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Access to Justice: Recommended Reforms to the Ontario Justice System Using the Green Energy Act as an Example

Authors:
Open Journal of Social Sciences, 2021, 9, 1-19
https://www.scirp.org/journal/jss
ISSN Online: 2327-5960
ISSN Print: 2327-5952
DOI:
10.4236/jss.2021.91001 Jan. 11, 2021 1
Open Journal of Social Sciences
Access to Justice: Recommended Reforms
to the Ontario Justice System Using
the Green Energy Act as
an Example
Alan Whiteley1, Anne Dumbrille1*, John Hirsch1,2
1CCSAGE Naturally Green (County Coalition for Safe and Appropriate Green Energy), Picton, Canada
2South Shore Joint Initiative, Picton, Canada
Abstract
Methods:
A document was prepared and sent by
a lawyer, Alan Whiteley, to
Ontario government officials that identified the main concerns with the Green
Energy Act and its impact on the rights of citizens. The Act had been intr
o-
duced in 2009 in efforts to make Ontario a world leader in “green” energy
production. With the passing of the Green Energy Act, a number of statutes
were also amended in order to achieve this goal; they reduced impediments t
o
the approval of industrial wind turbine projects. The letter in its entirety is i
n-
cluded in this paper. Mr. Whiteley had been involved in a legal case initiated
by a not-for-profit organization that argued that the regulatory changes i
m-
pacted the rights
of citizens. Documents such as those submitted through that
court filings, such as Factums and Affidavits provided by Ontario residents,
and other documents are referenced.
Objectives:
The goal of the letter was to
affect modernization of the justice syste
m to improve access to justice, citizen
rights and animal protection.
Results:
The letter identified and described
changes to Acts and policies, gave examples of impacts, and offered possible
reform proposals that would allow citizens fair access to justic
e and protect their
rights
. These proposals were solutions through changes to the legal system. No
reply to the letter was received from any of the government officials, increasing
concern regarding the value of the voice of the public.
Keywords
Green Energy Act, Wind Turbines, Natural Justice,
Access to Justice
How to cite this paper:
Whiteley, A.,
Dumbrille, A
., & Hirsch, J. (2021).
Access
to Justice: Recommended Reforms to the
Ontario Justice System Using the Green
Energy Act as an Example
.
Open Journal of
Social Sciences
, 9,
1-19.
https://doi.org/10.4236/jss.2021.91001
Received:
November 28, 2020
Accepted:
January 8, 2021
Published:
January 11, 2021
Copyright © 20
21 by author(s) and
Scientific
Research Publishing Inc.
This work is licensed under the Creative
Commons Attribution International
License (CC BY
4.0).
http://creativecommons.org/licenses/by/4.0/
Open Access
A. Whiteley et al.
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10.4236/jss.2021.91001 2
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1. Background
In 2009, a former Premier of Ontario introduced new laws and modified many
statutes in place in efforts to make Ontario a world leader in “green” energy pro-
duction. The Green Energy and Green Economy Act (2009) was passed and
statutes such as the Planning Act, the Municipal Act, the Endangered Species
Act, and the Ontario Heritage Act were amended in order to achieve this with
minimal interference to the approval and construction of wind turbine facilities
from special interest groups such as the public or municipal governments (CBC
News Report, 2009). The legislation and the implementation guidelines enabled
these devices to be installed across rural Ontario in contravention of municipal
bylaws, official plans and property assessment rights, and any local objections, as
discussed in the letter below. Additional details and the resulting outcomes will
be described in a subsequent paper.
Prior to the Green Energy Act being implemented, industrial sized wind tur-
bine-related adverse health effects and effects on species at risk, including bats,
eagles and other birds had been reported (Jeffery et al., 2014; Jones et al., 2009;
Ontario Municipal Board Decision, 2007; Sprague et al., 2011; Standing Com-
mittee on General Government, 2009). After passing the Act, wind turbine pro-
jects were rapidly approved by the government across rural areas in the prov-
ince: with the onset of operating wind turbines, residents living near the wind
turbines submitted thousands of noise and health related Incident Reports/com-
plaints to the Ministry of Environment (Krogh et al., 2019; Wind Concerns On-
tario, 2020).
In the majority of areas in Ontario where approvals were given for these pro-
jects, people living near the proposed areas voiced concerns, particularly re-
garding their potential effects on human health, water quality, endangered spe-
cies and their habitats. Many legal cases were filed (Wilson et al., 2020). The Act
specified that the only legal recourse when objecting to an industrial wind tur-
bine (IWT) project was to file an appeal to an Environmental Review Tribunal
(ERT). The Act strictly limited what could be addressed: the appellant had to
prove that engaging in the renewable energy project in accordance with the re-
newable energy approval will cause, 1) serious harm to human health; or 2) se-
rious and irreversible harm to plant life, animal life or the natural environment
(Green Energy and Green Economy Act, 2009).
By 2018, of the 80 applications by developers to obtain a project approval—an
REA (Renewable Energy Approvals) to construct IWTsonly two were not ap-
proved, and two were revoked by ERTs (King et al., 2015; Kotsis, 2013; Rosen-
garten and Paulin, 2017; Province of Ontario Datasets; TBNewswatch 2015; com-
plete list available on request).
