Empowering Wind-Farm Development in Ontario: Dixon v MOE

As wind farms become an increasingly common sight in Ontario’s rural communities, disputes among residents and green-energy developers are likely to occur with ever-greater frequency. In the past two years, the Environmental Review Tribunal (“ERT”) has heard a number of complaints regarding the approval of wind-farm projects by the Ministry of the Environment.

In this post, I will look at a recent Ontario Superior Court of Justice (“ONSC”) divisional court decision—Dixon v Director, Ministry of the Environment, 2014 ONSC 7404—endorsing three ERT review hearings allowing wind-turbine developments to go ahead. The court ultimately shot down a constitutional challenge that, if successful, would have had a massive impact on the province’s burgeoning green-energy sector.

Background

The case before the ONSC involves a trio of wind-farm developments in Huron and Bruce counties. The appellants in each case are residents opposing the construction and operation of wind turbines near their properties, in part on the grounds that the developments pose a threat to human health.

The appellants argued that the MOE’s approval of the projects was “constitutionally flawed” (para 7) and that the ERT hearings were procedurally unfair. In particular, the appellants contended that, as a matter of law, the ERT erred in failing to find that provisions of the Environmental Protection Act, RSO 1990, c E19 [EPA], pertaining to the protection of human health are constitutionally invalid.

The EPA provisions at issue were s. 142.1(3)—which limits ERT hearings to instances in which serious harms to human health are being alleged—and s. 145.2.1(2)—which places the onus on the complainant to prove that a renewable-energy development will cause “serious harm to human health,” a standard the appellants claimed was “impossibly high to achieve as a practical matter” (para 45). Among other remedies, the appellants sought a declaration from the court that “the harms associated with living in close proximity to industrial wind turbines are sufficient to engage section 7 of the Charter” (para 8).

Analysis

In their complaint before the ERT, the appellants attempted to show that the construction and operation of the wind farms would have adverse health effects, that this deprivation was “state-imposed” (para 48), and that the correct threshold for establishing a s. 7 Charter claim is proof of physical harm that is “non-trivial and clinically significant” (para 49).

Additionally, the appellants submitted in their factum that “the imposition of a standard that requires claimants to prove ‘serious harm’ is arbitrary and grossly disproportionate to the interest at stake” and that “the ‘precautionary principle’ should be included as a tenet of fundamental justice” (para 52).

The ONSC accepted that there was “sufficient causal connection” (para 55) between government (which granted licences to the private firms that wished to build and operate the wind farms) and the alleged harm to warrant consideration of a Charter claim. However, the court held that the ERT correctly rejected the substance of the appellants’ constitutional argument.

Firstly, the ONSC found that the statutory language cited above “closely tracks the jurisprudential requirement that in order to establish a violation of security of the person a claimant must demonstrate ‘serious’ harm” (para 60). Secondly, the court found that the statutory test does not depart from the “consensus scientific view” (para 66) about the impact of wind turbines on human health. Finally, the court rejected the appellants’ motion for leave to adduce fresh evidence.

The latter decision is crucial in light of the evolving science (or at least the proliferation of scientific studies) regarding the impact of wind turbines and low-frequency sound on human health. Notably, in an earlier ERT hearing, a Health Canada scientist involved in a study on wind turbines appeared as a witness for one of the appellants.

In the case currently under consideration, the ONSC allowed the appellants to file the preliminary summary of the study (which had subsequently been released) “for the limited purpose of assessing the constitutional validity, or reasonableness, of the statutory harm test contained in [the EPA]” (para 82). Ultimately, this study failed to support the appellants’ position, as it “expressly disclaim[ed] that its results permit drawing any conclusions about causality” between wind turbines and human health (para 87).

Conclusion

Arguably, the most intriguing aspect of this case is the way scientific (and quasi-scientific) evidence was used in an attempt to establish a Charter claim, given the complexity of the issues and the multitude of competing claims. In support of their cause, the appellants adduced evidence from a variety of lay and expert witnesses, including their own testimony and that of specialists (such as acousticians and government officials) and so-called “post-turbine witnesses” (i.e., people in the province who have lived near wind turbines and complained of health problems).

Ultimately, the ERT (and the ONSC, which affirmed its decisions) concluded that the appellants failed to discharge the evidentiary burden of establishing a causative link between wind turbines and serious harms to human health. However, the issue of green-energy development in rural communities remains a live one. It will be interesting to see what novel legal arguments or fresh scientific evidence is put forward by landowners who find themselves in opposition to an unwelcome neighbour.