Environmental Review Tribunal Final Decision On Skydive Burnaby vs. Ministry of Environment

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 a hearing held on January 6, 8, 10, 13,14, 17, 27, 28, 29, and February
28 , 2014 in Firefighters Memorial Community Hall, Township of Wainfleet, 31907 Park
Street, Wainfleet, Ontario, and continued by telephone conference calls on March 19,
20 and 27, and April 2, 4, 10, and 29, 2014.
Before: Dirk VanderBent, Vice-Chair
Appearances:
Eric Gillespie - Counsel for the Appellants, Mikel Pitt and Skydive
Burnaby Ltd.
Diane Tsang and - Counsel for the Director, Ministry of the Environment
Nadine Harris
Scott Stoll, - Counsel for the Approval Holder, Wainfleet Wind
Jody E. Johnson and Energy Inc.
Piper Morley
Terry Maxner - Presenter, on his own behalf

Dated this 14
th
day of May, 2014.
Environmental Review Tribunal Decision: 13-121/13-122
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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 (the Project 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 Tribunals Orders dated December 12, 2013,
March 11, 2014, and April 7, 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 manoeuver due to wind
turbulence generated by these wind turbines.
[5] Attached as Appendix A to this Decision, is a site map (Site Map) which shows
the location of wind turbines T4 and T5 (T4 and T5) in relation to the Port Colborne
Airport, which is where Skydive operates its skydiving service (the Skydive Site).
Skydive has two airplanes which transport parachutists, and the parachutist landing
area (PLA) is also located there. The map is oriented such that the top of the map is
north. Consequently, as the map shows, T4 and T5 are located west of the airport and
the PLA. The Site Map also shows a portion of Lakeshore Road which is south of the
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airport. Although not shown on the Site Map, Lakeshore Road is in close proximity to
the shores of Lake Erie. T4 is the closer of the two turbines to the Skydive Site, being
1.5 kilometres (km) from the property boundary, and 1.7 km from the PLA.
[6] 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 (the Environmental Test). In this case, their appeal is in
respect of the Health Test only.
[7] 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
to cause a parachute to collapse. However, they assert that the probability of such
occurrence is so small, that the will cause aspect of the Health Test has not been met.
[8] Consequently, this case centres primarily on the issue of the likelihood that such
collision or parachute collapse will occur. The Approval Holder and the Director dispute
the Appellants assertion that wind turbulence generated by T4 and T5 will interfere with
the safe operation of airplanes taking off and landing at the Skydive Site. However,
they acknowledge that serious harm would result if wind turbulence prevented a plane
from taking off or landing safely. Consequently, this case focuses on causation.
[9] In their submissions, all parties agree that the Tribunal should first render a
decision on whether the Health Test has been met, and if it has been met, then allow
the parties an opportunity to make further submissions regarding which of the actions
the Tribunal may take pursuant to s.142.2.1(4), 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.
[10] The parties also all agree that, although they would prefer to proceed by
submissions only, they also wish to provide additional evidence respecting remedy, as
they consider necessary.
[11] The hearing proceeded on the dates noted above, which included a visit of both
the Skydive Site, and the area within the Project site where wind turbines T4 and T5 are
located.
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[12] As noted in the Tribunals Order dated April 7, 2014, the Tribunal granted an
adjournment which has the effect of excluding the period from April 5 to and including
April 9, 2014 from the calculation of time mentioned in s. 59(1) of Ontario Regulation
359/09 (which establishes the deadline for the Tribunal to dispose of the appeals). A
further adjournment was granted orally in a telephone conference call on April 10, 2014,
which also has the effect of excluding the period from April 11 to and including April 28,
2014, from this calculation of time. The net effect of these two adjournments is that the
deadline for disposition of the appeals is changed to May 15, 2014.
[13] After hearing and considering all of the evidence adduced at the hearing, and the
parties submissions, the Tribunal finds that the Appellants have not established that the
proposed location of T4 and T5 is such that they will cause serious harm to human
health. Consequently, the Appellants have not established that engaging in the Project
in accordance with the REA will cause serious harm to human health.
Relevant Legislation
[14] Environmental Protection Act
Directors 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.
142.1(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.
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
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(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,
(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).
Issue
[15] The issue is whether engaging in the Project in accordance with the REA will
cause serious harm to human health.
Discussion, Analysis and Findings
Introduction
Overview
[16] Much of the evidence adduced in this proceeding is not in dispute. The
Appellants assert that engaging in the REA, specifically the physical presence of T4 and
T5, and the wind turbulence generated by them when they are operating, will cause
serious harm to human health. They assert that the harm will be caused to pilots who
operate Skydives airplanes and to skydivers. As the circumstances for airplane pilots
differ from those of skydivers, the Tribunal has structured its analysis to separately
consider the application of the Health Test to each of them. Before turning to each of
these areas, the Tribunal begins with general findings respecting the opinion evidence
adduced in this proceeding, as well as findings regarding the scope of the Health Test
as it is to be applied in this case.
[17] The Tribunal has considered all the evidence and the parties submissions in
detail. However, because this comprises a large volume of information, it is not feasible
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to produce a full synopsis of the evidence and submissions within a written decision of
reasonable length. Consequently, in this Decision the Tribunal has only included a
summary of the more salient evidence and submissions provided to the Tribunal in this
proceeding.
Opinion Evidence
Witnesses who provided opinion evidence
[18] The following witnesses were qualified by the Tribunal to give opinion evidence
on behalf of the Appellants:
Mikel Pitt, Appellant, who was qualified to give opinion evidence in the areas
of parachute instruction and airplane piloting;
Joseph Chow, who was qualified to give opinion evidence in the areas of
parachuting and parachute instruction;
Ian Rosenvinge, who was qualified to give opinion evidence in the areas of
Jim Crouch, who was qualified to give opinion evidence in the areas of
Rick Epp, who was qualified to give opinion evidence in the area of
parachuting;
Scott Borghese, who was qualified to give opinion evidence in the areas of
parachuting and parachuting instruction; and
Bozkurt Eralp, who was qualified to give opinion evidence in the areas of
parachuting, parachute instruction and wake turbulence as it relates to
aircrafts.
[19] The following witnesses were qualified to give opinion evidence on behalf of the
Approval Holder:
Andrew Brunskill, who was qualified to give opinion evidence in the fields of
wind resource analysis, wind farm energy assessment and wind farm
modelling;
Jerry Baumchen, who was qualified to give opinion evidence in the field of
mechanical engineering, quality engineering, manufacturing of parachuting
equipment and in parachuting;
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Raymond Cox, who was qualified to give opinion evidence in the area of risk
assessment in public safety, energy and transport; and
Terrance Kelly, who was qualified to give opinion evidence in the field of
aviation safety risk management, including the proactive identification of
aviation hazards and the development of mitigation strategies.
[20] In addition to their witness statements, Messrs. Baumchen, Cox, and Kelly
provided the following reports:
Mr. Baumchen conducted an analysis of wind turbulence intensity, as well as
wind speed and direction frequency distribution, the results of which are
detailed in a report dated August 29, 2013, entitled Preliminary Turbulence
Intensity and Wind Analysis at the Proposed Wainfleet Wind Project (the
Turbulence Analysis Report);
Dr. Cox conducted a risk assessment, the results of which are detailed in a
report dated December 9, 2013, entitled Risk Assessment of Interactions
between Wind Turbines and Skydive Operations (the Risk Assessment
Report); and
Mr. Kelly conducted a safety study, the results of which are detailed in a
report dated September, 2013, entitled Safety Study of the Potential Effect of
Wainfleet Wind Energy Project on Burnaby Skydiving Operations (the Safety
Study)
[21] The Director did not seek to have the Tribunal qualify any witnesses to give
opinion evidence.
Submissions and Findings Respecting the Weighing of Opinion Evidence on the
Grounds that a Witness is not Independent
[22] Each of the parties consented to all of the expert qualifications. Regarding the
Appellants expert witnesses, the Director and the Approval Holder indicated that their
consent was qualified, in that they reserved the right to challenge the independence of
these witnesses, in support of their position that the Tribunal should give their evidence
little or no weight.
[23] In respect of these witnesses, the Director and the Approval Holder maintain that:
Mr. Pitt is an appellant in this proceeding and owner/operator of Skydive. As
such, they assert that he has a personal interest in the outcome of this
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proceeding as well as a financial interest in Skydive, which he maintains will
be negatively impacted if wind turbines T4 and T5 are approved. The
Approval Holder further asserts that Mr. Pitt has given inconsistent evidence
in this proceeding regarding his business income.
Mr. Chow conducts a skydive operation in Toronto and he acknowledges that
he is an advocate against wind turbines, and has spent four years from 2007
to 2010 opposing wind turbine development in the vicinity of his business
operations. Consequently, they assert that Mr. Chow is not impartial and his
opinions are not independent.
[24] The Approval Holder further maintains that:
Mr. Borghese is an employee of Skydive and, as such, the Approval Holder
asserts that he has a personal interest in the outcome of this proceeding.
Mr. Eralp works for Skydive and a large part of the fabric of his recreational
time revolves around Skydive. As such, the Approval Holder asserts that he
has a personal interest in the outcome of this proceeding.
[25] Consequently, the Director and/or the Approval Holder assert that the Tribunal
should give no weight to the opinions of these expert witnesses.
[26] In response, the Appellants submit the claims made by the Director and the
Approval Holder are unwarranted allegations with no credible foundation. In support of
this submission, the Appellants emphasize that each of their expert witnesses has
signed an Acknowledgment of Experts Duty Form stating that they will provide opinion
evidence that is fair, objective and non-partisan. The Appellants further assert that, in
signing this form, each of these witnesses also acknowledged that this duty prevails
over any obligation to a party on whose behalf they are engaged.
[27] In light of the Tribunals findings below, the Tribunal does not find it necessary to
make a determination respecting the positions advanced by the Director and the
Approval Holder. The Tribunal has proceeded on the assumption that the Appellants
expert witnesses have provided independent and impartial opinion evidence.
Therefore, the Tribunal has considered this evidence without ascribing reduced weight
to be given to the evidence of each of these witnesses on the ground that their evidence
is not independent or impartial.

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Comment respecting Alleged Witness Interference
Background
[28] The following background is taken from the Directors submissions, which the
Tribunal finds is an accurate summary.
1. On December 18, 2013, the Instrument Holder raised concerns about
interference with one of its witnesses, Rob Warner, when e-mails came to
light in which Mr. MacNeill, the Chair of the Technical and Safety Committee
(the Committee) of the Canadian Sport Parachuting Association, first
threatens to remove Mr. Warner from the Committee and the rigger
instructors list (the List) if he testifies at this proceeding and then proceeds
to suspend him from the Committee and List.
2. At the request of the Approval Holder, the Tribunal issued a summons to
Mr. MacNeill.
3. Mr. MacNeill appeared before the Tribunal on January 28, 2014 and
testified that: he was the author of the e-mail exchange with Mr. Warner
between December 15
th
and December 17, 2013 in which he asked Mr.
Warner to bow out of appearing as a witness at this hearing; told Mr.
Warner that if he does not do so, he will drop him from the Committee and
the instructors list; and ultimately suspended Mr. Warner from the
Committee and List.
4. Mr. MacNeill testified that he learned about Mr. Warners involvement in this
hearing from Debbie Flanagan, President of the Association, and stated that
he did not know the origin of Ms. Flanagans information.
5. The Board of Directors gave Mr. MacNeill the option to fire Mr. Warner from
the Committee or suspend him and he decided to suspend him. Mr.
MacNeill is not part of the Board of Directors and was not involved in the
Boards decision-making process.
6. Mr. Warner was removed from the List because Mr. MacNeill as Chair of the
Committee has a requirement that, to be on the List, a person must also be
on the Committee.
7. At the time Mr. MacNeill sent the emails, he did not appreciate fully what
might come about because of them.

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Submissions
[29] The Director made the following submissions:
1. The Tribunal should note that the emails provided by Mr. MacNeill include
an e-mail from Ms. Flanagan stating that this issue was time sensitive as
the Pitts are working with their lawyer on their defence. It is thus
reasonable to infer that Ms. Flanagans information came from the Pitts or
somebody associated with the Pitts.
2. Mr. Warner was proposed as a witness in this proceeding. Mr. MacNeill and
the Canadian Sport Parachuting Association attempted to dissuade him
from testifying, threatened to suspend him and then proceeded to suspend
him. These actions fall squarely within the list of actions often referred to as
contempt out of the presence of the court (i.e. contemptuous act which is
committed outside the court and by extension a tribunal).
3. Mr. McNeill and the Canadian Sport Parachuting Association might not have
intended to hinder or undermine the Tribunal process, but their actions did
so and as a result they undermined the administration of justice in the public
interest.
4. The Tribunal does not have the power to cite Mr. MacNeill and the
Canadian Sport Parachuting Association for contempt nor is it necessary to
do so in this case. The Tribunal should however include in its decision
strong wording condemning the actions taken by Mr. MacNeill and the
Association while a legal proceeding was underway because of the impact
those actions could have on the integrity of the Tribunal process.
[30] The Approval Holder endorses the Directors request. The Appellants written
submissions do not specifically respond to this request. However their submissions
include the following:
1. Mr. Warner had been suspended, pending the outcome of these
proceedings, from the Technical and Safety Committee for the Canadian
Sport Parachuting Association for representing himself as a member, to
obtain a benefit, without approval from the Associations Board of Directors.
2. Mr. Warner remains fully licenced. If he were an unbiased and independent
expert, the loss of his committee membership with the Canadian Sport
Parachuting Association would not have affected his testimony.
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Findings
[31] Mr. MacNeills evidence certainly gives rise to a serious concern that the actions
of the Canadian Sport Parachuting Association influenced Mr. Warner not to testify in
this proceeding. However, the Tribunal notes that none of the parties sought to
summons Mr. Warner to give evidence in this proceeding, so the Tribunal does not have
the benefit of his evidence as to the extent of any influence or pressure placed on him,
which may have discouraged him from testifying in this proceeding. Furthermore,
Mr. MacNeill testified that he could not comment on the views of the Board of Directors
of the Canadian Sport Parachuting Association as he is not a member of the Board, and
is not invited to attend Board meetings. In such circumstances, the Tribunal is reticent
to fully censure the Canadian Sport Parachuting Association in the manner requested
by the Director, assuming that the Tribunal has the jurisdiction to condemn the
Associations actions, as has been requested by the Director. Nevertheless, the
Tribunal finds that it is fair to observe, that given its role as a non-legislated organization
which regulates sport skydiving activities in Canada, the Association has a responsibility
to conduct its affairs in an orderly and transparent manner that is fair to both its
members and the public. The Association certainly could have provided a more
comprehensive response to what are very serious allegations, and, in the Tribunals
view, its public reputation suffers for it not having done so.
Whether engaging in the Project in accordance with the REA will cause serious
harm to human health
[32] The Tribunal has divided its analysis and findings under three subject areas:
(i) the nature and extent of the wind turbulence generated by wind turbines T4 and T5;
(ii) harm to airplane pilots; and (iii) harm to skydivers. Although the Tribunal has also
organized the parties submissions under these subject areas, the Tribunal confirms that
it has considered the submissions in their entirety when make findings respecting each
of these subject areas.
Wind Turbulence
Introduction
[33] The Tribunal finds that it is not disputed that a wind turbine generates turbulence
in the air both immediately in front of the wind turbine blades, and for some distance
behind these blades. This turbulence has two components:
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Blade tip vortices due to air counteracting the wind turbine blade torque, and
in part due to aerodynamic effects due to the finite extension of the blades;
and
Reduction in ambient wind speed as the wind turbine blades extract power
from the wind.
[34] In lay terms the vortices can be described as rotational or spinning pockets of air.
These vortices will mix with downstream air flow.
[35] The purpose of this section of the Tribunals Decision is to first address the
parties dispute as to the predicted extent of the turbulence that will be generated by
wind turbines T4 and T5. The Tribunals findings in this regard, will then be considered
elsewhere in this Decision when the Tribunal addresses how this turbulence will affect
airplanes and skydivers.
[36] The Tribunal notes that the Director did not call any witnesses to testify
respecting wind turbulence.
Evidence Adduced by the Appellants
Mr. Eralp
[37] Mr. Eralp is a commercial pilot, holds a degree in mechanical engineering, and
wrote an engineering thesis on Bluff body vortex shedding which refers to turbulent
wake behind a wing. Mr. Eralp states that a wing includes a wind turbine blade.
Mr. Eralp also explains that:
Modern parachutes are very effective non-rigid wings, designed such
that the weight of the suspended parachutist leads to sustained inflation
of an envelope of material shaped in section and span substantially, like
any aircraft wing, that can be glided and guided to a safe landing area.
The performance of these wings allows for a range of speeds, in large
part to allow for the landing noted.
[38] Mr. Eralp expresses his view that analytical models used to predict turbulence
are limited to a mere statistical evaluation, even with the benefit of well-defined
constraints. He describes atmospheric turbulence as a rapid change in intensity and
direction of air flow experienced by a body (or wing) subjected to its aerodynamic
effects. He expresses his view that modern computers have yet to solve for
turbulence analytically, though many models are used to approximate. He also
maintains that, as industrial wind turbine projects are sited with the expectation of a
successful wind field for exploitation, there is clearly such a field, which means that
there will be significant wake turbulence, models notwithstanding. In cross-
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examination he stated that he defines the term significant as enough to affect
operations, for example, like a drop zone.
[39] Mr. Eralp relies on an article he obtained by internet search entitled Wind
Turbines Wake Turbulence and Separation (the Turbulence Article), which provides a
summary opinion of the author Ralph Holland, which is based on research of others
whom Mr. Holland has cited as references in this article. Mr. Holland uses data for the
wind turbines he was considering and states his conclusion in the summary section of
this article:
Wake turbulence behind a single wind turbine can extend beyond 16
blade diameters, being composed of both blade-tip vortices and the
reduction of wind speed due to power extraction. It takes time for the
airstream to become laminar, and further time for it to recover to the
original airstream velocity.
There is a tendency for the downstream to rotate at the blade rate and it
has been shown that this rotation moves downstream to extents that are
not insignificant. The near-field turbulence is coupled with a significant
down-stream reduction in wind velocity, which represents wind shear,
that is dangerous to flight. The wind velocity decreases to 2/3 of the
free-stream velocity just in front of the turbine and is further reduced to
1/3 of the free-stream flow behind the turbine when the turbine is
operating at maximum power extraction.
[40] Mr. Eralp states that the length of the turbulence wake has been seen and
measured at 10-16 times the diameter of the blades, and he asserts that it has been
posited to go well beyond by some researchers. As described below, Mr. Brunskill, an
expert witness who testified on behalf of the Approval Holder, has conducted a
turbulence intensity assessment for wind turbines T4 and T5. Mr. Eralp notes that this
assessment predicts that turbulence generated by these turbines will only increase free
stream turbulence by 1% on Skydive property. He states that this strikes me as
unlikely. Mr. Eralp also considers that the horizontal expansion of the turbulence wake
is wider than that described by Mr. Brunskill in his assessment. Mr. Eralp expressed his
opinion that a conservative estimate of this spread is 10 to 15%.
[41] In cross-examination, Mr. Eralp admitted that he did not model the turbulence
intensity himself. He acknowledges that he does not know the type of wind turbine
referenced in the Turbulence Article, other than the model number which indicates that
it has two blades, not three.

