Environmental Review Tribunal: Pitt v. Director, Ministry of The Environment

Environmental Review
Tribunal

Case Nos.: 13-121/13-122

Pitt v. Director,
Ministry of the Environment

In the matter of appeals by Mikel Pitt and Skydive Burnaby Ltd., filed October 22, 2013
for a hearing before the Environmental Review Tribunal pursuant to s. 142.1 of the
Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, with respect to
Renewable Energy Approval No. 7159-97BQAS issued by the Director, Ministry of the
Environment, on October 7, 2013 to Wainfleet Wind Energy Inc., under s. 47.5 of the
Environmental Protection Act, regarding the construction, installation, operation, use
and retiring of a Class 4 wind facility consisting of five turbines with a total name plate
capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession 2,
Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario; and
In the matter of a motion by the Appellants heard in writing, requesting that the
presiding Member be recused.
Before: Dirk VanderBent, Vice-Chair
Appearances:
Eric Gillespie, - Counsel for the Appellants, Mikel Pitt and Skydive
Natalie Smith and Burnaby Ltd.
John May
Nadine Harris - Counsel for the Director, Ministry of the Environment
Scott Stoll, - Counsel for the Approval Holder, Wainfleet Wind
Jody E. Johnson and Energy Inc.
Piper Morley

