2016 QCCA 1879, 2016 QCCA 1879

Énergie éolienne des Moulins, s.e.c. c. Labranche 2016 QCCA 1879 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC Nos.: 200-09-009270-163 ; 200-09-009273-167 (235-06-000001-148) DATE: November 22, 2016 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. BENOÎT MORIN, J.A. DOMINIQUE BÉLANGER, J.A. No.: 200-09-009270-163 ÉNERGIE ÉOLIENNE DES MOULINS S.E.C. INVENERGY DES MOULINS GP ULC APPLICANTS – Respondents v.

PIERRE LABRANCHE EDNA STEWART RESPONDENTS – Applicants and HYDRO-QUÉBEC INVENERGY DES MOULINS LP ULC INVENERGY WIND CANADA LP HOLDINGS ULC INVENERGY WIND CANADA GP HOLDINGS ULC IMPLEADED PARTIES – Respondents No.: 200-09-009273-167 HYDRO-QUÉBEC APPLICANT – Respondent v. PIERRE LABRANCHE EDNA STEWART RESPONDENTS – Applicants and ÉNERGIE ÉOLIENNE DES MOULINS S.E.C.

INVENERGY DES MOULINS LP ULC INVENERGY WIND CANADA LP HOLDINGS ULC INVENERGY WIND CANADA GP HOLDINGS ULC INVENERGY DES MOULINS GP ULC IMPLEADED PARTIES – Respondents JUDGMENT [ 1 ] In two separate files the applicants seek leave to appeal from a judgment of the Superior Court of Quebec, District of Frontenac (the Honourable Lise Bergeron), rendered on March 31, 2016, authorizing a class action against them in connection with the presence and operation of wind turbines at the Des Moulins Phase 1 wind farm; [ 2 ] For the reasons of Chamberland J.A., with which Morin and Bélanger JJ.A. agree, THE COURT : [ 3 ] DISMISSES the two applications, with legal costs against the applicants in each case.

JACQUES CHAMBERLAND, J.A. BENOÎT MORIN, J.A. DOMINIQUE BÉLANGER, J.A.

Mtre Vincent de l’Étoile Mtre Michèle Bédard Langlois avocats For the applicants Énergie Éolienne des Moulins s.e.c. and Invenergy Des Moulins GP ULC and the impleaded parties Mtre Jean-Olivier Tremblay Cellucci, Fréchette For the applicant Hydro-Québec Mtre Paule Lafontaine Mtre Robert Eidinger Eidinger & Associés For the respondents Pierre Labranche and Edna Stewart Date of Hearing: September 16, 2016 REASONS OF CHAMBERLAND, J.A. [ 4 ] On March 31, 2016, the Superior Court of Quebec (the Honourable Lise Bergeron) authorized a class action against the applicants Énergie éolienne des Moulins s.e.c., Invenergy des Moulins GP ULC, and Hydro-Québec in connection with the presence and operation of wind turbines at the Des Moulins Phase 1 wind farm. [ 5 ] Today, the Court has before it two motions for leave to appeal from that judgment, the first presented by Énergie éolienne des Moulins s.e.c. and Invenergy des Moulins GP ULC (200-09-009270-163) and the second by Hydro-Québec (200-09-009273-167). [ 6 ] These two applications were heard together with four others: three concerned a judgment rendered on February 24, 2016, authorizing a class action in relation to an outbreak of legionnaire’s disease in the Quebec City region between July and October of 2012 ( Allen ) (200-09-009238-160, 200-09-009241-164, and 200-09-009247-161); and one concerned a judgment rendered on April 12, 2016, authorizing a class action in relation to comments and advertising by DuProprio regarding the services offered by real estate brokers and the costs associated with those services (500-09-026070-169). [ 7 ] All of these applications raised the same two issues: (

a) the formulation of the test applicable to the right of appeal of a judgment authorizing a class action under

article 578 of the new Code of Civil Procedure ; (

b) the outcome of the applications for leave to appeal.

Test applicable to the right of appeal [ 8 ] According to the Court’s decision in Allen , the test is the following: an appeal judge will grant leave to appeal from a judgment authorizing a class action where that judgment appears, on its very face , to contain a determinative error in interpreting the conditions for bringing the class action or in assessing the facts related to those conditions, or where the Superior Court clearly lacked jurisdiction. [ 9 ] It now remains for us to consider and decide the outcome of each application for leave to appeal in light of this test and the circumstances specific to each of the applicants.

Leave to appeal Énergie éolienne des Moulins s.e.c. and Invenergy des Moulins GP ULC

[ 10 ] The class action instituted by the respondents is an action in civil liability and neighbourhood disturbances resulting from the construction and operation of the Des Moulins wind farm, which comprises 59 wind turbines located on approximately 2,442 hectares in the municipalities of Thetford Mines, Kinnear’s Mills, and Saint-Jean-de-Brébeuf. [ 11 ] The trial judge characterized Énergie éolienne des Moulins, a limited partnership, as being the “principal” respondent (para. 67). [ 12 ] Invenergy des Moulins GP ULC is its general partner. [ 13 ] The trial judge immediately set aside the possibility of a class action against Invenergy des Moulins LP ULC (the limited partner), Invenergy Wind Canada GP Holdings ULC (a shareholder of the general partner) and Invenergy Wind Canada LP Holdings ULC (a shareholder of the limited partner).

That aspect of the judgment is not challenged in the two applications now before the Court. [ 14 ] The judge concluded that the condition set out at article 575(1) of the new C.C.P. (“the claims of the members of the class raise identical, similar or related issues of law or fact”) had been met. In her view, the fact that the alleged neighbourhood disturbances were attributable to 59 wind turbines rather than one alone was not a bar to bringing a class action, even though it clearly made the exercise more complex.

