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Environmental Review Tribunal

Case Nos.: 13-121/13-122 Pitt v. Director, Ministry of the Environment In the matter of appeals by Mikel Pitt and Skydive Burnaby Ltd., filed October 22, 2013 for a hearing before the Environmental Review Tribunal pursuant to s. 142.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, with respect to Renewable Energy Approval No. 7159-97BQAS issued by the Director, Ministry of the Environment, on October 7, 2013 to Wainfleet Wind Energy Inc., under s. 47.5 of the Environmental Protection Act, regarding the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of five turbines with a total name plate capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession 2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario; and In the matter of telephone conference calls held on March 19, 20 and 27, April 2 and 4, 2014, regarding the Tribunals proposal to request additional evidence. Before: Appearances: Eric Gillespie, Natalie Smith and John May Nadine Harris Scott Stoll, Jody E. Johnson and Piper Morley Counsel for the Appellants, Mikel Pitt and Skydive Burnaby Ltd. Counsel for the Director, Ministry of the Environment Counsel for the Approval Holder, Wainfleet Wind Energy Inc. Dirk VanderBent, Vice-Chair

Dated this 7th day of April, 2014.

Environmental Review Tribunal Order: Pitt v. Director, Ministry of the Environment REASONS FOR DECISION Background

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[1] On October 7, 2013, Vic Schroter, Director, Ministry of the Environment (MOE), issued Renewable Energy Approval No. 7159-97BQAS (the REA) to Wainfleet Wind Energy Inc. (the Approval Holder), pursuant to s. 47.5 of the Environmental Protection Act (EPA). The REA grants approval for the construction, installation, operation, use and retiring of a Class 4 wind facility consisting of five wind turbines with a total name plate capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession 2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario (the Project). [2] On October 22, 2013, Mikel Pitt and Skydive Burnaby Ltd. (Skydive), collectively referred to as the Appellants, jointly filed a notice of appeal of the REA pursuant to s. 142.1 of the EPA. [3] A preliminary hearing was held in Wainfleet on November 20, 2013. The Appellants requested and were granted a stay of the REA. Further background respecting these matters is set out in the Tribunals Orders dated December 12, 2013, March 11, 2014 and April 2, 2014. [4] The Notice of Appeal indicates that Skydive operates a parachute skydiving service which has been operating at its present location since 1948 and currently provides approximately 10,000 skydives annually. Approximately 1,000 aircraft takeoffs and landings are required to provide this service. Although the REA includes approval of five wind turbines, and the Appellants appeal requests full revocation of the REA, it is not disputed that the basis of their appeal is that wind turbines T4 and T5 will cause serious harm to human health, because of the potential that airplanes or parachutists will either collide with these wind turbines or be unable to safely manoeuvre due to wind turbulence generated by these wind turbines. [5] Pursuant to s.145.2.1 of the EPA, the onus is on the Appellants to establish that engaging in the Project in accordance with the REA will cause serious harm to human health (the Health Test) and/or serious and irreversible harm to plant life, animal life or the natural environment. In this case, their appeal is in respect of the Health Test only. [6] In overview, the Director and the Approval Holder do not dispute that serious harm to human health will occur if a plane or a parachutist were to collide with one of these wind turbines, or if wind turbulence generated by the operation of T4 or T5 were

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to cause a parachute to collapse. However, they assert that the probability of such occurrence is so low, that the will cause aspect of the Health Test has not been met. [7] The Tribunal heard evidence on January 6, 8, 10, 13, 14, 17, 27, 28, and 29, 2014. The parties then provided written submissions, and, on February 28, 2014, the hearing resumed to allow the parties to make brief oral submissions and provide the Tribunal with the opportunity to ask questions. [8] On February 28, 2014, the Tribunal asked for clarification respecting the evidence provided by one of the witnesses for the Approval Holder, Dr. Raymond Cox. As counsel were unable to provide a complete response to the Tribunals question, the Tribunal indicated that it would further review Dr. Coxs evidence. In completing this additional review, the Tribunal identified that it required additional clarification respecting one of Dr. Coxs conclusions as well as additional evidence in furtherance of this clarification. [9] Consequently, the Tribunal prepared a written list of questions, which was circulated to counsel, and a telephone conference call (TCC) was held on March 19, 2014, to canvass the parties positions respecting the Tribunals proposed questions. Counsel for the Appellants requested a brief adjournment to consider their position, so the TCC was adjourned to March 20, 2014. The Tribunal also provided further clarification regarding its written questions, and, to assist the parties, provided them with an updated list of the written questions prior to the next TCC scheduled for March 20, 2014. On March 20, 2014, counsel for the Appellants advised that the Appellants objected to the Tribunal receiving the additional evidence, and requested an opportunity to provide detailed submissions in this regard. The Tribunal then gave directions for filing of written submissions by the parties, and scheduled a further TCC on March 27, 2014. Upon receipt and review of the written submissions, the Tribunal also directed the parties to provide oral submissions respecting the application of Rule 185 of the Tribunals Rules of Practice (the Rules). On March 20, 2014, the Tribunal heard these oral submissions, and made the following disposition:
Having considered the appellants position that the Tribunal should not request additional information from Dr. Cox, and the parties submissions respecting this issue, the Tribunal directs that Dr. Cox answer the Tribunals questions. In making this dispositio n, the Tribunal is not addressing, at this time, whether there should be any subsequent examination or re-examination respecting Dr. Coxs responses to these questions or calling of further reply evidence. This issue will be addressed at a later date, once the parties have had an opportunity to review Dr. Coxs responses to the Tribunals questions.

