April 25, 2013
Ontario

Wind power opponents taking heart at new court ruling

Lawyer Eric Gillespie and Wind Concerns Ontario are taking heart from a Superior Court ruling that persons in the proximity of industrial wind turbines can commence a civil action against turbine proponents and host landowners when and if a wind farm development has been approved for construction.

Mr. Gillespie, a Bay Street lawyer, has been acting on behalf of turbine opponents in various locations, including the Whittington development at 15 Sideroad and the Mono Amaranth Townline, for several years.

The Superior Court case before Justice Susan E. Healy was heard Feb. 27 and March 1 and ruled upon on Monday. It was with respect to two Clearview Township groups attempting to sue WPD Canada and landowners Beattie Brothers for a total of about $17 million over a proposal to build Fairview wind farm, an eight-tower, 18.4 MW capacity facility, near Stayner.

The ruling was on motions by WPD and Beattie that claims by the two groups should be rejected as “speculative, premature, and incapable of proof, given that the Fairview Wind Project has not yet been given renewable energy approval by the Ministry of the Environment (MOE) and, as such the scope, and even the very existence, of the Project was uncertain when the actions were commenced. These uncertainties remain at the time of this motion,” Justice Healey noted.

On the other hand, “It is the position of the plaintiffs that they are currently experiencing harms that entitle them to both a [temporary] injunction and damages, and that they are not required at law to let the regulatory approval process run its course before pursuing their common law remedies. They assert that the uncontradicted evidence filed by them in response to the motions shows that they have an arguable case requiring a trial in respect of all of the causes of action advanced.” Justice Healey agreed with WPD that the plaintiffs had no cause for action at this time, but also said that her ruling was without prejudice to the plaintiffs’ rights to commence an action for identical or similar relief when and if the Fairview Wind Project receives the necessary approvals to be constructed.”

In a news release Tuesday, Mr. Gillespie noted that the court had heard evidence from a land appraiser with respect to possible loss of property value, and from an acoustics expert who said the turbine noise would certainly exceed the permitted 40dBa, and that the evidence had not been disputed by WPD.

Wind Concerns, in its news release, is interpreting that to mean that the wind company is admitting to harmful effects, but Mr. Gillespie says in his release that the company allowed the evidence to stand “for the purpose of the motion.”

President Jane Wilson of Wind Concerns, in her release, states: “The judge accepts unreservedly that property value is lost for neighbours of these power projects based on the evidence.

“He (sic) also accepted that the possibility of adverse health effects from the environmental noise. This is vindication for Ontario’s rural and small urban residents, and for municipal councils who try to protect their citizens by declaring they are not ‘willing hosts’ to wind power generation projects.”

The actions against WPD and Beattie were commenced by John and Sylvia Wiggins early last year. It wasn’t long before their neighbours joined in unprecedented measures to fight the wind farm.

By April 2012, according to a media report at the time, several opponents were erecting miniature buildings equipped to qualify as residences, and the groups opposing the Fairview project had raised something like $750,000 for its war chest.