Nation Rise Wind Farm: Ontario Court Quashes The Minister’s Decision To Revoke A Key Approval

by Canadian Energy Perspectives , Joanna Rosengarten , Reena Goyal and William Horne

McCarthy Tétrault LLP

In December, 2019, the Ontario Minister of the Environment, Conservation and Parks revoked the Renewable Energy Approval (“REA“) issued for the construction and operation of the Nation Rise Wind Farm. The Minister’s decision to revoke the approval was based largely on the potential of the project to harm bats in the local area. The Minister’s decision was surprising for a number of reasons: (1) the Minister revoked a decision made by a Director of his own Ministry to issue the REA; (2) the project had already been subject to and successful in an appeal before the Environmental Review Tribunal (“ERT“); and (3) Nation Rise Wind Farm, a 100 megawatt wind turbine project, was already well under construction.

On May 13, 2020, the Ontario Divisional Court quashed the Minister’s decision to revoke the REA finding that the Minister’s decision was unreasonable because the Minister had acted without statutory authority in raising new issues on the appeal, applied the wrong legal test in making his decision, and made factual conclusions that were not supported by the evidentiary record.¹ In doing so, the Divisional Court also confirmed the application of a correctness standard to cases raising issues of procedural fairness.

Background

A REA, issued under the Ontario Environmental Protection Act (the “EPA“), is the key approval required to construct and operate a wind farm in Ontario. Proponents are required to prepare a comprehensive application for a REA, including various studies related to the natural environment, heritage features, noise impacts, and potential impacts to birds and bats in the area. The application is submitted to the Ministry of Environment, Conservation and Parks (“MECP“). The Director considers the application and may issue the REA (including any conditions) if he or she is of the opinion that it is in the public interest.²

In May, 2018, the Director issued a REA for the Nation Rise Wind Farm. The REA included various conditions, including conditions that required the company to monitor the impacts to bats and to implement plans to mitigate such impacts. Shortly after the Director issued the REA, the Concerned Citizens of North Stormont (“CCNS“) appealed the decision to the ERT.

An appeal before the ERT may only be required on the grounds that engaging in the project will cause: (a) serious harm to human health; or, (b) serious and irreversible harm to plant life, animal life or the natural environment.³ These are also the only grounds that the Tribunal may consider and, if the Tribunal determines that engaging in the project in accordance with the REA will not cause these harms, the Tribunal must confirm the decision of the Director.⁴

Evidence before the ERT during the Nation Rise hearing included expert testimony about anticipated bat mortality rates. The ERT cited two experts on behalf of Nation Rise in concluding that the project would not cause serious and irreversible harm to bats. The ERT found that CCNS had not met the onus of proving that the project would cause serious and irreversible harm to bats and dismissed the appeal. The specific issue of bat maternity colonies was never raised by any party before the ERT and was not mentioned in the ERT’s decision.

Following the ERT’s decision, CCNS launched a further appeal to the Minister. The EPA allows a decision of the ERT to be appealed to the Minister “on any matter other than a question of law” and the Minister “shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest“⁵.

Prior to issuing a decision, the Minister requested submissions from the parties. Nation Rise argued that the ERT made no error, that deference was owed to the ERT, that new issues could not be raised on the appeal, and that the appeal was not an appropriate avenue for effecting broader policy change. CCNS argued that the “public interest” consideration under the EPA gave the Minister broad discretion to interfere with the ERT’s decision. The Minister requested additional submissions, including with respect to bats, which the parties provided. However, once again, none of the submissions discussed bat maternity colonies.

On December 4, 2019, the Minister granted CCNS’ appeal and revoked the REA issued to Nation Rise. Although he found the ERT decision to be “thorough and well reasoned”⁶, he decided that the harm to bat maternity colonies would be “serous and irreversible”⁷. He went on to conclude that the project was not in the public interest when the supposed harm to bats was weighed against the “minimal contribution the project is likely to have to the electricity supply in Ontario”⁸.

Nation Rise filed an application seeking judicial review of the Minister’s decision. Nation Rise sought to quash the Minister’s decision on the basis that it was unreasonable, procedurally unfair, and that the Minister had acted with a reasonable apprehension of bias.

Divisional Court Decision

In an atypical fashion, the Divisional Court addressed the merits of the Minister’s decision before addressing the issue of procedural unfairness, even though (as the Court rightly acknowledged) a finding on the latter could negate the need to address the former. ⁹

The Divisional Court agreed with Nation Rise, finding that that the Minister’s decision was unreasonable and that the process by which the Minister had reached the decision was procedurally unfair.

Merits of the Minister’s decision

The key questions in the appeal focused on the proper interpretation of section 145.6(2) of the EPA, which provides the Minister with the authority to “confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.” This is the first time that the Court has considered the proper interpretation of this section of the EPA.

