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Wind Concerns ‘mischaracterized’ court ruling: WPD, Pembina Institute

WPD Canada Corp. and the Pembina Institute say lawyer Eric Gillespie and Wind Concerns Ontario have “mischaracterized” a Superior Court ruling on a pre-trial motion by WPD that plaintiffs in a claim against it and two landowners had not demonstrated a cause for action.

The Citizen correctly reported the outcome last week, but Pembina says that even the Toronto Star was incorrect in its reporting. The Citizen might, however, misled readers by stating that plaintiffs could commence an action once a project had been approved.

Although that would be true, the story should have said commencing an action would mean going through the same pre-trial motions as did the case at hand.

Three mischaracterizations that Pembina pounced on were:

 lawyer Gillespie’s news release statement that, “Wind corporations and politicians have been saying for many years that wind turbines don’t devalue property. … This is a court finding that they do, even before a project has been approved and constructed;”

 A statement by Wind Concerns president Jane Wilson that, “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;” and

 the Star story that, “An Ontario court says that landowners near a proposed wind farm have suffered diminished property values.”

None of those statements is true. In fairness, however, spokesman Kevin Surette of WPD said in an interview that the ruling is a large and complicated legal document which he had some difficulty understanding even with his background of knowledge.

In fact, the ruling by Justice Susan Healey almost seems like a textbook of instructions on the rules of civil wrongdoing (torts) by exploring case law in which persons have sought to take action more or less out of their fear that something untoward might happen. It includes a case in B.C. in which plaintiffs sought to take action against a proposal to construct an isolation hospital on the basis that infections might spread from the hospital into a residential neighbourhood.

Mr. Surette said WPD’s decision to argue on the strength of law rather than to challenge the evidence adduced by the plaintiffs might have given rise to a misinterpretation of the outcome. “Had it proceeded (beyond the motion), we would have introduced our own evidence.”

On property values, Justice Healey said: “Even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exists today, the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution of property values to any tortious conduct.”

The judge had not been presented with any evidence contrary to that presented by the plaintiffs. In fact, WPD’s lawyer had asked that the plaintiffs’ evidence be accepted only “for the purposes of the motion.”

Of the ruling, Pembina says: “The court’s decision brings an end to the case, deciding that a full trial wasn’t even necessary, because the plaintiffs were ‘unable to show that a trial is needed to determine whether the plaintiffs have a cause of action at this time,’ (paragraph 5).

“In lawyer speak, the Honourable Madam Justice Healey granted ‘summary judgment,’ dismissing all of the plaintiffs’ claims. She decided this because the wind farm was not under construction – in fact, it hadn’t even obtained regulatory approvals. So, under the law, the plaintiffs had no claim. This is what the defendants (the wind farm developer and the site’s landowners) argued and what the court accepted.”