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Tribunal rules in favour of Dufferin Wind
December 31, 2013 · 0 Comments
The Environmental Review Tribunal has upheld ministerial approvals of the 100-MW Dufferin Wind Power (DWP) wind farm in Melancthon.
The approvals include not only the turbines but also the 230 kv transmission line along the rail corridor. DWP also has Ontario Energy Board “leave to construct” the power line but lacks agreement with Dufferin County and other property owners for necessary easements, and is seeking permission to expropriate.
In upholding environmental approvals, the tribunal essentially rejected claims of adverse effects on human and animal health and of irreparable damage to the environment.
“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,” reads the decision.
The case is listed as Bovaird v. Director, Number 13-070 to 13-075. It will be posted on the ERT website although it hadn’t been this week.
The Director is Vic Schroter of the Ministry of Environment. He had issued DWP’s Renewable Energy Approval on June 10, 2013. Roselyn Bovaird, CORE (Conserve Our Rural Environment), VanDerZagg (farms), John Maguire and Kathleen Kurtin appealed on the basis of irreversible harm to the environment and animal health on June 25, as did Dennis Sanford on the basis of serious harm to human health.
Then, on July 14, Mr. Sanford was joined by the other parties in raising the Section 7 challenge.
The ERT issued its 127-page decision on the morning of Monday, Dec. 23 following 26 days of evidence.
The decision cites three main issues, but the hearing actually dealt with five “sub-issues” at great lengths: effects on soil and productive farm land generally, especially Honeywood loam; water resources; the Niagara Escarpment Plan; and bats and other animals.
The decision may be subject to appeal but Dennis Sanford said in a phone interview Tuesday that, because of the holidays, it might be difficult to meet the 15-day deadline for an appeal.
Mr. Sanford, represented by anti-wind lawyer Eric Gillespie, heads Wind Resistance Melancthon. He had not spoken with his committee or lawyer at the time of the interview.
Noting that there has been only one instance of the ERT over-ruling a wind turbine approval, he said adverse health effects are difficult to prove. The one instance of over-ruling involved the habitat of a Blanding’s (Emydoidea bandingil) turtle at the site of a proposed Gilead Power wind farm in Prince Edward County.
In fairness to the tribunal with respect to timing, Chair Heather Gibbs had stated at the outset that it had to meet a deadline.
The individual sub-issues are covered in separate stories below:
By Wes Keller
Title
By Wes Keller
Issue 2: Whether engaging in the Project in accordance with the REA will cause serious harm to human health [283] In the discussion of Issues 2 and 3, the term “Appellants” includes all of the Appellants, including Mr. Sanford.
Overview
[284] The test under s. 145.2.1(2) (a) of the EPA, is whether engaging in the
renewable energy project in accordance with the renewable energy approval will cause
serious harm to human health (the “Health Test”). Pursuant to conditions imposed in
the REA, noise generated by the Project cannot exceed 40 dbA measured at the
exterior of buildings which are non-participating receptors as this term is defined in the
regulations. Residential homes are an example of such non-participating receptors.
The setback distance from Project components is 550 m. Section 145.2.1(3) of the EPA
states that the onus of proving that such serious harm will occur rests with the
Appellants. Therefore, they must demonstrate that serious harm to human health will
occur in circumstances where these conditions have been met. If the evidence
suggests that serious harm will occur only in circumstances where noise levels exceed
40 dbA at a non-participating receptor and/or at a distance less than 550 m from a
receptor, then the Health Test will not be satisfied.
[285] The Appellants were represented in two groups. CORE, D&C Vander Zaag
Farms Ltd., Ms. Bovaird, Mr. Maguire, Dr. Crysdale, and Ms. Kurtin (collectively
referenced as the “CORE Appellants”), and Mr. Sanford. However, these two groups
relied on the evidence adduced by each other, and filed joint written submissions
regarding the Health Test in this proceeding.
[286] The Tribunal heard extensive evidence on this issue, and, as well, extensive
written submissions from the parties numbering several hundred pages. While the
Tribunal has reviewed and considered the evidence and submissions in detail, it is not
feasible to include a detailed synopsis of all of the evidence or the submissions within a
decision of reasonable length.
[287] During the course of the hearing, the parties made several references to the
Tribunal’s decision in APPEC. In this regard, the Tribunal notes that many of the same
witnesses testified in both this proceeding and APPEC, and, particularly with respect to
the same or similar issues that have been raised in both proceedings. The Appellants
dispute an assertion made by the Director that the case presented by the Appellants is,
in essence, a duplicate of the case presented in APPEC. The Tribunal finds that,
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
although the evidence, issues, and submissions are very similar, this case is not a
duplicate of APPEC. The Tribunal has undertaken its own deliberation of the evidence
and submissions of parties in this proceeding, and has independently arrived at its own
conclusions respecting the issues raised. However, as the Tribunal’s findings are
similar to those in APPEC, the Tribunal has structured its analysis and discussion in a
manner similar to the approach adopted by the Tribunal in APPEC. In this regard, the
Tribunal accepts that its analysis of Issue 2 should be addressed under three sub-
issues:
2A. Whether the Appellants have established a causal link between wind
2B. Whether engaging in this Project in accordance with the REA will cause
2C. Whether Sarah Laurie should be qualified as an expert to give opinion
turbines and human health effects where there is a 550m setback and 40 dBA
noise limit;
serious harm to human health; and
evidence.
[288] In this proceeding, the Appellants approached the test outlined in s. 145.2.1(2)
(a) of the EPA as building on the groundwork laid by APPEC and Erickson v. Director
(Ministry of the Environment), [2011] O.E.R.T.D. No. 29 (“Erickson”).
[289] As stated in the Appellants’ joint submissions on the Health Test:
187. The following findings were made in Erickson, on a much more
fulsome record with far more expert evidence available:
The Known Effects of IWTs Are Serious: Para. 640 – In this case,
there is apparent agreement that many of the medical conditions
discussed by the witnesses are serious (the debate on those is,
therefore, confined to whether they will result from the Project).
Mechanism Is Not Required: Para. 819 – For the purposes of this
Decision, the Tribunal finds that the Appellants can attempt to satisfy
the section 145.2.1(2) test even if there is uncertainty about the
specific mechanism that causes the alleged health effects.
IWTs Can Cause Harm to Human Health: Para. 872 – While the
Appellants were not successful in their appeals, the Tribunal notes
that their involvement and that of the Respondents, has served to
advance the state of the debate about wind turbines and human
health. This case has successfully shown that the debate should not
be simplified to one about whether wind turbines can cause harm to
humans. The evidence presented to the Tribunal demonstrates that
they can, if facilities are placed too close to residents. The debate
has now evolved to one of degree. The question that should be
asked is: What protections, such as permissible noise levels or
setback distances, are appropriate to protect human health?
[Emphasis added]
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
188. The Appellants submit that the Tribunal’s decision in the within
proceedings should be reflective of the Erickson findings. These are
fundamental issues that were fully considered and determined in
Erickson. For many reasons, they should not be relitigated in this or
future ERT hearings. The time and costs alone of revisiting each of these
issues would be extremely onerous and unmanageable. Erickson allows
the process to move forward, to look at the real question that must be
determined in each subsequent case, which the Tribunal clearly
articulated above.
…
[290] The evidence on causation, as described in Erickson and subsequent Tribunal
decisions, can be described as falling within one of two general categories. The first is
described as a direct effect such as hearing loss. The second category is described as
an indirect effect. This refers to health effects alleged to result from annoyance, stress
and sleep disturbance associated with living in proximity to a wind turbine or related
components.
[291] Under either of these two categories, there are two bases on which the
Appellants seek to establish that engaging in the Project in accordance with the REA
will cause serious harm to human health. The first basis is to show that current
experience with wind farm projects, both in Ontario, and elsewhere in the world,
demonstrates that it is sufficiently predictable that some or all persons living within the
vicinity of wind project components (wind turbine(s) being the prominent component) will
experience serious health effects. This may be generally described as a generic
approach, as it does not seek to establish causation with respect to specific identified
individuals. To support their position in this regard the Appellants adduced evidence
regarding the incidence of annoyance, which they assert will be caused by wind turbine
projects, as well as evidence that environmental noise and annoyance cause stress and
sleep disturbance. The Appellants also adduced evidence of persons living in the
vicinity of existing wind turbine projects, both in Ontario and elsewhere in the world, who
report adverse health effects attributed to their exposure to these wind turbine projects.
[292] The second basis on which the Appellants seek to establish that the Health Test
is met is to show that specific individuals have suffered serious harm to their health as a
result of living in proximity to wind project components. In this case, the Appellants have
adduced evidence of persons living in the vicinity of existing wind turbine projects in
Ontario who report adverse health effects which they assert are caused by these wind
turbine projects (“the post-turbine witnesses”).
[293] In overview the Appellants assert that they have established causation on both
bases. Based on the generic approach, they maintain that it is predictable that a certain
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
percentage of the persons living in proximity to the Project will suffer adverse health
effects. Based on the approach respecting the experience of specific individuals, they
maintain that the evidence of the post-turbine witnesses establishes that wind turbines
do cause harm to human health, and, more specifically, that wind turbines exacerbate
certain types of pre-existing medical conditions. The Appellants then argue that this
evidence will establish causation with respect to this Project. In this regard, they point
to evidence they have adduced respecting individuals who will live in the vicinity of wind
turbines in the Project (the “pre-turbine witnesses”), asserting that each of these
individuals currently suffers from medical conditions that will be exacerbated by
exposure to wind turbines. The Appellants maintain that the evidence of these pre-
turbine witnesses “is highly relevant to establish a causal link between the proposed
Project and the more likely than not probable effect on those living nearby.”
[294] In summary, it is the Appellants’ position that this evidence, considered in the
context of the Erickson and APPEC decisions, demonstrates that engaging in the
project in accordance with the REA will cause serious harm to human health.
Issue 2A: Whether the Appellants have established a causal link between wind
turbines and human health effects where there is a 550m setback and 40 dBA
noise limit.
[295] Paragraph 88 of the Appellants’ written submissions states: “The causal links
between the risk of harm and IWTs are amply established in the evidence.” Implicitly,
their argument is that this risk, if established, will be sufficient to meet the Health Test in
this case. As discussed below, the Tribunal finds that the Appellants have not
established this causal link. Consequently, it is unnecessary for the Tribunal to address
whether such causal link, if established, would be sufficient to satisfy the Health Test as
it applies to the Project under appeal in this proceeding.
[296] The Appellants seek to establish the causal link between wind turbines and
human health based on the following evidence:
The evidence of the “post-turbine witnesses”, who each report that they have
The medical opinion evidence of Dr. Robert McMurtry which supports the
experienced adverse health effects. They assert their conviction that these
symptoms are caused by wind turbines.
views of the post-turbine witnesses. Dr. McMurtry also provides his own
opinion respecting the causation issue.
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
The evidence of Ms. Laurie regarding her work with persons in Australia living
in proximity to industrial wind projects, who have also reported that they
experience some of the health effects listed above.
The evidence of Brian Howe respecting annoyance.
[297] The Tribunal has structured its analysis and findings in two sections: the
Appellants’ case based on the evidence of the post-turbine witnesses; and the
Appellants’ case based on the evidence of Ms. Laurie, Dr. McMurtry, and Mr. Howe.
Appellants’ Case Based On The Evidence Of The Post-Turbine Witnesses
Appellants’ Evidence
[298] The Appellants’ submissions summarize the evidence of the post-turbine
witnesses, stating that they gave testimony:
… regarding their debilitating and enduring experiences with sleep
disturbance, vertigo, nausea, tinnitus, heart palpitations, memory and
concentration loss, mood swings, chronic fatigue, breathing difficulty,
headaches/migraines, and even suicidal thoughts. Those with pre-
existing medical conditions such as back pain, chronic fatigue,
fibromyalgia, and high blood pressure, spoke of how these conditions
worsened with the turbines becoming functional.
They also testified that when away from their homes, they gained respite
from their various symptoms.
[299] The Appellants characterize these health effects as falling within the category of
indirect harm. As stated at paras. 72 and 73 of the Appellants’ submissions:
72. There is therefore undisputed evidence before this Tribunal that
at sound levels at or below those approved for the operation of this
Project, 6-20% of people will be very annoyed. There is a causal chain
between annoyance, stress, sleep disturbance, and adverse health
effects.
73. This causal chain is evidenced by the adverse health effects
suffered by the post-turbine witnesses who testified in this case…
[300] All of the post-turbine witnesses provided a witness information form which
essentially sets out their responses to a list of questions regarding their medical history,
self-reported health symptoms, and other personal information. They each provided
medical records that they were able to obtain in time to present at the hearing. Some of
these medical records included documents setting out medical opinions respecting
specific conditions. None of these witnesses provided a medical opinion which
attributed exposure to wind project components as the cause of their complaints. Dr.
McMurtry has expressed an opinion in this regard. The Tribunal addresses his
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
evidence below. Despite any pre-existing medical condition these witnesses may have,
they each testified that, after the wind turbines became operational in their environs,
they have experienced adverse health effects which they had not experienced before.
They state their views that exposure to the wind farm project in the vicinity of their
residences has caused these adverse health effects. They maintain that they had no
negative perceptions or expectations respecting the impacts of wind turbine projects
prior to experiencing adverse health effects.
[301] They cite one or both of the following reasons to support their assertion regarding
causality:
The adverse health effects they have experienced manifested when the wind
They have gained respite from their various symptoms when they leave their
farm project commenced operation, or shortly thereafter, and they have been
unable to find any other explanation for their condition; and
homes, more specifically, when they are no longer in the vicinity of the wind
farm for a period of time (where symptom relief is either immediate or
gradual). Their symptoms resume upon returning to their homes either
immediately or shortly thereafter.
