ERT Day 2
Note: The ERT continues on Wednesday Dec 9 at 10:00 am at St. John’s Hall in Bath. APAI attendance is hugely important as the next two hearing days …will be in Toronto on Dec 10 and 11. The Tribunal will deliver its decision this morning on the motion described below.
Tribunal: Mr. Robert Wright & Mr. Justin Duncan
Appellant: Eric Gillespie, EKG, LLP
Approval Holder: John Laskin and John Terry, Torys LLP
MOECC: Andrea Huckins
The Tribunal heard the Approval Holder’s motion
1) To exclude the reply witness statements of Les Stanfield, Daryl Cowell, Kari Gunson, Roy Nagle, Shawn Smallwood, Carl Phillips and much of the reply witness statements of Christina Davy;
2) To order that the two reply witness statements of Dr. Carl Phillips be excluded;
3) To order that much of the reply witness statement of Dr. Christina Davy be excluded; and
4) That further and other relief as this Approval Holder requests and the Tribunal permits.
Mr. Laskin and Mr. Tory, argued that APAI by providing new witnesses had withheld the bulk of its case. First, by refusing to provide witness statements on the date it was required to do so, and second, by confirming that it would be calling two only witnesses while actually holding back the bulk of the case and third, by filling that case for the first time “dressed up” as reply with one day to go before the originally scheduled hearing start date. He added that APAI had quadrupled the number of expert witnesses and was trying to drop a new case on the Approval Holder. They submitted that with APAI’s last minute “manoeuvre”, it was seeking to file the bulk of the expert statements and that it was a clear case of case-splitting and it was a conduct that the Tribunal should not tolerate.
They referred to decisions from other cases from different courts to support the motion and advised that allowing such a transparent “gaming” of the system would make a mockery of the Tribunal’s process and fundamentally undermine the integrity and fairness of this proceeding.
Mr. Laskin used details of each of the new witness statements to conclude that none of the new witnesses could fairly be characterized as reply witnesses. As for Dr. Phillip’s and Dr. Davy’s replies, he insisted that there was nothing that had not already been “pre-rebutted”in the initial witness statement.
He concluded by qualifying this as being improper, intended to create surprise and confusion and that if successful, it would severely prejudice the responding parties and fundamentally compromise the fairness of this proceeding.
Mr. Gillespie, representing APAI requested that the motion to exclude of the Approval Holder be dismissed. He explained the sequence of events since Sept 8, 2015, when APAI filed its Notice of Appeal including the change in counsel and told the Tribunal that if this evidence was not permitted in this circumstance, it was clear that APAI would not be able to present its case.
He reminded the Tribunal that after APAI filed its two witness statements– one from a health witness, Dr. Carl Phillips (a PhD with health policy expertise) and the other from an environmental witness, Dr. Christina Davy (a bats and Blanding’s Turtle expert) on October 26, 2015,the Approval Holder filed ten (10) witness statements responding to the APAI’s case. These statements responded not only to the issues raised by APAI in the witness statements of Dr. Phillips and Dr.Davy, but to the statements of the participants and presenters.
Mr. Gillespie pointed out that among the 10 witnesses called, 9 witnesses are experts. Three experts, Andrew Taylor, Caleb Hasler and Ronald Brooks addressing the Blanding’s Turtle issue; three experts, Andrew Taylor, Eric Bollinger, Paul Kerlinger, addressing the bird issues raised in the Witness Statements of Thomas Beaubiah and William R Evans; two experts, Andrew Taylor and Scott Reynolds, addressing the bats issue.
He emphasized that the extensive material covered by the Approval Holder’s witnesses in response to the Appellant’s case warranted a similarly detailed and thorough Reply from the Appellant in order to adequately meet the onus of the will cause test under section 142.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19.
He added that a narrow reply would preclude the APAI from making its full case that the Approval Holder has the right to reply and in such an instance where there is extensive material to reply to, it was appropriate to call new witnesses.
Mr. Gillespie emphasized that if the motion is accepted, The Tribunal will not have the best nor the most accurate evidence before it. He added that this would not be in the best interests of a fair hearing or in the public interest.
He explained that each of the witnesses directly assesses the evidence of the Approval Holder’s witnesses. Their responses directly reply to these witnesses. He refuted that this was not “bolstering” or “case splitting” and argued that it was the primary purpose of reply witness statements. As set out in their expertise and witness statements, each of the witnesses is also differently trained, differently qualified, and has extensive but very different experience. He assured the Tribunal that ach brought their own expertise and perspective to their assessment.
Mr. Gillespie reminded the Tribunal that in response to the Appellant’s case, the Approval Holder ha called nine (9) expert witnesses. Three of the experts, Andrew Taylor, Caleb Hasler and Ronald Brooks all address the issue of serious and irreversible harm to the Blanding’s Turtle. The chart appended to the Response to the Notice of Motion clearly outlines areas of overlapping evidence between the witnesses. Three witnesses, Andrew Taylor, Eric Bollinger and Paul Kerlinger address bobolinks, their habitats, risk to mortality, risk of displacement, habitat fragmentation, compensation habitat and mitigation measures to varying degrees. While both witnesses Andrew Taylor and Scott Reynolds address bat habitat, risk to mortality and mitigation measures to varying degrees.
He concluded by emphasizing that this extensive overlap of evidence between the expert witnesses creates an unfair and prejudicial situation for APAI. Not only does the extent of overlapping evidence ultimately protract a short hearing, it also created a situation where the Approval Holder has been given the opportunity to repeatedly bolster their own case, while attempting to stop the Appellant from responding or replying to an appeal in which the Appellant bears the onus of meeting the statutory test.
The ruling on the motion was deferred to Wednesday, Dec 9.
Tribunal continues on Wednesday Dec 9 at 10:00 am at the St John’s Hall in the Village of Bath