Judge reserves decision on bid for injunction to stop K2 wind project

Anti-wind turbine supporters rally outside Goderich's courthouse.

Anti-wind turbine supporters rally outside Goderich’s courthouse.

HEATHER BOA Bullet News GODERICH – Shawn and Trisha Drennan have a reasonable fear that their health will be harmed by 12 industrial wind turbines proposed to be built within two kilometres of their home just north of Goderich, argued lawyer Julian Falconer in superior court today.

He asked Justice A. Duncan Grace to dismiss a motion by K2 Wind Project and the provincial government, represented by the Ministry

Shawn Drennan.

Shawn Drennan.

of the Attorney General, to either dismiss or stay a bid for an injunction that would stop the K2 Wind Project from proceeding until a $4 million lawsuit is dealt with. If the judge were to stay the motion, the lawsuit would not proceed until all administrative processes are exhausted, including the Renewable Energy Approval process in which the director of the Ministry of the Environment (MOE) reviews a mandated list of about a dozen reports and public comments before deciding whether to allow a project to proceed, and an Environmental Review Tribunal, which could be triggered by a concern that the project will cause serious harm to human, plant or animal health or to the natural environment.

“No Canadians, including the Drennans, have to wait to be injured by the state before taking steps,” Falconer said, saying the couple’s rights under the Charter of Rights and Freedoms have been breached because the wind energy company isn’t required to prove that its project won’t cause adverse health effects. He argued on the basis of the precautionary principle that states when there’s a possibility of health risks and no scientific evidence, the burden of proof that it won’t be harmful rests with whoever is taking the action or establishing policy.

He said the Drennans are seeking recourse through superior court now because the harm to their health begins with the REA process, what he called the “on-ramp” to wind turbines being built. No wind energy project has been shut down during the administrative process.

“It’s pretty good odds that it’s going to happen, that the REA is coming down the pipes,” he told the court.

Spectators filled the courtroom, even sitting in jury chairs at the invitation of the judge, after complaints that an inadequate sound system made proceedings difficult to hear. Earlier, anti-wind turbine supporters rallied on the courthouse steps, carrying signs that read: ‘Stop the Wind Turbines’ and ‘Health Studies Before Wind Turbines.’ A woman carried a homemade replica of a wind turbine, with a mangled bird hanging from its blade.

Justice Grace has reserved his decision until he has reviewed a foot-high stack of written submissions and about five hours of verbal arguments from lawyers.

Hart Schwartz, counsel for the Ministry of the Attorney General, argued the Drennans’ challenge should take place within the REA process, rather than taking up time in superior court. He said the MOE director has to consider the question of harm before deciding whether to deny, approve or approve with conditions an REA. As well, the same questions of law and arguments about whether it’s unconstitutional can be made to the Environmental Review Tribunal, and on appeal in divisional court.

“The Drennans can make their arguments to the director, to the tribunal, and to the divisional court on appeal of the Tribunal,” he said. “There is adequate remedy.”

He said the first decision to emerge from an Environmental Review Tribunal, which was the 200-plus-page decision in Erickson v. Director, Ministry of the Environment with regards to the Kent Breeze wind project was comprehensive.

As well, he said it is “hypothetical” and “premature” to claim harmful health effects at a time when the wind turbines haven’t been approved and aren’t yet operational.

Christopher Bredt, counsel for K2 Wind Ontario Inc., and K2 Wind Ontario Partnership, agreed, saying the Drennans’ claim is “speculative.”

“The claim is premature and should be struck in its entirety on that basis,” he said.

Bredt said the project could be altered along the way or may never go ahead, depending on what happens during the REA process. As well, he said the plaintiffs will have to suffer the harm they allege will occur.

“There are about eight ‘ifs’ before we get to the potential harm, which is the wind turbine,” he said.

In an interview outside the courtroom, Falconer said, “I think it’s not an overstatement to say this is frankly where the buck stops on the ability of citizens to fight back against wind turbines. Unfortunately these kinds of proceedings are very difficult for the plaintiffs because they’re novel.

“The Drennans are trying to empower themselves by getting control of the process, by taking steps that are novel, by attempting to fight back,” he said.