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Mr. Chow
[42] Mr. Chow has 40 years experience in drop-zone operations and has skydived
11,000 times. He is a pilot and skydiving instructor and instruction ratings coach. His
evidence in his witness statement respecting turbulence states:
Turbulence, a deadly killer: Studies of wind turbines both off-shore and
on-shore in Europe have confirmed that the downwind effects of wind
turbines can be diagnosed for over 15 miles. Needless to say, these
huge structures will create unwanted turbulence that will affect the safety
of both landing parachutists and airplanes at the Skydive Burnaby site.
Evidence Adduced by the Approval Holder
Mr. Brunskill
[43] Mr. Brunskill is a mechanical engineer and a consultant employed by GL Garrard
Hassan Canada Inc. (GL), who was retained by the Approval Holder, through its
solicitor, to conduct an analysis of wind turbulence intensity, as well as wind speed and
direction frequency distribution. The results of this assessment are summarized in the
Turbulence Analysis Report. Mr. Brunskill states that he co-wrote this report, performed
technical and quality checking and co-approved this report. This report confirms that
WindFarmer software has been employed, using an industry standard model, to
estimate turbulence intensity. It also confirms that GL has validated the specific model
used, which assumes that the wake will spread equally in the horizontal and vertical
directions. This report also notes that: (i) the wake width at any downwind position is a
function of the distance downwind, the turbines thrust co-efficient and the ambient
turbulence intensity; and (ii) GL has used site specific predicted values when modeling
turbine wakes at the Wainfleet site.
[44] Mr. Brunskill stated the purpose of the study was to assess the increased level of
mean turbulence intensity, rather than trying to predict the length of the turbine wake.
He explained that very tiny effects can travel a great distance, and, therefore, it is more
appropriate to estimate magnitudes of any wake rather than specify a length of the
wake. He further stated that the level of increased turbulence intensity at any point in
the wake of a wind turbine will be site specific and depends on several factors including:
the distance of the point of interest from the wind farm,
the height of the point of interest,
the number of turbines inducing the wake,
the turbine locations,
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the thrust co-efficient of the specific turbine model, and
the ambient turbulence intensity.
[45] Mr. Brunskill states that wind turbines induce turbulence through several
mechanisms including:
boundary layers which form on the rotor blades,
vortices shed by the blades,
flow separation from the wind turbines nacelle and tower, and
mean velocity shear of the wake.
[46] Mr. Brunskill notes that it does not appear that Mr. Eralp has carried out an
analysis or modelling to evaluate expected wake induced turbulence levels at the
Skydive site. He further expresses his view that it is not clear why Mr. Eralp implies that
a statistical evaluation of turbulence is insufficient for use in these circumstances, or
what alternate type of evaluation Mr. Eralp would suggest.
[47] Mr. Brunskill states that turbulence intensity decreases with distance from the
wind turbine. He notes that the modelling analysis conducted confirms that the
horizontal spread of the wake is at most a few degrees wider than the diameter of the
wind turbine, much less than Mr. Eralps estimate that the spread is in the range of 10 to
15%.
[48] Mr. Brunskill describes the near wake region as the distance up to five rotor
diameters from the wind turbine, which in this case is up to 500 metres (m). He states
that, in this region, the turbulence intensity is the highest. He describes the far wake
region as the distance beyond 500 m, where he states that the magnitude of wind
turbine wake effects, such as increased mean turbulence intensity and reduced mean
wind speed, decay with downwind distance. He testified that these wake effects will
gradually become marginal or undetectable by standard wind measurement technology.
[49] The Turbulence Analysis Report provides data on the predicted change in
turbulence over distance, calculated for several ambient wind speeds. The results are
shown in Figures 3 to 7 of the Report, each of which is a graph showing predicted
turbulence generated by the wind turbine against the ambient turbulence predicted for
each wind speed in the absence of the wind turbine. The Report indicates that the data
represents average turbulence intensity statistics presented at the hub height of the
wind turbines.
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[50] As this information is more readily comprehensible in graph form, Figure 3 is
attached to this Decision as Appendix B, as an example. Figure 3, which is based on
an ambient wind speed of 3 metres per second (m/s) indicates that: (i) there will be
increased turbulence intensity as compared to ambient turbulence levels; and (ii) this
increase varies from 6% in the range up to approximately 400 m from the turbine, to
less than 1% at approximately 1,200 m from the turbine, and then decreases very
slightly at the Skydive Site property line, which is 1,500 m from the turbine, and within
this Site area. The other graphs for ambient wind speeds of 5, 7, 9, and 11 m/s, show
similar patterns, although the distance at which the difference in turbulence intensity is
less than 1% becomes shorter (e.g. for wind speed of 11 m/s, this distance is
approximately 700 m from the wind turbine). Mr. Brunskill characterized the 1%
increase as a level that is very difficult and maybe impossible to detect with standard
measurement equipment.
[51] Mr. Brunskill testified that ambient turbulence intensity is the most important input
to the model. He notes that ambient conditions vary from project to project, and they
can also vary for the same project at different times. He also testified that ambient
turbulence is the most important factor in how far a wake will extend, noting that higher
levels of turbulence in the atmosphere will result in a wake that is shorter as compared
to the wake generated in lower levels of turbulence. Stated another way, he indicates
that there will be a longer wake in stable conditions than in unstable atmospheric
conditions.
Submissions made by the Appellants
[52] The Appellants make the following submissions:
Mr. Brunskill admitted that one of the main purposes of the WindFarmer
software modelling is to help minimize the decrease in turbine efficiency and
physical damage as a result of wake effects from other turbines, as wake
turbulence from wind turbines can adversely affect other wind turbines in their
wake.
The study predicted that, regardless of wind speed, the changes in turbulence
intensity either in the ambient condition and/or as result of the spinning blades
of the proposed wind turbines would be essentially insignificant across most
of the areas leading to, and including, all of the Skydive airfield. In essence,
there would be no variation in either ambient or wind turbine turbulence at
ground level and no changes in turbulence at higher wind speeds.
Pitt v. Director,

17
A model that fails to demonstrate the influence of ground structures and wind
speed on turbulence intensity can be of no relevance to the question of
whether the wake turbulence of wind turbines will cause serious harm to
human health, in this case to parachutists. Both ground structures and wind
speed are well known sources of great turbulence which pose life threatening
hazards to all skydivers. The WindFarmer model provides no information
regarding either and is, therefore, of no value to this hearing.
In his evidence, Mr. Kelly affirmed that the effects of wind turbines on aviation
and in particular skydiving operations have not been fully studied.
Consequently, there is little information on air turbulence downstream of
turbine blades, and that which exists is sometimes contradictory.
Submissions made by the Approval Holder
[53] The Approval Holder makes the following submission:
Mr. Brunskill was the only witness qualified to provide expert opinion evidence
on turbulence from wind turbines; his was the only evidence of turbulence that
pertained to the Project, was detailed and provided a clear path for his
conclusions. His evidence regarding turbulence should be preferred to that of
the Appellants' witnesses.
Submissions made by the Director
[54] The Director makes the following submission:
Mr. Brunskill remained within his area of expertise and provided a detailed
pathway for his conclusions including data, assumptions and analyses. As a
result, his evidence and opinions should be given considerable weight by the
Tribunal.
Findings on Turbulence generated by Wind Turbines T4 and T5
[55] The Tribunal observes that there is little disagreement in the evidence of
Mr. Eralp and Mr. Brunskill. They both agree that wind turbulence will be generated by
wind turbines T4 and T5. The Tribunal finds that Mr. Eralps evidence can be fairly
characterized as being more general in nature, as compared to the evidence provided
by Mr. Brunskill, as Mr. Eralp does not provide a site specific analysis. Instead he relies
on an article that relates to another project proposal. The Appellants did not dispute
Mr. Brunskills evidence that turbulence analysis must be site specific, both in terms of
Pitt v. Director,

18
the specifications of the wind turbine model and location, and site specific ambient
environmental conditions. However, Mr. Eralps evidence is not inconsistent with the
more detailed analysis provided by Mr. Brunskill. Both agree that turbulence will be
generated and its intensity will decrease with distance from the wind turbines.
[56] The Appellants assert that the model used by Mr. Brunskill, in essence, provides
that there will be no variation in either ambient or wind turbine turbulence at ground
level and no changes in turbulence at higher wind speeds. They maintain, therefore,
that the model fails to demonstrate the influence of ground structures and wind speed
on turbulence intensity. The Tribunal does not accept this submission. The intent of
Mr. Brunskills analysis is to predict the increase in average turbulence intensity levels
caused by the wind turbines, as compared to average turbulence intensity predicted for
the various ambient wind speeds. Mr. Eralp acknowledges that many computer
software models are used to approximate turbulence. To the extent that increased
turbulence intensity is created by wind flowing over ground structures at ambient wind
speeds, it is Mr. Brunskills uncontradicted evidence that higher levels of atmospheric
turbulence will shorten the length of the turbulence wake generated by the wind
turbines. Consequently, the Tribunal does not accept the Appellants assertion that the
WindFarmer model is of no value to this hearing.
[57] Regarding the evidence of Mr. Chow, the Tribunal finds that his opinions are only
conclusory in nature. He refers to studies conducted in Europe, but does not provide
any reference or discussion of these studies. Even if the Tribunal accepts his assertion
that these studies show that downwind turbulence extends for over 15 miles, he does
not provide any analysis of the change, if any, in turbulence intensity over this distance,
nor does he address whether these European studies are based on projects whose
profiles are similar to the Project in this case. Consequently, the Tribunal does not find
that he has provided sufficient analysis to support his conclusions that turbulence is a
deadly killer, and that engaging in the Project in accordance with the REA will generate
turbulence that will affect the safety of both landing parachutists and airplanes at the
Skydive Burnaby site.
[58] The Tribunal notes Mr. Kellys observation that the effects of wind turbines on
aviation and in particular skydiving operations have not been fully studied, and,
consequently, there is little information on air turbulence downstream of turbine blades,
and that which exists is sometimes contradictory. However, the Health Test is
predictive in nature in that the Tribunal must determine if an event (serious harm to
Pitt v. Director,

19
human health) will occur if the Project proceeds. Therefore, the Tribunal must proceed
on the best evidence available.
[59] In light of the above findings, the Tribunal concludes that the analysis provided in
the Turbulence Analysis Report provides a reasonable prediction of the percentage
increase in turbulence intensity caused by wind turbines T4 and T5.
Harm to Skydives Airplane Pilots
Background
[60] The following evidence is not in dispute.
[61] Skydives operations are located at the Port Colborne airfield, which is a
registered aerodrome under Canadian Air Regulations, which are passed pursuant to
the federal Aeronautics Act, R.S.C., 1985, c. A-2. Under the Aeronautics Act, certified
airports are subject to Airport Zoning Regulations, which regulate the use of lands
adjacent to or in the vicinity of a Transport Canada airport or airport site. The Port
Colborne airfield is not a certified airport, and, therefore, there are no Airport Zoning
Regulations.
[62] The Canadian Air Regulations require that pilots taking off or landing at an
aerodrome fly their airplanes following Visual Flight Rules (also referred to as VFR),
which means that pilots are required to visually identify objects in their flight space in
order to safely navigate their planes. More specifically, pilots are required to maintain
their own separation from each other and from obstacles, remain clear of clouds, fly
when they have a minimum flight visibility of three miles, and fly at a minimum of 500
feet (ft) vertically and/or 500 ft laterally spaced around all obstacles.
[63] The Canadian Air Regulations also require that pilots adopt a standard circuit
pattern to approach and land on a runway which is described as rectangular box
landing pattern. The particulars regarding the current flight pattern at Skydive are
described by Mr. Pitt in the Appellants evidence below.
[64] Skydive has two single engine airplanes which it uses to transport skydivers.
Skydive conducts approximately 1,000 aircraft take-offs and landings each year. The
proposed locations for wind turbines T4 and T5 are 1.5 km from the property boundary
of the Port Colborne aerodrome and 1.7 km from the location on the aerodrome
property which is the target area for a skydivers final touch down when landing.

Pitt v. Director,

20
Mr. Pitt
[65] Mr. Pitt is a licenced pilot. In his witness statement, he provide an aerial map on
which he super-imposed a coloured diagram showing the legs of box pattern and the
typical direction of the parachutist jump run area, a copy of which is attached to this
Decision as Appendix C (the Flight Pattern Diagram). As the colours will not be
reproduced in a black and white copy, the Tribunal has added numbers to the diagram
and legend. In his oral testimony, Mr. Pitt referred to this Diagram when describing the
rectangular box flight pattern currently used by Skydive. He states:
So you fly off, we turn at 500 feet, 90 degrees, because we don't want
to be flying off into the water, if we lose an engine, then we're swimming.
So we turn 500 feet, which is a safe altitude for 90 degrees, climb up
from 5,800 feet. Now we turn. We're going to say it's our "downwind,"
that's the red line. We call it downwind, that's what we do on our
downwind for landing, but as we're climbing out, and that is
approximately one mile past the airport. And we climb out from there
and climb up to a 1,000 feet. We're all safe, 1,500 feet, we now take off
our seatbelts and continue our climb up.
Q. Where do you do your climb up?
A. Upwind of the airport.
[66] Mr. Pitt testified that Skydives current landing circuit, along the downwind leg
(shown as Number 3, the red line on the Flight Pattern diagram) would place an
airplane within 300 ft of T4 or T5. He states that this is not safe, and is in direct conflict
with Transport Canada Safety Regulations. In this regard, he refers to s. 602.14 of the
Canadian Air Regulations which provides that, except when flying over a built-up area
or an open-air assembly, the airplane is required to maintain a distance of at least 500 ft
from any persons, vessel, vehicle or structure.
[67] Mr. Pitt also stated his opinion that erection of wind turbines 1.7 km from the
landing strip would immediately impact the landing pattern. He stated that, under
present circumstances, regardless of where a parachutist is in the flight pattern, in the
event of an emergency, he, as the pilot, would be able to proceed directly to the airport
and attempt to land the plane. He expressed his view that this will no longer be the
case if the wind turbines are erected, as, depending on the situation, he would be forced
to determine some other, considerably less safe place to attempt a landing.
[68] Mr. Pitt observes that Transport Canada, in a letter sent to him dated January 26,
2011, stated that the proposed wind turbines may adversely affect Skydives operations
and aircraft operating the circuit at the Port Colborne airfield. Mr. Pitt expressed his
Pitt v. Director,

21
opinion that safe and efficient use of an aerodrome can be seriously eroded by the
presence of obstacles within or close to the take-off or approach areas. In support of
this observation he provided an excerpt from s. 4 of the Aeronautical Information
Manual which speaks to obstacle restrictions.
[69] In cross-examination, Mr. Pitt explained that, when flying the box pattern, the
plane flies each leg to achieve the required altitudes before turning to the next leg,
noting that climb rates can vary based on factors such humidity and the temperature of
the day. He further explained that the actual ground level distance the plane travels to
achieve these altitudes varies depending on the rate of the planes ascent/descent and
ambient wind speed conditions. He alternatively described this as the air speed
remaining the same, but the ground speed varying. He stated that the
upward/downward leg, as shown on the Flight Pattern diagram, is approximately one
mile (1.6 km) from the aerodrome, which he described as their safe practice. However,
he also explained that this pattern would be adjusted if skydivers were in this area on
their return path descending to the landing area.
[70] When asked, in terms of this basic flight procedure, what, if anything, would be
different if those turbines are erected as proposed, Mr. Pitt stated:
Well, that would just that would put us approximately 5 to 600 feet
above the turbines right there, it doesn't give you a lot of room for error.
And we need to be at least a mile out, because [of] the glide angle of the
airplane. We can't be right over on top of the airport if the engine quits.
We need to be sort of upwind of the airport to glide back, and having
500-foot -- sorry, 475-foot spinning blades up there is going to be
turbulent and, you know, possible collision hazard.
[71] In his oral evidence Mr. Pitt testified regarding the concern relating to an engine
failure. He explained:
That's why we fly that pattern, because if there is a problem with the
plane, we can always get back to the airport at those altitudes. Which,
from a thousand feet to the ground, it's -- you know, that's the area of
sketchiness. Once you're above a thousand feet, you can glide places
and things like that. That's why we want to maintain, put a mile under
the drop zone, that you do have an engine out, you can go there.

We come off the ground, you know, come up, we turn right at 500 feet,
then we turn right again to go to the downwind. At any one of those
points when you make that first turn, now we are looking for alternates,
because we're not going to make the airport if the engine quits now.
We need to, you know, 500 feet if we're straight off, we're going straight
off. When we turn to that right out, now we have fields there that we
might be able to land into where the turbines are, there are other fields
Pitt v. Director,

22
that we can make. Once we get to that thousand foot mark, we can
probably make the airport at that point. But there's a critical point, again,
from the time you leave the ground to get to a thousand feet.
Mr. Eralp
[72] Mr. Eralp testified that any wing needs a minimum speed to fly, and passengers
of aircraft in turbulence are subjected to chaotic bouncing as the wings generate varying
levels of lift associated with the changing localized speed of air moving over the lifting
surfaces, as well as responding to up and down drafts in the 3 dimensional turbulent
field. He indicates that the degree of discomfort can be compared to the percentage of
wing speed loss. He uses, as an example, a jetliner configured for approaching an
airport at 160 knots suddenly flying at only 125 knots. He states that even this 20%
reduction would result in very severe wind shear and justify aborting a landing. He
further states that much more than this range of speed loss becomes increasingly
unrecoverable, which occasionally closes airports to traffic. But a 5 knot loss would be
noted by a flight crew as minimal, and corrected.
[73] In comparing turbulence produced by aircraft to turbulence generated by a wind
turbine, Mr. Eralp testified:
Despite the fact that I've read in one of the reply statements, that wings,
turbines, etcetera, are different. I deny that. The wind tip vortex which is
generated by the difference of pressure below and above, and those are
loose terms, of the wing. And they look roughly the same on all wings,
granted that an elliptical formed at the end, a square end, other shapes
at the end change them. But they all have basically the same tip vortex.
Secondarily, in generating lift, which is what the turbines use to convert
wind energy to motion energy and then electrical energy, that has
consequence vortex; that is what I studied at the university.
The tip vortex I'm used to, every day in flight. The vortex generated as a
part of lift is specifically what I studied. So my consistent experience of
it, is equal to the task of speaking to wind turbulence. I think that if I flew
a large aircraft through the wake of a wind turbine, I would pay for it.
That's pilot speak for, I would die and I would kill 200 passengers. We're
not to be immoderate, we're paid to be somewhat task-termed. But I
can't hide from the fact, I just wouldn't do it.
[74] Mr. Eralp also testified that it would be highly unlikely that a plane would fly within
the near wake of a wind turbine.

Pitt v. Director,

23
Mr. Kelly
[75] Mr. Kelly is a licenced pilot, a regulatory inspector, aviation accident inspector,
safety analyst, safety evaluator, and safety policy advisor. He conducted a safety study
and prepared the 2013 Safety Study.
a. Potential risks to aircraft: Collision with turbine
Loss of control while maneuvering to
avoid a turbine
Licensed pilots are responsible for (and commercially-licensed pilots are
experienced in) avoiding obstacles when operating under visual flight
rules (VFR). In the future pilots operating out of the aerodrome at Port
Colborne would be aware of the location of the turbines because of the
regulation required mitigation imposed on the wind turbine owner.
Specifically, the turbines will be:
known obstacles due to the requirement to publish their location
in NOTAMS (notice-to-airmen),which are read by all aviators;
physically lighted in accordance with Transport Canada (TC)
standards;
marked on local and regional aviation maps; and
highlighted in the Canada Flight Supplement (CFS).
[The CFS is a flight planning document that contains operating
information on all registered and certified aerodromes in Canada. In
addition to providing information on runways, operational procedures,
minimum altitudes, and communications, it cautions pilots on known
hazards in the vicinity of an aerodrome hazards such as the location
and height of communication towers, wildlife activity, areas where wind
shear is prevalent, and parachuting activity.]
Furthermore, the minimum visibility requirement for skydiving (5 statute
miles) is considerably more than TC visibility requirements for VFR pilots
(3 statute miles). Therefore, pilots carrying skydivers will be better able
to identify and avoid the lighted obstacles. Furthermore, visiting pilots
will continue to need prior permission to land or operate from the
aerodrome, and will likely be briefed before arriving or departing the Port
Colborne aerodrome on the presence and location of the turbines.
Nevertheless, there would be a potential risk of collision with a turbine, or
a loss of control while maneuvering to avoid the obstacle if a pilot
experienced an airborne emergency that required an immediate forced-
landing. Examples of such emergencies include an engine failure in the
climb, or an engine or cabin fire.
Assessment of risk to skydiving aircraft
The operational safety analysts determined that the risk of colliding with
one of the two turbines, or losing control of the aircraft while avoiding a
turbine during an emergency would be rare. They made this
determination because:
Pitt v. Director,

24
The relatively short runway length and the high aircraft operating
weights will require pilots to take-off into wind on runway 21 on a
heading that takes them away from the turbines;
The subsequent right-hand cross-wind turn will enable pilots to
climb on a track that avoids overflying the turbines while they
continue the climb to an altitude well above the turbines;
Once established in a climbing pattern, they will be able to see
the two turbines well below them, and in the event of an
emergency, find an acceptable field or landing area on which to
force land, clear of either of the two turbines, which are
separated by almost one-half a kilometer.
It was determined that if there were residual risks, they could be
mitigated by developing and adhering to local procedures that ensure
pilots remain vertically and laterally clear of the turbines after takeoff and
during descent for landing.
[76] In his witness statement Mr. Kelly states:
It is my opinion that pilots will seldom be exposed to air turbulence
generated by T4 and T5, and that the risk of a loss of aircraft control can
be effectively mitigated because:
(a) the prevailing winds are such that air turbulence will most often
exist in areas where aircraft will not operate;
(b) winds that potentially could cause turbulence in the low level
airspace near the runway (i.e., winds from 260 to 280) occur
only 12% of the time, and on average at speeds that would
generate minimal turbulence near the runway. Furthermore,
these westerly winds almost always occur during the months of
January and April, when there are few (April) or no (January)
skydiving aircraft operating at Port Colborne;
(c) terrain and buildings between the turbines and the runway will
deflect or dissipate turbulence, and pilots frequently deal with
turbulent air when landing aircraft; and
(d) turbulent air indicators could be positioned near the runway to
warn pilots who are approaching to land.
[77] In his response witness statement Mr. Kelly states:
The lateral and longitudinal dimensions of traffic patterns are not rigid,
and differ from aerodrome to aerodrome, and even at a single
aerodrome - depending on wind conditions, topography and the types
and number of aircraft flying in the circuit. Therefore, the VFR traffic
circuit should not be understood to be a rigid line over precise landmarks
that would require pilots to fly in the immediate vicinity of the turbines. In
fact, there are other safety regulations that require pilots to vertically and
laterally avoid obstacles. Consequently, the future traffic pattern at the
Port Colborne aerodrome would have longitudinal and lateral dimensions
that would keep pilots clear of the turbines.
Aircraft taking-off and leaving the traffic pattern as almost all aircraft
will do at Port Colborne will normally climb on runway heading to a
height of at least 500' above ground (or higher if the pilots choose)
before commencing a climbing turn of approximately 90 degrees to the
Pitt v. Director,

