2013 ONSC 6935, 2013 ONSC 6935

CITATION : Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935 DIVISIONAL COURT FILE NO.: 528/10 DATE: 20131112 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: ) ) ADA LOCKRIDGE and RONALD PLAIN Applicants - and - DIRECTOR, MINISTRY OF THE ENVIRONMENT, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT, THE ATTORNEY GENERAL OF ONTARIO and SUNCOR ENERGY PRODUCTS INC.

Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Justin Duncan, Lara Tessaro, Margot Venton , for the Applicants, Moving Party Jack Coop, Jennifer Fairfax, Lindsay Rauccio , for the Respondent, Suncor Energy Products Inc.

Robin Basu, Matthew Horner, Lise Favreau, Kristin Smith , for the Respondent, Director, Ministry of the Environment, Her Majesty the Queen in right of Ontario, as represented by the Minister of the Environment, the Attorney General of Ontario ) ) ) HEARD: September 9, 2013 Harvison Young J. [ 1 ] The applicants, Ada Lockridge and Ronald Plain, brought a motion seeking an order granting them leave to file seven reply affidavits, which I heard on September 9, 2013. [ 2 ] Initially, there appeared to be two issues. The first issue was whether, in light of the litigation

schedule in place pursuant to my order dated November 23, 2012, the applicants were entitled to file reply affidavits at all. The second issue was, assuming that the answer to the first issue is “yes”, whether the affidavits filed constituted proper reply. [ 3 ] With respect to the first issue, the litigation

schedule contemplated that cross-examination would be completed by September 30, 2013. In fact, it has not yet begun. In any event, the parties now agree that my order dated November 23, 2012, did not preclude the filing of otherwise proper reply evidence and I find that that order did not do so.

Accordingly, the only issue is whether the reply affidavit evidence filed is proper. [ 4 ] The respondents Suncor Energy Products Inc. (“Suncor”) and The Director, Ministry of the Environment, Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Environment, the Attorney General of Ontario (the “Director”) raise a number of objections to all or many paragraphs in each of the seven affidavits that the applicants seek to file.

The grounds the respondents raise are set out at para. 1 of Suncor’s factum: The vast majority of the Applicants’ proposed reply evidence is not proper reply and should not be permitted for one or more of the following reasons: (

a) It consists of confirmatory or clarifying evidence which seeks to expand upon (or quote verbatim from) points already made in the Application Record; (

b) It relies upon documents that were already in existence and available to the Applicants prior to tendering their initial evidence in April 2011, and ought to have been submitted then. In fact, the Applicants, themselves, admit that they had some of these documents in their possession as early as February 2010; (

c) It relies upon additional studies and publications, all but one or potentially two of which predate the Applicants’ initial expert reports sworn in April 2011; (

d) It is not responsive to the Respondents’ evidence (to which it purports to reply), nor is it responsive or relevant to the issues on the application; (

e) It raises new issues, not previously in issue and not raised by the Respondents; (

f) It seeks to re-introduce evidence that was already struck out by this Honourable Court as inadmissible on an earlier preliminary motion; (

g) It contains improper speculation; and, (

h) The expert reports are longer than, if not the same or similar length as, their original reports. This is a tell-tale sign that something is amiss. [ 5 ] This motion is reminiscent of the motion brought by the respondents in 2012 to strike the application or, in the alternative, to strike the affidavits: see Lockridge v. Ontario (Director, Ministry of the Environment) , 2012 ONSC 2316 , 350 D.L.R. (4th) 720, in which the respondents took issue with the admissibility of hundreds of paragraphs of affidavit evidence submitted by the applicants.

There, as here, I was grateful for the cooperation of counsel in submitting a chart that sets out each paragraph to which the respondents object and indicates the basis of objection. I note that the grounds of objection raised by the respondents were generally consistent as among themselves. I am particularly grateful for the consolidated chart that shows each paragraph with the objections of all respondents on the same chart.

The chart submitted is 54 pages in length. [ 6 ] At the beginning of the hearing on this motion, I proposed, and counsel agreed, that I would set out the general principles to be applied in considering whether the reply evidence was proper, and then indicate very briefly my ruling on each paragraph objected to on the chart. Accordingly, these reasons will consist of a

summary of the principles I apply to the determinations, and the chart containing the rulings with respect to each paragraph will be annexed as Appendix A. The Parties’ Submissions on the Applicable Standard

[7] The applicants submit that the court should apply a “liberal and flexible approach”, consistent with the rule that any application party can submit affidavits at any timeprior to commencing cross-examinations: see Rules of Civil Procedure, r. 1.04, 37 to 39, and 68. In support, they cite Friends of Lansdowne v. Ottawa (City), 2011 ONSC 1015, andMelrose Homes Ltd. v. Donald Construction Ltd., [2000] O.J. No. 5275 (S.C.). Friends of Lansdowne involved an application to quash certain by-laws.

Master MacLeod noted, atparas. 55 to 56, that “ordinarily either party is at liberty to serve affidavits up until cross-examinations commence,” but when a case management order sets out the timing and orderfor each side’s affidavits, the parties are intended to proceed in a manner similar to a trial. As such, reply evidence should be limited to proper reply. That is it should respond to evidence raised by the otherparty and it should not be evidence that ought to have been submitted in the first place.

Though that was clearly the intent of the [case management] order [issued there], proceduralorders are intended to bring order to the proceedings and ensure fairness. They are not intended to be rigidly applied so as to suppress evidence that may be important. Striking theaffidavits is a simplistic response. [Footnotes omitted.] [8] In Melrose Homes, the applicant filed a reply affidavit beyond the time permitted in the case management order but before cross-examinations had begun. Master Polikaconsidered only whether the applicant had engaged in improper case-splitting.

He declined to exclude the affidavit because, at para. 16, the affidavit responded to new evidenceintroduced by the respondent’s deponent and the respondent had the ability to cross-examine the affiant. [9] The applicants submit that their motion should be allowed because (

a) the evidence will assist the court by ensuring a complete record; (

b) there can be no prejudice tothe respondents because cross-examinations have not yet begun; and (

c) the supplementary affidavits constitute true reply, i.e., they introduce no new issues, and respond only tomatters raised by the respondents or “to new evidence not previously available to the Applicants”. [10] The Director’s position as to the applicable standard was not entirely clear. The Director states that the four elements in Merck-Frosst - Schering Pharma GP v. Canada(Minister of Health), 2009 FC 914, 78 C.P.R. (4th) 100, constitute the governing test for determining whether to allow reply evidence. That test looks to whether the reply evidence(

a) serves the interests of justice; (

b) assists the court in making its determination on the merits; (

c) would cause substantial or serious prejudice to the other side; and (

d) wasavailable and/or could not have been anticipated as being relevant at an earlier date: Merck-Frosst, at para. 10. [11] The Director continues to state that a stricter standard than the one proposed by the applicants should apply, and that the strict standard should reflect the scope-limitingprinciples found in my reasons in Lockridge, supra. The Director does not explicitly endorse the Merck-Frosst test as the stricter standard it seeks, and its analysis does not addressall of the components of that test.

On the other hand, the applicants’ arguments do address each of the test’s elements, albeit without stating they are doing so. [12] Suncor proposes the strictest test of the three parties on the grounds that the application is already complex and lengthy, a judicial review application should be dealt withexpeditiously and the court has established a timetable and case management order.

It submits that the court’s sole inquiry should be whether the applicants’ evidence is “properreply” as that term is understood in the context of a trial, emphasizing that proper reply evidence is evidence that is responsive to a new issue raised by the respondent that theapplicant had no prior opportunity to address and which the applicant could not reasonably have anticipated. [13] To that end, Suncor’s submissions focus almost exclusively on what it sees as the improper case-splitting and non-responsive features of the applicants’ reply evidence.Suncor does not address the Merck-Frosst test from the Director’s factum.

Likewise, Suncor cites the above-quoted language in Friends of Lansdowne but does not reflect MasterMacLeod’s caution that the goal of applying a stricter standard when there is a case management order is to bring order and ensure fairness, and not “to suppress evidence that maybe important.” Principles for Adducing Reply Evidence Proper reply in the strictest sense, i.e., at trial [14] It may be most helpful to begin with the strictest principles for adducing reply evidence, namely, those that apply during a trial or similar hearing on the merits.

The rulesare well established: see John Sopinka et al, The Law of Evidence in Canada, 3rd ed. (Toronto, ON: LexisNexis, 2009), at pp. 1165-68. a. Case splitting: Under the rule against case splitting, reply evidence cannot simply confirm the evidence presented in the party’s case in chief. “It is well settled that where thereis a single issue only to be tried, the party beginning must exhaust his evidence in the first instance and may not split his case by first relying on prima facie proof, and when this hasbeen shaken by his adversary, adducing confirmatory evidence”: Allcock Laight & Westwood Ltd. v.

