Manitoulin association opposing wind turbines supports Charter challenge of Green Energy Act

LONDON—Monday saw the beginning of a three-day wind turbine appeal by the Coalition Against Industrial Wind Turbines (the Coalition) in the Ontario Superior Court of Justice in London, which is being supported locally by the Manitoulin Coalition for Safe Energy Alternatives (MCSEA) Inc.

According to the Falconers LLP website, the firm representing the Coalition, “at issue is 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 wind turbines.” In effect, the province’s Green Energy Act is being challenged 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and Freedoms on the grounds that owners who live near approved wind turbine projects have had their guaranteed rights superceded by the Act.

Scotty and Jennifer Dixon, Thomas and Catherine Ryan, Shawn and Tricia Drennan and Kenneth George and Sharon Ann Kroeplin are representing ‘the Coalition,’ “made up of 14 community-based public interest organizations with substantial interests in the outcome of the appeals,’ among them Manitoulin’s MCSEA Inc. Other member groups hail from Niagara Region, the Counties of Haldimand, Middlesex, Lambton, Norfolk, Wellington, Dufferin, the Municipalities of Kincardine, Saugeen Shores, Grey Highlands, Central Huron and the Township of West Lincoln.

The Coalition will be using the arguments that an additional principle of fundamental justice, under Section 7 of the Canadian Charter of Rights and Freedoms, that arises on the appeals in the principle that a statute designed to protect health cannot be illusory and that the test for ‘causation’ (to prove a direct link between the defendant’s negligence and the claimant’s loss) should henceforth be the ‘material contribution test’ (which is typically only applied in special circumstances and specifically where it is impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the ‘causation’, or ‘but for,’ test, according to Darryl A. Cruz of McCarthy Tetrault).

The Coalition is seeking a constitutional remedy in the form of a reading down of section 145.2.1 (2) of the Environmental Protection Act (EPA) which requires that an appellant must prove that a wind project will cause harm to human health, as well as seeking the revocation of the Renewable Energy Approvals granted for each of the three projects (in each of the three families’ communities that are represented in the Coalition). “That reading down order, if granted, would improve the legislated protection with respect to residents and communities that are near or affected by wind turbine projects,” the appeal states.

This case comes hot on the heels of Health Canada’s Wind Turbine Noise and Health Study released last week that found no ill effects on the health of those living within close proximity of wind turbines.

The appeal is expected to wrap up today, Wednesday, November 19, in London.