Trillium Power Wind Corp. v. Ontario, (2013) 312 O.A.C. 367 (CA)

• Judge: Blair, Tulloch and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 22, 2013
• Jurisdiction: Ontario
• Citations: (2013), 312 O.A.C. 367 (CA);2013 ONCA 683

Trillium Power Wind Corp. v. Ont. (2013), 312 O.A.C. 367 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. NO.016

Trillium Power Wind Corporation (plaintiff/appellant) v. Her Majesty The Queen, in Right of the Province of Ontario, as Represented by the Ministry of Natural Resources, the Ministry of the Environment, and the Ministry of Energy (defendant/respondent)

(C56208; 2013 ONCA 683)

Indexed As: Trillium Power Wind Corp. v. Ontario

Ontario Court of Appeal

Blair, Tulloch and Lauwers, JJ.A.

November 12, 2013.

Summary:

Trillium Wind Power Corp. was a developer of off-shore wind power projects in Ontario. Its proposed project was progressing under the regulatory structure. Trillium notified Ontario that it intended to close its $26 million financing for the project on February 11, 2011. On that date, Ontario issued a press release stating that off-shore wind power projects were cancelled. Trillium sued Ontario alleging breach of contract, unjust enrichment, taking without compensation, negligent misrepresentation and negligence, misfeasance in public office and intentional infliction of economic harm. Ontario moved for an order to dismiss the action as disclosing no reasonable cause of action.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 5619, granted the motion. Trillium appealed.

The Ontario Court of Appeal allowed the appeal as to the cause of action for misfeasance in public office only. Trillium was granted 30 days in which to file an amended statement of claim.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - Trillium Wind Power Corp. was a developer of off-shore wind power projects in Ontario - Its proposed project was progressing under the regulatory structure - Trillium notified Ontario that it intended to close its $26 million financing for the project on February 11, 2011 - On that date, Ontario issued a press release stating that off-shore wind power projects were cancelled - Trillium sued Ontario, alleging, inter alia, breach of contract, unjust enrichment, taking without compensation, negligent misrepresentation and negligence, and intentional infliction of economic harm - Ontario's motion to dismiss the action as disclosing no reasonable cause of action was granted on the basis that the decision to impose a moratorium on wind power projects was a "core policy" decision that was immune from suit - The Ontario Court of Appeal dismissed Trillium's appeal - These causes of action were properly dismissed by the motion judge for the reasons given by him - See paragraph 6.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - Trillium Wind Power Corp. was a developer of off-shore wind power projects in Ontario - Its proposed project was progressing under the regulatory structure - Trillium notified Ontario that it intended to close its $26 million financing for the project on February 11, 2011 - On that date, Ontario issued a press release stating that off-shore wind power projects were cancelled - Trillium sued Ontario, alleging, inter alia, misfeasance in public office - Ontario's motion to dismiss the action as disclosing no reasonable cause of action was granted on the basis that the decision to impose a moratorium on wind power projects was a "core policy" decision that was immune from suit - The Ontario Court of Appeal allowed Trillium's appeal - Trillium asserted that Ontario had acted in bad faith (1) for purely political motives of electoral expediency and (2) by specifically targeting Trillium in cancelling wind power projects in order to undercut Trillium's pending financing and leave Trillium without resources for litigation - While "core policy" decisions were immune, this did not apply to decisions that were irrational or in bad faith - That exception was quite narrow - Here, except to the extent that the decision specifically targeted Trillium in order to injure it financially, the decision was neither irrational nor in bad faith - While Trillium's allegations might make the decision debatable, they did not make it irrational - Nor could the decision be said to have been made in bad faith for political/electoral expediency reasons - That did not constitute bad faith for tort purposes - However, the exercise of power for the specific purpose of injuring someone was bad faith conduct - To the extent that the decision was made for the specific intention of injuring Trillium, it was subject to attack in tort - Trillium was entitled to proceed based on that allegation - See paragraphs 42 to 57.

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - [See Practice - Topic 1989 ].

Crown - Topic 2895

Crown immunity - Exceptions - Flagrant impropriety or bad faith - [See second Crown - Topic 1645 ].

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - Trillium Wind Power Corp. was a developer of off-shore wind power projects in Ontario - Its proposed project was progressing under the regulatory structure - Trillium notified Ontario that it intended to close its $26 million financing for the project on February 11, 2011 - On that date, Ontario issued a press release stating that off-shore wind power projects were cancelled - Trillium sued Ontario, alleging, inter alia, misfeasance in public office - Ontario's motion to dismiss the action as disclosing no reasonable cause of action was granted - The Ontario Court of Appeal allowed Trillium's appeal as to the cause of action for misfeasance in public office only - The court disagreed with the motion judge that the pleading of misfeasance in public office was "completely bald" - The pleading was as detailed and as fact-specific as Trillium could be at this stage of the proceeding - The allegations were linked to actual events, documents and people - Trillium could not provide more particulars at this point because many of the necessary supporting facts were within Ontario's knowledge and control - See paragraphs 58 to 62.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See both Crown - Topic 1645 ].

Cases Noticed:

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 23].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 31].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc. et al.

Taylor v. Canada (Attorney General) (2012), 293 O.A.C. 312; 2012 ONCA 479, refd to. [para. 31].

Odhavji Estate et al. v. Woodhouse et al. (2003), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 38].

Pikangikum First Nation v. Nault et al. (2012), 298 O.A.C. 14; 2012 ONCA 705, leave to appeal denied, (2013) 455 N.R. 393 (S.C.C.), refd to. [para. 38].

Granite Power Corp. v. Ontario et al. (2004), 189 O.A.C. 128; 72 O.R.(3d) 194 (C.A.), leave to appeal denied (2005), 334 N.R. 198; 206 O.A.C. 395 (S.C.C.), refd to. [para. 38].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 54].

Ontario Federation of Anglers & Hunters et al. v. Ontario (Minister of Natural Resources) et al. (2002), 158 O.A.C. 255 (C.A.), refd to. [para. 54].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 54].

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150; 83 O.R.(3d) 512 (C.A.), leave to appeal denied (2007), 372 N.R. 390 (S.C.C.), refd to. [para. 59].

Adventure Tours Inc. v. St. John's Port Authority (2011), 420 N.R. 149; 2011 FCA 198, refd to. [para. 60].

Authors and Works Noticed:

Perell, Paul M. and Morden, John W., The Law of Civil Procedure in Ontario (2010), p. 445 [para. 30].

Counsel:

Morris Cooper, for the appellant;

Kim Twohig, Eunice Machado and Kristin Smith, for the respondent.

This appeal was heard on March 22, 2013, by Blair, Tulloch and Lauwers, JJ.A., of the Ontario Court of Appeal. On November 12, 2013, the court released the following judgment.