25
north. Pilots will climb on this track which provides considerable
horizontal clearance from the turbines until they exceed the circuit
altitude (see the paragraph below). They then will be free to maneuver
the aircraft as they continue to climb through altitudes that will provide
considerable vertical separation from the two turbines.
Furthermore, the circuit pattern is three dimensional (i.e., it contains an
"altitude component"). Consequently, a jump aircraft climbs out after
take-off, and as it climbs above circuit altitude (usually 1000 feet above
ground level), the pilot "leaves" the traffic circuit. As the aircraft climbs
above the circuit height, the pilot is no longer expected/required to fly the
rectangular pattern.
The pilot of the jump aircraft will not normally have reason to fly a
complete rectangular pattern at the circuit altitude, and therefore will not
be in proximity to any turbine. Furthermore, the regulations require a
pilot to operate an aircraft at a safe distance from any obstacle, including
a turbine, so when a pilot is in the circuit, the regulations will require the
pilot to fly the aircraft to avoid the obstacle. Future traffic patterns will
take this into account, just as they do in many locations where there are
topographically-based obstacles that influence the dimensions of the
traffic pattern. In the future, this information will be included in the
Canada Flight Supplement (CFS), published by NAV CANADA, and in
numerous other sources that exist to inform local and transient pilots of
the unique circumstances that are found at almost all aerodromes, small
and large.
The future presence of the turbines shall not contravene aviation
safety regulations and standards.
[78] Mr. Kelly testified that Transport Canada requirements are that pilots fly a
minimum of 500 ft away from structures and the proposed turbines placement would
allow aircrafts flying the existing circuit at Port Colborne aerodrome to be in compliance
with that requirement.
[79] Regarding Mr. Eralps evidence regarding turbulence, Mr. Kelly states in his
response witness statement:
The information regarding air turbulence presented by the witness is
confused. The comparisons of wakes generated by boats, aircraft and
wind-turbines are conflated, as is the comparison of turbulence
generated by wind turbines with the severe updraft and downdrafts within
and in the vicinity of thunderstorms (cumulonimbus clouds). To illustrate:
the characteristics of wing vortices and wake turbulence generated by
large aircraft in landing or take-off configurations significantly differ from
turbulent air generated by wind turbines in the way they are formed,
their dimensions, the subsequent directions of travel, and how they are
dispersed. Wakes from large aircraft configured for landing or take-off
are strongest and prevail the longest in low wind conditions; while we are
informed that turbulent air generated by wind turbines is strongest in high
wind conditions. Stated another way: strong winds disperse and break-
up aircraft-generated vortices, but perpetuate wind turbine generated
turbulence. Consequently, the comparison to different forms of air
Pitt v. Director,

26
turbulence and wakes especially by juxtapositioned analogies is
misleading and often incorrect.
[80] Dr. Cox is a mechanical engineer with expertise in industrial safety and risk
assessment. In response to Mr. Eralps evidence reference to a jet liner as an example,
Dr. Cox states:
There is no comparison with the wind turbines. In the case of a typical
heavy aircraft such as an airliner, the power generated by the engines in
propelling the airplane is ultimately absorbed in the turbulent disturbance
it creates in the atmosphere as it passes. That disturbance is largely
created by the lifting surfaces (i.e., wings) and takes the form of vortices
in the air. In the case of a wind turbine, similar phenomena are at work
but overall energy is extracted from the atmosphere. That is one reason
why the hazard of wind turbine wakes cannot be compared with that of
airliner wakes. The second reason is that the power levels are of a
totally different order: a typical large airliner injects into the atmosphere
the equivalent of 50,000 to 100,000 horsepower, while a single wind
turbine of the type proposed for Wainfleet absorbs from the atmosphere
about 3000 horsepower. There is no comparison.
Submissions of the Appellants regarding Harm to Airplane Pilots
[81] The Appellants rely on evidence adduced by their expert witnesses regarding
collision risks and the risks associated with turbulence. The Appellants maintain that it
is the collective view of the Appellants witnesses that the proposed wind turbines pose
a very real and serious threat to pilots and parachutists. According to the opinion of
Mr. Pitt, it is not a question of whether serious harm will occur, but when it will occur.
The Appellants submit that this appeal is not based on hypotheticals but, instead, what
will undoubtedly occur if the Project proceeds.
[82] In response to the evidence adduced by Mr. Kelly, the Appellants also make the
following submissions:
1. Mr. Kelly is an expert in aviation safety-risk management, not in skydiving or
piloting.
2. Based on the SMS Report, Mr. Kelly opined that the safety risks of the wind
turbines will be mitigated provided pilots operate their aircraft in accordance
with Transport Canada Regulations and Standards, and supplementary
procedures for skydiving operations are instituted.
3. In his erroneous opinion, pilots will not collide with the turbines if, among
other things, Skydive institutes procedures so that pilots remain vertically
and laterally clear of the turbines, even in an emergency.
Pitt v. Director,

27
4. In his erroneous opinion, pilots will also seldom be exposed to wake
turbulence generated by wind turbines because the winds that could
potentially cause turbulence, westerly winds, almost always occur during
January or April where there are no or few skydiving aircraft operating at the
airfield. The data does not support these conclusions.
5. Mr. Kelly admitted that accidents that would occur, either from a collision
with a turbine or turbulence, would fall within Category A of the SMS
Reports, which concludes that there is potential for loss of life or
destruction of property and equipment.
6. The SMS Report makes it clear, and Mr. Kelly affirmed as current, that the
Civil Aviation Daily Occurrence Reporting System (CADORS) information
relating to skydiving injuries used in the SMS Report is not complete and
rarely used by the skydiving community.
7. There were a number of other errors in his report and testimony that call into
question the reliability of his recommendations. As related to airplane
piloting, these include but are not limited to:
a. Improper referencing.
b. Misidentifying the kind of plane used at Skydive.
c. Erroneously suggesting the obtaining of weather data for 15,000 ft when
this type of reporting does not exist.
8. Mr. Kelly agreed that he expected that pilots would follow guidelines for
safety (best practices) and not because they were prescribed by any
regulatory regime.
Submissions of the Director regarding Harm to Airplane Pilots
[83] The Director makes the following submissions:
1. The only witnesses who were qualified to provide opinion evidence on
issues relating to the impact of wind turbines T4 and T5 on aircraft flying in
and out of the Port Colborne aerodrome were Mr. Pitt for the Appellants and
Mr. Kelly for the Instrument Holder. Dr. Cox, while qualified to give opinion
evidence in the area of risk assessment in transport, focused his testimony
on the risk to skydivers.
Pitt v. Director,

28
2. Mr. Kelly concluded that both under normal operations and in the case of an
aircraft emergency (e.g. loss of engine power), there is no additional risk to
aircrafts related to wind turbines T4 and T5.
3. Mr. Kellys evidence should be given considerable weight by the Tribunal
since he provided detailed pathways for his conclusions including data,
assumptions and analysis. In contrast, Mr. Pitts evidence should be given
no weight since he provided no evidence to support his opinion that wind
turbines T4 and T5 will leave the pilot with not a lot of room for error in an
emergency situation.
Submissions of the Approval Holder regarding Harm to Airplane Pilots
[84] The Approval Holder relies on Mr. Kellys evidence regarding Transport Canada
Regulations, and makes the following submissions:
1. The wind turbines are stationary objects which cannot be the cause of a
collision.
2. The only evidence put forward by the Appellants of a risk of collision with
the plane was through Mr. Pitt, whose evidence, for the reasons set out
above, should be given no weight. Nonetheless, even if given any weight,
the evidence provided by Mr. Pitt is not sufficient to demonstrate that the
turbines will cause harm with respect to airplanes.
3. The evidence clearly indicates that the airplanes engaged in normal flight
will have more than sufficient clearance from wind turbines T4 and T5. The
evidence demonstrates that the circuit flown can be, and is, altered on a
regular basis, depending on daily wind circumstances, which means that
when flying in the circuit the plane is further away from the area of wind
turbines T4 and T5 than first asserted by Mr. Pitt. The evidence also
demonstrates that there are more than enough alternate landing areas in
the event of an emergency such that there is no real evidence that the
turbines will cause harm in such circumstances.
4. The risks involved in take-off and landing are primarily due to engine or
mechanical failure or from incidents related to turbulence. The Appellants
presented no evidence that either of these circumstances is likely to exist or
that even if they do, that they are caused by turbines T4 and T5.
Pitt v. Director,

29
5. The Appellants, through Mr. Pitt, provided inconsistent evidence regarding
necessary plane movements. He confirmed that the circuit flown is variable,
even within the Visual Flight Rules and the diagram set out at as an
attachment to Mr. Pitt's witness statement, Mr. Pitt confirmed that
sometimes the airplane he pilots is actually flying in different locations, with
lots of clearance over the area of the turbines and that the circuit diagram
he prepared is simply what he "usually does". Mr. Pitt, in response to the
question of whether there is deviation in judgement involved in flying the
circuit, confirmed that the circuit flown depends on the wind.
6. It is a pilot's responsibility to avoid objects and for some reason the
Appellants, through these appeals and through their position, are
advocating to have that responsibility put on the proponent to require that
obstacles are not put in the way of pilots or their aircraft.
7. There is simply no evidence to support a finding that turbines T4 and T5
"can be" the cause of any harm let alone "will cause" harm to human health
with regard to airplanes and collision. As such, this element of these
appeals must fail.
Findings Respecting Serious Harm to the Health of Skydives Airplane Pilots
[85] It is not disputed that an airplane pilot would suffer serious harm to his/her health
in the event that the plane collides with another object or crashes into the ground. The
Appellants assert that such will occur if a plane collides with wind turbines T4 or T5, or if
a plane is unable to safely fly if exposed to wind turbulence generated by these wind
turbines. The Appellants also rely on the Aeronautical Information Manual in support of
their position that the safe and efficient use of an aerodrome can be seriously eroded by
the presence of obstacles within or close to the take-off or approach areas.
Aeronautical Information Manual
[86] The Tribunal begins with the excerpt quoted by Mr. Pitt from s. 4 of the
Aeronautical Information Manual which speaks to obstacle restrictions. It states:
4.1 GENERAL
The safe and efficient use of an aerodrome, airport or heliport can be
seriously eroded by the presence of obstacles within or close to the take-
off or approach areas. The airspace in the vicinity of takeoff or approach
areas (to be maintained from obstacles so as to facilitate the safe
operation of aircraft) is defined for the purpose of either:
a) Regulating aircraft operations where obstacles exist;
Pitt v. Director,

30
b) Removing obstacles; or
c) Preventing the creation of obstacles.
4.2 OBSTACLE LIMITATION SURFACES
An obstacle limitation surface establishes the limit to which objects may
project into airspace associated with an aerodrome and still ensure that
aircraft operations at the aerodrome will be conducted safely. It includes
a take-off/approach surface, a transitional surface and an outer surface.
[87] The excerpt also includes a diagram entitled Obstacle Limitation Surfaces which
maps, in three dimensions, the three surfaces referenced above. This diagram is
immediately followed by a new section 4.2.2, relating to heliports. Therefore, there is no
further explanation of how the diagram is to be used.
[88] In cross-examination, counsel for the Director put the following assertion to Mr.
Pitt, who made the following response:
Q. So really my point to you Mr. Pitt, nowhere in here does it say every
aerodrome shall have this type of clearance and this type of obstacle
avoidance area, does it?
A. It does not say anything about parachuting either.
[89] Although Mr. Pitts response is not as directly responsive to the question as it
could have been, the Tribunal notes that Mr. Pitt, when giving his evidence, was not
reticent in asserting his opinions. If Mr. Pitt had disagreed with the above assertion, he
likely would have said so. The Tribunal, therefore, infers that he does not disagree.
[90] The evidence accords with the text of the above provision. Section 4.1(a) clearly
contemplates that safe operation includes consideration that obstacles may exist and be
addressed by regulating aircraft operations. The Tribunal further notes that it received
no evidence to suggest that the requirements in the Aeronautical Information Manual
are binding on persons other than aerodrome operators. Therefore, these requirements
do not prohibit the installation and operation of wind turbines T4 and T5.
[91] Accordingly, based on the evidence, and the above interpretation of these
provisions, the Tribunal concludes that this section of the Aeronautical Information
Manual, in and of itself, does not suggest that the installation and operation of wind
turbines T4 and T5 will cause serious harm to airplane pilots.
Collision
[92] The evidence indicates that the concern respecting risk of collision pertains to the
take-off and approach flight protocol, as it is during this phase of the flight that a plane
Pitt v. Director,

31
will be closest both laterally and vertically to wind turbines T4 and T5. It is not disputed
that the box pattern is not oriented in relation to a geographical ground location, but
depends on wind condition. However, as wind direction in the area does include
westerly winds during the period of the year when Skydive operates, the box flight
protocol does place the take-off/approach pattern on the west side of Skydives runway.
[93] As Mr. Pitt explained in his evidence, under Skydives current protocol, the
downwind/upwind leg is approximately one mile from the runway on the west side,
which would potentially result in the plane flying over wind turbines T4 and T5 at
approximately 800 ft. It is not disputed that the height of these wind turbines at the
highest point of the rotor tip is 476 ft. This explains his assertion that, under the current
flight protocol, a plane could be within approximately 300 ft of these wind turbines.
[94] However, Mr. Pitt also acknowledges that s. 602.14 of the Canadian Air
Regulations provides that the airplanes at the Port Colborne Airport are to follow Visual
Flight Rules, which includes maintaining a distance of at least 500 ft from any persons,
vessel, vehicle or structure. The evidence adduced by Mr. Pitt and Mr. Chow does
challenge the assertion made by Mr. Kelly that the flight pattern is not rigid, and differs
from aerodrome to aerodrome, and even at a single aerodrome depending on wind
conditions, topography and the types and number of aircraft flying in the circuit.
Therefore, Canadian Air Regulations do not require that Skydive maintain the flight
pattern described by Mr. Pitt if wind turbines T4 and T5 are installed at their proposed
locations. Therefore, under normal operating conditions, only minor adjustments to the
landing pattern would be required to comply with the Visual Flight Rules if the wind
turbines are present.
[95] The Tribunal has considered Mr. Pitts evidence that the purpose of the current
flight pattern on take-off is to remain in proximity to the runway in case of engine failure.
As Mr. Pitt pointed out, in the event of engine failure, the plane can still glide and be
navigated to return to the runway provided it has sufficient altitude (at least 1,000 ft
above ground level). Therefore, it is a safety practice to remain within a mile of the
runway until the plane attains this altitude. However, the evidence does not indicate
that the adjustment to the current flight pattern to account for the presence of the wind
turbines, would require that the downwind leg (Number 3 on the Flight Pattern Diagram)
needs to be extended a significant additional distance from the aerodrome runway. The
Visual Flight Rules specify the minimum safe distance from an obstacle, laterally and
vertically, is 500 ft. Therefore, if the downwind leg of the current flight pattern is directly
over the wind turbines, as Mr. Pitt suggests, the downward leg needs to be extended
Pitt v. Director,

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only a further 500 ft from the aerodrome runway to allow for safe operation of the plane.
The Tribunal recognizes that the plane must also be 500 ft above the turbines which are
476 ft high. In order that the plane attain the minimum altitude of 976 ft above ground
level, the cross wind leg may need to be extended to allow the plane sufficient time to
gain this altitude, which, of course, would also extend the downwind leg further from the
runway. However, there is no evidence indicating that the length of such extension
would be such that it would compromise Skydives safety practice, certainly not to the
extent that it can be inferred that a collision will occur. In this regard, the Tribunal notes
that it is not disputed that the location of the legs of the box flight pattern in relation to
the runway may vary from day to day based on atmospheric conditions.
[96] The Tribunal has also considered Mr. Pitts evidence regarding the scenario
where engine failure occurs before the plane attains an altitude of 1,000 ft. He points
out that, in such circumstances, the plane does not have sufficient altitude to glide back
to the runway, and, therefore, an emergency off-runway landing is required. However,
the evidence does not indicate that, in such circumstances, the pilot would be unable to
avoid collision with the wind turbines. As already noted, the plane can still be navigated
by the pilot. The Tribunal further notes that, even if there was a potential mechanism to
indicate that a collision could occur, the evidence does not indicate the probability that
an engine failure will occur during the lifespan of the REA, nor the probability of a
collision if an engine failure did occur.
[97] Mr. Pitt also asserts that, when landing off-runway in an emergency, depending
on the situation, the presence of the wind turbines would prevent a pilot from landing at
their proposed locations, which are currently open fields. He maintains that a pilot
would be forced to determine some other, considerably less safe place to attempt a
landing. The Tribunal notes that Mr. Pitt does not dispute that there are other places to
land. However, he adduced no evidence describing what the alternate landing sites
would be, nor explaining why they would be less safe. He also provided no evidence
regarding the likelihood that such a situation would occur during the lifespan of the REA.
Consequently, the Tribunal finds that the evidence does not establish that harm will
occur in an emergency landing situation which could be attributed to the presence of the
wind turbines.
[98] In his evidence, Mr. Pitt also referred to reply correspondence he received from
Transport Canada, dated January 26, 2011 which states that The proposed wind
turbines may adversely affect Skydive Burnabys operations and aircraft operating in the
circuit at the Port Colborne Registered Aerodrome. The Tribunal notes that this letter
Pitt v. Director,

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provides no analysis in support of this assertion. Consequently, there is nothing to
indicate whether an adverse effect approximates serious harm to human health. In
any event, this letter states that the turbines may have an adverse effect, not that they
will have an adverse effect.
[99] For these reasons, the Tribunal finds that the Appellants have not established
that the engaging in the Project in accordance with the REA will cause serious harm to
airplane pilots on the bases that: (i) aircraft collisions with wind turbines T4 and T5 will
occur; or (ii) during an emergency off-runway landing, ground crashes will occur that
can be attributed to these wind turbines.
Impact of Turbulence
[100] The Tribunal has already made findings respecting the nature and extent of the
turbulence wake that will be generated by the wind turbines. Therefore, the Tribunal
now turns to its consideration of the evidence respecting the impact of such turbulence
on airplanes in flight, as it relates to the Health Test. This analysis involves two
components: (i) the intensity of the turbulence at any intersection point must be such
that the pilot loses control of the operation of the plane to the extent that the pilot cannot
avoid collision with an object or crashing to the ground; and (ii) the airplanes flight path
must intersect the turbulence wake.
[101] Regarding the first component, the Tribunal notes that the evidence of Mr. Eralp
is at odds with the evidence of Mr. Kelly and Dr. Cox.
[102] The Appellants have challenged whether Dr. Cox is qualified to give technical
evidence respecting airliner turbulence wakes and to express an opinion comparing
such wakes to the turbulence wakes generated by wind turbines. Dr. Cox is a
mechanical engineer who has been qualified as an expert in the area of risk
assessment in public safety, energy and transport. The Tribunal finds that it is not
entirely clear whether this includes the expertise to provide expert opinion respecting
wind turbulence. Therefore, the Tribunal has chosen not to rely on this evidence. In
any event, the Tribunal does not find it necessary to rely on his evidence, as the
Tribunal has Mr. Kellys evidence in this regard.
[103] The Appellants assert that Mr. Kelly is an expert in aviation safety-risk
management, not in skydiving or piloting. As noted above, Mr. Kelly is a licenced pilot,
a regulatory inspector, aviation accident inspector, safety analyst, safety evaluator, and
safety policy advisor. He has been qualified as an expert in the field of aviation safety
risk management, including the proactive identification of aviation hazards and the
Pitt v. Director,

