Court File and Parties

COURT FILE NO.: 200-2012 DATE: 20170412 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Shawn Drennan and Trisha Drennan Plaintiffs – and – K2 Wind Ontario Inc., K2 Wind Ontario Limited Partnership, Agatha Garcia Wright, Director of the Ministry of Environment and Her Majesty the Queen in Right of Ontario Defendants

Counsel: Self-Represented (for the Plaintiffs) Christopher D. Bredt and Graeme A. Hamilton, for the Defendants, K2 Wind Ontario Inc. and K2 Wind Ontario Limited Partnership Emily Bala and Matthew Horner, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: January 19, 2017

BEFORE: Raikes J.

Endorsement

[1] The plaintiffs move for leave to amend their Statement of Claim. As part of that motion, they also seek leave to add the Ministry of Environment and Climate Change (Minister Glen R. Murray) and Ministry of Energy (Minister Glen Thibault) as defendants.

[2] The plaintiffs were represented by counsel when the action was commenced and the Statement of Claim issued. They are now self-represented and are the drafters of the proposed Amended Statement of Claim. The history of the action and related proceedings are set out below.

[3] The defendants, K2 Wind Ontario Inc. and K2 Wind Ontario Limited Partnership (hereafter “the K2 defendants”) oppose the motion to amend and bring a motion to strike various paragraphs of the amended pleading if the amendments are permitted.

[4] The defendant, Her Majesty the Queen in Right of Ontario (hereafter “HMQ”), also opposes the amendments sought by the plaintiffs and moves for an order striking the Amended Statement of Claim in its entirety as against the Ontario defendants.

[5] None of the defendants oppose the plaintiffs’ amendments which delete paragraphs contained in the original Statement of Claim.

[6] To understand the claims which the plaintiffs now wish to advance and the issues that arise on the motions, it is necessary to set out the context for the lawsuit, its peculiar history and the specifics of the amendments for which leave is now sought.

The Parties

[7] The plaintiffs are husband and wife. They own and reside on a family farm in Ashfield Colborne Wawanosh Township.

[8] The K2 defendants own and operate a 270 megawatt wind generation facility on lands immediately adjacent to the plaintiffs’ property. The K2 defendants sought and obtained regulatory approval from the defendant HMQ for its wind project.

[9] The defendant, HMQ, represents the Ministry of the Environment (hereafter “MOE”) as well as the two new Ministries which the plaintiffs wish to add. The regulations and approvals for renewable energy projects like that of the K2 defendants are within the ambit of the MOE.

[10] On November 13, 2012, the K2 defendants applied to the Director of the MOE for renewable energy approval (REA) as required for its wind project.

Regulatory Approval Process

[11] It is helpful at this point to set out the regulatory approval process to provide context for the history of this claim.

[12] The construction and operation of a wind-powered generation facility requires an REA from the MOE issued pursuant to section 47.5 of the Environmental Protection Act, R.S.O. 1990, c.E.19 (EPA). The power to issue an REA is vested in the Director, who is appointed pursuant to section 5 of the EPA.

[13] The criteria for issuance of an REA are set forth in the Renewable Energy Approvals Regulation, O. Reg. 359/09. That regulation sets out a number of environmental and consultative requirements to obtain an REA, and prescribes a minimum setback distance of 550 meters from non-participating residences.

[14] A review of the Director’s decision to issue an REA may be sought by any person resident in Ontario pursuant to section 142.1 of the EPA. The review hearing lies before the Environmental Review Tribunal (ERT).

[15] On a review to the ERT, s. 145.2.1 of the EPA provides that the ERT may only consider whether engaging in the renewable energy project will cause “serious harm to human health” or “serious and irreversible harm to plant life, animal life or the natural environment”. The onus of proving that the renewable energy project will cause this harm rests on the person applying for the review.

[16] The ERT’s decision may then be appealed to the Divisional Court on a question of law pursuant to s. 145.6(1) of the EPA, or to the Minister of the Environment on any other question pursuant to s. 145.6(2).

Statement of Claim

[17] The Statement of Claim in this action was issued November 14, 2012. At that point, no regulatory approvals had yet been granted, but the application for an REA under the Environmental Protection Act (EPA) and its regulations was pending.

[18] As part of the REA process, the K2 defendants and their predecessors filed proposed site plans which depicted the location of wind turbines to be erected nearby the plaintiffs’ home.

[19] According to the allegations in the Statement of Claim, the wind project proposed by the K2 defendants called for the erection and operation of 140 wind turbines, one of which was to be erected only 650 meters from the plaintiffs’ home and a total of 11 turbines were to be within 2 kms of their home.

