1. health and fitness
2. therapy

Court File No: 2056/14
ERT Case No.: 13-097/13-098
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
BETWEEN:
SHAWN DRENNAN and TRICIA DRENNAN
Appellants/
Appellants on Appeal
- and THE DIRECTOR, MINISTRY OF THE ENVIRONMENT
Respondent/
Respondent on Appeal
- and K2 WIND ONTARIO INC. OPERATING AS
K2 WIND ONTARIO LIMITED PARTNERSHIP
Respondent/
Respondent on Appeal
RESPONDING FACTUM OF K2 WIND ONTARIO INC. OPERATING AS
K2 WIND ONTARIO LIMITED PARTNERSHIP
Borden Ladner Gervais LLP
44th Floor - 40 King Street West
Toronto, ON M5H 3Y4
Davies Ward Phillips & Vineberg LLP
40th Floor - 155 Wellington Street West
Toronto, ON M5V 3J7
Christopher D. Bredt LSUC No.: 23627Q
Tel: 416.367.6165
Fax: 416.361.7063
James Bunting LSUC No.: 48244K
Nathaniel Read-Ellis LSUC No.:63477L
Tel: 416.863.0900
Fax: 416.863.0871
Lawyers for the Respondent, K2 Wind
Ontario Inc. operating as K2 Wind
Ontario Limited Partnership
TABLE OF CONTENTS
PART I ~ OVERVIEW ..................................................................................................... 1
PART II ~ FACTS ........................................................................................................... 4
A.
B.
C.
D.
E.
THE PROJECT ......................................................................................................... 4
THE APPELLANTS ................................................................................................... 5
THE ERT APPEAL AND THE APPELLANTS' CASE ....................................................... 6
THE ERT DECISION ................................................................................................ 8
THE EVIDENCE BEFORE THE ERT ............................................................................ 9
(i) The Evidence of the Post-Turbine Witnesses................................................. 10
(ii) The Evidence of Dr. Michaud & The Health Canada Study ............................ 12
(iii) The Appellants' Allegations that Wind Turbines Cause Annoyance and
Annoyance Causes Harm............................................................................... 14
(iv) The Appellants' Allegations Regarding Infrasound ......................................... 16
(v) The Appellants' Allegation of Non-Compliance with the Regulation and
Guideline ........................................................................................................ 17
PART III ~ ISSUES ....................................................................................................... 19
PART IV ~ LAW AND ARGUMENT ............................................................................. 19
A.
NO BREACH OF PROCEDURAL FAIRNESS ................................................................ 19
(i) No Breach of Procedural Fairness on the Motion to Consolidate ................... 21
(ii) No Breach of Procedural Fairness on the Motion for an Adjournment............ 22
B. THE ERT CORRECTLY FOUND THAT IT DID NOT HAVE JURISDICTION TO CONSIDER
THE APPELLANTS' CONSTITUTIONAL CHALLENGE TO SECTION 47.5 OF THE EPA .... 25
C. THE ERT DID NOT ERR IN CONCLUDING THAT THE APPELLANTS' SECTION 7 CHARTER
RIGHTS WERE NOT INFRINGED .............................................................................. 25
(i) Overview of the Test Under Section 7 of the Charter ..................................... 25
(ii) Section 47.5 of the EPA Does Not Breach Section 7 of the Charter............... 29
(iii) Section 142.1 of the EPA Does Not Breach Section 7 of the Charter............. 33
PART V ~ ORDER REQUESTED................................................................................. 38
SCHEDULE "A" ........................................................................................................... 39
SCHEDULE "B" ........................................................................................................... 41
PART I ~ OVERVIEW
1.
This is the second of three appeals from decisions of the Ontario
Environmental Review Tribunal (the "ERT") dismissing challenges to wind energy
projects. In this appeal, the Appellants challenge the approval of the K2 Wind project,
which was authorized in accordance with a renewable energy approval issued to K2
Wind by the Director of the Ontario Ministry of the Environment (the "MOE"). That
approval was granted after an extensive approval process under the Province 's
renewable energy regime that included two-years of planning and a broad range of
environmental studies. The K2 Project was then scrutinized by a panel of the ERT.
During a six day hearing, the ERT received evidence from over twenty witnesses,
including eight experts.
2.
On the basis of that evidence, the ERT dismissed the appeal in a 102
page decision that thoroughly reviewed the evidence and applicable law (the "Drennan
Decision")1. This appeal from the Drennan Decision is limited to questions of law under
section 145.6(1) of the Environmental Protection Act (the "EPA"). Findings of fact made
by the ERT are not subject to review, nor are findings of mixed fact and law.
3.
This Appeal should be dismissed on the simple basis that the findings of
fact made by the ERT establish that there was no breach of section 7 of the Charter of
Rights and Freedoms (the "Charter"). This is so no matter the outcome of the alleged
legal errors under review.
4.
The Appellants allege that sections 47.5 and 142.1 of the EPA violate their
section 7 rights under the Charter.
1
Section 47.5 is the provision under which the
Drennan v. Director, Ministry of the Environment, Case No. 13-097/13-098 (E.R.T.) , K2 Wind's
Book of Authorities, Tab 13.
-2Director of the MOE approves a renewable energy project.
Section 142.1 is the
provision that provides any resident of Ontario with a right to appeal such a decision to
the ERT on the grounds that the approval of the project will cause (i) serious harm to
human health, and/or (ii) serious and irreversible harm to plant life, animal life or the
natural environment.2
5.
The Appellants argued before the ERT (and argue on this Appeal) that
section 142.1 of the EPA violates section 7 of the Charter and should be read down to
apply a less onerous standard than the "serious harm" threshold set out in the EPA.
After hearing extensive expert and lay evidence about the potential harms to human
health from wind turbines, the ERT dealt squarely with both the legal and factual
elements of this assertion. Most notably, the ERT held that even if section 7 of the
Charter imposed some lesser standard of harm, the Appellants had failed to meet even
this lower standard:
Even if one accepted that the test to prove a causal
connection under s. 7 of the Charter so as to establish
serious psychological or physical harm is less onerous or
stringent than the s. 142.1 threshold under the EPA to
establish serious harm to human health, the burden has not
been met by the Appellants. As a result it is not necessary in
this case for the Tribunal to determine if the threshold under
s. 7 of the Charter is less stringent than under s.142.1 of the
EPA.3
6.
As a result, even if the Appellants are correct on this Appeal that section 7
of the Charter imposes some lesser standard of harm under section 142.1 of the EPA,
on the evidence, the Appellants failed to meet that lesser standard. This is a factual
finding of the ERT that is not subject to review on this Appeal. Nor should it be. These
2
3
Environmental Protection Act, R.S.O. 1990, C. E.19, s. 142.1.
Drennan Decision at para. 215, K2 Wind's Book of Authorities, Tab 13.
-3factual findings were made by the ERT based on a detailed review of the extensive
evidence adduced before it on issues at the core of its expertise.
7.
With respect to the Charter challenge to section 47.5 of the EPA, the
Appellants argue that the ERT erred in deciding that its statutory jurisdiction does not
permit it to consider the Appellants' constitutional challenge to the Director's decision to
issue the renewable energy approval under section 47.5 of the EPA. K2 Wind submits
that the ERT's decision in this regard was reasonable and correct. More significantly,
even if the ERT erred in this regard, which is denied, the evidence again does not
establish the requisite physical or profound psychological harm necessary to support a
section 7 Charter challenge to the Director's decision under section 47.5 of the EPA.
8.
The Appellants argue that the very approval of the K2 Project causes
serious stress and psychological harm. The Appellants unsuccessfully advanced this
argument on a motion to enjoin approval of the K2 Project that was heard by the
Honourable Justice Grace. In dismissing the Appellants' motion, Justice Grace referred
to the Supreme Court of Canada decision in Chaoulli c. Québec (Procureur générale)
noting that serious psychological effects may engage section 7 of the Charter and these
effects "need not rise to the level of nervous shock but must be greater than ordinary
stress or anxiety" (emphasis added). Justice Grace held that the Appellants had not
established the requisite level of psychological harm to engage section 7 of the
Charter.4
9.
The evidence adduced before the ERT fully supports Justice Grace's
conclusion.
4
Drennan v. K2 Wind Ontario Inc., 2013 ONSC 2831 at paras. 52-53 (S.C.J.) Appellants' Book of
Authorities, Tab 12 quoting Chaoulli c. Québec (Procureur générale), [2005] 1 S.C.R. 791 at
para. 116.
-410.
In sum, the legal issues raised on this Appeal with regard to the
constitutionality of section 47.5 and 142.1 of the EPA should be dismissed.
The
balance of the Appeal concerns an attempt to re-argue the factual findings that were
made by the ERT. This is not open to the Appellants.
11.
Finally, the Appellants challenge the ERT's decision dismissing a
procedural motion to consolidate and adjourn two of the appeals. The ERT's decisions
on those issues were a matter of controlling its own process, were reasonable and the
appeal is without merit.
PART II ~ FACTS
A.
12.
The Project
K2 Wind refers to and adopts paragraphs 8 to 22 of the Director's Factum
setting out the background and statutory framework for the Province of Ontario 's
renewable energy regime.
13.
The K2 Wind Project (the "K2 Project") is a Class 4 wind facility with a
total name plate capacity of 270 megawatts at a site located in the Township of
Ashfield-Colborne-Wawanosh ("ACW"), County of Huron, Ontario. The K2 Project will
consist of 140 Siemens wind turbines. K2 Wind invested substantial time and resources
over 24 months to plan, study and complete all necessary reports to ensure compliance
with Ontario Regulation 359/09 (the "Regulation") under the EPA and the MOE Noise
Guidelines for Wind Farms (2008) (the "Guidelines"). This included preparing a broad
range of environmental studies such as a Natural Heritage Assessment and
Environmental Impact Study, Water Assessment and Water Body Report, Design and
Operations Report, Consultation Report and Construction Plan Report.
