County News
‘If they build it, we will sue’
Lawyer Eric Gillespie
Ontario court justice may have opened door to enable residents to sue wind developers for loss of property value
Do industrial wind turbines lower the value of property nearby? An Ontario Superior Court Justice said last week they do. This has opponents of these hulking machines looming over their homes and communities cheering in the streets. They believe the justice’s words have opened a door to enable them to claim and recover damages from the owners of these projects resulting from diminished property value.
Eric Gillespie reported to a packed house at the Regent Theatre last week that Justice Susan Healey had accepted expert testimony that property values decline between 22 and 50 per cent with the arrival of industrial wind turbines. She was ruling on a claim by residents of Clearview Township, near Stayner, seeking damages from wpd Canada—the same developer working toward erecting 29 turbines in South Marysburgh from Milford to the National Wildlife Area at Long Point.
Justice Healey ruled that it was too soon for the residents to bring their action against the developer, as the project has not yet been approved, and as such, damages have not yet occurred. But, significantly, Justice Healey said that if the project is approved, the residents can move ahead with their claims.
In her ruling Justice Healey wrote: “In this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values.”
The court accepted evidence from Ben Lansink, a land appraiser, that “they have already suffered harm through a loss in property values and the corresponding interference with the use and enjoyment of their properties.”
Gillespie, also acting for the residents of Clearview, said the court’s words establish an important principle and open a doorway to enable residents to sue for damages for lost property values.
“Wind companies and government have said all along that property values aren’t affected by wind turbines,” said Gillespie, an environmental lawyer acting for Prince Edward County Field Naturalists (PECFN) and the Association to Protect Prince Edward County (APPEC). “They can no longer claim this.”
Gillespie and others believe this exposes wind developers and property owners to damage claims across the province. The ruling is expected to send a chill throughout the wind industry in Ontario causing landowners, financiers and developers to re-evaluate these projects, given their exposure.
Members of the panel assembled by CCSAGE to update County residents on the state of resistance efforts against wind development in the region listen to lawyer Eric Gillespie. From left to right: Dr. Robert McMurtry, Carlyn Moulton, Gary Mooney, Cheryl Anderson and Garth Manning.
Gillespie expects the court’s words to open a floodgate.
“Dozens of plaintiffs who have already started actions appear to have had the right to bring claims validated” said Gillespie. “We can definitely expect more claims now that this door has been opened.”
Not all are convinced of Gillespie’s interpretation of the justice’s words.
Kevin Surette, spokesperson for wpd Canada, says there is an important difference between the court accepting evidence and validating it. He says that if the judge had ruled the matter could go to trial, his company would have challenged the evidence.
The Pembina Institute also tried to pour cold water on the decision last week. Legal specialist Ben Thibault wrote that Justice Healey used “an unfortunate choice of words that can be misleading in isolation.”
Thibault cautions that any future action against a wind developer cannot use the justice’s words because she was not making a finding of fact, but rather determining whether this action could proceed to trial.
The Pembina lawyer went further, suggesting the justice didn’t actually intend her words to be taken as fact; rather, she was engaging in a “thought experiment” to aid her in arriving at a determination to dismiss the issue.
Following the action taken in Clearview, 20 County families filed a $14 million claim for damages against wpd Canada and 20 participating South Marysburgh landowners.
North Marysburgh resident Alan Whiteley picked up the theme in his remarks to the CCSAGE (Concerned Citizen’s for Safe Appropriate Green Energy) gathering last week. He suggested that if all potential victims of industrial wind turbines expressed their intention to take action for lost property values, landowners and developers be forced to reconsider the risks and their exposure.
“We need to make them nervous about their profit,” said Whiteley. “If they build it we will sue. We all have to say it.”
This article is much more balanced, but leaves the impression that the lawyer’s self-serving spin on getting kicked out of court is the correct one.
Let’s read the longer statement that Gillespie and the writer of this article neglected to include:
“Even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exists today the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution of property values to any tortious conduct.”
Note that the court didn’t accept property damage harm related to wind farms at all, and in fact rejected the linkage. All the court did was agree that the complainants property values had decreased. A few notes about property value decreases post 2008. In a depressed rural economy when properties world-wide suffered a massive hit, in a province which is re-inventing itself after manufacturing left looking for cheap labour, in a county that is allowing a handful of extremely negative people to set the tone for onlookers, declining property values isn’t exactly a surprise.
Wind farms don’t harm property values: five major studies in the US and UK of 46,000 property transactions confirm this. As with health complaints, anti-wind campaigners whipping up fears are responsible for minor lulls before wind farms become operational, with properties often accruing value faster near operational wind farms. This makes sense: more jobs and more tax-revenue funded services make wind farm regions more attractive to people. http://barnardonwind.wordpress.com/2013/02/19/property-values-evidence-is-that-if-wind-farms-do-impact-them-its-positively/
Mike, actually the decision in respect to tort law does not support your “spin” on it. And, although I’ve seen this decision similarly distorted by your opposition, Gillespie’s presentation was accurate yet requires a knowledge of tort law for the implications to be fully understood. This is after all the beginning of this application of tort law to Industrial Wind Turbine development and as such the degree of negligence, if any, has yet to be determined as case law. This decision did in fact work to the advantage of WPD in this respect since at this point in time it would not subject them to the more severe implications of “criminal” negligence, should their “challenge” of the evidence prove inconclusive. This particular case may indeed become precedent setting case law should the project be approved. And it will likely become much more complex when the Health Canada study is released next year.
When the wind company claims there is no property value decrease, just ask them to sign a ‘Property Value Guarantee’. If their claim of no impact is correct a PVG won’t cost them a nickel. If they won’t sign then it shows that they doubt their assertion.
“””Justice Healey ruled that it was too soon for the residents to bring their action against the developer, as the project has not yet been approved, and as such, damages have not yet occurred”””
Healey doesn’t get it at all, once these idiots get approval its already TOO LATE!
you cant stop them as its fast tracked and rubber stamped.
when are people going to wake up to this process.
its like putting up the fence after the bulls already out! get a brain people support fellow Ontarians not the overseas big wigs here to take our lands for profit!!