environmental review tribunal ruling on additional evidence

Environmental Review Tribunal

Case Nos.: 13-121/13-122

Pitt v. Director, Ministry of the Environment

In the matter of appeals by Mikel Pitt and Skydive Burnaby Ltd., filed October 22, 2013 for a hearing before the Environmental Review Tribunal pursuant to s. 142.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, with respect to Renewable Energy Approval No. 7159-97BQAS issued by the Director, Ministry of the Environment, on October 7, 2013 to Wainfleet Wind Energy Inc., under s. 47.5 of the Environmental Protection Act, regarding the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of five turbines with a total name plate capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession 2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario; and

In the matter of telephone conference calls held on March 19, 20 and 27, April 2 and 4, 2014, regarding the Tribunal’s proposal to request additional evidence.

Before: Dirk VanderBent, Vice-Chair

Appearances:

Eric Gillespie, - Counsel for the Appellants, Mikel Pitt and Skydive Natalie Smith and Burnaby Ltd. John May

Nadine Harris - Counsel for the Director, Ministry of the Environment

Scott Stoll, - Counsel for the Approval Holder, Wainfleet Wind Jody E. Johnson and Energy Inc. Piper Morley

Dated this 7th day of April, 2014.

Environmental Review Tribunal Order: 13-121/13-122 Pitt v. Director, Ministry of the Environment

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REASONS FOR DECISION

Background

[1] On October 7, 2013, Vic Schroter, Director, Ministry of the Environment (“MOE”),

issued Renewable Energy Approval No. 7159-97BQAS (the “REA”) to Wainfleet Wind

Energy Inc. (the “Approval Holder”), pursuant to s. 47.5 of the Environmental Protection

Act (“EPA”). The REA grants approval for the construction, installation, operation, use

and retiring of a Class 4 wind facility consisting of five wind turbines with a total name

plate capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession

2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario (the

“Project”).

[2] On October 22, 2013, Mikel Pitt and Skydive Burnaby Ltd. (“Skydive”),

collectively referred to as the Appellants, jointly filed a notice of appeal of the REA

pursuant to s. 142.1 of the EPA.

[3] A preliminary hearing was held in Wainfleet on November 20, 2013. The

Appellants requested and were granted a stay of the REA. Further background

respecting these matters is set out in the Tribunal’s Orders dated December 12, 2013,

March 11, 2014 and April 2, 2014.

[4] The Notice of Appeal indicates that Skydive operates a parachute skydiving

service which has been operating at its present location since 1948 and currently

provides approximately 10,000 skydives annually. Approximately 1,000 aircraft takeoffs

and landings are required to provide this service. Although the REA includes approval

of five wind turbines, and the Appellants’ appeal requests full revocation of the REA, it is

not disputed that the basis of their appeal is that wind turbines T4 and T5 will cause

serious harm to human health, because of the potential that airplanes or parachutists

will either collide with these wind turbines or be unable to safely manoeuvre due to wind

turbulence generated by these wind turbines.

[5] Pursuant to s.145.2.1 of the EPA, the onus is on the Appellants to establish that

engaging in the Project in accordance with the REA will cause serious harm to human

health (the “Health Test”) and/or serious and irreversible harm to plant life, animal life or

the natural environment. In this case, their appeal is in respect of the Health Test only.

[6] In overview, the Director and the Approval Holder do not dispute that serious

harm to human health will occur if a plane or a parachutist were to collide with one of

these wind turbines, or if wind turbulence generated by the operation of T4 or T5 were


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to cause a parachute to collapse. However, they assert that the probability of such

occurrence is so low, that the “will cause” aspect of the Health Test has not been met.

[7] The Tribunal heard evidence on January 6, 8, 10, 13, 14, 17, 27, 28, and 29,

2014. The parties then provided written submissions, and, on February 28, 2014, the

hearing resumed to allow the parties to make brief oral submissions and provide the

Tribunal with the opportunity to ask questions.

[8] On February 28, 2014, the Tribunal asked for clarification respecting the

evidence provided by one of the witnesses for the Approval Holder, Dr. Raymond Cox.

As counsel were unable to provide a complete response to the Tribunal’s question, the

Tribunal indicated that it would further review Dr. Cox’s evidence. In completing this

additional review, the Tribunal identified that it required additional clarification respecting

one of Dr. Cox’s conclusions as well as additional evidence in furtherance of this

clarification.

[9] Consequently, the Tribunal prepared a written list of questions, which was

circulated to counsel, and a telephone conference call (“TCC”) was held on March 19,

2014, to canvass the parties’ positions respecting the Tribunal’s proposed questions.

Counsel for the Appellants requested a brief adjournment to consider their position, so

the TCC was adjourned to March 20, 2014. The Tribunal also provided further

clarification regarding its written questions, and, to assist the parties, provided them with

an updated list of the written questions prior to the next TCC scheduled for March 20,

2014. On March 20, 2014, counsel for the Appellants advised that the Appellants

objected to the Tribunal receiving the additional evidence, and requested an opportunity

to provide detailed submissions in this regard. The Tribunal then gave directions for

filing of written submissions by the parties, and scheduled a further TCC on March 27,

2014. Upon receipt and review of the written submissions, the Tribunal also directed

the parties to provide oral submissions respecting the application of Rule 185 of the

Tribunal’s Rules of Practice (the “Rules”). On March 20, 2014, the Tribunal heard these

oral submissions, and made the following disposition:

Having considered the appellants’ position that the Tribunal should not request additional information from Dr. Cox, and the parties’ submissions respecting this issue, the Tribunal directs that Dr. Cox answer the Tribunal’s questions. In making this disposition, the Tribunal is not addressing, at this time, whether there should be any subsequent examination or re-examination respecting Dr. Cox’s responses to these questions or calling of further reply evidence. This issue will be addressed at a later date, once the parties have had an opportunity to review Dr. Cox’s responses to the Tribunal’s questions.


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[11] The Tribunal also indicated that it would provide written reasons for this

disposition. The purpose of this order is to provide these reasons.

[12] The Tribunal notes that the updated list of questions included several questions

which only require submissions from the parties regarding other matters to be

considered in this proceeding. As the Appellants do not object to the Tribunal’s request

for these submissions, these questions have not been reproduced in the list of

questions to which the Appellants object (“List of Questions”), which is attached to this

order as Appendix A.

[13] The Tribunal notes that one question in the List of Questions is not directed to

Dr. Cox, namely “Under the REA, what is the retirement date for the Project?” Based

on submissions received from the parties it appears that an adequate response to this

question requires only factual evidence, as opposes to opinion evidence.

Consequently, at the TCC held on March 27, 2014, the Tribunal further directed the

parties to confer in order to provide an agreed statement of fact in response to this

question.

