July 11, 2013
Ontario

County advised to negotiate or risk expropriation

By WES KELLER, For the Citizen | Orangeville Citizen | 2013-07-11 | www.citizen.on.ca

In what must qualify as at least a rare civil action, James and Marian Black are suing a prominent Toronto law firm along with Dufferin Wind Power (DWP) and Farm Owned Power (Melancthon) Ltd. (FOP) in an effort to have their contracts with the wind proponents declared void.

And, in other legal matters respecting wind farms, lawyer Scott Stoll of Aird & Berlis LLP has instructed the county that it would have no grounds on which to challenge the Ontario Energy Board’s leave to construct a transmission line on the rail corridor.

Mr. Stoll’s advice to the county is to negotiate with Dufferin Wind Power on several issues failing which, “If this is not possible we are of the view DWP will apply to the OEB to expropriate the lands necessary for the transmission facilities,” he says in a letter to be presented to county council at its regular July meeting tonight.

In his letter, Mr. Stoll outlines the various situations in which the OEB decision could be challenged. He opines that the OEB did not “commit an error in law” on which the decision could be appealed to a Divisional Court. As well, he says he finds no “factual error” committed by the OEB on which the county could apply a motion to review and vary the decision.

“Section 34 of the OEB Act permits a person to petition cabinet to have a decision of the OEB changed or reviewed. The use of this section requires the petitioner to convince cabinet that the OEB has in some way erred.

“It is rare for cabinet to intervene in such matters. Based upon the information currently available, we are of the view that any of the challenges described above would have a very low probability of success. Therefore, we do not recommend any of the options for challenging the decision of the OEB.

“DWP still requires access to the rail corridor to complete the construction of the transmission facilities. This will mean either the County and DWP coming to an agreement or DWP applying to expropriate under the OEB Act,” Mr. Stoll says.

The Black action against the wind companies and lawyers Shibley Righton was filed in May 2013 at Orangeville and is still active although there have been no appearances and neither the companies nor the law firm has filed a defence.

The Blacks are claiming that the defendants, including the law firm and lawyer Leslie Mason were negligent in their representations in the transfer of contracts between FOP and DWP.

They allege that the defendants “failed to disclose material facts in their possession” and failed to advise adequately and, as such, they allege that they acted “unconscionably.”