Off-Shore Wind Law Suit Against Ontario Will Proceed

Trillium Power Wind Corporation's planned off-shore wind farm in Lake Ontario was effectively cancelled by the provincial moratorium on off-shore wind development, openly adopted for political reasons. Trillium sued the Province for $2.25 billion in costs thrown away and loss of profit, under numerous causes of action. As we wrote earlier, the law suit was thrown out when the Province obtained a Rule 21 judgment, striking out the claim as disclosing no reasonable cause of action. Trillium appealed, and can now proceed to trial on the basis of one of its causes of action: misfeasance by the provincial government in public office.

In a decision released on November 12, the Court of Appeal continued to dismiss most of Trillium's claims. It was "plain and obvious, and beyond all reasonable doubt, that the appellant could not succeed in its claims for breach of contract, unjust enrichment, taking without compensation, negligent misrepresentation and negligence, and intentional infliction of economic harm."

However, it found that the claim for misfeasance in public office should be allowed to proceed "but only on the narrower basis that Ontario's conduct was specifically targeted to injure Trillium." Trillium's claim, as summarized by the Court (at para. 36):

As we read the statement of claim, the essence of Trillium's complaint in support of the misfeasance in public office claim is two-fold. Trillium asserts that the Premier, his Ministers named above, and their staff acted in bad faith:

a) for purely political motives of electoral expediency in order to win more seats in the upcoming election, when they knew that their actions would harm Trillium; and,

b) in a way that specifically targeted Trillium by cancelling Ontario's wind power projects in order to undercut Trillium's pending financing and thereby place Trillium in a position where it would not have the resources to litigate against Ontario.

Trillium argued that these allegations fell within the Imperial Tobacco qualification that a governmental decision is immune from suit, unless it is "taken in bad faith". The Court of Appeal agreed in part (see paras. 42, 54-57):

We would set aside the dismissal of the claim for misfeasance in public office, but we would permit the action for misfeasance to continue based only upon the allegation that the Government's decision to suspend or cancel the province's wind power program was specifically targeted at Trillium in order to injure it by...