses to bear. He provided completely un-refuted evidence from prior ERT hearings showing the substantial costs associated with collecting such evidence. Addressing the Commissioner, but turning slightly towards the MOE lawyers, Eric Gillespie said, “Nobody has challenged the record that the cost of providing medical evidence is just too high. Frankly, it is just plain offensive that the counsel on the other side of this room calls this abuse of process! What is the cost of access to justice in this province!”….
Gillespie then turned back towards the Commissioner and demanded, “Who pays? And we say that decision has already been made by Rule 30.10 of the rules of civil procedure. Who pays? The Ministry with all of the resources of the Provincial Government? The proponent, who stands to gain millions of dollars in profit from the project? Or the appellant who stands to gain nothing?”
No decision was handed down on this important matter.
The meeting was adjourned at 5:30 PM