Dated this 14
th
day of May, 2014.
Environmental Review Tribunal Order: 13-121/13-122
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REASONS FOR DECISION
Background
[1] On October 7, 2013, Vic Schroter, Director, Ministry of the Environment (MOE),
issued Renewable Energy Approval No. 7159-97BQAS (the REA) to Wainfleet Wind
Energy Inc. (the Approval Holder), pursuant to s. 47.5 of the Environmental Protection
Act (EPA). The REA grants approval for the construction, installation, operation, use
and retiring of a Class 4 wind facility consisting of five wind turbines with a total name
plate capacity of 9 megawatts at a site located at 22211 Abby Road Lot 22, Concession
2, Part 22, Township of Wainfleet, Regional Municipality of Niagara, Ontario (the
Project).
[2] On October 22, 2013, Mikel Pitt and Skydive Burnaby Ltd. (Skydive),
collectively referred to as the Appellants, jointly filed a notice of appeal of the REA
pursuant to s. 142.1 of the EPA.
[3] A preliminary hearing was held in Wainfleet, Ontario on November 20, 2013.
The Appellants requested and were granted a stay of the REA. Further background
respecting these matters is set out in the Tribunals Orders dated December 12, 2013,
March 11, 2014 and April 2, 2014, and April 7, 2014.
[4] The notice of appeal indicates that Skydive operates a parachute skydiving
service which has been operating at its present location since 1948 and currently
provides approximately 10,000 skydives annually. Approximately 1,000 aircraft takeoffs
and landings are required to provide this service. Although the REA includes approval
of five wind turbines, and the Appellants appeal requests full revocation of the REA, it is
not disputed that the basis of their appeal is that wind turbines T4 and T5 will cause
serious harm to human health, because of the potential that airplanes or parachutists
will either collide with these wind turbines or be unable to safely manoeuvre due to wind
turbulence generated by these wind turbines.
[5] Pursuant to s.145.2.1 of the EPA, the onus is on the Appellants to establish that
engaging in the Project in accordance with the REA will cause serious harm to human
health (the Health Test) and/or serious and irreversible harm to plant life, animal life or
the natural environment. In this case, their appeal is in respect of the Health Test only.
[6] In overview, the Director and the Approval Holder do not dispute that serious
harm to human health will occur if a plane or a parachutist were to collide with one of
these wind turbines, or if wind turbulence generated by the operation of T4 or T5 were
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to cause a parachute to collapse. However, they assert that the probability of such
occurrence is so low, that the will cause aspect of the Health Test has not been met.
[7] The Tribunal heard evidence on January 6, 8, 10, 13, 14, 17, 27, 28, and 29,
2014. The parties then provided written submissions, and, on February 28, 2014, the
hearing resumed to allow the parties to make brief oral submissions and provide the
Tribunal with the opportunity to ask questions.
[8] As noted in the Tribunals Order dated April 7, 2014, on February 28, 2014, the
Tribunal asked for clarification respecting the evidence provided by one of the witnesses
for the Approval Holder, Dr. Raymond Cox. As counsel were unable to provide a
complete response to the Tribunals question, the Tribunal indicated that it would further
review Dr. Coxs evidence. In completing this additional review, the Tribunal identified
that it required additional clarification respecting one of Dr. Coxs conclusions as well as
additional evidence in furtherance of this clarification.
[9] Consequently, as described in the Tribunals Order dated April 7, 2014, the
Tribunal prepared a written list of questions, a copy of which are attached as an
appendix to this Order. Telephone conference calls (TCCs) were held to canvass the
parties positions respecting the Tribunals proposed questions. Counsel for the
Appellants advised that the Appellants objected to the Tribunal receiving the additional
evidence, and requested an opportunity to provide detailed submissions in this regard.
The Tribunal then gave directions for filing of written submissions by the parties. In
overview, the Appellants objections fell into two main categories. They asserted that
the Tribunal does not have jurisdiction to request additional evidence at this stage in the
proceeding, and if the Tribunal receives additional evidence from Dr. Cox, this will raise
a reasonable apprehension of bias to be raised on appeal to the Divisional Court. Upon
receipt and review of the written submissions, the Tribunal also directed the parties to
provide oral submissions respecting the application of Rule 185 of the Tribunals Rules
of Practice (the Rules). On March 20, 2014, the Tribunal heard these oral
submissions, and made the following oral disposition:
Having considered the appellants position that the Tribunal should not
request additional information from Dr. Cox, and the parties submissions
respecting this issue, the Tribunal directs that Dr. Cox answer the
Tribunals questions. In making this disposition, the Tribunal is not
addressing, at this time, whether there should be any subsequent
examination or re-examination respecting Dr. Coxs responses to these
questions or calling of further reply evidence. This issue will be
addressed at a later date, once the parties have had an opportunity to
review Dr. Coxs responses to the Tribunals questions.
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[10] The Tribunals Order dated April 7, 2014, also provides its written reasons for the
above disposition (the Tribunal Decision).
[11] The Appellants subsequently filed a motion with the Tribunal requesting:
1. An Order that the Presiding Member be recused.
2. An Order that another Member review the record and determine the
appeal.
3. An Order abridging the time for service of this Notice as required under
the Rules of Practice.
4. Such further and other relief as counsel may advise and this Tribunal
permits.
[12] The Tribunal provided directions that this motion be heard in writing. The
purpose of this Order is to provide the Tribunals disposition of this motion and its
reasons for this disposition.
Issue
[13] The issue to be determined is whether the Presiding Member should be recused.
Discussion, Analysis and Findings
[14] The Tribunal has considered all of the written submissions of the parties in detail.
The Tribunal has provided a fairly comprehension recitation of these submissions.
However, as they are lengthy, the Tribunal, has not reproduced them in their entirety.
Submissions of the Appellants
[15] The Appellants make the following submissions:
1. The Appellants respectfully submit that there exists a reasonable
apprehension of bias in this matter.
2. The Tribunal has taken the completely unprecedented step of recalling a
witness, after the conclusion of all evidence and submissions, this step
appearing to never have been taken previously by any Environment and
Land Tribunals Ontario (ELTO) board, administrative law tribunal or court
anywhere;
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3. The Tribunal itself appears to have taken on the role of counsel in relation
to this witness, by initiating and conducting every significant aspect of this
process;
4. The Tribunal has already ruled that this same witness testimony at the
hearing was not deficient in any way, despite the Tribunal itself being
unable to comprehend or connect the witness evidence and analysis with
his central conclusions;
5. The Tribunal has now provided the witness with multiple opportunities to
correct his previous evidence, and further expand his testimony with new
evidence;
6. The Tribunal has already ruled on the merits of portions of the
witnessevidence, without providing the Appellants any opportunity to
speak to the issues and submissions made by the opposing parties;
7. In R. v. R.D.S., [1997] 3 S.C.R. 484 (R.D.S.), at para. 31, the Supreme
Court of Canada, citing Committee of Justice and Liberty v. Canada
(National Energy Board), [1978] 1 S.C.R. 369 (Committee), held that the
test for reasonable apprehension of bias is:
what would an informed person, viewing the matter realistically
and practically -- and having thought the matter through --
conclude. Would he think that it is more likely than not that [the
decision-maker], whether consciously or unconsciously, would
not decide fairly.
8. This motion arises as a result of the Tribunal Decision. In it, the Tribunal
allowed extensive further and new evidence from Dr. Cox, a witness
initially called at the main hearing by the Approval Holder. This process
has occurred long after the completion of all evidence and submissions.
This evidence has been generated through a process solely initiated and
conducted in all steps by the Tribunal.
9. This evidence comes from a witness who, in the Tribunal Decision, was
found not to have been deficient in any respect. However, in the same
decision, the Tribunal finds regarding the central conclusions in his report,
that none of the witness assumptions of probability for parachute failure
explains Dr. Coxs conclusion (page 24, Appendix A of the Tribunal
Decision) i.e. that the witness analysis fails to intelligibly connect to his
results.
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10. In addition, the Tribunal holds that important sections of this same
witnessevidence should be accepted exactly as advocated for by the
Approval Holder, despite the fact that the Appellants were given no
opportunity to address any of these matters.
11. The parties to this hearing did not cite a single case where, after the close
of all evidence and completion of all submissions, any court or tribunal has
ever recalled a witness.
12. The fact that Vice-Chair VanderBent, acting on his own initiative, with no
legal support or precedent, has chosen to elevate the importance of this
witness to a status unheard of in the history of ELTO, any other
administrative tribunals or courts, raises real concerns regarding the
reason, necessity and propriety of doing so here.
13. In circumstances where a trier of fact has overstepped the boundaries of
proper judicial intervention, their impartiality is in doubt and their conduct
will give rise to a reasonable apprehension of bias. In support of this
submission, the Appellants cite James v. Canada (Minister of National
Revenue M.N.R.), [2000] F.C.J. No. 2135 (C.A.) (James).
14. None of the parties provided any of the questions to the witness. Instead,
the Tribunal examined and cross-examined the witness, repeatedly and
extensively (Tribunal Decision, Appendix A). Vice-Chair VanderBent (a)
challenged the witness to explain apparent inconsistencies, (b) debated
the meaning of responses, and (c) by posing new queries that had never
been asked at the hearing, led the questioning of the witness along
avenues that had not been introduced by counsel.
15. In the present case, none of the parties sought to recall Dr. Cox. Instead,
this process was initiated by the Tribunal (Tribunal Decision, para. 8).
While the parties made extensive submissions regarding jurisdiction, none
of them raised Rule 185 of the Tribunals Rules of Practice. Instead, it
was the Tribunal that raised this as a basis and ultimately found it has
jurisdiction pursuant to this Rule (Tribunal Decision, para. 36). In effect,
no counsel was required for any material aspect of this process, as these
steps were taken by the Tribunal alone.
16. All of this conduct falls squarely within the parameters expressly
sanctioned by the court in James. This raises a clear and reasonable
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apprehension of bias in this case. On these grounds alone, it is
appropriate for Vice-Chair VanderBent to be recused.
17. At para. 44 of the Tribunal Decision, the Tribunal states: the
Appellants assertions are based on an assumption that Dr. Coxs
evidence is defective, and that the opportunity to answer the questions will
permit him to amend or substantially bolster his evidence. However, the
Appellants have not provided any basis for this assumption, other than,
perhaps a presumption that there must be some deficiency in his evidence
because the Tribunal has asked for additional evidence. . This is a
clear finding directly supporting Dr. Coxs earlier evidence. The Tribunal
either expressly and/or implicitly is determining that there are no
deficiencies.
18. After setting out this analysis in detail, including the two main calculations
done by Dr. Cox in relation to the likelihood of parachute equipment failing
and leading to collisions with turbines, the Tribunal goes on to state: So it
appears that neither of these assumptions of probability for parachute
failure explains Dr. Coxs conclusion of less than 1/1000th of 1% as
stated in his report. Therefore, further clarification of Dr. Coxs calculation
is required. Where a witness assumptions cannot be reconciled with the
witness most important conclusion, this is clearly a major deficiency. The
inability to connect a witness analysis with the witness conclusion is a
fatal shortcoming. The finding by the Tribunal of the necessity for further
clarification also emphasizes the incompleteness and inadequacy of his
report. However, the Tribunal then goes on to unilaterally grant the
witness the opportunity to repair these key disconnects by providing
extensive clarifications. As also noted above, the Tribunal then goes
further and gives the witness and his report a completely clean bill of
health in the Tribunal Reasons, finding no evidence of any deficiencies.
With respect, any reasonable observer would question how the Tribunals
objectively contradictory findings can give rise to anything but a further
apprehension of bias in this case.
19. The Appellants also respectfully submit (a) that by allowing one Partys
witness to correct deficiencies, (b) that the Tribunal itself has pointed out
as being incorrect, (c) long after the remainder of the evidence has been
heard and all submissions concluded, this also indicates to a reasonable
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and informed observer that the matter is not being approached with a fair
and open mind to all parties.
20. The Appellants refer to para. 19 of the Tribunal Decision, and submit that,
notwithstanding the objections of the Appellants, and without hearing any
submissions from the Appellants on the Approval Holders contentions, in
the Tribunal Decision, the Tribunal rules expressly in favour of the
Approval Holders position. They further submit that this is a clear breach
of the rules of natural justice and procedural fairness. The fact that the
Tribunal ruled on a contested matter going directly to the merits of the
case without attempting to obtain submissions from the Appellants, also
raises a further significant and strong apprehension of bias.
Submissions of the Director in Response
[16] The Director makes the following submissions:
1. This motion should be dismissed for the following three reasons:
a. This motion is an attempt to re-litigate the same allegations of bias
already heard by the Tribunal and dismissed in its decision dated
April 7, 2014.
b. The Appellants renewed allegations of bias have no foundation in
fact or law.
c. Should the member decide to recuse himself, the only appropriate
remedy is to order a new hearing which is not in the interest of justice
or any of the parties given the stage that the proceeding is at.
2. The Appellants have already objected to the Tribunal receiving
clarifications and additional evidence from Dr. Cox. One of the grounds
for their objection was that requesting the additional evidence would raise
a reasonable apprehension of bias. The Tribunal considered the
allegation of bias in the Tribunal Decision and found that the Appellants
have not established any basis on which to conclude that there would be a
reasonable apprehension of bias if the Tribunal proceeded to request the
additional evidence. The Appellants motion to recuse is based on the
same allegations of bias already heard by the Tribunal. It is thus an
attempt to re-litigate and on that basis alone, the motion should be
dismissed.
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3. The burden is on the Appellants to demonstrate that grounds for recusal
actually exist. This requires substantial evidence that there is a real
likelihood of bias. Mere suspicion is not enough. In support of this
submission, the Director cites Zundel v. Citron, [2000] 4 F.C. 225
(Zundel), para. 36, leave to appeal refused [2000] S.C.C.A. No. 322.
This is a very high threshold in the face of a strong presumption that a
tribunal member will act fairly and impartially in the absence of evidence to
the contrary. In support of this submission, the Director cites Mugesera v.
Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 91,
para. 13 (Mugesera).
4. The Appellants allegations of bias are unfounded and unsupported by any
evidence. Examples of such unfounded allegations and
misrepresentations include:
The statement that the Tribunal has not once in its history requested
clarifications or new evidence after the close of evidence and
submissions. This broad sweeping statement is unsupported by any
evidence. On the contrary, the Approval Holder in its March 24, 2014
submissions on the Tribunals request for information referred to at
least one case where the Tribunal had made such an inquiry in the
past.
The Appellants state that the Tribunal, in the Tribunal Decision, made
a clear finding directly supporting Dr. Coxs earlier evidence and gave
his report a completely clean bill of health. The Tribunal made no
such finding or conclusion.
The Appellants state that the Tribunal has ruled on the merits of
portions of Dr. Coxs evidence without the Appellants submissions.
This is absolutely false. There has not been any ruling made by the
Tribunal on the merits of any portion of this appeal. Furthermore, the
Appellants have been provided with numerous opportunities to make
submissions throughout this process.
5. Bias denotes a state of mind that is in some way predisposed to a
particular result or that is closed with regards to a particular issue. In
support of the submission the Director cites Zundel, supra, para. 38.
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6. In Committee, supra, at page 19, the Supreme Court of Canada stated
that the manner in which the test for reasonable apprehension of bias
should be applied is as follows:
[T]he apprehension of bias must be a reasonable one, held by
reasonable and right-minded persons, applying themselves to
the question and obtaining thereon the required information...
[The] test is "what would an informed person, viewing the matter
realistically and practically and having thought the matter
through conclude...
7. The test for bias thus contains a twofold objective standard: the person
considering the alleged bias must be reasonable and informed; and the
apprehension of bias must itself be reasonable.
8. The facts on the record are that the Tribunal member requested
clarification and further analysis of Dr. Coxs evidence. When the
Appellants objected to this request, their objections were carefully
considered by the Tribunal member and dismissed with detailed reasons.
The Tribunal member then provided the Appellants with the opportunity to
cross-examine Dr. Cox on his clarifications and to call reply evidence.
They chose to do neither. These facts do not support in any way an
allegation of bias.
9. No reasonable and informed person would think that the request for
clarification and further analysis or the subsequent process for considering
the Appellants objections demonstrate a biased or a closed mind. On the
contrary, the request and the process are evidence of an open and
unbiased mind.
10. The Appellants allege that there is no legal support or precedent for
recalling a witness. In the Tribunal Decision, the Tribunal disagreed. At
para. 32, the Tribunal held that in order to fulfil its statutory mandate and
make a just determination on the merits, the Tribunal must, at times, be
able to request additional evidence after the parties have called their
evidence and that this approach is provided for under the Tribunal Rules.
To the extent that the Appellants disagree with the Tribunals interpretation
of its mandate and Rules, the appropriate remedy is an appeal to the
Divisional Court once the Tribunal has rendered its final decision.
11. The Appellants allege that the Tribunal member acted as counsel and cite
James, in support of their position. In fact, in James, at para. 52, the
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Federal Court of Appeal confirmed that the general rule is that a judge
may ask a witness questions of clarifications and amplification. What is
not allowed is for the judge to intervene in the questioning of a witness to
such an extent that the questions take on the character of cross-
examination (see para. 57). Viewed in the proper context, the questions
of the Tribunal member were open-ended questions posed to clarify or
amplify evidence. They cannot be characterized as cross-examination
questions.
12. Furthermore, in James, at para. 53, the Court stated that an allegation of
undue intervention in the questioning of a witness must be assessed in the
context of the proceeding as a whole. In this case, the Tribunal heard
evidence on January 6, 8, 10, 13, 14, 17, 27, 28, 29, heard submissions
on February 28, and held a number of subsequent TCCs on March 19,
20, April 2 and 4 and 10. Throughout the process, the Tribunal member
properly intervened to focus the evidence, clarify evidence, avoid
irrelevant or repetitive evidence, direct witnesses to answer questions,
request submissions and make procedural rulings. His latest intervention
is in line with his previous interventions, is properly within his role and
does not create a reasonable apprehension of bias.
13. The Appellants provide no authority in support of their request for an order
appointing a new member to review the record and determine the appeal.
Where a reasonable apprehension of bias has been established, courts
have generally ordered a new hearing. In support of this submission, the
Director cites Slater Financial Inc. v. Carrefour Ltd. Partnership, [1996]
O.J. No. 3127, para. 3. If the Tribunal member decides to recuse himself,
this is the only appropriate remedy in this case.
14. Holding a new hearing at this stage of the proceeding would not be in the
best interest of any of the parties or in the interest of justice. All parties
have invested a significant amount of resources and time to date and the
Tribunal member is the one best suited to render the final decision in this
appeal. As mentioned earlier, if the Appellants are unhappy with the
decisions of the Tribunal member or his approach to the evidence, they
have the right to appeal to the Divisional Court on an issue of law once he
renders his final decision.
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Submissions of the Approval Holder in Response
[17] The Approval Holder makes the following submissions:
1. The burden is upon the party moving for disqualification, in this case the
Appellants, to demonstrate objectively that grounds for disqualification
actually exist. Such a demonstration must consist of substantial cogent
evidence that there exists such a personal bias, prejudice or interest on
the part of the judge that he or she would be unable to rule impartially. In
support of this submission, the Approval Holder cites Abrams and
McGuinness, Canadian Civil Procedure Law (2nd Ed), (Markham:
LexisNexis, 2010), at para. 2.106, page 147.
2. The Appellants filed no affidavit evidence in support of their motion. As a
result, no substantial evidence has been brought forward by the
Appellants to demonstrate any apprehension of bias. The Appellants
merely set out their own picayune submissions and speculations.
3. The threshold for a finding of actual or apprehended bias is high. Courts
presume that judges will carry out their oath of office. To make out an
allegation of judicial bias, cogent evidence is required. Suspicion is not
enough. The threshold is high because a finding of bias calls into
question not just the personal integrity of the judge but the integrity of the
entire administration of justice. The threshold is the same for decision
makers at administrative tribunals. In support of this submission, the
Approval Holder cites Marchand (Litigation Guardian of) v. Public General
Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.) at para. 31.
4. The Appellants provide a very narrow and inappropriate explanation of
how to apply the test for bias. They also fail to provide the appropriate
complete context notably, that courts are hesitant to perceive a
reasonable apprehension of bias or make a finding of bias in absence of
"convincing" evidence.
5. The Appellants assert that by seeking clarification from Dr. Cox, the
Tribunal acted without precedent and without authority to recall a witness
and that such action is unprecedented in our judicial system. The
Appellants' position is simply incorrect in both fact and in law. A judge
may recall any witness who has given evidence and examine that witness
on matters not dealt with in the witness' previous examination. The
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Appellants cite, for example, French v. McKendrick, [1931] 1 D.L.R. 696
(Ont. C.A.) (French) at paras. 9 to 11, where the trier of fact recalled
witnesses after the close of submissions in order to obtain further
evidence to assist in the calculation of damages. The Appellate Court
noted that judges have a discretionary power to recall witnesses at any
stage of a trial. In support of this submission, the Approval Holder also
cites Bryant et. al., Sopinka, Lederman & Bryant: The Law of Evidence in
Canada, (3
rd
Ed.), (Markham: LexisNexis, 2009) at para. 16.17, page
1097.
6. At all times, the Tribunal had the jurisdiction under the law and the
Tribunal's Rules of Practice to act as it did. Under the doctrine of functus
officio, an administrative decision-maker only loses jurisdiction once the
final decision is made. However, nothing under the functus officio doctrine
prevents an administrative decision-maker from re-opening an oral
hearing in order to hear more evidence prior to rendering a decision. This
is precisely what the Tribunal did. Vice-Chair VanderBent was not
prevented from recalling Dr. Cox as a witness. In support of this
submission, the Approval Holder cites David P. Jones and Anne S. de
Villars, Principles of Administrative Law(4
th
Ed.) (Toronto: Thomson
Carswell, 2004) at page 346.
7. The Appellants' assertion that Vice-Chair VanderBent essentially took on
the role of counsel in regard to the evidence of Dr. Cox, and examined
and cross-examined Dr. Cox repeatedly and extensively, thereby
overstepping the boundaries of proper judicial intervention and giving rise
to a reasonable apprehension of bias, is simply incorrect. The clarification
sought from Dr. Cox was clearly laid out in writing, provided to counsel for
all parties, in the form of open-ended, non-leading questions by the
Tribunal. A leading question is one that suggests the answer. A review of
the written questions posed to Dr. Cox by the Tribunal shows that in no
way do they suggest the answer(s). Clearly, the questions are not
leading. They do not suggest an answer nor give any indication that
Vice-Chair VanderBent prefers the evidence of Dr. Cox to that of any other
witness, or show that there is any propensity that he has a closed mind.
8. Further, the witness to whom the questions were put was not selected
because he was put forward by particular parties but rather by virtue of the
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subject matter he was the sole expert who spoke to this subject matter.
The Appellants have acknowledged they deliberately chose not to provide
any evidence or witness to speak to the assessment of risk of the Project.
9. The Appellants' reliance upon James is misplaced. James is an extreme
example of an overly interventionist judge, yet, the court still recognized
that it is entirely proper for the court to ask its own questions of witnesses.
Further, in regard to James, the principle set out that a judge not intervene
and take on the role of counsel has been tempered in recent decisions. In
McFarlane v. Safadi (2004). 70 O.R. (3d) 599 (C.A.) at para. 34, the
Ontario Court of Appeal interpreted James as permitting judges to ask
questions and seek clarification from witnesses. Only where the questions
suggest bias, e.g. that the manner of questions suggests that the judge
favours one side over the other, cross the line:
A trial judge may ask questions of a witness for the purpose of
clarifying issues or amplifying areas of the evidence that require
further explanation. However, if a trial judge questions a witness
in a manner that gives the impression that he or she is adopting
a particular position in opposition to one of the parties, he or she
has gone too far.
10. The Federal Court has also tempered the principle from James to capture
only "excessive intervention". As noted in General Electric Capital
Canada Inc. v. Canada, [2009] T.C.J. No. 489 (T.C.C.) at paras. 229 and
230 (General Electric):
The judge has liberty to intervene in the proceedings in the
interest of truth, provided he gives both parties full latitude to
address the points raised by his questions. More recently, the
Federal Court of Appeal in NCJ Educational Services Limited v.
Canada (National Revenue) tempered the more traditional view
of the role of a judge expressed in James v. The Queen by
declaring that it does not stand for the principle that a judge
should refrain from intervening, but rather, that a judge should
refrain from excessive intervention. Desjardins J.A. quotes the
following passage from the manual A Book for Judges by the
Honourable J.O. Wilson in support of this more modern view of
justice:
... the rule is not against any intervention; it is against
excessive intervention. Edmund Burke said: "a judge is
not placed in that high position to be the mere arbiter of
parties. He has a further duty, independent of that, and
that duty is to ascertain the truth.
[Emphasis added.]
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i. I believe that not only questions for the purpose of clarification
are permissible when dealing with experts, but also questions
designed to ensure that the attitude of the expert witnesses has
not become that of an advocate. This broad statement is
tempered by the right that must be fully afforded to counsel to
complete the examination or cross-examination of the witnesses
and to answer the questions raised by the judge.
11. The information sought by the Tribunal from Dr. Cox cannot be
characterized as questions which reach the level of "excessive
intervention" and it does not, in any way, suggest that the Tribunal favours
one side over any other in relation to the matters addressed by Dr. Cox.
Further, the Tribunal did provide the parties with the opportunity to
question Dr. Cox and potentially file further evidence to address new
issues but counsel for the Appellants decided against taking the
opportunity to do either.
12. In Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., [1971] 2 O.R. 637
(Ont. C.A.) (Phillips), at page 18, Evans J.A. of the Ontario Court of
Appeal explained that courts are permitted to obtain the assistance of
experts as they see fit in order to facilitate a better understanding the
evidence. Indeed, a judge has a duty to understand the evidence:
One of the functions of a trial Judge is to make findings of fact
and a proper exercise of that duty requires that the Judge
understand the evidence. If there is failure to understand and
appreciate the evidence, it follows that there cannot be a proper
judicial finding of fact .... An expert who is appointed has the
limited role of explaining to the Judge that evidence adduced by
the parties which is within his particular area of competence to
the end that the Court may be better informed in the spheres of
knowledge requisite for the proper determination of those
complex questions of fact presented to it.
13. The Tribunal, as set out the Tribunal Decision, clearly is acting within its
jurisdiction, within its Rules of Practice and within its authority set out in
the Statutory Powers and Procedures Act. The Tribunal squarely
addressed the question, raised by the Appellants, as to whether
requesting additional information from Dr. Cox would raise a reasonable
apprehension of bias. The answer to that question, the Tribunal
concluded, is no. The Tribunal Decision in this regard was clearly set out
and the Appellants have provided no additional information that would now
lead to a different conclusion.
Pitt v. Director,

