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PCA Case No. 2016-13

IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN OF
THE NORTH AMERICAN FREE TRADE AGREEMENT AND
THE 1976 UNCITRAL ARBITRATION RULES

between

RESOLUTE FOREST PRODUCTS INC.

and

GOVERNMENT OF CANADA

FINAL AWARD

July 25, 2022

Arbitral Tribunal:
Professor Bernard Hanotiau (Presiding Arbitrator)
Dean Ronald A. Cass
Professor Céline Lévesque

Registry:
Permanent Court of Arbitration
Ms. Ashwita Ambast, Tribunal Secretary

PCA 388180

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LIST OF DEFINED TERMS

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I. INTRODUCTION

A. THE PARTIES

1. The Claimant in this arbitration is Resolute Forest Products Inc., a corporation incorporated in the State of Delaware, United States of America (the “Claimant” or “Resolute”). The Claimant’s address is 1209 Orange Street, Wilmington, Delaware 19801, United States of America.

2. The Claimant brings this arbitration as an investor on its own behalf and on behalf of Resolute FP Canada Inc., a corporation incorporated in Canada that is directly owned and controlled by the Claimant. The address of Resolute FP Canada Inc. is 1010 Rue De La Gauchetière O Suite 400, Montréal, QC H3B 2N2, Canada.

3. The Claimant is represented in these proceedings by:

Mr. Elliot J. Feldman
Mr. Michael S. Snarr
Mr. Paul M. Levine
BAKER & HOSTETLER LLP

Mr. Martin J. Valasek
Ms. Jenna Anne de Jong
NORTON ROSE FULBRIGHT CANADA LLP

Ms. Stéphanie Leclaire, Senior Vice President, Corporate Affairs and
Chief Legal Officer
Mr. Jacques Vachon, Special Advisor to the President and CEO
Mr. Jean-Christophe Martel, Senior Legal Counsel
RESOLUTE FOREST PRODUCTS INC.

4. The Respondent in this arbitration is the Government of Canada (“Canada” or the “Respondent”). The Respondent is represented in these proceedings by:

Mr. Mark A. Luz, General Counsel
Mr. Rodney Neufeld, Senior Counsel
Mr. Azeem Manghat, Counsel
Mr. Stefan Kuuskne, Counsel
Mr. Dmytro Galagan, Counsel
Ms. Annie Ouellet, Counsel (until July 2021)
Ms. Michelle Hoffmann, Counsel (until November 2019)

Canada was also assisted in this arbitration by the following paralegals:
Ms. Karolina Grzanka, Ms. Shawna Lesaux (until December 2021) and

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Ms. Darian Bakelaar (until December 2021).

B. OVERVIEW OF THE DISPUTE

5. A dispute has arisen between the Claimant and Canada in respect of which the Claimant commenced arbitration pursuant to Chapter 11 of the North American Free Trade Agreement (“NAFTA”).

6. This dispute concerns the Claimant’s investment in the following supercalendered paper (“SC Paper”) mills in Québec, Canada: the Laurentide mill, the Dolbeau Mill, and the Kénogami Mill. The Claimant argues that the Government of Nova Scotia (“GNS”) granted Pacific West Commercial Corporation (“PWCC”) (the new owner of the Port Hawkesbury mill (the “PHP Mill”), following a court-sanctioned process of arrangement with creditors) a package of assistance measures in 2012 (the “Nova Scotia Measures” or “Assistance Measures”) “to assure the reopening of PHP as ‘the lowest cost producer’ in North America”.¹ According to the Claimant, the Assistance Measures are attributable to GNS (and, therefore, to Canada) under international law and constitute a violation of the national treatment standard (NAFTA Article 1102) and the minimum standard of treatment (NAFTA Article 1105).² The Claimant argues that, with the benefit of the Assistance Measures, the PHP Mill was able to restart operations and add significant capacity to an SC Paper market in secular decline, which had negative effects on Resolute’s prices and shipments.³ According to the Claimant, GNS thereby knowingly caused Resolute “substantial, accelerated economic damages”.⁴

7. The Claimant claims compensation in the amount of at least US$121.4 million for profits lost due to price erosion (the Claimant arrives at US$126 million using a forecasting approach and US$121.4 million using a price-elasticity approach, and asks to be awarded the lower sum, “consistent with Resolute’s overall conservative approach to damages”).⁵ It also requests an award “for its costs and fees of this arbitration”.⁶

8. In the first phase of this arbitration, the Respondent argued that the Claimant’s allegations in respect of the measures taken by GNS were time-barred under NAFTA Articles 1116(2) and

¹ Claimant’s Pre-Hearing Memorial, at para 2 [emphasis in original]. ↩
² A claim for breach of Article 1110 (Expropriation and Compensation) was abandoned by the Claimant in its Memorial at para. 14. See also Jurisdiction Decision, at paras 312-314. ↩
³ Claimant’s Pre-Hearing Memorial, at para 92. ↩
⁴ Claimant’s Pre-Hearing Memorial, at para 1. ↩
⁵ Claimant’s Pre-Hearing Memorial, at para 109. The Claimant’s original request was for US$163,695,000 (Claimant’s Memorial, at para 310), modified to US$ 103,967,000 in its Reply (Claimant’s Reply Memorial, at para 397). ↩
⁶ Hearing on the Merits and Damages, October 18, 2021, Claimant’s Opening Argument, at 104. ↩

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1117(2) (the “Time-Bar Objection”). Alternatively, the Respondent argued that the Nova Scotia-related claims fell outside the scope of application of NAFTA under Article 1101(1) (the “Scope Objection”) and that the Claimant’s national treatment claims were inadmissible under NAFTA Article 1102(3) (the “Provincial Treatment Objection”). The Tribunal also considered whether it had jurisdiction over the Article 1110 claim of expropriation of the Laurentide Mill under the Oil Platforms test. Finally, the Respondent also submitted that the Tribunal lacked jurisdiction in respect of the Nova Scotia Measures insofar as they relate to taxation measures implemented by GNS (the “Taxation Measures Objection”).

9. The Tribunal issued its Decision on Jurisdiction and Admissibility on January 30, 2018 (the “Jurisdiction Decision”). In the Jurisdiction Decision, the Tribunal rejected the Time-Bar Objection.⁷ The Tribunal also rejected the Scope Objection, except with respect to interim measures taken by the Respondent to keep the PHP Mill in operation prior to its sale in September 2012, which the Tribunal found it had no jurisdiction over.⁸ The Tribunal rejected the Provincial Treatment Objection based on Article 1102(3), while at the same time noting that in the first phase of the proceedings the Tribunal was not called upon to discuss the application of the “like circumstances” test, nor the meaning of “treatment” in Article 1102.⁹ In the Jurisdiction Decision, the Tribunal expressed the view that the Claimant’s Article 1110 claim for expropriation of the Laurentide Mill faced “considerable difficulties, even assuming the facts as pleaded”, but nevertheless considered that the claim should not be dismissed at the preliminary stage.¹⁰ The Article 1110 claim was later abandoned by the Claimant.¹¹ Finally, with respect to the Taxation Measures Objection, the Tribunal found that taxation measures are “simply not covered by NAFTA except as provided in Article 2103, and there is no relevant exception here”.¹² Thus, even if the present claim fell within the jurisdiction of the Tribunal and was otherwise admissible, “it could not include any aspect of Nova Scotia’s conduct covered by the taxation measures exemption in Article 2103”.¹³

10. In addition to the arguments on jurisdiction and admissibility dealt with in the first phase of the arbitration, the Respondent has also raised objections to the Tribunal’s jurisdiction relating to the measures taken by Canada in respect to the investigation by the United States Department of Commerce (“US DOC”) in relation to the Canadian SC Paper industry. The Parties had agreed

⁷ Jurisdiction Decision, at para 179. ↩
⁸ Jurisdiction Decision, at paras 243-248, 330. ↩
⁹ Jurisdiction Decision, at paras 290-292. ↩
¹⁰ Jurisdiction Decision, at paras 312-314. ↩
¹¹ Claimant’s Memorial, at para 14. ↩
¹² Jurisdiction Decision, at para 328. ↩
¹³ Jurisdiction Decision, at para 329. ↩

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that those objections would be dealt with in this merits phase of the arbitration.¹⁴ The Claimant has abandoned this claim at the merits phase of this arbitration.¹⁵

¹⁴ Jurisdiction Decision, at para 10. ↩
¹⁵ Claimant’s Memorial, at para 152. ↩

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II. PROCEDURAL HISTORY

11. Part II of the Jurisdiction Decision recounts in detail the procedural history of this arbitration up until January 30, 2018. The Procedural History in the present Award recalls only the key details from the first phase of the case and sets out relevant procedural developments since the issuance of the Jurisdiction Decision.

A. SUMMARY OF THE FIRST PHASE OF THE ARBITRATION

12. On December 30, 2015, the Claimant served on Canada its Notice of Arbitration (“Notice of Arbitration”) and Statement of Claim (“Statement of Claim”) under NAFTA Chapter 11. Pursuant to NAFTA Article 1120(1)(c), the Claimant also indicated its election to proceed with the arbitration pursuant to Article 3 of the United Nations Commission on International Trade Law Arbitration Rules of 1976 (“UNCITRAL Rules”).

13. Pursuant to UNCITRAL Rules Article 7 and NAFTA Article 1123, the Tribunal was constituted in May 2016. The Tribunal was originally composed of Dean Ronald A. Cass, Dean Emeritus of Boston University School of Law and a national of the United States of America, appointed by the Claimant in December 2015; Professor Céline Lévesque, Full Professor, Faculty of Law, Civil Law Section, at the University of Ottawa and a national of Canada, appointed by the Respondent in March 2016; and H.E. Judge James R. Crawford, AC, a judge of the International Court of Justice (“ICJ”) and a national of Australia, appointed as the presiding arbitrator by mutual agreement of the Parties in May 2016.

14. On June 29, 2016, the Tribunal issued Procedural Order No. 1, recording the Parties’ confirmation that the Tribunal had been duly constituted in accordance with NAFTA Article 1123, and their agreement that the 1976 version of the UNCITRAL Rules would apply to this arbitration; that the place of arbitration would be Toronto, Ontario; that the languages of the arbitration would be English and French; and that the Permanent Court of Arbitration (“PCA”) would act as registry in relation to this arbitration. Procedural Order No. 1 also set out procedural rules and a date for Canada to file its Statement of Defence (“Statement of Defence”).

15. In accordance with the schedule set in Procedural Order No. 1, on September 1, 2016, the Respondent filed its Statement of Defence and accompanying documents, followed by a request for bifurcation on September 29, 2016.

16. On October 14, 2016, the Tribunal issued Procedural Order No. 2 dealing with document production. On the same date, the Tribunal issued a Confidentiality Order (“Confidentiality

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Order”), which the Parties signed on October 27, 2016. The Confidentiality Order established a procedure by which a Party could designate as Restricted Access Information and Confidential Information documents exchanged in document production, written submissions, transcripts, orders, and awards.

17. On November 3, 2016, the Tribunal issued Procedural Order No. 3, setting out alternative schedules for submissions with respect to the Respondent’s motion for bifurcation and subsequent pleadings, with Schedule A reflecting bifurcated proceedings and Schedule B reflecting non-bifurcated proceedings. The Tribunal set an oral hearing on bifurcation by teleconference for November 7, 2016.

18. On November 18, 2016, the Tribunal issued Procedural Order No. 4, by which the Tribunal decided to bifurcate these proceedings for the purpose of hearing the Respondent’s objections to jurisdiction and admissibility under NAFTA Articles 1116(2), 1117(2), 1101(1), 1102(3) and 2103(6) as preliminary questions. Having decided to bifurcate the proceedings, the Tribunal also adopted Schedule A of Procedural Order No. 3.

19. On December 12, 2016, the Tribunal issued Procedural Order No. 5 setting out a revised schedule for the jurisdictional phase of the proceedings.

20. From December 2016 to May 2017, the Parties exchanged written memorials on jurisdiction and admissibility. The Respondent submitted the Memorial on Jurisdiction on December 22, 2016, and the Reply Memorial on Jurisdiction on March 29, 2017. The Claimant submitted the Counter-Memorial on Jurisdiction on February 22, 2017 and the Rejoinder Memorial on Jurisdiction on May 3, 2017.

21. The United States of America (“United States”) and the United Mexican States (“Mexico”) submitted Non-Disputing Party Submissions on June 14, 2017, pursuant to NAFTA Article 1128, as to which both Parties filed comments.

22. On June 29, 2017, the Tribunal issued Procedural Order No. 6 rejecting an amici curiae application.

23. Pursuant to Paragraph 22.2 of Procedural Order No. 1, on July 21, 2017, the Tribunal provided a number of questions in writing for the Parties to address in their oral submissions during the Hearing on Jurisdiction and Admissibility.

24. The Hearing on Jurisdiction and Admissibility was held at Arbitration Place in Toronto, Canada

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from August 15 to August 17, 2017. As agreed by the Parties, it was live-streamed on the PCA’s website. No post-hearing briefs were deemed necessary.

25. As noted above, the Tribunal issued its Jurisdiction Decision on January 30, 2018.

B. MERITS PHASE

26. In accordance with Procedural Order No. 3 and the Jurisdiction Decision,¹⁶ the Tribunal invited the Parties to confer regarding a schedule for the merits phase.

27. On March 16, 2018, the Parties communicated to the Tribunal that they had agreed on a schedule for the merits and damages phase incorporating two rounds of simultaneous document production. The Parties informed the Tribunal that they had agreed to this procedure with the understanding that the second document production should be narrow and tailored. They further agreed that each request should be the consequence of the pleadings and should identify with precision a statement, claim, or argument in the other Party’s pleading that warrants further discovery or additional documents.

28. The Tribunal agreed to the schedule proposed by the Parties in Procedural Order No. 7 of March 23, 2018. On the joint proposal of the Parties submitted on July 24, 2018, the Tribunal approved a revised procedural schedule in Procedural Order No. 8 of August 15, 2018. The revised schedule only amended the previous timeframes for the submission of written memorials and documents, but not the principles underlying their production.

C. FIRST ROUND OF DOCUMENT PRODUCTION AND EXCHANGE OF WRITTEN PLEADINGS

29. On July 20, 2018, in accordance with the timeline set out in Procedural Order No. 7, the Parties exchanged the requested undisputed documents.

30. On July 27, 2018, the Parties submitted their Redfern Schedules for disputed requests. The Redfern Schedules included 17 disputed requests of the Claimant and 30 disputed requests of the Respondent.

31. In Procedural Order No. 9 of August 21, 2018, the Tribunal granted 8 requests made by the Claimant¹⁷ and 8 requests made by the Respondent¹⁸ for disclosure of certain documents and

¹⁶ Jurisdiction Decision, at para 330. ↩
¹⁷ Procedural Order No. 9, Claimant’s Redfern Schedule, Documents No. 7, 9, 10, 16, 18, 19, 21, 31. ↩
¹⁸ Procedural Order No. 9, Respondent’s Redfern Schedule, Documents No. 2(b), 2(c), 6, 17, 30, 31, 32, 33. ↩

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information, ordering the Parties to produce the indicated documents to the other Party by September 28, 2018. The Tribunal also rejected on various grounds 8 document requests of the Claimant¹⁹ and 7 on the part of the Respondent.²⁰ These requests and objections were rejected for being insufficiently specific. The Tribunal clarified that, in the following round of document production, the Parties could amend and resubmit these requests to meet the specificity requirements.

32. In Procedural Order No. 9, the Tribunal also noted that the Respondent had indicated possible objections to the production of certain documents the Claimant could ultimately request on the ground of cabinet privilege or institutional sensitivity, as protected under Article 9.2 of the IBA Rules on the Taking of Evidence in International Arbitration. The Tribunal did not make any findings as to these possible objections, determining that it would assess such requests individually should they manifest.

D. SECOND ROUND OF DOCUMENT PRODUCTION AND EXCHANGE OF WRITTEN PLEADINGS

33. According to the schedule set out in Procedural Order No. 8, the Claimant was to file its Memorial on Merits and Damages by November 29, 2018. However, the Parties agreed and received authorization by the Tribunal to extend this deadline by one month. The Claimant submitted its Memorial (“Claimant’s Memorial”) on December 28, 2018.

34. Thereafter, the Tribunal invited the Parties to consult on a revised schedule for submission of subsequent pleadings and for document production. On February 14, 2019, the Parties informed the Tribunal of their agreement on a revised schedule for the remainder of the proceedings. On February 19, 2019, the Tribunal approved the revised schedule in Procedural Order No. 10.

35. In accordance with the schedule set in Procedural Order No. 10, on April 17, 2019, the Respondent submitted its Counter-Memorial on the Merits and Damages (“Respondent’s Counter-Memorial”).

36. Following this submission, on April 30, 2019, the Parties exchanged additional requests for document production. In accordance with the Tribunal’s order in Procedural Order No. 10, the Parties were permitted only to submit requests arising directly out of statements or claims presented in the submitted pleadings. In the months that followed, the Parties filed their objections

¹⁹ Procedural Order No. 9, Claimant’s Redfern Schedule, Documents No. 4, 12, 13, 14, 17, 22, 25, 33. ↩
²⁰ Procedural Order No. 9, Respondent’s Redfern Schedule, Documents No. 7, 8, 9, 15, 16, 16(b), 16(c). ↩

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and exchanged undisputed documents.

37. On June 18, 2019, the Parties submitted their Redfern Schedules for disputed document requests, in accordance with the schedule set in Procedural Order No. 10.

38. On July 9, 2019, the Tribunal issued Procedural Order No. 11, directing the Parties to produce certain requested documents or information by July 31, 2019. The Tribunal denied 5,²¹ partially granted 2,²² and granted 5 requests by the Claimant,²³ but for some²⁴ permitted the Respondent to redact information that it could show required protection. The Tribunal denied 1 request by the Respondent.²⁵ The Tribunal reserved its decision on 2 document requests by the Claimant²⁶ and 2 document requests by the Respondent until July 17, 2019.²⁷ Additionally, the Tribunal invited the Claimant to amend 1 request²⁸ and the Respondent to amend 1 request²⁹ by July 17, 2019, as it considered these overbroad.

39. On December 6, 2019, the Claimant filed its Reply Memorial on Merits and Damages (“Claimant’s Reply Memorial”). On the same date, by letter to the Respondent, the Claimant raised objections to the Respondent’s determination of numerous documents as Restricted Access Information pursuant to the mechanism provided in the Confidentiality Order. The Restricted Access designation permits only the Parties’ counsel, and not the Parties themselves, to see such documents, which, the Claimant contended, impeded its ability to direct or advise its counsel with respect to arguments before the Tribunal.

40. On January 17, 2020, by letter to the Tribunal, the Claimant sought a re-designation of exhibits C-182, C-195, R-146, and R-161 (the “Four Exhibits”) as Confidential, rather than Restricted Access. On January 23, 2020, the Respondent submitted its response to the Claimant’s objections, to which the Claimant further commented on January 28, 2020.

41. On February 17, 2020, the Tribunal issued Procedural Order No. 13, deciding not to amend the Restricted Access designation of the Four Exhibits. The Tribunal noted that the Claimant’s application for the change was belated and determined that the Claimant’s ability to direct the

²¹ Procedural Order No. 11, Claimant’s Redfern Schedule, Documents No. 16, 17, 18, 21, 22. ↩
²² Procedural Order No. 11, Claimant’s Redfern Schedule, Documents No. 24, 28. ↩
²³ Procedural Order No. 11, Claimant’s Redfern Schedule, Documents No. 5, 23, 25, 26, 27. ↩
²⁴ Procedural Order No. 11, Claimant’s Redfern Schedule, Documents No. 5, 26, 27. ↩
²⁵ Procedural Order No. 11, Respondent’s Redfern Schedule, Document No. 14. ↩
²⁶ Procedural Order No. 11, Claimant’s Redfern Schedule, Documents No. 1, 2. ↩
²⁷ Procedural Order No. 11, Respondent’s Redfern Schedule, Documents No. 15, 19. ↩
²⁸ Procedural Order No. 11, Claimant’s Redfern Schedule, Document No. 14. ↩
²⁹ Procedural Order No. 11, Respondent’s Redfern Schedule, Document No. 10. ↩

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arguments of its case was not unduly impeded by the Restricted Access designation.

42. The Respondent submitted its Rejoinder Memorial on the Merits and Damages (“Respondent’s Rejoinder Memorial”) on March 4, 2020.

E. ARTICLE 1128 SUBMISSIONS

43. On March 9, 2020, the PCA published a Notification to Non-Disputing Parties for Article 1128 Submissions and potential Amici Curiae Submissions.

44. On April 1, 2020, the PCA published an amended Notification to Non-Disputing Parties for Article 1128 Submissions and potential Amici Curiae Submissions, extending the filing deadline to April 24, 2020.

45. In accordance with the amended Notification, on April 20, 2020 the Government of the United States submitted its Second Article 1128 Submission (“United States Submission”). On April 23, 2020, the Government of Mexico filed its Second Article 1128 Submission (“Mexico Submission”).

46. On May 8, 2020, the Parties filed their replies to the Non-Disputing Parties’ Article 1128 Submissions (“Claimant’s Reply to Article 1128 Submissions” and “Respondent’s Reply to Article 1128 Submissions”).

F. HEARING ON THE MERITS AND DAMAGES

47. On March 31, 2020, the Parties informed the Tribunal of their intention to reschedule the Hearing on the Merits and Damages (then scheduled for the week of May 18, 2020) in light of prevailing global health and travel restrictions. On April 9, 2020, the Tribunal proposed that the hearing take place from July 26-30, 2020. Upon being advised that the Claimant was unavailable on the proposed dates, on April 21, 2020, the Tribunal proposed that the hearing take place from November 2-6, 2020, the next window during which all Tribunal members were available. By letter dated April 24, 2020, the Respondent shared its reservations with the November 2020 dates. On April 30, 2020, the Tribunal sought the Parties’ availability for a hearing during revised dates in July 2020. On April 30, 2020, the Claimant stated that it was unavailable in the entire month of July. On May 3, 2020, the Tribunal decided to hold the hearing from November 2-6, 2020. On May 7, 2020, the Tribunal issued Procedural Order No. 14 containing a Further Revised Schedule for Merits and Damages Phase. A Further Revised Schedule on the Merits and Damages Phase was issued again on August 24, 2020, in Procedural Order No. 15. In this order, the hearing dates

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were fixed as November 9-13, 2020 and it was noted that the Parties agreed that the hearing be held by video-conference on account of global health circumstances and restrictions on travel and gatherings.

48. On October 16, 2020, further to Paragraph 22.2 of Procedural Order No. 1, the Tribunal provided the Parties with a list of questions to address in oral submission at the hearing.

49. On October 21, 2020, a pre-hearing video-conference took place, in which representatives of each Party, the Tribunal, and representatives of Arbitration Place and the PCA participated.

50. At the instruction of the Tribunal and having consulted with the Parties, the PCA issued a Press Release on November 4, 2020 with information for the public live-streaming of the forthcoming hearing.

51. A hearing was held from November 9-14, 2020 (the “2020 Hearing”). The following individuals attended the hearing:

Tribunal

Judge James Crawford
Dean Ron Cass
Professor Céline Lévesque

Claimant’s Counsel

Mr. Elliot Feldman
Mr. Michael Snarr
Mr. Paul Levine
Ms. Analia Gonzalez
Mr. James East
Mr. Ricky Dyer
BakerHostetler

Mr. Martin Valasek
Mr. Jean-Christophe Martel
Ms. Jenna Anne de Jong
Norton Rose Fulbright

Mr. Jacques Vachon
Mr. Richard Garneau
Resolute

Dr. Seth Kaplan

Dr. Jerry Hausman

Mr. Andrew Szamosszegi

Mr. Alex Morrison
Mr. Greg Adams

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Ernst & Young

Respondent

Mr. Mark Luz
Mr. Rodney Neufeld
Ms. Annie Ouellet
Mr. Stefan Kuuskne
Mr. Azeem Manghat
Mr. Dmytro Galagan
Ms. Sylvie Tabet
Ms. Darian Bakelaar
Ms. Karolina Grzanka
Ms. Shamali Gupta
Mr. Vincent Boulanger
Trade Law Bureau

Mr. Thomas Beline
Mr. Andrew Lanouette
Cassidy Levy Kent

Ms. Sara Mahaney
Mr. Ali Galal
Mr. Duff Montgomerie
Mr. David Chow
Mr. Murray Coolican
Government of Nova Scotia

Mr. Timo Suhonen
Mr. Lauri Tenhunen
AFRY/Pöyry

Mr. Peter Steger
Mr. Dan Ross
Cohen Hamilton Steger

Mr. Dan Ross
Mr. John Reynolds
Mr. Jeff Chabot
Mr. Alex Miller
Core Legal

Tribunal Assistant

Professor Freya Baetens

PCA

Ms. Ashwita Ambast
Ms. Gaëlle Chevalier
Mr. Sean Falls
Ms. Emilie de Haas

52. Oral submissions were made on behalf of the Claimant by Mr. Elliot Feldman, Mr. Michael Snarr, Mr. Paul Levine, Mr. Martin Valasek, and Mr. Jean-Christophe Martel and on behalf of the Respondent by Mr. Mark Luz, Mr. Rodney Neufeld, Ms. Annie Ouellet, Mr. Stefan Kuuskne,

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Mr. Azeem Manghat, and Mr. Dmytro Galagan.

53. By letter dated November 22, 2020, the Tribunal inter alia established a schedule for the correction of transcripts and for costs submissions and invited the Parties to provide comments on the necessity, timing, and form of any post-hearing briefs. On November 25, 2020, the Parties confirmed that post-hearing briefs were not necessary.

54. On January 7, 2021, the Parties jointly submitted their corrections to the transcript of the 2020 Hearing, which corrections the Tribunal approved on January 13, 2021.

55. On February 3, 2021, the Parties submitted their costs submissions.

G. RECONSTITUTION OF THE TRIBUNAL AND REPEATED HEARING

56. On May 31, 2021, Judge James R. Crawford passed away.

57. On August 10, 2021, pursuant to an appointment procedure agreed by the Parties, Professor Bernard Hanotiau was appointed as the Presiding Arbitrator.

58. On September 23, 2021, a case management conference was organised, which was attended by the reconstituted Tribunal, the Parties, and the PCA.

59. On October 14, 2021, the Parties exchanged Pre-Hearing Memorials (the “Claimant’s Pre-Hearing Memorial” and “Respondent’s Pre-Hearing Memorial”).

60. Pursuant to UNCITRAL Rules Article 14 and the agreement of the Parties, a hearing on the merits and damages was held by video-conference on October 18-19, 2021 (the “2021 Hearing”). The following individuals attended the hearing:

Tribunal

Professor Bernard Hanotiau
Dean Ron Cass
Professor Céline Lévesque

Claimant’s Counsel

Mr. Elliot Feldman
Mr. Michael Snarr
Mr. Paul Levine
Mr. Ricky Dyer
Mr. Eric Hart
BakerHostetler

Mr. Martin Valasek

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Ms. Jenna Anne de Jong
Norton Rose Fulbright

Mr. Jacques Vachon
Mr. Jean-Christophe Martel
Resolute

Dr. Seth Kaplan

Respondent

Mr. Mark Luz
Mr. Rodney Neufeld
Mr. Stefan Kuuskne
Mr. Azeem Manghat
Mr. Dmytro Galagan
Ms. Sylvie Tabet
Ms. Karolina Grzanka
Ms. Shawna Davon Lupika
Mr. Vincent Boulanger
Mr. Ivan Bodnar
Trade Law Bureau

Ms. Sara Mahaney
Mr. Ali Galal
Government of Nova Scotia

Ms. Thomas Beline
Mr. Andrew Lanouette
Cassidy Levy

Mr. Timo Suhonen
Mr. Lauri Tenhunen
AFRY/Pöyry

Mr. Peter Steger
Mr. Dan Ross
Cohen Hamilton Steger

Mr. Dan Ross
Mr. John Morales
Mr. Alex Miller
Core Legal

President’s Assistant

Mr. Shyam Balakrishnan

PCA

Ms. Ashwita Ambast
Ms. Gaëlle Chevalier

61. On December 15, 2021, the Parties shared their revised costs submissions (the “Claimant’s Revised Costs Submission” and “Respondent’s Revised Costs Submission”, and together the “Revised Cost Submissions”).

