Thursday, March 22, 2012

Ontario ERT decision limits laypersons from testifying about health effects allegedly caused from wind turbines: Case commentary on Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of Environment

In Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of Environment (Case No. 11-208) the Ontario Environmental Review Tribunal ("ERT") limited the ability of laypersons to testify about health effects allegedly caused by proximity to wind turbines without providing medical records or expert opinions to substantiate their testimony.

The Director of the Ontario Ministry of Environment (the "Director") was seeking disclosure of all medical records from doctors and other qualified health practitioners as to the adverse health effects from wind turbines, or in the alternative, a prohibition of the layperson from testifying as to the alleged adverse health effects from wind turbines.

Medical Records

The ERT noted the following in regard to disclosure of medical records to determine if there are adverse health effects from wind turbines:
"Lay witnesses are only permitted to give testimony with respect to facts as they observe them and are not permitted to express opinions on medical diagnoses or the causes of diseases. The usual way of presenting such evidence is through qualified medical experts who are familiar with the medical histories of the individuals and knowledgeable about the etiology of the diseases those individuals suffer from. To this extent, complete medical records of the Appellant's proposed witnesses would appear to be highly relevant to the Appellant's case."
 Middlesex-Lambton Wind Action Group Inc. did not manage to submit a single medical record to support the alleged claim that wind turbines cause adverse health effects. The ERT comments on this:
"It seems difficult to believe that not one set of medical records has been obtained, or could have been obtained, by this point. Counsel for the Appellant has not provided information about specific requests it has made and the particular obstacles or delays it has faced; rather there is only a series of general claims about the length of time it usually takes to get medical records."
Devaluation of Property & Noise

For those wind opponents planning to raise similar unfounded allegations regarding devaluation of property and noise due to wind turbines, the ERT stated:
"Similar considerations apply to real estate records, noise assessments and all other relevant documents."
Adjournments and Delays

Often wind opponents will attempt to draw out the document disclosure process and try to obtain additional time and adjournments to collect medical records (mainly because they do not exist). The ERT also provided some guidance in this regard:
"...a lengthy adjournment to gather complete medical records for each witness is not appropriate. The Appellant knew of the time constraints on REA appeals when it filed its Notice of Appeal. More than two months later, it has provided no explanation for its inability to obtain a single medical record for any of the witnesses it proposes to call."
Summary of Evidence
The ERT also opined on a what constitutes a proper summary of evidence. The Appellant had summarized their evidence by stating that "18 individuals live in close proximity to an industrial wind turbine and have suffered serious health effects." The ERT rejected this summary and stated:
"It is not sufficient at this point, on the eve of the Hearing, to say only, for each of approximately 18 individuals, that he or she 'lives in close proximity to an industrial wind turbine' project and has suffered 'serious health effects.' Specific, relevant facts, such as the location where each individual lives in relation to a turbine project, information about each wind turbine project, measured noise levels at each location, and the specific symptoms and particular medical conditions suffered by each individual, must be stated in the summary of evidence."

Middlesex-Lambton Wind Action Group Inc. v. Director, Ministry of Environment is a solid Canadian precedent which addresses those wind opponents who are claiming adverse health effects from wind turbines but have no medical evidence to support their claim. Unfortunately there are many such claims clogging the courts and administrative tribunals across Canada. This decision is clear that it is not adequate to simply include testimony of laypersons who claim to suffer health effects from living near wind turbines - medical evidence is required. As most of us know, no such medical evidence exists and claims of adverse health effects from wind turbines have been entirely unsubstantiated by medical evidence.

The full text of the decision is here:

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