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[11] The Tribunal also indicated that it would provide written reasons for this disposition. The purpose of this order is to provide these reasons. [12] The Tribunal notes that the updated list of questions included several questions which only require submissions from the parties regarding other matters to be considered in this proceeding. As the Appellants do not object to the Tribunals request for these submissions, these questions have not been reproduced in the list of questions to which the Appellants object (List of Questions), which is attached to this order as Appendix A. [13] The Tribunal notes that one question in the List of Questions is not directed to Dr. Cox, namely Under the REA, what is the retirement date for the Project? Based on submissions received from the parties it appears that an adequate response to this question requires only factual evidence, as opposes to opinion evidence. Consequently, at the TCC held on March 27, 2014, the Tribunal further directed the parties to confer in order to provide an agreed statement of fact in response to this question. [14] In overview, the Appellants objections fall into two main categories. They assert that the Tribunal does not have jurisdiction to request additional evidence at this stage in the proceeding, and if the Tribunal receives additional evidence from Dr. Cox, this will raise a reasonable apprehension of bias to be raised on appeal to the Divisional Court. [15] In the subsequent TCCs held on April 2 and 4, 2014, the Tribunal made procedural directions regarding examination of Dr. Cox on his responses to the List of Questions, and the potential receipt of evidence in reply to Dr. Coxs additional evidence. The Tribunal then adjourned this proceeding to April 10, 2014. As noted below, this adjournment is granted pursuant to s. 59 of Ontario Regulation 359/09 made under the EPA (O. Reg. 359/09). Full particulars are provided below. Relevant Legislation and Rules [16] Relevant legislative provisions and Rules are attached to this order as Appendix B. Issues [17] The issues to be determined are: Issue No. 1: Whether the Tribunal has jurisdiction to request additional evidence at this stage in the proceeding.

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Issue No. 2: If the answer to Issue No. 1 is yes, whether receiving the additional evidence would raise a reasonable apprehension of bias. Discussion, Analysis and Findings Introduction [18] Dr. Cox was called by the Approval Holder and qualified as an expert to give opinion evidence respecting risk assessment in public safety, energy and transportation. Dr. Cox holds a Ph.D. in Air Pollution Sciences which he obtained from Imperial College, London, England. His evidence at the hearing included his written witness statement which he adopted as his evidence, as well as his oral evidence. Dr. Cox has also prepared a report dated December 9, 2013, entitled Risk Assessment of Interactions between Wind Turbines and Skydive Operations, which was also entered into evidence. In overview, this report outlines his assumptions, analysis, and conclusions regarding his estimate of the risk impact, if any, of wind turbines T4 and T5 on Skydives operations. [19] As the first topic in the List of Questions indicates, the Tribunal sought clarification of how Dr. Cox arrived at his conclusion that the incremental risk contributed by the presence of the turbines is less than 1/1000th of one percent. In its written submissions, the Approval Holder points out that Dr. Cox, in his oral testimony, did provide an explanation of how he calculated this incremental risk. In this regard, the Approval Holder has provided reference to the specific questions and answers in the written transcript of Dr. Coxs evidence. The Tribunal has had an opportunity to further review this portion of the transcript, and is satisfied that his answers provide the clarification that the Tribunal has requested. Consequently, this part of the List of Questions is not at issue, as no additional evidence is required. [20] The Tribunal otherwise requires additional evidence to understand how Dr. Coxs conclusion is to be interpreted in the context of the statutory test before the Tribunal in this proceeding, namely, the Health Test, i.e., whether engaging in the Project in accordance with the REA will cause serious harm to human health. [21] The Tribunal notes that the hearing of the appeal is not complete. In this regard, the Tribunal notes that all parties requested that the Tribunal should first render a decision regarding the issue as to whether engaging in the Project in accordance with the REA will cause serious harm to human health. If the Tribunal finds that it does, the parties wish to make further submissions regarding which of the actions the Tribunal

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may take pursuant to s.142.2.1(4) of the EPA (i.e., submissions regarding remedy), namely: a. revoke the decision of the Director; b. by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations; or c. alter the decision of the Director. [21] The parties requested that the Tribunal bifurcate the hearing of the appeals in this manner, and the Tribunal has granted this request. In response to one of the questions subsequently posed by the Tribunal, all parties agree that, although they would prefer to proceed by submissions only, they also wish to provide additional evidence respecting remedy, as they consider necessary. [22] The Tribunal has considered all the parties submissions and the authorities they have cited in detail. Because these submissions are lengthy, it is not feasible to produce a full synopsis of these submissions within a written order of reasonable length. Consequently, in this order, the Tribunal has only included a summary of the most salient submissions made by the parties. [23] As stated in the Tribunals disposition of March 20, 2014, the Tribunal did not address whether there should be any subsequent examination or re-examination respecting Dr. Coxs responses to these questions or calling of further reply evidence. Consequently, the Tribunal has not summarized the parties submissions respecting this issue. However, the Tribunal has considered the Appellants submission that the potential requirement for examination and reply witnesses must be considered when determining whether the Tribunal should request additional evidence from Dr. Cox. Issue No. 1: Whether the Tribunal has jurisdiction to request additional evidence at this stage in the proceeding. Submissions by the Appellants [24] The Appellants make the following submissions: 1) New evidence from Dr. Cox fails to satisfy the test for admissibility in that the evidence (a) is tainted and therefore not credible, (b) was in existence at the time of the hearing, and, as a result, (c) was then also readily obtainable at the time of the hearing. Therefore, pursuant to Tribunal Rule 234, the

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Tribunal is prohibited from receiving the new evidence that is being contemplated at this time. 2) The Tribunal has raised these questions after all of the evidence has been entered, the merits of the case have been heard, and all written and oral submissions have been completed. Therefore, any evidence prompted by the Tribunals questions would constitute new evidence. Furthermore, the evidence would be new insofar as the Tribunal is seeking to elicit information that did not materialize during Dr. Coxs evidence (e.g. , whether Dr. Cox used the binomial distribution model or whether Dr. Cox calculated the individual jump probability); the Tribunal is only now, after all the parties have closed their case, seeking to have Dr. Cox comment on such highly technical matters. According to Rule 233, once the Hearing has ended but before the decision is rendered, a Party may make a motion to admit new evidence . Hearing is defined at Rule 3 as a written, oral or electronic procedure held by the Tribunal where a person has the opportunity to present ones case and includes motions, Pre-Hearing Conferences, Preliminary Hearings, main Hearings and review Hearings, but does not include mediation. The hearing in this case has clearly ended. On its own initiative, the Tribunal is now seeking to have this new and substantive evidence admitted. This is so despite the wording of Rule 233, which places the onus on a party to bring a motion of this nature. In any event, the Tribunal is prohibited from receiving new evidence if the preconditions in Rule 234 are not met. In this case, these preconditions have not been satisfied because Dr. Coxs new evidence is not credible, was in existence at the time of the hearing and was, therefore, also clearly obtainable. Furthermore, based on principles espoused in the case law, it would not be in the interests of justice to allow this evidence to be heard at this late stage. The evidence is not credible because the Tribunals questions are leading in nature. They direct the witness and do not allow Dr. Cox to provide a fair, unbiased and uncompromised account of his evidence. On March 19, 2014, during a conference call with the Tribunal, counsel for the Approval Holder confirmed that the Tribunals questions had already been forwarded