[302] Inherent in the views expressed by the post-turbine witnesses are two major
premises: (i) for the post-turbine witnesses with pre-existing conditions, the adverse
health effects they experience are in fact, different from the health effects associated
with their pre-existing conditions, or potential side effects from the medication they are
currently taking; and (ii) their inability to find another cause for their symptoms,
considered together with the relief they experience when they remove themselves from
exposure, is, in their view, conclusive evidence that their adverse health effects are
caused by wind turbines. Both these premises are challenged by witnesses called by
the Director and the Approval Holder.
Respondents’ Evidence
[303] The Director and the Approval Holder called the following witnesses:
Dr. Robert McCunney, who was qualified as medical doctor specializing in
Dr. Cornelia Baines, who was qualified as an epidemiologist with special
occupational and environmental medicine with particular expertise in health
implication of noise exposure;
expertise in design measurement and evaluation of research studies.
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
Dr. Kieran Moore, who was qualified as a physician with expertise in family
and emergency medicine, public health, and preventative medicine.
[304] For ease of reference, the Tribunal collectively describes these witnesses as the
respondents’ health experts. Each of them has testified in Erickson, APPEC, or both.
The Tribunal’s decisions in these cases already provide detailed summaries of their
evidence. Much of the evidence they gave in those cases has been repeated in this
proceeding. Therefore, the Tribunal does not find it necessary to provide a detailed
synopsis of all of their evidence in this decision.
[305] In summary, the evidence of these witnesses is that the reliable determination of
causality with respect to adverse health effects is a very complex exercise.
[306] In addressing both premises, they note that many of the symptoms reported by
the post-turbine witnesses are known to commonly occur in the general population and
have numerous causes. Considerations related to medical causality assessment are
discussed in paras. 75 to 82 of Dr. McCunney’s witness statement:
Causality Assessment
75. The information in the Information Forms is insufficient to
conduct formal individual causality assessments, most notably because
of limited diagnostic work ups and the absence of noise measurements.
The collection of statements is also not appropriate for a group analysis,
in part, since they represent different sites and different times of
exposure that may not be representative of each particular site.
76. A proper causality assessment includes a thorough review of
symptoms and past medical history with appropriate diagnostic studies.
The determination of causality is an important exercise in health care,
but it is customarily only undertaken after diagnosis and treatment. A
causality assessment should also consist of a thorough review of noise
measurements conducted in the vicinity of the home along with a
comparison of the symptoms, diagnosis and noise levels in light of what
has been published in the peer reviewed scientific literature.
77. As noted above, the symptoms reported in the Information
Forms are common in the general population and have numerous
causes. … Other groups of symptoms, such as fatigue, loss of energy
and poor concentration, reported in the Information Forms strongly
suggest depression as the appropriate diagnosis.
78. Sleep disturbance, one of the symptoms described in the
Information Forms, can be due to many factors ranging from stress and
medications to potential serious medical diagnoses such as sleep apnea.
Vertigo, another symptom reported in the forms, has numerous causes; it
must be appropriately diagnosed before attributing causal links to any
potential environmental concern. …
79. It is important to distinguish the medical activities necessary in
(1) forming a diagnosis of symptoms and (2) assessing the cause of the
symptoms. A causality assessment customarily begins with a thorough
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
medical evaluation that leads to a diagnosis. The cause can be
determined thereafter based on consideration of the scientific literature
and alternative explanations.
80. Another key aspect of conducting a causality assessment is the
determination of biological plausibility; in essence, does the proposed
link make sense from a biological perspective? … Since noise is the
potential hazard associated with the operation of a wind turbine, ,it is not
appropriate science to link these conditions to wind turbines if the
conditions have not been definitively linked with noise exposure in other
settings. Furthermore, many of the health conditions reported originated
before the installation of wind turbines, thus making any causal
connection with wind turbines implausible.
81. In any causality assessment, it is necessary to establish a
diagnosis based on accepted medical criteria. … Based on the
information presented, it is not possible to determine whether the asthma
reported in the symptom statements was made according to widely
accepted medical criteria.
…
82. The symptoms and conditions described in the Information
Forms need to be properly evaluated by a physician in the context of
appropriate diagnostic studies before one could reliably form specific
diagnoses or draw causal connections between the symptoms and living
in the vicinity of a wind turbine. Forming a diagnosis is the first step in
attempting to draw causal inferences between exposure to any type of
hazard and health related symptoms from the exposure.
83. The Information Forms represent the self-reporting of individuals
from various sites in Ontario who live in the vicinity of wind turbines.
They do not represent a defined group of people, who could be
evaluated in any systematic fashion, such as can be done in
epidemiological studies. …
[307] The above comments are made in specific reference to the witness information
forms. The Tribunal notes that the medical records and oral testimony of the post-
turbine witnesses as well as the information provided in telephone interviews conducted
by Dr. McMurtry, are, for the most part, consistent with the information provided in these
witness information forms. It should be noted that the information provided by the post-
turbine witnesses in telephone interviews was not admitted into evidence by the
Tribunal, as noted below.
[308] This evidence underscores that determining the cause of an adverse health
effect requires comprehensive investigation in order to accurately ascertain symptom
etiology. In this regard, Dr. McCunney also noted that information regarding the level of
noise experienced by the post-turbine witnesses is absent. He explained that an
exposure assessment is critical to any evaluation of causality in order to assess how the
specific exposure compares with the dose-response results described in applicable
scientific literature.
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
[309] Regarding the premise that a causal connection is demonstrated by the fact the
post-turbine witnesses experience relief from their symptoms when they remove
themselves from exposure to wind turbines, Dr. Moore also states in his witness
statement at para. 106:
106. Since multiple witnesses have stated they have depression, this
can be associated with somatoform disorders, which are characterized
by physical symptoms that have a psychological, as opposed to a
physical, cause. Also, conversion is a common disorder where stress
and anxiety are unconsciously expressed as physical symptoms, such as
sensation of tingling or discomfort, fatigue, abdominal pain, headaches,
back or neck pain, weakness, loss of balance, and hearing and visual
abnormalities. This could explain some of the symptoms that individuals
report when returning to their homes, which is part of the syndrome
discussed by Dr. McMurtry.
[310] Dr. Moore also testified that it is understandable that if someone’s symptoms
started when a wind turbine project commenced, they could believe that this has caused
their symptoms. However, he points out that a temporal association between these two
events does not establish causation. In referring to sleep disturbance, he states at
paras. 22 and 23 of his witness statement:
22. Hence, sleep disturbance is a very common condition in the
general older adult population and especially in those with underlying
medical conditions. Sleep disturbance must be put in context and
investigated as to its etiology. Sleep disturbances increase with age.
23. By extrapolation of the population prevalence data of insomnia or
sleep disturbance, approximately one third of all adults exposed to wind
turbines will experience insomnia. A significant portion of these, due to
chance alone, could be temporally associated with the commencement
of a wind turbine development. If patients have any chronic medical
condition that causes pain, such as osteoarthiritis the above study
suggests that up to seventy percent could report poor sleep.
[311] The respondents’ health experts note that, as associations between events can
occur by chance, an epidemiological approach to assessment of causation is required.
They note that the most widely accepted criteria, referred to as the Bradford Hill criteria,
provide a reasonable framework to be applied when determining causal associations.
These criteria include strength of association, consistency, specificity, temporality,
biological gradient, plausibility, coherence, experimental evidence, and analogy. As
their evidence in applying these criteria to this case is both detailed and lengthy, the
Tribunal does not include a synopsis of this evidence in this decision. In summary, the
conclusion drawn by the respondents’ health experts is that, in applying these criteria,
causation cannot be established based on the evidence adduced by the Appellants.
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
Findings
[312] The issue to be addressed by the Tribunal in respect of the post-turbine
witnesses is whether they have experienced adverse health effects that have been
caused by exposure to industrial wind turbines outside of the 550m regulated setback
and under 40 dBA noise limit. For the following reasons, as well as the Tribunal’s
analysis and findings in respect of the other Appellants’ health witnesses (discussed
below), the Tribunal finds that the Appellants have not done so.
[313] The Tribunal does not question the sincerity of the post-turbine witnesses in
giving their evidence. They acknowledge that the identification of their adverse health
effects is through their own self-diagnosis. They also acknowledge that they have
reached personal conclusions regarding the issue of causation. Several of them assert
that they have had to do so, because they maintain that medical professionals either
have no knowledge regarding the effects of wind turbines, or are skeptical or dismissive
of the possibility that wind turbines can negatively affect human health. Nevertheless,
none of the post-turbine witnesses adduced any medical opinion from their health
practitioners which confirms that they have experienced symptoms caused by wind
turbines. The Tribunal does not question that the post-turbine witnesses have
experienced the symptoms they have described. After all, only they can say how they
feel. However, in order to arrive at a reliable conclusion respecting causation, personal
assessments which do not consider the full range of potential causes of these
symptoms, are incomplete. Furthermore, the exercise of arriving at a diagnosis requires
a level of education, training and experience, which none of the post-turbine witnesses
possess. In this regard, the Tribunal notes that in Kawartha Dairy, the Tribunal found
that confirmation of medical conditions requires the diagnostic skills of a qualified health
professional. This conclusion was accepted in APPEC, and the Tribunal accepts that it
applies in the circumstances of this case. As discussed below, the Tribunal also does
not find that Dr. McMurtry’s opinion about each of the post-turbine witnesses
establishes they have experienced adverse health effects caused by wind turbines.
[314] The evidence adduced must support a conclusion that the post-turbine witnesses
have experienced serious harm that is caused by wind turbines or related components.
The Tribunal accepts that causality assessment is a complex exercise. The Tribunal
finds that the evidence adduced by Dr. McCunney, Dr. Baines, and Dr. Moore
respecting causality assessment has not been seriously challenged by the Appellants.
Therefore, the Tribunal accepts their evidence in this regard. Their evidence is that
there is a level of uncertainty regarding the conclusions reached by the post-turbine
witnesses in several areas including: (i) failure to obtain qualified medical investigation
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
to rule out other potential causes of their symptoms, before arriving at the conclusion
that their symptoms must by default, be caused by exposure to wind turbines or related
components; (ii) failure to consider whether wind turbine noise is a plausible cause of
their symptoms by considering existing known effects of noise exposure; and (iii) failure
to consider the noise exposure levels experienced by these individuals. As a result, the
Tribunal finds that the evidence adduced by the post-turbine witnesses is insufficient to
support a conclusion that the post-turbine witnesses have experienced serious harm to
their health caused by wind project components.
[315] Even if the Tribunal accepted that causation is established, it is unclear whether
this evidence could be extrapolated to apply to the Project under appeal in this
proceeding. In this regard, the Tribunal has noted that the evidence adduced does not
include confirmation of the noise exposure levels experienced by the post-turbine
witnesses. As such, the Tribunal finds that it is has not been established that the
adverse effects they have described, if attributable to industrial wind turbines, are
caused by noise levels at or below 40 dbA.
[316] Finally the Tribunal notes that, although causation has not been established with
respect to these individuals, this does not preclude their evidence from being
considered as data in support of the Appellants’ position that current evidence
demonstrates that it is sufficiently predictable that some or all persons living within the
vicinity of wind project components (wind turbine(s) being the prominent component) will
experience serious health effects. This is considered below in the Tribunal’s analysis
respecting the evidence of Dr. McMurtry, Ms. Laurie, and Mr. Howe.
Appellants’ Case Based On The Evidence of Ms. Laurie, Dr. McMurtry, and Mr. Howe
Appellants’ Evidence
[317] As is discussed below, the Tribunal did not grant the Appellants’ request that Ms.
Laurie be qualified to given opinion evidence. Dr. McMurtry is a practicing medical
doctor who was qualified to give opinion evidence as a physician and surgeon with
experience in the delivery of health care, health care policy, and health policy. 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.
Ms. Laurie
[318] Ms. Laurie is a non-practicing physician, who was called by the Appellant, Mr.
Sanford, to give evidence in this proceeding. He requested that she be qualified to give
opinion evidence, a request that was supported by the CORE Appellants, and opposed
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
by the Director and Approval Holder. In an oral ruling, the Tribunal refused Mr.
Sanford’s request, indicating that its written reasons for this disposition would follow. As
the Tribunal’s written reasons for this disposition are lengthy they have been addressed
separately under Issue 2C below.
[319] Ms. Laurie’s experience respecting health impacts of industrial wind turbines has
been gained primarily from her work for an organization known as the Waubra
Foundation. In summary, Ms. Laurie testified that she has not approached communities
to conduct surveys, and that she has not conducted formal structured research. She
states that she conducts an ongoing survey, where, to date, she has spoken with
approximately 130 people in Australia who live in the vicinity of industrial wind turbine
projects. She indicated that these people have identified themselves to her, by
contacting her directly, or indirectly by contacting the Waubra Foundation. She
explained that these persons describe their symptoms to her and request information.
She testified that the symptoms reported to her are consistent with the adverse health
effects identified as being associated with industrial wind turbines by other researchers,
including Dr. Geoff Leventhall, Dr. Nina Pierpont, and Dr. McMurtry. She provided a
number of published articles and papers, and copies of written statements to agencies
in Australia and elsewhere.
Dr. McMurtry
[320] Dr. McMurtry’s evidence in this proceeding is, in part, similar to the evidence he
gave in APPEC. As noted at para. 74 of that decision:
74. Although Dr. McMurtry’s witness statement from the Erickson
proceeding was referenced in his current witness statement and included
in his book of documents, the focus of Dr. McMurtry’s evidence in this
proceeding centred on his proposed case definition as described in his
article “Toward a Case Definition of Adverse Health Effects in the
Environs of Industrial Wind Turbines: Facilitating a Clinical Diagnosis”,
which was published in the peer-reviewed journal Bulletin of Science,
Technology and Society, 2011 31 : 316.
[321] For purposes of this decision, this is referenced as the Case Definition.
