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Both sides claim court ruling as a win  

Credit:  By Morgan Ian Adams, Enterprise-Bulletin | Monday, May 6, 2013 | www.theenterprisebulletin.com ~~

CLEARVIEW TWP. – A court decision on a proposed wind turbine project has both sides claiming victory.

Last month, the Ontario Superior Court of Justice ruled a group of Clearview residents fighting a wind turbine project can’t legally challenge the project until the project receives approval from the Ministry of the Environment.

However, the ruling by Madam Justice S.E. Healey doesn’t preclude the landowners from launching another legal challenge of WPD Canada’s Fairview Wind Project if and when provincial authorities give it the OK.

In her ruling, Madam Justice Healey wrote that “the plaintiffs are unable to show that a trial is needed to determine whether the plaintiffs have a cause of action at this time.

“The plaintiffs have also not show that there is a genuine issue requiring a trial as to whether they have met the test” for an injunction based on the defendant doing an ‘anticipated damage’.

The plaintiffs, led by Clearview Township resident John Wiggins, presented an argument the project – which would see WPD Canada constructing eight 500-foot-tall turbines in an area in the north-west corner of the township – would result in diminished property values and negative health effects on neighbours.

While the judge noted in her analysis that the court accepts the plaintiffs have suffered losses culminating in diminished property values, “as the evidence exists today the plaintiffs are unable to proved that they have been wronged by the defendants.

“They have not presented any evidence linking the diminution in property values to any” conduct by the defendant.

She also ruled that the potential health effects that may be brought on by noise, light flicker, or vibrations “are speculative at this point because the plaintiffs are unable to prove what, if anything, will be approved (by the province).

“While it is not disputed that there is expert evidence advanced by the plaintiffs which opines that if (the project) goes ahead as proposed it will exceed the noise regulations permitted under the regulation, until the (ministry’s) decision is known… the final form and specifications of the project remain unknown.”

The lawyer for the plaintiffs, Eric Gillespie, saw the case as a win for his clients.

“There are many people who have been waiting to see how the courts would respond to these types of claims,” he stated in a news release. “It now seems clear that as soon as a project is approved, residents can start a claim.

“This appears to be a major step forward for people with concerns about industrial wind projects across Ontario.”

Wiggins, who launched the suit in November, 2011, also saw the ruling as a win for his side in that the courts took, as an ‘accepted fact’, there had been a reduction in property values.

“It is the first time in Canada (that it’s acknowledged) there could be an adverse valuation factor,” he said in an interview with the E-B.

Gillespie also noted that as the evidence of property value losses and health effects went unchallenged by WPD, “for the purposes of the motion, the defendants took the position that this evidence should be taken as proven and the court adopted this submission.”

However, WPD, in a news release issued in response to the judgement and Gillespie’s statements, called it a mischaracterization of the court’s ruling.

“The judge simply accepted into the record, as unchallenged, the unproven evidence submitted by the plaintiffs, so that the court could assess whether there could be a legal basis for the claims,” stated WPD Canada president Ian MacRae. “This evidence is not proof of the plaintiffs’ claims, and the decision does not suggest this.

“The case was dismissed by Justice Healey prior to wpd entering or challenging evidence, due to the inability of the plaintiffs to establish any legal basis for their claims to proceed to trial.”

MacRae said that had the case proceeded to the trial phase, the company would have challenged the plaintiffs’ evidence.

WPD’s proposal is presently being reviewed by Ministry of the Environment to determine whether it is complete. Once it is accepted as complete, it will be posted on the Environmental Registry for public comment.

Source:  By Morgan Ian Adams, Enterprise-Bulletin | Monday, May 6, 2013 | www.theenterprisebulletin.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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