Ontario government lawyers are making another run at dismissing a $500-million lawsuit over the cancellation of a massive wind-power station that might have been built in Lake Ontario off Kingston, a case that’s been in litigation for more than six years.
The government’s lawyers say the case is “plainly devoid of merit” and should be tossed, in their formal notice of their intentions filed in September.
Trillium Power Wind Corp.’s lawyer says the government just doesn’t want the evidence the company has to come out in court.
“We will be arguing that this proposed motion is an abuse of process and intended solely to delay the upcoming trial,” Morris Cooper said in a written statement.
The government’s move to dismiss the case is to be heard Oct. 24.
The lawsuit is twisted up with the criminal trial going on in Toronto now involving former premier Dalton McGuinty’s last chief of staff David Livingston and Livingston’s deputy Laura Miller. They’re facing charges they broke the law as the McGuinty team was headed out the door in early 2013, by getting Miller’s computer-expert partner into government computers illicitly. The idea being examined in the trial was that they wanted to erase emails related to the costs of cancelling a pair of controversial gas-fired electricity stations near Toronto before the 2011 election. The two have pleaded not guilty.
There’s a separate Ontario Provincial Police investigation of the Trillium affair, though all three of these cases — the Livingston-Miller trial, the Trillium OPP file and the Trillium civil suit — are over basically the same events.
Trillium alleges in its lawsuit that the government targeted Trillium’s plans for that huge offshore wind farm with a freeze on all windmills in the Great Lakes, also in 2011. Trillium says that masses of evidence proving the point got swept up in a widespread deletion, which amounts to “misfeasance in public office.” You can’t get out of paying for doing wrong by getting rid of the evidence, the company says.
This is the thread by which Trillium’s lawsuit hangs, after an earlier round of legal fighting ended with the Ontario Court of Appeal dismissing claims related to the wind-farm moratorium itself.
Ontario, in its green-energy fervour of the 2000s, did encourage companies to get to work on Great Lakes wind farms, offering up rights to the lakebeds and starting to plan for how hundreds of megawatts of wind power out on the water would get into the provincial power grid. These would have been first-in-the-world projects in freshwater lakes that sometimes freeze up.
Then the government changed its mind. Twice, in fact: first before the 2007 election, when it imposed one moratorium it eventually lifted, and then again before the 2011 election.
The official reason for the 2011 moratorium on Great Lakes wind farms is that the government became worried that plunking hundreds of windmills into the lakebeds would stir up decades of industrial toxins that have settled into the sediments, poisoning water supplies. In six years, it’s done no research on that question.
Anyway, the government can do what it did, the court of appeal ruled in throwing out most of Trillium’s case. Balancing different sets of interests is what we have an elected government for. The province makes policy decisions that cost people money all the time — taxes go up or down, products get approved and banned, highways get built or not — and you can’t get damages unless the government set out specifically to hurt you.
Trillium alleges that’s what happened here, that the government timed its decision stopping offshore wind farms so it came out the day Trillium was to seal a financing deal and blew the company up (it exists now mainly as a vehicle for this lawsuit).
Tosh, says the government. The decision was in the works for months and the timing was a coincidence.
“Ontario did not know that the plaintiff was intending on securing its financing on the day it announced its policy decision,” the province’s filing says. “As such, there cannot be any evidence of Ontario’s intention to harm the plaintiff because Ontario could not have formed such an intention.”
There would be proof, responds Trillium, if you hadn’t erased it, and we have “thousands of pieces of evidence” about the erasing that we’re eager to put on the record.
Ontario’s already lost a related case on very different legal grounds. Last year an international tribunal agreed the government violated the North American Free Trade Agreement with its moratorium on wind farms, which killed a project next to the one Trillium was working on run by an American-backed company. The people of Ontario are out $28 million in damages and legal costs for that.
The government’s filing against Trillium says if the case does go ahead, Trillium should have to put up money that would cover the government’s costs if Trillium loses, “which could be considerable” and which Trillium probably couldn’t pay. The Catch-22s abound when you’re going up against an opponent with a big legal team and bottomless pockets.
If the case does go ahead, it’s due to go to trial next June 11, three days after the spring election.