Canadian offshore wind developer Trillium Power has filed a spoliation motion with the Ontario Superior Court, scheduled to be heard by a Master of the Court on June 18th, the company’s CEO John Kourtoff confirmed to Offshore WIND.
The latest legal action, added to their $500 million legal action, claims Ontario government officials have intentionally hidden and destroyed evidence.
“As a consequence of documentary disclosure by the Defendant and the absence of memoranda, emails and other internal communications emanating from and within the Office of the Premier of Ontario and the Cabinet Office, it has become apparent to the Plaintiff that documents have been destroyed and records of communications have been wiped clean or deleted from computers, or assigned a code name to render their retrieval impossible under the search terms set out in the Discovery Plan,” Trillium’s notice for motion reads.
The company said that this was done at the same time as the deletion of the files on concurrent gas plant issues. Trillium added that investigations by the Ontario Provincial Police and the Ontario Information and Privacy Commissioner have disclosed the deletion of emails and wiping computer hard drives clean within the Office of the Premier of Ontario.
In its notice for motion from April 2015, Trillium quoted one of several specific emails as a proof that the government intended to hide the files. Namely, a higher official from the Ministry of Natural Resources instructed the Communications staff to „bury“ a 2008 reference to former Natural Resources Minister revoking the prior offshore moratorium, which „pops up“ while searching the Internet.
In the documents disclosed to Offshore WIND, the company also stated: “The Defendant assigned a ‘code name’ to its internal communications regarding ‘offshore wind’ and did so with the express purpose of hiding its misfeasance specifically targeted to injure he Plaintiff consistent with and concurrently with the Defendant’s use of the code name ‘Project Vapour’ to hide its communications regarding the concurrent cancellation of gas fired electricity generating plants in Ontario. The Defendant has not disclosed the ‘code name’ it assigned to ‘offshore’.”
Regarding the latter, Trillium stated further in the document: “Defendant’s production CRI 992 dated January 28 2011 entitled ‘Offshore’ recites the decision to give a codename to the ‘Offshore’ file and the decision ‘to purge emails, records, documents – except for Ohio/Sweden and Pilot 2-Pager (Dilek)’.”
Trillium has been leading a court battle with the province for over 4 years now, since its offshore wind projects were affected by a decision in 2011 to cancel all offshore wind developments just as Trillium Power was hours away from closing a major equity financing that it had apprised the Ontario Government of just days earlier.
The company was initially seeking damages of $2.25 billion, claiming it had been specifically targeted by the 2011 decision, of which a press release was issued the same afternoon Trillium Power was receiving a $26 million tranche of its financing deal for one of the projects.
Even though the company lost the fight against the government, Ontario Court of Appeal’s ruling from 2013 allowed Trillium Power to seek damages arising from their claims of “misfeasance in public office“.
In its fight for offshore wind development, Trillium especially points out to the government’s inconsistency in 2011 decisions, an example being the signing of a Memorandum of Understanding with Siemens which also mentions the intention to accelerate offshore wind projects.
Offshore WIND Staff; Image: Trillium Power