Canada: Anti-Wind Litigation: Is There An End In Sight?

Last Updated: March 6 2013
Article by Dianne Saxe and Meredith James

After nearly two years of vigorous anti-wind litigation in Ontario, anti-wind activists have failed to satisfy any court or tribunal that wind energy development in accordance with government standards will cause serious harm. Many wind projects have been approved, and wind-based electrical generation is growing fast. However, the same concerns keep being raised, and we know of no Ontario wind farm that has obtained its approval without the cost and delay of litigation.

Renewable energy approvals in Ontario

Ontario was the first Canadian jurisdiction to set up a special approvals regime for renewable energy, through the Green Energy Act. To generate and sell commercial scale wind power in Ontario, the proponent must obtain a Renewable Energy Approval (REA) under the Environmental Protection Act from the Director of Approvals, Ministry of the Environment.

Because of the social, environmental, and political importance of reducing carbon emissions and switching to renewable sources of energy, the REA cannot be easily overturned. Any Ontario resident may appeal the decision to issue the REA, or its terms and conditions, to the Environmental Review Tribunal (ERT). To succeed, however, they must prove that, on the balance of probabilities, the wind project will cause:

  1. Serious harm to human health, or
  2. Serious and irreversible harm to plant life, animal life or the natural environment.

This is very difficult. Repeated studies around the world have shown that wind energy does not directly cause these harms1; while no form of electricity generation is free of adverse effects, wind power is relatively benign compared to coal, nuclear, heavy petroleum, major dams, etc.2 Nor has harm been proven in countries, such as Denmark and Germany, which have a dense network of turbines and a high level of wind energy generation. Even in other parts of Canada, there is much less concern about wind than there is in Ontario.

However, some people do find turbines sufficiently annoying to interfere with their sleep, especially if they do not receive any financial gain from the turbines. Persistent sleep loss can be devastating, as many young parents and other caregivers can attest. There is also a powerful nocebo effect, in which can people experience real, distressing symptoms if they believe that the source of their concern is harmful.

All decisions to date have held that these effects do not meet the legal test of harm, and are not sufficient to block the development of wind energy.

Harm to health, plants, wildlife or the environment?

The first case was a challenge to Ontario's regulatory regime governing REAs. In Hanna v. Ontario (Attorney General),3 Mr. Hanna sought to invalidate the Renewable Energy Approvals Regulation because, he argued, its minimum setback requirements for wind turbines were inadequate. He claimed that the 550 metre minimum setbacks from nearby homes were inconsistent with the MOE's "Noise Guidelines for Wind Farms" and the province's Statement of Environmental Values. The SEV calls for a precautionary, science-based approach to decision-making. Therefore, he said, the province should not be able to issue REAs if there is still uncertainty about turbines' full effects.

The Superior Court dismissed his application, finding that there had been a full public consultation, and a ministerial review of science-based evidence. Further, the adequacy of a minimum setback in a particular case can be challenged before the ERT, so those who are concerned have an alternate remedy.

Erickson v. Ontario (Director, MOE),4 was the first of the anti-wind appeals to reach the ERT. The ERT heard evidence from experts from around the world on the cutting edge of scientific inquiry. In a very lengthy decision, the ERT found that interference with sleep can cause harm to human health, and that there are "some risks and uncertainties associated with wind turbines that merit further research." However, it could not conclude that the Kent Breeze Wind Farm turbines would significantly harm either human health or the environment, and the REA was upheld.

Aboriginal rights?

In Monture v. Director, MOE (Monture 1)5, a Six Nations appellant tried to use the same issues plus aboriginal rights and claims to block the Summerhaven wind project REA. Mr. Monture claimed that the REA failed to respect the Treaty rights of the Onkwehonwe, would affect their hunting and fishing rights, and would harm birds, wildlife, trees and agricultural land. However, the Tribunal ruled that aboriginal claims and consultation issues could not expand its jurisdiction, which was limited by the EPA to whether the project would cause serious harm to human health or the environment.

The Tribunal acknowledged that Mr. Monture's evidence was informed by the "accumulated knowledge of the Onkwehonwe people as traditionally passed down through the generations, as well as cultural values that emphasize the importance of respecting the natural environment." However, this evidence made only "general reference to the issues of habitat loss, fragmentation, avoidance of resting and foraging grounds, and sensory disturbances." Mr. Monture's other submissions regarding cumulative effects, bird mortality, and plants with medicinal value were too general to establish that this particular project would cause serious harm to animal life, plant life or the natural environment. A mere possibility of harm was insufficient to meet the legal test; Mr. Monture's appeal was dismissed.