When IWT projects were proposed in Prince Edward County, Ontario, a not-
for profit group of concerned citizensthe County Coalition for Safe and Ap-
propriate Green Energy (CCSAGE Naturally Green) approached lawyer Mr. Alan
Whiteley. The Coalition was of the opinion that the approval process was biased
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and unfair to rural citizens. Mr. Whiteley agreed to represent it by filing a Judi-
cial Review of the process by which a Renewable Energy Approval (REA) was
issued in Prince Edward County.
It was considered by the lawyer that, although the goal of reducing greenhouse
gas emissions of the Green Energy Act and related changes was noble, the changes
in fact resulted in a reduction in access to justice and in citizen rights. In an ef-
fort to prevent future Acts and policy decisions from making similar mistakes,
an analysis was made of the outcome of the changes, and sent to government of-
ficials with recommendations as to how they might be prevented in the future.
2. Methods: Judicial ReviewRecords and Process
In 2015, a Judicial Review was filed by CCSAGE Naturally Green by Mr. Whiteley
as the legal representative (CCSAGE Naturally Green, Court File No. 15-2162).
The Judicial Review requested that the Supreme Court of Ontario answer the fol-
lowing questions:
Is the REA that was issued to construct an industrial wind turbine project
the result of institutional bias in the GEA and/or operational bias by the
various Ministries?
Was the implementation of the GEA an infringement of natural justice and
a denial of rights created under the Charter of Rights and Freedoms, in that
residents of rural Ontario are discriminated against as turbines will never be
located in urban communities?
The Judicial Review record included over 50 sworn affidavits prepared by in-
dividuals from across the province. Issues such as the GEAs removal of power
from Municipalities and the lack of meaningful account of the impact on health,
endangered species, and the local economy including tourism, property and
business values were raised.
The Act to Terminate the White Pines Wind Project in Prince Edward County
(Bill 2) was introduced after a change of government in 2018. Although this Act
delivered a remedy being sought in the Judicial Review application (cancellation of
the IWT project), the Charter challenge of the GEA was not addressed. In order to
secure remedial action for owners of lands abutting operating wind turbines, an
updated Application to the Ontario Superior Court was filed in 2019 to have the
GEA declared discriminatory and thus unconstitutional (CCSAGE v. ONTARIO
(AG)Superior Court of JusticePicton Court File CV-19-00000154-0000).
In December 2019, the Ontario Attorney General brought a motion to strike
the court case on the following three grounds: 1) the applicant CCSAGE lacks
standing to bring the application; 2) the application is moot, vexatious and an
abuse of process; and 3) the application is devoid of merit. Alternatively, the of-
fice of the Attorney General asked to strike the paragraphs in the affidavits filed
by the applicant that are irrelevant, legal argument, speculative and hearsay (Court
File CV-19-00000154-0000, 2019).
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After four years, through both Liberal and Progressive Conservative govern-
ments, the non-profit organization withdrew the file due to an illness of Mr. White-
ley, and depletion of financial and other resources to conduct the case.
See sec-
tion
Acknowledgement
.
During the four years of the court case, concerns regarding a lack of access to
justice by citizens were identified by the representing lawyer, Mr. Alan Whiteley
and others (Conroy, 2015a, 2015b; Goldstein, 2018; Krogh, 2011; McRobert,
2011; McRobert et al., 2016). Concerns ranged from issues such as: financial is-
sues when the public takes the government and “deep-pocket” corporations to
court; time constraints when the public has a mere two week window to hire
lawyer(s) and collect adequate funding to file an appeal; the perceived bias of the
GEA and its implementation to favour the wind turbine corporations over citi-
zens; a lack of political influence of low-population rural areas where IWTs are
located; and the limited jurisdiction of the Environmental Review Tribunal im-
posed by the GEA. These concerns identified weaknesses in the legal system that
could generally affect the rights of citizens.
The Attorney General proposed to modernize the legal process, with a shift
toward innovation and new technology (Ontario Newsroom, 2020). However,
based on Mr. Whiteleys observations, the changes would have little or no im-
pact on access to justice without fundamental changes to the substantive laws of
Ontario. The idea of modernization of the legal process stimulated an analysis of
the concerns resulting from legislation relating to the GEA that were identified
during the preparation of the legal documents that supported the CCSAGE legal
case. The main issues were identified, listed and described in a document. For
each of these main concerns, possible changes to the legal process that could
prevent or reduce the impact of those problems arising from new legislation were
suggested. The goal was to affect changes to the legal process to prevent similar
negative outcomes occurring with future legislative changes and to allow citizens
fair access to justice. The document was offered to the government of Ontario
within a letter.
3. Requirement and Recommendations for Fundamental
Changes to the Ontario Legal System: A Letter Prepared
by Mr. Alan Whiteley
The letter sent by Mr. Alan Whiteley, LLB (retired), to the Premier of Ontario,
Attorney General of Ontario, Chief Justice of Ontario, Law Commission of On-
tario, and others, on July 9, 2020 is included in its entirety, below.
The letter reads
:
I am aware of circumstances that have brought the laws of Ontario into dis-
repute. The circumstances all relate to the Green Energy Act (“GEA”) and its
repeal, but they are indicative of a much larger problem, that of lack of access to
justice.
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I take as my starting point the dictum of Justice Robert Jackson in
American
Communications Association v. Douds
, 339 US 382, 442 [1950]
It is not the function of our Government to keep the citizen from falling
into error; it is the function of the citizen to keep the Government from fal-
ling into error.
