PUBLIC
PCA CASE No. 2021-26
PERMANENT COURT OF ARBITRATION
BETWEEN:
WINDSTREAM ENERGY LLC
Claimant
- vs -
THE GOVERNMENT OF CANADA
Respondent
TRANSCRIPT OF ARBITRATION PROCEEDINGS
Held at the offices of Arbitration Place
333 Bay Street, Suite 900, Toronto, Ontario
on Tuesday, February 6, 2024, at 9:00 a.m.
VOLUME 2
FURTHER REVISED TRANSCRIPT
CONDENSED TRANSCRIPT WITH INDEX
TRIBUNAL:
Wendy Miles KC (Presiding Arbitrator)
Prof. John Gotanda
Rt. Hon. Beverley McLachlin
PERMANENT COURT OF ARBITRATION REGISTRY
José Luis Argón Cardiel
Stefan Schäferling
Helen Griffin
COURT REPORTER:
Lisa Lamberti
Arbitration Place © 2024
900-333 Bay Street Toronto, ON M5H 2R2
[Page 467]
John Terry, Counsel
Emily Sherkey, Counsel
Alexandra Shelley, Counsel
Julie Lowenstein, Counsel
Natasha Williams, Counsel
Shoshana Israel, Clerk
Nicole Wannop, Clerk
Torys LLP
Party Representative
David Mars
Fact Witnesses
Nancy Baines
Michael Killeavy
Expert Witnesses
Edward Tobis
Chris Milburn
Pierre-Antoine Tetard
[Page 468]
Rodney Neufeld, Senior Counsel
Heather Squires, Senior Counsel and
Deputy Director
E. Alexandra Dosman, Counsel
Yu Cai Tian, Counsel
Kayla McMullen, Paralegal
Darian Bakelaar, Paralegal
Christine Ayoub, Paralegal
Global Affairs Canada, Trade Law Bureau
Party Representative
Rahim Punjani, Counsel
Ministry of the Attorney General, Government of
Ontario
Expert Witness
Dr. Jérôme Guillet
Fact Witnesses
Andrew Teliszewsky
Michael Lyle
Trial Graphic Expert
Ryan Knecht
Core Legal Concepts
[Page 469]
INDEX
PAGE
AFFIRMED: NANCY BAINES 471
EXAMINATION IN-CHIEF BY MS. SHELLEY 472
CROSS-EXAMINATION BY MS. DOSMAN 477
RE-EXAMINATION BY MS. SHELLEY 535
AFFIRMED: MICHAEL KILLEAVY 544
EXAMINATION IN-CHIEF BY MS. SHERKEY 544
CROSS-EXAMINATION BY MR. TIAN 548
QUESTIONS BY THE TRIBUNAL 592
CROSS-EXAMINATION BY MR. TIAN (Cont'd) 596
RE-EXAMINATION BY MS. SHERKEY 599
RE-CROSS-EXAMINATION BY MR. TIAN 614
AFFIRMED: ANDREW TELISZEWSKY 620
EXAMINATION IN-CHIEF MS. DOSMAN 620
CROSS-EXAMINATION BY MS. SHERKEY 620
AFFIRMED: MICHAEL LYLE 634
EXAMINATION IN-CHIEF MR. NEUFELD 634
CROSS-EXAMINATION BY MS. SHERKEY 635
RE-EXAMINATION BY MR. NEUFELD 675
[Page 470]
1 Toronto, Ontario
2 --- Upon resuming on Tuesday, February 6, 2024
3 at 9:00 a.m.
4 PRESIDING ARBITRATOR MILES:
5 Before we begin, Ms. Shelley or Mr. Terry, any
6 housekeeping from the Claimants?
7 MR. TERRY: I don't think
8 anything we need to deal with right now.
9 I think we might want to
10 revisit our conversation about closing that we had
11 yesterday, later on, as we get closer to the end
12 of the week. Just because I think probably
13 Canada's feeling the same way in we talked about
14 two and a half hours with Tribunal questions and --
15 PRESIDING ARBITRATOR MILES:
16 You didn't expect four hours.
17 MR. TERRY: I think we may all
18 collectively just want to think about what makes
19 most sense for Friday as we get closer, if that's
20 fine to leave open for now.
21 PRESIDING ARBITRATOR MILES:
22 That's fine.
23 MR. TERRY: Thanks.
24 PRESIDING ARBITRATOR MILES: I
25 hope you're not thinking about Saturday.
[Page 471]
1 Ms. Dosman, any housekeeping?
2 MS. DOSMAN: Nothing from us.
3 PRESIDING ARBITRATOR MILES:
4 Okay. Excellent.
5 So then that leaves us with
6 Ms. Baines, I think.
7 So, Ms. Shelley, are you
8 calling Ms. Baines?
9 MS. SHELLEY: I am.
10 Ms. Baines, can you please
11 come forward to the witness table.
12 PRESIDING ARBITRATOR MILES:
13 Ms. Baines, welcome. Please don't hold it against
14 us excluding you yesterday. That's sort of the
15 rules of engagement. It was nothing personal.
16 So it's nice to have you with
17 us today.
