Michaud v. Sun Corp. is a civil action that has been commenced in the Ontario Superior Court by a neighbour of the Kent Breeze Wind Farm. Unlike the Hanna and Erickson cases, which unsuccessfully attempted to prevent the permitting of wind projects, the Michaud case seeks damages and an injunction now that the wind farm has been built.
The Michauds live approximately 1.1 kilometers from Kent Breeze, more than twice as far as the 500 metre setback mandated by the Province under the Green Energy Act. They are suing for millions of dollars in damages based on the traditional environmental causes of action: nuisance, negligence, trespass, and Rylands v. Fletcher. The Rylands and trespass claims are hard to reconcile with Smith v. Inco and it will likely be hard to win on negligence if the farm was built in accordance with provincial permits. Accordingly, the case is likely to come down to the question of nuisance, that is whether the operation of the wind farm creates an unreasonable interference with the use and enjoyment of neighbouring properties, even in the absence of negligence.
Several years ago, when the Ontario Legislature was debating the adoption of the Green Energy Act, several stakeholders pleaded with them to bar nuisance claims for non-negligent operation of renewable energy projects that the Province itself had approved. Similar nuisance bars have been adopted across the country to bar nuisance claims associated with water and sewage infrastructure, although private lawsuits are permitted for negligence.
It seems poor social policy to invite renewable energy entrepreneurs to build approved projects in Ontario, only to subject them to the expense and risk of a civil lawsuit for nuisance afterwards. An integrated approval process, like the renewable energy project approval process, ought to weigh competing interests and make reliable decisions about what should be built where. If compensation is appropriate for some neighbours, why not have clear, uniform rules for who gets it, from where and how much?
Unfortunately, the government of the day chose not to deal with the issue. Now the courts will come up with patchwork answers.