The circumstances I wish you to consider are instances in which the laws of
Ontario prevented citizens from keeping the government from error. They are
concrete examples of the problem identified by Justice Rosalie Abella of the Su-
preme Court of Canada in a recent lecture at Harvard Law School.
We can’t talk seriously about access to justice without getting serious about
how inaccessible the result, not the system, is for most people. Process is the
map, lawyers are the drivers, law is the highway and justice is the destina-
tion. Were supposed to be experienced about the best, safest and fastest
way to get there. If, much of the time, the public cant get there because the
maps are too complicated, then, as Gertrude Stein said, “Theres no there
there.” And if theres no “there there”, what’s the point of having a whole
system to get to where almost no one can afford to go?
It was encouraging to learn that the Ministry of the Attorney General pro-
poses to modernize the legal process, but the news release of May 2020 indicated
that the main thrust of this modernization would consist of “shifting traditional
investments toward innovation and new technology [which] will move more
services online and position Ontario at the forefront of building the modern jus-
tice system of the future”. While moving services online is long overdue, it will
have little or no impact on access to justice without fundamental changes to the
substantive laws of Ontario.
It is my hope that your consideration of the following circumstances will lead
you to a clear realization of the fundamental changes required.
PART ONE: LEGISLATIVE BIAS
1. Biased Policy
The most charitable view of the GEA is that a former Liberal government thought
that it would lead to lower electricity costs, lower carbon emissions and the crea-
tion of a manufacturing industry capable of exporting technology. The fact that
the GEA led to increased electricity costs, increased carbon emissions and a re-
liance on foreign manufacturers and not only de-stabilized the provinces elec-
trical grid but drove industry out of the province indicates that the policy was
bad policy.
But the GEA was also biased policy. In order to spread renewable energy plants
across rural Ontario it was necessary for the government to suppress the rights
of those who might object. In 2009 the Premier of Ontario stated that the pur-
pose of the proposed GEA was to stop special interest groups or municipal gov-
ernments from trying to block green energy projects for anything other than
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safety or environmental concerns. That was biased policy, and resulted in The
Planning Act
, the
Municipal Act
, the
Endangered Species Act
, the
Ontario Heri-
tage Act
and other statutes of general application being amended or interpreted
to remove any impediment to the approval and construction of IWTs, which
were erected in contravention of municipal bylaws, official plans and assessment
rights against local objections and continue to damage communitieseconomies,
human health, land values and environments across rural Ontario.
Reform Proposal: When formulating policy that will deliberately infringe
on the existing rights of some or all of the population, at least consult with
those to be affected;
audi alteram partem.
2. Biased Consultation
The GEA and its ancillary enactments and regulations were captured from the
beginning by the wind power industry. Whether or not the wind power industry
actually wrote the GEA legislation and regulations, as enacted they closely follow
the proposal made by the Green Energy Act Alliance, a coalition of wind power
interests.
When determining mandatory setbacks for Industrial Wind Turbines
(“IWTs”) the government held a Technical Workshop on Wind Turbine Noise
to which it invited representatives of the IWT industry, all of whom submitted
that the proposed requirement for infrasound or low frequency noise monitor-
ing as a condition of the REA be removed. Despite evidence that IWTs generate
a broad spectrum of emissions including low frequency noise and infrasound
that may be inaudible (“LFN”), the government at the instance of the wind
power industry removed from the GEA any requirement to monitor and address
LFN.
Reform Proposal: When formulating policy, treat the regulated parties as
counter-parties, not as clients.
3. Ignoring Binding Principles
Had the government consulted more widely, it would have discovered that the
National Aeronautical and Space Administration (“NASA”) reported in 1985
that the dynamic (acoustical) pressure field within a residential room is influ-
enced by changes in the shape of the room caused by a diaphragm action from
external pressure changes and that sub-audible acoustic energy can cause annoy-
ance in homes when no perceptible sounds could be detected outdoors. IWTs emit
sound pressure pulsations at infrasonic rates synchronized to the IWT hub rota-
tion speed. Such emissions disrupt the normal functioning of the middle and
inner ear, as well as that of other sensory organs, leading to nausea, impaired
equilibrium, disorientation and elevated blood pressure. The low frequencies are
easily transmitted into buildings, causing psycho-acoustical annoyance and sleep
disturbance for residents.
Ontario’s Statement of Environmental Values (“SEV”) is stated to be a means
for designated government ministries to be accountable for ensuring considera-
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tion of the environment in their decisions. The SEV mandates that Ministry of
the Environment use a precautionary, science-based approach to protect human
health and the environment. The GEA overrides many important protections in
the SEV, including:
1) eliminates consideration of social and economic impacts to a community;
2) does not allow consideration of cumulative effects of multiple IWTs;
3) abandons the precautionary principle and shifts the onus to appellants;
4) bases REA decisions on incomplete, erroneous and unscientific reports.
Reform Proposal: When formulating policy that affects the environment,
do not deliberately exclude the precautionary principle that is otherwise
mandatory; and consider all factors.