18 There is an oath or an
19 affirmation on the table in front of you. Could
20 you please make that affirmation for the Tribunal.
21 MS. BAINES: I solemnly
22 declare upon my honour and conscience that I will
23 speak the truth, the whole truth and nothing but
24 the truth.
25 AFFIRMED: NANCY BAINES
[Page 472]
1 PRESIDING ARBITRATOR MILES:
2 Thank you very much. Much appreciated.
3 Now Ms. Shelley is going to
4 start with some introductory questions and then
5 Ms. Dosman is going to ask you some additional
6 questions.
7 EXAMINATION IN-CHIEF BY MS. SHELLEY:
8 Q. Good morning, Ms. Baines.
9 A. Good morning.
10 Q. I understand this is your
11 first experience as a witness?
12 A. Yes, it is.
13 Q. Just a reminder that it
14 works best if we take turns speaking so that Lisa,
15 our stenographer, can record the evidence.
16 I understand you are currently
17 the Director, Administration, of Windstream Energy
18 Inc.?
19 A. That's correct.
20 Q. When did you start in
21 that role?
22 A. I started in that role in
23 2008.
24 Q. And could you please
25 describe what the role of director of
[Page 473]
1 administration entails?
2 A. The director of
3 administration does a lot of organizational work,
4 administrative work. I do all the financial
5 transactions for Windstream Energy Inc.
6 I have also been very involved
7 in project management as well as public relations,
8 government affairs.
9 Q. And would you also
10 explain for the Tribunal what your role and
11 responsibilities are in connection with the Wolfe
12 Island Shoals offshore wind project?
13 A. Sure.
14 The Windstream Energy Inc. is
15 the operating company for Windstream Wolfe Island
16 Shoals. So the roles are very similar. I am just
17 acting on behalf of the project.
18 Q. And how does your role
19 overlap or differ from Mr. Baines' role?
20 A. There are three of us
21 working together, Mr. Baines, Mr. Mars and myself.
22 We all have different core strengths.
23 Mine is in the meticulous
24 area.
25 And I would say Mr. Baines
[Page 474]
1 does a lot of the strategy, certainly the
2 technical work. He is a consulting engineer.
3 Mr. Mars is the financial,
4 financing of the project.
5 And we all work together on
6 the strategy.
7 Q. And, prior to joining
8 Windstream in 2008, what was your professional
9 background?
10 A. I graduated from Queen's
11 University in 1976 in honours biochemistry, spent
12 ten years with Procter & Gamble in product
13 development where I did formulation process
14 development, as well as a lot of market research
15 and marketing with the marketing group in Toronto.
16 After that, I went to a multi
17 -- to a large restaurant group because I wanted to
18 get more experience beyond the technical area.
19 And I was director of marketing in that two years.
20 After that, though, I spent
21 the bulk of my career in pharmaceuticals and I
22 joined Boehringer Ingelheim, a multinational
23 German pharmaceutical company, as the manager of
24 new business development and then became director
25 of new business development and public relations,
[Page 475]
1 public affairs.
2 But, in that role, I did a lot
3 of work looking at opportunities for purchasing
4 products, purchasing companies, had to evaluate
5 everything from the technical to the regulatory
6 situation, marketing and sales, and financial
7 return on these opportunities.
8 And, in so doing, we bought a
9 company and I eventually wound up running the
10 company -- running the consumer health division of
11 Boehringer Ingelheim. I was the general manager
12 of this consumer health division and I did that
13 until 2002, at which point, the company divested
14 of that division.
15 So I went with the new company
16 for a year and I was vice president of corporate
17 development at this company for the year.
18 And then I joined Patheon,
19 which was a Canadian company that was private and
20 eventually became public. But it had almost 6,000
21 employees and 11 plants, and I was the vice
22 president of business development for the North
23 American business.
24 So my responsibility was for
25 the seven plants that were in -- three in Puerto
[Page 476]
1 Rico, one in Cincinnati and the rest in Canada and
2 I did all of the interaction with the customers, I
3 had P&L responsibility for those products and did
4 a little bit of everything really.
5 And that took me to 2008.
6 And they moved to Raleigh in
7 the States and I didn't want to do that and there
8 was an opportunity to help David and Ian in
9 Windstream and I thought that my skills were quite
10 transferable to helping them in some of the areas
11 they needed help in.
12 Q. And which skills, in
13 particular, did you bring to bear?
14 A. Even though my background
15 isn't in financial work, I love doing it. So I
16 did a lot of the meticulous work setting up all of
17 the financials for the company and the Canadian --
18 like Windstream Energy Inc.
19 But, as I said, I did all the
20 financial transactions and I did a lot of project
21 management.
22 And because my background has
23 been in strategic planning for all these other
24 entities, I also worked with Ian and David in --
25 all along the way from 2008 on in trying to get
[Page 477]
1 this wind farm operational.
2 MS. SHELLEY: Thank you,
3 Ms. Baines. Ms. Dosman will have some questions
4 for you now.
5 MS. DOSMAN: Thank you. I am
6 going to pass you this binder.
