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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 (EPA).

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 claim.

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 process.

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 injunctive relief.

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