16
14. Through the present notice of motion, the Appellants have effectively
sought a review and vary motion in regard to the Tribunal's ruling
respecting the admissibility of additional information provided by Dr. Cox.
The allegation of bias is the same and the only difference between the
prior motion and the Appellant's currnt notice of motion is with regard to
the remedy being sought. As noted, the issue of bias was raised and
dealt with by the Tribunal during the decision regarding the admissibility of
evidence and no new evidence or change in circumstances has been
advanced.
15. Even though the Tribunal's Rules of Practice, Rules 235 through 243,
provide for a review and rehearing of an issue when there is either new
evidence or a change in circumstance, the Appellants have not provided
the required information nor have they requested a departure from the
Rules. Finally, Rule 243 provides that the rules regarding review are not
applicable to renewable energy appeals. The Appellants are attempting to
do indirectly what they are not permitted to do directly.
16. The Appellants infer that the Tribunal has already made certain findings in
respect of the evidence of Dr. Cox, that the Tribunal provided multiple
opportunities for Dr. Cox to "correct" his evidence and "add new evidence"
and that a ruling was made without affording the Appellants the
opportunities for submissions. The Appellants infer that the Tribunal's
actions in this regard demonstrate that the Tribunal has had a closed
mind. This is simply incorrect and the Appellants offer no evidence
whatsoever to support their statements.
17. The Appellants assertion that the Tribunal has closed its mind as a result
of the Tribunal's comments that there was "no deficiency" in Dr. Cox's
evidence is not correct. The Tribunal's questions sought to confirm how
Dr. Cox's calculation was performed which was clarified through
references to the existing evidence, whether the answer to the calculation
could also be expressed as an "individual jump probability" and if not,
what the "individual jump probability" would be as a result of the Project.
18. Dr. Cox provided an analysis and the Appellants were free to challenge
that analysis, not once, but three times in a reply witnesses statement,
during the oral hearing and during the subsequent hearings. The fact the
Appellants opted to not avail themselves of such opportunity to test the
Pitt v. Director,