7 THE WITNESS: Sure. Thank
8 you.
9 CROSS-EXAMINATION BY MS. DOSMAN:
10 Q. So, Ms. Baines, it's a
11 pleasure to meet you. I am Alex Dosman and I am
12 counsel for Canada in this arbitration.
13 Before we get started, just a
14 couple of housekeeping type matters. So you will
15 see the binder in front of you?
16 MS. SHELLEY: Sorry. Just
17 wondering if there a binder available or if we are
18 to use the electronic version?
19 MS. DOSMAN: Electronic. That
20 was my understanding of our agreement.
21 The Tribunal also,
22 unfortunately, does not have paper copies. That
23 was my understanding.
24 PRESIDING ARBITRATOR MILES:
25 But you will give us the bundle reference numbers
[Page 478]
1 so we can pull it up.
2 MS. DOSMAN: Absolutely. And
3 we have the electronic copies as well.
4 BY MS. DOSMAN:
5 Q. Okay. So we may refer to
6 these documents during our time together today and
7 we will also be pulling them up on the screen in
8 front of you and all these screens so that you can
9 look at them in either format.
10 It's important that we
11 understand each other so, if I am speaking too
12 quickly or you don't understand or I skipped a
13 word, please let me know and I will repeat or
14 reframe.
15 And then, as Ms. Shelley
16 mentioned, the transcript doesn't capture
17 gestures. So if you could answer orally, please,
18 starting with yes or no, if possible. That would
19 facilitate our time together.
20 Is that acceptable?
21 A. Yes, it is.
22 Q. Okay. Excellent.
23 So you're here today as a
24 witness for Windstream, and I would like to start
25 by getting the various Windstream entities
[Page 479]
1 straight.
2 A. Sure.
3 Q. So if we go to Tab 3 in
4 your binder.
5 Tabs 1 and 2 are your
6 statements, so we will go straight to Tab 3.
7 This is the Claimant's
8 memorial dated February 18th, 2022.
9 A. Um-hmm.
10 Q. And then, on the flip
11 side, we have reproduced page 25 of the memorial.
12 And, for the record, this is
13 page 30 of the electronic PDF copy.
14 So we see here an
15 organizational chart. Perhaps we could zoom in on
16 the electronic copy.
17 It's not a very good copy so
18 we will have to do our best to decipher it,
19 perhaps with further zooming.
20 So, at the top, we have
21 Windstream Energy LLC and that's the Claimant in
22 this arbitration; right?
23 A. Correct.
24 Q. Okay.
25 And that's a US entity, as we
[Page 480]
1 see marked there?
2 A. Correct.
3 Q. And then, to the right,
4 we see one of its subsidiaries is Windstream
5 Energy Inc.; is that right?
6 A. That's right.
7 Q. And that's an Ontario
8 entity?
9 A. Yes.
10 Q. Okay.
11 And then separately, on the
12 left, we see that Windstream Energy LLC owns
13 Windstream Wolfe Island Shoals Inc., and it's the
14 third little box from the left -- I know, we have
15 to squint.
16 A. Yes, I see that.
17 Q. Okay.
18 And it looks as though that
19 ownership is 85 percent directly, that's the
20 little line in the middle. And 15 percent
21 indirectly via an entity called OCP Option Inc.?
22 A. Yes.
23 Q. And I believe you
24 clarified, that WWIS is an Ontario company; is
25 that right?
[Page 481]
1 A. That's correct.
2 Q. And WWIS was the party
3 that was the entity that was a party to the FIT
4 Contract?
5 A. That's correct.
6 Q. Okay. Great.
7 So you just confirmed that you
8 joined Windstream Energy Inc. in 2008.
9 I just want to make sure I
10 understand one thing.
11 If we go to Tab 4, this is
12 Exhibit C-1877.
13 A. Um-hmm.
14 Q. It's an independent
15 contract for services dated October 1st, 2009.
16 And we can see there on the
17 front page that this is an agreement between you,
18 Windstream Energy Inc., and Controltech
19 Engineering Inc.
20 And then, in the first whereas
21 clause, we see that you are a principal of
22 Controltech; is that correct?
23 A. Yes.
24 Q. And your husband, Ian
25 Baines, is also a principal of Controltech?
[Page 482]
1 A. Yes.
2 Q. And was this the
3 agreement under which you provided services to
4 Windstream Energy Inc.?
5 A. Yes, it was.
6 Q. Okay.
7 So when you say you joined
8 Windstream Energy Inc., it was via this -- or your
9 provision of services was via this agreement?
10 A. You'll note that this is
11 2009.
12 Q. Yes.
13 A. But I started working
14 with the group in 2008.
15 Q. Yes.
16 A. And this is, this is one
17 of the things that I put together.
18 Q. That you put together?
19 A. Yes, that's right.
20 Q. Excellent. Okay.
21 A. With the lawyers.
22 Q. Right. So but you
23 weren't an employee or hadn't been an employee?
24 A. No, I have never been an
25 employee of -- in fact, neither has Mr. Baines.
