Guns For Hire: Pointes OMB Hearing

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Background, developer Jeff Avery. Foreground Counsel for Avery, left- Paul Cassan, right -Orlando Rosa.

 

Friday completed the end of the second week of the Pointes OMB hearing. Appearing before the Board Friday morning was Frank Breen, professional hydrogeologist seeking ‘expert witness’ status at the hearing. Counsel for the developer, Orlando Rosa, relentlessly questioned Breen’s credentials and objectivity, eventually putting it to the OMB that, in his opinion, Breen was a biased advocate against the development and therefore should be disqualified as an expert witness.

Breen was retained by the Conservation Authority to conduct a peer review of the technical reports submitted by the developer in application for a permit to build.

His final report was submitted to the Conservation Authority in 2011 where he expressed the need for further testing and reports to further ensure that pathways did not exist where sewage and other contaminants could taint well water and canal water. The Conservation Authority rejected his advice, and that of Conservation Authority staff, in favour of the technical reports submitted by the developer.

A US resident and educated in the US, Breen was not a licensed professional in Ontario when he conducted his peer review. However prior to his review he disclosed his credentials to the Association of Professional Geoscientists of Ontario (APGO) and was approved to perform in his professional capacity in the province.

After submitting his report in 2011 there was little contact between Breen and the Conservation Authority. He was notified in January 2013 by the Conservation Authority that he was no longer employed under their auspices.

Helen Scott, Counsel for Pointes Protection Association, maintained that Breen is an objective professional, bound by professional ethics to ensure public health and the environment above all else. She reiterated that of his own volition, Breen sought to provide all decision makers, including the Conservation Authority, the Algoma Public Health Unit and City Council, with his report and all the documents he used to make his final recommendation.

Of independently pursuing his concerns Breen asserted, “I didn’t want to be a gun for hire. But I did have ongoing concerns about the coordinating process of Pointe Estates and I do feel there is the potential for significant risk to human health because some of the prior issues have yet to be addressed. I opted to go speak to Algoma Public Health and present them with my findings to make sure that the information I had prepared was available and then spoke before City Council and made a recommendation of the same vein. At that time I was asked to be called as a witness for Pointes Protection Association.”

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Frank Breen, Breen GeoScience Inc., pictured at the July 15th, 2013 City Council meeting that denied Avery a planning permit.

 

Breen also remarked several times throughout is presentation before the OMB that he is neither for nor against the development and reinforced that his sole purpose was to ensure all the necessary sampling and reports be undertaken to ensure public health.

OMB Chairman, Blair Taylor, reserved his decision as to whether or not Breen will be accepted as an expert witness until Monday morning.

*Peter Gagnon, Pointes Protection Association president, began his presentation before the OMB on Friday afternoon. Rosa will complete his questioning of the testimony Monday morning

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Below is a lengthier account of Breen’s appearance before the OMB on Friday. Partial transcripts typed during the hearing may provide better clarification of the issues and concerns raised by all parties involved.

In attempting to demonstrate that Breen is biased against the development Rosa grilled Breen, long and slow, about independent actions taken by Breen to “advocate his opposition of the development” to decision makers. In the following excerpts Rosa questions Breen about a letter he drafted to the Conservation Authority in January 2013, his meeting with APHU in June 2013, his appearance before City Council on July 15, 2013 and an affidavit filed in support of the Pointes Protection Association application for judicial review of the Conservation’s Authority Board’s decision authorizing a permit to the developer.

Rosa: You advocated to them that further work had to be done on this development to address this human health and risk assessment issues. Is that true?

Breen: Yes. But I don’t know that ‘advocate’ is the right word. I reminded them, as I had done many times in the past that these issues still remain outstanding and needed to be addressed. And I will also say that based on the technical reviews that the [Conservation Authority] staff had they also reflected those concerns. I wasn’t the only one making these statements to the Conservation Authority Board.

(Note: Conservation Authority Board is comprised of mostly lay people in elected SSM City Council positions-including one individual from Prince Township.)

