Wind farm opponents ordered to pay costs
The 21 neighbours of the proposed Fairview Wind Farm who unsuccessfully sued developer wpd Canada and the two Beattie families who would host the turbines have been ordered to pay legal costs of $107,370.78.
The plaintiffs, who had been seeking more than $17 million in damages due to loss of property value, will instead have to pay $68,498.59 to wpd Canada and $38,872.19 to Beattie Brothers Farms Ltd. and Ed Beattie & Sons Ltd.
Justice S.E. Healey’s decision on costs, issued on Wednesday, July 24 reiterated her earlier findings that a loss in property value could not be determined at this point, given that the Fairview Wind Farm project has yet to be approved and it is therefore impossible to know exactly what form it will take.
Healey rejected the plaintiffs’ arguments that, despite losing the case, they had raised novel points of law, and that the court’s decision would have valuable bearing on future cases – both acceptable defences against having to pay legal costs.
Further, Healey criticized the plaintiffs’ lawyer’s assertion in press releases and media interviews that a decision to hear the plaintiffs’ case in the best light during the prehearing – in essence, to pretend that the plaintiffs’ points were proven in order to decide whether an actual trial was warranted – signalled any acceptance by the court that the plaintiffs had already suffered significant losses in property value.
“It is erroneous to interpret [this] as establishing a precedent for the degree of proof required to establish a decrease in property values in these circumstances,” said Healey. Instead, she explained that the court had been engaged in a “legal fiction” in order to ascertain the best way forward.
In awarding the costs to wpd and the Beattie farms, Healey used the following rationale: “The plaintiffs may have a political agenda,” she wrote, “but they also have private and community interest to protect, and potentially valid reasons for doing so. They should not be punished through an award of costs for attempting to vigorously advance their concerns. But nor will the defendants be required to bear the cost of those concerns when the claims were brought without foundation or basis in law at the time that they were advanced.”
John Wiggins, the spokesperson for the plaintiffs, writes in a Letter to the Editor on page 4 that his group is prepared to sue again once the wind farm has been approved.
“We’ll step up to the plate in court, for round two, if necessary,” writes Wiggins.