4. Avoiding Environmental Impact Assessment.
Section 47.3(2) of the
Environmental Protection Act
(“
EPA
”)
states that s.9(1)
of the EPA, which makes environmental compliance approval mandatory for all
undertakings, does not apply to an IWT proponent who obtains a renewable en-
ergy approval (“REA”) under EPA s. 47.5(1)(a). As a result, by stipulating only
mandatory levels for emissions such as audible noise, the emission of other con-
taminants produced by IWT plants, such as CO2 from manufacture of cement,
pollution of water by hydrocarbons or fracked sediment, or emissions of ILFN
are not regulated or even considered.
Ontario used section 47.3(2) of the EPA to drive a coach and horses through
environmental impact requirements,
Ontario issued an REA to Windlectric Inc authorizing the construction and
operation on Amherst Island of 26 IWTs 156 m high with blades 55 m long. The
REA authorized construction of a cement plant adjacent to the islands only
school without any impact study. Initially Ontario held that the cement plant was
not part of the REA and would require environmental compliance approval. The
residents intended to challenge the application for the cement plant on the grounds
that it did not comply with the Statement of Environmental Values, especially
given the proximity to the local school. However, Ontario then amended the REA
to add the cement plant as part of the “renewable energy project” thereby allowing
construction and operation of a cement plant without any environmental assess-
ment, without any input from the public and without any opportunity to appeal.
Construction of a dock and underwater cable were dealt with in the same way.
Picton Terminals quarried aggregate at its site on Picton Bay and shipped it by
barge to be used in the construction of wind turbine installations on Amherst
Island. This was authorized by Ontario without any public review process by is-
suing an exemption on the grounds that Picton Terminals primary objective
was to improve access to the port and not aggregate creation. Thus Picton ter-
minals was authorized to deliver up to 400,000 m3 (200,000 metric tonnes) of
aggregate without any recourse to the Aggregates Resources Act or any other
environmental assessment. The barge sank, polluting Picton Bay and incapaci-
tating the municipal water system.
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Reform Proposal: When developing policy, dont deprive communities of
legislation that protects their environment.
Ontario’s erstwhile Environmental Commissioner deplored the attempt by the
government to avoid public consultation on major environmental legislation by
attempting to include it in a budget bill, stating that the governments “repeated
decisions not to consult the public, fully or at all, deprive Ontarians of the op-
portunity to participate in the wholesale reconstruction of the way in which natu-
ral resources are to be managed in Ontario in the future”.
Reform Proposal: Legislation that cannot withstand the light of public scru-
tiny is bad legislation.
Annually from 2010 to 2017 the Auditors-General of Ontario have issued re-
ports highly critical of the GEA and the FIT policy of subsidizing proponents of
IWT projects. Among the findings in those reports are the following:
1) billions of dollars were committed to renewable energy without full evalua-
tion of the impact or any comprehensive business-case analysis;
2) generation capacity in Ontario had been much larger than required, de-
mand was expected to remain flat, while supply was increasing;
3) between 2009 and 2014 electrical power excess to requirements was ex-
ported by Ontario at prices $3.1 billion dollars less than the cost of production
and Ontario paid an additional $339 million to reduce production of surplus
electricity;
4) the Respondent had entered into a major agreement with a Korean consor-
tium for expansion of the IWT industry in Ontario with no economic analysis or
business case;
5) consumers pay twice for intermittent renewable energy, once for the cost of
constructing IWTs and again for the cost of constructing gas-fired generators
needed only for the purpose of backing up IWTs.
The Ontario Society of Professional Engineers (“OSPE”) has studied the effi-
cacy of IWTs as a source of electricity in Ontario and as a method of reducing
carbon emissions, and it has concluded that back-up generation is needed be-
cause of its low capacity and intermittence, so that adding IWTs to the grid will
in fact double carbon emissions. They assert that it is mathematically impossible
in Ontario to achieve low carbon emissions without nuclear generation.
Reform Proposal: When developing policy that will affect the entire econ-
omy of the province, consult experts, not the regulated industry.
PART TWO: ADMINISTRATIVE BIAS
…there may also exist a reasonable apprehension of bias on an institutional
or structural level… if the system is structured in such a way as to create a
reasonable apprehension of bias on an institutional level, the requirement
of impartiality is not met.
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3 at Pp. 42-43
5. Biased Implementation
The GEA requires a minimum setback for each IWT of 550 m from the near-
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est “receptor” and 100 m setback from the nearest non-participating property
line. The Government has never revealed on what basis the setbacks were estab-
lished nor has it increased the setbacks to adjust for the increased size and ca-
pacity of newer IWTs.
Because of setbacks, noise levels, etc., IWTs could only be erected in rural ar-
eas. The GEA imposed industrialization across rural Ontario and deprived resi-
dents of the benefit of sound land use planning principles.
Reform Proposal: When Ontario imposes safety levels, it must have the
burden of proving their efficacy.
5.1. Setback Ignored
Ontario granted an REA for the HAF Wind project on 20 June 2013. The pro-
ject as constructed was non-compliant with 4 of its 5 IWTs at less than the pre-
scribed setback, in breach of the REA conditions. The Environmental Review
Tribunal refused to enforce the statutory minimum setback. The Ontario Om-
budsman investigated this situation and confirmed that the developer had rep-
resented that its 5 IWTs would meet the statutory setback, that members of the
public had identified the noncompliance during the comment period, that On-
tario had taken no steps to resolve the non-compliance during the comment pe-
riod. Ontario amended the REA after the fact to reduce the set-back below the
regulatory minimum to the set-backs as built, depriving abutting owners of what-
ever benefit the mandatory setback provides.
