Judgment reserved in dispute over turbine contract

Rendering of how turbines six and four would look in Milford.

Justice Stanley Kershman has reserved judgment following final submissions from the Alliance to Protect Prince Edward County (APPEC) in its case against wpd Canada’s industrial wind turbine project.

The case was moved to a larger courtroom, Monday in Belleville, to accommodate about 75 Prince Edward County residents attending – including mayor Robert Quaiff, councillor Steve Ferguson and Wind Concerns Ontario President Jane Wilson.

APPEC’s case to declare the project null and void disputes the Feed-in-Tariff (FIT) contract between the Independent Electricity System Operator (IESO) and wpd.

Though much of the legal argument surrounded the entitlement of public groups to have access to information from the commercial parties, APPEC’s concern is that wpd failed to meet benchmarks and required milestone dates which should have terminated the contract with the IESO.

The IESO claimed the contract allows wpd to seek and amendment to proceed with less than 75 per cent of capacity after the project was reduced to nine turbines, from the proposed 27, in an Environmental Review Tribunal last spring, brought forth by APPEC.

APPEC secretary Paula Peel was at Belleville Superior Court, Monday. The following is her report:

Environmental lawyer Eric Gillespie pointed out this case raises broader public policy issues of access of information from the IESO.

On June 12, 2017 APPEC contacted the IESO for information about the status of wpd’s FIT contract. The IESO indicated in its reply that it could not disclose this information, citing confidentiality. Mr. Gillespie argued that this information should have been disclosed for the following reasons: (1) the IESO describes the FIT program as a standardized, open and fair process; (2) APPEC and Ontario communities are affected by the FIT Program; and (3) the information APPEC was seeking, and the IESO withheld, could not have been confidential at all as it was ultimately disclosed to the court in November 2017.

Mr. Gillespie clarified that contrary to what the IESO contends, this is not about how to interpret clauses in the FIT contract. The clauses are negligent misrepresentation, in that APPEC was led to believe that the generation capacity of the White Pines project could not go below 75 per cent of the generation contracted for in 2010, when the FIT contract was signed.

The central issue for APPEC is that information that became known to the IESO was not made publicly available. The IESO had a choice, when it became clear that wpd could not meet the 75 per cent condition in the contract. It could have said that things had changed, that wpd’s FIT contract would need to be amended, that wpd was in default of contractual milestone dates, etc. Mr. Gillespie noted that it’s what the IESO and wpd did with their choices that has brought us here today.

wpd’s first public announcement that it was proceeding with the nine-turbine project was September 21, 2017. The IESO informed councillor Ferguson that it had agreed to amend the FIT contract on October 12, 2017. APPEC only obtained the information it had sought in June when the IESO disclosed it to the court on November 30.

IESO and wpd closing submissions and APPEC’s reply

Alan Mark, IESO’s legal counsel, criticized APPEC’s “assumption” that it has some right to insert itself into the contractual relationship between the IESO and wpd.

Mr. Mark stated that any rights are owed exclusively to wpd, the IESO’s contractual partner; there’s nothing in the statutory framework that gives APPEC “the right to anything”.

Mr. Mark went on to suggest that a contract is just a statement at a point in time with no guarantee that it won’t change in the future and members of the public don’t need to know about that either. Mr. Mark added that “with all respect to APPEC, APPEC is just made up of members of the public that feel strongly about wind power projects.”

Mr. Mark indicated that the IESO has made no representations to APPEC at any time, so it could not have made a negligent representation.

When Justice Kershman asked whether APPEC’s allegation is that the IESO made a representation in 2010 that the project would not be able to proceed if the project’s generation capacity fell below 75 per cent, Mr. Mark responded that this isn’t the case APPEC is making.

Mr. Mark noted a statement in the Skypower Decision that the FIT contract is a bilateral commercial contract between two parties. Mr. Gillespie noted that in the same Skypower Decision, Judge Nordheimer rejects this characterization of the FIT program, and says that the suggestion that this is a commercial nature entirely and not a matter of public policy is fictional.

Mr. Mark said that APPEC had all the information it needed and ignored this information at its peril. In reply, Mr. Gillespie asked why APPEC would base its ERT appeal rights on a complete unknown, i.e., would the IESO amend the FIT contract, or not?

Patrick Duffy, legal counsel for wpd, also took up the argument that APPEC had no right to insert itself into the contract between the IESO and WPD.

Mr. Gillespie replied that if that was so, then why did the IESO make FIT contracts available on its website for public viewing in the first place?

Mr. Duffy stated that the terms “open” and “transparent” only apply to FIT program applicants, not to members of the public to which Mr. Gillespie replied that we still have not been told what there was about the information APPEC sought that was privileged.

Mr. Duffy noted that FIPPA (Freedom of Information and Privacy Act) is the law that applies to disclosure. However, Justice Kershnan reminded Mr. Duffy that Mr. Gillespie had already noted in his submissions how long the FIPPA process takes. Mr. Gillespie also noted that there was nothing in any of the other party’s materials about FIPPA.

Mr. Gillespie concluded by noting the right of County residents to natural justice and procedural fairness. The IESO has not told the whole story to the community that will be affected by the White Pines wind project.

Justice Kershnan thanked the parties and stated he would reserve his decision. The hearing was adjourned at about 5:30 p.m.

Meanwhile, more than 60 residents attended an Environmental Review Tribunal Pre-hearing Jan. 24 in Sophiasburgh Town Hall in which APPEC seeks to appeal the revised Renewable Energy Approval (REA) for the smaller project. The purpose of the pre-hearing was to hear from people who would like to speak at the hearing with status as a party, participant or presenter at the main hearing scheduled for Feb. 12.

wpd and the Ministry of Environment and Climate Change sought dismissal of the appeal stating the changes to the project were only technical and do not increase risk or damage.

APPEC learned Friday the ERT dismissed its appeal, with reasons to follow.

Gord Gibbins, APPEC chair, stated the tribunal granted participant status to Gerard Spinosa and the Prince Edward Point Bird Observatory, but stated he does not understand how they can participate in an appeal that has been dismissed.

The APPEC board is considering next steps with its legal counsel, Eric Gillespie. The decision can be appealed to Divisional Court.