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development of mitigation strategies. The Tribunal finds that, in light of his expertise,
his opinion evidence respecting wind turbulence falls within the scope of this
qualification.
[104] As the Tribunal understands Mr. Eralps evidence, it is his view that the
characteristics of wind turbulence generated by an airplane wing and a wind turbine
blade are basically the same, and his experience as a pilot (which relates to tip vortex)
and his academic experience respecting lift vortex, enable him, in his opinion, to
express conclusions regarding the impact of flying a plane through wind turbulence
generated by a wind turbine. It is possible, therefore, that his evidence is not
inconsistent with the evidence of Mr. Kelly. Mr. Kelly does not state that tip vortices and
lift generated as part of turbulence do not exist for both wind turbines and airplanes.
Mr. Kelly maintains, however, that their characteristics are different. Mr. Eralps
evidence does not state that the characteristics of these vortices are identical. Instead,
he expresses his opinion, based on his experience as a pilot, and his academic study of
bluff body vortex shedding, that the wake of a wind turbine would cause the pilot of a
commercial plane to lose control and crash.
[105] The Tribunal finds that the evidence adduced by the Appellants regarding the
impact of turbulence on a pilots ability to control the operation of the plane, is limited.
Mr. Eralp provides his opinion that wind turbulence can impact a pilots control of the
plane, and a conclusion that it would cause a plane to crash. While his experience as a
pilot and his academic background inform his view, his opinion is nonetheless,
conclusory in nature. He provided no specific analysis of what the expected levels of
turbulence intensity along the turbulence wake of wind turbines T4 and T5 would be,
and more importantly, what impact such turbulence would have on a pilots ability to
control an airplane. Consequently, he does not provide a clear analysis to support the
conclusion he asserts. In this regard, the Tribunal notes that he acknowledges that it
would be highly unlikely that a plane would fly within the wake nearest to the wind
turbines, where turbulence intensity would be highest. He also provides no analysis to
indicate that a pilot would lose control of a plane further away from the wind turbine,
where the wake turbulence intensity would be only two percent or lower than the
ambient wind turbulence. For these reasons, the Tribunal does not accept his opinion
that wind turbulence would impact a pilots control of the plane to such a degree that it
would cause a plane to crash.
[106] The only other evidence provided by the Appellants expert witnesses, are the
conclusory opinions of Mr. Chow and Mr. Crouch that the wind turbines will create
Pitt v. Director,

35
unwanted turbulence that will affect the safety of both skydivers and airplanes.
However, they also provide no analysis to support this conclusion as it applies to this
Project.
[107] Consequently, the Tribunal finds that the Appellants have not adduced sufficient
expert opinion evidence to enable the Tribunal to make reliable findings regarding the
impact on aircraft of the projected wind turbulence to be generated by wind turbines T4
and T5.
[108] In making this finding, the Tribunal has also considered the impact of the wind
turbine turbulence wake on planes as they approach or depart from the aerodrome. As
noted earlier in this Decision, it is not disputed that air turbulence occurs naturally in the
environment. The evidence respecting the turbulence wake indicates that the wind
turbines will increase turbulence intensity on the airfield by only one percent or less.
The Tribunal did not receive evidence which specifically addressed the impact of such a
change on aircraft control. However, Mr. Eralp has pointed out in his evidence that
airplane pilots can cope with a certain level of turbulence, and, as well, Mr. Kelly
testified that pilots frequently deal with turbulent air when landing aircraft. Mr. Kelly also
testified that the terrain and buildings between these turbines and the runway will deflect
or dissipate turbulence. The Tribunal finds that this evidence does not indicate that the
predicted intensity of increased turbulence on the landing field is such that the Tribunal
can conclude that a pilot will be unable to control the aircraft during take-off or landing.
[109] The Tribunal now turns to the second component, i.e. whether the airplane will
intersect the turbulence wake generated by wind turbines T4 and T5. In this regard, the
box flight pattern clearly indicates that, except for take-off and landing, the planes will fly
around the turbulence wake and, therefore, will not intersect with the wake.
Consequently, the only intersection point which must be considered is the airfield,
where take-off and landing will occur. As discussed above, the intensity of the
turbulence generated by wind turbines T4 and T5 will increase ambient turbulence
intensity on the airfield by 1% or less. The Tribunal has already considered the impact
of this increased level of turbulence intensity in the previous paragraph of this Decision.
[110] The Tribunal has considered the scenario where engine failure requires an off-
runway landing. However, the flight pattern does not place an airplane near the
turbulence wake, and, as the pilot can still navigate the airplane, the evidence adduced
does not indicate any circumstance where the pilot would be required to fly in close
proximity to the turbulence wake.
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[111] As described above, Mr. Kelly has testified that pilots will be seldom exposed to
air turbulence generated by wind turbines T4 and T5, based on his analysis of prevailing
winds. The Tribunal does not find this evidence to be of any assistance, as he does not
conclude that pilots will never be exposed to turbulence. In applying the Health Test,
the Tribunal must consider the consequences for pilots when there is exposure to wind
turbulence. Consequently, the Tribunal has ascribed no weight to this aspect of
Mr. Kellys evidence. However, Mr. Kelly also testified that the average speeds of these
winds would generate minimal turbulence in the low level airspace near the runway.
[112] The Tribunal has considered the Appellants submission that there were a
number of errors in Mr. Kellys report and his testimony. The Tribunal does not find that
the errors cited call into question his analysis and opinions on which the Tribunal has
relied.
[113] For these reasons, the Tribunal finds that the Appellants have not established
that engaging in the Project in accordance with the REA will cause serious harm to
airplane pilots on the basis that turbulence generated by wind turbines T4 and T5 will
cause a pilot flying at the Port Colborne aerodrome or in the vicinity of the Project Site
to lose control of the operation of the plane to the extent that the pilot cannot avoid
collision with an object or crashing to the ground.
Conclusion
[114] In light of the above analysis and findings, the Tribunal finds that the Appellants
have adduced insufficient evidence on which to conclude that engaging in the Project in
accordance with the REA will cause serious harm to the health of pilots of airplanes at
the Port Colborne aerodrome or in the vicinity of the Project.
Harm to Skydivers
Background
[115] As noted earlier in this Decision, the Skydive Site is the same as the Port
Colborne aerodrome, and the term skydiver is synonymous with the term parachutist.
The following evidence is not in dispute.
[116] In skydiving, parachutists are flown by plane from the Port Colborne aerodrome,
to a pre-determined point in the sky where the parachutist leaves the plane (the drop
point), opens the parachute, and then glides at descending rate of altitude, returning to
land at a designated area located on the Skydive Site (the parachute landing area or
PLA). There may be several skydivers taken out in a single flight.
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[117] The design of modern parachutes, which are used by Skydive, has increased
manoeuvrability, as compared to older round balloon shaped parachutes, as described
above in the summary of Mr. Eralps evidence.
[118] The skydivers goal is to land within the designated landing area on the Skydive
Site. In skydiving competitions, experienced skydivers compete to land on a spot within
the landing area that is only a few inches in a diameter. In order to avoid collisions
between skydivers as they near the aerodrome, each skydiver is required to adopt an
approach pattern at 1,000 ft above ground level, similar in nature to the box flight
pattern used by airplanes.
[119] Regardless of the direction in which the parachute is navigated, the parachute
moves forward as it descends. Depending on the parachute design, the maximum
speed can vary. The comparison of the rate of forward movement to the rate of descent
is referred to as the glide ratio. Although the skydiver is able to navigate the parachute,
and, therefore, determine the direction of the glide, the distance of the drop point from
the landing area must be such that it ensures that the skydiver will be able to reach the
landing area. The drop point must be far enough away from the parachute landing
area, based on the glide ratio, to allow the parachutist to approach the landing pattern at
the required altitude, but not so far away that, based on the parachutes descent rate,
that parachutist would reach ground level before he/she gets to the parachute landing
area. The calculation of this distance includes several factors including the ambient
wind speed and direction (as the parachutist will drift with the wind), and the glide ratio,
which, in part, is based on the design specifications of the type of parachute being used.
[120] In his evidence, Mr. Eralp refers to the calculation of the drop point as spotting,
which he describes as the practice of determining a geographic position (at altitude) to
exit an aircraft, drift with the wind in free-fall then static-fall and finally canopy fall, at the
various fall rates and forward speeds and through successive strata of wind, so as to
land predictably in a predetermined area He states that The practice is a mature
one, good wind forecasts are available for calculations, and corrections are applied as
the occasion warrants at all good dropzones.
[121] Wind turbines T4 and T5 are both located in a westerly direction from the
parachute landing area. When the wind is flowing from a westerly to easterly direction,
parachutists must exit the plane from a point that is located upwind at a westerly
distance from the parachute landing area. Based on the distance constraints discussed
above, the drop point must be further west of these two wind turbines to enable
skydivers to reach the parachute landing area. Consequently, as these skydivers return
Pitt v. Director,

38
to the parachute landing area, they would have to glide over the geographical area
where the wind turbines are located, potentially finding themselves in close proximity to
these wind turbines or their turbulence wakes.
[122] When the winds flow from an easterly to westerly direction, the parachutists will
exit the plane from a point that is at an easterly distance from the parachute landing
area. Apart from the issue of wind turbulence generated by the wind turbines extending
as far as the parachute landing area, parachutists descending in an easterly direction
toward the parachute landing area, could only potentially find themselves in the close
proximity to the wind turbines or their turbulence wake, if they were to over shoot the
parachute landing area as they attempt to land. The evidence adduced does not
indicate that this is a significant concern.
[123] The Tribunal has been careful to use the terms easterly and westerly, as
opposed to due west or due east, so as to include reference to approaches that are
north westerly, north easterly, south westerly or south easterly directions.
[124] The Tribunal now turns to a description of the parachute equipment. There is a
main parachute which is used under normal conditions. However, as a safety measure,
each parachutist is equipped with a second reserve parachute which may be deployed
if the main parachute malfunctions. In the event of a main parachute malfunction, the
parachute may first manually activate its release, so that it will not interfere with the
opening of the reserve parachute. Once this is done, the parachutist can then activate
the opening of the reserve parachute. If the main parachute has not been released,
activation of the reserve parachute will also release the main parachute.
[125] Circumstances may arise where a parachutist becomes incapacitated and,
consequently is unable either to open the main parachute or to release and activate the
reserve parachute. In such circumstances, the parachutist will be descending too
quickly. Consequently speed of descent at lower altitudes indicates that there is a
problem. To address this safety concern, reserve parachutes are also equipped with an
electronic automatic activation device, which measures both the parachutists altitude
and speed of descent. These devices are calibrated to automatically deploy the reserve
parachute to allow sufficient time for the reserve parachute to open before the
parachutist reaches the ground. Reserve parachutes can be manoeuvered. However,
if the parachutist is unconscious or otherwise incapacitated, he/she will not be able
navigate the parachute. This is one example of a loss of directional control of a
parachute.
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[126] It is not disputed that a parachutist would be killed or seriously injured if the
parachutist collided with a wind turbine, or if a parachute collapsed at a height of 400 ft
causing the skydiver to free fall to the ground.
Mr. Pitt
[127] With respect to skydivers, Mr. Pitt testified that 80% of skydiving jumps occur to
the west of the aerodrome.
[128] Regarding the effect of turbulence on a parachute, Mr. Pitt explained that a
parachute is an inflatable nylon wing, which is not solid and rigid like that of an airplane.
A parachute may fold in turbulence, but not completely collapse. However, when one
side of the parachute is collapsed, it acts like a premature break release, which will
cause the parachute to turn. If a parachutist descends behind a wind turbine, the
turbulence could collapse the parachute, thereby causing a fall from this height which
would be fatal.
[129] Regarding turbulence intensity, Mr. Pitt stated:
So our guidelines for winds is, if you're going to land behind a building,
you're going to look at either 10 to 20 times the height of that building;
turbulence behind the building. Obviously, the stronger the wind, the
further back that turbulence is going to be. Like I said, it is invisible, so
you need to have that knowledge in your head. "It's windy today, don't
land behind the building. I have to land here."
And like I said, it's 10 to 20 times the height of a building. A building is
30 feet high, you know, trees, 30, 40 feet high. They're not very high, so
that turbulence doesn't go that far from buildings. From the turbine,
these are what, 100 metres in diameter. They're massive, and the
turbulence behind them is going to be a lot.
[130] Regarding the likelihood that a skydiver will be killed or seriously injured by
collision with wind turbines T4 or T5, or parachute collapse caused by wind turbulence
generated by them, Mr. Pitt states his opinion that it is not a question of if but when.
He maintains that somebody is going to be either seriously injured or killed if these
turbines go up in that area. He also points out that there has been one incident where
a skydiver was killed when she collided with a wind turbine 4 km from the drop zone.
[131] In cross-examination, Mr. Pitt indicated that the parachute landing area includes
the main landing area where the target is located (the "student target"), an alternate
landing area ("any other piece of our field"), and the swoop pond area, which is used by
more experienced skydivers. He also confirmed that the automatic activation devices
Pitt v. Director,