The Court found that the reference to “the matter in appeal”, when read in the context of the entire section, requires the Minister to deal only with the matters in appeal raised by the party bringing the appeal.¹⁰ The Court found that the Minister unreasonably concluded that he had the authority to add new issues – namely the issue of bat maternity colonies – on the appeal.¹¹

The Minister stated in his decision that he chose to exercise precaution in determining the seriousness of the harm to bats and determining whether it was reversible. The Court found this to be the wrong legal test. The Minister was required to determine whether the ERT had erred in finding that the test of serious and irreversible harm was met – a test that requires a finding that a project “will” cause both serious and irreversible harm to bats (not that it may, on a precautionary approach, cause such harm).¹² The Minister was also unreasonable in his failure to consider the mitigation efforts that Nation Rise had proposed and whether they could reverse any of the alleged harm to bats.¹³ Further, the Court found that the Minister had made factual conclusions that were not supported by the evidence in the record and ignored other evidence.¹⁴

Procedural unfairness of the Minister’s decision

In addition to challenging the reasonableness of the merits of the Minister’s decision, Nation Rise argued that there had been a denial of procedural fairness in that the Minister failed to notify the parties that the issue of bat maternity colonies would be an issue on appeal, and failed to provide a separate hearing with respect to the appropriate remedy after a decision on the merits was issued.¹⁵

Nation Rise also argued that the Minister’s decision gave rise to a reasonable apprehension of bias, but this issue was ultimately not addressed by the Divisional Court given its findings of procedural unfairness on the other two issues.¹⁶

Notably, the Divisional Court’s analysis includes a confirmation that the framework set out in Vavilov¹⁷ (a recent Supreme Court of Canada case clarifying key aspects of administrative law) includes the application of a “correctness” standard of review to questions of procedural fairness.¹⁸ This means that a court will apply little or no deference to the procedural aspects of the decision under review.

In finding that there was a denial of procedural fairness in the Minister’s failure to properly notify the parties that bat maternity colonies would be an issue considered on appeal, the Divisional Court applied previously established administrative law factors¹⁹ to conclude that the Minister’s duty of fairness was more than minimal and “at least included the obligation to give the parties meaningful notice of the significant issues and the opportunity to address those issues”.²⁰ This was particularly the case where “[b]at maternity colonies turned out to be the most significant issue in the appeal”²¹.

In also finding there was a denial of procedural fairness when the Minister failed to provide Nation Rise with a separate opportunity to address remedy after a decision of the merits was made²², the Divisional Court concluded that in the context of an appeal under the EPA parties are not capable of providing meaningful submissions on remedy prior to obtaining a decision on the merits.²³ In so doing, the Divisional Court rejected the argument that different levels of procedural fairness apply to an ERT appeal versus a ministerial appeal.²⁴

The Divisional Court concluded by finding that this was one of those exceptional instances where there would be no utility in referring the matter back to the Minister for reconsideration.²⁵ The Divisional Court noted that an outcome of a further appeal to the Minister would be “inevitable” in that the only basis on which the Minister said he revoked the REA was his finding concerning bat maternity colonies.²⁶ The Divisional Court also noted the regulatory risks to Nation Rise of any further delay in the completion of the project.²⁷

Conclusions and Next Steps

The Divisional Court’s decision in Nation Rise Wind Farm is significant as it is the first time that the Court has considered the proper interpretation of section 145.6(2) of the EPA and the scope of the Minister’s ability to consider a REA appeal “in the public interest”. The Court clearly found that the “public interest” consideration arises only in respect of the particular matter being appealed and rejected the argument that the section provides the Minister with a broad policy role in reviewing a decision of the ERT.²⁸

The Ontario government has stated that it is carefully considering this decision and its next steps. Stay tuned – we will be watching to see if the Nation Rise Wind Farm saga continues with a further appeal to the Ontario Court of Appeal.

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Footnotes

1. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks, 2020 ONSC 2984 (CanLII) (“Nation Rise Wind Farm“)

2. Section 47.5 of the EPA.

3. Section 142.1(3) of the EPA.

4. Section 145.2.1(2) of the EPA.

5. Section 145.6(2) of the EPA.

6. Nation Rise Wind Farm, para. 33.

7. Nation Rise Wind Farm, para. 34.

8. Nation Rise Wind Farm, para. 39.

9. Nation Rise Wind Farm, paras. 52 to 53.

10. Nation Rise Wind Farm, para. 63.

11. Nation Rise Wind Farm, para. 91.

12. Nation Rise Wind Farm, paras. 98 and 99.

13. Nation Rise Wind Farm, para. 101.

14. Nation Rise Wind Farm, para. 119.

15. Nation Rise Wind Farm, para. 50.

16. Nation Rise Wind Farm, para. 155.

17. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

18. Nation Rise Wind Farm, para. 123.

19. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

20. Nation Rise Wind Farm, paras. 128 to 135.

21. Nation Rise Wind Farm, para. 137.

22. Nation Rise Wind Farm, para. 154

23. Nation Rise Wind Farm, paras. 143 and 153.

24. Nation Rise Wind Farm, para. 144.

25. Nation Rise Wind Farm, para. 158.

26. Nation Rise Wind Farm, para. 161.

27. Nation Rise Wind Farm, para. 162.

28. Nation Rise Wind Farm, paras. 77 and 78.

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Originally published May 19, 2020

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The coronavirus pandemic is boosting the big tech transformation to warp speed

The coronavirus pandemic has sped up changes that were already happening across society, from remote learning and work to e-health, supply chains and logistics, policing, welfare and beyond. Big tech companies have not hesitated to make the most of the crisis.

In New York for example, former Google chief executive Eric Schmidt is leading a panel tasked with transforming the city after the pandemic, “focused on telehealth, remote learning, and broadband”. Microsoft founder Bill Gates has also been called in, to help create “a smarter education system”.

