January 13, 2015– Drennan, Dixon-Ryan & Kroeplin Wind Farm Appeals
The Drennan, Dixon-Ryan, and Kroeplin Appellants’ are seeking leave to appeal to the Ontario Court of Appeal on the constitutionality of the government’s approval process for wind turbine projects, and their effect on human health for those living in close proximity to the turbines. The Appellants, all of whom are represented by Falconers LLP, are Families who live in close proximity to pending windfarm projects.
Appellants’ Notice of Motion for Leave to Appeal. January 13, 2015
Judgment. December 29, 2014
In the News
“MPP Upset With Court Decision.” January 12, 2015
“Challenge to Green Energy Act based on deemed breach of rights fails at Ontario appellate court.” January 7, 2015
“Turbine appeal tossed.” January 6, 2015
“Appellant Disappointed with Wind Charter Challenge Ruling.” December 30, 2014
Further Documents on Drennan & Dixon-Ryan Families’ Cases
Kawartha Lakes This Week, Mary Riley
(MANVERS TWP) Ward 16 Councillor Heather Stauble says she’s “in awe of the amount and the quality of the work” that went into a legal challenge to the building of industrial wind turbines in Manvers Township.
As those fighting wpd Canada’s Sumac Ridge wind energy project prepare for a decision next month, Coun. Stauble had nothing but praise for those who put “a tremendous amount of time, energy and skill” volunteering to help the case.
In December 2013, wind energy company wpd Canada was granted Ministry of Environment (MOE) approval to build Sumac Ridge wind energy farm, which involves building five 500-metre high industrial wind turbines near Pontypool. Two of those would be on the Oak Ridges Moraine. Read article
Globe and Mail, Diana Mehta
An Ontario court has dismissed a set of appeals from four families that sought to have provincial legislation related to the approvals of large-scale wind farms declared unconstitutional. In a decision released on Monday, a panel of three Divisional Court judges ruled against the claims of the families who were concerned about the potential health effects of living as close as 500 metres to the turbines.
The families had argued that provincial legislation makes it impossible to scuttle a project on the basis of potential health impacts. The case was considered the first constitutional challenge to the Green Energy Act to reach the appellate court level.
At issue was the proposed $850-million K2 Wind project, which would see 140 turbines put up near Goderich, Ont., the 92-turbine Armow wind farm near Kincardine, Ont., as well as the smaller 15-turbine St. Columban project near Seaforth, Ont. Read article
Colin Perkel,The Canadian Press
TORONTO – An expert tribunal was entitled to conclude a proposed wind farm would devastate a population of already threatened turtles, Ontario’s top court heard Monday. The case, which pits turtles against turbines, could have widespread repercussions as to how endangered species are protected across Canada, and raises questions about the protection of unspoiled areas.
At issue is a proposed nine-turbine wind farm at Ostrander Point south of Belleville on the shore of Lake Ontario. Prince Edward County Field Naturalists Club had successfully argued before the province’s environmental review tribunal that the project on the 324-hectare site would threaten Blanding’s turtles in the area.
Gilead Power, through its Ostrander Point Wind Energy, had Divisional Court overturn that decision in February. It argued the tribunal had made a half-dozen errors in concluding the project would cause “serious and irreversible” harm to the turtles. Addressing the panel in the packed courtroom, lawyer Eric Gillespie, who speaks for the naturalists, pleaded with the three justices to defer to the review tribunal. Read article
“SWEAR is a non profit organization dedicated to holding government accountable for the production of safe wind energy. SWEAR believes the government of Ontario did not exercise due diligence when crafting the Green Energy and Economy Act. A very heavy handed approach was used. Rural Ontario does not take kindly to this type of governance. The Drennan’s, members of SWEAR stepped forward in 2012 to be the named persons on the lawsuit.
Although the Drennans’ name is widely known in this case, there is a broader public interest being served. “It has taken time to educate the public to the fact that this case is not personal to the Drennans, but the understanding is now clearly there. This case is for the people of Ontario who want safe wind energy in their communities and beyond. The government says that massive industrial wind turbines are safe. We, the people, are holding them accountable.””
