27 thoughts on “Dixon-Drennan Divisional Court decision

  1. ‘[excerpt]

    [27] In none of the three hearings which are the subject of these appeals did the Tribunal confirm the Director’s decision. Nor did the Tribunal expressly determine “that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]” as required by EPA s. 145.2.1(5).

    [28] There is a difference between a negative determination that serious harm to human health has not been proven and a positive determination that engaging in the renewable energy project in accordance with the renewable energy approval will not cause serious harm to human health. Although no party raised as an issue on these appeals the failure of the Tribunal to confirm the decisions of the Directors, it is important that a tribunal follow its statutory mandate. Based on a substantive review of the Tribunal’s three decisions,3 we are satisfied that the Tribunal, in effect, complied with the requirements of EPA s. 145.2.1(5).

    […]

    [31] The Tribunal’s acceptance of the testimony of these expert witnesses assists in interpreting its decisions. At paragraphs 227-229 of the K2 Wind Decision the Tribunal set out its conclusions and decision, finding that the Appellants had not established that the EPA’s renewable energy approval appeal provisions or the project’s REA violated the Appellants’ right to security of the person under section 7 of the Charter. The Tribunal concluded that the Appellants had not established that engaging in the project would cause serious harm to human health. Finally the Tribunal recorded its decision as: “The appeals are dismissed.” The Tribunal came to a similar decision and conclusion in all three of the cases before us.

    [32] Drs. Mundt, McCunney and Moore did not testify at the Dixon hearing for which the Tribunal released its decision on January 16, 2014 ( “St. Columban Wind Decision”). At that hearing Dr. Werner Richarz, who was qualified as an expert acoustician, testified and offered the opinion that if the noise levels outside of the receptors home were 40 dBA or below, he would not expect any adverse effects inside the home. It is clear from the St. Columban Wind Decision that the Tribunal accepted the evidence of Dr. Richarz.

    [33] Given the Tribunal’s express acceptance of the evidence of Drs. Mundt, McCunney, Moore and Richarz, it is appropriate to conclude that the Tribunal was satisfied that engaging in the three renewable energy projects in accordance with the REAs would not cause serious harm to human health. As well, when the Tribunal recorded that the appeals were dismissed, by implication it confirmed the Director’s decisions to issue the respective renewable energy approvals.’

  2. [33]

    Acceptance of the evidence of the “experts”, IMO, is the core of the issue.

    No one checked these “experts” out?

  3. Welcome to Ontario!
    ….how to figure – these things out….

    How the Environmental Review Tribunal (ERT) – is organized;
    their ‘tight’ mandate –
    and, authorized ‘to do’ – what?
    I mean – what!!!!
    …..while checking their – timelines.

    It took 3 judges to tell us – what?…..what!!!!!!

  4. These ***king decisions – require Tables of Contents

    I. OVERVIEW (page2)

    II. THE THREE WIND FARM PROJECTS AND THE APPELLANTS’ COMPLAINTS
    A. The St. Columban Wind farm project and the Dixon/Ryan Appellants (page 5)
    B. K2 Wind Farm and the Drennan Appellants (page7)
    C. Armow wind farm and the Kroeplin Appellants (page7)
    D. The reviews before the Environmental Review Tribunal (page8)

    III. THE REGULATORY REGIME FOR WIND TURBINE FARMS
    A. The Green Energy Act (page11)
    B. The statutory approval scheme for renewable energy projects (page12)
    Application to the Director for a “renewable energy approval” (page12)
    The review of the Director’s decision to issue a Renewable Energy Approval (page13)

    IV. THE APPELLATE JURISDICTION AND POWERS OF THIS COURT (page15)

    V. FIRST ISSUE: IS THE “HARM” TEST IN SECTIONS 142.1(3) AND 145.2.1(2) OF THE ENVIRONMENTAL PROTECTION ACT CONSTITUTIONALLY VALID?
    A. The issue stated (page15)
    B. The Appellants’ constitutional challenge as framed before and decided by the ERT (page15)
    B.1 Appellants’ Issue No. 1 before the ERT: Was the deprivation complained of by the Appellants state-imposed? (page16)
    B.2 Appellants’ Issue No. 2 before the ERT: What degree of harm did the Appellants have to establish to demonstrate a violation under Charter s. 7? (page18)
    B.3 Appellants’ Issue No. 3 before the ERT: Did the Appellants establish a violation of their Charter s. 7 rights? (page19)
    C. The positions of the parties in the Divisional Court on the issues raised by the Appellants (page20)
    D. The standard of review (page22)
    E. Analysis
    E.1 Did the nature of the Appellants’ claims engage an analysis under the Charter? (page23)
    E.2 Did the formulation of the statutory harm tests in EPA ss. 142.1(3) and 145.2.1(2) infringe upon the Appellants’ security of the person? (page24)
    The language of the statutory test in light of the jurisprudence (page24)
    A contextual examination of the statutory language (page25)
    The Appellants’ motion for leave to adduce fresh evidence (page29)
    F. Conclusion (page32)

