May 27th at the ERT

Report on May 27th ERT Hearing on Human Health Appeal
by
Henri Garand

 

The Environmental Review Tribunal heard the qualifying testimony and cross-examinations of two expert witnesses, Dr. Robert McMurtry and Dr. Robert Thorne, as well as submissions on the schedule for the remainder of the appeal.

 

Qualifying Examination of Dr. Robert McMurtry

APPEC lawyer Eric Gillespie sought to qualify Dr. McMurtry as an expert witness with the identical status accepted at the 2011 Erickson ERT appeal in Chatham-Kent: “a physician and surgeon with experience in healthcare delivery, healthcare policies, and health policy.”

Dr. McMurtry, a specialist in orthopedics, is an awarding-winning member of the Royal College of Physicians and Surgeons (RCPS).  He is the former Dean of Medicine at the University of Western Ontario and a former assistant deputy minister at Health Canada, and was an adviser to the Romanow Commission on Healthcare.  In 2012 he was made a member of the Order of Canada.

Sine 1992 Dr. McMurtry’s career has involved both his orthopedic practice and his interest in public health. Currently, he is on the board of the University of Waterloo’s Canadian Index for Well-being, which publishes an annual report rating Canada on eight criteria such as health, community vitality, and economics.  He noted that the reports assess levels of stress and social engagement as indicators of well-being and reflect a bio-psycho-social model of medicine.

Dr. McMurtry, a Prince Edward County resident, had initially thought of erecting a wind turbine on his property, but he became concerned about the health impacts when he attended an APPEC meeting in August 2008 and heard Dr. John Harrison, a retired Queen’s University professor of physics, speak about turbine sound emissions and the level of noise.  Since then he has spent some 7200 hours in researching, writing, and speaking on wind turbines.  He has met with over 40 individuals suffering adverse health effects and reported on 53 cases to the Ontario government. He testified in two previous ERT appeals.

His peer-reviewed article “Towards a Case Definition of Adverse Health Effects in the Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis” was published in the Bulletin of Science, Technology and Society in 2011.

Dr. McMurtry served on the APPEC board for four years and was the founding chair of the Society for Wind Vigilance. He resigned from both boards so he could confirm his independence as a “health advocate,” one of the professional missions and roles of RCPS members.

Challenge of Dr. McMurtry

Following lengthy cross-examination and citing a number of legal precedents, Gilead Power lawyer Darrel Cruz challenged acceptance of Dr. McMurtry as an expert witness on these grounds: 1. Experience in healthcare policy was not relevant to the question of whether the Ostrander Point wind turbines would cause serious harm to human health;  2. Medical training in orthopedics was unrelated to the health effects reported by APPEC’s witnesses; 3. Past membership in APPEC indicated bias; 4.  Past activities in opposing wind development were incompatible with the objectivity required of an expert witness.

Ministry of Environment lawyer Sylvia Davis added that the Erickson ERT was a different situation because APPEC was not the appellant and the Tribunal had qualified witnesses outside their areas of expertise.

APPEC’s Reply

Eric Gillespie defended Dr. McMurtry by saying that “healthcare policy” was clearly misunderstood.  Dr. McMurtry is the only expert witness for this ERT who has published a relevant peer-reviewed article.  He would be applying a health policy, his case definition, to the testimony given by APPEC’s other witnesses.  As for advocacy and bias, if Dr. McMurtry’s past activities barred him, how could the other parties’ expert medical witnesses be qualified when they had written letters to newspapers, made public presentations, and been commissioned to write wind industry reports?  Some witnesses financially benefited from wind development, while Dr. McMurtry had donated his money and time.

ERT Panel’s Deferral

Robert Wright and Heather Gibbs, ERT co-chairs, deferred a decision until the next morning.

Qualifying of Dr. Robert Thorne

Mr. Gillespie sought to qualify Dr. Thorne as an “expert in environmental health with knowledge of acoustics and psycho-acoustics.” Robert Thorne holds a Ph.D. from Massey University, New Zealand.  His doctoral research was in intrusive noise and external sounds at the upper and lower levels of human hearing.  Since 1999 he has been a principal in Noise Emissions Services, which researches hearing system devices and does acoustic consulting.  He has studied wind turbine noise in two Australian and three New Zealand wind projects.  At the Erickson ERT he was qualified in psycho-acoustics (the human perception of noise, or variations in sound).

Mr. Cruz and Ms. Davis questioned Dr. Thorne’s breadth of background and lack of relevant peer-reviewed publications.

The ERT panel amended Dr. Thorne’s qualification status to limit the scope of his expertise to “environmental health in relation to acoustics and psycho-acoustics.”

Schedule of ERT Hearings

The long day ended with a dispute over the witness schedule.  Ms. Davis and Mr. Cruz proposed to comply with an ERT request by concluding all testimony on May 31.  This would require APPEC to finish its case on Tuesday and all 11 MOE and Gilead witnesses to be heard in three days.

Mr. Gillespie protested that the schedule did not allow sufficient time for challenges, examinations and cross-examinations or for reply witnesses. Considering the time spent on the PECFN phase of the appeal, the schedule would not lead to a fair and just proceeding for APPEC but would result in an incomplete process.  It would be a waste of the appellant’s and the Ontario taxpayer’s money because the same issues would have to be addressed in a new ERT appeal.

Mr. Wright asked whether any of the parties was seeking a statutory extension of the proceedings.  Mr. Gillespie did not make such a motion, and Ms. Davis and Mr. Cruz said they would not consent to it.  The ERT panel left the matter for further discussion the next day.

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