-514.
On July 23, 2013, the Director approved the K2 Project and issued
Renewable Energy Approval No. 3259-98EQ3G (the "REA") to K2 Wind.
B.
15.
The Appellants
The Appellants, Shawn and Tricia Drennan (the "Drennans"), live on a
300-acre farm where they farm cash crops and pigs. Their farm and home is situated
within the K2 Project site. The closest wind turbine is sited 714 metres from their home
and a transformer substation is sited 550 metres from their home.
16.
The Appellants have strongly held beliefs about wind turbines and the
Province's green energy plan more generally. They believe that Ontario's green energy
plan "is a very expensive scam with little to no environmental benefit " and that what is
happening as a result of the energy plan is "ugly and shameful".5 After being informed
of the K2 Project, they conducted research into wind energy, "mostly on the internet"
and founded SWEAR – Safe Wind Energy for All Residents, an organization that is
committed to stopping wind projects.6
17.
In November 2012, the Appellants commenced a lawsuit against K2 Wind
and the Director of the MOE, personally. In that action, the Appellants seek, among
other things, $2 million in general damages and $1 million in punitive damages. 7
18.
That proceeding was stayed by the Honourable Justice Grace on May 15,
2013 pending completion of the process set forth in the EPA, including any appeals of
the REA to the ERT. In staying the Appellants' civil claim, Justice Grace specifically
5
6
7
Mr. Drennan's Evidence, October 15, 2013 Transcript, pp. 15-16, 31-33, Respondents’
Compendium, Tab 19B, pp. 728-729 and 736-738.
Mr. Drennan's Evidence, October 15, 2013 Transcript, pp. 33-34, Respondents’ Compendium,
Tab 19B, pp. 738-739.
Mr. Drennan's Evidence, October 15, 2013 Transcript, pp. 35-37, Respondents’ Compendium,
Tab 19B, pp. 740-742.
-6referenced the concerns of the Appellants and other like-minded people about the
potential harms to human health from the operation of industrial wind turbines. His
Honour cited, with approval, Hanna v. Ontario (Attorney General):
The health concerns for persons living in proximity to wind
turbines cannot be denigrated, but they do not trump all
other considerations. This is particularly so because those
persons do have a remedy. Any person resident in Ontario,
whether or not the person lives in proximity to a wind turbine,
can challenge the approval of an industrial wind turbine…
This challenge takes the form of an appeal to the
Environmental Review Tribunal … which has the mandate to
determine, on a case-by-case basis, whether a renewable
energy approval would cause serious harm to human health.
Thus, if the Tribunal is persuaded by evidence that the 550
meter minimum setback is inadequate to protect human
health from serious harm, the Tribunal has authority to
revoke the decision of the Director, or … increase the
minimum setback prescribed for the proposed wind
turbines.8
C.
19.
The ERT Appeal and the Appellants' Case
On August 6, 2013, the Appellants filed a Notice of Appeal challenging the
REA under section 142.1 of the EPA.
The Appellants also served a Notice of
Constitutional Question challenging the constitutional validity of section s 47.5(1) and
142.1 of the EPA under section 7 of the Charter.
In their Notice of Appeal and
Constitutional Question, the Appellants alleged a violation of section 7 of the Charter
and that the K2 Project would cause serious harm to h uman health under section
142.1(3)(a) of the EPA.9
20.
The thrust of the Appellants' position before the ERT was that the "serious
harm" standard under section 142.1 of the EPA violates section 7 of the Ch arter and
8
9
Drennan v. K2 Wind Ontario Inc., 2013 ONSC 2831 (S.C.J.) at para 64, Appellants' Book of
Authorities, Tab 12.
Drennan Notice of Appeal and Notice of Constitutional Question, dated August 6, 2013,
Appellants' Appeal Book, pp. 329 to 342.
-7should be read down such that the section requires the Appellants to establish that
engaging in the REA will likely cause an adverse effect to human health.10
The
Appellants submitted that, on the evidence, they established that the K2 Project would
likely have an adverse effect on human health.
21.
The Appellants did not call a medical expert to testify about the alleged
health impacts of wind turbines or to conduct a diagnosis of any individual who alleges
they have suffered health effects as a result of being exposed to wind turbines. The
only experts tendered by the Appellants in support of their allegations of harm were Dr.
Lipsitz and Mr. James. Mr. James is an expert in acoustics. He is not a medical expert
and is incapable of conducting a medical diagnosis that could link any alleged health
effect to exposure to wind turbine.
22.
Dr. Lipsitz did not conduct a medical examination or diagnosis of any
witness. He also did not provide any evidence about wind turbines, transformers or the
health impacts of exposure to sound. Dr. Lipsitz testified only that sleep deprivation can
have harmful health implications.
He did not, however, link sleep deprivation to
exposure to wind turbines in any way.11
23.
The totality of the evidence, therefore, put forward by the Appellants on
the central issue on their appeals – whether the Project will cause harm to human
health – amounted to the lay testimony of Ted Whitworth, Donna Weaver, Barbara
10
11
Drennan Decision, para 17, K2 Wind's Book of Authorities, Tab 13.
Witness Statement of Dr. Lipsitz, Exhibit 39, pp. 1-2, Respondents’ Compendium, Tab 28, pp.
1115-1116.
-8Ashbee and Sandra McLeod. 12 Each of these "post-turbine" witnesses self-diagnosed
themselves as having suffered negative health effects from exposure to wind turbines.
D.
24.
The ERT Decision
The evidence heard by the ERT addressed squarely, and refuted, the
allegations of the Appellants that the K2 Project would likely cause harm to human
health. In particular, K2 Wind and the Director called medical experts (Drs. McCunney,
Mundt and Moore)13 to address the various allegations about harm to human health
raised by the Appellants.
25.
On February 6, 2014, the ERT issued a carefully crafted 102 page
decision that reviewed the evidence in detail and dismissed the Appellants' appeal. The
ERT held that the Appellants failed to establish that the K2 Project would cause serious
harm to human health and that the Appellants had also failed, on the evidence, to
establish a deprivation of security of the person under section 7 of the Charter:
[204] The evidence of post-turbine witnesses has been put
forward in a number of appeals under s. 142.1 of the EPA.
The Tribunal has not found in any case that the evidence of
post-turbine witnesses alone, that is, without the qualified
diagnostic skills of a health professional, is sufficient to
establish the evidentiary base to meet the test in s. 142.1.
…
[206] In the Dixon decision, the Tribunal relied on the
Ostrander case and found that its general conclusions with
respect to the role of post-turbine witnesses under an EPA
appeal are equally applicable to the s. 7 Charter test. The
evidence provided by the Drennans is also insufficient on its
own to establish a s. 7 Charter claim.
12
13
The testimony of Ms McLeod and Ms Ashbee was given in the St. Columban Appeal and
accepted by the parties as if it had been given in the Drennan appeal.
Dr. McCunney is a medical doctor, board certified in occupational and environmental medicine.
Dr. Moore is a family and emergency medicine practitioner with experience dealing with health
concerns raised about wind turbines. Dr. Mundt is an epidemiologist with 25 years of experience
applying epidemiological concepts to occupational and environmental health challenges.
-9…
[213] In summary, as in the Dixon case, the Appellants did
not provide professional medical opinions to diagnose the
health complaints from the post-turbine witnesses and to
establish a causal link between those complaints and wind
turbines noise or noise from transformers. As importantly,
the Tribunal has the benefit of the testimony of Drs. Mundt,
McCunney and Moore that reinforce previous Tribunal
findings that the post- turbine witnesses need to be properly
diagnosed by a medical professional and that there is no
reliable evidence to demonstrate that the Project will cause
serious physical or any other serious harm. 14
26.
As noted above, the ERT also held that even if a breach of section 7 of the
Charter was triggered by some lesser standard of harm, the Appellants did not meet this
lesser standard of harm:
[215] Even if one accepted that the test to prove a causal
connection under s. 7 of the Charter so as to establish
serious psychological or physical harm is less onerous or
stringent than the s. 142.1 threshold under the EPA to
establish serious harm to human health, the burden has not
been met by the Appellants. As a result it is not necessary in
this case for the Tribunal to determine if the threshold under
s. 7 of the Charter is less stringent than under s.142.1 of the
EPA.15
E.
27.
The Evidence Before the ERT
This section of the factum reviews the evidence before the ERT under
each of the major allegations or evidentiary foundations advanced by the Appella nts on
this Appeal and illustrates that the factual conclusions of the ERT were reasonable and
that there was ample evidence before the ERT to support its conclusions.
14
15
Drennan Decision, paras. 204, 206 and 213, K2 Wind's Book of Authorities, Tab 13.
Drennan Decision, para. 215 , K2 Wind's Book of Authorities, Tab 13.
- 10 (i)
28.
The Evidence of the Post-Turbine Witnesses
The evidence supported the ERT's factual finding that the self-diagnosis of
the post-turbine witness did not provide a sufficient evidentiary or medical basis for
establishing a link between wind turbine noise and harm to human health.
29.
Drs. McCunney and Moore opined that:
(a)
"Wind Turbine Syndrome" is not a medically accepted diagnosis and there
is no evidence for a set of health effects from exposure to wind turbines
that could be characterized in such manner.16
(b)
Proper and complete medical histories are a necessary part of the
diagnostic process and the post-turbine witnesses have not undergone the
proper medical evaluation to make a reliable diagnosis.
(c)
A proper diagnosis must be established before a causality analysis can be
undertaken.17
(d)
The post-turbine witnesses elicited nonspecific symptoms with various
causes common to the general population.18
30.
Dr. Mundt concurred with Drs. McCunney and Moore that self-reporting of
health effects "do not elucidate causation."19 He stated that the information provided
16
17
18
19
Dr. Moore's Evidence, October 25, 2013 Transcript, pp. 27-28, Respondents’ Compendium,
Tab 23A, pp. 919-920.
