August 1, 2013

Wind power firm wins $100,000 costs award

By WES KELLER, For the Citizen | Orangeville Citizen | 2013-08-01 |

Madam Justice Susan Healey has awarded about $107,000 to WPD Canada Corp. and the Beattie Brothers, proponents of Fairview Wind Farm near Stayner, for their costs so far in defending a $17-million lawsuit launched by Sylvia Wiggins and about 20 other property owners opposed to the development.

Justice Healy had dismissed the action as premature and unfounded in a pretrial motion brought by WPD and the other defendants.

She has also taken exception to a “mischaracterization” of her ruling in a news release by lawyer Eric Gillespie, who described the dismissal as “a win” for the antiwindpower movement.

His description had been based on the fact that evidence purporting to prove devaluation of property values and also of adverse health effects had remained uncontested by the Superior Court.

But Justice Healey says in her costs award:

“First, the evidence of property values was received in a manner that would not be permitted at trial. Such fact could likely only be established through expert testimony alter all the requirements of the Rules had been met, and only after the court accepting that the expert witness was properly qualified to speak to the subject matter in question, and able to reliably give evidence on that subject.

“Second, the evidence was untested by cross examination, or challenged by any evidence sought to be adduced by the defendants. Whether the plaintiffs would be able to prove a decrease in property values when those adversarial safeguards are in place at a trial is a matter of speculation at this point,” she says in a clarification of her ruling.

There were actually two groups of defendants:

WPD Canada Corp. and Beattie Brothers Farms; and WPD Canada Corp. and Ed Beattie & Son Ltd., as well as slightly differing groups of plaintiffs in the action.

“Summary judgment was ordered, dismissing all of the claims in each action.

“As a result of their success and based upon the factors set out in 57.910 of the Rules of Civil Procedure, the defendants seek costs on a partial indemnity basis. wpd seeks the amount of $68,498.59, and the Beattie Companies the amount of $38,872.19, inclusive of disbursements and tax,” reads the award in part.

Those amounts were granted, and are to be paid within 30 days.

The reference is Wiggins v WPD Canada Corp., 2013 ONSC 4906, File No. CIV- 114152.

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