Wind Farm Annoyance Class Action Lawsuit Dismissed in Landmark Ruling

The Superior Court of Quebec has dismissed a class action lawsuit filed on behalf of residents who sought damages for the annoyances associated with the construction and operation of a major wind farm project.

Last month, the court determined that both the construction and operation of the wind farm were normal annoyances and that the Class Members were not entitled to damages. This decision is the first class action lawsuit against a wind project developer to be dismissed in Canada.

In May 2008, Hydro-Québec sought to install 50 wind turbines in the rural areas of the villages of Saint Ferdinand, Sainte-Sophie d’Halifax and Saint-Pierre-Baptiste. These turbines were to have a total capacity of 100 MW.

This wind power project was proposed by Enerfin and approved by a decree of the Government of Quebec. Enerfin’s rights and interests in this wind power project are currently held by Éoliennes de l’érable.

During the construction phase, which reportedly lasted about three years, more than 1,200 employees were on site. The 50 wind turbines were erected over an area of about 95 square kilometers. The construction site also reportedly included about 150 kilometers of roads.

The wind farm began operations in November 2013 and benefits from a 20-year purchase power agreement with Hydro-Québec.

The court looked to Section 976 of the Civil Code of Quebec, which says that “neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage.”

In addition, the court relied on the appellate court decision in Plantons A et P inc. v. Delage, which established a two stage test to evaluate neighbourhood annoyances: their recurrence and their gravity. The court took into account the nature and location of the project and relied on a reasonable person test when evaluating the evidence.

According to the wind farm class action lawsuit, the construction phase created abnormal annoyances such as truck traffic, work schedules, road closures, dust, and noise. However, the court noted that the plaintiffs failed to submit any expert opinions about the alleged annoyance this phase caused. Instead, the plaintiffs relied on video recordings and testimonies, but the majority of residents testified that they did not experience abnormal annoyances during the construction phase.

On the other hand, the defendant reportedly provided extensive evidence showing it had taken measures to mitigate the annoyances. The court notes that the defendant in the wind farm class action lawsuit made agreements with private landowners to reduce the amount of traffic on public roads, communicated with residents about the work schedule, reduced speed limits, and took other measures to minimize the inconvenience of having a construction site nearby.

The court noted that there had been one notice of non-compliance issued over the amount of dust, but determined that this one incident was actually an indication of the quality of dust abatement measures the defendant had implemented. The court pointed out that, during this one extreme dust event, the defendant offered interior and exterior cleaning services to residents.

As to the issue of noise, the court noted that there were three noise excesses during the construction phase but found that occasional excesses were allowed and did not amount to abnormal annoyances.

During the wind farm’s operational phase, the plaintiffs said that the noise from the wind turbines created an abnormal neighborhood annoyance. However, they reportedly did not provide expert evidence to support their claim in the wind farm class action lawsuit. The court determined that it was unable to rely on testimony from the residents.

The defendants, on the other hand, provided expert evidence to demonstrate the noise from the wind turbines was within the noise limit set by the decree approving the project. The court found that it is unreasonable to expect absolute silence in a rural area and that a reasonable person can hear wind turbines without being troubled. The court ruled in favor of the defendants on the noise issue.

The plaintiffs also asked for compensation for the loss of the rural character of their neighborhood because the wind turbines allegedly altered its rustic character. Again, the court disagreed because the wind farm had been built according to the decree issued by the government, and Quebec law allows landowners to erect structures as long as they are in compliance with local laws.

The court rejected the plaintiffs’ argument about the unattractiveness of the wind turbines, pointing to case law that does not allow compensation for the loss of visual appearance. The court also found that the defendants took measures to minimize the effects of the blade movement and lighting on the nearby residents.

The court also dismissed the plaintiffs’ claims of health problems, lost income and decreased property value because they failed to submit persuasive evidence on those issues.

Do you think it was fair for the court to dismiss the wind farm class action lawsuit? Tell us your thoughts in the comment section below! 

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