The government, health, education and defence sectors have long been prime targets for “digital disruption”. The American business expert Scott Galloway and others have argued they are irresistible pools of demand for the big tech firms.

As author and activist Naomi Klein writes, changes in these and other areas of our lives are about to see “a warp-speed acceleration”.

All these transformations will follow a similar model: using automated platforms to gather and analyse data via online surveillance, then using it to predict and intervene in human behaviour.

The control revolution

The changes now under way are the latest phase of a socio-technical transformation that sociologist James Beniger, writing in the 1980s, called a “control revolution”. This revolution began with the use of electronic systems for information gathering and communication to facilitate mass production and distribution of goods in the 19th century.

After World War II the revolution accelerated as governments and industry began to embrace cybernetics, the scientific study of control and communication. Even before COVID-19, we were already in the “reflexive phase” of the control revolution, in which big data and predictive technologies have been turned to the goal of automating human behaviour.

The next phase is what we might call the “uberisation of everything”: replacing existing institutions and processes of government with computational code, in the same way Uber replaced government-regulated taxi systems with a smartphone app.

Information economics

Beginning in the 1940s, the work of information theory pioneer Claude Shannon had a deep effect on economists, who saw analogies between signals in electrical circuits and many systems in society. Chief among these new information economists was Leonid Hurwicz, winner of a 2007 Nobel Prize for his work on “mechanism design theory”.

Information theorist Claude Shannon also conducted early experiments in artificial intelligence, including the creation of a maze-solving mechanical mouse. Bell Labs

 

Economists have pursued analogies between human and mechanical systems ever since, in part because they lend themselves to modelling, calculation and prediction.

These analogies helped usher in a new economic orthodoxy formed around the ideas of F.A. Hayek, who believed the problem of allocating resources in society was best understood in terms of information processing.

By the 1960s, Hayek had come to view thinking individuals as almost superfluous to the operation of the economy. A better way to allocate resources was to leave decisions to “the market”, which he saw as an omniscient information processor.

Putting information-processing first turned economics on its head. The economic historians Philip Mirowski and Edward Nik-Khah argue economists moved from “ensuring markets give people what they want” to insisting they can make markets produce “any desired outcome regardless of what people want”.

By the 1990s this orthodoxy was triumphant across much of the world. By the late 2000s it was so deeply enmeshed that even the global financial crisis – a market failure of catastrophic proportions – could not dislodge it.

Market society

This orthodoxy holds that if information markets make for efficient resource allocation, it makes sense to put them in charge. We’ve seen many kinds of decisions turned over to automated data-driven markets, designed as auctions.

Online advertising illustrates how this works. First, the data generated by each visitor to a page is gathered, analysed and categorised, with each category acquiring a predictive probability of a given behaviour: buying a given product or service.

Then an automated auction occurs at speed as a web page is loading, matching these behavioural probabilities with clients’ products and services. The goal is to “nudge” the user’s behaviour. As Douglas Rushkoff explains, someone in a category that is 80% likely to do a certain thing might be manipulated up to 85% or 90% if they are shown the right ad.

…The algorithmic market, left to its optimisation function, may well eventually come to see obscurity an act of economic terrorism. Such an approach cannot form the basis of institutional authority in a democracy. It’s time to address the real implications of digital technology.

SOURCE

The Agenda: Will the European Union survive COVID-19?

Author and international-relations expert Claire Berlinsk joins Steve Paikin to discuss the post-pandemic future of the European Union.

American author and international relations expert Claire Berlinski observes the European political scene from her home in Paris. She joins Steve Paikin to discuss whether the European Union, already in a precarious state, will crumble under the pressure of the COVID-19 pandemic.

SOURCE

Plunging solar energy prices spell bright future for clean electricity

Solar energy has fallen in cost faster than experts predicted. How did electricity from photovoltaic panels get so cheap?

The plummeting cost of turning sunlight into electricity is beating forecasts by decades, speeding the transition toward a clean energy system.

Solar prices have sunk low enough to make photovoltaics the cheapest source of electricity in most of the world — undercutting fossil fuels in price even before counting costs like air pollution and climate change. Averaging about $0.05/kWh, the cost of generating solar electricity has reached lows that six years ago the International Energy Agency did not expect to come until the middle of the century.

When Jenny Chase started working on solar energy in 2006, her job title was head of “improbable technologies” — and she thought solar could only ever provide 1% of the world’s electricity mix. “Now, it’s already gone north of 2%,” said Chase, a solar analyst at energy consultancy BloombergNEF.

The price of renewables like solar matters for climate change. The energy sector is responsible for about three-quarters of global greenhouse gas emissions — mainly from burning coal, oil and gas — and governments must rapidly decarbonize their electricity grids to meet targets that keep global warming well below 2 degrees Celsius (3.6 degrees Fahrenheit).

Forecasters have underestimated the rate at which solar capacity would grow

Coal, which has long been considered the cheapest way of generating electricity, is now struggling to compete with energy from sunlight. The competition has grown so fierce that developers risk wasting more than $600 billion (€546 billion) through planned coal projects, according to analysis published in March by think tank Carbon Tracker Initiative.

Within a decade, the authors predict, it will be cheaper everywhere to shut down existing coal-fired plants and build new solar and wind plants in their place. That could shift the energy mix in coal-hungry countries like the US with governments hostile to efforts to halt climate change.