[20] In their Statement of Claim, the plaintiffs sought, inter alia:

a. Damages – general, special, exemplary, punitive, aggravated and Charter; b. Declaratory relief – prospectively declaring that the decision of the Director of the MOE will violate the plaintiffs’ s. 7 Charter rights, and declaring sections 47.5(1) and 142.1 of the EPA violate the plaintiffs’ s. 7 Charter rights; c. An injunction restraining the Director from granting approval pursuant to s. 47.5(1) of the EPA; and d. An injunction restraining the K2 defendants from commencing construction of the project.

[21] The plaintiffs alleged, inter alia:

a. Constructing and operating the wind turbines without mandatory minimum setbacks of 2 km from the plaintiffs’ home will create a nuisance to the plaintiffs; b. Construction of the wind turbines within 2 km of their home will cause serious health concerns by audible and inaudible sound emitted during operation and by the movement of the blades which causes shadow flicker; c. The value of the plaintiffs’ property will be reduced; d. The K2 defendants owe a duty of care to the plaintiffs to ensure the construction of the wind project will not impact the plaintiffs’ use and enjoyment of their property and will not cause harm including health concerns; e. The K2 defendants are or will be negligent if they construct in accord with their proposed site plan. They have failed in a number of specifically enumerated ways to properly consider the impacts on the plaintiffs and their property; f. The statutory process for granting approval to wind farm projects violates the plaintiffs’ right to security of the person. Specifically, ss. 47.5(1) and 142.1 of the EPA establish a scheme for approving wind projects without requiring the proponent to prove that there are no adverse health impacts from turbines erected within 2 km of a noise receptor; g. The legislative scheme caused the plaintiffs severe psychological stress and subjected the plaintiffs to the threat of significant adverse health effects; h. At the appeal stage of the approval process, the burden will rest on the plaintiffs to show serious harm to health which amounts to an inappropriate reversal of the burden of proof; i. The Director’s discretion to approve is subject to the Charter; j. Approval of the K2 application will violate the plaintiffs’ s. 7 Charter rights; k. The MOE has undertaken no study with respect to adverse health effects from wind turbines operating within 2 km of a residence; l. Enacting a legislative scheme to approve wind projects without any study violates the principles of fundamental justice; m. The minimum setback of 550 meters was established by HMQ without consultation and without study; and n. The precautionary principle should apply.

Motion to Stay Action

[22] Soon after this action was commenced, both sides filed motions: the plaintiffs seeking an injunction and the defendants seeking to dismiss or stay the plaintiffs’ action. On a motion for directions, RSJ Heeney directed the defendants’ motions to strike the plaintiffs’ Statement of Claim or to stay the action be heard first.

[23] The defendants’ motions were heard by Grace J. on March 1, 2013. He released his decision on May 15, 2013. In his reasons (2013 ONSC 2831), Justice Grace concluded that the action may be unnecessary but in any event, it was premature. He stayed the action pending the outcome of the approval process established and set forth in the EPA.

[24] In doing so, Justice Grace indicated that:

a. The Legislature assigned authority to review a decision of the Director to an administrative tribunal, not the court; b. He disagreed that the administrative process was fatally flawed; c. The process established by the EPA was not patently inadequate or unfair; d. There is no basis to conclude that the Tribunal conducts other than a meaningful inquiry; e. While it is understandable that the Drennans would believe it inappropriate that they be legislatively require to bear the burden of proving the wind project will cause serious harm to human health or serious and irreversible harm to plant or animal life or the natural environment, that responsibility did not offend principles of fundamental justice; f. Although the Tribunal lacked authority to “declare” the constitutional invalidity of the impugned sections of the EPA, there is nothing in the EPA which prevented the Tribunal from disregarding provisions which offend the Charter; g. The Tribunal has authority to determine questions of law including the constitutional validity of a provision unless the governing statute indicates otherwise which it does not; and h. The Tribunal afforded the Drennans an “adequate alternate remedy” to an injunction.

[25] In essence, Justice Grace found that the process established by the EPA was the appropriate vehicle to address the concerns of the plaintiffs at that stage; viz. before the any approval was made or reviewed.

Director Granted Approval

[26] The Director granted approval of the K2 wind project on July 23, 2013.

[27] The plaintiffs appealed that decision to the ERT. The appeal was heard October 15, 16, 21-24 and December 17, 2013, and by teleconference on January 2 and 22, 2014.

