Associate Chief Justice Frank Marrocco: “It’s not much of a test if you first have to get sick in order to prove it”

do no harmColin Perkel, Globe and Mail
Families opposed to the erection of large-scale wind farms near their homes failed to prove the projects would cause any serious harm to their health, an Ontario government lawyer said Tuesday. In his opening comments, Matthew Horner told a Divisional Court panel that a review tribunal was correct to reject objections to the turbines based on health concerns.

“There’s no indication that the tribunal made a palpable and overriding error,” Horner said late on Day 2 of the hearing. He also said the tribunal was right to reject the residents’ “novel argument” that the approvals process violates the constitution.

Four families are asking the appellate court to throw out decisions by the Environment Review Tribunal that upheld approvals of three large-scale wind-energy projects. They also want the approvals process declared unconstitutional on the grounds that the law precludes them from arguing turbines might cause them harm. Read article

11 thoughts on “Associate Chief Justice Frank Marrocco: “It’s not much of a test if you first have to get sick in order to prove it”

  1. The ‘Hugo’ @ ground level………….

    Participatory democracy – with all the…………wait…………
    “all the procedural rights” – and, you can wear ‘ear muffs’ –
    if you like – government lawyers!

    ‘[excerpt] Meuleman countered that the tribunal took into account “all the procedural rights” of everyone involved in deciding against stopping the process.

    She also dismissed suggestions the tribunal had “failed” to allow the families to enter a Health Canada study on the effects of wind turbines as evidence.

    A summary of the study, released Nov. 6, found no direct link between turbines and the health of nearby residents but did find a link to their levels of “annoyance” which could have adverse health effects.

    “They never asked the tribunal to stop the clock and wait for the results of the Health Canada study,” Meuleman said.

    In addition, she said, only a summary of the study has been released and no one knows what exactly it means.

    “We’re all speculating,” Meuleman said.’

    Liberals now propose – ‘speculating-fest’……..for the holidays – oh yeah!
    and, it’s an election year!

    If there’s any – ‘common sense’ in the courtroom – justice will be served;
    halt all projects!

    ‘[excerpt] Earlier in the day, the lawyer for the families wrapped up his submissions by asking the court to order the Environmental Review Tribunal to hold new approval-review hearings on the projects.

    “Send it back with constitutional relief,” Julian Falconer told the justices.

    The constitutional relief, Falconer said, would involve “reading down” the relevant legislation, the lawyer said.

    Justice David Brown asked what the altered legislation might look like and Falconer said it should create a “reasonable prospect of harm” as a ground to challenge wind-energy projects.

    As it now stands, opponents have to prove they have suffered actual harm before they can stop a project, the lawyer said.

    “I understand it’s not much of a test if you first have to get sick in order to prove it,” Associate Chief Justice Frank Marrocco observed.’

    p.s. hahahahaha……Government ‘big mouth’ said,
    “They never asked the tribunal to stop the clock and wait for the results of the Health Canada study,” Meuleman said.’

    Stop the clock now!…………
    ‘[excerpt] “I understand it’s not much of a test if you first have to get sick in order to prove it,” Associate Chief Justice Frank Marrocco observed.’

    Go Falconer!

    • Hey Ontario!

      Take a lesson from Stephen Harper……….

      ‘[excerpt] The Business Insider beamed that Harper showed Australia’s own anti-Putin conservative Prime Minister Tony Abbott “how to shirtfront the Russian president”–shirtfront being an Australian term similar to “smackdown.”’

      ‘[excerpt] Harper, according to the report, pointedly withheld his hand before responding in English, “I guess I’ll shake your hand but I have only one thing to say to you: You need to get out of Ukraine.”’

      Go Falconer!

  2. Like many of the respected and informed commenters here…I am gone…
    This site used have comments that were informative….
    …now it is just a couple of people that copy and paste what I have already read…or…the commenter that always posts who is who ,without any correlation , substance or validity to the article…
    Something went terribly wrong with this site…

    I am sure that this comment will not be posted…but…wake up admins…

    This site used to be a force…now it is a joke…

    …even Jutta who used to try and defeat OWR …just laughs

    • Too bad if you can’t correlate or connect the dots in this energy fiasco situation. Maybe you are not well enough informed to be able to able to correlate information.

      • The Health Canada Study is a developing situation so it will take time to correlate the information. And there are people working on this now.

        What will Jutta do when the pork she produces costs too much for people to be able to buy the pork she produces?

    • Hey Judges!

      Are you sick and tired of wind energy fraud wasting all of our court resources?
      Or not?

  3. Look at this interesting case study:

    Study tells more of turbine impacts

    Credit: By Chris Aldridge, Tribune Staff Writer | Huron Daily Tribune | Wednesday, November 19, 2014 | ~~

    HURON COUNTY — Sarah Mills hopes townships deciding whether or not to allow wind energy development can take the results of her study and understand the likely impacts.

    Mills, a University of Michigan doctoral candidate from Monroe County, wrapped up a two-year study of wind parks in Huron County and presented her findings Tuesday.

    “Essentially, before, it was either pro-wind people or anti-wind people that were telling you this,” Mills said. “This is a third-party study telling you this.”

    Mills gathered data from Michigan Wind I in Ubly; Harvest I in Oliver and Chandler townships; DTE Energy’s project in Sigel and Bloomfield townships; and Stoney Corners Wind Farm, which contains 29 wind turbines in Missaukee and Osceola counties.

    Surveys were sent to 1,730 landowners in nine townships. Mills, citing a “fantastic” 71 percent response rate, said she is confident that results are representative of the county.

    Several landowners’ responses illuminate “one of the things that people don’t talk about,” Mills said.