    VI. SECOND ISSUE: DID THE TRIBUNALS ERR IN THEIR TREATMENT OF THE “POST-WIND TURBINE WITNESSES”?
    A. The Appellants’ claim (page33)
    B. The decisions of the Tribunals (page34)
    C. Analysis (page37)

    VII. THIRD ISSUE: DID THE TRIBUNALS ERR IN FINDING THAT THEY LACKED THE JURISDICTION TO REVIEW THE DIRECTOR’S DECISIONS ISSUING REAs FOR FAILURE TO COMPLY WITH SECTION 7 OF THE CHARTER?
    A. The positions of the parties (page38)
    B. The decision of the Tribunal (page38)
    C. Analysis (page39)

    VIII. FOURTH ISSUE: DID THE TRIBUNAL FAIL TO FOLLOW THE PRINCIPLES OF FAIRNESS OR NATURAL JUSTICE?
    A. The grounds of appeal (page42)
    B. Standard of review (page43)
    C. Denial of adjournment requests
    C.1 The issue (page43)
    C.2 Analysis (page46)
    D. Denial of consolidation request (page48)
    E. The Appellants’ abuse of process motion (page49)

    IX. SUMMARY AND COSTS (page 50)

    [signed] (page50)
    Marrocco A.C.J.S.C.
    J. Henderson J.
    D. Brown J.
    Released December 29, 2014

    • When a plan gets cancelled – it will mean
      we are all dead.

      Ontario debt clock – 350 Billion Dollars

    • Settling costs:
      Please send invoice to your local municipality –
      and, they will forward the bill to the province,
      with an attached note of – no self pity.

      • This could lead to liberal confusion
        – but, who cares.

      • Hey Ontario!

        The Climate Change Ministry
        will now be reporting
        Climate Change events – in your backyard.

        Previous to this ‘change’ – Ontario citizens
        had weather.
        Oh, and seasons.

        It’s all so confusing.

  5. Wind Turbine Sound and Health Effects
    An Expert Panel Review, Dec., 2009

    Executive Summary
    P.ES 1

    “In response to those concerns, the American and Canadian Wind Energy Associations (AWEA and CanWEA) established a scientific advisory panel in early 2009 to conduct a review of current literature available on the issue of perceived health effects of wind turbines.”

    Panel members are not independent of these organizations and haven’t been since early 2009. IMO.

    How much did this study/review cost and how much were panel members paid if anything?

  6. Is it just a misunderstanding? Or…….
    is it fraud?

    Fact:
    “dba” is NOT the same as “dbLnight,outside”

    However,

    ‘[excerpt] [73] The Tribunals also had before them the 2009 World Health Organization Night Noise Guidelines for Europe which summarized, in section 5.6, the relationship between night noise exposure and health effects. Those Guidelines reported that a number of effects on sleep were observed at night sound levels of 30 to 40 dBA – e.g. body movements, awakening, self-reported sleep disturbance and arousals. However, even in the worst cases the effects seemed modest. By contrast, at sound levels in the range of 40 to 55 dBA, “adverse health effects are observed among the exposed population. Many people have to adapt their lives to cope with the noise at night. Vulnerable groups are more severely affected.” The Guidelines stated:
    “There is no sufficient evidence that the biological effects observed at the level below 40 dBLnight,outside are harmful to health. However, adverse health effects are observed at the level above 40 dBLnight,outside, such as self-reported sleep disturbance, environmental insomnia, and increased use of somnifacient drugs and sedatives.”‘

    • “body movements, awakening, self-reported sleep disturbance and arousals”
      = “modest”
      ???

      Do doctors treat patients with those thoughts?

  7. ‘[excerpt] [74] At the hearings before the ERT the Appellants did not adduce expert evidence which expressed opinions different from the views found in the 2008 Ministry Noise Guidelines for Wind Farms or 2009 WHO Europe Night Noise Guidelines:
    (a) In the St. Columban Wind hearing the Appellants called an expert acoustician, Mr. Rick James, but his testimony focused on alleged deficiencies in the noise assessment report prepared for the project. […]

    (b) In the K2 Wind hearing, the Appellants again called Mr. James to testify […]

    (c) In the Armow Wind proceeding, the Appellants called Mr. James […]

    [75] On appeals such as these our Court can only consider a question of law; we cannot re-weigh or re-assess the evidence which was before the Tribunals or the factual findings they made. Our purpose in describing the expert evidence which was before the Tribunals on the issue of the impact of wind turbines on human health is a narrow one: to identify that the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime – i.e. that wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge.’

