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Couple ordered to pay wpd costs in turbine appeal – despite concern for citizens who try to challenge government

In July, 2015 two of 29 proposed turbines (closest to Brewers Road and Dainard Road) were not approved due to heritage concerns. In April 2017, the Environmental Review Tribunal found the wpd project would cause serious and irreversible harm to the natural environment (Blandings turtles and Little Brown bats) and removed 18 turbines from the project (all on the south shore and south of Royal Road). Not shown on this map is Gilead Power’s nine turbine project on the south shore that failed in 2016 following an ERT ruling after a six-year battle led by the Prince Edward County Field Naturalists. Construction has begun for wpd’s nine remaining turbines. wpd expects them to be operational by next fall. Two citizens groups – APPEC and CCSAGE – continue to pursue action through the courts. (Click to enlarge map)

Two County residents have been ordered to pay wpd Canada $75,000 in costs in the loss of their appeal of a judicial review decision they had hoped would deny industrial wind turbines due to cultural heritage impacts.

South Marysburgh residents Liz Driver and Edwin Rowse challenged the approval of the turbines based on the adequacy of consideration given to heritage resources in the hamlet. They also have property that will be affected by turbines.

The judicial review was heard in April at Osgoode Hall. They were informed, in June, that they lost their case.

“The decision, in our view, did not show that the court had considered all the evidence and the arguments were not well founded; therefore, we brought a motion for leave to appeal the decision,” said Driver.

One of three judges responsible for the appeal decision Oct. 24, 2017 did not agree with the awarding of costs and stated concern for citizens who want to challenge the government in court.

“My difficulty is with a concern for public participation,” said J. Lederer in dissention of the costs. “As a matter of social policy we want people to engage with government when they are unhappy with, or seek clarification of, decisions that have been made. We detract from that ambition if we too easily tell people they will have to pay costs if they engage, but do not succeed, particularly in amounts as high as $75,000.”

Lederer stated wpd Canada was in some sense a bystander to the main debate in the case.

“The primary submissions in response to the applicants were made on behalf of the Director (Ministry of Environment and Climate Change). It was with this party that the principal defence of the process rested.”

The Director (MOECC) did not seek costs.

“The concern of the corporation is a commercial concern,” Lederer stated. “To my mind, those who seek approvals to construct and operate projects that, by their nature, will be controversial, have to expect that those who are impacted will seek to express their concern… As I see it, companies wanting to undertake these projects have to be prepared, when the circumstances call for it, to accept this as a cost of obtaining the required approvals, in the vernacular, as a cost of doing business.”

Lederer stated that the Director not seeking costs was the correct approach, stating the parties seeking them should be left to pay their own.

wpd was successful in defeating the case and requested costs in the amount of $163,961.25. Driver and Rowse opposed any cost award being made against them and sought costs of $369,992.55, no costs, or reduced costs.

“Both wpd and the applicants rely on alleged misconduct of the other side in the course of the litigation in support of their cost claims,” said J. Kiteley and J. Matheson in their costs endorsement. “This was hard-fought litigation, but the conduct complained of by each side does not justify these extraordinary claims.”

Kiteley and Matheson recognized the applicants’ submission that the court should alternatively have made no order, or a reduced order of costs because the case engages issues of public interest and raises novel legal issues.

They agreed with the case’s elements of novelty and public interest but declared that was subsumed in a broad attack on the decision that went well beyond heritage issues and resulted in a protracted and more costly proceeding.

“We conclude that in this case novelty and public interest should be factored in to reduce the costs award… we order that the applicant pay costs to wpd, fixed at $75,000.”

In July, 2015, as a result of letters from Driver and Rowse, with support from the municipality and others, two of 29 proposed turbines (closest to Brewers Road and Dainard Road) were not approved due to heritage concerns. wpd filed a notice of appeal, but withdrew that in November.

The Judicial Review application was first submitted in September 2015, then withdrawn for resubmission when the Renewable Energy Approval and appeals were completed.