Dr. McCunney's Evidence, October 25, 2013 Transcript, pp. 43-45, 50-52, Respondents’
Compendium, Tab 21A, pp. 873-875 and 879-891; Supplementary Witness Statement of Dr.
McCunney, Exhibit 51, pp. 2-3, Respondents’ Compendium, Tab 35B; Dr. Moore's Evidence,
October 25, 2013 Transcript, pp. 16-18, 22-24, 39-40, Respondents’ Compendium, Tab 23A,
pp. 909-910, 914-916 and 927-928.
Dr. McCunney's Evidence, October 25 2013 Transcripts, pp. 99-102, Respondents’
Compendium, Tab 21A, pp. 884-887; Supplementary Witness Statement of Dr. McCunney,
Exhibit 51, pp. 2-3, Respondents’ Compendium, Tab 35B, pp. 1317-1318; Dr. Moore's
Evidence, October 25, 2013 Transcript, pp. 32, 59, Respondents’ Compendium, Tab 23A, pp.
924 and 935.
Witness Statement of Dr. Kenneth Mundt, Exhibit 48, pp. 5-6, 9, and 17, Respondents’
Compendium, Tab 24A, pp. 949-950 and 952-953.
- 11 through scattered and incomplete medical records was limited and self-reported and
was inadequate to form a reliable diagnosis or to prove causation. The witnesses had
not been through the screening process of a treating physician.20
31.
Leaving aside the expert testimony of Drs. McCunney, Mundt and Moore,
there are a number of notable concerns with relying on the self-diagnosis of the postturbine witnesses, including the following:
(a)
Many of these witnesses exhibit pre-existing conditions that suggest other
underlying medical conditions.21
(b)
The disclosure of medical records was deficient, as the medical records
were inconclusive or missing entirely. Some witnesses also had no record
of raising their alleged symptoms with their physicians at all.22
(c)
Some of these witnesses made life-style choices that could explain their
alleged symptoms, especially those regarding sleep.23
(d)
At least one witness was quick to self-diagnose symptoms as being
caused by wind turbines originally asserting that a lesion on her nose was
20
21
22
23
Witness Statement of Dr. Kenneth Mundt, Exhibit 48, pp. 8-9, and 17, Respondents’
Compendium, Tab 24A, pp. 951-953; "Supplemental Witness Statement of Dr. Kenneth Mundt",
Supplement Witness Statements of K2 Wind, pp. 2-3, Exhibit 49, Respondents’ Compendium,
Tab 24B, pp. 965-966.
Mr. Whitworth's Evidence, October 16, 2013 Transcript, pp. 19, 54-62, 69-70, Respondents’
Compendium, Tab 27B, pp. 1080, 1088-1096 and 1098-1099. Supplementary Medical
Records", Witness Statement of Ted Whitworth, Exhibit 14, Respondents’ Compendium, Tab
27A; Ms Weaver's Evidence, October 16, 2013 Transcript, pp 146-172, Respondents’
Compendium, Tab 26A, pp. 1024-1050; Ms MacLeod's Evidence, September 24, 2013
Transcript, pp. 93, 97, 99, Respondents’ Compendium, Tab 9A, pp. 343, 347 and 349.
Mr. Whitworth's Evidence, October 16, 2013 Transcript, pp. 16-19, 76, 88-92, 94-96,
Respondents’ Compendium, Tab 27B pp. 1077-1080, 1103. 1107-1111 and 1113-1114; Ms
Ashbee's Evidence, September 24, 2013 Transcript, p. 48, Respondents’ Compendium, Tab
8A, p. 257.
Mr. Whitworth's Evidence, October 16, 2013 Transcript, p. 39-40, Respondents’ Compendium,
Tab 27B, pp. 1084-1085.
- 12 associated with wind turbines but later being diagnosed with basal cell
carcinoma.24
(ii)
32.
The Evidence of Dr. Michaud & The Health Canada Study
The Appellants rely heavily on the testimony of Dr. David Michaud and the
Health Canada study (for which he was the principal investigator) in their appeal factum.
For example, at paragraph 144 of their factum the Appellants submit:
The answer to the question "what are the appropriate
protections to protect human health" is simply: "we do not
know". As set out above, at paragraphs 77-80, Dr. Michaud
identifies that there is a knowledge gap surrounding the dose
response relationship between wind turbines and human
health. Medical science is incapable of establishing safe
sound limits or distances at which human health is
unaffected by these large scale industrial projects. The
Ontario government's solution is to approve these projects
without understanding the risks, and to place the onus on the
resident to show that the project will cause harm when both
the federal and provincial governments have no
understanding of the nature and severity of the harm which
will occur.25
33.
The Appellants' submissions are not supported by the evidence and
extend well beyond the ERT's assessment of Dr. Michaud's evidence. The ERT found
as follows with respect to the testimony of Dr. Michaud:
[209] In terms of Dr. Michaud, his testimony revealed that
the Health Canada study he is conducting is designed to
determine whether there is an association between wind
turbines and health effects. He testified that the data from
his study would not be available for another year. He stated
that his study, at best, would assist in determining whether
there was an association between wind turbines and certain
human health effects. The study alone would neither be
determinative nor conclusive with respect to causation.26
24
25
26
Ms Ashbee's Evidence, September 24, 2013 Transcript, pp. 47-48, Respondents’
Compendium, Tab 8A, pp. 257-258.
Appellants’ Appeal factum, para. 144.
Drennan Decision, para. 209 , K2 Wind's Book of Authorities, Tab 13.
- 13 34.
The evidence of Dr. Michaud, who was not qualified as an expert before
the ERT, was put in context by Drs. Mundt and McCunney. Dr. Mundt opined that there
is substantial overlap between the work intended to be done by Health Canada and
research that has already been carried out. He also explained that as a cross-sectional
study the Health Canada study has significant limitations.27
35.
With respect to the "knowledge gap" referred to by Dr. Michaud, Dr. Mundt
explained that this is not a scientific term but perhaps has arisen from the exercise of
reviewing the body of literature in response to specific complaints. Dr. Mundt expressed
that the additional data generated from the Health Canada Study could be useful but
that the study would only be a refinement to existing studies and that he does not
expect the results to include any "earth-shaking findings".28
36.
To further put the work of Health Canada and the "knowledge gap" in
context, Dr. McCunney testified about the status of sound and health research as it
relates to wind turbines based on a 2009 panel review as follows:
27
28

The sounds emitted by wind turbines are not unique. There is
no reason to believe, based on the levels and frequencies of the
sounds and the panels' experience with sound exposures in
occupational settings, that the sounds from wind turbines could
plausibly have direct adverse health consequences.

The body of accumulated knowledge about sound and health is
substantial.

The body of accumulated knowledge provides no evidence that
the audible or sub-audible sounds emitted by wind turbines
Dr. Mundt's Evidence, October 24, 2013 Transcript, pp. 96-100, Respondents’ Compendium,
Tab 24C, pp. 988-992.
Dr. Mundt's Evidence, October 24, 2013 Transcript, pp. 102-104, Respondents’ Compendium,
Tab 24C, pp. 995-997.
- 14 have any direct adverse physiological effects.29
37.
Dr. Mundt also opined that the status of the Health Canada study does not
provide justification for an immediate intervention or moratorium with respect to wind
turbine development. Specifically, he noted that there is insufficient evidence to justify
any intervention from a public health perspective.30
(iii)
38.
The Appellants' Allegations that Wind Turbines Cause Annoyance
and Annoyance Causes Harm
At paragraphs 159 and 160 of their factum on this Appeal, the Appellants
argue that there is an association between wind turbine noise and annoyance and that
annoyance is recognized by the World Health Organization ("WHO") as an adverse
health effect that can lead to psychological stress.
39.
The same argument was advanced before the ERT and rejected on the
evidence. The ERT held that the Appellants failed to establish a causal link between
the complaints of the post-turbine witnesses and wind turbine noise, which includes the
alleged link between wind turbine noise, annoyance and adverse health effects.31
40.
The ERT's decision in this regard was well-supported by the evidence. Dr.
McCunney opined that annoyance is not considered an adverse health effect, "because
whether someone perceives annoyance is based on a variety of factors, not only
individual composition and attitude, but the type of source of the annoyance…".32 The
Appellants incorrectly assert at paragraph 89 of their factum that Dr. McCunney
29
30
31
32
Dr. McCunney's Evidence, October 25, 2013 Transcript, pp. 23-25, Respondents’
Compendium, Tab 21A, 856-858.
Dr. Mundt's Evidence, October 24, 2013 Transcript, pp. 103-105, 135-137, Respondents’
Compendium, Tab 24C, pp. 996-998 and 1000-1002.
Drennan Decision, paras. 193 to 215, K2 Wind's Book of Authorities, Tab 13.
Dr. McCunney's Evidence, October 25, 2013 Transcript, p. 28, Respondents’ Compendium,
Tab 21A, p. 861.
- 15 admitted in cross-examination that the World Health Organization considered
annoyance to be adverse health effect. To the contrary, Dr. McCunney's evidence was
that the World Health Organizations, International Classification of Diseases (the "ICD"),
which is the international standard for classifying diseases and other health conditions,
does not recognize annoyance as an adverse health effect.33
41.
Dr. Mundt's views were consistent with Dr. McCunney. He opined that
harm to health and disease have not been associated with wind turbines and wind
turbine exposures. After reviewing peer-reviewed literature, Dr. Mundt concluded that
the only conditions consistently reported with respect to wind turbines are annoyance or
irritation.
Dr. Mundt distinguished between disease and annoyance and, like Dr.
McCunney, relied on the ICD, which has not classified annoyance or irritation as a
disease. Dr. Mundt concludes, "I cannot classify wind turbines as causing harm to
human health or causing any disease in particular."34
42.
