Energy & Power
Ontario court allows lawsuits against wind company and landowners
By Anthony Capkun
April 23, 2013 – In a decision released late yesterday, the Ontario Superior Court of Justice has determined that while residents of Clearview Township cannot bring claims for a proposed industrial wind project at this time, the ruling is “without prejudice to the plaintiffs’ rights to commence an action for identical or similar relief when and if the Fairview Wind Project receives the necessary approvals to be constructed”.
The court has specifically recognized that claims against wind companies and against landowners who agree to host wind turbines are possible as soon as projects receive approval. “There are many people who have been waiting to see how the courts would respond to these types of claims,” said lawyer Eric Gillespie, whose firm acts for the plaintiffs in the actions. “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.”
In addition, Gillespie’s firm acts for other clients in areas where wind projects have been approved. “Dozens of plaintiffs who have already started actions appear to have had the right to bring claims validated,” he said. “We can definitely expect more claims now that this door has been opened.”
After reviewing the evidence of appraiser Ben Lansink, the court stated: “[i]n summary, the plaintiffs’ evidence shows that they have already suffered harm through a loss in property values and the corresponding interference with the use and enjoyment of their properties,” and “The plaintiffs have filed expert appraisal evidence indicating that their properties are likely presently devalued by between 22% 50% or more, based upon the proposal as presented,” and “… [I]n this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values…”
“The judge accepts unreservedly that property value is lost for neighbours of these power projects based on the evidence,” said Jane Wilson, president of a group calling itself Wind Concerns Ontario—a coalition of individuals and community groups concerned about the negative impacts of large-scale wind power developments. “He also accepted that the possibility of adverse health effects from the environmental noise. This is vindication for Ontario’s rural and small urban residents, and for municipal councils who try to protect their citizens by declaring they are not ‘willing hosts’ to wind power generation projects.”
The court also received evidence from Dr. Robert McMurtry, a medical doctor and author on the health effects of industrial wind turbines that, in his view, “there is […] a high probability that the proposal will cause one or more of the following adverse effects to the plaintiffs’ properties: audible noise, low frequency noise, infrasound, visual impact and/or shadow flicker. There is also a high probability that the proposal will cause one or more of the following adverse health effects at the plaintiffs’ properties: sleep disturbance, annoyance, headache, tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability, problems with concentration and memory, and/or panic episodes”.
The court also had evidence from Mr. Richard James, an Institute of Noise Control Engineering (INCE) acoustician, who concluded: “[I]n my professional opinion, the [project] poses a very strong probability almost amounting to a mathematical certainty that the project will […] exceed the MOE 40 dBA thresholds for wind turbine noise…”
While the court concluded that since the project design may change, there is no way of knowing that these effects will, in fact, occur: “[T]he fact that a major wind company and a court accepted this kind of evidence as being proven on this motion appears to be unprecedented,” said John Wiggins who, together with his wife, Sylvia commenced the initial lawsuit. “Government and wind proponents around the world have been denying for many years that turbines devalue properties and cause adverse health effects. To have a multi-national wind company and a court agree that these kinds of problems can be taken as proven elsewhere in the context of this motion, and that a court accepts property losses of 22% to 50% or more are in fact already occurring in Ontario right now, appears to be a real victory”.
The decision noted evidence of property value losses in the range of 22% to 50%. “The effect on Ontario’s economy of property values losses on that scale would be significant and impact municipal tax revenues,” said Wilson. “The government subsidy for large-scale wind power must halt.”