Patten, Bernard and Dynamic Displays Ltd., (ON CA), [1967]1 O.R. 18 (C.A.), at p. 21. b. New issues: The reply evidence cannot introduce any new issues; it must respond only to those matters raised by the defendant:[1] see R. v. Krause, (SCC),[1986] 2 S.C.R. 466, at p. 474. c. Unanticipated need: The replying party can only offer evidence that it could not have anticipated as being relevant when it presented its case in chief: Krause, at p. 474; andHalford v. Seed Hawk Inc., 2003 FCT 141, 24 C.P.R. (4th) 220, at paras. 15-16 (reserving discretion to admit it anyway). d.

New evidence not previously available: On occasion, a party wishes, after the close of its case at trial, to introduce new evidence that was not previously available. This is notstrictly reply evidence, but rather newly-discovered evidence. Sopinka, at p. 1170, states that in civil cases the court’s discretion to permit this should be exercised in light of the broad principles which are the basis for the restriction on reply evidence. These principles are designed to ensure that the defendant knows thecase to be met and that the plaintiff is not permitted to split his or her case.

The rationale for the latter principle is that trials should not be unduly prolonged by creating a need forsurrebuttal. Within these broad parameters, the trial judge has discretion to permit reply evidence when it is the reasonable and proper course to follow. [15] As indicated by Sopinka, these rules are designed to prevent prejudice and unfair surprise to either side and to avoid confusion and unnecessary delay in the presentationof the evidence within the strictures of trial: Krause, at pp. 473-74.

When adhering to the above-stated principles, rebuttal “will be permitted only when it is necessary to insure thatat the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other”: Krause, at p. 474. Adducing reply evidence on an application prior to trial or a hearing on the merits [16] There is less chance of prejudice, unfair surprise, confusion, and undue delay when reply evidence is offered on an application prior to the hearing on the merits thanwhen the parties have already put their case in chief before the decisionmaker.

Indeed, each party’s ability to make full submissions and defence at the determination stage dependson each party receiving a fair (and properly scoped) opportunity to develop the record in advance. Thus, as demonstrated below, the standard for permissible reply evidence is lessstrict when the evidence is introduced well in advance of a hearing on the merits, particularly when cross-examinations have not yet begun. [17] For example, in Mead Johnson Canada v. Ontario (Ministry of Health) (1999), 117 O.A.C. 121 (Div.

Ct.), Sharpe J. considered supplemental affidavits filed by theapplicant on an application for judicial review before cross-examinations had begun. Sharpe J. stated, at para. 7: I would also reject the argument that the impugned material should be struck on the basis that the applicant has improperly split its case. The impugned material is filed in responseto material filed by Abbott which was not named in the initial application but rather, was added as a party respondent on its own motion.

There has been no cross-examination to dateand I fail to see how there is any unfairness or prejudice in permitting the applicant to file this material by way of reply. The situation is plainly distinguishable from that which existsat trial where prejudice may well occur if a party does not put its entire case forward in chief; compare Allcock Laight and Westwood Ltd. v. Patten, Bernard and [Dynamic]Displays Ltd., (ON CA), [1967] 1 O.R. 18 (C.A). [Emphasis added.] Accord Melrose Homes, at para. 16. [18] In Abbott Laboratories v.

Canada (Minister of Health), 2003 FC 1512, at paras. 19 and 21, Heneghan J. expressed a similar view: In my opinion, the strict test characterizing reply evidence in a trial does not necessarily apply in respect of proceedings taken … by way of application…. Abbott here is attempting to impose a technical, legalistic meaning on the words ‘proper proceeding reply evidence’ which is unwarranted. This is an application for judicial review,it is not a trial and the general rules concerning admissibility of evidence do not apply.

[19] Even when the proceeding is an action and not an application, some courts have applied a lower threshold for adducing reply evidence before trial. In Cannon v. Fundsfor Canada Foundation, 2011 ONSC 2960 , Strathy J. (as he then was) allowed the plaintiffs to file an affidavit as a supplement to their motion record on a motion for classcertification, and he gave leave to the defendants to file sur-reply. The plaintiffs had asked the court to apply a more lenient test for reply evidence on a motion than that which existsat trial. Strathy J. stated, at paras. 16 to 18: The point is a fair one.

The rule against case-splitting, in the trial context, is designed to prevent unfairness to the opposite party who has no chance to reply to the “surprise”evidence. In the motions context, the unfairness can be mitigated by giving the disadvantaged party an opportunity to respond, possibly with appropriate time extensions or costsconsequences. That being said, class proceedings are case managed and important motions like certification or

summary judgment are invariably subject to a timetable that requires each party tothink carefully about the evidence it will produce. It can be unfair, inefficient and expensive for one party – whether through inadvertence, lack of foresight or deliberate tactics – tointroduce new and unanticipated evidence at a late stage in the proceedings. Ultimately, it is a balancing exercise, with the goal of ensuring that each party has a fair opportunity to present its case and to respond to the case put forward by the other party. Compare Pollack v.

Advanced Medical Optics, Inc., 2011 ONSC 850, 16 C.P.C. (7th) 316, in which Strathy J. declined to permit reply evidence on a motion for class certification. InPollack, when the plaintiffs submitted the challenged affidavit, the parties were one week away from the certification hearing, had long ago agreed not to conduct cross-examinations and had exchanged evidence only on a limited issue, and the plaintiffs had already submitted reply evidence once before: Pollack, at paras. 6-8, 13.

The challengedaffidavit raised a new issue, was hearsay and improper opinion evidence and was not, by the plaintiffs’ own admission, “reply evidence”: Pollack, at paras. 13, 30-31, 38, 51.Strathy J. ultimately struck the affidavit “without prejudice to the entitlement of the plaintiffs to move, after certification, to amend the common issues, on a proper evidentiarybasis” to include the new issue raised in the struck affidavit: Pollack, at para. 54. [20] As a general rule, the parties to an application may exchange affidavits in any order until cross-examinations begin: see Rule 39.02(2); Friends of Lansdowne, at para. 55. [21] A case management order may restrain this liberty.

Because the case management order is meant to ensure order and fairness to both sides in an otherwise costly andcomplex matter, the parties subject to such an order “are intended to proceed in a manner similar to a trial…. That is it [the reply evidence] should respond to evidence raised by theother party and it should not be evidence that ought to have been submitted in the first place”: Friends of Lansdowne, at para. 56.

The court may engage in a balancing test todetermine whether the reply evidence should be adduced, weighing the need for the orderly exchange of evidence and fairness to the opposing party against the need not to apply therules so rigidly as to exclude important evidence: Friends of Lansdowne, at para. 56. C.f. Cannon, at paras. 16-18. But see Burton v.

Oakville (Town) (2004), (ON SC), 69 O.R. (3d) 771 (S.C.), at para. 23 (striking a late-filed reply affidavit in a case-managed application to quash election results because the affidavit raised a new issue,contained inadmissible evidence, was not helpful to the court, and given the special need in election result cases to proceed expeditiously and orderly). [22] However, the present case is not one in which it may fairly be claimed that the filing of the reply evidence flies in the face of the case management order.

As notedabove, my order of November 23, 2012, did not preclude the filing of otherwise proper reply evidence and was silent on the

schedule for doing so. [23] Once cross-examinations begin, the standard for reply evidence is higher but still not the same as at trial. Rule 39.02(2) of the Rules of Civil Procedure requires that, oncea party has begun to cross-examine the opposing party’s affiants, that party must obtain leave of the court or consent before adducing any additional affidavits. This rule applies toapplications for judicial review as well as standard applications: see Arfanis v. University of Ottawa (2004), 7 C.P.C. (6th) 371 (Ont.

S.C.). [24] When deciding whether to grant leave under Rule 39.02(2), the court must ask the following: 1) Is the evidence relevant? 2) Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time? 3) Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment? 4) Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset? First Capital Reality Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div.

Ct.), at para. 13. “A flexible, contextual approach is to be taken …, having regard tothe overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute”: ibid., atpara. 14. [25] Here, of course, cross-examinations have not yet begun. [26] In the Federal Court, an applicant must seek leave of the court to file a reply or supplemental affidavit in every application: Federal Court Rules, r. 312(a).

