Nomi Davis and Jessica Klein have initiated a Class Action Lawsuit against BC Hydro regarding the installation of wireless Smart Meters on their homes and businesses.
DECISION – JULY 12, 2016
Judgement of Madam Justice Adair – Davis v. British Columbia Hydro and Power Authority 2016 BCSC 1287 – Docket S135590: http://www.courts.gov.bc.ca/jdb-txt/sc/16/12/2016BCSC1287.htm
July 20, 2016: COMMENTS about Judge Adair’s DECISION not to certify the class action. For now, please do not send in registrations or donations for legal costs.
Nobody has ever said that the challenge of bringing public accountability to BC Hydro would be easy, but significant and encouraging steps have been realized despite the court’s refusal of the application for class action certification of a civil lawsuit against BC Hydro.
Of greatest importance is that the foundational argument of the case survived the attack by BC Hydro, and the court found merit and plausibility in the success of a cause of action which embodied the Charter of Rights, Section 7 Liberty Interest. In short, the court recognized that the right to be free from government interference regarding choices of a fundamental and personal nature within one’s home was a valid argument. Now that’s a success that we would not have achieved without this class action application.
The court’s recognition of the Section 7 Liberty Interest as it relates to forced smart meter application and unacceptable microwave radiation emissions exposure therefrom is a major development and a big step up the stairway to success.
Where this court application for class action certification failed is in the identification of a common class. There are several main reasons which cause concern over smart meter installation – health damage, health concerns, fire risk, security & surveillance and billing concerns account for the majority of varied reasons which could give rise to a resident refusing a smart meter. Given that the court was analyzing the viability of the class action procedures, not the merits of the case, it is clear that the next action would be one where the class of persons would need to be narrowed so that there was a common issue within the group.
Since the court has affirmed the viability of a Section 7 Liberty Interest cause of action, now is the time to analyze how to use this valuable court decision as a relevant legal landmark upon which a refined case can be brought against BC Hydro.
It is also important to note that the decision did not assert that the microwave radiation emissions from smart meters is safe, and since the Notice of Civil Claim against BC Hydro was filed in 2013, recent credible science is reporting the possibility of devastating ill health effects from wireless exposure. Unfortunately, scientific articles which would have further supported health concerns were released after the court had closed submissions. Check out the US National Toxicology Program science article on brain and heart cancers from two years intermittent “cell phone” exposure. (http://biorxiv.org/content/early/2016/05/26/055699)
BC Hydro asserts that the Clean Energy Act allows them to act with impunity even though its actions and the roll out of the smart meter program violates our fundamental principles of a democratic society. We know that the Charter protection afforded to every individual in BC is activated when members of the public are being subjected to undemocratic and oppressive tactics of a governmental agency, and BC Hydro is not excluded from the responsibility to abide by the Charter of Rights. While we disagree with certain statements made in the court decision, we are thankful for the recognition of the validity of the Charter Section 7 Liberty Interest argument, and now continue to seek redress as we move ahead.
This decision has opened the way for individual civil claims against BC Hydro under the Charter Section 7 Liberty Interest. There can be as many individual claims as people feel their rights have been frustrated. Any customer of BC Hydro who is interested in pursuing civil action against BC Hydro is encouraged to take this Supreme Court Decision to a lawyer versed in constitutional law for an opinion on the merits of their individual situation. We would like to hear from anyone who receives legal advice affirming their case against BC Hydro under Section 7 of the Charter.
7 – A summary of the proceedings of Day 1, Monday, Dec. 7, 2015, in B.C. Supreme Court in Vancouver, in Davis vs B.C. Hydro. (by Greg McIntyre)
Citizens For Safe Technology and Stop Smart Meters BC had a turnout that was too large for the fifth-floor B.C. Supreme Court room at 800 Smithe St., so at the first recess, some of the people who had seats gave them up to those who had been out in the hall, so that everyone could be in the court room for at least some of the proceedings on Day 1.
It’s important to understand that this five-day court case is not to argue for a more just smart meter opt-out program or even for an end to the penalty for keeping your old analog electricity meter.
It’s a five-day hearing to apply for the certificate that’s required to launch a class action lawsuit against the way BC Hydro has gone about its program to install a smart meter on every home and office in the province.
CST-Stop Smart Meters lawyer David Aaron was asked outside the courtroom, if he is successful in winning approval to go ahead with the class action lawsuit, might it take a while to get into court. He said, yes, “or Hydro could settle”.
At the end of the day Monday, Aaron told Madame Justice Elaine Adair that he and Hydro’s lawyers, Marko Vesely and Toby Kruger, have agreed to split the allotted five court days into two-and-a-half days each.
8 – A short summary of the proceedings of Day 2, Tuesday, Dec. 8, 2015, in B.C. Supreme Court in Vancouver, in Davis vs BC Hydro. (by Greg McIntyre)
It might be impossible to prove in court that the electromagnetic radiation from BC Hydro’s “smart meters” is causing health problems.
But the public interest groups Citizens For Safe Technology and the B.C. Coalition To Stop Smart Meters say there is enough controversy in scientific papers and media reports about their safety that thousands of customers have refused to give Hydro permission to install the radio-frequency emitting devices on their homes and offices.