Cheap solar energy has now become a “no-regrets” solution, said Marcelo Mena-Carrasco, a Chilean former environment minister. “It doesn’t matter what your presidents think, it’s the market that’s doing the talking.”

Burning coal carries hidden costs like air pollution and climate change

Germany’s new Datteln 4 coal-fired power station is likely to be the country’s last

Where is solar energy cheapest?

The cheapest solar energy deal in the world was signed last month by Abu Dhabi at $0.0135/kWh, lower than record-breaking deals set earlier this year by Dubai and then Qatar. Analysts say that utilities in these countries benefit from free land and grid connections that lower prices beyond the true cost.

In other regions — even sunny ones — barriers to finance hold back expansion.

In India, where the government is pushing to revive a faltering coal industry, solar developers pay several times more interest on debt than in the Middle East, said Vibhuti Garg, senior energy specialist at the International Institute for Sustainable Development.

Across Africa, where energy demand is projected to soar as populations and living standards rise, difficulties securing loans have stalled a potentially lucrative solar boom. There are just 5 gigawatts of solar photovoltaic panels installed on the continent — less than a single country like the UK, which receives far fewer hours of sunshine.

“We’re talking about a geography that is incredibly blessed with renewable energy,” said Mohamed Adow, director of Power Shift Africa, an energy think tank. “What we need now is for our leaders, particularly in Africa, to put everything in place to allow us to harness and take advantage of the renewable energy revolution.”

China has installed more solar capacity than any other country in the world

African countries have abundant sunlight but limited access to cheap loans

How did solar energy become so cheap?

The first solar photovoltaic cells were invented by researchers in the US in 1954, brought to markets through subsidies in Germany in the early 2000s, and made competitively cheap on a large scale in China after that. A study published in the journal Energy Policy in 2018 found that 60% of the fall in prices between 1980 and 2012 was because of government policies that stimulated market growth, like feed-in tariffs that pay consumers for unused energy they supply to the grid.

In Germany, which has the most installed solar power per person, such policies triggered investments that, in turn, led to rapid innovations, said David Wedepohl of German solar lobby group BSW. It created incentives for manufacturers to make solar panels and build new factories and machines.

Each time solar capacity has doubled, the total price of solar energy has fallen by about 30%. Analysts call this relationship a learning curve. The more solar plants are deployed, the more the technology comes down in price — though the gains flatten out over time.

Germany’s demand for solar power “not only installed a lot of solar, but it catalyzed the learning curve,” said Gregory Nemet, a professor at the University of Wisconsin-Madison who has written a book on how solar energy became cheap. In China, where most of the world’s solar panels are now made, production processes were refined further to bring prices down to levels that compete with coal.

Electric cars could help fluctuating energy manage supply

What is the future of solar energy?

In sunny parts of the world, average solar prices are on track to hit $0.01/kWh by 2035, according to analysis by clean energy advocate Ramez Naam in May. “In a purely open market, these incredibly low prices would drive the world’s remaining coal plants into bankruptcy, and steal some of the most profitable operating hours even from cheap natural gas plants,” he wrote.

But other analysts are less optimistic, questioning whether the learning rate can be applied to the total cost of solar or just the capital costs. Solar price predictions in sunny countries in the next couple of decades range from below $0.01/kWh to $0.025/kWh, which is still well below the cost of running existing coal plants.

Electricity grids must also fix problems of intermittency, said Auke Hoekstra, an electric vehicle researcher at Eindhoven University of Technology. Because skies are darker at night and in the winter, the attractiveness of solar depends on how well an electricity grid can manage demand and store energy.

The price of solar power depends on sunlight, financing and government support

What’s more, as renewable energy dominates grids, it lowers electricity prices while running, which erodes revenues for suppliers. This could offset gains in technology costs if better storage or demand solutions are not found, according to a new study published in the journal Renewable Energy.

Still, progress in these fields is also accelerating. Battery technologies, for instance, are making similarly rapid progress to solar, said Nemet, and electric vehicles could be charged at night as a way of spreading out demand. Access to cheap, abundant solar energy “gives us a tool that we didn’t have in the past.”

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Canada can’t afford to put the climate crisis on the back burner

The climate crisis has not disappeared during the COVID-19 pandemic. Photo by Shutterstock

During his re-election campaign last fall, Prime Minister Justin Trudeau promised to legislate a target to reduce Canada’s emissions to net zero by 2050 and to surpass Canada’s existing emissions target. Recently, however, federal Environment Minister Jonathan Wilkinson stated that the implementation of Canada’s new climate targets would likely be delayed due to the COVID-19 pandemic.

This isn’t the first time the Liberal government talked a big climate game and then failed to deliver. Following his election in 2015, Prime Minister Trudeau proclaimed to the world at the 2015 UN Climate Summit: “Canada is back, my friends.”

While the Liberal’s Pan-Canadian Framework and its accompanying measures were a marked increase from previous national climate efforts, Canada’s total greenhouse gas emissions have continued to increase during the Trudeau tenure, growing a total of nine million tonnes in three years, from 720 Mt Co2eq in 2015 to 729 Mt Co2eq by 2018.