This is astricter rule than the rule in Ontario because it applies without regard to whether cross-examinations have begun. However, the Federal Court’s test for granting leave reflectsprinciples similar to those found in the Ontario jurisprudence. [27] Although Merck-Frosst, which the Director cited, applied a four-factor test, the Federal Court has since added undue delay as a fifth consideration: Janssen-Ortho Inc. v.Apotex Inc., 2010 FC 81, at para. 33. Therefore, when evaluating an applicant’s request to file reply or supplemental affidavits, the Federal Court judge asks whether the replyevidence (

i) serves the interests of justice; (ii) assists the court in making its determination on the merits; (iii) will cause substantial or serious prejudice to the other side; (iv) was available and/or could not be anticipated as being relevant at an earlier date; and (

v) would cause an undue delay in the proceeding. Janssen-Ortho, at para. 33. These factors afford the judge “‘vast discretion’” that “‘is incompatible with a mechanical application of any set test or formula’” (citation omitted):Canada (Attorney General) v. United States Steel Corp., 2011 FC 742, at para. 27. “‘The factors mentioned above are not exhaustive and the jurisprudence does not prescribe howthey are to be weighed by the judge or the prothonotary.

Further, because each decision is discretionary and will be fact-specific, there may be other factors in any given case’”(citation omitted): ibid. [28] With respect to the fourth element, the court in Merck-Frosst, at paras. 23 to 25, identified a two-step approach to evaluate whether the evidence should have beenintroduced earlier:

The first step is to ask whether the proposed evidence is properly responsive to the other party’s evidence. It is responsive if it is not a mere statement of counter-opinion but provides evidence that critiques, rebuts, challenges, refutes, or disproves the opposite party’s evidence. It is not responsive if it merely repeats or reinforces evidence that the party initially filed. … If the proposed evidence is found to be responsive, one must then ask whether it could have been anticipated as being relevant at an earlier date.

If it could have been anticipated earlier to be relevant, then it is being offered in an attempt to strengthen one’s position by introducing new evidence that could and should have been included in the initial affidavit. Such evidence is not proper reply evidence as the party proposing to file it is splitting his case. A party must put his best case forward for the other to meet, he cannot lie in the weed and after the party opposite has responded file additional evidence to bolster his case in light of the defence that has been mounted.

It is improper because it could have been filed in the initial instance and the other party now has no opportunity to respond to it. [ 29 ] In other words, according to Merck-Frosst , concerns about unfairness, inefficiency, and confusion that can result from non-proper reply evidence do not fall away. Purely confirmatory evidence is barred and the evidence must be responsive to the respondent’s case for leave to be granted under rule 312(

a) of the Federal Court Rules . [ 30 ] No court in Ontario has applied the Federal Court’s test, though one Ontario tribunal has: 1775091 Ontario Inc. (c.o.b. Canadian Best Auto Inc.) (Re) , [2012] O.L.A.T.D. No. 173, at para. 10 (concerning reply evidence introduced during a hearing before the Registrar of Motor Vehicles). The principles to be applied [ 31 ] On the basis of the foregoing, the following principles will be applied to the present motion and the respondents’ objections.

The court will consider the potential prejudice and unfair surprise to the respondents; whether the evidence is responsive to the respondents’ case or is merely confirmatory; whether the evidence will assist the court in making its determination on the merits; whether the evidence was available and/or could not have been anticipated as being relevant at the time the application was filed; and the applicants’ reasons for their delay in adducing the evidence.

To the extent the respondents object on the grounds that the reply affidavits contain irrelevant, speculative, or argumentative evidence, I have applied the principles stated in my judgment on the respondents’ earlier motion to strike: see Lockridge , supra. The goal will be to ensure that each party has a fair opportunity to prepare its case and its response to the other side’s evidence. [ 32 ] I decline the respondents’ invitation to apply the strict test for reply evidence adduced at trial or (in an application) after cross-examinations are complete.

Such a standard is not justified in the present circumstances. There can be little prejudice or unfair surprise to the respondents at this stage of the case, especially because the parties will have the opportunity to conduct cross-examinations.

With respect to cross-examination, note that any reference in my dispositions in Appendix A to the parties’ ability to cross-examine an affiant on a particular point should not be interpreted as expanding or restricting the scope of otherwise-permissible cross-examination. [ 33 ] Suncor has requested leave to file sur-reply to certain paragraphs of the applicants’ reply affidavits. I have noted the disposition of these requests in the chart annexed as Appendix A. When sur-reply is permitted, it should be filed promptly.

The parties are expected to confer with each other to establish a specific deadline for filing the sur-reply. In the absence of an agreement on the timeline, the parties may make brief submissions to me in writing or arrange a conference call with me, which might also address other scheduling issues arising in light of the changed timetable. [ 34 ] If the parties are unable to agree as to the costs of this motion, they may make brief submissions to me on a timetable to be agreed upon among themselves. ___________________________ Harvison Young J. Released: November 12, 2013 CITATION : Lockridge v.

Director, Ministry of the Environment, 2013 ONSC 6935 DIVISIONAL COURT FILE NO.: 528/10 DATE: 20131112

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: ADA LOCKRIDGE and RONALD PLAIN Applicants - and - DIRECTOR, MINISTRY OF THE ENVIRONMENT, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT, THE ATTORNEY GENERAL OF ONTARIO and SUNCOR ENERGY PRODUCTS INC. Respondents REASONS FOR JUDGMENT Harvison Young J. Released: November 12, 2013 APPENDIX A” CONSOLIDATED CHART OF THE OBJECTIONS TO THE APPLICANTS’ PROPOSED REPLY EVIDENCE OF THE RESPONDENTS, HMQO and SUNCOR

A. AFFIDAVIT OF DR. MANUEL REIMER Parties Objecting Paragraphs of Affidavit or Question in Reply Report(with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition Suncor EnergyProducts Inc.(“Suncor”) Entireaffidavitand report, p. 33 Question posed: Throughout the expertreports filed by the Respondent Suncor, it isasserted that you and other experts retainedby the Applicants were working from animproper assumption that the Decisionresulted in an increase in refinery production,and ergo an increase in pollution from theentire refinery.

This allegation that youmisunderstood what the actual Decisionrelated to is repeated at numerous otherplaces in Suncor’s expert reports andaffidavits. Can you confirm yourunderstanding of the Decision at issue in thiscase?

Response: While your wording in the courtdocument could have been interpreted toimply that you were referring to generalproduction at Suncor’s refinery plant, it wasvery clear through direct communication withyou as well as the applicants and my personalvisit to Sarnia that the director’s decision wasabout allowing a 25% increase of productionfor a specific stack at the sulphur recoveryunit at Suncor’s refinery in Sarnia. Thus, myopinion was based on that knowledge andunderstanding. Entire affidavit and report Confirmatory evidence and/orcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v.

Patten, (ON CA),[1967] 1 O.R. 18 (Ont. C.A.). Unresponsive – responding tounspecified evidence: EliLilly Canada Inc. v. ApotexInc., 2006 FC 953 (T.D.,P.C.). Cross-references toSuncor’s factum: Paras. 24-25, 35, and 49(

a) Permitted. This is not confirmatory butaddresses a question regarding Dr.Reimer’s premises, which wasdirectly put in issue by the Lynchaffidavit. B.

AFFIDAVIT OF WILLIAM AUBERLE Parties Objecting Paragraphs of Affidavit or Question in Reply Report(with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition Suncor and HerMajesty the Queen inRight of Ontario(“HMQO”) Q.1, p. 37Question 1: Throughout his affidavit, includingat p. 9, Peter Lynch states that the Applicantshave “fundamentally confused sulphurproduction levels with the overall processingcapacity of Plant 4.” Peter Lynch states in hisaffidavit that there was no change in the volumeof the product produced as a result of thedecision to allow an increase in sulphurproduction.

Can you clarify your understandingof the decision? Response: Based on the data provided by Mr.Lynch, it does appear that overall fuelproduction at the facility is independent ofsulphur production, and thus that the increase insulphur production allowed by the April 2010MOE decision does not necessarily involve anincrease in fuel production. It should be noted,however, that in two letters from Suncor andtheir consultant Jacques Whitford to the MOEdated August 13th and August 14th of 2008,they strongly imply that overall fuel productionhad been limited by the enforced reduction insulphur production.

Copies of these two letterswere provided to me by Dr. Elaine Macdonald,and I understand she will be attaching theseletters to her own reply affidavit. Inadmissible Evidence:impermissible speculation Entire question & answer isimproper Confirmatory evidence and/orcase splitting is not proper reply:Allcock, Laight & WestwoodLtd. v. Patten, (ON CA), [1967] 1 O.R. 18(Ont. C.A.) Evidence was available to theApplicants prior to filing theirApplication Record, and ought tohave been submitted in chief:Krause v. R., (SCC), [1986] 2 S.C.R. 466. Improper speculation.

