Update: This story includes an updated comment from an Ontario Ministry of Energy spokesperson.
It’s the $500 million wind energy lawsuit the Ontario Liberals can’t make go away — despite their very best efforts.
Now, after nearly seven years of ongoing litigation and less than two months before the trial is set to begin, the company behind the suit — Trillium Power — is making public new evidence it alleges shows staff from the office of former Ontario Premier Dalton McGuinty and the office of the Minister of Energy engaged in the destruction of documents relevant to their claim created prior to March 2013.
Trillium alleges this was done to prevent the company from making its argument in court. Trillium says these actions occurred after their lawsuit had begun and in the months leading up to the transition of power between McGuinty and current Premier Kathleen Wynne.
Trillium also alleges emails provided by the government in the lead-up to the trial show that throughout 2010 and early 2011, senior staff from within McGuinty’s office and several other ministries, including the ministries of energy, environment and natural resources, collaborated behind the scenes to develop a policy specifically targeting Trillium’s proposed project in favour of promoting another company’s ill-fated venture — that of Windstream Energy.
The government denies these allegations.
In response to Trillium’s newest allegations, a spokesperson for Ontario’s current Minister of Energy, Glenn Thibeault, said the claims have been investigated and proven to be untrue.
“In 2016, Trillium requested that the OPP investigate their allegations related to the moratorium on wind energy. Those allegations were thoroughly investigated and found to be unsubstantiated,” said Colin Nekolaichuk, the government spokesperson.
With respect to maintaining documents, Nekolaichuk said the government is committed to being open and transparent, and has taken action to strengthen the laws related to record keeping – working closely with provincial watchdogs to ensure the government follows best practices.
Government lawyers, meanwhile, have said the allegation that a public policy banning offshore wind in Ontario was specifically targeting Trillium is false and that the government has every right to change its mind and develop policies in the best interest of Ontario.
Trillium alleges ban on offshore wind meant to ‘inflict’ economic harm
Trillium’s story goes back to 2004, when the company first applied for a land use permit to explore the possibility of developing a 420MW wind farm near Main Duck Island in eastern Lake Ontario.
In 2006, the government put a temporary ban on offshore wind projects in the lead-up to an election, halting Trillium’s efforts. In 2008, the ban was lifted and Trillium once again began working toward developing its wind farm.
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At the same time, McGuinty’s Liberals were developing what would become the Green Energy Act, as well as the Feed-in-Tariff (FIT) and Micro-FIT programs meant to subsidize the production of renewable energy in the province.
Throughout this period, Trillium continued to move toward its goal of becoming the first offshore wind energy producer in Ontario. The company says it completed all the necessary requirements needed for the province’s renewable energy approvals process and was set to secure initial financing for the project on February 11, 2011 — the same day Ontario’s Ministry of Environment issued a press release announcing a province-wide moratorium on offshore wind and the cancellation of any projects that did not have a FIT contract. This included Trillium’s TPW1 site just south of Kingston, Ont.
Gov’t planned to ‘give’ Trillium’s site to competitor, company says
According to Trillium — which has obtained thousands of documents related to offshore wind development in Ontario, including emails from senior government officials discussing both the Trillium and Windstream projects — the decision to put a hold on offshore wind in February 2011 was a guise, an “express and illegal” act to give Trillium’s proposed location in the centre of Lake Ontario to Windstream, whose project had been made “not economical” due to the government’s decision in late 2010 to ban offshore wind development within five kilometres of the shoreline.
Because Trillium did not have a FIT contract — the company says it had informed the government of plans to pay the necessary $9 million deposit for the FIT contract as soon as it secured financing — its project was cancelled when the government announced the moratorium on wind. Trillium says this decision rendered everything it had done up to that point useless, while paving the way for Windstream to move forward in its new location once the moratorium was lifted.
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Trillium alleges these efforts were coordinated by senior advisors within McGuinty’s office and the offices of several key ministries. The company points to a series of emails — as well as evidence presented in Windstream’s legal battle with the government — as proof of these allegations.
In one email cited by Trillium, allegedly sent the day before the government’s announcement issuing a moratorium on offshore wind, an official from the ministry of energy and infrastructure wrote to a senior advisor of minister of energy that changes to the government’s policy “serve our purposes in terms of allowing Windstream to retain their application for Crown Land access.”
Documents destroyed to ‘defeat or disrupt’ Trillium’s case, company says
Trillium says documents related to their case were deliberately destroyed by senior government staff to “defeat or disrupt” its ability to prove its accusations in court. These actions, according to Trillium, amounted to the “deliberate concealment of the evidence of misfeasance in public office,” which is the claim the company has made against the government.
Trillium says that like the gas plant scandal, which erupted after the government decided to cancel a contract with TransCanada to build two natural gas-powered electricity generators, senior staff destroyed documents to cover up their actions.
The government denies this claim, saying any investigation into the destruction of evidence in the gas plant scandal is irrelevant to Trillium’s case.
Government denies claims
The allegations put forward by Trillium have been vehemently denied by the government. Any claim that documents or evidence relevant to the case were deliberately destroyed is untrue, the government says.
Government lawyers also say the absence of certain emails Trillium says should exist, and that should have been provided to them by the government, does not mean these documents do not exist, it could simply mean they were not relevant to Trillium’s claim, which is why they were never provided.
From the beginning, government lawyers have said Trillum’s claims about senior staffers and ministers offering Windstream “preferential treatment” are baseless and untrue. The government says it had no plan to “give” Tillium’s location in Lake Ontario to Windstream. Nor did the government devise a policy specifically targeting Trillium’s project. Proof of this, they say, is the fact that Windstream’s project never went forward — nor did any other offshore wind project in Ontario.
While Trillium insists the government acted in “bad faith” that resulted in serious economic harm to the company, the government says Trillium never had a FIT contract and had not completed the necessary environmental approvals at the time the moratorium was announced.
The government also says Trillium’s claim that the February 11, 2011 decision was a rushed response to the fact the company had informed the government it was near to finalizing its financing is false. They say the timing of these two events is merely coincidental.
The Trillium trial is scheduled to begin on June 11 — four days after the provincial election — and will last for three weeks.