Canada’s perpetual failure to reduce its emissions impedes global mitigation efforts. Canada is the world’s tenth highest-emitting state. Even amongst G20 nations, Canada’s per capita emissions are 2.5 times above average.

We have been setting and failing to meet emissions reduction targets for nearly three decades, while at the same time allowing our national emissions to reach a net increase by 117 million tonnes of carbon dioxide equivalent.

The pandemic is not an excuse to ignore climate obligations

The COVID-19 pandemic has dramatically altered our ways of living over the last few months. Shutdowns resulting from the pandemic may bring about a short-term global emissions reduction. A study published this month in the journal Nature Climate Change predicts that global emissions this year compared to last year will fall between 4.2 and 7.5 per cent.

If this forecast proves accurate, the global emissions reduction may even temporarily reach the rate-of-decrease demanded by the UN Environmental Programme, which calls for a 7.6 per cent reduction in global emissions every year between 2020 and 2030 in order to limit warming to 1.5 C.

If largely halting the global economy only just brings about the level of emissions reduction needed, how do we expect to meet such a target post-pandemic?

While responding to the pandemic is of utmost importance, Canada and other wealthy nations must not use this pandemic as an excuse to shirk their international climate obligations. Signatories to the Paris Agreement are required to submit a national emissions reduction plan this year to the UN Framework Convention on Climate Change, building off previously communicated plans and reflecting the greatest possible ambition.

As of May 26, only ten nations, who collectively represent less than 3 percent of global emissions, had submitted their 2020 plans. If high-emitting states, such as Canada, do not commit to heightened ambition, it is unlikely that other states that are less responsible for the emissions in our planet’s atmosphere will do so either. Canada’s efforts to-date have led us to a near-bottom ranking by the Climate Change Performance Index, which ranks the climate action of high-emitting countries.

“If largely halting the global economy only just brings about the level of emissions reduction needed, how do we expect to meet such a target post-pandemic?”

Canada can and must do better.

We must not forget that the climate crisis has not disappeared during the COVID-19 pandemic. A study published this month by researchers at the American National Oceanic and Atmospheric Administration and the University of Wisconsin found that extreme weather events, such as hurricanes, typhoons and cyclones, are becoming stronger decade after decade.

Over the May long weekend, Typhoon Vongfong displaced nearly 200,000 people in the Phillippines. This past week, Cyclone Amphan led more than two million people to evacuate their homes in Bangladesh, while another 500,000 people in eastern India were relocated.

Here at home, Canada continues to warm at double the global average, with Northern Canada warming at nearly three times the global average.

For vulnerable communities around the world, climate change is not a distant emergency for which a response can be delayed until a hypothetical, politically convenient future. It is a present crisis with pernicious impacts that have already radically altered the way of life. This crisis warrants a dynamic political response.

Canada’s lack of climate transparency is an issue that long predates the pandemic. This past February, President and CEO of Teck Resources, Don Lindsay, wrote to Minister Wilkinson to explain why Teck chose to withdraw its $1.13 billion Frontier Project from regulatory review, stating that Canada did not have a “framework in place that reconciles resource development and climate change.” Such uncertainty may also help explain Kinder Morgan’s 2018 sale of the Trans Mountain pipeline and its expansion project.

Minister Wilkinson is not alone in thinking that the federal government ought to focus primarily on the pandemic and that efforts on other commitments can be delayed. However, the pandemic should not be a scapegoat to justify further climate inaction.

The pandemic has shown us that our actions do make a difference, and this season of change brought about by the pandemic presents a well-timed opportunity for Canada to build back better and become the climate leader it claims to be on the world stage.

Now is the time for bold leadership. In responding to the COVID-19 pandemic, Canada must develop a clean recovery plan that works in harmony with an ambitious climate agenda. Calls for green economic recovery plans have also been made by the International Monetary Fund and a group of more than 150 companies collectively worth more than $2.4 trillion.

Legislating stronger emissions targets and submitting these targets to the UN Framework Convention on Climate Change is pivotal in formalizing Canada’s climate commitment and showing the world that Canada is ready to do its part to limit further global warming — even amidst a pandemic.

SOURCE

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Christie McLeod

@ChristieAMcLeod

Union fires back after Ford says long-term care inspectors refused to go into infected homes

Ontario Premier Doug Ford, with Long-Term Care Minister Merrilee Fullerton on his left, said unionized long-term care inspectors had been doing their job over the phone instead of in-person. Photo from Premier of Ontario on YouTube

Premier Doug Ford opened a fresh line of attack against unions Thursday, blaming unionized inspectors for a failure to control the COVID-19 pandemic in long-term care homes.

Ford said the inspectors refused to enter long-term care homes that were stricken with COVID-19, instead examining facilities over the phone. The Ontario Public Service Employees Union (OPSEU), which represents the inspectors, swiftly fired back that the premier was misinformed.

“I’ve been taking bullets for the union every day up here,” Ford said at his daily COVID-19 briefing. “They were doing telephone calls for inspections. The truth of the matter is, they were refusing to go into these homes.”

The union’s president, Smokey Thomas, told National Observer the premier had been “given wrong information.”

And in a statement later Thursday afternoon, Thomas said bureaucrats — not the union — had told inspectors not to enter the infected homes. Not a single inspector refused to work, and 60 of 164 inspectors volunteered to go into hard-hit facilities, Thomas added.