[28] In that appeal, the plaintiffs advanced, inter alia, the following positions:

a. The provisions of the EPA violate section 7 of the Charter primarily in relation to the “serious harm to human health” test under s. 142.1; b. The approval of the project has a serious adverse impact on the plaintiffs’ physical and psychological integrity; c. The REA process does not require the Director to consider potential health effects on the plaintiffs which, in itself, causes a serious impact on the plaintiffs’ psychological integrity; d. The REA process does not comply with the precautionary principle; e. The EPA permits violations of the plaintiffs’ right to security of the person that fall short of the “serious harm” threshold; and f. The Director erred in granting approval in that the proposed wind project was likely to cause serious harm to the physical and psychological health of the plaintiffs and to the environment.

[29] On February 6, 2014, the ERT dismissed the plaintiffs’ appeal and indicated in its reasons:

a. The ERT did not have jurisdiction to determine the constitutionality of s. 47.5 of the EPA which concerns the discretion of the Director to issue an REA (para. 21); b. The plaintiffs did not provide professional medical opinions to diagnose health complaints from post-turbine witnesses and to establish a causal link between those complaints and wind turbine noise or noise from transformers (para. 213); c. There is no reliable evidence to demonstrate that the project will cause serious a physical or any other serious harm (para. 213); d. The plaintiffs had the onus to establish a deprivation of security of the person under s. 7 of the Charter. That onus was not discharged (para. 214); e. Even if the test to prove a causal connection under s. 7 of the Charter is less onerous or stringent than the threshold under s. 142.1 of the EPA, the plaintiffs failed to meet that lesser burden. Accordingly, it was not necessary for the Tribunal to determine whether the threshold was less stringent under the Charter (para. 215); and f. The plaintiffs did not establish on the facts that the REA appeal provisions or the REA itself violated their right to security of the person under s. 7 of the Charter (para. 227).

[30] The ERT decision details the evidence that was adduced by the plaintiffs and others in that appeal. It also details the arguments that were advanced. At their core, the plaintiffs argued that the test for an REA was too low and inappropriately reversed the burden of proof at the appeal stage. They argued that the onus should rest on the proponent of the wind project to prove there was no likelihood of physical or psychological harm. They also argued that there was adequate evidence available to demonstrate that wind projects of the type proposed by K2 were associated with serious physical and psychological harm.

Divisional Court Appeal

[31] The plaintiffs appealed the decision of the ERT to the Divisional Court. The appeal was heard together with appeals of two other related ERT decisions. The appeals were heard November 17 – 20, 2014. The Divisional Court released its decision dismissing the appeals on December 29, 2014.

[32] The appeal to the Divisional Court was confined to questions of law. In their appeal, the plaintiffs asserted that “aspects of the statutory scheme for review of the Director’s decisions were constitutionally flawed”. The specific errors of law are set out at para. 7 of the decision (2014 ONSC 7404). Those grounds mirror to a large degree the positions advanced at the ERT with respect to s. 7 of the Charter.

[33] The Divisional Court set out the positions advanced by the plaintiffs (appellants on the appeal) at para. 52 quoting the following paragraphs directly from their Factum:

“[158] [A] person appealing an REA must show that engaging in the project will cause “serious harm to human health.” The Appellants respectfully submit that requiring an appellant to show “serious harm” to human health violates section 7, because it exceeds the section 7 threshold that a claimant need only show that it will interfere with bodily integrity or cause serious state-imposed psychological stress.

[160] It is respectfully submitted that the St. Columban Project, the K2 Wind Project, and the SP Armow wind project as approved in the REA, will cause a serious and profound effect on the Appellants’ psychological integrity.

[161] With respect to threshold for physical harm within section 7, the Appellants submit that the harm must be non-trivial, but that it is not required to rise to the level of “serious” harm.

[164] It is respectfully submitted that the harm suffered by those living within close proximity to wind turbines is harm that is sufficient to warrant clinical attention, as borne out by the witnesses before the Tribunal, and as found by the Tribunal in the Erickson decision. A test that requires an appellant to show that the project will cause serious harm fails to capture all the harms that are protected by section 7 of the Charter.

[165] The Appellants submit that the deprivation of their right to security of the person is not in accordance with the principles of fundamental justice…

[166] The Appellants respectfully submit that the imposition of a standard that requires claimants to prove “serious harm” is arbitrary and grossly disproportionate to the interests at stake. The effects of wind turbines are felt in the most private and personal areas of residents’ lives, in their homes and beds, where the state has its lowest interest in intrusion. Given the lack of knowledge about the health effects of wind turbines and the broad range of interests protected by s. 7 of the Charter, the imposition of a “serious harm” standard has no basis in logic or human experience.

