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Off shore wind law suit not dead yet

Trillium Wind Power Corporation’s lawsuit against the province may not be over yet.

Trillium was one of the companies planning to build an off-shore wind farm in Lake Ontario. They invested heavily, totalling $5.3 million, based on the Green Energy Act, the Feed in Tariff, and direct encouragement by senior members of the provincial government. These investments were thrown away in February 2011 when the provincial government announced its “moratorium” of all off-shore wind projects, just as Trillium was about to close its financing. Trillium sued for this “bait and switch”, pleading numerous causes of action including negligent misrepresentation, breach of contract, wrongful expropriation, and misfeasance in public office. Trillium’s statement of claim is available in our earlier blog post.

The province obtained a Rule 21 judgment striking out the claim as disclosing no reasonable cause of action. In a strongly worded decision, Justice Goldstein ruled that the government had the right to impose the moratorium; this was a core policy decision, whether or not it was made for a political purpose:

[63]      Trillium also pleads that the moratorium was imposed for fundamentally political, specifically electoral reasons, and that it is untrue that scientific reasons were at the heart of the decision …  [If so] making a decision for a political purpose would still not ground a cause of action. Chief Justice McLachlin in Imperial Tobacco explicitly mentions political factors as a legitimate public policy consideration.  The remedy for a political decision that a party does not agree with is found in the ballot box, not the courtroom.  Political factors are not illegitimate.  A government may well be justified in not proceeding with a project on the basis of vigorous community opposition. Democratic governments are supposed to be sensitive to public opinion. Courts are manifestly ill-equipped to determine which types of political considerations are legitimate and which are not, which is why our analysis is confined to legality.

Trillium has appealed the decision, alleging numerous legal and procedural errors by Justice Goldstein. In particular, they argue that the judge used the wrong procedure, effectively allowing the province an unfair advantage. Rule 21 motions are pleadings motions, which must be decided, without evidence, as if the plaintiff’s alleged facts were true. Trillium argues that Justice Goldstein treated the motion as if it were a summary judgment motion, but without allowing Trillium to put its evidence before the court, or to cross examine the province on its case. If so, it doesn’t sound like a fair procedure, and may well be overturned.

Similar political considerations underlay the province’s cancelation of the Oakville gas-powered electrical generating station. But in that case, contracts had already been signed, and power consumers will pay hundreds of millions as a result.

By Meredith James and Dianne Saxe

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