5.2. Nearby Receptor Ignored
IWTs and a Transfer Station forming part of the Niagara Region Wind Farm
surround an occupied home. The studies submitted by the developer and ac-
cepted by Ontario erroneously identified the home as a non-participating vacant
property. Despite this egregious error, Ontario issued an REA authorizing the
project, and immediately following commissioning of the project the home was
exposed to vibrations and noise which have affected the occupants health ad-
versely. Despite numerous complaints, Ontario has failed to provide any resolu-
tion to issues including vibrations, interference with internet, stray voltage, sha-
dow flicker or health impact.
Reform Proposal: No REA should deprive a resident of mandatory levels of
environmental protection.
5.3. Well Water Polluted
A 4th generation family farm in the Municipality of Chatham-Kent is located
on the Kettle Point Black Shale Aquifer, from which it has drawn potable water
for generations. As a result of the pile driving and construction of the 55 IWT
facility called East St Clair and the adjacent 34 IWT facility known as North
Kent 1, the waters of the aquifer are now contaminated with black shale particles
known to carry heavy metals such as uranium, lead, mercury and arsenic. The
water supply to the property and those of 17 neighbouring properties is no longer
safe. The particles are smaller than one micron, such that they cannot be re-
moved even by the finest filters and are easily absorbed through the skin.
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The water in a well in West Lincoln, adjacent to the Niagara Region Wind
Farm, became contaminated with silt within months of the NRWF becoming
operational. The sediment clogged filters and ruined a cold water tank, water
softening unit, reverse osmosis system, hot water tank and rendered toilets in-
operable.
Applying the precautionary principle under the Clean Water Act generally
means that caution should be exercised in favour of groundwater or surface water
protection, rather than waiting for irrefutable scientific proof that a particular land
use activity or condition has adversely affected source water quality or quantity.
5.4. Emissions Ignored
In 2011 a person particularly susceptible to electrical sensitivities built a house
specially designed to have low electromagnetic fields. He had to leave the house
after the IWTs of the West Lincoln array began operation in proximity to his
house. The IWTs release high frequency ground current and transient and har-
monic signals making his house uninhabitable. The specific wave patterns of
these emissions have been traced by experts to the types of inverter used in the
West Lincoln IWTs.
The Enbridge Underwood 110 IWT project surrounds a century home. The
owner has been unable to occupy her home since 2011. The noise from the Un-
derwood project has rendered her home uninhabitable. She has filed over 440
noise complaints, without solution. Elevated levels of infrasound experienced at
the S-residence match the signature of the Enbridge IWTs emitted by the Un-
derwood project. Representatives of the Respondent have confirmed that such
noise is “like a jet engine”. Permission by the Respondent to emit noise in the
audible spectrum is not permission to emit LFN or infrasound.
A retiree whose property abuts the NRWF sleeps in her unfinished basement
in an attempt to alleviate the impact of infrasound on her body. She suffers from
vertigo, tinnitus, delayed perception and depression. She is planning to move
from her home because the environment is now toxic.
At
https://m.scirp.org/papers/101098?fbclid=IwAR3XcUKEebiBRsLAyIEbNpGHnP
3-EQU3_hwtOx4_ovfW6f-cI6JQj7Igfc is a study of the reasons why 67 families
in Ontario have abandoned or contemplate abandoning their homes after wind
turbines started up.
Fairness between the citizen and the state demands that the burden imposed
be borne by the public generally and not by the plaintiff citizen alone.
Antrim Truck Centre Ltd.
v.
Ontario (Transportation) 2013 SCC 13 at para-
graph 39
Reform Proposal: The burdens imposed on individuals by both regulated
and unauthorized emissions authorized by state action must be remedied by
the state.
5.5. Evidence Withheld
Ontario approved the Ostrander Point project on 20 December 2012; a citizen
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group appealed to the Environmental Review Tribunal (“ERT”), which revoked
the permit on 3 July 2013 on the basis of findings that the project would cause
irreversible harm to the Blandings turtle. The proponent and Ontario appealed
to the Superior Court and the citizen group further appealed to the Ontario
Court of Appeal, which returned the matter to the ERT to determine whether
the proponent could remedy the anticipated environmental harm.
At the remedy hearing before the ERT in August 2015 Ontario produced a
surprise witness, Joe Crowley, who testified under oath that he was a herpetolo-
gist engaged by Ontario to review portions of the original habitat assessment by
the proponent and to provide comments and recommendations prior to the ap-
proval of the Ostrander Point project. There had been no information about Mr
Crowley or his review, comments or recommendations in the thousands of
documents provided by the Respondent in response to a Request for Informa-
tion made in October 2010, or at the original ERT hearing in 2013, or at the ap-
peal hearing in the Superior Court, or in a subsequent Motion to Stay, or in the
final appeal to the Court of Appeal. The ERT ordered Mr Crowley to produce all
communications he had during the original assessment process for use at the
remedy hearing. Mr Crowley finally produced a report entitled: Adult Blandings
Turtle Mortality and Population Decline, which concluded: “it is reasonable to
conclude that road mortality at the site could result in the eventual loss of the
population”.