[322] Since giving his evidence in APPEC, Dr. McMurtry testified that he has prepared
an update to the Case Definition. A copy of the Case Definition and this update are
attached to this Decision as Appendix B. Dr. McMurtry testified that the updated Case
Definition is intended to be used by primary health care physicians to diagnose whether
a patient who lives in the environs of industrial wind turbines is experiencing adverse
health effects. His update confirms that the deployment of the diagnostic criteria in the
Case Definition “requires use by [a] health care practitioner licensed to take a history
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Bovaird v. Director,
Ministry of the Environment
and make diagnoses.” His update also states that a ‘probable’ diagnosis “indicates that
AHE/IWT [adverse health effects in the environs of industrial wind turbines] more likely
than not are the cause of the complaints. AHE/IWT is the working diagnosis. Other
diagnostic possibilities continue to exist and should be considered in the differential
diagnoses.”
[323] As noted in the Case Definition there are three categories of diagnosis: possible,
probable, and confirmed. The update indicates the following:
“possible” means that a diagnosis of such adverse effects is to be considered
“probable” indicates that it is more likely than not that living in the environs of
“confirmed” indicates other diagnosis is very unlikely, i.e., less than one
a potential diagnosis;
industrial wind turbines is the cause of the complaints. This becomes the
physician’s working diagnosis. Other diagnostic possibilities continue to exist
and should be considered in the differential diagnosis;
chance in 20.
[324] Regarding a “confirmed” diagnosis, Dr. McMurtry explained that other diagnoses
should be ruled out. As stated in the Case Definition, this is the responsibility of the
licenced clinician.
[325] In his witness statement, Dr. McMurtry lists several reasons supporting his
proposed diagnosis including:
He notes that there are reports of adverse health effects in all countries where
industrial wind turbines are erected;
There is convergent validity of reports of adverse health effects in different
cultures and languages;
Infrasound and low frequency noise is a plausible mechanism for adverse
health effects;
There is no medical evidence to support set back distances intended to
protect individuals from experiencing adverse health effects;
There is a common finding that persons experiencing adverse health effects
prefer being away from their homes for restoration and in some cases even
abandon their home, and this is unique to persons in the environs of industrial
wind turbines who experience adverse health effects;
A dose-response relationship has been confirmed in many studies;
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Bovaird v. Director,
Ministry of the Environment
Dr. Leventhall, an industry expert, acknowledges that “always a few”
experience adverse health effects, and a “non-trivial percentage” will be
highly annoyed; and
The working diagnosis accords with principles of evidence-based medicine,
which is defined to be the conscientious, explicit and judicious use of current
best evidence in making decisions about the care of individual patients. The
practice of evidence based medicine means integrating individual clinical
expertise with the best available external clinical evidence from systematic
research.
[326] Respecting the post-turbine witnesses, Dr. McMurtry testified that he reviewed
their witness information forms and the medical records that they have provided. Dr.
McMurtry reported information that he obtained from these witnesses by conducting a
telephone interview with each of them. At the hearing, each of these witnesses testified
before Dr. McMurtry did. However, none of the witnesses disclosed that they had
participated in an interview with Dr. McMurtry. Consequently, the Tribunal did not admit
Dr. McMurtry’s evidence obtained from these interviews. In making this finding, the
Tribunal noted that the best evidence regarding their medical condition is the testimony
they each provided in this hearing. However, the Tribunal further notes that there was
no substantive inconsistency between their oral evidence and what was reported by Dr.
McMurtry.
[327] Dr. McMurtry applies the diagnostic criteria as set out in the Case Definition, and
for each witness states his opinion that they satisfy the ‘probable’ criterion for
experiencing adverse health effects from living in the environs of industrial wind
turbines.
[328] Dr. McMurtry also provided his analysis of the Bradford Hill criteria, disagreeing
with the conclusion of the respondent health experts. His evidence in this regard is
summarized at para. 82 of the Appellants’ submissions:
82. In his reply affidavit, Dr. McMurtry criticized Dr. Moore’s comments
regarding criteria for causation, by stating in is affidavit, that these have
already been met in relation to IWTs through the Bradford Hill, Criteria
for Causation.
(a) Strength: A small association does not mean that there is not a
(b) Consistency: Consistent findings observed by different persons
causal effect, though the larger the association, the more likely
that it is causal.
in different places with different samples strengthens the
likelihood of an effect.
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Bovaird v. Director,
Ministry of the Environment
(c) Specificity: Causation is likely if a very specific population at a
specific site and disease with no other likely explanation. The
more specific an association between a factor and an effect is,
the bigger the probability of a causal relationship.
(d) Temporality: The effect has to occur after the cause (and if there
is an expected delay between the cause and expected effect,
then the effect must occur after that delay.
(e) Biological gradient: Greater exposure should generally lead to
greater incidence of the effect. However, in some cases, the
mere presence of the factor can trigger the effect. In other cases,
an inverse proportion is observed: greater exposure leads to
lower incidence.
(f) Plausibility: A plausible mechanism between cause and effect is
helpful (but Hill noted that knowledge of the mechanism is limited
by current knowledge).
(g) Coherence: Coherence between epidemiologist and laboratory
findings increases the likelihood of an effect.
(h) Experiment: “Occasionally it is possible to appeal to
experimental evidence”.
(i) Analogy: The effect of similar factors may be considered.
Unperceived stimuli of smell, touch, vision and taste are able to
harm human health so there is no reason to believe that noise
below the hearing threshold is harmless.
Mr. Howe
[329] Mr. Howe co-authored a report for the MOE, dated December 2010, entitled Low
Frequency Noise and Infrasound Associated with Wind Turbine Generation Systems, A
Literature Review (the “MOE Review Report”).
[330] Mr. Howe testified that this report is a review of existing research papers on the
topic, rather than being primary research. He confirmed that the statistics regarding the
percentage of people very annoyed, and the decibel level of noise impacts, come from
published studies.
[331] Mr. Howe testified that 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. He testified that, if
you do not like a source, you are more likely to find the sound from it to be annoying. In
this regard, Mr. Howe agreed with the statement from the MOE Review Report at page
19, heading 3.10:
The wide availability of popular media items describing fears of direct
health effects from wind turbine noise and infrasonic noise specifically
may result in fears of the wind turbines in some people leading to
increased annoyance with the sound. This may be exacerbated by
certain moderating factors (Leventhall, 2004; Job, 1999; Guski, 1999;
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Bovaird v. Director,
Ministry of the Environment
Fields, 1993), including “anxiety about the source” and “suspicion of
those who control the sources”.
[332] Regarding the MOE Review Report, Mr. Howe’s witness statement, at paras. 9
and 21, states:
9. The report concluded that, while the overall magnitude of the
sound pressure levels, including infrasound, produced by wind turbine
generators at the setback distances required in Ontario does not
represent a direct health risk, annoyance will likely be experienced by
some persons.
21. Based on research completed by HGC Engineering for the
Ontario Ministry of the Environment, at the sound levels experienced at
the receptor distances noted for this project, the audible sound from wind
turbines is expected to result in a small percentage of persons being very
annoyed. The largest and most comprehensive studies completed to
date suggest that at noise impacts between 35 and 40 dBA, 6% will be
very annoyed, while at noise impacts between 40 and 45 dBA, up to 20%
of persons will be very annoyed. As with sounds from other sources,
research has shown that annoyance associated with sound from wind
turbines can be expected to contribute to stress-related health impacts in
some persons. These finding have been supported by papers and
general consensus of the Wind Turbine Noise 2011 conference held in
Rome, http://www.windturbinenoise2011 .org/ and a comprehensive
review by the Oregon Health Authority, 2013. The relationship between
the sound level and the prevalence of annoyance is complicated, and is
often influenced by other non-acoustic factors. Given the number of
receptors expected to be impacted at a sound level between 35 and 40
dBA, it would be statistically invalid to predict the exact number of
persons expected to be very annoyed, other than noting that those
predisposed against the project are more likely to be annoyed.
Respondents’ Evidence
Dr. McCunney
[333] The evidence of Dr. McCunney is summarized in the submissions of the
Approval Holder and the Director.
[334] On the issue of annoyance, the Approval Holder’s submission states:
With respect to annoyance, Dr. McCunney testified that annoyance is a
subjective phenomenon that is usually self-reported. It is not considered
a health effect. Dr. McCunney noted that he could not find “annoyance”
in any medical dictionary and that annoyance is not part of the new
International Classification of Diseases (10th edition). He stated that
claims that “annoyance” is an adverse health effect reflect individual
opinions rather than the consensus of the international medical
community. He specifically noted that annoyance associated with wind
turbines has been found to be primarily related to attitudes about the
visual impact of wind turbines and financial interests, as reflected in the
various studies referred to by the appellants’ noise expert, Brian Howe.
Dr. McCunney further explained that, given its subjective nature,
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Bovaird v. Director,
Ministry of the Environment
annoyance in a given population is difficult to predict, and that even the
largest studies of annoyance associated with wind farms (the Pedersen
studies based on self-reports) are considered limited data sets by
epidemiological standards, such that any attempt to apply those data
sets to another population would be fraught with uncertainty and
potential errors.
and the Director’s submission states:
Dr. McCunney categorically disagreed with the proposition that some
people will always exhibit effects, and provided examples where this was
not the case. He referred to the recent study by Dr. Simon Chapman
which showed large spatio-temporal variations in complaints about noise
and health from wind farms. Chapman found that 33 of 51 wind farms in
Australia had never been subject to noise or health complaints. Dr.
McCunney preferred the evidence in this study to the less current opinion
from Dr. Leventhall, and questioned whether Dr. Leventhall would have
the same view as he previously expressed, given this new information.
[335] Respecting Dr. McMurtry’s updated Case Definition, the Approval Holder’s
submission states:
108. Dr. McCunney was also critical of Dr. McMurtry’s proposed case
definition, concluding that it was devoid of scientific validity and of no
value in assessing causal links between health effects and wind turbines.
His specific criticisms included:
(a) the flawed process by which it was developed and proposed for
use (proposed by one individual, through a process that did not
follow international standards for the development of consensus
statements);
(b) its lack of validation by any medical association (Dr. McMurtry
himself admits that his proposed case definition has not been
validated);
(c) its lack of any scientific support for the exposure metric (i.e.,
living within 5 km of a wind turbine);
(d) its lack of precision, which results in application difficulties (i.e.
3264 options for meeting second and third order criteria); and
(e) its lack of any peer-reviewed citations to support its conclusions.
[336] Respecting the effects of noise exposure, the Approval Holder’s submission
states:
102. …Dr. McCunney conducted a comprehensive literature search to
review scientific literature, government reports and other articles related
to potential health implications of living in the vicinity of wind turbines that
have been published since the expert panel report was released in 2009.
He testified that he has not identified any scientific support for a direct
causal link between chronic noise exposure of less than 40 dBA and
adverse health effects. Dr. McCunney highlighted field studies in the
vicinity of operating wind farms in many different countries. These
studies have demonstrated that infrasound and low-frequency sound
from wind turbines are not at levels that are harmful to human health. He
also highlighted human experimental studies conducted by NASA that
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Bovaird v. Director,
Ministry of the Environment
found no adverse health effects of infrasound levels several orders of
magnitude higher than those measured in the vicinity of wind farms.
[337] Respecting the Appellants’ post-turbine witness evidence, the Approval Holder’s
submission states:
103. With respect to the post-turbine witnesses, Dr. McCunney
concluded that their evidence does not establish a causal link between
health effects and living in the vicinity of wind turbines. He explained that
to assess potential causal links between exposure to a hazard and an
illness, the first step is to confirm the diagnosis of the illness or disease.
Here, however, the information in respect of the post-turbine witnesses is
too limited, according to Dr. McCunney, to make a definitive diagnosis of
their symptoms based on contemporary medical standards. Dr.
McCunney noted, in particular, the absence of appropriate diagnostic
tests and results (such as sleep studies) in the medical records that had
been provided by the post-turbine witnesses. He also noted that there
were a number of inconsistencies between the self-reports of the
witnesses and their medical records, such as pre-existing conditions and
side-effects of medications that might explain the symptoms experienced
by the witnesses after the installation of wind turbines.
104. Critical exposure information – the level of noise experienced by
the post-turbine witnesses – was also absent. As Dr. McCunney
explained, an exposure assessment is critical to any evaluation of
causality in order to assess how the specific exposure compares with the
dose-response results described in applicable scientific literature.
105. Dr. McCunney further noted that many of the symptoms reported
by the post-turbine witnesses lack biological plausibility, based on his
experience in evaluating health effects from high noise level exposures
in industrial environments. Dr. McCunney explained that “biological
implausibility” is one of the fundamental principles of occupational and
environmental medicine: as he put it, “if there is no link at high levels of
exposure to a hazard … it is virtually implausible that low levels would
cause an effect that is not noted at high levels.” Dr. McCunney further
noted that in his 30 years of experience in occupational and
environmental medicine, he has never encountered so many symptoms
attributable to a single hazard.
[338] Dr. McCunney’s opinion respecting the pre-turbine witnesses was that there was
no reason to conclude that they will be affected by the operation of the Project, having
regard to the medical information they provided and the scientific literature.