Without providing names, Thomas accused “ministerial managers” in the health and long-term care ministries of “purposefully misleading the premier to cover up their own incompetence.” He also said the union wanted to ensure workers had adequate personal protective equipment (PPE) before they went in.

“We were concerned that inspectors could have potentially, and unknowingly, spread COVID from home to home,” the statement said.

“Imagine for a second the terrible tragedy that could have happened had the inspectors gone into the homes without proper safeguards, especially given what we now know about asymptomatic and pre-symptomatic transmission. The death toll could have been even worse than it already is.

“The premier says he is tired of taking bullets for the union, but in this case, our prudence helped him dodge one.”

In response, Ford doubled down on his statements. “The premier’s comments stand,” said a spokesperson for his office, Ivana Yelich, in an email.

Ontario’s long-term care homes have been ravaged by COVID-19. The virus disproportionately kills elderly patients and those with pre-existing conditions, a vulnerability that was worsened in the homes by long-standing problems with underfunding and low staffing levels.

After Ontario Premier Doug Ford accused inspectors of doing their job by phone instead of in-person, the Ontario Public Service Employees Union fired back, saying Ford was misinformed. #onpoli

On April 22, Ford called for military assistance in five of the province’s hardest-hit homes, and troops were deployed in early May. Earlier this week, a Canadian Armed Forces report revealed disturbing conditions inside the facilities, alleging abuse, neglect, insect infestations, a lack of proper infection control and one choking incident that may have led to a patient’s death. The province announced it would take over four of the five homes mentioned in the report Wednesday, plus a fifth home that wasn’t included.

It wasn’t immediately clear when inspectors may have allegedly stopped entering the homes, which facilities may have gone without in-person inspections and how long that went on. Ford said Thursday that inspectors are now back in the homes, and credited Thomas for making that happen.

Ford also incorrectly accused the media of knowing about the problem, but not reporting it. In fact, CBC News first reported on May 7 that inspections were taking place over the phone inside one Toronto long-term care facility. Thursday was the first time Ford, who has given daily pandemic press conferences since March, discussed the issue publicly.

Canadian Armed Forces personnel were deployed to Quebec long-term care homes in April, and to Ontario homes in early May. Photo from Canadian Armed Forces/Twitter

Union wrote letter sounding alarms about PPE, staffing levels

Earlier Thursday, the premier’s office released an April 22 letter from Thomas to Ford and Long-Term Care Minister Merrilee Fullerton. In it, Thomas asks Ford and Fullerton not to mandate in-person inspections, and said that the problems in long-term care had already been identified. (Advocates have sounded alarms on the issue for decades, and a public inquiry was held in 2019.)

The letter was written the same day Ford requested military aid. In his statement Thursday, Thomas said Ford and Fullerton did not send him a reply.

“Thanks to the low staffing levels and the inherent risks to multiple parties from such inspections, this plan is not only ill-advised, but not necessary,” Thomas wrote in the letter. “In-person inspections will not provide us with any more information than we already have.”

In the letter, Thomas called for more inspection staff to be hired, and that 164 inspectors were “overworked and frustrated” trying to assess conditions at 626 homes. Although Ford said Thursday that the province offered the inspectors PPE, Thomas said in the letter that the workers are not trained infection control specialists, had no experience using the gear and wouldn’t be able to help the way additional nurses could.

“Senior ministry staff have also stated inspectors need to physically see if residents are being treated properly. We already know they are not,” the letter reads. “Senior bureaucrats know it, too. The homes need more staff and equipment. Risking the health of residents and inspectors has zero value right now.”

In his Thursday statement, Thomas said the union made the same observations as the military.

“The premier has a choice,” the statement said. “If he listens to front-line workers through their union, OPSEU, he can get the truth about what is going on in long-term care and what he needs to do to make things right.”

SOURCE

Pandemic leads to moratorium on Ontario’s nuclear re-build programs

Bruce Power workers inspect a low pressure turbine rotor using ultraviolet light and specialized tooling.

In response to the Covid-19 pandemic, on March 25^th Bruce Power suspended work on the re-building of its Unit 6 nuclear reactor. One day later, Ontario Power Generation (OPG) announced that it will not proceed with the re-building of its Unit 3 nuclear reactor at this time.

Bruce Power’s and OPG’s actions provide Premier Ford with the opportunity to reconsider whether it makes sense to continue with the previous Government’s high-cost plan to re-build 10 aging nuclear reactors and to continue to subsidize our electricity rates to the tune of $5.6 billion per year.

By investing in energy efficiency instead we can keep our lights on at less than one-quarter of the price of nuclear power and create good jobs in every community in Ontario.

In New York State, giant utility Consolidated Edison announced on May 18th that it is tripling its energy efficiency budget.  Ontario should too. According to Consolidated Edison’s Chairman and CEO, John McAvoy: “I believe one of the keys to rebuilding our communities and boosting the economy is maintaining our focus on clean energy. We’re building tomorrow’s grid so that it stands up to climate change and so it can integrate renewable energy sources like solar and wind.”

Please email Premier Ford here and tell him you support getting Ontario back to work by launching an energy retrofit program for our homes and businesses that will also lower our electricity bills.

Thank you for making the time.