In July 2016, another turbine project – by Gilead Power Corporation – for nine turbines on the south shore ended following an Environmental Review Tribunal (ERT) ruling in a six-year battle led by the Prince Edward County Field Naturalists. During the process, in 2014, the Divisional Court found turbine project developer Gilead Power’s demand for $120,000 in legal costs from the Prince Edward County Field Naturalists “was too high” and lowered it to $40,000.

In April 2017, a separate Environmental Review Tribunal found the wpd project would cause serious and irreversible harm to the natural environment (Blandings turtles and Little Brown bats) and removed 18 of the 27 remaining turbines from the project (all on the south shore and south of Royal Road).

Construction has begun on the nine remaining turbine sites. wpd expects the turbines to be operational by next fall.

In the meantime, is action by the citizens’ group Alliance to Protect Prince Edward County, which has made an application to the Ontario Superior Court seeking a declaration that the FIT contract for the White Pines Wind Project is null and void, and an injunction on any further work on the project. A hearing is set for Nov. 17 at 44 Union St., Picton, beginning at 10 a.m.

Late last month, council unanimously supported the work of citizens’ group CCSAGE (Concerned Citizens for Safe and Appropriate Green Energy) which is seeking a Judicial Review in Divisional Court to challenge the Green Energy Act and how it relates to the Renewable Energy Approval for wpd’s project in South Marysburgh.

Steve Ferguson, the ward’s councillor, said resistance to the project should be directed at the legislation that allowed it to happen.

“Their initiative, like that of many others who have invested in excess of $1.5 million plus, the amount of time, is all being funded on their own dime (with citizen donations). That number keeps going up.”

Notwithstanding this setback, Driver and Rowse are seeking leave to appeal the dismissal of the application for judicial review.

Construction under way this week at the location of Turbine 6. Photo by Bill Peel, APPEC

 

 

 

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  1. Administrator says:

    It was postponed. No new hearing date has been set.

  2. hockeynan says:

    How did the hearing go between APPEC and WPD on the 17th

  3. Susan says:

    Raise that destorted view point with residents of South Marysburgh and share the reaction. Lol

  4. hockeynan says:

    I see on the news tonight that hydro one want a 4.5 percent increase next year.IWT contracts are good for 20 years with no increase.

  5. Chuck says:

    Just too funny!Costing us millions upon millions for uneeded power.

  6. hockeynan says:

    Maybe get the message WPD have been very patient and understanding for the last few years.Its time to dig and go forward.They don’t need to march up Main St to get the point across.Keep going forward WPD can’t wait to see the turbines!

  7. Chuck says:

    Appellants have been successful by my count in reducing 2 proposed projects by 27 turbines. Has any successful appellant been provided costs?

  8. Paul Cole says:

    The proceedings in this case were successful to some extent in helping to lower the number of wind turbines to just 9. Liz Driver and Edwin Rowse must have been aware that they may end up being ordered to pay cost incurred by WPD and they decided to continue. It shouldn’t have been a surprise that they may end up paying those costs if their appeal failed….

  9. Gary says:

    Paul, this decision further removes the public from local decision making. The Province already removed any Municipal Government oversight into local land use decisions. Now this ruling greatly reduces the risk of a public challenge as the average Joe that is opposed cannot risk the costs.

  10. Paul Cole says:

    “In Ontario and most other Canadian jurisdictions, the losing party in a legal action faces the possibility of being ordered to pay for some or all of the winning party’s legal costs and disbursements.

    Who gets paid and how much? This is up to the Court to decide.”
    The quote above is from this website..
    https://www.sotosllp.com/2016/01/litigation-costs-in-ontario-where-the-loser-pays-and-the-winner-also-pays/

    I’m curious as to how you would have felt had the Appellants been awarded court costs Dennis ? As you stated Dennis WPD is a “Private Company” and is not a Government Entity and should be entitled to ask the court to recoup some or all of the cost associated with defending itself correct ?