In the alternative, if thisevidence is permitted, Suncorshould be permitted to file sur-reply evidence. Cross-references to Suncor’sfactum: Paras. 24-25,29-30,32-34,49(b),50,51(a),55 and57 Permitted. The reasoning in thedisposition above regardingDr. Reimer’s affidavit applieshere as well. The relationshipof sulphur production tooverall fuel production iscentral to this application forjudicial review, and PeterLynch’s materials suggestingmisunderstandings of thisrelationship, are important toissues to be decided. This is not confirmatoryevidence, just clarifying. I donot accept that it isspeculative.

These are expertopinions. Such positions maybe explored on cross-examination, and the panelmay determine their weight. Itshould be permitted. Sur-reply on this point isallowed because the point iscentral and should be beforethe court. The panel maydetermine the evidence’srelevance.

Suncor and HMQOQ.2, p. 37Question 2: Throughout their affidavits,including at pgs. 14, 34 and 44 of the report ofGregory Crooks and Michael Murphy and page55 (paragraph 141) of the affidavit of PeterLynch, the Respondents assert that the onlyrelevant pollutants affected by the decision wereSO2 and H2S. Exhibits 19 and 22 of theaffidavit of Peter Lynch attach new informationabout emissions from the sulphur plant. Canyou comment on this new data and what it tellsus about the pollutants from the sulphur plantaffected by the decision?

Response: Exhibits 19 and 22 of the affidavit ofPeter Lynch describe emissions of pollutantsother than SO2 and H2S from Plant 4, whichcontains the desulphurization unit. In particular,they detail a number of volatile organiccompounds (VOCs) which can be emitted as"fugitives" from leaks in valves, flanges, andseals. Page 629 of Mr. Lynch's exhibit 22, forexample, lists VOCs such as toluene,ethylbenzene, and xylene among these potentialfugitives.

With regard to the decision to allowfor increased sulphur production in Plant 4, it islikely that increased throughput of Plant 4would result in increased fugitive emissions ofthese pollutants. Irrelevant to Application:Evidence not necessary todetermine application. Courthas already ruled on many ofthese issues. Inadmissible Evidence:Speculative as to the effect offugitive gasses Entire answer is improper Evidence was available to theApplicants prior to filing theirApplication Record, and ought tohave been submitted in chief:Krause v. R., (SCC), [1986] 2 S.C.R. 466.

New issues or arguments cannotbe raised in reply: Ontario(Burton v. Town of Oakville, (ON SC)). In the alternative, if thisevidence is permitted, Suncorshould be permitted to file sur-reply evidence. Cross-references to Suncor’sfactum: Paras. 29-30,32-34,50,51(a),54(a),55 and 57 Permitted. It is unfair, on the one hand, tocriticize the applicants fortheir failure to focus onsulphur production ascompared to overall fuelproduction and then to refuseto permit clarification on thisissue. Moreover, this is directlyresponsive to the Lynchaffidavit regarding emissionsfrom the sulphur plant.

Sur-reply by Suncor ispermitted. Suncor Q.3, pp.37-38 Question 3: In the affidavit of Peter Lynch atpage 11 (paragraph 23), page 50 (paragraph130), and exhibits 59 and 60, and the affidavitof Michael Parker at page 22 (paragraph 81)and 2 exhibit CC, they discuss the addition oflift gas to the flare stack at Plant 3 to dispersesulphur dioxide during flaring. Can youcomment on the relationship between theDecision and the use of lift gas?

Response: The addition of lift gas to the Plant 3flare was intended to allow the facility toincrease its sulphur production and still meet thePOI standards during an upset condition.

Bycreating the higher gas velocity and a hotter exitvelocity, the exhaust gases are more buoyant,and the pollutants are dispersed more widely.This is a reprise of the adage that “the solutionto pollution is dilution,” and although theaddition of lift does indeed decrease POIconcentrations, particularly for nearbyreceptors, the overall mass emissions to the airactually are increased as burning the lift gasadds additional pollutants to the air. ... Entire question & answer isimproper Question is not responsive to thisapplication for judicial review:Eli Lilly Canada Inc v ApotexInc., [2006] F.C. 953.

Answer is not responsive to theevidence to which it purports toreply: Eli Lilly Canada Inc vApotex Inc., [2006] F.C. 953. Evidence was available to theApplicants prior to filing theirApplication Record, and ought tohave been submitted in chief:Krause v. R., (SCC), [1986] 2 S.C.R. 466. In the alternative, if thisevidence is permitted, Suncorshould be permitted to file sur-reply evidence. Cross-references to Suncor’sfactum: Paras. 29-30,32-35,50,51(a),52,53(a),55 and57 Permitted. This is relevant to thisapplication for judicial review.

Strictly speaking, it wasavailable to applicants beforefiling their application record.But in the interests of justice,fairness, and focusing theissues, I would allow it. Therehas been no cross-examination,there is no surprise and thereis no prejudice as therespondents clearly have beenalive to the issues being aboutsulphur production and notoverall fuel production. Sur-reply is permitted on thispoint.

Suncor Q.4, p. 38 Question 4: Throughout their affidavits ..., theRespondents assert that the original Certificateof Approval for the sulphur plant authorizes theplant to process up to 250 tonnes per day ofsulphur ... Can you comment on the factualaccuracy of these witnesses’ evidence that theCertificate of Approval authorizes the plant toprocess up to 250 tonnes per day of Sulphur? Response: From my reading of the originalCertificate of Approval there is no authorizationcontained therein for the plant to process anyspecific amount of sulphur.

Entire question & answer isimproper New issues or arguments cannotbe raised in reply: Ontario(Burton v. Town of Oakville, (ON SC)). In the alternative, if permitted,Suncor should be permitted tofile sur-reply evidence. Cross-references to Suncor’sfactum: Paras. 32-34,50,51(a),55 and57 Not permitted. I note that the applicants willhave the opportunity to cross-examine the respondents’affiants on these points if theywish. Parties Objecting Paragraphs of Affidavit or Question in Reply Report(with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition

HMQO and Suncor Q.5, p.38 Question 5: In

section 4(

b) on O. Reg 419/05(pages 4 to 7) of his affidavit, Michael Parkerdescribes the new air standards under O. Reg419/05 and uses the term "more stringent"when comparing to the standards underRegulation 346. In the same

section MichaelParker refers to the change that occurred in theSO2 standard from Regulation 346 to O. Reg.419/05. In this discussion Mr. Parker referencesan "Air Dispersion Modelling Guideline forOntario" (attached as exhibit D to his Affidavit),which includes

Section 4. 4 titled, "AveragingPeriod (Conversion Factor)". Can youcomment on the accuracy of Michael Parker'sdiscussion of the change to the SO2 standard? Response: In contrast to the statement made byMr. Parker in his affidavit that the change inallowable SO2 POI concentrations from theolder Regulation 346 to the newer Regulation419/05 results in a more stringent standard,there is no substantial change to the standard inthe new regulation (and in fact the new value isactually slightly less stringent than the originalstandard).

Section 4.4 of the "Air Dispersion Modelling Guideline forOntario" document referenced by Mr. Parker inhis affidavit presents calculations to convertdata modeled with the dispersion modelAERMOD over 1 hour (as required inRegulation 419/05) to the equivalent valueaveraged over 30 minutes (as in the olderRegulation 346 standard).

According to thecalculations therein 1-hour AERMOD valuescan be converted to 30-minute values bydividing the 1-hour number by the factor 0.5.Thus with the new 1-hour standard for SO2 of690 µg/m3 the equivalent 30-minute valuebecomes 838 µg/m3, which is slightly higher(and thus less stringent) than the old Regulation346 standard of 830 µg/m3 averaged over 30minutes. Irrelevant to Application:Evidence not necessary todetermine application. Courthas already ruled on many ofthese issues. In the Motion to StrikeDecision, the Courtdetermined that the nature ofO. Reg 419/05 is not relevantto determining theapplication.

Suncor adopted HMQO’sobjection at the hearing. Permitted. Suncor Q.6, p. 39 Question 6:... Can you comment on the failureanalysis around flaring presented in thesedocuments and Gregory Crooks’ and MichaelMurphy’s discussion of flaring and the 2010[Technology Benchmarking] Report? Response:...

Of primary importance is thatthese predictions are made based on thelikelihood of equipment failure only, and do nottake into account process upsets, operatorerrors, or maintenance and engineering errors.(3). ... and thus the actual rate of failures canoften be much higher than the predictions. ...points out the dubious nature of suchpredictions. Evidence was available to theApplicants prior to filing theirApplication Record, and ought tohave been submitted in chief:Krause v. R., (SCC), [1986] 2 S.C.R. 466. In the alternative, if thisevidence is permitted, Suncorshould be permitted to file sur-reply evidence.