The common issue remained whether the respondents caused neighbourhood disturbances affecting the class members. [ 15 ] The judge also concluded that the condition set out at article 575(2) of the new C.C.P . (“the facts alleged appear to justify the conclusions sought”) had been met in respect of Énergie éolienne des Moulins s.e.c. and its general partner, Invenergy des Moulins GP ULC.

The allegations in the application, the various references to noise level measurements, as well as the references to similar existing studies conducted elsewhere and to the BAPE report on the project (R-6, the January 2010 investigation report) led the judge to conclude that the applicants had established an [ translation ] “arguable case” as regards the alleged neighbourhood disturbances (stroboscopic effects, vibrations, noise, dust, etc.). [ 16 ] The applicants argue that the judge made determinative errors in applying the criterion set out at article 575(1) of the new C.C.P .

They allege that she erred with respect to the legal characterization and the applicable burden. In their view, she further erred in concluding that there were identical, similar or related issues of law or fact, unrelated to the causes of action raised (civil liability and neighbourhood disturbances) or the underlying circumstances of the proposed class action.

Finally, they claim that she prejudged the outcome of the proposed common issues and exceeded her jurisdiction at the authorization stage of a class action, thus interfering with the applicants’ right to make full answer and defense. [ 17 ] With respect for the contrary opinion, I do not find that the trial judge’s decision regarding the condition set out at article 575(1) of the new C.C.P. contains on its very face a determinative error in the

interpretation of that condition or the assessment of the facts relevant to that condition. [ 18 ] The judge explained that the fact that there were numerous sources of neighbourhood disturbances (59 wind turbines spread out over a large area) instead of only one was not a fatal obstacle to bringing a class action. In her view, this reality was not incompatible with the class members’ common issues, specifically whether there were neighbourhood disturbances resulting from the applicants’ fault (article 1457 C.C.Q .) or exceeding the normal limits of tolerance between neighbours (article 976 C.C.Q .).

The applicants have not demonstrated how this conclusion at the authorization stage of the class action constitutes a determinative error. [ 19 ] Nor have the applicants shown how the trial judge might have prejudged the outcome of the proposed common issues, exceeded her jurisdiction at the authorization stage of the class action, or interfered with their right to make full answer and defense.

Hydro-Québec [ 20 ] The applicants essentially criticize Hydro-Québec for having abused its rights by moving forward with the Énergie éolienne des Moulins project, modifying the wind turbine corridor, and building the project near a large hydroelectric substation, thereby rendering Hydro-Québec jointly and solidarily liable for the damage the applicants claim to suffer due to the alleged neighbourhood disturbances. [ 21 ] The trial judge believed that the allegations in the application and the evidence in the record met the low evidentiary threshold required at that stage of the proceedings, justifying the conclusion that Hydro-Québec may be liable in part for the alleged prejudice or for abusing some of its rights.

The judge added that, obviously, she was not ruling on the merits of the case at the authorization stage. [ 22 ] Hydro-Québec argues that the judge erred in her assessment of each of the three conditions set out at paragraphs 575(1), (2) and (3) of the new C.C.P. [ 23 ] I will not revisit what I wrote above concerning the condition set out at article 575(1). Hydro-Québec contends that its situation is different because its liability is sought for abuse of rights, whereas the liability of the other defendants is sought for neighbourhood disturbances. This argument does not convince me.

It is true that the causes of action are different, but it is just as true that the two are interrelated because they both originate in the neighbourhood disturbances raised by the applicants. [ 24 ] As for the condition set out in article 575(2) of the new C.C.P ., I will simply say that Hydro-Québec has not shown how the trial judge’s analysis might appear to contain a determinative error of law or how her conclusion might seem to result from a clearly erroneous assessment of the facts related to that condition.

The trial judge explained why the allegations in the application appeared sufficient to ground an [ translation ] “arguable case” for the applicants against Hydro-Québec. I do not see the appearance of an error that justifies granting the leave to appeal being sought. [ 25 ] As for the condition set out at article 575(3) of the new C.C.P . (“the composition of the class makes it difficult or impracticable to apply the rules for mandates to take

part in judicial proceedings on behalf of others or for consolidation of proceedings”), there is little to say. The judge emphasized that, taken alone, the size of the wind farm and the distribution of the wind turbines over the area indicate a “potentially large class” (paras. 118 and 131). [ 26 ] Considering the 4.8280 km that separate the residence of plaintiff Pierre Labranche from the furthest wind turbine, the

applicants raise the possibility of 2,000-member class. The judge considered the distance of 4.8280 km, as well as the amounts of the individual claims ($10,000 – $50,000, plus a certain amount to compensate for the loss of property value) from the perspective of individual actions . [ 27 ] Before concluding that, in this case, it would be illusory to consider the possibility of individual proceedings (over 2,000 owners or occupants, over a vast territory) or a consolidation of proceedings, she pointed out that the distance retained was based on a study by the Ontario Ministry of Environment.

In the circumstances, the substantial value of the individual claims was not, in her view, sufficient to rule out the possibility of a class action and justify individual proceedings. [ 28 ] In my opinion, Hydro-Québec is wrong to revisit this question. It has not shown how the judge may have erred in her

interpretation of the condition in article 575(3) of the new C.C.P . Nor has Hydro-Québec shown how the trial judge’s conclusion concerning that condition was the result of a clearly wrong assessment of the relevant evidence. [ 29 ] For these reasons, I would dismiss the two applications for leave to appeal, with legal costs against the applicants. JACQUES CHAMBERLAND, J.A.