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$2.25 billion Ontario wind power lawsuit can proceed, court rules

Ontario’s highest court has re-instated a $2.25 billion lawsuit against the Ontario government by an offshore wind company.

The Ontario Court of Appeal has ruled that Trillium Power Wind Corp. can sue the province for calling a moratorium on offshore wind projects in 2011.

A lower court had thrown out the lawsuit.

But the Court of Appeal ruled that the case can proceed, though the court narrowed the grounds on which it can be argued.

The case stems from the province’s announcement in February, 2011, that it was calling a halt to all off-shore wind farms, saying further study was needed about possible health effects. The moratorium remains in effect.

The province was heading for an election that fall, and wind farms were a contentious issue, arousing strong opposition in many rural areas.

Trillium said that when the moratorium was called, it was on the verge of signing a $26 million financing deal for a wind project of up to 600 megawatts in Lake Ontario off Main Duck Island, near Kingston.

Trillium said the financing fell through with the announcement. The company then sued the province for $2.25 billion.

The latest ruling, re-instating the lawsuit, says Trillium can’t argue that the government acted in bad faith by abruptly halting off-shore wind farms.

“Ministerial policy decisions made on the basis of ‘political expediency’ are part and parcel of the policymaking process,” the court ruled.

“There is nothing unlawful or in the nature of ‘bad faith’ about a government taking into account public response to a policy matter and reacting accordingly. That is what governments do, in pursuit of their political and partisan goals in a democratic society.”

But the court said Trillium can argue that it was a victim of “malfeasance in public office.”

To succeed in that argument, the court says, Trillium will have to establish the existence of “deliberate unlawful conduct by a public officer in the exercise of a public function” as well as “awareness that the conduct is unlawful and likely to injure the plaintiff.”

John Kourtoff, chief executive of Trillium, said in an interview that litigation is a “last resort,” and he’d still like to talk to the province about resolving the dispute.

“We’re going to give them some time,” Kourtoff said. “Hopefully the door will be open and they’ll take our hand and want to discuss it.”

An official in the office of energy minister Bob Chiarelli said the government can’t comment because the matter is before the courts.