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III. FACTUAL BACKGROUND

A. THE SC PAPER INDUSTRY IN NORTH AMERICA

1. SC Paper Producers in Canada and the United States

62. SC Paper is an “uncoated mechanical paper, which is smoothed and compacted by calender rolls”.³⁰ It is a better grade of paper than newsprint and standard uncoated mechanical paper, yet it is considered lower quality than coated mechanical paper. SC Paper is comprised of the following paper grades: SNC, SCB, SCA, SCA+, SCA++, and SCA+++.³¹

63. Competition amongst SC Paper producers in North America is robust.³² There are four SC Paper producers in Canada: Catalyst Paper Corporation (“Catalyst”), Irving Limited (“Irving”), PHP, and Resolute (the only United States-based company in the Canadian SC Paper market).³³ Verso Corporation (“Verso”) and Madison only produced paper in the United States.³⁴ Since the beginning of the proceedings, both Madison and Verso closed, respectively in 2016 and in 2020.³⁵

64. The Parties agree that there has been a secular decline in the demand for SC Paper in North America caused by increased digitalisation.³⁶

(a) Port Hawkesbury Paper

65. PHP, located in the province of Nova Scotia, Canada, produces SC Paper and competes with Resolute in the North American SC Paper market.

66. In 2007, the Mill at Port Hawkesbury was acquired by a United States-based paper company,

³⁰ Claimant’s Memorial, at para 17; Respondent’s Counter-Memorial, at para 140. ↩
³¹ Expert Report of Pöyry, April 16, 2019, at paras 3, 5, 19. ↩
³² Claimant’s Memorial, at para 126, referring to In re Supercalendered Paper from Canada, Inv. No. 701-TA-530, Final Determination, Commission Opinion, United States International Trade Commission, December 2015, at 15, 16, 19 (C-237). ↩
³³ Claimant’s Memorial, at paras 17, 127. ↩
³⁴ Claimant’s Memorial, at para 127. ↩
³⁵ Claimant’s Memorial, at para 127; Hearing on the Merits and Damages, October 18, 2021, at 14:8-12; UPM, Press Release, “UPM closes Madison Paper Industries and plans to sell related hydro power assets in the U.S.”, March 14, 2016, available at: http://www.upm.com/About-us/Newsroom/Releases/Page/UPM-Closes-Madison-Paper-Industries-and-plans-to-sell-related-hydro-power-assets-001-Mon-14-Mar-2016-16-03-en.aspx (R-001). ↩
³⁶ Claimant’s Memorial, at paras 128-129; Respondent’s Counter-Memorial, at para 19; Hearing on the Merits and Damages, November 14, 2020, at 1104:14-18; Hearing on the Merits and Damages, October 18, 2021, at 13:23, 19:14. ↩

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NewPage Corporation and was then operated by the latter’s wholly-owned Canadian subsidiary NewPage Port Hawkesbury (“NPPH”), incorporated in Nova Scotia.³⁷ During the Mill’s ownership by NPPH, it operated under this name.³⁸ NPPH operated two paper machines: a newsprint paper line and a SC Paper machine.³⁹

67. The SC Paper machine at PHP is considered the best quality and most modern SC Paper machine in North America.⁴⁰ It has an annual production capacity that is disputed,⁴¹ but is considered in the range between [Redacted] metric tonnes (“MT”) and 360,000 MT.

68. As of August 2011, the Mill was operating both the newsprint and SC Paper machines with an annual combined production capacity of 545,000 MT.⁴² It directly employed approximately 650 employees,⁴³ and indirectly created many other jobs.⁴⁴

69. In 2012, ownership of the Port Hawkesbury Mill passed to the PWCC, a Canadian company.⁴⁵ Since 2013, under PWCC’s management, the PHP Mill has concentrated its production on higher grades of SC Paper, such as SCA and above.⁴⁶ It also produces SCB Paper.⁴⁷

(b) Resolute Forest Products Inc.

70. Resolute is a company incorporated under the laws of the State of Delaware, United States, created in 2007 through the merger of two forest product companies, the Canadian

³⁷ In re An Application by NewPage Port Hawkesbury Corp. and Bowater Mersey Paper Co., Pre-Filed Evidence of NewPage Port Hawkesbury, NSUARB, June 22, 2011, at 1 (R-165). ↩
³⁸ The Mill is referred to in this Award as “NPPH” when making reference to the Mill during the time it was under NPPH’s ownership. Reference to the Mill as “PHP” pertains to the period of time after ownership passed from NPPH to Pacific West Commercial Corporation in 2012. The Mill is still known as PHP today. ↩
³⁹ Claimant’s Memorial, at para 22. ↩
⁴⁰ CBC News, News Release, “NewPage Port Hawkesbury mill to be sold”, September 7, 2011 (C-115); Nova Scotia Premier’s Office, News Release, “Province Invests in Jobs, Training and ReTooling the Forestry Sector”, August 20, 2012 (C-183). See also Respondent’s Counter-Memorial, at paras 69, 144; Claimant’s Memorial, at para 22. ↩
⁴¹ Claimant’s Memorial, at para 22, referring to In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Tor E. Suther, September 6, 2011, at para 15 (C-112); Respondent’s Counter-Memorial, at para 144, referring to Expert Witness Report of Peter Steger, April 17, 2019, at para 116, [Redacted] (R-446). ↩
⁴² In re An Application by NewPage Port Hawkesbury Corporation and Bowater Mersey Paper Co., Pre-Filed Evidence of NewPage Port Hawkesbury, NSUARB, June 22, 2011, at 1 (R-165); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Tor E. Suther, September 6, 2011, at para 15 (C-112; R-024). ↩
⁴³ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Tor E. Suther, September 6, 2011, at para 15 (C-112; R-024). ↩
⁴⁴ CBC News, News Release, “NewPage Port Hawkesbury to close indefinitely”, August 22, 2011 (R-423). ↩
⁴⁵ Claimant’s Memorial, at para 19. ↩
⁴⁶ Respondent’s Counter-Memorial, at para 146; First Expert Report of Peter Steger, April 18, 2018, at 5. ↩
⁴⁷ Claimant’s Memorial, at para 116. ↩

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Abitibi-Consolidated Inc., and the US Bowater Inc.⁴⁸ The Claimant describes itself as “an integrated forest products company that manufactures a diverse range of wood and paper products, including SC paper”.⁴⁹

71. Resolute’s subsidiary in Canada, Resolute FP Canada, owns three SC Paper mills located in the Canadian province of Québec: the Dolbeau and Kénogami Mills, and the now-defunct Laurentide Mill.⁵⁰ Resolute used to own the Bowater Mersey mill (“Bowater Mersey”), a newsprint mill in the province of Nova Scotia.⁵¹ Bowater Mersey also owned a power plant in Brooklyn, Nova Scotia.⁵² The mill was idled indefinitely in June 2012 due to economic difficulties.⁵³ It was shut down and eventually purchased by GNS in December 2012.⁵⁴

72. [Redacted]⁵⁵ [Redacted]⁵⁶ This [Redacted] was due to Resolute’s more efficient Dolbeau Mill, which reopened in October 2012 (after being idled in June 2009)⁵⁷ with a capacity of approximately 143,000 MT.⁵⁸ The Dolbeau Mill had a larger capacity than the Laurentide Mill, which had a capacity of approximately 125,000 MT.⁵⁹ The SC Paper machine #10 at the Laurentide Mill closed in

⁴⁸ Claimant’s Notice of Arbitration, at para 21; Respondent’s Counter-Memorial, at fn. 25, referring to Resolute Forest Products, “Our History” (R-311). ↩
⁴⁹ Claimant’s Memorial, at para 15, referring to Jurisdiction Decision, at paras 1, 50. ↩
⁵⁰ Claimant’s Memorial, at para 16, referring to Jurisdiction Decision, at para 51. ↩
⁵¹ Respondent’s Counter-Memorial, at para 37, referring to Nova Scotia Department of Economic and Rural Development, “Province Invests in Innovation at Nova Scotia Paper Plant”, September 22, 2009 (R-314); CBC News, News Release, “Mill gets $2.5M for upgrade from N.S. government”, September 22, 2009 (R-315). ↩
⁵² AbitibiBowater Inc., Annual Report for the Fiscal Year Ended December 31, 2011, at 4, 5 & Exhibit 21.1 (R-241); AbitibiBowater Inc., Annual Report for the Fiscal Year Ended December 31, 2010, at 7-8 (R-313); In re An Application by NewPage-Port Hawkesbury Corp. and Bowater Mersey Paper Co., Pre-Filed Evidence of Bowater Mersey Paper Company Limited, NSUARB, June 22, 2011, at 1 (R-166). ↩
⁵³ Resolute Forest Products, News Release, “Resolute to Indefinitely Idle Mersey Mill in Nova Scotia”, June 15, 2012 (R-153). ↩
⁵⁴ Nova Scotia Premier’s Office, “Province Takes Crucial Step to Build Forestry of Future”, December 10, 2012 (R-155). ↩
⁵⁵ [Redacted] (C-215). ↩
⁵⁶ [Redacted] (C-215). ↩
⁵⁷ The Canadian Press, “AbitibiBowater may restart Dolbeau Mill after workers endorse contract changes”, September 23, 2011 (C-023). ↩
⁵⁸ Claimant’s Memorial, at fn. 200. ↩
⁵⁹ Claimant’s Memorial, at fn. 200. ↩

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November 2012.⁶⁰ The entire Laurentide Mill shut down in October 2014.⁶¹ The Claimant reports that Dolbeau’s reopening “was part of its strategy to lower overall costs in order to retain market share”.⁶²

73. Resolute’s mills produce mainly lower grades of SC Paper, including SNC and SCB.⁶³ The [Redacted]⁶⁴

(c) Other North American Paper Mills

74. In addition to PHP and Resolute, the North American SC Paper market was comprised, at relevant times, of Catalyst, Irving, Verso, formerly NewPage (until 2020),⁶⁵ and Madison (until 2016).⁶⁶ Both Verso and Madison produced SC Paper in the United States.⁶⁷

75. [Redacted]⁶⁸

2. Economic Impact of the Forest Industry in Nova Scotia

76. The province of Nova Scotia is Canada’s second smallest, 75% of which is covered by forests.⁶⁹ The province has developed a pulp and paper mill industry since the early 20^th century, which employs residents of Nova Scotia directly and indirectly through harvesting, silviculture, trucking, and road building.⁷⁰

77. Despite being impacted by the general decline in demand for paper products, in 2015 the forest industry was worth $2.1 billion to Nova Scotia, contributing $800 million to its gross domestic

⁶⁰ Resolute Forest Products, News Release, “Resolute Forest Products announces permanent shutdown of paper machine at its Laurentide mill”, November 6, 2012 (R-014). ↩
⁶¹ Resolute Forest Products, News Release, “Resolute Announces Permanent Closure of Laurentide Mill in Shawinigan, Québec”, September 2, 2014 (R-016). ↩
⁶² Claimant’s Memorial, at para 144. ↩
⁶³ Respondent’s Counter-Memorial, at para 147. ↩
⁶⁴ [Redacted] (R-373). ↩
⁶⁵ Claimant’s Memorial, at para 127. ↩
⁶⁶ Claimant’s Memorial, at para 127, referring to Respondent’s Statement of Defence, at para 17. ↩
⁶⁷ Claimant’s Memorial, at para 127. ↩
⁶⁸ Claimant’s Memorial, at para 131, referring to [Redacted] (C-215). ↩
⁶⁹ Respondent’s Counter-Memorial, at para 18. ↩
⁷⁰ Respondent’s Counter-Memorial, at para 18. ↩

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product (“GDP”) and accounting for 11,500 jobs.⁷¹

3. Nova Scotia’s Legislative and Regulatory Framework on Forestry and Environment

78. In 2007, GNS passed the Environmental Goals and Sustainable Prosperity Act (“EGSPA”).⁷² The EGSPA sought to integrate environmental sustainability with economic prosperity in the province.⁷³ The EGSPA mandated that 18.5% of the total electricity needs of the province be obtained from renewable energy sources by 2013.⁷⁴

79. In 2007, along with the EGSPA, Nova Scotia enacted renewable energy standard regulations (the “RES Regulations”) requiring that in 2011-2012, 5% of Nova Scotia Power Inc.’s (“NSPI”) total sales of energy be renewable energy supplied by independent power producers.⁷⁵ This requirement increased to 10% in 2013 and 25% in 2015, but allowed NSPI to acquire additional renewable energy from its own generation facilities as well.⁷⁶

80. In 2009, the province released its Climate Change Action Plan⁷⁷ and its Energy Strategy.⁷⁸ In 2010, GNS produced its Renewable Electricity Plan.⁷⁹ These policies were intended to reduce the province’s dependence on coal⁸⁰ and transition towards renewable energy sources such as biomass and wind.⁸¹

81. In 2011, the province published A Natural Resources Strategy for Nova Scotia 2011-2020 (“Natural Resources Strategy”).⁸² In moving the province towards “an ecosystem-based approach to forest management”, the Natural Resources Strategy identified changes to the

⁷¹ Gardiner Pinfold, “Nova Scotia’s Forest Industry Economic Impact”, December 2016, at 14 (R-205). ↩
⁷² Environmental Goals and Sustainable Prosperity Act, SNS 2007, c. 7 (R-194). ↩
⁷³ Respondent’s Counter-Memorial, at para 20. ↩
⁷⁴ Environmental Goals and Sustainable Prosperity Act, SNS 2007, c. 7, at s. 4(2)(b)(i) (R-194). ↩
⁷⁵ Renewable Energy Standard Regulations, N.S. Reg. 35/2007, at ss. 5(1), 5(3), 6(1), 6(3), 7(2)(d) (R-171). ↩
⁷⁶ Renewable Energy Standard Regulations, N.S. Reg. 155/2010, at ss. 4-6 (R-179). ↩
⁷⁷ Nova Scotia Department of Energy, “Toward a Greener Future, Climate Change Action Plan”, January 2009 (R-424). ↩
⁷⁸ Nova Scotia Department of Energy, “Toward a Greener Future, Nova Scotia’s 2009 Energy Strategy”, January 2009 (R-180). ↩
⁷⁹ Nova Scotia Department of Energy, “Renewable Electricity Plan: A path to good jobs, stable prices, and a cleaner environment”, April 2010 (R-181). ↩
⁸⁰ Nova Scotia Department of Energy, “Toward a Greener Future, Nova Scotia’s Climate Change Action Plan”, January 2009, at 13, 17 (R-424); Nova Scotia Department of Energy, “Toward a Greener Future, Nova Scotia’s 2009 Energy Strategy”, January 2009, at 8, 14, 16 (R-180); Nova Scotia Department of Energy, “Renewable Electricity Plan: A path to good jobs, stable prices, and a cleaner environment”, April 2010, at 2, 4, 17 (R-181). ↩
⁸¹ Respondent’s Counter-Memorial, at para 203. ↩
⁸² Nova Scotia Department of Natural Resources, “The Path We Share: A Natural Resources Strategy for Nova Scotia 2011-2020”, August 2011 (R-202). ↩

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province’s forest management to ensure environmental sustainability, such as revising the management and allocation of forest resources on Crown land, changing harvesting practices, creating rules for whole-tree harvesting and establishing a Code of Forest Practice.⁸³

82. To alleviate hurdles imposed by the dearth of Crown land ownership in Nova Scotia,⁸⁴ the Natural Resources Strategy set a goal of legally protecting 12% of the land mass of Nova Scotia.⁸⁵ The province created the Large Land Acquisition Fund valued at $75 million, which allowed it to purchase more than 140,000 acres of land from private owners,⁸⁶ and the Forestry Transition Land Purchase Program, which also gave forestry companies in Nova Scotia the opportunity to sell some of their “non-essential land assets” to the province.⁸⁷

83. NSPI is the main utility provider in Nova Scotia.⁸⁸ NSPI is a private company that is a wholly owned subsidiary of Emera Incorporated, a for-profit company that is publicly traded on the Toronto Stock Exchange.⁸⁹ NSPI was privatized in 1992 pursuant to the Nova Scotia Power Privatization Act.⁹⁰

84. NSPI offers two different kinds of electricity rates. The first kind comprises “above-the-line” rates that are calculated by dividing NSPI’s total revenue requirements fairly among customer classes.⁹¹ The second kind of rates is termed “below-the-line” and is offered to certain customer classes, calculated on a cost-based formula.⁹² These rates are referred to as load retention rates (“LRR”).⁹³

85. NSPI is regulated by the Nova Scotia Utility and Review Board (“NSUARB”), a quasi-judicial body that supervises and approves electricity rate applications for the provision of electricity by NSPI to its customers,⁹⁴ which must be just and economically sound for both the customers and

⁸³ Report of the Steering Panel Phase II, Natural Resource Strategy, “A Natural Balance: Working Toward Nova Scotia’s Natural Resources Strategy”, April 2012, at 22-23 (R-201). ↩
⁸⁴ Respondent’s Counter-Memorial, at para 22. ↩
⁸⁵ Nova Scotia Department of Natural Resources, “The Path We Share: A Natural Resources Strategy for Nova Scotia 2011-2020”, August 2011, at 9 (R-202). ↩
⁸⁶ Nova Scotia, Press Release, “March 2010 Land Purchase”, March 2010 (R-206). ↩
⁸⁷ Nova Scotia Department of Natural Resources, “Forestry Transition Land Acquisition Program: Guidelines for Applicants”, April 2008 (R-207). ↩
⁸⁸ Claimant’s Memorial, at para 20; Respondent’s Counter-Memorial, at para 159. ↩
⁸⁹ Witness Statement of Murray Coolican, April 17, 2019, at para 3. ↩
⁹⁰ Nova Scotia Power Privatization Act, SNS 1992, c. 8. (C-103). See also Witness Statement of Murray Coolican, April 17, 2019, at para 3. ↩
⁹¹ Respondent’s Counter-Memorial, at para 160. ↩
⁹² Respondent’s Counter-Memorial, at para 160. ↩
⁹³ Claimant’s Memorial, at para 60; Respondent’s Counter-Memorial, at para 11. ↩
⁹⁴ Public Utilities Act, RSNS 1989, c. 380 (C-101; R-164). ↩

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the utility.⁹⁵ Rate applications are adversarial and subject to the NSUARB’s review process.⁹⁶

86. NSPI maintains a Loan Retention Tariff (“LRT”), which provides that it can negotiate “below-the-line” LRRs with certain customers under specific conditions.⁹⁷ Originally, NSPI’s LRT was only available to customers who had potential alternative power and energy suppliers and could successfully demonstrate that (i) retaining the customer’s load was better for NSPI’s other customers than losing the customer’s load in question, and (ii) the revenue from providing energy to the customer was both greater than the applicable incremental cost to serve such customer and made a significant positive contribution to fixed costs.⁹⁸

87. In June 2011, Bowater Mersey and NPPH submitted a joint request to the NSUARB to amend the LRT in order to allow NSPI to negotiate individual LRRs with its largest customers in economic distress.⁹⁹ On November 29, 2011, the NSUARB approved the requested amendment to the LRT.¹⁰⁰

B. NPPH’S CREDITOR PROTECTION PROCEEDINGS UNDER THE CCAA

1. NPPH Enters Creditor Protection

88. On September 6, 2011, after losing nearly $50 million in operating losses in the previous year,¹⁰¹ NPPH sought protection under the Companies’ Creditor Arrangement Act (“CCAA”).¹⁰² Under

⁹⁵ United States – Countervailing Measures on Supercalendered Paper from Canada, Report of the Panel, WTO, July 5, 2018, at para 7.63 (R-238) (“United States – WTO Panel Report – Supercalendered Paper v. Board of Commissioners of Public Utilities v. Nova Scotia Power Corp. et al., (1976) 75 D.L.R. (3^rd) 72 (N.S.C.A.), at 77 (R-111). ↩
⁹⁶ United States – WTO Panel Report – Supercalendered Paper, July 5, 2018, at para 7.10 (R-238); Public Utilities Act, RSNS 1989, c. 380, at ss. 86, 91, 92 (C-101; R-164). ↩
⁹⁷ In re An Application by Nova Scotia Power Inc., Decision, NSUARB, May 24, 2000, at para 52 (R-163); Respondent’s Counter-Memorial, at para 161, referring to In re An Application by Nova Scotia Power Inc., Decision, NSUARB, May 24, 2000, at Schedule “A”, s. “Availability”, para 1 (R-163); In re An Application by NewPage Port Hawkesbury Corp. and Bowater Mersey Paper Co., NSUARB Order, December 21, 2011, at Schedule “A” Load Retention Tariff, s. “Availability”, para 1 (R-164); United States – WTO Panel Report – Supercalendered Paper, July 5, 2018, at paras 7.12-7.14, 7.63 (R-238). ↩
⁹⁸ Respondent’s Counter-Memorial, at para 162. ↩
⁹⁹ In re An Application by Newpage Port Hawkesbury and Bowater Mersey Paper Company, Decision, NSUARB, November 29, 2011, at paras 281-288 (C-138). ↩
¹⁰⁰ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Tor E. Suther, September 6, 2011, at para 2 (C-112; R-024). ↩
¹⁰¹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Notice of Application in Chambers, Supreme Court of Nova Scotia, September 6, 2011 (R-356); NewPage Port Hawkesbury Corp., Application for an initial order pursuant to the Companies’ Creditors Arrangement Act, Supreme Court of Nova Scotia, September 6, 2011, at 2 (C-113); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Tor E. Suther, September 6, 2011, at para 24 (C-112; R-024). ↩

[Page 22]

the CCAA, the Mill would be sold as part of a court supervised sale process.¹⁰³

89. On September 9, 2011, the Supreme Court of Nova Scotia (the “Court”) granted NPPH’s application and appointed Ernst & Young (the “Monitor” or “EY”) to “monitor the business and financial affairs of [NPPH]” during the CCAA proceedings and monitor the sales process of NPPH.¹⁰⁴ The Monitor and NPPH hired United States-based investment bankers Sanabe & Associates LLC (“Sanabe”) to help with the sale of the Mill.¹⁰⁵

90. The Claimant alleges that GNS recommended to NPPH that it place the Mill into creditor protection to find a new owner to operate it as a going concern.¹⁰⁶ The Respondent disputes this contention, stating that GNS did not control the CCAA proceedings; rather, NPPH decided to “market [the Mill] as a going concern”.¹⁰⁷

91. The Monitor published public notices of the sales process and directly contacted 110 parties who might have been interested in acquiring the Mill, including the Claimant.¹⁰⁸ On September 28, 2011, the Monitor and Sanabe received 21 submissions and designated 14 interested parties as “Qualified Bidders”.¹⁰⁹

92. On October 28, 2011, the Monitor received eight offers to purchase NPPH’s assets.¹¹⁰ Among the eight offerors, four were invited to continue with the bid and submitted final offers in December 2011, two intending to acquire the Mill as a going concern with the other two proposing liquidation.¹¹¹ Pacific West Commercial Corporation (“PWCC”), a Vancouver-based corporation, was one of the two bidders to offer to purchase the Mill as a going concern.¹¹² On January 4, 2012, on the recommendation of the Monitor, NPPH accepted the bid for the

¹⁰³ Respondent’s Memorial on Jurisdiction, at paras 12-14. ↩
¹⁰⁴ Claimant’s Statement of Claim, at para 27; In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Initial Order, September 9, 2011, at paras 17-19, 26-33 (R-028). ↩
¹⁰⁵ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Twelfth report of the Monitor, August 8, 2012, Supreme Court of Nova Scotia, at para 56(a)(i) (R-159). ↩
¹⁰⁶ Claimant’s Memorial, at paras 24, 26. ↩
¹⁰⁷ Respondent’s Counter-Memorial, at para 73, referring to In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Twelfth report of the Monitor, August 8, 2012, Supreme Court of Nova Scotia, at para 43 (R-159). ↩
¹⁰⁸ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Second Report of the Monitor, Supreme Court of Nova Scotia, October 3, 2011, at para 15 (C-120; R-030). ↩
¹⁰⁹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Third Report of the Monitor, Supreme Court of Nova Scotia, October 26, 2011, at para 45(a) (R-362). ↩
¹¹⁰ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Third Report of the Monitor, Supreme Court of Nova Scotia, October 26, 2011, at para 45(c)-(f) (R-362). ↩
¹¹¹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Sixth Report of the Monitor, January 13, 2012, at paras 17-19 (C-150; R-031). ↩
¹¹² In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Sixth Report of the Monitor, January 13, 2012, at para 19 (C-150; R-031). ↩

[Page 23]

acquisition of the Mill put forward by PWCC.¹¹³

93. When NPPH entered creditor protection, GNS announced that it would provide $5 million in funding for the Mill¹¹⁴ to remain in “hot idle” – an expression signifying that its closing had been carried out “in a way that the plant has been taken out of active production in such a way as to permit a smooth resumption of production when circumstances permit”.¹¹⁵ In this way, the Mill could be sold as a going concern once NPPH’s cash ran out and it was no longer able to maintain the Mill in hot idle on its own.¹¹⁶ On March 16, 2012, GNS announced a further $5.8 million in hot idle funding for the Mill.¹¹⁷

94. Further, GNS also created a $14-million Forestry Infrastructure Fund (“FIF”) to facilitate forest management activities through NPPH as the intermediary between the province and independent contractors providing forestry services to the province.¹¹⁸ The agreement was declaredly part of an action plan to employ woodworkers, provide training programs and “keep the NewPage mill in Port Hawkesbury ready for a quick re-sale”.¹¹⁹ When GNS announced additional hot idle funding on March 16, 2012, it also announced an additional $12 million in funding to the FIF.¹²⁰

95. [Redacted]¹²¹

¹¹³ Nova Scotia, Press Release, “Province Will Keep NewPage Mill in Point Tupper Re-Sale Ready”, January 4, 2012 (C-149). See also In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Sixth Report of the Monitor, January 13, 2012, at para 19 (C-150; R-031). In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Twelfth Report of the Monitor, August 8, 2012, at para 44 (R-159). ↩
¹¹⁴ Nova Scotia, Press Release, “Province Will Keep NewPage Mill in Point Tupper Re-Sale Ready”, January 4, 2012 (R-048). This funding was subject to partial recourse to the assets of NPPH in certain limited circumstances and only if the going concern outcome is achieved”. See In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Seventh Report of the Monitor, Supreme Court of Nova Scotia, February 27, 2012, at paras 42-45 (R-049). ↩
¹¹⁵ Respondent’s Statement of Defence, at para 26, referring to In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Report of the Proposed Monitor, Supreme Court of Nova Scotia, September 6, 2011, at para 25 (R-346). ↩
¹¹⁶ Respondent’s Statement of Defence, at paras 44-46. ↩
¹¹⁷ Nova Scotia, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready”, March 16, 2012 (R-042); Province of Nova Scotia, Backgrounder, “Provincial Support to former NewPage Port Hawkesbury Paper Mill”, March 16, 2012, at 2 (R-043). ↩
¹¹⁸ Nova Scotia, Press Release, “Province Presents Forestry Infrastructure Plan”, September 20, 2011 (R-039). ↩
¹¹⁹ Nova Scotia, Press Release, “Seven-point Woodlands Plan Keeps Plant Resale Ready”, September 9, 2011 (C-116; R-038). ↩
¹²⁰ Nova Scotia, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready”, March 16, 2012 (R-043). ↩
¹²¹ [Redacted] (R-146). ↩

[Page 24]

2. Resolute’s Decision not to Bid on the Mill

96. Along with PWCC and other interested parties, Resolute considered bidding on the Mill, but ultimately decided not to do so.¹²²

97. [Redacted]

