• Protecting Water and Farmland in Simcoe County

Judge awards costs to wind project

In Clearview
Jul 25th, 2013


CLEARVIEW TWP. — A judge has awarded a wind developer costs, while also delivering a stern rebuke to one side’s lawyer for misinterpreting her ruling to the media.

On Wednesday, Madam Justice S.E. Healey awarded wpd Canada and the Beattie family businesses nearly $110,000 in costs for their defense of a challenge by local landowners to wpd’s proposed Fairview wind project.

The group — led by Clearview Township resident John Wiggins, and represented by Eric Gillespie — had presented the argument wpd’s plans to construct eight 500-foot-tall turbines on land owned by the Beatties in the northwest corner of the township would result in diminished property values and negative health effects on neighbours.

However, in a ruling handed down in May, Justice Healey determined the group couldn’t legally challenge the project until the project receives approval from the Ministry of the Environment.

In her ruling, the judge 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 shown 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’.”

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).

In spite of her ruling, Gillespie issued a news release immediately after stating 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.”

Gillespie also characterized the ruling as a “win” for the anti-wind lobby in the province.

In her ruling handed down Wednesday, the judge took issue with Gillespie’s statements — both in the news release, and to the media.

“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,” wrote Justice Healey in her decision. “…this court was invited to, and did, engage in a legal fiction in order to cast the plaintiffs’ case in its most favorable light. That 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.

“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 wrote. “As I understand it, that comment (in the original decision) 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 purposes of the analysis of the motion.”

WPD Canada, Beattie Brothers Farms Limited and Ed Beattie & Sons Limited requested a partial award of costs from the plaintiffs. Madam Justice Healey found that the amount requested — approximately $68,500 for wpd, and $38,900 for the Beattie’s — and was fair, and ordered the amount to be paid within 30 days of her decision.

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.

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