K2 Wind proposes to build a wind power project in Ashfield-Colborne-Wawanosh township in southwestern Ontario, where Shawn and Trisha Drennan are farmers. The Drennans oppose the erection of wind turbines near dwellings and brought an action against K2, seeking Charter remedies, damages in nuisance and an injunction stopping the process for the approval of K2's project under the Environmental Protection Act (EPA). They argued that the EPA process is arbitrary, unfair and flawed; it does not confer jurisdiction on the relevant tribunal to award damages for nuisance, or to grant injunctive or Charter relief.
Grace J of the Superior Court thought the whole thing premature. The EPA process is not inherently unfair or inadequate, and it does provide sufficient remedies for parties in the position of the Drennans (if not quite the panoply of options available from a court). K2's approval was, moreover, not a foregone conclusion and had only got part way throughout the first, consultative stage: this was not the time to 'derail a multi-stage regulatory approval process' set out in detailed legislation. A nuisance claim will not necessarily fail because the harm alleged has not yet manifested itself, but in this case the turbines cannot be constructed if the concerns of local residents are not addressed and their construction can be subject to terms and conditions. The action failed: Drennan v K2 Wind Ontario Inc, 2013 ONSC 2831.
Chris Bredt and Heather Pessione of the Toronto office of BLG acted for K2.
http://www.canlii.org/en/on/onsc/doc/2013/2013onsc2831/2013onsc2831.html
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