    • Are we to believe these judges don’t know this is absurd?

      ‘[excerpt] which do not generate noise levels in excess of 40 dBA’
      ……….

      • Mr. Rick James — R U nobody?

        ‘[excerpt] the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime’

  8. January 28, 2008

    Jacques Whitford
    3 Spectacle Lake Drive
    Dartmouth, Nova Scotia,
    B3B 1W8

    FINAL REPORT TO
    Peggy Crawford
    Municipal Sustainability Coordinator
    Union of Nova Scotia Municipalities
    14 N Maritime Centre, PO Box 216
    Halifax NS B3J 2M4

    ON
    Model Wind Turbine By-laws and Best
    Practices for Nova Scotia Municipalities

    Page 30 of the 117-page pdf document:

    ‘[excerpt] A well publicized case in Nova Scotia concerns a family residence in Pubnico. Residents claimed that
    they have been greatly affected by sound from the close wind turbines (the closest is approximately
    330m away). Although still unresolved and controversial in Nova Scotia, a report commissioned by the
    Government of Canada and carried out by HGC Engineering on the location concludes that the noise is
    within the Ontario Guidelines (currently the most stringent noise guidelines available in the country)
    except when the wind is light, from the south, and when there is high humidity. During these instances,
    the noise exceeds these Guidelines by a considerable amount (13dBz) (Howe & McCabe, 2006). In the
    interim, the family has vacated their home as they believe the effects of the wind turbine noise are
    making them ill.’

  9. Last paragraph:
    ‘excerpt] In its written decision, the judges said their purpose in describing the expert evidence before the tribunals on the impact of wind turbines on human health was a narrow one. Their job was only to identify that the tribunals didn’t have before them expert evidence that “seriously called into question” the principle underpinning of the Act’s renewable energy project regulatory regime.’

    Who knows what went on in their minds
    – after they walked away from this case.

    —————————————————————————

    ‘[excerpt] After the tribunal made its decisions, the Act’s appeal rights enabled the families to bring those tribunal decisions to the court “on a question of law,” the decision says. The families were asserting that aspects of the process to review the environment ministry director’s decision are “constitutionally flawed,” especially the section that requires the families to demonstrate the projects would cause serious harm to human health.

    The decision says for appeals like ones brought by the families challenging the wind energy project approvals process, the court can only consider questions of law. It cannot reweigh or reassess the evidence brought before the tribunals or the factual findings the tribunals made.

    Part of what the families wanted was that section 145.2.1 (2) the Environmental Protection Act be declared constitutionally invalid. Another request was for the addition of an order to the Act saying the test to be met is whether there is a reasonable prospect of serious harm caused by engaging in the renewable energy project.

    In its written decision, the judges said their purpose in describing the expert evidence before the tribunals on the impact of wind turbines on human health was a narrow one. Their job was only to identify that the tribunals didn’t have before them expert evidence that “seriously called into question” the principle underpinning of the Act’s renewable energy project regulatory regime.’
    https://www.wind-watch.org/news/2015/01/03/next-step-uncertain-for-wind-opponents-who-lost-court-challenge/

    • Juries can and do consider both the facts and the law.

      However juries are not employed at the appeals level.

      Anyway, this decision helped to clarify the situation so people now know where they stand.

      Time to move forward. A lot has been learned over the past few days about events surrounding health studies and who the so called “experts” are.

  10. Ontario premier concerned about constitutionality of new prostitution law

    ‘[excerpt] Just one day after a new and controversial federal prostitution law came into effect, the premier of Ontario is calling on her attorney general to look at the “constitutional validity” of the law.

    In a statement Sunday, Ontario Premier Kathleen Wynne said she is gravely concerned the new law will not protect sex workers or communities. Wynne has asked Attorney General Madeleine Meilleur to advise her on the options available to the province, should it be found that the legislation’s constitutionality is in question.

    “We must enforce duly enacted legislation, but I believe that we must also take steps to satisfy ourselves that, in doing so, we are upholding the constitution and the Charter,” read Wynne’s statement.’

    Oh yeah!

    ——————————————————————————————–

    ‘[excerpt] A spokesperson for Justice Minister Peter MacKay defended the new law.

    “Police, communities, and women’s groups have welcomed our approach. Canada is not alone in proposing laws that view prostitution as exploitation,” Jennifer Gearey said in an email to The Canadian Press.