[Page 483]
1 Q. Okay. Excellent.
2 I would like to just go
3 quickly, then, to Schedule A1, which is on page 11
4 of the printed copy, and I believe also page 11 of
5 the PDF.
6 A. Scope of services?
7 Q. Correct, yes.
8 A. Yes.
9 Q. So I just want to confirm
10 this -- you did a bit of an introduction of your
11 services in direct but I want to confirm that this
12 remains accurate as a scope of your services
13 provided.
14 There's legal documentation,
15 financial. On the flip side, purchasing, project
16 management, and promotion.
17 Is that accurate still?
18 A. I'd just like to read it
19 because it's been a long time since I wrote this.
20 Q. Of course. Take your
21 time.
22 A. Yes, that's correct.
23 Q. Good.
24 And am I right that
25 Controltech changed its name to 905850 Ontario
[Page 484]
1 Inc.?
2 A. That's correct.
3 Q. Okay. In about 2013?
4 A. I am sorry?
5 Q. In about 2013?
6 A. I can't remember the
7 exact date but it did change its name to that,
8 yes.
9 Q. Okay. Great.
10 But the scope of your duties
11 remained the same?
12 A. Yes.
13 Q. Okay. So let's move on
14 from that.
15 You've testified that the FIT
16 Contract remained in force as of the date of the
17 award, as the Tribunal itself noted.
18 Do you also recall that, as of
19 the date of the award, the Contract was in force
20 majeure status?
21 A. Yes.
22 Q. Okay. Let's look at
23 Tab 5, which is Exhibit C-0408.
24 This is WWIS' notice of force
25 majeure under the FIT Contract?
[Page 485]
1 A. Correct.
2 Q. Do you recognize this
3 document?
4 A. Yes, I do.
5 Q. Okay. Very good.
6 And do you recall that the
7 force majeure event related to the lack of a site
8 release process by MNR?
9 A. Yes.
10 Q. Ministry of Natural
11 Resources, sorry --
12 A. That's fine I know who
13 MNR is.
14 Q. Okay. Great.
15 So I would just like to get
16 clear on the meaning of "site release". It's
17 something I struggled with.
18 So let's pull up the award
19 itself which is RL109. It's at Tab 6 of the
20 binder.
21 And if you -- I just want to
22 orient you in the award because it's very long and
23 we have only included an excerpt.
24 A. Right. That's fine.
25 Q. So, on page 16 of the
[Page 486]
1 award, which we should have had it flagged for
2 you, it's page 25 of the PDF.
3 Just to orient you, we are in
4 the section --
5 A. "Factual background."
6 Q. -- entitled "factual
7 background".
8 A. Okay.
9 Q. So let's flip forward a
10 couple pages to page 22 of the award,
11 paragraph 107.
12 You can see there that, in the
13 second sentence, the Tribunal notes that the
14 process for applying to build -- for permission to
15 test or build on Crown land was called the site
16 release process, and a project proponent obtaining
17 site release was referred to as an applicant of
18 record or AOR; do you see that?
19 A. That's correct.
20 Q. Okay.
21 And WWIS had applied for
22 applicant of record status; is that correct?
23 A. For a number of blocks
24 out in Lake Ontario, yes.
25 Q. Okay.
[Page 487]
1 But it never received AOR
2 status?
3 A. No, it did not receive
4 AOR status.
5 Q. Okay.
6 And with respect to -- you
7 mentioned the blocks or grid cells?
8 A. Grid cells.
9 Q. Am I right that, when
10 WWIS applied for AOR status, it identified certain
11 grid cells and later wanted to change those grid
12 cells?
13 A. I wouldn't agree that we
14 wanted to change the grid cells. It had to do
15 with discussions about a 5 kilometre setback that,
16 in fact, was never put in place. But we could
17 accommodate the movement of our grid cells. If I
18 may just add some context to this?
19 Q. Please.
20 A. Basically, we applied for
21 a lot of grid cells close to land because we
22 didn't want others to get it and we actually
23 didn't want to build close to the land because of
24 noise or anything else.
25 So we actually applied for a
[Page 488]
1 massive amount of land that we didn't need for the
2 project.
3 Q. Okay.
4 A. So our plan was to, when
5 we heard about this 5 kilometre possible setback,
6 we basically were re-engineering so that we could
7 build on the cells that were outside of the 5
8 kilometre zone.
9 Q. Okay.
10 That had not been identified
11 in the applicant of record status application?
12 A. No, no, many of them had,
13 actually.
14 Q. Okay.
15 A. And, in fact, we asked --
16 in fact, when we talked to the Ministry of Natural
17 Resources, they indicated that they were open to
18 discussing a swap of the grid cells we had close
19 to land for other cells outside of the ones that
20 we applied for.
21 As it turned out, we didn't
22 need those cells. And, in fact, you know, the
23 project is really on about 150 acres and, outside
24 of the 5 kilometre setback, there was something
25 like 4500 acres.
[Page 489]
1 Q. So -- it might help us
2 and, you know --
3 A. Sure. Too much, sorry.
4 Q. All the map issues but
5 Tab 7 of your binder, which is C-033 -- sorry,
6 0330.
