Trillium amends Ontario lawsuit

Trillium Power has filed an amended claim in Ontario’s highest court that reduces damages to C$500m ($472m) being sought from the provincial government for a 2011 decision to freeze Great Lakes offshore wind development and cancel its projects.

The Ontario Court of Appeal last month partly overturned a lower court ruling in October 2012 in favor of the government’s motion to dismiss the initial C$2.25bn lawsuit.

Trillium's basis for seeking damages was two-fold: 

First, it asserted that Ontario unlawfully deprived it of a lucrative off-shore wind-powered electric generation project for an improper political purpose, specifically an electoral purpose.

In a second complaint, it alleged that Ontario’s decision specifically targeted Trillium with a view to crippling it financially so that it would not be able to contest the government’s actions.

Trillium pleaded the following causes of action in the statement of claim: breach of contract; unjust enrichment; taking without compensation (which it characterizes as expropriation); negligent misrepresentation and negligence;misfeasance in public office; and intentional infliction of economic harm.

In its ruling, the Court of Appeal allowed dismissal of the first complaint to stand. It enabled the second complaint to proceed, "but only on the narrower basis that Ontario’s conduct was specifically targeted to injury Trillium."

Trillium in its "Fresh as Amended Statement of Claim" with the Ontario Superior Court of Justice alleges "malfeasance in public office” by the Ontario Ministries of Energy, Environment and Natural Resources named in the action.

Trillium contends that the government canceled its TPW1 project in Lake Ontario on 11 February 2011 only hours before it was to secure a $26m funding tranche. The 420MW to 600MW project, which did not have a feed-in tariff contract, would have been located 17km to 28km from shore.

The ruling Liberals say the decision by former Premier Dalton McGuinty's government was based on the need for more scientific research into the potential environmental impacts of placing turbines and support infrastructure in large bodies of fresh water.

Offshore developers contend the move was tied to political considerations as McGuinty struggled to retain support in shoreline communities that oppose offshore wind. He narrowly won a third term but resigned earlier this year.

"I had hoped after the positive 2013 legal court decision to see a sign of cooperation from the province. This would have allowed speedier construction rather than into a lengthy legal process and risk a C$500m payment on the citizens of Ontario," says Trillium chief executive John Kourtoff.

"I like to remain optimistic that we will moving forward, but after countless attempts to reach out to the government of Ontario it is becoming increasingly difficult," he says. "I remain open to discussing this issue with the correct officials to find a mutually beneficial solution-one that creates jobs for Ontarians and drive economic development, instead of costing tax payers money."

The government of Premier Kathleen Wynne did not have an immediate response to Trillium’s court filing.