Apr 4, 2014
Lawrence Solomon, Financial Post, National Post
(Recap)
Europe taught us to spare no expense in supporting wind and solar projects, the better to help the planet survive. Now Europe is teaching us how to tear down those same projects, the better to help ratepayers, and politicians, survive.
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Ontario’s property tax system, for example, allows for numerous residential and industrial tax classes, among them farms, forests, and pipelines. The provincial government could add wind and solar to the list, and then let local governments set whatever tax rates the local councillors, in fulfillment of the democratic will of their constituents, deem just. Given the view of many rural residents toward their windfarm neighbours, councillors will swiftly ensure a just end, sometimes by deterring new installations, sometimes by speeding their dismantling, sometimes by using the extra revenues to compensate victims.
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The Ontario Court of Appeal said as much when a major wind developer, Trillium Power Wind Corporation, objected when the provincial Liberals, to win some seats in the last election, abruptly changed the rules of the game. Trillium sued for $2.25-billion in damages on numerous grounds. According to an analysis by the law firm Osler, Hoskin & Harcourt, the Appeal Court all but laughed Trillium out of court.
The Appeal Court noted “that not only was it ‘plain and obvious’ but ‘beyond all reasonable doubt’ that Trillium could not succeed in its claims based on breach of contract, unjust enrichment, expropriation, negligent misrepresentation, negligence, and intentional infliction of economic harm,” Osler stated. The only part of Trillium`s claim that could proceed was based upon misfeasance in public office, which would require proving that a public official knowingly acted unlawfully to harm Trillium.
Can the government break a contract for political purposes? Yes, says Osler. The Appeal Court, in fact, “made it clear that proponents who choose to participate in discretionary government programs, such as Ontario’s renewable energy program, do so primarily at their own risk. Governments may alter the policies that underlie a program, and may even alter or cancel such programs, in a manner that may be fully lawful and immune from civil suit.”
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