Read more on Falconers LLP
London Free Press, Jane Sims
The Ontario government wants to halt the growing practice of using meritless lawsuits as a way to muzzle opponents. It’s proposing legislation, the Protection of Public Participation Act, it hopes will stop so-called SLAPPs — strategic lawsuits against public participation — often used to quash criticism and tie up the courts.
“The proposed law would minimize the time and resources wasted by plaintiffs, defendants and the courts on meritless claims, while allowing legitimate complaints to proceed in a timely manner,” the attorney-general’s office said Monday. The new law was drafted after extensive consultations starting in 2010. An advisory panel concluded strategic lawsuits are stopping many people from speaking out on matters of public interest.
The law would be a “fast-track review process for lawsuits alleged to be strategic in nature,” the attorney-general’s office said. A judge would be given powers to apply a legal test to determine if the case could proceed or be dismissed. Read article
By Jonathan Sher, The London Free Press
A judicial fight over the future of wind turbines in Ontario wrapped up Thursday with the fate of the province’s green energy law in the hands of judges. On one side is big money, wind energy giants like Samsung and a Liberal government intent on becoming a world leader in creating green energy.
On the other are four families in Huron and Bruce counties whose homes are close to dozens of proposed turbines. But while it seems a David and Goliath affair, the underdogs have enlisted a legal pugilist who Thursday seemed to dance circles around the arguments of his adversaries, wrapping up a four-day hearing in London with an emotionally-loaded challenge to three Superior Court justices.
“The system has utterly broken down,” said Julian Falconer. “You have been tasked with keeping these people safe.” Falconer was the most dynamic of lawyers representing four families in Southwestern Ontario battling the building of wind farms. It’s not the first time lawyers have challenged the Green Energy Act in court. Three years ago, wind opponents lost in court fighting a decision by an environmental review tribunal to allow a wind farm. But the 2011 effort had a handicap this one does not — it was a judicial review, in which judges must give deference to the tribunal.
This time, Falconer wants the three-judge panel to:
- Halt, by issuing what’s called a stay, wind farms that are expected to be tested in January.
- Rule the environmental tribunal violated the constitutional rights of wind opponents when it refused to allow new evidence from a Health Canada study.
- Allow wind opponents to stop wind farms by showing they might be seriously harmed rather than proving they had been harmed. Read article
By Kate Dubinski, The London Free Press
Lawyers representing four families battling wind turbine projects in Southwestern Ontario continued their legal arguments Tuesday in a London courtroom, arguing that the government is asking rural residents to bear the psychological and physical brunt of green energy projects.
“The legislative scheme is so skewed to fast-track green energy projects that it gives no meaningful way to appeal the projects,” said laywer Asha James, who represents the four families at the divisional court hearing. “(We) submit that given the state of current scientific knowledge, if an appellant is able to prove that there’s a reasonable expectation of harm, that is enough to stop a project.” The lawyers are asking the three Superior Court trial judges hearing an appeal of a decision of the Environmental Review Tribunal to rewrite the law because it’s unfair.
Tuesday was the second day of what was supposed to be a three-day hearing, but the lawyers for the defendants — starting with lawyers for the government — didn’t start their arguments until late in the day, so the hearing will likely go into Thursday. The government lawyers, who will be followed by lawyers representing three wind turbine projects, will argue that the original tribunal found that there wasn’t any serious harm to people living near wind turbines and that the Renewable Energy Act doesn’t deprive anyone of their fundamental rights, said Matthew Horner, one of the government lawyers. Read article
Mike James, Blackburn News
The appeal by a wind turbine company trying to avoid demolition of its turbines near the Chatham airport will start soon. Officials with GDF Suez say they filed their submission last month.
The Transport Canada deadline to submit the package is today. Government officials say the turbines exceed the height and distance restrictions around an airport, and must be torn down by the end of the year. Read article
Deb Van Brenk, London Free Press
Wind turbines are like the “nightmare neighbours” that are “constantly noisy, constantly in your face,” says a lawyer looking to change the rules that govern turbine approvals. Julian Falconer told a divisional court of appeal that the nuisances might not be enough to burst eardrums, “but that neighbour slowly drives you crazy.”