Dr. Baines
[339] At para. 14 of Dr. Baines’ witness statement, she states:
14. With respect to demonstrating causation, six criteria are
applicable to wind turbines:
a. The first is an appropriate temporal relationship between cause
and effect, namely that the cause precedes the effect. It is claimed
the symptoms begin after exposure to wind turbines. However
when data are gathered in a biased fashion (sampling bias)
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Bovaird v. Director,
Ministry of the Environment
together with the potential for suggestibility bias (filling out a
questionnaire labelled adverse health effects of IWTs, reading
media reports of illness due to IWTs, concern about loss of
property values) may all lead to heightened awareness of
symptoms previously ignored.
b. The second criterion is a strong association between the cause
and the effect. Unfortunately, the adverse effects reported are also
observed in the absence of wind turbines and only a minority of
those exposed experience symptoms.
c. The third criterion is specificity. Does the cause produce an effect
not seen in other situations? Clearly this criterion is not fulfilled.
d. The fourth criterion is constancy, the effect reliably follows the
cause, and we know that not all people exposed to IWTs
experience the adverse effects claimed. As well, people not
exposed experience the same symptoms reported by plaintiffs.
e. A fifth criterion is a dose-response effect meaning that the more
intense the exposure, the more severe the effect. This has never
been persuasively demonstrated in the anti-turbine literature.
f. The sixth criterion is biological plausibility. It is generally accepted
that a wide range of symptoms involving many body systems will
not be due to a single cause or, in the case of IWTs, arise from the
visual and sound consequences of their presence. With the wide
range of reported symptoms, virtually all of which are experienced
widely in the general population, the case for causality due to IWTs
is weak.
Findings
Dr. McMurtry’s qualification as an expert witness
[340] The Director and the Approval Holder opposed the Appellants’ request that Dr.
McMurtry be qualified to give opinion evidence as a physician and surgeon with
expertise in the delivery of health care, health care policy and health policy.
Dr. McMurtry testified in APPEC, where a request for the same qualification was also
opposed. In APPEC, at paras. 72 and 73, the Tribunal provided a summary of the
submissions made in respect of this request for qualification, and the Tribunal’s reasons
for granting the request:
72. The Approval Holder and the Director objected to the
qualification of Dr. McMurtry and to the admissibility of his evidence.
While the Approval Holder and Director took no issue with Dr. McMurtry’s
expertise as requested, they argued that it was irrelevant to the issue to
be determined by the Tribunal. Specifically, he is an orthopedic surgeon,
not an epidemiologist or an expert in any of the illnesses allegedly
caused by exposure to wind turbines. Secondly, they argued the
evidence should be inadmissible as Dr. McMurtry could not be neutral
and unbiased as required of an expert witness under the Tribunal’s
Practice Direction, due to involvement in wind turbine issues as an
advocate. Dr. McMurtry is a former Director of APPEC.
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Bovaird v. Director,
Ministry of the Environment
73. The Tribunal found that, despite Dr. McMurtry’s involvement in
wind turbine issues in general and with APPEC in particular, he could be
qualified as an expert. The reasons include that health impacts of wind
turbines is an emerging area of science with few experts at the ready to
testify; that Dr. McMurtry has engaged with more individuals alleging
these health effects than anyone in Canada; that Dr. McMurtry testified
as an expert in the Erickson hearing; and due to his demonstrated
personal integrity as an advocate of public health. The Tribunal found
that issues of bias would go to weight, rather than admissibility of the
evidence. With respect to the area of expertise, the Tribunal found Dr.
McMurtry to be an expert in the area requested, and that it was not able
to make a determination on relevance at the qualifications stage in the
proceeding. …
[341] The Tribunal finds that these paragraphs adequately describe the submissions
made and the Tribunal’s reasons for granting the requested qualification in this case.
Whether Dr. McMurtry’s proposed reply evidence should be accepted
[342] As explained more fully in the Tribunal’s order of November 27, 2013, it was not
possible to hear viva voce evidence from the Appellants’ proposed reply witnesses
during the scheduled days for the hearing. The Tribunal therefore outlined a schedule
whereby the Appellants’ reply evidence would be filed by way of affidavits, along with
the transcripts of the cross-examinations of those witnesses. As the Approval Holder
and the Director submitted that the evidence was not proper reply, the Tribunal directed
the parties to address this issue in their final written submissions. All parties did so.
[343] The Director and Approval Holder argue that Dr. McMurtry’s reply affidavit is
improper reply and should not be accepted by the Tribunal. The Director discussed
bringing a motion to exclude the proposed reply evidence, but the Tribunal ruled orally
on October 7, 2013 that it would receive the evidence via affidavit, and consider
submissions on admissibility of the proposed reply evidence along with the final
submissions of the parties.
[344] The Director and Approval Holder note that Dr. McMurtry’s reply affidavit includes
reference to studies by Pedersen and a report by the World Health Organization
(“WHO”) (Europe), Burden of Disease from Environmental Noise: Quantification of
Healthy Life Years Lost in Europe, 2011 (the “WHO (Europe) 2011 Report”). They
argue that, if Dr. McMurtry was relying on them, he should have included them in his
original witness statements and during oral testimony before the Tribunal. They argue
that the reply affidavit does not reply to constitutional evidence adduced by the Director.
[345] The Appellants argue that Dr. McMurtry has been qualified as an expert in health
care policy and his reply affidavit is within his expertise, and responds to the Director’s
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Bovaird v. Director,
Ministry of the Environment
evidence asserting that the purpose of the renewable energy approval provisions is
constitutional. It is thus Charter-related reply, they submit, and is proper.
[346] The Tribunal finds that paras. 6, 7 and 8 of Dr. McMurtry’s reply affidavit discuss
Ontario’s energy mix and its electricity generating capacity. These are clearly not within
Dr. McMurtry’s area of expertise and the Tribunal does not admit them as evidence.
[347] Paragraphs 9 to 13 of Dr. McMurtry’s reply affidavit respond to Dr. Moore’s
comments regarding criteria for causation, and evidence entered during the Approval
Holder’s case regarding annoyance. An excerpt from the WHO (Europe) 2011 Report
referred to in para. 13, for example, was entered into evidence during Dr. McCunney’s
testimony. For this reason, the Tribunal allows those paragraphs into evidence, along
with the documents they refer to, as reply evidence on the health case.
Dr. McMurtry’s opinions respecting the post-turbine witnesses
[348] As noted earlier in the description of his evidence, Dr. McMurtry states his
opinion that each of the post-turbine witnesses satisfies the ‘probable’ criteria for
experiencing adverse health effects from living in the environs of industrial wind
turbines. The Tribunal notes that he did not expressly state that this was his diagnosis
respecting each of these individuals. However, as he noted in his update to the Case
Definition, a ‘probable’ diagnosis “indicates that AHE/IWT [adverse health effects in the
environs of industrial wind turbines] more likely than not are the cause of the
complaints. AHE/IWT is the working diagnosis. Other diagnostic possibilities continue
to exist and should be considered in the differential diagnoses.”
[349] The Tribunal notes the purpose of opinion evidence is to assist the Tribunal in
making its decision respecting the statutory test under the EPA, which is a legal
determination. Dr. McMurtry is clearly asserting that it is more likely than not that each
of the post-turbine witnesses has suffered adverse health effects caused by industrial
wind turbines. Consequently, the nature of this opinion evidence is to be assessed in
this legal context, and not the context of how a health practitioner may differentiate
between commenting on whether a post-turbine witness satisfies the criteria of the Case
Definition and making a diagnosis. In the legal context, the Tribunal finds that any such
differentiation is artificial.
[350] The Tribunal also notes that Dr. McMurtry’s updated Case Definition sets out
diagnostic criteria intended for use by primary health care physicians to diagnose
whether a patient who lives in the environs of industrial wind turbines is experiencing
adverse health effects. As such, this Case Definition is based on the presumption that
adverse health effects are caused by being in proximity to industrial wind turbines.
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Bovaird v. Director,
Ministry of the Environment
Therefore, the Case Definition, in and of itself, does not establish causation. As stated
in Dr. Moore’s witness statement at para. 142, “Case studies and the associated
methodology is a particular way of defining cases, and not a way of analyzing cases or
a way of modeling causal relations.”
[351] The basis on which Dr. McMurtry concludes that industrial wind turbines cause
adverse health effects is summarized in the Introduction to the Case Definition, which
states:
These [adverse] health effects appear to correlate with proximity to IWTs
[industrial wind turbines], the frequency of the noise, the time of
exposure, and individual response. The pattern of individual’s
complaints demonstrates a striking similarity internationally in media
reports and in physician-generated case series. [emphasis added]
[352] The Tribunal notes that evidence of the post-turbine witnesses, and Ms. Laurie’s
evidence respecting her survey of 130 Australians, provide data in support of this
statement. However, while correlation can be indicative of causation, it is not
synonymous with causation, because, as noted in Dr. Moore’s evidence, associations
between events can occur by chance. The evidence adduced by the respondents
respecting causality assessment and the accepted use of the Bradford Hill criteria for
assessing causal associations indicate that more than correlation is required in order to
establish causation.
[353] The Tribunal recognizes that the reasons advanced by Dr. McMurtry also include
his observation respecting the incidence of reports of adverse health effects in all
countries where industrial wind turbines are erected, and that the reports of adverse
health effects are similar despite differing culture and languages (described as
convergent validity). While these considerations are not to be discounted, the Tribunal
finds that it has received insufficient evidence to establish that a causal association can
be made, based on this information alone. While it is Dr. McMurtry’s opinion that such a
conclusion is established, the respondents’ health experts clearly express their opinion
that all of the Bradford Hill criteria must be satisfied, and, in this case, that these criteria
have not been met.
[354] As is discussed in greater detail below, the evidence here is closer to the
hypothesis generating phase of scientific research than it is to the point where
conclusions can be made on causation. Consequently, the Tribunal finds that the Case
Definition does not establish causation. In reaching this conclusion, the Tribunal also
relies on its analysis and findings, described below, respecting Dr. Leventhall, and the
evidence respecting annoyance.
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Bovaird v. Director,
Ministry of the Environment
[355] In light of the above finding, it follows that any diagnosis based on the
assumption that adverse health effects are caused by living in the environs of industrial
wind turbines, also does not establish causation.
[356] As the Tribunal has found that the Case Definition does not establish causation,
the Tribunal finds that it is unnecessary to address the respondents’ submissions
challenging other aspects of the validity of the Case Definition.
Appellants’ Submission respecting evidence of Dr. Leventhall in Erickson
[357] The Appellants assert that there is a causal chain between annoyance, stress,
sleep disturbance, and adverse health effects. In their submissions in support of this
position, they maintain that the evidence of Dr. Leventhall, as reported in Erickson, that
annoyance is a psychological effect, predominantly somatoform disorders, which occur
in small numbers of people. The Appellants further maintain that: (i) he stated that the
effects of extreme annoyance include symptoms such as sleep disturbance, headache,
tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability,
problems with concentration and memory, panic episodes; and (ii) he acknowledged
that sleep disturbance is an adverse health effect.
[358] The Appellants state, that, in APPEC, the Tribunal found that if the approval
holder disagreed with how Dr. Leventhall’s evidence was interpreted in Erickson, or
wished to have him give different or updated evidence, it had the opportunity to do so.
The Appellants assert that the Tribunal, therefore, inferred that Dr. Leventhall’s
evidence from Erickson was not contested. The Appellants point out that the Approval
Holder could have called Dr. Leventhall to give evidence in this proceeding and has not
done so. Therefore, the Appellants submit that the Tribunal should draw the same
inference in these proceedings as they assert was drawn in APPEC.
[359] The Tribunal notes that the reference quoted from Erickson is with respect to the
evidence of Dr. Leventhall, not any finding made with respect to this evidence.
Nowhere in Erickson did the Tribunal make a specific finding in respect of this evidence.
At paras. 832 and 836, the Tribunal in Erickson stated:
832. Given the current level of science, the Tribunal finds that it is not
necessary to make major findings regarding the weight that should be
attached to each witness’ testimony.
836. In many cases, the evidence (as opposed to the conclusions)
was simply different, but not divergent. To use an example, the
Appellants put forward a non peer-reviewed study that showed an
association between distance from turbines and reports of effects. The
Director and Suncor did not counter with a similar study that did not find
an association (a point that was generally made by Dr. Shepherd).
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Bovaird v. Director,
Ministry of the Environment
Rather, they provided expert evidence on some of the apparent
weaknesses in the study and conclusions on why definitive causal
correlations could not be found. They also provided evidence about what
the existing peer-reviewed articles have studied (for example, perceived
impacts, such as “annoyance”, “high annoyance”, etc.) and contrasted
them with what the legal test asks for. This type of evidence added to the
evidentiary picture presented to the Tribunal. In very few instances did
the scientific evidence run in completely opposite directions. Indeed, the
Tribunal heard evidence from Dr. Mundt that many of the applicable
peer-reviewed articles are about the perception of noise from wind
turbines and not necessarily health effects. This, in part, led to the
significant debates about the applicability of words like “annoyance” in
the perception of noise studies to the test used in this proceeding, which
focuses on health. Obviously, the Tribunal would have preferred clear
evidence from peer-reviewed studies that actually measured health
effects and their relation to wind turbines, but research in that area is still
quite limited. [emphasis added]
[360] Secondly, in APPEC, the Tribunal did not make a finding accepting Dr.
Leventhall’s evidence. Instead, the Tribunal in APPEC addressed an issue regarding
the interpretation of Dr. Leventhall’s evidence in Erickson. At para. 49, the Tribunal
stated:
Dr. Leventhall testified for the approval holder in Erickson, and although
originally on the witness list for the Approval Holder in this proceeding,
he was never called. If the Approval Holder disagreed with how Dr.
Leventhall’s evidence was interpreted in the earlier decision, or wished to
have him give different or updated evidence, it clearly had the
opportunity to do so. The Tribunal therefore infers that Dr. Leventhall’s
evidence, as reflected in Erickson, was not contested.
[361] In any event, Dr. Leventhall did not testify in this proceeding. Consequently, his
work in this area is relevant only to the extent that it has been referenced by the experts
who have testified in this proceeding who rely on his work in support of the opinions
they have expressed.
Annoyance
[362] The Tribunal now turns to the Appellants’ submissions regarding annoyance.
