Sask. Wind Farm can seek damages over failed injunction against development

The Saskatchewan Court of Queen's Bench has ruled that the Red Lily Wind Farm may pursue a claim for damages against David McKinnon based on his undertaking as to damages given when he obtained a injunction against the wind project.  McKinnon commenced a putative class action, claiming that the wind turbine farm caused adverse effects on human health.  He sought and obtained an ex parte injunction (i.e. without Red Lily being present), one of the conditions of which being the undertaking to pay damages if it turned out the injuction was unnecssary.  When the injunction was lifted, Red Lily decided to pursue McKinnon for damages.

The parties asked the Court to determine whether Red Lily is entitled to enforce the undertaking, which read:

The Plaintiff, David McKinnon, hereby undertakes to abide by any Order as to damages which this Court may make by reason of the granting of an interlocutory injunction at the request of the Plaintiff if it shall appear that the Defendants have sustained damages for which the Plaintiff ought to pay.

The Court of Queen's Bench found that the case law "unequivocally establishes a strong presumption that an undertaking will be enforced, a presumption which can only be rebutted by compelling facts amounting to special circumstances."  The Court noted that McKinnon filed no sworn material and failed to establish the existence of any special circumstances.  Therefore, Red Lily is entitled to enforce the undertaking.  The Court then set out the procedural steps to be followed to determine the amount of damages, if any, to be awarded to Red Lily.

Read the decision at: McKinnon v Red Lily Wind Energy Corp.

Red Lily Wind Farm - Court Decision denying injunction

In a previous post, I wrote about a Saskatchewan landowner who may face a costs order as a result of a failed application for an injunction to prevent the Red Lily Wind Farm project from moving forward.  The decision denying the injunction is now available to read at: McKinnon v. Martin no. 122 (Rural Municipality). 

The Court rejected outright the evidence of the expert witness put forward by those seeking the injunction:

If Dr. Nissenbaum could be considered an expert to provide opinion evidence on the issue surrounding the granting of the injunction, there are two further reasons to reject his evidence. The first is that he has assumed the role of advocate. A review of his affidavit No. 2 especially shows that he does not take an objective approach to the issues at hand. He passionately believes in the harmful health effects of wind turbines from his own survey on the Mars Hill project and has made that the basis for his foray into an area that he has little real knowledge of. It is clear from the content and tone of his second affidavit that he has no objectivity in respect of the issues. Secondly, in addition to the leaps of logic that were contained in para. 17 of both affidavits, he makes bold, unsupported statements on issues critical to the injunction.

Having rejected the evidence of the plaintiff's expert in favour of the project proponent's expert, the Court found that the test for an injunction had not been satisfied. 

Wind Farm may seek $450,000 costs from landowner over ex parte injunction

On August 25, the Court of Queen's Bench in Saskatoon granted an interim injunction stopping further construction on the Red Lily Wind Farm.  David McKinnon, a landowner within the Red Lily project area, applied for the injunction on an ex parte basis (i.e. without the presence of the other parties, including the wind farm owner and the local municipalities).  A week later, on September 1, the Court overturned the injunction after hearing from all parties. 

In order to obtain the injunction, McKinnon had to undertake to pay damages if the injunction was found to be unnecessary and damages were caused.  Red Lily Wind Farm claims that the cost of the construction delay was $74,000 per day for 6 days, totalling nearly $450,000.  The company says it is considering seeking to recover the damages from McKinnon.

Read the story at: world-spectator.com.

Wind farm near Moosomin on hold pending further study

Wind farm near Moosomin on hold pending further study

Following a public meeting on Thursday night, the council for the Rural Municipality of Martin has voted to strike a committee to look further into the proposed Red Lily Wind Farm project near Moosomin, Saskatchewan. The project, which is a partnership between Algonquin Power and Gaia Energy, would consist of 16 turbines producing 25 megawatts of power. The partners have contracted to sell the power to SaskPower.

The project had earlier received environmental assessment approval from the province, but the local municipality has decided to undertake further study into the potential impact of the turbines on local residents.