Cross-posted from the Environmental Law and Litigation blog by Meredith James
Ontario’s Environmental Review Tribunal approved another wind farm on December 24, 2013, in Bovaird v. Director, Ministry of the Environment. In addition to rejecting the Charter argument, described earlier this week, Bovaird was notable for a slightly tougher approach to witnesses who propose “expert” anti-wind evidence in areas beyond their expertise.
Wind opponents have struggled, unsuccessfully, to prove that wind farms cause adverse health effects. In Bovaird, they tried to fill that gap with opinions from a non-practicing Australian physician, a sound engineer, and an Ontario orthopedic surgeon.
Non-practicing physician – Ms. Sarah Laurie
Ms. Laurie was not permitted to give expert evidence. She has not practiced medicine since 2002, is not registered as a medical doctor, and therefore is not permitted to diagnose medical issues or conditions. However, her proposed evidence consisted primarily of medical diagnoses, precisely what she is forbidden to do. Therefore, her diagnostic opinions were not sufficiently reliable to be accepted as expert evidence.
Her other proposed expert evidence related to a survey she conducted of those complaining that they have been adversely affected by turbines. Ms. Laurie has no training or experience in conducting medical or scientific research, nor has she any training or experience in research methodology. Ms. Laurie was permitted to describe her research, but not to give any expert opinions about it.
Sound engineer – Mr. Brian Howe
Mr. Howe was qualified to give opinion evidence as an acoustical engineer with specialized expertise in sound from, and the effects of sound from, wind turbines. Based on a review of published papers, he gave what is now well-established evidence:
“…the relationship between the sound levels and annoyance is not clear; there are a number of non-acoustic factors that influence a reaction of annoyance, an important one being attitude toward the noise source. … if you do not like a source, you are more likely to find the sound from it to be annoying…
When Mr. Howe tried to go beyond this common sense evidence, and to comment on the human health impacts of annoyance, the Tribunal noted that he was far beyond his expertise:
“While the Tribunal accepts that the nature of his work as an acoustician includes consideration of whether noise can cause annoyance, it has not been suggested that he has the qualification to comment on the health effects that can be expected to result from annoyance.”
Orthopedic surgeon – Dr. Robert McMurtry.
Dr. McMurtry is an orthopedic surgeon, not an epidemiologist or an expert in any of the illnesses allegedly caused by exposure to wind turbines. The Tribunal permitted him to give opinion evidence as a physician and surgeon with experience in the delivery of health care, health care policy, and health policy, but ultimately gave his evidence little weight.
Dr. McMurtry has published a “Case Definition” for diagnosing “adverse health effects in the environs of industrial wind turbines”. However, this Case Definition does not establish that wind turbines cause the health effects complained of, it is simply “based on the assumption that” they do.
MOE and Proponent experts
The MOE Director and the wind farm proponent called three doctors who do have relevant expertise:
- Dr. Robert McCunney, who was qualified as medical doctor specializing in occupational and environmental medicine with particular expertise in health implication of noise exposure;
- Dr. Cornelia Baines, who was qualified as an epidemiologist with special expertise in design measurement and evaluation of research studies; and
- Dr. Kieran Moore, who was qualified as a physician with expertise in family and emergency medicine, public health, and preventative medicine.
Where Dr. McMurtry’s evidence conflicted with theirs, the Tribunal properly relied on the much better qualified Dr. McCunney, Dr. Moore, and Dr. Baines.
Ultimately, the Tribunal ruled that “the annoyance referred to in the Howe study is a subjective psychological state”, not a “serious and profound’ interference with psychological integrity. It is comparable to the “ordinary stress or anxiety” that we are all exposed to at one time or another. “Tribunal decisions on wind energy appeals have consistently noted the lack of current scientific evidence establishing a causal link at regulated noise levels and setbacks.”
Accordingly, the Tribunal decided:
 The Tribunal finds that the Appellants have not established that engaging in the Project as approved will cause serious and irreversible harm to plant life, animal life or the natural environment.
 The Tribunal finds that the Appellants have not established that engaging in the Project as approved will cause serious harm to human health.
 The Tribunal finds that the Appellants have not established, on the facts of this case, that the renewable energy approval process violated the Appellants’ right to security of the person under section 7 of the Charter.
By Dianne Saxe