Cross-references to Suncor’sfactum: Paras. 29-30, 50, 51(a),55 and 57 Permitted. This is directly put in issue bythe respondent’s materials. No sur-reply is permitted onthis point. Parties Objecting Paragraphs of Affidavit or Question in Reply Report(with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition

HMQO Q.7 p. 39 Question 7: Please review the Final Report-Phase 1 Suncor Sarnia Refinery's Reliabilityand Capacity of Sulphur Recovery Units forRemoving H2S, attached as exhibit 49 of theaffidavit of Peter Lynch and discussed by PeterLynch on pages 42 and 43. Can you commenton Peter Lynch 's characterization of thereport? Response: In paragraph 113 of Mr. Lynch'saffidavit (page 43) he summarizes theconclusions of the report commissioned by theMOE and conducted by Environmental HealthStrategies to examine the ability of the plant tominimize acid gas flaring and appropriatelyhandle the acid gas coming in from the sourwater stripper and amine units. His

summarycasts the report writers' conclusions in aparticularly positive light, and downplays theseriousness of the second part of theconclusions. He is correct in noting that thereport found that "Suncor had addressed or hadplans to address the vast majority of ...problems that led to process upsets since thestart-up of the Sulphur Plant in 2007." Butwhereas Mr. Lynch's

summary of the secondpart of the conclusions is that "The EHS FinalReport made some recommendations tooptimize the redundancy of the Sulphur Plant, which were investigated bySuncor," the text in question actually reads "Inorder to achieve the level of reliability that ispracticed elsewhere, Suncor should providesignificant redundancies in its SRU operationaldesign." Clearly the report writers felt thatSuncor should do more to provide for safe,reliable operation of the plant, and Mr.

Lynch'sassertion that the report "concluded that theSulphur Plant is capable of operating safely at aproduction rate of 180 tonnes per day" is notsupported by the report's actual contents. Improper Reply: Evidencewas available at outset and itsrelevance could have beenanticipated. Inadmissible Evidence:Argumentative HMQO objection withdrawn atthe hearing Permitted. The panel can determine theweight of the evidence. Parties Objecting Paragraphs of Affidavit or Question in Reply Report(with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition C.

AFFIDAVIT OF DAVID CARPENTER Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition Suncor Q.1, p.44 Question 1: Throughout the expert reports, and in particular at aparagraph 96 of Dr. Mundt’s report, he states: Dr. Carpenter appears tobe working from an improper assumption that the Decision ... resulted inan increase in refinery production, and ergo an increase in pollution. This alleged improper assumption is repeated at paragraphs 146 and 154of the Mundt Report.

A similar statement is made at paragraph 33 (page2262) of the Report of Dr. Mary McDaniels [sic]; pages 1899, 1994 and1999 of the report of Dr. Ollson, and at page 36 of the affidavit of PeterLynch. Can you confirm your understanding of the Decision at issue inthis case? Response: These reports are making a completely incorrect assumption.My understanding of the Decision is that Suncor was approved to increasesulfur production from 145 to 180 tons production per day, but that overallfuel product production from the plant was not changed. The Decision didnot alter requirements on emission of other pollutants.

This has nothing todo with the mix of crude oils process. See the expert report of Mr.William M. Auberle. Entire Affidavit andReply Report Entire question & answeris improper Confirmatory evidenceand/or case splitting is notproper reply: Allcock,Laight & Westwood Ltd. v.Patten, (ON CA), [1967] 1 O.R.18 (Ont. C.A.) Cross-references toSuncor’s factum: Paras.24-25 and 49(

c) Permitted for the samereasons as regarding theaffidavits of Dr. Reimerand Mr. Auberle.

Suncor andHMQO Q. 2(secondbullet), pp. 44-45 Question 2: In his report, Dr. Ollson conducts a risk assessment ofexposure to SO2 and total reduced sulphur (TRS) and finds that there isno cumulative risk for individuals or population as a whole as a result ofthe Director's 2010 decisions (page 1956). … Could you reply to this conclusion in particular with reference tothe document "Letter on Potential Human Health EffectsAssociated with theoretical Acid Gas flaring Scenarios" (GolderAssociates Report) attached as Exhibit EE to the affidavit ofMichael Parker that we have provided to you? Response: Dr.

Ollson’s “risk assessment” is not a real risk assessmentand is inadequate to evaluate cumulative health risk to the applicants. ...Dr. Olsson’s [sic] risk assessment is inadequate and without merit. With regard to the second question, the Golder Associates report presentsdata on predicted SO2 and H2S levels associated with flaring events. Theyspecifically admit that acid gas flaring will result in "notable discomfortor irritation". This is not a trivial issue! Nearby residents who live nearSuncor will experience respiratory irritation as well as stress from thesmell and discomfort.

The Minister of the Environment (MOE) review ofthe Golder Report notes that many of the complaints resulting fromelevations in SO2 levels in their Sudbury studies are not associated with exceedances above the 858 µg/m3 30 min limit, but rather are relatedto short duration peaks of high concentrations of SO2 falling to theground. They note specifically that these short term SO2 peaks have beencorrelated with potential health effects in susceptible populations such asthe young, the elderly and people with respiratory disease, and note thatGolder Associates has not considered short term exposures.

Theyconclude that levels of SO2 in the range of 286-1430 µg/m3 and above fortime periods as short as 5 min can adversely affect asthmatic individuals.They state that MOE data show that asthmatics react to SO2 and H2S atlevels much below the AIHA guidelines which were used. They also notethat Golder Associates "has not taken odour into account in the selectionof most sensitive receptors or in the evacuation plan" and has not selectedasthmatics as the most sensitive population. They note specifically thatthe Golder Report grossly underestimate the risk of SO2 to bothasthmatics and the general public.

Improper Reply:This evidence onlyrepeats the MOEreview of theGolder Report. The relevance ofthe evidence couldhave beenanticipated. Entire answer isimproper Question is not responsiveto this application forjudicial review: Eli LillyCanada Inc v Apotex Inc.,[2006] F.C. 953. Bare assertions, without asubstantive discussion arenot proper reply. Answer is not responsiveto the evidence to which itpurports to reply: Eli LillyCanada Inc v Apotex Inc.,[2006] F.C. 953. In the alternative, if thisevidence is permitted,Suncor should be permittedto file sur-reply evidence.

Cross-references toSuncor’s factum: Paras.35, 52, 53(b), 55 and57 Permitted. It is in the interests ofjustice to focus on thereal and central issues ofthe application, as thisreply evidence does indiscussing sulphurdioxide and hydrogensulfide, and not leavelingering confusion withrespect to overallemissions. Suncor is permitted tofile sur-reply on thispoint. Suncor andHMQO Q. 3, p. 46 Question 3: In his report Dr. Ollson asserts, including at page 1973 that"air quality is improving in the Sarnia area".

Could you reply to thisassertion, in particular with reference to new data on pollution inAamjiwnaang First Nation (AFN) presented in exhibits K and M of theaffidavit of Michael Parker?Response: As indicated above, most of theevidence that air quality in the Sarnia area is improving presented by Dr.Ollson comes from period of times prior to the increased allowable releases.In addition as documented by the affidavit of Mr.

Crooks (at page 1714) itis apparent that as of 2012 Suncor has not yet increased sulphur productionto the allowable limit, because the level has not changed significantly since2008 while the limit was raised in 2010. The air quality may be improvingover what it was in the past, but this is no indication that it is safe. We donot know what a "safe" level is, particularly because SO2 is present togetherwith particulates, volatile organics, NO2 and ozone.

In addition this data is not consistent with the evidence presented in theOntario Ministry of the Environment Technical Report on AamjiwnaangFirst Nation Community Air Monitoring Station for 2011. This report findsthat levels of ground level ozone, suspended particulates, and most VOCsincreased upon hourly measurements, while SO2 and the total reducedsulphur decreased. Irrelevant toClaim: Evidencenot necessary todetermineapplication. Courthas already ruledthat particulatesand VOCs areirrelevant.

InadmissibleEvidence:impermissiblespeculation as to“what a safe levelis.” Evidence was available tothe Applicants prior tofiling their ApplicationRecord: Krause v. R., (SCC), [1986] 2S.C.R. 466. Cross-references toSuncor’s factum: Paras.29-30, 50 and51(

b) Not Permitted. The Parker exhibits Kand M were available in2011, per paragraphs 49and 50 of the Parkeraffidavit (filed as acompendium by theDirector). Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

Suncor andHMQO Q.4, p.46 Question 4: In his report Dr. Mundt, at paragraph 108, states: "Dr.Carpenter provides no empirical evidence to substantiate his speculativeconclusion that data demonstrate that the residents of Sarnia/Aamjiwnaangare subjected to extremely high levels of a variety of air pollutant, and thisto a much greater degree than residents of the rest of Ontario."Additionally, the Dr. Ollson Report at 5.4.6 (page 1969-1971) comparesSO2 concentrations in Sarnia and Hamilton and in

section 7.1.1 (pages2004-2005) critiques your comparison of pollution in Aamjiwnaany [sic]First Nation with other communities. Can you reply to this comparison ofpollution between communities in Ontario presented in these Repo11s andcomment on what this evidence tells us?

