Quote:
Originally Posted by CaptainCrunch
I'm just curious about this whole thing in terms of how its going to be argued.
I'm pretty sure that the Utilities will basically state that they wouldn't have
1) Bought the PPA's without that provision
2) Paid near as much for the PPA's without the provision for less profitable.
They could also argue that the provision has been in there for more then a decade and has never been argued or taken out.
The NDP government which knew about the provision for less profitable didn't raise a stink until well into their government when it was clear that the Utilities were using it.
I'm not a lawyer, but I'm pretty sure that a new government can't come in and just change the rules of the game because they don't like it.
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The bold does seem problematic for the government. Even if you accept, for the moment, that the PPA's aren't contracts, can the government change legislation unilaterally? Typically, I think the answer is yes, but a better question is can the government change legislation unilaterally,
without consequence? The remedies provided are baked right into the contract/legislation. Contractually they would have zero chance, but even legislatively it would seem so procedurally unfair to allow this to happen. Moreso, it would seem insane from a long term view to tell the world that the government can change anything, anytime and expect business to react in any matter other than to run as far away from here as is possible.
The only other argument that I can think of (outside of outright fraud, which I don't think is on the table) is that the government agency overstepped its authority in agreeing to the "more unprofitable" language. I have a hard time believing that the enabling language for the board is so precise to provide that "to make it unprofitable" is A OK, but "more unprofitable" is illegal. It isn't as if they agreed to have payment back in hookers and blow. It seems pretty clear that this language, while beneficial to the utilities, is along the same continuum of language the would be negotiated amongst the parties.