  11. hockeynan says:

    It seems that anything that happens in the county this group of people are against it.Why would WPD and other companies who you are against not want to be compensated for costs if they won

  12. Dennis Fox says:

    Paul – in your world only the rich would be able to afford to challenge both companies and government. This ruling is the first I have ever heard of where members of the public fighting a government initiative (IWTs) have been made to pay for the court cost for a private company. Your conclusion about this being a normal outcome is totally wrong. This ruling opens the door for any company to ask for cost from a ratepayer when challenged either in court or at the OMB. As a result, the balance power for a fair decision that affects a person or community’s has now been heavily weighted in favour of government and business. Taxpayers across the province lose big time with this ruling.

  13. Ray says:

    This really is a poor imitation of judicial decision making. The justices in this case could have chosen not to award WPD a Multi-National Corporation court costs associated with its defense in this action.

    WPD should be ashamed of themselves for pursuing this type of retribution against individuals who are exercising their rights to challenge what they believe is an injustice.

    As Justice Lederer stated, that the Director not seeking costs was the correct approach, stating the parties seeking them should be left to pay their own. Further to this these corporations should expect to be challenged when they are interfering with our rights and freedoms.

    This outcome gives us a peek into not only the power imbalance but the abuse of power and lack of integrity of WPD corporation.

    I am reminded of the poem by Martin Niemöller: “First they came for the Socialists…and while this is not the holocaust…the principle remains the same…I did not speak out because I was not a socialist…it is easy to be complacent when you have yet to experience your rights being stripped away… but when it happens to you…who will be there to defend you.

  14. Paul Cole says:

    I disagree Dennis this is an example of democracy in action when Common Folks can challenge authority and express their opinions in an open forum without fear of reprisal from the party of power. Had the appellants sought and received costs I’m sure your positon would be different. Being awarded court costs is not uncommon in these types of situations …

  15. Dennis Fox says:

    This is a perfect example proving that our democratic system is truly broken. From having laws that ignore public input to overlooking local government – the Green Energy Act violates everything decent. Granted that the government did not seek court cost, however, it was the government who created the need for the WPD application to be challenged in court. Frankly, residents should not have been the ones on the front line in this battle – our own local government has been ignored and over-run by the Province for years on this matter – they should have been front row centre leading the legal fight against these IWTs and demanding court costs from both WPD and the Province. To have two resident now faced with a $75000 legal bill is total BS. Now we have a bigger problem of having no democracy left – so now we need to fight to get it back. No level of government is working on our behalf – now what?

  16. wevil says:

    when one challenges in court and looses sometimes you have to pay the costs

  17. hockeynan says:

    Keep up the good work WPD

  18. Jannie says:

    The whole situation is sad. Residents try to seek some justice, but are shut out. Sometimes wind “energy” will be shown for what it is a big scam that doesn’t nothing, but make wind companies rich, by getting subsidies and government to do their bidding — sweet talk landowners many of which may be corporations themselves who don’t actually live on the land.

  19. Mario says:

    Shocking. The green energy act of 2009 makes this all legal. Read a little bit in the link below about what Edwin Rowse has done to make Toronto a better place to live and this is how Toronto pays him back when he attempts to do the same in our lovely county. The locals helping WPD need to really look in the mirror and ask themselves “why” they aren’t doing as much as Edwin to help keep “turbines” away from places where “most” people and landowners live. http://www.eraarch.ca/person/edwin-rowse/

  20. R Budd says:

    Lots of respect due to these people as well as donations. This is a very unfair situation. Ontario Gov’t has invariably decided to help advance corporate interests above rural communities and seems happy to see opposition slapped down with court cost.

  21. Chuck says:

    While the government uses our own tax dollars to fight us from being an unwilling host to turbines, WPD bleeds local residents to the tune of $75,000. Strange world we live in indeed!

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