98. [Redacted]¹²³

[Redacted]¹²⁴ [Redacted]¹²⁵ [Redacted]¹²⁶ [Redacted]¹²⁷ [Redacted]¹²⁸

99. Non-binding proposals for the purchase of the Mill were due by September 28, 2011.¹²⁹ [Redacted]¹³⁰

¹²² Respondent’s Counter-Memorial, at para 77. See also Claimant’s Memorial, at paras 28-33. ↩
¹²³ [Redacted] (C-107). See also, Claimant’s Pre-Hearing Memorial, at para 13. ↩
¹²⁴ [Redacted] September 13, 2011 (R-358). ↩
¹²⁵ [Redacted] September 25-26, 2011 (R-359); see also generally [Redacted] (C-119). ↩
¹²⁶ [Redacted] (C-119). ↩
¹²⁷ [Redacted] (C-118); [Redacted] (C-119). ↩
¹²⁸ [Redacted] (C-118); [Redacted] (C-119). ↩
¹²⁹ Respondent’s Counter-Memorial, at paras 85-86. ↩
¹³⁰ [Redacted] September 26, 2011 (R-360). ↩

[Page 25]

[Redacted]¹³¹ [Redacted]¹³²

100. The Claimant alleges that GNS did not offer Resolute any of the benefits PWCC ultimately received when it was invited to bid on the Mill.¹³³ In response, the Respondent states that no potential purchaser of the Mill was offered financial assistance by GNS at that time.¹³⁴ Nonetheless, the Respondent notes that [Redacted]¹³⁵

3. Negotiations between PWCC and GNS Prior to January 4, 2012

101. On October 24, 2011, PWCC submitted its letter of offer to pursue its acquisition of the Mill.¹³⁶ On October 28, 2011, once PWCC had been identified as one of the two final bidders for the Mill, it began discussions with GNS.¹³⁷ PWCC’s letter of offer was subsequently sent to GNS and NSPI representatives.¹³⁸ GNS and PWCC also held a series of calls in November 2011 regarding the Mill’s electricity rate, among other issues.¹³⁹ GNS also met with the other interested bidder (Paper Excellence) in November and December 2011.¹⁴⁰

102. On November 10, 2011, PWCC provided GNS and NSPI representatives with PWCC’s October 24, 2011 offer letter, a September 2011 Confidential Information Memorandum, and an

¹³¹ [Redacted] (R-360). ↩
¹³² Claimant’s Memorial, at para 2; Respondent’s Counter-Memorial, at para 86; Claimant’s Pre-Hearing Memorial, at paras 14-18. ↩
¹³³ Claimant’s Memorial, at para 220. ↩
¹³⁴ Respondent’s Counter-Memorial, at para 79. ↩
¹³⁵ [Redacted] (C-107); ↩
¹³⁶ NewPage Port Hawkesbury Mill Confidential Information Memorandum, September 2011, at 50 (R-361). ↩
¹³⁷ Email from R. Stern (Stern Partners) to R. Bennett and R. McAdam, re: NewPage Port Hawkesbury Mill, November 10, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1, at page 2912 of 3014 (C-127). ↩
¹³⁸ Witness Statement of Duff Montgomerie, April 17, 2019, at para 23. ↩
¹³⁹ Email from R. Stern (Stern Partners) to R. Bennett and R. McAdam, re: NewPage Port Hawkesbury Mill November 10, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1, at page 2912 of 3014 (C-127). ↩
¹⁴⁰ Email from W. M. Nystrom to M. Coolican, R. Bennett and R. McAdam, Update re: Woodroom @ Port Hawkesbury, November 17, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1 pages 2899-2900 of 3014 (C-131); Email from W. M. Nystrom to M. Coolican, R. Bennett and R. McAdam, re: Port Hawkesbury Update re: 23 Nov. Call @ 4:00 pm, November 23, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1, at pages 2897-98 of 3014 (C-132); Email from W. M. Nystrom to R. McAdam, re: Port Hawkesbury Co-Gen Cost estimates, November 26, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1, at 2901-2903 (C-135). Witness Statement of Duff Montgomerie, April 17, 2019, at para 21. ↩

[Page 26]

October 2011 Investor/Management Presentation.¹⁴¹

103. On November 28, 2011, GNS and PWCC entered into an Indemnity Agreement, which [Redacted]¹⁴² [Redacted]¹⁴³

104. [Redacted]¹⁴⁴ [Redacted]¹⁴⁵

105. In the Claimant’s view, these interactions between PWCC and GNS demonstrate that “GNS negotiated with PWCC even before PWCC was declared the winning bidder”.¹⁴⁶ The Respondent refutes this claim, noting that the [Redacted]¹⁴⁷ [Redacted]¹⁴⁸

C. NEGOTIATIONS FOR THE PURCHASE OF THE MILL

1. The Plan Sponsorship Agreement and the Plan of Compromise and Arrangement

106. Once PWCC was selected as the preferred bidder in January 2012, PWCC also began discussions

¹⁴¹ Email from R. Stern (Stern Partners) to R. Bennett and R. McAdam, re: NewPage Port Hawkesbury Mill, November 10, 2011, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 1, at page 2912 of 3014 (C-127). ↩
¹⁴² [Redacted] at CAN000020_0001 (C-136). ↩
¹⁴³ [Redacted] at CAN000020_0004 (C-136). ↩
¹⁴⁴ [Redacted] (C-139). ↩
¹⁴⁵ [Redacted] at CAN 000019_0001 (C-139). ↩
¹⁴⁶ Claimant’s Memorial, at para 39. ↩
¹⁴⁷ Respondent’s Counter-Memorial, at para 98. ↩
¹⁴⁸ Respondent’s Counter-Memorial, at para 98, referring to Witness Statement of Duff Montgomerie, April 17, 2019, at para 25; [Redacted] December 1, 2011 (R-149). ↩

[Page 27]

with various stakeholders including NPPH, the Mill’s employees, NSPI, and GNS.¹⁴⁹

107. The negotiations between NPPH and PWCC culminated in an agreement (the “Plan Sponsorship Agreement”) whereby PWCC would act as the sponsor of a Plan of Compromise and Arrangement (the “Plan of Arrangement”) for NPPH under the CCAA.¹⁵⁰ The purpose of the Plan of Arrangement was to “complete a reorganization of [NPPH], by implementing [r]estructuring [t]ransactions […] in order to enable [NPPH] to continue as a going concern”.¹⁵¹ Under the Plan Sponsorship Agreement, PWCC agreed to purchase the shares of NPPH for $33 million subject to the conditions in the Plan of Arrangement being met.¹⁵² [Redacted] Port Hawkesbury Paper Inc. (i.e. “PHP”, as defined above).¹⁵³

108. Under the Plan Sponsorship Agreement, the purchase of the Mill was contingent upon the fulfillment of certain conditions in the Plan of Arrangement.¹⁵⁴ For example, under the Plan of Arrangement, PWCC was required to: enter into “Provincial Agreements” with GNS, including a Sustainable Forest Management and Outreach Program Agreement (“Outreach Agreement”) and a Forest Utilization License Agreement (“FULA”); obtain the NSUARB’s approval of a negotiated LRR; and obtain an advance tax ruling (“ATR”) on the tax structure proposed pursuant to the limited partnership it intended to create with NSPI for ownership of the Mill.¹⁵⁵

109. On July 17, 2012, NPPH obtained the Court’s approval of the Plan Sponsorship Agreement.¹⁵⁶

¹⁴⁹ Respondent’s Counter-Memorial, at paras 99-103. ↩
¹⁵⁰ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp. (R-032); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 2), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit B: Plan Sponsorship Agreement (R-033). ↩
¹⁵¹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp, at s. 2.1 (R-032). ↩
¹⁵² In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 2), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit B: Plan Sponsorship Agreement, at s. 9 (R-033); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp, at s. 9.2 (R-032). ↩
¹⁵³ [Redacted] at CAN000013_0007 (C-220). ↩
¹⁵⁴ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 2), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit B: Plan Sponsorship Agreement, at s. 9.1 (R-033); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp, at s. 9.2 (R-032). ↩
¹⁵⁵ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake – Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp, at s. 9.2 (c), (i) and (j) (R-032). ↩
¹⁵⁶ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Meeting Order, Supreme Court of Nova Scotia, July 17, 2012 (R-034). ↩

[Page 28]

On August 15, 2012, NPPH’s creditors voted in favour of the Plan of Arrangement.¹⁵⁷ On September 25, 2012, the Plan of Arrangement was sanctioned by the Court following certain amendments.¹⁵⁸

110. [Redacted]¹⁵⁹

111. [Redacted]¹⁶⁰

112. The Parties disagree as to whether the conditions under the Plan of Arrangement qualify as assistance measures that PWCC requested and GNS granted.¹⁶¹ Their interpretations as to the elements of GNS’s [Redacted] also differ. The following subsections detail the Parties’ respective positions.

113. Notably, the Parties also disagree as to whether the LRR that PWCC obtained from NSPI should be included as an assistance measure that GNS provided to PWCC. The Claimant argues that the LRR was “integrally connected” to the overall set of measures PWCC received (and is therefore attributable to GNS),¹⁶² whereas the Respondent qualifies the LRR as the product of independent negotiations between PWCC and NSPI.¹⁶³ The Parties’ positions specific to the LRR are set out in Section III.C.3.(b) of this Award.

2. GNS’s [Redacted] and Other Alleged Assistance Measures

(a) The Claimant’s Position

114. The Claimant contends that PWCC’s “demands” for assistance from GNS were based on its

¹⁵⁷ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012, at (b), p. 3 (R-035). ↩
¹⁵⁸ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012 (R-035). ↩
¹⁵⁹ [Redacted] at 5-10 (R-161). ↩
¹⁶⁰ [Redacted] at CAN000002_0001 (C-182). ↩
¹⁶¹ Claimant’s Memorial, at para 50; Respondent’s Counter-Memorial, at para 106. ↩
¹⁶² Claimant’s Memorial, at paras 71, 74, 168, referring to In re an Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Notice of Application for Approval Of A Load Retention Rate, NSUARB, April 27, 2012, at para 8 (C-164). ↩
¹⁶³ Respondent’s Counter-Memorial, at paras 183-184. ↩

[Page 29]

need to [Redacted]¹⁶⁴

115. The Claimant argues that GNS provided PWCC with a package of assistance measures (the “Assistance Measures”) that included the following:¹⁶⁵

i. [Redacted]¹⁶⁶

ii. an Outreach Agreement;

iii. a Forest Utilization License Agreement (“FULA”);

iv. a Land Purchase Agreement;

v. relief from pension liabilities;

vi. hot idle and forestry infrastructure funding;

vii. a municipal property tax reduction;

viii. an Indemnity Agreement; and

ix. a Preparatory Activities Agreement.

116. The Claimant argues that these Assistance Measures were provided to PWCC as a package, and that they should be considered as a whole.¹⁶⁷

i. [Redacted]

117. The Claimant argues that GNS provided PWCC with a [Redacted]¹⁶⁸

118. The Claimant argues that the [Redacted] was a key component of the Assistance Measures, and that it was provided to PWCC in order to [Redacted]¹⁶⁹

119. The Claimant argues that the [Redacted] was provided to PWCC in the form of a [Redacted]¹⁷⁰

120. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷¹

121. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷²

122. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷³

123. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁴

124. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁵

125. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁶

126. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁷

127. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁸

128. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁷⁹

129. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁰

130. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸¹

131. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸²

132. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸³

133. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁴

134. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁵

135. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁶

136. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁷

137. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁸

138. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁸⁹

139. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁰

140. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹¹

141. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹²

142. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹³

143. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁴

144. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁵

145. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁶

146. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁷

147. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁸

148. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]¹⁹⁹

149. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁰

150. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰¹

151. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰²

152. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰³

153. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁴

154. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁵

155. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁶

156. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁷

157. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁸

158. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁰⁹

159. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁰

160. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹¹

161. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹²

162. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹³

163. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁴

164. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁵

165. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁶

166. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁷

167. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁸

168. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²¹⁹

169. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁰

170. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²¹

171. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²²

172. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²³

173. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁴

174. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁵

175. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁶

176. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁷

177. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁸

178. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²²⁹

179. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁰

180. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³¹

181. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³²

182. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³³

183. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁴

184. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁵

185. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁶

186. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁷

187. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁸

188. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²³⁹

189. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁰

190. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴¹

191. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴²

192. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴³

193. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁴

194. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁵

195. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁶

196. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁷

197. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁸

198. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁴⁹

199. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁰

200. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵¹

201. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵²

202. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵³

203. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁴

204. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁵

205. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁶

206. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁷

207. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁸

208. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁵⁹

209. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁰

210. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶¹

211. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶²

212. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶³

213. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁴

214. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁵

215. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁶

216. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁷

217. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁸

218. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁶⁹

219. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁰

220. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷¹

221. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷²

222. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷³

223. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁴

224. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁵

225. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁶

226. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁷

227. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁸

228. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁷⁹

229. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁰

230. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸¹

231. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸²

232. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸³

233. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁴

234. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁵

235. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁶

236. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁷

237. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁸

238. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁸⁹

239. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁰

240. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹¹

241. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹²

242. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹³

243. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁴

244. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁵

245. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁶

246. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁷

247. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁸

248. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]²⁹⁹

249. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁰

250. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰¹

251. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰²

252. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰³

253. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁴

254. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁵

255. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁶

256. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁷

257. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁸

258. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁰⁹

259. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁰

260. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹¹

261. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹²

262. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹³

263. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁴

264. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁵

265. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁶

266. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁷

267. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁸

268. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³¹⁹

269. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁰

270. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²¹

271. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²²

272. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²³

273. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁴

274. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁵

275. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁶

276. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁷

277. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁸

278. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³²⁹

279. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁰

280. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³¹

281. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³²

282. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³³

283. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁴

284. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁵

285. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁶

286. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁷

287. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁸

288. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³³⁹

289. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁰

290. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴¹

291. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴²

292. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴³

293. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁴

294. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁵

295. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁶

296. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁷

297. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁸

298. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁴⁹

299. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁰

300. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵¹

301. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵²

302. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵³

303. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁴

304. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁵

305. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁶

306. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁷

307. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁸

308. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁵⁹

309. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁰

310. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶¹

311. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶²

312. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶³

313. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁴

314. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁵

315. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁶

316. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁷

317. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁸

318. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁶⁹

319. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁰

320. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷¹

321. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷²

322. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷³

323. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁴

324. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁵

325. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁶

326. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁷

327. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁸

328. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁷⁹

329. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁰

330. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸¹

331. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸²

332. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸³

333. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁴

334. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁵

335. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁶

336. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁷

337. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁸

338. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁸⁹

339. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁰

340. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹¹

341. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹²

342. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹³

343. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁴

344. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁵

345. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁶

346. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁷

347. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁸

348. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]³⁹⁹

349. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁰

350. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰¹

351. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰²

352. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰³

353. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁴

354. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁵

355. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁶

356. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁷

357. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁸

358. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁰⁹

359. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁰

360. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹¹

361. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹²

362. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹³

363. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁴

364. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁵

365. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁶

366. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁷

367. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁸

368. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴¹⁹

369. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁰

370. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²¹

371. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²²

372. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²³

373. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁴

374. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁵

375. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁶

376. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁷

377. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁸

378. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴²⁹

379. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁰

380. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³¹

381. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³²

382. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³³

383. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁴

384. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁵

385. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁶

386. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁷

387. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁸

388. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴³⁹

389. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁰

390. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴¹

391. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴²

392. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴³

393. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁴

394. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁵

395. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁶

396. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁷

397. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁸

398. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁴⁹

399. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁰

400. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵¹

401. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵²

402. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵³

403. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁴

404. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁵

405. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁶

406. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁷

407. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁸

408. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁵⁹

409. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁰

410. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶¹

411. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶²

412. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶³

413. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁴

414. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁵

415. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁶

416. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁷

417. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁸

418. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁶⁹

419. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁰

420. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷¹

421. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷²

422. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷³

423. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁴

424. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁵

425. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁶

426. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁷

427. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁸

428. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁷⁹

429. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁰

430. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸¹

431. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸²

432. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸³

433. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁴

434. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁵

435. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁶

436. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁷

437. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁸

438. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁸⁹

439. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁰

440. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹¹

441. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹²

442. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹³

443. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁴

444. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁵

445. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁶

446. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁷

447. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁸

448. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁴⁹⁹

449. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁰

450. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰¹

451. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰²

452. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰³

453. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁴

454. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁵

455. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁶

456. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁷

457. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁸

458. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁰⁹

459. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁰

460. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹¹

461. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹²

462. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹³

463. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁴

464. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁵

465. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁶

466. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁷

467. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁸

468. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵¹⁹

469. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁰

470. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²¹

471. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²²

472. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²³

473. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁴

474. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁵

475. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁶

476. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁷

477. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁸

478. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵²⁹

479. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁰

480. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³¹

481. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³²

482. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³³

483. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁴

484. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁵

485. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁶

486. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁷

487. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁸

488. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵³⁹

489. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁰

490. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴¹

491. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴²

492. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴³

493. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁴

494. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁵

495. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁶

496. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁷

497. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁸

498. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁴⁹

499. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁰

500. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵¹

501. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵²

502. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵³

503. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁴

504. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁵

505. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁶

506. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁷

507. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁸

508. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁵⁹

509. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁰

510. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶¹

511. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶²

512. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶³

513. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁴

514. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁵

515. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁶

516. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁷

517. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁸

518. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁶⁹

519. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁰

520. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷¹

521. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷²

522. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷³

523. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁴

524. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁵

525. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁶

526. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁷

527. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁸

528. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁷⁹

529. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁰

530. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸¹

531. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸²

532. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸³

533. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁴

534. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁵

535. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁶

536. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁷

537. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁸

538. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁸⁹

539. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁰

540. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹¹

541. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹²

542. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹³

543. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁴

544. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁵

545. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁶

546. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁷

547. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁸

548. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁵⁹⁹

549. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁰

550. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰¹

551. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰²

552. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰³

553. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁴

554. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁵

555. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁶

556. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁷

557. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁸

558. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁰⁹

559. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁰

560. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹¹

561. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹²

562. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹³

563. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁴

564. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁵

565. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁶

566. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁷

567. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁸

568. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶¹⁹

569. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁰

570. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²¹

571. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²²

572. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²³

573. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁴

574. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁵

575. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁶

576. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁷

577. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁸

578. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶²⁹

579. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁰

580. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³¹

581. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³²

582. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³³

583. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁴

584. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁵

585. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁶

586. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁷

587. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁸

588. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶³⁹

589. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁰

590. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴¹

591. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴²

592. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴³

593. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁴

594. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁵

595. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁶

596. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁷

597. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁸

598. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁴⁹

599. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁰

600. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵¹

601. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵²

602. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵³

603. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁴

604. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁵

605. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁶

606. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁷

607. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁸

608. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁵⁹

609. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁰

610. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶¹

611. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶²

612. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶³

613. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁴

614. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁵

615. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁶

616. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁷

617. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁸

618. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁶⁹

619. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁰

620. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷¹

621. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷²

622. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷³

623. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁴

624. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁵

625. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁶

626. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁷

627. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁸

628. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁷⁹

629. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁰

630. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸¹

631. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸²

632. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸³

633. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁴

634. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁵

635. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁶

636. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁷

637. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁸

638. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁸⁹

639. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹⁰

640. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹¹

641. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹²

642. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹³

643. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹⁴

644. The Claimant argues that the [Redacted] was provided to PWCC in order to [Redacted]⁶⁹⁵

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ambition [Redacted].¹⁶⁴

[Redacted] GNS when it announced its assistance to PWCC for the PHP Mill.¹⁶⁵ The Claimant suggests that PWCC specifically sought: a $40 million credit facility; a $24 million forgivable loan; a $1.5 million workforce training grant; a $1 million marketing grant; $38 million for forestry management through an Outreach Agreement; a twenty-year FULA; $20 million for the purchase of more than 50,000 acres of land; and relief from all pension liabilities.¹⁶⁶ The Claimant also takes into account the hot idle funding that GNS provided beyond “the originally-planned three months”,¹⁶⁷ the [Redacted]¹⁶⁸ as well as the favourable LRR that PWCC obtained for PHP.¹⁶⁹ The Claimant considers these measures collectively to be “Assistance Measures” that GNS provided PWCC. The Claimant addresses these Assistance Measures individually in turn.

i. The [Redacted]

115. The Claimant notes that pursuant to [Redacted]¹⁷⁰ [Redacted]¹⁷¹ [Redacted]¹⁷² [Redacted].

116. The Claimant notes [Redacted]¹⁷³ [Redacted].

¹⁶⁴ Claimant’s Memorial, at para 50, referring to [Redacted] at CAN000004_0009 (C-163). See also, Claimant’s Memorial, at paras 52-54. ↩

¹⁶⁵ Claimant’s Memorial, at para 89, referring to Nova Scotia Premier’s Office, Press Release, “Province Invests in Jobs, Training and Renewing the Forestry Sector”, August 20, 2012 (C-183). ↩

¹⁶⁶ Claimant’s Memorial, at paras 71, 91. ↩

¹⁶⁷ Claimant’s Memorial, at paras 72-73. The Claimant states “Resolute understands that the Tribunal has determined that the hot idle and Forestry Infrastructure funding cannot form part of Resolute’s claim. Hot Idle and Forestry Infrastructure funding are discussed here as part of the facts and circumstances giving rise to the claim, particularly for the millions in funding that GNS provided beyond the time when it might have benefited NewPage as the seller because the buyer was ultimate beneficiary, but been chosen”. See Claimant’s Memorial, at para 97, referring to PWCC Meeting Notes, Redacted PWCC LRT Application NSPI Avon IR-1 Attachment 1 (2011-12), at 70 (C-147). ↩

¹⁶⁸ Claimant’s Memorial, at para 99, referring to Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

¹⁶⁹ The LRR is described in further detail in Part III.C.(3)(b). ↩

¹⁷⁰ [Redacted] at CAN000002_0001 (C-182). ↩

¹⁷¹ [Redacted] at CAN000002_0002 (C-182). ↩

¹⁷² [Redacted] at CAN000002_0002 (C-182). ↩

¹⁷³ [Redacted] at CAN000002_0001 (C-182). ↩

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[Redacted].¹⁷⁴

ii. Outreach Agreement

117. The Claimant notes that GNS and PWCC entered into an agreement under which GNS would reimburse PHP up to $3.8 million per year for ten years to fund compensable activities related to sustainable harvesting and forest land management by PHP.¹⁷⁵ The Claimant highlights that under the agreement [Redacted]¹⁷⁶ and that the agreement [Redacted].¹⁷⁷

iii. Forest Utilization License Agreement

118. According to the Claimant, GNS and PHP also entered into a 20-year FULA allowing PHP to harvest 400,000 GMT/year¹⁷⁸ from Crown land and an additional 175,000 tons per year to fuel the Biomass Plant from Crown land.¹⁷⁹ This right was conditional upon PHP purchasing 200,000 GMT/year of pulpwood from private suppliers.¹⁸⁰

119. The Claimant takes issue with the provision under which GNS would pay PHP a “silviculture fee” of $3 per cubic meter for all harvested softwood and Biomass Fuel, and $0.60 per cubic meter for all harvested hardwood product other than Biomass Fuel, subject to change.¹⁸¹ It claims that according to this “deal”, “PHP could receive more in silviculture payments than it was paying for stumpage, which happened in 2017, essentially making the Crown timber free”.¹⁸²

iv. Land Purchase Agreement

120. Through PWCC’s purchase of NPPH’s assets, the Claimant states that PWCC would acquire

¹⁷⁴ [Redacted] (C-182). ↩

¹⁷⁵ [Redacted] (C-206). See also Nova Scotia Premier’s Office, Press Release, “Province Invests in Jobs, Training and Renewing the Forestry Sector”, August 20, 2012 (C-183). ↩

¹⁷⁶ Claimant’s Memorial, at para 94, referring to [Redacted] (C-206). ↩

¹⁷⁷ Claimant’s Memorial, at para 94. ↩

¹⁷⁸ “GMT” refers to “green metric tonne”. See Forest Utilization License Agreement (Redacted), September 27, 2012, at 2 (C-207). ↩

¹⁷⁹ Forest Utilization License Agreement (Redacted), September 27, 2012, at ss. 4.5 and 5.1 (C-207). ↩

¹⁸⁰ Forest Utilization License Agreement (Redacted), September 27, 2012, at 1 (C-207). ↩

¹⁸¹ Forest Utilization License Agreement (Redacted), September 27, 2012, at 3 (C-207). ↩

¹⁸² Claimant’s Memorial, at para 96. The Claimant specifies that there was no “prescribed monitoring” of the silviculture expenditures. See The Chronicle Herald, News Release, “Port Hawkesbury mill’s deal with province raises concern”, May 28, 2018 (C-170). ↩

[Page 31]

“roughly” 50,000 acres of land.¹⁸³ [Redacted]¹⁸⁴ The Claimant asserts that GNS’s purchase “effectively reduced PWCC’s purchase price for the mill and related assets (such as the $1 billion in tax losses)” to $13 million.¹⁸⁵ It also contrasts the $20 million purchase price to the [Redacted] GNS had allegedly previously agreed to pay NPPH “for essentially the same land” [Redacted].¹⁸⁶

v. Relief from pension liabilities

121. The Claimant suggests that “PWCC refused to assume the unfunded pension liability of over $100 million”.¹⁸⁷ To this end, it proposes that the GNS’s Natural Resources Minister was quoted as stating that “[e]verything is being considered”, indicating that GNS would comply with PWCC’s demands.¹⁸⁸

vi. Hot idle and forestry infrastructure funding

122. On January 4, 2012, GNS announced that it would provide an expected $5 million in hot idle funding to keep the Mill re-sale ready through February and March while negotiations took place with PWCC as the successful bidder.¹⁸⁹ This funding was subsequently confirmed, subject to “partial recourse to the assets of NPPH in certain limited circumstances and only if no going concern outcome is achieved”.¹⁹⁰ On March 16, 2012, GNS also announced that it would provide an additional $5.8 million in hot idle funding to support the sale of the Mill until the end of September 2012.¹⁹¹

123. As set out in Paragraph 94 above, when NPPH was placed under creditor protection in September 2011, the province created a $14 million FIF to facilitate forest management activities through

¹⁸³ Claimant’s Memorial, at para 97. ↩

¹⁸⁴ [Redacted] (C-209). ↩

¹⁸⁵ Claimant’s Memorial, at para 97. ↩

¹⁸⁶ Claimant’s Memorial, at para 98, referring to [Redacted] (C-155). ↩

¹⁸⁷ Claimant’s Memorial, at para 49. ↩

¹⁸⁸ Claimant’s Memorial, at para 49, citing The Canadian Press, News Release, “Pacific West now lone bidder for idled NewPage paper mill in Cape Breton”, January 4, 2012 (C-148). ↩

¹⁸⁹ Nova Scotia Department of Natural Resources, Press Release, “Province Will Keep NewPage Mill in Point Tupper Re-Sale Ready”, January 4, 2012 (R-048). ↩

¹⁹⁰ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Seventh Report of the Monitor, Supreme Court of Nova Scotia, February 27, 2012, at para 38 (R-049). ↩

¹⁹¹ Nova Scotia Premier’s Office, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready”, March 16, 2012 (R-042); Province of Nova Scotia, Backgrounder, “Provincial Support to former NewPage Port Hawkesbury Paper Mill”, March 16, 2012, at 2 (R-043). ↩

[Page 32]

NPPH as the intermediary between the province and independent contractors providing forestry services to the province.¹⁹² On March 16, 2012, GNS announced an additional $12 million in funding to the FIF.¹⁹³ Also in March 2012, GNS amended the FIF Agreement.¹⁹⁴

124. The Claimant argues that the funds GNS initially supplied to keep the Mill “in hot idle with a supply chain intact”¹⁹⁵ when NPPH began CCAA proceedings were meant to last three months but were extended for more than a year, with “most of it—$22.8 million of the total $36.8 million [...] coming after the Monitor declared PWCC was the winning bidder”.¹⁹⁶ As such, it contends that this additional funding constitutes an Assistance Measure among the others GNS provided to PWCC.¹⁹⁷

vii. Municipal property tax reduction

125. The Claimant pleads that GNS “provided municipal tax breaks reducing Port Hawkesbury property taxes from $2.6 million annually to $1.3 million”¹⁹⁸ by way of targeted legislation.¹⁹⁹ It claims that pursuant to NPPH’s existing agreement with Richmond County, PWCC would have been responsible for $2.6 million per year from 2013-2016 once it purchased the Mill.²⁰⁰ However, PWCC allegedly reached a new tax agreement with the county that reduced its property tax in half, which ultimately received legislative approval by the province.²⁰¹

¹⁹² Nova Scotia Department of Natural Resources, Press Release, “Province Presents Forestry Infrastructure Plan”, September 20, 2011 (R-039). ↩

¹⁹³ Nova Scotia Premier’s Office, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready”, March 16, 2012 (R-043). ↩

¹⁹⁴ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Eight Report of the Monitor, Supreme Court of Nova Scotia, March 26, 2012, at paras 56-57 (R-044); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Ninth Report of the Monitor, Supreme Court of Nova Scotia, May 28, 2012, at para 46 (R-045). ↩