    Supporters of the new rules say the law will help reduce demand for prostitution.

    “It also shifts the culture for future generations to one where girls and boys that women are to be valued and respected and to be treated equally. Not to be treated as sex object,” said Megan Walker, of the London Abused Women’s Centre.’

    Read more: http://www.ctvnews.ca/politics/ontario-premier-concerned-about-constitutionality-of-new-prostitution-law-1.2136674#ixzz3Nuk5OvOI

  11. And what does this mean?
    Are you thinking – what I am thinking?

    ‘[excerpt] [27] In none of the three hearings which are the subject of these appeals did the Tribunal confirm the Director’s decision. Nor did the Tribunal expressly determine “that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]” as required by EPA s. 145.2.1(5).

    [28] There is a difference between a negative determination that serious harm to human health has not been proven and a positive determination that engaging in the renewable energy project in accordance with the renewable energy approval will not cause serious harm to human health. Although no party raised as an issue on these appeals the failure of the Tribunal to confirm the decisions of the Directors, it is important that a tribunal follow its statutory mandate. Based on a substantive review of the Tribunal’s three decisions,3 we are satisfied that the Tribunal, in effect, complied with the requirements of EPA s. 145.2.1(5).’

    Somebody should write a song.

  12. The Appeals Court misrepresents the — Tribunal
    The Tribunal misrepresents the — experts
    The experts misrepresent the — facts …

    [27]

    In none of the three hearings which are the subject of these appeals did the Tribunal confirm the Director’s decision. Nor did the Tribunal expressly determine “that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]” as required by EPA s. 145.2.1(5).

    [31]

    The Tribunal concluded that the Appellants had not established that engaging in the project would cause serious harm to human health. Finally the Tribunal recorded its decision as: “The appeals are dismissed.”

    [75]

    the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime

    [33]

    Given the Tribunal’s express acceptance of the evidence of Drs. Mundt, McCunney, Moore and Richarz, it is appropriate to conclude that the Tribunal was satisfied that engaging in the three renewable energy projects in accordance with the REAs would not cause serious harm to human health.

    [32]

    At that hearing Dr. Werner Richarz, who was qualified as an expert acoustician, testified and offered the opinion that if the noise levels outside of the receptors home were 40 dBA or below, he would not expect any adverse effects inside the home.

    [Dr. Werner Richarz ignores Ontario government-commissioned expert Brian Howe & company]

    “The audible sound from wind turbines is nonetheless expected to result in a non-trivial percentage of persons being highly annoyed. As with sounds from many sources, research has shown that annoyance associated with sound from wind turbines can be expected to contribute to stress related health impacts in some persons.”
    “Low Frequency Noise and Infrasound Associated With Wind Turbine Generator Systems: A Literature Review”
    Ontario Ministry of the Environment RFP No. OSS-078696
    Submitted By:
    Howe Gastmeier Chapnik Limited (HGC Engineering)
    Brian Howe, MEng, MBA, PEng
    December 10, 2010

    “We all fall down”

  13. From the archives:

    Ontario Hansard
    2009-Apr-15
    Committee Transcripts: Standing Committee on General Government
    Bill 150, Green Energy and Green Economy Act, 2009

    http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&BillID=2145&ParlCommID=8856&Business=&Date=2009-04-15&DocumentID=23801

    Re: IWTs in Ripley, Ontario

    ‘[excerpt] Ms. Laurel C. Broten: Thank you for your presentation today. I am sorry that the wind farm has caused you these health issues and has caused grief for your families.’

  14. “Do you think fraud is OK?”

    I’m not convinced
    that fraud
    is an “ordinary stress and anxiety
    for a person of reasonable sensibility…..”

    ‘[excerpt] [61] The current state of the law was summarized by the Supreme Court of Canada in their decisions in New Brunswick (Minister of Health and Community Services) v. G. (J.),15 Blencoe v. British Columbia (Human Rights Commission)16 and Chaoulli v. Quebec (Attorney General).17 In G.(J.) the Supreme Court of Canada observed that it was clear the right to security of the person did not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. Instead, for an infringement of security of the person to be made out, the impugned state action must, when the effects are assessed objectively, have a serious and profound effect on the psychological integrity of a person of reasonable sensibility. 18’

  15. Hey Ontario!
    You should read this again:

    ‘[excerpt] Instead, for an infringement of security of the person to be made out, the impugned state action must, when the effects are assessed objectively, have a serious and profound effect on the psychological integrity of a person of reasonable sensibility. ‘

    I’m assuming this is the case.
    http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1808/index.do

    I’ll read it later….[on the run]
    If you have time – please read it

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