[167] For the reasons outlined above…, the Appellants submit that the “precautionary principle” should be included as a tenet of fundamental justice. The Appellants submit that the “serious harm” threshold violates the precautionary principle. As such, the Appellants submit that s. 142.1 of the EPA should be read down to include the precautionary principle. The appellants submit that the evidence led in the Tribunal below met a Charter complaint standard for revoking the impugned REAs.

[168] However, if this Honourable Court finds that the precautionary principle is not a tenet of the principles of fundamental justice, the Appellants submit that a legislative scheme, which puts the onus on the claimant to show a serious risk to human health despite the fact that the regulatory bodies themselves accept that there are knowledge gaps with respect to how industrial wind turbines effect health, is not in accordance with principles of fundamental justice.”

[34] The Divisional Court held that:

a. The appellants challenged the constitutional validity of provisions in the EPA which required the ERT to engage in a Charter analysis which it did (para. 57); b. The government’s authorization of a construction activity which the appellants alleged would cause them harm constitutes a sufficient causal connection between government activity and alleged prejudice to embark on a review and consideration of their Charter claims (para. 58); c. Whether the appellants could establish on evidence a violation of their Charter right to security of the person involved a separate step in the analysis (para. 58); d. The ERT correctly rejected the constitutional claim of the appellants for reasons detailed (paras. 60-75).

Leave to Appeal to Court of Appeal

[35] The plaintiffs sought leave to appeal from the Divisional Court’s decision to the Court of Appeal. That motion for leave was denied on May 28, 2015.

Motions to Amend and Strike Pleadings

[36] After leave to appeal was denied, the defendants each brought motions to strike the Statement of Claim. The plaintiffs, who by this point were self-represented, brought a motion for leave to amend their Statement of Claim and for various other relief.

[37] The matter came before me at a special appointment on October 26, 2016. The defendants proposed that their motions to strike be heard first so as to give the plaintiffs a road map of the claims that survive at this stage.

[38] The motion materials filed by the plaintiffs seeking, inter alia, to amend their Statement of Claim were clearly inadequate, no doubt because the plaintiffs, while well-intentioned, were unschooled in the Rules of Civil Procedure.

[39] I directed that the plaintiffs refile their motion to amend and provided some direction on what was expected of them on such a motion. I recommended that they seek and obtain legal advice on this important step. I adjourned the defendants’ motions to be heard at the same time as the motion to amend.

Proposed Amended Statement of Claim

[40] Attached as Schedule “A” to this decision is a copy of the proposed Amended Statement of Claim on the motions now before me for ease of reference.

[41] I observe at this point that the proposed amended pleading contains numerous paragraphs from the original Statement of Claim which are stroked out – to be deleted and ignored going forward. During argument, the plaintiffs realized belatedly that para. 29 should not have been stroked out and should continue to be part of the amended pleading. The motion proceeded on the basis that that paragraph remained part of the pleading.

Law re Amendment of Pleadings

[42] Rule 5.03(4) of the Rules of Civil Procedure permits the addition of persons as parties to an action who ought to have been joined or whose presence is necessary to enable the court to effectively and completely determine the issues. Leave of the court is required to add parties to an action once commenced: Rule 26.02 of the Rules of Civil Procedure.

[43] Rule 26.01 of the Rules of Civil Procedure requires that leave to amend a pleading be granted unless prejudice would result that cannot be compensated for by costs or an adjournment.

[44] In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, the court summarized the principles applicable to a motion for leave to amend at para. 25 as follows:

“The law regarding leave to amend motions is well-developed and the general principles may be summarized as follows:

• The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to SCC refused, 2010 CarswellOnt 425, and Andersen Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177 (C.A.), at para. 37.
• The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479 (Gen. Div.), rev’d on other grounds (1999), 42 O.R. (3d) 641 (C.A.), aff’d 2002 SCC 18, [2002] 1 S.C.R. 595.
• There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21, and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (C.A.), at para. 65.
• The non-compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King’s Gate Developments Inc. v. Drake (1994), 17 O.R. (3d) 841 (C.A.), at paras. 5-7, and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 25 O.R. (3d) 106 (Gen. Div.), at para. 9.
• Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky (1996), 95 O.A.C. 297 (C.A.), at para. 2, and Andersen Consulting, at paras. 36-37.
• At some point the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), at para. 6.
• The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 27 O.R. (3d) 576 (C.A.), at paras. 3-4, and Plante v. Industrial Alliance Life Insurance Co. (2003), 66 O.R. (3d) 74 (Master), at para. 21.
• The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.”

