SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-1152
DATE: 20130422

RE: SYLVIA WIGGINS, CATHERINE MCINNIS, DONALD MCINNIS, DIANA GARBUTT, PAUL GARBUTT, JOHN HILTON SMITH, EDNA SMITH , DEBORAH SYNNOTT, DONALD COUTTS, BRENDA LYNNE COUTTS, PETER GIGNAC, JOANNE GIGNAC, HUGH MCLACHLIN, REBECCA MCLACHLIN, JAMES HUSTON and CLAUDIA HUSTON , Plaintiffs

AND:

WPD CANADA CORPORATION and BEATTIE BROTHERS FARMS LIMITED, Defendants

COURT FILE NO.: CV-12-0344

RE: MARY SKELTON and BETTY LOUIS SCHNEIDER and MELODIE BURKETT and STANLEY BUDA and JO ANN BUDA, Plaintiffs

AND:

WPD CANADA CORPORATION and ED. BEATTIE & SON LIMITED, Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
E.K. Gillespie and E. Wallace, for the Responding Party/Plaintiffs

P.G. Duffy and I.A. Minott and J. Long, for the Moving Party/Defendants, WPD Canada Corporation

A. Faith, S. Lakhani, for the Moving Party/Defendants, Beattie Brothers Farms Limited and Ed. Beattie & Son Limited

HEARD: February 27 and March 1, 2013

ENDORSEMENT

Nature of the Motions

[1] There are four motions before this court, brought by the defendants in each of court actions no. CV-11-1152 and CV-12-0344. The moving parties, wpd Canada Corporation (“wpd”), Beattie Brothers Farms Limited, and Ed Beattie & Sons Limited (collectively the “Beattie companies”) all request the same relief in their motions: that the claims against them be dismissed in their entirety, or alternatively, that partial summary judgment be granted dismissing those parts of the claims which do not give rise to a genuine issue requiring a trial.

[2] In action no. CV-11-1152, various landowners residing in Clearview Township, County of Simcoe (collectively “Wiggins et al.” or “the plaintiffs”) seek an interim, interlocutory and permanent injunction against wpd restraining the construction and operation of industrial wind turbines (the “Fairview Wind Project”) on lands owned by Beattie Brothers Farms Limited, and seek compensatory damages of $11.8 million against both defendants for negligence, nuisance, trespass, and strict liability.

[3] In action no. CV-12-0344, various landowners (collectively “Skelton et al.” or “the plaintiffs”) seek the same injunctive relief against wpd and compensatory damages of $4.8 million against both defendants for negligence, nuisance, trespass, and strict liability.

[4] The claims mirror one another with respect to the specifics that have been pled for each cause of action.

Decision

[5] For the reasons that follow, this court orders that summary judgment shall be granted dismissing all of the claims in each action, as the plaintiffs are unable to show that a trial is needed to determine whether the plaintiffs have a cause of action at this time. The plaintiffs have also not shown that there is a genuine issue requiring a trial as to whether they have met the test for a quia timet injunction.

[6] This order is made without prejudice to the plaintiffs’ rights to commence an action for identical or similar relief when and if the Fairview Wind Project receives the necessary approvals to be constructed.

Undisputed Facts

[7] There are two uncontentious facts. The first is that the Fairview Wind Project is not yet under construction. The second is that the regulatory approvals that must be granted for the project to go ahead through the renewable energy approval process (the “REA process”) have not yet occurred, and the REA process is in its inception.

[8] The plaintiffs’ evidence is unchallenged, and the court was invited by the moving parties to take the plaintiffs’ evidence as proven in order to place the plaintiffs’ cases at their most favourable for the purpose of these motions. I have adopted this submission even though these are not motions made pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but rather pursuant to Rule 20.01(3).

[9] In summary, the plaintiffs’ evidence shows that they have already suffered harm through a loss in property values and a corresponding interference with the use and enjoyment of their properties. They have provided expert acoustic and medical evidence commenting on the adverse health effects to be expected from the proposed Fairview Wind Project.

Issues to be determined on the motion

[10] The parties agree that the questions to be determined are questions of law only, and are as follows: Is there a genuine issue requiring a trial with respect to the plaintiffs’ claims in negligence, nuisance, trespass, strict liability as articulated by the rule in Rylands v. Fletcher, or with respect to their claim for injunctive relief?

