APPEC Report on Final ERT Remedy Hearing for White Pines Wind Project

Report on Environmental Review Tribunal
Remedy Hearing for White Pines Wind Project
January 27, 2017
by Paula Peel

tribunal-jan-27-2017It was a full house at the Wellington Community Centre on the last day of the remedy hearing. The hall began to fill an hour before the start time with a contingency of office workers from WPD’s head office in Mississauga led by WPD President Ian MacRae and some supporters of the project that showed up early clearly hoping to dominate the proceedings in numbers. However by 10 AM they were out-numbered by APPEC and PECFN members and supporters.

The hearing started with a motion from APPEC’s legal counsel Eric Gillespie for a ruling from the Tribunal. APPEC felt that portions of both WPD and the Directors’ replies were improper. Mr. Gillespie cited examples in WPD’s reply submissions of bolstering, repetition, misquoting APPEC and numerous attempts to restate issues to get another “kick at the can.” Mr. Gillespie asked that all these types of submissions be struck.

The Tribunal declined to make a ruling, noting that a significant amount of time would be needed to go through WPD’s submissions. However, Ms. Valiante said that the Tribunal would bear in mind the propriety of the marked paragraphs.

Ms. Valiante outlined the process for the hearing of closing submissions. As previously agreed, the respondents together had one hour. The appellants would take an hour and fifteen minutes. The respondents would then have fifteen minutes to reply.

Respondents’ Closing Submissions

WPD’s legal counsel Patrick Duffy began with submissions on the burden of proof. Mr. Duffy stated that WPD has mitigated for the harms found by the Tribunal in its February decision and having done so the onus now shifts to APPEC. When Tribunal Co-Chair Hugh Wilkins asked Mr. Duffy to elaborate, Mr. Duffy repeated that the burden of proof is now on APPEC. According to Mr. Duffy APPEC must prove that the remedy proposals will cause serious and irreversible harm.

Mr. Duffy then focussed on WPD’s plans to mitigate harm to Blanding’s turtles by compacting 15 kilometres of access roads to deter nesting turtles on these roads. He also discussed WPD’s plan to restore 8 kilometres of upgraded seasonal roads to pre-construction standards to address the Tribunals’ concerns about increased traffic and several others mitigations stated in previous filings.

Mr. Wilkins asked Mr. Duffy whether there had been a Road Use Agreement (RUA) with the County and if so was this in evidence. Mr. Duffy clarified that there was nothing in evidence. However he noted that WPD is committed to following its Mitigation Plan and does not anticipate any objections from the municipality regarding work on municipal roads.

WPD’s legal counsel James Wilson, outlined key mitigation measures for the little brown bat, including a 5.5 m/s cut-in speed from May 1 to September 30 at all turbines for the lifetime of the project.

Sylvia Davis, legal counsel for the Director, stated that the Director supports the submissions of the Approval Holder with the exception of their submissions on Dr. Brock Fenton.

Appellants Closing Submissions

John Hirsch
Mr. Hirsch referred the Tribunal to the Gruver Summary that WPD relies on for its claims of an 87% reduction in bat fatalities by increasing the cut-in speed to 5.5. m/s. Mr. Hirsch noted that this 87% reduction was with a cut-in speed of 6.9 m/s, much higher than the 5.5 m/s proposed.

Mr. Hirsch discussed recently acquired data of bat fatalities at wind projects in Ontario from government documents obtained through a Freedom of Information request. Mr. Hirsch noted 26 little brown bat fatalities reported at the Mohawk Point Wind Project in 2012.

As summed up by Mr. Hirsch, Stantec is proposing to experiment on the little brown bat population in Prince Edward County. He noted that the target of this experiment is an endangered species.

Mr. Hirsch asked the Tribunal to consider the Statement of Environmental Values including the ecosystem approach and the fact that the Province has changed direction and is no longer supporting large wind energy projects.

Eric Gillespie began with the issue of the Tribunals’ jurisdiction. Mr. Gillespie noted that APPEC is relying on the remedy hearing for the Settlers Landing Wind Project (SLWP) where mitigations were dealt with in a different way. He noted that at this hearing on the White Pines Wind Project, the Director has provided zero evidence that he has even considered the proposed mitigations. There is no possible way the Tribunal could “stand in the shoes of the Director” at these proceedings and in fact to do so would be an error of law. The correct remedy is to revoke the REA.

