Court File and Parties

COURT FILE NO.: CV-15-535812 DATE: 20231016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BIG THUNDER WINDPARK INC., BIG THUNDER WINDPARK LP, HORIZON WIND INC., Plaintiffs – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO as represented by the MINISTER OF THE ENVIRONMENT, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Peter Jervis and Aylin Manduric, for the Plaintiffs Vanessa Glasser, for the Defendants

HEARD: October 13, 2023

Endorsement

MOTION FOR FURTHER PRODUCTION/DISCOVERY

[1] As Plaintiffs’ counsel was at pains to remind me during his argument of this motion, when it came to energy generation projects (gas plants, wind power), the Dalton McGuinty government was notorious for putting its own partisan interests before that of the public and, especially, that of investors. It is the Plaintiffs’ theory that this case is yet another example of government misfeasance, this time moving from the McGuinty years to its successor government under Kathleen Wynne.

[2] There is no doubt that the Plaintiffs lost a large amount of money by investing in a wind turbine proposal that was cancelled at what appears to have been the eleventh hour. They have been looking everywhere for the reason, sensing something smouldering in the embers of Premier Wynne’s Queen’s Park.

[3] But where there’s smoke, is there always salmon?

[4] Plaintiffs seek further answers from the Defendant. With the passage of years, most of the information they say they need comes from former government members and public sector employees. For the most part, the individuals who might hold the key to the Plaintiffs’ claim have either aged out of government employment or were voted out of office.

[5] In a nutshell, the Plaintiffs allege that the government of Ontario acted arbitrarily and in bad faith by directing the Ministry of Environment (“MOE”) to refuse to sign and issue a Renewable Energy Approval (“REA”) for the Plaintiffs’ windfarm project. According to the Plaintiffs, the government did so despite the fact that the officials administering the MOE had advised the Plaintiffs by February and March 2014 that their REA application satisfied all the relevant regulatory criteria. In short, it is the Plaintiffs’ view that MOE officials effectively forced the cancellation of the project for the crass political purpose of assisting the re-election campaign of Minister Bill Mauro in Thunder Bay-Atikokan. The claim alleges that the government of the day used its public powers for what was, essentially, a private purpose. Plaintiffs have been seeking discovery of what they consider to be key facts relating to the alleged bad faith interference in the REA process.

[6] This motion comes nearly four years after a ruling of Associate Justice Short ordering full production from the Defendant: Big Thunder Windpark v. HMQ, 2019 ONSC 7252. Both before and after that Order, the Defendant has produced a large volume of documents and has undergone many hours of discovery. But the Plaintiffs want more.

[7] The discovery process has been taking place for at least five years. Defendant’s counsel advises that as of 2018, approximately 273,000 documents were collected by the government and reviewed for relevance and privilege. Lists of Documents were produced by the Defendant on September 19, 2017, January 2, 2018, and January 12, 2018. In all, 6,453 Schedule A documents were produced and 2,616 Schedule B documents were listed.

[8] Included in the documents produced to date are documents authored or received by then Ministers Bill Mauro and Jim Bradley as well as email exchanges with other Cabinet officials. A further supplementary list of documents has also been provided to the Plaintiffs which includes communications between MOE officials and individuals in Premier Wynne’s office and Cabinet offices.

[9] Defendant’s representative for discovery in 2018 was Mohsen Keyvani, the MOE Director who made the final decision to refuse the REA in 2015. Plaintiffs’ counsel asked him questions about statements allegedly made during the 2014 election campaign by candidates for election – i.e. Mr. Mauro and Mr. Bradley.

[10] Mr. Keyvani explained at discovery that he made the decision to refuse the plaintiffs’ REA application based on a review of the history of the file and in consultation with the MOE’s Project Evaluator. He stated under oath that he did not receive any information or direction from anyone else.

[11] Mr. Keyvani also answered questions about the communications with the Plaintiffs from May 2014 onward concerning the MOE’s request for further information to support the REA application. He said that since he did not receive further information from the Plaintiffs, he had two options: he could either treat the application as withdrawn or he could refuse the application.

[12] He went on to explain that if he refused the application, the Plaintiffs would have a right to appeal his decision to the Environmental Review Tribunal. On the other hand, if he had declared the by then dormant application to have been withdrawn, that would have left the Plaintiffs with no appeal rights.

[13] In response to Associate Justice Short’s ruling requiring further production in December 2019, counsel for both parties agreed upon the parameters for a further search for documents, including of the former Premier and minsters’ emails. An external consultant was retained to process the data in February 2021.

[14] On August 17, 2022, the Defendant produced another supplementary list of documents relating to government officials Ian Parrot and Doris Dumais, as well as Ministers Bill Mauro, Jim Bradley, and Premier Kathleen Wynne. Defendant’s counsel also provided responses to questions from Plaintiffs’ counsel regarding this production.

