Trillium Power Wind Corporation (TPWC), the Toronto-based
developer interested in building offshore wind turbines in Lake
Ontario, is appealing a decision of the Superior Court of Ontario
after a judge ruled in favor of the defendant, the province of
Ontario, to strike TPWC's statement of claim.
On October 5, 2012, the Ontario Superior Court of Justice
delivered its decision with respect to Trillium Power
Wind Corporation v. Ontario (Natural Resources) by
striking out the action brought by TPWC against the Ontario
government seeking $2.5 billion in damages in relation to the
province's February 2011 moratorium on offshore wind farms.
In 2004, TPWC applied to the government of Ontario and was
approved by the Ministry of Natural Resources (MNR) as the
Applicant of Record to construct and develop an offshore wind farm
project in Lake Ontario near Main Duck Island off Prince Edward
County, roughly 35 Km south of Kingston. However, in 2006 and then
again in 2011, the province imposed a moratorium on offshore wind
farms. As a result, TPWC was never able to get its project off the
ground despite having spent over $5 million in development surveys
and environmental reports.
In September 2011, TPWC initiated their claim against the
government setting out numerous causes of action, including but not
limited to: breach of contract, unjust enrichment, negligent
misrepresentation and intentional infliction of economic harm. In
turn, the province brought a motion to dismiss the action on the
grounds that the claim failed to disclose a reasonable cause of
Siding with the province, the court ruled that although TPWC
obtained Applicant of Record status in 2004, they were never
approved for an offshore wind project, nor did they ever obtain a
Renewable Energy Approval. The MNR letter granting TPWC Applicant
of Record status clearly stated that:
"There are no rights or tenure associated with this
Applicant of Record status and it does not constitute MNR approvals
of your proposed project. In addition, this Applicant of Record
Status does not provide the right to make any alterations or
improvements on Crown land."
Furthermore, the court found that the Defendant, acting through
various ministers of the Crown, was empowered to set and amend wind
energy policies. That is, s. 47.3 of the Energy Protection Act
clearly states that the Minister of the Environment may "in
writing, issue, amend or revoke policies in respect of Renewable
Energy Approvals." As such, the court found in favor of the
province's argument that the decision to impose a moratorium
was a core policy decision and could not be found to be
Overall, given that TPWC never obtained a contract with the
government to develop a wind farm, nor was the government's
decision to impose a moratorium illegal, the court held that
TPWC's $2.25 billion dollar claim had no bearings.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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