[45] In Marks v. Ottawa (City), 2011 ONCA 248, the court confirmed the right to refuse an amendment where the allegations would be struck if originally pleaded. The court wrote at para. 19:

“Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 45 O.R. (3d) 498 (Div. Ct.) at paras. 11-15. Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (H.C.J. Master) at p. 721, aff’d at p. 723 (H.C.J.), and quoted with approval in Vaiman v. Yates (1987), 60 O.R. (2d) 696 (H.C.J.) at p. 698, which can be summarized as follows:

• An amendment should be allowed unless it would cause an injustice not compensable in costs.
• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
• No amendment should be struck which, if originally pleaded, would have been struck.
• The proposed amendment must contain sufficient particulars.”

[46] When, as here, the plaintiffs move to amend and the defendants move to strike the proposed amendments as issue estopped, an abuse of process or failing to disclose a cause of action, the determination of that issue should form part of the analysis as to whether to grant leave to amend: Dugal v. Manulife Financial Corporation, 2012 ONSC 387 at paras 1-5.

Addition of New Ministries/Ministers

[47] The plaintiffs seek to add two new Ministries and two Ministers by name. Leave to add those parties is denied because:

a. It is unnecessary and inappropriate to name a Minister to the claim; b. Having named HMQ, it is redundant to then also name the Ministry as a separate party. HMQ already represents the Province: Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, ss. 1, 5(1)(a) and 9; Harabulya v. Ontario (Ministry of Labour), 2005 CarswellOnt 1163 at para. 15.

Causes of Action Asserted

[48] The proposed Amended Statement of Claim asserts the following causes of action:

a. Nuisance; b. Negligence; c. Breach of s. 7 and other provisions of the Charter; and d. Breach of international covenants to which Canada is a signatory.

Nuisance and Negligence

[49] The nuisance and negligence claims are asserted as against the K2 defendants who now operate the wind project pursuant to a licence issued by the Ministry of Energy. The project has been built and the harms the plaintiffs predicted at the outset of the litigation are now alleged to be realized.

[50] The K2 defendants do not seek to strike the amendments in nuisance. They simply portend that a further motion is coming to dismiss the nuisance claim based on the defence of statutory authority.

[51] The K2 defendants initially opposed and sought to strike the negligence claim given the absence of any alleged duty of care owed which followed from the plaintiffs’ removal or striking of para. 29 in the Statement of Claim. As mentioned, that paragraph was inadvertently stroked out but remains in the proposed amended pleading. In addition, the words “and operation” are to be added to the second line immediately following “the construction”. The plaintiffs clearly assert a duty of care is owed in both the construction and operation of the wind project.

[52] Accordingly, the proposed amendments at paras. 1(b), 2(a), 2(b), 3(a), 6(a)-(d) except for the last sentence of 6(d), 7(a), 23(a), 23(h), 25(a)-(c), 27(a), 28(a)-(b), 30(a), 31(a), 31(c) are permitted.

[53] With respect to the allegations in paras. 31(a) and (c), I do not read them as the K2 defendants do; viz. as a claim for damages for breach of a statute, in this case the EPA. Rather, the plaintiffs are alleging damages caused by the plaintiffs’ nuisance and negligence which has produced contaminants as defined by the EPA. Certainly, these paragraphs could be clearer and should be revised to reflect my understanding.

[54] For greater certainty, the following proposed amendments are not permitted for reasons which are set out below: 1(a), the last sentence of 6(d), 23(a)-(g), 23(i)-(j), 31(b), 36(a), 42(a) and 43(a). Those reasons are:

a. Para. 1(a) - it is self-evident that the plaintiffs are persons, i.e. human beings. b. Para. 6(d), last sentence - this sentence adds nothing to the claim. c. Paras. 23(a)-(g), 42(a) and 43(a) - the plaintiffs seek to assert that the K2 defendants are conducting a scientific experiment on them without their consent. It is clear that the defendants are engaged in a business enterprise and this allegation, while no doubt earnestly felt by the plaintiffs, is scandalous. It does not advance their claim that by the operation of the wind project, the K2 defendants are causing harm to the plaintiffs, their property and environment. The factual underpinning for this allegation is absent in any event. d. Para. 31(b) - in this paragraph, the plaintiffs “claim on behalf of” various non-human entities. To the extent that their animals, crops and property are being contaminated and adversely affected, the plaintiffs may seek compensation in nuisance or negligence directly rather than on behalf of the flora and fauna and insects listed. Those entities have no standing to sue although adverse effects upon same may give rise to damages for the plaintiffs. e. Para. 36(a) - it is improper to plead evidence. At this stage, the plaintiffs need only plead the material facts to support the causes of action asserted. Quoting from the medical officer of health is inappropriate in a pleading.

