The Environmental Review Tribunal (ERT) has released a
decision limiting the ability of laypersons to
testify about health effects allegedly caused by proximity to wind
turbines without providing medical records/expert opinions to
substantiate their testimony.
The issue arose in an appeal to the ERT by the Middlesex-Lambton
Wind Action Group of a Renewable Energy Approval (REA) issued to
Zephyr Farms Limited for a wind farm under the Environmental Protection
Act. In its appeal, the Appellant
alleged that the proposed wind farm would negatively affect the
health of the surrounding community. In pre-hearing disclosure, the
Appellant listed numerous witnesses aiming to testify that they had
suffered negative health effects caused by living in the vicinity
of wind turbines. The Appellants provided no corresponding medical
reports to substantiate, further explain, or allow professional
medical scrutiny against, these statements.
In response, the Ministry of the Environment (MOE) requested an
order for the Appellants to produce medical reports to corroborate
the allegations. The MOE argued that, without medical reports
properly subjected to medical scrutiny, the ERT did not possess the
necessary expertise to judge how relevant, applicable and
transferable the witnesses' experiences would be to Zephyr
Farms' proposal. Consequentially, the MOE claimed that
layperson evidence would be of little use in determining whether
the Zephyr Farms project will cause serious harm to human
The Appellant argued that, largely due to the expedited timeline
for the hearing of the appeal, the time and cost it would take to
obtain the necessary medical records to buttress the witnesses'
statements made the exercise impractical and that if the ERT did
require such records for its consideration, a significant
adjournment would be necessary.
The ERT largely agreed with the MOE, and citing its own decision
in Kawartha Dairy Limited v. Director,
Minister of the Environment, found
that the ERT cannot simply accept the assertion of a layperson that
they suffer from a certain medical condition, let alone the cause
of that condition. Such conclusions require the diagnostic skills
of a qualified health professional. Accordingly, the ERT would only
be willing to hear and consider the subjectively reported symptoms
of such a witness. One can assume, though it is not explicitly
stated, that the ERT would give little weight to such subjectively
reported symptoms. The ERT also refused to grant an adjournment
because the Appellant knew of the time constraints on REA appeals
when it filed its Notice of Appeal and was unable to provide any
viable explanation for its inability to obtain a single medical
record for any of the witnesses it proposed to call.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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