Court declines to order Ontario's Chief Medical Officer of Health to be cross-examined in wind farm case

On September 12, 2011, Shawn and Trisha Drennan commenced an application against a number of parties connected to Ontario wind farms (see Notice of Application).  They allege that they are facing a pending windfarm of upwards of 150 turbines (Kingsbridge II) in which one of the turbines will be as close as 650 metres from their home.  Their goal in the application is to obtain a declaration that they are not bound by non-disclosure clauses contained in buy-out agreements of properties to be used as a site for the wind turbines.  Their position is that they own property in the proximity of the planned wind farm and that their efforts to gather “key health information” in order to halt the process have been impeded by these clauses.   They claim that the clauses contravene the public interest as they conceal “serious public health and safety concerns” by private contract. 

The Drennans brought a motion to compel Dr. King, the Chief Medical Officer of Health for the province of Ontario, to be cross-examined as part of the overall application.  They are seeking evidence about the adverse health effects associated with living in close proximity to a wind farm “in anticipation of an appeal of the project’s approval to the Environmental Review Tribunal” (hereinafter referred to as the ERT).   They say they need the data for an expert’s report, which they claim would have to be prepared.  During the hearing of the motion on November 4, 2011, counsel for the Drennans provided two grounds for which Dr. King should be examined as part of the application:

1)      In her role as chief medical officer of Ontario, Dr. King can provide “valuable evidence with respect to the effect” of the non-disclosure clauses; and

2)      In her report, the doctor makes reference to a report being prepared by the Ministry of the Environment.  The second purpose for summoning her to give evidence was apparently to ask if the report is available now and if so, to get a copy of it from her. 

Master Joan Haberman, who heard the motion, found that the Drennans failed to meet their onus of providing a reasonable evidentiary record on which she could conclude that Dr. King "probably has any information in the nature of that sought from her or that relates to any of the matters that arise on the pending application."  She dismissed the motion and asked the parties to deliver submissions on costs.

Read the decision at: Drennan et al v. 2270573 Ont. Inc. et al.