40
used as Skydive are programmable, so that the altitude at which they activate the
reserve parachute can be adjusted.
[132] Mr. Pitt also addressed whether collision with the turbines would be a concern
under normal operating conditions:
Q. Let me back up and ask the question again. When I was listening to
you testify, I heard you say that turbines -- so you've got a situation, your
counsel asked you, collision is really a concern of yours; and you said
"yes." You said, the collision is if you have an emergency situation.
Then you gave us an example of a novice, where there was the
parachute has either, had some problem and they had to release their
backup or reserve parachute.
So I took from that, and I don't want to put any words in your mouth,
which is why I'm asking you. That your concern is, how will these
turbines affect a situation where somebody is facing an emergency or a
malfunction. You're not worried about them during normal conditions; is
that fair?
A. No, I would not say we're not worried about them under normal
conditions. Not seeing the turbine? Yeah, you would see the turbine,
you would not fly into it under normal conditions. The collision would be
on unnormal (ph) conditions, I would personally say.
Q. "Unnormal"?
A. Unnormal. Unnormal conditions. However, the turbulence is there no
matter what. And we don't see that, we can't see that. We don't know
how far back it is. And turbulences will create serious harm or death.
Q. Okay. So then your concern -- maybe that's how I need to narrow my
question.
Your concern as it relates to collision between the parachutist and a
turbine, is in a situation where there's a malfunction or emergency of
some sort; is that fair? And I'll leave the turbulence aside.
A. And they would have, in my opinion, they would have to be some way
incapacitated in a way of not working parachute properly, or it spun up,
unconscious, something.
These are massive things anybody in their right mind would not fly into
on purpose.
Mr. Borghese
[133] Mr. Borghese states that the information presented in the Safety Study prepared
by Mr. Kelly is inaccurate, and in some cases, simply incorrect. Specifically, information
referring to the calculation of wind drift, spotting, glide ratio and impact of wind on travel
distance is wrong and does not comply with the dictates of the Federation Aeronautique
International, the air sports governing body, under whose authority the Canadian Sport
Parachuting Association creates and establishes their basic safety regulations.
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41
[134] Mr. Borghese maintains that the area used by Skydive for skydiving, referred to
as the drop zone, is safe, with limited obstacles to interfere with a student parachutist
making a safe landing. He expresses his view that erection and operation of wind
turbines T4 and T5 will negatively alter this location in such a manner that it will be
impossible to mitigate the situation, as it will be impossible to prepare student
parachutists for actions to take in the event that they are approaching a wind turbine.
He further notes that, although other individual jumpers are knowledgeable with
reference to the steps to take in a number of emergency situations, they will be facing a
danger for which they have no preparedness.
[135] Mr. Borghese states that the only known study to date is the British Sport
Parachute Association Operations manual which indicates that for any wind turbine
greater than 15 m in height, jumping should not occur if it is closer than 2.4 km.
[136] In his oral examination-in-chief, Mr. Borghese was asked to describe obstacle
fixation, also referred to as target fixation. He explained that this term describes when
a parachutist becomes immobilized due to panic and consequently fails to operate the
parachute to avoid an obstacle. He confirms that this dynamic is discussed with
students as part of their training. Regarding the frequency of occurrence of obstacle
fixation he testified:
Q. is there one student in ten, in a hundred, in a thousand, in ten
thousand, gets obstacle fixation?
A. I would not say ten thousand, that's a pretty high number. The thing is
with students they're under -- we have radio guidance. So I'm there to
calm them when they're landing on the property.
And that target fixation occurs, maybe if they're landing off the drop zone
or in an unusual location and now they're suddenly surprised. It is a very
bad thing to land off the drop zone. And they're suddenly surprised and
it's just causing them to be like a deer in the headlights. And it just gets
big.
So it's not very often with a student because, as I said earlier, it's not
often the students are landing off the drop zone. So there has been
experienced jumpers, as I said, and well, students as well, who have
landed off drop zone and encountered those obstacles because they
failed to avoid them.
[137] In cross-examination, respecting turbulence, Mr. Borghese confirmed that
turbulence occurs naturally, and described light, moderate and heavy turbulence as
being associated with wind speeds of 10, 15 to 20, and above 20 miles per hour (mph)
respectively. He indicated student jumpers would not jump when the wind speed is
above 15 mph. He describes that, with light turbulence, a parachutist would feel a little
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bump and surge forward which could result in a little bit of a harder landing. Moderate
turbulence would result in a stronger bump occurrence, more of a drop and perhaps a
little less response from the parachute. He also testified:
Q. And I heard you say you have to anticipate it. I'm assuming that
means you actually do something to your parachute to make sure you
don't get jostled around, is that fair?
A. Well by anticipate it I mean know what builds turbulence. Know not to
be in the vicinity where that turbulence can occur. We can -- don't have
to land in that area. Like the target, per se, we can take that little bit
further away from the tree line so that we won't experience that.
[138] Mr. Borghese acknowledges that training provided to skydivers would include
making them aware of the presence of wind turbines. Mr. Borghese also stated that
Skydives ground wind limitations on skydiving for the highest proficiency skydiver
license is 25 mph.
Mr. Eralp
[139] Mr. Eralp states that the Safety Study, while misleading in places, accurately
describes wind-speed limits and average parachute, canopy, flight speeds for varying
experience levels and disciplines in sport skydiving, unfortunately leaving no room for
gust limits and minimum flight speeds of canopies. He indicates that, as noted for
aircraft, such a minimum exists, below which flight fails which is described as an
aerodynamic stall.
[140] Mr. Eralp also notes that the study describes westerly and west-south-westerly
winds, yet it states that the wake turbulence is in a north-north-easterly direction. He
states that the wake turbulence would actually be easterly and east-north easterly, both
of which would cause wake effects for the parachutes.
[141] Mr. Eralp expresses the opinion that, for a theoretical skydiving student operating
a 25 mph parachute in 18 mph winds, to lose 10 mph and join a downdraft due to
turbulence he/she and the instructor cannot see, could be catastrophic and life-
threatening. He states that, even with quick and well-trained reactions, a collapsed
canopy may be simply unrecoverable. In cross-examination, he agreed that these
conditions can exist in present circumstances, and, on such days, skydiving does not
take place. He notes that this occurs two days a week, including other factors such as
cloud cover, rain and forecast turbulence.
[142] Mr. Eralp describes a 20% loss of wind speed as being very severe wind shear.
He states that, while the speed range is considerable for a parachute, a 20% loss for a
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parachute designed to travel at 25 mph, would be 5 mph. He further states that all
parachutists are trained for 5 mph gusts, but 10+ gusts are more questionable.
[143] Mr. Eralp states that the Canadian Sport Parachute Association does not allow
students to jump when the wind speeds exceed 15 mph.
[144] Regarding the calculation of the drop point, Mr. Eralp indicates that this can be
done manually, but he has developed a computer software program, which he calls a
spot calculator, to produce this information. This calculator has been in use at
Skydive, and Mr. Eralp was able to obtain data for the calculations done in 2013 (over a
period of approximately 6 months). Mr. Eralp pointed out that a person could have used
the calculator to determine where a drop point should be, but then not proceed with the
skydive. However, he indicated that the data set of drop points calculated by the spot
calculator is, nonetheless, representative of the distribution of the drop points for the
parachute drops conducted by Skydive in that year. Mr. Eralp then provided evidence
respecting which of the drop points in this dataset would indicate that a parachutes
flight path to return to the parachute landing area, would place the parachutist within the
vicinity of wind turbines T4 and T5. As noted earlier, he assumed that the horizontal
spread of the wake turbulence would be 10 to 15 degrees. Based on this assumption, it
is his evidence that approximately 45% of the skydives conducted by Skydive each
year, are from a westerly direction that would result in a skydiver gliding in the vicinity of
the wind turbines.
[145] In response to Mr. Baumchens evidence that the horizontal spread of the
turbulence wake is only a few degrees, Mr. Eralp, in his reply evidence, testified that he
re-conducted his analysis using this more conservative estimate of the spread of the
turbulence wake. Based on this additional analysis, he concluded that the number of
skydives conducted by Skydive each year that would result in a skydiver gliding in the
vicinity of the wind turbines, is reduced to 21%.
[146] Mr. Eralp states his opinion that, if the wind turbines are located 2,500 m from
Skydive, they are unlikely to create an appreciable hazard.
[147] Mr. Eralp explained that the change in wind speed and directions caused by the
wind turbine turbulence would look like gusty weather to a parachutist on the ground. In
cross-examination, Mr. Eralp stated that students are trained to deal with wind gusts up
to five miles an hour, but Skydive would stand them down in heavy gusts. He
indicated that they would need a lot of experience time, before they could deal with a
gust beyond this speed.
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Rick Epp
[148] Mr. Epp is an experienced skydiver. He testified that, when skydiving in August
2009, his main chute failed, and his reserve parachute did not immediately deploy.
Once it did, the main chute was tangled with the left rear lines of his reserve chute,
causing the parachute to make a slow left turn. He states that, because of line twists,
he could not steer his parachute. He described that he crossed back and forth over
Station Road, at the proposed locations for wind turbine T5, a total of four times, going
about 200 m east and west of this road. He described that he luckily landed in a field
about 100 m west of Station Road coming back at it. He further described his landing
as a hard unsteerable landing in which he suffered serious injuries. He maintains that if
wind turbine T5 had been present, he would have collided with it. In cross-examination,
he agreed that, with the same malfunction, the result could have been different, if his
location had been in a different spot. He also agreed that the parachute failure he
experienced is a very rare occurrence.
Mr. Chow
[149] Mr. Chow testified that he has 40 years of experience in drop-zone operations
and four years of opposing wind turbine development, the latter being in respect of his
position as Operations Manager of his skydiving business named Skydive Toronto. He
states that his 44 personal years of experience in skydiving is represented by his
expertise in the following areas; almost 11,000 skydives, instructional ratings of Coach,
Senior Instructor, Course Conductor, Tandem Instructor, Rigger and Pilot.
[150] Mr. Chow stated that, for 4 years from 2007 to 2010, he spent the majority of his
working hours opposing a proposed development of a wind turbine installation within the
close proximity of Skydive Toronto. He indicates that, during this period, he organized
neighbours, made presentations to the Town of Innisfil, gave a deposition before the
committee for the Green Energy Act and did extensive research on the effects that
industrial wind turbines would have on a drop zone and airfield. In paragraph 5 of his
witness statement, he states that some of this research was through the internet, but
most of it was done through contacting various organizations, such as the National
Research Council of Canada, CANWEA (Canadian Wind Energy Association), COPA
(Canadian Owners and Pilots Association), and the energy departments of various
universities in Canada and the USA.
[151] In his oral evidence-in-chief, Mr. Chow was asked to describe his research:
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Q. So then, sir, you tell us in paragraph number 5, about the source of
that research, where you were getting information from; if you could just
tell us about that, please.
A. Certainly. Right offhand I can't remember all the organizations I've
contacted, but these are some of the main ones. The National Research
Council of Canada, they have a wind tunnel, and they agreed that wind
turbines would have an effect, but they also needed to be tasked with a
study.
I also contacted CanWEA, the Canadian Wind Energy Association, and it
didn't take me long to discover that they were completely on the side of
the wind developer, they were really a sounding board for the wind
developers. And then of course, since I'm a pilot and airplanes are
required to take skydivers up in the air, and COPA realizes the dangers
of these wind turbines. And various universities in Canada and in the
United States, from which I glean valuable information, that indeed there
would be effects of turbulence, that the effects of wind turbines are felt
for miles downwind of their location.
So this study and this research convinced me completely that wind
turbines are a safety hazard to the activities of drop zones and airports.
And I have had to defend my drop zone with every means that I had.
[152] Mr. Chow expresses his opinion that wind turbines T4 and T5 are huge
structures that will create unwanted turbulence that will affect the safety of both landing
parachutists and airplanes at the Skydive Site, and that they will add to the anxiety of
skydiving. He also maintains that having wind turbines in the proximity of the landing
area will present the additional risks of collision with the turbines during off-drop zone
landings and parachute collapse due to turbulence while landing at the drop zone. He
adds that these risks are especially worrisome as the parachutist may not have much
control over the possible outcome.
Mr. Crouch
[153] Mr. Crouch is the Director of Safety and Training of the United States Parachute
Association. In his evidence, he critiqued the Safety Study. Although he stated that it
appears to be a thorough report, he maintains the authors of the Safety Study do not
have an understanding of skydiving operations. He points out that, although the Study
states that there have been no previous accidents related to a skydiver hitting a wind
turbine, the report does not show any drop zones with wind turbines located in close
proximity. He states that he guesses that there are currently no skydiving centres with
this situation.
[154] Mr. Crouch also states that there are many accident reports in the United States
showing that the accidents caused by students running into objects surrounded by a
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clear area are due to target fixations. He expresses his view, therefore, that it cannot
be assumed that every skydiver will steer away from the turbine blades.
[155] Mr. Crouch further notes that the Study states that jumpers can increase the
activation altitude for the Altitude Activation Device for the main parachute. He
maintains, however, that no jumpers ever equip the main parachute with such devices.
He asserts that this is another example of the author of the Safety Study lacking the
technical knowledge to create an accurate report regarding skydiving operations.
[156] In his oral evidence-in-chief, Mr. Crouch discussed the safety risks which he
maintains are presented by wind turbines T4 and T5:
Some of the issues that we feel would occur, would be skydivers opening
in the upwind of the wind turbine at a lower altitude than desired, and
then having to negotiate flying around to the side of that wind turbine,
and then beginning with the turbines flying past it. Or an unconscious
jumper have an automatic activation deployed reserve where -- the
AADs are calibrated to deploy the reserve starting at about 750 feet.
When these type of deployments occur, the typical open reserve altitude
is less than 400 feet off the ground, usually about 350 feet, resulting in,
right at the -- that would be right at the altitude where the, where the
height of the wind blade is, and also very close in proximity to the
prominent spot where they're dropping jumpers. And so again, just these
type of issues combine to make a serious safety issue for the skydivers.
[157] In cross-examination, Mr. Crouch acknowledged that the activation altitude is
adjustable on some altitude activation devices. Regarding obstacle fixation, he testified:
Q. And so skydivers will fixate on like a barn, or a building, or a plane; is
that what you're referring to?
A. Correct. Also, they run into each other, people standing on the
ground, there's all sorts of situations where skydivers have just not
steered away from something.
Q. Right. And I believe you said that was human error, which is the way
I think you categorized it?
A. Correct.
[158] Mr. Crouch also responded to some questions respecting the United States
Parachute Associations safety requirements as set out in this Associations safety
manual with which its members must comply. He testified that the this manual defines
hazard as objects, trees, fences, telephone wires, located within a 3,000 square
metres (sq m) circle centred on the landing area. He confirmed that this Association
expects that drop zone operators in the United States would not have any telephone or
power lines, towers, buildings, highways, clusters of trees with this 3,000 sq m area.
Mr. Crouch pointed out this does not address the significantly higher wind turbines
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located 1.7 km from the landing area. However, he confirmed that the safety manual
does not address wind turbines, explaining that this is because nobody is placing wind
turbines near skydiving centres, where near would typically be a two-mile radius
around the airport. Mr. Crouch also confirmed that the United States Parachute
Association has done no study or research regarding the turbulence created by wind
turbines as a hazard.
Mr. Rosenvinge
[159] Mr. Rosenvinge served in the military for 21 years, during which time he became
qualified as both a military and sport parachutist, and as an instructor and a British
Parachute Association Instructor Examiner. He left the army in 1997 to become a full
time parachutist, and he currently runs an airfield and parachute drop zone, where he
utilizes the same types of planes used by Skydive.
[160] Mr. Rosenvinge explained that special hazards are obstacles that, should a
parachutist collide with them, would result in serious or fatal injury. He states that such
obstacles include power lines, fast flowing rivers, busy unrestricted roads, large wind
turbines, etc. He expressed his view that, under the British Parachute Association
Manual, wind turbines the size of T4 and T5 are a rotating special hazard, and that this
manual requires that the minimum distance from the dropzone for these types of wind
turbines is 2,400 m.
[161] Mr. Rosenvinge expressed his view that deployment of a parachute by an
automatic activation device at an industry standard height of 800 ft above the ground
would not allow the parachutist to avoid wind turbines the height of wind turbines T4 and
T5. He states:
Now the industry standard height for the opening of the reserve, is 800
feet above the ground. And the industry standard distance that it takes
for a reserve parachute to open, is in the order of 3 to 400 feet. So we're
looking at, if the AAD kicks in at 800 feet, yeah? The parachute isn't
going to be open and not yet slowing down, and the parachutist will not
have yet taken control of it until about 400 feet. It's going to take the
parachutist in the order of 100 to 200 feet to take control of the canopy
and, you know, if you have a wind turbine over 300 feet above the
ground, unfortunately in this sort of worse-case scenario where an AAD
activates reserve, the parachutist would have no opportunity to take
control of the reserve canopy and avoid an obstacle at that altitude
above the ground.
[162] In cross-examination, Mr. Rosenvinge testified respecting the British Civil
Aviation Authority which sets civil aviation standards in the United Kingdom, specifically
in regard to one of its published civil aviation policies dated January 2012, CAP 764,
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entitled CAA Policy and Guidelines on Wind Turbines (CAP 764). Chapter 3 s. 9.5 of
this policy states:
9.5 Wind turbines over 15 m high are considered a rotating special
hazard and as such if located within 1200 m of the PLA/DZ [planned
landing area/drop zone] centre, would likely result in restrictions being
placed upon any parachute activity with that DZ. [emphasis added]
[163] Mr. Rosenvinge testified that this policy governs skydiving. He indicates that he
provided initial advice for the writing of CAP 764, and would not now recommend
1,200 m. He states his opinion that the distance should be 2,400 m, and states his
belief that, at some point in the future, CAP 764 would be updated.
[164] In agreeing that the current set back set by CAP 764 is 1,200 m, Mr. Rosenvinge
also cautioned:
But youve got to look at their flying site in conjunction with a list of
aviation publications as well for a designated flying site. And it
recommends no obstacles above the mean elevation of the runway
within 2000 m.
[165] In cross-examination, Mr. Rosenvinge confirmed that where the setback
distances are not met, restrictions could be imposed on the operation of the drop zone.
He also explained that the British Parachute Associations requirement of a 2.4 km set
back distance, was developed prior to 1997. He further indicated that he thought the
development of this set back distance was based on the drift of a round, a modified
parachute.
Evidence Adduced by the Director
[166] The Director called two fact witnesses.
[167] The Director, Mr. Schroter, testified respecting the chronology of events in
processing the Approval Holders application for the REA, and to his understanding that
Transport Canada does not regulate skydiving activities.
[168] Alyssa Cates, a manager employed with the MOE, was asked to conduct a
jurisdictional review to determine what regulations, studies, policies, certifications or
other relevant requirements are in place in Canada and other jurisdictions related to
wind turbines and skydiving. The written memorandum produced in response to this
confirms that the other jurisdictions canvassed were Australia, New Zealand, and the
United States. In cross-examination, Ms. Cates confirmed that she did not do the
majority of the work in conducting the scan, and that CAP 764, is not included in the list
of document references to the jurisdictional review.
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Mr. Baumchen
[169] Mr. Baumchen is a professional engineer who owns a company that designs and
builds both certificated and non-certificated parachute equipment. He also has
experience as a skydiver, including test jumps for the development of parachute
equipment.
[170] Mr. Baumchen testified that he personally observed skydiving drops at Skydive
on August 10 and 11, 2013, which he said can be split into two types:
Jumps made by solo skydivers, which are jumps by skydivers with sufficient
experience to not need an instructor to accompany them during the jump.
Tandem jumps which are jumps with a tandem instructor and a tandem
student who is connected to the tandem instructor.
[171] Mr. Baumchen prepared a drawing showing the clearance of a solo skydiver as
they would pass over the wind turbines. Based on this diagram, he provides an
analysis, based on what he describes as simple geometry, which indicates that:
(a) A solo skydiver who opens his main parachute 1.5 miles from the dropzone at
an altitude of 2,500 ft will normally pass over the turbines with a clearance of
approximately 1,585 ft.
(b) A solo skydiver who opens his main parachute 2.0 miles from the dropzone at
an altitude of 2,500 ft will normally pass over the turbines with a clearance of
approximately 1,320 ft.
[172] He further notes that tandem skydiving operations, due to their opening the main
parachute at 4,000 ft above the ground, will clear the turbines at an even greater
distance. In cross-examination, Mr. Baumchen agreed the diagram he prepared shows
the entry to the landing circuit at 1,000 ft as being directly over what is labelled as the
centre of the parachute landing area. However, he acknowledged that the landing
circuit does not start directly over the air field.
[173] Mr. Baumchen expresses his opinion that the risk of collision is low, stating that
the ratio of ground area occupied by wind turbines T4 and T5 is probably less than
1/1000
th
of 1%. He notes that modern parachutes have a glide ratio of 3:1 depending
upon the make and model of the parachute canopy. He maintains that this provides the
skydiver with the ability to easily avoid the wind turbines. He expresses his view that
the probability of a skydiver hitting a wind turbine is so remote as to be non-
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consequential. He acknowledges, however, that it is possible, and suggests this
possibility can be mitigated by measures including:
Painting coloured stripes on wind turbine blades and cutting crop circles
around the base of each wind turbine to improve visibility of the turbines to
skydivers in the air; and
Automatically turning off the wind turbines whenever the wind is 15 degrees
or less, off a direct wind line from the wind turbines to the drop zone.
[174] In response to Mr. Rosenvinges evidence that the parachute landing area should
be bordered on at least three sides by suitable overshoot areas, Mr. Baumchen notes
that due to variation in wind directions, this would mean that all four sides of Skydives
parachute landing area require such overshoot areas, and he further states that this
situation does not exist at Skydive at this time.
[175] In response to Mr. Epps evidence that he would have collided with wind turbine
T5 had it been there, Mr. Baumchen asserts that Mr. Epps conclusion is, at best,
unverifiable. He explains that it simply cannot be known if collision would have
occurred, because the presence of T5 at that time would quite probably introduce a
variable that may have changed the location that Mr. Epp exited the plane.
Dr. Cox
[176] Dr. Coxs evidence is set out in the Risk Assessment Report. His evidence is
discussed in detail in the Tribunals findings, below. To avoid unnecessary repetition,
the Tribunal does not summarize his evidence here.
Mr. Kelly
[177] As noted earlier in this Decision, Mr. Kelly authored the Safety Study, which
indicates that he is the chief safety analyst along with two other safety analysts, both of
whom are pilots, who conducted this study. He states that two of these three analysts
have experience flying parachute jump planes.
[178] Paragraphs 13, 14, and 17 of his witness statement summarize his conclusions
based on the analysis set out in this Study. He states:
13. It is my opinion that skydivers will avoid colliding with the turbine
towers or blades because:
(a) the prevailing wind velocity (from the south and south-west) will
result in the SPOT (the ground location immediately below where
the skydivers leave the jump aircraft) being south or east of the
locations of T4 and T5;
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(b) when the winds are directly from the west, the SPOT will usually
be to the east of T4 and T5;
(c) on occasions of exceptionally strong winds from the west, when
the SPOT lies to the west of the turbines, the strong winds will
blow skydivers to the east of the turbines after their chutes
deploy;
(d) in the event of a chute malfunction coinciding on those few
occasions when strong westerly winds prevail, the skydiver will
be able to deploy his or her reserve chute, and avoid the turbines
(spaced almost kilometer apart) by turning into wind and
steering clear of the obstacle; and
(e) for those occasions when there are exceptionally strong winds
directly from the west, procedures could be introduced to restrict
novice skydivers from jumping.
14. It is my opinion that the risk of a novice jumper striking a turbine
could be effectively mitigated by:
(a) Restricting SPOT locations for novice jumpers; and
(b) Increasing the altitude for the activation of AAD equipment on
the primary chute so skydivers would have more time to detect
and respond to a malfunction.
16. It is my opinion that skydivers will seldom be exposed to turbine-
induced turbulent air, and the risks can be effectively mitigated because:
(a) Turbulent air will normally extend close to the ground in a north -
north east direction from the turbines, where skydivers will not
operate;
(b) The westerly winds which could cause turbulence in the vicinity
of the drop zone occur only 12% of the year, and most often in
January and April when there is very little skydiving;
(c) The westerly winds would need to be very strong and sustained
for long periods to be significant at a distance of 1.7 kilometers.
Even then, it is estimated that induced turbulence would be 1%
of the free flow air;
(d) Terrain, bushes, trees and buildings across the 1.7 kilometer
distance between the turbines and the drop zone would dissipate
the induced turbulence;
(e) Skydivers would employ normal procedures designed to mitigate
other sources of turbulence when operating close to the ground;
and
(f) A number of additional mitigating measures could be introduced
measures such as restricting novices from skydiving when
conditions of turbulent air exist; instituting minimum final-turn
altitudes for tandem and expert jumpers when air turbulence
might exist; installing air turbulence indicators to warn skydivers
of actual turbulent air conditions; and developing an alternate
drop zone to which skydivers can divert if they suspect air
turbulence near the primary landing zone.
17. For the reasons described in paragraphs 12 to 16, I have concluded
that the presence of turbines 4 and 5 of the proposed Wainfleet Wind
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Energy Project will not significantly increase safety-risks to the operation
of Skydive Burnaby.
[179] Mr. Kelly provided a fairly extensive response witness statement to address
evidence provided the Appellants witnesses. His responses include the following:
Regarding Mr. Chows evidence respecting obstacles to skydivers: Mr. Kelly
modelled the four dimensional profile of a jumpers descent, which includes
horizontal movement away from the turbines during descent. In this way he
was able to determine that under most wind conditions and operating
circumstances, skydivers would not be exposed to the turbines during the
jump, and would not be at risk of striking a turbine.
Regarding Mr. Eralps evidence that wake turbulence would blow east and
east-north-east: Mr. Kelly states that Mr. Eralps spot data confirms the Safety
Study analysis that, at jumper altitudes, winds are predominantly from the
south-south-west, and as the jumper descends, the winds generally blow from
this direction. Therefore, Mr. Kelly further states that, normally at altitudes of
600 ft above ground level and less, the winds will predominantly be from the
south-west and south-south-west and will blow the turbulent air to the north-
east and east-north-east, well north of where the skydivers will be operating
at that low altitude as they prepare to land in the parachute landing area.
Regarding Mr. Crouchs evidence that no jumper ever equips the main
parachute with an automatic activation device, and that this demonstrates that
Mr. Kelly, as the safety analyst, lacked technical knowledge of skydiving
operations, Mr. Kelly maintains that both these assertions are incorrect. He
states that he knew the general industry practice is to only equip the reserve
parachute with this device, and, although it is not common industry practice,
he is aware that Skydive Toronto equips its student parachutes with these
devices on both the main and reserve parachutes.
Regarding Mr. Rosenvinges evidence respecting the British Parachute
Associations safeguards for special hazards: Mr. Kelly notes that neither the
Canadian Sport Parachute Association nor United States Parachute
Association have introduced these measures.
Regarding Mr. Pitts evidence about the wind turbines as obstacles to
skydivers: Mr. Kelly notes that the altitude for parachute deployment could be
raised on the automatic activation device so that inexperienced skydivers
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53
would have extra time and elevation to deal with an emergency, and an
additional device could be installed on the main parachute as is the current
practice at Skydive Toronto.
Regarding Mr. Pitts list of errors which he asserts have been made in the
Safety Study, as they relate to skydivers, which have not been addressed
above:
Mr. Kelly asserts that the analysts conducting the study have the requisite
qualifications to do so.
Regarding the concern that incorrect wind data were employed, the
difference between surface winds and winds at altitude referenced by
Mr. Pitt, confirms the evidence provided by Mr. Kelly regarding how the
analysts calculated wind velocities at different altitudes.
Regarding the death of the skydiver who collided with a wind turbine,
Mr. Kelly states this is the only known death worldwide, when a 23 year
old parachutist on her first solo jump drifted into a turbine 4 km from the
drop zone. Mr. Kelly points out he did not rely on accident and incident
data to make his recommendations.
Regarding the concern that Mr. Kelly made incorrect assumptions about
the direction of departures from the aerodromes, Mr. Kelly asserts that his
assumption was based on operating the aircraft in accordance with best
safe practices, but, in any event, these departure directions lead aircraft
away from the locations of the proposed wind turbines.
Regarding the concern that Mr. Kelly had a total lack of knowledge of the
existing terrain, particularly tree lines, Mr. Kelly asserts that this is
incorrect, stating that he and the other analysts who worked with him were
well aware of the terrain and topographical features.
Regarding the assertion that Mr. Kelly had no understanding of the need
to commence jump procedures west of the airport, Mr. Kelly states the
Safety Study clearly indicates that it considered the determination of the
drop spot where parachutists exited the plane, relative to westerly winds.
Regarding Mr. Borgheses assertions of inadequacies in the Safety Study:
Mr. Kelly states that he did take account of the effects of wind on a
parachutists travel as described by Mr. Borghese.
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Mr. Kelly states that he gave considerable attention to novice jumpers, in
anticipating the errors they might make and the margins for error they
may require.
Mr. Kelly notes that Mr. Borghese has described the British Parachute
Association guidelines one time as a study and at other times as if they
are regulated requirements. Mr. Kelly states that he has not located any
studies that support the criteria, and these guidelines are clearly not a
study.
Mr. Kelly states that he considered the malfunctions or emergencies
described by Mr. Borghese.
[180] In cross-examination, Mr. Kelly stated that he is not aware of any skydive jump
sites in North America that are within 4 km of wind turbines. He agreed that he was not
aware of the experience of the people who jump at Skydive with regards to wind
turbines, and that there is no evidence that they have any such experience.
Submissions of the Appellants regarding Harm to Skydivers
[181] The Appellants submissions for the most part rely on the factual and opinion
evidence of their witnesses. As such the Tribunal does not repeat their submissions in
this regard in summarizing their submissions. In addition to the reliance on this
evidence, the Appellants also make the following submissions:
1. The Safety Study did not take into consideration the peculiar needs of
student skydivers, nor the need for safe jumping zones for these students.
While students receive instruction on how to safely avoid any obstacles they
may encounter, the critical portion of their training is the practical experience
of jumping in a safe zone with limited obstacles to interfere with safe
landings.
2. Placing large wind turbines in the predominant upwind side of the
aerodrome creates additional and unnecessary risks to skydivers and other
aircraft. Any number of parachute malfunction or inexperience could place
a skydiver in the vicinity of the wind turbines.
3. Mr. Brunskill has no expertise in skydiving, piloting or parachuting. The
results of the study provide no useful information and cannot be relied on or
given any weight in the determination of whether the Project, operating in
accordance with the REA, will cause serious harm to human health.
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4. A turbulence model that fails to demonstrate the influence of ground
structures and wind speed on turbulence intensity can be of no relevance to
the question of whether the wake turbulence of wind turbines will cause
serious harm to human health, in this case to parachutists. Both ground
structures and wind speed are well known sources of great turbulence
which pose life threatening hazards to all skydivers. The WindFarmer
model employed by Mr. Brunskill provides no information regarding either
and is, therefore, of no value to this hearing.
5. In gathering information for his witness statement and testimony, Mr.
Baumchen only personally observed skydivers jump over the course for less
than two days, he chose not to use any instruments or data to
determine/measure wind direction, wind speed or cloud ceiling, nor did he
use any instruments in his determination of the location of jumps, in
determining the altitude at which parachutes were opened, and in
determining the altitude at which skydivers would pass over the wind
turbines.
6. Mr. Baumchen used this unsubstantiated and flawed data for the basis of
his opinion that the wind turbines would not pose a credible risk to
skydivers. Specifically, in his opinion, the incremental risk of collision with a
wind turbine is 1,000 of 1%. He did not outline the basis of how he
determined the likelihood of this risk. His evidence does not meet the
standard of that of an expert.
7. Dr. Cox is an expert in risk assessment. He is not an expert in turbulence or
skydiving. Dr. Coxs risk assessment does not provide any useful
information and should not be relied on. This is primarily because he based
his assessment entirely on the facts provided by Mr. Baumchen and Mr.
Warner. Mr. Baumchens evidence is incomplete and unreliable, and Mr.
Warner did not appear as a witness.
8. Mr. Kelly is as an expert in aviation safety-risk management, not in
skydiving or piloting. His opinions are erroneous and not supported by the
data.
9. The Safety Study makes it clear, and Mr. Kelly confirmed, that the effects of
wind turbines on aviation and in particular skydiving operations have not
been fully studied. Consequently, there is little information on air turbulence
Pitt v. Director,