17
calculation and assumptions to those calculations and that the Tribunal
has now asked such a question does not demonstrate the Tribunal has
closed its mind rather just the opposite the Tribunal is seeking to
properly understand the evidence.
19. In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 (Wewaykum)
at para. 58, the Supreme Court of Canada observed that a biased mind is
the opposite of an open mind. It is characterized by:
a leaning, inclination, bent or predisposition towards one side or
another or a particular result. In its application to legal
proceedings, it represents a predisposition to decide an issue or
cause in a certain way which does not leave the judicial mind
perfectly open to conviction. Bias is a condition or state of mind
which sways judgment and renders a judicial officer unable to
exercise his or her functions impartially in a particular case.
20. A close review of the questions shows an inquisitive Tribunal seeking to
understand the significance of the expert's statements. The Appellants
have not provided anything other than the bald and unsupported
assertions set out in the their Notice of Motion to indicate that Vice-Chair
VanderBent has a biased, unopened mind.
Submissions of the Appellants in Reply
[18] In reply to the submissions of the Director and the Approval Holder, the
Appellants make the following submissions.
1. In French, supra, witnesses were recalled to give evidence on an issue
which had not been addressed by any witnesses at the initial hearing.
Given that the evidence went to matters outside of the scope of the
original hearing, this case is clearly distinguishable in law. Moreover, the
issue in this case is not one of the jurisdiction of the court/Tribunal to do
this, as it was in French, but one of bias.
2. In reply to the Directors submission that the Approval Holders earlier
submissions included reference to a case where additional evidence was
requested, the Appellants note that the case referenced is Orgaworld
Canada Ltd. v. Ontario (Director, Ministry of the Environment) (2011), 65
C.E.L.R. (3d) 161 (Ont. Env. Rev. Trib.) (Orgaworld). That case involved
a query from the Tribunal as to whether any new evidence respecting the
operation of an organic waste company had come to light since the
Pitt v. Director,

