Wind Farm Wars

March 9, 2015

By Mark Mikulasik

The approval and review process for wind farm projects was recently considered and approved by the Divisional Court in the case of Dixon v. Director, Ministry of the Environment.

Under the Environmental Protection Act, the Director may issue a Renewable Energy Approval (“REA”). Any Ontario resident may then require that the Environmental Review Tribunal (“ERT”) review an REA. This review is not an appeal of the correctness of the Director’s decision, but is limited to considering whether the project will cause serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment. The onus is on the person requiring the review to prove the harm- the project proponent is not required to prove there was not any harm.

In the Dixon case, the appellants challenged the constitutionality of these provisions, and argued that they were procedurally unfair.

The constitutional challenge involved section 7 of the Charter – security of the person.

The ERT had determined that the appellants had not proven that the projects in issue would cause serious harm. On appeal, the argument was that the “serious harm” standard was impossible to achieve in practice. They argued, for example, that since there is no evidence of what a safe setback distance is, the approval system exposes them to the risk of harm.

The Divisional Court pointed out that not every risk of harm rises to the level of a threat to the security of the person, as that phrase is used in the Charter, which only applies where the government action has a serious and profound effect upon the physical or psychological integrity of the person.

An appeal to the Divisional Court is an appeal of law, and therefore did not review the evidence of harm, but the Court did identify that the ERT had no evidence in front of it which challenged the principles of the renewable energy regulatory regime- that is, that a setback of 550 m from a dwelling that does not generate noise levels in excess of 40 dB does not pose a risk of serious harm to human health. If scientific knowledge of the effects on human health advances, and changes this understanding, the issue might be revisited, but, for now, this seems to be settled.

The ERT and the Divisional Court also considered evidence of health complaints, and held that there was no medical evidence to link the complaints to the effect of turbines. The Court pointed out that the ERT dealt with the evidence on a finding of fact, which cannot be the subject of an appeal.

On the facts of the cases, the Court found no procedural unfairness and dismissed the appeals.

Across Ontario, not just in Thunder Bay, the construction of wind farms remains a hot button issue, but the decision of the Divisional Court in Dixon confirms the rules that opponents must follow in challenging an REA.