Positions of the Parties

[11] It is the position of the moving parties that all of the plaintiffs’ claims are speculative, premature, and incapable of proof given that the Fairview Wind Project has not yet been given renewable energy approval by the Ministry of the Environment (“MOE”) and, as such the scope, and even the very existence, of the Project was uncertain when the actions were commenced. These uncertainties remain at the time of this motion.

[12] It is the position of the plaintiffs that they are currently experiencing harms that entitle them to both a quia timet injunction and damages, and that they are not required at law to let the regulatory approval process run its course before pursuing their common law remedies. They assert that the uncontradicted evidence filed by them in response to the motions shows that they have an arguable case requiring a trial in respect of all of the causes of action advanced.

The Test for Summary Judgment

[13] The purpose of the change from “no genuine issue for trial” to “no genuine issue requiring a trial” in the test for summary judgment was to make summary judgment more readily available. It was also to recognize that with the court’s expanded forensic powers, although there may be issues appropriate for trial, these issues may not require a trial because the court has the power to weigh evidence on a motion for summary judgment. As noted in Healey v. Lakeridge Health Corp. 2010 ONSC 725, 72 C.C.L.T. (3d) 261, at para. 22, aff’d 2011 ONCA 55, 103 O.R. (3d) 401, “Rule 20.04(2.1) is a statutory reversal of the case law that held that a judge cannot assess credibility, weigh evidence, or find facts on a motion for summary judgment.”

[14] As stated in Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502, at para. 20, the change in the wording in the Rules, combined with the powers granted to the motions judge to make evidentiary determinations, necessarily permits a more meaningful review of the paper record and expressly permits the motions judge to make evidentiary determinations and credibility findings. “As a result, consistent with the new principle of proportionality in the Rules, cases or issues need not proceed to trial unless a trial is genuinely required”: Canadian Imperial Bank of Commerce v. Mitchell, supra, at para. 20; Cuthbert v. TD Canada Trust, 2010 ONSC 830, 2010 ONSC 88, 88 C.P.C. (6th) 359, at para. 10.

[15] To succeed on a motion for summary judgment, the moving party must establish that there is no genuine issue of material facts requiring a trial with respect to a claim or defence: Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (C.A.), at. pp. 549-50; 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.). “[T]he test for summary judgment – whether there is a genuine issue of material fact that requires a trial for its resolution as first articulated in Irving Ungerman Ltd. v. Galanis – has not changed” under the new Rule 20: Cuthbert v. TD Canada Trust, supra, at para. 11. If the moving party establishes that there is no genuine issue requiring a trial, the respondent must then establish his claim as being one with “a real chance of success”: Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, at para.15; Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, at para. 27.

[16] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is, or is not, a genuine issue for trial, and may freely canvass the facts and law in doing so. The moving party bears the onus of establishing that there is no triable issue; however, the responding party on a motion for summary judgment must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club, supra, at p. 557. Although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue which requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim or defence has a real chance of success: Cuthbert v. TD Canada Trust, supra, at para. 12, citing Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.).

[17] Even with the change to Rule 20, however, it is to be remembered that the purpose of Rule 20 is not to deny the parties due process. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., supra, at para. 29, “[summary judgment] is not intended to deprive plaintiffs and defendants of their day in court absent demonstrated compliance with its requirements. . . [I]ts purpose is to weed out cases at the pre-trial stage when it can be demonstrated clearly that a trial is unnecessary”. This principle has been reiterated in the now leading case under Rule 20.04, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 [“Combined Air”]. At para. 38 of Combined Air, the Court of Appeal emphasized that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials, and that the guiding consideration is whether the summary judgment process will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.

[18] Combined Air has of course articulated the “full appreciation test” as being that which the motions judge must apply to determine whether or not a trial is required in the interests of justice. The motions judge must ask the question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? At para. 54 of Combined Air, the court directs the motions judge to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues. Unless full appreciation of the evidence and issues is attainable on the motion record, the judge cannot be satisfied that the issues are appropriately resolved on a motion for summary judgment. At para. 52 of Combined Air the court notes that the full appreciation test may be met in cases where there are limited contentious factual issues.