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to Dr. Cox. Dr. Cox, therefore, has been put on notice as to the deficiencies in his evidence and has been given an opportunity, and specific directions regarding how, to remedy those deficiencies. Consequently, the witness is already tainted. 7) The role of an expert witness is to offer independent, unbiased opinion evidence that is the product of the expert and uninfluenced as to form or content. If Dr. Cox is permitted to respond to the leading questions, this Tribunal would be allowing tainted/biased evidence to be entered into the record. This is a clear violation of the fundamental principles of evidence and the high standard to which an expert is held. There can be no doubt as to the existence of this evidence at the time of the hearing. Dr. Cox knew that he was being asked to look at the specific issue of parachutist collision probability. He knew as a statistician he must also consider which models to use, and explain why. He simply failed to put this information in any cogent form in his report. His errors were avoidable. The information existed. He failed to include it and now is not the time to permit him to repair his shortcomings and mistakes under the guise of new evidence. There is a general social policy favouring finality of litigation. Each party must present its best case before the trier of fact. Having failed to do so, the Approval Holder should not now be granted a great indulgence to remedy deficiencies in its case. Here, Dr. Cox is being presented with the opportunity to amend or substantially bolster his evidence, in other words, to try again.

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10) It is abundantly clear that the Approval Holder has failed to put its best case forward. Allowing Dr. Cox to have a second kick at the can would not be in the interests of justice. In this matter, the Appellants would be placed at a significant disadvantage, not only from disparate treatment of the parties, but also from the additional time and costs associated with this unexpected turn of events. 11) In summary, new evidence from Dr. Cox fails to satisfy the test for admissibility in that the evidence (a) is tainted and therefore not credible, (b) was in existence at the time of the hearing, and, as a result, (c) was then also readily obtainable at the time of the hearing. Therefore, based on its

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own Rules of Practice, the Tribunal is prohibited from receiving the new evidence that is being contemplated at this time. 12) In addition, it would not be in the interests of justice to admit such evidence at this late stage, particularly when it can be reasonably concluded that the admission of such evidence appears to result in a major benefit for one party. 13) The Tribunal, though it has broad administrative powers, is still required to operate within the confines of the law (see Rule 7). It is trite law that as a creature of statute, the Tribunal is only permitted to do that which it has been authorized to do under its enabling statute. 14) The Tribunal has no statutory authority to re-call a witness, on its own initiative, after all of the evidence has been entered and the parties have made their closing submissions. The case law does not appear to assist the Tribunal either. Rule 185 does not apply in this case. This Rule must be considered in context. Rule 185 is included in the section of the Tribunals Rules entitled Hearing Procedure. The hearing of this appeal has ended. While the proceeding, which is defined in Rule 3 as including a hearing and referring to all matters before the Tribunal in respect of an appeal, has yet to come to a close, the merits of the case have been heard and the closing submissions of the parties have been submitted. Therefore, in this case, the hearing portion of the proceeding has been completed, and, consequently, Rule 185 does not apply. 15) If the evidence is to be admitted under Rule 234, by definition, it must be so important as to be able to affect the result of the Hearing. As such, it would be contrary to natural justice and procedural fairness to deny the Appellants the right to cross-examine Dr. Cox viva voce, to call a reply witness, and to make submissions on the implications of Dr. Coxs new evidence on the outcome of the whole appeal. 16) If the Tribunal were to admit Dr. Coxs new evidence notwithstanding the above, then the Appellants submit that this also establishes a reasonable apprehension of bias. The Tribunals decision would inevitably be tainted in favour of the Approval Holder, and would, therefore, be subject to an appeal to the Divisional Court.

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17) It is not for the Tribunal to assist the expert, whether by allowing the expert to patch up holes in his evidence, to bolster his evidence, or by projecting the Tribunals own expertise onto the expert, which has clearly occurred given the content of the questions the Tribunal authored. 18) The Tribunal, on its own initiative, has sought to resuscitate the defective evidence of Dr. Cox. It then goes even further. It points out the specific flaws in the evidence and seeks to assist by using its own knowledge of statistics to correct those flaws. [25] In response to the submissions of the Director and the Approval Holder, the Appellants make the following submissions: 1) There can be no such thing as clarification without adding further/additional evidence. Where new questions are posed, further/additional evidence must also be added. Anything that is added is by any definition new. Neither the Director nor the Approval Holder addressed these logical impossibilities. 2) In Corp. of St. Saviour, Brock Memorial Church v. Niagara Escarpment Commission, [2010] O.E.R.T.D. No. 55 (St. Saviour), the Tribunal not only held that Rule 226 (now Rule 234) incorporates a reasonable diligence requirement but that the operation of Rules 5 and 8 must take place in the context of whether there will be any prejudice to the parties. 3) The broad provisions of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S. 22 (SPPA) and the general language of the Tribunals Rules identified by the Director and the Approval Holder (Rules 4, 5, 7 and 8) are of no assistance to establish such jurisdiction. A question of process is entirely a legal issue. Therefore, the Tribunal must be correct in law. The Tribunal simply does not have carte blanche to chart a new course of law by admitting evidence that is clearly inadmissible according to Rule 234. Rule 7 makes clear that all acts of the Tribunal under its Rules must be permitted by law. Likewise, the best evidence rule supersedes other legal requirements. 4) The Approval Holder goes on to make submissions that appear to attempt to answer some of the questions posed by the Tribunal in its questions of March 11 and 19, 2014. With respect, this is clearly improper. The issue before the Tribunal is the objection to the ability of Dr. Cox to give further evidence. If the Tribunal wishes to have direct submissions on these other matters from counsel, a separate process should be established.