[14] In overview, the Appellants’ objections fall into two main categories. They assert

that the Tribunal does not have jurisdiction to request additional evidence at this stage

in the proceeding, and if the Tribunal receives additional evidence from Dr. Cox, this will

raise a reasonable apprehension of bias to be raised on appeal to the Divisional Court.

[15] In the subsequent TCC’s held on April 2 and 4, 2014, the Tribunal made

procedural directions regarding examination of Dr. Cox on his responses to the List of

Questions, and the potential receipt of evidence in reply to Dr. Cox’s additional

evidence. The Tribunal then adjourned this proceeding to April 10, 2014. As noted

below, this adjournment is granted pursuant to s. 59 of Ontario Regulation 359/09 made

under the EPA (“O. Reg. 359/09”). Full particulars are provided below.

Relevant Legislation and Rules

[16] Relevant legislative provisions and Rules are attached to this order as

Appendix B.

Issues

[17] The issues to be determined are:

Issue No. 1: Whether the Tribunal has jurisdiction to request additional evidence

at this stage in the proceeding.


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Issue No. 2: If the answer to Issue No. 1 is yes, whether receiving the additional

evidence would raise a reasonable apprehension of bias.

Discussion, Analysis and Findings

Introduction

[18] Dr. Cox was called by the Approval Holder and qualified as an expert to give

opinion evidence respecting risk assessment in public safety, energy and transportation.

Dr. Cox holds a Ph.D. in Air Pollution Sciences which he obtained from Imperial

College, London, England. His evidence at the hearing included his written witness

statement which he adopted as his evidence, as well as his oral evidence. Dr. Cox has

also prepared a report dated December 9, 2013, entitled Risk Assessment of

Interactions between Wind Turbines and Skydive Operations, which was also entered

into evidence. In overview, this report outlines his assumptions, analysis, and

conclusions regarding his estimate of the risk impact, if any, of wind turbines T4 and T5

on Skydive’s operations.

[19] As the first topic in the List of Questions indicates, the Tribunal sought

clarification of how Dr. Cox arrived at his conclusion that the incremental risk

contributed by the presence of the turbines is less than 1/1000th of one percent. In its

written submissions, the Approval Holder points out that Dr. Cox, in his oral testimony,

did provide an explanation of how he calculated this incremental risk. In this regard, the

Approval Holder has provided reference to the specific questions and answers in the

written transcript of Dr. Cox’s evidence. The Tribunal has had an opportunity to further

review this portion of the transcript, and is satisfied that his answers provide the

clarification that the Tribunal has requested. Consequently, this part of the List of

Questions is not at issue, as no additional evidence is required.

[20] The Tribunal otherwise requires additional evidence to understand how Dr. Cox’s

conclusion is to be interpreted in the context of the statutory test before the Tribunal in

this proceeding, namely, the Health Test, i.e., whether engaging in the Project in

accordance with the REA will cause serious harm to human health.

[21] The Tribunal notes that the hearing of the appeal is not complete. In this regard,

the Tribunal notes that all parties requested that the Tribunal should first render a

decision regarding the issue as to whether engaging in the Project in accordance with

the REA will cause serious harm to human health. If the Tribunal finds that it does, the

parties wish to make further submissions regarding which of the actions the Tribunal


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may take pursuant to s.142.2.1(4) of the EPA (i.e., submissions regarding remedy),

namely:

a. revoke the decision of the Director;

b. by order direct the Director to take such action as the Tribunal considers the

Director should take in accordance with this Act and the regulations; or

c. alter the decision of the Director.

[21] The parties requested that the Tribunal bifurcate the hearing of the appeals in

this manner, and the Tribunal has granted this request. In response to one of the

questions subsequently posed by the Tribunal, all parties agree that, although they

would prefer to proceed by submissions only, they also wish to provide additional

evidence respecting remedy, as they consider necessary.

[22] The Tribunal has considered all the parties’ submissions and the authorities they

have cited in detail. Because these submissions are lengthy, it is not feasible to

produce a full synopsis of these submissions within a written order of reasonable length.

Consequently, in this order, the Tribunal has only included a summary of the most

salient submissions made by the parties.

[23] As stated in the Tribunal’s disposition of March 20, 2014, the Tribunal did not

address whether there should be any subsequent examination or re-examination

respecting Dr. Cox’s responses to these questions or calling of further reply evidence.

Consequently, the Tribunal has not summarized the parties’ submissions respecting this

issue. However, the Tribunal has considered the Appellants’ submission that the

potential requirement for examination and reply witnesses must be considered when

determining whether the Tribunal should request additional evidence from Dr. Cox.

Issue No. 1: Whether the Tribunal has jurisdiction to request additional evidence at this stage in the proceeding.

Submissions by the Appellants

[24] The Appellants make the following submissions:

1) New evidence from Dr. Cox fails to satisfy the test for admissibility in that

the evidence (a) is tainted and therefore not credible, (b) was in existence at

the time of the hearing, and, as a result, (c) was then also readily obtainable

at the time of the hearing. Therefore, pursuant to Tribunal Rule 234, the


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Tribunal is prohibited from receiving the new evidence that is being

contemplated at this time.

2) The Tribunal has raised these questions after all of the evidence has been

entered, the merits of the case have been heard, and all written and oral

submissions have been completed. Therefore, any evidence prompted by

the Tribunal’s questions would constitute “new evidence”. Furthermore, the

evidence would be “new” insofar as the Tribunal is seeking to elicit

information that did not materialize during Dr. Cox’s evidence (e.g., whether

Dr. Cox used the binomial distribution model or whether Dr. Cox calculated

the individual jump probability); the Tribunal is only now, after all the parties

have closed their case, seeking to have Dr. Cox comment on such highly

technical matters.

3) According to Rule 233, “once the Hearing has ended but before the decision

is rendered, a Party may make a motion to admit new evidence.” “Hearing”

is defined at Rule 3 as “a written, oral or electronic procedure held by the

Tribunal where a person has the opportunity to present one’s case and

includes motions, Pre-Hearing Conferences, Preliminary Hearings, main

Hearings and review Hearings, but does not include mediation”. The

“hearing” in this case has clearly ended.

4) On its own initiative, the Tribunal is now seeking to have this new and

substantive evidence admitted. This is so despite the wording of Rule 233,

which places the onus on a party to bring a motion of this nature.

5) In any event, the Tribunal is prohibited from receiving new evidence if the

preconditions in Rule 234 are not met. In this case, these preconditions

have not been satisfied because Dr. Cox’s new evidence is not credible,

was in existence at the time of the hearing and was, therefore, also clearly

obtainable. Furthermore, based on principles espoused in the case law, it

would not be in the interests of justice to allow this evidence to be heard at

this late stage.