It’s the first constitutional appeal that’s made it to divisional court about the province’s Green Energy Act process to approve the controversial turbines
A lawyer for the Coalition Against Industrial Turbines of Ontario says the case has impact all across the province, and well beyond the three projects (in Goderich, Seaforth and Kincardine) where these disputed projects are planned. A crowd of more than 70 people are in court today to support the appeal. Read article
Barb McKay, Kincardine Independent
A Lucknow farmer has received what he calls a threatening letter from legal counsel for K2 Wind, advising him that he must stop spreading manure on his fields or face a lawsuit.
George Alton owns a farming operation, which includes 300 acres of cash crop and 2,000 head of beef cattle, within the K2 Wind project in Ashfield-Colbourne-Wawanosh Township. He has been corresponding with the wind energy development company since the summer over concerns about potential impacts to his farming operation during construction and once the project is operational, including shadow flicker from turbines.
Alton shared a letter he received in September from Davies, Ward, Phillips and Vineberg, attorneys for K2 Wind, with The Independent accusing him of deliberately interfering with construction of the project by parking his tractor on a public road allowance entrance to the field where construction is taking place. The firm also informed him that spreading manure on his fields “presents a health risk to workers in the area and is a substantial impediment to construction.” Read article
I’m sure everyone reading this has had the experience of phoning some corporate entity (Hydro, Bell, Visa, etc.) and heard the pre-recorded message, “This call is being recorded for quality assurances purposes…”. Yeah right. Well, a similar act is played out in the ERT hearings. Often the wind company will engage a court reporter to provide a transcript of the testimony. Other parties will be offered copies IF they pony up a portion of the costs. Often the MOE will do so. They will use this record further down the line when final submissions are made. What they likely will not do is get the transcript certified. Why, you ask? Because certified transcripts must be submitted to the ERT and then it becomes a public document that anyone can a have access to.
There’s lots of stuff that happens in an ERT that a wind company and their helpers (MOE) wouldn’t want the public to hear. I wish we could have afforded the cost of a court reporter for Nextera’s Adelaide ERT appeal. That’s the way the game is played.
So when an actual certified transcript becomes available, it’s a rare thing indeed. Such is the case with the St.Columban and K-2 appeals and excerpts appeared in the factum submitted for the court case in London in mid-November. Of particular note is the testimony of the post-turbine witnesses for those appeals. The first installment is Barb Ashbee’s testimony for both appeals.
Evidence of post-turbine witnesses heard on all three appeals
The Dixon-Ryan Appellants called the evidence of two post-turbine witnesses, Barb Ashbee and Sandy MacLeod, both of whom were forced to leave their home because of the effects that the wind turbines were having on their health. Their evidence was subsequently entered before the Tribunal by way of transcript on the Drennan and Kroeplin appeals. Continue reading
Petrolia Lambton Independent
Plympton-Wyoming’s proposed wind turbine noise bylaw is going where no regulation has gone before. Council has given first and second reading to a bylaw which regulates the amount of noise coming from industrial wind projects. Council asked staff and the municipality’s lawyers to come up with the bylaw since much of the concern about the project has to do with the potential health effects of the noise coming from the turbine.
Clerk Brianna Coughlin says much of the regulation set out in the bylaw meets standards already set by the provincial government. “We can’t go beyond that,” she says. But Plympton-Wyoming is going to hold the wind energy companies to a new standard. “The only difference (from the provincial standards) is the bylaw has mention of infra-sound which not regulated by the province right now,” says Couglin.
Infrasound is inaudible for most people but can be perceived by other senses and it is measurable according to some experts says Couglin. Under the bylaw, if a resident complains about infra sound, the municipality would hire an engineer qualified to take the measurements before laying a charge. Read article
98 the Beach, by John Divinski
Some Kincardine councillors are not ready to accept a legal opinion they have received on four industrial wind turbines going up at three different locations near Tiverton. A recorded 5-4 vote has put the solicitor’s recommendations on hold.
