Quote:
Originally Posted by Delgar
This keeps getting better. The ads are I'm sure worth the $100K.
On this issue of lack of public hearings, remember, this was the government itself that made the clarification before going into a type of bid process, and the results have been, over time and until now, very good for the balancing pool and consumers for over a decade.
The lack of certain formalities such as a further public hearing on a clarification statement, where joe taxpayer could have objected to the clause interpretation, matters little now-- its 16 years after the fact and billions of dollars have now changed hands as a result. There is no going back. It was the government and its board acting in sync.
It may be different in, for example, a situation where someone suddenly has a liberty at stake and a law was not passed properly, but this is not that sort of situation. The clarification has had an impact of every resident of Alberta and every shareholder/investor/analyst etc. and everyone has lived under its benefits or detriment for a long time now.
Its potentially the greatest application of laches or a form of estoppel in common law history if the lawsuit gets that far.
https://en.wikipedia.org/wiki/Laches_(equity)
https://en.wikipedia.org/wiki/Estoppel |
Interestingly, the province's application appears to allege that, during the auction process, only Enron and the Commission were aware of the Commission's decision (or "interpretation") amending the "change of law" provisions. Therefore I expect that the province will argue that there was no reliance by the other buyers in the PPA public auction and therefore the doctrine of laches does not apply.
Also, where the claim is that an action was ultra vires in the division of powers sense, the doctrine of laches does not apply. I somewhat sheepishly admit that I do not know whether it applies in the context of a tribunal exceeding its jurisdiction under its enabling legislation (as its never come up for me). But, it seems possible that it may not. If I have time today, I may do a little reading on this.