56
downstream of turbine blades, and that which exists is sometimes
contradictory.
10. Mr. Kelly confirmed that he is aware of only one drop zone located within 4
km of proposed wind turbines (other than Skydive Burnaby) and that no
drop zones currently exist within 4 km of industrial wind turbines and that
there is no evidence to suggest that skydivers at Skydive Burnaby would
have any experience skydiving within 4 km of an industrial wind turbines.
11. The approval of the REA was based on the assumption that there would be
no serious harm to human health if the wind turbines were erected 1.5 km
away from Skydive Burnaby. This assumption was based on an erroneous
reading of the Canadian Aviation Rules and an unreliable jurisdictional
review.
12. The jurisdictional review conducted by the MOE failed to mention that no
studies had been conducted or policies developed by the Canadian Sport
Parachuting Association regarding minimum setbacks of industrial wind
turbines from parachute landing zones.
13. Altitude constraints, obstacle restrictions and minimum setback distances
have been established by Transport Canada for non-radar controlled
aerodromes (of which Skydive Burnaby is one) in built-up areas.
14. The facts of this case clearly demonstrate a causal link between engaging in
the Project and serious harm to human health. For example, it was Mr.
Epps evidence that in August 2009, he faced a parachute malfunction and
landed precisely where the Project will be located. He suffered serious
injuries from this experience, and had wind turbines been present at the
time, his fall would likely have been fatal.
15. It is the collective view of the Appellants witnesses that wind turbines T4
and T5 pose a very real and serious threat to pilots and parachutists.
According to Mr. Pitt, it is not a question of if serious harm will occur but
when. Therefore, this appeal is not based on hypotheticals but what will
undoubtedly occur if the Project proceeds.
16. The Tribunal should clearly prefer the evidence given by the Appellants
witnesses over those of the Director and the Approval Holders witnesses.
The Appellants witnesses are certified as experts in parachuting, including
skydiving, and therefore have substantial knowledge of the risks involved
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57
with the sport. In contrast, both the Director and the Approval Holders
witnesses provided either irrelevant, inaccurate and/or unfounded evidence,
much of which should be given little if any weight.
17. It is not only advisable, but essential, for the Tribunal to consider and apply
the existing guidelines regarding setback distances, altitude constraints and
obstacle restrictions offered by Transport Canada, the British Parachute
Association and the Appellants experts. The technical guidelines are
designed and endorsed by specialized bodies furnished with the relevant
expertise. Given that there is, at present, a statutory vacuum in Canada vis-
-vis minimum setbacks and height/obstacle restrictions in the context of
skydiving facilities and wind farms, guidance from these authorities must
have persuasive value.
18. Dr. Cox assumes that statistics for Skydive Burnaby are going to be the
same as the statistics provided by the United States Parachuting
Association.
Dr. Cox admits that, at the time, this was the only statistical data he had.
He also acknowledges that this data is only for fatal accidents. Dr. Cox was
not qualified and has no expertise in parachuting.
19. Dr. Cox assumes that statistics for fatal parachuting accidents will be the
same as for serious accidents. Again, Dr. Cox has no expertise allowing
him to reach such a conclusion. This opinion is outside the scope of his
expertise.
20. Dr. Cox assumes that only accidents that involve parachutists landing out,
and indeed only landing out far (which is not defined) from the parachute
landing area, are relevant to the analysis of risk. Here too, Dr. Cox has no
expertise that allows him to offer such an opinion.
21. If a properly qualified expert still wishes to attempt an analysis on very thin
or marginal data, at minimum, it is expected that a range of data and in turn
statistical conclusions will be provided. Dr. Cox expresses most if not all of
his opinions as complete absolutes.
22. Although Mr. Rosenvinge testified that when people commonly land off site
because they are not doing what they should Dr. Cox fails to acknowledge
that landing out and collisions occur for reasons unrelated to the reasons on
which Cox bases his analysis. His risk assessment ignores the evidence.
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Therefore, it is abundantly clear that human and not mechanical error is
central to any analysis of risk concerning parachuting, land outs and
collisions. However, Dr. Cox does not assess human error anywhere in any
of his reports.
23. Mr. Pitt testified that jump runs are specifically made with the intention of
returning the jumpers on each run as directly as possible to the parachute
landing area. Similar evidence was provided by Mr. Eralp as part of his
testimony regarding the use of his spot calculator to accurately predict
where jump runs should be centred. Dr. Cox has also chosen to ignore this
evidence, and instead to treat the risk for every jumper on every run as
being equally distributed across a very large land area, much of which
would never be reached on any specific jump run.
24. Dr. Cox has gone on to predict which portions of this large land area are
suitable for parachutists to utilize for land outs. Again, Dr. Cox has no
expertise in this area. He has not relied on anyone with such expertise.
This is a further example of an expert stepping well outside the area for
which he has any qualifications.
25. In order to calculate the actual area affected by wind turbines T4 or T5
and/or their wake, Dr. Cox has relied on the calculations of Mr. Brunskill. As
confirmed in the Safety Study, the maximum wind speed conditions in which
parachutists will skydive ranges from 15 mph for students to 25 mph to
experienced parachutists. This confirms that parachuting activities must
completely cease at speeds Mr. Brunskill says will cause virtually
imperceptible increases to turbulence affecting a wind turbines operation.
26. Alternatively, there are certain activities for which sufficient information is
not available, either because the expert failed to obtain it, or because it
does not exist. Not every activity can be adequately and effectively
assessed, particularly when the consequence of relying on the assessment
involves serious accident(s) and/or the direct and immediate loss of human
life.
Submissions of the Director regarding Harm to Skydivers
[182] In addition to reviewing the evidence adduced at the hearing, the Director makes
the following submissions:
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1. The serious harm alleged by the Appellants needs to be assessed in the
context of the high risk activity that the skydivers are engaged in. The
appropriate analysis is to determine the incremental serious harm caused
by wind turbines T4 and T5 operating in accordance with the REA.
2. On the issue of collision with the turbines, the evidence of the Appellants
has merely raised the possibility of aircraft that have lost power or skydivers
who are already in distress because of injury or parachute malfunction
colliding with turbines T4 and T5. They have not adduced any evidence
about the incremental risk due to the presence of the turbines or evidence
that a collision will occur.
3. On the issue of turbulence, the Appellants did not adduce any evidence
about the incremental turbulence generated by the turbines, the impact of
this incremental turbulence on a parachute and whether and how this
impact will cause serious injury. Instead, the Appellants witnesses
expressed general concerns about aerodynamic stall and change in wind
speed or made bald allegations that the turbulence from the turbines will
cause a parachute to collapse resulting in death.
4. In contrast, the Instrument Holder called two risk assessment experts who
conducted a methodical analysis of the incremental risks associated with
turbines T4 and T5 and concluded that there is no additional risk to aircrafts
and that the incremental risk to skydivers is less than one one-thousandth of
one percent. This incredibly low incremental risk will not occur commonly
enough to lead to the conclusion that serious harm to human health from
such risks will occur as a result of turbines 4 and 5.
5. In Lewis v. Ontario (Ministry of the Environment), [2013] O.E.R.T.D. No. 70
(Lewis) the Tribunal gave specific guidance that in order for an experts
opinion to be helpful to the Tribunal, expert witnesses must provide an
adequate pathway for their conclusion, whatever it may be. The Tribunal
held that as a general rule, less weight is given to an expert opinion that
fails to set out the specific pathways used in reaching a conclusion in terms
of data, assumptions and analyses, etc. This approach is reinforced in the
Practice Direction for Technical and Opinion Evidence which states that an
expert witness should state all the material facts and assumptions upon
which his or her opinion is based and should provide enough information
on the assumptions made, procedure used and conclusions drawn. In
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60
Ostrander Point GP v. Prince Edward County Field Naturalists, 2014 ONSC
974, the Ontario Divisional Court reiterated that it is up to the Tribunal to
determine what weight to give to expert evidence and an experts
conclusion which is not appropriately explained and supported may properly
be given no weight at all.
6. Mr. Pitt was of the opinion that if turbines T4 and T5 were constructed in
their proposed location, the minimum altitude requirements in the Canadian
Air Regulations could not be complied with. This is not accurate. These
regulations require that an aircraft be operated at a distance greater than
500 ft from any structure (except in the case of a built up area or open air
assembly of persons). Mr. Pitt testified that the aircraft will be over 500 ft
above the turbines during the climbing and landing circuit.
7. In the opinion of Mr. Pitt, when skydivers land out of the landing zone, they
will have to deal with turbulence from the turbines which will result in the
collapse of the parachute and death of the skydivers. First, Mr. Pitt was not
qualified to give opinion evidence about the turbulence generated by wind
turbines. Second, Mr. Pitt did not provide any evidence to support the bald
assertion that the turbulence will result in the collapse of the parachute.
8. In expressing their opinions, Messrs. Pitt, Chow, Crouch, and to some
extent, Messrs. Rosenvinge, and Eralp did not provide the material facts,
assumptions and analyses on which their opinions regarding serious harm,
aircraft collision with turbines, skydiver collision with turbines, and impact of
turbine turbulence on skydivers, were based.
9. Mr. Epps assertion that he would have collided with the turbine is mere
speculation, unsupported by any evidence and is of no assistance to the
Tribunal.
10. In order to discharge their onus to prove that the turbine-induced turbulence
will cause serious harm to human health, the Appellants would have had to
adduce expert evidence in the following three areas:
Incremental turbulence: What is required is an analysis of the
turbulence caused by turbines T4 and T5 and how it compares with
ambient turbulence. The Appellants did not adduce any such
evidence. Instead, Mr. Eralp relied on an internet paper summarizing
the turbulence generated by turbines in an unrelated project whose
Pitt v. Director,