18
hearing. Not only was this evidence entirely independent of the Tribunal
(as opposed to being prompted by the Tribunal), there was consensus
among the parties that, if the Tribunal were to receive additional
evidence, it should only be uncontested evidence (see para. 49).
Moreover, in Orgaworld, a motion was brought by one of the parties to
admit new evidence, pursuant to Rules 233 and 234.
3. Consequently, despite numerous opportunities for both Respondents to
locate such decisions, there is no case in which a witness has been
recalled by the decision-maker after the full closure of the case, to allow
that witness to clarify/explain/expand on their original opinion (strongly)
in support of one side, and then add more evidence pursuant to questions
on matters not raised by the parties but by the decision-maker.
4. The Appellants respectfully submit that, in light of the fact that no court or
tribunal anywhere has ever taken this step, it is clearly one of the factors
an informed and reasonable observer would consider in asking whether
the decision-maker here has created an appearance of bias.
5. In the Members List of Questions, Dr. Cox is asked: Is it Dr. Coxs
evidence that less than 1/1000 of 1% is the probability that, for any single
jump, wind turbines T4 and T5 (inclusive of their turbulent wake) will be hit
by a jumper (Individual Jump Probability). This question can clearly be
answered as yes or no, because it suggests an answer and the witness
simply has to agree or disagree.
6. In response to the Approval Holders submissions respecting the James
decision, the Appellants note that in this case the interventions took place
in writing. In fact, many questions were asked, making them numerous.
Furthermore, they were asked on multiple occasions (first by email, then
by detailed written questions, and then by follow up written questioning),
making them repeated. This leads to a reasonable apprehension of bias
in accordance with the James decision.
7. Second, as noted in James, it is also the character of the interventions
that must be considered. Where the witness is asked to not only amplify,
but generate new evidence by questioning of the witness(es) along
avenues that had not been introduced by counsel (James, para. 57), this
leads to a further and reasonable apprehension of bias.
Pitt v. Director,

19
8. This approach also squarely raises the issue of excessive intervention,
and goes well beyond the permissible range of clarification and exploring
the attitude of the expert witness referenced in General Electric cited by
the Approval Holder.
9. The Presiding Member introduced the concept of Individual Jump
Probability referenced above, more than six weeks after the conclusion of
the hearing. None of the parties witnesses referred to such a concept,
nor did their counsel. This concept is the Presiding Members alone. This
too falls directly within the concerns raised in James.
10. Given Dr. Coxs evidence of less than 1/1000 of 1%, with great respect,
it would seem very nave to suggest that his calculation of Individual
Jump Probability would be a number suggesting any realistic possibility of
collision with turbines. If a reasonable and informed observer reads the
Presiding Members decision, and then learns that this evidence was
(a) generated solely by the Presiding Member, (b) after the close of the
hearing, (c) through numerous questions asked by the Member, and (d)
after the Member knew Dr. Coxs other predictions of the likelihood of
collision, the Appellants respectfully submit that this alone will establish a
very clear apprehension of bias.
11. The Approval Holder cites Wewaykum where the Supreme Court of
Canada notes that a reasonable apprehension of bias arises where the
judicial mind is not perfectly open to conviction. With respect, the facts
above do not meet this test.
12. The Phillips case serves to highlight the apparent bias. In Phillips, the
court appointed an independent expert. Here, the Presiding Member has
relied exclusively on a witness to opine on these new matters, who has
already opined extensively and in favour of the Approval Holder and its
position. With respect, no reasonable and informed person will consider
this witness to have been an independent expert.
13. Phillips also highlights the concern regarding the proper role of any
adjudicative decision-maker. At para. 61 the court stated:
Our mode of trial procedure is based upon the adversary system
in which the contestants seek to establish through relevant
supporting evidence, before an impartial trier of facts, those
events or happenings which form the bases of their allegations.
This procedure assumes that the litigants, assisted by their
Pitt v. Director,

