From the courtroom

Day one of Ontario Appeal Court hearing into Ostrander Point industrial wind turbine project
Report by Garth Manning

An aggregation of advocates (12 altogether) and a blizzard of paper, stacked well over a foot tall in front of each lawyer and judge, faced Justices Eleanore A. Cronk, chair, Gloria J Epstein and Russell G. Juriansz in Courtroom 2 in historic Osgoode Hall at the opening of the appeal by Prince Edward County Field Naturalists (PECFN) of the overturning of the original Environmental Review Tribunal’s (ERT) favourable decision by the Divisional Court. The public seats were packed with people from PECFN, South Shore Conservancy (SSC), CCSAGE, APPEC, the wider County and Amherst Island.

The day was almost entirely taken up by presentations by Eric Gillespie for PECFN, Chris Paliare for SSC (an intervenor) and by counsel for Nature Canada (also an intervenor). During the last half hour, Neil Finkelstein started making the case for Gilead Power. Tuesday will see Gilead complete its case, followed by counsel for the Ministry and for the trade association of the wind industry (also an intervenor) respectively.

It should be clearly understood that these three Justices do not inhabit some unreal, impractical, world. Two of them were prominent courtroom lawyers—in the front rank at their time—with significant experience. None of the three was reticent. All asked penetrating questions of counsel throughout the day. The reputation of the Ontario Court of Appeal stands high in the western world, not least because of the calibre of its members.

However, this is not a new trial. There are no witnesses, and new facts and evidence cannot be produced. The court can examine only the actual evidence given at the ERT, and the conduct of the ERT and Divisional Court hearings to determine whether some mistake in law was made along the way.

The ERT decision focused on serious and irreversible harm to animal life (the Blandings turtle). Regretfully, the obvious common sense perception that Ostrander Point is the worst place to put industrial wind turbines—being in the middle of one of Canada’s most prolific migratory flyways—cannot be considered by the Court, nor can any other extrinsic issue.

Nothing sensational emerged at Monday’s hearing. All counsel on our side performed well and made telling points. Tuesday will produce the somewhat different perspective of the opposing parties.

In the fight against wind in the wrong places, there is no doubt that legal history is being made at Osgoode Hall. It remains to be seen on which side it falls.

A decision by the Court is not expected for months.