Ostrander Point ERT: Court allows the appeals of Gilead & MOE re Blanding’s turtle
Here is a brief synopsis of the 40-page decision by Ontario’s Divisional Court, in the Court’s own words as much as possible. It has been prepared by a non-lawyer, and is focused on what may be the most significant aspects of the decision as regards possible future actions by residents’ groups.
Gilead / MOE appeals re Blanding’s turtle: allowed
The Divisional Court has allowed the appeal by Gilead and the MOE of the ERT’s decision to revoke the approval of the Ostrander Point wind project, based on its finding that the Tribunal committed six errors of law:
- “The Tribunal failed to separately identify and explain its reasons for concluding that, if serious harm would result from the Project, that serious harm was irreversible;
- “The Tribunal concluded that serous and irreversible harm would be occasioned to Blanding’s turtle without any evidence as to the population size affected;
- “The Tribunal concluded that serious and irreversible harm would be occasioned to Blanding’s turtle arising from road mortality without any evidence as to the current level of vehicular traffic on the Project site or any evidences as to the degree of increase in vehicular traffic arising from he Project;
- “The Tribunal failed to give sufficient weight to the existence of the ESA [Endangered Species Act] permit, the conditions attached to that permit, the obligation of the MNR to monitor and enforce the permit and the fact that the Renewable Energy Approval expressly required Ostrander to comply with the ESA permit;
- “The Tribunal failed to give a proper opportunity to the parties to address the issue of the appropriate remedy and thereby violated the principles of natural justice and procedural fairness;
- “The Tribunal erred in finding that it was not in a position to alter the decision of the Director, or to substitute its opinion for that of the Director.”
The Court concluded on this appeal by stating: “The Tribunal’s decision on  serious and irreversible harm was unreasonable for the reasons that I have given. The Tribunal’s decision on  the appropriate remedy was reached following on a breach of the rule of natural justice by failing to accord procedural fairness to the parties. Consequently, neither of the decisions of the Tribunal can stand. The appeal is therefore allowed and the decision of the Tribunal is set aside.
PECFN’s appeals re birds and alvar: dismissed
The Divisional Court has dismissed the appeals by PECFN on birds and alvar, stating that “none of the issues raised regarding the conclusions reached by the Tribunal rise to the level of an error of law that would give this court jurisdiction to intervene”.
- Re birds, the Court accepted the findings of the Tribunal that the extent of harm to birds should be considered on a regional, rather than a local, basis and that there were effective mitigation measures planned to deal with the potential for increased bird mortality.
- Re alvar, the Court referenced the Tribunal’s findings that the alvar had recovered from significance disturbance in the past and that, therefore, there was no basis for concluding that any harm would be irreversible; also that mitigation measures were properly considered.
APPEC’s appeal re human health: dismissed
The Court has dismissed the appeal by APPEC on human health, agreeing with two findings of the Tribunal which it described as “central to [the Tribunal’s conclusion that serious harm to human health has not been demonstrated to the level required…”:
- “Witnesses, who gave evidence regarding their perceived effects from exposure to wind turbines, were inherently unreliable.”
- “Dr. McMurtry’s evidence … was based on a [novel scientific] theory yet to be proven [reliable] ”.
Re testimony on the effects of exposure to wind turbines, the Divisional Court made reference to:
- Testimony by expert witnesses that “the subjective recall of individuals regarding health effects has been shown, through scientific studies, generally to be unreliable”.
- Testimony by fact witnesses reporting “health effects or changes that were clearly demonstrated not to be related to wind turbines despite the witnesses’ fervent belief that they were.”
Regarding Dr. McMurtry’s “novel scientific theory”, the Divisional Court referenced four factors previously set out by the Supreme Court of Canada regarding threshold reliability, and found that Dr. McMurtry’s expert evidence “failed when tested against any of these factors”:
- Whether the theory or technique can be and has been tested;
- Whether the theory or technique has been subjected to peer review and publication;
- The known or potential rate of error or the existence of standards; and,
- Whether the theory or technique used has been generally accepted.
Here is a link to the Court’s decision .
And here is a link to a Toronto Star story .