The people of Prince Edward County paid hundreds of thousands of dollars to
protect Ostrander Point through 5 legal proceedings, all of which would have
been unnecessary had the Respondent not withheld relevant evidence and breached
its statutory duties in order to impose IWTs in an unsuitable location.
Reform Proposal: Apply proper discovery standards to administrative pro-
ceedings.
5.6. Evidence Ignored
A citizen group appealed to the Environmental Review Tribunal (“ERT”) against
the award of a Renewable Energy Approval (“REA”) for the Snowy Ridge pro-
ject. Their allegation was that the project would exceed permitted noise emis-
sions and their evidence was that the projects Noise Assessment Report was se-
riously deficient in five major categories. The ERT struck the evidence of defi-
ciencies on the basis that the ERT must assume that the regulatory limits would
be met and could not consider evidence that the project would exceed those lim-
its. Even where the manufacturer of turbines has specified higher noise levels for
its products, the ERT has ignored that evidence and accepted the lower levels set
out in the REA.
In issuing an REA, Ontario is required to act “in the public interest”. The
stated purpose of Part V.0.1 of the Environmental Protection Act, is to provide
for the protection and conservation of the “environment”, a term which includes
the social, economic and cultural conditions that influence the life of humans or
a community”. Those conditions are the direct responsibility of the local mu-
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nicipality, but the municipality has no input and the EPA regulations require no
investigation of such factors. The statutory appeal to the ERT prohibits these
factors from any consideration by the tribunal. Consequently, the social, eco-
nomic and cultural conditions in each
IWT project were completely ignored as was the impact of the REA and the
IWTs on that community.
Reform Proposal: When providing a statutory appeal, apply ordinary stan-
dards of fairness and avoid bias.
PART THREE: ACCESS TO EVIDENCE
6. Those who have challenged the GEA and questioned the underlying policy
have filed thousands of requests under the
Freedom of Information and Protec-
tion of Privacy Act
for particulars of proposed and operating IWT projects but
have faced delays of years as the protection of privacy of proponents consistently
impedes access to information for challengers. Those who suffer the environmental
impact of IWTs have in turn filed thousands of Incident Reports about emissions
by IWTs of pollutants both regulated and unregulated, but government has not
acted and the few replies received have been evasive and non-responsive.
Reform Proposal: Implement complete transparency by legislating that no
document submitted to influence government policy or decision shall be
considered private.
On 20 September 2018 the Ontario government gave notice of the introduc-
tion of Bill 34 and stated the repeal of the GEA was necessary because it led to
“the disastrous feed-in-tariff program and skyrocketing electricity rates… and
took away powers from municipalities to stop expensive and unneeded energy
projects in their communities”. In the same notice the Respondent also admitted:
“THE GREEN ENERGY ACT ALLOWED THE PREVIOUS GOVERNMENT TO
TRAMPLE OVER THE RIGHTS OF FAMILIES, BUSINESSES AND MUNICI-
PALITIES ACROSS RURAL ONTARIO.”
After the repeal of the GEA, challengers believed that Government would be
more forthcoming with the evidence in its possession. In Hansard and in press
releases Ministers had repeatedly indicated that they opposed the GEA.
Minister of Energy Greg Rickford made the following statements: The Green
Energy Act represents the largest transfer of money from the poor and middle
class to the rich in Ontarios history.
The Green Energy Act forced wasteful projects on unwilling communities
while driving up the costs of hydro bills for families and businesses across
Ontario. These projects were forced on municipalities, with little to no con-
sultation. When communities raised concerns, they were ignored, in fact
trampled by Queens Park.
Minister of Infrastructure Monte McNaughton made the following statements:
Well-connected energy insiders made fortunes putting up wind-farms and solar
panels that gouge hydro consumers in order to generate electricity that Ontario
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doesnt need.
The Green Energy Act allowed the previous government to trample over
the rights of families, businesses and municipalities across rural Ontario.
Wells that have produced clean, clear water for decades have begun pro-
ducing dirty brown, unpotable water since construction of turbines for the
North Kent I wind project began.
I think this is just yet another example of the Liberal government showing
disrespect to families in rural Ontario. If this happened in the GTA, they
would shut these projects down immediately.
The foregoing statements and many others raised precisely the issues central
to an Application made by CCSAGE, a not-for-profit corporation, for a declara-
tion that the GEA violated s.15 of the Charter of Rights, yet when CCSAGE sought
to examine the Ministers to put their evidence before the court, the Attorney-
General asserted a privilege that allegedly exempts members of the legislature
from giving any evidence in any proceeding while the legislature is sitting.
If there is such a privilege, it is of ancient origin at a time when members of
the UK parliament had to travel between constituency and London by horse or
coach. It was incorporated into Canadian law by the BNA but applied only to
members of the federal parliament. Its extension to members of provincial legis-
latures has no basis in law, and in a day when examinations can be conducted
easily and swiftly by internet, there is no practical reason to support such a
privilege.
Reform Proposal: Make evidence known to members of the legislature
available for consideration by the courts.
Instead of providing the evidence they have to support their statements, the
Ministers identified above instructed the AG counsel to bring a motion to strike
the constitutional challenge in its entirety. After four years of such resistance,
through both Liberal and Progressive Conservative governments, CCSAGEs re-
sources to conduct the case were depleted.