The K2 Wind Project is a partnership of Capital Power Corp., Pattern Renewable Holdings Canada ULC and Samsung Renewable Energy Inc. and includes 140 2.3-MW Siemens turbines, a substation and a transformer station on land leased from 90 farmers in Ashfield-Colborne Wawanosh. However, only four will operate at full nameplate capacity while the remainder will be factory de-rated to ensure the provincially regulated noise thresholds aren’t exceeded at people’s homes.

The project lies north of Kingsbridge I, a 39.6-MW project that went into operation in 2006. The project area is bound by Hwy. 21 to the west, County Road 86 to the north, Golf Course Road and Blyth Road to the south, and Halls Hill Line with a diagonal jog eastward between the Dungannon Road and the Blyth Road to the east.

The partnership, K2 Wind Ontario Inc., has a power purchase agreement with the Ontario Power Authority, which was signed in 2011 separate from the Feed-In Tariff program. On Feb. 15, 2013, the MOE posted the proposed renewable energy approval for the project on the Environmental Registry, starting the 45-day public comment period. The project is currently under technical review, according to a listing of renewable energy projects on the MOE’s website.


Written by on March 1, 2013 in Ashfield-Colborne-Wawanosh, Goderich - 14 Comments

14 Comments on "Judge reserves decision on bid for injunction to stop K2 wind project"

  1. K.John Hazlitt March 2, 2013 at 4:38 pm · Reply

    Shawn and Trish, I have known you for a long long time and your family. Do not let them grind you you down. You have my total support.

  2. Tom March 2, 2013 at 5:54 pm · Reply

    I find it really hard to imagine that these lawyers who are counsel for K2 and the Ministry of the Attorney General do not have a hard time looking at themselves in the mirror every morning . I wonder if their mothers know what they do for a living? – little wonder the general public have almost respect for this profession.

  3. Pam March 2, 2013 at 6:53 pm · Reply

    “Hypothetical and premature” that’s the best he could come up with? Really?

    So arrogant, I hope Justice A. Duncan Grace knocks them all down to size and helps to restore Democracy to Rural Ontario. It would send a message loud and clear to the MOE and cut down on REA approvals.

    We are coming for you “Big Wynne’d” and we support the Drennan’s all the way, THEY represent ALL of Rural Ontario…we want our democratic rights back!!

    Justice A. Duncan Grace, please do the right thing. Help protect the people of Rural Ontario.

  4. Marianne March 3, 2013 at 9:16 am · Reply

    Thank you Drennan’s from all of Rural Ontario!!! We are faced with a project in Haldimand which also has not been approved. Your case gives us hope, I wish you the best of luck and hopefully Justice Grace understands the gravity of the situation and helps Rural Ontarians….since the Wynn’d government won’t.

  5. Robert Budd March 3, 2013 at 11:25 am · Reply

    Can somebody explain to me why this project is being pushed ahead at this time? We have a chronic and expensive electricity oversupply now. Other than the fact it’s 3 big corporations, including the jumping on of US giant Pattern Energy and the Liberal “chosen one” Samsung, this makes no sense. The IESO is saying that unless they can curtail wind production, it’s going to cost us $200,000/year as well as increasing emissions. Duh.
    We now know the thanks to FOI releases that the MOE hid and refused to address complaints and at the same time we are waiting for health studies that could prevent alot of problems in the future.
    I think the $5,000/plate Liberal fundraiser from the energy sector explains the situation best.
    The Drennans are being put in a situation no one should be put in for NO GOOD reason.

  6. Ron March 3, 2013 at 3:37 pm · Reply

    They should just put up a nuclear plant instead.
    Can’t believe anyone would actually spend their time fighting wind farms, who are adhering to the noise levels policies. Creates jobs in the area. Maybe a slight change in the cost of electricity for the immediate counties. These people are just parasites, trying to sue for damages that haven’t happened.

  7. Jeff Ryan March 3, 2013 at 4:20 pm · Reply

    “Change is a coming”. Keep fighting Drennans, rural Ontario is on your team.