[15] The documents confirmed the evidence given at discovery in 2018 that there was no interference from politicians in the decision to refuse the REA. It appears to me that the relevant documents in the Defendant’s possession and control have by now all been identified by Defendant’s counsel and provided to Plaintiffs’ counsel.

[16] Defendant’s counsel have advised me that the government has expended over $120,000 on external consultants relating to the discovery and production of documents in this action. In addition, they have indicated that counsel and law clerks from the Ministry of the Attorney General representing the Defendant have expended approximately 300 hours on discovery file work from 2017 to present, amounting to approximately $60,000 in personnel time.

[17] On September 29, 2023, after receiving the materials for the present motion, Defendant’s counsel answered a series of questions posed in the Plaintiffs’ motion record. This response came from Ian Parrot, former Acting Director at MECP overseeing the REA applications in 2013-2014. It would seem that Mr. Parrot provided his answers on the eve of his retirement; he is no longer a government employee, and so is unavailable to the Defendant for any follow-up questions.

[18] Mr. Parrot confirmed that in March 2014 the MOE was ready to make a decision regarding the REA, but was served with an application for an injunction brought by the Fort William First Nation (“FWFN”). That application arose from concerns regarding the adequacy of the consultation process. Mr. Parrot explained that he then determined that the REA would not be issued while the FWFN proceeding was pending.

[19] In his written response to the Defendant, Mr. Parrot stated that no person gave him direction to refrain from issuing the REA for political purposes. He also expressly stated he had no substantive communications regarding the Plaintiffs’ application with the Ontario Power Authority (“OPA”), the independent agency that administered an important part of the wind power program.

[20] In July 2014, the FWFN injunction application was dismissed. Within days, the Plaintiffs’ project was either cancelled or put on long-term hold. Plaintiffs’ counsel wants to know what directives were coming to Mr. Parrot from politicians during those 4 months.

[21] Mr. Parrot says there was no political interference. In support of this answer, Defendant’s counsel points out that in all of the voluminous documentary disclosure undertaken by the Defendants, there is no email or paper trail suggesting any intervention by the political branches.

[22] And yet, it is hard to blame the Plaintiffs for continuing to have their doubts. There is no particular explanation for what transpired. Several months after the July 2014 cancellation, the OPA was still writing to the Plaintiffs asking them for more studies relating to moose habitats and other things pertaining to their wind turbine application.

[23] The Plaintiffs did not know whether their project was being recalled from the crypt or was permanently dead. During this time there was also some oblique suggestion in email traffic produced by the Defendant that political staffers were in some communication with the OPA. Then, Mr Keyvani testified, in the spring of 2015, the Plaintiffs’ application was yet again laid to final rest, supposedly in a way that would at least be for the Plaintiffs’ own good in giving them a right of appeal.

[24] Plaintiffs’ counsel explains that no appeal was ever pursued as that route was considered futile. The Plaintiffs were never told why their application was cancelled and so had no idea how to frame an appeal, or whether the cancellation was or was not a proper exercise of administrative power.

[25] I understand why the Plaintiffs’ olfactory sense was activated at the time. But it is still unclear if the chowder was rotten or fresh.

[26] What does appear certain at this point is that the Defendant’s records and current personnel have been fished out. Plaintiffs’ counsel was candid during the hearing when he said that while his clients have received a deluge of documents, what they really need are answers. At this point, those can only come from people, not from filing cabinets or computer archives.

[27] Defendant’s counsel submits that there is, quite simply, no more documentary production to be made and no more examinations for discovery to be conducted. It is her view, quite properly, that at some point the discovery process must end. The deep waters of government files, email accounts, and current institutional memory, have yielded all that they contain.

[28] Plaintiffs are now left with two choices. If they want to go to trial, they are in a position to pass a trial record and have their case put on the trial list.

[29] Alternatively, if the Plaintiffs feel they still need more, they can try their luck with a Rule 31.10 motion to examine non-parties. Plaintiffs’ counsel acknowledged at the hearing that that would entail a separate, new motion. I express no view as to whether the Plaintiffs will be able to meet the test under that Rule.

[30] What I do know is that Plaintiffs’ counsel have identified several former politicians and government employees who may have answers they want to hear. But then again, those individuals may have answers that the Plaintiffs were not expecting and that, given the substance of their claim, they do not want to hear.

[31] I cannot tell the Plaintiffs how or where to next bait their hook. But I must tell them that the discovery pool has been depleted of all its stock.

[32] The Plaintiffs’ motion is dismissed.

[33] Given the midstream status of the case, the costs of this motion will be in the cause.

Date: October 16, 2023 Morgan J.