Dr. Moore concurred, opining that in assessing global burden of disease,
the WHO has taken the approach of excluding annoyance as an outcome.35 Dr. Moore
equates the annoyance of complainants regarding wind turbines with annoyance
regarding a government policy and points out that, in the field of public health, when
someone is annoyed with a policy they will be referred to the policymakers.
In
particular, normally five to eight percent of people disagree with public health policies
(i.e., are annoyed) and these people would be referred to policymakers to address their
33
34
35
Dr. McCunney's Evidence, October 25, 2013 Transcript, pp. 28-29, Respondents’
Compendium, Tab 35C, pp. 861-862.
Dr. Mundt's Evidence, October 24, 2013 Transcript, pp. 80-82, 83-84, Respondents’
Compendium, Tab 24C, pp. 981-985. Witness Statement of Dr. Kenneth Mundt, Exhibit 48, p.
26, Respondents’ Compendium, Tab 24A, p. 957.
Dr. Moore's Evidence, October 25, 2013 Transcript, pp. 72-74, Respondents’ Compendium,
Tab 23A, pp. 939-941.
- 16 concerns. He explained that annoyance is not a diagnosable medical issue that can be
addressed by public health officials.36
(iv)
43.
The Appellants' Allegations Regarding Infrasound
The Appellants also alleged, based on the testimony of Mr. James, that
the infrasound generated from wind turbines can cause adverse health effects. The
ERT rejected this evidence:
[212] Mr. James also raises a number of issues related to
infrasound and low frequency sound.
Most of these
comments were general in nature and not related to the
Project. More important, he did not connect infrasound and
low frequency sound to whether it would cause serious harm
to physical health. Moreover, Dr. Mundt and Dr. McCunney
gave evidence directly challenging Mr. James' evidence and
the evidence of Dr. Mundt and Mr. McCunney is more
persuasive at this point in time. In this proceeding, the
Appellants have not established the evidentiary base for a s.
7 Charter claim based on the impacts from infrasound or low
frequency sound.37
44.
This conclusion was also well supported in the evidence. Mr. James is an
acoustician and was not qualified to opine on health matters. In contrast, Dr. McCunney
opined that noise associated with wind turbines, including infrasound and low frequency
sound, is not a health risk.38 He explained that the study of infrasound, which is very
common in nature and the man-made environments, is not unique to wind turbine
operations39 and there are no studies demonstrating adverse health effects from
36
37
38
39
Dr. Moore's Evidence, October 25, 2013 Transcript, pp. 54-55, 70-76, 78-79, Respondents’
Compendium, Tab 23A, pp. 932-933, 937-943 and 945-946.
Drennan Decision, para. 212, K2 Wind's Book of Authorities, Tab13.
Witness Statement of Dr. McCunney, Exhibit 50, p.12, 22, Respondents’ Compendium, Tab
35A, pp. 1305 and 1315.
Witness Statement of Dr. McCunney, Exhibit 50, p.6, Respondents’ Compendium, Tab 35A, p.
1299.
- 17 infrasound at levels encountered in the vicinity of wind turbines.40 Dr. Moore agreed
with Dr. McCunney opining that there is no evidence to support a biological plausibility
and association between infrasound and health effects.41
45.
There were, in any event, a number of significant concerns raised before
the ERT about the impartiality and objectivity of Mr. James' evidence. These concerns
are summarized at paragraph 122 of the Drennan Decision.
(v)
46.
The Appellants' Allegation of Non-Compliance with the Regulation
and Guideline
The Appellants also alleged before the ERT that the K2 Project would
breach the noise limits permitted under the Guidelines and, therefore, would cause
harm to human health.
The Appellants relied on the evidence of Mr. James who
criticized the Noise Assessment Report (the "Noise Report") prepared by Zephyr North
Ltd. for the K2 Project on a number of grounds, which he opined resulted in an
underassessment of sound levels from the K2 Project.
47.
In rejecting the evidence of Mr. James, the ERT adopted the same
conclusion about Mr. James' testimony as those reached by the ERT in the St.
Columban appeal, as follows:
Mr. James' evidence is rebutted by the experts put forth by
both the Director and the Approval Holder. These experts
defend the MOE noise assessment model as being
inherently conservative and employing well accepted
40
41
Witness Statement of Dr. McCunney, Exhibit 50, p.6-7, Respondents’ Compendium, Tab 35A,
pp. 1299-1300; Dr. McCunney's Evidence, October 25, 2013 Transcript, pp. 32-35,
Respondents’ Compendium, Tab 21A, pp. 866-869; Also see: Mr. Coulson's Evidence, October
23, 2013 Transcript, pp. 98-99, 92-93; Respondents’ Compendium, Tab 18C, pp. 712-713 and
716-717; And see: Mr. O'Neal's Evidence, October 23, 2013 Transcript, pp. 172-173,
Respondents’ Compendium, Tab 25B, pp. 1011-1012.
Dr. Moore's Evidence, October 25, 2013 Transcript, pp. 43-46, Respondents’ Compendium,
Tab 23A; Massachusetts Study, Exhibit 50 Tab 7, page 6, para. 6, Respondents’ Compendium,
Tab 29, p. 1131.
- 18 scientific principles. In effect, the Tribunal is being asked to
evaluate and select between the MOE noise assessment
model and an alternative model or variant of the model
proposed by Mr. James. The challenge for the Tribunal is
that, even if the Tribunal accepts the "deficiencies" in the
MOE model as suggested by Mr. James, the implication is
that the sound levels for the Project would be higher than
predicted and higher than permitted in the REA. However, in
order to discharge the onus to establish a deprivation under
a s. 7 Charter claim, it is still necessary for the Appellants to
establish the causal connection that the elevated noise
levels will cause serious psychological or physical harm to
human health. No such evidence was presented. This is the
case whether the Appellants are pursuing a s. 7 Charter
claim or attempting to satisfy the EPA statutory test.42
(citation omitted)
48.
The evidence before the ERT strongly supported this conclusion.
Mr.
Coulson, an acoustical expert and professional engineer with over 15 years' experience
in the field of mechanical engineering, and Mr. Miller, a Senior Noise Engineer in the
Renewable Energy Approvals Units of the Environmental Assessment Branch of the
MOE, testified about the Noise Assessment and responded to Mr. James as follows:
(a)
The Noise Report was conducted in conformity with the Regulation and
the Guidelines and properly assessed receptors with respect to the wind
turbines and the transformers.43
(b)
Noise assessments under the Guidelines are conservative and provide for
a predictable worst case modelling exercise that overcompensates for
factors that could increase the dBA level at a receptor.44
42
43
44
Drennan Decision, para. 211, K2 Wind's Book of Authorities, Tab 13.
Preliminary Witness Statement of Benjamin Coulson, Exhibit 41, Tab 3, Respondents’
Compendium, Tab 18B; Mr. Coulson's Evidence, October 23, 2013 Transcript, pp. 20-24,
Respondents’ Compendium, Tab 18C, pp. 691-695; and Mr. Miller's Evidence, October 24,
2013 Transcript, pp. 27-28, Respondents’ Compendium, Tab 22A, pp. 897-898.
Mr. Coulson's Evidence, October 23, 2013 Transcript, pp. 39-41, 47-48, Respondents’
Compendium, Tab 18C, pp.698-700 and 703-704; Mr. Miller's Evidence, October 24, 2013
Transcript, pp. 18-19, Respondents’ Compendium, Tab 22A, pp. 893-894.
- 19 (c)
The Project is subject to an audit requirement for further measurement
following construction and operation in accordance with the MOE
Compliance Protocol for Wind Turbine Noise.45
(d)
If an operational wind project is found not to comply with the Guidelines,
various compliance and mitigation tools are available to ensure
conformity.46
PART III ~ ISSUES
49.
The issues on this Appeal are:
(a)
Was there a breach of procedural fairness in the proceedings before the
ERT?
(b)
Did the ERT err in finding that it did not have jurisdiction to consider the
Appellants' Charter challenge to section 47.5 of the EPA?
(c)
Did the ERT err in concluding that the Appellants section 7 Charter rights
were not infringed?
PART IV ~ LAW AND ARGUMENT
A.
50.
No Breach of Procedural Fairness
The Appellants allege that they were denied natural justice and procedural
fairness as a result of the disposition of two pre-hearing motions brought by the
Appellants. On the first motion, the Appellants moved to have the Dixon appeal and
Drennan appeal consolidated or, in the alternative, heard one after the other. On the
45
46
Mr. Coulson's Evidence, October 23, 2013 Transcript, pp. 58-59, Respondents’ Compendium,
Tab 18C, pp. 707-708; Mr. Miller's Evidence, October 24, 2013 Transcript, pp. 30-31,
Respondents’ Compendium, Tab 22A, pp. 900-901.
Mr. Miller's Evidence, October 24, 2013 Transcript, pp. 27-31, Respondents’ Compendium, Tab
22A; pp. 897-901; Mr. Coulson's Evidence, October 23, 2013 Transcript, pp. 58-59,
Respondents’ Compendium, Tab 18C, pp. 707-708.
- 20 second motion, the Appellants moved for a lengthy adjournment of the Dixon appeal
and the Drennan appeal.
51.
Contrary to the Appellants' assertion at paragraph 114 of their factum, this
Court has held that the standard of review applicable to discretionary procedural
determinations like adjournment requests is akin to one of reasonableness:
… this court acknowledges the discretionary nature of
decisions involving adjournment requests. The decision
to permit or deny an adjournment falls squarely within the
discretion of the hearing panel. In Olech v. Royal College of
Dental Surgeons (Ontario), … this Court observed … that: "it
is only in the rarest of cases that the court would intervene
because of such a decision and only if it reaches the
conclusion that the tribunal proceeded on a wrong principle".
Tribunals have an inherent power to control their own
processes, which includes the power to grant or refuse
adjournments, and to impose reasonable conditions on such
adjournments.
In this case, the determination of whether there was a
denial of natural justice or procedural fairness requires
us to consider the exercise of a discretionary power.
