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Injunction granted, then lifted against wind farm

Work stopped for six days on the Red Lily Wind Farm just west of Moosomin as a temporary injunction was granted against any further construction on the wind farm, then lifted a week later. The $60 million 25 megawatt wind farm is being built in the RMs of Martin and Moosomin. The project has been in the works for several years. It has passed all environmental reviews, and construction was approved by the two RM councils earlier this year.

Opposition sprang up among some local residents early this year. A petition was taken to the RM of Martin council, which struck a committee to study the issues raised before the RM council approved the development.

Much of the site preparation work has been completed, foundations have been poured, and parts of the massive Vestas turbines now sit waiting on a siding west of Virden.

An ex parte order issued by the Court of Queen’s Bench in Saskatoon on Wednesday, Aug. 25 granted the plaintiff, David McKinnon, an interim injunction preventing further construction on the Red Lily Wind Energy Project. The defendants in the case—the Red Lily Power Limited Partnership, the Red Lily Wind Energy Corp. and the RMs of Martin and Moosomin—were not informed in advance that McKinnon would be seeking an injunction on Aug. 25 and were not represented before the judge.

Red Lily’s lawyer applied to overturn the injunction and one week later, on Wednesday, Sept. 1, the judge lifted the injunction after hearing from both sides, and ordered McKinnon to pay the defendants’ legal costs.

According to McKinnon’s lawyer, Bradley Jamieson of Saskatoon, “The primary issue with respect to this matter is the lack of setbacks from which the Red Lily Wind Energy Corp. is permitted to construct wind turbines from individual residences.”

The application to the court asks for a 2,000 metre—or two kilometre—separation between wind turbines, which would rule out the current project.

Saskatchewan has no legislated setbacks between wind turbines and homes. Ontario has legislated setbacks of 400 metres. The Red Lily turbines are all more than 500 metres from any home and some are over 600 metres away from any home.
McKinnon’s application to the court was supported by affidavits from local residents Troy Smith and Ray Donald, and Dr. Michael Nissenbaum of Mars Hill, Maine.

Nissenbaum is a radiologist who opposed a wind farm near his home in Mars Hill, Maine. The wind farm went ahead and Nissenbaum conducted a study in which he claims people near the wind farm suffer from anger and stress and there is no stress or anger among people who live three miles from a wind farm. The study has never been published in a peer review journal and has been widely criticized by researchers for poor methodology.

Jamieson said his clients don’t want to stop the wind farm, although their application to not allow towers within two kilometres of a home would make it impossible.

“They don’t want to stop the project, they’re just concerned about people’s health,” he said. “The whole issue is setbacks. There are no setbacks at all proposed by Red Lily or the RMs. That’s the whole essence of their issue. They’re not against wind farms. They’re quite happy with the project. They’re just concerned with people’s health.”

RM of Martin Reeve Mark Bateman said he was surprised when notice arrived that a court had ordered the injunction.

“It arrived Thursday afternoon late,” said Bateman. “It came from a lawyer’s office in Saskatoon Thursday. We had absolutely no idea until then. The concrete pour was in progress, and it couldn’t be stopped, but no construction went on Friday.”

The decision overturning the temporary injunction came at 5 p.m. last Wednesday. Work resumed on the project Thursday.

Bateman said news of the temporary injunction surprised him. “This project passed through all the hoops. It passed the government’s environmental review. It was a unanimous decision of council to proceed,” he said. “We certainly didn’t expect this. I thought when the motion went ahead that it was over, but I guess not.”

Michael Morris is the lawyer representing the RMs of Martin and Moosomin.

He said the ex parte order initially issued is very unusual. The order was issued without the RMs or Red Lily having any representation because the plaintiff’s lawyer argued the issue was an emergency and there was no way to contact the defendants. “I believe this is very unusual. The judge’s comment was it was only the second time he had issued an ex parte order,” said Morris.

“To obtain an ex parte order they had to demonstrate there was some great urgency to the order and there was no way to notify the other side. The gist of the argument was that there would be irreparable harm if this wasn’t done. The judge must have assumed the turbines were built already and causing harm. It’s possible that the judge wasn’t aware that the turbines had not yet been erected and were not operational.

“Once he had some further information, he saw there wasn’t quite the urgency he was led to believe and he lifted the order.”
A hearing is scheduled for Sept. 14 in Saskatoon for both sides to present their cases.

Doug Hodson is the lawyer for Red Lily. He agrees the original ex parte application was extremely unusual.
“That they would seek to have an injunction ordered without notice is a bit unusual,” he said.

Hodson said he was pleased to see the judge overturn the injunction and award costs to Red Lily and the RMs.
“The judge asked what the urgency and I did too,” said Hodson. “Why they would go to court without giving us notice?

“The judge said he was satisfied that the injunction need not be in place. We’re pleased the judge saw fit to award costs to us. Mr. McKinnon, when he filed his claim, undertook to pay any damages, and that is certainly something our client is considering, to recover the damages. Our client filed an affadavit with the court that the cost of having construction delayed is $74,000 per day that the injunction was in place. It was in place for six days, so that’s about $450,000 in costs to our client for the delay.”

Hodson said in seeking an ex parte injunction, the plaintiff normally assumes reponsibility for any damages. “In granting an interim injunction or an ex parte injunction, the court normally requires an undertaking to abide by any order the court may make regarding damages, and Mr. McKinnon agreed to that in this case. The court could find him liable for damages caused by this undertaking.”
Hodson said he is optimistic the court will reject the application for the injunction when both sides are in court Sept. 14. “We will be opposing the application on evidentiary grounds, and on legal grounds,” he said.

“We don’t think there’s any basis for the court to order an injunction. There is no Saskatchewan law being broken here. We have a proper permit, this meets all regulations, it has been approved by the proper authorities.

“Mr. McKinnon is asking the court to shut us down because he thinks there should be a 2,000 metre setback from his residence.”