[19] As stated in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17, “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.” It is not sufficient for the responding party to say that more and better evidence will or possibly may be available at trial. The respondent must set out specific facts and coherent evidence organized to show that there is a genuine issue requiring a trial: Pizza Pizza Ltd. v. Gillespie (1990), 1990 4023 (ON SC), 75 O.R. (2d) 225 (Gen. Div.), at p. 238; Canadian Imperial Bank of Commerce v. Mitchell, supra, at para. 18.

[20] Rule 20.04(4) provides that where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.

The Regulatory Framework

[21] In May 2010 wpd was awarded a contract to develop and operate the Fairview Wind Project under the Feed-in Tariff (“FIT”) Program administered by the Ontario Power Authority (“OPA”). Pursuant to the FIT Program, a renewable energy producer may apply for a contract with the OPA guaranteeing a fixed compensation rate for a period of 20 years for the renewable energy that the applicant produces in Ontario. An applicant that satisfies the requirements for participation in the FIT Program is awarded a contract and may proceed with the development of the project once it obtains renewable energy approval from the MOE as required by s. 47.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”).

[22] Other than the collector lines in the municipal allowance, all of the materials and infrastructure of the Fairview Wind Project will be located on land leased from the Beattie companies (the “Project Land”). All construction and installation activities, including vehicles and personnel, will be conducted within the boundaries of the Project Land.

[23] Under O. Reg. 359/09, the “Renewable Energy Approvals Regulation” (the “Regulation”), made under Part V.0.1 of the EPA, there are several key steps involved in the application for approval of a renewable energy project. At the first step, the applicant is required to engage the public, municipalities, and Aboriginal communities in discussions about the project. It is also required to prepare a report of the findings of any studies, along with the proponent's plans for constructing, operating and decommissioning the facility. Step two allows for optional consultation on pre-submission work, and at step three, the applicant provides all of the required information for provincial Ministry approvals. Mandatory consultation requirements must also be met for the application to be considered complete. At step four, a notice of the proposal is posted on the Environmental Registry by the MOE so the public can review and provide comments. At step five, as set out in s. 47.5 of the EPA, the Director may either issue or refuse to issue a renewable energy approval, depending on whether in his or her opinion it is in the public interest to do so. The Director has the power to impose terms and conditions on the renewable energy approval under s. 47.5(2). The Director has additional powers under s. 47.5(3). If in his or her opinion it is in the public interest to do so, the Director may do any of the following:

(a) alter the terms and conditions of a renewable energy approval after it is issued;
(b) impose new terms and conditions on a renewable energy approval; or
(c) suspend or revoke a renewable energy approval.

[24] The purpose of Part V.0.1 of the EPA, which deals with Renewable Energy, is set out in s. 47.2(1) to provide for the protection and conservation of the environment. "Environment" is given the same meaning as in the Environmental Assessment Act, R.S.O. 1990, c. E. 18, as follows:

"environment" means,

(a) air, land or water,
(b) plant and animal life, including human life,
(c) the social, economic and cultural conditions that influence the life of humans or community,
(d) any building, structure, machine or other device or thing made by humans,
(e) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from human activities, or
(f) any part or combination of the foregoing and the interrelationships between any two or more of them, in or of Ontario.

[25] Once the renewable energy approval is issued, any person resident in Ontario has the right under s. 142.1 to appeal the Director’s decision to the Environmental Appeal Tribunal (the “Tribunal”). The grounds for such a hearing are set out in s. 142.1(3) of the EPA as follows:

A person may require a hearing under subsection (2) only on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or
(b) serious and irreversible harm to plant life, animal life for the natural environment.

[26] If an appeal is commenced, the Tribunal has the power under s. 143(2) to grant a stay of the Director's decision or order.

[27] As stated earlier, it is common ground between the parties that the Fairview Wind Project is at the very initial step required under the Regulation, which is the mandatory public consultation step. The Regulation required wpd to notify landowners within 550 metres of the project location, place a notice in the local newspaper, and hold at least two community consultation meetings at the beginning of the process. There is no dispute in this case that these things have occurred. Wpd published the first announcement of its plan on or about June 23, 2010, which incorporated a site map of the proposed project. A subsequent notice was issued on June 8, 2011, containing a Notice of Draft Site Plan and a Notice of a Public Meeting to occur at the Stayner Community Center. These latter documents were issued by wpd in accordance with ss. 15 and 54 of the Regulation, prior to wpd submitting its application for regulatory approval to the MOE.

