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Title: Tribunal rules in favour of Dufferin Wind

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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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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,

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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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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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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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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.

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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.

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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).

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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.

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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.

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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.

 

 

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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:

 

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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

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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,

 

Environmental Review Tribunal Decision: 13-070 to 13-075

 

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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Post date: 2013-12-31 11:39:43

Post date GMT: 2013-12-31 16:39:43

Post modified date: 2014-01-08 13:37:36

Post modified date GMT: 2014-01-08 18:37:36



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