Yet Hydro has gone ahead against their wishes and installed the meters anyway, with the threat of cutting off the power if they refuse or imposing a $35 a month penalty for keeping their old analog meters.
CST and Stop Smart Meters are in B.C. Supreme Court this week seeking permission to launch a class action lawsuit for the constitutional right of Hydro customers to refuse the wireless meter and to recover damages.
David Aaron, lawyer for the two groups, said if the case is allowed, it won’t allege harm, but instead will prove that Hydro’s tactics have violated a person’s reasonable constitutional right to make the choice to keep their home safe from possible risk.
The electrical meters send out “bursts of emissions every 68 seconds at a minimum … you’re living with them day in and day out … every day of the year,” he said.
Smart meter radiation is similar to that from cellphones, and while more research is needed to know whether it’s harmful, it has been proven to have biological effects.
9 – A short summary of the proceedings of Day 3, Wednesday, Dec. 9, 2015, in B.C. Supreme Court in Vancouver, in Davis vs BC Hydro. (by Greg McIntyre)
BC Hydro smart meter opponents concluded three days of arguments Wednesday.
The final days of their hearing in B.C. Supreme Court, Thursday and Friday, will be given over to Hydro to defend its wireless electrical meters.
Madame Justice Elaine Adair will then have to sift through all the debate and decide whether the plaintiffs have a compelling enough case for a class-action lawsuit.
If they get to trial, David Aaron, the lawyer for the plaintiffs, said they’ll seek an order compelling Hydro to offer all its customers the choice to refuse the controversial meter.
And they want Hydro to return the $32.40 a month penalty customers have been charged for keeping their old mechanical meters, plus any other associated damages.
Wednesday was spent clarifying what Aaron called “the principles of fundamental justice” that would protect a person’s right to avoid a possible cancer-causing device in their home or place of work.
Judge Adair worked with him to sharpen the details and definitions of “common issues” and “classes” in his argument so they can be spelled out clearly in the certificate needed to proceed to trial.
10 – A short summary of the proceedings of Day 4, Thursday, Dec. 10, 2015, in B.C. Supreme Court in Vancouver, in Davis vs BC Hydro. (by Greg McIntyre)
BC Hydro threw up some obstacles Thursday in the way of its smart meter opponents.
The Canadian Charter Of Rights And Freedoms says: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Plaintiffs at a hearing in B.C. Supreme Court say that Section 7 of the charter gives them the “liberty” to refuse the possible cancer-causing radiation from Hydro’s wireless electrical meter.
But Hydro’s lawyer, Marko Vesely, said the freedom to refuse a smart meter would only amount to a “lifestyle choice”. To claim protection under the charter, you’d have to show physical or psychological harm and that claim would come under “security of the person”.
Madame Justice Elaine Adair will have to sort out whether liberty or security is involved when someone refuses a smart meter, as she decides whether to certify the opponents’ plans for an anti-smart meter class-action lawsuit.
David Aaron, the lawyer for Hydro’s opponents, has said it would be next to impossible to prove harm in court. The class-action lawsuit, instead, must depend on showing the reasonableness of the fundamental right to protect yourself from a possible source of harm.
Hydro’s lawyer also attacked his opponents’ claim for repayment of the $35 a month plus related penalties charged to customers who have refused to accept a smart meter. Hydro is authorized to install the meters, Vesely said. But if a new law changes that, it would not be right to retroactively make those fees illegal. They were paid for the extra resources provided by Hydro to service those anti-smart meter customers.
11 – A summary of the proceedings of Friday, Dec. 11, 2015, the final day of a hearing in B.C. Supreme Court in Vancouver, in Davis vs BC Hydro. (by Greg McIntyre)
“Thank you for your submissions. I’m reserving judgment.”
With that, Madame Justice Elaine Adair left the courtroom in downtown Vancouver on Friday to begin her deliberations on whether to allow a class-action lawsuit against BC Hydro smart meters.
Tens of thousands, perhaps one hundred thousand or more, of Hydro’s 1.9 million customers have objected to having the wireless electrical meters installed on their homes or offices or having to pay the $35 a month penalty that Hydro has collected because they’re keeping their old analog meter.
Their objections are the basis for the class-action lawsuit, which will allege that:
— they’ve lost their charter right of personal choice and the autonomy to refuse the meter
— there was no democratic process, debate in the provincial legislature or oversight by the BC Utilities Commission in granting Hydro the authority to install the meters
— electricity is a basic necessity of life and they have little or no option but to submit to Hydro’s terms
— and in a news release in July 2013 announcing Hydro’s “Meter Choices Program”, Energy and Mines Minister Bill Bennett said, “nobody will be forced to take a smart meter” and yet 96 percent of the utility company’s customers have not been offered the choice of an opt-out.
In addition to the plaintiffs who started the litigation, six “representative plaintiffs” have filed personal affidavits detailing the various situations forced on them by Hydro.
Most are people who are trying to keep their homes free of wireless radiation, but one is a doctor suffering electro-hypersensitivity who tried to prevent a meter being installed at his office, and another is the principal of a school who tried to shield her students from radiation from the meter.
They’re waiting now to see if their concerns will get to trial.