Given the deference that is usually accorded
discretionary determinations, the standard of review in
this case is akin to one of reasonableness. The inquiry
must focus on whether the panel took account of relevant
considerations in balancing the competing interests, and
whether it made a decision consistent with the interests of
justice. Natural justice and procedural fairness were
infringed only if it can be said that the panel exercised its
discretion in an unreasonable or non-judicious fashion.47
(emphasis added, citations omitted)
47
Senjule v. Law Society of Upper Canada, [2013] O.J. No. 2347 at para. 22 (Div. Ct.), K2 Wind's
Book of Authorities, Tab 26.
- 21 52.
In addition, in reviewing the procedural decisions of the ERT the
Appellants have the onus of establishing that the ERT decisions, if unreasonable, could
have affected the outcome of the appeal.48
53.
The Appellants have failed to establish that either of the impugned
procedural decisions was unreasonable or that, if they were, the decisions affected the
outcome of the Appeal.
(i)
54.
No Breach of Procedural Fairness on the Motion to Consolidate
On the first motion, the Appellants suggest that there was a breach of
procedural fairness because the ERT failed to consider the discrepancy in resources
between the parties and a "consolidation or a hearing of the matters back-to-back would
have allowed the Appellants to reduce their costs."49
55.
There is no substance to this submission. The ERT did not have the
discretion to consolidate the proceedings.
Section 9.1 of the Statutory Powers
Procedures Act and the applicable rule of the ERT only permit consolidation where all
parties to a proceeding consent and all of the parties in the Dixon and Drennan Appeals
did not consent.
56.
This position was fully canvassed in the material filed before the ERT in
response to the Appellants' motion to consolidate.50 After reviewing the responding
48
49
50
Grand Central Properties Inc. v. Cochrane (Town), 2013 A.J. No. 636 at paras. 20-22 (C.A.) , K2
Wind's Book of Authorities, Tab 16.
Appellants' Factum at paras. 118-120.
Motion Record of the Appellants, dated August 19, 2013, Respondents’ Compendium, Tab 12;
Responding Submissions of K2 Wind, dated August 20, 2013, Respondents’ Compendium, Tab
13; Director’s Response to Notice of Motion to Consolidate dated August 20, 2013,
Respondents’ Compendium, Tab 14; and Responding Motion Record of St. Columan,
Respondents’ Compendium, Tab 15.
- 22 material, the Appellants conceded that the ERT was prohibited from consolidating the
hearings without the consent of the parties.
57.
The ERT subsequently adjourned the Dixon appeal and Drennan appeal
so that they could proceed consecutively and directed the parties to "make best efforts
to use all appropriate provisions of the Statutory Powers and Procedure Act and the
Tribunal's Rules of Practice to promote the efficiency of the two proceedings including
opportunities for avoiding duplication of evidence or submissions".51 The evidence of
several witness who testified at the Dixon appeal was ultimately adopted into evidence
at the Drennan appeal in order to promote efficiency and avoid duplication of
evidence.52
58.
In these circumstances, the decision of the ERT refusing to consolidate
was not only reasonable, it was correct. Indeed, it was not open the ERT to grant
consolidation.
(ii)
59.
No Breach of Procedural Fairness on the Motion for an Adjournment
On the second motion, the Appellants suggest that there was a breach of
procedural fairness in relation to the ERT's decision not to grant a lengthy adjournment
to permit the Appellants to call as a witness the Chief Medical Officer of Ontario, Dr.
Arlene King. The Appellants assert, first, that the ERT failed to address the Appellants'
submissions in respect of Dr. King's evidence and, second, that the failure to grant the
51
52
Dixon v. Director, Ministry of the Environment, 2013 CarswellOnt 12681 at para. 2 (E.R.T.), K2
Wind's Book of Authorities, Tab 11; Dixon v. Director, Ministry of the Environment, 2014
CarswellOnt 412 at paras. 77 and 78 (E.R.T.), K2 Wind's Book of Authorities, Tab 12.
Drennan Decision at para. 8, K2 Wind's Book of Authorities, Tab 13.
- 23 adjournment "directly impaired the Appellants' ability to present their case fully and fairly
by depriving them of their ability to call Dr. King's evidence."53
60.
As noted above, the ERT's decision is subject to review on a standard of
reasonableness.54 The decision of the ERT was reasonable and there was no breach
of procedural fairness, either in relation to the ERT's reasons or its decision not to grant
the lengthy adjournment requested by the Appellants.
61.
The motion for an adjournment was fully briefed, including with detailed
written argument.55 The ERT considered whether the lengthy adjournment requested
by the Appellants was justified in light of the six month statutory deadline within which
the ERT must deliver its decision. The ERT concluded that the Appellants had not
demonstrated that a lengthy adjournment and a corresponding extension of the six
month deadline was necessary in order to ensure procedural fairness.56 The ERT did,
however, grant a shorter adjournment that did not require an extension of the six month
deadline.57
62.
The ERT's decision did not deprive the Appellants of their ability to call Dr.
King at the hearing. Although the Drennans attempted to compel Dr. King's attendance
in separate proceedings, the Appellants did not make any effort to have Dr. King
summonsed by the ERT, either before or after the ERT's decision to grant an
adjournment of the hearing.
53
54
55
56
57
The Appellants could have used the ERT's internal
Appellants' Factum at paras. 117.
Senjule v. Law Society of Upper Canada, [2013] O.J. No. 2347 at para. 22 (Div. Ct.), K2 Wind's
Book of Authorities, Tab 26.
Responding Submissions of K2 Wind to Drennan Appellants’ Motion to Adjourn, dated September
6, 2013, Respondents’ Compendium, Tab 16. Director’s Response Materials For Appellants’
Motion to Adjourn, dated September 6, 2013, Respondents’ Compendium, Tab 17.
Dixon v. Director, Ministry of the Environment, 2014 CarswellOnt 412 at paras. 61-64 and 73, K2
Wind's Book of Authorities, Tab 12.
Dixon v. Director, Ministry of the Environment, 2014 CarswellOnt 412 at para. 79, K2 Wind's
Book of Authorities, Tab 12.
- 24 summons process to summons Dr. King to provide evidence, which is exactly what they
did in respect of Dr. Michaud.58 The Appellants simply chose not to do so.
63.
In any event, the unavailability of a witness has not been held to be a
sufficient factor for adjourning a hearing, even upon the consent of both parties.59
64.
Further and contrary to the Appellants suggestion, the ERT explicitly
addressed the Appellants' submissions in respect of Dr. King's evidence. The ERT held
that the written materials of the Appellants did not provide any compelling reason to
grant a lengthy adjournment in respect of the Appellants' alleged inability to obtain
evidence from Dr. King.60
65.
The Supreme Court of Canada has recently clarified that the adequacy of
an administrative tribunal's reasons is not a stand-alone basis for quashing a decision
and that the adequacy of the reasons must be assessed on a standard of
reasonableness and not correctness.61
In the circumstances, there was nothing
inadequate or unreasonable about the reasons provided by the ERT.
66.
Finally, although the Appellants also sought an adjournment based on the
availability of Mr. Falconer, the Appellants do not state on this Appeal that the ERT's
decision to refuse an adjournment on that basis resulted in a breach of procedural
58
59
60
61
Rules of Practice and Practice Directions of the Environmental Review Tribunal, July 9, 2010 at
R. 194.
Bechard v OLG Slots at Woodbine, [2012] OHRTD No 1180, K2 Wind's Book of Authorities,
Tab 2.
Dixon v. Director, Ministry of the Environment, 2014 CarswellOnt 412 at para. 70 (E.R.T) , K2
Wind's Book of Authorities, Tab 12.
N.L.N.U. v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras. 14 and 21-22,
K2 Wind's Book of Authorities, Tab 18.
- 25 fairness. It is well-established that the right to counsel "does not mean that the plaintiff
can insist on adjournments or dates of his choice if his counsel is not available."62
B.
The ERT Correctly Found That It Did Not Have Jurisdiction To Consider The
Appellants' Constitutional Challenge To Section 47.5 Of the EPA
67.
K2 Wind supports and adopts the position of the Director set out at
paragraphs 119 to 142 of his factum that the ERT correctly ruled it did not have
jurisdiction to determine the constitutionality of section 47.5 of the EPA. In any event,
as elaborated on below, this Appeal does not turn on this jurisdictional question.
C.
The ERT Did Not Err In Concluding That The Appellants' Section 7 Charter
Rights Were Not Infringed
(i)
68.
Overview of the Test Under Section 7 of the Charter
An alleged violation of a section 7 of the Charter involves a two-staged
analysis. A person claiming the right must first establish on a balance of probabilities
that the impugned legislation or state action deprives him or her of life, liberty or security
of the person. Only if such a deprivation is established by a claimant is the second
stage of the analysis engaged. At this second stage, the claimant must demonstrate,
on a balance of probabilities, that the deprivation is not in accordance with a principle of
fundamental justice.63
69.
Where, as here, a claimant alleges a deprivation of security of the person,
the claimant must, at the first stage of the analysis, prove on a balance of probabilities ,
62
63
Aseervatham c. Canada (Ministre de la Citoyenneté & de l'Immigration), 2000 CarswellNat 1631
at para. 16 (F.C.T.D.), K2 Wind's Book of Authorities, Tab 1, leave to appeal denied 2001
CarswellNat 3820 (S.C.C.), See also: Oppose Belwood Wind Farm Assn. v. Ontario (Director,
Ministry of the Environment), 2013 CarswellOnt 584 at para. 35 (E.R.T.) , K2 Wind's Book of
Authorities, Tab 21.
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 47, K2 Wind's
Book of Authorities, Tab 5. [Blencoe]; Bedford v. Canada (Attorney General), 2012 ONCA 186
at para. 89 [Bedford CA], K2 Wind's Book of Authorities, Tab 3, leave to appeal to S.C.C.
granted, [2012] S.C.C.A. No. 159 [Bedford SCC]; Nemeth v. Canada, [2010] 3 S.C.R. 281 at
para. 73, K2 Wind's Book of Authorities, Tab 19.
