Layperson evidence on alleged health effects limited

5 mars 2012

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The Environmental Review Tribunal (ERT) has released a decision limiting the ability of laypersons to testify about health effects allegedly caused by proximity to wind turbines without providing medical records/expert opinions to substantiate their testimony.

The issue arose in an appeal to the ERT by the Middlesex-Lambton Wind Action Group of a Renewable Energy Approval (REA) issued to Zephyr Farms Limited for a wind farm under the Environmental Protection Act In its appeal, the Appellant alleged that the proposed wind farm would negatively affect the health of the surrounding community. In pre-hearing disclosure, the Appellant listed numerous witnesses aiming to testify that they had suffered negative health effects caused by living in the vicinity of wind turbines. The Appellants provided no corresponding medical reports to substantiate, further explain, or allow professional medical scrutiny against, these statements.

In response, the Ministry of the Environment (MOE) requested an order for the Appellants to produce medical reports to corroborate the allegations. The MOE argued that, without medical reports properly subjected to medical scrutiny, the ERT did not possess the necessary expertise to judge how relevant, applicable and transferable the witnesses’ experiences would be to Zephyr Farms’ proposal. Consequentially, the MOE claimed that layperson evidence would be of little use in determining whether the Zephyr Farms project will cause serious harm to human health.

The Appellant argued that, largely due to the expedited timeline for the hearing of the appeal, the time and cost it would take to obtain the necessary medical records to buttress the witnesses’ statements made the exercise impractical and that if the ERT did require such records for its consideration, a significant adjournment would be necessary.

The ERT largely agreed with the MOE, and citing its own decision in Kawartha Dairy Limited v. Director, Minister of the Environment, found that the ERT cannot simply accept the assertion of a layperson that they suffer from a certain medical condition, let alone the cause of that condition. Such conclusions require the diagnostic skills of a qualified health professional. Accordingly, the ERT would only be willing to hear and consider the subjectively reported symptoms of such a witness. One can assume, though it is not explicitly stated, that the ERT would give little weight to such subjectively reported symptoms. The ERT also refused to grant an adjournment because the Appellant knew of the time constraints on REA appeals when it filed its Notice of Appeal and was unable to provide any viable explanation for its inability to obtain a single medical record for any of the witnesses it proposed to call. 

Following the decision, the Appellants withdrew their appeal to the ERT.

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