6) The evidence is not credible because the Tribunal’s questions are leading in

nature. They direct the witness and do not allow Dr. Cox to provide a fair,

unbiased and uncompromised account of his evidence. On March 19,

2014, during a conference call with the Tribunal, counsel for the Approval

Holder confirmed that the Tribunal’s questions had already been forwarded


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to Dr. Cox. Dr. Cox, therefore, has been put on notice as to the deficiencies

in his evidence and has been given an opportunity, and specific directions

regarding how, to remedy those deficiencies. Consequently, the witness is

already tainted.

7) The role of an expert witness is to offer independent, unbiased opinion

evidence that is the product of the expert and uninfluenced as to form or

content. If Dr. Cox is permitted to respond to the leading questions, this

Tribunal would be allowing tainted/biased evidence to be entered into the

record. This is a clear violation of the fundamental principles of evidence

and the high standard to which an expert is held.

8) There can be no doubt as to the existence of this evidence at the time of the

hearing. Dr. Cox knew that he was being asked to look at the specific issue

of parachutist collision probability. He knew as a statistician he must also

consider which models to use, and explain why. He simply failed to put this

information in any cogent form in his report. His errors were avoidable. The

information existed. He failed to include it and now is not the time to permit

him to repair his shortcomings and mistakes under the guise of “new”

evidence.

9) There is a general social policy favouring finality of litigation. Each party

must present its best case before the trier of fact. Having failed to do so,

the Approval Holder should not now be granted a great indulgence to

remedy deficiencies in its case. Here, Dr. Cox is being presented with the

opportunity to amend or substantially bolster his evidence, in other words, to

“try again”.

10) It is abundantly clear that the Approval Holder has failed to put its best case

forward. Allowing Dr. Cox to have a “second kick at the can” would not be

in the interests of justice. In this matter, the Appellants would be placed at a

significant disadvantage, not only from disparate treatment of the parties,

but also from the additional time and costs associated with this unexpected

turn of events.

11) In summary, new evidence from Dr. Cox fails to satisfy the test for

admissibility in that the evidence (a) is tainted and therefore not credible, (b)

was in existence at the time of the hearing, and, as a result, (c) was then

also readily obtainable at the time of the hearing. Therefore, based on its


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own Rules of Practice, the Tribunal is prohibited from receiving the new

evidence that is being contemplated at this time.

12) In addition, it would not be in the interests of justice to admit such evidence

at this late stage, particularly when it can be reasonably concluded that the

admission of such evidence appears to result in a major benefit for one

party.

13) The Tribunal, though it has broad administrative powers, is still required to

operate within the confines of the law (see Rule 7). It is trite law that as a

creature of statute, the Tribunal is only permitted to do that which it has

been authorized to do under its enabling statute.

14) The Tribunal has no statutory authority to re-call a witness, on its own

initiative, after all of the evidence has been entered and the parties have

made their closing submissions. The case law does not appear to assist the

Tribunal either. Rule 185 does not apply in this case. This Rule must be

considered in context. Rule 185 is included in the section of the Tribunal’s

Rules entitled “Hearing Procedure”. The hearing of this appeal has ended.

While the “proceeding”, which is defined in Rule 3 as including a hearing

and referring to all matters before the Tribunal in respect of an appeal, has

yet to come to a close, the merits of the case have been heard and the

closing submissions of the parties have been submitted. Therefore, in this

case, the hearing portion of the proceeding has been completed, and,

consequently, Rule 185 does not apply.

15) If the evidence is to be admitted under Rule 234, by definition, it must be so

important as to be able to “affect the result of the Hearing.” As such, it

would be contrary to natural justice and procedural fairness to deny the

Appellants the right to cross-examine Dr. Cox viva voce, to call a reply

witness, and to make submissions on the implications of Dr. Cox’s new

evidence on the outcome of the whole appeal.

16) If the Tribunal were to admit Dr. Cox’s new evidence notwithstanding the

above, then the Appellants submit that this also establishes a reasonable

apprehension of bias. The Tribunal’s decision would inevitably be tainted in

favour of the Approval Holder, and would, therefore, be subject to an appeal

to the Divisional Court.


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17) It is not for the Tribunal to assist the expert, whether by allowing the expert

to patch up holes in his evidence, to bolster his evidence, or by projecting

the Tribunal’s own expertise onto the expert, which has clearly occurred

given the content of the questions the Tribunal authored.

18) The Tribunal, on its own initiative, has sought to resuscitate the defective

evidence of Dr. Cox. It then goes even further. It points out the specific

flaws in the evidence and seeks to assist by using its own knowledge of

statistics to correct those flaws.

[25] In response to the submissions of the Director and the Approval Holder, the

Appellants make the following submissions:

1) There can be no such thing as “clarification” without adding further/additional

evidence. Where new questions are posed, further/additional evidence must

also be added. Anything that is added is by any definition “new”. Neither the

Director nor the Approval Holder addressed these logical impossibilities.

2) In Corp. of St. Saviour, Brock Memorial Church v. Niagara Escarpment

Commission, [2010] O.E.R.T.D. No. 55 (“St. Saviour”), the Tribunal not only

held that Rule 226 (now Rule 234) incorporates a “reasonable diligence

requirement” but that the operation of Rules 5 and 8 must take place in the

context of whether there will be any prejudice to the parties.

3) The broad provisions of the Statutory Powers and Procedures Act, R.S.O.

1990, c. S. 22 (“SPPA”) and the general language of the Tribunal’s Rules

identified by the Director and the Approval Holder (Rules 4, 5, 7 and 8) are of

no assistance to establish such jurisdiction. A question of process is entirely

a legal issue. Therefore, the Tribunal must be correct in law. The Tribunal

simply does not have carte blanche to chart a new course of law by admitting

evidence that is clearly inadmissible according to Rule 234. Rule 7 makes

clear that all acts of the Tribunal under its Rules must be “permitted by law.”

Likewise, the “best evidence rule” supersedes other legal requirements.

4) The Approval Holder goes on to make submissions that appear to attempt to

answer some of the questions posed by the Tribunal in its questions of March

11 and 19, 2014. With respect, this is clearly improper. The issue before the

Tribunal is the objection to the ability of Dr. Cox to give further evidence. If

the Tribunal wishes to have direct submissions on these other matters from

counsel, a separate process should be established.


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5) Dr. Cox has now expressed a specific opinion. His opinion strongly supports

the approval of the Project. As a result, he has clearly expressed a position in

favour of the Respondents’ position in this case. Having expressed this

opinion, and strongly, he cannot now reasonably be viewed by any objective

observer as having a “neutral stance” on these issues. His position is clear

and supports a particular outcome.