- 26 that the impugned legislation or state action will result in a physical or psychological
harm. Not all state action "rises to the level of an adverse impact on security of the
person under section 7.
The impact, whether psychological or physical, must be
serious."64
70.
State interference with bodily integrity arises where the impugned laws or
state action actively interferes with bodily integrity and/or causes serious harm to
physical health.
The circumstances where interference with bodily integrity and/or
physical harm have been found to establish a deprivation of security of the person
include:
64
65
66
67

A Criminal Code prohibition on women receiving therapeutic
abortions except in accordance with a specified approvals
process. The impact of this provision on women was serious
because it forced them "by threat of criminal sanction to carry a
foetus to term" even if doing so was "unrelated to [a woman's]
own priorities and aspirations." (R. v. Morgentaler, 1988)65

A prohibition on assisted suicide in the Criminal Code, which the
Supreme Court of Canada held had a serious impact because it
deprived "the appellant of autonomy over her person and
causes her physical pain and psychological stress." (R. v.
Rodriguez, 1993)66

A provincial prohibition on private health insurance that the
Supreme Court of Canada found deprived people of control over
their own health. Quebec's public health care system was beset
by long wait times and the evidence before the court established
that these wait times had serious impacts on people's physical
and psychological health, including in some cases by resulting
in death. (Chaoulli v. Attorney General of Quebec, 2005)67
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para 123 [Chaoulli], Blencoe,
supra at para. 81, K2 Wind's Book of Authorities, Tab 5. See also Wareham v. Ontario
(Minister of Community and Social Services), 2008 O.N.C.A. 771 at para. 17, K2 Wind's Book of
Authorities, Tab 29.
R. v. Morgentaler, [1988] 1 S.C.R. 30 at para. 24.
Rodriguez v. British Columba (Attorney General), [1993] 2 S.C.R. 519 at 521 (a)-(b) , K2 Wind's
Book of Authorities, Tab 24.
Chaoulli, supra note 122 at para. 123, K2 Wind's Book of Authorities, Tab 5.
- 27 
71.
The decision of the Minister of Health refusing to grant an
exemption under the Controlled Drugs and Substances Act to a
Vancouver "safe injection site". The Supreme Court of Canada
found that denying the exemption deprived addicts of access to
a health care facility and potentially "lifesaving medical care".
(PHS Community Services Society v. Attorney General of
Canada, 2011)68
Serious state imposed psychological harm arises where the impugned
legislation or state action results in a "serious and profound effect" on a person's
psychological integrity. Circumstances where the impugned legislation or state action
had a serious and profound effect on a person's psychological integrity included the
removal of children from their parents' custody and prohibiting women from ending their
own pregnancy.69
72.
In New Brunswick (Minister of Health and Community Services) v. G. (J.).,
the Supreme Court of Canada held that the right to security of the person is not
engaged by ordinary stresses and anxiety such as being troubled, annoyed, disturbed
or upset:
Dickson C.J. in Morgentaler, supra, at p. 56, suggested that
security of the person would be restricted through "serious
state-imposed psychological stress". Dickson C.J. was trying
to convey something qualitative about the type of state
interference that would rise to the level of an infringement of
this right. It is clear that the right to security of the
person does not protect the individual from the ordinary
stresses and anxieties that a person of reasonable
sensibility would suffer as a result of government
action. If the right were interpreted with such broad sweep,
countless government initiatives could be challenged on the
ground that they infringe the right to security of the person,
massively expanding the scope of judicial review, and, in the
68
69
Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134 at paras
91-93 [PHS SCC], K2 Wind's Book of Authorities, Tab 7.
Blencoe, supra note 121 at paras. 84-85 , K2 Wind's Book of Authorities, Tab 5; Chaoulli,
supra note 122 at para. 116-117, K2 Wind's Book of Authorities, Tab 5.
- 28 process, trivializing what it means for a right to be
constitutionally protected.
For a restriction of security of the person to be made out,
then, the impugned state action must have a serious and
profound effect on a person's psychological integrity. The
effects of the state interference must be assessed
objectively, with a view to their impact on the psychological
integrity of a person of reasonable sensibility. This need not
rise to the level of nervous shock or psychiatric illness, but
must be greater than ordinary stress or anxiety.70 (emphasis
added)
73.
Similarly, in Blencoe v. British Columbia (Human Rights Commission), a
provincial Cabinet Minister claimed that delays in the hearing of a human rights
allegation that he had engaged in sexual harassment breached his section 7 Charter
rights. The psychological impact of the allegation led to depression, withdrawal from
public office and moving across the country to escape media attention. Here, too, the
Court held that the right to security of the person was not infringed:
It is only in exceptional cases where the state interferes
in profoundly intimate and personal choices of an
individual that state-caused delay in human rights
proceedings could trigger the s. 7 security of the person
interest. While these fundamental personal choices
would include the right to make decisions concerning
one's body free from state interference or the prospect
of losing guardianship of one's children, they would not
easily include the type of stress, anxiety and stigma that
result from administrative or civil proceedings.71
(emphasis added)
74.
It is the party claiming a breach of a Charter right that "bears the burden of
persuading the court that her [or his] Charter rights or freedoms have been infringed" by
state action.72 This requires the party seeking a Charter remedy to show, through
70
71
72
New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at
paras. 59-60, K2 Wind's Book of Authorities, Tab 20.
Blencoe, supra note 121 at para. 83 , K2 Wind's Book of Authorities, Tab 5.
R. v. Collins, [1987] 1 SCR 265 at 277 (c)-(d) , K2 Wind's Book of Authorities, Tab 22.
- 29 evidence, that it is "more likely than not" that a state action has resulted in the breach of
a Charter right.73 This principle was succinctly stated by this Tribunal in the Dixon
Appeal as follows, "[f]or a s. 7 Charter claim, the Tribunal finds that the onus is on the
Appellants to establish, on the evidence, the claimants have suffered or will suffer
serious physical or psychological harm."74
75.
Meeting the burden of proof under section 7 of the Charter generally
requires objective evidence (usually in the form of independent expert evidence).75 By
way of illustration, in Truehope Nutritional Support Ltd. v. Canada (Attorney General),
the Federal Court held that in assessing a Charter claim required "a critical analysis of
not only [the plaintiff's] subjective evidence but also relevant objective evidence with
respect to the content of [the plaintiff's] subjective claim in order to determine the weight
to be given to [the] subjective evidence."76
(ii)
76.
Section 47.5 of the EPA Does Not Breach Section 7 of the Charter
As noted above, this Appeal does not turn on whether the ERT had
jurisdiction to consider the Appellants' section 47.5 argument because even if the ERT
had such jurisdiction, the Appellants have not established that section 47.5 of EPA
violates section 7 of the Charter.
73
74
75
76
R. v. Dixon, [1998] 1 SCR 244 at para. 32, K2 Wind's Book of Authorities, Tab 23.
Dixon v. Director (Ministry of the Environment), 2014 CarswellOnt 714 at para. 84 (E.R.T.) , K2
Wind's Book of Authorities, Tab 10; Canada (Attorney General) v. Bedford, 2013 SCC 72 at
paras. 75-78, K2 Wind's Book of Authorities, Tab 4.
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999], 3 S.C.R. 46 at
para. 60, K2 Wind's Book of Authorities, Tab 20.
TrueHope Nutritional Support Limited v. Canada (Attorney General), 2010 FC 63 at para. 89, K2
Wind's Book of Authorities, Tab 27. See also Bedford v. Canada (Attorney General), 2012
ONCA 186 at paras. 307-318, K2 Wind's Book of Authorities, Tab 3. (T.D.) PHS SCC, at para.
80 K2 Wind's Book of Authorities, Tab 7, and Victoria (City) v. Adams, 2008 BCSC 1363 at
paras. 67-68, K2 Wind's Book of Authorities, Tab 28.
- 30 77.
Section 47.5 of the EPA confers a broad discretion on the Director to issue
a renewable energy approval if in his or her opinion it is in the public interest to do so.
The Director's discretion includes the ability to impose such terms on a renewable
energy project as he or she considers to be in the public interest, including for example,
setting a different set-back distance from that applied for.77
78.
Statutory provisions such as section 47.5 of the EPA that convey such a
broad discretion generally do not infringe the Charter. Rather, it is the manner in which
that discretion can be exercised in certain cases that can give rise to a Charter breach:
Where s. 52 of the Constitution Act, 1982 is not engaged, a
remedy under s. 24(1) of the Charter may nonetheless be
available. This will be the case where the statute or provision
in question is not in and of itself unconstitutional, but some
action taken under it infringes a person's Charter rights.
Section 24(1) would there provide for an individual remedy
for the person whose rights have been so infringed.
This course of action … comes into play when the text
of the provision in question supports a constitutional
interpretation and the violative action taken under it
thereby falls outside the jurisdiction conferred by the
provision. I held that this was the case in Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038,
when I determined that a provision which provided a labour
adjudicator with discretion to make a range of orders could
not have been intended to provide him with the discretion to
make unconstitutional orders. The legislation itself was not
unconstitutional and s. 52 was not engaged, but the
aggrieved party was clearly entitled to an individual remedy
under s. 24(1).78 (emphasis added)
79.
Any alleged breach of section 7 of the Charter then is necessarily focused
on the Director's exercise of his discretion to issue a renewable energy approval.
77
78
EPA, s 47.5(1).
Schachter v. Canada, [1992] 2. S.C.R. 679 at 684 (i) and 720 (a)-(d) , K2 Wind's Book of
Authorities, Tab 25.
- 31 80.
The evidence in this case does not support a finding that the issuance of
the REA by the Director deprived the Appellants of security of the person. There is no
evidence of any sort of physical harm to health being caused by the issuance of the
REA. Nor does the evidence support the Appellants' assertion at paragraph 140 of their
factum that the legislative scheme "profoundly impacts the Appellants' psychological
integrity".