Mr. Gillespie noted that all Parties have agreed that the onus is on WPD. However WPD is now trying to reverse the onus and put it back on APPEC when it is the Approval Holders’ very mitigations that will cause harm. Mr. Gillespie clarified that the onus is on WPD to address the Tribunal’s findings and show that no potentially serious adverse effects will follow from their mitigations.

Mr. Gillespie pointed to a number of holes in the Approval Holders evidence. The Gruver survey is not published or peer-reviewed and was created by a wind company consultant. The survey gives no information on project size, turbine size, location, topography, wind speed and other variables. Also, and most importantly, the survey fails to show that cut-in speeds post White Nose Syndrome are effective. With respect to the Approval Holders’ Blanding’s turtle mitigations Mr. Gillespie noted that compacting over 15 kilometres of access roads by up to 95% will radically alter hydrology in areas already prone to flooding. Mr. Gillespie also noted the potentially disastrous results of planting alien vegetation in a sensitive ecosystem. The Plans the Approval Holder has produced at this hearing are completely untried and untested anywhere in the world, let alone on the County’s South Shore.

Mr. Gillespie noted that APPEC’s expert witness Tom Adams is highly qualified to provide evidence on the province’s energy requirements. Mr. Adams has provided evidence that the White Pines Wind Project is not needed (the province has more than enough energy to meet demand for the next ten years) and that the energy produced from this project would be a “drop in the bucket”. Mr. Gillespie noted that Mr. Adams’ evidence was not contested by either the Approval Holder or the Director. Mr. Gillespie clarified the Director’s position that economic and social considerations need to be considered even if they are secondary to the environment.

Respondents’ Reply

Ms. Davis restated the Directors’ position that SLWP had a wider range of changes. She also noted that Mr. Hirsch’s submissions concerning the FOI request are not in evidence.

Mr. Wilson restated the mitigation process for bats in simple terms: line up wind speed, curtailment and the impact on little brown bats. He noted that the Gruver survey does exactly that.

Mr. Duffy began by reminding the Tribunal of some aspect of their mitigation at which time a series of objections were raised by Mr. Gillespie on WPD’s conduct in Reply. Mr. Gillespie again asked the Tribunal for a clear ruling on Reply Submissions but the Tribunal once again deferred the matter.

The Tribunal closed on a solemn note with no indication of a decision date other than that it would come before April.

Posted in Uncategorized, White Pines ERT

Set Aside January 27, 2017 – last day of ERT hearings on White Pines Wind Project – Wellington Community Centre 10 am.

At long last we are reaching the end of the remedy hearing.  On Friday, January 27 APPEC and the other three Parties at this hearing will be making their final submissions to the Tribunal.  We hope that you will attend this important event to show your support.

Over the past ten months of this remedy hearing Eric Gillespie and his associates have given their all to ensure that APPEC’s interests are protected and our best case will be put forward.  They have put a staggering amount of time and effort into this case.  Eric is deeply committed to convincing the Tribunal that the White Pines Wind Project will cause serious and irreversible harm to Little brown bats and to the Blanding’s turtle and the new mitigations that have been added will do nothing to prevent this harm from occurring.

Together with PECFN (the Prince Edward County Field Naturalists), our partner in this appeal, let’s show our support on January 27th for Eric and his team and our gratitude for all the hard work they’ve done, for our ERT appeal of the White Pines wind project, and for the County’s South Shore.

It is extremely important that the ERT panel sees how important their decision is to the people of Prince Edward County.  It is felt that a strong show of attendance made a difference at the Ostrander Point hearings.

Please come out on this final day of ERT Hearings.  Then we will await a decision.

Date: Friday, January 27, 2017
Time: 10 am (this is expected to be a full-day session)
Location: Wellington and District Community Centre, Highline Hall, 111 Belleville St., Wellington

Posted in Uncategorized, White Pines ERT

Good News to Donors – Official Income Tax Receipts

tax-receiptThe APPEC Board is very pleased to report that on Dec. 20, 2016 the Council of Prince Edward County passed a motion deeming the establishment of a fund to pay the costs of the combined efforts of APPEC and the Prince Edward County Field Naturalists (PECFN) to protect the south shore of the County as a project of community interest.

