One of the most craven decisions made by the Ontario Liberals during their tenure in government has returned to haunt Queen’s Park, and it now has the potential to set a nationally significant judicial precedent. The fact that the case happens to feature a proponent of an offshore wind-power project in the Great Lakes shouldn’t dissuade even conservatives and other foes of Liberal green-energy plans from hoping it prevails in court: the public’s right to know basic information about their government is at stake.
At a Monday morning press conference at Queen’s Park, John Kourtoff, the CEO of Trillium Wind Power, explained why his company is asking the Supreme Court to pronounce on the conduct of the Ontario government during the Dalton McGuinty years. The saga of Trillium’s offshore wind project has been working its way through the courts for years now, but to provide a brief summary: The Liberals twice instituted moratoria on offshore wind projects in the province. Both came just before general elections (in 2007 and 2011), and both involved projects located close to Liberal-held ridings in Scarborough and Kingston.
Trillium Power was caught up in the second moratorium and effectively had its business case extinguished by government fiat. It challenged the policy directly in the courts and lost— but the legal story doesn’t end there. Earlier this year, Ontario’s highest court found that, while Trillium’s case against the government couldn’t proceed, there was clear evidence that the government had engaged in widespread destruction of evidence relevant to the case.
A lower court in 2021 had found that the widespread destruction of evidence wasn’t directly related to this specific lawsuit; the Ontario Court of Appeals found earlier this year in response that “whether Ontario’s intention was to destroy relevant evidence for use in simply this litigation or in all litigation is a The Court of Appeal, rightdistinction without a difference.” In a unanimous decision, however, the three judges found that the destruction of evidence wasn’t sufficient to let Trillium prevail in its claim against the province. They did, however, award Trillium its legal costs — a relatively paltry $30,000.
Kourtoff says that’s insufficient: ideally, he still wants the province to approve his company’s offshore wind project.
“The option here is for the premier of Ontario to defend the heinous and illegal acts of the former government or work with us meaningfully to look at development of offshore wind,” he said at Queen’s Park. “We’re looking to have a discussion to find a way that the project can go forward.”
Trillium’s legal counsel, Craig Aitken, explained that they’ll now be pursuing an appeal to the Supreme Court of Canada to try to enshrine serious sanctions against the deliberate destruction of evidence — “spoliation” in the language of the courts — that would help prevent governments from doing to others in the future what Ontario has already done to Trillium.
By the time the Liberals left power in 2018, many Ontarians had had their fill of renewable-energy policy, so it wouldn’t be surprising if the median voter wanted never to hear about this case again. The moratorium on offshore wind remains in place under the PCs — almost certainly the only area of renewable-electricity policy that finds McGuinty, Kathleen Wynne, and Doug Ford all in agreement. Green leader Mike Schreiner used the occasion of Trillium’s press conference to call for that to change: “Low-cost renewables are the cleanest, cheapest source of energy available. The Ford government should do everything in its power to take advantage of these critical opportunities to power Ontario’s future,” he said in a press release. “Instead, they’re funnelling public dollars into dirty fossil gas plants that will increase costs and pollution.”
There’s little indication of that anywhere on the horizon. But, in the meantime, we’ve got Trillium’s lawsuit to consider — and even foes of renewable energy should hope it gets a hearing at the country’s highest court. Canadian governments, regardless of partisan affiliation, are a black hole for information. The country’s access-to-information laws are a sad joke. That wouldn’t be as much of a problem if there were at least a real culture of proactive disclosure of important information. Instead, governments are unlikely to provide answers for anything except FOI requests and then only after years and potentially thousands of dollars in fees.
And even that thin reed of public accountability is at risk if governments can deliberately and routinely destroy evidence in their possession without fear of real legal sanctions (dollar sums that end in “illions,” for a start). After all, the entire edifice of access to information hinges on documents being preserved. In an ideal world, it wouldn’t be up to the courts to make these kinds of decisions: Parliament and the provinces could make their own laws to punish this conduct. But all of Canadian political history tells us that governments won’t of their own volition make the serious reforms that are needed.
So here’s hoping that Trillium Power gets its day in the country’s highest court and that the learned justices take the opportunity to set a real precedent.
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