The Ontario-based offshore wind developer is seeking to recover more than C$2 billion in damages and C$5 million in expenses it has incurred in pursuing the project before it was halted by the provincial government.
In February 2011, Ontario said it would not accept applications for offshore projects under its feed-in tariff (FIT) programme and would suspend those that had already been filed. It said that more scientific study needed to be done before the rules for offshore development could be developed.
However, the decision was announced one hour before Trillium Power was due to complete a C$26 million financing arrangement for its TPW1 offshore wind project 28 kilometres from shore in Lake Ontario.
The latest court decision overturns a 2012 ruling by justice Robert Goldstein, who said the province was within its rights in declaring the moratorium.
At the time, Goldstein said the government "was empowered to set or alter policy with regard to the development of wind power". Goldstein said Trillium did not have a contract with the province but was simply involved in a regulatory process that might have led to approvals to build a wind farm.
Trillium CEO and president John Kourtoff argued after the judge's ruling that he made procedural and factual errors in his decision.
In its appeal, Trillium asserted that Ontario unlawfully deprived it of a lucrative offshore wind project for improper political, specifically electoral, purposes.
The company also alleged Ontario’s decision specifically targeted Trillium with a view to crippling it financially so that it would not be able to contest the government’s actions.
Trillium has stated that litigation was its last choice and it is keen to work with the province’s new government, led by premier Kathleen Wynne, to remedy the situation it inherited.
Kourtoff said: "We now have an opportunity to go forward and present our evidence and air the facts regarding the improper actions that were taken against us by the previous government.
"We want to work with the new Ontario government and hope that they seriously consider a dialog with Trillium Power. Trillium Power wants to remove the $2.25 billion financial risk to Ontarians."