-Angela Bischoff, Director, Clean Air Alliance

p.s. If the automatic email doesn’t work for you, please send your email to Doug Ford at doug.ford@pc.ola.org and cc: ahorwath-qp@ndp.on.ca , steven@ontarioliberal.ca , mschreiner@ola.org and angela@cleanairalliance.org

Open secret: Sexual abuse haunts children in Indigenous communities

‘You’re hard-pressed to find anybody who doesn’t have personal experience with this,’ says nurse

Caseworker for Public Safety and Solicitor General Victim Services and Crime Prevention Unit, Freda Ens, is using her experience as a sexual assault survivor to raise awareness about the problem in Aboriginal communities. (Jonathan Hayward/Canadian Press)

Freda Ens says she was a baby when her birth mother sold her for a bottle of beer.

The buyer was an unrelated man she would later call “Grandfather.” Her earliest memories include being sexually molested by a number of men in his extended family.

“I don’t ever remember being able to say, ‘No, you can’t do that,’ or, ‘No, I don’t have to do that,”‘ recalled Ens, 59, who grew up in B.C.’s Old Massett Village, a Haida community.

“I would wake up and it would be dark and I wouldn’t know who it was … It could have been an uncle … it could have been another cousin.

“The one I knew was my dad, who went to jail, and then my grandfather.”

Child sexual abuse is a disturbing reality in many of Canada’s First Nations, Métis and Inuit communities, research is beginning to show.

Extensive interviews with social scientists, Indigenous leaders and victims undertaken over the past few months by The Canadian Press show that the prevalence of sexual abuse in some communities is shockingly high. And only now are prominent Indigenous leaders speaking out publicly for the first time about the need for communities to take a hard look.

Painful legacy

It’s a painful legacy connected to almost 120 years of government-sponsored, church-run residential schools, where Aboriginal leaders say many native children were physically and sexually molested by clergy and other staff.

The abused in turn became abusers, creating a cycle of childhood sexual violation that has spread in ever-expanding ripples from one generation to the next.

Within Indigenous society, the knowledge that children are being molested is often an open secret — but one to which few are willing to give voice. Instead, they dance around the words, talking instead about child welfare, bullying, substance abuse, intergenerational trauma and community conflict.

While The Canadian Press has a policy of not identifying the victims of sexual assault, Ens agreed to be identified in this story as part of her ongoing efforts to raise awareness about the problem in Aboriginal communities.

 ‘One of the things we lack in this country is an understanding of the magnitude of the problem and we need to look at better ways of gathering data’– Sen. Murray Sinclair

Community health nurse Shelly Michano, who lives and works in Biigtgong Nishnaabeg First Nation in northwestern Ontario, is on the front lines. She sees the consequences of sexual abuse among some residents, which can manifest as alcohol and drug abuse, chronic illness and suicide.

“I would say as First Nations people, you’re hard-pressed to find anybody who doesn’t have personal experience with this,” said Michano.

“But it’s never, ever quite on the surface. There’s still lots and lots of stigma attached around that. And people don’t necessarily openly speak about it still.”

Removing veil of secrecy

Finally, however, some Aboriginal leaders are beginning to tear away the veil of secrecy, acknowledging that until the cycle of sexual abuse is brought to light, it will continue, threatening the well-being of future generations of Canada’s First Peoples.

“Sexual abuse and incest is amongst our people, there’s no question,” Perry Bellegarde, national chief of the Assembly of First Nations, said in an interview.

“Have the courage to stand up and say: ‘This is an issue and let’s expose this to the light of day’ … that’s the obligation of the community leadership and the communities themselves.”

Sexual violation of children is an ugly fact of life worldwide, crossing all cultural, educational and socio-economic boundaries.

Within Canada’s overall population, research shows one in three girls and one in six boys experience an unwanted sexual act, with 30 to 40 per cent of victims abused by a family member.

But the prevalence of abuse among Indigenous populations is difficult to assess accurately, experts say — in part because of conflicting evidence, and also because the issue is so taboo within communities that it often remains shrouded in silence.

In a 2015 review of studies, published in the American Indian Culture and Research Journal, researchers say child sexual abuse is one of the major challenges facing Indigenous communities across the continent, but data is often contradictory.

“Sometimes, reported incidence rates of CSA are comparable to those found in the general population. Other times, incidence is much higher,” the authors write, concluding that research to determine the actual scope of the problem in Canada “is crucial.”

In a 2014 Statistics Canada report, a higher proportion of Aboriginal people reported experiencing some form of childhood physical and or sexual maltreatment before the age of 15, compared to their non-Aboriginal counterparts. The study also noted it is possible that some of that abuse may have been a direct or indirect impact of residential schools.

In his work as the chairman of the Truth and Reconciliation Commission, which looked at the toll taken on survivors of residential schools, Sen. Murray Sinclair frequently heard gut-wrenching stories about sexual abuse and its devastating long-term effects. But he has no way to know the true extent of the problem.

“There is very little data, people are just not looking at it,” Sinclair said.

“In our calls to action at the TRC, we said one of the things we lack in this country is an understanding of the magnitude of the problem and we need to look at better ways of gathering data so we can develop solutions that are properly focused.”

Links to substance abuse

Intergenerational sexual abuse is one key reason behind widespread substance abuse, a form of self-medication that helps both victims and perpetrators push down their emotional pain and bury their shame, health experts and Aboriginal leaders say.

