Update: constitutional wind turbine court case

imagesThe Canadian Charter of Rights Constitutional court case re industrial wind turbines was heard in London Divisional Court last week from MondayThursday. (was extended into Thursday)  A panel of 3 judges heard the case and indicated they need to take enough time on the decision to ensure due diligence.  There were no references to decision timelines on the appeal.  The decision on the “stay” request of stopping the projects until a decision is made might possibly be sooner as the judge asked when the turbine blades would start turning and the answer was that turbine testing would begin in January.
The Coalition Against Industrial Wind Turbines (CAIWT) lawyer, Richard Macklin, was allowed 15 minutes for his oral presentation in support of the appeal on Monday but no decision was made on whether the coalition would be allowed as intervenors so that decision will come out with the final decision. The coalition argued that various procedures in the Renewable Energy Approvals and the Environmental Review Tribunal appeal process are unconstitutional because they do not protect the health of the community. Some issues presented were: the Director issues wind project approvals without considering health; appeals must be heard and the decision out in 6 months which is a very short a time to hear all the evidence on a serious issue; adjournments are sparingly granted (none granted here); the bar is set too high when we have to prove that the project will cause serious harm to human health; the onus is on those appealing that the project will cause serious harm; and community groups do not have the resources for these appeals whereas the opponents are well resourced. Despite the importance of the issues in these appeals, no group in the coalition can afford to hire counsel on its own, hence the coalition. The coalition also shows that not just people living in the project areas of this appeal are affected but communities all over rural Ontario are being affected.
So in the meantime, we wait for the decision. Whoever wins, there will likely be an appeal to the Supreme Court.


London CTV News on Nov. 18 stated in their online news report:

“Earlier in the day, the lawyer for the families wrapped up more than a day of submissions by asking the court to order the 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.

London Free Press article after the last day of the appeal is below and Falconer’s request.

“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.”


(West Lincoln Wind Action Group)

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