Citizens for Safe Technology
Empowering the public to protect children
and nature from unsafe wireless technologies.
BC HYDRO CLASS ACTION / BCUC
Contained here are submissions, responses, files and letters regarding the CSTS Class Action against BC Hydro. The BCUC deliberations re Smart Meter Opt-Out Fees have been ongoing since October 2013 and still have not reached their end. To review the proceedings to date, follow them chronologically in the records that follow.
Mailing address for the Smart Meter Class Action against BC Hydro:
Coalition to Stop Smart Meters
PO Box 52061
Beacon Ave. RPO
Sidney, BC V8L 5V9
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updated July 21, 2016
**After the Class Action Hearings in December 2015, Madame Justice Elaine Adair, the Provincial Supreme Court Judge assigned to the Lawsuit against B.C. Hydro, has considered her decision as follows:
JUDGEMENT of Madam Justice Adair, July 12, 2016
CBC News Report: Smart meter class action lawsuit against BC Hydro denied
July 21, 2016: CLASS ACTION UPDATE and comments about Judge Adair's decision not to certify the class action
SUMMARY of Class Action Hearings to date in the
Lawsuit Against BC Hydro December 7 to 11, 2015
Application for Certification from Class Action Plaintiffs - October 1, 2015
Judge says individual actions better suited to address complaints about controversial program.
"A B.C. Supreme Court judge has rejected a bid by smart meter opponents to certify a class action lawsuit claiming BC Hydro has installed the controversial devices in violation of personal liberty.
"In a 36-page decision, Justice Elaine Adair found there was no way to test key issues raised in the case: whether exposure to smart meters causes biological effects and human harm; and if deciding not to have one on your dwelling is a "fundamental personal choice".
"The judge also found a conflict between the groups of people affected by the outcome of the lawsuit, which was driven by the Coalition to Stop Smart Meters and the Citizens for Safe Technology Society.
"The plaintiffs and those who have supported the CSTS and the coalition believe passionately in their position," Adair wrote.
"However, for others, that position simply represents the triumph of groundless hysteria over good science and holds the prospect that BC Hydro's remaining customers will have to pay higher rates. Success for one group would result in failure for the others."
Davis v. British Columbia Hydro and Power Authority in the Supreme Court of British Columbia
Davis v. British Columbia Hydro and Power Authority
2. Factual background
3. The Certification requirements: overview
4. Does the Proposed NCC disclose a cause of action: s. 4(1)(a)
5. Identifiable class and class description: s. 4(1)(b)
6. Common issues: s. 4(1)(c)
7. Preferable procedure: s. 4(1)(d)
8. Representative plaintiffs and litigation plan: s. 4(1)(e)
9. Summary and disposition
Summary and disposition
"In summary, the certification application is dismissed. Although I have concluded that the Proposed NCC pleads a cause of action based on the liberty interest protected by s. 7 of the Charter, and that the proposed class description could probably be redrafted in an acceptable way, I have concluded that the plaintiffs have failed to meet the requirement under CPA s. 4(1)(c) regarding certifiable common issues. This is fatal to the certification application.
"The plaintiffs' application to amend the notice of civil claim and to add parties as plaintiffs is also dismissed. However, the plaintiffs (if they wish) have leave to apply to amend the notice of civil claim (to a form consistent with these Reasons) and add parties, providing they do so within 60 days of the date of these Reasons."
Smart meter class action lawsuit against BC Hydro denied
A summary of the proceedings from Monday, Dec. 7 to Friday, Dec. 11, 2015, in B.C. Supreme Court in Vancouver, in Davis vs B.C. Hydro.
A summary of the proceedings from Monday, Dec. 7 to Friday, Dec. 11, 2015, in B.C. Supreme Court in Vancouver, in Davis vs B.C. Hydro.
December 7, 2015
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."
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.
"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."
December 9, 2015
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."
December 10, 2015
"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.
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."
December 11, 2015
"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.
"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."
On May 2, 2012, Vancouver City Council listened to various speakers on the Smart Meter issue.
Una St. Clair is with CitizensforSafeTechnology.org. Citizens For Safe Technology Society is launching a Class Action against BC Hydro, the hearings for which will occur at the Vancouver Courthouse from December 7 to December 11, 2015
As many people as possible are asked to attend.
Vancouver City Hall Smart Meter public presentations Part 2
Vancouver City Hall Smart Meter presentations Part 3
Vancouver City Hall Smart Meter public presentations Part 4
Vancouver City Hall Smart Meter public presentations Part 5
Vancouver City Hall Smart Meter public presentations Part 6
(October 1, 2015) In the Supreme Court of British Columbia Between: Nomi Davis and Jessica Klein (Plaintiffs) and British Columbia Hydro and Power Authority (Defendant)
Please find attached, for service upon BC Hydro, the Plaintiffs' written representations in support of their application for certification. These have been filed with the Court today, October 1, 2015.
ADDITIONALLY: Application for Certification
A. Orders sought
Please find attached, for service upon BC Hydro, the Plaintiffs' written representations in support of their application to amend. These have been filed with the Court today, October 1, 2015.
