Law Times

Law Times • apriL 19, 2010 Paying the price for green energy laws Y ou don't have to have an MBA to know you stay in business by sell- ing something for more mon- ey than you paid to make it. Buy low, sell high. So why has the Ontario government reversed that equation by buying electricity for up to 80 cents a kilowatt hour and then reselling it at less than 10 cents? How long will it be before that practice comes back to bite us in the wallet? It's likely not what Sir Adam Beck had in mind when he masterminded harnessing the Niagara River and helped make this province an industrial giant a century ago. It's ironic because such a sustainable engineering wonder would probably never fly today given environmental assessment requirements and all those opposition groups. The government's position, driven by the sustainable energy lobby, is that transitioning to re- newable sources requires consid- erable investment in technology and infrastructure and that the artificially low rates consumers and industry pay for power today aren't an adequate incentive. The government says it must shoulder some of the risk to en- tice the private sector to invest. So Ontario will close its coal plants for political reasons and subsi- dize the private sector through a feed-in tariff rate, a contract that guarantees it will buy power at a prescribed cost of up to 80 cents per kilowatt hour in some cases. In its rush, Premier Dalton McGuinty's government signed a $7-billion deal — without discussion — with a Korean consortium to develop enough solar and wind power to light up nearly 600,000 homes. More recently, it awarded contracts to 184 other entities, most of which are private companies. The spin is the moves will en- sure sustainable power as a ma- jor component of the province's energy mix in the long term and position Ontario as a lead- ing player in the development, manufacture, and export of green technology while creating jobs along the way. The plan has won accolades from players in the green indus- try, among them Bob Willes of ArcStar Energy, a U.S. company with Toronto offices that matches investors to landowners and solar energy opportunities. Ontario's Green Energy and Green Economy Act "is one of the best pieces of legislation the Ontario government has passed in many years," he says, point- ing to the remarkable growth in sustainable energy in Germany (which, incidentally, also has some of the highest electricity rates in the world). investment, something Willes notes The act is designed to spur is already happening as major pension funds pony up to fund wind and solar farms. But not so fast, says Bruno Inside Queen's Park By Ian Harvey Silano of the Ontario Electricity Coalition, which is struggling to keep power generation in public hands and argues the feed-in tariff contracts constitute an insidious form of de facto privatization. "Those feed-in tariffs will go to the owners and sharehold- ers of those private companies," he says. "They love it because it guarantees a return on their money. There's no risk, and we lose public control of power gen- eration. If it was in public hands, that money could go to offset health-care costs, as the LCBO profits do now." The new developments will offer extremely expensive power, which the government is going to have to either subsidize through taxes or pass on to consumers, he warns. But surprise — it's already happening. Ontario Power Gen- eration wants a 10-per-cent hike in rates next year. The harmo- nized sales tax will add another eight per cent July 1, and there's a $5-a-month charge the govern- ment slipped in more recently. Add it up, and we're look- ing at $300 more a year on the average household's electricity bill. More curiously, the feed-in tariff rates are based on yester- day's technology. Today's prac- tices, by moving from the lab to production, are more efficient. Tomorrow's technology will be more efficient yet again. "Solar-panel pricing has de- creased about 40 per cent in the last five years, and further reduc- tions will occur because of more efficient production," Willes says. "And they are more efficient in producing energy. Current panels are in the 18- to 20-per-cent range, and research panels are up to 60 per cent, so the cost per kilowatt hour per panel will decrease." However, there will be an ad- justment in feed-in tariff rates as both sides gain experience, he adds. As a result, there won't nec- essarily be a windfall should a so- lar farm start cranking out more power than it had projected. "Eventually, the subsidy won't be needed," says Willes. It all sounds like a pay-now, save-later plan. But given our experience with government schemes, there's justification for healthy cynicism. It's also a far cry from Beck's credo of "power at cost." One imagines the father of Ontario Hydro must be spinning like a generator in his grave. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. I COMMENT Does the Warshak workshop work? BY JAN WEIR For Law Times t can be put no better than the oft-report- ed quote of Dr. Sol Goldstein, who talked about the "scourge" of parental alienation in Canada. Some commentators call it the "20/80" of the court, referring to the 20 per cent of the cases that take up 80 per cent of the time. There seems to be no effective solution. Dr. Richard Gardner, a New York psychiatrist, pro- posed a theory in the early 1980s that some alienation was irrational in that the accepted parent had brain- washed the children to the extent that the cure was to deprogram them of their rejection of the other parent. Enter Richard Warshak into the Ontario court system. He's a psychologist from Texas who claims to have developed a four-day workshop at a cost of up to $20,000 to cure the irrational brainwashing type of alienation. Only a handful of psychologists have training in the techniques. In some cases, the courts will order children into the custody of the rejected parent, who will then have them take the program. Sometimes, the court suspends contact with the accepted parent for a period of time. One criticism of this theory is that it gives a tremendous amount of power to the health professional in that a misdiagnosis takes away the children's right to object to certain paren- tal behaviour and subjects them to an intimi- dating experience. The risk of that scenario increases when one parent is wealthy and the other is unable to retain an expert. But how successful is the workshop? While it's been around for 17 years, there hasn't been an independent study to decide the criteria for evaluating success, monitor the cases, and compile the data. The courts have developed rules of evi- dence on expert opinions because judges are intelligent amateurs who don't want to pass judgment on the validity of scientific theories. Thus, they are gatekeepers. For the first test of admissibility, they rely on the scientific com- munity to determine whether the theory or technique is generally acceptable. There is no such evidence for the Warshak workshop. Additionally, because there is a recognition that a novel theory or technique may not have been in existence long enough, the courts have developed four criteria to admit such evidence. The Warshak workshop doesn't meet the crite- ria for novelty because it has been around for more than 17 years. However, even if it were novel, the reliability of the evidence on its va- lidity wouldn't meet the four-part test. That's because the first element is that it's capable of being and in fact has been tested. Here, while the data is available for an independent test, none has taken place according to generally accepted scientific principles. Correspondence BRAMPTON INCIDENT NO EXCUSE FOR RELIGIOUS CRACKDOWN It's unfortunate what has happened to Manjit Mangat. I'm deeply sorry to see and hear about the incident. It's wrong to hurt someone in the first place, let alone using a ceremonial kirpan as a weapon. If people think they should stop bap- tized Sikhs from wearing these kirpans because of this unfortunate incident, they should ban base- ball bats and hockey sticks as well because they are used in the same context. People are hurt and even killed with those weapons as well. If people think Sikhs should change their religion because www.lawtimesnews.com Speaker's Corner Warshak has recently published a study he did himself claiming the workshop is highly effective. But this work doesn't meet generally accepted principles for a valid scientific study. The guarantee of validity is independent con- firmation or repeatability by other scientists. The history of science is replete with examples of very intelligent and respected scientists who have made claims that, after review by other experts, have proven unreliable. There is enough data for short- and long-term evaluation of the War- shak workshop. One of the concerns is whether, even if the data confirms the claims, the workshop works for the right rea- sons. The procedure may be so intimidating that it may frighten the chil- dren into submission. Some of them are now old enough to give feedback on such concerns. I know of the results of just two orders from Ontario judges sending children to the Warshak workshop. One is J.K.L. v. N.C.S. The other is a case widely reported in the media in which an older brother sought to intervene to get custody of his brothers after an associate of Warshak sent them to a hospi- tal psychiatric department alleging they had mental health issues. The report in The Globe and Mail on the case noted that the psychia- trist at the hospital said there was nothing wrong with the boys. Judges appear to be ignoring the Mohan general acceptance test out of desperation for a solution to this seemingly unsolvable prob- lem. But will this prove justified? Given that judges are making these orders and there is now local data, a study could keep track of these cases. It's an important issue for which a research grant would likely be available. Warshak may also reach into his altruism to make his techniques known to the health profes- sion at large. Although it would entail a signifi- cant financial sacrifice, doing so would bring the benefit of these methods to people of more mod- est means and permit evaluation of them accord- ing to the usual cautionary measures of science. The idea isn't to deny that the workshop is effective. Warshak's claims may in fact be correct. What's missing is the proper scientific basis to support them and hence their admis- sibility in court. There is no doubt in my mind that War- shak believes in his theory and techniques. However, as Ontario's recent experience has shown, belief in a beneficial theory can be harmful. The only safe control on such good intentions is an independent review by the sci- entific community. LT Jan Weir is a Toronto lawyer who was involved in S.G.B. v. S.J.L., a case in which a judge over- turned an arbitrator's award ordering participa- tion in Warshak's program. That matter is to go back to court for a new trial. of one eccentric man's alleged actions, they seri- ously need to seek further knowledge about the religion before even thinking about it. Comment posted on lawtimesnews.com by M. Kooner about "Injured Sikh lawyer has no regrets." FEW RELIGIOUS SYMBOLS CUT LIKE A KNIFE I suppose that Sukhwant Singh is still entitled to carry his religious symbol into the court. Most religious symbols can become weapons but few will cut you as badly as a knife. And yes, we should begin talking about it. Comment posted on lawtimesnews.com by Law- rence A. Oshanek about "Injured Sikh lawyer has no regrets." PAGE 7

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• Restricted Mobility
• Paying The Piper
• Focus On ADR/Mediation