Shawn and Trisha Drennan farm in the Township of
Ashfield-Colborne-Wawanosh, where K2 propose to develop a wind
power project of 140 wind turbines (270 megawatts). As
discussed in our
earlier blog, the Drennans started a lawsuit, hoping to prevent
construction of the wind farm. They claim that the regulatory
scheme for granting approval to wind turbines violates their right
to security of the person under the Canadian Charter of
Rights and Freedoms. They also want damages in nuisance
and an injunction to stop the renewable energy approval process
established by Ontario's Environmental Protection Act
On May 15, Mr. Justice A. Duncan Grace of the Ontario Superior
Court of Justice stayed the lawsuit. He concluded that the
Drennans' action was premature, and must be stayed until the
statutory process established by the EPA is complete.
See Drennan v. K2 Wind Ontario Inc.
Justice Grace noted that the authority to review a MOE
Director's decision lies with an administrative tribunal (i.e.,
the Environmental Review Tribunal (ERT)), not the court, and that
this allocation of responsibility will be respected except in rare
circumstances. This was not an exceptional case.
He found that the renewable energy approval and appeal process
was not patently inadequate or unfair. Nor was there any
basis for suggesting that the legislative scheme is
"arbitrary", or for finding that the Director does not
act in good faith. Further, there was no basis to suggest
that the ERT does not conduct a meaningful inquiry –
Justice Grace pointed to the extensive ERT decision in Erickson v. Director, MOE, in which the ERT dealt with
complex factual and legal issues.
Justice Grace also found that the court does not automatically
assume jurisdiction just because the Drennans made a Charter
He recognized that an action initiated on the basis of alleged
harm in the future is not premature in all cases. However, in
this case, that alleged by the Drennans is speculative; the
Director's decision is subject to challenge and the Drennans
may ultimately be successful at the end of the regulatory
Nor should the court exercise discretion because the plaintiffs
seek remedies not contemplated under the statutory scheme.
Although the ERT cannot grant a remedy of declaring statutory
provisions constitutionally invalid, it may disregard provisions
that offend the Charter. The ERT does not have
jurisdiction to make a monetary award; a nuisance can only occur if
the proposed wind project is approved and constructed close to the
Drennan farm. The ERT also lacks the power to grant
injunctive relief, but can grant a stay of the Director's
decision. As K2 must overcome concerns of the Drennans during the
regulatory process to construct their project, there is no need for
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