Rewrit­ing the past

The Gulf News (Port aux Basques) - - Editorial -

Gov­ern­ments have tried it be­fore, with lim­ited suc­cess — ar­bi­trar­ily chang­ing the terms of con­tracts with the pri­vate sec­tor. Some­times, the so­lu­tions sound ab­so­lutely ridicu­lous: faced with a court de­ci­sion that a liquor levy was im­prop­erly im­ple­mented and had to be paid back, the pro­vin­cial gov­ern­ment in New­found­land and Labrador ac­tu­ally wrote new law, and turned back the clock, pro­claim­ing the leg­is­la­tion to have come into ef­fect years be­fore it was writ­ten. Leg­is­la­tors passed the bill in 2008, but deemed it to have come into ef­fect years ear­lier, in 2001. With a stroke of a leg­isla­tive pen, the gov­ern­ment ex­tin­guished its own li­a­bil­ity.

Fast for­ward to to­day, and the new On­tario ad­min­is­tra­tion of Pre­mier Doug Ford.

The new gov­ern­ment has an­nounced that it will can­cel a wind project known as White Pines. The own­ers of the project, wpd Canada Inc., say the can­cel­la­tion will cost ratepay­ers $100 mil­lion.

It’s just one of 758 re­new­able en­ergy projects that the Ford gov­ern­ment is plan­ning to wind down or back out of.

But the gov­ern­ment in­sists that reneg­ing on the con­tracts will have no im­pact on ratepay­ers or tax­pay­ers.

Gov­ern­ment House Leader Todd Smith says the new gov­ern­ment plans to write their way out of that risk, craft­ing leg­is­la­tion to ex­tin­guish any pro­vin­cial li­a­bil­ity for their ac­tions.

“All of the de­tails are go­ing to be avail­able when the leg­is­la­tion comes out. … (This) is go­ing to be a leg­is­lated end to this con­tract and the gov­ern­ment holds that power to leg­is­late the end to this con­tract,” Smith told re­porters. “What it does is im­mu­nize the prov­ince from any kind of do­mes­tic lit­i­ga­tion.”

It’s re­cently be­come pop­u­lar for gov­ern­ments, from the pres­i­dent of the United States on down, to spend the first part of an ad­min­is­tra­tion un­do­ing the work of pre­ced­ing gov­ern­ments; find the things that ran­kled dur­ing the cam­paign, and make a great show of un­rav­el­ling them.

But is it a good idea to use the full power of the leg­is­la­ture to in­su­late gov­ern­ments for the costs of their ac­tions? Even if you are the duly elected gov­ern­ment, should you be able to “im­mu­nize” your­self from lit­i­ga­tion?

Bad faith is bad faith, no mat­ter how many bills you ink to jus­tify your be­hav­iour.

The end may be pro­tect­ing ratepay­ers or tax­pay­ers, but the means aren’t jus­ti­fied by that.

Faced with such ac­tions, as a busi­ness, do you just stop con­tract­ing with gov­ern­ment, or do you build in a way to pro­tect your­self — ei­ther through higher fees, or though in­sist­ing that fu­ture con­tracts carry an ex­plicit rider ex­empt­ing them from leg­isla­tive sec­ond thoughts?

Us­ing twists and turns in law to go back on your word and do what you can’t do oth­er­wise is bad prac­tice. You don’t get a “get-out-of-bad­deals-free” card.

Let’s hope it doesn’t catch on.

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