6) To now return to Dr. Cox either to ask him (a) to clarify how he came to this

strong opinion that exclusively favours one specific outcome, or (b) to opine

on new matters as if he had not already taken a position, would leave any

reasonable and informed observer questioning why that witness is being

afforded the opportunity to clarify his strong opinion, and then give even more

evidence on the same subject matter. Taking such a step with a witness

already in this position would raise an equally strong and very reasonable

apprehension of bias.

Submissions by the Director

[26] The Director makes the following submissions:

1) The Tribunal has the jurisdiction to clarify the evidence it has heard or

receive new evidence before it renders its decision. In this case, the

Tribunal is requesting clarification of Dr. Cox’s evidence.

2) The Director disagrees with the Appellants’ assertion that Rule 185 does not

apply in this case. The Director notes Rule 185 is included in the section of

the Tribunal’s Rules entitled “Hearing Procedure”, and notes that hearing is

broadly defined under Rule 3, submitting that it includes all hearing

procedures from the beginning of the process until the Tribunal is functus,

i.e., until the proceeding before the Tribunal is terminated. The Director

states that Rule 185 is clear on its face. It provides that the Tribunal may

question Parties, Participants, Presenters, witnesses or representatives on

their behalf and advise when additional evidence, witnesses or submissions

might assist the Tribunal. The Director, submits, therefore, that, the

Tribunal has the authority to request the additional information in this case.

3) Alternatively, the Tribunal has the jurisdiction to do so under Rule 7 which

states that “the Tribunal may do whatever is necessary and permitted by law

to enable it to effectively and completely adjudicate the matter before it.” In

doing so, the Tribunal may, under Rule 5, depart from the Tribunal Rules or


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waive any provision of the Tribunal Rules, or, under Rule 6, issue

procedural orders which prevail over the Tribunal Rules.

4) Even if the Appellants’ characterization of the evidence as “new evidence” is

correct, under Rule 233 a party may bring a motion to admit new evidence.

Under Rule 8, the Tribunal can admit it either on its own initiative or on a

motion of a Party. The new evidence must meet the criteria set out in Rule

234, namely, that the evidence is material to the issues, credible and could

affect the result of the hearing, and either the evidence was not in existence

at the time of the hearing, or for reasons beyond the Party’s control, the

evidence was not obtainable at the time of the Hearing.

5) The evidence requested by the Tribunal meets all of these criteria. The

evidence is material to the issue of whether the turbines will cause serious

harm to human health which is the central issue in this appeal. It is credible

in that it is evidence from an expert who has signed the acknowledgement

of expert duty form and understands the role of an expert before the

Tribunal. Finally, the Tribunal only recently sought the clarifications/new

evidence and as such this evidence was not obtainable at the hearing.

6) Furthermore, even if the “new evidence” does not meet all the criteria in

Rule 234, under Rule 5, the Tribunal has the ability to waive any of the

criteria.

7) The Appellants’ allegations of bias are unfounded and unsupported by any

evidence. The onus of proof is on the person who alleges bias. There is a

presumption that a tribunal member will act fairly and impartially in the

absence of evidence to the contrary.

8) A real likelihood of probability of bias must be demonstrated. Mere

suspicion is not enough. Bias must be proven with evidence under oath

unless the facts are on the record or volunteered by the Tribunal Member.

In this case, the Appellants have provided no affidavit evidence to support

their allegations of bias. The facts on the record are the Tribunal Member

has requested clarification and further analysis of Dr. Cox’s evidence.

These facts do not support in any way an allegation of bias.

9) In Committee of Justice and Liberty v. Canada (National Energy Board),

[1978] 1 S.C.R. 369, (“Liberty”) at page 19, the Supreme Court of Canada


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addressed the manner in which the test for reasonable apprehension of bias

should be applied is as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude...

10) No reasonable person would think that a request for clarification and further

analysis demonstrates a biased or a closed mind. On the contrary, the

request itself is evidence of an open and unbiased mind. If the Tribunal

member had already made up his mind, why would he bother with asking

for clarification?

11) Unbiased does not mean uninformed. It does not mean that the Tribunal

Member cannot consider the evidence already presented and request

clarification and further analysis. Far from approaching the matter with a

closed mind, the Tribunal Member in this case has communicated the

clarifications he requires and has been open as to what process should be

followed in obtaining them.

12) The Appellants allege that the intervention of the Tribunal Member through

his list of questions gives rise to a reasonable apprehension of bias. The

Tribunal Member’s record must be assessed in its totality and the

interventions complained of must be evaluated cumulatively rather than as

isolated occurrences, from the perspective of a reasonable observer. In this

case, the Tribunal Member properly intervened during the hearing to focus

the evidence, clarify evidence, avoid irrelevant or repetitive evidence or

direct the witness to answer questions. His latest intervention is in line with

his previous interventions, is properly within his role and does not create a

reasonable apprehension of bias.

Submissions by the Approval Holder

[27] The Approval Holder adopts the submissions of the Director and makes the

following additional submissions:

1) The Tribunal is given broad powers to control its own process in accordance

with s. 25 of the SPPA. Section 2 of the SPPA provides that the Tribunal's

authority and discretion under the Rules shall be liberally construed to


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secure the just, most expeditious and cost-effective determination of every

proceeding on its merits.

2) It is widely recognized that a tribunal controls its own process and that

subject to the rules of natural justice and procedural fairness, has the

authority to devise procedures that will achieve a certain balance between

the need for fairness, efficiency and predictability of outcome.

3) If the Tribunal requires clarity from a party regarding submissions made

during the hearing of the appeals, the Tribunal is entitled to make the

necessary inquiries needed in order to fully understand the evidence

submitted.

4) In addition to the Director’s submissions regarding the application of Rule

185, the Approval Holder notes there is no temporal or time restriction

stated in this rule respecting its application. The Approval Holder notes that

Rule 185 provides that the Tribunal may question a witness when additional

evidence might assist the Tribunal. On plain reading, this means that

evidence has already been heard and something more is required.

Otherwise, this rule would not include the word “additional”. This means

that the Tribunal has the authority to ask for additional evidence at any point

in the hearing.

5) The Appellant contends that the "hearing" of this matter has ended.

However, the Tribunal has not yet issued its decision and is still seized of

the matter. As such, it is not functus and has not lost its authority to seek

such information.

6) The functus principle means that once a tribunal has reached a final

decision, the decision cannot be revisited simply because the tribunal has

changed its mind. In support of this position the Approval Holder cites

Society of Management Accountants (Saskatchewan) v. Ostoforoff (2005),

33 Admin. L.R. (4th) 166, 2005 CarswellSask 488, 2005 SKQB 317, 264

Sask. R. 316 at para. 12.

