On April 8, 2015, Justice Johanne April dismissed a Motion for authorization of a class action in neighborhood disturbances concerning the construction of a wind farm near Quebec City (Parcs éoliens de la Seigneurie de Beaupré).
This decision is the second one rendered in a small period of time related to wind farm projects, in the Province of Quebec, and is a rare decision dismissing authorization with respect to neighborhood disturbances in this province. In fact, in a decision rendered last October, Justice Marc St-Pierre granted a Motion for authorization of a class action related to the exploitation of a wind farm in the Centre-du-Québec (Éoliennes de l’Érable inc.) Another Motion for authorization of a class action has been filed in the Province of Québec regarding the exploitation of a wind farm (Parc éolien des Moulins Phase 1), but no decision has yet been rendered.
In Parcs éoliens de la Seigneurie de Beaupré, the Applicants were seeking damages related to the construction of the wind farm, alleging inconvenience related to the increased traffic, noise and the dirt due to the transportation of workers and equipment. It is interesting to note that no damages were claimed in relation to the exploitation of the wind farm, considering that the wind farm is built on a private land far away from the houses. This is an important distinction with to the two other class actions mentioned above, where damages are claimed in relation to the exploitation of the wind farm (constant noise and vibration, visual pollution, visual impairment, physical and mental health problems and loss of property values).
In Parcs éoliens de la Seigneurie de Beaupré, Justice April found that criterion 1003 c) of the Code of Civil Procedure was not met and dismissed the Applicants’ Motion.
Said criterion stipulates: “The composition of the group makes the application of article 59 or 67 difficult or impracticable.” In this regard, Section 59 stipulates that “when several persons have a common interest in a dispute, any one of them may appear in judicial proceedings on behalf of them all, if he holds their mandate.” And Section 67 stipulates: “Two or more persons, whose claims have the same judicial basis or raise the same points of law and fact, may join in the same suit.”
The Court considered there was no evidence regarding the number of residents living on the roads aimed by the authorization and that such information would have been important. Moreover, it mentioned that the impact of the noise and dirt was obviously different depending on which road the member’s property was located. The Court indicated that the description of the group was too broad but decided not to use its discretion to reduce and/or redefine the group. Finally, the group really affected was in fact quite limited so that the residents allegedly disturbed by the nuisances could easily be identified and, therefore, application of Sections 59 or 67 C.c.p. was neither difficult nor impracticable.
The dismissal of the Motion for authorization in Parcs éoliens de la Seigneurie de Beaupré gives some hope and shows that the contestation of authorization is still useful. Nevertheless, this decision remains an exception and will be examined by the Quebec Court of Appeal. When the decisions in Parc éolien des Moulins Phase 1 as well as the one from the Court of Appeal in Parcs éoliens de la Seigneurie de Beaupré will be rendered, then we will be able to see if the wind has turned…or if it was just a single gust of wind!