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5) Dr. Cox has now expressed a specific opinion. His opinion strongly supports the approval of the Project. As a result, he has clearly expressed a position in favour of the Respondents position in this case. Having expressed this opinion, and strongly, he cannot now reasonably be viewed by any objective observer as having a neutral stance on these issues. His position is clear and supports a particular outcome. 6) To now return to Dr. Cox either to ask him (a) to clarify how he came to this strong opinion that exclusively favours one specific outcome, or (b) to opine on new matters as if he had not already taken a position, would leave any reasonable and informed observer questioning why that witness is being afforded the opportunity to clarify his strong opinion, and then give even more evidence on the same subject matter. Taking such a step with a witness already in this position would raise an equally strong and very reasonable apprehension of bias. Submissions by the Director [26] The Director makes the following submissions: 1) The Tribunal has the jurisdiction to clarify the evidence it has heard or receive new evidence before it renders its decision. In this case, the Tribunal is requesting clarification of Dr. Coxs evidence. The Director disagrees with the Appellants assertion that Rule 185 does not apply in this case. The Director notes Rule 185 is included in the section of the Tribunals Rules entitled Hearing Procedure, and notes that hearing is broadly defined under Rule 3, submitting that it includes all hearing procedures from the beginning of the process until the Tribunal is functus, i.e., until the proceeding before the Tribunal is terminated. The Director states that Rule 185 is clear on its face. It provides that the Tribunal may question Parties, Participants, Presenters, witnesses or representatives on their behalf and advise when additional evidence, witnesses or submissions might assist the Tribunal. The Director, submits, therefore, that, the Tribunal has the authority to request the additional information in this case. Alternatively, the Tribunal has the jurisdiction to do so under Rule 7 which states that the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it. In doing so, the Tribunal may, under Rule 5, depart from the Tribunal Rules or

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waive any provision of the Tribunal Rules, or, under Rule 6, issue procedural orders which prevail over the Tribunal Rules. 4) Even if the Appellants characterization of the evidence as new evidence is correct, under Rule 233 a party may bring a motion to admit new evidence. Under Rule 8, the Tribunal can admit it either on its own initiative or on a motion of a Party. The new evidence must meet the criteria set out in Rule 234, namely, that the evidence is material to the issues, credible and could affect the result of the hearing, and either the evidence was not in existence at the time of the hearing, or for reasons beyond the Partys control, the evidence was not obtainable at the time of the Hearing. The evidence requested by the Tribunal meets all of these criteria. The evidence is material to the issue of whether the turbines will cause serious harm to human health which is the central issue in this appeal. It is credible in that it is evidence from an expert who has signed the acknowledgement of expert duty form and understands the role of an expert before the Tribunal. Finally, the Tribunal only recently sought the clarifications/new evidence and as such this evidence was not obtainable at the hearing. Furthermore, even if the new evidence does not meet all the criteria in Rule 234, under Rule 5, the Tribunal has the ability to waive any of the criteria. The Appellants allegations of bias are unfounded and unsupported by any evidence. The onus of proof is on the person who alleges bias. There is a presumption that a tribunal member will act fairly and impartially in the absence of evidence to the contrary. A real likelihood of probability of bias must be demonstrated. Mere suspicion is not enough. Bias must be proven with evidence under oath unless the facts are on the record or volunteered by the Tribunal Member. In this case, the Appellants have provided no affidavit evidence to support their allegations of bias. The facts on the record are the Tribunal Member has requested clarification and further analysis of Dr. Coxs evidence. These facts do not support in any way an allegation of bias. In Committee of Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, (Liberty) at page 19, the Supreme Court of Canada

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

10) No reasonable person would think that a request for clarification and further analysis demonstrates a biased or a closed mind. On the contrary, the request itself is evidence of an open and unbiased mind. If the Tribunal member had already made up his mind, why would he bother with asking for clarification? 11) Unbiased does not mean uninformed. It does not mean that the Tribunal Member cannot consider the evidence already presented and request clarification and further analysis. Far from approaching the matter with a closed mind, the Tribunal Member in this case has communicated the clarifications he requires and has been open as to what process should be followed in obtaining them. 12) The Appellants allege that the intervention of the Tribunal Member through his list of questions gives rise to a reasonable apprehension of bias. The Tribunal Members record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer. In this case, the Tribunal Member properly intervened during the hearing to focus the evidence, clarify evidence, avoid irrelevant or repetitive evidence or direct the witness to answer questions. His latest intervention is in line with his previous interventions, is properly within his role and does not create a reasonable apprehension of bias. Submissions by the Approval Holder [27] The Approval Holder adopts the submissions of the Director and makes the following additional submissions: 1) The Tribunal is given broad powers to control its own process in accordance with s. 25 of the SPPA. Section 2 of the SPPA provides that the Tribunal's authority and discretion under the Rules shall be liberally construed to

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secure the just, most expeditious and cost-effective determination of every proceeding on its merits. 2) It is widely recognized that a tribunal controls its own process and that subject to the rules of natural justice and procedural fairness, has the authority to devise procedures that will achieve a certain balance between the need for fairness, efficiency and predictability of outcome. If the Tribunal requires clarity from a party regarding submissions made during the hearing of the appeals, the Tribunal is entitled to make the necessary inquiries needed in order to fully understand the evidence submitted. In addition to the Directors submissions regarding the application of Rule 185, the Approval Holder notes there is no temporal or time restriction stated in this rule respecting its application. The Approval Holder notes that Rule 185 provides that the Tribunal may question a witness when additional evidence might assist the Tribunal. On plain reading, this means that evidence has already been heard and something more is required. Otherwise, this rule would not include the word additional. This means that the Tribunal has the authority to ask for additional evidence at any point in the hearing. The Appellant contends that the "hearing" of this matter has ended. However, the Tribunal has not yet issued its decision and is still seized of the matter. As such, it is not functus and has not lost its authority to seek such information. The functus principle means that once a tribunal has reached a final decision, the decision cannot be revisited simply because the tribunal has changed its mind. In support of this position the Approval Holder cites Society of Management Accountants (Saskatchewan) v. Ostoforoff (2005), 33 Admin. L.R. (4th) 166, 2005 CarswellSask 488, 2005 SKQB 317, 264 Sask. R. 316 at para. 12. In this case, the Tribunal is not functus and therefore has the ability to seek clarifications on the evidence tendered. This contention is supported by Rule 238, which allows the Tribunal to review a decision which has been rendered on the basis of new evidence. The Appellants' argument on jurisdiction would lead to an absurd and inefficient result.

