On Ostrander Point: Can the harm of a judge irreversably harm the judiciary?

A Prince Edward County website has posted not only an article on an Ontario divisional Court determination on what had been the sole instance of an industrial wind turbine project in Ontario being rejected by an environmental review tribunal, but also the ruling itself.

“The deck is stacked.” Prince Edward-Hastings MPP Todd Smith said. “Across Ontario we’re talking about small, rural municipalities with small budgets being asked to defend their citizens from the money of major multinational wind developers and the province of Ontario. Even when they win, they’re going to lose because they’ll keep getting dragged into court until the side with the most money wins.”

…The case was unique in Ontario as it questioned Renewable Energy Act regulations, their interpretation by the ERT and the intent of legislation


[35] It seems unquestionable from the evidence that was placed before the Tribunal that there was a risk of serious harm to Blanding’s turtle from the Project. Given the fragile status of Blanding’s turtle as a species, it would be difficult to characterize any increase in mortality arising from the Project as anything other than serious. The real issue is whether that harm was also irreversible

[39] One of the first problems relating to the Tribunal’s reasons on this issue is that the Tribunal did not separate out, in the course of its determination of whether the test was met in relation to Blanding’s turtle, its analysis of the serious harm factor from its analysis of the irreversible harm factor…

The rest is of some interest, but this seem the basis being given for the ruling.
It’s problematic as data can always be superior, and mitigation measures can always be claimed.
Geoengineering might be easier than we think, so let’s throw out any programs to reduce greenhouse gas emissions.  That’s not an entirely facetious point: in recent days as James Hansen was issuing a paper including a call for the U.S. and China to work together to reduce emissions, the South China Post was communicating another message:

can we geoengineer a new climate? Technically, the answer is a simple “yes”.

Fortunately, non-judicial bodies realize that’s kind of risky business.
Now for some smearing…
The decision in the Ostrander appeal is written by somebody named Nordheimer: presumably Justice Ian Nordheimer.  That guy is the judge who ruled recently that “that all portions of police documents from the investigation into Sandro Lisi and Rob Ford should be released to the public.”  

Reasons given for that decision included:

We are dealing with the actions of the duly elected mayor of the country’s largest city and the extensive investigation undertaken by the police into those actions…In terms of legal proceedings, it is hard to conceive of a matter that would be of more importance to the public interest…

He is presumably also the same judge who had struck down a warrant the RCMP had attained in a 2005 raid of the Sorbara group offices: “Justice Ian Nordheimer of the Ontario Superior Court said there were inadequate grounds for police to include him in the first place. The judge was particularly scathing in his review of the RCMP probe of Sorbara.”  

Perhaps the appearance of political interference would have been less if the ruling wasn’t written by the judge that figures heroicly on Liberal ex-Premier Dalton McGuinty’s wikipedia page and was instrumental in releasing all possible material embarassing not-a-Liberal Toronto Mayor Ford.

There’s evidence in the ruling of political interference.  For one, the ruling blathers on about an ESA (Endangered Species Act) permit:

[62] I will pause again, this time to address one submission made by the intervener, Prince Edward County South Shore Conservancy.  It asserts that the ESA permit is simply a non prosecution permit, that is, it shields the holder of the permit from prosecution for undertaking acts that would otherwise be prohibited by the ESA. From a very narrow perspective, that is true but this submission fails to give proper consideration to the role that the ESA permit has in the overall scheme of the Renewable Energy Approval [REA].

And that consideration is that it shields the permit holder from an appeal of it’s REA – because the ESA permit requires only a willing Minister/Premier:

[68] … the Tribunal ought to have accepted the ESA permit at face value. It ought to have accepted that the requirements of the permit including the Property Management Plan and the impact Monitoring Plan would be put in place as contemplated by the permit and that those plans and the conditions of the permit would be properly and adequately monitored by the MNR [Ministry of Natarul Resources]. With those assumptions in place, the Tribunal should then have considered the impact of the ESA permit on the issue of irreversible harm. This the Tribunal failed to do.

The ruling seems to be that despite the rubber-stamp being given to the project on the basis of an ESA, the onus is on the revocation of an ESA that is simply issued politically.


We change the government and we revoke the ESA’s

Now about collusion with the existing government…

This ruling, dated on the 20th, includes:

[83] … PECFN asserts that there was an obstacle to the Tribunal adopting such an approach and that is found in the legislated requirement that the Tribunal decide the appeal within six months. Section l45.2.1(6) of the EPA reads:

The decision of the Director shall be deemed to be confirmed by the Tribunal if the Tribunal has not disposed of the hearing in respect of the decision within the period of time prescribed by the regulations.

[84] …That six month period is not absolute, however. Section 59(2) of O. Reg. 359/09 reads:

For the purposes of calculating the time period mentioned in subsection (1), any of the following periods of time shall be excluded from the calculation of time:

1. Any period of time occurring during an adjournment of the proceeding if,

i. the adjournment is granted by the Tribunal on the consent of the parties, or
ii. the adjournment is,

A. on the initiative of the Tribunal or granted by the Tribunal on the motion of one of the parties,
B. not being sought for the purpose of adjourning the proceeding pending the resolution of an application for judicial review, and
C. necessary, in the opinion of the Tribunal, to secure a fair and just determination of the proceeding on its merits.

[85] it is clear from the provisions of s. 59(2) of O. Reg. 359/09 that the Tribunal had the authority to adjourn the proceeding to permit submissions to be made on the appropriate remedy without running afoul of the six month time limit. The Tribunal could have done this on its own initiative if the Tribunal considered it necessary to “secure a fair and just determination of the proceeding on its merits”

Here’s the thing: Environmental Tribunal hearings are chaired by employees of the government (more knowledgable ones, regarding the environment, than the judges judging them in this ruling) and it’s always been considered a firm deadline in part because the entire purpose of the ill-fated feed-in tariff offers enabled by the immature and unintelligent Green Energy Act was to build out wind vary rapidly.  This was understood in the less political-pleasing ranks of the legal profession, and the ERT process time was considered in the contract performance timelines … previously
How strange, it would be in an honest scenario, that an independent legal ruling opines that time is not of the essence to the ERT only days after the government’s OPA issues a new policy offering to again abandon the public’s side of contracts it will happily rewrite – if generators feel they should:

In response to concerns raised by Suppliers and other stakeholders, the OPA will contractually address appeals of Renewable Energy Approvals to the Environmental Review Tribunal.
.. if a Supplier’s Renewable Energy Approval is appealed to the Environmental Review Tribunal, the OPA is proposing to adjust a Supplier’s Milestone Date for Commercial Operation for a period equal to the appeal period (defined by the period commencing at the date of the Notice of Appeal and terminating at the date of the Notice of Decision on the Environmental Registry).

The build-out period of 3 years already had a grace period of another 18 months.
It’s hard to believe that policy change wasn’t arranged along with the court decision.
Not as hard as believing that harming an ‘at risk’ species is perfectly acceptable if nobody can absolutely prove that the harm isn’t positively known not to be reversible.

2 thoughts on “On Ostrander Point: Can the harm of a judge irreversably harm the judiciary?

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