20
counsel, will fully and diligently present all the material facts
which have evidentiary value in support of their respective
positions and that these disputed facts will receive from a trial
Judge a dispassionate and impartial consideration in order to
arrive at the truth of the matters in controversy. A trial is not
intended to be a scientific exploration with the presiding Judge
assuming the role of a research director; it is a forum established
for the purpose of providing justice for the litigants. Undoubtedly
a Court must be concerned with truth, in the sense that it accepts
as true certain sworn evidence and rejects other testimony as
unworthy of belief, but it cannot embark upon a quest for the
"scientific" or "technological" truth when such an adventure does
violence to the primary function of the Court, which has always
been to do justice, according to law. While I recognize that the
adversary system has been subjected to criticism on the ground
that its procedures may on occasions inhibit the search for
ultimate truth, I believe it to be a workable system which has
proved satisfactory over a long period, and I am not prepared to
abandon it in favour of the presumed, but undemonstrable,
advantages of a clinical, scientific approach to the adjudication of
legal disputes. [emphasis added]
14. In response to the submission that this motion is an attempt to re-litigate
the same allegations of bias already heard by the Tribunal, the Appellants
respond, based on the five grounds set out in their motion:
A. The Tribunal Decision was the first opportunity for the Tribunal to
reference any authority or precedent where steps regarding a witness,
such as those taken in this case, had previously been taken. A
reasonable apprehension of bias now arises in part not only from any
of the parties but also the Tribunal being unable to locate any cases
where this has occurred. The Tribunal Decision affirmed that the
Tribunals actions here are completely unique.
B. The Tribunal Decision was the first time the Tribunal gave its ruling on
what provisions of the Tribunals Rules it was relying upon for
jurisdiction regarding these steps. The Tribunal clearly relied upon
Rule 185 (Tribunal Decision, para. 36), which was not raised by the
parties, but by the Tribunal. Therefore, this apprehension of bias could
not previously have been known or ascertained.
C. The Tribunal Decision was the first time the Tribunal stated the
Appellants assertions are based on assumption that Dr. Coxs
evidence is defective and the Appellants have not provided any
basis for this assumption (etc. )(Tribunal Decision, para. 44).
Pitt v. Director,

21
Therefore, this apprehension of bias also could not previously have
been raised. This makes it evident that the Directors submission that
no such finding has been made, is also incorrect.
D. The Tribunal Decision was the first time the Tribunal ruled that Dr. Cox
could in fact testify (Tribunal Decision, para. 49). Therefore, this
motion is the first opportunity for the Appellants to present their full
case.
E. The Tribunal Decision was the first time the Tribunal ruled that it was
adopting the submissions of the Approval Holder regarding the
testimony and transcripts related to Dr. Cox without hearing any
submissions from the Appellants (Tribunal Decision, para. 19).
Therefore, this apprehension of bias also could not previously have
arisen.
15. Consequently, it is clear that most, if not all, of the grounds relied on by
the Appellants were never previously raised and/or available, and this
motion is properly brought.
16. The Approval Holders submissions in fact demonstrate deficiencies in
Dr. Coxs evidence, as it acknowledges that the Tribunals questions
sought to confirm how Dr. Coxs calculations were performed (etc. ).
This affirms the Appellants submission that Dr. Coxs conclusions did not
conform to his analysis, and that no reader, including the Tribunal, could
follow his calculations. Where a witness evidence cannot be rationalized
and requires further explanation, that testimony is by definition deficient.
17. The fact that the Approval Holder goes on to state that this was clarified
through references to the existing evidence is precisely the submission
the Tribunal adopted in the Tribunal Decision without seeking any input
from the Appellants. This also makes it evident that the Directors
submission that the Tribunal made no findings directly supporting Dr.
Coxs earlier evidence, is incorrect.
18. The Approval Holder and Director further submit that evidence in the form
of affidavits, etc. ought to have been filed on this motion. With respect,
this is also incorrect. The Appellants motion relies upon the record
already before the Tribunal, such as the questions asked by the Presiding
Pitt v. Director,

22
Member, the Tribunal Decision, etc. Consequently, further extrinsic
evidence is not required.
19. Although the Approval Holder submits that the actual evidence from
Dr. Cox has never been challenged, a review of the extensive
submissions made by the Appellants on numerous occasions makes it
clear that this evidence has been challenged on many grounds.
20. In the present case, again with respect, the actions of the Tribunal in
searching for the best evidence also fall directly within Phillips, and
beyond the role of the Tribunal. While the court was critical of the witness
appointed, and questioned the courts jurisdiction in this regard (Phillips,
paras. 72 and 77) this would not have been an issue for the Tribunal (see
Tribunal Rule 197). If there had been any need for further evidence on
these issues, which here as previously submitted is highly debatable,
these initiatives ought not to have come from the Tribunal alone, and if
they had, at minimum should have involved the appointment of a properly
independent expert as the court found was necessary in Phillips. Here,
the Presiding Member has relied exclusively on a witness to opine on
these new matters, who has already opined extensively and in favour of
the Approval Holder and its position. With respect, no reasonable and
informed person will consider this witness to have been an independent
expert.
Findings
[19] The Tribunal first turns to the submissions of the Approval Holder and the
Director that this motion is an attempt to re-litigate the same allegations of an
apprehension of bias already heard by the Tribunal and dismissed in the Tribunals
Decision. The Tribunal accepts that the findings made in the Tribunal Decision are
binding. However, the Tribunal notes that the Appellants previous submissions did not
include a request that the Presiding Member be recused. Furthermore, in support of the
current motion, the Tribunal accepts the Appellants are entitled to assert claims
respecting an apprehension of bias that were not raised in their earlier submissions.
Therefore, the Tribunal does not accept that this motion should be dismissed on the
basis of re-litigation.
[20] This raises the question as to which submissions were made previously and
which were not. Rather than engaging in a point by point comparison of the previous
Pitt v. Director,

23
submissions to the current ones, the Tribunal concludes that is more straight forward to
address the arguments raised by the Appellants on this motion, and rely on the findings
made in the Tribunal Decision, where applicable.
[21] The Tribunal does not propose to engage in a detailed discussion of the standard
to be applied when a claim of reasonable apprehension of bias has been raised. There
is commonality in submissions of all the parties respecting the relevant decisions of the
Supreme Court of Canada in this regard. The standard to be met to establish an
apprehension of bias clearly indicates that each case must be determined on its own
merits. More importantly, in the Tribunal Decision, the Tribunal has already found that it
has the jurisdiction, pursuant to Rule 185, to both question witnesses, and advise when
additional evidence, witnesses or submissions might assist the Tribunal. In
determining whether the standard to establish an apprehension of bias has been met,
the case advanced by the Appellants must be determined in the context of this
jurisdiction.
[22] The Appellants assert that there is no legal support or precedent for requesting
additional evidence, pointing out that the parties did not cite a single case, where, after
the close of all evidence and completion of all submissions, any court or tribunal has
ever recalled a witness. They submit that this raises real concerns regarding the
reason, necessity, and propriety of doing so in this case, and that the Presiding Member
has overstepped the boundaries of judicial intervention. In addressing these
submissions, the Tribunal first notes that, if true, the fact that there are no reported
cases of an adjudicator having done this, is not necessarily confirmation that it has not
been done, as not all cases are reported. More importantly, this submission is premised
on the assumption that if it has not been done before, it must be improper. The Tribunal
finds that this is not a valid premise. The fact that it may not been done before, is not
determinative of the Tribunals jurisdiction to do so. Again, the Tribunal has already
ruled that it clearly has the jurisdiction to request additional evidence pursuant to Rule
185. The Tribunal finds that a reasonable person would not conclude that an
adjudicator is biased if the adjudicator uses his/her discretion to exercise this
jurisdiction.
[23] The Director and Approval Holder argue that the Appellants, on this motion, have
provided no affidavit evidence in support of their position. While the Tribunal accepts
that a claim of an apprehension of bias must be demonstrated by specific conduct or
actions of the adjudicator, the Appellants correctly point out they are entitled to rely on
the record before the Tribunal, such as the questions asked by the Tribunal, and the
Pitt v. Director,