¹⁹⁵ Claimant’s Memorial, at para 72, citing Nova Scotia Premier’s Office, Press Release, “Seven-point Woodlands Plan Keeps Plant Resale Ready”, September 9, 2011 (C-116). ↩

¹⁹⁶ Claimant’s Memorial, at para 73, referring to Respondent’s Statement of Defence, at paras 42, 46; Truro Daily News, News Release, “Dexter under fire after agreement reached to open mill”, September 24, 2012 (C-201). ↩

¹⁹⁷ Claimant’s Memorial, at paras 72-74. ↩

¹⁹⁸ Claimant’s Memorial, at paras 115, 219. ↩

¹⁹⁹ Claimant’s Reply Memorial, at para 176. ↩

²⁰⁰ Claimant’s Reply Memorial, at para 176, referring to An Act Respecting the Taxation of Port Hawkesbury Paper GP Ltd. by the Municipality of the County of Richmond, SNS 2006, c. 51 (2006) (C-303); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Sixteenth Report of the Monitor, Supreme Court of Nova Scotia, September 25, 2012, at para 28 (C-204). ↩

²⁰¹ Claimant’s Reply Memorial, at para 179, referring to An Act Respecting the Taxation of Port Hawkesbury Paper GP Ltd. by the Municipality of the County of Richmond, SNS 2006, c. 51 (amended in 2012) (C-303). ↩

[Page 33]

viii. Indemnity Agreement

126. According to the Claimant, GNS’s assistance must be considered in addition to the Indemnity Agreement [Redacted]²⁰² According to the Claimant, [Redacted]²⁰³

ix. Preparatory Activities Agreement

127. [Redacted] (the “Preparatory Activities Agreement” or the “Ramp-Up Agreement”).²⁰⁴ [Redacted]²⁰⁵ The Claimant argues that [Redacted].²⁰⁶

(b) The Respondent’s Position

128. Contrary to the Claimant, the Respondent does not consider the aforementioned measures as an ensemble. Rather, it distinguishes GNS’s [Redacted] as the only offer of financial assistance PWCC received. In the Respondent’s view, the other agreements and measures challenged by the Claimant were not assistance provided by GNS to PWCC’s benefit.²⁰⁷ The Respondent notes that the [Redacted]²⁰⁸ [Redacted]²⁰⁹

²⁰² Claimant’s Memorial, at para 42, referring to [Redacted] (C-136). ↩

²⁰³ Claimant’s Reply Memorial, at para 181. ↩

²⁰⁴ Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

²⁰⁵ Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

²⁰⁶ Claimant’s Memorial, at para 99. ↩

²⁰⁷ Respondent’s Counter-Memorial, at paras 111-139. ↩

²⁰⁸ Hearing on the Merits and Damages, November 9, 2020, at 192:14-193:12. ↩

²⁰⁹ Hearing on the Merits and Damages, November 9, 2020, at 193:13-184:2. ↩

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i. [Redacted]

129. The Respondent contends that GNS and PWCC agreed to the terms of a financial assistance package [Redacted] which consisted of: [Redacted]²¹⁰

130. T[Redacted]²¹¹

ii. Outreach Agreement

131. The Respondent submits that the purpose of the Outreach Agreement was to pursue the province’s Natural Resource Strategy.²¹² The Respondent explains that it acquired these services for public purposes.²¹³

132. The Respondent clarifies that the [Redacted]²¹⁴

133. The Respondent also highlights the distinction between the Outreach Agreement and the FULA [Redacted]²¹⁵

²¹⁰ Respondent’s Counter-Memorial, at para 111. ↩

²¹¹ Respondent’s Counter-Memorial, at para 112, referring to [Redacted] (C-182). ↩

²¹² Respondent’s Counter-Memorial, at para 131, referring to Witness Statement of Julie Towers, April 17, 2019, at para 39. ↩

²¹³ Hearing on the Merits and Damages, November 9, 2020, at 191:9-11. ↩

²¹⁴ Respondent’s Counter-Memorial, at para 131, referring to [Redacted] (C-206). ↩

²¹⁵ Respondent’s Counter-Memorial, at para 132. ↩

[Page 35]

iii. Forest Utilization License Agreement

134. Contrary to what the Claimant suggests, the Respondent explains that the FULA was not concluded at PWCC’s request or for PWCC’s benefit.²¹⁶ According to the Respondent, the FULA is the result of GNS’s initiative to modernize the province’s forest licensing system from the pre-existing Stora Act regime.²¹⁷ It provides GNS with greater authority to manage forests on Crown land and aligns with its Natural Resources Strategy.²¹⁸

135. Furthermore, the Respondent maintains that the Claimant misunderstands the alleged benefits PWCC received from the FULA.²¹⁹ According to the Respondent, the point of the FULA was to place a cap on how much Crown timber could be used for PHP’s operations and to encourage greater use of timber from private woodlots than the previous regime did.²²⁰

136. The Respondent also clarifies the difference between the stumpage fees and the silviculture payments, explaining that PWCC did not receive its Crown timber for free (but had to pay for it at the rate prescribed in the FULA) and that the FULA required the PHP Mill to incur additional expenses for silviculture activities (which expenditures were audited annually).²²¹ The Respondent emphasises that [Redacted]²²²

iv. Land Purchase Agreement

137. The Respondent takes issue with the Claimant’s characterization of the Land Purchase Agreement, which allegedly “reduced PWCC’s effective price for the mill to $13 million”.²²³ The Respondent argues that the purchase aligned with the province’s “long-standing goal of increasing its share of forest ownership in the Province”,²²⁴ and [Redacted]

²¹⁶ Respondent’s Counter-Memorial, at para 130, referring to Claimant’s Memorial, at paras 95-96. ↩

²¹⁷ Respondent’s Counter-Memorial, at para 121; Hearing on the Merits and Damages, November 9, 2020, at 191:17-192:3; Hearing on the Merits and Damages, October 19, 2021, at 452:9-453:9. ↩

²¹⁸ Respondent’s Counter-Memorial, at paras 121, 129. See also Nova Scotia Department of Natural Resources, “The Path We Share: A Natural Resources Strategy for Nova Scotia 2011-2020”, August 2011 (R-202). ↩

²¹⁹ Respondent’s Counter-Memorial, at para 124. ↩

²²⁰ Respondent’s Counter-Memorial, at para 126; Hearing on the Merits and Damages, October 19, 2021, at 453:18-21. ↩

²²¹ Respondent’s Counter-Memorial, at para 128, referring to [Redacted] (R-192). ↩

²²² Respondent’s Counter-Memorial, at para 128; Hearing on the Merits and Damages, October 19, 2021, 454:5-455:6. ↩

²²³ Respondent’s Counter-Memorial, at para 118, citing Claimant’s Memorial, at paras 93, 115. ↩

²²⁴ Respondent’s Counter-Memorial, at para 119; Hearing on the Merits and Damages, October 18, 2021, 181:11-182:6. ↩

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[Redacted]²²⁵

138. With respect to [Redacted] GNS agreed to pay PWCC in comparison to its previous agreement with NPPH for the same land,²²⁶ the Respondent specifies that [Redacted]²²⁷ [Redacted]²²⁸

v. Relief from pension liabilities

139. Referencing the Claimant’s reliance on newspaper articles to allege that PWCC “refused to assume the unfunded pension liability of over $100 million”,²²⁹ the Respondent argues that the Claimant’s failure to plead with specificity is enough for the Tribunal to disregard this alleged measure.²³⁰ Later, the Respondent clarified that GNS never took on the pension liability, but proposed legislation “in order to help the workers and pensioners avoid an immediate windup hit of up to 30 percent or more of their pensions”.²³¹

vi. Municipal property tax reduction

140. The Respondent argues that the new municipal property tax rate for the Mill was a “readjustment to account for reduced operations and asset use at the mill that conferred no benefit on PWCC”.²³² Nonetheless, the Respondent contends that it was still an amount that was approximately twice what provincial law would have otherwise required PWCC to pay.²³³ Moreover, it refers to Resolute’s negotiations for a reduced municipal property tax rate for Bowater Mersey as evidence

²²⁵ Respondent’s Counter-Memorial, at para 119, referring to [Redacted] (R-149). ↩

²²⁶ Respondent’s Counter-Memorial, at para 120, referring to Claimant’s Memorial, at para 98. ↩

²²⁷ Respondent’s Counter-Memorial, at para 120, referring to [Redacted] (R-216). ↩

²²⁸ [Redacted] (C-209). ↩

²²⁹ Respondent’s Counter-Memorial, at para 138, referring to Claimant’s Memorial, at para 49; Expert Witness Report of Seth T. Kaplan, Ph.D., December 28, 2018, at para 26. ↩

²³⁰ Respondent’s Counter-Memorial, at para 138. ↩

²³¹ Hearing on the Merits and Damages, October 19, 2021, at 446:16-447:4. ↩

²³² Respondent’s Counter-Memorial, at para 135. ↩

²³³ Respondent’s Counter-Memorial, at para 135, referring to US DOC, Supercalendered Paper from Canada, Issues and Decision Memorandum, October 13, 2015, at 54 (R-368). ↩

[Page 37]

that these negotiations are not uncommon.²³⁴

vii. Indemnity Agreement

141. With respect to the Indemnity Agreement, the Respondent underscores that [Redacted]²³⁵ Accordingly, [Redacted]²³⁶ It argues that the Claimant fails to demonstrate [Redacted]²³⁷

viii. Preparatory Activities Agreement

142. The Respondent [Redacted]²³⁹ The Respondent explains that [Redacted]²⁴⁰ It explains that [Redacted]²⁴¹ [Redacted]²⁴²

3. [Redacted] and the Negotiations for a Load Retention Rate

143. On April 27, 2012, PWCC and NSPI filed an application for approval of their negotiated LRR to the NSUARB.²⁴³ PWCC and NSPI intended on creating a new limited partnership that would own

²³⁴ Respondent’s Counter-Memorial, at para 135, referring to [Redacted] (R-149). ↩

²³⁵ [Redacted] at ss. 1.1, 1.7 (C-136). ↩

²³⁶ Respondent’s Counter-Memorial, at para 136, referring to [Redacted] at CAN000015_0011 (C-238). ↩

²³⁷ Respondent’s Counter-Memorial, at para 136. ↩

²³⁸ Respondent’s Counter-Memorial, at para 137, referring to Preparatory Activities Agreement, August 27, 2012, at s. 2(b) (C-190). [Redacted] See Respondent’s Counter-Memorial, at fn. 259, referring to [Redacted] (R-269). ↩

²³⁹ Claimant’s Memorial, at para 99. ↩

²⁴⁰ Respondent’s Counter-Memorial, at para 137. ↩

²⁴¹ Respondent’s Counter-Memorial, at para 137, referring to Preparatory Activities Agreement, August 27, 2012, at 1-2 (definitions of “Additional Financial Assistance” and “Remaining Financial Assistance”) (C-190). See also Preparatory Activities Agreement, August 27, 2012, at CAN0000120_21 (C-190). ↩

²⁴² Respondent’s Counter-Memorial, at para 137, referring to Claimant’s Memorial, at para 219. ↩

²⁴³ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012 (C-012; C-166; R-167); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 9 (C-184; R-062). See Section III.C.3.(b) for the facts pertaining to the LRR Application. ↩

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the PHP Mill.²⁴⁴ NSPI would contribute certain assets for the use of the partnership and would receive dividends to recover the incremental cost of power to the Mill and contribute to NSPI’s fixed costs.²⁴⁵ This tax structure allowed the partnership to self-supply electricity from NSPI, so that NSPI would receive inter-corporate dividends, which would not be subject to income tax.²⁴⁶

144. Sanction by the Court of the Plan of Arrangement was contingent on a favourable ATR of PWCC and NSPI’s proposed tax structure by the Canada Revenue Agency (“CRA”).²⁴⁷

145. On September 12, 2012, the CRA informed PWCC and NSPI that it denied the application for approval of this tax structure.²⁴⁸

146. Following the CRA’s rejection of the proposed tax structure, PWCC and NSPI amended their application to the NSUARB,²⁴⁹ and [Redacted]²⁵⁰

147. As stated above, the Plan of Arrangement was subsequently amended and approved by the Court on September 25, 2012.²⁵¹ The sale of the Mill came into effect on September 28, 2012²⁵² and PHP resumed operations in early October 2012.²⁵³ However, the Claimant contends that PHP did not start producing at full capacity until later in 2013.²⁵⁴

148. The following sub-section details the Parties’ positions with respect to certain elements of the

²⁴⁴ Claimant’s Memorial, at para 76; Respondent’s Counter-Memorial, at para 167. ↩

²⁴⁵ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 17-20, 34, 53 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 5-8 (C-165). ↩

²⁴⁶ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 17 (C-184; R-062). ↩

²⁴⁷ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake - Part 1), Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp, s. 9.2 (i) (R-032). ↩

²⁴⁸ Claimant’s Memorial, at para 100. ↩

²⁴⁹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Amended Decision, NSUARB, September 27, 2012 (C-208; R-063). See Section III.C.3.(b) for the facts pertaining to the LRR Application. ↩

²⁵⁰ [Redacted] (C-195). ↩

²⁵¹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012, at paras (a)-(h), 3 (R-035). ↩

²⁵² In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012, at Schedule A: Amended and Restated Plan of Compromise and Arrangement, at art. 1.1 (R-035); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Monitor’s Certificate, Supreme Court of Nova Scotia, September 28, 2012 (R-036). ↩

²⁵³ Truro Daily News, News Release, “Paper rolling off line at mill”, October 4, 2012 (R-098); Cape Breton Post, News Release, “Paper rolling off line at mill”, October 3, 2012 (R-099). ↩

²⁵⁴ Claimant’s Memorial, at para 138, citing Respondent’s Reply Memorial on Jurisdiction, at para 93. ↩

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[Redacted] The next sub-section details the negotiations of and the NSUARB’s subsequent approval of the LRR, as well as the Parties’ positions with respect to whether the LRR should be considered a GNS Assistance Measure.

(a) The [Redacted]

i. The Claimant’s Position

149. In its [Redacted] GNS amended two aspects of its original offer: (i) the $40 million credit facility and the (ii) income tax losses.²⁵⁵

a. $40 million credit facility

150. The Claimant notes that the [Redacted]²⁵⁶ [Redacted]²⁵⁷ [Redacted]²⁵⁸ [Redacted]²⁵⁹

b. Income tax losses

151. [Redacted]²⁶⁰ [Redacted]²⁶¹ Additionally, [Redacted]²⁶² [Redacted]²⁶³ According to the Claimant, this ability to “garner tax savings in Nova Scotia for assets in other provinces” was a benefit accorded by GNS to PWCC.²⁶⁴

²⁵⁵ Claimant’s Memorial, at para 103. ↩

²⁵⁶ [Redacted] at CAN000003_0002-0004 (C-195). ↩

²⁵⁷ [Redacted] at CAN000003_0003 (C-195). See also Claimant’s Memorial, at para 104. ↩

²⁵⁸ [Redacted] at CAN000003_0003 (C-195). ↩

²⁵⁹ [Redacted] at CAN000003_0003-0004 (C-195). ↩

²⁶⁰ [Redacted] at CAN000002_0005-0006 (C-182). ↩

²⁶¹ [Redacted] at CAN000003_0006 (C-195). ↩

²⁶² [Redacted] at CAN000003_0006 (C-195). ↩

²⁶³ [Redacted] at CAN000003_0006 (C-195). ↩

²⁶⁴ Claimant’s Memorial, at paras 115, 219. ↩

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ii. The Respondent’s Position

152. The Respondent argues that the factual details of the changes to the [Redacted] are “immaterial to the merits of this arbitration since the specific terms of the revised financing agreement do not change the assessment of whether there is a violation of NAFTA Articles 1102 or 1105”.²⁶⁵ Nevertheless, it proceeds to clarify the Claimant’s alleged misrepresentations with respect to the [Redacted].

a. $40 million credit facility

153. According to the Respondent, the rationale for the changes to the terms of the loan was the following: “[Redacted]”.²⁶⁶ GNS was of the opinion that the additional tax revenues from NSPI placed it in a “roughly equivalent situation as it would have been by waiting for full reimbursement from PWCC”.²⁶⁷

b. Income tax losses

154. The Respondent pleads that the revised income tax losses provisions [Redacted]²⁶⁸ rather than as a benefit handed to PWCC.²⁶⁹ [Redacted]²⁷⁰ In the Respondent’s opinion, this [Redacted].²⁷¹

(b) PWCC’s Negotiations for a Load Retention Rate

155. Once PWCC was selected as one of the two going-concern bidders for the Mill, PWCC began negotiations with NSPI for an LRR.²⁷²

156. The Department of Energy of GNS engaged Mr. Todd Williams of Navigant Consulting to assist PWCC and NSPI in their negotiations.²⁷³ The Parties disagree as to Mr. Williams’ role in the

²⁶⁵ Respondent’s Counter-Memorial, at para 114. ↩

²⁶⁶ Respondent’s Counter-Memorial, at para 117, referring to Witness Statement of Jeannie Chow, April 17, 2019, at para 9. ↩

²⁶⁷ Respondent’s Counter-Memorial, at para 117. ↩

²⁶⁸ Respondent’s Counter-Memorial, at para 116, referring to Witness Statement of Jeannie Chow, April 17, 2019, at paras 10, 16. ↩

²⁶⁹ Respondent’s Counter-Memorial, at para 116, referring to Claimant’s Memorial, at paras 219, 253. ↩

²⁷⁰ [Redacted] at CAN000003_0005 (C-195). ↩

²⁷¹ Respondent’s Counter-Memorial, at para 116. ↩

²⁷² Witness Statement of Murray Coolican, April 17, 2019, at para 11. ↩

²⁷³ Witness Statement of Murray Coolican, April 17, 2019, at paras 14-16. ↩

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negotiations. Their positions are developed in Section V of this Award.

157. To recall, PWCC and NSPI proposed to create a limited partnership that would own the Mill.²⁷⁴ Under this partnership, NSPI would provide certain assets to the use of the partnership, and would receive dividends to recover the incremental cost of supplying the power to the Mill and contribute to its fixed costs.²⁷⁵ This tax structure allowed the partnership to self-supply electricity from NSPI, so that NSPI would receive inter-corporate dividends, which would not be subject to income tax.²⁷⁶ It was ultimately denied by the CRA in September 2012.²⁷⁷

158. On April 27, 2012, PWCC and NSPI filed an application with the NSUARB for approval of their negotiated LRR and dividend calculation.²⁷⁸

159. The NSUARB expressed concern over two issues prior to approving the LRR. The first was the concern that other ratepayers would bear the cost of obtaining additional renewable energy to meet the standards set by the RES Regulations due to the PHP Mill returning to the grid (the “RES Regulations Issue”).²⁷⁹ To recall, the RES Regulations required that in 2011-2012, 5% of NSPI’s total sales of energy be renewable energy supplied by independent power producers.²⁸⁰ This requirement increased to 10% in 2013 and 25% in 2015, but allowed NSPI to acquire additional renewable energy from its own generation facilities as well.²⁸¹

160. The second of the NSUARB’s concerns related to the operation of a Biomass Plant (the “Biomass Plant Issue”) at the PHP Mill.²⁸² While the Mill was still under NPPH’s ownership, NSPI negotiated an agreement with NPPH to build a cogeneration power plant around the biomass-

²⁷⁴ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012, at 1 (C-012; C-166; R-167). ↩

²⁷⁵ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 17-20, 34, 53 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 5-8 (C-165). See also Claimant’s Memorial, at para 76; Respondent’s Counter-Memorial, at para 167. ↩

²⁷⁶ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 17 (C-184; R-062). ↩

²⁷⁷ Claimant’s Memorial, at para 100. ↩

²⁷⁸ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012 (C-012; C-166; R-167); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 9 (C-184; R-062). ↩

²⁷⁹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Excerpts from Transcript of NSUARB Hearing, July 16, 2012 at 159-161 (C-177). ↩

²⁸⁰ Renewable Energy Standard Regulations, N.S. Reg. 35/2007, at ss. 5(1), 5(3), 6(1), 6(3), 7(2)(d) (R-171). ↩

²⁸¹ Renewable Energy Standard Regulations, N.S. Reg. 155/2010, at ss. 4-6 (R-179). ↩

²⁸² In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 181-183 (C-184; R-062). ↩

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fired boiler at the Mill.²⁸³ According to the project, NSPI would own the Biomass Plant and the renewable energy it produced, and NPPH would use the steam it generated for the Mill’s operations.²⁸⁴ This agreement allowed NSPI “to meet its RES commitments in a planned and cost-effective manner which is in the interests of NSPI customers and our Province”.²⁸⁵ The project was approved on October 14, 2010.²⁸⁶

161. When ownership of the Mill transferred to PWCC, NSPI negotiated an agreement with PWCC whereby NSPI would continue to own the Biomass Plant and deliver steam to PHP.²⁸⁷ The latter would also pay for the fuel necessary to generate the steam it needed.²⁸⁸

162. The Claimant asserts that the Biomass Plant would need to run full-time for the sole purpose of producing steam for PHP.²⁸⁹ The NSUARB stated that it would not approve the LRR without controls on additional costs to ratepayers arising from the Biomass Plant operations.²⁹⁰

163. On July 20, 2012, GNS sent a letter to the NSUARB (the “July 2012 Letter”) addressing the two issues:

Incremental RES issue

Government Policy

The Government created the Renewable Electricity Standards to achieve a number of objectives: the obligation to meet a number of targets and the requirement that the provision of electricity come from specific technologies, and come from both Independent Power Producers as well as NSPI. Accordingly the Government has enabled the procurement of new sources to enable all of these objectives to be met. The Government is confident that there is enough RES supply coming on-line that the mill-load will not trigger an incremental RES cost over the term of the proposed mechanism.

Government Commitment

The Government commits to ensuring that if the mill load does trigger an additional RES obligation during the term of the proposed

²⁸³ In re An Application by Nova Scotia Power Inc., Application (Redacted) for Approval of Capital Work Order CI 39029, Port Hawkesbury Biomass Project, NSUARB, April 9, 2011, at 1 (R-182). ↩

²⁸⁴ In re An Application by Nova Scotia Power Inc., Decision, NSUARB, October 14, 2010, at para 9 (R-184). ↩

²⁸⁵ In re An Application by Nova Scotia Power Inc., Application (Redacted) for Approval of Capital Work Order CI 39029, Port Hawkesbury Biomass Project, NSUARB, April 9, 2011, at 35:21-22 (R-182). ↩

²⁸⁶ In re An Application by Nova Scotia Power Inc., Decision, NSUARB, October 14, 2010, at paras 112, 164 (R-184). ↩

²⁸⁷ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at Preamble, para 5.2.2 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

²⁸⁸ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at para 7.1 and Schedules 9 & 10 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

²⁸⁹ Claimant’s Memorial, at para 84. ↩

²⁹⁰ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 181-183 (C-184; R-062). ↩

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mechanism, and if this results in incremental costs, then the Province guarantees that neither PWCC nor other ratepayers will be required to pay these incremental costs.²⁹¹

***

Biomass Plant issue

Government Policy

Government policy has always been supportive of using biomass for combined heat and power. In 2011, the Government conducted a public consultation on changes to the Renewable Energy Standard Regulations. One of the proposed amendments to the regulations creates a requirement that a portion of the renewable electricity purchased to meet the standards be firm. Firm renewable generation enhances system reliability and facilitates the balancing of non-firm intermittent wind generation. This requirement would result in the obligation to run the biomass plant to achieve this objective, whether the mill is in operation or not. The policy intention has not changed.

Government Commitment

The Government commits to ensuring that PWCC receives the full benefit of the proposed arrangement it reached with Nova Scotia Power Inc. This will be accomplished as planned, through finalization of amendments to the Renewable Energy Standard Regulations so that the Port Hawkesbury CHP [sic] plant is operated at a base load and is deemed must run or we will address the issue through an equivalent solution that meets the objectives of the proposed arrangement.²⁹²

164. The Parties’ positions regarding the purpose and influence of this letter on the NSUARB’s approval of the LRR are developed in forthcoming sections.²⁹³

165. On August 20, 2012, the NSUARB approved the LRR, subject to receiving an ATR from the CRA.²⁹⁴

166. As mentioned above,²⁹⁵ the CRA subsequently refused the ATR, denying the proposed dividend tax structure.²⁹⁶ Accordingly, on September 22, 2012, PWCC and NSPI filed an application to

²⁹¹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012 (C-179); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 178 (C-184; R-062). ↩

²⁹² In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012 (C-179); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 178-179 (C-184; R-062). ↩

²⁹³ Claimant’s Memorial, at paras 84-85; Respondent’s Counter-Memorial, at para 217. ↩

²⁹⁴ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 133 (C-184; R-062). ↩

²⁹⁵ See supra, at Paragraph 145 of this Award. ↩

²⁹⁶ Claimant’s Memorial, at para 100; Respondent’s Counter-Memorial, at para 168. ↩

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amend the NSUARB’s order by removing NSPI’s ownership interest and right to dividends.²⁹⁷

167. On September 27, 2012, the NSUARB approved the amended LRR mechanism, pursuant to which the PHP Mill would pay the variable incremental costs of service and contribute to NSPI’s fixed costs.²⁹⁸ PHP would also pay its electricity invoices in advance, and NSPI acquired the right to interrupt PHP’s entire load on a ten-minute notice.²⁹⁹ Lastly, PWCC assumed all of NSPI’s risk of fuel cost fluctuations in relation to its provision of electricity to the Mill.³⁰⁰

168. In January 2013, GNS amended the RES Regulations to add provisions with respect to the generation of electricity using biomass. In particular, NSPI was required to produce certain amounts of “firm” renewable energy, with the Biomass Plant as the “base-load” unit.³⁰¹

169. The Parties’ positions with respect to certain disputed facts are laid out below.

i. The Claimant’s position

170. In the Claimant’s view, the LRR obtained by PWCC for the PHP Mill is a component of the ensemble of Assistance Measures GNS provided.³⁰² It considers the LRR a “package” of measures itself, including the fix cost of service, a tax-efficient structure for payments to NSPI, incremental costs of service, favorable amendments to the province’s RES Regulations, the Biomass Plant onsite at the Mill, and a long-term rate structure.³⁰³

a. The July 2012 Letter

²⁹⁷ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application for Amendments to the Order Approving the Load Retention Rate Mechanism, September 22, 2012 (C-197). ↩

²⁹⁸ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Amended Decision, NSUARB, September 27, 2012 (C-208; R-063); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 1-2 (R-170). ↩

²⁹⁹ In re an Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 4 (R-170); United States – WTO Panel Report – Supercalendered Paper, July 5, 2018, at para 7.16 (R-238). ↩

³⁰⁰ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 2 (R-170); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 2, 6 (C-165); In re An Application by Pacific West Commercial Corporation and Nova Scotia Inc., NSPI Responses – Avon, May 30, 2012, at Request IR-2 1-2, Request IR-5 1-2 (R-239); In re An Application by Pacific West Commercial Corporation and Nova Scotia Inc., NSPI Responses to Synapse Information Requests, May 30, 2012, at Request IR-6 1-2 (R-240). ↩

³⁰¹ Amendments to the Renewable Energy Regulations, N.S. Reg. 155/2010, January 17, 2013, at s. 4 (C-217); Order in Council, No. 2013-12, January 17, 2013, at s 4 (R-225). See also Respondent’s Counter-Memorial, at para 212; Hearing on the Merits and Damages, October 18, 2021, at 38:14-22. ↩

³⁰² Claimant’s Memorial, at paras 71, 219. ↩

³⁰³ Claimant’s Memorial, at para 74. ↩

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171. The Claimant characterizes the July 2012 Letter as an “intervention” by GNS into the NSUARB proceedings,³⁰⁴ which ultimately led the NSUARB to approve the LRR.³⁰⁵ It claims that GNS “changed the law for PWCC’s benefit”³⁰⁶ and [Redacted]hat neither PWCC nor other ratepayers would need to absorb additional costs.³⁰⁷

b. The value of the LRR

172. The Claimant believes that PWCC’s LRR was “worth millions” in comparison to the standard tariff applicable to all large customers and the prior LRR granted to the Mill under NPPH’s ownership.³⁰⁸ It states that in 2013, PHP’s total expenditure pursuant to its LRR was [Redacted].³⁰⁹ It argues that this figure represents approximately [Redacted] in savings in comparison to the price of energy NPPH would have paid pursuant to its rate in the same year.³¹⁰ According to the same calculations, the Claimant finds that PHP saved a further approximate [Redacted] in 2014³¹¹ and [Redacted] in 2015.³¹² The Claimant argues that it is irrelevant whether Resolute pays for less expensive hydropower in Québec than PHP pays as a result of the GNS discount, noting that the electricity rate was only one part of a larger costs savings that PHP benefited from in Nova Scotia.³¹³

