Not biased

Tribunal dismisses motion by developer that it be disqualified from making its ruling on Ostrander Point industrial wind project.

The Environmental Review Tribunal that revoked the Renewable Energy Approval for the wind project on Ostrander Point has dismissed a motion made by the developer claiming adjudicators, Robert Wright and Heather Gibbs, were biased.

In dismissing the appeal, the Tribunal noted that that each of Ostrander’s allegations fails individually due to lack of evidence and lack of any objective foundation.

The developer’s lawyers alleged too that the Tribunal’s decision not to accept the Ministry of the Environment and Climate Change’s (MOECC) staff person Karen Bellamy as an expert witness was an example of this bias.

MOECC lawyers had wanted Ms. Bellamy qualified as an expert “biologist in species conservation and management”. PECFN’s lawyer had objected that her qualifications did not relate to the opinion offered in her witness statement.

The Tribunal ruled that Bellamy “does not have expertise in relation to the opinion she proposes to give; i.e., the impact of the proposed REA conditions on the particular endangered species here. The evidence is that she relies on others at MNRF for that specific expertise. For example, we just heard from Mr. Crowley, upon whom she relies.”

Mr. Crowley’s name would come up again later in the decision.

The developer alleged to that the Tribunal had allowed the hearing to “languish”. That these delays were, in effect, a form of bias against the developer.

The Tribunal noted in its decision that the Divisional Court had determined that new evidence could be introduced into the remedy hearing. But in those hearings it was the developer who argued that only it was allowed to admit new evidence. It would take 11 teleconference calls, eight days of evidence and oral submissions and “volumes of written submissions” before the developer’s motion was dismissed.

The Tribunals also pointed to complications arising form “a lack of disclosure by MOECC witnesses.”

The hearings last fall had to be adjourned for two months after “it became apparent in cross-examination that Mr. Crowley had not properly disclosed relevant documents in his possession, power or control relating to the Project’s impact on Blanding’s turtle, and his prior involvement in the ESA [endangered species act] permit process. The documents had not been disclosed for the original hearing, nor at the Divisional Court or the Court of Appeal.”

The Tribunal ruling comes very close to suggesting the MOECC withheld evidence.  “While Mr. Crowley is an employee of MNRF and it is not a party to the proceeding, the MOECC’s Director is a party and it called MNRF witnesses to testify in the original hearing about the ESA permit process and the Blanding’s turtle. Some of the documentation that was disclosed by Mr. Crowley for the first time on the hearing of the remedy matter was correspondence that was sent, or received, by the MNRF witnesses who did give evidence at the original hearing.”

The Tribunal wrote that it takes the issue of apprehension of bias very seriously and has carefully considered the arguments on this issue.

“The Tribunal has found that each of Ostrander’s allegations fails individually due to lack of evidence and lack of any objective foundation. The Tribunal has further found that the allegations were raised late in the process and are based on nothing more than conjecture and surmise.”