Divisional Court – January 21, 2014

Story: Cheryl Anderson

The court room was full to capacity for the first day of the Divisional Court counter appeal.  It is a gorgeous 2 story room with a large relief of “Justice” behind the bench.  The ceiling is decorated with plaster reliefs and a fancy painted border.  There were about 50 supporters of Ostrander Point filling every possible seat.  Thank you to all who made the trip to Toronto on a very cold day to support PECFN.

Justices Nordheimer, Linhares de Sousa and Whitaker presided over a phalanx of lawyers.  In addition to Eric Gillespie and Natalie Smith, 3 lawyers represented the Ministry of the environment, 2 lawyers (and assistants) represented Gilead, 2 lawyers were present for the Canadian wind Energy Association and 2 lawyers represented the South Shore Conservancy.  After a brief discussion and with direction of the bench the hearing was scheduled for 3 days, finishing on Thursday.  The APPEC appeal will be heard on Thursday afternoon.

The morning and afternoon right until about 2 pm was taken up with the argument about whether or not Gilead should be able to introduce new evidence regarding turbine access roads and gates.  This evidence was introduced after the Environmental Review Tribunal decision in an effort to respond to the ERT’s concerns about Blanding’s Turtle mortality due to roads.  Eric Gillespie mounted a brilliant argument against allowing new evidence at this point in the proceeding and ultimately the Justices agreed with him, dismissing the request to introduce new evidence.

Finally, after the afternoon recess the main appeal began.  The rest of the day was taken up by Mr. Hamilton for Gilead explaining the Environmental Protection Act (EPA) and Act the Endangered Species Act (ESA). He was trying to convince the Justices that the Environmental Review Tribunal (ERT) did not have authority to supersede the ESA permit to kill harm and harass that was granted by the Ministry of Natural Resources (MNR) because the ERT is a functionary of the Ministry of Environment (MOE) through the Renewable Energy Act (REA).  At 4:30 court was adjourned for the day.

I am sure you can see that acronyms and initials were being thrown around wildly – by the end of the day I really HHE!  We celebrate; however, that the Justice’s agreed with us that no new evidence should be part of this hearing.