“If somebody’s going through trauma or addicted to alcohol or drugs, there’s a reason,” said Jason Smallboy, deputy grand chief of the Nishnawbe Aski Nation, an organization representing 49 Indigenous communities in northern Ontario.

“And probably 80 per cent, 90 per cent is related to sexual abuse.”

The abuse has gone beyond residential school survivors, their children and grandchildren, said Sinclair.

“We are looking now at a situation where intergenerational children are abusing each other,” he said. “Where members of street gangs are victimizing young girls, girls are going missing and being hauled into the sex trade in significant numbers.”

The impact of childhood sexual abuse is expected to be a central issue raised when hearings begin early next year for the inquiry into missing and murdered Aboriginal women. An interim report is due in November 2017.

‘It is not OK’

Cindy Blackstock, executive director of First Nations Child and Family Caring Society, says one of the first steps in addressing sexual abuse is acknowledging its existence and saying it is not OK. (Sean Kilpatrick/Canadian Press)

 

“Throughout the (pre-inquiry) hearings on missing and murdered Indigenous women and girls, we certainly found the incidents of child abuse and the association of child abuse was very, very frequent, in both the descriptions of the victims and in the perpetrators,” said federal Indigenous Affairs Minister Carolyn Bennett.

One of the first steps in addressing sexual abuse is acknowledging its existence and saying it is not OK, said First Nations child advocate Cindy Blackstock.

“We have to make sure that our kids know that elders are the keepers of the traditions and no one in our community, including elders, ever has a right to harm a child,” Blackstock said.

“We have to, as a group, embrace what hurts and we have to say to those young people that ‘We know that’s part of your experience and we are not going to deny it. We know it is there and we want to be there with you to do something about it.”‘

Ens, who knows her memories of abuse are far from unique after nearly three decades of working with victims of crime, said she hopes sharing her experiences will help others scarred by being sexually violated as children.

“My biggest message would be to tell someone, and that it is not your fault,” she said.

“When we don’t talk about it, we are just as guilty as the perpetrator. We are covering it up.”

SOURCE

TAKE ACTION! These principles unite people, organizations, communities and movements by calling for changes

It’s time for a political revolution. Are you ready?

The pandemic has exposed and entrenched the deep inequities of our existing system and opened a pathway to leave these injustices behind.

We can’t go back to normal; we must find a better way. It’s not just you and me who think this – this perspective has majority support. Seventy-three per cent of Canadians expect a “broad transformation of society.” But how do we make it happen?

We need a just recovery for communities that doesn’t continue the injustices of the past and present. Will you join us?

Add your voice!

The Council of Canadians, in coalition with likeminded organizations, has been hard at work crafting a collective set of principles for a just recovery to address the crises we’re in by changing the system.

These principles unite people, organizations, communities and movements by calling for changes to:

1. 1. 1. Put people’s health and well-being first, no exceptions.
      2. Strengthen the social safety net and provide relief directly to people.
      3. Prioritize the needs of workers and communities.
      4. Build resilience to prevent future crises.
      5. Build solidarity and equity across communities, generations and borders.
      6. Uphold Indigenous rights and work in partnership with Indigenous Peoples.

To transform these principles into action, we need to organize, and for that, I need your help.

We are at a historic crossroads. What was once politically “impossible” is now on the table. In some cases, it’s already happened. We’ve made progress with free transit, expanded income supports, and the conversion of manufacturing capacity to protective health equipment. Universal public housing, public ownership of privatized sectors of the economy, and a rapid, just transition to a low carbon economy are possible if we fight for them.

Despite the continued spread of COVID-19, there are already calls for reopening the economy with austerity, privatization, expanded fossil fuel infrastructure and more. These aren’t solutions to the crises – they’re a central part of the problem, and the impacts are disproportionately felt by people and communities made vulnerable by our unjust systems.

We need a just recovery for communities. While the 1% look to profit from these crises, you and I can work to protect the rest of us. And we need to build on the progress that has been made over the past two months – when the crises have passed, this progress must be permanent.

The Council of Canadians is supporting community-led organizing efforts from coast-to-coast-to-coast to build a just recovery and a Green New Deal from the ground up.

Will you add your voice to the growing demand for a just recovery and a Green New Deal?

We won’t hoard toilet paper and flour – don’t let the 1% hoard well-being.

With hope and resolve,

Dylan Penner
Climate and Social Justice Campaigner

Add your voice!

 

TAKE ACTION: Tell Your MP What Canadians really want to see

 

Last week we released the results of a survey asking Canadians what they wanted to see from a post-COVID19 economic recovery plan; the results were astounding:

For example, 3 in 4 Canadians strongly support implementing a “wealth tax” of Canada’s wealthiest people to help pay for the recovery of a post-COVID economy. Read the full survey results.

And so we’re asking you to take action: send your MP a letter.

It’s time to demand your local leaders to listen to the majority of Canadians and deliver a fair, inclusive, and compassionate COVID-19 recovery plan where no one is left behind.

We’ve already drafted a letter you can send immediately here on our website, but you can also customize the letter to reflect the points that are important to you:

You have the power to influence what Canada’s future economic recovery looks like. Click here to send your letter now.

After you’ve sent your letter please share this action with your friends and colleagues and ask them to do the same, send the letter and share with their networks.

 

Together, we have power and influence!

Cheers, Josh Bizjak, Director of Development, Broadbent Institute