Ostrander Point at the Ontario Court of Appeal — Day 2
Now we know what the stacks of paper before the 3 Judges and 12 lawyers were all about. During the day, the lawyers for Gilead and for the Ministry spent a mind-numbing three hours and six minutes concentrating on one theme. To do so, each constantly referred the Judges to pages among the many thousands in those stacks, which contained the complete transcript of the proceedings before the Environmental Review Tribunal and the Divisional Court.
The theme on which they concentrated was this: the duty of a Tribunal and of a Court is -as a matter of law – to be reasonable in arriving at decisions. In their view, the decision of the ERT was unreasonable on its face and therefore the decision of the Divisional Court to overturn it was its reasonable duty. In advancing this view, it was necessary constantly to refer to many different phases of evidence given at the ERT and to comments of the Tribunal members. This they did for the period indicated. In particular, the evidence given by Dr. Beaudry before the ERT and its effect on the Tribunal came in for scathing criticism.
Towards the end of a long day, the lawyer for CanWea (the trade association of the wind industry) struck a different and shorter note by contending that the decision made by the ERT was completely beyond its powers to make, and that it should have been made in the public interest, the requirement made of the Director under the Green Energy Act in whose shoes, it was said, the ERT stood.
Rebuttal remarks were provided by Chris Paliare, counsel for SSC, directed at the mortality to the turtles which would be caused by the nine access roads required, the amount of concrete and heavy equipment which would be moved along those roads and installed in, under and on the land. Eric Gillespie finished the hearing on behalf of PECFN with additional comments demolishing so-called points made by the opposition.
Justice Cronk thanked all counsel for their helpful submissions (a normal courtesy) and asked them to return in one week for a preliminary discussion about costs.
Her final remark was possibly the most intriguing of the day – “our decision will not be ready before Christmas”. Given that the Court of Appeal decisions normally take up to six months, could this mean that it might be available in the first month of the New Year?
We will see; meanwhile those of us in the County who feel strongly can rest assured that our concerns were dealt with by a highly competent Bench in an open and transparent manner, and by outstanding counsel for PECFN, SSC and Nature Canada.
And finally from this correspondent on behalf of us all, congratulations to Prince Edward County Field Naturalists and to South Shore Conservancy for courage, devotion and a sense of what is right far above the norm.
Garth Manning, Q.C.