61
author was not a witness in this proceeding and could not be cross-
examined.
Impact of incremental turbulence on parachute: What is required is an
analysis of how the incremental turbulence generated by turbines T4
and T5 impacts the performance of a parachute. For example, the
drop in velocity of x due to the turbine causes the parachute to do y.
The Appellants did not adduce any such evidence. Mr. Eralp
expressed general concerns about aerodynamic stall and changes in
wind speed but did not link them back to the incremental turbulence
generated by wind turbines T4 and T5.
Whether and how the impact of the incremental turbulence on the
parachute will cause serious injury: What is required is an analysis of
whether and how the skydiver can adjust for the impact of turbulence
on the parachute and how likely he/she is to be successful in
maintaining control. The Appellants did not adduce any such
evidence. Mr. Eralp made the bald allegation that the impact is likely
not recoverable and will likely result in injury.
11. The Appellants must prove on a balance of probabilities that harm will
occur, rather than that it may occur. Evidence that only raises the potential
for harm does not meet this onus of proof. In support of this position, the
Director cites Monture v Ontario (Ministry of the Environment), [2012]
O.E.R.T.D. No 69, para. 31.
12. The Appellants have failed to discharge their onus of proving causation. At
best, their witnesses raised concerns about the presence of these two
additional obstacles in the skydiving landscape to be avoided when an
aircraft or skydiver experiences a malfunction and the potential impact of
their wake on parachute performance. The Appellants provided no analysis
of the incremental risks resulting from wind turbines T4 and T5 or any
statistical analysis of the likelihood of their concerns materializing at
Skydive.
13. In contrast, the Instrument Holder called two risk assessment experts who
analyzed the incremental risks associated with wind turbines T4 and T5 and
concluded that there is no additional risk to aircraft and that the incremental
risk to skydivers is less than one one-thousandth of one percent. This
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incredibly low incremental risk will not occur commonly enough to lead to
the conclusion that serious harm to human health from such risks will occur
as a result of wind turbines T4 and T5.
14. Regarding Transport Canada Regulations, there is no evidence on the
record that Skydive Burnaby is in a built-up area. On the contrary,
according to Mr. Kelly, the limitation on altitude clearances over built-up
areas does not apply to this particular air space. The evidence regarding
Transport Canadas regulatory requirements is as follows: a. Skydive
Burnaby is a registered aerodrome and not a certified airport and as a result
there are no applicable Transport Canada Standards for siting obstacles
around it. It is up to pilots planning to take-off or land at Port Colborne
aerodrome to make themselves aware of the aerodrome conditions
including obstacles located in the vicinity. Transport Canada requires pilots
flying under Visual Flight Rules to fly a minimum of 500 ft from any structure
(except when flying over a built-up area or an open-air assembly of
persons). Transport Canada does not regulate skydiving activities.
15. There was no evidence adduced at the hearing of a legislated setback
between turbines and aerodromes/skydiving operations in any jurisdiction.
16. During his testimony, Mr. Rosenvinge confirmed that the British Parachute
Association Operations Manual includes a number of setbacks (e.g. 800 m
from electricity power lines), and where the setback distances are not met,
restrictions could be imposed on the operation of the drop zone. In cross
examination, Mr. Pitt acknowledged that Skydive does not meet the setback
requirements from power lines found in this Manual.
Submissions of the Approval Holder regarding Harm to Skydivers
[183] As with the Appellants and the Director, the Approval Holders submissions
include an extensive review of the evidence adduced at the hearing. The Tribunal also
notes that there is a significant amount of commonality with the Directors submissions.
To avoid repetition, the Tribunal has summarized the submissions of the Approval
Holder which further expand on the Directors submissions:
1. Not a single witness called by the Appellants undertook independent site-
specific analyses of this Project. There was no evidence from their
witnesses regarding: a) the ambient turbulence; b) the incremental
turbulence; c) the description of the wake; d) the intensity of the turbulence
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63
in the wake; e) the amount of turbulence required to cause an issue for a
plane; and f) the amount of turbulence required to cause an issue for a
skydiver.
2. Mitigation can reduce or eliminate even the perceived risks. For example,
the Appellants acknowledge the point of exiting the plane is not a point but
rather a circle with a radius of 0.5 miles. A slight alteration of the exit point
from the plane would remove the potential for skydivers to interact with the
turbines or the turbine wake. This simple mitigation strategy proposed by
Mr. Baumchen was never challenged or even commented upon by the
Appellants.
3. Of note, the Appellants offered no direct evidence on frequency of human
errors, equipment malfunctions, controlled/uncontrolled off-landings, injuries
or the geographic location of such. Dr. Cox provided detailed information in
this regard which was properly sourced. As such, the Approval Holders
evidence is to be preferred.
4. The evidence demonstrates the Canadian Sport Parachute Association and
the United States Parachuting Association do not currently treat turbines
differently than any other obstacles and their voluntary obstacle setback
distances (in Canada: 100 m, and in the United States: 3,000 sq. m area
free of obstacles). Both these set back distances are a small fraction of the
1,700 metre distance between Skydive Burnaby and wind turbines T4 and
T5.
Findings Regarding Harm to Skydivers
Legislative Regime
[184] In Erickson v. Ontario (Director, Ministry of Environment) (2011), 61 C.E.L.R. (3d)
1 (Erickson) at para. 629, the Tribunal stated:
The Tribunal is to determine whether specified harms will be caused
according to the applicable legal standard, which is a balance of
probabilities. That standard is not the exact same standard used by
scientists, statisticians or medical experts. The Tribunal will take its
direction on determining whether the Appellants have proven that harm
will be caused according to the legal concepts of proof and causation. In
doing so, it will assess the scientific evidence and consider which
approaches to causation and proof were used in that evidence.
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[185] It is not disputed that the nature of the serious harm to be considered in this case
includes fatality. The Appellants assert that the Tribunal should consider the severity of
the serious harm when assessing whether they have established that the will cause
component of the Health Test has been met. In other words, the standard of proof may
be less stringent where the consequences of harm are so severe. The Tribunal does
not accept this submission. The Tribunal finds that there is nothing in the wording of the
Health Test to support such an interpretation. As used in the Health Test, serious
harm is broad in scope, and, consequently, includes fatality. The standard of causation
specified in the Health Test, i.e., will cause is also clear and unequivocal.
[186] The Appellants maintain that it is inexcusable to place an industrial wind turbine
project near a skydiving operation, where skydive operations will take place over the
Project Site. They maintain that it is unsafe to do so, as any risk that serious harm will
occur is unacceptable, emphatically so because the serious harm includes fatality.
They maintain that the preservation of life and limb necessitates that appropriate checks
be put in place and, in this case, such checks are grossly deficient. In other words,
even if the level of harm falls short of satisfying the will cause requirement of the
Health Test, they maintain that prudent safety considerations nonetheless require that a
wind turbine project should not be situated in close proximity to a skydive operation. In
this regard they rely on the guidance of the British Parachute Association that no
skydiving should occur within 2.4 km of any wind turbine that is greater than 15 m tall.
[187] Under s. 145.2.1 of the EPA, the Tribunals jurisdiction when reviewing the
Directors decision, includes altering the decision, and for that purpose, the Tribunal
may substitute its opinion for that of the Director. Therefore, when exercising this
jurisdiction, the Tribunal may also consider such safety measures. However, s. 47(4)
also expressly provides that the Tribunal cannot proceed to exercise this jurisdiction
unless the Tribunal first finds that the Health Test has been met. Consequently, the
primary issue in this case is whether the Health Test has been met. As confirmed
below, the Tribunal finds that it has not. Consequently, in this case, the Tribunal does
not have jurisdiction to consider such safety measures in the context of reviewing the
Directors decision to approve the REA.
[188] The Tribunal finally turns to the issue of the relevance of the probability analysis
which Dr. Cox has included his risk assessment. The test is whether engaging in the
Project, in accordance with the REA, will cause serious harm to human health. As
serious harm from a collision is not in dispute, the issue that the Tribunal must address
in this case is the likelihood that such harm will occur. As noted above, the standard of
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65
proof is on a balance of probabilities. By its very definition, assessment of probability is
central to the analysis of causation in this case. More specifically, the Appellants must
demonstrate that it is more likely than not that serious harm will occur.
HOW SERIOUS HARM WILL OCCUR
(i) Collision
[189] Under normal operating circumstances, i.e., absent any parachute malfunction or
skydiver incapacity to operate the parachute safely, the evidence does not indicate that
skydivers will collide with wind turbines T4 and T5. The evidence is clear that there are
westerly winds in the area which require that skydive jumps will occur west of the
turbines, and, therefore, the flight path for a jump may cross over the wind turbines.
However, the evidence is also clear that, when planning the descent flight path, the
parachute glide ratio and prevailing atmospheric conditions are used to determine the
drop point, so that the parachutist can safely glide back to the landing area. Although
the Appellants maintain that the flight path as currently calculated by Skydive would
bring a parachutist within 300 ft of these wind turbines, Mr. Pitt has testified that a
skydiver would not fly into them under normal conditions. The Tribunal notes that the
skydiver can navigate the parachute, and there is no evidence to suggest that a
skydiver would be unable to navigate around them. Furthermore, to the extent that the
current flight plan altitude places a skydiver 300 ft above the top of the wind turbine, and
to the extent that such proximity presents a risk that collision could occur, the evidence
is clear that the drop point can be adjusted to increase the altitude. Based on this
evidence, the Tribunal finds that, under normal operating conditions, wind turbines T4
and T5 do not present a collision risk to skydivers.
[190] The evidence indicates that there are three abnormal circumstances which could
give rise to a collision. The first is obstacle fixation, a condition where a skydiver fixates
on an obstacle, and due to panic, no longer attends to navigating the parachute. The
undisputed evidence of Mr. Borghese is that both student and experienced skydivers
may experience this condition, in landing both on and off the parachute landing area.
The Tribunal has considered that the normal flight path would place the skydiver above
the turbines, so there would be no potential for obstacle fixation in these circumstances.
However, there is the possibility that a skydiver, in the course of navigating the
parachute in the earlier part of the flight, may have descended lower than the planned
flight path. Under normal conditions, as noted above, the skydiver would simply
navigate around the wind turbine. However, if obstacle fixation occurred, a collision
would be possible.
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[191] The Approval Holder submits that obstacle fixation is not a risk caused by wind
turbines, because it is a human condition. The Tribunal does not accept this
submission. It is not disputed that wind turbines are obstacles which can cause
obstacle fixation, and the mechanism whereby harm will be caused is the skydivers
consequent inability to navigate the parachute to avoid collision.
[192] However, it is also not disputed that, because obstacle fixation is a human
condition, it can be ameliorated by training. The evidence indicates that obstacle
fixation occurs in respect of other types of obstacles, including other skydivers, and that
skydiver training includes training to make students aware of this human dynamic.
Mr. Borghese has acknowledged that this training would include making them aware of
the wind turbines if they were erected.
[193] The Tribunal received no evidence to suggest that the nature of obstacle fixation
in respect of a wind turbine would be different than fixation respecting other obstacles.
The Appellants did not provide any evidence regarding the rate of incidence of obstacle
fixation. In response to a question from the Appellants counsel, Mr. Borghese only
stated that it would not be as low as 1 in 10,000, and that it does not happen very often
with students because it is not often that students landing off drop zone. Certainly,
there is no evidence to confirm that the rate of occurrence is frequent. As noted above,
the evidence does indicate that this condition is managed through training, which does
also does not suggest that the incidence rate would be high. Based on this limited
evidence, the Tribunal can only conclude that the rate of incidence appears to be low.
Consequently, there is insufficient evidence to suggest that the incidence of obstacle
fixation is such that it would appreciably increase the probability of contact with wind
turbines or their turbulent wake, beyond the probability that has already been attributed
to parachute failure.
[194] The second abnormal circumstance is mechanical parachute failure. It is not
disputed that a collision is possible if: (i) the main parachute failure does not allow
navigational control, and the skydiver elects not to use the reserve parachute; or (ii) the
reserve parachute has been deployed but fails and does not allow navigational control.
[195] The third abnormal circumstance is where a skydiver becomes physically
incapacitated (unconscious, severely weakened, or injured) such that the skydiver is
unable to navigate the parachute. The second and third abnormal circumstances can
be linked to some degree. If a skydiver becomes incapacitated and unable to deploy
the main parachute, then the automatic activation device will deploy the reserve
parachute. The reserve parachute may be functioning properly, but the skydiver is
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67
physically incapable of navigating it. The Appellants also did not adduce any evidence
respecting the specific incidence of skydiver physical incapacitation. Consequently,
there is insufficient evidence to suggest that the incidence of such incapacitation is such
that it would appreciably increase the probability of contact with wind turbines or their
turbulent wake, beyond the probability that has already been attributed to parachute
failure.
[196] The Appellants did not adduce any evidence regarding the specific incidence of
parachute failure, although it is not disputed that mechanical failure of the reserve
parachute is unlikely, because these parachutes are reliable. It has been noted that this
is to be expected, as the function of the reserve parachute is to act as a back-up safety
mechanism in case of a main parachute failure. Dr. Cox has provided a probability
analysis which makes assumptions regarding these incidence rates, which are
discussed below.
(ii) Turbulence
[197] As described earlier in this Decision, wind turbulence is caused by disruption in
ambient wind speed and direction. It can occur naturally, due to atmospheric
conditions, or as air flow around objects. The effects produced are to create vortices
(described as rotational or spinning pockets of air) and to reduce wind speed.
[198] There is no dispute that parachutes are impacted by wind turbulence, and,
because they are a flexible nylon wing, they are more susceptible to such impact than
airplanes, which have rigid wings. Airplanes also can utilize engine thrust to navigate
through wind turbulence, whereas parachutes cannot. It is not disputed that wind
turbulence of sufficient intensity may cause a parachute collapse causing the skydiver
to free fall. It may also cause a segment of the parachute to collapse, which could
cause the parachutist to go into a downward spin, thereby impairing the skydivers
ability to navigate the parachute.
[199] The Tribunal has noted that, under normal conditions, skydivers can navigate
their parachutes to avoid colliding with the wind turbines. It is not disputed that
turbulence is not visible, other than Mr. Eralps description that it would, from the
ground, look like gusty weather. However, the evidence does not indicate that, under
normal circumstances, a skydiver would be unable to navigate the parachute to avoid
the area where the wake turbulence will be, and the analysis provided by both Mr. Eralp
and Mr. Kelly indicates that the location of turbulence wake can be identified.
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68
[200] Consequently, under normal conditions, a skydivers flight path may potentially
intersect the turbulence wake only upon the final descent to the parachute landing area.
If it does, the evidence is not entirely clear as to the precise height at which the
intersection would occur as the parachutist follows the flight pattern to descend to the
ground.
[201] The Tribunal has not relied on Mr. Kellys evidence that:
The westerly winds which could cause turbulence in the vicinity of the drop
zone occur only 12% of the year, and most often in January and April when
there is very little skydiving; and
Turbulent air will normally extend close to the ground in a north-north-east
direction from the turbines, where skydivers will not operate.
[202] While the Tribunal is prepared to accept that this evidence is correct, it does not
indicate that there will never be wind conditions where a parachutist during descent may
be exposed to wind turbulence generated by wind turbines T4 or T5. As such
conditions may exist, the Health Test requires that the Tribunal consider the impact of
such turbulence, even though such conditions may not commonly occur.
[203] The Appellants experts have described the impact of wind turbulence on a
parachute, which Mr. Borghese has categorized as light, moderate, and heavy,
associated with wind speeds of 10, 15 to 20, and above 20 mph, respectively. In his
evidence, he also describes the impact on a parachute of light and moderate
turbulence, neither of which indicates that a skydiver would lose navigational control.
[204] Mr. Eralp confirmed that students do not jump if the wind speed is in excess of
15 mph. Although more experienced skydivers may be able to manage wind speeds
exceeding 15 mph, Mr. Borghese confirmed that Skydives ground wind limitations on
skydiving for the highest proficiency skydiver license is 25 mph.
[205] As noted earlier in this Decision, the Turbulence Analysis Report provides an
analysis of the percentage increase in ambient turbulence that would be caused by wind
turbine T4 or T5 based on wind speeds ranging from 3 m/s (6.7 mph) to 11 m/s
(24.6 mph). As noted earlier in this Decision, in each case, the model indicates that
percentage increase of the wake on the Skydive Site is 1% or less for wind speeds in
this range.
[206] The Tribunal received no evidence to suggest that a 1% or less increase in
ambient turbulence would appreciably change the impact that the ambient turbulence
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would have on a skydivers ability to navigate his/her parachute. It is not disputed that
skydivers are exposed to, and can manage, wind turbulence as described by
Mr. Borghese. Mr. Borghese also confirmed that the target landing area can be
adjusted so as to avoid turbulence. Mr. Kellys undisputed evidence is that terrain,
bushes, trees and buildings across the 1.7 km distance between the turbines and the
drop zone would dissipate induced turbulence.
[207] The Tribunal finds that the evidence does not establish that wind turbulence
generated by wind turbines T4 and T5 will impair a parachutists ability to navigate the
parachute, when descending, to such a degree that the parachutist will not be able to
land safely.
[208] In summary, the Tribunal finds that the evidence does not establish that
skydivers, under normal conditions, will be unable to navigate their parachutes around
the wind turbines or to avoid turbulence generated by wind turbines T4 and T5 both off
the Skydive Site and during parachute descent on the Skydive Site.
[209] The Tribunal now considers the potential impact in abnormal conditions, i.e., if a
skydiver has lost directional control of the parachute due to mechanical failure of the
parachute, or because the skydiver has become physically incapable of navigating the
parachute. The Tribunal first considers the potential impact if such abnormal conditions
occur in circumstances where the parachutist is in final descent on the Skydive Site.
The Tribunal notes that the evidence does not specifically address this scenario. The
Tribunal again notes that it received no evidence to suggest that a 1% or less increase
in ambient turbulence would appreciably change the impact that the ambient turbulence
would have on a skydivers ability to navigate his/her parachute. Consequently, while a
skydiver may, under emergency conditions, encounter and be impacted by wind
turbulence when descending on the Skydive Site, the Tribunal finds that it cannot be
said that any impacts that parachutist will experience as a result of turbulence can
reasonably be attributed to the small increase in intensity caused by the wind turbines.
There is no evidence to indicate that a change of 1% or less will change the outcome for
the skydiver in such circumstances.
[210] The remaining scenario to be considered is the impact of landing off-site in
abnormal circumstances. Again, the Tribunal has received no evidence specifically
analyzing the impact of the predicted increases in ambient wind turbulence caused by
wind turbines T4 and T5, which are in the range of 1% to 6%. As noted earlier the
Turbulence Analysis Report, indicates that the highest percentage increase in this range
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will persist at least 500 m from the turbine, and may extend, albeit at declining rates for
approximately another 500 m before it is reduced to 1% or less.
[211] The Appellants maintain that the impact of turbulence in the turbulence wake
near the wind turbines will result in either complete collapse of the parachute, or a
partial collapse which would impair its function so severely that serious injury would
occur. Dr. Cox, in his risk assessment, assumes that such serious harm could occur in
the turbulence wake up to a distance of 500 m from the turbine blades. As he testified
on behalf of the Approval Holder, and his evidence is not disputed by the Director, the
Tribunal is prepared to assume, for purposes of the risk analysis discussed below, that
such serious harm could occur in this 500 m range. As the Tribunal has noted earlier,
the increased percentage of turbulence continues for a further 500 m, albeit in the lower
range of percentage increases. For purposes of the risk analysis, the Tribunal is also
prepared to assume that serious harm could occur in this additional 500 m section of
the turbulence wake.
[212] Dr. Cox conducted a complete risk assessment, as indicated in the Risk
Assessment Report, which analyzed Skydives operations. In his analysis, Dr. Cox has
concluded, as has the Tribunal, that the risk that serious harm will occur relates only to
parachute failure/skydiver incapacity as described above.
[213] In the following sections, the Tribunal will review the evidence respecting the
probability that serious harm will occur, as required by the Health Test.
PROBABILITY THAT SERIOUS HARM WILL OCCUR
Overview
[214] In terms of mathematical statistics, the probability of an event ranges from 0
(absolute certainty that an event will not occur) to 1 (absolute certainty the event will
occur). This range is sometimes expressed as a percentage, i.e., 0% to 100%.
[215] It is not contested that a skydiver will suffer a fatality or serious injury if the
skydiver:
Collides with a wind turbine;
The skydivers parachute fully collapses at an altitude where free fall to the
ground will cause fatality or serious injury;
The skydivers chute partially collapses, and impairs the skydivers ability to
navigate the parachute, such that the skydiver is unable to avoid obstacles, or
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descends at an accelerated rate that will cause fatality or serious injury upon
reaching the ground.
For ease of reference, the Tribunal refers to these circumstances as emergency
conditions.
[216] As it is certain that the serious harm (which includes fatality) will occur, the
probability is 100%. However, this is just the probability of the outcome of parachute
failure/incapacity. For such serious harm to occur, it also necessary to factor in the
probability that mechanical parachute failure or physical incapacity will occur. It is, then,
also necessary to factor in the probability that the skydiver will be near the turbines or
their turbulence wake at the time such failure/incapacity occurs. These probabilities,
when considered together (mathematically, they are multiplied), represent the
probability that an injury will occur on any individual jump (individual jump probability).
[217] Each skydive is an individual event in which serious harm may occur. The
evidence does not indicate that if a parachute failure or incapacity occurs on one jump,
this will increase the probability that parachute failure/incapacity will occur on
subsequent jumps. In terms of probability analysis, the Tribunal accepts that each
event is independent, and the individual jump probability remains constant for all jumps.
[218] Although the individual jump probability may be very low, there are numerous
skydive jumps that take place at Skydive each year. Therefore, it is necessary to
consider the total number of jumps that will take place over the year lifespan of the
Project. In order to satisfy the Health Test, the Tribunal must consider the probability
that, for this total number of jumps, one or more serious injuries or fatalities will occur.
Lifespan of the Project
[219] The REA does expressly include a termination date. Regarding this matter, the
parties, at the Tribunals request, provided an agreed statement of facts which indicates
that power will be produced by Project for 20 years, and the turbines approximate life
cycle is 25 years. Based on these agreed facts, the Tribunal accepts that, for purposes
of this analysis, it is appropriate to consider that the lifespan of the Project under the
REA is 20 years.
Number of Skydive Jumps
[220] It is not disputed that Skydive conducts 10,000 skydive jumps annually.
Therefore, over the lifespan of the Project, the total number of jumps would be 200,000.