Response: The World Health Organization provides information onparticulate levels in all of the major cities of the world(http://www.who/int/phe/health_topics/outdoorair/databases/en/index.html).Below are listed the concentrations of PM10 in outdoor air in major Ontariocities: Sarnia 34 µg/m3 Toronto 21 µg/m3 Peterborough 18 µg/m3 Ottawa 16 µg/m3 Cornwall 18 µg/m3 Guelph 19 µg/m3 Hamilton 24 µg/m3 Kingston 21 µg/m3 London 20 µg/m3 Sudbury 12 µg/m3 Windsor 26 µg/m3 Clearly air concentrations in Sarnia are higher than other major cities inOntario. The comparison by Dr.

Ollson of Sarnia and Hamilton isridiculous- comparing one dirty city to another, but even here Sarnia isworse. Improper Reply:This is addingevidence of otherPM10concentrations thatwas availablewhen theapplicants’ initialevidence wasfiled. Therelevance of theevidence couldhave beenanticipated. Entire answer isimproper Evidence was available tothe Applicants prior tofiling their ApplicationRecord: Krause v. R., (SCC), [1986] 2S.C.R. 466. Confirmatory evidenceand/or case splitting is notproper reply: Allcock,Laight & Westwood Ltd. v.Patten, (ON CA), [1967] 1 O.R.18 (Ont. C.A.) Bare assertions are notproper reply.

Answer is not responsiveto the application: Eli LillyCanada Inc v Apotex Inc.,[2006] F.C. 953. Cross-references toSuncor’s factum: Paras.24-25, 29-30,32-33,35,49(c),52 and53(

b) Not permitted. The evidence is notappropriate. It is notrelevant and, in anyevent, the applicants willhave the opportunity tocross-examine therespondents’ affiant onthese points. Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

Suncor andHMQO Q.5, pp.47-48 Question 5: Pages 2137-2140 of the Mundt Report describes various healthstudies conducted for all of Lambton County. At pages 2161-2162 Dr.Mundt describes the Dunn Report which examines live birth data for theyeas [sic] 1981-2001 comparing birth rates and genders in LambtonCounty. Inparagraphs 131-132 and 143 of his report, Dr. Mundt is criticalof your report for not referencing Lambton County health status report inyour comments regarding health in the community of Aamjiwnaang Firstnation. Dr. Ollson similarly refers to Lambton County studies in

section 6.3 to 6.5 of his report (starting on page 1979), and critiques your failure torefer to the Lambton County health studies at page 2001. Could you reply by indicating whether county-wide studies assist indetermining health effects in AFN? a. Can you reply to Dr. Mundt's characterization of and conclusions regarding Lambton County health status reports, including his conclusion at paragraph 80 of his report that "these reports provide evidence that as a communitythe health and disease experience of the AFN is no different thanSarnia or the rest of Ontario"? b. Can you reply to Dr.

Mundt's characterization of the conclusions regarding the Dunn report at paragraphs 141-142 of his report byreading the Dunn report? Response: The most serious health risk documented at Aamjiwnaang is thatthe ratio of male to female births has declined over the period 1994 to 2003(Mackenzie et al., 2005). There has been a decline in this ratio that appearsto be increasing in recent years (ratio 0.35 for the period1999-2003),whereas it was stable with the expected slightly greater percentage of malebirths prior to 1992 (ratio 0.58). This obviously has a very significant effecton the community.

The so-called Dunn report looked at sex ratios in all ofLambton County and did not find the changes reported by Mackenzie et al.to apply to county-wide data. However Lambton County is large and has adiverse population. In contrast Aamjiwnaang is small, and has a FirstNations population of about 800. Sources and extent of exposures are notthe same, and the failure to detect changes in sex ratio at the county level inno way invalidates the results reported by Mackenzie et al. (2005). TheDunn report does find local differences within Lambton County, but did notreport on Aamjiwnaang.

Therefore this criticism is without merit. The Community Health Survey done in 2004-2005 and the Open HousesSummary Report of January, 2011 provide information about theperception of health status in the community. Neither is a systematic surveyof all community members, and thus cannot be considered to be"scientific". This does not mean, however, that these reports have novalidity in assessing the concerns of the community. The earlier survey wasof 263 adults and l148 children.

Of this group 40% required the use of aninhaler, 17% had asthma, asthma in children under age 16 was 21% and the rate of asthma for those 12 and over was 22%, as compared toonly 8.2% for Lambton county residents of the same age range. These areexceptionally elevated rates of asthma. In the US the percentage of childrenages 6 to 16 with either atopic or non-atopic asthma is 6. 7% (Kelley et al.,2005). While 26% of adult reported having hypertension, this number isconsistent with the report that 26.4% of adult in the world havehypertension (Appel et al., 2006).

Worldwide it is estimated that over 5% ofchildren suffer from ADHD (Polanczyk et al., 2007), as compared to 13% inthis survey. Rates of smoking and alcohol consumption arc significantlyhigher than elsewhere in Canada, and this number may in part reflect thestress coming from living in this community. The comments from theindividuals surveyed focus on the air pollution, the smells and the difficultybreathing with the resulting headaches. While there are multiple components to the smells, certainly H2S is a majorcontributor. The Open Houses

Summary Report came from a series of five meetingswhere questions, comments and concerns were expressed. While there werea smaller number of participants, the concerns and questions were verymuch the same, rei1ecting worry about releases, especially to air, theconstant smells, and what would be the resulting health effects. There wasalso a concern expressed about the ei1ect of these releases on theenvironment. It is important to note that Atari et al. (2009 a and

b) havecorrelated odor annoyance scores with releases of NO2 and SO2, likely reflecting the concomitant releases of H2S and odoriferous VOCs. Improper Reply:The second andthird paragraphsare new evidenceabout aCommunity HealthSurvey and OpenHouses

SummaryReport that wasavailable when theapplicants’ initialevidence wasfiled. Therelevance couldhave beenanticipated. Entire answer isimproper Confirmatory evidenceand/or case splitting is notproper reply: Allcock,Laight & Westwood Ltd. v.Patten, (ON CA), [1967] 1 O.R.18 (Ont. C.A.) Verbatim quote, repetitionand expansion of earlierevidence is improper replyevidence: Eli Lilly CanadaInc v Apotex Inc., [2006]F.C. 953. Answer is not responsiveto evidence filed by theRespondent, Suncor: EliLilly Canada Inc v ApotexInc., [2006] F.C. 953.

Evidence was available tothe Applicants prior tofiling their ApplicationRecord: Krause v. R., (SCC), [1986] 2S.C.R. 466. Citing more studies(particularly those that pre-date the initial report) tobuttress conclusionssmacks of case splitting: Eli Lilly Canada Inc vApotex Inc., [2006] 2006FC 953 , 2006F.C. 953. In the alternative, if thisevidence is permitted,Suncor should be permittedto file sur-reply evidence Cross-references toSuncor’s factum: Paras.24-26,29-33,35,49(c),50,51(b), 55 and57 Permitted.

It is not clear that thisevidence has anyrelevance but, as per myearlier decision regardingrelevance, I would leavethis issue to the panel: seeLockridge v. Ontario(Director, Ministry of theEnvironment), 2012ONSC 2316, 350 D.LR.(4th) 720, at paras. 81, 90. The evidence may havebeen available earlier,but was struck asimproper expertevidence. Allowing this evidencewill result in neitherprejudice nor surprise tothe respondents, and it isin the interests of justiceto put the evidence beforepanel. Suncor is permitted briefsur-reply. Suncor andHMQO Q.6, Question 6: In his report on page 2168 Dr.

Mundt asserts that exposureconcentrations of SO2 and H2S measured in the ambient air in Sarnia and Improper Reply:The highlighted Entire answer isimproper (in particular, Permitted, except thatthe objected-to verbatim Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

pp.48-9Aamjiwnaang are not capable of causing the health effects claimed by theApplicants. Similarly Dr. McDaniel asserts on page 2270 that "in mostcases the exposures necessary to result in observed health effects are muchhigher than the concentration of air pollutants in Sarnia and Aamjiwnaang.Can you reply to these assertions? Response: These conclusions are simply unjustified. There isacknowledgement that these concentrations of SO2 and H2S are sufficientto cause discomfort or irritation (the Golder Associates report).

