Offshore wind moratorium mixed policy and politics, lawyer argues 

Ontario’s Liberal government called a halt to off-shore wind farms in 2011 in order to improve its chances in the next election, a lawyer for Trillium Wind Power argued in court Friday.

“This was done because they wanted to win three ridings in Lake Erie,” Morris Cooper told a three-judge Ontario Court of Appeal panel.

But a government lawyer shrugged off the charge.

“Decisions made for political expediency are what governments do,” Kim Twohig told the court, “They do it all the time.”

There’s nothing wrong with governments changing unpopular policies, she said, and the courts are not the place to argue them.

“If you don’t want these types of politically expedient decisions, the remedy is the ballot box,” she said.

Trillium has brought a $2.25 billion claim against the province, which imposed a moratorium on offshore wind projects on Feb.11, 2011.

Cooper said the announcement torpedoed a $26 million financing deal due to close later that day for a 420-megawatt wind project in Lake Ontario near Kingston.

Trillium, which first applied for its development in 2004, is suing for its costs and lost profits.

Mr. Justice Robert Goldstein of the Superior Court of Justice struck down the claim in October, before it could go to trial; Friday’s hearing was an appeal of that decision.

Cooper said that Goldstein had made findings of fact without allowing for a trial where Trillium could fully present its case and probe government witnesses.

“The umpire called the game as soon as I threw the first pitch,” Cooper said. “All I ask is to get back in the game and play nine innings.”

Cooper said that officials in the offices of both the premier and the energy minister had been told that Trillium’s financing was going to close on Feb. 11, 2011; the moratorium was announced hours before the closing.

That was “arbitrary” and “capricious,” he said.

The policy was made through a press release, and never followed up by any formal legislation or regulation, he said.

“There’s nothing. Zero. Nothing ever happens,” he said. “They needed to cut my client off at the knees.”

Cooper also noted that Windstream Energy, a U.S.-owned company, is proceeding with an arbitration hearing under NAFTA for $475 million in lost profits because of the offshore moratorium.

That option isn’t open to Canadian companies like Trillium, he said, arguing that it would be unfair for U.S. companies to have a means of redress under treaty rights, while Canadian firms are denied redress in the courts.

Twohig argued that Trillium’s claim is inconsistent.

On one hand, she said, it argues that the moratorium was aimed directly at Trillium. But at the same time, she said, it claims that the purpose of the moratorium was to win votes in Lake Erie ridings where wind turbines are unpopular.

She said that Trillium never had any contract with the provincial government.

It was simply moving through an administrative process, in which the government has broad powers to approve or disapprove applicants at each stage, Twohig said.

She also said Cooper has no grounds to make the claim that the government targeted Trillium.

“He doesn’t back that up with any facts,” she said. “It’s based on speculation and inference.”

Twohig also argued that Trillium may have benefited from having the moratorium announced just before its financing closed. Had the financing gone through, she said, Trillium would be on the hook for significant interest payments.