Send us to the ERT? Better to send us straight to the gallows.

Copy of goderich2by Harvey Wrightman
I was at the Goderich Court on Friday to hear more legal arguments about a wind project. Shawn and Trish Drennan are opposing the “K-2” wind project, a massive 142 turbine project which will cover most of Ashfield/Colborne/Wawanosh Township. At the noon recess Shawn asked me, “How does this court hearing compare to an ERT hearing?”. Well, let’s see – the motion to strike the Drennan family’s application for an injunction on the construction of the Pattern/Samsung K-2 wind project – that sentence alone illustrates how convoluted this whole wind business has become, so horribly twisted that the Drennan’s have sought to cut through it all  with a plea for relief to the Court.

The Crown and K-2 insist that there is an overall “public interest/benefit” in constructing wind energy projects. Mr. Bredt, lawyer for K-2 also submitted that “…one wouldn’t consult with the public if one wasn’t concerned about the impacts…,” he said it with the same leery smirk that I had so often seen on the  $500/hour lawyers engaged by companies for the ERT appeals.  Remarkable! This wonderful Renewable Energy Application (REA) process was so lovingly crafted to care for and protect the “receptors” (persons).  So exceptionally nurturing is this process and so intent is the government on rigorously assessing the quality of service, that we now have the attention of 2 sets (both federal and provincial) of academic/engineering/medical professionals who will “study” subsets of the subject “receptor populations” to better define the impacts on “receptors” – on a gross, averaged level, not individual specific. In the court room I’m sitting beside a person/receptor forced to move from a house surrounded by turbines, who has heard this BS far too many times.  I’m always amazed at the ability of people affected to not give in, but to continue to resist in the way they are capable of. Rural citizens are in a battle with an administrative structure gone hay-wire.

No surprise then that there was much argument and dance about the “onus to prove harm” –  the amount and the actual type of harm – which brings us back to the point of differentiation between Court and the ERT:  the ERT appeals have a fairly narrow focus and a very high standard of proof required.  The appellant must prove serious and irreversible harm will occur to human health or to the physical environment. What is the definition for “serious harm to human health”? There isn’t one. It’s a loosey-goosey term. Further, at the ERT the proof must be absolute – almost to the point that one must designate which “receptors” will be harmed with 100% certainty.

There was an attempt by Mr. Bredt, lawyer for K-2 to transport this absolute reverse onus standard that the ERT requires into Civil Court.  Justice Duncan caught that one and asked Mr. Bredt whether “serious” need be added to the statement of claim. This is an important point and one worth protecting. In civil proceedings proof of harm need not be absolute, only that on the balance of probabilities harm may occur.  Wind companies and other industries would love to tighten the definition so as to make the victim pay more. Trying to soften the company image, Mr. Bredt referred to K-2 as a “person.” Not exactly buying this, Justice Grace looked up and said, “K-2 is a company not a person.”  Mr. Bredt smiled and said, “…a corporate person.”  Justice Grace, who taught corporate law at UWO, raised his eyebrows and let Mr. Bredt finish.

The arguments turned to the adequacy of the “administrative remedies” that the REA provides. To Mr. Falconer and the Drennan’s, a  REA certificate  is viewed with apprehension, not equanimity – Mr. Falconer pointing out that of all the wind REA’s issued only 3 single turbine projects (small installations) have been rejected. Bigger is definitely better.  The “other side” tried to insist that the “conditions” that are attached to the recent ERT decisions in Haldimand equated to a fair, responsive process. Mr. Falconer noted that in no ERT appeal had the setback distances been changed. The conditions were merely “cosmetic.”

The legal term, “Quia timet – because he fears”, came up. The government and company lawyers soothingly saying that it was “premature” to launch such a motion to prevent construction, that many things could happen to change or even cancel the project.  K-2’s Mr. Bredt went so far as to suggest that the Drennan’s would need to experience actual harm first (so, there will be harm?).   That position simply bolsters Mr. Falconer’s assertion that residents correctly see the REA certificate as the trigger point.