7) In this case, the Tribunal is not functus and therefore has the ability to seek

clarifications on the evidence tendered. This contention is supported by

Rule 238, which allows the Tribunal to review a decision which has been

rendered on the basis of new evidence. The Appellants' argument on

jurisdiction would lead to an absurd and inefficient result.


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8) Rule 238 states the Tribunal has the authority to reconsider its decision

even after the hearing is completed to hear new evidence. The Appellants'

interpretation would mean that although the Tribunal can, in review,

reconsider its decision after the decision has been rendered in order to

correct an error, the Tribunal does not have the jurisdiction to ask for

clarifications in advance of the final decision to avoid making the error. This

cannot be correct.

9) Similarly, the Appellants' argument in relation to the court's favouring finality

of a decision is simply not applicable in this case. It also leads to a loss of

judicial efficiency.

10) All of the cases cited by the Appellants relate to the re-litigation of issues

finally decided in a prior judicial proceeding. In this case, as set out above,

the Tribunal is not functus and there are no issues being challenged in

another forum or on appeal.

11) It is important to properly characterize the information being sought by the

Tribunal. The Tribunal has not asked "leading questions" as alleged by the

Appellants. In this case, the Tribunal has sought clarification of the

evidence provided by Dr. Cox.

12) It appears that the Tribunal is trying to understand Dr. Cox's evidence in

regard to the level of incremental risk and probability of an incident that can

be attributed to the Project. In the information that the Tribunal has

requested, it has asked for clarification of the calculation of Dr. Cox. The

Approval Holder notes that no information or evidence in this regard has

been provided by the Appellants.

13) It is disingenuous for the Appellants to suggest that the information

requested by the Tribunal is in the nature of allowing Dr. Cox to "have a

second kick at the can". The facts simply do not bear out this assertion.

14) If a motion is made pursuant to Rules 233 and 234 of the Rules of Practice

and the moving party is unable to satisfy all three branches of the Rule 234

test, the Tribunal can use its broad powers provided for in Rules 5 and 8 to

admit the new evidence. In support of this position the Approval Holder

cites St. Saviour at para. 22. The Approval Holder notes that, in that case,

the Tribunal admitted new evidence despite the fact that the moving party


16

could not satisfy the third requirement set out in Rule 234, waiving this

requirement pursuant to Rules 5 and 8.

15) The evidence of Dr. Cox is entirely material to the issues as framed in the

Notices of Appeal and a fulsome understanding of the evidence is required

in order for the Tribunal to make an informed decision. Furthermore, Dr.

Cox was qualified as an expert by the Tribunal, with his qualifications put

forward on consent of all parties. There was no question about his

independence or qualifications. Consequently, Dr. Cox's evidence should

be deemed to be eminently credible.

16) In Erickson v. Ontario (Ministry of the Environment), (2011) 61 C.E.L.R. (3d)

1 (“Erickson”) at para. 34, the Tribunal indicated that it "wishes to have the

best evidence available in discharging its statutory duties." To deny

providing the requested information to the Tribunal would be to deny the

Tribunal the best available evidence.

Findings on Issue No. 1

[28] The determination of this procedural issue requires consideration of the

Tribunal’s Rules. Pursuant to s. 25.0.1 and 25.1 of the SPPA, the Tribunal has the

power to determine its own procedures and practices, provided that these rules are

consistent with the SPPA and other Acts to which these rules relate. It is important to

note, therefore, that the Tribunal’s practice and procedure may differ from court practice

and procedure. Furthermore, because the Rules must be consistent with the Tribunal’s

enabling legislation, the Rules must be interpreted in the context of this legislation. This

intent is made evident in the purposes of the Rules, as set out in Rule 1, which states

that one of these purposes is to assist the Tribunal in fulfilling its statutory mandate.

[29] In determining whether additional evidence is necessary, the Tribunal is required

to consider more than just the impact the additional evidence may have on the

respective positions of the parties. The Tribunal must be satisfied that it has sufficient

evidence before it to fulfil its statutory mandate and make a just determination of this

proceeding on its merits. While the Tribunal primarily relies on the parties to identify

and present the evidence and submissions relevant to the appeal, the Tribunal must be

able to request additional evidence, if necessary, in order to fulfil its statutory role.

[30] The Tribunal’s Rules, Rule 185 in particular, must be considered in the above

context. As the Appellants argue that Rules 233 and 234 govern the Tribunal’s

jurisdiction to request additional evidence, the Tribunal has compared these rules to


17

Rule 185. Rule 185 provides that the Tribunal may advise when additional evidence,

witnesses or submissions might assist the Tribunal. Rules 233 and 234 govern the

procedure when a party may bring a motion to adduce new evidence. The Tribunal

notes that, if Rules 233 and 234 govern the Tribunal’s jurisdiction to request additional

evidence, there would be no purpose in including Rule 185 in the Rules.

[31] However, the Appellants assert that Rule 185 applies to the Tribunal’s jurisdiction

to request evidence only while evidence is being adduced by the parties. They maintain

that, once all the evidence has been heard, the Tribunal’s jurisdiction to request

evidence is then governed only by Rules 233 and 234. In this regard, the Appellants

note that Rule 185 is placed in the section of the Rules entitled “Hearing Procedure”.

The Appellants maintain that “Hearing” refers to the calling of evidence by the parties,

and, therefore, Rule 185 can only apply during the phase of the hearing when the

parties are calling their evidence. The Tribunal does not accept these submissions for

the following reasons. First, on plain reading, Rule 185 does not impose any time

restriction on when the Tribunal may request additional evidence, witnesses or

submissions. While Rule 185 falls under the general heading "Hearing Procedure", the

Rule itself does not refer to the "Hearing" as defined in Rule 3. In contrast, Rule 233

refers directly to the "Hearing" and expressly imposes a time restriction on when a party

maybring a motion to admit new evidence. This reinforces that, if the intent of Rule 185

was to place a time restriction on when the Tribunal may request additional information,

an express provision to this effect would have been included in this rule. Furthermore,

the Tribunal notes that Rule 185 allows the Tribunal to make an additional request for

submissions, which, clearly follow the calling of evidence. This clearly indicates that a

request for additional information may be made after the parties have called their

evidence.

[32] The Tribunal has also considered a purposive analysis of Rules 185 juxtaposed

with Rules 233 and 234. Regarding the latter, the Tribunal notes that its hearing

procedures require that parties exchange all relevant documents and witness

statements prior to the hearing of evidence. Consequently, it is expected that the

parties will have had a full opportunity to consider the evidence they wish to adduce

before the Tribunal. The purpose of Rules 233 and 234, therefore, is to limit a party’s

ability to re-open its case once that party has called its evidence. The obvious reason

for doing so, is to ensure efficiency and timeliness of the Tribunal’s proceeding, as set

out in Rule 3. In contrast, not all documents exchanged among the parties are before

the Tribunal at the hearing, only those on which they intend to rely. The Tribunal


18

receives only the evidence of the witnesses and specific documents which are entered

as exhibits. The Tribunal often asks questions of the witnesses as they testify.

