Court File and Parties

COURT FILE NO.: CV-11-436012 DATE: 2021-12-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TRILLIUM POWER WIND CORPORATION, Plaintiff – and – 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

BEFORE: E.M. Morgan J.

COUNSEL: Morris Cooper and Michael Cohen, for the Plaintiff Christopher Wayland, Eric Wagner, and Roopa Mann, for the Defendants

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] The Plaintiff suffered the loss of what it claimed was an enormous investment in, and an even more enormous loss of projected profits for, its wind power project. All of this came about because of the poor planning, misguided energy policies and then policy reversals of the former Ontario government of Premier Dalton McGuinty.

[2] The Plaintiff’s litigation over these matters also suffered from the acts of officials in Premier McGuinty’s office. Those officials have separately been convicted of destroying documentation relevant to various government matters, including, potentially, documentation that may also have been relevant here: R. v. Livingston, 2018 ONCJ 25.

[3] Unfortunately for the Plaintiff, none of the policy fiascos or the misfeasance of individuals in McGuinty’s PO were actionable or done in a way that could sustain a claim by the Plaintiff. As a result, the Plaintiff sued big and lost big: Trillium Power Wind Corp. v. Ontario, 2021 ONSC 6731.

[4] Given the conduct of the government during the McGuinty era, it is hard to blame the Plaintiff for resorting to litigation. But the litigation lasted for 10 years, and at some point during that time it became apparent that the effort was not going to bear fruit.

[5] Plaintiff’s counsel put much weight in this litigation on the McGuinty gas plant episode and the criminal investigation of PO personnel involved in destroying documents in order to cover up that episode. However, the result of those investigations were prosecutions that aimed at matters other than the Plaintiff’s cancelled wind power contract. The Plaintiff also filed a complaint with the OPP about the government’s destruction of relevant documents, but the result of that complaint was a finding by the police that the documents, albeit wrongly destroyed, were not deleted or destroyed with a view to undermining the Plaintiff.

[6] The Plaintiff responded to all of this by redoubling its legal efforts. It added spoliation as a novel cause of action to the Statement of Claim, prompting a complicated but ultimately successful defense by the government’s lawyers. The Plaintiff also insisted on including the question of damages in its summary judgment motion, again prompting large expenses by the government on expert witnesses to review the economics of wind power generation. In the meantime, the Plaintiff itself had trouble producing an expert report with a detailed and credible business plan to illustrate its losses.

[7] In the result, a large store of energy was expended in what became a futile endeavor. And like the McGuinty-era wind-generated electricity, this energy has come at a very large price. It is unfortunate for the Plaintiff that it has to pay that price – or, at least, some of it – but it would be even more unfortunate to visit the entire cost of the government’s successful litigation on the Ontario taxpayer, who was also a victim of the energy policies in question.

[8] Counsel for the government has submitted a very substantial Bill of Costs for 10 years of litigation that has now culminated in the Plaintiff’s case being dismissed. They have also provided me with a copy of an Offer to Settle dated May 3, 2018, in which the government offered to pay the Plaintiff $78,000 for a full and final release. The Plaintiff did not accept this offer, likely perceiving it as far below the $500,000,000 in alleged losses that it claimed.

[9] Given that the Plaintiff has ended up with nothing, the government’s offer bettered the result that the Plaintiff obtained in court. Under Rule 49 of the Rules of Civil Procedure, the government can claim costs on a substantial indemnity basis for the time after the offer was served.

[10] The government’s Bill of Costs shows hourly fees on a substantial indemnity basis totaling $563,514.75. It also shows that the government incurred disbursements in the amount of $457,486.89, mostly attributable to expert fees. This is by any measure a large claim for costs, even for a 10-year-old case. It is of a magnitude that may take the Plaintiff somewhat by surprise, although the Plaintiff is a sophisticated corporate actor who by this time probably should have seen a significant amount of costs being outlaid and potentially recoverable.

[11] Costs are discretionary under section 131 of the Courts of Justice Act. The combination of Rules 57.01(1)(0.a) and (0.b) state the dual principle that while the successful party is to be compensated for its investment in the case, the amount should not be such that would not be anticipated by the unsuccessful party.

[12] Under the circumstances, I will use my discretion to round off and reduce by just under half the government’s request for fees. This reduction does not reflect on the government lawyers’ approach – they were well-prepared, thorough, effective, and entirely successful, and one cannot argue with that success. Rather, it has to do with the Plaintiff’s misfortune in encountering a government a decade ago that took it for a costly ride.

[13] The Plaintiff shall pay the Defendant costs in the amount of $300,000 plus disbursements in the amount of $457,486.89.

Date: December 7, 2021 Morgan J.