Arguments then went into the appropriateness of charter rights infringement – harm to life, liberty, security of person; and, from there both health effects and “nuisance” issues were raised. This was pertinent as the ERT is limited to “serious harm to human health or the environment.” Nuisance claims were deliberately excluded in the writing of the GEA – such clever authors!  Regardless, the government and K-2 went on to proclaim that the administrative tribunal was the proper forum, saying that the ERT could decide even matters about charter claims.  That struck me as odd, as the ERT in the Haldimand hearings adamantly refused to consider the treaty claims of traditional Onkwehonwe, Bill Montour – and they didn’t suggest to him to bring a Charter challenge.

Justice Duncan, while recognizing the need for the administrative tribunals to more efficiently handle the  day-to-day problems that arise in citizens dealings with government, also made note of the how the “process” might become perverted,  and interfere with the right to justice.  This is a never-ending problem:  the good-intentioned efforts to “streamline” the process can be manipulated into an “on-ramp”, as Mr. Falconer put it. Perhaps here is where we start to see the differences between the “pseudo-court” ERT and the Justice system.

First, one must ask:  What’s the difference between the appointment of a Court Justice and a panel member of a tribunal.  Both are political appointments of sorts; but the Court Justice is appointed for life by the federal Minister of Justice, and so (in theory) becomes freed of political influence. A member of the tribunal panel is appointed through the provincial “Public Services Appointments,” a section of the Attorney-General’s Office. Only a few of the appointments are full-time; so the rest of the appointments are a form of musical chairs – not quite so independent. It would be relatively easy to influence the direction and objectives of the panels. Adding to the “group-think” is that the appointees are all are “environmental law” graduates. Looking at the CV’s of the panel members, past or present association with “green” organizations who are pro-wind is common. It’s no small wonder that no big wind project has ever been refused. That the ERT and all the lawyers are based in urban areas (Toronto in particular), only adds a little more gravel to the salve for rural citizens/receptors. As if this bias wasn’t enough, consider that the ERT isn’t too sure how to run its hearings. In December of 2011 at the Zephyr appeal, the ERT panel chair in answer to counsel’s frustration with the  lack of direction for the REA appeals, stated that because the REA appeals were new, the process needed to be somewhat flexible; and it would become “clearer and better defined” as more appeals were heard, decisions made, and precedents set. No point in applying the principles that are used in Court – make up your own, on the go as you need them.

And so, we have the explanation for the “on-ramp” speedway that is the REA appeals – the rigidity of the 6-months deadline, the totally unreasonable demands for (now) 15 years of medical records, the threats of “cost awards” even though  NO compensation for damage to citizens can be made, as Mr. Falconer pointed out. The administrative system has extended and evolved to the point where it reviews and enforces its own set of rules; and is NOT following basic principles that apply in Court. Welcome to our “new, streamlined” pseudo-justice system.

Send us to the ERT? Better to send us straight to the gallows.

It’s ironic to note that a similar motion was heard at the same time in Barrie for the Stayner WPD project where a different set of landowners is fighting the project on the basis of nuisance and the resultant loss of property value. Much the same argument about the timing of seeking relief came up there too. The substance of this case is somewhat different as expert testimony was presented to the Court; but, the nuisance issue was similar.

Taking a broader view, the administrative system has extended and evolved to the point where it reviews and enforces its own set of rules – no oversight save the voters.  As Mr. Falconer put it, declaring that the substitution of “green” energy for fossil fuels is now a matter of public benefit, leads directly to the state we have – i.e. that large, intrusive, wind energy projects can impose themselves upon neighbours. The wind companies are not held responsible to any local authority and basically not be subject to challenge. In essence this amounts to expropriation without compensation. The administrative process and its attached tribunals ensure that everything is covered. This represents the making of a new “family compact” – 200 years after the old one. Once again we have a ruling class who imagine they know what’s best – for us. There are signs, faint as they are, that the judiciary at least recognizes the lack of due process in the ERT.  There is a very good case to be made that we’ve played by the rules. If we can’t get fair hearing in court, then there is no justice for rural citizens in Ontario.

Friday was 5 hours of tiring arguments where the competing lawyers – “friends” all – spoke about previous decisions by courts and the opinions of learned peers.  I thought of what Oscar Wilde said about the distinction between words and actions: “Lots of people act well, but few people talk well, which shows that talking is much the more difficult thing of the two, and much the finer thing also.”

22 thoughts on “Send us to the ERT? Better to send us straight to the gallows.

