Ontario's Green Energy & Economy Act Two years Later: Another day, Another lawsuit

The National Post's Scott Stinson on July 13, 2012 reported that yet another in a string of lawsuits has been launched against the Ontario Power Authority. This one by SkyPower Ltd, owned by CIM of Los Angeles. This suit seeks $100 million and closely follows the Province's very recent settlement of another lawsuit in respect to the Greenfield, Mississauga gas plant they cancelled just two weeks before the last Provincial election.

The Scott Stinson article triggered a memory recall of a presentation at the Empire Club that occurred April 8, 2011 when CanWEA's Chairperson, Adarsh Mehta spoke to a full house at the Royal York hotel. The room was full of Bay Street lawyers who acted for many of CanWEA's members and the Q & A session that followed was handled by Robert Hornung, CEO & President of CanWEA. The questions appeared to be selective and ignored those from our table. This raised the ire of a member of our table who demanded a chance to present the other side of the story. This event followed on June 2, 2011 and the anti-wind crowd turned out to support our chosen speaker; the then President of WCO, John Laforet. Needless to say there were only a few Bay Street lawyers present to hear the other side of the story that day. So what are those Bay Street lawyers now up to? Well it appears they have been engaged by many of those CanWEA members to sue the pants off of the OPA.

Earlier this year Southport Wind launched a lawsuit for $1.22 Billion even though Southport didn't even have a signed contract with the OPA. Their claim is against three Provincial Ministries, Hydro One, the grid operator and the OPA.

In the days leading up to the Provincial election Trillium Wind launched a lawsuit for $2.25 billion.

This lawsuit was launched right after the head of Trillium, John Kourtoff spoke to someone from the Premier's office who reportedly told him on Sept. 1, 2011 that there was "no political appetite to deal with this either before or after the election."

Auditors are generally required to report any outstanding lawsuits where they may impact the viability of a company but a visit to the OPA's December 31, 2011 audited statements disclosed only the gas plant cancellations in Mississauga and Oakville and Note 14, of their financial statements merely said “a reasonable estimate of the settlement amount cannot be determined at this time.” We now know that the Greenfield settlement amount was $180 million but the cost of the Oakville plant cancellation is an unknown.

It is unclear why the OPA's auditors chose to ignore the Trillium lawsuit in their notes to the balance sheet but perhaps they were not informed of it during or prior to their audit even though it was extensively reported in the media.

Another fallout from the Green Energy and Economy Act (ACT) is that we are suddenly seeing other related lawsuits popping up including one where several neighbours joined forces to sue other neighbours hosting wind turbines. One has been launched for $17 million in a class action suit by 20 landowners whose property values have been seriously affected. This will in all likelihood be the first of many of these types of lawsuits as more industrial wind developments spring up throughout Ontario.

The other legal fallout from the ACT relates to the challenges by Japan and the EU before the World Trade Organization in respect to the local content restrictions embedded in the ACT. Should the WTO ruling be against Canada all Canadians will share in the costs imposed. Ironically many of the pre-election Liberal friendly unions are supporting the fight against the WTO defending those green jobs the ACT would reportedly create. They are supporting the ACT even though many have emerged to fight the Liberals call for wage restrictions in order to reduce the Provincial deficit. By all appearances they haven't connected the dots. The unions must believe private sector taxpayers can afford to pay much higher electricity prices to cover not only the direct costs of the ACT but the indirect costs that are a fallout from the numerous lawsuits, while the Provincial deficit continues to grow!

To this point in time we have lawsuits launched against the Province for $3.550 billion and presumably have many others currently under consideration based on the retroactive price changes recently imposed under the feed-in-tariff (FIT) and MicroFIT program.

It would appear that when the Premier or his Energy Minister announce the “job creation” benefits of the ACT they reflect on how many jobs are going to be created in the Legal and Judicial System as these lawsuits now demonstrate are occurring. Those lawyers who so wholeheartedly jumped on the bandwagon to support foreign investors when they rushed into Ontario to take advantage of the ACT now find their revenue stream will continue.

Once again the McGuinty Liberals have demonstrated their effectiveness at creating jobs on the backs of all of Ontario's taxpayers and ratepayers; you just need a law degree to take advantage of it.


Parker Gallant
July 13, 2012