[28] The Regulation also requires wpd to demonstrate that the location of the wind turbines will not adversely affect public health and the environment. As part of its REA application and in compliance with the mandatory requirements of the Regulation, wpd prepared numerous reports and conducted various assessments, including a Project Description Report, a Construction Plan Report, and a Noise Impact Assessment Report. These reports detail the potentially adverse environmental and health effects that may result from the Fairview Wind Project and the measures wpd must implement to address these adverse effects.

[29] The action of Wiggins et al. was commenced approximately five months after the second public notice was published, and it is the publication of that notice that was the genesis of both actions. The plaintiffs’ core allegation is that wpd’s publication of the Fairview Wind Project in June 2011 caused a decline in their property values.

[30] On August 31, 2012, wpd filed its REA application with the MOE. The Fairview Wind Project has not progressed further; the MOE is currently in the process of assessing wpd’s application for completeness.

The Plaintiffs’ Evidence

[31] In response to the motions, the plaintiffs have filed expert appraisal evidence indicating that their properties are likely presently devalued by between 22 to 50 per cent or more, based upon the Proposal as presented. In an appraisal report prepared by Ben Lansink, who has studied the trend of decreasing property values in the neighbourhood of wind turbines, he opines that:

[t]here is strong evidence that the WPD announcement on June 23, 2010, WPD - Notice of Proposal to Engage in a Renewable Energy Project, has resulted in the inability of many land owners in Clearview being unable to sell their property. There will also likely be a reduction in value.

[32] In addition, the plaintiffs have filed extensive expert medical evidence demonstrating that there is a high probability that the Project will have numerous adverse health impacts. The plaintiffs have significant concerns about the undesirable health effects of living near a wind turbine including sleep disturbance, annoyance, headache, tinnitus, ear pressure, dizziness, vertigo, nausea, visual blurring, tachycardia, irritability, problems of concentration and memory, and/or panic episodes. It is the plaintiffs’ evidence that they have never been warned by the defendants about any health risks. As well as the adverse health effects, the plaintiffs have filed evidence indicating that the presence of wind turbines in the neighbourhood can lower both the physical and environmental quality of life of individuals.

[33] The plaintiffs have also filed expert technical evidence from an acoustician. He opines that there is a very strong probability that the Project will be unable to operate in compliance with regulatory standards, as it will exceed the MOE 40 dBA threshold for wind turbine noise, thereby exposing the plaintiffs to higher levels of sound than are considered safe for people in residential, educational, or other inhabited structures on a constant basis. Accordingly, the project poses significant direct health risks. The plaintiffs have presented evidence that wpd has been put on notice by their counsel that it has failed to fully and accurately describe any potential health effects of the Project as required as part of the REA process. Although a response was given by wpd that it was in the process of researching and collecting information, no further information has been provided by wpd regarding the potential health impacts of the Project.

Analysis

[34] The reason that each of the claims is being dismissed is that our law does not award damages without proof of an actionable wrong giving rise to liability. Even though an individual may suffer losses caused by another’s behaviour, not all loss is compensable under our common law. It is a fundamental principle in tort law that damages will only be awarded where a plaintiff is able to show that there has been tortious behaviour – in this case, grounded in negligence, nuisance, trespass, or strict liability – for which compensation should be given to the persons injuriously affected. Even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exists today the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution in property values to any tortious conduct.

[35] Similarly, the plaintiffs are unable to prove, currently, that the Fairview Wind Project will be built. The plaintiffs are unable to prove, currently, that if the Fairview Wind Project is built, it will be built according to the specifications set out in the Draft Site Plan. They are unable to prove, currently, what conditions or restrictions may be imposed by the Director if approval is given, or by the Tribunal if the Director’s decision is appealed. They are accordingly unable to prove that either of the defendants has subjected them, or will subject them, to any of the harms for which the tort claims seek redress.

[36] It is not in the interests of justice to require a trial where the evidentiary record reveals that the damage claims have no chance of success.

[37] It is possible, however, that they may be wronged by one or more of the defendants committing a tort in the future when and if the Fairview Wind Project is either given approval and/or constructed. For that reason the claims are being dismissed without prejudice to the plaintiffs’ rights to advance the same and other claims in the future in relation to this venture.

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