173. The Claimant adds that GNS’s designation of the Biomass Plant as a “must-run” facility (meaning it ran full-time) cost ratepayers nearly $20 million in “benefits”³¹⁴ between July 2013, when the Biomass Plant became fully-operational,³¹⁵ and April 2016, when GNS amended its RES

³⁰⁴ Claimant’s Memorial, at para 82. ↩

³⁰⁵ Claimant’s Memorial, at para 82, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 180-183 (C-184; R-062). ↩

³⁰⁶ Claimant’s Memorial, at paras 82. See also Claimant’s Memorial, at para 126. ↩

³⁰⁷ Claimant’s Memorial, at para 172, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012, at 1-2 (C-179); [Redacted] (C-210). ↩

³⁰⁸ Claimant’s Memorial, at para 117. ↩

³⁰⁹ Claimant’s Memorial, at para 118, referring to [Redacted] at CAN000005_0003 (C-222). The Claimant explains PHP’s savings in 2014 and 2015 in Claimant’s Memorial, at paras 119-120. ↩

³¹⁰ Claimant’s Memorial, at para 118, referring to In re An Application by NewPage-Port Hawkesbury and Bowater Mersey Paper Company, Decision, NSUARB, November 29, 2011, at para 287 (C-138). ↩

³¹¹ Claimant’s Memorial, at para 119. ↩

³¹² Claimant’s Memorial, at para 120. ↩

³¹³ Hearing on the Merits and Damages, November 9, 2020, at 29:17-30:4. ↩

³¹⁴ Claimant’s Memorial, at para 124; Hearing on the Merits and Damages, October 18, 2021, at 34:8-25. ↩

³¹⁵ Claimant’s Memorial, at para 123, referring to Pulp and Paper World, News Release, “Biomass Plant Humming at Full Capacity”, July 3, 2013 (C-219). ↩

[Page 46]

Regulations to remove the “must-run” designation.³¹⁶

ii. The Respondent’s position

174. In the Respondent’s view, the LRR is not a benefit conferred on PWCC because it was negotiated between two private parties, NSPI and PWCC, over which GNS had no control.³¹⁷ Moreover, the LRR that PWCC ultimately obtained was [Redacted].³¹⁸

a. The July 2012 Letter

175. The Respondent argues that the Claimant exaggerates the significance of the July 2012 Letter³¹⁹ and disputes the Claimant’s characterization of it as a “waiver” by GNS of the RES obligations to enable the NSUARB’s approval of the LRR.³²⁰

176. Concerning the amendments to the RES Regulations, the Respondent shows that the amendments were prepared and released for public consultation in June 2011,³²¹ “months before PWCC was even in the picture”.³²² It claims that approval of the RES Regulations was delayed due to the risk of shutdown of both the Port Hawkesbury and Bowater Mersey mills, because the shutdowns would impact renewable energy policy more broadly.³²³ As mentioned above, the amendments were passed in January 2013, after it was clear to GNS in the summer of 2012 that NSPI had decided to finish construction of its Port Hawkesbury Biomass Plant and “take a stake in the Port Hawkesbury mill under new ownership”.³²⁴ In the Respondent’s view, the July 2012 Letter merely confirmed that “because there was enough [renewable energy] supply coming on-line and the return of the mill-load would not otherwise increase the total system load from what had been planned for in prior years, the Port Hawkesbury mill returning to the grid would not trigger an

³¹⁶ Claimant’s Memorial, at para 123, referring to Government of Nova Scotia, Press Release, “Government Ends Must-Run Regulation, Reduces Biomass Use”, April 8, 2016 (C-240). ↩

³¹⁷ Respondent’s Counter-Memorial, at para 183. ↩

³¹⁸ Respondent’s Counter-Memorial, at para 170, referring to [Redacted] (C-125). ↩

³¹⁹ Respondent’s Counter-Memorial, at para 201. ↩

³²⁰ Respondent’s Counter-Memorial, at para 217. ↩

³²¹ Respondent’s Counter-Memorial, at para 211, referring to Proposed Amendments to Renewable Energy Regulations, June 27, 2011 (R-185). ↩

³²² Respondent’s Counter-Memorial, at para 211. ↩

³²³ Respondent’s Counter-Memorial, at para 211, citing Witness Statement of Murray Coolican, April 17, 2019, at para 38. ↩

³²⁴ Respondent’s Counter-Memorial, at para 211, citing Witness Statement of Murray Coolican, April 17, 2019, at para 38. ↩

[Page 47]

incremental [renewable energy] cost over the term of the proposed LRR pricing mechanism”.³²⁵

177. With respect to the Biomass Plant, the Respondent reports that NSPI had begun construction and operation of the Biomass Plant by the time NPPH filed for creditor protection in September 2011.³²⁶ When ownership of the Mill transferred to PWCC, NSPI negotiated an agreement with PWCC whereby NSPI would continue to own the Biomass Plant and deliver steam to PHP.³²⁷ It claims that NSPI wanted to continue operating the Biomass Plant in order to keep profiting from its investment and in order to help it meet its RES obligations.³²⁸ The Respondent contends that the NSUARB approved their agreement, determining that the prices for the steam supply and shared services “appeared reasonable and not subsidized by ratepayers”,³²⁹ It adds that PHP pays nearly $4 million annually for the steam supplied by NSPI and PHP shoulders the cost of fuel necessary to the production of steam.³³⁰ Moreover, it claims that even if NSPI did not operate the Biomass Plant, PHP could still procure steam from its own gas-fired boiler.³³¹

178. Ultimately, the Respondent asserts that the return of the PHP Mill to the grid never did in fact trigger additional RES obligations.³³²

b. The value of the LRR

179. In the Respondent’s opinion, the LRR that PWCC obtained for operations at the PHP Mill was significantly higher than what it had originally sought from NSPI ($30/MWh).³³³ PWCC agreed

³²⁵ Respondent’s Counter-Memorial, at para 217, citing Witness Statement of Murray Coolican, April 17, 2019, at para 26; In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Non-Confidential Government of Nova Scotia Amended Response to Consumer Advocate, July 18, 2012, at 2 (R-177). ↩

³²⁶ Respondent’s Counter-Memorial, at para 207, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., NSUARB, April 27, 2012, at 6 (R-167); Hearing on the Merits and Damages, October 18, 2021, at 448:15-20. ↩

³²⁷ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at Preamble, para 5.2.2 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

³²⁸ Respondent’s Counter-Memorial, at para 210, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Transcript of Oral Hearing, NSUARB, July 17, 2012, at 439 (R-249). ↩

³²⁹ Respondent’s Counter-Memorial, at para 208, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 158 (C-184; R-062). ↩

³³⁰ Respondent’s Counter-Memorial, at para 213. ↩

³³¹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 156 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Redacted Pacific West Commercial Corporation Responses to Information Requests from the Small Business Advocate, May 30, 2012, at 2-3 (R-247). ↩

³³² Respondent’s Counter-Memorial, at para 220, referring to Witness Statement of Murray Coolican, April 17, 2019, at para 31. ↩

³³³ Respondent’s Counter-Memorial, at para 170; Respondent’s Rejoinder Memorial, at para 28, referring to [Redacted] at 1 (C-125). ↩

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for PHP to assume all of NSPI’s fuel risk, which resulted in PHP’s electricity price [Redacted].³³⁴ This is attributable to the fact that “PHP’s hourly electricity costs are calculated based on PHP consuming the electricity generated from the conventional fuel with the highest cost used by NSPI in any given hour”.³³⁵ The Respondent contends that these higher electricity costs have prevented the Mill from operating at full capacity.³³⁶

D. RESOLUTE’S SIMULTANEOUS NEGOTIATIONS WITH GNS FOR FINANCIAL ASSISTANCE

1. Decline of Bowater Mersey

180. Shortly before NPPH filed for creditor protection under the CCAA in September 2011, Resolute informed the premier of Nova Scotia that it intended to announce the permanent closure of Bowater Mersey.³³⁷ At this time, B[Redacted]³³⁸

181. Resolute and GNS officials began meeting in September 2011 to discuss financial assistance that GNS could offer to keep Bowater Mersey operational.³³⁹ The Respondent notes that GNS sought to provide financial assistance to Resolute due to the adverse economic impact that the shutdown of Bowater Mersey would have had on Nova Scotia’s economy.³⁴⁰

182. On November 1, 2011, Resolute announced the idling of Bowater Mersey for a week starting on November 14, 2011 and potentially two more weeks in December 2011.³⁴¹

³³⁴ [Redacted] at 3 (C-222). ↩

³³⁵ Respondent’s Counter-Memorial, at para 170. See also, In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 2 (R-170); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 2 (C-165); In re An Application by Pacific West Commercial Corporation and Nova Scotia Incorporated, NSPI Responses – Avon, May 30, 2012, at 1-2 (R-239); In re An Application by Pacific West Commercial Corporation and Nova Scotia Inc., NSPI Responses to Synapse Information Requests, May 30, 2012, at 1 (R-240). ↩

³³⁶ Respondent’s Counter-Memorial, at para 170, referring to Transcript of Proceedings before US International Trade Commission in re Supercalendered Paper from Canada, Inv. No. 701-TA-530, October 22, 2015, at 163:19-164:2 (C-236). ↩

³³⁷ Witness Statement of Duff Montgomerie, April 17, 2019, at para 9. ↩

³³⁸ [Redacted] (R-145); In re An Application by NewPage Port Hawkesbury Corp., Pre-Filed Evidence of Bowater Mersey Paper Company Limited, June 22, 2011, at 1 (R-166). ↩

³³⁹ Witness Statement of Duff Montgomerie, April 17, 2019, at paras 10, 20. ↩

³⁴⁰ Respondent’s Counter-Memorial, at para 43. ↩

³⁴¹ CBC News, News Release, “Bowater mill to close for one week”, November 1, 2011 (R-321); The Chronicle Herald, News Release, “Bowater Mersey on brink of closure”, November 1, 2011 (R-320); The Canadian Press, News Release, “Bowater Mersey paper mill in Nova Scotia to close for a week amid weak market”, November 1, 2011 (R-322). ↩

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183. A number of steps were taken to reduce costs at Bowater Mersey. First, on November 16, 2011, Bowater Mersey’s unionized workers voted to accept contract concessions that included cutting 80 full-time and 30 casual positions.³⁴²

184. Second, on November 17, 2011, Resolute obtained a 15% property tax reduction for 10 years for Bowater Mersey.³⁴³

185. Third, earlier on June 6, 2011, Bowater Mersey and NPPH (prior to it becoming PHP) filed a joint application to the NSUARB for a discounted electricity rate “in order for their businesses to remain sustainable”.³⁴⁴ The Respondent reports that one third of Bowater Mersey’s manufacturing costs were electricity, with the mill consuming approximately 4-5% of the electricity generated in Nova Scotia.³⁴⁵ On November 29, 2011, the NSUARB approved a reduced electricity rate for a 3-year term for Bowater Mersey, but deferred its decision on NPPH until a potential buyer was found.³⁴⁶

186. Finally, [Redacted]³⁴⁷ [Redacted]³⁴⁸

2. Bowater Mersey’s Financial Assistance Package

(a) $25 million capital loan

187. The $25 million capital loan was intended to fund projects that [Redacted]

³⁴² The Canadian Press, News Release, "Bowater Mersey workers accept contract concessions in bid to save N.S. mill", November 16, 2011 (R-325); Nova Scotia Premier’s Office, News Release, "Premier Re-Affirms Commitment to Help Find Solution for Bowater Mersey", November 17, 2011 (R-326); The Canadian Press, News Release, "Nova Scotia premier says job cuts one step on road to saving paper mill", November 17, 2011 (R-327). ↩

³⁴³ Bowater Mersey Pulp and Paper Investment (2011) Act, SNS 2011, c. 32, at preamble, ss. 3, 9 (R-151). ↩

³⁴⁴ In re An Application by NewPage Port Hawkesbury Corp. and Bowater Mersey Paper Co., Letter re: Proposed Amendments to Nova Scotia Power Inc.’s Load Retention Tariff, June 6, 2011 (R-162). ↩

³⁴⁵ In re An Application by NewPage Port Hawkesbury Corp. and Bowater Mersey Paper Co., Pre-Filed Evidence of Bowater Mersey Paper Company Limited, June 22, 2011, at 1-2 (R-166). ↩

³⁴⁶ In re An Application by NewPage Port Hawkesbury Corp. and Bowater Mersey Paper Co., Decision, NSUARB, November 29, 2011, at paras 223-224 (C-138). ↩

³⁴⁷ [Redacted] December 1, 2011, at 1-2 (R-149). ↩

³⁴⁸ [Redacted] December 1, 2011, at 1-2 (R-149). ↩

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[Redacted]³⁴⁹

[Redacted]³⁵⁰

(b) $23.75 million land purchase

188. GNS committed to purchasing [Redacted]³⁵¹ [Redacted]³⁵² According to the Respondent, this element of the package served “a dual purpose of achieving the GNS’s goal of protecting land, while providing some cash liquidity that the mill needed for its operations”.³⁵³

(c) $1.5 million workforce training grant

189. This $1.5 million workforce training grant to be received in 2012-2014 was intended to provide training to employees for the use of new equipment and technology improvements made possible by GNS financial assistance.³⁵⁴

(d) Reduced property taxes

190. The Nova Scotia legislature authorised reduced municipal property taxes for Bowater Mersey and Brooklyn Power Company that were intended to last 10 years and would result in annual savings of approximately $135,000.³⁵⁵

³⁴⁹ [Redacted] December 1, 2011, at 2 (R-149). ↩

³⁵⁰ [Redacted] December 1, 2011, at 3 (R-149). ↩

³⁵¹ [Redacted] December 1, 2011, at 4 (R-149). ↩

³⁵² [Redacted] December 1, 2011, at 5 (R-149). ↩

³⁵³ Respondent’s Counter-Memorial, at para 58. ↩

³⁵⁴ Respondent’s Counter-Memorial, at para 60, referring to [Redacted] (R-149); Nova Scotia House of Assembly Debates and Proceedings, No. 11-64, December 12, 2011, at 5221 (R-213). ↩

³⁵⁵ Bowater Mersey Pulp and Paper Investment (2011) Act, SNS 2011, c. 32, at s. 9 (R-151). ↩

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191. [Redacted]³⁵⁶ [Redacted]³⁵⁷

3. Closure of Bowater Mersey

192. Despite the financial assistance package granted to it,³⁵⁸ on June 17, 2012, Resolute announced that Bowater Mersey would be idled indefinitely.³⁵⁹

193. On December 10, 2012, GNS and Resolute concluded an agreement under which GNS purchased Bowater Mersey’s shares for $1; in exchange, GNS assumed all of the mill’s liabilities (which were estimated at $136.4 million).³⁶⁰ The mill’s assets included approximately 555,000 acres of woodlands³⁶¹ and the Brooklyn power plant, which was later sold.³⁶²

E. US INVESTIGATIONS INTO CANADA’S ALLEGED SUBSIDIZATION OF SC PAPER EXPORTS

1. United States Trade Representative’s Questions to Canada

194. Following the Court’s approval for the sale of the Mill to PWCC on September 25, 2012,³⁶³ the United States Trade Representative (“USTR”) opened an investigation into whether the

³⁵⁶ Respondent’s Counter-Memorial, at para 62, referring to [Redacted] December 1, 2011, at 6 (R-149). ↩

³⁵⁷ [Redacted] December 1, 2011, at 6 (R-149). ↩

³⁵⁸ Respondent’s Counter-Memorial, at paras 63-64. ↩

³⁵⁹ Resolute Forest Products, News Release, “Resolute to Indefinitely Idle Mersey Mill in Nova Scotia”, June 15, 2012 (R-153). ↩

³⁶⁰ Nova Scotia Premier’s Office, News Release, “Province Takes Crucial Step to Build Forestry of Future”, December 10, 2012 (R-155). ↩

³⁶¹ Cortex Consultants Inc., Valuation Summary, "Valuation of the Bowater Mersey Woodlands: Valuation Summary", November 18, 2012, at v-vi (R-353); Nova Scotia Executive Council Office, Order-in-Council, No. 2012-381, December 10, 2012 (R-352); Nova Scotia Premier’s Office, News Release, “Province Takes Crucial Step to Build Forestry of Future”, December 10, 2012 (R-155); Nova Scotia Department of Lands and Forestry, "Bowater Land Purchase – Announced December 2012", December 10, 2012 (R-214). ↩

³⁶² Nova Scotia Executive Council Office, Order-in-Council, No. 2012-375, December 7, 2012 (R-347); In re An Application by NewPage Port Hawkesbury Corporation, Pre-Filed Evidence of Bowater Mersey Paper Company Limited, June 22, 2011, at 1 (R-166); Nova Scotia Department of Lands and Forestry, “Bowater Land Purchase – Announced December 2012”, December 10, 2012 (R-214); Resolute Forest Products, "Resolute Announces Sale of Mersey Assets", December 10, 2012 (R-348); The Chronicle Herald, "Province buys Bowater lands”, December 10, 2012 (R-349). ↩

³⁶³ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012 (R-035). ↩

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Assistance Measures provided by GNS to PWCC and the PHP Mill were consistent with Canada’s World Trade Organization (“WTO”) and NAFTA commitments.³⁶⁴

195. [Redacted]³⁶⁵ It also raised the issue at a meeting of the WTO Committee on Subsidies and Countervailing Measures on October 23, 2012.³⁶⁶ At the WTO Committee meeting, Canada stated that it would provide replies in November 2012 to the questions the USTR had sent.³⁶⁷

196. [Redacted]³⁶⁸

197. The issue was raised again at another meeting of the WTO Committee on Subsidies and Countervailing Measures on April 22, 2013, to which Canada replied that it had already responded to the USTR’s questions and had provided as much information as possible while respecting the business confidentiality of the information.³⁶⁹

198. In July 2013, Canada submitted its New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures to the WTO (“SCM Agreement”).³⁷⁰ The Claimant advances that Canada denied before the WTO that GNS provided any subsidies (including grants, loans, and procurement) to PWCC for the Mill.³⁷¹ The Respondent allegedly failed to report any subsidies from GNS to PWCC in its 2015 and 2017 notifications to the WTO as well,³⁷² despite reporting subsidies in other provinces and from the

³⁶⁴ Respondent’s Statement of Defence, at paras 56-57. ↩

³⁶⁵ [Redacted] (C-037). ↩

³⁶⁶ WTO, Committee on Subsidies and Countervailing Measures, Minutes of the Regular Meeting held on 23 October 2012, WTO Doc. G/SCM/M/83, January 10, 2013, at para 61 (R-078). ↩

³⁶⁷ WTO, Committee on Subsidies and Countervailing Measures, Minutes of the Regular Meeting held on 23 October 2012, WTO Doc. G/SCM/M/83, January 10, 2013, at para 63 (R-078). ↩

³⁶⁸ [Redacted] (C-212). ↩

³⁶⁹ WTO, Committee on Subsidies and Countervailing Measures, Minutes of the Regular Meeting held on 22 April, 2013, WTO Doc. G/SCM/M/85, August 5, 2013, at paras 128-132 (C-353; R-079). ↩

³⁷⁰ WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/N/253/CAN, July 1, 2013 (C-021). ↩

³⁷¹ Claimant’s Reply Memorial, at para 277, referring to WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/N/253/CAN, July 1, 2013, at s. 12 (C-021). See also Claimant’s Reply Memorial, at para 282, referring to [Redacted] (C-212). ↩

³⁷² Claimant’s Reply Memorial, at para 285, referring to WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/N/284/CAN, July 9, 2015, at s. 12 (C-359); WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/315/CAN, July 3, 2017, at s. 12 (C-361). ↩

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federal government in Nova Scotia.³⁷³ The Respondent disputes the relevance of Canada’s notifications to the WTO Committee on Subsidies and Countervailing Measures to the determination of whether a measure qualifies under NAFTA Article 1108(7)(b).³⁷⁴ The Parties’ positions on this matter are further developed in Section VI.A of this Award.

2. US Department of Commerce’s Countervailing Duties Investigation

199. The Claimant submits that it warned Canadian officials in July 2014 that it had “knowledge of steps being taken in the United States leading to a countervailing duty investigation of Canadian exports of SC paper”.³⁷⁵ It also wrote to the Canadian Minister of International Trade to raise concerns about both the harm GNS’s assistance to PHP was causing Resolute and the potential US trade remedy case.³⁷⁶

200. On February 26, 2015, two US producers of SC Paper petitioned the US DOC and the US International Trade Commission to launch a countervailing duty investigation (the “CVD Investigation”) into SC Paper imports from Canada.³⁷⁷ The petitioners alleged that Canada and certain Canadian provinces were providing countervailable subsidies to imports of SC Paper from Canada, which were materially injuring or threatening to materially injure the domestic industry in the United States.³⁷⁸ The US DOC formally launched its investigation on March 18, 2015.³⁷⁹

201. The Claimant was required to pay US$60 million in duty deposits pending final resolution of the investigation and appeal.³⁸⁰

202. The Respondent entered into a Joint Defense and Confidentiality Agreement (“JDCA”) with all producers of SC Paper in Canada (PHP, Irving, and Catalyst), excluding Resolute.³⁸¹ The

³⁷³ Claimant’s Reply Memorial, at para 286, referring to WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/N/253/CAN, July 1, 2013, at s. 7.2 (C-021); WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/N/284/CAN, July 9, 2015, at ss. 2.1, 7.1 (C-359); WTO, New and Full Notification Pursuant to Article XVI:I of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures – Canada, WTO Doc. G/SCM/315/CAN, July 3, 2017, at ss. 2.2, 2.3 (C-361). ↩

³⁷⁴ Respondent’s Counter-Memorial, at para 239. ↩

³⁷⁵ Claimant’s Statement of Claim, at para 58; Claimant’s Memorial, at para 146. ↩

³⁷⁶ Claimant’s Statement of Claim, at para 64; Claimant’s Memorial, at para 146. ↩

³⁷⁷ US DOC, Supercalendered Paper From Canada: Initiation of Countervailing Duty Investigation, Federal Register, Vol. 80, No. 58, March 26, 2015, at 15981-15983 (R-080). ↩

³⁷⁸ US DOC, Supercalendered Paper From Canada: Initiation of Countervailing Duty Investigation, Federal Register, Vol. 80, No. 58, March 26, 2015, at 15981 (R-080). ↩

³⁷⁹ Respondent’s Statement of Defence, at para 60. ↩

³⁸⁰ Claimant’s Memorial, at paras 134, 150. ↩

³⁸¹ Claimant’s Memorial, at para 149; Respondent’s Statement of Defence, at para 66. ↩

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Respondent explains that the purpose of a JDCA was to “enable the sharing of privileged and confidential information in relation to the measures at issue [...] including the Nova Scotia Measures”,³⁸² and that Resolute’s exclusion from the JDCA was due to the latter giving notice of its intention to begin arbitral proceedings under NAFTA Chapter 11 for GNS’s assistance to PWCC and the Mill on February 24, 2015.³⁸³ The Claimant responds that this notice was then private and unofficial.³⁸⁴

203. The Claimant alleges that Canada and GNS “vigorously defended themselves and PHP against any and all subsidy allegations”.³⁸⁵ The Respondent refutes this claim, stating instead, “Canada and the GNS did not dispute certain elements of the subsidy findings with respect to the FULA, the credit facility, the capital loan, the workforce training grant, the marketing contribution, and the Indemnity Agreement”.³⁸⁶ Moreover, the Respondent pleads that during the investigation, it cooperated with all four producers of SC Paper in Canada, including the Claimant, despite the latter giving notice of its intention to begin arbitral proceedings under NAFTA Chapter 11 for GNS’s assistance to PWCC and the Mill.³⁸⁷

204. On October 13, 2015, the US DOC issued its Final Determination in the CVD Investigation.³⁸⁸ It concluded that the following measures constituted countervailing subsidies to PHP: the $40 million credit facility, the $24 million capital loan, the $1.5 million training grant, the $1 million marketing contribution, the provision of stumpage under the FULA, the Outreach Agreement, the Indemnity Agreement, the provision of electricity, and the Land Purchase Agreement.³⁸⁹ The US DOC also found that GNS, through the NSUARB, entrusted or directed NSPI to make a financial contribution to PHP by providing electricity.³⁹⁰

205. Following the results of the CVD Investigation, Canada initiated dispute settlement proceedings before a NAFTA Panel and a WTO Panel.³⁹¹ The NAFTA Panel issued its decision in April 2017

³⁸² Respondent’s Statement of Defence, at para 66. ↩

³⁸³ Respondent’s Statement of Defence, at para 66. See also Notice of Intent to Arbitrate, February 24, 2015 (R-081). ↩

³⁸⁴ Claimant’s Memorial, at para 149. ↩

³⁸⁵ Claimant’s Memorial, at para 229. ↩

³⁸⁶ Respondent’s Counter-Memorial, at para 238, referring to Respondent’s Statement of Defence, at para 75. ↩

³⁸⁷ Respondent’s Statement of Defence, at para 62, referring to Notice of Intent to Arbitrate, February 24, 2015 (R-081). ↩

³⁸⁸ US DOC, Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Supercalendered Paper from Canada, October 13, 2015 (R-395). ↩

³⁸⁹ US DOC, Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Supercalendered Paper from Canada, October 13, 2015, at 13-16, 24-26, 30-53 (R-395). ↩

³⁹⁰ NAFTA Article 1904 Binational Panel Review, Supercalendered Paper from Canada: Final Affirmative Duty Determination, Memorandum Opinion and Order, April 13, 2017, at 31 (R-270). ↩

³⁹¹ Respondent’s Counter-Memorial, at para 154. ↩

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and remanded the US DOC’s conclusions pertaining to GNS’s involvement in the LRR negotiations between PWCC and NSPI, as well as the Outreach Agreement, noting that the US DOC had not identified substantial evidence to support GNS’s involvement.³⁹² The WTO Panel issued its report in July 2018. It concluded that the US DOC acted inconsistently with the SCM Agreement when it found entrustment or direction by GNS in relation to NSPI’s provision of electricity.³⁹³ The Claimant contests the relevance of these findings to this arbitration, suggesting that it makes arguments that are different from those the WTO Panel considered to reach its conclusion with respect to entrustment and direction by GNS.³⁹⁴

206. On March 21, 2018, Verso, one of the US petitioners, concluded a settlement agreement with PHP and Irving Paper to dismiss the proceedings.³⁹⁵

207. In July 2018, the US DOC ended the CVD Investigation and refunded Resolute’s deposit, with interest.³⁹⁶

IV. RELIEF SOUGHT

208. In its Memorial, the Claimant requests this Tribunal to issue:

1. a finding that the Measures are attributable to GNS, and therefore to Canada;
2. a finding that Canada has violated its obligations to Resolute under Article 1102;
3. a finding that Canada has violated its obligations to Resolute under Article 1105;
4. a finding that Canada’s breaches of its obligations under NAFTA Chapter 11 caused Resolute to incur damages;
5. an award of damages in the amount of at least $US163,695,000 or such other amount to be determined by the Tribunal;
6. an award to Resolute for its costs and fees of this arbitration; and
7. such other relief as the Tribunal may determine to be lawful and appropriate under the circumstances.³⁹⁷

209. In its Reply, the Claimant requests this Tribunal to issue:

1. a finding that the Measures are attributable to GNS, and therefore to Canada;
2. a finding that Canada has violated its obligations to Resolute under Article 1102;

³⁹² NAFTA Article 1904 Binational Panel Review, Supercalendered Paper from Canada: Final Affirmative Duty Determination, Memorandum Opinion and Order, April 13, 2017, at 31-36, 44-50 (R-270). ↩

³⁹³ United States, WTO Panel Report – Supercalendered Paper, July 5, 2018, at paras 7.68, 7.78 (R-238). ↩

³⁹⁴ Claimant’s Reply Memorial, at para 80. ↩

³⁹⁵ Settlement Agreement between Verso, Port Hawkesbury Paper, and Irving Paper, March 21, 2018 (C-242). ↩

³⁹⁶ Supercalendered Paper from Canada; Notice of Rescission of Countervailing Duty Administrative Review, Federal Register, Vol. 83, No. 134, July 12, 2018, at part 2 (C-246). ↩

³⁹⁷ Claimant’s Memorial, at para 310. ↩

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3. a finding that Canada has violated its obligations to Resolute under Article 1105;
4. a finding that Canada’s breaches of its obligations under NAFTA Chapter 11 caused Resolute to incur damages;
5. an award of damages in the amount of at least $US103,967,000 or such other amount to be determined by the Tribunal;
6. an award to Resolute for its costs and fees of this arbitration; and
7. such other relief as the Tribunal may determine to be lawful and appropriate under the circumstances.³⁹⁸

210. In its Pre-Hearing Memorial, the Claimant revises its damages estimate, requesting that: “the Tribunal accept the midpoint for each range ($126 million for the forecast; $121.4 million for the price-elasticity approach), and asks that, consistent with Resolute’s overall conservative approach to damages (using the [Redacted] MT for increased capacity; limiting losses to price erosion), the Tribunal award the more conservative $121.4 million in addition to costs and fees”.³⁹⁹

211. In its Counter-Memorial, the Respondent requests this Tribunal to issue an award:

1. dismissing the Claimant’s claims that Canada has violated its obligations under Articles 1102 and 1105 of NAFTA in their entirety;
2. dismissing the Claimant’s claim that it incurred damages as the result of Canada violating its obligations under Chapter 11 of NAFTA;
3. ordering the Claimant to bear the costs of this arbitration in full and to indemnify Canada for its legal fees and costs in this arbitration; and
4. granting any further relief it deems just and appropriate under the circumstances.⁴⁰⁰

212. In its Rejoinder, the Respondent requests this Tribunal to issue an award:

1. finding that the Claimant’s claims relating to the Port Hawkesbury electricity rate are outside the Tribunal’s jurisdiction;
2. dismissing the Claimant’s claims that Canada has violated its obligations under Articles 1102 and 1105 of NAFTA in their entirety;
3. dismissing the Claimant’s claim that it incurred damages as the result of Canada violating its obligations under Chapter 11 of NAFTA;
4. ordering the Claimant to bear the costs of this arbitration in full and to indemnify Canada for its legal fees and costs in this arbitration; and
5. granting any further relief it deems just and appropriate under the circumstances.⁴⁰¹

213. In its Pre-Hearing Memorial, Canada requests the Tribunal to “reject all claims by the Claimant and order it to bear the costs of the arbitration and indemnify Canada its incurred legal fees and costs”.⁴⁰²

³⁹⁸ Claimant’s Reply Memorial, at para 397. ↩

³⁹⁹ Claimant’s Pre-Hearing Memorial, at para 109. ↩

⁴⁰⁰ Respondent’s Counter-Memorial, at para 397. ↩

⁴⁰¹ Respondent’s Rejoinder Memorial, at para 259. ↩

⁴⁰² Respondent’s Pre-Hearing Memorial, at para 73. ↩

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V. ATTRIBUTION

A. INTRODUCTION

214. As a matter of attribution, the main point of contention between the Parties concerns the LRR. The Claimant submits that the Tribunal should consider the LRR as part of the Assistance Measures that PWCC obtained from GNS because the LRR was necessary for PWCC’s purchase of the Mill.⁴⁰³ The Claimant argues that GNS played an integral role in negotiating and obtaining the NSUARB’s approval of the “electricity deal” from which PWCC allegedly benefited.⁴⁰⁴ On this basis, the Claimant contends that the negotiation of PWCC’s LRR is attributable to Canada under NAFTA Article 1101(1), and Articles 4, 8, and 11 of the International Law Commission’s Articles on State Responsibility (the “ILC Articles”), which brings it within the jurisdiction of the Tribunal.