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Rule 238 states the Tribunal has the authority to reconsider its decision even after the hearing is completed to hear new evidence. The Appellants' interpretation would mean that although the Tribunal can, in review, reconsider its decision after the decision has been rendered in order to correct an error, the Tribunal does not have the jurisdiction to ask for clarifications in advance of the final decision to avoid making the error. This cannot be correct. Similarly, the Appellants' argument in relation to the court's favouring finality of a decision is simply not applicable in this case. It also leads to a loss of judicial efficiency.

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10) All of the cases cited by the Appellants relate to the re-litigation of issues finally decided in a prior judicial proceeding. In this case, as set out above, the Tribunal is not functus and there are no issues being challenged in another forum or on appeal. 11) It is important to properly characterize the information being sought by the Tribunal. The Tribunal has not asked "leading questions" as alleged by the Appellants. In this case, the Tribunal has sought clarification of the evidence provided by Dr. Cox. 12) It appears that the Tribunal is trying to understand Dr. Cox's evidence in regard to the level of incremental risk and probability of an incident that can be attributed to the Project. In the information that the Tribunal has requested, it has asked for clarification of the calculation of Dr. Cox. The Approval Holder notes that no information or evidence in this regard has been provided by the Appellants. 13) It is disingenuous for the Appellants to suggest that the information requested by the Tribunal is in the nature of allowing Dr. Cox to "have a second kick at the can". The facts simply do not bear out this assertion. 14) If a motion is made pursuant to Rules 233 and 234 of the Rules of Practice and the moving party is unable to satisfy all three branches of the Rule 234 test, the Tribunal can use its broad powers provided for in Rules 5 and 8 to admit the new evidence. In support of this position the Approval Holder cites St. Saviour at para. 22. The Approval Holder notes that, in that case, the Tribunal admitted new evidence despite the fact that the moving party

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could not satisfy the third requirement set out in Rule 234, waiving this requirement pursuant to Rules 5 and 8. 15) The evidence of Dr. Cox is entirely material to the issues as framed in the Notices of Appeal and a fulsome understanding of the evidence is required in order for the Tribunal to make an informed decision. Furthermore, Dr. Cox was qualified as an expert by the Tribunal, with his qualifications put forward on consent of all parties. There was no question about his independence or qualifications. Consequently, Dr. Cox's evidence should be deemed to be eminently credible. 16) In Erickson v. Ontario (Ministry of the Environment), (2011) 61 C.E.L.R. (3d) 1 (Erickson) at para. 34, the Tribunal indicated that it "wishes to have the best evidence available in discharging its statutory duties." To deny providing the requested information to the Tribunal would be to deny the Tribunal the best available evidence. Findings on Issue No. 1 [28] The determination of this procedural issue requires consideration of the Tribunals Rules. Pursuant to s. 25.0.1 and 25.1 of the SPPA, the Tribunal has the power to determine its own procedures and practices, provided that these rules are consistent with the SPPA and other Acts to which these rules relate. It is important to note, therefore, that the Tribunals practice and procedure may differ from court practice and procedure. Furthermore, because the Rules must be consistent with the Tribunals enabling legislation, the Rules must be interpreted in the context of this legislation. This intent is made evident in the purposes of the Rules, as set out in Rule 1, which states that one of these purposes is to assist the Tribunal in fulfilling its statutory mandate. [29] In determining whether additional evidence is necessary, the Tribunal is required to consider more than just the impact the additional evidence may have on the respective positions of the parties. The Tribunal must be satisfied that it has sufficient evidence before it to fulfil its statutory mandate and make a just determination of this proceeding on its merits. While the Tribunal primarily relies on the parties to identify and present the evidence and submissions relevant to the appeal, the Tribunal must be able to request additional evidence, if necessary, in order to fulfil its statutory role. [30] The Tribunals Rules, Rule 185 in particular, must be considered in the above context. As the Appellants argue that Rules 233 and 234 govern the Tribunals jurisdiction to request additional evidence, the Tribunal has compared these rules to

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Rule 185. Rule 185 provides that the Tribunal may advise when additional evidence, witnesses or submissions might assist the Tribunal. Rules 233 and 234 govern the procedure when a party may bring a motion to adduce new evidence. The Tribunal notes that, if Rules 233 and 234 govern the Tribunals jurisdiction to request additional evidence, there would be no purpose in including Rule 185 in the Rules. [31] However, the Appellants assert that Rule 185 applies to the Tribunals jurisdiction to request evidence only while evidence is being adduced by the parties. They maintain that, once all the evidence has been heard, the Tribunals jurisdiction to request evidence is then governed only by Rules 233 and 234. In this regard, the Appellants note that Rule 185 is placed in the section of the Rules entitled Hearing Procedure. The Appellants maintain that Hearing refers to the calling of evidence by the parties, and, therefore, Rule 185 can only apply during the phase of the hearing when the parties are calling their evidence. The Tribunal does not accept these submissions for the following reasons. First, on plain reading, Rule 185 does not impose any time restriction on when the Tribunal may request additional evidence, witnesses or submissions. While Rule 185 falls under the general heading "Hearing Procedure", the Rule itself does not refer to the "Hearing" as defined in Rule 3. In contrast, Rule 233 refers directly to the "Hearing" and expressly imposes a time restriction on when a party maybring a motion to admit new evidence. This reinforces that, if the intent of Rule 185 was to place a time restriction on when the Tribunal may request additional information, an express provision to this effect would have been included in this rule. Furthermore, the Tribunal notes that Rule 185 allows the Tribunal to make an additional request for submissions, which, clearly follow the calling of evidence. This clearly indicates that a request for additional information may be made after the parties have called their evidence. [32] The Tribunal has also considered a purposive analysis of Rules 185 juxtaposed with Rules 233 and 234. Regarding the latter, the Tribunal notes that its hearing procedures require that parties exchange all relevant documents and witness statements prior to the hearing of evidence. Consequently, it is expected that the parties will have had a full opportunity to consider the evidence they wish to adduce before the Tribunal. The purpose of Rules 233 and 234, therefore, is to limit a partys ability to re-open its case once that party has called its evidence. The obvious reason for doing so, is to ensure efficiency and timeliness of the Tribunals proceeding, as set out in Rule 3. In contrast, not all documents exchanged among the parties are before the Tribunal at the hearing, only those on which they intend to rely. The Tribunal

