Report on Remedy Hearing for White Pines Wind Project — by Paula Peel, Secretary, APPEC

July 23, 2016 Borys Holowacz Latest Posts

Friday July 22, 2016

At the end of June everything was on track for the remedy hearing.

justiceWe were encouraged to see our Tribunal panel, Marcia Valiante and Hugh Wilkins, endorsing all of the key findings in the Ostrander decision in their June 30 Order including the use of the precautionary principle and the ecosystem approach, its finding that harm should be evaluated based the balance of probability and its finding that the Tribunal can “stand in the shoes of the Director” with full access to the scope of the powers given to the Director under the relevant part of the Environmental Protection Act and other regulations and policies.

The June 30 Order from the Tribunal also required that evidence and submissions from all of the Parties be filed with the ERT by July 29, 2016. The Tribunal requested that the Parties work out a timeline to meet this date.

APPEC was fully prepared to comply with the Tribunal’s Order but wpd was not. A few days after the Order was issued wpd sent an email to the Tribunal asking for more time. It also proposed a new schedule extending its final filing date to August 19.

On July 12 the Tribunal responded favourably to wpd’s email request for more time. In fact the Tribunal responded more than favourably, granting wpd more time than even wpd had asked for. To add insult to injury the Tribunal also went on to prescribe an entirely new process for filing evidence and submissions. The new process clearly favours wpd and the MOECC (Ministry of the Environment and Climate Change) as they are now permitted to inject additional evidence after APPEC’s evidence has been served, filed and cross-examined.

Eric Gillespie has informed the Tribunal of our concerns with the July 12 Order. These concerns include the fact that the Tribunal:
• granted wpd’s request without hearing any evidence from wpd on why relief was needed
• granted wpd’s request without hearing any submissions from APPEC, thus violating APPEC’s right to make submissions
• is implementing a process that permits wpd and the MOECC to serve and file reply evidence after all APPEC’s evidence has been served, filed and cross-examined. This process is directly contradictory to the process established by the courts in the Rules of Civil Procedure
• is extending the hearing of this matter from the date in the Tribunal’s Order of June 30, which had all evidence and submissions concluded by July 29, to a new date of October 14, which will extend the process by almost 3 months. This is completely unexpected “for a remedy hearing, in an REA process that was to have been fully finalized within six months, with on paper only four days remaining.”
• is arbitrarily imposing a process without hearing any submissions, again violating APPEC’s right to make submissions

Eric has advised the Tribunal that all of the outcomes in the July 12 Order are highly prejudicial to APPEC and are suggestive of a closed mind. In this regard Eric has communicated APPEC’s respectful request that the Tribunal recuse itself from these proceedings. If the Tribunal declines to do so, APPEC requests an opportunity to address the Tribunal in detail on these and other issues.

The Tribunal has indicated that a teleconference is possible next week and that in the meantime the July 12 Order remains in effect.

We are hopeful that will not be for long.

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