[55] I will deal with the reasons for refusing to permit the proposed amendments at paras. 23(i)-(j) below when I deal with the claim as against HMQ.

[56] I observe, however, that HMQ does not operate the wind project and therefore cannot be liable in nuisance to the plaintiffs.

[57] I turn now to the amendments which deal with alleged breaches of the Charter and international covenants.

Charter and International Covenant Claims

[58] International treaties and conventions are not part of Canadian law unless implemented by statute: Francis v. The Queen, [1956] S.C.R. 618 at p. 621, cited in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 69. The values reflected in those treaties and conventions ratified by Canada may nevertheless aid in the approach to statutory interpretation and judicial review of domestic law: Baker, at para. 70.

[59] The plaintiffs seek leave to amend to plead that the defendants have violated various articles of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They seek declaratory relief and an injunction for violation of the ICCPR.

[60] After para. 1 of the proposed Amended Statement of Claim (the prayer for relief paragraph), the next reference to these international covenants is found in para. 48(a) in which the plaintiffs plead that requiring them to comply with an undertaking on damages if an injunction is granted contravenes their fundamental rights and freedoms. At para. 51(a), there is a bald reference to various articles in these international covenants.

[61] The plaintiff’s reliance on these international covenants is misplaced, and improperly pleaded in any event. The plaintiffs’ claims for breaches of the ICCPR and ICESCR are not actionable. These conventions have not been incorporated by legislation into domestic law and do not create rights legally enforceable by this court.

[62] It is not clear from a reading of the proposed amended pleading what other purpose these international conventions serve and to what issue they are directed. My sense from oral argument is the plaintiffs seek to rely on these international covenants as relevant to their claim that they are the victims of scientific experimentation against their will by the K2 defendants.

[63] I have already found that allegation to be scandalous and not supported by facts properly pleaded. Even if there was a claim for scientific experimentation on the plaintiffs, these international covenants do not ground or assist in such a claim. They do not form part of the domestic law.

[64] Accordingly, the proposed amendments at paras. 1, 48(a) and 51(a) are not permitted. The conventions are referred to in various subparagraphs to para. 1. It is my intent that any reference to those international conventions in this pleading is denied.

[65] I turn now to the plaintiffs’ Charter claims. Where the Statement of Claim referred only to ss. 7 and 24(1) of the Charter, the plaintiff now seeks to plead and rely upon ss. 2(a), 2(b), 2(d), 7, 12, 15, 24, 26, 31 and 52(1).

[66] At para 48(a), the plaintiffs plead that requiring them to comply with an undertaking (incidental to an injunction they seek) will infringe their “absolute, inalienable, fundamental rights and freedoms expressed in The Canadian Constitution, 1982”. They then cite ss. 2(b), 2(d), 7, 12, 26 and 52(1). No facts are pleaded to support that bald allegation save for the allegation at para. 46(a) that they are not in a position to provide a meaningful undertaking to the defendants.

[67] The next reference to the provisions of the Charter is at para. 51(a) where, again, there is a bald allegation of violations of various Charter provisions with no indication by whom nor a pleading of facts to underpin the conclusion that those sections have been violated.

[68] The plaintiffs have pleaded nothing to substantiate how their freedom of conscience or religion, freedom of expression, or freedom of association have been infringed under s. 2 of the Charter. They have pleaded nothing to substantiate how their equality rights have been infringed under s.15 nor have a pleaded that any of their rights pre-dating the advent of the Charter have not been recognized or are in conflict with Charter rights under s. 26. There is nothing to suggest that the distribution of legislative powers is in issue in this proceeding which would engage s. 31 of the Charter.

[69] Even making allowances for the fact that the plaintiffs are self-represented, the plaintiffs claim is so deficient that it cannot be saved. This is more than mere technical deficiency that can be readily corrected.

[70] As for any violation of s. 12, this is inextricably linked to the allegation that they are the victims of experimentation. I note first that the alleged experimentation is by a non-state actor. Second, the conduct of the K2 defendants is not punishment for an offence. Again, there is no basis in the facts pleaded for this claim.

[71] I turn finally to the real dispute: whether the plaintiffs may continue to assert a violation of their s.7 right to security of the person in the face of the decision of the ERT and Divisional Court. The defendants argue that that Charter claim must be rejected on the basis of issue estoppel.