They rely on Mr. Howe’s evidence as described above. They submit that, there is,
therefore, undisputed evidence before this Tribunal that, at sound levels at or below
those approved for the operation of this Project: (i) 6 to 20% of people will be very
annoyed, and (ii) such persons will experience adverse health effects, as there is a
causal chain between annoyance, stress, sleep disturbance, and adverse health effects.
[363] For the following reasons, the Tribunal does not accept the Appellants’ assertion
that this evidence is undisputed, or that it has been conclusively established that such
persons will experience adverse health effects.
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Bovaird v. Director,
Ministry of the Environment
[364] The Tribunal first notes that it accepts, as stated in Erickson at para. 630, that
“sometimes a causal link can be established, even if the specific mechanism
responsible for that link has not been identified with certainty within a suite of plausible
pathways.” However, to establish causation, there is still a requirement to demonstrate
that annoyance will result in the adverse health effects listed by the Appellants, even if
the exact mechanism is not identified.
[365] Supporting the Appellants’ position is the evidence of Mr. Howe, who is a
professional engineer specializing in acoustics. 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. Instead, in his witness
statement, he states that research has shown that annoyance associated with sound
from wind turbines can be expected to contribute to stress-related health impacts in
some persons. Mr. Howe included as part of his evidence, a report he authored for the
MOE, the MOE Review Report noted above, which indicates that the referenced
research is primarily the published work of Dr. Leventhall. Mr. Howe also refers to a
2013 review conducted by the Oregon Health Authority, entitled Strategic Health Impact
Assessment on Wind Energy Development in Oregon (the “Oregon Study”), and a
recent study conducted by the University of Scotland. Dr. McMurtry’s evidence on
these issues refers to Mr. Howe’s MOE Review Report.
[366] The Director and Approval Holder do not agree with the Appellants’ position.
They rely on the evidence of the respondents’ health experts, and in particular, the
evidence of Dr. McCunney described above, wherein he disputes that some people will
always exhibit effects, and refers to a study which indicates that some wind projects had
never been subject to noise or health complaints.
[367] Based on the evidence adduced in this proceeding, the Tribunal finds that the
proposition that annoyance will occur as a result of exposure to noise levels between 35
to 40 dBA has not been clearly established, as the expert opinion on this issue is
divided. In this regard, for example, Mr. Howe relies on the work of Dr. Leventhall ,as
well as a 2009 study by a group of researchers (Pedersen et al.) that states that close to
20% of people were “very annoyed” by wind turbine sound levels. Dr. McCunney refers
to a more recent report by Dr. Chapman which showed large spatio-temporal variations
in complaints about noise and health from wind farms. Dr. Chapman found that 33 of
51 wind farms in Australia had never been subject to noise or health complaints. While
the information respecting these studies has been provided to the Tribunal, no evidence
has been provided to indicate that one study should be relied on over another. For
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Bovaird v. Director,
Ministry of the Environment
example, when challenged in cross-examination as to whether Dr. Leventhall would
accept the Chapman study, Dr. McCunney testified that Dr. Leventhall would have to
testify to indicate how this more recent study would affect his views.
[368] The divergence of opinion in this area is also documented by the WHO (Europe)
2011 Report referenced by Dr. McMurtry. This report includes a chapter on
“Environmental Noise and Annoyance”, which highlights the debate and uncertainty
respecting noise annoyance. At page 91 the report states:
Noise annoyance is widely accepted as an end-point of environmental noise that
can be taken as a basis for evaluating the impact of noise on the exposed
population. As a consequence, EU Directive 2002/49/EC recommends
evaluating environmental noise exposures on the basis of estimated noise
annoyance.
As discussed in Chapter 1, WHO defines health as “a state of complete
physical, mental and social well-being and not merely the absence of disease or
infirmity”. This implies that noise-induced annoyance may be considered an
adverse effect on health. People annoyed by noise may experience a variety of
negative responses, such as anger, disappointment, dissatisfaction, withdrawal,
helplessness, depression, anxiety, distraction, agitation or exhaustion.
Furthermore, stress-related psycho-social symptoms such as tiredness,
stomach discomfort and stress have been found to be associated with noise
exposure as well as noise annoyance. Some public health experts feel that
severe forms of noise-related annoyance should considered a legitimate
environmental issue affecting the well-being and quality of life of the population
exposed to environmental noise. The most important issue in the present
context is to what extent health (according to the broad definition given above) is
reduced by noise and whether a DW that expresses this reduction, when
combined with the prevalence of annoyance, leads to a significant burden of
“disease”. The other possibility would be that noise annoyance does not
significantly contribute to disability and, hence, should not be taken into account
when considering the noise-induced burden of disease. (emphasis added)
[369] At page 93, this report also confirms that data below 45 dBA was not considered
“because the risk of unreliable noise data is high at very low levels …” This report
further notes, at page 97, that:
Uncertainty with respect to the exposure–response relationship
One cause of doubt regarding the predictability of noise annoyance is
that the studies show a large variation in individual annoyance reactions
to the same noise exposure level. The other cause of doubt is that
attempts to integrate the results from different studies show that there is
a large variation in the relationships found in different studies. The large
individual variation and the large study variation suggest that it is difficult
to predict annoyance with sufficient accuracy. Indeed, the annoyance
response of a particular individual or group of individuals can be
predicted on the basis of the exposure only with a large amount of
uncertainty. …
[370] The Tribunal notes that it is also unclear whether adverse health effects will
occur only at elevated levels of annoyance. In this regard, there is nothing in the
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Bovaird v. Director,
Ministry of the Environment
evidence to indicate how levels of annoyance would be measured. In addition, Mr.
Howe, in his witness statement, notes that “it would be statistically invalid to predict the
exact number of persons expected to be very annoyed, other than noting that those
predisposed against the project are more likely to be annoyed.” Furthermore, if there is
any consensus to be found among the experts who testified, it is that annoyance is not
likely to result solely from exposure to noise, but includes other factors affecting an
individual’s attitude toward the project.
[371] If the intent of this evidence regarding annoyance is to support a generic
approach to establish causation, i.e., where causation is not in relation to specific
identified individuals, then it is clear that the epidemiological framework set out in the
Bradford Hill criteria is relevant. Dr. Baines was qualified to give opinion evidence as an
epidemiologist. As noted above, in para. 14 of her witness statement, she reviews
these criteria and concludes that, in respect of wind turbines, none of these criteria have
been fulfilled. The opinion evidence respecting the application of the Bradford Hill
criteria is conflicting. Dr. McMurtry’s analysis of these criteria is clearly at odds with the
conclusions of Dr. McCunney, Dr. Moore, and Dr. Baines. While the Tribunal does not
conclusively reject Dr. McMurtry’s evidence, the Tribunal finds that it is not sufficiently
compelling to lead the Tribunal to conclude that the opinions of Dr. McCunney, Dr.
Moore, and Dr. Baines should be rejected. Consequently, in weighing this evidence,
the most that can be said is that the preponderance of this opinion evidence favours the
position of the Director and the Approval Holder. Based on these conclusions, the
Tribunal finds that the evidence is inconclusive respecting whether industrial wind
turbines would cause annoyance. Assuming that the evidence established that
annoyance will be caused, the Tribunal also finds this evidence is inconclusive
regarding the degree of annoyance which would be caused, and, in turn, whether such
annoyance will result in adverse health effects.
[372] The Appellants assert that the causal chain between annoyance, stress, sleep
disturbance, and adverse health effects, is evidenced by the adverse health effects
suffered by the post-turbine witnesses who testified in this proceeding. The Tribunal
does not accept that this has been established by the Appellants. Instead, the Tribunal
finds that, based on the evidence adduced in this proceeding, the symptoms reported
by the post-turbine witnesses may be evidence of the causal chain between annoyance,
stress, sleep disturbance and adverse health effects. In this regard, the Tribunal notes
that the Appellants did not adduce any opinion evidence by a qualified health
practitioner to confirm that the symptoms reported by the post-turbine witnesses
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Bovaird v. Director,
Ministry of the Environment
resulted from annoyance, manifested through a somatoform or other disorder or
condition.
[373] In summary, the Tribunal finds that the evidence is inconclusive on the issue of
whether wind turbine noise at 40 dBA or less, and other associated factors, such as
being predisposed against a wind turbine project, can be expected to cause annoyance
that will result in serious harm to human health for a small percentage of the population
that will be exposed to the Project under appeal. In this regard, Tribunal finds that the
Tribunal’s finding in Erickson, at para. 838, also applies here:
838. To summarize, the evidence in this Hearing on serious indirect
harm was largely exploratory. The evidence on a lack of serious indirect
harm was also limited (the evidence on a lack of serious direct harm is
much stronger, however). The Tribunal is not giving significant weight to
the latter and little to the former in reaching its conclusion. That is
because the legal test itself tilts the balance in one direction. The onus is
on one side (in this case, the Appellants). That side has provided
evidence that the Tribunal finds to be exploratory in nature, even if given
significant weight. Put another way (using the wording of Dr. Mundt), the
present situation is closer to the hypothesis generating phase of scientific
research than it is to the point where conclusions can be made on
causation (with respect to the sound levels expected at the Project’s
receptors). Or, using the approach of Dr. Shepherd, it is clear that we are
not yet at the third stage of research on a new condition where intensive
research has been completed so as to determine causation. We are at a
much earlier stage, where there have been adverse event reports and
some exploratory studies, such as the Nissenbaum Study. It is,
therefore, no surprise that the legal test, which requires proof of harm,
has not been satisfied when the applicable scientific evidence is in such
an early stage of development.
Low Frequency Noise and Infrasound (“LFNI”)
[374] Mr. Howe’s evidence briefly touched on LFNI. Both Dr. McMurtry and Dr.
McCunney addressed the issue of LFNI in greater detail in their witness statements.
The Tribunal has not found it necessary to include a synopsis of this evidence in this
decision, as they both testified in Erickson on this issue, and much of their evidence
adduced in this proceeding is as described in that decision. Regarding Dr. McMurtry’s
evidence in this proceeding, he relies on his witness statement which was filed in
Erickson in 2011. In this proceeding, Dr. McCunney’s witness statement further
addresses LFNI, providing reference to studies published after 2011. In summary, there
is a clear difference of opinion between them regarding whether LFNI generated by
wind turbines will cause harmful effects to humans.
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Bovaird v. Director,
Ministry of the Environment
[375] The Tribunal notes that the Appellants’ submissions did not address LFNI
separately from the issue respecting the health effects resulting from annoyance. The
Tribunal also notes that para. 193 of the Appellants’ submissions states:
… there remain key gaps in the information available about the
relationship between IWTs and human health:
Sleep disruption and health effects from long-term exposure to
low levels of low frequency sound and infrasound.
[376] In light of the divergent expert opinions on this issue, and the current status of
the research in this area, the Tribunal finds that the present situation still remains closer
to the hypothesis generating phase of scientific research than it is to the point where
conclusions can be made on causation. Consequently, the Tribunal finds that the
Appellants have not established that LFNI generated by wind turbines will cause serious
harm to human health.
Conclusion on Issue 2A
[377] For the above reasons, the Tribunal finds that the Appellants have not
established a causal link between wind turbines and human health effects where there
is a 550m setback and 40 dBA noise limit.
Issue 2B: Whether Engaging in This Project in Accordance with the REA Will
Cause Serious Harm to Human Health
[378] As the Tribunal has noted earlier in this decision, the Appellants seek to establish
causation by establishing that specific individuals have suffered serious harm to their
health as a result of living in proximity to wind project components, maintaining that this
evidence establishes that wind turbines will exacerbate certain types of pre-existing
medical conditions. The Appellants maintain that the pre-turbine witnesses who have
testified in this proceeding, are vulnerable people living in the vicinity of the Project who
have such pre-existing medical conditions. The Appellants assert, therefore, that their
testimony respecting their pre-existing medical conditions is highly relevant to establish
a causal link between the proposed Project and “the more likely than not probable effect
on those living near the Project”.
[379] The pre-turbine witnesses each testified that they had or have a pre-existing
medical condition. They each expressed their concern that, due to their proximity to the
proposed wind turbines in the Project, they could experience a resumption or
exacerbation of their symptoms, or suffer additional adverse health effects. They each
produced medical records that they were able to obtain regarding their past medical
history. However, none of them presented opinion evidence from a qualified health
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Bovaird v. Director,
Ministry of the Environment
practitioner to confirm that their concerns will occur. In the absence of such medical
opinion, the Appellants rely on the evidence of the post-turbine witnesses to establish
their assertion that exposure to wind turbines will exacerbate pre-existing medical
conditions.
[380] In light of the Tribunal’s findings above that the Appellants have not established a
causal link between wind turbines and human health effects, and, in particular, that
causation has not been established in respect of the post-turbine witnesses, the
Tribunal finds that the Appellants have not established that any of the pre-turbine
witnesses will suffer serious harm to their health as a result of the Approval Holder
engaging in the Project in accordance with the REA. As such, the Tribunal finds it is
unnecessary to engage in a detailed review of the medical evidence respecting their
pre-existing conditions. However, the Tribunal will address the evidence of one pre-
turbine witness, as her evidence includes an assertion of direct causation, namely, that
shadow flicker will cause her to experience epileptic seizures. For ease of reference,
the Tribunal will refer to this pre-turbine witness as “PTW”.
Evidence of Witness PTW
[381] PTW owns a 22 acre property in the Project area, and plans to retire in
December 2013 and use this rural property as her primary residence. She believes the
Project will cause serious harm to her health due to two health conditions: high blood
pressure and epilepsy. She has been taking blood pressure medication for many years,
having been hospitalized in the past due to high blood pressure. She testified that she
monitors her blood pressure every day, and works hard to keep it at a reasonable level
by, among other things, a daily fitness regime.
[382] She testified that she has suffered from epileptic seizures from the age of two.