However, especially in the case of an expedited hearing such as this one, it may not

become readily apparent to the Tribunal whether it has sufficient evidence to fulfill its

statutory mandate, until the Tribunal has had an opportunity to hear all the evidence,

receive submissions from the parties, and review the evidence in detail in light of those

submissions. Consequently, in order to fulfil its statutory mandate and make a just

determination on the merits, the Tribunal must, at times, be able to request additional

evidence after the parties have called their evidence. Therefore, Rule 185 has a

different purpose from Rules 233 and 234.

[33] The Tribunal’s conclusion in this regard is further reinforced in the

Acknowledgement of Expert Duty (Form 5), which each witness who gives opinion

evidence must sign (see Rule 170(d)). This form requires that the witness, among other

things, acknowledge his/her duty to provide opinion evidence in accordance with

Tribunal’s Practice Direction for Technical and Opinion Evidence (the “Practice

Direction”) and “to provide such additional assistance as the tribunal may reasonably

require to determine a matter in issue” (emphasis added). Furthermore s. 8 and 9 of the

Practice Direction describe the role of the Tribunal and the Tribunal’s expectation of

opinion witnesses:

The Role of the Tribunal

8. The decisions that the Tribunal must make involve the public interest and may have serious and far-reaching environmental consequences. These decisions must be based on a balanced record, composed of accurate and reliable technical information and professional opinions. All Parties and their representatives and witnesses have a responsibility to contribute to such a balanced record to assist the Tribunal to fulfill its duty. They are expected to make every effort to comply fully with this Practice Direction. The Tribunal expects that lawyers and other representatives will provide appropriate direction to witnesses to achieve this result.

9 (f) The witness has a duty to change his or her opinion where circumstances, such as the receipt of new information, require it. If at any time before the Tribunal issues its final decision, the witness changes his or her view on a material matter for any reason, particularly after having read the reports or listened to the evidence of witnesses for other Parties, the change in the information and/or opinion should be communicated to the other Parties and the Tribunal without delay. Where reports or documents prepared by the witness contain errors or information which has changed, this must be promptly identified. However, the witness must not change his or her opinion or change or withhold information to suit the position taken by any Party.


19

[34] The Tribunal notes that these provisions emphasize the Tribunal’s role in

considering matters affecting the public interest, and that an opinion witness may, in the

circumstances described, be expected to provide additional evidence after giving his/her

testimony at the hearing.

[35] In light of the above findings, the Tribunal does not find it necessary to consider

the scope of the term “Hearing” as it applies to Rule 185 by virtue of its placement

following the "Hearing Procedure" heading. As noted above, the word "Hearing" is not

employed in Rule 185. Clearly, the Tribunal has the jurisdiction to request additional

evidence after a “Hearing” even if the Appellants’ narrow interpretation of “Hearing” is

applied.

[36] In conclusion, based on the above analysis and findings, the Tribunal finds that it

does have the jurisdiction under Rule 185 to request additional evidence at this stage in

the proceeding.

[37] In reaching this conclusion, the Tribunal has considered the Appellants’

submission that additional delay and expenditure of resources may be occasioned by

this request for additional evidence, in order to allow the parties to examine/cross-

examine Dr. Cox on responses, and call a witness in reply. The Tribunal accepts that

this may occur. However, the Tribunal notes that the additional evidence is narrowly

focussed on one issue, and, therefore, it does not appear that extensive time and

resources would be required. Regarding the observation that further adjournment

would be required, the Tribunal notes that the Tribunal has already granted the parties’

request to bifurcate the hearing, and that the parties have already indicated they may

need to call further evidence in respect of remedy. In this regard, the Tribunal also

notes that it cannot rule out the possibility that the additional requested evidence may

be of some relevance to the issue of remedy. For these reasons, the Tribunal does not

find there will be any significant impact on the efficiency of the proceeding, if the

additional evidence is requested.

[38] The Tribunal has found that it has jurisdiction, under Rule 185, to request the

additional evidence. If, in the alternative, it is assumed that the Tribunal does not have

jurisdiction under this Rule, the Tribunal would nonetheless exercise its jurisdiction

under Rules 4, 5, 6 and 7 to request the additional evidence. The Tribunal is satisfied

that it should have the requested information in order to ensure that the Tribunal can

make a sound decision on the merits. Any potential prejudice to any of the parties can

be addressed by allowing, where necessary, a further opportunity to examine/cross-

examine Dr. Cox respecting his responses, or by calling reply evidence.


20

Issue No. 2: Whether requesting the additional evidence would raise a reasonable apprehension of bias.

Submissions of the parties

[39] The parties’ submissions respecting bias have been summarized in their

submissions in respect of Issue No. 1.

Findings on Issue No. 2

[40] The Appellants’ grounds for claiming bias are twofold. First, the Appellants

assert that the Tribunal does not have the jurisdiction to request the additional evidence,

and, therefore, the Tribunal would demonstrate bias if it proceeds with its request. As

the Tribunal has already found that it has the jurisdiction to make this request, the

Appellants have not established a basis for an apprehension of bias on this ground.

[41] The second ground asserted by the Appellants, is that the Tribunal’s request for

additional evidence establishes that there is a deficiency in Dr. Cox’s evidence, and,

consequently, Dr. Cox is being presented with the opportunity to amend or substantially

bolster his evidence. The Appellants maintain that the Tribunal’s request for additional

evidence will resuscitate the defective evidence of Dr. Cox, and, therefore, the

admission of such evidence appears to result in a major benefit for one party. The

Appellants maintain, therefore, that, if the Tribunal proceeds to receive the additional

evidence, this would inevitably taint the Tribunal’s decision in this proceeding in favour

of the Approval Holder. They assert that the Approval Holder should not now be

granted such a great indulgence to remedy deficiencies in its case.

[42] For the following reasons, the Tribunal finds that the Appellants have not

established an apprehension of bias based on this second ground.

[43] The Tribunal first notes that Dr. Cox is the only opinion witness who provided a

detailed probability analysis in respect of the Health Test. It is for this reason alone that

the questions have been addressed only to Dr. Cox, who is a witness for the Approval

Holder.