As such, the County of Prince Edward will now issue Official Income Tax Receipts for any new donations made to this separate fund, established by the County, for the legal costs and disbursements involved in our legal challenges against the proposed industrial wind energy projects along the south shore.

APPEC and PECFN have jointly entered into an agreement with the County for the handling of this fund.  This separate fund will be known as the “County of Prince Edward – Legal Appeal Fund”.  More about the agreement that APPEC and PECFN has entered into with the County can be found here.

If you would like to make a donation eligible for an official income tax receipt for 2016 there is still time to do so.  Cheques should be made out as follows:

      • PAYEE – made out to the “County of Prince Edward – Legal Appeal Fund”
      • DATE – dated on or after today’s date (Dec 22, 2016) and before January 1, 2017
      • NAME AND ADDRESS – the name and address on the cheque should be the name and address that you wish to appear on the official income tax receipt that will be issued to you.  If your cheque has incomplete information on it (for example your name is printed on the cheque but there is no address) please provide this missing information in a brief note accompanying your cheque.
      • SUBMISSION – Cheques need to be received by the County before year-end.  They can be mailed to our mailing address and we will get them in if received in time.  Our mailing address is:

P.O. Box 173
Milford, ON
K0K 2P0

*or email us at to arrange drop-off or pick up.

Please note that any donations to the County of Prince Edward – Legal Appeal Fund will only go towards paying the costs in our legal battle and cannot be passed directly to APPEC or PECFN, nor can any unused donations be returned.

The legal fight to stop the destruction of the south shore of the County comes with a high price tag.  With your full participation and commitment we will be successful.


Posted in Uncategorized, Unwilling hosts

APPEC Report on the Remedy Hearing for the White Pines Wind Project

update2In mid-November the Tribunal issued its decisions on our motions. While some were unsuccessful, overall we were encouraged by the results and with two decisions in particular. We are very pleased that the Tribunal has ordered Dr. Reynolds, WPD’s expert on bats, to return for further cross-examination. The Tribunal is also permitting APPEC to produce documents through a qualified expert witness on the government’s recent policy reversal on renewable energy.

We are fortunate in having Tom Adams as our qualified expert witness. Mr. Adams has worked for several environmental organizations and has served on the Ontario Independent Electricity Market Operator Board of Directors. As an energy and environmental advisor and researcher he has given expert testimony before many legislative committees and regulatory tribunals in Canada. Among other things Mr. Adams will testify that Ontario currently has a significant oversupply of energy (more than 10 years’ worth) and that there is absolutely no need for the White Pines project in order to meet Ontario’s energy needs now or anytime in the foreseeable future. He will also explain to the Tribunal that while White Pines is a relatively small project comparatively speaking, that these types of projects have disproportionately large negative impacts in terms of financial and other consequences.

This new phase of cross-examinations is taking place this week but could go on longer depending on how many roadblocks opposing legal counsel for WPD and the Director try to put in our way.

Last week the Tribunal issued a new schedule for the remainder of the hearing. According to this schedule oral submissions will be heard in the County on January 27, 2017.
As we close in on the finish line donations to the South Shore Appeal Fund are needed more than ever. Donations by cheque may be mailed to APPEC, P.O. Box 173, Milford, ON K0K 2P0. Please make cheques out to the South Shore Appeal Fund.

We invite you to attend one or even both of our back-to-back fundraising events on December 9 and 10th. All funds raised from these events will be going to the South Shore Appeal Fund to stop the construction of the White Pines wind project.



christmas-partyA festive evening is being planned on FRIDAY, DECEMBER 9 starting at 7 pm as a fundraiser for the South Shore Appeal Fund.  In the spirit of the holiday season there will be exceptional wine, delicious food, entertaining conversation and an update of the status of the fight against the White Pines wind project by our legal counsel, Eric Gillespie.  Eric will be providing some insights of the legal case not previously released and will be able to answer questions in a small intimate one-on-one relaxed and confidential setting.