Discomfort and irritation result in stress and disease.The MOE documents based on their results from Sudbury thatconcentrations averaged over period of 30 min or longer will not catchshorter periods of extremely elevated concentrations of SO2 and H2S, whichin their experience cause adverse health effects in sensitive population. Oneof the additional problems here is the issue of co-exposures with other airpollutants, because contaminated air often contains several dangerouscompounds making it difficult to separate out the effects of just SO2 orH2S.

On the basis of the concentrations of SO2 documented to be present in theair at Aamjiwnaang and these documented health hazards known to resultfrom inhalation of SO2, it is my conclusion that the residents ofAamjiwnaang are at significantly elevated risk of asthma, respiratoryinfections, chronic obstructive pulmonary disease and death fromcardiovascular and respiratory disease. [verbatim quote from initialreport] Hydrogen Sulfide: According to the Agency for Toxic Substances andDisease Registry in their report, Toxicological Profile for Hydrogen Sulfide(2006), H2S may cause headaches, poor attention span, poor memory andpoor motor function, and some of these effects may be long-term or evenpermanent.

This report documents many animal studies showing respiratorydisease when H2S was inhaled for prolonged periods. In humans, asthmatics exposed to H2S may have difficulty breathing. SinceH2S is heavier than air, children are more likely to be exposed than adults.High but short term exposure to H2S results in ocular, respiratory andneuropsychological symptoms (Haaahtela et al., 1992). In a study ofsymptoms in individuals living in a slightly polluted community, Partti-Pellinen et al. (1996) reported increased eye irritation, nasal irritation,cough, breathlessness, headache and migraine.

The most significantsymptom was headache (OR=1.82, 95% CI=1.06-31.5) and cough(OR=1.64, 95% CI=l.01-2.64). Campagna et al. (2004) found increasedhospital visit for all respiratory diseases among children and for asthma inadults the day after H2S levels were elevated in study done in South Dakota.Bates et al. (1997) reported a significantly elevated death rate fromrespiratory diseases in New Zealand residents living in an area of highgeothermal activity that emitted H2S.

The latter study also documentedelevations in cardiovascular disease There is strong evidence that exposure to 1-hS can cause eye problems,particularly keratoconjunctivitis (Arnold et al., 1985; Jaakkola et al., 1990).While these effects may last for several days they are reversible providedthat exposure is stopped. These studies also reported disturbed equilibrium,nausea, headache, poor memory, insomnia, irritability, delirium, severevertigo and other neuropsychological symptoms in exposed individuals.Prolonged exposure to H2S has resulted in permanent neurobehavioraleffects (Kilburn, 1997).

There is two reports suggesting a relationship between exposure to H2S andspontaneous abortion or miscarriage (Hemminki and Niemi, 1982; Xu etal., 1998). In the latter study exposure to H2S was associated with anOR=2.3 (95% CI= 1.2-4.4) for spontaneous abortion. There is evidence that prolonged exposure to H2S leads to chronicallyreduced lung function and chronic obstructive lung disease (Richardson,1995).

On the basis of the concentrations of H2S documented to be present in theair at Aamjiwnaang and these documented health hazards known to resultfrom inhalation of H2S, it is my conclusion that the residents of Aamjiwnaang are at significantly elevated risk ofneurotoxicity, cardiac arrhythmias, and chronic eye irritations, as well asbeing subjected to chronic stress from the smell. [verbatim quote frominitial report] portion is newevidence theeffects of H2S thatwas availablewhen theapplicants’ initialevidence wasfiled. Therelevance couldhave beenanticipated. paragraphs 2 and 8 of theanswer).

Confirmatory evidence andcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v. Patten, (ONCA), [1967] 1 O.R. 18(Ont. C.A.) Verbatim quote, repetitionand expansion of earlierevidence is improper replyevidence: Eli Lilly CanadaInc v Apotex Inc., [2006]F.C. 953. Evidence was available tothe Applicants prior tofiling their ApplicationRecord: Krause v. R., (SCC), [1986] 2S.C.R. 466. Citing more studies(particularly those that pre-date the initial report) tobuttress conclusionssmacks of case splitting: Eli Lilly Canada Inc vApotex Inc., [2006] F.C.953.

In the alternative, if thisevidence is permitted,Suncor should be permittedto file sur-reply evidence Cross-references toSuncor’s factum: Paras.24-26,29-30,35,49(c),50,51(b), 55 and57 quotes from the initialreport are struck fromthe reply affidavit. This evidence is a directand specific response tothe respondents’assertions in theirevidence. The respondents arguethat they were entitled tothink that the applicantshad tendered their fullcase when therespondents filed theirresponse. They point tomy prior decision, whichdid not permit theapplicants to file a newapplication or newaffidavits.

The concernwas that those actionswould have protractedand further complicatedthe proceedings. But tothe extent that theresponding materialsraised more focusedissues pursuant to the“scoped” application thatresulted from my priorruling, it is not in theinterests of justice orfairness to prohibit replyevidence. Therespondents suffered noprejudice or surprise. To the extent that, evenin the context of theprevious comments, thisis confirmatory evidencethat simply restates orrefers to the initialreport, counsel may raisethis matter before thepanel and it will beconsidered regarding theevidence’s weight.

To theextent that the affidavitrepeats verbatim theoriginal report, it shouldbe deleted. There is no need for sur-reply. Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

Suncor and HMQO Q. 7, pp. 49- 50 Question 7: At paragraph 116 (pages 2152-2153) Dr. Mundt concludes that "having air concentrations that are below the AAQC implies that, based on the scientific evidence, health effects are not anticipated as a result of these exposures.”

Section 5 .3.1.4 of the Ollson Report describes the regulatory standards for SO 2 (pages 1934-1940). Can you reply to Dr. Mundt's conclusions generally and in consideration of Table 5-2 in Dr. Ollson’s Report at page 1935 which presents various different SO 2 standards?Can you comment on Dr. Ollson's comparison of the Ontario standards for SO 2 to other standards? Response: Many standards are a compromise between protection of human health and protection of economic development.

As such they cannot alone be considered to indicate a level of exposure that is "safe", especially when the exposure include a residential area with infants and children, pregnant women and the elderly and where exposure occurs 24 hours a day and seven days a week . It is clear from the Table 5-2 in Dr. Ollson's report that different agencies have quite different standards, and that the standards vary based on duration of sampling. As discussed above the MOE had documented that very brief exposures to SO 2 can result in adverse health effects even when standards for 30 min or longer exposures are not exceeded.

It is clear that the WHO standards of 500 µg/m 3 , set in 2005, is significantly more rigorous than the MOE standard of 830 µg/m 3 set in 2001, reflecting both the importance of duration of sampling and the increasing understanding of the toxicity of SO 2 . The most important consideration with regard to Aamjiwnaang is that the elevations in SO 2 and H 2 S are brief but extreme events that cause health effects not identified by standards of exposure over longer periods of time.

Improper Reply: The highlighted portion is evidence about the regulatory standards that was available when the applicants’ initial evidence was filed. The relevance could have been anticipated. Irrelevant to Application: Evidence not necessary to determine application. Court has already ruled that evidence about regulatory standards that are not being challenged on this application are not relevant to determining the application. Improper speculation Bare assertions are not proper reply. Cross-reference to Suncor’s factum: Paras. 35, 52 and 53(

b) Permitted. This evidence should be left to the panel : Lockridge , at para. 90 . Parties Objecting Paragraphs of Affidavit or Question in Reply Report (with reference to pages in Applicants’ motion record) HMQO’s Objection Suncor’s Objection Disposition

Suncor andHMQO Q. 8, p. 50 Question 8: Dr. McDaniel states at paragraph 33.6 of her Report (page2265) that ''Dr. Carpenter does not specifically say what diseases or healthoutcomes he believes the additional health risk will cause". Please clarify,with reference to your report, what "diseases or health outcomes" you hadin mind. Response: Most of this information is contained in my original report,together with extensive references, and those reports will not be repeatedhere. I have also expanded on the diseases specifically associated with SO2and H2S exposure in answer to question 6 above.

In addition there is someinformation which indicates that different air pollutants have differenteffects, which would be most consistent with additive actions. Dales et al(2006) studied hospitalization rates for neonatal respiratory disease in largeCanadian cities. He reports that while the independent effect of allpollutants was OR= 9.61, that for ozone was 3.35, for NO2 was 2.85, forSO2 was 1.66 and for CO was 1.75. Thus this is consistent with theconclusion that effects are additive.

Wang et al (2009) investigatedcardiovascular mortality clue to SO2, NO2 and ozone in Brisbane, Australia and found a relationship with SO2 (OR=4.7, 95%CI=0.7-8.9) but none with NO2 or ozone. Liu et al. (2009) investigatedmarkers of oxidative stress in asthmatic children, and found relations withSO2, N02 and PM2.5, but none with ozone. Braga et al. (2001) in a study of Brazilian children, found greater hazard from SO2 and NO2 inyoung children, while older children were more vulnerable to PM10 andozone.