7 A. Um-hmm.
8 Q. This is an email from
9 Mr. Baines to MNR copying you and a few others.
10 A. Um-hmm.
11 Q. Called Crown land
12 requirements.
13 A. Yes.
14 Q. For a 300 megawatt
15 project.
16 And Mr. Baines is setting out
17 the total number of blocks required and some of
18 the existing blocks. And he is noting
19 Windstream's proposing to renounce the
20 applications that are outside the area as -- I
21 believe this is what you were getting to.
22 There is some overlap but the
23 project didn't need new cells in order to proceed
24 if there was a 5 kilometre setback?
25 A. I will note that this was
[Page 490]
1 back in 2010.
2 Q. Yes.
3 A. A lot has changed since
4 then.
5 I would also like to note this
6 is Ian's email, not mine, so --
7 Q. Right. I know. I am
8 just putting it to you because you were copied on
9 it.
10 A. Hard for me to know what
11 he was thinking there --
12 Q. I believe I misspoke
13 there.
14 The project did need new grid
15 cells in order to proceed if there was a 5
16 kilometre setback?
17 A. Could you say that again,
18 please.
19 Q. Sorry. Yes.
20 If a 5 kilometre setback was
21 put in place, the project would need to swap cells
22 or obtain new cells. It couldn't use the original
23 cells that had been set out in the applicant of
24 record status application?
25 A. All I remember from this
[Page 491]
1 point of time, because, again, this was not in my
2 area of responsibility, although I was copied on
3 this, is that the -- we received comfort letter
4 from the Ministry of Natural Resources saying that
5 they would, they would be open to doing that.
6 So that's, that gave us
7 comfort.
8 Q. I understand.
9 And I think that's all
10 detailed in the notice of force majeure itself?
11 A. Yeah, yeah.
12 Q. Just to confirm, though,
13 that the Ministry of Natural Resources did not
14 ever agree to this, to changing the grid cells?
15 A. We never came to a
16 conclusion what would happen, although they gave
17 us comfort that they would, they would be open to
18 doing this.
19 Q. Right.
20 So you did not agree?
21 A. We did not receive
22 confirmation.
23 Q. So you did not agree?
24 A. We did not receive
25 confirmation. That's all I can say.
[Page 492]
1 Q. Okay. Maybe we can go
2 back to the notice of force majeure itself.
3 A. Sure.
4 Q. That's at Tab 4.
5 A. Tab 4. Tab 4 is the
6 contract. Am I looking at --
7 Q. Oh, sorry. Tab 5.
8 A. Tab 5. Okay.
9 Q. And let's go to page 3,
10 which I believe is page 5 of the PDF. And we can
11 go to paragraph 16. There is a Section 2 called
12 "effects of force majeure" at the bottom of the
13 page.
14 Are you with me?
15 A. Yes, I am.
16 Q. Okay.
17 And it's noted here that the
18 effects -- this is effects on project. I am
19 quoting:
20 "Absent the introduction
21 and implementation of the
22 regulatory processes (MNR
23 site release and related
24 applicant of record
25 status) and conditions
[Page 493]
1 required (MOE exclusion
2 zone) for the WIS project
3 to proceed, it is not
4 possible for the project
5 to advance any further
6 towards the milestone
7 dates described in the
8 FIT Contract. More
9 specifically, wind
10 testing and the further
11 defining of the project
12 to allow engineering and
13 REA related studies
14 cannot be concluded in
15 the current
16 circumstances."[as read]
17 Do you agree there?
18 A. Yes, I see that. It's
19 stated there.
20 Q. And you didn't receive
21 confirmation from MNR that your change of grid
22 cells would be accepted?
23 A. No, no.
24 Q. I'd like to just -- so --
25 and this notice of force majeure remained in
[Page 494]
1 effect from the date here in 2010, all the way
2 through to termination of the FIT Contract; is
3 that right?
4 A. That's correct.
5 Q. Okay.
6 I'd like to move forward now
7 to statements about the attempt to move the
8 project forward after the Windstream I award.
9 And you address this in your
10 second witness statement, which we have at Tab 2,
11 and I believe you also have before you on your
12 table.
13 I'd like to go to the section
14 that starts at paragraph 17 entitled "Windstream's
15 updated REA submission".
16 A. Yes.
17 Q. Okay. So you state that:
18 "On February 15th, 2017,
19 WWIS submitted an updated
20 REA submission to the
21 Ministry of the
22 Environment and Climate
23 Change."[as read]
24 Do you see that?
25 A. That's correct.
[Page 495]
1 Q. Great.
2 An REA means renewable energy
3 approval; is that right?
4 A. Yes, it is.
5 Q. Let's go to Tab 8, which
6 is Exhibit 0322.
7 This is a document of the
8 Ontario Ministry of the Environment entitled
9 "checklist for requirements under Ontario
10 regulation 359/09"?
11 A. I see that.
12 Q. You can see that this
13 document lists a number of sections and reports
14 and documentation that's required for an
15 application for an REA, and it's quite a long
16 document.
17 Let's go through it together.
18 We start with the requirement,
19 construction plan report, a consultation report.