In the spirit of donating to the save the south shore appeal fund, Exultet will be contributing all the wine for the evening and gifts for the donations.  Exultet has exceptional award-winning wine that they are donating.  We are asking for your financial help as well as your festive mood to attend the party.  The minimum donation to attend is $250 per person.

  • Individual donors of $250+ will receive 1 bottle each of the Exultet Royal Road Recipe apple wine & fortified (port-style) dessert wine;
  • Individual donations of $1,000+ will receive a privileged bottle of the Exultet award-winning 2013 Blessed Chardonnay (now sold out) plus the $250 level wines mentioned above; and
  • Individual donations of $5,000+ will receive a very rare offering of Exultet futures – their 2015 “the Blessed Frost” of which only 100 bottles total were produced (plus the 2013 Blessed + the $250 Royal Road Recipe wines).

We would like to have an understanding of who will be attending.  We ask that you let us know if you plan on attending and the amount of your pledged donation by emailing by December 7th at the latest.  Please note that All donors will receive the gifts described above whether they attend or not.  



WHEN:  SATURDAY, DECEMBER 10 – between 10:00 am & 2:00 pm
WHERE:  1071 ROYAL ROAD, Milford, ON

chrismas-bazaar2A Christmas Bazaar & Bake Sale is being hosted in support of the South Shore Appeal Fund.

Here is a great chance to buy some unique gifts or items for your home, including an almost new children’s wagon, a decorative wooden train set, a plush Christmas Santa, garland, Christmas labels & cards. .and so much more.  Make sure you arrive early as many of the items are one of kind.

Get ahead of your Christmas shopping by buying some homemade baking for the holidays.

Posted in Events, Uncategorized, White Pines ERT

Status Report on Remedy Hearing for White Pines Wind Project

By Gord Gibbins, APPEC Chair

imagesThere has been little to report since the Environmental Review Tribunal suspended the remedy hearing schedule on October 5, 2016. This was done to give the Tribunal time to adjudicate a number of motions that were raised by our legal team and submitted to the Tribunal. (A summary of APPEC’s motions can be found in the previous posting). Since October 5 there have been response statements to our motions from WPD White Pines Inc. and the Ministry of the Environment and Climate Change followed by more APPEC reply statements. There has been a lot of back and forth of documents. Our legal counsel has made some very convincing arguments and we look forward to some decisions.

In one of the motions we ask the Tribunal to recall WPD’s three witnesses for further cross-examination. In this month’s issue of The South Marysburgh Mirror we explain in some detail why this motion was deemed necessary. Please click HERE to read APPEC’s article on page 9.

While we are looking forward to some decisions on the motions we are also cautious, frustrated and concerned with this Tribunal’s ability to fairly provide sound decisions without bias towards APPEC. One of our motions actually dealt with this frustration and concern. The board has learned from experience that nothing about this Tribunal can be taken for granted. But at the end of the day how the Tribunal decides to deal with our motions will determine how APPEC moves forward at the remedy hearing. If the Tribunal’s rulings on our motions appear wrong in law we will take any legal action that is necessary in the courts.

The motions are all sitting with the Tribunal awaiting decisions. There has been no word from the Tribunal since October 5 but that could change anytime.

In recent weeks we have received several informative articles and reports from members. One article discusses the decision of the Saskatchewan Ministry of the Environment to deny approval to a wind project due to migratory bird activity near the project site.

We also received the annual report from Ontario’s Environmental Commissioner which contains disturbing data about the declining numbers of endangered bats. Recent estimates suggest that roughly 5,200 endangered bats are killed every year at wind turbine projects in Ontario. In a footnote to that report it is noted the Little brown bats make up the majority of those fatalities (11.7 per cent).

A study in the November publication of “Current Biology” finds that wind turbines are killing hundreds of bats in the UK each month. The researchers note that even in cases where wind projects are identified as high risk that mitigations have been ineffective and significant harm has been caused to bats: “Of those sites identified as posing a significant risk to bats in (pre-construction impact assessments), risk does not appear to have been adequately mitigated. Indeed one of these mitigated sites had the highest recorded casualty rate. . .We conclude that significant harm was not avoided at these significant risk sites.”

Although no pre-construction surveys for bats were done by WPD we are equally sure that the PEC South Shore is a significant risk site and that WPD has not adequately mitigated the risk to Little brown bats at its project site.