Mr. Monture, Haldimand Wind Concerns (a citizen's group), and others were similarly unsuccessful in their appeal of a second REA6: Monture v. Director, MOE (Monture 2).7 The ERT did, however, recommend changes to the terms of the REA regarding natural heritage pre-construction and post-construction monitoring; reporting and review of results; Community Liaison Committee; and aboriginal consultation.

Embracing the nocebo effect?

In Chatham-Kent Wind Action Inc. v. Director, MOE8, the appellant offered no evidence, and the case was left to two individual participants. Mr. Ternoey based his opposition to the turbines on the real power of the nocebo effect.9  He explained: "Here the potential cause for harm is internally grounded in the mind, not external in the object of the turbine... the level of noise is not as important as the attitude or reaction to the noise." He argued that the ERT was wrong to demand scientific evidence of objective causation of harm, since some people can experience a health impact due to his or her belief that the turbines are harmful. Since this nocebo effect can cause serious harm to human health, the legal test is met and the turbines should not be built.

The ERT rejected this argument; the Environmental Protection Act test for overturning a REA requires objective causation of harm, not just a subjective belief, however sincere. (Imagine what would happen if a nocebo effect test could block other forms of power generation or of other infrastructure: sewage plants, landfills, highways, transmission lines, cell towers, airports....)

Property value?

Opposition to wind energy may be driven, in part, by concern about nearby property values. In the only case decided to date, Kenney v. Municipal Property Assessment Corp., the Assessment Review Board found no such evidence. The Kenneys' waterfront home on Wolf Island was assessed at $357,000. The Kenneys appealed, arguing that their assessment failed to take into account the negative effect of the Wolf Island Wind Project, then the second largest wind farm in Canada. Although the Kenneys believed that the wind farm threatened their health, their enjoyment of their property, and its value, the Board found there was no credible evidence of loss in value.

The Charter?

Since wind opponents cannot meet the legal test, i.e. prove serious harm to their health or the environment, they are now attacking the legal test itself. In Drennan v. K2 Wind Ontario Inc., Shawn and Trisha Drennan are seeking $4 million in damages plus an injunction to prevent K2 Wind Ontario Inc. from obtaining a renewable energy approval from the Ministry of the Environment for its proposed wind farm in Ashfield-Colborne-Wawanosh. 90 local landowners have leased their land for the project; much of it between 650 metres and 2 km from the Drennan home. Mr. and Mrs. Drennan claim that the wind farm will create a nuisance, make them ill, and reduce their property values.

The Environmental Protection Act puts the onus of proving such harm on wind opponents, instead of requiring each wind proponent to prove that their project will be safe. This, the Drennans claim, violates their right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. They are seeking an interim injunction to stop all wind turbines within 2 km of their home, without having to prove that the turbines will cause them serious harm, and without providing the usual undertaking as to damages.

And in 2013?

Thus, it seems that anti-wind litigation will continue to be active in 2013. As the ERT is permitting appellants to relitigate the same issues for each new wind farm, three more REA appeals including similar grounds are also scheduled on the Environmental Review Tribunal's Hearings List for this year: Gilead Power's Ostrander Point wind project, located in the heart of the Prince Edward Point Important Bird Area;  Northland Power's Manitoulin Island wind farm, and Capital Power's Port Dove and Nanticoke Project. Decisions are pending in Manitoulin Coalition for Safe Environment v. MOE and Haldimand Wind Concerns v. MOE.

And motions will be argued in the Drennan case. The injunction hearing is scheduled to be heard in February. The province is seeking summary judgment to dismiss the action. Meanwhile, the REA application has been filed and presumably is being processed.

This article was written for, and may also be found on, the excellent legal blog SLAW.


1 Although wind turbines on bat migration routes should not run at night during bat migration. Bats do not have mobile ribs, and their lungs are easily injured by the pressure wave near the blades. And the Environmental Commissioner has wisely recommended that no turbines be built in Important Bird Areas

2 Health Canada is conducting another study, which seems designed to be swamped by the nocebo effect

3 March 3, 2011

4 July 18, 2011, Environmental Review Tribunal

5 September 28, 2012, ERT

6 approval of a 67 turbine facility on the shores of Lake Erie

7 December 24, 2012, ERT

8 December 5, 2012

9 A second participant argued that the MOE was not properly calculating turbine noise, because it was using an international standard, ISO 9613-2, in a way it had not been specifically designed for

10 Ostrander Point is an Important Bird Area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
Meredith James
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions