



COURT OF APPEAL FOR ONTARIO

CITATION: Trillium Power Wind
    Corporation v. Ontario (Natural Resources), 2013 ONCA 683

DATE: 20131112

DOCKET: C56208

Blair, Tulloch and Lauwers JJ.A.

BETWEEN

Trillium Power Wind Corporation

Plaintiff (Appellant)

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 (Respondent)

Morris Cooper, for the appellant

Kim Twohig, Eunice Machado and Kristin Smith, for the
    respondent

Heard: March 22, 2013

On appeal from the judgment of Justice Robert F.
    Goldstein of the Superior Court of Justice, dated October 5, 2012, with reasons
    reported at 2012 ONSC 5619.

By
    the Court:

[1]

The appellant Trillium Power Wind Corporation (Trillium) is a
    developer of off-shore wind power projects in Ontario.  Trilliums proposed
    wind power project was progressing under the regulatory structure set up under
    provincial legislation when all such projects were cancelled by the Province of
    Ontario (Ontario) in February 2011, during a provincial election campaign.

[2]

Trillium pleaded the following causes of action in the statement of
    claim: breach of contract; unjust enrichment; taking without compensation (which
    the appellant characterizes as expropriation); negligent misrepresentation and
    negligence; misfeasance in public office; and intentional infliction of
    economic harm.

[3]

Trillium has two complaints, in substance.  First, it asserts that
    Ontario unlawfully deprived it of a lucrative off-shore wind-powered electric
    generation project, for an improper political purpose, specifically an electoral
    purpose.  In a second, and narrower, complaint, it alleges that Ontarios
    decision specifically targeted Trillium with a view to crippling it financially
    so that it would not be able to contest the Governments actions. Trillium
    seeks to recover more than $2 billion in damages including more than $5 million
    in out-of-pocket expenses it incurred in pursuing the project.

[4]

Ontario moved to strike the statement of claim and to dismiss the action
    under rules 21.01(1)(b), 21.01(3)(b), 21.01(3)(d), 25.06(1)(2)(8), and 25.11 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The motion judge struck
    the Statement of Claim without leave to amend and dismissed the action with
    costs on the basis that it disclosed no reasonable cause of action against
    Ontario.

[5]

Trillium appeals.

[6]

We agree with the motion judge that it was plain and obvious, and beyond
    all reasonable doubt, that the appellant could not succeed in its claims for breach
    of contract, unjust enrichment, taking without compensation, negligent misrepresentation
    and negligence, and intentional infliction of economic harm. These causes of
    action were therefore properly dismissed by him, for the reasons he gives. We
    do not reach the same conclusion, however, with respect to the claim for
    misfeasance in public office. We would allow the appeal on that cause of action
    alone and let the claim proceed, but only on the narrower basis that Ontarios
    conduct was specifically targeted to injury Trillium.

The Regulatory Context for Wind Power Projects

[7]

The motion judge described succinctly and fairly the regulatory scheme for
    wind power projects at paras. 25-30 of his decision:

The development and regulation of renewable energy projects
    engages several statutes and regulations, and at least three different
    ministers. The regulatory scheme for the production of power, the electricity
    market, and the development of renewable energy is complex and diverse. Failure
    to obtain every approval at every stage and from every authority will prevent
    the ultimate operation of a wind farm.

The generation and management of electricity resources is
    governed by the
Electricity Act
, which sets up a highly detailed
    structure for generating electricity, hooking up power generation facilities to
    the electrical grid, the creation of an electricity market and a power
    generation authority, and many other aspects of power generation. At every step
    of the regulatory process, the Minister of Energy has very broad discretion to
    issue policies and approvals. Of relevance here is the Feed-In-Tariff Program
    ("
the FIT
"). The FIT program is designed to procure energy
    from renewable energy sources. The
Electricity Act
provides the Minister
    of Energy with the discretionary authority to direct the Ontario Power
    Authority ("
the OPA
") to develop a FIT program. As an aside,
    Trillium claims that it provided expert data to the Ministry of Energy and that
    this data led to the enactment of the FIT sections of the
Electricity Act
,
    although this is a bare allegation with no facts pleaded in support of it.
    Trillium never obtained a contract to provide power to the OPA under the FIT.

Wind power projects must obtain a Renewable Energy Approval
    pursuant to s. 47.3 of the
Environmental Protection Act
, R.S.O. 1990, c.
    E.19 ("
the EPA
"). The Minister of the Environment has broad
    policy powers under the EPA:

47.7 (1) The Minister may, in writing, issue, amend or
    revoke policies in respect of Renewable Energy Approvals.

The Director under the Part V.O.1 of the EPA has very broad
    powers to grant, amend, or terminate Renewable Energy Approvals:

47.5 (1) After considering an
    application for the issue or renewal of a Renewable Energy Approval, the
    Director may, if in his or her opinion it is in the public interest to do so,

(a) issue or renew a renewable energy                             approval;
        or

(b) refuse to issue
    or renew a renewable       energy approval.

(2) In issuing or renewing a renewable
    energy approval, the Director may impose terms and conditions if in his or her
    opinion it is in the public interest to do so.

(3) On application or on his or
    her own initiative, the Director may, if in his or her opinion it is in the
    public interest to do so,

(a) alter the terms and
    conditions of a renewable energy approval after it is issued;

(b) impose new terms and
    conditions on a renewable energy approval; or

(c) suspend or revoke a
    renewable energy approval.

Trillium did not obtain a Renewable Energy Approval.

Finally, the release of Crown land for testing and, ultimately,
    the construction of wind farms is the responsibility of the Minister of Natural
    Resources, who has discretionary authority to manage Crown land under the
Public
    Lands Act,
R.S.O. 1990, c. P.43 ("
the Public Lands Act
").
    As noted earlier in these reasons, the MNR issued a wind power policy under
    which Trillium obtained Applicant of Record status. The policy provided for a
    three-stage process: first, testing and review; second, wind power development
    and review; and third, permits for the development of a wind farm. It is only
    after the third stage that Trillium would have been able to apply for any of
    the other approvals. Trillium had not yet reached the third stage of the approval
    process. [Emphasis in original.]

[8]

The regulatory regime has broad discretion built into it at many
    junctures in the public interest.

The Factual Context

[9]

We have largely adopted the specific factual context set out in the
    decision under appeal at paras. 4-15. The development of wind power was the
    subject of much discussion and study by federal and provincial agencies and
    departments, as well as non-governmental stakeholders. The Ministry of Natural
    Resources ("the MNR") issued Policy PL 4.10.04 on the subject of Wind
    Power Development on Crown Land In January 2004, which was updated in November
    2004 and in April 2008. It set out the process by which wind resources would be
    tested and developed on Crown land. It stated:

The Province of Ontario recognizes the economic and
    environmental benefits of increasing the use of wind energy to generate
    electricity and also recognizes that Crown land can play a role in providing
    areas for renewable energy production. To meet the need for a fair, consistent,
    orderly and timely approach to consideration of the disposition of Crown land to
    support wind energy, MNR has developed a windpower policy and procedure to
    provide for:

1)

the testing of wind
    resources on Crown land, and

2)

the subsequent
    development of wind farms on Crown land.

[10]

The
    policy expressly provided that it applied to the discretionary disposition of
    Crown lands, including a lake bed.

[11]

An
    offshore wind farm is used to generate electricity by connecting large wind
    turbines to the electrical grid. It is best set up beyond the sight of people
    on shore to avoid aesthetic issues. The water must be relatively shallow and
    the bedrock sufficiently hard to support the weight of large turbines. The wind
    must blow strongly and reliably. There must be ready access to the provincial
    power grid.

[12]

Trillium
    pleads that it had found such a spot in Lake Ontario near Main Duck Island off
    Prince Edward County. It entered into the required process to develop and
    construct a wind farm there. That process contemplated: the lease of part of the
    lake bed under Lake Ontario from the Crown; regulatory approvals for building a
    wind farm including an environmental assessment; and a contract to supply
    electricity to the power grid.

[13]

In
    May 2004 Osiris Energy Corporation, the corporate predecessor of Trillium,
    applied to lease Crown land in particular "grid cells" in the waters
    of Lake Ontario near Main Duck Island. The MNR responded with a letter
    acknowledging the receipt of the application and indicating the next steps, but
    cautioned: Acceptance of your application or a request to attend a
    pre-screening meeting does not in any way infer a commitment on the part of the
    Crown to further entertain your application.

[14]

In
    October 2004 Trillium paid about $35,000 in fees to MNR as part of the
    application. The MNR acknowledged the payment and further indicated in a letter:
    This letter acknowledges that the company is proceeding with the review of the
    site for the purpose of wind testing and that receipt of the above fees in no
    way guarantees that the site will be approved for wind power testing or
    development.

[15]

In
    December 2005 MNR informed Trillium that it was the Applicant of Record for the
    grid cells in the area of Main Duck Island. Trillium pleads that Applicant of
    Record status granted it specific rights that, subject to Trillium's compliance
    with "established steps," would in due course have led to contractual
    status as a wind power supplier.

[16]

In
    November 2006 MNR advised Trillium that it was imposing a moratorium on
    offshore wind power development in order to conduct environmental and social
    studies. The moratorium was lifted in January 2008. On December 1, 2008,
    Trillium received a letter from the MNR advising that it had been granted
    Applicant of Record status for the same grid cells. The letter advised that
    there were two phases of development related to Applicant of Record status. The
    first phase granted Trillium three years to test for wind power. The second
    phase gave Trillium the opportunity to go through the environmental assessment
    process and obtain the other necessary approvals to operate a wind farm. The
    letter continued:

There are no rights or tenure associated with this Applicant of
    Record status and it does not constitute MNR approvals of your proposed
    project. In addition, this Applicant of Record status does not provide the
    right to make any alterations or improvements on Crown land.

[17]

Applicant
    of Record status did not give Trillium any right or authority to begin
    constructing the wind farm.

[18]

The
    appellants factum describes the events leading to the lawsuit:

The Plaintiff then notified the Office of the Premier of
    Ontario on February 9, 2011, and the Office of the Ministry of Energy on
    February 10, 2011, that it intended to close its [$26 million] financing with
    Dundee Corporation late on the afternoon of Friday, February 11, 2011.  At 2:00
    p.m., on Friday, February 11, 2011, the Government of Ontario issued a press
    release stating that offshore wind development in Ontario would be cancelled. 
    The press release appeared on the Ontario Environmental Bill of Rights Registry
    website.

The Plaintiff was never given any prior notification of the
    intention or decision to cancel offshore wind development, and no subsequent or
    other communications have ever been issued by any of the Ministries, nor has
    MNR made any proposal to refund the monies which the Plaintiff paid to obtain
    its status as Applicant of Record.  No Orders in Council, other legislation or
    policy statements have ever been issued.

[19]

A
    news release was issued at 2:00 p.m. on February 11, 2011 by the Ontario
    Ministry of Environment website. It stated that off-shore wind projects were
    being suspended:

Ontario is not proceeding with
    proposed offshore wind projects while further scientific research is
    conducted.

No
Renewable Energy Approvals
for offshore have been issued and no offshore projects will proceed at this
    time.  Applications for offshore wind projects in the Feed-In-Tariff program
    will no longer be accepted and current applications will be suspended. [Emphasis
    in original.]

[20]

By
    contrast, the policy decision notice registered on the Environmental Bill of
    Rights Registry on February 11, 2011 stated that the projects were being
    cancelled:

During this time [of necessary scientific research],
    applications for off-shore wind projects in the Feed-In-Tariff program will no
    longer be accepted and current applications will be cancelled; the MNR will be cancelling
    all existing Crown land applications for offshore wind development that do not
    have a Feed-In-Tariff contract, including those with Applicant of Record
    status.  MNR will not be accepting any new Crown land applications for offshore
    wind development.  When there is greater scientific certainty, consideration of
    offshore wind development will resume.

[21]

Trillium
    claims that Ontarios actions were precipitous, highhanded and constituted bad
    faith Ministerial decisions for political election expediency,  and that Ontarios
    decision and the cancellation and confiscation in February, 2011 was
    specifically targeted to stop Trillium Powers offshore wind project in Lake
    Ontario before Trillium Power had the financial resources to litigate with the
    Province of Ontario.  The latter assertion is based on the fact that the Provinces
    notice of cancellation occurred mere hours before the financing arranged by
    Trillium to complete the remaining approval process was to close, as the
    Province knew.  The financing did not close.

The Decision under Appeal

[22]

The
    motion judge dismissed all of the appellants claims, including the claims for
    negligence and negligent misrepresentation. He dismissed the claim for
    misfeasance in public office for related reasons.

[23]

The
    motion judge centered his decision in respect of negligence, negligent
    misrepresentation and misfeasance in public office on the reasoning of the
    Supreme Court of Canada in
R. v. Imperial Tobacco Canada Ltd.
, 2011
    SCC 42, [2011] 3 S.C.R. 45. The motion judge held, at para. 61, that core
    policy" decisions are immune from suit.  He relied particularly on certain
    observations made by McLachlin C.J.C. in
Imperial Tobacco
, who
said, at para. 87:

The weighing of social, economic, and political considerations
    to arrive at a course or principle of action is the proper role of government,
    not the courts. For this reason, decisions and conduct based on these
    considerations cannot ground an action in tort.

[24]

McLachlin
    C.J.C. described core policy government decisions, at para. 90 of
Imperial
    Tobacco
,

as being:
    decisions as to a course or principle of action that are based on public
    policy considerations, such as economic, social and political factors, provided
    they are neither irrational nor taken in bad faith.

[25]

This
    understanding of the decision in
Imperial Tobacco
led the motion judge
    to conclude, at para. 62:

In my view, the Defendant correctly characterizes the decision
    to impose a moratorium as a "core policy decision". The stated reason
    for the moratorium was that further scientific studies were required, a reason
    very directly "
based on public policy considerations, such as economic,
    social and political factors
". The Defendant clearly possessed the
    power to impose the moratorium. This is exactly the type of policy decision
    that is protected from suit. [Emphasis in original.]

[26]

The
    motion judge stated, at paras. 32 and 33:

In my view, it is clear that the Defendant, acting through
    various ministers of the Crown, was empowered to set or alter policy with
    regard to the development of wind power. Each of the statutes confers a broad
    discretion with regard to every aspect of renewable energy, from the release of
    Crown land for testing to the granting of a contract to supply energy and hook
    up to the grid...

Thus, I disagree with Trillium. It is clear that the actions of
    the Defendant were not illegal. It is also clear from a review of the Claim and
    the regulatory scheme that Trillium had not obtained the requisite approvals to
    construct and operate a wind farm at the time the moratorium was imposed. These
    basic findings determine much of what follows.

[27]

The
    motion judge added, at para. 52: In my view that is what has occurred here:
    the defendant exercised its regulatory authority to impose a moratorium.  He
    said, at para. 56: I see no reason why the Minister would not be permitted to
    change the policy in accordance with the public interest.

[28]

The
    motion judge addressed the claim of misfeasance in public office directly at
    paras. 20, 64, 65, and 66 of his decision, concluding at para. 69: Since I
    have already found that there was nothing unlawful about the decision to impose
    a moratorium on offshore wind power, that alone is sufficient to dismiss this
    aspect of the Claim.

Issues

[29]

The
    issues raised by the parties distil to two:

(i) Is the
    appellants claim for misfeasance in public office tenable as a matter of law?

(ii) Is the
    appellants claim for misfeasance in public office adequately pleaded?

Analysis

[30]

The
    analytical framework for assessing whether to strike out a pleading on the
    ground that it discloses no reasonable cause of action under Rule 21.01(1)(b)
    of the
Rules of Civil Procedure
, is set out by Paul M. Perell and John
    W. Morden in
The Law of Civil Procedure in Ontario
, 1st ed. (Markham:
    LexisNexis Canada Inc., 2010), at p. 445:

The following principles apply to a Rule 21 motion to strike a
    pleading for failing to disclose a reasonable cause of action or defence: (a)
    the material facts pleaded must be deemed to be proven or true, except to the
    extent that the alleged facts are patently ridiculous or incapable of proof;
    (b) the claim incorporates by reference any document pleaded and the court is
    entitled to read and rely on the terms of such documents as if they were fully
    quoted in the pleadings; (c) novelty of the cause of action is of no concern at
    this stage of the proceeding; (d) the statement of claim must be read
    generously to allow for drafting deficiencies; and (e) if the claim has some
    chance of success, it must be permitted to proceed.

[31]

The
    test is not in dispute: the claim will only be dismissed where it is plain and
    obvious that it has no reasonable prospect of success:
Hunt v. Carey Canada
    Inc.,
[1990] 2 S.C.R. 959;
Imperial Tobacco
, at paras. 17-19;
Taylor
    v. Canada (Attorney General)
, 2012 ONCA 479, 111 O.R. (3d) 161 at para 22.
    While the court must accept as true the material facts as pleaded, this
    obligation does not extend to bald conclusory statements of fact, unsupported
    by material facts.

[32]

We
    address the issues in turn.

(a)

What is the basis of
    the appellants misfeasance claim?

[33]

The
    motion judge gathered together the allegations in the statement of claim at
    paras. 64-65 of his reasons:

Trillium pleads misfeasance in public office:

74. Trillium Power further
    states that in the events as described herein the defendants had no legal
    authority and were not in the exercise of any statutory power or purpose. The
    defendant's February 11, 2011 decision to terminate offshore wind power in Lake
    Ontario constituted an invalid decision, either made negligently or, in the
    alternative, made deliberately as a misfeasance in office by Ministers of the
    Crown.

Although it is not entirely clear what facts Trillium relies on
    in support of this allegation, the following paragraphs appear to be connected:

58. Trillium Power states that
    the Government's actions were precipitous and high-handed, and constituted bad
    faith Ministerial decisions for political expediency, with specific concern for
    geographic areas of the Province completely unrelated to [the activities of] Trillium
    Power. Those areas, predominantly near Lake Erie and Lake Huron, constituted
    ridings that were perceived by the Provincial Government as susceptible to loss
    in the forthcoming election.

59. Trillium Power states
    further that the Defendant knew and was well aware that there were no water
    quality issues relating to offshore wind development in relation to Trillium
    Power specifically, and in relation to offshore wind generally. Consequently,
    Trillium power states and the fact is that the only science involved in the
    Defendant's February 11, 2011 decision was political science.

[34]

The
    motion judge also referred to para. 61 of the statement of claim. We would add
    para. 54 of the statement of claim to the group of allegations related to
    misfeasance in office. Paras. 54 and 61 state:

Trillium Power states that the Defendants decision to issue
    the press release on February 11, 2011, was done in bad faith and was
    specifically a consequence of Trillium Powers prior notification of their
    scheduled closing of financing with Dundee Corporation, with the intent to stop
    the process and confiscate Trillium Powers offshore wind power development
    before it could be financed for approximately $26 million dollars, to begin
    construction of its proposed initial site south-west of Main Duck Island, in
    east Lake Ontario.

Trillium Power further states that the Defendants decision and
    the cancellation and confiscation in February, 2011 was specifically targeted
    to stop Trillium Powers offshore wind power project in Lake Ontario before
    Trillium Power had the financial resources to litigate with the Province of
    Ontario.

[35]

To
    these paragraphs of the statement of claim we would also add the appellants
    response to the demand for particulars, to which the motion judge referred at
    para. 20 of his reasons:

Trillium further particularized that "misfeasance in
    public office" applied to Energy Minister Duguid, Environment Minister Wilkinson,
    Natural Resources Minister Jeffrey, and Premier McGuinty along with their
    senior staff. The particulars of the "misfeasance in public office"
    include:

1. The decision by the governing Liberal Party to place
    political expediency in relation to an upcoming election over the public
    interest in "Green Energy".

2. The named Ministers issued a press release in advance of
    the October 2011 provincial election for purely political reasons related to
    close races in ridings held by the Liberal Party. The named Ministers knew the
    press release would destroy Trillium's financing.

[36]

As
    we read the statement of claim, the essence of Trilliums complaint in support
    of the misfeasance in public office claim is two-fold.  Trillium asserts that
    the Premier, his Ministers named above, and their staff acted in bad faith:

a)

for purely political
    motives of electoral expediency in order to win more seats in the upcoming
    election, when they knew that their actions would harm Trillium; and,

b)

in a way that
    specifically targeted Trillium by cancelling Ontarios wind power projects in
    order to undercut Trilliums pending financing and thereby place Trillium in a
    position where it would not have the resources to litigate against Ontario.

(b)

Is the appellants
    claim for misfeasance in public office tenable as a matter of law?

[37]

The
    appellant pleads the tort of misfeasance in public office and does not assert a
    claim for judicial review of a governmental administrative decision.  Its claim
    is essentially based upon the two categories of bad faith allegations
    summarized in the preceding paragraph.  Trillium argues that these allegations
    fall within the
Imperial Tobacco
qualification that a governmental
    decision is immune from suit, unless it is taken in bad faith.

[38]

In
Odhavji Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras.
    28, 30 and 32, Iacobucci J. set out the essential elements of a claim in tort
    for malfeasance in public office.  As explained there, and in subsequent
    decisions of this Court, the plaintiff must show that (in addition to the usual
    tort requirements of causation and consequent damages):

a)

The public official
    engaged in unlawful conduct in the exercise of his or her public functions;
    and,

b)

The public official
    was aware that the conduct in question was unlawful and was likely to injure
    the plaintiff.

See also,
Pikangikum First Nation v. Nault
,
    2012 ONCA 705, at para. 54, leave to appeal refused, [2013] S.C.C.A. No. 10;
St.
    Elizabeth Home Society v. Hamilton (City)
, 2010 ONCA 280, at para. 20;
Granite
    Power Corporation v. Ontario
(2004), 72 O.R. (3d) 194 (C.A.), leave to
    appeal to S.C.C. dismissed [2004] S.C.C.A No. 409, at paras. 37-39.

[39]

It
    is clear from
Odhavji Estate
, as well, that bad faith conduct in the
    exercise of executive or administrative authority  that is, the exercise of
    power for an improper or ulterior purpose, such as doing so only for the
    specific purpose of injuring someone  may constitute the type of unlawful
    conduct required for the tort. It does not follow, however, that a public
    official may not make any decision that he or she knows may harm someones
    interests.  Iacobucci J. addressed this issue as well, at para. 28:

The requirement that the defendant must have been aware that his
    or her conduct was unlawful reflects the well-established principle that
    misfeasance in a public office requires
an element of bad faith or
    dishonesty
.  In a democracy, public officers must retain the authority to
    make decisions that, where appropriate, are adverse to the interests of certain
    citizens.  Knowledge of harm is thus an insufficient basis on which to conclude
    that the defendant has acted in bad faith or dishonestly.
A public officer
    may in good faith make a decision that she or he knows to be adverse to
    interests of certain members of the public.  In order for the conduct to fall
    within the scope of the tort, the officer must deliberately engage in conduct
    that he or she knows to be inconsistent with the obligations of the office
.
    [Emphasis added.]

[40]

Ontario
    roots its defence of the motion judges decision in the Supreme Courts
    determination in
Imperial Tobacco
. McLachlin C.J.C. stated, at para.
    91: [W]e may conclude that where it is plain and obvious that an impugned
    government decision is a policy decision, the claim may properly be struck on
    the ground that it cannot ground an action in tort. She added, however, that:
    If it is not plain and obvious, the matter must be allowed to go to trial.

[41]

The
    motion judge accepted Ontarios argument and dismissed the claim for
    misfeasance.

Discussion

[42]

We
    would set aside the dismissal of the claim for misfeasance in public office, but
    we would permit the action for misfeasance to continue based only upon the
    allegation that the Governments decision to suspend or cancel the provinces
    wind power program was specifically targeted at Trillium in order to injure it
    by crippling its financial capacity. We would not permit it to continue in
    conjunction with what we would call the political/electoral expediency
    allegations.

[43]

We
    first address the reasons for setting aside the dismissal and then turn to
    consider the permissible scope of the continuing action.

[44]

McLachlin
    C.J.C.s statement at para. 91 of
Imperial Tobacco
that summary
    judgment is available to enforce immunity must be read in the context of her earlier
    statement, that the immunity only applies to true or core policy decisions
    and then only to those that are neither irrational nor taken in bad faith:
    see paras. 74 and 90.

[45]

In
Imperial Tobacco
, no allegations were made that government officials
    acted in bad faith or for an improper purpose. This case is different. 
    Trillium has pleaded that Ontarios actions were done in bad faith and for an
    improper purpose.

[46]

Once
    a plaintiff asserts a claim for bad faith in the context of a claim of misfeasance
    in public office that is at least plausible on the facts alleged, the motion
    judge is required to accept those facts as true for the purposes of a rule 21
    motion, provided that they are not patently ridiculous or incapable of proof.  To
    the extent the motion judge may have suggested otherwise, in his comment at
    para. 32 of his reasons that [t]he determination of whether the Defendants
    actions were illegal is a legal issue, we respectfully disagree.  The legal
    issue is whether the Defendants actions give rise to a claim in law, based on
    the facts as pleaded.

[47]

Here,
    the motion judge found that even if the Ministers whose conduct is being
    questioned in this case had exercised their authority for political purposes, the
    exercise of that authority was itself immune to judicial review. He said at
    para. 63:

Trillium also pleads that the moratorium was imposed for
    fundamentally political, specifically electoral reasons, and that it is untrue
    that scientific reasons were at the heart of the decision to proceed with a
    moratorium. Leaving aside the question of misfeasance in public office, which I
    turn to below, making a decision for a political purpose would still not ground
    a cause of action. Chief Justice McLachlin in
Imperial Tobacco
explicitly mentions political factors as a legitimate public policy consideration.
    The remedy for a political decision that a party does not agree with is found
    in the ballot box, not the courtroom. Political factors are not illegitimate. A
    government may well be justified in not proceeding with a project on the [basis]
    of vigorous community opposition. Democratic governments are supposed to be
    sensitive to public opinion. Courts are manifestly ill-equipped to determine
    which types of political considerations are legitimate and which are not, which
    is why our analysis is confined to legality.

