Law Times

Law times • OctOber 1, 2012 COMMENT W Hamilton Burger lives on at 24 Sussex Fruitless litigation California, defence lawyer Perry Mason would chop a luckless Los Angeles district attorney by the name of Hamilton Burger into ground meat. William Talman looked more like a Every week, as sure as the sun shone in stuff y Hamilton Burger IV than the ham- burger that inspired his character' innocent aren't always the losers. But even today, Burger is alive and I grew up believing it's good that the s name. well at 24 Sussex Dr. and still gets ground into judicial hamburger every time he goes to court. It' phen Harper doesn't like judges very much. His feelings rub off on his minis- ters as well. His immigration minister, Ja- son Kenney, took a run at the judiciary a while back for siding with Tamil refugee families he was trying to toss in jail or run out of the country. Kenney proudly called his diatribe s no wonder Prime Minister Ste- against the judges a "dialogue with the judiciary. conversation to me. Th e Canadian Bar Association called " It sounds more like a one-way his helpful advice to judges "a threat to judicial independence" and "an aff ront to our democracy and freedoms." At least Burger only went aſt er Mason and never hen I was a kid, there was this wonderful courtroom drama on black and white TV. the judge. Supreme Court Chief Jus- tice Beverley McLachlin has said Kenney resents "judges who are insuffi ciently solici- tous of government policy. She has such a charming way of putting it. Th ere' " the Harper government in the courts. Justice Minister Rob Nicholson lost a big one last May for trying to strip so me war veterans of part of their disability allowance. Th e judgment against him was clear. He wisely chose not to appeal. Th at' s a litany of losses by Richard Cleroux court costs are already up to $750,462. Nicholson won't reveal the names of law- yers involved or the amounts they got. It' s good since the government's all about privacy, you know. Th e eventual settlement with the vet- s erans could reach more than half a bil- lion dollars. Th at' an NHL team or at least publish Harper's hockey book. But it's only a quarter of s enough money to buy what Harper spent on cops at the G20 summit in Toronto. Now that was a spending spree. Th e Harper government also lost a big The Hill blind people full access to its web sites. Th e list of court decisions goes on and on. Th ere' is still the best thing that ever happened to lawyers looking to make a buck. It used to be federal commissions of inquiry that were the big paydays for lawyers, such as the Gomery, Oliphant, and Maher Arar proceedings. Th at' s an upside to all of this. Harper courts. As a result, prostitutes in Vancouver can ply their trade more freely; the West Coast needle-injection sites can stay open; Omar Khadr had his rights violated in 2010 and should come back to Can- ada; Hassan Almrei shouldn't have remained in jail for eight years under a national secu- rity certifi cate; and the gov- ernment can no longer deny in court — the Helena Guergis dismissal comes to mind — stems from principle and ideology and not whether he can win. Th e issue of whether to admit a mistake and make a deal doesn't enter into things. It' s not his money he's spending. articles when a big multinational com- pany sues another. It' But for every one of those cases, there are dozens of others in which the companies made a deal and settled out of court while saving their shareholders a bundle. I have a lawyer friend who tells me in- Journalist colleagues and I love to write s big news, of course. surance companies never go to court for anything less than $10,000. It' settle as they let principle be damned. For Harper and his crew, it' ing so many cases and are going to court so oſt en to fend off challenges — even aſt er abolishing the Court Challenges Program that helped people bring matters forward — that lawyers can still make a good buck off the Harper government. Now all lawyers need is a re-elected ideological fi ght with Quebec that allows the province to keep the part of the gun registry that its residents paid for. All sorts of decisions against the fed- eral government have come out of the Conservative government and every day will be payday for somebody with a gown and starched collar. Who needs Pierre Poutine? Of course, he, too, will eventually be helping people rake in dollars at courts across the land. For Harper, the decision to fi ght people s no longer the case. Offi cials are fi ght- principle as it's not his money. Th ere's no s cheaper to s always bottom line whether the issue is keep- ing Tamil families in jail in order to scare off other refugees or keeping prostitutes working in dangerous conditions on the streets so they don't open brothels. It' ways a question of principle or, alterna- tively, partisan ideology. Our escape hatch as a society is the ju- s al- diciary. Th ose are the people who remain above partisan ideology no matter what' happening in Parliament. So let's hear it for the men and women with the gavels. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. BY JOHN DE VELLIS For Law Times S Wind power issues more about politics than health u SPEAKER'S CORNER ome issues have a habit of polarizing people. Abortion comes topic can cause blood to boil. Wind power may not carry the moral heſt of abor- With large swaths of the public either op- posed or in favour, the mere mention of the to mind. tion, but the issue has the tendency to divide com- munities and create warring factions while leaving the uninformed public in the middle scratching its head. Despite all of the rhetoric, the evidence shows the turbine issue is not a yes or no question like abor- tion but one of degree. How far should wind turbines be from residential dwellings? If the answer to that question is a few hundred extra metres from the ex- isting standard, it' wind critics. In a July 2011 decision in Erickson v. Director, Min- istry of the Environment, Ontario's Environmental Re- s not likely to satisfy the most vocal view Tribunal found there wasn't enough evidence to show that the proposed project posed a "serious threat to human health." Th at is the test set out in the Envi- ronmental Protection Act that opponents must meet in order to overturn an environmental approval for a renewable energy project. Nonetheless, the tribunal did say there was some evidence that wind turbines can cause harm if facilities are too close to residents. Of particular note, considering the level of anger the issue has created, is the tribunal's fi nding that the v. Ontario (Attorney General), the Ontario Divisional Court found that the government, in setting the exist- ing 550-metre setback limit, had received 1,300 written submissions from scientists, engineers, and academics and had also considered more than 100 studies as well as publicly available scientifi c literature. Studies show that fi ve to 10 per cent of people liv- ing near wind turbines report being annoyed by the sound. Indeed, the mere prospect of seeing a wind turbine outside your window can prompt all kinds of frenzy with everything from allegations of vertigo and sleep disorders to loss of hearing due to the noise. However, there' created by wind turbines actually causes health prob- lems. Also, some studies show that the reported lev- els of annoyance related as much to a person' toward the visual impact of wind turbines as to the actual sound level emitted. Th e problem, then, is that the people who don't s attitude evidentiary gap among the parties isn't nearly as wide as it would appear. Th e question, said the tribunal, is one of degree and what protections in terms of noise and setbacks are necessary to protect human health. Th e tribunal outlined a sensible approach, but how does this diff er from the record in Ontario on how the government developed the existing setback limits in the fi rst place? In an earlier decision in 2011 in Hanna like wind turbines are more likely to report being an- noyed by the sound. In addition, these studies suff er from selection bias as people who already think wind turbines have aff ected them select themselves to par- ticipate in the case studies. In any case, as the court in Hanna pointed out, the provincial government knew all of this information when it determined the exist- ing setback levels. Th is past summer, Ontario' dered Dr. Arlene King, chief medical offi cer of health for Ontario, to testify on her 2010 report in which she said: "Th e scientifi c evidence available to date does not demonstrate a direct causal link between wind turbine noise and adverse health eff ects. Th e sound level from wind turbines at common residential setbacks is not www.lawtimesnews.com s Superior Court or- s no scientifi c evidence that the noise s PAGE 7 suffi cient to cause hearing impairment or other direct health eff ects, although some people may fi nd it annoying. posed project to install 150 wind turbines near God- erich, Ont. One of those turbines would sit within 650 metres of their farm. In July 2012, Health Canada announced a two- asked to give evidence in a case concerning a farming couple who have been fi ghting a pro- " Dr. King was subsequently year study to "explore the relationship between wind turbine noise and eff ects reported by, and objectively measured in, people living near wind power develop- ments." Th e study will focus on the health of 2,000 residents who live near wind farms across the coun- try. Wind opponents will eagerly await Health Can- ada' what we already know: some people living close to wind turbines don't like them and may even experi- ence indirect health eff ects. But those conclusions are unlikely to satisfy the most ardent wind critics whose problems with wind seem to go beyond measurable health eff ects. Interestingly, Health Canada announced its study just as the Conservative government's budget im- s results, but the studies will likely only confi rm plementation act, which weakened environmental oversight, became law. So as the federal government squeezes the environmental reviews of the direct health consequences of oil pipelines, it announces yet another study to look at the possible indirect con- sequences of wind turbines. Unfortunately, it seems that when it comes to wind, the real issue isn't health — it' s politics. LT John De Vellis a lawyer at Shibley Righton LLP in To- ronto. He has represented customer and industry groups at hearings before the Ontario Energy Board and also assists renewable-energy developers with commercial, land acquisition, and regulatory issues pertaining to the Ontario Power Authority' s feed-in tariff program.

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