Councillor Jacqueline Faubert says her motion did not direct council to legally challenge the siting of the four turbines but gave direction for more information on the process to make such a move and the associated costs. Faubert says she doesn’t want to accept the opinion of lawyer Peter Pickfield from Garrod Pickfield LLP until they can step back and review. Read article
Grimsby Lincoln News, By Amanda Moore
In September local residents undertook the mammoth task of proving to a tribunal that wind turbines are impacting their health and the environment.
Further toughening the task was the fact they were only able to argue on the amended application to the HAF Wind Energy Project — which was filed in February after residents discovered four of the five industrial wind turbines were built closer to property lines than regulations stipulate without the required reports or agreements. Anne Fairfield and partner Ed Engel, who live on Sixteen Road and in her words are “surrounded by the project”, filed an appeal to the original renewable energy approval shortly after it was granted in June 2013. That appeal was filed on the grounds the project will impact residents’ health, its impediment on rights granted to Canadians under the Charter of Rights and Freedoms and its impact on air traffic and water wells. Read article
By Jane Sims, The London Free Press
Construction of a giant wind turbine project in Huron County will go on after a judge denied a work stoppage proposed by concerned local residents. Superior Court Justice Lynne Leitch, in a written decision, sided with the K2 and St. Columban projects, saying any harm caused by what’s said to be one of the largest wind projects in Ontario would be remedied if local residents are successful in their constitutional arguments set for November.
Should the residents win in the divisional court, the companies would have to decommission the projects immediately. Until then, Leitch said, she’s satisfied they weren’t causing “irreparable harm” while being constructed. The application to stop construction was made in London last month. The two projects — one near Goderich and one near St. Columban — involve erecting 140 turbines. Read article
By Don Crosby, The Sun Times
NextEra is taking West Grey back to court in its long-standing dispute with the municipality. It’s the latest effort by the company to secure entrance permits for properties in the East Durham Wind energy project and permits allowing oversize and overweight vehicles needed to transport components for the 14 turbines on municipal roads. The project near Priceville was approved under Ontario’s Renewable Energy Approval process on Jan. 20. NextEra’s latest notice of motion, filed Sept. 24, asks the Divisional Court to enforce its own ruling of Aug. 14.
A three-member panel of judges ruled then that West Grey’s bylaws governing entrance permits and oversize/overweight haulage permits were inoperative to the extent they frustrate the East project. The Divisional Court ordered the municipality to expeditiously reconsider East Durham’s Jan. 23 applications for entrance permits and Jan. 31 application for oversize/overweight haulage permits or alternately, consider any fresh applications that NextEra may submit. West Grey was also ordered to pay court costs of $15,000.
West Grey Mayor Kevin Eccles said the municipality made a new offer within 10 days of the Aug. 14 court ruling but it was returned with more conditions. “It came to us with about six more pages than what we sent. Council appointed a working committee on it and they spent about 24 hours going over it again. We sent it back to them and got this reply that they were not satisfied and were going back to court,” Eccles said Friday. Read article
By Barbara Simpson, Sarnia Observer
A high-profile Canadian Charter of Rights and Freedoms challenge over the Ontario government’s wind farm approval process has received some significant local support. Lambton County council has authorized staff to apply for intervenor status on behalf of the county in the Charter challenge spearheaded by three Huron County farm families.
This Charter challenge, to be heard in divisional court in London, is believed to be the first of its kind to be argued at this high of a level in the justice system, county solicitor David Cribbs told council Wednesday. County staff have up to $60,000 to apply on behalf of the county to become an intervenor, and if successful, raise local landowners’ concerns over the provincial approval process as part of the Charter challenge.
“I believe this money is going to be well-invested for Lambton County taxpayers,” Deputy Warden Bev MacDougall told fellow councillors Wednesday. Read article
Hydro One has threatened Clarington councilors with costly legal action if they interfere with construction of a $296 million transformer station
John Spears Toronto Star
CLARINGTON — Hydro One has threatened Clarington councillors with costly legal action if they pass a bylaw that could interfere with construction of a $296-million transformer station.
The bylaw, proposed by Councillor Joe Neal, would impose stiffer requirements on big projects to protect groundwater in Clarington.
It would require the developer of any large project to submit an extensive hydro-geologic assessment – a groundwater study – to the municipality for approval.
