Past Activities
Lawsuit Overview:
In September 2002, BC Citizens for Public Power launched a class action lawsuit to protect British Columbians from the provincial government's move to privatize BC Hydro. Jack Nichol, a retired union leader, and Lyndsay Poaps a young community activist, initiated the action as representative plaintiffs. And, following a process of court certification, a class action was brought forward on behalf of BC residents, specifically, BC Hydro customers and taxpayers.
The lawsuit represented an organized, collective response to the BC government for breaking its 2001 election promise concerning BC Hydro. While campaigning for the provincial leadership, then Liberal MLA Gordon Campbell stated emphatically that this vital Crown Corporation would remain in public hands:
I want to be clear that BC Hydro belongs to the people of British Columbia and we believe it should remain that way. BC Liberals will not sell BC Hydro. A BC Liberal government will not sell or privatize BC Hydro's dams, transmission lines, water resources or other core assets. These are public assets and they will remain as such.
- Gordon Campbell
Editorial, Vancouver Sun, March 1, 2001 pg. A17
BC Hydro had operated effectively for British Columbians for decades, providing the third lowest electricity rates in North America and a customer satisfaction rating in the 80 - 90% range. Further, BC Hydro was in an excellent financial position. The Crown Corporation had paid down over a billion dollars in long-term debt and held a credit rating of AAA. Profits generated from BC Hydro were typically invested into essential social services and programs for British Columbians: from constructing roads to subsidizing our healthcare system.
In this context particularly, the move to privatize BC Hydro seemed all the more outrageous. The first dramatic change introduced by the Liberal government involved a transfer of over one-third of BC Hydro's operations to the Bermuda-based company, Accenture, without the opportunity for public input or scrutiny. Specifically, the class action lawsuit aimed to reverse this action and eradicate the 10 year agreement established between BC Hydro and Accenture.
The class action lawsuit claimed that:
(a) the government and BC Hydro were in breach of their fiduciary responsibility to the taxpayers and ratepayers of BC;
(b) the sale of BC Hydro constituted a breach of contract to those who have invested in BC Hydro, and;
(c) the sale of BC Hydro further constituted a case of unjust enrichment, since the citizens of BC had built BC Hydro, no private company, nor BC Hydro itself should be permitted to profit at the expense of taxpayers and customers.
The class action attracted considerable public interest: more than 75,000 signed Letters of Intent by individual British Columbians; generous and ongoing financial support toward associated legal costs from organizations, groups, and over 20,000 BC residents; animated discussion and debate in the provincial Legislature; as well as significant media attention.
BC Citizens for Public Power and its supporters were confident that we could win this lawsuit. There were previous court cases and rulings in BC, and elsewhere in Canada, demonstrating that fiduciary responsibility and the obligations of corporations to their shareholders, and of governments to their citizens, were enforceable in a court of law.
Ultimately, however, our hopes of taking the province to BC Supreme Court over what we considered to be the illegal privatization of BC Hydro were dashed, first when the government passed Bill 10, the Energy and Mines Statutes Amendment Act in February 2003, and then Bill 39, the Transmission Corporation Act, in May 2003.
This draconian legislation took away some of the basis for our lawsuit, and Section 3 of Bill 39 astoundingly included the phrase that the new Bill would apply "despite the common law": a blatant move to exempt the legislation from challenges in court.
Moreover, the same section also stipulated that BC Hydro and the BC Transmission Corporation "are deemed to have all approvals, authorizations, permits, certificates, exemptions or orders that, under the Utilities Commission Act, are or may be required," thereby preventing the BC Utilities Commission from scrutinizing or approving the creation of the Transmission Corporation. Bill 39 also overruled the BC Labour Relations Board as well as existing Collective Agreements with Hydro unions.
These legislative blows were exacerbated when a Supreme Court Charter challenge, brought forward by COPE 378 in response to Bill 10, also failed.
In the end, the mounting costs of the court case and the potential financial liability facing BC Citizens for Public Power became too large to bear. Upon advice of legal counsel, we discontinued the class action.
"It has been a bitter decision for BC Citizens for Public Power to have to make and it will be bitter news for our many supporters, but we have decided to continue our fight in the court of public opinion instead of the law courts and we are intent on winning," BCCPP President Michelle Laurie said in a Media Release issued on June 16, 2006.
Regardless of the outcome, however, the class action lawsuit pursued by BC Citizens for Public Power stimulated broad public debate and placed considerable pressure on the government to reverse its decision.
But the fight to save public power in British Columbia is not over. The provincial Liberal government still intends to have a full 40% of our electrical power supply to come from private power producers by 2020; BC Hydro services are being redirected to private companies and this will inevitably result in skyrocketing rates for residential ratepayers. In addition, more than 500 licenses for private run-of-river power projects have been issued by the BC government; and, in spite of their commitment to generate only "clean" and "green" sources of energy, huge construction projects are devastating BC's precious natural resources, destroying forests, fish, and wildlife in remote and rural communities throughout the province.
There remains much work ahead.