[48]

We
    agree with the motion judge that political core policy decisions are
    generally immune from review by the courts in the context of a civil tort action.
    The exception for irrational and bad faith decisions, as McLachlin C.J.C.
    observed in
Imperial Tobacco
, and Iacobucci J. noted in
Odhavji
    Estate,
is quite narrow. The appellant takes its stand on that narrow
    exception, but, as we will explain, this affects the permissible scope of the
    continuing action.

[49]

At
    para. 32 of his reasons, the motion judge observed:

[T]he Defendant, acting through various ministers of the
    Crown, was empowered to set or alter policy with regard to the development of
    wind power.  Each of the statutes confers a broad discretion with regard to
    every aspect of renewable energy, from the release of Crown land for testing to
    the granting of a contract to supply energy and hook up to the grid.

[50]

In
    that respect, a decision by the Ontario Government to continue, suspend, or
    discontinue its province-wide offshore wind power policy initiative is a
    decision as to a course or principle of action that [is] based on public
    policy considerations:
Imperial Tobacco
, at para. 90.  Those
    considerations happen to involve political factors.  Ontarios decision therefore
    falls within the type of core policy decisions that are immune from attack
    unless they are irrational or taken in bad faith.  Here  except to the extent
    they specifically targeted Trillium in order to injure it financially 
    Ontarios decision was neither irrational nor made in bad faith.

[51]

We
    do not see how the decision can be said to be irrational based on the allegations
    in the statement of claim.  The governments stated reason for suspending or
    cancelling its wind power policy was that further scientific study was
    required.  While Trillium does not accept that this was the real reason for the
    cancellation, and pleads that the government was well aware that there were no
    water quality issues relating to offshore wind development and that the only
    science involved [in the decision] was political science, those allegations
    may make the decision debateable, but they do not make it irrational.

[52]

Nor
    can the impugned decision be said to have been made in bad faith for purposes
    of the political/electoral expediency claim, in our view.  A core policy
    decision made by the Executive based on political considerations or electoral
    expediency does not, on its own, constitute bad faith for purposes of a tort claim
    based on misfeasance in public office.

[53]

This
    is so even if the government actors were aware that such a decision might
    negatively impact the interests of Trillium or other offshore wind-power.  To
    repeat the observations of Iacobucci J. in
Odhavji Estate
, cited above:

In a democracy, public officers must retain the authority to
    make decisions that, where appropriate, are adverse to the interests of certain
    citizens.  Knowledge of harm is thus an insufficient basis on which to conclude
    that the defendant has acted in bad faith or dishonestly...
In order for
    the conduct to fall within the scope of the tort, the officer must deliberately
    engage in conduct that he or she knows to be inconsistent with the obligations
    of office.
[Emphasis added.]

[54]

In
    that broader sense, it is not inconsistent with the obligations of office for
    the Premier and his or her Ministers to respond to public pressure, even where
    that response is designed to shore up the governments electoral base and win
    more seats in an election.  Ministerial policy decisions made on the basis of
    political expediency are part and parcel of the policymaking process and,
    without more, there is nothing unlawful or in the nature of bad faith about a
    government taking into account public response to a policy matter and reacting
    accordingly. That is what governments do, in pursuit of their political and
    partisan goals in a democratic society.  See
Comeaus Sea Foods Ltd. v.
    Canada (Minister of Fisheries & Oceans)
, [1997] 1 S.C.R. 12;
Ontario
    Federation of Anglers & Hunters v. Ontario (Minister of Natural Resources)
,
    [2002] O.J. No. 1445 (C.A.);
Equity Waste Management of Canada v. Halton
    Hills (Town)
(1997), 35 O.R. (3d) 321 (C.A.).

