Legal battle over Ontario wind turbine farm may redefine ‘harm’

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The right to be free from chronic annoyance is at the heart of a legal challenge that could shake Ontario's multibillion wind-energy business, and limit other industrial development in rural areas.

It pits a family whose farming history goes back a century in Southwestern Ontario against the provincial government, and a consortium known as the K2 Wind Power Project, which includes global companies such as Samsung Renewable Energy Inc.

No evidence shows wind turbines directly harm human health.

But "community annoyance" lasting a year or more and associated with nearby turbines has been linked to headaches, sleep problems, dizziness and high blood pressure, in a study whose summary was released by Health Canada early this month.

The stakes are high. Ontario has 62 separate wind farms approved or proposed, under rules that allow them to be built 550 metres from homes, and at a noise level of up to 40 decibels in rural areas – the level at which the adverse health effects of annoyance set in, according to the World Health Organization.

The government closed the province's last coal-fired energy plant this year, and is trying to help create a clean-energy industry.

Shawn and Tricia Drennan, who brought the challenge to Ontario's environmental review process, say the 140-turbine wind project in their Huron County community would drive them from their 300-acre farm, and destroy their property values.

Subjective feelings of annoyance are not to be trusted, an Ontario government lawyer told a three-judge panel of the Ontario Divisional Court, at a four-day hearing this week.

"If you don't like the source, you're more likely to find the noise annoying," Danielle Meuleman, representing the Ontario Environment Ministry, said.

And even if sleep or heart problems start at the same time a turbine is installed, the health problems may have other causes, she said, citing the testimony of medical experts at the tribunal that approved the project.

She also cited a case in which a resident thanked a wind-turbine operator for having turned it off, when it was in fact on, and a case in which a resident complained about a turbine being on, when it was in fact off.

From a constitutional standpoint, the case has the potential to impose a higher standard on government in protecting citizens from the effects of resource development.

Environmental law in Ontario requires members of the public to show "serious harm" to their health to stop a wind-turbine development from receiving approval.

The farm families argue that the standard should be a "reasonable prospect" of serious harm, which would be much easier to prove.

Toronto lawyer Julian Falconer, representing several farm families, said that whether harm is direct or indirect is irrelevant.

"The nightmare neighbour can split your eardrums or he can drive you crazy, but either way, you end up with serious health effects," he told the judges this week.

Justice D.M. Brown asked Mr. Falconer whether his argument would give the public a constitutional veto over rural development.

"We do as members of the public have a veto," Mr. Falconer replied.

"It's called living in a society that's safe." Governments must not, he said, impose a reasonable prospect of serious harm on their citizens, under Section 7 of the Charter of Rights, which protects "security of the person."

The rights Charter applies only to government, and Matthew Horner, representing the Ontario Attorney-General, argued that no government action is linked to any of the alleged health effects experienced by people near the wind turbines. If anything, it is harder for the public to make a successful Charter claim than to persuade an environmental tribunal that a project is unsafe, he said.

"Not only must they demonstrate that serious harm will occur, they must also show to get in the door of their Charter claim that such harm is state-imposed and that it fails to accord with a principle of fundamental justice." On all three grounds, the Drennans lose, he said.

In front of 100 rural residents in a crowded courtroom who at times laughed at government arguments, drawing rebukes from Associate Chief Justice Frank Marrocco, the Ontario government opposed the use of the Health Canada study summary as fresh evidence in the hearing.

Justice Brown asked Mr. Horner what would be the downside of allowing it in.

He replied that the court had no expert testimony available to help it understand the findings, and that the new information was unimportant: "It wouldn't have changed the result" at the environmental tribunal.

Outside the hearing, Mr. Falconer called the government's opposition to the study a sign of "an unfortunate adversarial exercise in which it's win at all costs, instead of looking at the health issue. We know what's going on. There has been a gold rush in Ontario" around wind energy.

Annoyance, Mr. Falconer added, should be understood not in its colloquial meaning as irritation, but as a form of psychological stress beyond the everyday, and which the government has no right to impose.