20 Flipping to page 2, a
21 decommissioning plan report. Design and operation
22 report. That one is very long.
23 And then we get to page 5, the
24 top of page 5 notes a project description report.
25 A. Yes.
[Page 496]
1 Q. Okay.
2 The checklist of requirements
3 continues, though.
4 There's then a section B on
5 consultation, including notices of project and
6 meetings. Consultation with public. Consultation
7 with Aboriginal communities. Consultation with
8 municipalities, local authorities.
9 A. Um-hmm.
10 Q. There's a section on
11 page 8 called "protected properties,
12 archaeological and heritage resources" with a
13 number of subsections there that I won't belabour.
14 There's a subsection D on
15 natural heritage.
16 Can we agree that WWIS never
17 made an REA application?
18 A. I can't agree with that.
19 Q. Did WWIS prepare a
20 construction plan report?
21 A. You're asking me
22 something that is outside of my area of expertise.
23 That would be Mr. Baines. And, also, our
24 consultants who -- Ortech, which provided that.
25 So I really can't get into the
[Page 497]
1 specifics on that.
2 Q. So, in your second
3 witness statement, you exhibit what you say is an
4 updated REA submission.
5 A. Yes.
6 Q. So I am going to take it
7 that you are competent to testify on the REA
8 submission and what it is and what it is not.
9 A. I relied on our experts,
10 our consultants, to put together the REA
11 submission which was the project description, as
12 well as all the work that we had done, both in
13 engineering and environmental to support that.
14 And I relied on Mr. Baines as
15 well, because he has done many REAs but Ortech had
16 done dozens of them.
17 So all I can say is we
18 submitted a very extensive submission to the
19 Ministry of the Environment as an REA submission.
20 Q. You submitted a project
21 description report?
22 A. It was beyond the project
23 description report because we also had a lot of
24 the studies.
25 Q. Okay.
[Page 498]
1 Maybe I can help you out with
2 -- because you said you're very meticulous so
3 let's go to Tab 9.
4 A. Um-hmm.
5 Q. This is C-0166. It's
6 another Ontario Ministry of the Environment
7 document.
8 A. Um-hmm.
9 Q. It's called "application
10 for approval of a renewable energy project".
11 A. Correct.
12 Q. Did WWIS fill out this
13 form and apply for an REA?
14 A. I cannot confirm that
15 because I didn't do it.
16 Q. So you have testified --
17 A. Um-hmm.
18 Q. -- that you submitted an
19 updated REA submission --
20 A. Yes.
21 Q. -- what I am trying to do
22 is understand the difference between submission
23 and application.
24 I have put to you the form
25 that would be required to be filed with the
[Page 499]
1 Ministry of the Environment for an application for
2 REA.
3 A. Right. Right.
4 Q. In your role as director
5 of administration --
6 A. Um-hmm.
7 Q. -- paying close attention
8 to project management, did WWIS submit an
9 application for an REA?
10 A. My understanding is that
11 we did. I did not have direct control over this.
12 I am only one of a team.
13 And we, as I said, we had
14 consultants, in particular, Ortech, that had done
15 this many, many times and we asked them to submit
16 that as an REA submission.
17 So that's my knowledge of it
18 and I really can't go into did I -- you are not
19 asking me if I filled this out.
20 Q. I am asking you if WWIS,
21 which you have testified you have extensive
22 responsibilities with respect to project
23 management --
24 A. I didn't say extensive --
25 Q. You said key. You said
[Page 500]
1 key.
2 A. I said I am involved in
3 project management.
4 Q. You did say key. It's in
5 your witness statement.
6 I am asking you, separate and
7 apart from the submission, which we will come
8 to --
9 A. Um-hmm, um-hmm.
10 Q. -- whether you can point
11 me to anywhere on the record where WWIS applied,
12 submitted an application for REA approval?
13 A. My understanding is that
14 we did.
15 Q. So you cannot?
16 A. I will just leave it at
17 that. My understanding is that we did.
18 Q. I will put it to you
19 then.
20 There is nothing on the record
21 indicating that WWIS applied for REA status?
22 A. What record are you
23 referring to?
24 Q. The record of the
25 arbitration.
[Page 501]
1 A. I would have expected
2 that -- in fact, I'd have to say that the Ministry
3 of the Environment responded to us six months
4 later in August.
5 And what was very interesting
6 is that they didn't refer to any of the
7 environmental work, of which there were about 47
8 studies that we had done, and we were hoping to
9 share with them so that they could inform their
10 decision on what to do with the moratorium.
11 But they did respond to us
12 with regard to Aboriginal consultation, which
13 suggested to me they accepted that application
14 and, in fact, told us who we should be consulting
15 with, so --
16 Q. We will come to that --
17 A. -- so I find that very
18 interesting.
19 Q. We will come to the
20 letter.
21 I just note you said you were
22 hoping to submit the 47 studies. So those were
23 not attached to the submission?
24 A. No, they were attached to
25 the submission.
[Page 502]
1 Q. Okay.
2 And let's go to -- oh, you say
3 they were attached to the submission?
