Canada: More On The Anti-Wind Constitutional Question

Last Updated: January 21 2015
Article by Dianne Saxe


Robert Knox, Collingwood.

Ontario Highlands Friends of Wind Power

Court File No. 2055/14


Marrocco A.C.J.S.C., J. Henderson and D. Brown JJ
Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404

DIVISIONAL COURT FILES NOS.: 2055/14, 2056/14 and 2073/14

DATE: 2014/12/29

In 2014, a number of people living near proposed wind generation sites in Ontario appealed the Ontario government's approval of these projects to the Ontario Superior Court.

Technically, the appeal is about Ontario's Environmental Protection Act (EPA), the issuing of Renewable Energy Approvals (REAs) for wind turbine projects by the Director of the Ministry of the Environment (the Director) and how Environmental Review Tribunals (ERT) deal with appeals of the Director's decisions.

The substance of the appeal, however, relates specifically and primarily to the impact of the turbines on the health of people living near wind turbines.

The Position of the Appellants:

The position of those making appeals is that the Director's decision and the appeal procedures are unfair because those making appeals are required to demonstrate that wind projects cause serious harm to human health.

Those making the appeal argue, among other things, that Energy Review Tribunal should:

  • make a "reasonable prospect of harm to human health" the test for projects;
  • apply section 7 of the Canadian Charter of Rights and Freedoms in making their decisions (Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.).
  • allow those appealing Renewable Energy Approvals to demonstrate serious harm to human health from their self-diagnosed symptoms without calling evidence from qualified medical experts.

The Government's Position:

The Government's position is that measures are in place to protect the public from any potential harm created by wind turbines – that is, section 7 rights are already protected by government measures – so the onus is on complainants to establish that wind turbines, authorized and regulated by the government, will cause serious harm to human health or to plant and animal life or the environment

The Hearing and Decision by the Ontario Superior Court:

The Appellants asked the Court to make following decisions:

  • The test for approving a wind project should be whether there is a reasonable prospect it will cause serious harm to human health;
  • Section 7 of the Charter applies to any harms associated with living close to industrial wind turbines;
  • The ERT can review the Director's renewable energy approvals to determine if they comply with the Charter;
  • It is not necessary to call expert medical evidence to prove that wind turbines can create a reasonable prospect of serious harm to human health.

The Court considered four issues:

Issue 1: Is the "harm" test in sections 142.1(3) and 145.2.1(2) of the Environmental Protection Act (EPA) constitutionally valid?

Sections 142.1(3) and 145.2.1(2) of the EPA establish the grounds for ERT hearing complaints that proposed and existing renewable energy projects will cause, (a) serious harm to human health; and/or (b) serious and irreversible harm to plant life, animal life or the natural environment.

The Appellants claimed that these EPA sections violate section 7 of the Charter because they place the onus on those making appeals to establish harm and this requirement is impossibly high.

The ERT took the view, which the Court accepted, that requiring a complainant to show that turbines located and operating according government measures are causing or might cause harm is appropriate, does not violate section 7 of the Charter and is constitutionally valid.

The problem with this issue is that the Appellants appear not to understand the nature of the Constitutional obligations in section 7. Governments are responsible to ensure that citizens and their "right to life, liberty and security of the person" are protected.

Effectively, Appellants must demonstrate, based on substantive evidence, that the Ontario Government has failed in its duty established by section 7 of the Charter.

Canadian Governments, including Ontario, fulfill their Charter obligations through their policies, measures and operating systems, in this case through the Environmental Protection Act and the Renewable Energy Approvals and the Environmental Review Tribunal. Part of this process is to make certain that the information they receive is accurate. This requires testing the accuracy of the information they receive through the use of medical expert evidence and other means.

Specifically the Court said the following:

  • Given our conclusion that the Tribunals did not err in rejecting the Appellants' constitutional claim that the statutory harm test set out in EPA ss. 142.1(3) and 145.2.1(2) did not deprive the Appellants of the right to security of the person, it is not necessary on this appeal to address the submissions made by the parties about whether any deprivation was in accordance with the principles of fundamental justice nor to address their submissions on section 7 of the Charter.

Issue 2: Were Tribunals wrong in their treatment of the "post-wind turbine witnesses", that is witnesses who have lived near wind turbines?

Generally, Tribunals assessed the evidence of the post-turbine witnesses based on expert medical evidence they heard which was as follows:

  • causal conclusions based solely on self-reported health problems were scientifically speculative and likely misleading;
  • the level of information provided in the medical records of post-turbine witnesses was insufficient to allow medical practitioners and other objective witnesses to make definitive causal assessments between diagnoses, symptoms and wind turbines.

The Court took no position on this issue since Tribunals were not dealing with questions of law and these were not open to the court to review.

Issue 3: Were Tribunals wrong in taking the position they lacked the jurisdiction to review the Director's decisions to determine if they complied with s. 7 of the Charter?

Based on the legal precedents and the Environmental Review Tribunal's (ERT) specific mandate to deal only with wind turbines impact on human health and the environment, the Court decided Tribunals have no responsibility to consider matters of law outside this mandate.

Issue 4: Did tribunals fail to follow the principles of fairness or natural justice?

This issue relates to process. The Court found no issue with the ERT 's treatment of these matters.


The Court dismissed all the appeals.

In effect, the Court has confirmed the constitutional validity of the Ontario government's system for approving and regulating wind turbines. The Court's decision should reduce appeals and eliminate charges that the system is unconstitutional.

On the other hand, the Court's decision will probably be appealed.

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
In association with
Related Topics
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