OPPONENTS TO WIND FARM DEVELOPMENT BLOWN AWAY: WIGGINS v. WPD CANADA CORPORATION

 

OPPONENTS TO WIND FARM DEVELOPMENT BLOWN AWAY: WIGGINS v. WPD CANADA CORPORATION:

Various landowners (the “Plaintiffs”) residing in Clearview Township, County of Simcoe, brought an action against WPD Canada Corporation (“WPD”) and Beattie Brothers Farms Limited (the “Defendants”). The Plaintiffs were seeking an injunction to prevent the construction and operation of an 18.4 MW industrial wind farm (Fairview Wind Project) and compensatory damages of $16.6 million against the Defendants for loss of property value, negligence, nuisance, trespass, and strict liability. 

On April 22, 2013, the Ontario Superior Court of Justice dismissed the claim against Fairview Wind Farm (“Fairview”) and held that a trial was not necessary as the Plaintiffs were unable to prove that they had a cause of action.

FACTS:

In May of 2010, WPD was awarded a contract to develop and operate Fairview under the Ontario Power Authority’s (“OPA”) Feed-in Tariff (“FIT”) Program.  The Plaintiffs began their action while Fairview was in the early stages of the Renewable Energy Approval (“REA”) process (Fairview was engaged in the mandatory public consultation process) and had issued a public notice of the project.  The Plaintiffs alleged that it was the publishing of the public notice which caused a decline in their property values and that the wind turbines would cause the community to suffer negative health effects.

When the Plaintiffs commenced the action, the Fairview Wind Project was not yet under construction and a REA had not yet been awarded to the Defendants so as to enable the project to secure Notice to Proceed from the OPA.

The Defendants brought a motion for summary judgment asking the Court to dismiss the action as the Plaintiffs’ claims did not give rise to a genuine legal issue requiring a trial.

DECISION:

The Court granted the motion for summary judgment and dismissed all of the Plaintiffs’ claims.  The Court found that the Plaintiffs were unable to show that a trial was needed to determine if the Plaintiffs had a genuine issue.

The Court accepted that the Plaintiffs’ evidence showed that they had suffered a loss in property values but stated that the Plaintiffs did not present evidence linking the decrease in property values to any kind of tortuous actions of the Defendants.  The Plaintiffs also could not prove that the wind turbines would be built and if built, what the exact specifications of the wind turbines would be and if any regulatory restrictions would be imposed.  The Plaintiffs simply could not prove that the Defendants had subjected them, or would subject them, to any of the harms giving rise to any torts. 

The Court found that the claims were speculative and dismissed the claims stating that “our law does not award damages without proof of an actionable wrong giving rise to liability.”[1]  The Court further stated that it is not in the interest of justice to require a trial where the evidentiary record reveals that the damage claims have no chance of success.

The Plaintiffs were unable to prove substantial and unreasonable interference with their properties and therefore were unable to recover damages for the decline in value.

IMPLICATIONS:

The decision is not for or against wind developers. Instead, there was simply insufficient evidence to proceed with a trial. The Honourable Madam Justice Healey decided this because the Fairview wind farm was not under construction and had not even obtained its REA from the Ontario Ministry of the Environment.

Opponents of wind farms should think twice before incurring unnecessary costs associated with bringing an action against wind farm developers without legitimate and concrete evidence of harm.  Courts will not be inclined to make rulings in favour of plaintiffs if no harm can be proven. Parties who bring unsuccessful legal proceedings will generally be required to pay the successful party’s legal costs either partially or in full. The legal costs incurred by many wind developers to defend an action can often be in the range of several hundreds of thousands of dollars.

In its decision, the Court stated that the Plaintiffs’ claims were dismissed without prejudice to the Plaintiffs’ rights to advance the same claim in the future.  Some opponents of wind farms have taken the Court’s wording out of context to mean that the Court has “opened the door” for a flood of further claims to be brought.  What the Court really said was that the Court does not make decisions based on hypothetical situations. If at any point there is concrete evidence to prove the Plaintiffs’ claims, the Court will consider the evidence and will not deprive the Plaintiffs of their legal rights to bring future actions.

The Court further affirmed that injunctions (where a court prohibits a party from continuing with a specific course of action) would only be granted when there is “a high degree of probability that the harms will in fact occur.”[2]  This in turn should make wind farm opponents think twice before commencing court proceedings in an effort to stop the development of wind farms based solely on their dislike or perception of wind farms without concrete evidence of real harms being suffered.

The Court did not make a finding that wind farms reduce property values.  The Court simply ruled that this case, as it stood at the time the action commenced, would not be successful at trial, even if the Plaintiffs’ facts were deemed to be true.

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Sven Walker is a Partner at Dale & Lessmann LLP, a Toronto, Ontario, Canada-based full service law firm with specifc focus on renewable energy law and in particular solar, wind, hydro and biogas energy law. Sven is a legal counsel to a number of industry equipment and technology manufacturers, suppliers and installers, as well as investors, developers, purchasers, contractors, consultants and financing entities. To speak with Sven, please call 416-369-7848 or email him at swalker@dalelessmann.com.

 

Prepared with the assistance of Mariana Fonar, Student-at-Law at Dale & Lessmann LLP.

[1] Paragraph 34.

[2] Paragraph 87.