4 A. I believed that they were
5 a part of the submission along with the project
6 description. Again, I --
7 Q. Let's go to it because
8 you exhibit it. You do exhibit it. So I think
9 it's fair to ask you about this document and the
10 details of it.
11 It's at Tab 10 of your binder.
12 A. Um-hmm.
13 Q. This is a letter from
14 Windstream Energy Inc. to the Ministry of the
15 Environment and Climate Change. It's dated
16 February 15th, 2017.
17 A. Yes.
18 Q. And this is the document
19 you cite to in your witness statement as the
20 updated REA submission.
21 A. Yes. I will note that I
22 didn't write this document -- this is Mr. Baines.
23 Q. I understand but you did
24 put it in evidence.
25 A. Um-hmm.
[Page 503]
1 Q. So if you flip to the
2 next page, we can see what was attached to this
3 letter at the bottom.
4 This submission includes, 1,
5 the updated project description report for the
6 Wolfe Island Shoals offshore wind farm. And it
7 has an Ortech reference.
8 And, 2, a summary of
9 engineering and environmental studies in support
10 of the Wolfe Island Shoals offshore wind farm,
11 also bearing an Ortech reference number.
12 Do you see that there?
13 A. Yes, I do.
14 Q. Those were the two
15 attachments to this letter?
16 A. Right.
17 Q. So we have those
18 attachments here at tabs 11 and 12. And, for the
19 record, those are C-2074 and C-2075.
20 Let's look, first, at C-2074.
21 A. Which tab is that,
22 please?
23 Q. Sorry, Tab 11.
24 A. All right, um-hmm.
25 Q. So this is the Ortech
[Page 504]
1 report called "project description".
2 A. Correct.
3 Q. And it's dated
4 February 15th, 2017.
5 A. That's right.
6 Q. Okay.
7 And let's just flip the page
8 to the sort of -- well, the first page after the
9 cover page.
10 A. Um-hmm.
11 Q. And you'll see there a
12 little box called "revision history".
13 And you'll see that this is
14 the third iteration of this project description
15 report with two prior drafts.
16 A. Correct.
17 Q. Dated 2010 and 2012.
18 A. Correct.
19 Q. Okay.
20 And then, if we go to the
21 table of contents and flip over to the second page
22 in the table of contents, we will see there that
23 there is a reference to Table 2, which is noted to
24 be the studies completed in support of removal of
25 the moratorium.
[Page 505]
1 I may have lost you, sorry?
2 A. I see it. I see it.
3 Okay.
4 Q. There you are.
5 A. Yes. Thank you.
6 Q. And it tells us to flip
7 to page 28. So let's do that to get to Table 2.
8 A. Um-hmm.
9 Q. Okay.
10 And I believe these might have
11 been the studies you were referencing earlier?
12 A. Yes.
13 Q. Okay.
14 So, on the third column of
15 this table, and it goes on for three pages.
16 A. Um-hmm.
17 Q. The dates of all of these
18 documents are listed. I will give you just a
19 moment to flip through.
20 But I would like you to
21 confirm that all of these predate the Windstream I
22 award, which was rendered at the end of
23 September 2016.
24 A. That's correct.
25 Q. So let's look at the
[Page 506]
1 second attachment to the February 15th letter.
2 A. Okay.
3 Q. Which is at Tab 12?
4 A. Tab 12, um-hmm.
5 Q. It's Exhibit C-2075.
6 A. Okay.
7 Q. It's entitled "summary of
8 engineering and environmental studies". We saw
9 the full title earlier, also dated February 15th,
10 2017.
11 A. Correct.
12 Q. Okay. And let's go to
13 page 10.
14 It's here listed Table 1.
15 List of main studies and other analysis.
16 A. Correct.
17 Q. Here, we have four
18 columns.
19 In the second -- in the third
20 column along, or second to last, we have a column
21 entitled "study author and date"?
22 And I will give you a moment
23 to look through the table which now goes on for
24 five pages to look at the dates.
25 A. Correct.
[Page 507]
1 Q. And these dates, again,
2 they all predate the Windstream I award; is that
3 correct?
4 A. Yes, they do.
5 Q. And then are you aware
6 that the studies listed in Table 2 of the project
7 description report duplicate those that are listed
8 here?
9 A. I would assume, yes.
10 Q. Okay.
11 And, as far as you're aware,
12 there were no other attachments? I mean no other
13 attachments are listed to this updated REA
14 submission, as you call it?
15 A. Not that I am aware of.
16 Q. So let's go to exhibit --
17 sorry, Tab 16. Which is Exhibit C-2668.
18 This is an email from Ortech
19 to you. Sorry, to Mr. Baines and you?
20 A. Right.
21 Q. And it's dated
22 January 1st, 2017. January 20th, 2017, pardon me.
23 A. January 20th, yes, yeah.
24 Q. And, here, Ortech
25 transmits a project -- a draft project description
[Page 508]
1 report, a draft summary of studies report, and a
2 draft cover letter to the Ministry of the
3 Environment.
4 A. Correct. That's what I
5 am reading.
