2016-04-02 NAFTA Chapter 11: Tribunal rules against Texas oil tycoon T. Boone Pickens in lawsuit over Ontario wind farms

In what sources say was a split decision, the tribunal confirmed Canada complied with its obligations under the North American Free Trade Agreement.

The decision left a spokesperson for Ontario Energy Minister Bob Chiarelli boasting that Ontario is a global leader in clean energy development. He said Ontario will continue to work with the federal government as it considers the tribunal’s decision and next steps.

T. Boone Pickens had sued under Chapter 11 of NAFTA, claiming damages of $653 million plus interest after his company, Mesa Power Group LLC, lost out in its bid to build four massive wind farms north of London.

Mesa said it would have spent $1.2 billion in Ontario.

The tribunal, in the decision released Friday, decided Pickens’ company should pay for all of the arbitration costs. It also awarded the Canadian government $2.9 million for legal costs.

Chiarelli’s offiice released a statement welcoming the tribunal’s decision.

“We have attracted new and innovative Ontario-based companies to produce renewable energy in the province, creating 42,000 jobs with more than 30 solar and wind manufacturers operating in Ontario,” the statement said.

In a statement also welcoming the decision, the federal government noted it had worked closely with Ontario throughout the proceedings.

“The Government of Canada welcomed this open and collaborative approach,” the federal statement said.

Mesa, in a statement, said it was disappointed by the tribunal’s decision “not to hold the Government of Ontario accountable for conducting an unfair competition for the awarding of renewable energy contracts under the province’s feed-in tariff (FIT) program in 2011.”

“While we respect the tribunal and its process, we do think they got this one wrong,” said Cole Robertson of Mesa Power.

“We are reviewing the decision, and the dissenting opinion, and will be evaluating our options.”

Mesa said that despite the decision, it looks forward to doing business in Canada.

“Mesa believes that Canada-US energy co-operation continues to be important for both economies,” it said.

In their tribunal submission, lawyers for Pickens alleged his company had been treated unfairly.

“The Mesa story is a story of a secret process, secret deals, arbitrary rules and selective enforcement of those rules in the service of political expediency, rather than public integrity and transparency that the ratepayers of Ontario deserve and that those proponents who would come here should expect,” Mesa lawyer Barry Appleton said in his closing submission to the panel’s three arbitrators at a hearing in Toronto in October 2014.

The lawsuit was launched in 2011 under NAFTA.

It alleged that other wind farm companies, Florida-based NextEra Energy and Korean-based industrial giant Samsung, were given illegal, preferential treatment and inside information that doomed Mesa’s projects.

“It was a cesspool. It was shameful. I feel very badly after seeing what went on here for my fellow Ontarians and the ratepayers of Ontario. They are having to bear the burden of the shameful behaviour,” Appleton said in a transcript from the hearing.

In its response, the Canadian government dismissed the claims, telling the tribunal Mesa failed to win contracts because of sloppy work.

“The claimant’s questions and its allegations this morning have been loaded with innuendo about corruption, about political cronyism, about, in their slide (show), bags of money being paid for favours. Those are serious allegations against government in Canada. They should not be made lightly, and there is no evidence to support them,” Canada’s lead lawyer, Shane Spelliscy, said at the Toronto hearings.

Spelliscy said Mesa’s failures were self-inflicted.

“This is a case which is, as the expression goes, about sour grapes. It is a case about an investor who took a business risk and is unwilling to accept that risk did not pay off,” he said.