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receives only the evidence of the witnesses and specific documents which are entered as exhibits. The Tribunal often asks questions of the witnesses as they testify. However, especially in the case of an expedited hearing such as this one, it may not become readily apparent to the Tribunal whether it has sufficient evidence to fulfill its statutory mandate, until the Tribunal has had an opportunity to hear all the evidence, receive submissions from the parties, and review the evidence in detail in light of those submissions. Consequently, in order to fulfil its statutory mandate and make a just determination on the merits, the Tribunal must, at times, be able to request additional evidence after the parties have called their evidence. Therefore, Rule 185 has a different purpose from Rules 233 and 234. [33] The Tribunals conclusion in this regard is further reinforced in the Acknowledgement of Expert Duty (Form 5), which each witness who gives opinion evidence must sign (see Rule 170(d)). This form requires that the witness, among other things, acknowledge his/her duty to provide opinion evidence in accordance with Tribunals Practice Direction for Technical and Opinion Evidence (the Practice Direction) and to provide such additional assistance as the tribunal may reasonably require to determine a matter in issue (emphasis added). Furthermore s. 8 and 9 of the Practice Direction describe the role of the Tribunal and the Tribunals expectation of opinion witnesses:
The Role of the Tribunal 8. The decisions that the Tribunal must make involve the public interest and may have serious and far-reaching environmental consequences. These decisions must be based on a balanced record, composed of accurate and reliable technical information and professional opinions. All Parties and their representatives and witnesses have a responsibility to contribute to such a balanced record to assist the Tribunal to fulfill its duty. They are expected to make every effort to comply fully with this Practice Direction. The Tribunal expects that lawyers and other representatives will provide appropriate direction to witnesses to achieve this result. 9 (f) The witness has a duty to change his or her opinion where circumstances, such as the receipt of new information, require it. If at any time before the Tribunal issues its final decision, the witness changes his or her view on a material matter for any reason, particularly after having read the reports or listened to the evidence of witnesses for other Parties, the change in the information and/or opinion should be communicated to the other Parties and the Tribunal without delay. Where reports or documents prepared by the witness contain errors or information which has changed, this must be promptly identified. However, the witness must not change his or her opinion or change or withhold information to suit the position taken by any Party.

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[34] The Tribunal notes that these provisions emphasize the Tribunals role in considering matters affecting the public interest, and that an opinion witness may, in the circumstances described, be expected to provide additional evidence after giving his/her testimony at the hearing. [35] In light of the above findings, the Tribunal does not find it necessary to consider the scope of the term Hearing as it applies to Rule 185 by virtue of its placement following the "Hearing Procedure" heading. As noted above, the word "Hearing" is not employed in Rule 185. Clearly, the Tribunal has the jurisdiction to request additional evidence after a Hearing even if the Appellants narrow interpretation of Hearing is applied. [36] In conclusion, based on the above analysis and findings, the Tribunal finds that it does have the jurisdiction under Rule 185 to request additional evidence at this stage in the proceeding. [37] In reaching this conclusion, the Tribunal has considered the Appellants submission that additional delay and expenditure of resources may be occasioned by this request for additional evidence, in order to allow the parties to examine/crossexamine Dr. Cox on responses, and call a witness in reply. The Tribunal accepts that this may occur. However, the Tribunal notes that the additional evidence is narrowly focussed on one issue, and, therefore, it does not appear that extensive time and resources would be required. Regarding the observation that further adjournment would be required, the Tribunal notes that the Tribunal has already granted the parties request to bifurcate the hearing, and that the parties have already indicated they may need to call further evidence in respect of remedy. In this regard, the Tribunal also notes that it cannot rule out the possibility that the additional requested evidence may be of some relevance to the issue of remedy. For these reasons, the Tribunal does not find there will be any significant impact on the efficiency of the proceeding, if the additional evidence is requested. [38] The Tribunal has found that it has jurisdiction, under Rule 185, to request the additional evidence. If, in the alternative, it is assumed that the Tribunal does not have jurisdiction under this Rule, the Tribunal would nonetheless exercise its jurisdiction under Rules 4, 5, 6 and 7 to request the additional evidence. The Tribunal is satisfied that it should have the requested information in order to ensure that the Tribunal can make a sound decision on the merits. Any potential prejudice to any of the parties can be addressed by allowing, where necessary, a further opportunity to examine/crossexamine Dr. Cox respecting his responses, or by calling reply evidence.

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Issue No. 2: Whether requesting the additional evidence would raise a reasonable apprehension of bias. Submissions of the parties [39] The parties submissions respecting bias have been summarized in their submissions in respect of Issue No. 1. Findings on Issue No. 2 [40] The Appellants grounds for claiming bias are twofold. First, the Appellants assert that the Tribunal does not have the jurisdiction to request the additional evidence, and, therefore, the Tribunal would demonstrate bias if it proceeds with its request. As the Tribunal has already found that it has the jurisdiction to make this request, the Appellants have not established a basis for an apprehension of bias on this ground. [41] The second ground asserted by the Appellants, is that the Tribunals request for additional evidence establishes that there is a deficiency in Dr. Coxs evidence, and, consequently, Dr. Cox is being presented with the opportunity to amend or substantially bolster his evidence. The Appellants maintain that the Tribunals request for additional evidence will resuscitate the defective evidence of Dr. Cox, and, therefore, the admission of such evidence appears to result in a major benefit for one party. The Appellants maintain, therefore, that, if the Tribunal proceeds to receive the additional evidence, this would inevitably taint the Tribunals decision in this proceeding in favour of the Approval Holder. They assert that the Approval Holder should not now be granted such a great indulgence to remedy deficiencies in its case. [42] For the following reasons, the Tribunal finds that the Appellants have not established an apprehension of bias based on this second ground. [43] The Tribunal first notes that Dr. Cox is the only opinion witness who provided a detailed probability analysis in respect of the Health Test. It is for this reason alone that the questions have been addressed only to Dr. Cox, who is a witness for the Approval Holder. [44] Secondly, the Appellants assertions are based on an assumption that Dr. Coxs evidence is defective, and that the opportunity to answer the questions will permit him to amend or substantially bolster his evidence. However, the Appellants have not provided any basis for this assumption, other than, perhaps, a presumption that there must be some deficiency in his evidence because the Tribunal has asked for additional evidence. The Tribunal notes that Rule 185 provides that the Tribunal may advise when