24
Tribunal Decision. Consequently, the Appellants motion does not fail on the ground
that affidavit evidence has not been provided. With this in mind, the Tribunal now turns
the specific conduct or actions which the Appellants assert demonstrate bias.
[24] The Appellants point out that the Tribunal, after reviewing the written
submissions filed by the parties respecting the issue of the Tribunals jurisdiction to
request additional evidence, raised consideration of the application of Rule 185 when
none of the parties did. The Appellants assert this conduct demonstrates that the
Presiding Member overstepped the boundaries of proper judicial intervention, such that
his impartiality is in doubt, and, therefore, this conduct gives rise to a reasonable
apprehension of bias. The Tribunal does not accept this submission. The Tribunal
notes that the Appellants submission, taken to its logical conclusion, would dictate that
the Tribunal could not exercise its jurisdiction under Rule 185, or any other Rule or
statutory provision, if it is not first raised by the parties, as to do so would raise a
reasonable apprehension of bias. This clearly is incorrect. The Tribunal further notes
that it notified the parties of the potential application of Rule 185 and requested their
submissions on this point. In such circumstances, the Tribunal finds that a reasonable
person would not conclude that an adjudicator is biased simply because the adjudicator
is exercising his/her jurisdiction under the Tribunals Rules, particularly where the
parties were allowed to make submissions.
[25] The Appellants submit that the Tribunals questions indicate that the Tribunal
examined and cross-examined Dr. Cox repeatedly. The Approval Holder and Director
dispute this assertion, maintaining that the Tribunal did not ask leading questions. As
described above in the Appellants reply submission, they cite one question, an example
which they submit is a leading question:
Is it Dr. Cox's evidence that less than 1/1000 of 1% is the probability that,
for any single jump, wind turbines T4 and T5 (inclusive of their turbulent
wake) will be hit by a jumper ("Individual Jump Probability")?
[26] As the Approval Holder points out, a leading question is one that suggests the
answer. The fact a question may lead to a yes/no response does not necessarily make
it a leading question. On its face the Tribunal sought clarification of Dr. Coxs evidence.
The question did not suggest an answer. The Tribunal further notes that Dr. Cox was
asked to provide written responses, and therefore, he was not required to respond to
one question at a time in sequence, as would be the case in an oral examination.
Therefore, in considering the Appellants example, it is necessary to consider the
Pitt v. Director,

25
questions that followed, in order to determine if the witness was, in fact, being led. The
full passage states:
wake) will be hit by a jumper ("Individual Jump Probability")? If so, what
is the exact probability, and how did he calculate it. If not, what is
Dr. Cox's evidence respecting the Individual Jump Probability, and
how does he calculate it? [emphasis added]
These additional questions clearly indicate that Dr. Cox was also free to provide his
opinion as to what the individual jump probability would be. For these reasons, the
Tribunal does not accept the Appellants submission that the question was leading.
[27] The Appellants have asserted their view that the questions asked constitute
extensive cross-examination, which challenge the witness to explain inconsistencies.
The Director and the Approval Holder admanantly dispute that this is a reasonable
characterization. The Tribunal finds that the above analysis supports the view that, on
plain reading, the questions do not cross-examine the witness. The Tribunal
emphasizes that this aspect of the Appellants submissions is being considered in the
context of whether the Tribunals conduct demonstrates a reasonable apprehension of
bias. As such, the Tribunal finds that it necessary to look at all the circumstances of the
Tribunals actions in the context of the entire hearing, as opposed to a narrow approach
which considers only a debate whether the questions, on their face, appear to constitute
cross-examination. In the broader context, the Tribunal made it clear that its purpose in
asking these questions was to obtain clarification of the opinion evidence provided by
Dr. Coxs to ensure that the Tribunal properly understood his evidence. It is not
disputed that the Tribunal gave the parties an opportunity to examine Dr. Cox on his
responses to the questions, or to request the opportunity to call further evidence in
reply. In such circumstances, the Tribunal finds that a reasonable person would not
conclude that the Tribunals conduct in asking these questions demonstrates that the
Tribunal had a closed mind or a predisposition in respect of his evidence.
[28] The Appellants also submit that a reasonable apprehension of bias is
demonstrated by the fact that the Tribunal posed new queries that had never been
asked at the hearing, thereby opening the questioning of the witness which had not
been introduced by counsel. The Tribunal notes that it has already ruled that it has the
jurisdiction to do so, pursuant to Rule 185, and the exercise of this jurisdiction does not
raise an apprehension of bias.
Pitt v. Director,

26
[29] The Tribunal now turns to the Appellants submission regarding para. 44 of the
Tribunal Decision. The Tribunal finds their submission should be considered in the
context of the full analysis provided by the Tribunal in the Tribunal Decison, which is set
out in paras. 41 to 44 (the sentence referenced by the Appellants has been highlighted):
[41] The second ground asserted by the Appellants, is that the
Tribunals request for additional evidence establishes that there is a
deficiency in Dr. Coxs evidence, and, consequently, Dr. Cox is being
presented with the opportunity to amend or substantially bolster his
evidence. The Appellants maintain that the Tribunals request for
additional evidence will resuscitate the defective evidence of Dr. Cox,
and, therefore, the admission of such evidence appears to result in a
major benefit for one party. The Appellants maintain, therefore, that, if
the Tribunal proceeds to receive the additional evidence, this would
inevitably taint the Tribunals decision in this proceeding in favour of the
Approval Holder. They assert that the Approval Holder should not now
be granted such a great indulgence to remedy deficiencies in its case.
[42] For the following reasons, the Tribunal finds that the Appellants
have not established an apprehension of bias based on this second
ground.
[43] The Tribunal first notes that Dr. Cox is the only opinion witness
who provided a detailed probability analysis in respect of the Health Test.
It is for this reason alone that the questions have been addressed only to
Dr. Cox, who is a witness for the Approval Holder.
[44] Secondly, the Appellants assertions are based on an
assumption that Dr. Coxs evidence is defective, and that the opportunity
to answer the questions will permit him to amend or substantially bolster
his evidence. However, the Appellants have not provided any basis
for this assumption, other than, perhaps, a presumption that there
must be some deficiency in his evidence because the Tribunal has
asked for additional evidence. The Tribunal notes that Rule 185
provides that the Tribunal may advise when additional evidence might
assist the Tribunal. Therefore, there is no presumption that the
questions, once answered, will assist the Tribunal. It is also important to
note that neither Dr. Cox nor the Approval Holder has asked to provide
additional information. Furthermore, the Tribunal requires that Dr. Cox
respond only to very specific questions. Consequently, there can be no
presumption that his answers to the questions will resuscitate his
evidence as asserted by the Appellants. The Tribunal does not rule out
the possibility that the answers to the questions could result in Dr. Cox
changing his opinion, or providing a correction if he finds his evidence is
in error. However, as noted under Issue 1, he is obliged to do so
pursuant to his Acknowledgement of Experts Duty, and s. 9(f) of the
Practice Direction. [emphasis added]
[30] The Appellants assert that this is a clear finding supporting Dr. Coxs earlier
evidence, as the Tribunal is either expressly and/or implicitly determining that there are
no deficiencies in his evidence. The Tribunal does not accept this submission. It is
clear, on plain reading of the above excerpt from the Tribunal Decision, that the Tribunal
Pitt v. Director,