We would like to thank everyone who has sent articles, both recently and throughout this past year. We would also like you to know that this information is always followed up on, and where appropriate provided to our legal counsel Eric Gillespie.

It is worth noting that APPEC filed its appeal of the White Pines wind project on July 31, 2015 and the Environmental Review Tribunal issued its findings of serious and irreversible harm to the Blanding’s turtle and to Little brown bats on February 16, 2016. Our appeal was filed and completed within six months. Nine months later, however, APPEC is still incurring legal costs and expending great amounts of time and effort at a remedy hearing that serves WPD’s interests alone. It is unfair to say the least that APPEC was given six months to prepare and make its case while WPD has been given an excessive amount of time to do this at the remedy hearing and that APPEC is in the position at this point of having to foot the bill not only to stop a wind project from going ahead but also to protect Ontario’s at-risk species.

The APPEC board also feels the need to point out that this ERT appeal is the only legal action that is preventing WPD from starting construction on the White Pines wind project. As noted above, there is a lot of time and effort being extended on this appeal. One would be surprised on the thousands of dollars to cover costs including legal fees, witness fees, transcripts, document reproduction costs and many other expenses. We ask that you consider the high costs for this appeal and contribute to the only appeal that is keeping the White Pines wind project from being constructed.


Posted in Uncategorized, White Pines ERT

White Pines Wind Project Remedy Hearing Motions

On October 5 the Tribunal suspended the remedy hearing schedule in order to adjudicate a number of motions from APPEC.   The Tribunal’s rulings on the motions could be days, weeks or even a month-plus away.

1. Referral to the Director
This motion is for an Order of the Tribunal to remit the REA (Renewable Energy Approval) for the White Pines wind project back to the Director of the Ministry of the Environment and Climate Change (MOECC) for reconsideration in light of the amendments proposed by wpd.  A large number of significant amendments to the Project have been proposed.  As a result this Project can no longer be said to be the Project “as approved” by the Director.

2. Striking Respondents’ Evidence
Affidavits from witnesses for wpd and the MOECC raise issues that as a matter of law could only be properly raised at the main hearing.  In effect both wpd and the MOECC are seeking to re-litigate large portions of the hearing that have already taken place.

3. Motion re New Evidence
On April 5, 2016 APPEC obtained aerial photographs, taken by a drone, of the large-scale clear-cutting at T16 and T17.  The devastation of the construction from only two sites clearly demonstrates just how pervasive and severe the construction process actually is. This motion is for an Order to admit this new evidence pursuant to the Tribunal’s Rules 233 and 234.

4. Disclosure Motion
APPEC requests an Order from the Tribunal directing that wpd and the Director provide any documentation in relation to their witnesses that were considered by these witnesses in the formulation of their opinions for the remedy phase.

5. Clock Stop Motion
The hearing as contemplated by the Tribunal cannot be completed within the remaining hearing time under O. Reg. 359/09 s.59 (i.e., the Green Energy Act).

6. Motion for Recusal
This motion is for an Order that the presiding Tribunal members be recused.  APPEC respectfully submits that there exists a reasonable apprehension of bias in this matter.

7. Motion re Refusals on Cross-Examination, etc.
This motion is for an Order of the Tribunal directing wpd witnesses Dr. Scott Reynolds, Khlaire Parre and Shawn Taylor to re-attend to answer questions arising from their cross examinations on September 29, 2016.

8. Motion to Admit Studies Arising from the Cross Examination of Dr. Brock Fenton
APPEC seeks an Order of the Tribunal admitting into evidence two studies on Little brown bats referred to by Dr. Fenton that he authored in 1969 and 1970 in response to questions during his cross examination on September 28, 2016.

