Landowners who tried to sue wpd Canada and a farm corporation that signed lease agreements for turbines were ordered to pay $107,370 in costs late last week. Their $16-million lawsuit was dismissed in Ontario Superior Court in late April.
The 21 Clearview Township residents have to pay $68,498 to wpd and $38,872 to Beattie Brothers Farms Ltd., and Ed Beattie and Sons Ltd – about $5,000 each – after Madame Justice S.E. Healey dismissed their claim of devaluing their land and causing a loss of use and enjoyment. wpd plans to erect the Fairview Wind Project – eight wind turbines on Beattie-owned land just west of Stayner (near Collingwood).
The court dismissed the case based on the fact the eight-turbine project had not yet received environmental approval and that the plaintiffs were unable to prove that the project will be built.
“The most significant finding made this court was that the plaintiffs’ claims should not have been made prior to the known outcome of the regulatory process,” Justice Healey wrote. She also stated the claims were dismissed without prejudice to future claims once the regulatory process has run its course.
Both sides claimed victory when the case was dismissed. But in releasing her decision about costs, Justice Healey took exception to the way her dismissal of the case was interpreted by the plaintiffs’ counsel, Toronto-based lawyer Eric Gillespie and others.
“As I understand it, that comment has been interpreted by plaintiffs’ counsel as a finding of the court. To the contrary, it is a statement of the legal fiction that the court was engaged in for the analysis of the motion. It should not be read as being of conclusive assistance to these or other plaintiffs in other cases before the courts.”
“It is erroneous to interpret the Reasons as establishing a precedent for the degree of proof required to establish a decrease in property values in these circumstances. As set out in paragraphs 8 and 9 of the Reasons, this court was invited to, and did, engage in a legal fiction in order to cast the plaintiffs’ case in its most favourable light. The legal fiction involved accepting, without requiring the plaintiffs to prove, that they were currently experiencing a decrease in their property values as a result of the announcement of the wind project. ” she wrote.
The plaintiffs have 30 days to pay costs.
A $14 million lawsuit launched last August by 20-plus County families against wpd and 20 participating landowners in Prince Edward County also claims negative impact on property values. wpd plans a 29-turbine project on private land in South Marysburgh and Athol. A decision on the White Pines application by the Ministry of the Environment has not yet been made.
“The claims made in the White Pines lawsuit (Ivak vs wpd) are essentially the same as those made in the Fairview case (Wiggins vs wpd),” said Kevin Surette, of wpd. “As we did in the Fairview case, we have asked the judge for a summary judgement and a hearing is scheduled for September.”
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