215. ILC Article 4 provides that “[t]he conduct of any State organ shall be considered an act of that State under international law, whether the organ exercised legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”.⁴⁰⁵ Under Article 4, a State organ is defined as “any person or entity which has that status in accordance with the internal law of the State”.⁴⁰⁶

216. ILC Article 8 states that “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.⁴⁰⁷

217. Lastly, pursuant to ILC Article 11, “[c]onduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own”.⁴⁰⁸

218. The Respondent disputes the attribution of the LRR to GNS. According to the Respondent, the

⁴⁰³ Claimant’s Memorial, at paras 161-163. ↩

⁴⁰⁴ Claimant’s Memorial, at para 168. ↩

⁴⁰⁵ Claimant’s Reply Memorial, at para 41, citing International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), at Article 4(1) (CL-145). ↩

⁴⁰⁶ International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), at Article 4(2) (CL-145). ↩

⁴⁰⁷ Claimant’s Memorial, at para 176, citing International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), at Article 8 (CL-145). ↩

⁴⁰⁸ Claimant’s Reply Memorial, at para 69, citing International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), at Article 11 (CL-145). ↩

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LRR was an agreement between two private companies, PWCC and NSPI, “over which the GNS had no control or ability to instruct to do anything”.⁴⁰⁹ The Respondent proposes a different interpretation of ILC Articles 4, 8, and 11, which when applied to the facts, in the Respondent’s view, fails to justify a finding of attribution of the LRR to GNS. As such, the Respondent argues that the LRR is not a measure that can form the basis of a claim under NAFTA Chapter 11.⁴¹⁰

B. THE CLAIMANT’S ARGUMENTS

1. Whether GNS’s Assistance Measures Should be Considered as a Whole

219. The Claimant notes that Canada does not contest that the remainder of the Assistance Measures, but for the LRR, are attributable to Canada.⁴¹¹ The Claimant argues that the Tribunal should consider GNS’s Assistance Measures as a whole as being attributable to Canada, without singling out the LRR.⁴¹²

220. The Claimant’s argument for considering the Assistance Measures as a single package is premised on the assertion that PWCC conditioned its purchase and operation of the Mill on receiving assistance that would make it the “lowest cost producer” in the market.⁴¹³ According to the Claimant, GNS agreed to PWCC’s purchase and operation conditions by providing a “package of measures” that “jointly and severally, were intended to [...] place the [Mill] in a competitively advantageous position in relation to other producers in the SC paper market”.⁴¹⁴ In other words, but for the ensemble of measures as a whole, PWCC would not have purchased and reopened the Mill, which, in turn, would not have caused damage to the Claimant.⁴¹⁵

221. According to the Claimant, the package of measures included, among others: “forgivable loans; training and marketing grants; a renegotiated electricity deal with a modified rate; agreement on operation of a biomass plant; acquisition of land; fiber access guarantees; tax breaks; and relief

⁴⁰⁹ Respondent’s Counter-Memorial, at para 157. ↩

⁴¹⁰ Respondent’s Counter-Memorial, at para 221. ↩

⁴¹¹ Claimant’s Reply Memorial, at para 29. ↩

⁴¹² Claimant’s Memorial, at paras 157-159; Claimant’s Reply Memorial, para 30; Hearing on the Merits and Damages, November 9, 2020, at 28:8-11, 29:3-9. ↩

⁴¹³ Claimant’s Memorial, at para 154; Claimant’s Reply Memorial, at para 31. ↩

⁴¹⁴ Claimant’s Memorial, at para 153; Claimant’s Reply Memorial, at para 32. ↩

⁴¹⁵ Claimant’s Memorial, at paras 159, 161. See also, at paras 107-109, citing In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pacific West Commercial Corporation Application for Amendments to Load Retention Tariff, PWCC Evidence, NSUARB, 22 September, 2012, at 6-8 (C-197), In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Redacted Pacific West Commercial Corporation Responses To Information Requests From Small Business Advocate, NSUARB, 27 September, 2012, at 9 (C-203); Hearing on the Merits and Damages, November 9, 2020, at 25:24-26:3, 26:23-27:3. ↩

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from the costs and obligations of renewable energy standards”.⁴¹⁶ The Claimant acknowledges that governments do offer these kinds of benefits to other companies in other industries, but it argues that the amount of benefits offered by GNS to PWCC was unprecedented.⁴¹⁷ Citing discussions among PWCC, the Monitor, and GNS officials, the Claimant submits that securing an LRR that was more beneficial than the level necessary to operate competitively was crucial to the ensemble of measures.⁴¹⁸ Had such an LRR not been secured, GNS’s finance plan to PWCC would have fallen through and PWCC would not have purchased the Mill.⁴¹⁹ The Claimant also notes that PWCC only accepted the revised electricity measures because amendments favorable to it were made to other parts of GNS’s finance plan (e.g. the $40 million credit facility was made forgivable and PWCC was allowed to harvest $1 billion in tax losses for assets located outside the province).⁴²⁰ These facts, according to the Claimant, support a finding that the Assistance Measures were an interconnected whole.⁴²¹

222. The Claimant relies on prior NAFTA awards, which have considered “the record as a whole – not dramatic incidents in isolation”,⁴²² to argue that the Tribunal should consider the collective effect of the GNS’s Assistance Measures as a single ensemble of measures attributable to GNS and therefore to Canada.⁴²³

223. Finally, the Claimant specifies that there is no direct link between the total value of the GNS’s Assistance Measures, nor of the value of any single Measure, and the harm sustained by Resolute.⁴²⁴ Rather, the cause of the damages to the Claimant was the Mill’s re-entry onto the

⁴¹⁶ Claimant’s Memorial, at para 155. ↩

⁴¹⁷ Claimant’s Memorial, at para 156. ↩

⁴¹⁸ Claimant’s Reply Memorial, at paras 33-34. ↩

⁴¹⁹ Claimant’s Reply Memorial, at para 35-36. ↩

⁴²⁰ Claimant’s Reply Memorial, at para 37; Hearing on the Merits and Damages, October 18, 2021, at 49:2-50:11. ↩

⁴²¹ Claimant’s Reply Memorial, at para 37. ↩

⁴²² Claimant’s Memorial, at para 157, citing GAMI Investments Inc. (U.S.) v. Mexico, UNCITRAL Award, November 15, 2004, at para 103 (CL-103). See also Merrill & Ring Forestry L.P. v. Canada, ICSID Case No UNCT/07/1, Award, March 31, 2010, at para 144 (“[t]he fairness of the investor has to be considered as a whole and not necessarily with respect to an individual or separate aspect, particularly if this aspect does not have a stand-alone character”) (CL-101); S.D. Myers, Inc. v. Government of Canada, UNCITRAL, Partial Award, November 13, 2000, at para 161 (“The Tribunal can only characterize CANADA’s motivation or intent fairly by examining the record of the evidence as a whole”) (CL-102); W. Michael Reisman and Robert D. Sloane, Indirect Expropriation and its Valuation in the BIT Generation (2003) 74 British yearbook of international law 115, at para 124 (“discrete acts, analyzed in isolation rather than in the context of the overall flow of events, may, whether legal or not in themselves, seem innocuous vis-à-vis a potential expropriation. [O]nly in retrospect will it become evident that those acts comprised part of an accretion of innocuous acts and omissions, which in the aggregate expropriated the foreign investor’s property rights”) (CL-103). ↩

⁴²³ Claimant’s Memorial, at para 159. ↩

⁴²⁴ Claimant’s Memorial, at para 161. ↩

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market on such advantageous terms, facilitated by GNS’s assistance.⁴²⁵

2. Whether the Load Retention Rate is Attributable to Canada Pursuant to ILC Article 4

224. The Claimant argues that even if the LRR must be disaggregated from the remainder of the Assistance Measures, it should be regarded as “adopted or maintained” by the GNS under NAFTA Article 1101(1) through the actions of the NSUARB and the [Redacted] and is attributable to Canada pursuant to ILC Article 4.⁴²⁶

225. In accordance with the text of Article 4 set out above,⁴²⁷ the Claimant submits that attribution under Article 4 extends to government officials acting in their official capacity.⁴²⁸ The Claimant invokes the tribunal’s words in von Pezold v. Zimbabwe, stating that “organs of State include, for the purposes of attribution, the President, Ministers, provincial governments, legislature [...]” and that “[r]esponsibility for the actions of these State organs is unlimited provided the act is performed in an official capacity”.⁴²⁹

226. The Claimant further relies on Bilcon v. Canada, in which the NAFTA tribunal found that an independent regulatory body, such as the Joint Review Panel (“JRP”) operating under the Canadian Environmental Assessment Act, “that exercises impartial judgment [...] can well be an organ of the state; [A]rticle 4 of the ILC Articles [...] specifically includes those exercising ‘judicial’ functions”.⁴³⁰ With respect to the role of the Canadian federal government in Bilcon, the tribunal found that the disputed measures could be attributed to Canada because “the JRP was de jure an organ of Canada, equipped with a clear statutory role that included making formal and public recommendations to state authorities which the latter were obliged by law to consider – and indeed ended up accepting”.⁴³¹

227. Applying the above principles to the present case, the Claimant argues that the LRR is attributable

⁴²⁵ Claimant’s Memorial, at para 161. ↩

⁴²⁶ Claimant’s Reply Memorial, at para 27; Hearing on the Merits and Damages, November 9, 2020, 31:22-32:3. ↩

⁴²⁷ See supra, at Paragraph 215 of this Award. ↩

⁴²⁸ Claimant’s Reply Memorial, at para 41. ↩

⁴²⁹ Claimant’s Reply Memorial, at para 42, citing Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, July 28, 2015, at paras 443-445 (RL-121); Hearing on the Merits and Damages, October 18, 2021, at 42:18-43:20. ↩

⁴³⁰ Claimant’s Reply Memorial, para 50, citing William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability, March 17, 2015, at para 308 (CL-104) (‘Bilcon v. Government of Canada’); Hearing on the Merits and Damages, October 18, 2021, at 47:5-48:25. ↩

⁴³¹ Claimant’s Reply Memorial, at para 52, citing Bilcon v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability, March 17, 2015, at paras 308, 319 (CL-104). ↩

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to GNS because: (i) the NSUARB, which ultimately approved the LRR, is a State organ of the province; (ii) GNS [Redacted]⁴³² and (iii) GNS’s commitment to solve the RES Regulations Issue and the Biomass Plant Issue to facilitate approval for the LRR constituted an action by a State organ for the purpose of ILC Article 4.⁴³³

228. First, the Claimant submits that the NSUARB, “a body that exercises regulatory and judicial functions”,⁴³⁴ qualifies as an organ of the State for the purpose of ILC Article 4 even if it may be formally independent from the executive and legislative branches.⁴³⁵ In the Claimant’s opinion, some of the reasons for this qualification include the fact that the NSUARB is created by statute,⁴³⁶ its members are appointed by GNS,⁴³⁷ its board members are considered GNS employees,⁴³⁸ GNS determines the Board members’ salaries,⁴³⁹ and the NSUARB Board reports to GNS annually on all activities.⁴⁴⁰ The Claimant notes that GNS may approve or reject the NSUARB’s changes to its own rules and regulations.⁴⁴¹ In the Claimant’s view, the NSUARB’s approval of the LRR “gave force and effect to [the Assistance Measures]” rather than any private deal between NSPI and PWCC.⁴⁴² The Claimant submits that the role of the NSUARB in this case is indistinguishable from that of the JRP in Bilcon, which was found to be attributable to Canada.⁴⁴³

229. Second, the Claimant suggests that the sale of the Mill and GNS’s Assistance Measures to PWCC were contingent on GNS’s approval of the LRR.⁴⁴⁴ To recall, the Claimant suggests that [Redacted]

⁴³² Claimant’s Reply Memorial, at para 43. ↩

⁴³³ Claimant’s Reply Memorial, at para 66; Hearing on the Merits and Damages, November 9, 2020, at 32:11-24. ↩

⁴³⁴ Claimant’s Reply Memorial, at para 44. ↩

⁴³⁵ Claimant’s Reply Memorial, at para 44; Hearing on the Merits and Damages, November 14, 2020, at 1105:19-23; Claimant’s Pre-Hearing Memorial, paras 32, at 36-37; Hearing on the Merits and Damages, October 18, 2021, at 44:1-45:1. ↩

⁴³⁶ Claimant’s Reply Memorial, at para 45, referring to Public Utilities Act, R.S.N.S. 1989, c. 380, at s. 64(1) (C-101). ↩

⁴³⁷ Claimant’s Reply Memorial, at para 45, referring to Utility and Review Board Act, R.S.N.S. 1992, c. 11, at s. 5(1) (R-386). ↩

⁴³⁸ Claimant’s Reply Memorial, at para 45, referring to Utility and Review Board Act, R.S.N.S. 1992, c. 11, at s. 10 (R-386). ↩

⁴³⁹ Claimant’s Reply Memorial, at para 45, referring to Utility and Review Board Act, R.S.N.S. 1992, c. 11, at s. 7 (R-386). ↩

⁴⁴⁰ Claimant’s Reply Memorial, at para 45, referring to Utility and Review Board Act, R.S.N.S. 1992, c. 11, at s. 33 (R-386). ↩

⁴⁴¹ Claimant’s Reply Memorial, at para 45. ↩

⁴⁴² Claimant’s Reply Memorial, at para 46. ↩

⁴⁴³ Claimant’s Reply Memorial, at para 53, referring to Bilcon v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability, March 17, 2015 (CL-104). ↩

⁴⁴⁴ Claimant’s Reply Memorial, at para 47; Hearing on the Merits and Damages, October 18, 2021, at 27:11-16. ↩

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[Redacted]⁴⁴⁵ The Claimant notes that [Redacted]⁴⁴⁶ [Redacted]⁴⁴⁷ illustrates that the LRR was inextricable from the other Assistance Measures and attributable to GNS.⁴⁴⁸

230. In response to the Respondent’s contention that [Redacted]⁴⁴⁹ the Claimant submits that [Redacted]⁴⁵⁰ As such, the Claimant concludes, [Redacted]⁴⁵¹

231. Third, the Claimant reiterates that “but for” GNS’s resolution of the RES Regulations Issue and the Biomass Plant Issue, which allegedly resulted in approval of the LRR, the loan agreement between GNS and PWCC would not have been concluded and the Mill would not have reopened.⁴⁵²

232. With respect to the RES Regulations Issue, in 2010, GNS enacted the RES Regulations that committed 25% of the province’s electricity supply to renewable energy sources beginning in 2015.⁴⁵³ [Redacted]⁴⁵⁴ The Claimant submits that the additional energy needed by PHP could have required an increase in renewable energy production to comply with the renewable energy targets provided in the regulations.⁴⁵⁵ The Claimant adds that

⁴⁴⁵ Claimant’ Reply Memorial, at para 47; Hearing on the Merits and Damages, November 14, 2020, at 1329:10-1330:10. ↩

⁴⁴⁶ Claimant’s Memorial, at para 165, citing [Redacted] at CAN000002_0004 (C-182); Hearing on the Merits and Damages, November 9, 2020, at 33:16-25; November 10, 2020, at 459:4-22; November 14, 2020, at 1105:23-24; Hearing on the Merits and Damages, October 18, 2021, at 45:14-20. ↩

⁴⁴⁷ Claimant’s Memorial, at paras 164-165. ↩

⁴⁴⁸ Claimant’s Memorial, at para 165. ↩

⁴⁴⁹ Claimant’s Reply Memorial, at para 48, citing Respondent’s Counter-Memorial, at para 197. ↩

⁴⁵⁰ Claimant’s Reply Memorial, at para 48; Hearing on the Merits and Damages, October 18, 2021, at 45:11-20. ↩

⁴⁵¹ Claimant’s Reply Memorial, at para 53. ↩

⁴⁵² Claimant’s Memorial, at para 168; Claimant’s Reply Memorial, at para 66; Hearing on the Merits and Damages, November 9, 2020, at 36:19-37:8; November 14, 2020, at 1325:21-1326:5; Claimant’s Pre-Hearing Memorial, at paras 33-34. ↩

⁴⁵³ Renewable Energy Regulations, NS Reg 155/2010 (C-106; R-179). ↩

⁴⁵⁴ [Redacted] at CAN000004_0030 (C-163); Audit of Port Hawkesbury Paper Load Retention Tariff, Synapse, February 28, 2014, at 6 (C-221). ↩

⁴⁵⁵ Claimant’s Memorial, at para 81, referring to [Redacted] (C-153). ↩

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[Redacted]⁴⁵⁶ According to the Claimant, PWCC and GNS disputed who would pay for additional renewable energy costs, with PWCC being adamant that PHP could not handle any increase in renewable energy costs.⁴⁵⁷ The Claimant explains that GNS did not address this matter before the NSUARB hearing.⁴⁵⁸ It is the Claimant’s contention that GNS intervened during the proceedings “to moot the issue” days after the NSUARB hearing by way of the July 2012 Letter, which guaranteed that neither PWCC nor other ratepayers would be required to absorb any additional costs of renewable energy production.⁴⁵⁹

233. Concerning the Biomass Plant Issue, the Claimant recalls that PHP needed steam from the Biomass Plant, but that it required only 24% of the Plant’s capacity.⁴⁶⁰ However, the Claimant alleges that the Biomass Plant had to operate full-time for the sole purpose of producing steam for PHP, even when it was not economically viable to do so.⁴⁶¹ According to the Claimant, this would result in a greater cost to Nova Scotian ratepayers, “paying to keep the [Biomass] Plant running ‘overtime’ for PHP’s benefit”,⁴⁶² amounting to approximately $7 million annually.⁴⁶³ The issue of who would pay for the operation of the Biomass Plant was also unresolved as at the date of the NSUARB hearing.⁴⁶⁴ In response to the NSUARB’s reluctance to approve the electricity deal without controls on additional costs to ratepayers related to the operation of the Biomass Plant, the Claimant asserts that GNS addressed this issue in the July 2012 Letter by stating that GNS would amend the RES Regulations to ensure that the Biomass Plant would be deemed a must run by operation of law.⁴⁶⁵

234. The Claimant characterizes the actions taken by GNS with respect to the RES Regulations Issue

⁴⁵⁶ Claimant’s Memorial, at para 81, referring to [Redacted] (C-153). ↩

⁴⁵⁷ Claimant’s Reply Memorial, at para 58. ↩

⁴⁵⁸ Claimant’s Memorial, at para 81, Excerpts from Transcript of NSUARB Hearing, July 16, 2012, at 159-161 (C-177); Claimant’s Reply Memorial, at para 59. ↩

⁴⁵⁹ Claimant’s Memorial, at paras 82, 172, citing In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 9 (C-184; R-062). ↩

⁴⁶⁰ Claimant’s Memorial, at para 173. ↩

⁴⁶¹ Claimant’s Memorial, at paras 83, 173, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 156, 173-176 (C-184). ↩

⁴⁶² Claimant’s Memorial, at para 84. ↩

⁴⁶³ Claimant’s Memorial, at para 84, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 173-175 (C-184); Hearing on the Merits and Damages, November 10, 2020, 527:21-530:3; Hearing on the Merits and Damages, October 18, 2021, at 40:11-41:11. ↩

⁴⁶⁴ Claimant’s Reply Memorial, at para 60. ↩

⁴⁶⁵ Claimant’s Memorial, at paras 85, 174, citing In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012, at 1 (C-179); Hearing on the Merits and Damages, October 18, 2021, at 36:10-37:16. ↩

[Page 64]

and the Biomass Plant Issue as “elements of the electricity deal between PWCC and NSPI” as they were both “necessary for passage and approval of the entire electricity deal”.⁴⁶⁶ The Claimant argues that GNS’s July 2012 Letter resulted in the NSUARB’s approval of the LRR, claiming that GNS “changed the law for PWCC’s benefit”.⁴⁶⁷ The Claimant notes that the Respondent may have had other reasons for amending the regulations at issue,⁴⁶⁸ however, maintains that the other reasons have no bearing on the LRR’s attribution to GNS.⁴⁶⁹

3. Whether Canada’s Actions Attract State Responsibility under ILC Article 8

235. With respect to ILC Article 8, the Claimant’s position is that GNS “instructed” the approval of the LRR, which, pursuant to Article 8, triggers State responsibility.⁴⁷⁰

236. The Claimant specifies that it need only demonstrate instructions, as the terms “instructions”, “directions”, and “control” are disjunctive,⁴⁷¹ acting on “instructions” depends on factual circumstances and does not depend on control.⁴⁷²

237. On the definition of State “instruction”, the Claimant suggests that, in the context of ambiguous or open-ended instructions, acts that are incidental to the task in question or conceivably within its expressed ambit may be attributable to that State.⁴⁷³

238. The Claimant also relies on Bayindir v. Pakistan to argue that the demonstrable standard for instruction is “clearance” and “guidance” by the State in question.⁴⁷⁴ In Bayindir, the tribunal found that the illegal termination of a contract between the investor and the National Highway Authority (“NHA”) were deemed attributable to the State because the State “provided clearance and guidance” to the NHA,⁴⁷⁵ over which it had control as an entity.⁴⁷⁶ The Government of

⁴⁶⁶ Claimant’s Memorial, at para 175. ↩

⁴⁶⁷ Claimant’s Memorial, at para 82; Claimant’s Reply Memorial, at para 67. ↩

⁴⁶⁸ Claimant’s Reply Memorial, at para 66, referring to Respondent’s Counter-Memorial, at paras 201-221. ↩

⁴⁶⁹ Claimant’s Reply Memorial, at para 66. ↩

⁴⁷⁰ Claimant’s Memorial, at para 176; Hearing on the Merits and Damages, October 18, 2021, at 27:17-23. ↩

⁴⁷¹ Claimant’s Memorial, at para 176, citing James Crawford, The International Law Commission’s Articles on State Responsibility-Introduction, Text and Commentaries (Cambridge University Press, 2002), at 113, Commentary (7) of Article 8 (CL-149). See also Tulip Real Estate Investment and Development Netherlands B.V. v. Republic of Turkey, ICSID Case No. ARB/11/28, Award, March 10, 2014, at para 303 (CL-110); Claimant’s Reply Memorial, at para 74; Hearing on the Merits and Damages, November 14, 2020, at 1334:13-1336:2, 336:2-10. ↩

⁴⁷² Hearing on the Merits and Damages, November 14, 2020, at 1350:2-10. ↩

⁴⁷³ Claimant’s Memorial, at para 176, citing James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), at 145 (CL-111); Claimant’s Reply Memorial, at para 75. ↩

⁴⁷⁴ Claimant’s Memorial, at paras 177-178. ↩

⁴⁷⁵ Claimant’s Memorial, at para 177. ↩

⁴⁷⁶ Claimant’s Memorial, at para 177. ↩

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Pakistan did not attract liability under ILC Article 5 because the NHA was not exercising its governmental authority when it wrongfully terminated the contract.⁴⁷⁷ However, the tribunal found that termination of the contract in that case could be attributed to Pakistan under ILC Article 8 because the government provided guidance and clearance to do so.⁴⁷⁸ The Claimant contests the Respondent’s argument that distinguishes Bayindir v. Pakistan from the present case.⁴⁷⁹

239. Further, the Claimant distinguishes the decisions cited by the Respondent – von Pezold v. Zimbabwe, Electrabel v. Hungary, and Tulip Real Estate v. Turkey – on the basis that the facts in those cases did not involve State instruction or direction sufficient to attribute the measure in question to State conduct.⁴⁸⁰

240. The Claimant notes that the WTO Panel’s ruling regarding whether GNS “entrusted and directed” the LRR cannot be applied to the present case because the WTO Panel was applying standards different from those applicable in this investor-State arbitration and the WTO Panel Report is not binding upon Resolute (a non-State, private party).⁴⁸¹

241. Applying the aforementioned principles to the case, for the below reasons, the Claimant submits that GNS instructed NSPI, within the meaning of Article 8, to ensure an appropriate LRR.⁴⁸²

242. The Claimant notes that GNS recognized the importance of the LRR once the Mill closed and requested that NSPI initiate discussions with PWCC soon after it was selected as the successful bidder.⁴⁸³

