TORONTO — Declaring that the government's records related to the cancellation of a proposed wind park near Thunder Bay in 2014 have been "fished out," a Superior Court judge has dismissed a motion that would have extended a years-long discovery process in advance of a possible trial.
Horizon Wind Inc. filed a $50 million lawsuit against the province in 2015, alleging it acted arbitrarily and in bad faith by directing the Ministry of the Environment to delay issuing a renewable energy approval for a 16-turbine project on the Nor'Westers escarpment.
It charged that this effectively cancelled the controversial Big Thunder Wind Park despite the fact ministry officials had already advised the company its application had satisfied all regulatory requirements.
As Justice E.M. Morgan noted in a decision released last week, Horizon has further alleged the decision was made in order to help the Liberal party retain the Thunder Bay-Atikokan riding in the June 2014 election.
The former ministry bureaucrat who oversaw renewable energy approval applications at the time has denied that anyone gave him direction to refrain from issuing the Horizon Wind approval for political purposes.
The judge's ruling on Horizon's request for further discovery stated that government lawyers have pointed 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."
He said it appears to him that all the relevant documents in the government's possession and control have now been provided to the company's lawyers.
During discovery, which has now lasted five years, the government has collected and reviewed 273,000 documents for relevance, and has provided more than 9,000 documents.
According to its lawyers, it has spent about $180,000 just in the process of searching files.
"But the plaintiffs want more," Morgan stated, and added later in his ruling that it's hard to blame them for continuing to have their doubts.
"There is no particular explanation for what transpired. Several months after the July 2014 cancellation, the OPA [Ontario Power Authority] was still writing to the plaintiffs asking them for more studies relating to moose habitats and other things pertaining to their wind turbine application."
Nonetheless, the judge stated that it appears certain that "the defendant's records and current personnel have been fished out," and expressed agreement with the government's lawyer 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...the discovery pool has been depleted of all its stock."
Horizon could choose to pursue a date for a trial with the information already provided in discovery, or it could seek a ruling enabling it to examine individuals who are non-parties in the matter.
Under the Rules of Civil Procedure, a court must grant permission for this.
Most of the information that Horizon has said it still needs could come from former government members and public sector employees, most of whom Justice Morgan judge pointed out have either aged out of government service or have left politics.
He commented 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."
None of the claims in the lawsuit have been proven in court.
Neither the ministry of the Attorney General nor a representative of Horizon Wind has responded yet to a request from TBnewswatch for comment on this case.