Local residents and a University of Guelph hydro-geologist have questioned whether the project could contaminate groundwater aquifers on the Oak Ridge Moraine, or underground and surface water flows. But the proposed bylaw hit a bump Thursday in the form of a stern letter from Hydro One’s law firm, Fasken Martineau. Read article
By Bob Montgomery, Blackburn News
An Ashfield-Colborne-Wawanosh resident says he’s hoping to hear within the next couple of weeks whether his legal request to stop Phase 2 of the wind energy project in the Kingsbridge area has been successful. Shawn Drennan had a hearing in London earlier this week but says realistically he doubts this will be the last one.
Drennan wants the K-2 project, which will place an additional 140 turbines in the Kingsbridge area north of Goderich and around his house, stopped until several studies into health impact have been completed. He argues the province is asking for extensive research on the impact on marine life before proceeding with off-shore turbines, so the same concerns should be addressed regarding the impact of turbines on residents of A-C-W. Read article
By Elliot Ferguson, Kingston Whig-Standard
Opponents of a wind energy development on Amherst Island are appealing two recent decisions about industrial developments near the island. In late August the Ministry of the Environment and Climate Change rejected a pair of requests from the Association to Protect Amherst Island. The association had asked for a full environmental assessment of the TransCanada Napanee Generating Station.
TransCanada is in the early stages of developing a 900-megawatt natural gas-fuelled electricity generating station on the site of the Lennox Generating Station. The group had also asked for an assessment of the cumulative impact of four planned or existing industrial projects near the island, including the existing Lennox generating station, the proposed TransCanada project, a planned upgrade of the Lafarge cement plant and the proposed Windlectric wind energy development on the island.
Instead, the MOE accepted a TransCanada study that showed noise from the new generating station would be acceptable. APAI is appealing both decisions to Environment Minister Glen Murray. John Harrison, a Queen’s University professor emeritus in physics and a member of APAI, said the TransCanada study did not account for fact that the sound would travel across water. “In my view they pulled numbers out of the air to come up with a noise assessment for the north shore of the the island that just so happens to satisfy the Ministry of the Environment and Climate Change guidelines on noise,” Harrison said. Read article
By Jane Sims, The London Free Press
The round of applause in the packed London courtroom was just one small sign of how jangled nerves are in rural Ontario when it comes to wind farms. During arguments when three farmers were asking a judge to stay renewable energy approvals — and effectively shut down construction for the time being — for projects near St. Columban and Goderich in Huron County, the lawyer for one of the corporate interests suggested the court’s decision could have wide-reaching effects.
“If you follow the logic, you should shut down the wind farms across the province,” said Christopher Bredt, lawyer for the K2 Wind project near Goderich, There’s nothing the crowd who came to London from as far away as Windsor and Ottawa wants more.
The drive for renewable energy has set up a David-and-Golaith storyline, pitting farmers against corporate giants. On Monday, the struggle was back in court with the request to stop the renewable energy projects until constitutional arguments can be made before the divisional court Nov. 17. Read article
Sarnia Observer, Paul Morden
Ontario’s Environmental Review Tribunal may just be the first stop for opponents of a 46-turbine wind project Suncor Energy plans to build in Lambton County. The provincial government’s approval of Suncor’s Cedar Point renewable energy project is being appealed to the tribunal by Lambton County, and Aberarder Line residents Kimberley and Richard Bryce.
The Town of Plympton-Wyoming is also seeking to participate in the hearings. The tribunal’s hearings are scheduled to begin in early November at the Camlachie Community Hall, with a preliminary hearing set for October.
The Bryce family is being represented by the Toronto-based law firm headed by Julian Falconer. “They have four young kids and they’re just concerned about the possible health effects associated with having their young children living in close proximity to these wind turbines,” said Asha James, an associate of Falconers LLP. She added the family’s concern is heightened by the fact Health Canada is currently studying the health impacts of wind turbines, “because there are data gaps, and there just isn’t enough research to show how these will affect families, or residents living in close proximity to these turbines.” Read article
*LONDON: The stay application will be heard on Monday starting at 10:00am and will be heard in Courtroom 20 on the 14th floor.