Reform Proposal: Avoid reverting to a scorched earthpolicy when re-
sponding to citizen challenges. A policy that cannot withstand scrutiny in
court is not a fit policy for any government to pursue.
PART FOUR: ACCESS TO COURT
Citizens must have the right to challenge laws which they consider to be be-
yond the powers of the legislatures. If legislation excludes some people from re-
ceiving benefits and protection it confers on others in a way that contravenes the
equality guarantees in the Charter, then the courts have no choice but to say so.
To do less would be to undermine the Constitution and the rule of law.
Vriend v. Alberta [1998] 1 SCR 493 at p. 531 & 532
7.1. Standing
The traditional approach was to limit standing to persons whose private rights
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were at stake or who were specially affected by the issue. In public law cases,
however, Canadian courts have relaxed these limitations on standing and have
taken a flexible, discretionary approach to public interest standing, guided by the
purposes which underlie the traditional limitations.
Canada
(
Attorney General
) v.
Downtown Eastside Sex Workers United
Against Violence Society
, [2012] 2 SCR 524, 2012 SCC 45 (CanLII) para-
graph 1
A question of constitutionality should not be immunized from judicial review
by denying standing to anyone to challenge the impugned statute. It would be
strange and, indeed, alarming, if there was no way in which a question of alleged
excess of legislative power, a matter traditionally within the scope of the judicial
process, could be made the subject of adjudication.
Thorson
v.
Attorney General of Canada
, [1975] 1 SCR 138 at 145
Unfortunately issues of standing are raised by respondents after applicants
have incurred considerable time and expense in preparing a comprehensive re-
cord. Judges of the Superior Court automatically classify individuals directly af-
fected by IWTs as ordinary litigants subject to the standard adverse costs award.
This in itself creates litigation chill, as ordinary citizens are unwilling to risk
their economic well-being in order to challenge government. The same judges
classify applicants not directly affected by the challenged legislation as officious
inter-meddlers, ignoring Supreme Court of Canada decisions in
Thorson
and
McNeil.
The real question is whether the applicant can show some substantial default
or abuse, and not whether his personal rights or interests are affected.
Wade, Administrative Law, (7th Edition) (1994) at p. 712, cited with approval
in
Corner
House Research
v.
Secretary of State for Trade & Industry
, [2004] EWHC
3011; [2005] 4 All E.R. 1 (C.A.) at paragraph 35
Proposed Reform: Establish a protocol similar to that for certification of
class actions so that standing can be determined
ab initio.
7.2. Adverse Costs
Subject to the provisions of an Act or rules of court, the costs of and incidental
to a proceeding or a step in a proceeding are in the discretion of the court, and
the court may determine by whom and to what extent the costs shall be paid.
Courts of Justice Act
, R.S.O. 1990, Chapter C.43, s.131. (1)
Like the traditional rules for standing, traditional cost rules tend to discourage
rather than encourage litigation. Public interest litigants tend to be poorly
funded. They are often dependent on the efforts of pro bono counsel and rarely
have any prospect of a monetary award. If the lack of means to start the suit is
not enough, the threat of an adverse costs award if the case fails can be a power-
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ful disincentive to launch the case in the first place.
Sharpe, Hon. Robert J., Access to Charter Justice, (2013), 63 S.C.L.R. (2d) at 6
A protective cost order can be justified where the respondent is a government,
a public authority or a regulator as they are already within the public sector and
can be expected to act for the public good.
Incredible Electronics
v.
Canada
(
Attorney General
) (2006), 80 O.R. (3d)
723 at paragraph 106
From the perspective of a public interest litigant, not having to pay costs to
the Attorney General but having to pay costs to the corporation profiting from
the rights in question would be similar to avoiding a car only to be hit by a train.
Incredible Electronics
v.
Canada
(
Attorney General
) (2006), 80 O.R. (3d)
723 at paragraph 108-109
The English courts dealt with this problem in
Corner House Research
v.
Sec-
retary of State for Trade & Industry
, [2004] EWHC 3011; [2005] 4 All E.R. 1
(C.A.) at paragraph 28. Recognizing that access to justice is sometimes unjustly
impeded if there is a slavish adherence to the normal private law regime, the
court acknowledged that relaxing the traditional requirements of standing may
be of little significance unless other procedural reforms are made. There is little
point in opening doors if litigants cannot afford to come in.
Corner House
established a procedure whereby public interest litigants could,
when commencing a proceeding, seek a Protective Costs Order relieving them of
any adverse cost award in the event that their challenge to legislation or admin-
istrative decision failed.
A protective costs order is appropriate in cases of general public importance
where it is in the public interest for the courts to review the legality of novel acts
by the executive in a context where it is unreasonable to expect that anyone
would be willing to bear the financial risks inherent in a challenge.
Corner House Research
v.
Secretary of State for Trade & Industry
, [2004]
EWHC 3011; [2005] 4 All E.R. 1 (C.A.) at paragraph 52 and 74
Any Ontario court that has considered a protective costs order has done so
only when the case has been concluded. This does nothing to relieve the litiga-
tion chill of the standard adverse costs award. But the
Corner House
doctrine
provides for a much earlier determination, allowing unsuccessful applicants to
withdraw well before incurring significant exposure to costs. The question of
standing can be determined in a preliminary motion where the Applicants in-
terest in the substantive issues raised in the application is sufficiently clearly es-
tablished by the allegations and contentions in the Notice of Application and the
statutory provisions relied on without the need of evidence or full argument on
the merits.
