Windstream Energy awarded $28 million in damages and costs for inequitable treatment by Ontario; largest NAFTA award against Canada
An arbitral tribunal appointed under the NAFTA found that the Government of Ontario treated Windstream Energy LLC’s (Windstream) investments in Canada unfairly and inequitably under NAFTA after it placed a moratorium on offshore wind farms in 2011. This moratorium directly frustrated the $5.2 billion contract for a 300 MW offshore wind power project that Windstream signed with the Ontario Power Authority.
The tribunal ruled that the Government of Ontario “on the whole did relatively little to address the scientific uncertainty surrounding offshore wind that it relied upon as the main publicly cited reason for the moratorium.” Further, it “did little to address the legal and contractual limbo in which Windstream found itself after the imposition of the moratorium.”
The tribunal awarded Windstream damages of $25,182,900 and $2,912,432 in legal costs, the largest ever NAFTA damages and cost award against Canada.
The tribunal declared that the contract is formally “in force” and has not been unilaterally terminated by the Government of Ontario.
“Windstream responded to the Ontario government’s call for renewable power and jobs, and entered into a contract with the Ontario government in good faith in August 2010,” said David Mars, Director of Windstream Energy LLC. “This award is an appropriate first step at remedying the challenges we have faced. We look forward to working with the Government of Ontario to build this project in accordance with the contract.”