Just FYI although the address is 80 Dundas Street, the entrance is on Queens Avenue.
Protest outside of Courtroom in London on Sept. 22nd before the hearing. Hearing starts at 10:00, aim for 9:00am for protest!
The Globe and Mail, Colin Perkel
The first court phase of a legal fight aimed at scuttling what would be one of Ontario’s largest wind-energy developments kicks off Monday with a farm family trying to force an immediate stop to its construction.
Documents filed in support of their request show Shawn and Tricia Drennan are concerned about the potential harm the 140-turbine K2 Wind project near Goderich, Ont., could cause them.
The first court phase of a legal fight aimed at scuttling what would be one of Ontario’s largest wind-energy developments kicks off Monday with a farm family trying to force an immediate stop to its construction.
Documents filed in support of their request show Shawn and Tricia Drennan are concerned about the potential harm the 140-turbine K2 Wind project near Goderich, Ont., could cause them. Read article
The SWEAR/HEAT Stay Court Proceeding with Julian Falconer and team has been scheduled for Monday, September 22nd and Tuesday, September 23rd in London. The proceeding starts at 10:00 a.m. on Monday morning. We are hoping that lots of people will come out and show their support by peacefully protesting outside the courthouse and respectfully attending inside the court room. Your attendance would be so greatly appreciated. The location for the Stay Hearing is as follows:
80 Dundas Street
London, ON N6A 6B3
The full Divisional Court Hearing will be held November 17-18-19. The location for this Hearing has not been set as of this date. We will let you know when the location has been confirmed. Please circulate to your fellow supporters. For more information on the court proceedings please contact Dave Hemingway at firstname.lastname@example.org. Thank you. See you on the 22nd!
The Prince Edward County Field Naturalists will be back in court in December in a final appeal to prevent Gilead Power and the Ministry of Environment from putting wind turbines on important natural habitat at Ostrander Point. The appeal of a Divisional Court Decision is to be heard Dec. 8-9 at Osgoode Hall in Toronto.
PECFN started opposing this plan when it was first announced in 2007,” notes Cheryl Anderson, of the PECFN. “The opposition is based on a strong belief that the South Shore of Prince Edward County is the wrong place for wind turbines. The area is important to migrating birds, bats and butterflies, it contains Areas of Natural and Scientific Interest, provincially significant wetlands, globally imperilled Alvar habitat and is the home and breeding ground of several avian, reptilian and amphibian species at risk. ”
In spring 2013, PECFN participated in an Environmental Review Tribunal appealing the government’s decision to allow Gilead’s development. The ERT panellists agreed that the development should not proceed. The Government and Gilead appealed that decision to the Divisional Court of Ontario. Read article
Bayshore Broadcasting, by Kevin Bernard
(West Grey) – NextEra has won the latest court battle for its plan to build fourteen, 80 metre tall wind turbines east of Durham. The Ontario Divisional Court has handed down a ruling in the dispute over entrance permits for the 23 megawatt development.
The Court basically tells West Grey to get on with negotiating agreements that will allow the company to proceed. It ruled although the municipality can issue oversize permits and entrance permits but they can’t be used to hold up provincially approved projects like wind turbines. Read article
By Brent Boles, Sarnia Observer
A Suncor plan to build 46 wind turbines in and around the Town of Plympton-Wyoming has been given the green light by provincial officials. A decision posted on the Ontario environmental registry Friday shows that the Cedar Point Wind project has been given renewable energy approval.
“We were expecting it. It’s highly disappointing,” said Ingrid Willemsen of the group We’re Against Industrial Turbines Plympton-Wyoming (WAIT-PW). “All the wind turbine projects seem to get a rubber stamp no matter how many arguments are in place against them.” Other turbines are slated to go up in Lambton Shores and Warwick Township.
While it wasn’t immediately clear when work on the turbines will break ground, Willemsen said she believes the decision means crews could begin building as early as this fall. One of the conditions of approval says that the project must be finished being built within the next three years. When the province reached out for public consultation at the end of 2013, they received more than 1600 comments in return. Read article