Law Times

Page 6 February 29, 2016 • Law Times www.lawtimesnews.com COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com - pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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One focuses on an order by the Information and Privacy Commissioner of Ontario, which led to the release of an e-mail by the City of Oshawa. Councillor Nancy Diamond had sent the e-mail from a personal device and private account to a lawyer, shortly before a City of Oshawa council meeting where the lawyer was chosen to look into allegations of wrongdoing by the city and its staff. "The city submits that the record does not relate to its mandate and functions but rather to the independent and personal actions of the councillor in the context of her personal or political activities. It submits that the councillor's interaction with the investigator was a personal matter, and not a core function of the city. I disagree," said the order by adjudicator Gillian Shaw. The decision is being seen as precedent-setting by many legal professionals. Another piece focuses on Bring Your Own Device Policies in work- places. In the article, a lawyer recommends employers have written poli- cies on how employees can use their personal devices for work matters. The truth is, in 2016, there is no such thing as personal e-mail or personal communications. Public servants live their working lives aware that the records they create could be subject to scrutiny, under freedom-of-information and access-to-information requests. In my experience, it would be unthinkable to discuss work matters in personal e-mail or with personal devices. A wise advertising campaign once counselled teenagers not to put anything on social media they wouldn't want their family to see. I'd suggest all working professionals use the same barometer: If you aren't comfortable with your sentiments on a particular matter becoming public, do not put it into writing in the first place. After all, the Internet is forever. And everywhere. LT Ghosts of Liberals' past to haunt Trudeau? T hey hung the official portrait of the 24th premier of Ontario last week at Queen's Park, confirming Dalton McGuinty still casts a long shadow over the legislature and beyond. It might even stretch all the way to Ottawa to sting Prime Minister Justin Trudeau's treasury for $568 million. That's the tab WindShare, an Ameri- can company, is claiming in compensa- tion from the federal government in a NAFTA arbitration hearing, which wraps up testimony this week. It alleges that Ontario arbitrarily spiked a 300-megawatt Feed-In-Tariff contract for 100 turbines in Lake Ontario near Kingston in 2011. The deal would have seen revenues of $5.1 billion over the 20-year term on in- vestment of $1.5 billion, including $850 million for local goods and services. However, bowing to political pressure, WindShare claims, Ontario cited dubious concerns about drinking water supply sources and mothballed its contract with- out due compensation. The NAFTA hearings bear watching because at the heart of the matter is a case that may set the limits — or at least set the price — on how far a government can go in putting political expediency ahead of good governance and the letter of the law. The nature of NAFTA, indeed any free trade agreement, includes a process whereby investors can seek re- dress if they feel a state policy has unfairly and arbitrarily hurt their position. Critics claim this Chapter 11 provision allows corporate interests to ride roughshod over issues such as environ- mental protection and cul- tural interests, but it's an im- portant mechanism to even up what would otherwise end up as a tilted playing field. There are currently 10 mat- ters involving Canada before the panel, in- cluding WindShare, 12 previous files, and 16 cases that are either inactive or with- drawn dating back to the early 1990s. It's also a two-way street and, although no Canadian company has collected from the U.S. under Chapter 11, TransCanada has just launched a $15-billion claim for the cancellation of the Keystone XL Pipe- line, which it asserts was political. Also pending — with the tab also be- ing dumped at Ottawa's doorstep — is a claim by Lone Pine Resources, which won licences to look for oil and gas de- posits with a view to fracking in the Trois- Rivières area in 2011 only to have the Quebec government cancel them in bow- ing to public pressure. It is suing for US$115 million on the grounds the cancellation was "arbitrary, capricious and illegal." In six cases where compensation was made, Canada paid out about $165 million, though there are many more millions pending in cases where fault has been found but no figure yet set. Of those six, the matter of St. Marys Cement is illumi- nating. The company tried to open a Hamilton, Ont.-area quarry in 2007 but ran into lo- cal opposition. The David Pe- terson government, St. Marys alleged in its 2011 Chapter 11 claim, was so desperate to retain the Ancaster-Dun- das-Flamborough-Westdale seat that it used a Ministerial Zoning Order to block the project citing, and here's the interest- ing part, dubious concerns for the water supply source. Canada paid out $15 million in com- pensation after St Marys withdrew its claim in 2013 to settle. Sound familiar? WindShare thinks so. More so, in 2011, the Liberals cancelled plans for two gas-fired power plants be- cause of local opposition and the desper- ate need to save seats in that fall's election. That piece of political pragmatism cost $1.1 billion and has since led to criminal charges against McGuinty's former chief of staff, David Livingston, and deputy chief Laura Miller over allegations key e-mails and other documents relating to the decisions and the costs were system- atically deleted to obscure the paper trail. Where there's smoke there's fire and WindShare alleges the more anti-wind — and specifically anti-offshore wind — forc- es grew, the more the government backed down. Further, WindShare claims, those deleted e-mails likely covered up more than just gas plant cancellations. Isolated cases? Nope. Still to be heard in Ontario Superior Court is Trillium Power Wind Corporation's $500-million suit against the province claiming it too was bulldozed by the hastily announced moratorium on offshore wind. Not sur- prisingly, it's also claiming those deleted e-mails and records amount to "malfea- sance in public office." Talk about similar fact and circum- stantial evidence. While none of the evi- dence or testimony has been weighed and challenged here, on the surface, the chain of events is hardly surprising. Make a de- cision for political gains and then find the evidence to support it. It's a triumph of political pandering over good governance and leadership. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Queen's Park Ian Harvey

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