The lengthy and interesting history of Trillium Power Wind Corporation v. Ontario recently came to a head before the Ontario Court of Appeal. Over the years, the case has been the subject of extensive media coverage. It began in 2011 and involved a claim by Trillium Power Wind Corporation for damages it allegedly suffered after the Province of Ontario announced a moratorium on offshore wind farm projects. Before this announcement, Trillium had made significant investments in obtaining approval to operate a wind farm.
The announcement effectively ended the company’s approval application and coincided with the closing of the company’s project financing, which also came to a halt. In its claim as considered by the Court of Appeal, Trillium alleged the tort of misfeasance in public office on the basis Ontario had timed its moratorium announcement to forestall the company’s financing.
Trillium also alleged Ontario had destroyed evidence related to the moratorium and, as such, should be liable for spoliation. The matter came before the Ontario Superior Court of Justice when each party brought a motion for summary judgment against the other. The motion judge dismissed Trillium’s claims and granted costs to Ontario of $757,486.89. Trillium appealed the dismissal of its claims and was represented by our legal team before the Court of Appeal.
Tort of Misfeasance in Public Office
The basis for the tort of misfeasance in public office is to ensure that those in public office will not harm the public through unlawful misuse of their office. In an earlier decision involving the Trillium case, the Ontario Court of Appeal commented that ministerial policy decisions “made on the basis of ‘political expediency’” are, without something more, not unlawful or in the nature of bad faith. The tort only arises where the decision in question is made to cause harm to a plaintiff. Trillium specifically argued that Ontario’s actions were meant to stop Trillium’s offshore wind project before its financing was in place “in order to deprive Trillium of the resources to contest the government’s decision to cancel the wind projects in Ontario.” The judge on the summary judgment motion ultimately concluded that there was no evidence to support this aspect of Trillium’s claim. On appeal, Trillium argued that this determination by the motion judge was in error.
First Ground of Appeal Dismissed on Basis that Timing of Public Announcement was Likely a Coincidence
The Court of Appeal agreed with the motion judge, however. It affirmed the conclusion drawn by the motion judge that the timing of the moratorium announcement with the closing of Trillium’s financing was likely a coincidence, so far as the evidence showed. Regardless, as the Court went on to note, since Trillium could not prove it would have succeeded in reversing the moratorium decision even if the financing had closed, and the project was not economically feasible without the government funding program that was ended by the moratorium, Trillium could not prove it suffered any damage. Accordingly, the first of Trillium’s two grounds of appeal was dismissed.
Status of Spoliation as Independent Cause of Action Still Unclear
However, Trillium found some degree of success with its second ground of appeal, namely that the motion judge had committed an error by misstating and misapplying the legal test for spoliation. As the Court noted, in referencing case law from Alberta, spoliation “occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation.” Legally, it remains an open question of whether spoliation can constitute a cause of action instead of a rule of evidence. The Court did not settle this issue; however, it did note that it had an inherent jurisdiction to grant remedies in response to spoliation regardless of its status as an independent cause of action. Spoliation constitutes an abuse of process since it interferes with “the quest for truth.”
Ontario’s “Notorious Violation of Record-Keeping Obligations”
According to the Court, the motion judge erred in finding no evidentiary basis for Trillium’s spoliation claim. The Court noted that there was no question Ontario had deliberately destroyed evidence in accordance with an improper government policy. Indeed, the motion judge had specifically referred to an investigative report by Ontario’s Information and Privacy Commission that had confirmed the improper destruction of hand-held devices, emails and documents by the Premier’s Office. According to the motion judge, this had constituted a “notorious violation of record-keeping obligations.” Further, there was evidence that the destruction had occurred after the commencement of Trillium’s lawsuit. The destruction was also related to “likely relevant” documents in the possession of individuals who were knowledgeable about the lawsuit and had even provided evidence on behalf of Ontario in the summary judgment motion.
Destruction of Evidence Deemed Deliberate
The common law has long held that destroying evidence creates a rebuttable presumption against the party that destroyed it. Specifically, the presumption is that the evidence so destroyed would have been unfavourable to the party that destroyed it. At issue before the Court was whether the motion judge had erred in concluding that Ontario had rebutted this presumption because Ontario had destroyed the relevant evidence while implementing its document destruction policy, specifically the purging of email accounts and destruction of hand-held devices. However, as the Court noted, the motion judge referred to this government policy as improper. As such, allowing Ontario to bypass its documentary obligations, including the obligation to preserve and produce documents relevant to a lawsuit, would amount to an abuse of process. For these reasons, the inference could be drawn that the destruction of evidence had been deliberately done to affect Trillium’s case.
Second Ground of Appeal Dismissed on Basis that Plaintiff Could Not Demonstrate It Suffered Damages
On the issue of whether this had been done to destroy evidence relevant to the Trillium case or to all litigation more broadly, the Court noted this was “a distinction without a difference”. In failing to consider spoliation in the broader context of Ontario’s obligation to preserve and produce relevant documents, the motion judge had applied an overly narrow construction and had erred in doing so. As the Court stated, “there was a deliberate destruction of potentially relevant evidence from which the reasonable inference can be drawn that the destruction was done to affect litigation, including the present litigation.”
On this basis, the Court set aside the motion judge’s dismissal of Trillium’s spoliation claim. However, the Court went on to find that Trillium would not be able to show it suffered damages due to Ontario’s spoliation for reasons similar to those discussed in relation to Trillium’s misfeasance claim. The fact remained that Trillium could not have compelled Ontario to reverse its moratorium or fund its wind farm project.
Spoliation Deemed Deserving of a Remedy
It is noteworthy, however, that Ontario’s abuse of process through deliberate spoliation was deemed deserving of a remedy by the Court. For this reason, the Court deprived Ontario of its costs on the summary judgment motion (specifically, the cost award of $757,486.89) and granted costs of $30,000 to Trillium concerning the appeal. The Trillium case serves as a useful reminder of the judiciary’s power to protect legal processes to ensure fairness.
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