PTW testified that she can recognize the onset of an episode with approximately two
hours’ warning, which has allowed her to live a fairly normal life. She states that each
episode of an epileptic seizure is extremely physically taxing, and she fears ongoing
damage to her health. She described episodes she has experienced, which she states
have had a significant impact on her. She cites, for example, that a single seizure will
leave her bedridden for days and take several weeks for a full recovery. Multiple
seizures will require an even longer recovery process.
[383] PTW has become attuned to triggers throughout her life, and finds that nausea is
a trigger, as well as illness and fatigue. She states that she attempts to minimize the
likelihood of epileptic seizures through lifestyle, including a regular exercise regime and
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Bovaird v. Director,
Ministry of the Environment
sufficient sleep. When she feels a seizure coming on, it is very important to find a quiet
place so she can “push it away”.
[384] PTW makes use of her property for outdoor recreation, gardening, and tapping
maple trees in the early spring. She is concerned that the wind turbine project may
cause her a loss of sleep, headaches and nausea, all of which increase the likelihood of
suffering an epileptic seizure. In addition, she notes the shadow impacts will occur
during seasons when she is using the outdoor space, including tapping the maple trees
in early spring and gardening in the fall. She feels she cannot live on the property and
put herself at risk of seizures, should the Project proceed.
[385] In cross-examination, PTW agreed that flashing lights have never triggered a
seizure in the past, but she is not willing to test it. Her main concern is nausea
associated with moving shadows.
[386] PTW filed a review of the literature on health impacts of wind turbines, in a paper
prepared by Knopper and Ollson (2011). She notes that the authors state “in Ontario it
has been common practice to attempt to ensure no more than 30 hours of shadow
flicker per annum at any one residence” (page 6). She also notes that Germany has
regulations related to shadow flicker, and stipulates a maximum of 30 hours per year for
worst case scenario, and eight hours per year (30 minutes on any one day) actual
amounts of shadow flicker. She states that the United Kingdom (“UK”) takes the
approach of a minimum setback (9 or 10 times the rotor diameter of the blade, and or
10 times the tower height to the hub) to reduce shadow flicker. According to her
calculations, the UK regulations would result in Turbines T1 and T2 of the Project being
set back 850 m to 1,030 m from her home, were they to apply in Ontario.
[387] Regarding shadow flicker, Steve Hilditch gave opinion evidence regarding the
time of the year that shadow flicker from the two turbines would affect PTW’s property.
[388] In response, the Approval Holder called Shant Dakouzian to respond to Mr.
Hilditch’s evidence. Both Mr. Hilditch and Mr. Dakouzian used computer simulation
modelling as the basis for their evidence. It was not disputed by Mr. Dakouzian that
PTW’s property would be subject to shadow flicker at some times of the year, although
it is his opinion that, given the distance from the turbines, the intensity of the shadow
would be diffused. Mr. Hilditch’s estimates of the amount of time each day that PTW’s
property would be exposed to shadow flicker is higher than Mr. Dakouzian’s estimates.
The Approval Holder also called Dr. McCunney to respond to PTW’s health concerns.
His evidence is described below.
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Bovaird v. Director,
Ministry of the Environment
Findings Regarding Evidence of PTW
[389] In summary, PTW asserts that she will experience increased risk of having
epileptic seizures as a result of potential for sleep deprivation from noise, or as a result
of nausea and risk of increased blood pressure caused by wind turbine shadow flicker
from the two Project turbines to be located nearest her property. Regarding sleep
deprivation from noise, this issue has already been addressed under Issue 2A,
particularly in respect of the post-turbine witnesses.
[390] The Tribunal finds that it does not need to make specific findings respecting
these areas of disagreement between the shadow flicker experts, because (i) they both
agree that her property will be affected to some degree by shadow flicker each year;
and (ii) PTW’s evidence is that she will be at risk of experiencing a seizure if she is
exposed to any shadow flicker.
[391] The Tribunal notes that PTW has adduced some evidence that shadow flicker
affects people with photo-sensitive epilepsy. The Knopper and Ollson paper notes at
page 5, however, that “turbines are designed not to pose a risk of photo-induced
epilepsy”. They state:
Harding et al. and Smedley et al. investigated the relationship between
photo-induced seizures (i.e., photo-sensitive epilepsy) and wind turbine
blade flicker (also known as shadow flicker). This is an infrequent event,
typically modelled to occur less than 30 hours a year form wind turbine
projects we have reviewed and would be most common at dusk and
dawn, when the sun is at the horizon. Both studies suggested that flicker
from turbines that interrupt or reflect sunlight at frequencies greater than
3 Hz pose a potential risk of inducing photosensitive seizures in 1.7
people per 100,000 of the photosensitive population. For turbines with
three blades, this translates to a maximum speed of rotation of 60 rpm.
The normal practice for large wind farms is for frequencies well below
this threshold.
[392] The practice in Ontario to attempt to ensure no more than 30 hours of shadow
flicker per annum on a residence, as referenced by PTW, is directed to reducing the
“annoyance” factor, rather than any likelihood of photosensitive epileptic seizures.
[393] In response to PTW’s evidence, Dr. McCunney’s uncontradicted opinion
evidence is as follows:
7. Concerns about the potential health impact of wind turbine
operations on people who have been diagnosed with epilepsy have been
addressed in the peer reviewed scientific literature. (Smedley et al, 2010
and Harding et al, 2008) The type of epilepsy that has been suggested
as possibly at risk from wind turbine operations is known as
“photosensitive epilepsy”. Photosensitive epilepsy, which occurs in
about 1 in every 4000 people (0.025%), may be precipitated by flickering
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Bovaird v. Director,
Ministry of the Environment
sunlight. However, flicker that occurs at less than 3 cycles per second,
(180 revolutions per minute) such as occurs in wind turbine operations,
does not pose a risk of provoking photo-epileptic seizures. (Harding et al,
2008) As indicated above, there is no evidence in [PTW’s] records that
she is part of the small fraction of the population that has photosensitive
epilepsy. This conclusion is corroborated by the fact that [PTW] had an
EEG on October 24, 2008 in which photic stimulation triggered no
results.
8. In my view, the evidence does not support the view that shadow
flicker from the wind turbines will pose a risk of provoking a seizure in
[PTW] because the evidence does not indicate that [PTW] has
photosensitive epilepsy. The type of her epilepsy – at the most recent
evaluation – appears, based on the records produced, very stable in that
she has had very few seizures since her early college days, and had a
normal EEG in 2008.
9. Even if [PTW] did have photosensitive epilepsy, the shadow
flicker from the wind turbines would not pose a significant risk of
provoking a seizure. My opinion is based on a review of pertinent
scientific studies (Harding, 2008; Smedley, 2010), and the technical
Specifications for the GE turbines planned for the Dufferin wind farm
which indicate that the rotating blade frequency will not exceed 16.18
revolutions per minute (rpm), which is less than 10% of the threshold
proposed by Smedley et al as capable of provoking a photo-epileptic
seizure. (Technical Documentation Wind Turbine Generator Systems GE
1.6-100-50 Hz/ 60 Hz and General Electric 2.75 MW Turbines) The
turbine blades will not rotate at a sufficiently high frequency, i.e.> 3
cycles per second (180 revolutions per minute) to provoke a photo
epileptic seizure. (Smedley et al, 2010) In a comprehensive report
prepared for the state of Massachusetts, the expert panel came to a
similar conclusion, finding that the scientific evidence suggests that there
is no risk of seizure from shadow flicker caused by wind turbines.
(MDPH, 2012)
10. Effect of shadow flicker on blood pressure. Apart from her
concern about epilepsy, in her witness statement [PTW] also raised
concern that shadow flicker has the potential to affect her blood
pressure. There is insufficient scientific evidence to suggest that shadow
flickering will cause blood pressure to elevate and cause hypertension,
and in fact experts have concluded that shadow flicker does not cause
any adverse health effects. (MDPH, 2012) As [PTW] herself has
observed, there is only one German study that indicates that prolonged
shadow flicker (more than 30 minutes) could result in stress–related
health: effects, (Pohl et al, 1999) A single study does not constitute
enough to prove a link. That is particularly true in light of the fact that
other studies conducted among people living in the vicinity of wind
turbines have not shown causal links between wind turbines and
hypertension. (Pedersen, 2011)
[394] The Tribunal notes that Dr. McCunney’s uncontroverted evidence provides the
only qualified medical opinion respecting PTW’s condition. While the Tribunal accepts
PTW’s description of her symptoms, this evidence does not establish that: (i) she, in
fact, suffers from photo-sensitive epilepsy; (ii) the frequency of shadow flicker from wind
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Bovaird v. Director,
Ministry of the Environment
turbines will trigger photo-epileptic seizures; or that (iii) shadow flicker will cause
elevated blood pressure resulting in hypertension. For these reasons, the Tribunal finds
that the Appellants have has not established that PTW will suffer serious harm to her
health caused by the Project wind turbines that will be located near her property.
Evidence of the Other Party, Participant and Presenter
Joan Lever (Participant)
[395] Ms. Lever lives in the vicinity of the Project and expressed her view on the harm
that she believes will be caused by the Project. She has been a dedicated follower of
this proceeding, and she is a vocal opponent of locating wind project development close
to peoples’ homes.
[396] Ms. Lever supports the position of the Appellants in this proceeding. Her
evidence touched on many, if not all of the issues before the Tribunal, including the
impact of wind turbine noise, and sleep disturbance on human health. She also spoke
passionately regarding the social impact of turbine projects on communities.
[397] Ms. Lever’s evidence included a sophisticated multi-media presentation that
included excerpts from the CBC television documentary, “Wind Rush”, as well as video
footage from community demonstrations, and of a case of turbine fire. She appended
many of the scientific documents that were also referred to by Ms. Laurie.
[398] Ms. Lever expressed concern about direct health effects from low-frequency
noise and infrasound, as well as indirect effects from stress and sleep disturbance. She
asserts that the current set-back distances are entirely insufficient, citing her
understanding of set-back requirements in other jurisdictions, including Australia, New
Zealand, and a number of US states. She maintains that, in all cases, they are well
beyond Ontario’s 550 m requirement.
[399] Ms. Lever is also concerned with safety issues, such as fires and ice throw. She
supports the submissions by the Municipality of Amaranth, with respect to the danger of
installing overhead transmission lines within this municipality.
Dr. William Crysdale (Party)
[400] Dr. Crysdale is a retired physician who, when in active practice, specialized in
children’s health. He testified as a witness with respect to human health issues,
although he did not seek to be qualified to give opinion evidence. He stressed the
importance of recognizing that adverse health effects are serious.
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Bovaird v. Director,
Ministry of the Environment
[401] Dr. Crysdale expressed his concern that the regulated set-back of 550 m is
insufficient and is becoming ever more insufficient, given the increasing size of wind
turbines. He asserts that Australia and New Zealand currently have established
residential setbacks of 1.5 to 2 km.
[402] Dr. Crysdale refers to several abstracts of studies and other papers supporting
the view that low frequency noise and infrasound may impact a person’s health, and
that chronic annoyance is a risk factor for other types of diseases.
[403] Dr. Crysdale is particularly concerned with the impact of loss of sleep on children.
He asserts that independent research into the health effects of existing wind farms is
long overdue, and is alarmed that the current Health Canada study to better understand
health impacts of wind turbine noise, will not include anyone under the age of 18.
[404] Dr. Crysdale submits that “the precautionary principle is one of the central
concepts of modern environmental policy.” He discussed a number of examples where
it has been applied. After examining factors used by an Ontario medical officer of
health to apply the precautionary principle, Dr. Crysdale concludes, that “at least a
moderate precautionary principle” approach should be adopted. In reaching this
conclusion, he relies, in part, on his assertion that there is a “low societal need for the
electricity produced”.
[405] Dr. Crysdale also commented that he has proposed to the Hospital for Sick
Children, where he worked until his recent retirement, that they undertake a study
related to wind turbine noise and its impact on children’s health.
Don MacIver (Presenter)
[406] Mr. MacIver is the mayor of the Corporation of the Municipality of Amaranth (the
“Municipality”), in which the Project is located. He gave a detailed presentation of the
Municipality’s health and safety concerns regarding the Project’s proposed overhead
transmission line. As his presentation was extensive, the Tribunal will only highlight the
subject areas covered in his presentation:
high voltage transmission lines impact human health;
the multi-use of an elevated recreational trail within the Municipality will be
electro-magnetic fields caused by transmission lines may be linked to a
severely limited, as a section of the Project overhead transmission line will be
situated in close proximity to a section of this trail, causing safety concerns;
variety of human health problems, impact property values, and effect
livestock.
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Bovaird v. Director,
Ministry of the Environment
[407] Mayor MacIver testified that the Municipality wants the transmission line buried
throughout the Municipality.
Norman Wolfson (Presenter)
[408] Mr. Wolfson testified regarding both the health case, and concerns related to the
natural environment. In the portion of his presentation which addressed health issues,
he expressed significant concern about the potential for noise generated by 49 industrial
wind turbines, some of which, he stated, are to be built in close proximity to his home.
He further stated that this noise will disrupt his family’s peaceful enjoyment of their
property and the surrounding area.
[409] Mr. Wolfson asserts that the area already has an inordinately high number of
wind turbines, and maintains that the Project area is much too small to accommodate
49 industrial wind turbines.
[410] Mr. Wolfson states his understanding that the Approval Holder has not conducted
studies on possible impacts on human health, and states that he cannot understand
why the Approval Holder’s application for the REA could not have been deferred until
the completion of the current study by Health Canada.
Findings Regarding Evidence of the Other Party, Participant, and Presenter
[411] The evidence of Ms. Lever, Dr. Crysdale, Mayor MacIver and Mr. Wolfson, has
been of assistance to the Tribunal in better understanding the issues to be addressed in
this proceeding. The Tribunal notes that much of the evidence presented by Ms. Lever,
Dr. Crysdale, and Mr. Wolfson, has been addressed by the other parties in this
proceeding, and as such, their concerns and submissions have been addressed by the
Tribunal elsewhere in this decision.
