“The Court of Appeal, in confirming the motions judge`s decision, made it clear that proponents who choose to participate in discretionary government programs, such as Ontario’s renewable energy program, do so primarily at their own risk. Governments may alter the policies that underlie a program, and may even alter or cancel such programs, in a manner that may be fully lawful and immune from civil suit even if individual participants suffer damage from such alteration or cancellation.”
On November 12, 2013, in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, the Ontario Court of Appeal allowed a $2-billion action by Trillium Power Wind Corporation (Trillium) to proceed against the Government of Ontario as a result of the government’s decision in 2011 to impose a moratorium on offshore wind power development. The Court allowed Trillium’s claim to proceed on the sole, narrow basis that the government had, allegedly, committed “misfeasance in public office” because, in imposing the moratorium when it did, the government had allegedly targeted Trillium, intending to cause Trillium harm. However, the Court did not allow Trillium to proceed with its other claims based upon, among other things, breach of contract and negligence.
In February 2011, Ontario announced that offshore wind power development would be subject to a (second) moratorium, citing the need for further scientific studies of the potential impact(s) of the development. By then, Trillium had allegedly expended over $5 million on the testing and development of an offshore wind power project that had been progressing through the regulatory process. Read article