27
was addressing a potential presumption by the Appellants that Dr. Coxs evidence was
deficient. In this regard, the Tribunal emphasizes it was responding only to the
Appellants assertion that the additional evidence would resuscitate Dr. Coxs evidence.
It is clear that the Tribunal did not make any express findings respecting Dr. Coxs
evidence. As the Tribunal referred only to a possible presumption by the Appellants,
any implicit interpretation of the Tribunals reasons can relate only to this possible
presumption, and not to any evaluation by the Tribunal of Dr. Coxs evidence. As such,
the Tribunal finds that a reasonable person would not conclude that the Tribunal
Decision demonstrates that the Tribunal had a closed mind or a predisposition in
respect of Dr. Coxs evidence.
[31] The Appellants make a further submission respecting one of the questions posed
by the Tribunal which has already been referenced above, i.e.:
wake) will be hit by a jumper ("Individual Jump Probability")?
[32] They assert that there clearly is a major deficiency, where Dr. Coxs assumptions
cannot be reconciled with his most important conclusion. The Appellants also state that
these are key disconnects. The Tribunal observes that these assertions constitute a
finding respecting Dr. Coxs evidence. While the Appellants are obviously entitled to
take a position that such a finding should be made, it is the Tribunal, not the Appellants,
that ultimately must make a finding in this regard. The Appellants also assert the
Tribunal then goes on to unilaterally grant the witness a completely clean bill of health
in the Tribunal Reasons [Decision]. The Tribunal does not accept either of these
assertions, as it has already found that it made no findings respecting Dr. Coxs
evidence. Consequently, in this regard, the Tribunal finds that the Appellants have not
established any action or conduct by the Tribunal that could give rise to a reasonable
apprehension of bias.
[33] The Appellants submit that, given Dr. Coxs evidence of probability being less
than 1/1000 of 1%, it would seem very nave to suggest that his calculation of
Individual Jump Probability would be a number suggesting any realistic possibility of
collision with turbines. In respect of this submission, the Tribunal first observes that the
Appellants are, again, making an assumption as to what Dr. Coxs evidence would be.
Secondly, as already noted, the purpose of the question was to obtain clarification
respecting his evidence. Consequently, the Tribunal finds that the Appellants have not
Pitt v. Director,

28
established that the Tribunals conduct in requesting such clarification would give rise to
a reasonable apprehension of bias.
[34] The Appellants submit that, if there had been any need for further evidence,
these initiatives ought not to have come from the Tribunal alone, and if they had, at
minimum should have involved the appointment of a properly independent expert as the
court found was necessary in Phillips. They further assert that no reasonable and
informed person would consider Dr. Cox to be an independent expert, as he has
already opined extensively and in favour of the Approval Holder and its position. In
addressing this submission, the Tribunal accepts, as the Appellants have pointed out,
that the Tribunal has jurisdiction under Rule 197 to appoint an independent expert.
Rule 197 states:
At the request of a Party or on its own initiative, the Tribunal may any
person having professional, technical or other specialized knowledge
and expertise to give evidence in respect of any matter before it. The
witness shall conform to the requirements of the Tribunals Practice
Direction for Technical and Opinion Evidence.
[35] Therefore, the conduct on which the Appellants rely, is that the Tribunal did not
do so. Again, the Tribunals conduct must assessed in light of the circumstances
relevant to this submission. The Tribunals purpose in asking for the additional
evidence was to obtain clarification of Dr. Coxs evidence. As already noted, the
Tribunal provided the parties with an opportunity to examine Dr. Cox on this evidence
and to hear a request from the Appellants to adduce reply evidence. In such
circumstances, the Tribunal finds that a reasonable person would not conclude that the
Tribunals conduct in not appointing an independent expert, demonstrates that the
Tribunal had a closed mind or a predisposition respecting Dr. Coxs evidence. In further
support of this conclusion, the Tribunal notes that Rule 179 provides that the parties can
request that the Tribunal appoint an independent expert. The Appellants, in their
submission opposing the request for additional evidence, did not assert that an
independent expert was required, nor did they request that one be appointed. The first
time they raised this issue is in their reply submissions in support of the current motion.
Therefore, it is difficult to discern how the Tribunals conduct in not appointing an
independent expert could raise a reasonable apprehension of bias, when the Appellants
themselves did not request that one be appointed. The Appellants have also confirmed
that they did not seek to call any evidence in reply to Dr. Coxs additional evidence.

Pitt v. Director,

29
[36] The Appellants also refer to para. 19 of the Tribunal Decision, which states:
As the first topic in the List of Questions indicates, the Tribunal sought
clarification of how Dr. Cox arrived at his conclusion that the incremental
risk contributed by the presence of the turbines is less than 1/1000
th
of
one percent. In its written submissions, the Approval Holder points out
that Dr. Cox, in his oral testimony, did provide an explanation of how he
calculated this incremental risk. In this regard, the Approval Holder has
provided reference to the specific questions and answers in the written
transcript of Dr. Coxs evidence. The Tribunal has had an opportunity to
further review this portion of the transcript, and is satisfied that his
answers provide the clarification that the Tribunal has requested.
Consequently, this part of the List of Questions is not at issue, as no
additional evidence is required.
[37] The Appellants submit that, notwithstanding their objections, and without hearing
any submissions from them on the Approval Holders contentions, the Tribunal, in the
Tribunal Decision, rules expressly in favour of the Approval Holders position.
[38] The Tribunal notes that para. 19 confirms that the Tribunals request for
information was answered by reference to oral testimony provided by Dr. Cox at the
main hearing, as pointed out by the Approval Holder. As such, it was unnecessary to
request additional evidence from Dr. Cox in this regard. The Appellants were opposed
to the Tribunal requesting any additional evidence. Neither the Approval Holder or the
Director asserted that there was any need for the Tribunal to request additional
evidence respecting this point. As such, the matter was not contested, contrary to what
the Appellants have asserted in their submission. Therefore, the Tribunal finds that the
Appellants have not established the conduct on which they base their claim respecting
bias.
[39] In summary, the Appellants have not established that the Tribunals conduct in
this proceeding gives rise to a reasonable apprehension of bias. It is therefore,
unnecessary to address the submissions of the parties respecting the other relief
claimed in the Appellants motion. Accordingly, the Appellants motion requesting that
the Presiding Member be recused is dismissed.
[40] The Approval Holder, in its submissions, requests that the Tribunal order costs in
this motion against the Appellants, asserting that they have merely sought new relief to
the same argument previously made by the Appellants in their submissions on the
admissibility of the responses of Dr. Cox. In their reply submissions, the Appellants
assert that a motion for costs is required, and, therefore, the Appellants have not
provided a response to the Approval Holders submission in their reply submissions.
The Tribunal directs that, if the Approval Holder wishes to proceed with an application
Pitt v. Director,

30
for costs, the Approval Holder shall submit a request to the Case Coordinator to
schedule a TCC with the parties to obtain further directions from the Tribunal to hear
this matter. In this regard, the Tribunal notes that Rule 216 requires that any costs
application made by the Approval Holder may be filed no later than within 30 days from
the date of the issuance of these reasons.
ORDER
[41] The Appellants motion requesting that the Presiding Member be recused is
dismissed.
[42] The Tribunal directs that, if the Approval Holder wishes to proceed with an
application for costs, the Approval Holder shall submit a request to the Case
Coordinator to schedule a TCC with the parties to obtain further directions from the
Tribunal to hear this matter.

Motion Dismissed
Procedural Direction Ordered

Dirk VanderBent
Dirk VanderBent, Vice-Chair

Environmental Review Tribunal: Pitt v. Director, Ministry of The Environment

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