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additional evidence might assist the Tribunal. Therefore, there is no presumption that the questions, once answered, will assist the Tribunal. It is also important to note that neither Dr. Cox nor the Approval Holder has asked to provide additional information. Furthermore, the Tribunal requires that Dr. Cox respond only to very specific questions. Consequently, there can be no presumption that his answers to the questions will resuscitate his evidence as asserted by the Appellants. The Tribunal does not rule out the possibility that the answers to the questions could result in Dr. Cox changing his opinion, or providing a correction if he finds his evidence is in error. However, as noted under Issue 1, he is obliged to do so pursuant to his Acknowledgement of Experts Duty, and s. 9(f) of the Practice Direction. [45] The Appellants argue that the Tribunals questions are leading and directive in nature, and do not allow Dr. Cox to provide a fair, unbiased and uncompromised account of his evidence. The Tribunal agrees that the questions are directive, in that they circumscribe the subject matter of the additional evidence that Dr. Cox will provide. However, if anything, this is consistent with the Appellants assertion that Dr. Cox should not be offered open latitude to resuscitate his evidence. In any event, the questions do not direct how Dr. Cox answers these questions. Therefore, the Tribunal does not accept the Appellants argument that Dr. Cox would be unable to provide a fair, unbiased and uncompromised response to these questions. [46] Finally, the Tribunal notes that it cannot be assumed that the additional evidence will support the positions taken by any of the parties. To the extent that it does, the Tribunal has already addressed this consideration under Issue No. 1 above. The Tribunals role is to fulfill its statutory mandate and to make a just determination on the merits. This requires that the Tribunal consider more than just the impact that such additional evidence may have on the respective positions of the parties. As the Tribunal stated in Erickson, at para. 34, the Tribunal wishes to have the best evidence available in discharging its statutory duties. [47] The onus is on the Appellants to establish their claim that there would be an apprehension of bias if the Tribunal proceeded to request the additional evidence. As noted in the Directors submissions, the Supreme Court of Canada, in Liberty, has stated that the test is whether there is a reasonable apprehension of bias. For the above reasons, the Tribunal finds that the Appellants have not established any basis on which to conclude that there would be a reasonable apprehension bias if the Tribunal proceeds to request the additional evidence.

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[48] On consent of the parties, an examination and cross-examination of Dr. Cox respecting his responses to the List of Questions, will be heard by the Tribunal on April 10, 2014. The Appellants agree that, if they propose to call a witness to respond to Dr. Coxs additional evidence, they will serve such evidence, in the form of a sworn affidavit, on the Director and Approval Holder by 4 p.m. on April 8, 2014. Any objection by the Approval Holder or the Director to the admission of this evidence, will be heard as a preliminary issue at the hearing on April 10, 2014. Examination and crossexamination on any admissible reply evidence will also be heard on April 10, 2014. On consent of the parties, the following due dates are set for filing submissions in respect of the additional evidence. The Appellants submissions will be served on the responding parties, and filed with the Tribunal, by 4:30 p.m. on April 14, 2014. The responding submissions of the Director and the Approval will be served and filed with the Tribunal by 4:30 p.m. on April 15, 2014. Any reply submissions by the Appellants will be served and filed with the Tribunal by 4:30 p.m. on April 16, 2014. [49] Dr. Cox resides in England. On consent of the parties, the Tribunal directs that he may testify by video conference. The Tribunal will hold the hearing at the Tribunals offices in Toronto and the Tribunal case coordinator will provide notice of the hearing room. [50] Pursuant to s. 59 of O. Reg. 359/09, on the Tribunals initiative, this proceeding is adjourned to April 10, 2014. Pursuant to s. 59(2), the period from April 5 to and including April 9, 2014, shall be excluded from the calculation of time for purposes of calculating the time period mentioned in s. 59(1). In making this disposition, the Tribunal notes that this hearing has been bifurcated at the request of the parties, and that, additional hearing days potentially may be required to hear evidence and submissions respecting remedy. Therefore an adjournment is necessary to ensure that such evidence and submissions can be heard within the time period specified under s. 59(1). As such, it is the opinion of the Tribunal that an adjournment is necessary to secure a fair and just determination of the proceeding on its merits. ORDER [51] The Approval Holder is directed to obtain a written response by the witness, Dr. Cox, to all but the final question listed in the List of Questions, by March 31, 2014.

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[52] The parties are directed to collaborate to produce, if possible, a response to the final question listed in the List of Questions, by way of an agreed statement of facts. [53] Examination and cross-examination of Dr. Cox respecting his responses to the List of Questions, will be heard by the Tribunal on April 10, 2014. [54] If the Appellants propose to call a witness to respond to Dr. Coxs additional evidence, they will serve such evidence, in the form of a sworn affidavit, on the Director and Approval Holder by 4 p.m. on April 8, 2014. Any objection by the Approval Holder or the Director to the admission of this evidence, will be heard as a preliminary issue at the hearing on April 10, 2014. Examination and cross-examination on any admissible reply evidence will also be heard on April 10, 2014. [55] On consent of the parties, the Tribunal directs that Dr. Cox may testify by video conference. The Tribunal will hold the hearing at the Tribunals offices in and the Tribunal case coordinator will provide notice of the hearing room. [56] The following due dates are set for filing parties submissions in respect of the additional evidence. The Appellants submissions will be served on the responding parties, and filed with the Tribunal, by 4:30 p.m. on April 14, 2014. The responding submissions of the Director and the Approval Holder will be served and filed with the Tribunal by 4:30 p.m. on April 15, 2014. Any reply submissions by the Appellants will be served and filed with the Tribunal by 4:30 p.m. on April 16, 2014. [57] Pursuant to s. 59 of O. Reg. 359/09, on the Tribunals initiative, this proceeding is adjourned to April 10, 2014. Pursuant to s. 59(2), the period from April 5 to and including April 9, 2014, shall be excluded from the calculation of time for purposes of calculating the time period mentioned in s. 59(1).