[44] Secondly, the Appellants’ assertions are based on an assumption that Dr. Cox’s

evidence is defective, and that the opportunity to answer the questions will permit him to

amend or substantially bolster his evidence. However, the Appellants have not

provided any basis for this assumption, other than, perhaps, a presumption that there

must be some deficiency in his evidence because the Tribunal has asked for additional

evidence. The Tribunal notes that Rule 185 provides that the Tribunal may advise when


21

additional evidence might assist the Tribunal. Therefore, there is no presumption that

the questions, once answered, will assist the Tribunal. It is also important to note that

neither Dr. Cox nor the Approval Holder has asked to provide additional information.

Furthermore, the Tribunal requires that Dr. Cox respond only to very specific questions.

Consequently, there can be no presumption that his answers to the questions will

“resuscitate” his evidence as asserted by the Appellants. The Tribunal does not rule out

the possibility that the answers to the questions could result in Dr. Cox changing his

opinion, or providing a correction if he finds his evidence is in error. However, as noted

under Issue 1, he is obliged to do so pursuant to his Acknowledgement of Expert’s Duty,

and s. 9(f) of the Practice Direction.

[45] The Appellants argue that the Tribunal’s questions are leading and directive in

nature, and do not allow Dr. Cox to provide a fair, unbiased and uncompromised

account of his evidence. The Tribunal agrees that the questions are directive, in that

they circumscribe the subject matter of the additional evidence that Dr. Cox will provide.

However, if anything, this is consistent with the Appellants’ assertion that Dr. Cox

should not be offered open latitude to “resuscitate” his evidence. In any event, the

questions do not direct how Dr. Cox answers these questions. Therefore, the Tribunal

does not accept the Appellants’ argument that Dr. Cox would be unable to provide a

fair, unbiased and uncompromised response to these questions.

[46] Finally, the Tribunal notes that it cannot be assumed that the additional evidence

will support the positions taken by any of the parties. To the extent that it does, the

Tribunal has already addressed this consideration under Issue No. 1 above. The

Tribunal’s role is to fulfill its statutory mandate and to make a just determination on the

merits. This requires that the Tribunal consider more than just the impact that such

additional evidence may have on the respective positions of the parties. As the Tribunal

stated in Erickson, at para. 34, the Tribunal “wishes to have the best evidence available

in discharging its statutory duties.”

[47] The onus is on the Appellants to establish their claim that there would be an

apprehension of bias if the Tribunal proceeded to request the additional evidence. As

noted in the Director’s submissions, the Supreme Court of Canada, in Liberty, has

stated that the test is whether there is a reasonable apprehension of bias. For the

above reasons, the Tribunal finds that the Appellants have not established any basis on

which to conclude that there would be a reasonable apprehension bias if the Tribunal

proceeds to request the additional evidence.


22

Procedural Directions and Adjournment

[48] On consent of the parties, an examination and cross-examination of Dr. Cox

respecting his responses to the List of Questions, will be heard by the Tribunal on April

10, 2014. The Appellants agree that, if they propose to call a witness to respond to Dr.

Cox’s additional evidence, they will serve such evidence, in the form of a sworn

affidavit, on the Director and Approval Holder by 4 p.m. on April 8, 2014. Any objection

by the Approval Holder or the Director to the admission of this evidence, will be heard

as a preliminary issue at the hearing on April 10, 2014. Examination and cross-

examination on any admissible reply evidence will also be heard on April 10, 2014. On

consent of the parties, the following due dates are set for filing submissions in respect of

the additional evidence. The Appellants’ submissions will be served on the responding

parties, and filed with the Tribunal, by 4:30 p.m. on April 14, 2014. The responding

submissions of the Director and the Approval will be served and filed with the Tribunal

by 4:30 p.m. on April 15, 2014. Any reply submissions by the Appellants will be served

and filed with the Tribunal by 4:30 p.m. on April 16, 2014.

[49] Dr. Cox resides in England. On consent of the parties, the Tribunal directs that

he may testify by video conference. The Tribunal will hold the hearing at the Tribunal’s

offices in Toronto and the Tribunal case coordinator will provide notice of the hearing

room.

[50] Pursuant to s. 59 of O. Reg. 359/09, on the Tribunal’s initiative, this proceeding is

adjourned to April 10, 2014. Pursuant to s. 59(2), the period from April 5 to and

including April 9, 2014, shall be excluded from the calculation of time for purposes of

calculating the time period mentioned in s. 59(1). In making this disposition, the

Tribunal notes that this hearing has been bifurcated at the request of the parties, and

that, additional hearing days potentially may be required to hear evidence and

submissions respecting remedy. Therefore an adjournment is necessary to ensure that

such evidence and submissions can be heard within the time period specified under

s. 59(1). As such, it is the opinion of the Tribunal that an adjournment is necessary to

secure a fair and just determination of the proceeding on its merits.

ORDER

[51] The Approval Holder is directed to obtain a written response by the witness,

Dr. Cox, to all but the final question listed in the List of Questions, by March 31, 2014.


23

[52] The parties are directed to collaborate to produce, if possible, a response to the

final question listed in the List of Questions, by way of an agreed statement of facts.

[53] Examination and cross-examination of Dr. Cox respecting his responses to the

List of Questions, will be heard by the Tribunal on April 10, 2014.

[54] If the Appellants propose to call a witness to respond to Dr. Cox’s additional

evidence, they will serve such evidence, in the form of a sworn affidavit, on the Director

and Approval Holder by 4 p.m. on April 8, 2014. Any objection by the Approval Holder

or the Director to the admission of this evidence, will be heard as a preliminary issue at

the hearing on April 10, 2014. Examination and cross-examination on any admissible

reply evidence will also be heard on April 10, 2014.

[55] On consent of the parties, the Tribunal directs that Dr. Cox may testify by video

conference. The Tribunal will hold the hearing at the Tribunal’s offices in and the

Tribunal case coordinator will provide notice of the hearing room.

[56] The following due dates are set for filing parties’ submissions in respect of the

additional evidence. The Appellants’ submissions will be served on the responding

parties, and filed with the Tribunal, by 4:30 p.m. on April 14, 2014. The responding

submissions of the Director and the Approval Holder will be served and filed with the

Tribunal by 4:30 p.m. on April 15, 2014. Any reply submissions by the Appellants will

be served and filed with the Tribunal by 4:30 p.m. on April 16, 2014.

[57] Pursuant to s. 59 of O. Reg. 359/09, on the Tribunal’s initiative, this proceeding is

adjourned to April 10, 2014. Pursuant to s. 59(2), the period from April 5 to and

including April 9, 2014, shall be excluded from the calculation of time for purposes of

calculating the time period mentioned in s. 59(1).

