The Government of Ontario has notified Trillium Power that it will seek a motion to dismiss the company’s litigation efforts on “misfeasance in public office” and “spoliation” on 24 October. This marks another sequel in the legal action story between Trillium Power and the Ontario Government, based on the cancellation of the company's offshore wind project in 2011.
The company is seeking damages of CAD 500 million for misfeasance and the deliberate destruction of evidence.
Trillium Power claims the latest motion is the government's attempt to delay the upcoming trial.
Morris Cooper, Trillium Power’s legal counsel, stated: “This action was set down for trial on September 28, 2016. Counsel for the Ontario Government at trial scheduling court said that this was not less than a 15-day trial. As a result, the trial date was set for June 11, 2018. Now the Ontario Government intends to bring a motion to dismiss the action and argues that it will only take one half day to be heard. We will be arguing that this proposed motion is an abuse of process and intended solely to delay the upcoming trial.”
In 2015, the Government of Ontario claimed that no deliberate destruction of documents had occurred.
However, Trillium Power alleges that important evidence related to their energy files was deleted at the beginning of 2013, at the same time as documents related to the cancellation of two gas-fired power plants in 2011, for which the chief of staff to former Ontario premier Dalton McGuinty and his deputy are currently on trial.
Trillium Power stated that the government is suggesting there is no evidence to go to trial even though the company has provided thousands of pieces of evidence to suggest otherwise.
"With the ongoing criminal trial related to the cancellation of gas plants it is clear that the Liberal Government does not want this information disclosed or government staff and ministers to be examined under oath," Hilton Price, Chairman of Trillium Power said.
Trillium has been leading a court fight with the province for 6 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 CAD 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 CAD 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", after which the Ontario Superior Court of Justice authorised the company to amend its Statement of Claim against the Government of Ontario to include the claim of "spoliation", referring to a wilful destruction or suppression of evidence relevant to a legal proceeding.