Wind farm developers in Ontario are being threatened with
litigation from neighbouring residents who claim property values
are suffering because of the perceived health concerns associated
with wind turbines. These claims were recently the subject of an
investigation undertaken by the CBC that reported homes near
wind farms were selling for less and taking longer to sell than
other homes. The issue has also been raised before the
province's Assessment Review Board by property owners seeking
to lower their property tax
A recent ruling from the Ontario Court of Appeal in Ellen Smith
v. Inco Limited will provide the province's wind
developers with stronger hand in fighting back against such claims.
The claimants in the Inco case alleged that their property
values were reduced by nickel contamination that originated from
Inco's refinery in Port Colborne. They succeeded at trial and
Inco was held liable for the tort of nuisance and under strict
liability imposed by the rule in Rylands v. Fletcher. The
ruling was notable as the refinery had adhered to the applicable
environmental regulations during its operation and the level of
nickel contamination did not present a threat to human health or
otherwise impact the complainants' ability to use and enjoy
their property. Nonetheless, the trial judge held Inco liable for
the loss of property value because the contamination led to a
negative public perception about the contaminated land.
The Court of Appeal overturned the trial decision on October 7,
2011. On the issue of nuisance, the appeal judges ruled that an
allegation of reduced property values cannot succeed in the absence
of "actionable, substantial, physical damage" to the
property or substantial interference with a claimant's use or
enjoyment of his or her land. Neither of those were present in the
Inco case. The court specifically noted that public concerns about
potential health effects are insufficient to establish liability
unless the alleged contamination "caused actual harm to the
health of the claimants or at least posed some realistic risk of
actual harm to their health and wellbeing." The court was
critical of the trial judge's approach to nuisance because it
would have allowed claims to succeed based on "unfounded
public concerns" and "junk science" even where a
defendant proved the contamination did not pose a risk to human
health. The trial judge's finding of liability under the rule
in Rylands v. Fletcher was also set aside because Inco had operated
the facility in a manner that did not create "extraordinary or
unusual" risks beyond those incidental to virtually any
The Court of Appeal's decision is good news for wind
developers confronted with loss of property value claims from
nearby residents. As a result of Inco, a claimant cannot rely upon
vague allegations of reduced property values; rather they will be
required to demonstrate the reduction arises either from actual
physical damage to the property or a substantial interference with
their ability to use and enjoy the property.
The Court of Appeal's decision may not be the final word on
the matter as the plaintiff in Inco has the right to seek leave to
appeal the decision to the Supreme Court of Canada.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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