Procedural Directions Ordered Telephone Conference Call Scheduled

Adjournment Ordered

“Dirk VanderBent” Dirk VanderBent, Vice-Chair

Appendix A – List of Questions

Appendix B – Relevant Legislation and Rules


24

Appendix A

List of Questions

Preamble re: Cox evidence

You will recall that Dr. Cox said the probability of parachute failure is 1/1000, but to be

conservative he would put it at 1/100. He stated that there was 2.5% probability of

hitting a turbine or its turbulence wake. So if we multiply these two probabilities to arrive

at the probability of both parachute failure and hitting a turbine/wake, [0.01 x 0.025] we

get 0.00025 or 2.5/10,000th. It appears that this number is 2.5 /100 of 1%. Yet Dr. Cox

states in his report that the probability is less than 1/1,000 of 1%.

If the same calculation is done using the less conservative probability cited by Dr. Cox

(1/1000), the probability of hitting a turbine/wake is 0.001 x 0.025 = 0.000025 or

2.5/100,000th. This value is 2.5/1,000 of 1%, which, of course, is not less than 1/1,000th

of 1%.

So it appears that neither of these assumptions of probability for parachute failure

explains Dr. Cox’s conclusion of “less than 1/1,000th of 1%” as stated in his report.

Therefore, further clarification of Dr. Cox’s calculations is required.

Regarding the evidence of Dr. Cox

Paragraph 6(iv) of Dr. Cox's report Risk Assessment of Interactions between Wind

Turbines and Skydive Operations, sets out Dr. Cox's conclusion that the incremental

risk contributed by the presence of the wind turbines (T4 and T5) is less than one-

thousandth of one percent.

Is it Dr. Cox's evidence that less than 1/1000 of 1% is the probability that, for any single

jump, wind turbines T4 and T5 (inclusive of their turbulent wake) will be hit by a jumper

("Individual Jump Probability")? If so, what is the exact probability, and how did he

calculate it. If not, what is Dr. Cox's evidence respecting the Individual Jump

Probability, and how does he calculate it?

Based on the Individual Jump Probability, what is Dr. Cox's evidence regarding the

probability that the wind turbines (inclusive of their turbulent wake) will be hit by a

jumper during the lifetime of the REA Approval?

There are several probability distribution models. For example, is the applicable

probability distribution model the binomial distribution?


25

Dr. Cox is requested to apply the appropriate probability distribution model based on the

following assumptions: (i) a success is defined to be a collision with T4 or T5 or their

turbulent wake, as described in Dr. Cox’s report; (ii) the probability of collision with T4or

T5 including their turbulent wake, on a single jump, is either 0.00025, 0.000025, or such

other probability as calculated by Dr. Cox; and (iii) for purposes of the model, a trial is

an individual jump. For each of the single jump probabilities, calculate the cumulative

probability of success being greater than or equal to 1, where the number of trials

(jumps) is 500, 1,000, 1,500, … 4,000 per year, each multiplied by the 17 years which

appears to the minimum length of the Project lifetime (i.e. 8,500, 17,000, 25,500,

…,68,000).

Under the REA, what is the retirement date for the Project?


26

Appendix B

Relevant Legislation and Rules

Environmental Protection Act

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

Hearing required under s. 142.1

145.2.1 (1) This section applies to a hearing required under section 142.1.

What Tribunal must consider

(2) The Tribunal shall review the decision of the Director and shall consider only whether 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.

Onus of proof

(3) The person who required the hearing has the onus of proving that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b

Powers of Tribunal

(4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,


27

(a) revoke the decision of the Director;

(b) by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or

(c) alter the decision of the Director, and, for that purpose, the Tribunal may substitute its opinion for that of the Director.

Same

(5) The Tribunal shall confirm the decision of the Director if the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b).

Deemed confirmation of decision

(6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

Statutory Powers Procedure Act

Liberal construction of Act and rules

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

Evidence

What is admissible in evidence at a hearing

15. (1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

What is inadmissible in evidence at a hearing

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Conflicts

(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.


28

Copies

(4) Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing.

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1

25.1(1) A tribunal may make rules governing the practice and procedure before it.

Application

(2) The rules may be of general or particular application.

Consistency with Acts

(3) The rules shall be consistent with this Act and with the other Acts to which they relate. …

Ontario Regulation 359/09

Date of deemed confirmation

59. (1) Subject to subsections (2) and (3), the prescribed period of time for the purposes of subsection 145.2.1 (6) of the Act is six months from the day that the notice is served upon the Tribunal under subsection 142.1 (2) of the Act.

(2) For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time:

1. Any period of time occurring during an adjournment of the proceeding if,

i. the adjournment is granted by the Tribunal on the consent of the parties, or

ii. the adjournment is,

A. on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties,

B. not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and

C. necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.

Tribunal’s Rules of Practice

Purposes of the Rules

1. The purposes of these Rules are: to provide a fair, open, accessible and understandable process for Parties and other interested persons; to


29

facilitate and enhance access and public participation; to encourage co-operation among Parties; to assure the efficiency and timeliness of proceedings; and to assist the Tribunal in fulfilling its statutory mandate.

Definitions

3. These definitions apply to these Rules and Practice Directions unless the context requires otherwise, …

“Hearing” means a written, oral or electronic procedure held by the Tribunal where a person has the opportunity to present one’s case and includes motions, Pre-Hearing Conferences, Preliminary Hearings, main Hearings and review Hearings, but does not include mediation;

“proceeding” includes a Hearing and refers to all matters before the Tribunal in respect of an appeal, application or referral;

Interpretation

4. These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

5. If it considers it appropriate in the particular circumstances, the Tribunal may depart from these Rules or may waive any provision of these Rules other than a provision which is also found in a statute or regulation.

6. The Tribunal may issue procedural orders for a proceeding that, if in conflict with these Rules, prevail over these Rules.

7. During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it.

8. The Tribunal may exercise any of its powers under these Rules or applicable laws on its own initiative or at the request of any person.

9. Where any of these Rules or orders issued by the Tribunal conflict with any statute or regulation, the provisions of the statute or regulation shall prevail.

10. No proceeding is invalid by reason only of a defect or other irregularity in form.

HEARING PROCEDURE

…

Evidence and Submissions

…

185. The Tribunal may question Parties, Participants, Presenters, witnesses or representatives on their behalf and advise when additional evidence, witnesses or submissions might assist the Tribunal.

NEW EVIDENCE

233. Once the Hearing has ended but before the decision is rendered, a Party may make a motion to admit new evidence.


30

234. The Tribunal shall not admit new evidence unless it decides that the evidence is material to the issues, the evidence is credible and could affect the result of the Hearing, and either the evidence was not in existence at the time of the Hearing or, for reasons beyond the Party’s control, the evidence was not obtainable at the time of the Hearing.

environmental review tribunal ruling on additional evidence

Documents