243. The Claimant argues that GNS took an active role in negotiating the LRR by providing and reviewing work product associated with the negotiations.⁴⁸⁴ The Claimant further argues that the GNS retained Mr. Todd Williams “to advocate for the approval of the electricity deal before the NSUARB”, under the instructions of the GNS Department of Energy.⁴⁸⁵ In the Claimant’s words,

⁴⁷⁷ Claimant’s Memorial, at para 177, referring to Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, August 27, 2009, at para 123 (CL-112). ↩

⁴⁷⁸ Claimant’ Memorial, at para 178, citing Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, August 27, 2009, at para 128 (CL-112). ↩

⁴⁷⁹ Claimant’s Reply Memorial, at para 76, referring to Respondent’s Counter-Memorial, at para 178. ↩

⁴⁸⁰ Claimant’s Reply Memorial, at para 78. ↩

⁴⁸¹ Claimant’s Reply Memorial, at paras 79-80. ↩

⁴⁸² Claimant’s Reply Memorial, at para 77. ↩

⁴⁸³ Claimant’s Reply Memorial, at para 77; Hearing on the Merits and Damages, November 14, 2020, at 1336:8-12. ↩

⁴⁸⁴ Claimant’s Reply Memorial, at para 77; Hearing on the Merits and Damages, November 10, 2020, at 403:17-21. ↩

⁴⁸⁵ Claimant’s Memorial, at para 180; Claimant’s Reply Memorial, at para 77; Hearing on the Merits and Damages, November 14, 2020, at 1105:24-1106:1, 1336:12-15. ↩

[Page 66]

“Mr. Williams was an emissary of GNS and an indispensable architect of the energy agreement that made possible the resurrection of the PHP mill”.⁴⁸⁶

244. The Claimant enumerates the particular instances in which GNS and Mr. Williams worked with PWCC and NSPI, namely:

(1) delivering comments regarding the variable Capex [capital expenditure] figures; (2) working with NSPI to develop a protocol for delivering energy to the mill; (3) reviewing feedback from the NSPI Board of Directors on the LRT; (4) reviewing computer simulations used to calculate the power rate; (5) participating in the scheduling of witnesses for obtaining regulatory approval for the power rate with the NSUARB and (6) determining GNS’s role in the NSUARB proceeding, including whether to sponsor Mr. Williams as a witness.⁴⁸⁷

245. Lastly, the Claimant highlights that Mr. Williams provided “expert advice” to PHP with respect to fuel and electricity costs.⁴⁸⁸

246. The Claimant alleges that GNS promised to support PWCC’s “story” before the NSUARB proceeding.⁴⁸⁹ It cites GNS’s opening statement at the proceeding to illustrate “[GNS’s] purpose and objectives helping negotiate the electricity deal”.⁴⁹⁰ As part of its statement, GNS reported that it “has been working closely with both NSPI and PWCC to address the issue of high electricity costs to serve the [Mill]”, and that:

as part of [GNS’s] involvement in negotiations relating to the re-opening of the [Mill], the province engaged the services of Todd Williams [...] to help facilitate the discussions between PWCC, represented by Stern Partners and NSPI and to identify opportunities to operate the facility differently in order to generate savings for the [Mill] and NSPI ratepayers.⁴⁹¹

247. The Claimant notes that Mr. Williams testified before the NSUARB knowing the importance of the Mill to GNS and noting to the NSUARB that the resumption of Mill operations would benefit

⁴⁸⁶ Claimant’s Memorial, at para 181; Hearing on the Merits and Damages, October 18, 2021, at 53:1-54:23. ↩

⁴⁸⁷ Claimant’s Memorial, at para 181, referring to PWCC Meeting Notes, Redacted PWCC LRT Application NSPI (Axon) IIR-1 Attachment 2, 2011-2012, at 79-80 (C-178); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding Amended PWCC Load Retention Rate, NSUARB, September 27, 2012 (C-205). See also In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Direct Evidence of Todd Williams, NSUARB, June 2012, at 3-4 (C-168). ↩

⁴⁸⁸ Claimant’s Memorial, at para 181, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Redacted Responses of Pacific West Commercial Corporation to Information Requests from Industrial Group, NSUARB, May 30, 2012, at 14, 18 (C-161). ↩

⁴⁸⁹ Claimant’s Memorial, at para 183, referring to PWCC Meeting Notes, Redacted PWCC LRT Application NSPI (Axon) IIR-1 Attachment 2, 2011-2012, at 135-136 (C-147). ↩

⁴⁹⁰ Claimant’s Memorial, at para 183. ↩

⁴⁹¹ Claimant’s Memorial, at para 183, citing In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Opening Statement of the Government of Nova Scotia, NSUARB, July 16, 2012 (C-178). ↩

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the province.⁴⁹²

248. The Claimant notes that GNS linked the Assistance Measures to the LRR (see Paragraphs 241 onwards of this Award)⁴⁹³ and that [Redacted]⁴⁹⁴

249. Finally, the Claimant reports that the Premier of Nova Scotia, Mr. Darrell Dexter, personally intervened in the negotiations between PWCC and NSPI, stating that he had “spoken with the CEO of Nova Scotia Power”.⁴⁹⁵

250. In light of the above, the Claimant argues that the Tribunal should find that GNS instructed the passage of the LRR, resulting in a breach of ILC Article 8 attributable to Canada.⁴⁹⁶

4. Whether Canada’s Actions Attract State Responsibility under ILC Article 11

251. Lastly, the Claimant argues that if the Tribunal finds the LRR to be the result of private negotiations, GNS’s actions are still impugned pursuant to ILC Article 11, noting that Article 11 is attracted by a State’s mere acknowledgement of the factual existence of conduct or by its expression of approval of the conduct in question.⁴⁹⁷

252. The Claimant relies on three authorities to this effect, beginning with the Tehran Hostages case, in which the ICJ concluded that governmental approval of a situation resulting from private acts could be established by the State’s “decision to perpetuate” the situation.⁴⁹⁸ Additionally, it cites Ampal-American Israel Corp. v. Egypt⁴⁹⁹ and Bilcon v. Canada⁵⁰⁰ for the proposition that ministerial approval of a private entity’s decision or findings could be attributable to the State under Article 11.

⁴⁹² Claimant’s Memorial, at para 184. ↩

⁴⁹³ Claimant’s Reply Memorial, at para 77. ↩

⁴⁹⁴ Claimant’s Reply Memorial, at para 47; Hearing on the Merits and Damages, November 14, 2020, at 1336:16-21. ↩

⁴⁹⁵ Claimant’s Memorial, at para 185, citing Nova Scotia Legislature House of Assembly Debates and Proceedings, Fourth Session, April 25, 2012, at 1000-01 (C-162). ↩

⁴⁹⁶ Claimant’s Memorial, at para 186. ↩

⁴⁹⁷ Claimant’s Reply Memorial, at para 70; Hearing on the Merits and Damages, November 9, 2020, at 36:10-17; November 14, 2020, at 1333:9-1334:13; Hearing on the Merits and Damages, October 18, 2021, at 27:17-13. ↩

⁴⁹⁸ Claimant’s Reply Memorial, at para 70, citing Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, May 24, 1980, ICJ Reports 1980, 3, at paras 73-74 (CL-210). ↩

⁴⁹⁹ Claimant’s Reply Memorial, at para 71, referring to Ampal-American Israel Corp. v. Arab Republic of Egypt, ICSID Case No. ARB/12/11, Decision on Liability and Heads of Loss, February 21, 2017, at paras 145-146 (CL-234). ↩

⁵⁰⁰ Claimant’s Reply Memorial, at para 72, referring to Bilcon v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability, March 17, 2015, at paras 322, 324 (CL-104). ↩

[Page 68]

253. The Claimant submits that GNS’s actions in relation to the LRR were more than acknowledgment of the LRR’s factual existence.⁵⁰¹ Rather, it claims the GNS “ratified” the LRR and “took the final action to ensure their passage”, not unlike the government ministers’ approvals in Ampal and Bilcon.⁵⁰²

C. THE RESPONDENT’S ARGUMENTS

1. Whether GNS’s Assistance Measures Should be Considered as a Whole

254. The Respondent disagrees with the Claimant’s suggestion that the LRR is inseparable from GNS’s financial assistance to PWCC.⁵⁰³

255. The Respondent argues that a tribunal constituted under NAFTA Chapter 11 must base its jurisdiction on impugned measures “adopted or maintained by a Party relating to” an investor and its investment.⁵⁰⁴ This requirement, the Respondent explains, cannot be avoided by taking the “ensemble” approach suggested by the Claimant.⁵⁰⁵

256. The Respondent further notes that the inquiry prescribed by ILC Article 2⁵⁰⁶ first requires a determination of whether an act or omission is attributable to the State, then whether the act or omission in question constitutes a breach of international law.⁵⁰⁷ The Respondent submits that “the inquiries are distinct and cannot be conflated even if there are other measures over which the State does not contest attribution”.⁵⁰⁸ The Respondent concludes that the Claimant cannot circumvent the requirements of Article 2 by alleging that the PWCC’s LRR is “vicariously attributable” to GNS on account of the other Assistance Measures.⁵⁰⁹

257. Finally, as is discussed below, the Respondent argues that the LRR is not attributable to GNS and it is factually incorrect for the Claimant to do so on the basis that it is inseparable from the other

⁵⁰¹ Claimant’s Reply Memorial, at para 73. ↩

⁵⁰² Claimant’s Reply Memorial, at para 73. ↩

⁵⁰³ Respondent’s Rejoinder Memorial, at para 23, referring to Claimant’s Memorial, at para 159; Claimant’s Reply Memorial, at para 30. ↩

⁵⁰⁴ Respondent’s Rejoinder Memorial, at para 24. ↩

⁵⁰⁵ Respondent’s Rejoinder Memorial, at paras 24-25. ↩

⁵⁰⁶ ILC Article 2 provides: “There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”. See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), at Article 2 (CL-145). ↩

⁵⁰⁷ Respondent’s Rejoinder Memorial, at para 25, citing International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), at Article 2 (RL-032). ↩

⁵⁰⁸ Respondent’s Rejoinder Memorial, at para 26. ↩

⁵⁰⁹ Respondent’s Rejoinder Memorial, at para 26. ↩

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ambition [Redacted]¹⁶⁴ [Redacted] GNS when it announced its assistance to PWCC for the PHP Mill.¹⁶⁵ The Claimant suggests that PWCC specifically sought: a $40 million credit facility; a $24 million forgivable loan; a $1.5 million workforce training grant; a $1 million marketing grant; $38 million for forestry management through an Outreach Agreement; a twenty-year FULA; $20 million for the purchase of more than 50,000 acres of land; and relief from all pension liabilities.¹⁶⁶ The Claimant also takes into account the hot idle funding that GNS provided beyond “the originally-planned three months",¹⁶⁷ the [Redacted]¹⁶⁸ as well as the favourable LRR that PWCC obtained for PHP.¹⁶⁹ The Claimant considers these measures collectively to be “Assistance Measures” that GNS provided PWCC. The Claimant addresses these Assistance Measures individually in turn.

i. The [Redacted]

115. The Claimant notes that pursuant to [Redacted]¹⁷⁰ [Redacted]¹⁷¹ [Redacted]¹⁷² [Redacted]

116. The Claimant notes [Redacted]¹⁷³ [Redacted]

¹⁶⁴ Claimant's Memorial, at para 50, referring to [Redacted] at CAN000004_0009 (C-163). See also, Claimant's Memorial, at paras 52-54. ↩

¹⁶⁵ Claimant's Memorial, at para 89, referring to Nova Scotia Premier's Office, Press Release, "Province Invests in Jobs, Training and Renewing the Forestry Sector", August 20, 2012 (C-183). ↩

¹⁶⁶ Claimant's Memorial, at paras 71, 91. ↩

¹⁶⁷ Claimant's Memorial, at paras 72-73. The Claimant states "Resolute understands that the Tribunal has determined that the Hot Idle and Forestry Infrastructure funding cannot form part of Resolute's claim. Hot Idle and Forestry Infrastructure funding are discussed here as part of the facts and circumstances giving rise to the claim, particularly for the millions in funding that GNS provided beyond the time when it might have benefited NewPage as the seller because the buyer and ultimate beneficiary had been chosen". See Claimant's Memorial, at para 97, referring to PWCC Meeting Notes, Redacted PWCC LRT Application NSPI (Avon) IR-1 Attachment 2 (2011-12), at 70 (C-147). ↩

¹⁶⁸ Claimant's Memorial, at para 99, referring to Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

¹⁶⁹ The LRR is described in further detail in Part III.C.(3)(b). ↩

¹⁷⁰ [Redacted] at CAN000002_0001 (C-182). ↩

¹⁷¹ [Redacted] at CAN000002_0002 (C-182). ↩

¹⁷² [Redacted] at CAN000002_0002 (C-182). ↩

¹⁷³ [Redacted] at CAN000002_0001 (C-182). ↩

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[Redacted]¹⁷⁴

ii. Outreach Agreement

117. The Claimant notes that GNS and PWCC entered into an agreement under which GNS would reimburse PHP up to $3.8 million per year for ten years to fund compensable activities related to sustainable harvesting and forest land management by PHP.¹⁷⁵ The Claimant highlights that under the agreement [Redacted]¹⁷⁶ and that the agreement [Redacted]¹⁷⁷

iii. Forest Utilization License Agreement

118. According to the Claimant, GNS and PHP also entered into a 20-year FULA allowing PHP to harvest 400,000 GMT/year¹⁷⁸ from Crown land and an additional 175,000 tons per year to fuel the Biomass Plant from Crown land.¹⁷⁹ This right was conditional upon PHP purchasing 200,000 GMT/year of pulpwood from private suppliers.¹⁸⁰

119. The Claimant takes issue with the provision under which GNS would pay PHP a “silviculture fee" of $3 per cubic meter for all harvested softwood and Biomass Fuel, and $0.60 per cubic meter for all harvested hardwood product other than Biomass Fuel, subject to change.¹⁸¹ It claims that according to this “deal”, “PHP could receive more in silviculture payments than it was paying for stumpage, which happened in 2017, essentially making the Crown timber free”.¹⁸²

iv. Land Purchase Agreement

120. Through PWCC's purchase of NPPH's assets, the Claimant states that PWCC would acquire

¹⁷⁴ [Redacted] (C-182). ↩

¹⁷⁵ [Redacted] (C-206). See also Nova Scotia Premier's Office, Press Release, “Province Invests in Jobs, Training and Renewing the Forestry Sector", August 20, 2012 (C-183). ↩

¹⁷⁶ Claimant's Memorial, at para 94, referring to [Redacted] (C-206). ↩

¹⁷⁷ Claimant's Memorial, at para 94. ↩

¹⁷⁸ "GMT" refers to “green metric tonne". See Forest Utilization License Agreement (Redacted), September 27, 2012, at 2 (C-207). ↩

¹⁷⁹ Forest Utilization License Agreement (Redacted), September 27, 2012, at ss. 4.5 and 5.1 (C-207). ↩

¹⁸⁰ Forest Utilization License Agreement (Redacted), September 27, 2012, at 1 (C-207). ↩

¹⁸¹ Forest Utilization License Agreement (Redacted), September 27, 2012, at 3 (C-207). ↩

¹⁸² Claimant's Memorial, at para 96. The Claimant specifies that there was no “prescribed monitoring" of the silviculture expenditures. See The Chronicle Herald, News Release, “Port Hawkesbury mill's deal with province raises concern", May 28, 2018 (C-170). ↩

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"roughly" 50,000 acres of land.¹⁸³ [Redacted]¹⁸⁴ The Claimant asserts that GNS's purchase "effectively reduced PWCC's purchase price for the mill and related assets (such as the $1 billion in tax losses)" to $13 million.¹⁸⁵ It also contrasts the $20 million purchase price to the [Redacted] GNS had allegedly previously agreed to pay NPPH "for essentially the same land" [Redacted]¹⁸⁶

v. Relief from pension liabilities

121. The Claimant suggests that “PWCC refused to assume the unfunded pension liability of over $100 million".¹⁸⁷ To this end, it proposes that the GNS's Natural Resources Minister was quoted as stating that "[e]verything is being considered", indicating that GNS would comply with PWCC's demands.¹⁸⁸

vi. Hot idle and forestry infrastructure funding

122. On January 4, 2012, GNS announced that it would provide an expected $5 million in hot idle funding to keep the Mill re-sale ready through February and March while negotiations took place with PWCC as the successful bidder.¹⁸⁹ This funding was subsequently confirmed, subject to "partial recourse to the assets of NPPH in certain limited circumstances and only if no going concern outcome is achieved”.¹⁹⁰ On March 16, 2012, GNS also announced that it would provide an additional $5.8 million in hot idle funding to support the sale of the Mill until the end of September 2012.¹⁹¹

123. As set out in Paragraph 94 above, when NPPH was placed under creditor protection in September 2011, the province created a $14 million FIF to facilitate forest management activities through

¹⁸³ Claimant's Memorial, at para 97. ↩

¹⁸⁴ [Redacted] (C-209). ↩

¹⁸⁵ Claimant's Memorial, at para 97. ↩

¹⁸⁶ Claimant's Memorial, at para 98, referring to [Redacted] (C-155). ↩

¹⁸⁷ Claimant's Memorial, at para 49. ↩

¹⁸⁸ Claimant's Memorial, at para 49, citing The Canadian Press, News Release, “Pacific West now lone bidder for idled NewPage paper mill in Cape Breton", January 4, 2012 (C-148). ↩

¹⁸⁹ Nova Scotia Department of Natural Resources, Press Release, “Province Will Keep NewPage Mill in Point Tupper Re-Sale Ready", January 4, 2012 (R-048). ↩

¹⁹⁰ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Seventh Report of the Monitor, Supreme Court of Nova Scotia, February 27, 2012, at para 38 (R-049). ↩

¹⁹¹ Nova Scotia Premier's Office, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready", March 16, 2012 (R-042); Province of Nova Scotia, Backgrounder, "Provincial Support to former NewPage Port Hawkesbury Paper Mill", March 16, 2012, at 2 (R-043). ↩

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NPPH as the intermediary between the province and independent contractors providing forestry services to the province.¹⁹² On March 16, 2012, GNS announced an additional $12 million in funding to the FIF.¹⁹³ Also in March 2012, GNS amended the FIF Agreement.¹⁹⁴

124. The Claimant argues that the funds GNS initially supplied to keep the Mill “in hot idle with a supply chain intact”¹⁹⁵ when NPPH began CCAA proceedings were meant to last three months but were extended for more than a year, with “most of it—$22.8 million of the total $36.8 million [...] coming after the Monitor declared PWCC was the winning bidder”.¹⁹⁶ As such, it contends that this additional funding constitutes an Assistance Measure among the others GNS provided to PWCC.¹⁹⁷

vii. Municipal property tax reduction

125. The Claimant pleads that GNS “provided municipal tax breaks reducing Port Hawkesbury property taxes from $2.6 million annually to $1.3 million”¹⁹⁸ by way of targeted legislation.¹⁹⁹ It claims that pursuant to NPPH's existing agreement with Richmond County, PWCC would have been responsible for $2.6 million per year from 2013-2016 once it purchased the Mill.²⁰⁰ However, PWCC allegedly reached a new tax agreement with the county that reduced its property tax in half, which ultimately received legislative approval by the province.²⁰¹

¹⁹² Nova Scotia Department of Natural Resources, Press Release, “Province Presents Forestry Infrastructure Plan", September 20, 2011 (R-039). ↩

¹⁹³ Nova Scotia Premier's Office, Press Release, “Province Protects Jobs, Keeps Mill Re-Sale Ready", March 16, 2012 (R-042). ↩

¹⁹⁴ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Eight Report of the Monitor, Supreme Court of Nova Scotia, March 26, 2012, at paras 56-57 (R-044); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Ninth Report of the Monitor, Supreme Court of Nova Scotia, May 24, 2012, at para 21 (R-045). ↩

¹⁹⁵ Claimant's Memorial, at para 72, citing Nova Scotia Premier's Office, Press Release, “Seven-point Woodlands Plan Keeps Forests Ready", September 9, 2011 (C-116). ↩

¹⁹⁶ Claimant's Memorial, at para 73, referring to Respondent's Statement of Defence, at paras 42, 46; Truro Daily News, News Release, “Dexter under fire after agreement reached to open mill", September 24, 2012 (C-201). ↩

¹⁹⁷ Claimant's Memorial, at paras 72-74. ↩

¹⁹⁸ Claimant's Memorial, at paras 115, 219. ↩

¹⁹⁹ Claimant's Reply Memorial, at para 176. ↩

²⁰⁰ Claimant's Reply Memorial, at para 176, referring to An Act Respecting the Taxation of Port Hawkesbury Paper GP Ltd. by the Municipality of the County of Richmond, SNS 2006, c. 51 (2006) (C-303); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Sixteenth Report of the Monitor, Supreme Court of Nova Scotia, September 25, 2012, at para 28 (C-204). ↩

²⁰¹ Claimant's Reply Memorial, at para 179, referring to An Act Respecting the Taxation of Port Hawkesbury Paper GP Ltd. by the Municipality of the County of Richmond, SNS 2006, c. 51 (amended in 2012) (C-303). ↩

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viii. Indemnity Agreement

126. According to the Claimant, GNS's assistance must be considered in addition to the Indemnity Agreement [Redacted]²⁰² According to the Claimant, [Redacted] [Redacted]²⁰³

ix. Preparatory Activities Agreement

127. [Redacted] (the "Preparatory Activities Agreement" or the "Ramp-Up Agreement”).²⁰⁴ [Redacted]²⁰⁵ The Claimant argues that [Redacted]²⁰⁶

(b) The Respondent's Position

128. Contrary to the Claimant, the Respondent does not consider the aforementioned measures as an ensemble. Rather, it distinguishes GNS's [Redacted] as the only offer of financial assistance PWCC received. In the Respondent's view, the other agreements and measures challenged by the Claimant were not assistance provided by GNS to PWCC's benefit.²⁰⁷ The Respondent notes that the [Redacted]²⁰⁸ [Redacted]²⁰⁹

²⁰² Claimant's Memorial, at para 42, referring to [Redacted] (C-136). ↩

²⁰³ Claimant's Reply Memorial, at para 181. ↩

²⁰⁴ Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

²⁰⁵ Preparatory Activities Agreement, August 27, 2012, at CAN000120_0013 (C-190). ↩

²⁰⁶ Claimant's Memorial, at para 99. ↩

²⁰⁷ Respondent's Counter-Memorial, at paras 111-139. ↩

²⁰⁸ Hearing on the Merits and Damages, November 9, 2020, at 192:14-193:12. ↩

²⁰⁹ Hearing on the Merits and Damages, November 9, 2020, at 193:13-184:2. ↩

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i. [Redacted]

129. The Respondent contends that GNS and PWCC agreed to the terms of a financial assistance package [Redacted] which consisted of: [Redacted]

130. T[Redacted]²¹⁰ [Redacted]²¹¹

ii. Outreach Agreement

131. The Respondent submits that the purpose of the Outreach Agreement was to pursue the province's Natural Resource Strategy.²¹² The Respondent explains that it acquired these services for public purposes.²¹³

132. The Respondent clarifies that the [Redacted]²¹⁴

133. The Respondent also highlights the distinction between the Outreach Agreement and the FULA [Redacted]²¹⁵

²¹⁰ Respondent's Counter-Memorial, at para 111. ↩

²¹¹ Respondent's Counter-Memorial, at para 112, referring to [Redacted] (C-182). ↩

²¹² Respondent's Counter-Memorial, at para 131, referring to Witness Statement of Julie Towers, April 17, 2019, at para 39. ↩

²¹³ Hearing on the Merits and Damages, November 9, 2020, at 191:9-11. ↩

²¹⁴ Respondent's Counter-Memorial, at para 131, referring to [Redacted] (C-206). ↩

²¹⁵ Respondent's Counter-Memorial, at para 132. ↩

[Page 35]

iii. Forest Utilization License Agreement

134. Contrary to what the Claimant suggests, the Respondent explains that the FULA was not concluded at PWCC's request or for PWCC's benefit.²¹⁶ According to the Respondent, the FULA is the result of GNS's initiative to modernize the province's forest licensing system from the pre-existing Stora Act regime.²¹⁷ It provides GNS with greater authority to manage forests on Crown land and aligns with its Natural Resources Strategy.²¹⁸

135. Furthermore, the Respondent maintains that the Claimant misunderstands the alleged benefits PWCC received from the FULA.²¹⁹ According to the Respondent, the point of the FULA was to place a cap on how much Crown timber could be used for PHP's operations and to encourage greater use of timber from private woodlots than the previous regime did.²²⁰

136. The Respondent also clarifies the difference between the stumpage fees and the silviculture payments, explaining that PWCC did not receive its Crown timber for free (but had to pay for it at the rate prescribed in the FULA) and that the FULA required the PHP Mill to incur additional expenses for silviculture activities (which expenditures were audited annually).²²¹ The Respondent emphasises that [Redacted]²²²

iv. Land Purchase Agreement

137. The Respondent takes issue with the Claimant's characterization of the Land Purchase Agreement, which allegedly “reduced PWCC's effective price for the mill to $13 million".²²³ The Respondent argues that the purchase aligned with the province's “long-standing goal of increasing its share of forest ownership in the Province”,²²⁴ and [Redacted]0

²¹⁶ Respondent's Counter-Memorial, at para 130, referring to Claimant's Memorial, at paras 95-96. ↩

²¹⁷ Respondent's Counter-Memorial, at para 121; Hearing on the Merits and Damages, November 9, 2020, at 191:17-192:3; Hearing on the Merits and Damages, October 19, 2021, at 452:9-453:9. ↩

²¹⁸ Respondent's Counter-Memorial, at paras 121, 129. See also Nova Scotia Department of Natural Resources, "The Path We Share: A Natural Resources Strategy for Nova Scotia 2011-2020", August 2011 (R-202). ↩

²¹⁹ Respondent's Counter-Memorial, at para 124. ↩

²²⁰ Respondent's Counter-Memorial, at para 126; Hearing on the Merits and Damages, October 19, 2021, at 453:18-21. ↩

²²¹ Respondent's Counter-Memorial, at para 128, referring to [Redacted] (R-192). ↩

²²² Respondent's Counter-Memorial, at para 128; Hearing on the Merits and Damages, October 19, 2021, 454:5-455:6. ↩

²²³ Respondent's Counter-Memorial, at para 118, citing Claimant's Memorial, at paras 93, 115. ↩

²²⁴ Respondent's Counter-Memorial, at para 119; Hearing on the Merits and Damages, October 18, 2021, 181:11-182:6. ↩

[Page 36]

[Redacted]²²⁵

138. With respect to [Redacted] GNS agreed to pay PWCC in comparison to its previous agreement with NPPH for the same land,²²⁶ the Respondent specifies that [Redacted]²²⁷ [Redacted]²²⁸

v. Relief from pension liabilities

139. Referencing the Claimant's reliance on newspaper articles to allege that PWCC "refused to assume the unfunded pension liability of over $100 million",²²⁹ the Respondent argues that the Claimant's failure to plead with specificity is enough for the Tribunal to disregard this alleged measure.²³⁰ Later, the Respondent clarified that GNS never took on the pension liability, but proposed legislation “in order to help the workers and pensioners avoid an immediate windup hit of up to 30 percent or more of their pensions".²³¹

vi. Municipal property tax reduction

140. The Respondent argues that the new municipal property tax rate for the Mill was a “readjustment to account for reduced operations and asset use at the mill that conferred no benefit on PWCC”.²³² Nonetheless, the Respondent contends that it was still an amount that was approximately twice what provincial law would have otherwise required PWCC to pay.²³³ Moreover, it refers to Resolute's negotiations for a reduced municipal property tax rate for Bowater Mersey as evidence

²²⁵ Respondent's Counter-Memorial, at para 119, referring to [Redacted] (R-149). ↩

²²⁶ Respondent's Counter-Memorial, at para 120, referring to Claimant's Memorial, at para 98. ↩

²²⁷ Respondent's Counter-Memorial, at para 120, referring to [Redacted] (R-216). ↩