    “Your community should know that there will be blinking red lights at night,” Mills said. “That was a big concern that people were sharing with me.”

    There’s also a takeaway in terms of economic impacts of wind energy.

    “(Economic impacts) are really felt by the people with turbines on their property, but not so much by anybody else,” Mills said, adding that spreading economic benefits more broadly could be a good thing.

    In townships where developers forecast high revenue and a number of new jobs, “citizens were less satisfied because developers overpromised and under-delivered,” Mills said.

    But those who are “anti-wind energy” seem to be the minority, she said — and the study also highlighted positive responses from landowners.

    Mills says interviews and data show people with turbines on their land are more likely to have a succession plan in place.

    “People were telling me that ‘Now our kids see a future in farming,’ ” Mills said.

    Results show 80 percent of those surveyed who have turbines on their property have a succession plan in place, compared to 62 percent of their neighbors.

    “This holds up even when you account for the size of the farming operation,” she said.

    Results also indicate that wind developers, local officials and residents agree on one thing: wind should be regulated at the local level.

    “Again, probably not surprising to many of you in this room,” Mills said during discussion at Tuesday’s board of commissioners meeting.

    In terms of revenue from easements and leases, Mills said most residents checked a box for $3,000 or more in the survey. Residents reported the extra money helps the farming business, in that it could be used to pay property taxes.

    “Does it help? Yes. Tons? No,” Mills said after reviewing responses.

    The question of if it is worth it for landowners to receive money from turbines surfaced.

    Jeff Smith, the county’s building and zoning director, said about a half an acre is taken out of farmland production for most 40- to 80-acre fields for a turbine and access road.

    “That landowner is receiving … $8,000 to $10,000 for that turbine and access road to be there,” The (Michigan Department of Agriculture) looks at $200 an acre as net farm income typically. If they’re getting $8,000 to $10,000 for half an acre, that’s why the farmers are doing it.”

    [In the study, t]itled “Farming the Wind: Preserving Agriculture through Wind Energy Development,” Mills sought answers to the following questions:

    • Do revenues rural landowners receive from wind energy projects change their on-farm investments or long-term succession plans?

    • How does proximity to a wind farm impact residential demand for farmland?

    • How do zoning ordinances affect availability of developable land in the area surrounding a wind farm?

    Mills said she also spoke with township supervisors, assessors, realtors and auctioneers. In doing so, she heard a “really interesting” prospect.

    “There might actually be a possible connection between wind income and new home building,” Mills said. “A couple supervisors were telling me there are new houses being built in these townships with wind turbines, and they’re being built by people who have turbines on their property.”

    The study showed participating landowners are more likely to build a new home, but that those not on farmland are still building.

    “My hypothesis was that people don’t want to build a brand new house in the midst of a wind farm,” Mills said. “I didn’t find that that’s actually the case.”

    What she did find is that people with turbines on their property invest “twice as much as everybody else.”’

    • University of Michigan Center for Local, State and Urban Policy
      Wind power report for 2013.

      Scroll down to Michigan wind maps:

      Note that the eastern part of Lake St. Clair, Ontario is excellent for wind.

      The vast majority of Michigan is designated as poor or marginal for wind resources except for Great Lakes shoreline areas.

      Most of Huron County, MI is designated as poor or marginal except for the shorelines of Saginaw Bay and Lake Huron.

      So why install IWTs in Huron County? Could it be the money from tax credits for developers?

      Michigan’s shore lines are tourist areas and IWTs not very welcome in those areas.

  4. More about Materiality – for the taxpayers.
    Who cares about the shareholders?

    (Re: Main Appeal)
    November 3, 2014
    [3 pages with lawyers’ names]

    4. The Coalition proposes to make the following arguments, which represent
    a unique perspective and are not being made by other parties:
    (ii) That the test for “causation” to be applied by the environmental review
    tribunal, in this case and future cases should be the “material contribution
    test” (as opposed to the “but for test” that was applied in these cases).

    7. The Coalition submits that the legislative scheme for REAs and ERT
    appeals, including the causation provision at s. 145.2.1 (3), must be interpreted in a
    manner consistent with Charter values and norms.
    18. The “but for” test is the prevailing test in the private law tort context. The
    underlying policy consideration for the “but for” test is the concern that a defendant not
    be ordered to pay money for an injury he or she did not cause. However, in public law
    health cases (such as the one at bar), were damages are not the issue, where the science
    and technology are evolving and both sides acknowledge that additional research is
    needed, different causation considerations ought to apply. The intervenor submits that as
    a principle of fundamental justice (rooted in the common law), a lower threshold than
    “but for” – the material contribution test – should apply. The material contribution test
    was set out by Major J. in the private law case of Athey v. Leonetti :
    “The “but for” test is unworkable in some circumstances, so the courts have
    recognized that causation is established where the defendant’s negligence
    “materially contributed” to the occurence of the injury: [citations
    omitted]. A contributing factor is material if it falls ourside the de minimis
    Athey v. Leonetti (1996), 140. D.L.R. (4th) (S.C.C.) see paras 15, 41, pp. 239, 245

    19. Recently, the Supreme Court of Canada in Clements v. Clements expressly
    recognized that the material contribution test is still part of the law in Canada, and that
    new situations may raise new considerations for the application of that test. The example
    used by the Court was “mass toxic tort litigation with multiple plaintiffs, where it is
    established statistically that the defendant’s acts induced an injury on some members of
    the group, but it is impossible to know which ones.” In such a circumstance the threshold
    for proving causation is less onerous than the “but for” test. So too-it is submitted-in
    the case of an ERT hearing. As noted above, based on what occurred in the appeals in
    question, it appears a strict application of the “but for” test was applied.
    Clements v. Clements , 2012 SCC 32, at para. 44′

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