[72] The leading case on issue estoppel is Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. Mr. Justice Binnie wrote at paras. 18 and 19:

“18. The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. ... An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A party should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

19. Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal….”

[73] The preconditions to issue estoppel are:

a. the same question has been decided; b. the judicial decision which is said to create the estoppel was final; and c. the parties to the judicial decision or their privies where the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Danyluk, para. 25.

[74] The doctrine of issue estoppel applies equally to prior decisions by administrative agencies provided the administrative agency’s decision has a “judicial” character: Danyluk, paras. 1, 22 and 35.

Earlier Decisions Judicial and Final?

[75] There are three elements to be taken into account in determining whether the decision in the prior proceeding is a “judicial decision”. The three elements are:

a. The nature of the administrative authority issuing the decision - is it an institution capable of receiving and exercising adjudicative authority? b. Is the particular decision one that is required to be made in a judicial manner? c. Was the decision made in a judicial manner? This last criterion does not require that the decision be made in accordance with judicial requirements: Danyluk, paras. 35-36.

[76] As to finality, a decision is final once a party has availed itself of any right of appeal in relation to the decision or elected not to do so and allowed the appeal period to lapse: Danyluk, para. 57.

[77] In my view, the ERT is clearly an institution capable of receiving and exercising adjudicative authority. It is set up for that very purpose. It has been designated by the Legislature as the body to review decisions of the Director. It sits as a panel, not unlike judges in a court. It receives evidence including expert testimony. It makes findings of fact and applies the law applicable to the EPA including the Charter. Its decisions are binding on the parties; these are not mere recommendations.

[78] Further, the decision made by the ERT is one which is required to be made in a judicial manner. The ERT is a specialized tribunal that renders decisions after a public hearing in which the parties may call evidence and make submissions. In doing so, the ERT made its decision in a judicial manner. It applied an objective legal standard to its findings of fact. That objective legal standard is one prescribed by the EPA.

Issue Estoppel?

[79] The plaintiffs appealed the decision of the ERT to the Divisional Court where the jurisdiction of the Divisional Court is limited to questions of law.

[80] The ERT did not determine the constitutional validity of section 47.5 of the EPA. It held that it lacked the jurisdiction or power to do so. At para. 113, the Divisional Court wrote:

‘What is the statutory mandate of the ERT in respect of renewable energy projects or, using different language from Conway, what matters are properly before the ERT in respect of such projects? In the present case, the Appellants sought from the Tribunal declarations that certain statutory and regulatory provisions were unconstitutional. In considering whether it possessed the jurisdiction to decide questions of law arising under EPA s. 47.5 and s. 54 of the REA Regulation, the Tribunal held that it lacked jurisdiction to do so because of the scope of review accorded to it by EPA s. 145.2.1(2) which empowered it to “review the decision of the Director and shall consider only whether engaging in the renewable energy project in accordance with the renewable energy permit will cause (a) serious harm to human health…” The Tribunal did not err in so concluding. The EPA did not grant the tribunal jurisdiction to decide questions of law under EPA s. 47.5 or s. 54 of the REA Regulation. The jurisdiction of the ERT in respect of renewable energy projects is triggered by a request for a hearing under EPA s. 142.1. At such hearings the EPA does not grant the ERT a broad power to review the Director’s decision issuing a REA, but only grants a limited power of review to determine if the approved renewable energy project will cause serious harm to human health. It therefore was not open to the Tribunal to review the decision of the Director to issue a REA generally to ascertain whether the decision complied with the Charter -- as argued by the Appellants before us-- but only to review whether the project to which the REA was issued would cause serious harm to human health. The Tribunal correctly held that its power to address a Charter claim was limited to the matters assigned to it by EPA s. 142.1.”

[81] At first blush, it would appear that the constitutionality of s. 47.5 of the EPA and s. 54 of the REA Regulation remain undetermined. The ERT lacked jurisdiction to make that determination and therefore correctly did so. The Divisional Court was limited by its power to review only questions of law. It could not review a question of law that the ERT did not decide. At most, the Divisional Court could only uphold that the ERT did not have jurisdiction to make that finding.

[82] However, to succeed in an attack on the constitutionality of s. 47.5 of the EPA, the plaintiffs must establish in this action that their rights have been violated under s. 7. That requires that they demonstrate serious harm has resulted from the decision of the Director to grant the REA. The Divisional Court found that the standard applicable to a s. 7 violation equates to the standard to be met by the plaintiffs on a review under the EPA of the Director’s decision.

