Trillium Wind Power fights to keep Ontario lawsuit alive
John Spears Business Reporter
Slapping a moratorium on offshore wind turbines in Ontario 18 months ago had more to do with political science than with natural science, a court heard Tuesday.
The Ontario government imposed the moratorium in February, 2011, derailing four offshore wind power projects proposed by Trillium Wind Power Corp.
One of the projects, a 420-megawatt development off Kingston in the waters of Lake Ontario, was hours from obtaining $26 million in financing – a deal that fell through in light of the moratorium.
Trillium is now suing the province for $2.25 billion to compensate for its losses.
Trillium says the decision was made in bad faith, as the Liberal government sought to damp opposition to offshore wind projects in the run-up to the provincial election in October last year.
The province said it needed time to conduct more scientific studies on the health and environmental impacts of offshore turbines.
But Trillium lawyer Morris Cooper told the court that’s not the case.
“The only science involved, as we’ve alleged, is political science,” Cooper told the court.
Earlier, provincial government lawyers had asked Mr. Justice Robert Goldstein to throw out Trillium’s lawsuit.
Trillium had first started investigating its offshore sites in 2004, but provincial lawyer Eunice Machado said the company had no legal agreement in hand.
Trillium had been accepted as an “applicant of record,” she said, but
“from the get-go, applicant of record status doesn’t provide the kind of rights suggested in the statement of claim.”
“In our submission they were far from any tangible rights or contract with the government.”
The province has “complete discretion” at every stage of the long bureaucratic process that renewable energy projects undergo to block them, she said.
It also has the right to change policy in the public interest, as it did with the offshore wind program, she said.
“When the government decided not to proceed with the program, they were fully within their rights,” she said.
Provincial lawyer Kim Twohig agreed.
She said Trillium accepted a business risk when it started looking for wind power agreements with the government.
At the time the province declared the moratorium, Trillium had no contract, she said.
“All it had was the possibility of proceeding further in a discretionary process,” she said.
It was a multi-step process, she said, and the government clearly had the right to stop an applicant at any stage.
Cooper argued that it’s wrong for the government to want the case thrown out before a full trial, when evidence can be heard and be tested.
He argued that the province acted in bad faith in shutting down his client’s projects.
He noted that the province had sent Trillium chief executive John Kourtoff to Europe twice – paying his travel and accommodation expenses – to promote Ontario’s green energy policies. The second trip came just a month before the moratorium was declared.
Trillium had also paid the province thousands of dollars in fees for exclusive rights to develop its project off Kingston, Cooper said.
The moratorium, he noted, came abruptly by way of press release. The government knew Trillium was on the verge of signing a financing agreement he said, and was in an “unseemly rush.”
“It was deliberately done that Friday afternoon in order to cut us off at the pass,” he said.
And it was done “for purposes that have nothing to do with core policy in wind power,” and “everything to do with cottages on Lake Erie,” he said.
That’s not a normal business risk, comparable to an oil company drilling a dry hole, he said.
“The government capriciously and in bad faith decided to throw them under the bus,” he said.
Goldstein reserved his decision.


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