Ian Hanna Lawsuit Update
**(July 20, 2010 – Update)**
(Also see: Ontario Government: Fighting You – North Gower)
Tuesday July 13th saw our legal team assembled for another very important hearing in the Ontario Superior Court of Justice located at Osgoode Hall, in Toronto.
Convened for 10:00 AM in front of Madame Justice Swinton, three parties were represented at a Motion to Strike the evidence of Dr. Robert McMurtry, brought by the Attorney General of Ontario (AGO).
The AGO was represented by their attorney, The Canadian Wind Energy Association, as intervenors, were represented by their attorney and we were skillfully represented by our attorneys, Eric Gillespie and Julia Croome.
The Attorney General filed this motion to strike the affidavits provided by Dr. McMurtry on the basis that they were “irrelevant and inadmissible in a challenge to the validity of a regulation; they contain material that post-dates the public consultation process; Dr. McMurtry is not qualified to give expert advice; and the affidavits contain hearsay evidence.”
The outcome of this hearing was obviously extremely important to our case as a large part of it is built on evidence provided by Dr. Robert McMurtry. Eric Gillespie handled the arguments masterfully, citing a long list of case law in support of our positions in each of the arguments put forward by the Attorney General.
As requested by our team, Madame Justice Swinton declined to rule Dr. McMurtry’s evidence irrelevant or inadmissible. She declined to rule Dr. McMurtry unqualified as an expert witness and she also declined to strike any evidence due to hearsay considerations.
As Dr. McMurtry’s evidence was not struck from the record, the Attorney General had taken an alternative position asking the court to declare inadmissible, any evidence which post-dated July 24, 2009 – the end of the public consultation period applied to the regulations of the Green Energy Act.
Our position was that there should be no specific date beyond which new evidence would become inadmissible. In the alternative, we maintained that evidence available prior to the enactment of the regulations on October 1, 2009 should be admissible and that only evidence which references studies after this date, should be disregarded.
In the end, Justice Swinton again agreed, for the most part, with our position when she ruled, “Therefore, I order that any references in the affidavits to studies that post-date September 30, 2009 be struck.”
Perhaps the most important outcome of these rulings is that the Attorney General will now be forced, finally, to respond to our evidence. To this point, they have tried to ignore the very real evidence of the serious threats to health from Industrial Wind Turbines (much as the Green Energy Act has done) in favour of litigating this case on the basis of process. Unwilling or more likely unable to deal with our evidence, they attempted, without success, to have our evidence thrown out. Now they will have to answer our claim that they did not take these very real problems seriously when they finalized their regulations.
This means that cross-examinations which have been neglected and delayed, so far, will now move ahead. It also means that they will likely introduce all evidence they can, in an attempt to counter our evidence. All of this leads to the need for a later hearing date.
Madame Justice Swinton recognized this when she said, “Given my decision, counsel for the respondent (the Attorney General), will file further responding material pertaining to the studies and literature relied upon. As cross-examinations have yet to be held, she asked that the September 30, 2010 hearing date be vacated.”
In the same regard, she went on to say, “It is evident that the September 30, 2010 hearing date is not feasible and I order that it be vacated.”
This does not indicate that we should expect a long and drawn out process, however, as Justice Swinton has made it clear, both during the hearings and also in her judgments, she appreciates that time is of the essence.
At the end of this most recent hearing, Madame Justice Swinton took the extremely helpful step of offering to manage this case so as to avoid unnecessary delays. Her final judgment includes the comments, “As I indicated in the oral hearing, it may be appropriate to hold a case conference to deal with the issue of scheduling. If the parties so wish, they may contact my assistant to set up a meeting the week of August 9, 2010, if they are available.”
In summary, we tasted victory at this hearing and are now one big step closer to our ultimate goal. We are preparing to move ahead through examination of any new evidence produced by the Government, cross-examination of witnesses and preparation for a new hearing date – as early as possible.
As you know, as this case becomes more complex and more time consuming, it also requires greater resources to support it. Many have already contributed to this endeavour but we need to continue to raise funds to be sure we can make it to the finish line. If you can help, please do – if you know someone else who can help, please ask them to do so. We have every reason to be positive with the results so far and we continue to believe that we will prevail.
Ian Hanna, Big Island
Editor: Please, if you are affected by wind projects in your area, Ian has not yet met the financial goal for these legal proceedings. We cannot let him bear the burden alone: