Michaud v. Sun Corp. is a civil action that has been
commenced in the Ontario Superior Court by a neighbour of the Kent Breeze Wind Farm. Unlike the Hanna and
Erickson cases, which unsuccessfully attempted to prevent the
permitting of wind projects, the Michaud case seeks
damages and an injunction now that the wind farm has been
The Michauds live approximately 1.1 kilometers from Kent Breeze,
more than twice as far as the 500 metre setback mandated by the
Province under the Green Energy Act. They are suing for
millions of dollars in damages based on the traditional
environmental causes of action: nuisance, negligence, trespass, and
Rylands v. Fletcher. The Rylands and trespass
claims are hard to reconcile with Smith v. Inco and it
will likely be hard to win on negligence if the farm was built in
accordance with provincial permits. Accordingly, the case is likely
to come down to the question of nuisance, that is whether the
operation of the wind farm creates an unreasonable interference
with the use and enjoyment of neighbouring properties, even in the
absence of negligence.
Several years ago, when the Ontario Legislature was debating the
the Green Energy Act, several stakeholders pleaded
with them to bar nuisance claims for non-negligent operation of
renewable energy projects that the Province itself had approved.
Similar nuisance bars have been adopted across the country to bar
nuisance claims associated with water and sewage infrastructure,
although private lawsuits are permitted for negligence.
It seems poor social policy to invite renewable energy
entrepreneurs to build approved projects in Ontario, only to
subject them to the expense and risk of a civil lawsuit for
nuisance afterwards. An integrated approval process, like the
renewable energy project approval process, ought to weigh competing
interests and make reliable decisions about what should be built
where. If compensation is appropriate for some neighbours, why not
have clear, uniform rules for who gets it, from where and how
Unfortunately, the government of the day chose not to deal with
the issue. Now the courts will come up with patchwork answers.
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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