R: You took it upon yourself, sir, to attend at the Algoma Public Health in June of 2013 to once again advocate the position that there were not enough technical studies performed in respect of this proposed development. That’s what you told them didn’t you?

B: I never used the word ‘advocate’. I went to the Algoma Health and presented them with my findings. And in my 2011 report – and if I get to testify I will speak to this, but I provided in that report all of the data, all of the references, all of the technical information that I used to formulate that report in effort to allow any comments or challenges to that report to be made. I then returned in June 2013 simply met with Algoma Public Health to provide them with my report, expressed to them my concerns and provided them with the data and supporting data so that they could make an evaluation on their own with a complete data set as to whether or not my comments had any merit. Subsequently they sent a letter reflecting all of what I had said and essentially agreeing with me. That later changed.  My sole purpose was to present them with the data and with my report.

R: And you did that on your own. You did that on your own. You did that on your personal behalf. You weren’t doing that on behalf of anyone.

B: No! It’s more than that. You brought up the fact that I was not a licensed professional geoscientist in Ontario. During that period of time I had my application in and I was waiting to take the ethics exam. One of the issues regarding being a professional geoscientist in Ontario is the idea that I have an ethical obligation to public health. And that first and foremost goes beyond my obligation to my client and my obligation to my own financial well-being. What I did was consistent with what the APGO laid out, which was to ensure that all the work that I had done and all the information I had was presented to decision makers and make an informed decision. So I decided to go before Algoma Public Health. It was a one hour meeting, a phone call to set it up, I provided all of my information and all the data and offered to answer all of their questions regarding the work that I had done or the information that I had provided.

R: And you did that on your own personal initiative didn’t you?

B: Yes I did.

It is worth noting that what isn’t being captured in the partial transcripts is how Rosa, with exquisite care, chose his words and demonstrated an impressive stamina for debate, and how Breen displayed great confidence and showed a natural ability to anticipate Rosa’s next moves. Both presented themselves as gentlemen but the controlled emotion created a tension so thick that despite outward appearances one felt more like they were witnessing this:

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Further into questioning Rosa took the same approach with respect to Breen’s attendance before City Council on the July 15, 2013. Rosa also took issue with Breen’s use of terminology in his presentation before City Council and members of the public.

R: You raised the possibility that there was potential for E.coli contamination – or what you say (quotes Breen from the transcript of the July 15, 2013 meeting) “the other important issue and this deals with toxicology, and that is that these types of pathogens represent what we call an acute toxic risk”.

B: Correct.

R: You said that?

B: Yes I did

R: (quotes Breen from transcript) “And I’m not trying use inflammatory language. I’m using language of the science ok? An acute toxic risk means that if you have a one-time exposure of concentration that is too much for you –you get sick”.

B: Yes.

R: You then carry on (quotes Breen from transcript) “it’s a one-time exposure. Let’s look at a scenario where it’s a hot August day. You’ve got 91 homes, everybody has their families over, everybody is using their wells. Those wells or creeks –strong downward radiance due to pumping- and we get an E.coli outbreak in one well and people could get sick.”

B: I take exception to the word ‘outbreak’. I realize that this was a transcript and I can’t say that I didn’t say it but it’s not…

R: You don’t have a recollection?

B: That word can be an inflammatory word indicating outbreak like a serious problem…I could have used the word. I’m just saying I typically don’t.

Rosa continues to read from the transcript and then questions Breen’s summary of concerns.

B: Based on my review of the reports there was insufficient information that there isn’t a clear pathway from sceptic to ground water- I was very clear and careful to state that there could be a risk. This is not inflammatory it is the jargon of my profession.

R: Don’t you think that by using words like acute toxicity or E.coli- that those were the sort of words that Councillors, who for the most part are members of the lay community, would look at very seriously. Did you think about that in your presentation?