    • Paul March 3, 2013 at 8:09 pm · Reply

      Good points, Ron, especially when the Drennans wanted to put up their own wind turbine. What a joke.

  8. susan muller March 3, 2013 at 8:35 pm · Reply

    Thanking the Drennans is not enough. They need our financial support to get through this, please DONATE whatever you can.

  9. trucker March 4, 2013 at 2:11 pm · Reply

    We need to help SWEAR (Safe Wind Energy for All Residents) support Shawn and Trish Drennan in their fight that will help all residents of Ontario. The Superior Court Hearing heard that HMQ and K2 appear to need you to be hurt before you can have an injunction.
    The government of Ontario and Canada have told us for years in many ways that Prevention of a problem is preferred over treating the problem at a later stage. As the analogy used during the hearing that if a vehicle is coming fast toward you you should wait till it hits you and then sue after you have been injured or killed. How reasonable is that? We are being educated that the approach in driving is to be defensive and take action before the accident happens. That is what the Drennans are trying to do.
    In the case with Wind Turbines we have evidence that some people will be harmed. Therefore the Ontario Government is permitting the Wind Developers to harm a certain number of individuals in our communities with full knowledge of possible effects. How would you feel being collateral damage for wind energy production that we don’t need and cannot use?
    Keep up the fight, Ontario!

  10. DW March 4, 2013 at 3:15 pm · Reply

    I got good vibes from Justice A. Duncan Grace during my brief time in the courtroom last Friday and believe he will make the right decision for the Drennans – the trail-blazers for the rest of rural Ontario. However, we ALL need to think only POSITIVE thoughts about his decision. Just imagine how a judgment to dismiss the motion by K2 Wind Project et al will change the momentum of this cause. BELIEVE that it is possible. We should start planning the celebration now!

  11. Kerri March 4, 2013 at 5:52 pm · Reply

    The Drennans know of people who ARE affected by turbines that are on properties already…so YES they are fighting for something that IS happening to people. They want to fight it so NO ONE else has to deal with the turbines. DO YOU have a property in Ashfield that is NOT worth as much anymore? Do YOU have to live beside them?? Are YOU not able to build on your own property now because your neighbour is putting up a turbine?? Have YOU bought your dream farm to realize that it is turning into a turbine nightmare?? When you answer YES to all these questions..THEN we’ll listen to you. KEEP UP THE FIGHT Drennans!!!

  12. Windy March 5, 2013 at 3:04 pm · Reply

    I don’t understand any of you complainers! There is so much other things affecting human health more serious, as well as our negative impact on the environment which is a bigger concern. I bet most of you smoke, drive big trucks, or live close to that HUGEEEE NUCLEAR PLANT IN THE AREA. Which leads me to consider the possibility that most of you are being paid off by these large organization so the executive can line their pockets with more money all by creating a polluting source of energy. Give me a break about the noise, there’s worse things you probably do that is affecting your health.
    It’s just mind boggling the way you guys think. Most of these projects or programs will be;
    1. Bringing jobs in before and after the project’s completed (AND I can see from some the other articles that people are losing jobs left and right)
    2. Some are even establishing community funds
    3. And some are community-owned. Meaning you decide what happens
    All your beliefs are based on a few people saying the sound is “affecting their health.” I don’t like it when people smoke in public and I breath in the second-hand smoke, you don’t see me running to parliament saying get rid of cigarettes!

    People live near airports, have trains running through there background, or live across the street from a fire hall, THEY DEAL WITH IT, they don’t pick-it infront of these places asking them to move. All these places have a purpose and its to benefit you and your kids in the long run.

    I KNOW YOU DON’T CARE NOW BECAUSE YOUR STILL A LIVE, but think of your love ones growing up or the people around you and what the state of the environment will be in when they are around. Most of you will dis-regard this because your being paid off by one of these organizations to be against HAVING CLEAN AIR FOR THE FUTURE!!

    WAKE UP! – Bring on all your comments, I know who your in bed with and people like you will eventually be exposed by your fat bank accounts.


    • Ramball Deep March 15, 2013 at 10:53 am · Reply

      Good comment “Windy”. I am glad to see someone can see through these whiners. It’s all about the money since none of them are getting any!

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