Local opponents to the proposed Fairview Wind Farm will not be able to go ahead with a lawsuit against wpd Canada and the landowners who would host the turbines, at least until the project is actually granted approval.
That was the decision of Superior Court Madam Justice S.E. Healey on Monday, after a preliminary hearing which saw counsel for wpd Canada, Beattie Brothers Farms Limited and Ed Beattie & Sons Limited request that the judge decide whether the claims of the defendents gave rise to a genuine issue requiring a trial.
Two actions were dealt with at the prehearing, one brought by Sylvia Wiggins and 15 neighbouring landowners against wpd and Beattie Brothers Farms Limited, which aims to host turbines on Fairgrounds Road north of County Road 91, and one brought by Mary Skelton and four neighbouring landowners against wpd and Ed Beattie & Son Limited, which owns land south of County Road 91 where turbines are proposed to be sited.
The Wiggins claim was seeking $11.8 million in compensatory damages for negligence, nuisance, trespass and strict liability, as well as an injunction against any construction of turbines; the Skelton claim was seeking damages of $4.8 million for the same four reasons.
For the purpose of the pre-hearing, counsel for wpd Canada invited the court to take the plaintiff’s evidence as proven, and no counter evidence was brought forth by the wind company or the host landowners. This was hailed as a minor victory in a statement released by wpd Canada lawyer Eric Gillespie after the decision, though wpd spokesperson Kevin Surette disagreed.
“This was just the first stage in the proceedings,” said Surette. “Had the judge found that a trial was necessary, we would have obviously countered with our own evidence.”
Counsel for the plaintiffs put three experts on the stand – real estate appraiser Ben Lansink, who testified that the plaintiffs’ properties are likely presently devalued by between 22 to 50 per cent or more, based on the proposed wind farm; Dr. Robert McMurtry, who noted a high probability that the turbines will produce some combination of audible noise, low frequency noise, infrasound, visual impact and shadow flicker, and that these elements will likely cause such things as sleep disturbance, annoyance, headache, tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability, problems with concentration and memory, and panic episodes; and acoustician Richard James, who gave his professional opinion that there is a “very strong probability, almost amounting to a mathematical certainty,” that the project will exceed the Ministry of Environment thresholds of 40 decibels for wind turbine noise.
The judge did seem to give some weight to the evidence regarding property devaluation, noting that “in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values.”
After hearing all of the evidence, however, Madam Justice Healey ruled that all claims in each action should be dismissed, primarily because the project has not yet been approved by the Ministry of Environment, and therefore it is impossible to know exactly what the final project design might look like, and if any of the effects referred to in the plaintiffs’ evidence will in fact occur.
The judge did, however, note that her decision was made without prejudice to the plaintiffs’ right to commence “an action for identical or similar relief when and if the Fairview Wind Project receives the necessary approvals to be constructed.”
That caveat is being celebrated by Gillespie and the plaintiffs, who say it paves the way for lawsuits across Ontario wherever wind farm proposals have been approved.
“There are many people who have been waiting to see how the courts would respond to these types of claims, said Gillespie. “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.”
While Surette, the wpd Canada spokesperson, labeled Monday’s decision a “decisive victory,” he did agree that the potential for future lawsuits remains.
“Certainly, the decision did leave the door open for them to bring action forth at a different stage,” he said.