ADDITIONALLY: Application to Amend
TABLE OF CONTENTS
II. ORDERS SOUGHT ON APPLICATION FOR CERTIFICATION
III. CERTIFICATION ISSUES
IV. PLEADINGS DISCLOSE A CAUSE OF ACTION
A. Approach to review of pleadings
B. Health concerns
C. Personal choice
D. Charter overview
E. Charter, Section 7 - Liberty Interest
F. Charter, Section 7 - Security Interest
G. Territorial privacy under the Charter, Section 8
H. Biological effects trigger Charter rights
I. Pleadings applicable to business premises
J. Opt-Out Fees, Failed Installation Fees and Service Refusals
K. Fundamental Principles of Justice in Context
L. Regulation of Electrical Service in British Columbia
M. BC Hydro is exempted from regulation in two respects
N. BC Hydro exempted from having to obtain a CPCN
O. Fortis not exempted from having to obtain a CPCN
P. Direction No. 4 exempts BC Hydro from BCUC scrutiny with respect to its "Meter Choices Program"
Q. Customer resistance against BC Hydro's installation of RF-Emitting Meters
R. Meter Choices Program
S. Direction No. 4 authorizes the mandatory imposition of RF-Emitting Meters
T. Customer "choice" & Direct Communication during Election Period
V. RF-Emitting Meters are not necessary to BC Hydro
W. Principles of Fundamental Justice - Overview
Z. Gross disproportion
AA. Lack of parity
BB. Lack of democratic process
DD. Each element of the cause of action is supported by pleadings of fact
EE. The test for determining whether the pleadings disclose a cause of action
FF. Charter damages V. STANDARD OF PROOF ON CERTIFICATION
A. Proposed classes
VI. IDENTIFIABLE CLASS OF TWO OR MORE PERSONS 68
VII. COMMON ISSUESA. Legal standard
VIII. PREFERABLE PROCEDURE
A. Legal test
B. Whether questions of fact or law common to the members of the
class predominate over any questions affecting only individual members
C. Whether a significant number of the members of the class have a valid interest individually controlling the prosecution of separate actions
D. Whether the class proceeding would involve claims that are or have been
the subject of any other proceedingsi. BCUC Exemption by way of the CEA
E. Whether other means of resolving the claims are less practical or less efficienti. Overview
F. Whether the administration of the class proceeding would create greater difficulties
than those likely to be experienced if relief were sought by other means
G. Certification fulfills the advantage of access to justice
H. Certification fulfills the advantage of judicial economy
I. Certification fulfills the advantage of behaviour modification
J. Summary of preferability inquiry
IX. REPRESENTATIVE PLAINTIFF
A. Legal test
B. Each representative plaintiff would fairly and adequately represent the
interests of his or her respective classi. Overview
C. The representative plaintiffs have produced a plan for the proceeding that
sets out a workable method of advancing the proceeding on behalf of the
respective classes and of notifying class members of the proceeding
D. The representative plaintiffs do not have, on the common issues, an
interest that is in conflict with the interests of other class members
X. CORPORATE CUSTOMERS
TABLE OF AUTHORITIESSchedule A - Assertions of Health Concerns
Notice of Application Brought under the Class Proceedings Act - March 16, 2015
Message from the Executive Director of Citizens for Safe Technology Society, Una St. Clair
We believe that the "people's" lawsuit against BC Hydro is a strong and just case, which is picking up steam as it winds its way through numerous court processes. These large legal actions take patience and an unwavering focus on the goal as it can take years to attain the justice being sought. Anything that must be done, must be done no matter how long it takes, and this is such an instance. It is so important that you know we have not lost our footing despite serious attempts by the BC Liberals to derail our case, and more to the point, we are continuing with an argument which is succinct, sure and strong! In a way, the slowness of the process has been a blessing, as it has allowed us to improve all our pleadings.
Given that the Liberals had found a "legal" way under Direction 4 to protect their blatant abuse of individual rights, it was necessary for us to rewrite our Civil Claim in response. We have now changed course in our lawsuit, to stand squarely on the foundation of our Canadian Charter of Rights and Freedoms, Sections 7 and 8. On March 16, 2015, we filed a revised Second Notice of Civil Claim at the Vancouver Court Registry which challenges the constitutional validity of the various legislative and/or administrative acts, including Direction 4, which have authorized the Liberals to force microwave radiation emitting smart meters onto customers who refuse the same, as well as challenging the constitutional validity of Opt Out and Failed Installation Fees. Our case was scheduled to be heard in court commencing April 27, 2015, however, due to a change in judge's schedule, and the need for us to revise our pleadings, the date will be scheduled for later in the year.
Look for our upcoming newsletter for full details.
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Meetings and events on the issue of wireless technologies in homes and communities throughout North America.
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Citizens For Safe Technology
"Wi-Fi: Is It Safe?"
Citizens for Safe Technology is a not-for-profit educational society made up of parents, grandparents, teachers, business professionals, scientists, politicians and lawyers concerned about the exponential increase in public exposure to harmful wireless technologies.
We believe a profound urgency exists to protect the unsuspecting public, especially children, youth and pregnant mothers from unsafe wireless technologies.
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