  1. I did get a strong sense that the Judge was aware of the need for a REAL court to hear the case. I hope my instincts are correct, and the Drennans are given the fair chance at justice that they certainly deserve. It honestly felt like the beginning of a “slight shift in attitude” from this court.

  2. Harvey, thanks for such a straight-forward summing up of what took place in the courtroom on March 1st. I should have sat nearer the front to hear more easily, but did find it ironic that the opposing lawyers referred to each other as “my friends”. Also in the closing comments of the Crown/K2 lawyers, Justice Duncan replied 3 times, “You said that already.”

    • The microphones didn’t work, so the audience was allowed to sit (ironically) in the jurors box to hear better,and make it an ‘open court’. If only we could render a decision!!!

  3. Excellent! Finally a real glimpse of the proceedings for those of us who could not be there. You have, in your article Harvey, presented real courtroom drama!

  4. Laws had to be changed so that IWTs could be installed in Ontario and this was accomplished. This was planned in advance. People are now told what they can complain about and what they can’t complain about. This has happened in other countries as well.

  5. Thank you Harvey for an eloquent account of Fridays proceedings. I can confidently state that Falconer stood head and shoulders above the opposition, I took great satisfaction from witnessing the compelling debate unfold in the same historic court room that decided the fate of the 14 year old Steven Truscott.
    With your knowledge of the ERT process, am I correct in understanding the following. If the Drennan’s were to follow the recomendation of Mr. Hart Schwartz representing the State and Mr Christopher Bredt for Samsung Pattern and Capitol Power, by investing in an ERT, that once the Renewable Environmental Approval, REA is issued by the MOE, the developer can apply to the Municipalities CBO for building permits and construction can commence. Coinciding with this the Drennan’s would at this point enter the ERT process, so in effect an ERT could be held whist construction takes place ?

  6. As always, Harvey, very clearly and succinctly written. Thank you for your insight into this whole fiasco.

  7. “If you give me six lines written by the most honest man, I will find something in them to hang him.” – Cardinal Richelieu

    Does the ERT put it in writing?

    Paging Cardinal Richelieu!

  8. We are to abide by the Law. ..even if it is an “unjust” Law?…………..a “just Law” is one thing but to fight an “unjust Law” like the Green Energy Act is a “honourable” thing!………………….these hearings are anything but!

    • There are unjust laws and illegal laws and illegal laws are apt to be unjust laws.
      The Green energy Act has never been tested in court. So who knows if this law is legal or not?

  9. Thanks Harvey, I knew your “Reader’s Digest” version would be better than sitting there for the day. Some asked why I stayed outside … it was mostly because I could not stand the thought of sitting inside biting my tongue through it all. I have sat through too many tribunal hearings (OMB or ERT, or Ohio Power Siting Board) to be concerned how difficult it actually is to present the truth. Neither would my blood pressure allow it. But, am I the only paranoid one who finds it curious that the Justice chosen to hear the case must immediately go on training, so that a decision will probably not be possible before the REA appproval is granted? (I understand Justice Grace said something about a 9 week course, before he can consider the file.) The MOE filed the K2 application on Feb 15th for 45 days of comment, so even given time to process the comments, the final decision can be made before Justice Grant can get at the task. Curious?

    • Justice Duncan Grace explained he is in the midst of a 9 week trial, he did not indicate which week of the 9 he is at, I think he will provide a decision within March. I understand the REA people at the MOE began their technical review of K2 February 15 2013, they are telling the public it will take 6 months to complete if you can believe them, before they issue an REA.

      • If the developers lose won’t they appeal the decision?

      • I believe he said he had just finished a nine week trial, but had things on his calendar, so expect it to be about 3 weeks.(I recorded it)

    • This trial hearing was basically the wind company, along with the prov. government, asking the judge to throw out the case, allegedly because it is premature. But…everyone knows, it would not be prudent to wait for the harm to occur. But as we are well aware, they are desperately trying to throw these useless machines up as quickly as possible…..after all, the natives seem to be getting very restless. Stall, stall, stall. Perhaps help IS on it’s way, although the windies are loathe to admit it.

  10. I believe it is a good sign that some of the audience got to sit in the Jurors’ Box. We must all think POSITIVE THOUGHTS about the Judge’s decision and its potential to change this whole movement.
    The sound system in the court room is old and inefficient and disappointing.

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