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Families failed to prove wind turbines harmful, government lawyer argues

An unidentified anti-wind-farm protester is seen outside the courthouse in London, Ont., on Nov. 18, 2014.

Colin Perkel/The Canadian Press

Families opposed to the erection of large-scale wind farms near their homes failed to prove the projects would cause any serious harm to their health, an Ontario government lawyer said Tuesday.

In his opening comments, Matthew Horner told a Divisional Court panel that a review tribunal was correct to reject objections to the turbines based on health concerns.

"There's no indication that the tribunal made a palpable and overriding error," Horner said late on Day 2 of the hearing.

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He also said the tribunal was right to reject the residents' "novel argument" that the approvals process violates the constitution.

Four families are asking the appellate court to throw out decisions by the Environment Review Tribunal that upheld approvals of three large-scale wind-energy projects.

They also want the approvals process declared unconstitutional on the grounds that the law precludes them from arguing turbines might cause them harm.

In her submissions, another government lawyer, Danielle Meuleman, rejected suggestions the tribunal hearings had been unfair to the families.

Among other things, the families' lawyer had told the court the tribunal was wrong in failing to grant a requested adjournment to allow time to get expert evidence together.

Meuleman countered that the tribunal took into account "all the procedural rights" of everyone involved in deciding against stopping the process.

She also dismissed suggestions the tribunal had "failed" to allow the families to enter a Health Canada study on the effects of wind turbines as evidence.

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A summary of the study, released Nov. 6, found no direct link between turbines and the health of nearby residents but did find a link to their levels of "annoyance" which could have adverse health effects.

"They never asked the tribunal to stop the clock and wait for the results of the Health Canada study," Meuleman said.

In addition, she said, only a summary of the study has been released and no one knows what exactly it means.

"We're all speculating," Meuleman said.

Earlier in the day, the lawyer for the families wrapped up his submissions by asking the court to order the Environmental Review Tribunal to hold new approval-review hearings on the projects.

"Send it back with constitutional relief," Julian Falconer told the justices.

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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.

The case is slated to wrap up Wednesday, with the government and project proponents making further submissions.

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