[55]

Accordingly,
    it is only to the extent that Ontarios decision was
not
made for
    political purposes, but was made with the specific intention of injuring the plaintiff,
    that the decision is subject to attack in tort.  Political motivation for the
    decision may or may not become relevant  should Ontario choose to raise it by
    way of defence, for example  in determining what was, in fact, the real motivation
    for the decision. But the political/electoral expediency aspects of such a decision
    cannot, standing alone, provide a basis for a claim in tort for misfeasance in
    public office. Therefore, they are not properly a part of the allegations in
    the statement of claim in this case.
[1]


[56]

It
    follows that Trillium should be entitled to proceed based on the allegations
    that the Governments actions were specifically meant to injure the appellant.
    The appellant asserts that the Governments actions were targeted to stop
    Trilliums offshore wind project before Trilliums financing was in place in
    order to deprive Trillium of the resources to contest the Governments decision
    to cancel the wind projects in Ontario.  Paragraphs 54 and 61 of the statement
    of claim (except for the reference to confiscation) are examples of this
    plea.

[57]

It
    cannot be said, at this stage of the proceedings, that it is plain and
    obvious that those allegations will not succeed at trial.

(c)

Is the appellants
    claim for misfeasance in public office adequately pleaded?

[58]

The
    necessary elements of a claim for misfeasance in public office, from the
    decision of the Supreme Court in
Odhavji Estate
, at paras. 28, 20 and
    32, are set out above. For convenience, we will repeat them here. To pass
    muster in pleading misfeasance in public office, Trillium must plead materials
    facts capable of establishing:

a)

deliberate unlawful conduct by a public officer in the
    exercise of a public function, being conduct that he or she knows to be
    inconsistent with the obligations of the office;

b)

awareness that the conduct is unlawful and likely to
    injure the plaintiff; and

c)

other requirements common to all torts including that
    the tortious conduct is the legal cause of the plaintiffs injuries and that
    the injuries suffered are compensable in tort law.

Discussion

[59]

The
    pleading is disorganized and prolix, and must be brought into conformity with
    the ruling in the previous section of these reasons. That said, in our view the
    specific factual allegations in paras. 54 and 61 of the statement of claim are
    sufficient to pass muster as a valid pleading of misfeasance in public office.
    The pleading makes allegations about specific public officials and their
    specific unlawful purpose in acting as they did:
L.(A.) v. Ontario (Minister
    of Community and Social Services)
(2006), 83 O.R. (3d) 512, leave to appeal
    refused, [2007] S.C.C.A. No. 36, at para. 37.

[60]

We
    are alive to the problem pointed out by the Federal Court of Appeal in
St.
    Johns Port Authority

v. Adventure Tours Inc.,
2011 FCA 198, per
    Stratas J.A., at para. 63 that a bald pleading is especially problematic in
    cases alleging abuse in public office.  Stratas J.A. pointed out that: it is
    all too easy for a plaintiff who is aggrieved by governmental conduct to
    assert, perhaps without any evidence at all, that "the government"
    acted, "knowing" it did not have the authority to do so,
    "intending" to harm the plaintiff. That said, we do not agree with
    the motion judge that the pleading is completely bald. This pleading is
    detailed and as fact-specific as the appellant can be at this stage of the
    proceeding. The allegations link to actual events, documents and people.

[61]

To
    quote Moldaver J.A., in
Granite Power
at para. 40, on the facts pleaded,
    including the particulars, there exists a narrow window of opportunity for [the
    appellant] to make out its claim in misfeasance. The appellant cannot provide
    more particulars now because many of the necessary supporting facts would be
    within Ontarios knowledge and control, and there has been no document
    production or discovery.

[62]

For
    these reasons we allow the appeal on misfeasance in public office alone, and
    otherwise dismiss the appeal. We strike the statement of claim and grant the
    appellant thirty days in which to prepare, serve and file an amended statement
    of claim.

[63]

The
    appellant is entitled to costs in this court, fixed by agreement at $15,000
    all-inclusive, and at $20,000 all-inclusive for the motion below.

Released: November 12, 2013 RAB

R.
    A. Blair J.A.

M.
    Tulloch J.A.

P.
    Lauwers J.A.





[1]
Nothing in these reasons should be taken to suggest that the discretionary
    exercise of governmental authority is completely unfettered.  This case
    provides an example of circumstances in which that exercise of discretion may,
    within limits, be subject to attack in tort law. Generally, however, attacks on
    the exercise of Ministerial discretion are the  province of administrative law,
    not tort law, although the appellant has chosen to frame this action in tort
    law.