Procedural Directions Ordered Telephone Conference Call Scheduled Adjournment Ordered

Dirk VanderBent Dirk VanderBent, Vice-Chair Appendix A List of Questions Appendix B Relevant Legislation and Rules

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Appendix A

List of Questions
Preamble re: Cox evidence You will recall that Dr. Cox said the probability of parachute failure is 1/1000, but to be conservative he would put it at 1/100. He stated that there was 2.5% probability of hitting a turbine or its turbulence wake. So if we multiply these two probabilities to arrive at the probability of both parachute failure and hitting a turbine/wake, [0.01 x 0.025] we get 0.00025 or 2.5/10,000th. It appears that this number is 2.5 /100 of 1%. Yet Dr. Cox states in his report that the probability is less than 1/1,000 of 1%. If the same calculation is done using the less conservative probability cited by Dr. Cox (1/1000), the probability of hitting a turbine/wake is 0.001 x 0.025 = 0.000025 or 2.5/100,000th. This value is 2.5/1,000 of 1%, which, of course, is not less than 1/1,000th of 1%. So it appears that neither of these assumptions of probability for parachute failure explains Dr. Coxs conclusion of less than 1/1,000th of 1% as stated in his report. Therefore, further clarification of Dr. Coxs calculations is required. Regarding the evidence of Dr. Cox Paragraph 6(iv) of Dr. Cox's report Risk Assessment of Interactions between Wind Turbines and Skydive Operations, sets out Dr. Cox's conclusion that the incremental risk contributed by the presence of the wind turbines (T4 and T5) is less than onethousandth of one percent. Is it Dr. Cox's evidence that less than 1/1000 of 1% is the probability that, for any single jump, wind turbines T4 and T5 (inclusive of their turbulent wake) will be hit by a jumper ("Individual Jump Probability")? If so, what is the exact probability, and how did he calculate it. If not, what is Dr. Cox's evidence respecting the Individual Jump Probability, and how does he calculate it? Based on the Individual Jump Probability, what is Dr. Cox's evidence regarding the probability that the wind turbines (inclusive of their turbulent wake) will be hit by a jumper during the lifetime of the REA Approval? There are several probability distribution models. For example, is the applicable probability distribution model the binomial distribution?

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Dr. Cox is requested to apply the appropriate probability distribution model based on the following assumptions: (i) a success is defined to be a collision with T4 or T5 or their turbulent wake, as described in Dr. Coxs report; (ii) the probability of collision with T4or T5 including their turbulent wake, on a single jump, is either 0.00025, 0.000025, or such other probability as calculated by Dr. Cox; and (iii) for purposes of the model, a trial is an individual jump. For each of the single jump probabilities, calculate the cumulative probability of success being greater than or equal to 1, where the number of trials (jumps) is 500, 1,000, 1,500, 4,000 per year, each multiplied by the 17 years which appears to the minimum length of the Project lifetime (i.e. 8,500, 17,000, 25,500, ,68,000). Under the REA, what is the retirement date for the Project?

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Appendix B

Relevant Legislation and Rules


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. Terms and conditions (2) In issuing or renewing a renewable energy approval, the Director may impose terms and conditions if in his or her opinion it is in the public interest to do so. Other powers (3) On application or on his or her own initiative, the Director may, if in his or her opinion it is in the public interest to do so, (a) alter the terms and conditions of a renewable energy approval after it is issued; (b) impose new terms and conditions on a renewable energy approval; or (c) suspend or revoke a renewable energy approval Hearing required under s. 142.1 145.2.1 (1) This section applies to a hearing required under section 142.1. What Tribunal must consider (2) The Tribunal shall review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy approval will cause, (a) serious harm to human health; or (b) serious and irreversible harm to plant life, animal life or the natural environment. Onus of proof (3) The person who required the hearing has the onus of proving that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b Powers of Tribunal (4) If the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will cause harm referred to in clause (2) (a) or (b), the Tribunal may,

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(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

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(5) The Tribunal shall confirm the decision of the Director if the Tribunal determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause harm described in clause (2) (a) or (b). Deemed confirmation of decision (6) The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

Statutory Powers Procedure Act


Liberal construction of Act and rules 2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. Evidence What is admissible in evidence at a hearing 15. (1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious. What is inadmissible in evidence at a hearing (2) Nothing is admissible in evidence at a hearing, (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or (b) that is inadmissible by the statute under which the proceeding arises or any other statute. Conflicts (3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

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Copies (4) Where a tribunal is satisfied as to its authenticity, a copy of a document or other thing may be admitted as evidence at a hearing. 25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under section 25.1

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25.1(1) A tribunal may make rules governing the practice and procedure before it. Application (2) The rules may be of general or particular application. Consistency with Acts (3) The rules shall be consistent with this Act and with the other Acts to which they relate.

Ontario Regulation 359/09


Date of deemed confirmation 59. (1) Subject to subsections (2) and (3), the prescribed period of time for the purposes of subsection 145.2.1 (6) of the Act is six months from the day that the notice is served upon the Tribunal under subsection 142.1 (2) of the Act. (2) For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time: 1. Any period of time occurring during an adjournment of the proceeding if, i. ii. the adjournment is granted by the Tribunal on the consent of the parties, or the adjournment is, A. on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties, B. not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and C. necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.

Tribunals Rules of Practice


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

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facilitate and enhance access and public participation; to encourage cooperation among Parties; to assure the efficiency and timeliness of proceedings; and to assist the Tribunal in fulfilling its statutory mandate. Definitions 3. These definitions apply to these Rules and Practice Directions unless the context requires otherwise, Hearing means a written, oral or electronic procedure held by the Tribunal where a person has the opportunity to present ones case and includes motions, Pre-Hearing Conferences, Preliminary Hearings, main Hearings and review Hearings, but does not include mediation; proceeding includes a Hearing and refers to all matters before the Tribunal in respect of an appeal, application or referral; Interpretation 4. These Rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. 5. If it considers it appropriate in the particular circumstances, the Tribunal may depart from these Rules or may waive any provision of these Rules other than a provision which is also found in a statute or regulation. 6. The Tribunal may issue procedural orders for a proceeding that, if in conflict with these Rules, prevail over these Rules.

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7. During any proceeding, the Tribunal may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate the matter before it. 8. The Tribunal may exercise any of its powers under these Rules or applicable laws on its own initiative or at the request of any person. 9. Where any of these Rules or orders issued by the Tribunal conflict with any statute or regulation, the provisions of the statute or regulation shall prevail. 10. No proceeding is invalid by reason only of a defect or other irregularity in form. HEARING PROCEDURE Evidence and Submissions 185. The Tribunal may question Parties, Participants, Presenters, witnesses or representatives on their behalf and advise when additional evidence, witnesses or submissions might assist the Tribunal. NEW EVIDENCE 233. Once the Hearing has ended but before the decision is rendered, a Party may make a motion to admit new evidence.

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

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