81.
As noted in the overview, the Appellants unsuccessfully advanced this
argument before the Honourable Justice Grace during their motion to stay the approval
of the K2 Project. In dismissing this motion, Justice Grace held as follows:
51
As noted, the Drennans suggest that the very first
decision of the Director will have serious consequences on
their psychological health and financial well-being.
52
In Chaoulli c. Québec (Procureur général), the dispute
related to waiting times in Quebec's public health care
system. In that context, the Supreme Court of Canada
acknowledged that:
...waiting for critical care may have significant adverse
psychological effects. Serious psychological effects
may engage s. 7 protection for security of the person.
These "need not rise to the level of nervous shock but
must be greater than ordinary stress or anxiety."
[Citation omitted]
53
With respect, this case does not stand on the same
footing — at least at present. The anticipated event has not
occurred. The Director's decision, even if the one anticipated
and feared, is subject to challenge. While the alleged harm
seems speculative to me, even if realized it will be temporary
if the Drennans, rather than the K2 defendants, are
successful at the end of the regulatory process.79
79
Drennan v. K2 Wind Ontario Inc., 2013 ONSC 2831 (S.C.J.) at paras. 51-53, Appellants' Book
of Authorities, Tab 12.
- 32 82.
Nothing has changed.
In fact, despite referring in their pre-hearing
disclosure before the ERT to an expert report of "a psychiatrist to provide evidence
regarding the psychological harm suffered by the imposition of industrial wind turbines
in the environment", no such report was ever filed.80
Moreover, during cross-
examination, Mr. and Mrs. Drennan both admitted that they were mentally well:
Q.· And mentally as well, you have good mental health?
Mr. Drennan:· ·Yes.
Q.· ·You're not seeing a psychiatrist?
A.· ·No.
Q.· ·Not seeing a psychologist?
A. No.
…
Q.· ·And you're also mentally well?
MRS. DRENNAN:· Yes
Q.· ·You're not seeing a psychiatrist?
MRS. DRENNAN:· No.
Q.· ·Not seeing a psychologist?
MRS. DRENNAN:· No.81
83.
The Appellants have not demonstrated any impact on their mental well-
being that rises above the ordinary stress and anxiety of being a party to an
administrative proceeding.
80
81
Disclosure Statement of the Appellants Shawn and Tricia Drennan, dated August 28, 2013, at p.
4, Respondents’ Compendium, Tab 19A, p. 721.
Drennan's Evidence, October 15, 2013 Transcript, pp. 28 – 30, Respondents’ Compendium,
Tab 19B, pp. 733-734.
- 33 (iii)
84.
Section 142.1 of the EPA Does Not Breach Section 7 of the Charter
The Appellants allege that the ERT erred in law by failing to find that the
"serious harm to health" standard in section 142.1 of the EPA does not violate section 7
of the Charter. The problem that the Appellants face on this Appeal is that the ERT
made a finding of fact that the Appellants had not established a breach of section 7 of
the Charter even under the lower threshold of harm that they urged the ERT to apply.
In particular, the ERT held as follows:
Even if one accepted that the test to prove a causal
connection under s. 7 of the Charter so as to establish
serious psychological or physical harm is less onerous or
stringent than the s. 142.1 threshold under the EPA to
establish serious harm to human health, the burden has not
been met by the Appellants. As a result it is not necessary in
this case for the Tribunal to determine if the threshold under
s. 7 of the Charter is less stringent than under s.142.1 of the
EPA.82
85.
This is a factual finding of the ERT and it is not subject to review on
appeal to this Court.
86.
Although the appeal can be dismissed on the basis of these findings
alone, K2 Wind also addresses the following:
(a)
the Appellants' argument that the ERT erred as a matter of law by
requiring a medical diagnosis to prove causation;
(b)
any alleged harm to human health was not caused by state action and
does not give rise to a section 7 Charter claim; and
(c)
any alleged deprivation of security of the person was not contrary to the
principles of fundamental justice.
82
Drennan Decision, para. 215, K2 Wind's Book of Authorities, Tab 13.
- 34 (a)
87.
The ERT did not err in requiring a medical diagnosis to prove
causation
The Appellants incorrectly assert at paragraph 171 of their Factum that the
ERT erred as a matter of law by requiring a medical diagnosis to prove causation and
that the ERT could instead have inferred causation in the absence of scientific evidence
of causation.
88.
Contrary to the Appellants' submissions this does not raise a question of
law. Issues of causation raise questions of fact (or mixed fact and law) which are not
reviewable by this Court on appeal. The trier of fact must weigh all of the evidence to
determine whether or not to draw an inference of causation as part of the fact-finding
process.83
89.
The ERT established in decisions prior to the decision under Appeal that
the diagnostic skills of a medical expert are required in order to prove a medical
condition amounting to serious harm in post-turbine witnesses and to link that harm to
exposure to a wind turbine. In particular, the ERT held that without such evidence an
appellant cannot establish that a project is the cause of the harm that the post-turbine
witnesses allege they have suffered.
90.
This is a factual determination, not a legal one. For example, the ERT
stated in an earlier decision:
The Tribunal does not question that the post-turbine
witnesses have experienced the symptoms they have
described. After all, only they can say how they feel.
However, in order to arrive at a reliable conclusion
respecting causation, personal assessments which do
83
Athey v. Leonati, 1998 CarswellBC 2295 at para. 16 (S.C.C.), Appellants' Book of Authorities,
Tab 2; Snell v. Farrell, 1990 CarswellNB 82 at paras. 30 and 33-34 (S.C.C.), Appellants' Book
of Authorities, Tab 28; Fisher (Litigation Guardian of) v. Atack, 2008 ONCA 759 at para. 58,
Appellants' Book of Authorities, Tab 14.
- 35 not consider the full range of potential causes of these
symptoms, are incomplete. Furthermore, the exercise of
arriving at a diagnosis requires a level of education,
training and experience, which none of the post-turbine
witnesses possess. In this regard, the Tribunal notes that
in Kawartha Dairy, the Tribunal found that confirmation of
medical conditions requires the diagnostic skills of a qualified
health professional.84 [emphasis added].
91.
Similarly, an inference of the sort urged by the Appellants in this case is a
factual causation question.
Such an inference can only be made in limited
circumstances where the facts lie particularly within the knowledge of the respondent
and there is no evidence to the contrary.85
92.
The factual nature of this causation question is illustrated by decisions
holding that the trier of fact is not bound to accept anecdotal evidence of causation even
in absence of evidence to the contrary. In this respect, Courts regularly refuse to infer
causation where the matters at issue are technical and outside the ordinary knowledge
and experience of a trier of fact and the plaintiff has failed to provide medical or expert
evidence.86 As the Ontario Superior Court of Justice held in Claus v. Wolfman:
Admittedly in Snell v. Farrell, … the Supreme Court of
Canada observed that '[i]n many malpractice cases, the facts
lie particularly within the knowledge of the defendant. In
these circumstances, very little affirmative evidence on the
part of the plaintiff will justify the drawing of an inference of
causation in the absence of evidence to the contrary.'
However, here the plaintiffs have not provided even the 'little
84
85
86
Bovaird v. Director, Ministry of the Environment, (23 December 2013), Case Nos. 13-070 to 13075 online: ERT <www. http://www.ert.gov.on.ca> at para. 313 , K2 Wind's Book of Authorities,
Tab 6.
Snell v. Farrell, 1990 CarswellNB 82 at para. 31-33 (S.C.C.), Appellants' Book of Authorities,
Tab 28.
Cassibo v. Bacso, 2010 ONSC 6435 at para. 14 (S.C.J.) , K2 Wind's Book of Authorities, Tab
8; Kiden Used Furniture, Clothing & Household Goods Inc. v. Pearson, 2014 ONSC 4625
(S.C.J.), K2 Wind's Book of Authorities, Tab 17; Claus v. Wolfman, 1999 CarswellOnt 4397 at
paras. 21-22 (S.C.J.), K2 Wind's Book of Authorities, Tab 9, aff'd 2000 CarswellOnt 4956
(C.A.).
- 36 affirmative evidence' and, what is more, the defendants have
provided affirmative 'evidence to the contrary.'
The right of the trier of fact to draw the inference that the
proximity in time of the defendants' treatment to the injury
suffered by the plaintiff … may be indicative of some causal
connection is not impaired by the failure of a medical expert
to testify that the injury was definitely caused by the
treatment nor by the existence of other potential causes.
However, there must be some medical testimony, no
matter how ten tative, proffered in support of the
inference.87 (emphasis added)
93.
In any event, even if the ERT's causation decision were a legal issue
subject to review, the ERT was correct not to draw on inference of causation on the
evidence before it:
(a)
The facts in respect of which the inference is sought do not lie particularly
within the knowledge of K2 Wind.
To the contrary, the alleged harm
suffered by the post-turbine witnesses lies exclusively within the
knowledge of the post-turbine witnesses.
(b)
There is substantial expert evidence that the K2 Project will not cause
serious harm to human health, including evidence that called into question
the self-diagnosis of the post-turbine witnesses.88
(c)
The alleged harm to human health caused by wind turbines is technical
and outside the ordinary knowledge and experience of the ERT. In the
circumstances, the ERT could not infer causation from the anecdotal
evidence of the post-turbine witnesses, particularly in the face of the
expert medical testimony to the contrary.
87
88
Claus v. Wolfman, 1999 CarswellOnt 4397 at paras. 20-21 (S.C.J.), K2 Wind's Book of
Authorities, Tab 9, aff'd 2005 CarswellOnt 4956 (C.A.).
Drennan Decision at para. 213, K2 Wind's Book of Authorities, Tab 13.
- 37 (b)
94.