[412] Regarding the Municipality’s evidence respecting the health and safety impacts
of above ground transmission lines, the Tribunal notes that a presenter may only give
evidence respecting the issues raised in the appeal. Some of the appeals, in referring
to adverse health effects, do state that it is more likely than not that they are caused by
a number of factors including stray voltage or electromagnetic fields. However, neither
the Appellants’ evidence nor their submissions in respect of the Health Test, have
directly addressed this issue. Therefore, it is not entirely clear that this issue is before
the Tribunal. However, assuming that it is, the Tribunal notes that no expert opinion
evidence has been adduced to support the views expressed in Mayor MacIver’s
presentation. Consequently, the Tribunal finds that Mayor MacIver’s evidence does not
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Bovaird v. Director,
Ministry of the Environment
establish that serious harm to human health will be caused by high voltage transmission
lines.
Conclusion on Issue 2B
[413] The Tribunal finds that the Appellants have not established that any pre-turbine
witnesses will suffer serious harm to their health caused by the Project wind turbines.
[414] As noted above, the evidence in this proceeding does not establish a causal link
between wind turbines and either direct or indirect serious harm to human health under
the conditions imposed in the REA requiring a setback distance of 550 m, and a
maximum noise level of 40 dBA.
[415] Consequently the Tribunal finds that the Appellants have not established that
engaging in the Project in accordance with the REA will cause serious harm to human
health.
Issue 2C: Whether Ms. Laurie should be qualified to give opinion evidence
[416] The Appellant, Mr. Sanford, called Ms. Laurie as a witness to give opinion
evidence respecting the issue whether engaging in the Project in accordance with the
REA will cause serious harm to human health. As noted earlier in this decision, Mr.
Sanford requested that she be qualified as “a physician with experience in the delivery
of health care.” In an oral ruling, the Tribunal refused Mr. Sanford’s request, indicating
that its written reasons for this disposition would follow. The Tribunal’s reasons are
provided below.
Ms. Laurie’s Education, Training, and Experience
[417] The factual evidence regarding this witness’ education, training, and experience
in support of the requested qualification is not in dispute. Ms. Laurie obtained a
Bachelor of Medicine, Bachelor of Surgery in 1995 from Flinders University, South
Australia, and subsequently practiced, and obtained a Fellowship with the Royal
Australian College of General Practitioners (“RACGP”) awarded in 1999, and Fellowship
with the Australian College of Remote and Rural Medicine (“ACRRM”) in March 2000.
She stopped practicing medicine in April 2002 due to personal circumstances. Ms.
Laurie testified that in order to practice medicine, and more specifically, to diagnose and
treat patients, Australian law requires that she must be registered with Australian Health
Practitioners Registration Authority (“AHPRA”). She indicates that she let her
registration lapse approximately two and half years after she ceased practicing in 2002.
Ms. Laurie indicates that it is her intention to re-register with AHPRA. However, she
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Bovaird v. Director,
Ministry of the Environment
stated that she must complete some self-study, particularly to update her knowledge
respecting medication regimes, before she will be ready to re-apply. She confirmed
that, to date, she has not done so. In light of these circumstances, Ms. Laurie
confirmed that she cannot diagnose patients or prescribe medication for them.
[418] As a result of a complaint filed with the AHPRA in 2013 that her current activities
(discussed below) constituted practice as a physician, she voluntarily agreed not to use
the title/honourific “Doctor” or “Dr.”. She states that she has done so, in order to avoid
any potential misunderstanding by members of the public regarding her status as a
practicing physician. Documentary evidence respecting the complaint was adduced in
evidence and marked confidential, i.e., it is not included in the public record in this
proceeding. Ms. Laurie was cross-examined on this evidence. The Tribunal finds that
this evidence supports Ms. Laurie’s assertion that the AHPRA did not make any finding
in respect of the complaint made against her.
[419] In terms of her other professional training and experience, Ms. Laurie
acknowledges that she has no training or experience in conducting medical or scientific
research. She further acknowledges that she also does not have any training or
experience in research methodology and design, other than some undergraduate
exposure when obtaining her medical degree, and does not have post-graduate
experience in this area. She acknowledges that she is not a qualified acoustician, and
she has no experience or training in acoustics generally, or, in particular, pertaining to
noise generated by industrial wind turbines, although she has reviewed publications in
the subject area of acoustics, and has consulted with acousticians.
[420] Ms. Laurie testified that she first became interested in the potential health
impacts of industrial wind turbines, specifically resulting from noise generated by
industrial wind turbines, in 2010, when a wind project was proposed to be a situated
near her home (but subsequently never built). Since that time, she accepted an
invitation to be the medical director of foundation known as the Waubra Foundation, a
volunteer position, which has subsequently changed to her current volunteer position as
Chief Executive Officer. Ms. Laurie testified that the Waubra Foundation was formed in
March 2010 to facilitate research into the adverse health impacts being described by
neighbours to wind developments in Australia. She also stated that this Foundation has
a particular interest in the role of low frequency industrial noise from any source, and
resultant health problems.
[421] The majority of Ms. Laurie’s work experience related to health impacts of
industrial wind turbines, comes from her work for the Waubra Foundation which is a full
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Bovaird v. Director,
Ministry of the Environment
time volunteer position. In summary, Ms. Laurie testified that she has not approached
communities to conduct surveys, and that she has not conducted formal structured
research. She states that she conducts an ongoing survey, where, to date, she has
spoken with approximately 130 people in Australia who live in the vicinity of industrial
wind turbine projects. She indicated that these people have identified themselves to
her, by contacting her directly, or indirectly by contacting the Waubra Foundation. She
explains that these persons describe their symptoms to her and request information.
She maintains that, when speaking with these people, she does not provide an
individual diagnosis. She states that she has not ever taken a formal medical history,
which is what a registered medical practitioner would do. She asserts that, instead, she
provides information which people can choose to take to their health care practitioner, if
they wish to do so, and that, sometimes, their practitioner will contact her for
information. Ms. Laurie states that she is interested in learning about their problems, so
she can provide information to enable them to assist their own practitioners in working
out whether or not their symptoms are related in any way to a source of noise, whether
the source is an operating wind turbine, or some other source.
[422] Ms. Laurie explained that the Waubra Foundation is solely concerned with the
human health consequences of exposure to operating industrial wind turbines and other
sources of infrasound and low frequency noise. She states that she does not oppose
industrial wind projects per se, but is concerned about the current practice of siting wind
turbines in locations where, in her view, they are likely, on the basis of current
knowledge, to cause harm to human health.
[423] Apart from interviewing self-identified individuals as described above, Ms. Laurie
states that she also works with acousticians to advance multi-disciplinary research
which she asserts is needed. She further testified that she has conducted reviews of
the published literature in this field, both in the subject area of noise impacts on human
health associated with or caused by wind turbines or other sources, and in the subject
area of noise acoustics. She also consults with other professionals who are working in
this area, both in Australia and internationally, and, in this context, is familiar with the
work of Dr. McMurtry, who has also testified in this proceeding.
[424] In her witness statement, Ms. Laurie, in describing her work in this area, makes
the following assertions:
My own field work, and knowledge of the field work of others including
acoustic and psycho acoustic measurements and physiological research,
is appreciated by those genuinely seeking to understand why people are
becoming unwell living near wind turbines. My help, knowledge and
advice is sought by doctors, acousticians and researchers working in this
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Bovaird v. Director,
Ministry of the Environment
field in Australia and overseas. My ability to understand and
communicate the essence of the existing acoustic and human health
evidence, has contributed to the general community understanding of the
existing known pathophysiological pathways which make this condition
so devastating to a significant proportion of wind project neighbours.
Ms. Laurie’s Proposed Opinion Evidence
[425] Ms. Laurie’s opinion evidence is set out in her witness statement which has been
filed in this proceeding. Although the Tribunal has given careful consideration to each
of the opinions advanced in her witness statement, for the purpose of this decision, it is
sufficient to describe these opinions by way of a summary overview. Ms. Laurie’s
opinion evidence falls into three main areas.
[426] First, Ms. Laurie reviewed the witness statements and other information
respecting Ontario residents who have testified in this proceeding. These witnesses fall
into two categories:
The post-turbine witnesses who reside in the vicinity of existing wind turbine
projects who assert they have suffered harm to their health as a result of
exposure to operating wind turbines.
the pre-turbine Witnesses residing in the vicinity of Project wind turbines.
[427] There are other persons referenced in Ms. Laurie’s witness statement who did
not testify in this proceeding.
[428] In her witness statement Ms. Laurie states that she was retained to read the
witness statements from the people named in her witness statement, and comment on:
a) whether they conform with Dr. McMurtry’s case definition (described
previously in this decision); and
b) whether they are in accordance with her own knowledge of the range and
pattern of health problems being reported by residents living near industrial
wind turbines.
[429] In this regard, Ms. Laurie also reviewed medical records provided by these
witnesses and questionnaires completed by them, and conducted a telephone interview
with each of the witnesses who testified in this proceeding.
[430] In her concluding remarks regarding the post-turbine witnesses, Ms. Laurie
states:
Despite the individual differences between these witnesses with respect
to the type, range and severity of the symptoms experienced, the speed
of onset of symptoms, there is a clear pattern of exposure to operating
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Bovaird v. Director,
Ministry of the Environment
wind turbines being associated with the symptoms, which are relieved or
improve with cessation of exposure, …
Overall, it is clear that all of them have experienced serious health
impacts as a result of exposure to wind turbines. This makes it probable
that others will experience similar effects if they are exposed to turbines.
[431] In her concluding remarks regarding the pre-turbine witnesses, Ms. Laurie states:
It is probable that each of these individual residents will have serious
adverse health impacts from wind turbine emissions from the proposed
wind development.
Each of them has one or more of the risk factors identified by Dr. Nina
Pierpont and Dr. Geoff Leventhall, being either at the extremes of age, or
a clinical history of migraines, motion sickness, or inner ear pathology.
In addition each of them have underlying medical conditions which make
them more likely to suffer the health damaging consequences of
exposure to wind turbine noise because of the well established effects of
sleep deprivation and physiological stress from exposure to infrasound
and low frequency noise.
[432] In her witness statement, Ms. Laurie describes a study by Dr. Pierpont, who is a
practicing medical physician. Ms. Laurie provides an overview of symptoms identified
by Dr. Pierpont, and she states that Dr. Levanthall, an acoustician, has acknowledged
that these symptoms have been known to him to result from exposure to environmental
low frequency noise. These symptoms are:
Sleep disturbance and sleep deprivation
Headaches
Tinnitus (ringing in the ears)
Ear Pressure
Dizziness
Vertigo
Nausea
Visual Blurring
Tachycardia (fast heart rate)
Irritability
Problems with concentration and memory
Panic episodes associated with sensations of movement,
Quivering inside the body that arise when awake or asleep
[433] Ms. Laurie also describes four specific risk factors identified by Dr. Pierpont as
increasing the risk of developing characteristic symptoms from exposure to wind turbine
noise. These are:
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
The extremes of age – babies and young children and older citizens
History of migraines
History of motion sickness
History of pre-existing otological (ear) conditions including inner ear disorders
and industrial deafness
[434] Ms. Laurie also expressed opinions that each of the post-turbine and pre-turbine
witnesses who testified in this proceeding, satisfy the criteria for the ‘probable’ category
of diagnosis as defined in Dr. McMurtry’s Case Definition. She also expressed further
opinions respecting these witnesses as described below.
Findings Regarding Mr. Sanford’s Request to Qualify Ms. Laurie to Give Opinion
Evidence
[435] Tribunal Rule 170 regarding the production of witness statements, confirms that
the Tribunal requires that a witness who wishes to give opinion evidence must be
qualified to do so. Regarding the nature of these qualifications, the Tribunal has issued
a Practice Direction for Technical and Opinion Evidence (the “Practice Direction”).
Paragraphs 5 and 9(c) of this Practice Direction state:
5. To give opinion evidence, a witness must have specialized
education, training, or experience that qualified him or her to reliably
interpret scientific or technical information or to express opinions about
matters for which untrained or inexperienced person cannot provide
reliable opinions. …
9.(c) The witness should express an opinion to the Tribunal only when
the opinion is based on adequate knowledge and sound conviction. The
witness should be reluctant to accept an assignment to provide evidence
for use by the Tribunal if the terms of reference of the assignment do not
allow the witness to carry out the investigations and obtain the
information necessary to provide such an opinion. A witness who
accepts an assignment under these circumstances should advise the
Tribunal of the limitations that the terms of reference place on his or her
ability to provide the information necessary to assist the Tribunal in
making a sound decision.
[436] The Tribunal notes Rule 170(d) requires that a witness who proposes to give
opinion evidence, must complete Form 5, which requires that the witness acknowledge
that the witness’ evidence will be fair, objective and non-partisan. Therefore, it is clear
that the witness’ duty in this regard, is provide opinions which will assist the Tribunal to
make a sound decision.
[437] The requirement set out in para. 5 of the Practice Direction, reflects the law of
evidence that, in order to give opinion evidence, a witness must have acquired special
or peculiar knowledge through study or experience that is beyond the knowledge of the
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Bovaird v. Director,
Ministry of the Environment
common person. So long as the witness satisfies this requirement, the way in which a
witness has acquired the knowledge is immaterial (see R. v. Kinnie (1989), 450
B.C.L.R.(2d) 369 (“Kinnie”), and R. v. Mohan [1994] 2 S.C.R. 9 (“Mohan”), and cases
cited therein). As such, the fact that Ms. Laurie is not registered with the AHPRA, and,
therefore, cannot practice medicine (which includes making diagnoses and prescribing
medication), does not, in and of itself, preclude her from being qualified to give opinion
evidence. The test is whether she has the special or peculiar knowledge in respect of
the matters on which she undertakes to testify.