²²⁸ [Redacted] (C-209). ↩

²²⁹ Respondent's Counter-Memorial, at para 138, referring to Claimant's Memorial, at para 49; Expert Witness Report of Seth T. Kaplan, Ph.D., December 28, 2018, at para 26. ↩

²³⁰ Respondent's Counter-Memorial, at para 138. ↩

²³¹ Hearing on the Merits and Damages, October 19, 2021, at 446:16-447:4. ↩

²³² Respondent's Counter-Memorial, at para 134. ↩

²³³ Respondent's Counter-Memorial, at para 135, referring to US DOC, Supercalendered Paper from Canada, Issues and Decision Memorandum, October 13, 2015, at 54 (R-368). ↩

[Page 37]

that these negotiations are not uncommon.²³⁴

vii. Indemnity Agreement

141. With respect to the Indemnity Agreement, the Respondent underscores that [Redacted]²³⁵ Accordingly, [Redacted]²³⁶ It argues that the Claimant fails to demonstrate [Redacted]7

viii. Preparatory Activities Agreement

142. The Respondent [Redacted]²³⁹ The Respondent explains that [Redacted]²⁴⁰ It explains that [Redacted]²⁴¹ [Redacted]²⁴²

3. [Redacted] and the Negotiations for a Load
Retention Rate

143. On April 27, 2012, PWCC and NSPI filed an application for approval of their negotiated LRR to the NSUARB.²⁴³ PWCC and NSPI intended on creating a new limited partnership that would own

²³⁴ Respondent's Counter-Memorial, at para 135, referring to [Redacted] (R-149). ↩

²³⁵ [Redacted] at ss. 1.1, 1.7 (C-136). ↩

²³⁶ Respondent's Counter-Memorial, at para 136, referring to [Redacted] at CAN000015_0011 (C-238). ↩

²³⁷ Respondent's Counter-Memorial, at para 136. ↩

²³⁸ Respondent's Counter-Memorial, at para 137, referring to Preparatory Activities Agreement, August 27, 2012, at s. 2(b) (C-190). [Redacted] See Respondent's Counter-Memorial, at fn. 259, referring to [Redacted] (R-269). ↩

²³⁹ Claimant's Memorial, at para 99. ↩

²⁴⁰ Respondent's Counter-Memorial, at para 137. ↩

²⁴¹ Respondent's Counter-Memorial, at para 137, referring to Preparatory Activities Agreement, August 27, 2012, at 1-2 (definitions of "Additional Financial Assistance” and “Remaining Financial Assistance") (C-190). See also Preparatory Activities Agreement, August 27, 2012, at CAN0000120_21 (C-190). ↩

²⁴² Respondent's Counter-Memorial, at para 137, referring to Claimant's Memorial, at para 219. ↩

²⁴³ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012 (C-012; C-166; R-167); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 9 (C-184; R-062). See Section III.C.3.(b) for the facts pertaining to the LRR Application. ↩

[Page 38]

the PHP Mill.²⁴⁴ NSPI would contribute certain assets for the use of the partnership and would receive dividends to recover the incremental cost of power to the Mill and contribute to NSPI's fixed costs.²⁴⁵ This tax structure allowed the partnership to self-supply electricity from NSPI, so that NSPI would receive inter-corporate dividends, which would not be subject to income tax.²⁴⁶

144. Sanction by the Court of the Plan of Arrangement was contingent on a favourable ATR of PWCC and NSPI's proposed tax structure by the Canada Revenue Agency ("CRA").²⁴⁷

145. On September 12, 2012, the CRA informed PWCC and NSPI that it denied the application for approval of this tax structure.²⁴⁸

146. Following the CRA's rejection of the proposed tax structure, PWCC and NSPI amended their application to the NSUARB,²⁴⁹ and [Redacted]²⁵⁰

147. As stated above, the Plan of Arrangement was subsequently amended and approved by the Court on September 25, 2012.²⁵¹ The sale of the Mill came into effect on September 28, 2012²⁵² and PHP resumed operations in early October 2012.²⁵³ However, the Claimant contends that PHP did not start producing at full capacity until later in 2013.²⁵⁴

148. The following sub-section details the Parties' positions with respect to certain elements of the

²⁴⁴ Claimant's Memorial, at para 76; Respondent's Counter-Memorial, at para 167. ↩

²⁴⁵ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 17-20, 34, 53 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 5-8 (C-165). ↩

²⁴⁶ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 17 (C-184; R-062). ↩

²⁴⁷ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Affidavit of Peter Wedlake, Part I, Supreme Court of Nova Scotia, July 6, 2012, at Exhibit A: Plan of Compromise and Arrangement of NewPage Port Hawkesbury Corp., s. 9.2 (1) (R-032). ↩

²⁴⁸ Claimant's Memorial, at para 100. ↩

²⁴⁹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Amended Decision, NSUARB, September 27, 2012 (C-208; R-063). See Section III.C.3.(b) for the facts pertaining to the LRR Application. ↩

²⁵⁰ [Redacted] (C-195). ↩

²⁵¹ In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012, at paras (a)-(h), 3 (R-035). ↩

²⁵² In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Plan Sanction Order, Supreme Court of Nova Scotia, September 25, 2012, at Schedule A: Amended and Restated Plan of Compromise and Arrangement, at art. 1.1 (R-035); In re A Plan of Compromise or Arrangement of NewPage Port Hawkesbury Corp., Monitor's Certificate, Supreme Court of Nova Scotia, September 28, 2012 (R-036). ↩

²⁵³ Truro Daily News, News Release, “Boiler rolling off line at mill", October 4, 2012 (R-098); Cape Breton Post, News Release, “Paper rolling off line at mill", October 4, 2012 (R-099). ↩

²⁵⁴ Claimant's Memorial, at para 138, citing Respondent's Reply Memorial on Jurisdiction, at para 93. ↩

[Page 39]

[Redacted] The next sub-section details the negotiations of and the NSUARB's subsequent approval of the LRR, as well as the Parties' positions with respect to whether the LRR should be considered a GNS Assistance Measure.

(a) The [Redacted]

i. The Claimant's Position

149. In its [Redacted] GNS amended two aspects of its original offer: (i) the $40 million credit facility and the (ii) income tax losses.²⁵⁵

a. $40 million credit facility

150. The Claimant notes that the [Redacted]²⁵⁶ [Redacted]²⁵⁷ [Redacted]²⁵⁸ [Redacted]9

b. Income tax losses

151. [Redacted]²⁶⁰ [Redacted]²⁶¹ Additionally, [Redacted]²⁶² [Redacted]²⁶³ According to the Claimant, this ability to “garner tax savings in Nova Scotia for assets in other provinces” was a benefit accorded by GNS to PWCC.²⁶⁴

²⁵⁵ Claimant's Memorial, at para 103. ↩

²⁵⁶ [Redacted] at CAN000003_0002-0004 (C-195). ↩

²⁵⁷ [Redacted] at CAN000003_0003 (C-195). See also Claimant's Memorial, at para 104. ↩

²⁵⁸ [Redacted] at CAN000003_0003 (C-195). ↩

²⁵⁹ [Redacted] at CAN000003_0003-0004 (C-195). ↩

²⁶⁰ [Redacted] at CAN000002_0006-0007 (C-182). ↩

²⁶¹ [Redacted] at CAN000003_0006 (C-195). ↩

²⁶² [Redacted] at CAN000003_0006 (C-195). ↩

²⁶³ [Redacted] at CAN000003_0006 (C-195). ↩

²⁶⁴ Claimant's Memorial, at paras 115, 219. ↩

[Page 40]

ii. The Respondent's Position

152. The Respondent argues that the factual details of the changes to the [Redacted] are "immaterial to the merits of this arbitration since the specific terms of the revised financing agreement do not change the assessment of whether there is a violation of NAFTA Articles 1102 or 1105".²⁶⁵ Nevertheless, it proceeds to clarify the Claimant's alleged misrepresentations with respect to the [Redacted]

a. $40 million credit facility

153. According to the Respondent, the rationale for the changes to the terms of the loan was the following: “[Redacted]”.²⁶⁶ GNS was of the opinion that the additional tax revenues from NSPI placed it in a "roughly equivalent situation as it would have been by waiting for full reimbursement from PWCC".²⁶⁷

b. Income tax losses

154. The Respondent pleads that the revised income tax losses provisions [Redacted]²⁶⁸ rather than as a benefit handed to PWCC.²⁶⁹ [Redacted]²⁷⁰ In the Respondent's opinion, this [Redacted]²⁷¹

(b) PWCC's Negotiations for a Load Retention Rate

155. Once PWCC was selected as one of the two going-concern bidders for the Mill, PWCC began negotiations with NSPI for an LRR.²⁷²

156. The Department of Energy of GNS engaged Mr. Todd Williams of Navigant Consulting to assist PWCC and NSPI in their negotiations.²⁷³ The Parties disagree as to Mr. Williams' role in the

²⁶⁵ Respondent's Counter-Memorial, at para 114. ↩

²⁶⁶ Respondent's Counter-Memorial, at para 117, referring to Witness Statement of Jeannie Chow, April 17, 2019, at para 9. ↩

²⁶⁷ Respondent's Counter-Memorial, at para 117. ↩

²⁶⁸ Respondent's Counter-Memorial, at para 116, referring to Witness Statement of Jeannie Chow, April 17, 2019, at paras 10, 16. ↩

²⁶⁹ Respondent's Counter-Memorial, at para 116, referring to Claimant's Memorial, at paras 219, 253. ↩

²⁷⁰ [Redacted] at CAN000003_0005 (C-195). ↩

²⁷¹ Respondent's Counter-Memorial, at para 116. ↩

²⁷² Witness Statement of Murray Coolican, April 17, 2019, at para 11. ↩

²⁷³ Witness Statement of Murray Coolican, April 17, 2019, at paras 14-16. ↩

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negotiations. Their positions are developed in Section V of this Award.

157. To recall, PWCC and NSPI proposed to create a limited partnership that would own the Mill.²⁷⁴ Under this partnership, NSPI would provide certain assets to the use of the partnership, and would receive dividends to recover the incremental cost of supplying the power to the Mill and contribute to its fixed costs.²⁷⁵ This tax structure allowed the partnership to self-supply electricity from NSPI, so that NSPI would receive inter-corporate dividends, which would not be subject to income tax.²⁷⁶ It was ultimately denied by the CRA in September 2012.²⁷⁷

158. On April 27, 2012, PWCC and NSPI filed an application with the NSUARB for approval of their negotiated LRR and dividend calculation.²⁷⁸

159. The NSUARB expressed concern over two issues prior to approving the LRR. The first was the concern that other ratepayers would bear the cost of obtaining additional renewable energy to meet the standards set by the RES Regulations due to the PHP Mill returning to the grid (the "RES Regulations Issue”).²⁷⁹ To recall, the RES Regulations required that in 2011-2012, 5% of NSPI's total sales of energy be renewable energy supplied by independent power producers.²⁸⁰ This requirement increased to 10% in 2013 and 25% in 2015, but allowed NSPI to acquire additional renewable energy from its own generation facilities as well.²⁸¹

160. The second of the NSUARB's concerns related to the operation of a Biomass Plant (the “Biomass Plant Issue") at the PHP Mill.²⁸² While the Mill was still under NPPH's ownership, NSPI negotiated an agreement with NPPH to build a cogeneration power plant around the biomass-

²⁷⁴ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012, at 1 (C-012; C-166; R-167). ↩

²⁷⁵ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 17-20, 34, 53 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 5-8 (C-165). See also Claimant's Memorial, at para 76; Respondent's Counter-Memorial, at para 167. ↩

²⁷⁶ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 17 (C-184; R-062). ↩

²⁷⁷ Claimant's Memorial, at para 100. ↩

²⁷⁸ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application, NSUARB, April 27, 2012 (C-012; C-166; R-167); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 9 (C-184; R-062). ↩

²⁷⁹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Excerpts from Transcript of NSUARB Hearing, July 16, 2012 at 159-161 (C-177). ↩

²⁸⁰ Renewable Energy Standard Regulations, N.S. Reg. 35/2007, at ss. 5(1), 5(3), 6(1), 6(3), 7(2)(d) (R-171). ↩

²⁸¹ Renewable Energy Standard Regulations, N.S. Reg. 155/2010, at ss. 4-6 (R-179). ↩

²⁸² In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 181-183 (C-184; R-062). ↩

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fired boiler at the Mill.²⁸³ According to the project, NSPI would own the Biomass Plant and the renewable energy it produced, and NPPH would use the steam it generated for the Mill's operations.²⁸⁴ This agreement allowed NSPI “to meet its RES commitments in a planned and cost-effective manner which is in the interests of NSPI customers and our Province”.²⁸⁵ The project was approved on October 14, 2010.²⁸⁶

161. When ownership of the Mill transferred to PWCC, NSPI negotiated an agreement with PWCC whereby NSPI would continue to own the Biomass Plant and deliver steam to PHP.²⁸⁷ The latter would also pay for the fuel necessary to generate the steam it needed.²⁸⁸

162. The Claimant asserts that the Biomass Plant would need to run full-time for the sole purpose of producing steam for PHP.²⁸⁹ The NSUARB stated that it would not approve the LRR without controls on additional costs to ratepayers arising from the Biomass Plant operations.²⁹⁰

163. On July 20, 2012, GNS sent a letter to the NSUARB (the “July 2012 Letter") addressing the two issues:

Incremental RES issue

Government Policy

The Government created the Renewable Electricity Standards to achieve a number of objectives: the obligation to meet a number of targets and the requirement that the provision of electricity come from specific technologies, and come from both Independent Power Producers as well as NSPI. Accordingly the Government has enabled the procurement of new sources to enable all of these objectives to be met. The Government is confident that there is enough RES supply coming on-line that the mill-load will not trigger an incremental RES cost over the term of the proposed mechanism.

Government Commitment

The Government commits to ensuring that if the mill load does trigger an additional RES obligation during the term of the proposed

²⁸³ In re An Application by Nova Scotia Power Inc., Application (Redacted) for Approval of Capital Work Order CI 39029, Port Hawkesbury Biomass Project, NSUARB, April 9, 2011, at 1 (R-182). ↩

²⁸⁴ In re An Application by Nova Scotia Power Inc., Decision, NSUARB, October 14, 2010, at para 9 (R-184). ↩

²⁸⁵ In re An Application by Nova Scotia Power Inc., Application (Redacted) for Approval of Capital Work Order CI 39029, Port Hawkesbury Biomass Project, NSUARB, April 9, 2011, at 35:21-22 (R-182). ↩

²⁸⁶ In re An Application by Nova Scotia Power Inc., Decision, NSUARB, October 14, 2010, at paras 112, 164 (R-184). ↩

²⁸⁷ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at Preamble, para 5.2.2 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

²⁸⁸ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at para 7.1 and Schedules 9 & 10 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

²⁸⁹ Claimant's Memorial, at para 84. ↩

²⁹⁰ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 181-183 (C-184; R-062). ↩

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mechanism, and if this results in incremental costs, then the Province guarantees that neither PWCC nor other ratepayers will be required to pay these incremental costs.²⁹¹

***

Biomass Plant issue

Government Policy

Government policy has always been supportive of using biomass for combined heat and power. In 2011, the Government conducted a public consultation on changes to the Renewable Energy Standard Regulations. One of the proposed amendments to the regulations creates a requirement that a portion of the renewable electricity purchased to meet the standards be firm. Firm renewable generation enhances system reliability and facilitates the balancing of non-firm intermittent wind generation. This requirement would result in the obligation to run the biomass plant to achieve this objective, whether the mill is in operation or not. The policy intention has not changed.

Government Commitment

The Government commits to ensuring that PWCC receives the full benefit of the proposed arrangement it reached with Nova Scotia Power Inc. This will be accomplished as planned, through finalization of amendments to the Renewable Energy Standard Regulations so that the Port Hawkesbury CHP [sic] plant is operated at a base load and is deemed must run or we will address the issue through an equivalent solution that meets the objectives of the proposed arrangement.²⁹²

164. The Parties' positions regarding the purpose and influence of this letter on the NSUARB's approval of the LRR are developed in forthcoming sections.²⁹³

165. On August 20, 2012, the NSUARB approved the LRR, subject to receiving an ATR from the CRA.²⁹⁴

166. As mentioned above,²⁹⁵ the CRA subsequently refused the ATR, denying the proposed dividend tax structure.²⁹⁶ Accordingly, on September 22, 2012, PWCC and NSPI filed an application to

²⁹¹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012 (C-179); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 178 (C-184; R-062). ↩

²⁹² In re An Application to Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012 (C-179); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 178-179 (C-184; R-062). ↩

²⁹³ Claimant's Memorial, at paras 84-85; Respondent's Counter-Memorial, at para 217. ↩

²⁹⁴ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 133 (C-184; R-062). ↩

²⁹⁵ See supra, at Paragraph 145 of this Award. ↩

²⁹⁶ Claimant's Memorial, at para 100; Respondent's Counter-Memorial, at para 168. ↩

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amend the NSUARB's order by removing NSPI's ownership interest and right to dividends.²⁹⁷

167. On September 27, 2012, the NSUARB approved the amended LRR mechanism, pursuant to which the PHP Mill would pay the variable incremental costs of service and contribute to NSPI's fixed costs.²⁹⁸ PHP would also pay its electricity invoices in advance, and NSPI acquired the right to interrupt PHP's entire load on a ten-minute notice.²⁹⁹ Lastly, PWCC assumed all of NSPI's risk of fuel cost fluctuations in relation to its provision of electricity to the Mill.³⁰⁰

168. In January 2013, GNS amended the RES Regulations to add provisions with respect to the generation of electricity using biomass. In particular, NSPI was required to produce certain amounts of “firm” renewable energy, with the Biomass Plant as the “base-load” unit.³⁰¹

169. The Parties' positions with respect to certain disputed facts are laid out below.

i. The Claimant's position

170. In the Claimant's view, the LRR obtained by PWCC for the PHP Mill is a component of the ensemble of Assistance Measures GNS provided.³⁰² It considers the LRR a “package” of measures itself, including the fix cost of service, a tax-efficient structure for payments to NSPI, incremental costs of service, favorable amendments to the province's RES Regulations, the Biomass Plant onsite at the Mill, and a long-term rate structure.³⁰³

a. The July 2012 Letter

²⁹⁷ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Application for Amendments to the Order Approving the Load Retention Rate Mechanism, September 22, 2012 (С-197). ↩

²⁹⁸ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Amended Decision, NSUARB, September 27, 2012 (C-208; R-063); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 1-2 (R-170). ↩

²⁹⁹ In re an Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 4 (R-170); United States – WTO Panel Report – Supercalendered Paper, July 5, 2018, at para 7.16 (R-238). ↩

³⁰⁰ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Order, NSUARB, September 28, 2012, Appendix A, at 2 (R-170); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Pre-filed Evidence of Pacific West Commercial Corporation, April 27, 2012, at 2, 6 (C-165); In re An Application by Pacific West Commercial Corporation and Nova Scotia Inc., NSPI Responses – Avon, May 30, 2012, at Request IR-2 1-2, Request IR-5 1-2 (R-239); In re An Application by Pacific West Commercial Corporation and Nova Scotia Inc., NSPI Responses to Synapse Information Requests, May 30, 2012, at Request IR-6 1-2 (R-240). ↩

³⁰¹ Amendments to the Renewable Energy Regulations, N.S. Reg. 155/2010, January 17, 2013, at s. 4 (C-217); Order in Council, No. 2013-12, January 17, 2013, at s 4 (R-225). See also Respondent's Counter-Memorial, at para 212; Hearing on the Merits and Damages, October 18, 2021, at 38:14-22. ↩

³⁰² Claimant's Memorial, at paras 71, 219. ↩

³⁰³ Claimant's Memorial, at para 74. ↩

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171. The Claimant characterizes the July 2012 Letter as an “intervention" by GNS into the NSUARB proceedings,³⁰⁴ which ultimately led the NSUARB to approve the LRR.³⁰⁵ It claims that GNS "changed the law for PWCC's benefit"³⁰⁶ and [Redacted]hat neither PWCC nor other ratepayers would need to absorb additional costs.³⁰⁷

b. The value of the LRR

172. The Claimant believes that PWCC's LRR was “worth millions” in comparison to the standard tariff applicable to all large customers and the prior LRR granted to the Mill under NPPH's ownership.³⁰⁸ It states that in 2013, PHP's total expenditure pursuant to its LRR was [Redacted].³⁰⁹ It argues that this figure represents approximately [Redacted] in savings in comparison to the price of energy NPPH would have paid pursuant to its rate in the same year.³¹⁰ According to the same calculations, the Claimant finds that PHP saved a further approximate [Redacted] in 2014³¹¹ and [Redacted] in 2015.³¹² The Claimant argues that it is irrelevant whether Resolute pays for less expensive hydropower in Québec than PHP pays as a result of the GNS discount, noting that the electricity rate was only one part of a larger costs savings that PHP benefited from in Nova Scotia.³¹³

173. The Claimant adds that GNS's designation of the Biomass Plant as a “must-run” facility (meaning it ran full-time) cost ratepayers nearly $20 million in “benefits”³¹⁴ between July 2013, when the Biomass Plant became fully-operational,³¹⁵ and April 2016, when GNS amended its RES

³⁰⁴ Claimant's Memorial, at para 82. ↩

³⁰⁵ Claimant's Memorial, at para 82, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 180-183 (C-184; R-062). ↩

³⁰⁶ Claimant's Memorial, at paras 82. See also Claimant's Memorial, at para 126. ↩

³⁰⁷ Claimant's Memorial, at para 172, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Government of Nova Scotia Letter Regarding PWCC Load Retention Tariff Hearing, NSUARB, July 20, 2012, at 1-2 (C-179); [Redacted] (C-210). ↩

³⁰⁸ Claimant's Memorial, at para 117. ↩

³⁰⁹ Claimant's Memorial, at para 118, referring to [Redacted] at CAN000005_0003 (C-222). The Claimant explains PHP's savings in 2014 and 2015 in Claimant's Memorial, at paras 119-120. ↩

³¹⁰ Claimant's Memorial, at para 118, referring to In re An Application by NewPage-Port Hawkesbury and Bowater Mersey Paper Company, Decision, NSUARB, November 29, 2011, at para 287 (C-138). ↩

³¹¹ Claimant's Memorial, at para 119. ↩

³¹² Claimant's Memorial, at para 120. ↩

³¹³ Hearing on the Merits and Damages, November 9, 2020, at 29:17-30:4. ↩

³¹⁴ Claimant's Memorial, at para 124; Hearing on the Merits and Damages, October 18, 2021, at 34:8-25. ↩

³¹⁵ Claimant's Memorial, at para 123, referring to Pulp and Paper World, News Release, “Biomass Plant Humming at Full Capacity", July 3, 2013 (C-219). ↩

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Regulations to remove the “must-run” designation.³¹⁶

ii. The Respondent's position

174. In the Respondent's view, the LRR is not a benefit conferred on PWCC because it was negotiated between two private parties, NSPI and PWCC, over which GNS had no control.³¹⁷ Moreover, the LRR that PWCC ultimately obtained was [Redacted]³¹⁸

a. The July 2012 Letter

175. The Respondent argues that the Claimant exaggerates the significance of the July 2012 Letter³¹⁹ and disputes the Claimant's characterization of it as a “waiver” by GNS of the RES obligations to enable the NSUARB's approval of the LRR.³²⁰

176. Concerning the amendments to the RES Regulations, the Respondent shows that the amendments were prepared and released for public consultation in June 2011,³²¹ “months before PWCC was even in the picture”.³²² It claims that approval of the RES Regulations was delayed due to the risk of shutdown of both the Port Hawkesbury and Bowater Mersey mills, because the shutdowns would impact renewable energy policy more broadly.³²³ As mentioned above, the amendments were passed in January 2013, after it was clear to GNS in the summer of 2012 that NSPI had decided to finish construction of its Port Hawkesbury Biomass Plant and “take a stake in the Port Hawkesbury mill under new ownership”.³²⁴ In the Respondent's view, the July 2012 Letter merely confirmed that “because there was enough [renewable energy] supply coming on-line and the return of the mill-load would not otherwise increase the total system load from what had been planned for in prior years, the Port Hawkesbury mill returning to the grid would not trigger an

³¹⁶ Claimant's Memorial, at para 123, referring to Government of Nova Scotia, Press Release, “Government Ends Must-Run Regulation, Reduces Biomass Use", April 8, 2016 (C-240). ↩

³¹⁷ Respondent's Counter-Memorial, at para 183. ↩

³¹⁸ Respondent's Counter-Memorial, at para 170, referring to [Redacted] (C-125). ↩

³¹⁹ Respondent's Counter-Memorial, at para 201. ↩

³²⁰ Respondent's Counter-Memorial, at para 217. ↩

³²¹ Respondent's Counter-Memorial, at para 211, referring to Proposed Amendments to Renewable Energy Regulations, June 27, 2011 (R-185). ↩

³²² Respondent's Counter-Memorial, at para 211. ↩

³²³ Respondent's Counter-Memorial, at para 211, citing Witness Statement of Murray Coolican, April 17, 2019, at para 38. ↩

³²⁴ Respondent's Counter-Memorial, at para 211, citing Witness Statement of Murray Coolican, April 17, 2019, at para 38. ↩

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incremental [renewable energy] cost over the term of the proposed LRR pricing mechanism".³²⁵

177. With respect to the Biomass Plant, the Respondent reports that NSPI had begun construction and operation of the Biomass Plant by the time NPPH filed for creditor protection in September 2011.³²⁶ When ownership of the Mill transferred to PWCC, NSPI negotiated an agreement with PWCC whereby NSPI would continue to own the Biomass Plant and deliver steam to PHP.³²⁷ It claims that NSPI wanted to continue operating the Biomass Plant in order to keep profiting from its investment and in order to help it meet its RES obligations.³²⁸ The Respondent contends that the NSUARB approved their agreement, determining that the prices for the steam supply and shared services “appeared reasonable and not subsidized by ratepayers”.³²⁹ It adds that PHP pays nearly $4 million annually for the steam supplied by NSPI and PHP shoulders the cost of fuel necessary to the production of steam.³³⁰ Moreover, it claims that even if NSPI did not operate the Biomass Plant, PHP could still procure steam from its own gas-fired boiler.³³¹

178. Ultimately, the Respondent asserts that the return of the PHP Mill to the grid never did in fact trigger additional RES obligations.³³²

b. The value of the LRR

179. In the Respondent's opinion, the LRR that PWCC obtained for operations at the PHP Mill was significantly higher than what it had originally sought from NSPI ($30/MWh).³³³ PWCC agreed

³²⁵ Respondent's Counter-Memorial, at para 217, citing Witness Statement of Murray Coolican, April 17, 2019, at para 26; In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Non-Confidential Government of Nova Scotia Amended Response to Consumer Advocate, July 18, 2012, at 8 (R-177). ↩

³²⁶ Respondent's Counter-Memorial, at para 207, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Evidence of Nova Scotia Power Inc., NSUARB, April 27, 2012, at 8 (R-167); Hearing on the Merits and Damages, October 19, 2021, at 448:15-22. ↩

³²⁷ Re Pacific West Commercial Corporation, Shared Services Agreement, M04862 P-8, at Preamble, para 5.2.2 (R-412); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at paras 34(1), 156 (C-184; R-062). ↩

³²⁸ Respondent's Counter-Memorial, at para 210, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Transcript of Oral Hearing, NSUARB, July 17, 2012, at 439 (R-399). ↩

³²⁹ Respondent's Counter-Memorial, at para 208, referring to In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 158 (C-184; R-062). ↩

³³⁰ Respondent's Counter-Memorial, at para 213. ↩

³³¹ In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Decision, NSUARB, August 20, 2012, at para 156 (C-184; R-062); In re An Application by Pacific West Commercial Corporation and Nova Scotia Power Inc., Redacted Pacific West Commercial Corporation Responses to Information Requests from the Small Business Advocate, May 30, 2012, at 25 (R-417). ↩

³³² Respondent's Counter-Memorial, at para 220, referring to Witness Statement of Murray Coolican, April 17, 2019, at para 31. ↩