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Probability the Skydiver will be Near the Turbines or Their Turbulence Wake
[221] As the analysis in Dr. Coxs Risk Assessment Report indicates, there are three
components to be considered. The first is the probability that a skydive jump will take
place from a drop that is on the westerly side of wind turbines T4 and T5. Based on
Mr. Eralps evidence the number of such ranges from 21% to 45% of all the jumps
conducted by Skydive each year depending on the spread of the turbulence wake.
Therefore a probability analysis could either assume the probability is 21%, an
assumption which favours the position of the Approval Holder, or the higher probability
of 45%, (or 0.45) which favours the position of the Appellants. In his analysis, Dr. Coxs
assigns 50% as this probability.
[222] The second component is the probability of landing out, which Dr. Cox calculates
as 0.003, based on Mr. Rosevinges evidence that his skydiving operation experiences
about 18 landing outs for 6,000 jumps per year.
[223] The third component is the probability that the jumper will come into the path of
either turbine or the turbulence wake within 500 meters of them. Dr. Coxs analysis
indicates that he calculates this probability based on the ratio of the land area covered
by the wind turbines and their turbulence wake to the overall land area, which Dr. Cox
states is 2.5%. In other words, the land area covered by the wind turbines and their
turbulence wake represents 2.5% of the total area where a parachutist may land. This
aspect of his evidence has not been challenged. Accordingly, Dr. Cox assigns 2.5% (or
0.025) as this probability.
Probability of a Main Parachute Failure and Probability of a Reserve Parachute Failure
[224] To determine the probability of a main parachute failure and the probability of a
reserve parachute failure, Dr. Cox utilized statistics obtained from the United States
Parachute Association. His use of these statistics is discussed in greater detail below.
In his analysis, Dr. Cox also indicates that these statistics indicate that a main
parachute failure occurs 1 in every 750 jumps (1/750 = 0.0013) and a reserve parachute
failure 1 in every 1,000 jumps (1/1000 = 0.001).
[225] Accordingly, Dr. Cox assigns 0.0013 as the probability of main parachute failure,
and 0.001 as the probability of reserve parachute failure.
Review of Evidence Adduced by the Appellants
[226] The Appellants point to the evidence of Mr. Epp, emphasizing that this
establishes that, under emergency conditions, a parachutist has landed in the fields
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which are the proposed location for wind turbines T4 or T5, and sustained serious
injuries. They also rely on the evidence of Terry Maxner that two other parachutists
have also landed in the fields where the proposed turbines would be located. The
Appellants maintain that this evidence demonstrates that, in future, parachutists will
land, under emergency circumstances, at the turbine locations, and also suffer serious
harm or fatality. For the following reasons, the Tribunal does not accept this
submission.
[227] The Tribunal accepts that Mr. Epps evidence establishes that his parachute
failure placed him in the area where he likely would have been unable to avoid one of
the wind turbines had they been there. Mr. Maxners evidence, however, does not
indicate that the two parachutists he assisted had lost directional control. Therefore, it
cannot be said that these parachutists would have been unable to avoid the wind
turbines if the wind turbines had been there.
[228] Consequently, the Tribunal must consider whether Mr. Epps experience will be
repeated in the future. The Tribunal has already noted that there is no evidence to
indicate that the occurrence of parachute failure on one jump, which includes the type of
failure experienced by Mr. Epp, will increase the likelihood that such parachute failure
will occur on subsequent jumps. Mr. Epps experience also does not indicate that a
parachutist who experiences such emergency conditions will necessarily do so under
circumstances where the parachutist will come into contact with the turbines or their
turbulence wake. For example, as Mr. Baumchen has pointed out, if the turbines had
been there, the planned drop point for Mr. Epps exit from the plane could have been
different, which, in turn, may have resulted in him landing in a different area. Therefore,
Mr. Epps experience does not establish it will be repeated in the future. It only
establishes that it is possible that it could happen again. In other words, it may happen
again. The very purpose of the probability analysis is to determine, on a balance of
probabilities, whether it will happen again.
[229] The Tribunal now turns to the Appellants evidence regarding regulatory regimes.
The Appellants note that the British Parachute Association Operations Manual includes
a no-skydiving policy within 2.4 km of any wind turbines greater than 15 m tall.
However, Mr. Rosenvinge agreed that such set back distance is regulated by a policy of
the British Civil Aviation Authority, CAP 764, which, under s. 9.5 of chapter 3, provides
that wind turbines are only considered to be a special hazard if they are located with
1,200 m of the planned landing area/drop zone. Although Mr. Rosenvinge testified that
he disagreed that 1,200 m is a sufficient set back distance, he provided no study or
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analysis, other than his own general opinion, in support of his position. The Tribunal
notes the CAP 764 document includes a list of the effective dates for each chapter.
This list confirms that s. 9.5 of chapter 3 became effective in January 2012, which is
relatively current.
[230] The Tribunal observes that neither the Canadian Sport Parachute Association
nor United States Parachute Association have established policies respecting the
proximity of wind turbines to skydive sites.
[231] The Tribunal also notes that regulatory authorities, whether they are volunteer
organizations such as Canadian, American or British parachute associations, or
agencies exercising a legislated jurisdiction, may impose set back restrictions, even
where the risk of harm is very low, because they consider it prudent to do so as a safety
measure. However, in this case, the Tribunal must make findings respecting the Health
Test, which is very specific. It must be shown the serious harm will occur. Hence, the
regulatory policies, in and of themselves, are not evidence that harm will occur, unless
they are based on other supporting evidence which indicates that harm will occur. In
such circumstances, it is the supporting evidence that would be probative, not the policy
itself.
[232] In summary, therefore, the Tribunal finds that this evidence does not establish
that serious harm will occur.
[233] The Tribunal now turns to the opinion evidence of the Appellants experts, all of
whom have expressed their opinion that serious harm will occur. In reviewing their
evidence, the Tribunal finds that it is clear that they have provided a general conclusion
that likelihood of encountering wind turbines T4 or T5 under emergency conditions is a
certainty. The Tribunal recognizes that each of the Appellants expert witnesses have
considerable experience in skydiving, both as skydivers themselves and as instructors.
The Tribunal also accepts that, as experts, their opinions are informed by their training,
education, and experience. However, the only supportive analysis they have provided,
based on their expertise, is the evidence discussed above.
[234] In Lewis, the Tribunal stated at paragraphs 113 and 114:
[113] Specific opinions on the type of harm, its likelihood, its degree,
etc. are often much more useful than a general conclusion that involves
the expert purporting to answer the ultimate statutory test. If experts feel
compelled to try to answer the ultimate question, then they should, as Dr.
Kerlinger did, stipulate the bases for an expert conclusion. This is not to
say that the Tribunal agreed with all the measures of scale that Dr.
Kerlinger used, but at the very least the Tribunal had no trouble
determining what scale was being used in his assessment of impacts.
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75
This allowed the Tribunal to make its own conclusions on harm based on
the specific data and opinions given by him rather than on a simple
blanket assertion.
[114] Generally speaking, less weight is given to an expert opinion that
fails to set out the specific pathways used in reaching a conclusion in
terms of data, assumptions and analyses, etc. Here, with respect to bald
eagles, the Tribunal had a sense of what impacts the loss of this pair
would have at different scales. At the immediately local level, the death
or displacement of this pair would constitute a loss of this species from
the immediate area. In southern Ontario, a loss of this pair would be
something in the range of 1-2% in light of the number of breeding pairs
(i.e., 50-60). This sort of evidence, coupled with opinion evidence on the
likelihood of such a loss occurring, allows the Tribunal to weigh data and
opinion evidence in the context of all other factors that are relevant to the
assessment of serious and irreversible harm and reach its own
conclusion on the ultimate question.
[235] Although this finding in Lewis relates to the Environmental Test, the Tribunal
accepts that it equally applies here. To paraphrase, specific opinion regarding the
probability that serious harm will occur (i.e., its likelihood) is often much more useful
than a general opinion that serious harm will occur. Generally speaking, less weight is
given to an expert opinion that fails to set out the specific pathways used in reaching a
conclusion in terms of data, assumptions, and analysis.
[236] The Appellants did not call an expert on risk management to challenge Dr. Coxs
analysis and conclusions.
Review of Evidence Adduced by the Approval Holder
[237] The Tribunal has already referred to the evidence of Mr. Kelly, particularly the
Safety Study. Mr. Kelly relies on the evidence of Dr. Cox respecting the likelihood that a
parachutist will encounter the wind turbines under emergency conditions. For this
reason, the Tribunal focusses its analysis on the evidence of Dr. Cox.
[238] As set out in the Risk Assessment Report, Dr. Cox conducted a complete risk
analysis, evaluating all aspects of parachuting (excluding airplane piloting) at Skydive.
Dr. Cox confirms that he is not an expert in skydiving, but relies on two experienced
skydivers, Mr. Baumchen, who testified in this proceeding, and Mr. Warner, who did not.
[239] The Appellants submit that Dr. Cox did not provide any useful information, and
his evidence should not be relied on because his assessment is based entirely on the
facts provided by Messrs. Baumchen and Warner. In support of this submission, the
Appellants assert that Mr. Baumchens evidence is incomplete and unreliable, and they
note that Mr. Warner did not testify in this proceeding. The Tribunal does not accept
this submission. In this regard, the Tribunal notes that the relevant factual information
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provided by Dr. Cox in the Risk Assessment Report is not inconsistent with the findings
which has the Tribunal has already made. Furthermore, the probative opinion evidence
provided by Dr. Cox is his probability assessment. In the Risk Assessment Report, he
confirms he utilized statistics from the United States Parachuting Association, and he
includes the data on which he relies. The Appellants also maintain that Dr. Cox was not
aware that Mr. Baumchen is not an expert in piloting aircraft. However, as already
noted, the Risk Assessment Report does not address airplane piloting.
[240] The Appellants have challenged Dr. Coxs opinions on the basis that he has no
expertise in parachuting. The Tribunal notes, however, that Dr. Cox expressly indicates
that he did not have such experience, but instead relied on the information provided by
Messrs. Warner and Baumchen. Therefore, the Tribunal does not accept this
submission.
[241] The Appellants assert that Dr. Cox assumes that statistics for Skydive Burnaby
are going to be the same as the statistics provided by the United States Parachuting
Association. The Tribunal notes that the Appellants provided no evidence in support of
this assertion. The Tribunal observes that Dr. Cox did not state that they would be the
same. Furthermore, the Risk Assessment Report confirms that United States
Parachuting Association dataset is large (for example, the total number of jumps for the
4 year period from 2009 to 2012 is 12,200,000). The Appellants have not adduced
evidence to indicate that statistics derived from such a large database would be non-
representative. Therefore, the Tribunal does not accept this submission. In further
support of this conclusion, the Tribunal notes that Dr. Cox did consider whether a
statistic obtained from the United States data was similar to statistic respecting Skydive.
In his first written response to the Tribunals questions, in the section entitled Step 3,
at page 4, Dr. Cox calculated the rate of reserve parachute deployment based on the
personal experiences of Messrs. Borghese and Epp. He then compares this rate to the
rate he obtained from the United States Parachuting Association. He notes that the
rates for these two individuals were broadly consistent with the United States statistic,
the latter being derived from a much larger dataset. The Tribunal finds that this
evidence demonstrates that he considered both the adequacy of the United States data
set as a representative sample, as well as its correlation to the experience at Skydive,
to the extent that data from Skydive was available.
[242] The Appellants argue that Dr. Cox erred as he only used statistics for fatal
accidents. The Tribunal notes, however, that this is not correct. At page 20 of the Risk
Assessment Report, para. 5 (ii) Dr. Cox states Overall, USPA [United States
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77
Parachuting Association] says that main parachute malfunctions occur about once in
750 jumps. Furthermore, the Tribunal notes that, in his first written response to the
Tribunals questions, Dr. Cox does not rely on the fatal accident statistics, subject to one
exception. In the section entitled Step 2 at para. 3 and 4, where he states:
Regarding the distance of landing-out, we do not have any good quality
data on this issue, save for the analysis that I made of the narrative
records of the 5 landing out fatalities in the USPA data (page 21 of my
report) in which I reported that only 2 were far from the PLA. This fraction
(2 out of 5) may not be representative of all landings out, because it only
relates to landings with fatal results. However, we have no other data
and I see no reason why the likelihood of fatality should be correlated
with the issue of whether the landing out was close to, or far from, the
PLA.
[243] In this passage, Dr. Cox clearly considers the possible constraint of using the
fatality statistics, but concludes that it was appropriate to do so in this part of his
analysis.
[244] The Tribunal accepts that a party does not have to call response evidence in
order to challenge a witness evidence. If a witness evidence is deficient or incorrect on
its face, it may be challenged in submissions. However, in this instance, the Tribunal
finds that the Appellants submission is not supported by Dr. Coxs evidence, and the
Appellants have called no other evidence in response. Therefore, the Tribunal does not
accept the Appellants assertion that Dr. Cox only used fatal accident statistics in his
analysis, and, consequently, the Tribunal does not find that he erred in his analysis in
this regard. Therefore, the Tribunal does not accept the Appellants submission.
[245] The Appellants assert that Dr. Cox assumes that only accidents that involve
landing out far (i.e. landing off-site at a longer distances from the parachute landing
area) are relevant to his probability analysis. The Tribunal accepts that Dr. Cox
includes landing off-site at a distance as a factor in his analysis. This is expressly
stated by Dr. Cox. The Tribunal notes, however, that this does not mean that Dr. Cox
assumes that accidents could not occur at the Skydive Site itself. In any event, the
Tribunal accepts that, by including this factor, his probability analysis does not address
on-site landings. However, in this Decision, the Tribunal has found, for other reasons,
that the Appellants have not demonstrated that wind turbines T4 and T5 will generate a
turbulence wake that will cause serious harm to a parachutist under normal or
emergency conditions.
[246] The Appellants submit that the data used by Dr. Cox is marginal, and, therefore,
at a minimum, his analysis should have been based on a range of data, and,
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consequently his conclusions should be structured to reflect this range of data. They
maintain that, instead, most, if not all, of his opinions are expressed as complete
absolutes. In addressing this submission, the Tribunal first notes that it has already
found that the data set on which Dr. Cox has relied is not marginal. Therefore, the
Appellants submission fails on this ground alone. Secondly, the Appellants advance a
general concept respecting the requirement for a range of data/conclusions, but provide
no specific analysis as to what this concept means, nor do they indicate which specific
findings in Dr. Coxs analysis should be expressed in such a range. Similarly, the
Appellants do not particularize how Dr. Coxs opinions are complete absolutes. The
Tribunal finds, therefore, that the Appellants have not established that Dr. Coxs
evidence is deficient or incorrect on its face. The Tribunal also notes that they adduced
no other evidence in support of these assertions. For these reasons, the Tribunal does
not accept their submission.
[247] The Appellants assert that Dr. Coxs probability analysis is erroneous because
his analysis considers only mechanical failure as the basis for landing off-site, whereas
they maintain that the evidence indicates that the reason such landing out commonly
occurs is due to human error. The Tribunal has already noted that, in such
circumstances, the skydiver still has directional control of the parachute. The Tribunal
has already found that, under normal operating conditions, i.e. when the skydiver has
directional control of the parachute, wind turbines T4 and T5 do not present a collision
risk to skydivers. The Tribunal has also found that there is insufficient evidence to
suggest that the incidence rate of obstacle fixation is such that it would appreciably
increase the probability of contact with wind turbines or their near turbulent wake,
beyond the probability that has already been attributed to parachute failure. For these
reasons, the Tribunal does not accept the Appellants submission.
[248] The Appellants point out that Mr. Pitt testified that jump runs are specifically
made with the intention of returning the jumpers on each run as directly as possible to
the parachute landing area. They further observe that similar evidence was provided by
Mr. Eralp as part of his testimony regarding the use of his spot calculator to accurately
predict where jump runs should be centred. The Appellants submit that Dr. Cox has
chosen to ignore this evidence, and, instead, treats the risk for every jumper on every
run as being equally distributed across a very large area of land, much of which, they
assert, would never be reached on any specific jump run.
[249] In addressing this submission, the Tribunal notes that this aspect of Dr. Coxs
analysis relates to circumstances where the skydiver has lost directional control of the
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79
parachute. When addressing his calculation of the size of the area which should be
considered, he stated, in the Risk Assessment Report, at page 9:
The scenarios in which a jumper comes close to the wind turbines are,
as shown in Section 4 (Scenario 1) very far from normal flights. The
safety margin in terms of separation distance is something like 1500 feet
vertical separation in the most extreme case of a "normal" straight glide
approach to the PLA [parachute landing area] in a Force 5 breeze.
Therefore, it must be assumed that, if a jumper can collide with the wind
turbines, they must have completely lost control of their trajectory. That
in turn implies that they could land randomly anywhere in the locality.
[250] The Tribunal notes that evidence of Messrs. Pitt and Eralp, to which the
Appellants have referred, relate to parachute flight path (or the calculation of the flight
path, in the case of Mr. Eralps evidence) in normal conditions, i.e. when the skydiver
has directional control of the parachute. Again, the Appellants called no evidence in
response to Dr. Coxs evidence in this regard. In particular, the Tribunal notes that
neither Mr. Eralp or Mr. Pitt specifically addressed this aspect of Dr. Coxs report. For
these reasons, the Tribunal does not accept the Appellants submission.
[251] The Appellants observe that Dr. Cox expressed conclusions regarding which
portions of this large area of land are suitable for parachutists to utilize for land outs.
The Appellants submit that Dr. Cox has no expertise in this area, nor has he relied on
anyone who does. In addressing this submission, the Tribunal notes that, even if it is
assumed that Dr. Cox is incorrect in this regard, he did not use this evidence in his
probability analysis calculations. For this reason, the Tribunal does not accept that the
Appellants assertion, even if it is correct, is a relevant and probative consideration.
[252] The Tribunal now turns to the Appellants submission respecting Mr. Brunskills
turbulence analysis. They observe that Dr. Cox has relied on the calculations of
Mr. Brunskill, in order to calculate the actual area affected by wind turbines T4 or T5
and/or their wake. They point out, as confirmed in the Safety Study, that the maximum
wind speed conditions in which parachutists will skydive, ranges from 15 mph for
students to 25 mph to experienced parachutists. They submit that this confirms that
parachuting activities must completely cease at speeds which Mr. Brunskill says will
cause virtually imperceptible increases to turbulence affecting a wind turbines
operation.
[253] In addressing this submission, the Tribunal first observes that the Appellants
have oversimplified their summary Mr. Brunskill's evidence. The full description of his
evidence is described earlier in this Decision. In his analysis, Mr. Brunskill reports the
percentage increase in turbulence intensity in the turbulence wake, as compared to
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ambient wind turbulence. Regarding this percentage increase, the Tribunal notes that
Mr. Brunskill did not testify respecting its effect on a wind turbines operation. Rather,
he described the impact of the turbulence wake trailing from the wind turbine on
ambient turbulence. If the intent of the Appellants submission is to question the validity
of Mr. Brunskills analysis (i.e. that such a small percentage increase cannot be
accurate, because higher wind speeds create higher turbulence intensity), the Tribunal
still does not accept this submission. The Appellants provide no detailed explanation or
analysis to support such an assertion, and they adduced no opinion evidence which
specifically contradicts Mr. Brunskills evidence.
[254] The Appellants submit, as an alternative argument, that there are certain
activities for which sufficient information is not available, either because the expert
witness, in this case, Dr. Cox, failed to obtain it, or because it does not exist. They
submit that not every activity can be adequately and effectively assessed, particularly
when the consequence of relying on the assessment involves serious accident(s) and/or
the direct and immediate loss of human life.
[255] In addressing the above submission, the Tribunal first notes that the Appellants
adduced no opinion evidence which indicates that the data and statistics on which Dr.
Cox relies is insufficient for purposes his probability analysis. While the Appellants
maintain that not every activity can be adequately and effectively assessed, and they
adduced no opinion evidence to challenge Dr. Coxs assessment in this regard. Dr. Cox
is a recognized expert in conducting risk assessments and has been qualified to provide
opinion evidence in this subject area. As he has provided an assessment of the
potential impact of wind turbines T4 and T5 on Skydives operations, his evidence
clearly indicates that it is his view that these activities can be assessed. The Appellants
assert that the Tribunal should consider the seriousness of the harm (i.e. fatality) when
considering whether these activities can be adequately assessed. However, earlier in
this Decision, the Tribunal has already rejected the Appellants assertion that the
Tribunal should consider the severity of the serious harm when assessing whether the
will cause component of the Health Test has been met. For these reasons, the
Tribunal does not accept their submission.
[256] The Tribunal now turns to the calculation of the probabilities to support Dr. Coxs
conclusions are set out in detail in the Risk Assessment Report, and further explained in
Dr. Coxs response to the additional questions posed by the Tribunal. The
mathematical calculations involved are complicated, and not easily described in words.
For this reason, the Tribunal does not describe them in detail in this Decision.
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81
[257] In this case, the Tribunal has carefully reviewed the detailed calculations
provided by Dr. Cox. The Tribunal notes that the Appellants adduced no opinion
evidence to indicate that these calculations are incorrect. Therefore, the Tribunal
accepts that they are accurate.
[258] In the Risk Assessment Report, Dr. Cox conducted an analysis to measure the
relative risk presented by wind turbines T4 and T5 as compared to the background risk.
The conclusion obtained from this analysis is that the incremental risk contributed by the
wind turbines is less than 1/1000
th
of 1%.
[259] The Appellants submit that this increase would actually double the risk. In
support of this submission they maintain the Risk Assessment Report indicates that the
combination of all other risks is 1 in 150,000. The Tribunal notes that the statistic to
which the Appellants refer is an annual rate of fatality for the year 2012, reported as
1 per 150,000 jumps. The Tribunal finds that there is no indication that this data reflects
the combination of all other risks for skydivers.
[260] The Tribunal accepts that Dr. Coxs conclusion is a strong indicator that the risk
of harm posed by the wind turbines does not rise above the level of a concern. As the
Tribunal has found earlier in this Decision, it ascribes greater weight to Dr. Coxs
opinion, than the Appellants experts who maintain that the risk of harm is a certainty.
Based on this evaluation of the evidence, the Tribunal can only conclude that the
Appellants have adduced insufficient evidence to discharge their onus to establish that
the Health Test has been met. However, the Tribunal is mindful that the serious harm
being considered in this case is serious physical injury or death. Therefore, when
reviewing Dr. Coxs evidence, the Tribunal wished to satisfy itself that there was no
aspect of the probability analysis which would indicate that, on a balance of
probabilities, the Health Test could be met. Consequently, the Tribunal requested that
Dr. Cox provide additional clarification of his evidence, as described in the Tribunals
Order dated April 7, 2014. Dr. Cox provided a written response to the questions posed
by the Tribunal, as set out in that Order. He also provide a second written response to
an additional request from the Tribunal to obtain further clarification regarding his first
response.
[261] The additional evidence provided by Dr. Cox also involves complicated
mathematical calculations, so, again, the Tribunal does not describe them in detail in
this Decision. The end result of his calculation indicates that the probability that 1 or
more fatal accidents would occur over a 20 year life span is only 0.000481768. The
Tribunal notes that fatality also includes serious physical harm. This is because the
Pitt v. Director,

82
probability being calculated is the probability that a parachutist will encounter the wind
turbines or their turbulence wake under emergency conditions. It is not disputed that
either fatality or serious physical injury would be the result if this occurs.
[262] The Tribunal has earlier noted that probability that a parachutist will encounter
the wind turbines or their turbulence wake under emergency conditions includes
consideration of more than the individual jump probability. In applying the Health Test,
the Tribunal must consider the probability that one or more serious injuries will occur
during the lifespan of the Project. Dr. Cox provided this analysis in his response to the
Tribunals second request for clarification of his evidence. His calculations show that,
for 200,000 jumps over the lifespan of the Project, the probability of one or more fatal
accidents/serious physical injury is 0.005 if the individual jump probability is 2.5 x 10
-8
.

[263] The above evidence demonstrates that the probability is 100 times lower than
50% (0.50). Even if one assumes that the length of the turbulence wake is doubled to
1 km, and the land area is accordingly doubled from 2.5% to 5%, the probability that
fatality/serious injury will occur does not come close to 50% (or being more likely than
not).
[264] Based on the above analysis, therefore, the Tribunal is satisfied that the
probability that a parachutist will encounter the wind turbines or their turbulence wake
under emergency conditions has been fully explored. Consequently, Tribunal has fully
considered whether this type of probability analysis could support the position being
advanced by the Appellants.
[265] Whether the Tribunal considers only Dr. Coxs initial evidence that the
incremental risk contributed by the wind turbines is less than 1/1000
th
of 1%, or his
further analysis that the probability, over the lifespan of the Project, of one or more fatal
accidents/ serious physical injuries is 0.005, or both, Dr. Coxs evidence clearly
indicates that the Health Test has not been met.
Conclusion Respecting Probability that Parachutist will Encounter the Wind Turbines or
Their Turbulence Wake Under Emergency Conditions
[266] For emphasis, the Tribunal repeats that the Appellants did not provide a detailed
risk analysis, nor does their evidence challenge the specific calculations and
assumptions made by Dr. Cox in his probability analysis. The Tribunal finds that
Dr. Cox has used specific pathways in reaching his conclusions. In light of the evidence
adduced in this hearing, the Tribunal also finds that the data, assumptions and analyses
used in reaching his conclusions are reasonable. Consequently, the Tribunal ascribes
Pitt v. Director,

83
less weight to the opinion evidence of the experts who testified on behalf of the
Appellants, than it ascribes to the opinion evidence of Dr. Cox.
[267] For these reasons, the Tribunal accepts Dr. Coxs evidence over the evidence
adduced by the experts who testified on behalf of the Appellants. Therefore, the
Tribunal finds that the Appellants have not established that a parachutist will encounter
the wind turbines or their turbulence wake under emergency conditions.
CONCLUSION RESPECTING HARM TO SKYDIVERS
[268] Based on the foregoing analysis and findings, the Tribunal finds that the
Appellants have not established that the Health Test has been met on the grounds that
skydivers will be seriously harmed by collision with wind turbines T4 and T5 or
interaction with their turbulence wakes.
Conclusion
[269] Based on the above analysis and findings, the Tribunal finds that the Appellants
have not adduced sufficient evidence to establish that engaging in the Project in
accordance with the REA will cause serious harm to human health. Consequently, the
Tribunal does not have jurisdiction under s. 145.2.1 (4) of the EPA to address the
Appellants request that the REA should be revoked. Their appeals, therefore, are
dismissed.
Other Matter
[270] In its submissions, the Approval Holder asserts that Skydive commits on-going
trespass to the airspace above the lands owned by the Approval Holder and its
principals. The Appellants dispute that the Approval Holder has an exclusive right to the
use of such airspace, and that no trespass has or will occur. The Appellants also
question the Tribunals jurisdiction to adjudicate this dispute. In light of the Tribunals
finding otherwise dismissing the Appellants appeals, the Tribunal finds that it is
unnecessary to address this matter.

Pitt v. Director,

84
DECISION
[271] The appeal brought by Mr. Pitt and Skydive Burnaby Ltd. are dismissed.

Appeal Dismissed

Dirk VanderBent
Dirk VanderBent, Vice-Chair

Appendix A Site Map Turbines 4 and 5
Appendix B Turbulence Analysis Figure 3
Appendix C Flight Patttern Diagram
Pitt v. Director,

85
Appendix A
Site Map Turbines 4 and 5

Pitt v. Director,

86
Appendix B
Turbulence Analysis Figure 3

Pitt v. Director,

87
Appendix C
Flight Pattern Diagram

Environmental Review Tribunal Final Decision On Skydive Burnaby vs. Ministry of Environment

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Environmental Review Tribunal Final Decision On Skydive Burnaby vs. Ministry of Environment

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