Finlay
v.
Canada
(
Min. of Finance
), [1986] 2 S.C.R. 607 at 617
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Proposed Reform: Establish a protocol similar to that for certification of
class actions so that entitlement to protective costs orders can be deter-
mined as a preliminary matter along with issues of standing
.
7.3. Party Costs
Sophisticated and highly evolved rights and obligations are of little value if
they cannot be asserted or enforced effectively and economically. Of what value
is a right or obligation, or the judicial system itself, if its users must be told that
the right is too smallor too complexor too riskyto justify its enforce-
ment?
Report of the Attorney Generals AdvisoryCommittee on Class Action Re-
form
(1990)
cited with approval in
A.I.C.
v
Fischer
[2013] 3 SCR 949 at
paragraph 33
Even with a protective costs order, those who seek to challenge legislative or
administrative bias face a huge disparity in resources in proceedings against
government. A relevant feature in identifying a public interest litigant is that the
litigant is either the other, a marginalized, powerless or underprivileged member
of society, or speaks for the disadvantaged in society. Such a litigant faces the
powerful and experienced legal department of the Attorney General with few
resources and pro bono representation, if available.
In such circumstances it is very easy for the responding AG to exhaust the
limited resources of the applicant by means of interim proceedings well before
the substance of the matter is heard.
Proposed Reform: Establish a government funded litigation group of quali-
fied counsel to represent those who question government action.
7.4. Representation
A party to a proceeding that is a corporation shall be represented by a lawyer,
except with leave of the court.
R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.
Thus, an incorporated public interest litigant must either raise funds to retain
counsel, seek pro bono counsel, or face the possibility that it may be denied ac-
cess to justice if it cannot secure an order for self-representation. Superior Court
judgements on when a corporation may be represented by an officer range from
pro forma approval to denial after rigorous examination of corporate resources.
Modern corporation statutes provide that an entity incorporated under such
act has the capacity and the rights, powers and privileges of a natural person.
The court would not question a self-represented individual about his or her
decision to self-represent because that would be a denial of access to justice. There
is no reason that the matter should be different with corporations.
Proposed Reform: Eliminate Rule 15 of the rules of civil procedure.
4. Results and Conclusion
The main areas included in the analysis of required changes to the legal system
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are:
1) Legislative bias in policy and consultation that reduced the ability of the
public to object to the policy.
2) Administrative bias, where decisions are perceived to favour industry over
a regulated industry over citizens.
3) Lack of timely access to evidence by the public.
4) Lack of access of the public to court due to financial and other concerns.
Recommended changes included, but are not limited to:
having effective consultation with affected parties,
consideration of regulated parties as counter-parties rather than clients or
experts in the field,
recognition of the value of previous legislation,
proof by the government of the safety of defined required limits/levels, and
that the safe levels are met by the regulated organizations or remediation
given,
having complete transparency by allowing public access to documents sub-
mitted to influence government policy or decision,
reducing costs when the public question government action, by establishing a
protocol similar to class actions to allow both an entitlement to protective
costs and standing to be determined as a preliminary matter, by allowing a
non-lawyer to represent a group whenever requested, and by establishing a
government-funded litigation group to represent those who question such
actions.
Such changes would allow those affected by legislative changes to have power
to give considered input regarding the changes, and have access to justice if their
concerns are not met.
No reply to the letter was received from any of the addressees. The lack of re-
sponse to the letter adds concern regarding the described lack of access to con-
sultation and justice in the province. It raises the following questions:
Are letters from citizens received by senior officials?
Are they read and seriously considered?
Are senior officials discouraged from responding to letters on controversial
topics?
The Ministry of the Attorney General stated that there was a proposal to
modernize the legal process. Is there a sincere intention to do so?
The Magna Carta stated: “to no one will we refuse or delay right or justice
(Magna Carta: Ch. 40). Yet, at present, Ontarios Acts have resulted in justice
delayed is justice denied, and in some cases, no justice at all. Justice is the right
of all citizens. Can the Justice system be modernized to allow this right?
Acknowledgements
We acknowledge Alan Whiteley as the lawyer for CCSAGE, a not-for-profit or-
ganization based in Prince Edward County, with citizen members from across
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Open Journal of Social Sciences
Ontario. He led the CCSAGE legal case against unsafe and inappropriate indus-
trial wind turbines being imposed on unwilling rural municipalities because he
believed the law to be wrong. He fought hard against an arbitrary policy that ig-
nored the rights of citizens in the placement of turbines across the province. He
argued for compensation for those suffering from living near them. He advised
and managed the preparation of the more than 50 affidavits, and prepared the
many related legal documents supporting the CCSAGE case, met with and ad-
vised those concerned and affected across the province, all on a pro bono basis.
Prior to his death September 2020, he had concurred with the publication of his
letter; his heir concurs with the final version submitted.
We also acknowledge the advice and input from Carmen Krogh in the prepa-
ration and submission of this manuscript.
Conflicts of Interest
The authors declare no conflicts of interest regarding the publication of this pa-
per.
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New Law Will Keep NIMBY-Ism from Stopping Green Projects: Ont
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Review. Industrial Wind Turbines and Adverse Health Effects
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