Moolgavkar (2000) in a study in several urban areas reported thatSO2 was associated with hospital admission for COPD in Los Angeles(California) and Maricopa (Phoenix, Az) counties where levels wererelatively low, but not in Cook County (Chicago) where levels were high,and that this was so particularly for the youngest age group. He suggeststhat SO2 may be a proxy marker for a mix of air pollutants associated with COPD hospitalization. Chiusolo et al. (2011) investigatedmortality in Italian cities in relation to NO2, PM10 and ozone, and foundstrong relations with N02 but none with the others. In

summary thesevarious studies are most consistent with the criteria air pollutants having independent effects on respiratory function, but when individualsare exposed to SO2, NO2, ozone and/or particulates, the effects areadditive. Improper Reply:This is newevidence that wasavailable when theapplicants’ initialevidence wasfiled. Therelevance couldhave beenanticipated. Entire question andanswer is improper Confirmatory evidence andcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v. Patten, (ONCA), [1967] 1 O.R. 18(Ont.

C.A.) Verbatim quote, repetitionand expansion of earlierevidence is improper replyevidence: Eli Lilly CanadaInc v Apotex Inc., [2006]F.C. 953. Replying to a criticismregarding the insufficiencyor paucity of one’s expertby attempting to correctthat insufficiency orpaucity is thequintessential example ofimproper confirmatoryreply evidence: Eli LillyCanada Inc v Apotex Inc.,[2006] F.C. 953. Evidence was available tothe Applicants prior tofiling their ApplicationRecord: Krause v. R., (SCC), [1986] 2S.C.R. 466.

Citing more studies(particularly those that pre-date the initial report) tobuttress conclusionssmacks of case splitting: Eli Lilly Canada Inc vApotex Inc., [2006] F.C.953. In the alternative, if thisevidence is permitted,Suncor should be permittedto file sur-reply evidence. Cross-references toSuncor’s factum: Paras.24-26, 29-30, 35, 49(c), 50,51(b), 55 and 57 Not permitted. To extent the affiant isrepeating what he saidpreviously, or repeatingverbatim paragraphs,this evidence should bestruck. The questionasks Dr. Carpenter toclarify, and to the extenthe repeats the priorreport, it should bestruck.

To extent that the affiantrefers to additionalauthorities that wereavailable in 2010 that donot respond to any newpoints raised, thisevidence should bestruck. Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

Suncor andHMQO Q. 9, p. 51 Question 9: In paragraph 33.8 (page 2267) of her Report, Dr. McDanielquestions the accuracy of the community body mapping study conducted atAamjiwnaang. Dr. Ollson, on page 1999 of his report, calls the bodymapping study "unscientific". Can you comment on what utility the bodymapping study might have, if any? Response: This criticism is unwarranted.

The results of this survey are theonly documentation specific to the residents of Aamjiwnaang, and the clearfinding that 44% of residents complain about the smell, 32% suffer fromtrouble breathing and 14% suffer from headaches is evidence that the odorsand air pollutants are leading to elevated rates of disease. Please see theanswer to question 5 above for further response. Irrelevant toApplication:Evidence notnecessary todetermineapplication. Courthas already ruledthat evidenceabout the bodymapping studyshould be struck.

InadmissibleEvidence:Argumentative Entire answer isimproper Confirmatory evidence andcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v. Patten, (ONCA), [1967] 1 O.R. 18(Ont. C.A.) Verbatim quote, repetitionand expansion of earlierevidence is improper replyevidence: Eli Lilly CanadaInc v Apotex Inc., [2006]F.C. 953. Cross-references toSuncor’s factum: Paras.24-25,35and 49(

c) Permitted. It is not fair for therespondents to assert thatevidence regarding bodymapping is not necessaryand the reply should bestruck when the issue isreferred to and critiquedin Suncor’s ownresponding material. Suncor Q. 10, p. 51 Question 10: Dr. Olsson’s [sic] report discusses potential culmulativehealth risks associated with respiratory irritants in

section 5.4.4. (pages1967-1969). Dr. Ollson finds that PM2.5 is the leading contributor to therisk. Can you reply to his analysis in the context of the Decision at issue inthis case. Response: … But the major concern here is what happens when emissionof SO2 and H2S are increased, assuming that levels of particulates do notchange or even increase. These are also hazardous substances and theyinteract with particulates in either additive or synergistic fashions toincrease the risk of disease. These data presented both by Dr.

Ollson and inmy original report provide strong support for the conclusion that one cannotconsider any of these air pollutants in isolation, because they interact andmany of them target the same organ systems, including particularly therespiratory system. The observation that particulates are major contributorsto respiratory disease, in light of clear evidence that SO2 and H2S alsocontribute to respiratory disease, if [sic] further proof that elevations inrelease of sulphur compounds should not be tolerated.

Entire question andanswer is improper Confirmatory evidence andcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v. Patten, (ONCA), [1967] 1 O.R. 18(Ont. C.A.) Verbatim quote, repetitionand expansion of earlierevidence is improper replyevidence: Eli Lilly CanadaInc v Apotex Inc., [2006]F.C. 953. Cross-references toSuncor’s factum: Paras.24-25,35 and49(

c) Permitted except that thehighlighted portion ismerely confirmatory andshould be struck. Parties ObjectingParagraphs of Affidavit or Question in Reply Report (with reference to pages inApplicants’ motion record) HMQO’sObjection Suncor’s Objection Disposition

Suncor andHMQO Q. 11, pp. 51-52 Question 11: In his report Dr. Mundt describes your

summary of theIntrinsik report as "inaccurate" and suggest you “falsely attribute [your]conclusions to the authors". Can you comment on the accuracy of yoursummary of the Intrinsik report. Response: My statements about the Intrinsik report are accurate. Intrinsik(2010) has performed a systematic review of health effects found associatedwith living in proximity to petrochemical industries.

This report concludesthat cancer (especially lung cancer, bladder, pancreatic, brain and cancer ofthe lymph and blood), reproductive adverse outcomes, neurotoxic effects,asthma and respiratory infections and diseases caused by stress and anxietyare elevated in populations living near petrochemical industries, ascompared to those that are not. The report acknowledges, as I do, that thereare limitations in some of the studies quoted, in that often exposureassessment was measured only by residence near to the petrochemical plantand that control for socio-economic status was often imperfect.

Nonethelessmost of the studies identified in the systematic review document elevationsin the diseases listed above. To say that this

summary is "inaccurate" istotally inaccurate. InadmissibleEvidence:Argumentative Entire question andanswer is improper Confirmatory evidence andcase splitting is not properreply: Allcock, Laight &Westwood Ltd. v. Patten, (ONCA), [1967] 1 O.R. 18(Ont. C.A.) Cross-references toSuncor’s factum: Paras.24-25 and49(

c) Permitted. Although this evidence isarguably confirmatory, itmay be useful to focus thedisagreement between theexperts. To extent that itis merely confirmatory,the panel may affectdecide the weight toattribute to it. Suncor andHMQO Q. 12, p. 52 Question 12: In

section 7.1 (pages 1994-2007), Dr. Ollson critiques yourexpert report. On pages 1996 Dr. Ollson states that your conclusions are"incorrect" because of “f1awed methodology and lack of any substantivequantitative analysis”. Can you clarify and explain what analysistechniques you used in coming to the opinions contained in your report? Response: My conclusions are not incorrect and if there is any flawedmethodology it is that of Dr. Ollson.

My analysis is based entirely on thepeer-reviewed scientific literature and demonstrated "weight of the evidence" for human health hazards fromexposure to air pollution, including that from SO2 and H2S exposure. InadmissibleEvidence:Argumentative Entire question andanswer is improper Confirmatory evidence isnot proper reply: Allcock,Laight & Westwood Ltd. v.Patten, (ON CA), [1967] 1 O.R.18 (Ont. C.A.) Cross-references toSuncor’s factum: Paras.24-25 and49(

c) Permitted. I would not remove thisevidence. The replyevidence can be thesubject of cross-examination. To theextent the statementscould be seen asconfirmatory orconclusory, that may wellaffect the weight given tothem by the panel. Suncor andHMQO Q. 13, p. 52 Question 13: On Page 1998, Dr. Ollson states you "cherry-picked studies".Can you explain how you selected the studies for your report? Response: The studies I cited are results published in scientific journals ofhigh stature and ones that report investigations that are well-designed withcarefully analyzed data. This is not cherry-picking. This is my area ofresearch and I have many publications on the effects of ai

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