9. Motion to Admit Documents provided to wpd prior to the commencement of cross examination of its witnesses on September 29 as follows:

  • Two scientific papers presented to Dr. Reynolds, wpd’s expert on bats. The 2016 report was only accepted for publication in June of 2016, and even Dr. Reynolds was not aware of it.
  • The announcements put to Klaire Parre, wpd’s Director of Renewable Energy Approvals, regarding the current supply of energy in Ontario and the decision of the Ontario Government that was announced two days before to not seek to procure any additional power from largescale renewable energy projects.
  • Photos from Amherst Island that were put to Shawn Taylor, wpd’s ecological and construction mitigation expert, that deal directly with Blanding’s turtle and the issue of areas where they are likely to travel, notwithstanding compaction, etc.
Posted in Uncategorized, White Pines ERT

Remedy Hearing Cross-examination of wpd witnesses

Report on Remedy Hearing for White Pines wind project
Cross-examination of wpd witnesses on September 29, 2016 
by Paula Peel

Shawn Taylor
APPEC legal counsel Eric Gillespie questioned Mr. Taylor on a series of exhibits from the Amherst Island ERT, where Mr. Taylor recently testified for the wind developer.  Mr. Gillespie’s questions were repeatedly blocked by wpd’s legal counsel, Mr. Duffy who indicated that wpd would object to any document that Mr. Gillespie referred to from the Amherst Island ERT.  Mr. Duffy also directed their witness, Mr. Taylor, to not respond to any questions relating to Amherst Island, even the simple question whether one of the issues that came up at those hearing was the location of Blanding’s turtles on the island.  The transcript shows twelve refusals by wpd during Mr. Gillespie’s cross-examination of Mr. Taylor.  Mr. Gillespie noted that there was no mechanism for dealing with refusals and motions and asked that the cross-examination be adjourned as it would not be productive to proceed with Mr. Taylor at this time.

little_brownDr. Reynolds
Mr. Gillespie noted that Dr. Reynold’s original affidavit included a 5-volume set of literature references containing 79 studies and reports and told Dr. Reynolds that APPEC has brought a motion asking the Tribunal to strike out evidence.  Mr. Gillespie remarked on the difficulty of a cross-examination on what is essentially over 100 documents at this point in this kind of format and with these time constraints.  Mr. Duffy told Mr. Gillespie that this would be the only opportunity Mr. Gillespie would have to cross-examine Dr. Reynolds but Mr. Gillespie replied that this would ultimately be up to the Tribunal to decide.

In the time available Mr. Gillespie was able to sort out a discrepancy between Dr. Reynold’s affidavit and his Literature Cited list involving two missing papers.  Mr. Gillespie also questioned Dr. Reynolds on the paper “Bat Mortality Due to Wind Turbines in Canada”. Mr. Gillespie asked Dr. Reynolds if there was anything in that paper that was inconsistent with his own understanding and that he would disagree with.  Mr. Duffy directed Dr. Reynolds not to respond and suggested that Mr. Gillespie ask narrow, more focused questions about the paper.  Mr. Gillespie responded to the effect that if we were to do that with the over 100 papers that Dr. Reynold produced we would never get anywhere at these hearings, ever.  Mr. Gillespie asked that the cross-examination be adjourned as this was as far as it was possible to go given the time constraints. The transcript shows three refusals by wpd during Mr. Gillespie’s cross-examination of Dr. Reynolds.

Khlaire Parre
After confirming Ms. Parre’s position as wpd’s Director of Renewable Energy Approvals, Mr. Gillespie questioned Ms. Parre on the document that had been issued by the provincial government two days earlier entitled “Ontario Suspends Large Renewable Energy Procurement”.  Mr. Duffy objected to the admission of this and two other related documents, citing relevance. Mr. Gillespie challenged the timing of the objection, as it was made before Mr. Gillespie had an opportunity to show relevance through questioning of the witness.  Mr. Gillespie argued that the relevance was clear enough given the benchmark hearing in the Ostrander Point case, where the Tribunal made it clear that it is completely proper to make submissions around the Ministry’s Statement of Environmental Values (the “SEV”) which includes economic considerations.

Mr. Gillespie asked Ms. Parre if she was aware that on the 27th September that the Ontario government announced that it was suspending any further procurement of large energy projects.  Mr. Duffy directed Ms. Parre to refuse to answer that question and any other question on that topic.  Mr. Gillespie asked that the cross-examination be adjourned as this was as far as it was possible to go with this witness at this time. The transcript shows three refusals by wpd during Mr. Gillespie’s cross-examination of Ms. Parre.


Posted in Uncategorized, White Pines ERT