The $500-million lawsuit that’s led to a new police investigation of the Ontario government won’t likely go to court before 2017, because the lawyers believe it’ll take so long that finding court time will be a challenge.
The suit, filed by Trillium Power Wind Corp. in 2011, is over allegations that provincial officials deliberately timed a decision to scrap all wind-farm developments on the waters of the Great Lakes to cause the most damage possible to Trillium so the company wouldn’t have the resources to fight.
Trillium wanted to build a huge wind farm in the middle of Lake Ontario off Kingston, and was devastated by the government’s abrupt decision to cancel it and all other such projects, saying it wanted to get more scientific research done on building windmills in freshwater lakes. The sudden scrapping of all the applications the government was working its way through, in February 2011, came hours before Trillium was to sign a major financing deal.
That in itself isn’t a thing the company can sue over, the Ontario Court of Appeal has already ruled. But the claim that the company was deliberately targeted is, along with further allegations that people in the government wrongfully erased or hid documents that could have supported Trillium’s case.
Now the Ontario Provincial Police are investigating the alleged destruction of documents as a possible crime, a process that could take years. So could testing Trillium’s unproven allegations in a civil court, because the government’s lawyers are trying to keep the case from getting to one.
Trillium says it’s been informed the Crown’s civil lawyers will continue trying to get the case turfed with a motion for summary judgment – asking a judge to rule that there’s no prospect that Trillium could win at the end of a full trial, so there’s no point in having one.
“The ministry does not comment on cases before the courts. As the Trillium Power Wind Corp. matter is before the courts, it would be inappropriate to comment at this time,” said Brendan Crawley, a spokesman for the ministry of the attorney-general.
Trillium’s lawyer, Morris Cooper, said he’ll fight the summary-judgment effort, at length if need be.
“I do not intend to limit my right of questioning to the individual that they may propose as the single witness in support of their motion,” he said. He said he’ll aim to call multiple witnesses who might know anything about the absence of documents, including former premier Dalton McGuinty. Cooper will also call the former aides who’ve been criminally charged over an alleged attempt to delete documents related to cancelling contracts for new gas-fired generating stations.
Those two, David Livingston and Laura Miller, who deny any wrongdoing, “could properly refuse to be examined in a civil matter while criminal proceedings are pending against them,” Cooper said, which could drag the Trillium case out even longer.
McGuinty has never been the subject of any investigation.
“I expect we will have a barrage of motions, resisting any effort to allow us to examine the people involved, while at the same time, the government will use its overwhelming and unlimited resources to do whatever it can to make sure this case never makes it to trial,” Cooper said.
If that fails, the Crown lawyers propose that a full trial would take 15 days to hear. Anything over 10 days counts as a “long trial,” which means the case goes on a special list of trials that will need big uninterrupted blocks of court time in front of the same judge. Those are difficult to schedule and often need months of lead time.
In the meantime, the evidence that Trillium says it has, of a hole in the government’s archives where there should be material explaining how senior officials and politicians concluded that a second halt to offshore wind-farm development in four years was needed so the government could commission more research that it then went three more years without commissioning, remains under wraps.
Because much of it is extracted from the government as part of the prelude to the civil trial, that trial will have to happen for the evidence to become public. Or the OPP will have to dig it up through their own separate investigation, which is just beginning.
Either way, this story has a long way to go.
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