Chatham-Kent’s Christine Burke will have to wait a couple of months to see if her charges against several wind turbine companies, a provincial ministry and its cabinet minister, will continue through the court system.
In mid-July, Burke, with the assistance of Toronto lawyer Eric Gillespie, took her plight to an Ontario Justice of the Peace who determined there are “reasonable and probable grounds” to bring charges under the Environmental Protection Act (EPA) against Ontario Environment Minister Jeff Yurek, the Ministry of the Environment and three industrial wind companies with projects in Chatham-Kent — Pattern Energy Group, Samsung Renewable Energy Inc., who operate the North Kent Wind 1 and 2 projects in the former Dover and Chatham townships, and Engie Canada Inc. which operates the East St. Clair wind farm.
Burke, a well owner in the East St. Clair wind farm project area, brought the complaint to the courts.
She had her first day – well, mere minutes, actually – in a packed courtroom Aug. 14 at Provincial Offences Court on Communication Road just south of Highway 401.
All parties involved agreed to a 60-day adjournment, and court will resume on the matter on Oct. 30. The adjournment came at the request of Brian Wilkie, a representative of the Ministry of the Attorney General. He said the Attorney General has a supervisory capacity over all court matters and he was appointed to review the disclosure materials from the prosecution (Gillespie and Burke) and prepare a memorandum to determine whether his ministry should get involved.
Gillespie said nothing out of the ordinary occurred during the brief court appearance.
“Today, we all know the Ministry of the Attorney General had lawyers present here. That is because any private prosecution anywhere in Ontario is always reviewed by the ministry, and they decide, as Mr. Wilkie, the lawyer, said, whether to intervene or not,” he said. “They can chose to participate; they can choose to not participate and allow us to conduct the prosecution, which has happened in cases we’ve conducted in the past; or they can choose to say, ‘We think these matters should be withdrawn.’ It’s entirely their discretion.”
Gillespie said the latter course is not something he has often seen.
But should the ministry opt to kill the court proceedings, he said there is a limited opportunity to appeal.
“If the ministry’s decision is that the prosecutions not proceed, then our role as counsel is complete,” Gillespie said. “It is possible to appeal the decision in a different forum. But that would be a decision that could only be made after we see what their rationales are.”
He anticipates hearing back from the Attorney General’s office with its initial assessment prior to the Oct. 30 court date.
The adjournment will also provide one of the defendants, Pattern Energy, with the opportunity to be served by the courts. They are named in the case, but had not received a summons by the court date.
Gillespie said he does not know what happened.
““In a private prosecution matter, the service of documents is done through the courts,” Gillespie explained. He said he would look into what had happened.
Gillespie said Burke had compiled more than 2,000 pages of disclosure material in the case. He shared the material with lawyers representing Engie, Samsung and Yurek and the Ministry of the Environment via USB thumb drives.
Outside the court building, Gillespie thanked members of the public for attending.
“There are people here from Chatham-Kent. I believe there are people here from other communities that have been affected by industrial wind turbine projects,” he said. “It’s great to see everybody. The support is appreciated.”
He stressed this is just the beginning of the legal process in the matter.
“Today is just the first step in the entire process. We are very comfortable that things are proceeding as usual,” Gillespie said. “We’ve done this somewhere between 40 and 60 times. This is just standard operating procedure.”
According to court documents obtained by the media, the three respondent companies are charged under the EPA with “unlawfully discharging contaminants, including black shale and potentially hazardous metals into the natural environment in an unlawful manner that caused, or is likely to cause, an adverse effect.”
Both the Ministry of the Environment and the minister have been charged for allegedly “failing to take all reasonable care to prevent the installation and operation of the wind turbines” at the wind farms, which resulted in the well water contamination.
Gillespie said the sitting minister is named for two reasons, despite the fact the turbines were constructed under the oversight of the previous Liberal government.
“The problem is ongoing and as a result there is, certainly in the view of many people, an opportunity for the government today to act to help the individuals that are being affected,” he said. “Secondly, the only party that a court can make a directional order in relation to is somebody who is in power now. The court can’t order somebody who has no authority anymore to do something to clean things up.”
According to Gillespie, any person residing in the province can launch a private prosecution by appearing before a justice of the peace and swearing under oath about an alleged violation of the law, including offences under the EPA.
Burke is a well owner who has had black water issues since the East St. Clair turbines were constructed in 2012.