Report on May 17th ERT Hearing on Health Appeal
The Environmental Review Tribunal heard the testimony of Nicole Horton, whose family resides near the Kruger wind project. The hearing concluded with arguments on the admissibility of medical records as evidence.
Examination of Nicole Horton
Nicole Horton and her family live between the Kruger and Invenergy wind power projects in Chatham-Kent. The two nearest wind turbines are 700 m southwest of the house. Depending on the direction Ms. Horton looks, 8-24 turbines are visible during the day; 120 red warning lights are visible at night on the approach to the house.
When the Kruger project started up in fall 2008, it caused noticeable vibrations in the walls of the Hortons’ house. Ms. Horton and her husband spent $80,000 on renovations (insulation, rounded siding, steel roof, and new windows) which have diminished but not eradicated the vibrations.
Noise has also been a problem. It is worst when the leaves are off the trees in the forest around their house. Kruger Energy paid for an acoustic study but did not release the complete report to the Hortons. They did receive a summary, however, that showed spikes of sound above 60 dbA. Kruger suggested Ontario Hydro equipment was responsible, but Hydro did not find any problems during a week’s testing.
Ms. Horton’s pre-existing conditions relate to PMS. She described herself as a “regular healthy person” before the wind project. Her family had no previous health problems.
When the turbines started, the whole family experienced acute nausea. Since then Ms. Horton has suffered from headaches, heart palpitations, internal body vibrations, fatigue, loss of concentration and memory, swollen and dry eyes, and body rashes that left permanent scaring. Her husband has had sleeplessness and periods of moodiness. Her two children have complained of headaches, back and joint pain, swollen eyes, and nausea.
The Hortons’ custom-built “dream home” is now a “nightmare.” Ms. Horton feels like “her old self again” when she is away for just a few days. This is true not only when she is on vacations but even when she has traveled to Alberta for a parent’s surgery and for a funeral. Her husband, a fireman, feels better when sleeping on long shifts at the fire hall.
The family doctor was at first sceptical of wind turbines as the overall cause but has not found any other explanations. Diagnoses have ranged from allergies to thyroid problems to mood disorder. Medical treatment has relieved specific symptoms. Counselling has provided no relief. She has been advised to renovate her home and/or relocate.
The Hortons are trying to sell their house but insist on full disclosure of the problems to every potential buyer. They have also filed a lawsuit against Kruger Energy.
Ironically, Ms. Horton liked the turbines when first installed, and even took photos showing the family home with turbines nearby. Now she is depressed that no one in the Ministry of Environment or Kruger has done anything about the reported health problems. Some days she would just like to walk away from the whole situation.
Ms. Horton’s cross-examination will occur on a later date.
Medical Records Dispute
The admissibility of medical records, which the ERT panel had left unsettled on May 9, was addressed in formal submissions at the end of the hearing. The outcome of the dispute may have a considerable bearing on the ERT process because it could lead to more witnesses and more days of testimony.
Gilead lawyer Darrel Cruz elaborated on the arguments made earlier. The Evidence Act, said Mr. Cruz, distinguishes between business and technical records: the former are documents produced in the daily course of business; the latter deal with technical matters and opinions, and include medical records. Mr. Cruz said that Gilead is willing, however, to accept the medical records of APPEC’s witnesses as business records in as much as they identify dates of visits, prescriptions, etc. But Gilead is not willing to accept them as evidence stating the truth of the diagnoses or medical opinions expressed. Under the Evidence Act, a doctor or other expert must be called to verify the truth of opinions.
MOE lawyer Sylvia Davis agreed with Gilead’s position. She said the ERT may admit hearsay evidence but should exercise the best evidence rules. Clinical notes are often unclear whether the words are quotations, paraphrases, or aids to memory. She added that even when medical records have been admitted without verification by physicians, the ERT has put such little weight on the evidence that it might as well have been excluded.
APPEC lawyer Eric Gillespie pointed out that the issue was not raised in February when Gilead and the MOE had insisted that witnesses produce their medical records. By referring to the Evidence Act and citing civil court case law, Mr. Cruz was attempting to import civil law into an administrative law proceeding. There is no relevant case law for Ontario tribunals because they have routinely admitted medical records without qualification. Drawing the distinction Mr. Cruz has made would set a new precedent. Moreover, Mr. Cruz’s solution created a double standard. Gilead would be able to use the records as the basis for cross-examination, but APPEC would have to call physicians to prove the truth of the medical opinions recorded.
Mr. Gillespie therefore left the panel with a clear choice: Either exclude all the medical records (as APPEC had argued in February) or admit them fully.
The ERT panel conferred for half an hour then postponed a decision until May 21.