Families plan to proceed with turbine Charter challenge

A group of southwestern Ontario residents still hopes to proceed with their constitutional challenge of the province’s approval process for large-scale turbine projects despite a demand from a trio of wind-energy companies for $340,000 in legal costs.

“If we are allowed (by the Ontario Court of Appeal) to move forward, I think the general consensus amongst our group and the other groups is to continue to push this fight forward,” said Kevin McKee, president of Huron-Kinloss Against Lakeside Turbines (HALT), which is helping to fund the legal fight.

The residents, represented by Toronto-based law firm Falconers LLP, are seeking leave to appeal a Dec. 29 decision by the Ontario Divisional Court which ruled against four families who live close to proposed wind farms and have serious concerns about the health impacts of industrial turbines.

A decision on whether Ontario’s top court will hear the matter is expected within the next few months.

K2 Wind Ontario, St. Columban Energy LP and Armow Wind have each filed submissions with Divisional Court for order of costs in the amounts of $201,649.10, $120,000 and $17,250.52, respectively.

Falconer LLP, which is representing the Drennan, Ryan, Dixon and Kroeplin appellants, is asking the court to reject the request.

The law firm, according to court documents, says the costs should not be awarded because the issues raised by the appellants in Divisional Court “were of fundamental importance to the public interest as a challenge to the constitutionality of legislation that appears on its face to expose citizens to a reasonable prospect of serious harm to their health.”

It also argues the award would create a crippling financial loss to the families and undermine access to justice.

The wind companies, according to court documents, say the “anti-wind advocates” knew and understood the potential cost consequences of litigating a Divisional Court appeal but decided to proceed anyway. The firms say the appellants should not be able to shield themselves from cost exposure on the basis that this was “public interest” litigation, as that argument was rejected in a previous appeal. The companies also say their requests for costs are reasonable and the appellants have the means to pay.

K2 Wind, which is seeking costs from Shawn and Tricia Drennan, also says a motion by the appellants for a stay pending appeal should never have been brought to Divisional Court and was without merit. The Drennan’s decision to proceed with the motion resulted in a considerable expense to K2, the legal documents say.

Shawn Drennan said he believes the request for $340,000 in legal costs is an attempt by the wind companies to run the appellants out of money and stop the legal proceeding as quickly as possible.

“I think they’re trying to bankrupt us,” he told The Sun Times Thursday.

McKee said the appellants have already spent about $700,000, before court costs, on the so-called “Charter challenge,” which claims the province’s process for granting wind farm approvals violates the residents’ right to security of the person guaranteed by the Canadian Charter of Rights and Freedoms.

The four families named as appellants in the case are each supported by an anti-wind farm community group.

HALT has objected to the approval of a proposed 92-turbine Armow wind farm near Kincardine. Meanwhile, SWEAR (Safe Wind Energy for All Residents) has opposed a 140-turbine K2 project near Goderich and HEAT (Huron East Against Turbines) is backing opposition to the 15-turbine St. Columban wind farm near Seaforth.

The province’s approval of each of the wind farms was appealed to the Environmental Review Tribunal. In each case, the ERT dismissed the appeals.

At the ERT, the onus is on the appellants to show the renewable energy project will cause serious harm to human health or serious irreversible harm to animal or plant life or the environment.

The tribunals each ruled the appellants had failed to do so. It also ruled that considering a Charter question related to security of person is outside of the ERT’s jurisdiction.

After the ERT decisions were issued, the three cases were joined to be heard together as appeals at Divisional Court late last year. The panel of judges found the ERT did not make an error in the way it dealt with the families’ claims.

The groups are now hoping the Ontario Court of Appeals will consider the Charter question and whether the ERT’s “serious harm threshold” violates the precautionary principle set out in Canada's Environmental Protection Act to prevent harm even when not all evidence is in.

Donations and more information on the appellants’ case can be found at www.halt-safe.ca.

“Basically what we're fighting is setbacks. It’s not necessarily an anti-wind movement. It’s that the setbacks aren’t appropriate to protect the health and safety of people,” McKee said in a January interview.