[438] However, the rationale for this requirement is to ensure that such opinions meet
a basic threshold of reliability. As noted in Mohan (at page 25), where the proposed
opinion evidence advances a novel scientific theory or technique, such evidence is to be
subjected to special scrutiny to determine whether it meets the reliability threshold.
[439] Clearly, the obligation of the expert witness is to provide opinions which are not
subject to any limitation or deficiency which causes the Tribunal to question their
reliability. In this regard, the Tribunal observes that para. 9(c) of the Practice Direction,
is an example of such scrutiny. The underlying rationale for paragraph 9(c) is that
opinion evidence which is proffered subject to restrictions or conditions, will limit its
assistance to the Tribunal in making a sound decision.
[440] In this case, the terms of reference of Ms. Laurie’s retainer do not place any
limits on her ability to provide the information necessary to assist the Tribunal in making
a sound decision. Instead, Ms. Laurie herself stipulates the limitation that her opinion
evidence cannot and does not include diagnostic opinion.
[441] The Tribunal accepts that Ms. Laurie, in her curriculum vitae and her oral
testimony during the qualification phase of her testimony, clearly indicates this limitation.
However, such acknowledgment, in and of itself, does not mean that the opinions she
proposes to advance are sufficiently reliable to assist the Tribunal in making a sound
decision. The Tribunal’s decision in this regard is discussed below.
[442] The Tribunal has reviewed Ms. Laurie’s proposed evidence in detail. For
reasons described below, the Tribunal finds that Ms. Laurie, in expressing her opinions
either:
makes a diagnosis;
applies diagnostic interpretation of pre-existing medical conditions to reach
conclusions that exposure to operating industrial wind turbines has
exacerbated such conditions, or has resulted in additional health problems; or
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Bovaird v. Director,
Ministry of the Environment
as in the case of the pre-turbine witnesses, includes the application of
diagnostic interpretation to formulate opinions as to the likelihood that these
individuals will suffer health damaging consequences if exposed to an
operating industrial wind turbine.
[443] The Tribunal has addressed Dr. McMurtry’s evidence previously in this decision.
However, for the purpose of determining whether Ms. Laurie should be permitted to give
opinion evidence in this proceeding, it is sufficient to note that Dr. McMurtry has clearly
identified that the deployment of the diagnostic criteria set out in the Case Definition
should be conducted by a health care practitioner licensed to take a history and make
diagnoses.
[444] Ms. Laurie testified that she did not consider that she made diagnoses of any of
the pre-turbine or post-turbine witnesses. Her witness statement indicates that she was
asked to comment on whether the medical information she reviewed for each witness,
conforms with the Case Definition. In cross-examination, she stated that she is not
making a diagnosis in the sense of seeing somebody professionally, providing medical
services, and providing a diagnosis on the basis of seeing the patient. She
acknowledged that she clearly is not able to do this at the present time, and stated that
she would not do so. She also maintains that the purpose of the Case Definition is to
assist physicians in making a diagnosis. Respecting this latter statement, the Tribunal
notes that Ms. Laurie did not dispute that the Case Definition does describe a medical
diagnosis.
[445] In addressing this aspect of Ms. Laurie’s evidence, the Tribunal first repeats its
earlier finding made in respect of Dr. McMurtry’s opinion evidence. The purpose of
opinion evidence is to assist the Tribunal in making its decision respecting the statutory
test under the EPA, which is a legal determination. Consequently, the nature of the
proposed opinion evidence is to be assessed in this legal context, and not the context of
how a health practitioner may differentiate between commenting on conformity with the
Case Definition and making a diagnosis. In the legal context, the Tribunal finds that any
such differentiation is artificial. An opinion that the diagnostic criteria set out in the Case
Definition are satisfied is a medical diagnosis. As Dr. McMurtry noted in his update to
the Case Definition, a ‘probable’ diagnosis “indicates that AHE/IWT [adverse health
effects in the environs of industrial wind turbines] more likely than not are the cause of
the complaints. AHE/IWT is the working diagnosis. Other diagnostic possibilities
continue to exist and should be considered in the differential diagnoses.”
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
[446] In any event, the Tribunal also finds that the opinions expressed by Ms. Laurie go
well beyond mere commentary regarding conformity with the Case Definition. As noted
earlier in this decision, her general opinion in respect of the post-turbine witnesses is:
“Overall, it is clear that all of them have experienced serious health impacts as a result
of exposure to wind turbines.” Her opinion in respect of the pre-turbine witnesses is: “In
addition each of them have underlying medical conditions which make them more likely
to suffer the health damaging consequences of exposure to wind turbine noise.”
[447] The Tribunal does not consider that a detailed review of every opinion in Ms.
Laurie’s witness statement is necessary. The Tribunal accepts that Ms. Laurie provided
a fair overview of her opinions when providing what she describes as her overall
conclusions. The Tribunal will, however, provide one example. In respect of the pre-
turbine witness identified earlier in this decision as PTW, Ms. Laurie states:
For someone like [PTW] with epilepsy, known by her to be triggered by
sleep deprivation, she is rightly very concerned about the impact of wind
turbine noise on her health, and her ability to live on her property,
specifically because of the likely impact on her sleep, and therefore on
her epilepsy. . . .
Sleep deprivation is known by clinicians generally to lower the threshold
for seizures, . . .
She will have no control over the wind turbine infrasound and low
frequency noise emissions she is exposed to inside her home if the
project proceeds. In particular, there is no way of successfully preventing
the effects of the frequencies below 200Hz (infrasound and low
frequency noise) from penetrating, resonating and potentially amplifying
inside her home and causing disturbed sleep. It is predictable the
proposed wind turbine project in this case will cause serious adverse
health impacts if the project is allowed to proceed.
[448] Apart from the consideration that this opinion is, in part, based on assumptions
regarding noise acoustics, the Tribunal finds that Ms. Laurie is clearly making a
diagnostic interpretation of PTW’s current medical condition, and applying this
interpretation to formulate her opinion that PTW will suffer serious health impacts if
exposed to noise from an operating industrial wind turbine.
[449] The Tribunal has considered whether it should find Ms. Laurie is qualified to
provide such diagnostic opinions, notwithstanding that she has indicated that she
cannot provide such opinions. In this regard, the Tribunal notes that she has a medical
degree and has a number of years of past experience practicing as treating physician.
However, the Tribunal has found that most of the opinions expressed by Ms. Laurie do
require the making of a diagnosis, or the application of diagnostic interpretation.
Therefore, the Tribunal finds that it cannot ascribe sufficient reliability to these opinions,
in contradictory circumstances where diagnostic opinion is being proffered by the
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
witness, while, at the same time, the witness stipulates that she cannot provide such
diagnostic opinion.
[450] The above analysis and findings address the opinions in Ms. Laurie’s witness
statement which require the making of a diagnosis and/or the application of diagnostic
interpretation as described above.
[451] The Tribunal now turns to consideration of Ms. Laurie’s opinions based on the
risk factors identified by Dr. Pierpont. The Tribunal notes that Ms. Laurie made specific
reference to these risk factors in her concluding remarks regarding the pre-turbine
witnesses, and that she included consideration of these factors in her individual
evaluation of each of these witnesses. Although she did not make express reference to
Dr. Pierpont’s work in respect of the post-turbine witnesses, it is the Tribunal’s
understanding that her acceptance of these risk factors also informed her conclusions
respecting these witnesses.
[452] The Tribunal finds that Ms. Laurie’s evaluation of:
(i) whether any of the witnesses exhibited symptoms identified by Dr. Pierpont
as resulting from exposure to low frequency noise, and
(ii) whether the any of the witnesses exhibit the risk factors identified by Dr.
Pierpont,
again, requires the application of diagnostic interpretation. To find otherwise, would be
to conclude that no special expertise would, in most cases, be required to conduct such
an evaluation. In further support of this finding, the Tribunal also observes that these
symptoms and risk factors are similar to the adverse health effects identified in Dr.
McMurtry’s Case Definition. Again, Dr. McMurtry has clearly identified that the
deployment of the Diagnostic Criteria set out in the Case Definition should be by a
health care practitioner licensed to take a history and make diagnoses.
[453] The Tribunal now turns to consideration of Ms. Laurie’s experience in terms of
her survey work in interviewing and documenting the health symptoms reported by
people who have contacted her. As noted earlier in this decision, Ms. Laurie
acknowledges that she has no training or experience in conducting medical or scientific
research, nor has she any training or experience in research methodology. She states
that her only training in research design has been some undergraduate exposure while
obtaining her medical degree, but she provided no specific particulars of the education
or training that she received. She acknowledges that she does not have post-graduate
experience in this area. The Appellant, Mr. Sanford, did not seek to qualify Ms. Laurie
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
as an expert in these areas. The Tribunal finds that, based on Ms. Laurie’s
acknowledgements, she cannot be qualified to give opinion evidence in these areas.
Consequently, the Tribunal finds that Ms. Laurie is not qualified to give her proposed
opinion evidence based on expertise in medical or scientific research or research
methodology and design. However, for reasons discussed below, this does not
preclude her from describing the results of the survey work she has done, including
making comparisons to the similarity of the results from this survey work to the results of
similar surveys conducted elsewhere.
[454] The Tribunal now turns to another aspect of Ms. Laurie’s witness statement,
namely her review of published literature on the subject of the health impacts from noise
exposure from a variety of noise sources, industrial wind turbines in particular. In her
witness statement, she summarizes information from some of these publications, which
includes publications in the subject area of noise acoustics. In her testimony, Ms.
Laurie has acknowledged that she has no expertise as an acoustician. However, she
has also stated that she consults with other experts in the areas of acoustics and
psycho acoustic measurements, to promote a multi-disciplinary approach in order to
contribute to the general community understanding of what she asserts are “the
existing known pathophysiological pathways which make this condition so devastating
to a significant proportion of wind project neighbours.” Although she has undertaken
self-study to inform herself on the issue of noise acoustics, Ms. Laurie did not suggest
that her self-study is sufficient to qualify her to express expert opinion on noise
acoustics. Consequently, the Tribunal finds that she is not qualified to give opinion
evidence in the subject area of noise acoustics, and, in particular, opinions regarding
the noise to be generated by the industrial wind turbines in the Project, and the noise
levels at sensitive receptors in the Project area.
[455] The Tribunal accepts that it is appropriate for Ms. Laurie to consider existing
published research or other literature in formulating her opinions. However, the Tribunal
has already found that Ms. Laurie cannot be qualified to give opinion evidence based on
formal medical or scientific research, or research design and methodology. The
Tribunal has also found that she cannot be qualified to give opinion evidence requiring
diagnostic opinions, or the application of diagnostic interpretation to formulate
conclusions on the potential health impacts of exposure to operating industrial wind
turbines. This raises the question whether she can be qualified to give her proposed
opinion evidence on the basis of the experience she has obtained through self-study of
the published research and other literature. The Tribunal accepts that the time Ms.
Laurie has devoted to this aspect of her work experience is not insignificant. However,
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Bovaird v. Director,
Ministry of the Environment
Ms. Laurie’s evidence does not indicate that she has conducted a comprehensive
review of all literature, nor that she has the expertise to assess the sufficiency of the
research methodology in individual research studies. Consequently, the Tribunal finds
that her self-study of the published literature, as described in her witness statement,
even if considered in conjunction with her survey of self-identified participants, is not
sufficient to meet the basic threshold of reliability necessary to assist the Tribunal in
making a sound decision.
[456] In summary, the Tribunal has found that the Appellant, Mr. Sanford has not
established a basis on which Ms. Laurie can be qualified to give her proposed opinion
evidence in this proceeding.
[457] The above finding, however, does not preclude Ms. Laurie from giving evidence.
As a fact witness, she can testify respecting her work in this area, particularly the
information she has obtained from the survey work that she has conducted. It may be
less clear whether other aspects of her evidence are strictly fact evidence. However,
the Tribunal notes that the Practice Direction recognizes that a witness who provides
technical evidence may, to some extent, interpret information that is essential to the
Tribunal’s understanding of the issues. In this regard, the Tribunal finds that Ms.
Laurie’s training, education and experience is certainly sufficient to qualify her to provide
this level of interpretation. Accordingly, the Tribunal is prepared to hear her evidence
regarding the similarity of health complaints obtained through her survey work, as
compared to the health complaints reported in similar surveys conducted elsewhere in
Australia and other jurisdictions.
[458] Similarly, the Tribunal has allowed her evidence respecting her review of
published research and literature to be submitted, as set out in her witness statement,
subject to the important caveat that none of the articles, studies, or reports attached to,
or described in her witness statement are being accepted as proof of the opinions and
conclusions stated therein. This part of Ms. Laurie’s witness statement has been
accepted solely on the basis that it describes some of the current body of research and
academic or other informed discussion which has been published in this field. In this
regard, the Tribunal notes that the other parties did not object to the receipt of this part
of Ms. Laurie’s evidence, subject to this caveat.
[459] Finally, the Approval Holder and the Director opposed Ms. Laurie’s qualification
on the grounds of bias. As stated earlier in this decision, the Tribunal, in its oral ruling,
confirmed that the Tribunal would consider the evidence and submissions of the parties
Environmental Review Tribunal Decision: 13-070 to 13-075
Bovaird v. Director,
Ministry of the Environment
respecting the issue of bias, as it relates to the weight to be given to Ms. Laurie’s
evidence.
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Written By Paula Brown Local Journalism Initiative Reporter The Town of Shelburne has officially dissolved its Parks and Recreation Taskforce. During a Town Council meeting ...
New strategic plan implemented by local health team
Written By Zachary Roman A collaborative of local patients, physicians, and health, social or municipal agencies has charted its course for the next three years ...
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