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Ontario government denies ‘intentionally’ destroying wind-farm lawsuit documents

The Ontario government has denied that it intentionally destroyed documents related to a legal dispute with a company that wanted to build offshore wind turbines in Lake Ontario.

In court documents filed in May, Trillium Power Wind Corp. accused the Liberal government of “spoliation” – the legal term for the deliberate destruction or elimination of evidence.

The government has now replied in an amended statement of defence, saying those accusations are false and there is no basis for the claim that documents “have been intentionally destroyed.”

The dispute is part of a lawsuit filed by Trillium after its planned wind farm project in Lake Ontario near Kingston was nipped in the bud by a sudden change in government policy.

Trillium spent years and millions of dollars developing plans for the project, but it had the rug pulled out from under it in February, 2011, when the province said it would not consider any offshore development until more scientific studies were done. The decision came the same day Trillium was to sign a large financing deal.

Trillium sued the government – initially for $2.25-billion in damages – although most of the grounds for the suit were thrown out of court. However, in 2013, the Ontario Court of Appeal said the company could go ahead with one specific allegation, that the government’s decision amounted to “malfeasance in public office.”

As the revised suit – which reduced the claim for damages to $500-million – wound through the discovery process, Trillium noticed that some government documents it expected to see were not handed over. It was allowed to add accusations of document destruction to its suit.

All along, the government has said its decision to stop all offshore wind projects was not aimed specifically at Trillium. It also said that the timing, which was so bad for Trillium, was coincidental. It claims that the documents it has released show that the decision was made “at the ministerial level, following a thorough policy review that involved input by many individuals.”

As for Trillium’s claims that document deletions were linked to the alleged destruction of records related to the cancellation of two gas-fired power plants – a case that police are now investigating – the government says that is “of no relevance” to the Trillium case.

In a reply to the amended statement of defence, Trillium takes note that the government says there has been no “intentional” destruction of documents.

That means, Trillium’s filing alleges, that the government “has admitted by implication that there has been a destruction of evidence and appears now to merely argue that the destruction was either not deliberate or alternatively, that the destruction did not involve relevant evidence.”

The case will go to a pretrial hearing in the coming weeks, and then to a full trial if no settlement can be reached.