The Ontario Provincial Police has launched another investigation into allegations that provincial government officials illegally destroyed documents concerning an aborted contract to supply electricity to the provincial grid.
This time, it’s a green-energy contract with a company that builds wind farms.
A previous investigation into the disappearance of files, in the last days of Dalton McGuinty’s premiership, about the decisions to cancel two gas-fired generating stations has already led to charges against McGuinty’s then-chief of staff, David Livingston, and his deputy, Laura Miller. They are charged with breach of trust, mischief in relation to data and misuse of a computer system. Both of them deny any wrongdoing and are awaiting trial. McGuinty himself was never the subject of any investigation.
This investigation is new.
“An investigation was launched after allegations were made by a third-party vendor, Trillium Power Energy Corp.,” OPP Det.-Supt. David Truax said in response to questions from this newspaper. The vendor made a formal complaint and the police examined it and found it worthy of a full exploration, which has been underway for a couple of weeks. Truax did not say whether the investigation had a specific target.
“The investigation is being led by a major-case manager from the criminal investigation branch of the OPP,” Truax said. “The investigative team will be comprised by members of the anti-rackets branch as well as the technological crime unit.”
Truax wouldn’t confirm any potential connection to the Livingston and Miller case. Trillium claims in its court filing that its project got caught up in the same electoral worry before the 2011 election that led the McGuinty government to cancel the two gas plants. Those two gas plants, in Oakville and in Mississauga, were locally unpopular and might have put Liberal-held seats at risk. Ultimately McGuinty won a third term with a minority.
The cost of the gas-plant cancellations ballooned from an early estimate of $40 million to about $1 billion, according to the provincial auditor general, once you factor in all the ripple effects.
Trillium’s allegation against the government arose in the middle of a gigantic civil lawsuit it filed over a moratorium the government put on wind-energy projects on the Great Lakes in early 2011. Trillium was working on five such projects, including one in Lake Ontario, more than 25 kilometres off Kingston, that would have been the biggest in Canada.
The company was on the brink of signing a financing deal when the province decided to halt all such projects for further scientific study. The company sued for $2.25 billion, alleging that the decision was political, not scientific, meant to appease voters living close to completely separate wind projects on Lake Huron and Lake Erie.
As it sought documents from the provincial government to build its case, Trillium’s lawyer Morris Cooper said in an interview, Trillium found a hole in the archives where documents related to Trillium’s contract with the province should have been.
“We discovered that in fact the documents that one would expect from the premier’s office or the cabinet office were not there,” Cooper said. “We noticed the pattern was they were only produced if other ministries were on the paper trail.”
Ultimately the courts threw out most of Trillium’s legal claims; the government has a lot of freedom to make and change policy decisions, even if people suffer as a result. But a claim for $500 million in damages from “misfeasance in public office” remains (over allegations the government deliberately timed its moratorium on Great Lakes wind projects to ruin Trillium so badly it couldn’t afford to sue) and now Trillium has added one for “spoliation,” destroying documents relevant to the case. Neither has been tried in court yet.
The government compensated the builders for the gas plants it cancelled. It didn’t compensate Trillium. The company filed its lawsuit in September 2011.
In defending itself against Trillium’s civil case, the government filed court papers saying that no files related to the deal were “intentionally” destroyed.
Cooper alleged that Trillium-related documents disappeared in February 2013 at the same time as the files relating to the decision to cancel the gas plants.
The investigation that led to the Livingston and Miller charges took the OPP’s anti-rackets branch 2 1/2 years. This one is just getting started.
“This type of investigation will involve the interviewing of witnesses, involved persons. It will involve an extensive review of documentation, both in electronic and hardcopy formats. I’m not able to speculate how long it might take to conduct this kind of investigation,” Truax said.
Premier Kathleen Wynne’s spokeswoman Jennifer Beaudry said the premier’s office is unaware of the investigation. Livingston’s defence lawyer Fredrick Schumann said the same, and so did Miller’s lawyer Scott Hutchison. Hutchison, in particular, said he expected Crown prosecutors would have to tell him about any new investigation involving his client.
The defence lawyers haven’t heard about the investigation from the Crown because prosecutors haven’t yet heard about it from the police, said the prosecutor leading the cases against Livingston and Miller.
“The Crown has not received any disclosure to review in relation to this new investigation,” Richard Roy said from Montreal.
But, he said, “I do expect that after these phone calls I will have to have this discussion with Mr. Hutchison.”
Besides the Livingston-Miller case, and this new Trillium case, the OPP have a longstanding investigation into improprieties at the province’s Ornge air-ambulance service, and one into alleged Elections Act violations by senior Liberals in trying to get parachute candidate Glenn Thibeault the Liberal nomination in a Sudbury byelection. Criminal charges against Sudbury Liberal powerbroker Gerry Lougheed over that nomination were stayed by the Crown last week.
Since taking office, Wynne has passed legislation stiffening penalties for government workers who destroy important records.
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