Challenge to Green Energy Act based on deemed breach of rights fails at Ontario appellate court

ONTARIO—A three-judge panel of the Ontario Divisional dismissed the appeals of four families, represented by Julian Falconer, who objected to the proximity of wind turbine projects to their homes. The decision was rendered on Monday, December 29.

The four families (Drennan, Dixon, Ryan and Kroeplin) live within 500 metres of three wind turbine projects in Huron and Bruce counties and the projects’ harm to human health was central to the appeals. The couples were challenging the Green Energy Act under the terms of the Charter of Rights and Freedoms on the grounds that owners who live near approved wind turbine projects have had their guaranteed rights superceded by the Act.

The case was the first constitutional challenge to Ontario’s Green Energy Act to reach the appellate court level.

Following the projects’ approvals by the Ministry of Environment, appeals were made to the Environmental Review Tribunal which ruled that there was no conclusive proof that turbines pose a health hazard to those living near them.

The panel of judges of the Divisional Court found that the Environmental Review Tribunal did not make an error in the way it dealt with the families’ claims but noted that their Charter rights to security of the person were violated.

In court, Mr. Falconer compared the turbines to new neighbours who might drive you to distraction and out of your home because you have no legal way to deal with the situation.

The panel of judges, however, found that the Environmental Review Tribunal had considered evidence related to the turbines adequately.

“It was clear from the Tribunal’s decisions…that they assessed and weighed the evidence of the post-turbine witnesses in light of the expert medical evidence which they heard,” the judges wrote. “That evidence was to the effect that causal conclusions based solely on self-reported health problems were scientifically speculative and likely misleading and that the level of information provided in the medical records of the post-turbine witnesses was insufficient to allow a medical practitioner to make definitive causal assessments between diagnoses, symptoms and wind turbines.”

This ruling follows the Health Canada report released late last year which stated that, following a study of 1,200 Ontario and PEI residents who live within close proximity to wind turbines, that wind turbines cause little to no effect on human health.

Critics, such as the Manitoulin Coalition for Safe Energy Alternatives (MCSEA) Inc., said the Health Canada study was seriously flawed, however, as it was not peer reviewed.