B: Is your objection to the words I’m using? I don’t understand the question. If Council thought I was being inflammatory or if they wanted additional information on what ‘acute toxicity’ and ‘acute risk’ meant, I was there to answer their question. As a matter of fact, I believe in my presentation at one point, I described what acute toxicity is. I was simply presenting the information that I had previously presented to other groups, to ensure that informed decisions could be made and made myself available to City Council so that they could ask questions and to inquire about the work that I had done and the validity of the work that I had done. And I prepared the reports with all of the information and all of the data and everything I used so that my reports could be challenged and reviewed in total…(edited)…The jargon and the terminology that I used was the jargon and terminology of my profession.

*****

Rosa questioned that Breen’s peer review report did not provide scientific evidence to support his claims that the development could be a risk to human and environmental health. Breen disagreed stating that the purpose of a peer review (in part) is to determine if sufficient tests and assurances have been undertaken to ensure safety for both public health and the environment. It is his opinion that further studies needed to be undertaken.

When question by Pointes Protection lawyer, Helen Scott, regarding his concerns, Breen stated, “It was my opinion and remains my opinion that there are pathways for chemical migration that represents a risk to drinking water wells and canals as a result of the sceptic tanks. I have also put forth in my opinion that there are ways to mitigate these risks by doing a hydrogeologic assessment specific the risks of sceptic to address these issues. I have laid that out in a number of documents and presentations to the best of my ability. I have not changed my position on that today at all.”

When asked by Scott what, if any position, would he have on the development Breen stated, “If the technical issues are satisfied I see no reason to see why this development may not proceed.”

*****

Orlando Rosa raised his concern that Breen acted independently, advocated and presented bias in his actions over the course of the past three years. Summarizing Breen’s activities Rosa expressed that Breen’s behaviour implies ‘mischief’.

OMB Chairman looked up from his notes to Rosa and repeated, “Mischief?”

Rosa elaborated stating that when an account of Breen’s actions, including the signing of the affidavit for the judicial review in support of the Pointes Protection Association, indicates that Breen is biased against the cause and that he should be disqualified as an expert witness.

Rosa supported his argument stating, in part, “I think the Board and the Courts take a strong stance in regard to experts and the necessity to be truly independent and they not be hired guns as is often the term. The role of an expert in any proceeding is an important one- and is cherished in our system because it is an opportunity to provide evidence by someone who is skilled, by someone independent and unbiased and not an advocate. As a witness you are divorce from all of these extraneous circumstances. Once the expert crosses over and becomes an advocate, a proponent for a position they begin to lack the objectivity as an expert witness. When you start using words and terms like ‘acute toxic risk’ and ‘E.coli’ – those sorts of representations were made, and Mr. Breen tried to skate around the issue when I asked him what the scientific basis was. I think it’s irresponsible to attend before City Council who are lay members of the community who are serving the Community by being on Council and they are expected to consider this application –and then to have someone attend and dramatize certain things is wrong. It shows a bias and intent to have Council to adopt the position he took.”

In her submission to the OMB Chairman on Breen’s unbiased position on the development, Scott stated, “All of the evidence that Mr. Breen has indicated he intends to bring forward at this hearing was developed based on technical reviews submitted to this Board. Mr. Breen’s position throughout since the initial report is that further technical information is needed and that there is a potential risk. He’s never gone beyond that. Going forward he stated that his concerns have never been satisfied. He’s never been provided with any further information that he could review that those questions had been answered, that the issues had been resolved. So Mr. Breen indicated that his opinion at that point in time, that as a professional geoscientist, he had an ethical obligation to put the public health and the environment above any and all concerns. My friend, has questioned why a typical expert will do that and I don’t know what the answer to that is, particularly without remuneration. But I think it is exactly what is expected of an independent expert who puts interest in public health above all else. His goal all the way through this and his intent all the way through this is not to advocate for the interests of a particular party, he sat there today and said if these concerns were addressed he doesn’t care if the development goes ahead, he’s not opposed to it. He’s maintained his separation in order to ensure his independence. I submit that it is important for any decision maker to have information that is sufficient to allow them to fully understand whether the technical reviews put before them should raise questions, whether they should be relied upon, whether there is any issues with them. Without that information the questions and the issues may not be recognized by any person without technical background and expertise.”

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