[83] The plaintiffs had a full opportunity to adduce evidence before the ERT to establish that the wind project would cause serious harm to the plaintiffs. They failed to meet that evidentiary burden. That is the upshot of the ERT decision and those findings of fact and mixed fact and law are not reviewable by the Divisional Court.

[84] To succeed in this action on its s. 7 claim, the plaintiffs will have to establish the very thing they had the chance to establish and failed to prove at the ERT. That would be a second kick at the can.

[85] The plaintiffs assert that what has changed is the fact that the project is now built and operating, and the effects they predicted are being felt. In other words, they are suffering serious harm from the K2 defendants’ operation of the wind project. However, those harms and the damages for same can and are being asserted as claims for damages in negligence and nuisance. They result from K2’s actions.

[86] The decision by the Director to grant an REA pre-dates the construction and operation of the wind project. That decision cannot be subsequently impugned as a violation of s. 7 rights on evidence not available and not adduced before the ERT; otherwise, no decision would ever be free from future challenge.

[87] The addition of the Minister of Energy and Climate Change and reference to the issuance of the licence to operate the wind turbines once constructed does not alter the fundamental claim being asserted: the plaintiffs will/are suffering serious harm from the decision to allow the K2 project to proceed. This is a re-litigation of what was decided by the ERT and a collateral attack on the findings made in that decision: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at paras. 33-34.

[88] I contrast the decision to grant the approval for the project with post-construction monitoring by the MOE to ensure the wind project operates safely and in compliance with the regulations and restrictions under which permission was granted. The latter may provide a basis for a claim in negligence against HMQ but that is not the claim pleaded nor is it a s. 7 claim. Alternatively, the plaintiffs may bring any ongoing issues to the attention of the Director with their evidence. If the Director takes no action, the plaintiffs may then apply for judicial review in the Divisional Court.

[89] However, the claim which the plaintiffs seek to assert in the proposed Amended Statement of Claim involves the same question, the same parties and a re-litigation of issues that have been determined on a final basis.

[90] I find that the plaintiffs’ claim seeking a declaration that provisions of the EPA violate their s. 7 rights and are thereby unconstitutional is issue estopped. Similarly, the claim for Charter damages and an injunction for violation of their s. 7 rights is barred by issue estoppel. That claim is framed as one which derives from the REA decision and the validity of that decision cannot be re-litigated. The assertion of a claim which is issue estopped is an abuse of process: C.U.P.E., Local 79, paras. 37 and 43.

[91] This finding applies equally to the allegations at paras. 23(i) and (j) of the proposed Amended Statement of Claim. They are an undisguised attempt to re-litigate what has been finally determined.

[92] Accordingly, in addition to those paras. I have denied leave to amend/add above, I deny leave to amend to add paras. 1(fa), 1(ga), 1(ha), 1(l), 1(m), 1(n), 1(o), 5(a), 23(i), 23(j), 32(a), 40(a), 40(b), 41(a), 48(a), 51(a), 52(a) and 53(a) in the draft Amended Statement of Claim, and I grant the defendants’ motions. There is no claim left as against HMQ and the action is hereby dismissed against HMQ and the Director.

Conclusion

[93] I would be remiss if I did not acknowledge the sincerity and passion with which the plaintiffs have pursued their claim to date. They wholeheartedly believe that they and others similarly situated have been harmed by a government policy and legislation that has been foisted upon them with little regard for their interests and their health. One cannot help but admire their tenacity even if the relief they seek is not available through this action.

[94] I order as follows:

a. The following amendments found in the proposed Amended Statement of Claim are permitted and leave to amend for same is hereby granted: i. All paras. that are stroked out, except para. 29, are hereby deleted and form no part of the Amended Statement of Claim; ii. Paras. 1(b), 2(a), 2(b), 3(a), 6(a)-(d) except for the last sentence of 6(d), 7(a), 23(a), 23(h), 25(a)-(c), 27(a), 28(a)-(b), 30(a), 31(a), 31(c) iii. The words “and operation” are added to para. 29 in the second line immediately following “the construction”. b. The balance of the amendments sought by the plaintiffs, including the addition of Ministry of Environment and Climate Change (Minister Glen R. Murray) and Ministry of Energy (Minister Glen Thibault), are denied. c. The action as against HMQ and the Director is hereby dismissed. d. If the parties cannot agree on costs, they may make costs submissions not exceeding 3 pages on the following schedule: i. The defendants within 15 days hereof; ii. The plaintiffs within 30 days hereof.

“Original signed by Justice R. Raikes” The Honourable Justice R.M Raikes

Released: April 12, 2017.