Any alleged harm was not caused by State action and does not
give rise to a section 7 Charter claim
The ERT considered, but ultimately held that it did not have to decide, the
issue of whether any harm that might occur was caused by state action. However, this
issue provides an alternative basis upon which this Court could dismiss the Charter
challenges to section 47.5 and 142.1 of the EPA. K2 Wind supports and adopts the
submissions of the Director in respect of this issue at paragraphs 86 to 95 of his factum.
95.
By way of summary, K2 Wind submits that this is not a section 7 Charter
case. Section 7 exists to constrain government action, not to guarantee a specific
model or standard for land use. In this case, there is no government prohibition on the
Appellants that interferes with their rights. The Appellants' claim is fundamentally a
positive rights claim. They seek to change the REA regime because they do not agree
with it. Section 7 of the Charter cannot be used for this purpose.89 That is the role of
the legislature.
96.
In contrast to this case, every case where section 7 has been found to be
infringed, the impugned state action prohibited the exercise of a right. The state action
at issue in Morgentaler, Rodriguez, Chaulli, lnsite and Bedford was legislation that
impaired the ability of the claimants to take steps to alleviate or address a health need
by imposing prohibitions on them. The prohibitions in those cases were the removal of
decision-making power over the individual's physical or psychological integrity. In each
of those cases, the claimants had to prove that the impugned law prevented them from
taking steps to reduce the alleged harm or risk of harm.
89
Gosselin v. Quebec (Attorney General), 2002 SCC 84 at para. 81, K2 Wind's Book of
Authorities, Tab 15.
- 38 97.
There is no such prohibition at issue in this case.
The impugned
legislation has not deprived the Appellants of any rights. To the contrary, section 142.1
of the EPA confers on the Appellants a right they would not otherwise have, a direct
right of appeal to the ERT. Absent the current regulatory approach to wind turbines, the
only steps available to the Appellants to address alleged health effects would have been
to seek leave to appeal to the ERT or to bring a civil claim.
98.
The required connection between the impugned legislation and the
deprivation of a right simply does not exist in this case. 90
(c)
99.
Any alleged deprivation of security of the person was not
contrary to the principles of fundamental justice.
Finally, any alleged deprivation of security of the person was in
accordance with the principles of fundamental justice.
The Appellants' Charter
arguments, therefore, fail at the second stage of the two-part section 7 analysis. This
too provides an alternate basis for dismissing this appeal and K2 Wind adopts and
supports the submissions of the Director at paragraphs 96 to 118 of his factum.
PART V ~ ORDER REQUESTED
100.
K2 Wind respectfully requests that this Appeal be dismissed with costs.
Dated this 7th day of November, 2014
by
Christopher Bredt (LSUC #23627Q)
James Bunting (LSUC #48244K)
Nathaniel Read-Ellis (LSUC #63477L)
Lawyers for K2 Wind
90
Flora v. Ontario Health Insurance Plan (General Manager) 2007 CarswellOnt 103 at paras. 9 and
204 (Div. Ct) , K2 Wind's Book of Authorities, Tab 14.
- 39 SCHEDULE "A"
LIST OF AUTHORITIES
1.
Drennan v. Director, Ministry of the Environment, Case No. 13-097/13-098
(E.R.T.)
2.
Drennan v. K2 Wind Ontario Inc., 2013 ONSC 2831 (S.C.J.)
3.
Chaoulli c. Québec (Procureur générale), [2005] 1 S.C.R. 791
4.
Senjule v. Law Society of Upper Canada, [2013] O.J. No. 2347 (Div. Ct.)
5.
Grand Central Properties Inc. v. Cochrane (Town), 2013 ABCA 69
6.
Dixon v. Director, Ministry of the Environment, 2013 CarswellOnt 12681 (E.R.T.)
7.
Dixon v. Director, Ministry of the Environment, 2014 CarswellOnt 412 (E.R.T.)
8.
Bechard v OLG Slots at Woodbine, [2012] OHRTD No. 1180
9.
N.L.N.U. v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62
10.
Aseervatham c. Canada (Ministre de la Citoyenneté & de l'Immigration), 2000
CarswellNat 1631 (F.C.T.D.)
11.
Oppose Belwood Wind Farm Assn. v. Ontario (Director, Ministry of the
Environment), 2013 CarswellOnt 584 (E.R.T.)
12.
Blencoe v. British Columbia (Human Rights Commission), 2000 S.C.C. 44
13.
Bedford v. Canada (Attorney General), 2012 ONCA 186
14.
Nemeth v. Canada, [2010] 3 S.C.R. 281
15.
Wareham v. Ontario (Minister of Community and Social Services), 2008 ONCA
771
16.
Rodriguez v. British Columba (Attorney General), [1993] 2 S.C.R. 519
17.
Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R.
134
18.
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3
S.C.R. 46
19.
R. v. Collins, [1987] 1 S.C.R. 265
20.
R. v. Dixon, [1998] 1 S.C.R. 244
- 40 21.
Dixon v. Director (Ministry of the Environment), 2014 CarswellOnt 714 (E.R.T.)
22.
TrueHope Nutritional Support Limited v. Canada (Attorney General), 2010 FC 63
(T.D.)
23.
Victoria (City) v. Adams, 2008 BCSC 1363
24.
Schachter v. Canada, [1992] 2 S.C.R. 679
25.
Athey v. Leonati, 1998 CarswellBC 2295 at para. 16 (S.C.C.)
26.
Snell v. Farrell, 1990 CarswellNB 82 (S.C.C.)
27.
Fisher (Litigation Guardian of) v. Atack, 2008 ONCA 759
28.
Bovaird v. Director, Ministry of the Environment, (23 December 2013), Case Nos.
13-070 to 13-075 online: ERT <www. http://www.ert.gov.on.ca>
29.
Cassibo v. Bacso, 2010 ONSC 6435 (S.C.J.)
30.
Kiden Used Furniture, Clothing & Household Goods Inc. v. Pearson, 2014 ONSC
4625 (S.C.J.)
31.
Claus v. Wolfman, 1999 CarswellOnt 4397 (S.C.J.)
32.
Gosselin v. Quebec (Attorney General), 2002 SCC 84
33.
Flora v. Ontario Health Insurance Plan (General Manager) 2007 CarswellOnt 103
(Div Ct.)
- 41 SCHEDULE "B"
LEGISLATIVE PROVISIONS
Canadian Charter of Rights and Freedoms
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c. 11
…
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
…
Environmental Protection Act
R.S.O. 1990, c. E.19
…
Director's powers
47.5 (1) After considering an application for the issue or renewal of a renewable
energy approval, the Director may, if in his or her opinion it is in the public interest to do
so,
(a) issue or renew a renewable energy approval; or
(b) refuse to issue or renew a renewable energy approval.
Terms and conditions
(2) In issuing or renewing a renewable energy approval, the Director may impose terms
and conditions if in his or her opinion it is in the public interest to do so.
Other powers
(3) On application or on his or her own initiative, the Director may, if in his or her
opinion it is in the public interest to do so,
(a) alter the terms and conditions of a renewable energy approval after it is
issued;
(b) impose new terms and conditions on a renewable energy approval; or
(c) suspend or revoke a renewable energy approval.
- 42 Same
(4) A renewable energy approval is subject to any terms and conditions prescribed by
the regulations.
…
Hearing re renewable energy approval
142.1 (1) This section applies to a person resident in Ontario who is not entitled under
section 139 to require a hearing by the Tribunal in respect of a decision made by the
Director under section 47.5.
Same
(2) A person mentioned in subsection (1) may, by written notice served upon the
Director and the Tribunal within 15 days after a day prescribed by the regulations,
require a hearing by the Tribunal in respect of a decision made by the Director under
clause 47.5 (1) (a) or subsection 47.5 (2) or (3).
Grounds for hearing
(3) A person may require a hearing under subsection (2) only on the grounds that
engaging in the renewable energy project in accordance with the renewable energy
approval will cause,
(a) serious harm to human health; or
(b) serious and irreversible harm to plant life, animal life or the natural
environment.
…
Appeals from Tribunal
145.6 (1) Any party to a hearing before the Tribunal under this Part may appeal from
its decision or order on a question of law to the Divisional Court in accordance with the
rules of court.
…
Statutory Powers and Procedures Act
R.S.O. 1990, c. S.22
…
Proceedings involving similar questions
- 43 9.1(1)If two or more proceedings before a tribunal involve the same or similar questions
of fact, law or policy, the tribunal may,
(a) combine the proceedings or any part of them, with the consent of the parties;
(b) hear the proceedings at the same time, with the consent of the parties;
(c) hear the proceedings one immediately after the other; or
(d) stay one or more of the proceedings until after the determination of another
one of them.
…
Use of same evidence
(5)If the parties to the second-named proceeding consent, the tribunal may treat
evidence that is admitted in a proceeding as if it were also admitted in another
proceeding that is heard at the same time under clause (1) (b).
…
DRENNAN et al
Appellants/
Appellants on
Appeal
and
THE DIRECTOR, MINISTRY OF
THE ENVIRONMENT
Respondent/
Respondent on Appeal
and
K2 WIND ONTARIO INC.
OPERATING AS K2 WIND
ONTARIO LIMITED
PARTNERSHIP
Respondent/
Court File No. 2056/14
ERT Case No. 13-097/13-098
Respondent on Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
Proceeding commenced at London
Factum of K2 Wind Ontario Inc. operating as K2
Wind Ontario Limited Partnership
BORDEN LADNER GERVAIS LLP
44th Floor - 40 King Street West
Toronto, ON M5H 3Y4
Christoper Bredt (LSUC No.: 23627Q)
Tel: 416.367.6165
Fax: 416.361.7063
DAVIES WARD PHILLIPS & VINEBERG LLP
155 Wellington Street West
Toronto, ON M5V 3J7
James Bunting (LSUC #48244K)
Nathaniel Read-Ellis (LSUC # 63477L)
Tel: 416 863 0900
Fax: 416 863 0871
Lawyers for the Respondent K2 Wind Ontario Inc.
operating as K2 Wind Ontario Limited Partnership