Day 1 Analysis — Garth Manning, CCSAGE

December 9, 2014 Borys Holowacz Latest Posts

An aggregation of advocates (12 altogether) and a blizzard of paper (stacks well over a foot tall in front of each lawyer and judge) faced Justices Cronk (chair), Epstein and Juriansz in Courtroom 2  in historic Osgoode Hall at the opening of the appeal by Prince Edward County Field Naturalists of the overturning of the original Environmental Review Tribunal’s favourable decision by the Divisional Court. The public seats were packed with people from PECFN, South Shore Conservancy, CCSAGE, APPEC, the wider County and Amherst Island. There appeared to be a media presence.

The day was almost entirely taken up by presentations by Eric Gillespie for PECFN, Chris Paliare for SSC (an intervenor) and by counsel for Nature Canada (also an intervenor). During the last half hour Neil Finkelstein started the case for Gilead Power. Tomorrow will see Gilead complete its case, followed by counsel for the Ministry and for the trade association of the wind industry (also an intervenor) respectively. No decision by the Court is expected for months.

It should be clearly understood that these three Justices do not inhabit some unreal, impractical, world. Two of them were prominent court room lawyers in the front rank at their time, with significant experience of realities. None of the three was reticent, and all asked penetrating questions of counsel throughout the day. The reputation of the Ontario Court of Appeal stands high in the western world, not least because of the calibre of its members.

However, this is not a new trial. There are no witnesses and new facts or evidence cannot be produced. The Court can look only at the actual evidence given at the ERT and at the conduct of the ERT and Divisional Court hearings to determine whether some mistake at law was committed along the way. The ERT decision was based on serious and irreversible harm to animal life (the Blandings turtle) ; regretfully the obvious common sense perception that Ostrander Point is the stupidest place to put industrial wind turbines being slap in the middle of one of Canada’s most prolific migration flyways cannot be considered by the Court nor can any other extrinsic issue.

Nothing sensational emerged at today’s hearing. All counsel on our side performed well and made telling points. Tomorrow will produce the no doubt somewhat different perspective of the opposing parties.

In the fight against wind in the wrong places, there is no doubt that legal history is being made at Osgoode Hall. It remains to be seen on which side it falls.

Garth Manning, Q.C.
Director, CCSAGE

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