Trillium was one of the companies planning to build an off-shore
wind farm in Lake Ontario. They invested heavily, totalling $5.3
million, based on the Green Energy Act, the Feed in Tariff, and
direct encouragement by senior members of the provincial
government. These investments were thrown away in February 2011
when the provincial government announced its "moratorium"
of all off-shore wind projects, just as Trillium was about to close
its financing. Trillium sued for this "bait and switch",
pleading numerous causes of action including negligent
misrepresentation, breach of contract, wrongful expropriation, and
misfeasance in public office. Trillium's statement of claim is
available in our earlier
The province obtained a Rule 21 judgment striking out the claim as disclosing
no reasonable cause of action. In a strongly worded decision,
Justice Goldstein ruled that the government had the right to impose
the moratorium; this was a core policy decision, whether or not it
was made for a political purpose:
 Trillium also pleads that the
moratorium was imposed for fundamentally political, specifically
electoral reasons, and that it is untrue that scientific reasons
were at the heart of the decision ... [If so] making a
decision for a political purpose would still not ground a cause of
action. Chief Justice McLachlin in Imperial Tobacco
explicitly mentions political factors as a legitimate public policy
consideration. The remedy for a political decision that a
party does not agree with is found in the ballot box, not the
courtroom. Political factors are not illegitimate. A
government may well be justified in not proceeding with a project
on the basis of vigorous community opposition. Democratic
governments are supposed to be sensitive to public
opinion. Courts are manifestly ill-equipped to determine which
types of political considerations are legitimate and which are not,
which is why our analysis is confined to legality.
Trillium has appealed the decision, alleging numerous legal and
procedural errors by Justice Goldstein. In particular, they argue
that the judge used the wrong procedure, effectively allowing the
province an unfair advantage. Rule 21 motions are pleadings
motions, which must be decided, without evidence, as if the
plaintiff's alleged facts were true. Trillium argues that
Justice Goldstein treated the motion as if it were a summary
judgment motion, but without allowing Trillium to put its evidence
before the court, or to cross examine the province on its case. If
so, it doesn't sound like a fair procedure, and may well be
Similar political considerations underlay the province's
cancelation of the Oakville gas-powered electrical generating
station. But in that case, contracts had already been signed, and
power consumers will pay hundreds of millions as a result.
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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.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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