6 Q. And you'll see there, in
7 the last bullet, Ortech refers to initiating the
8 first steps of the REA process?
9 A. This was in January.
10 Q. 2017.
11 A. That's correct.
12 Q. So you note at
13 paragraph 18 of your second witness statement
14 that, in the fall of 2016, Ortech had been in
15 touch and provided an estimate for services?
16 A. Correct.
17 Q. And the estimate was
18 approximately $15,000 in fees?
19 A. That's right.
20 Q. Am I right that that
21 $15,000 was to cover the work listed in these
22 three bullet points?
23 A. To pull it all together.
24 Q. Okay --
25 A. So that it could be
[Page 509]
1 submitted.
2 Q. So the project
3 description report and the summary of studies?
4 A. Yes.
5 Q. Okay.
6 So just one other thing about
7 these. And I want to clarify, for the record,
8 it's sort of unclear in the pleadings.
9 In your second witness
10 statement, at paragraph 21, you say that this was
11 Windstream's third REA submission to Ontario.
12 A. I did say that in the
13 second witness statement.
14 Q. Yeah.
15 And then you clarify, though,
16 in the next paragraph, that the first two
17 submissions were not made to the Minister of the
18 Environment but, rather, to the Ministry of
19 Natural Resources?
20 A. Yes.
21 Q. Okay.
22 So should we understand, then,
23 that this letter, in your view, comprising an REA
24 submission was the first to be submitted to the
25 Ministry of Energy -- of the Environment?
[Page 510]
1 A. Of the Environment, yes.
2 And I'd say it was kind of a
3 misstatement to say. We did submit it to the MNR
4 in 2010 and in 2012. And, in fact, it should go
5 to the Ministry of the Environment.
6 Q. It should --
7 A. So we recognized that.
8 Q. Okay. Thank you.
9 Let's finish up on the letter.
10 You mentioned you received a
11 response. The response is at Tab 17.
12 A. Um-hmm.
13 Q. It's C-2474. This is one
14 of those exhibits that's absolutely massive so we
15 have just excerpted part of it --
16 A. Yes.
17 Q. -- and, for the record,
18 when people are looking in the electronic copy,
19 it's pages 87 to 90 of the PDF copy.
20 A. Um-hmm.
21 Q. This same letter appears
22 as R-0795. But, either way, Tab 17, for our
23 purposes.
24 A. Okay.
25 Q. So this is a letter dated
[Page 511]
1 August 25th, 2017, and the Ministry of the
2 Environment is responding to WWIS' correspondence
3 of February.
4 And then if you flip to
5 page 2.
6 A. Yes.
7 Q. The Ministry notes, and
8 this is the first full paragraph, that:
9 "In your letter, you also
10 describe the studies that
11 you have carried out to
12 date. The Ministry has
13 not published any final
14 guidelines or policies
15 specific to offshore
16 wind. As a result, the
17 Ministry does not endorse
18 any of the studies that
19 you have conducted in the
20 absence of any provincial
21 policy framework on
22 offshore wind. Any
23 studies you carry out are
24 entirely at your own
25 risk. The studies may
[Page 512]
1 not meet the standards
2 set out in the provincial
3 guidelines and policies,
4 should these be
5 developed."[as read]
6 And then I'd just like to
7 point to the next paragraph, which clarifies, as I
8 believe we have just done, that the documents
9 submitted with the letter of February 15th, are
10 not those required -- those that are required for
11 an REA application.
12 The Ministry writes:
13 "I would also point out
14 that a number of
15 documents that you
16 describe as studies in
17 the draft PDR."[as read]
18 That's the project description
19 report:
20 "Are not the reports that
21 are required to be
22 prepared under Ontario
23 regulation 359/09 as part
24 of an application for
25 REA."[as read]
[Page 513]
1 Do you note that?
2 A. I read that there.
3 Q. Okay. Great.
4 So, so far, we have seen an
5 updated Ortech project description report, and the
6 Ortech summary of studies.
7 At paragraph 27 of your second
8 witness statement, you also reference an updated
9 wind resource assessment by Ortech.
10 Let's go to Tab 18, which is
11 C-2704.
12 This is an email chain. So,
13 in order to get more towards the beginning, we
14 have to go to the end of the document.
15 So I'd like to direct you to a
16 document numbered on the very bottom WIND00011 --
17 sorry, 1107_0009. I am going to call this page 9
18 for simplicity.
19 Are you there with me?
20 A. I believe I am, yes.
21 Q. Okay.
22 And what I am looking at here
23 is a February 20th, 2017, email from Mr. Baines to
24 Ortech -- sorry, to Ortech and it copies you.
25 Do you see that?
[Page 514]
1 A. Yes.
2 Q. Okay.
3 And so, a little farther down,
4 we see Ortech -- that's his response?
5 So then we see Ortech's
6 writing to the same group just before.
7 A. Where are you looking --
8 I see it, yes.
9 Q. Page 9.
10 There is a paragraph, this is
11 Ortech writing:
12 "As communicated
13 previously."[as read]
14 Do you see that where we are?
15 A. Yes.
16 Q. :
17 "As communicated
18 previously, we provided a
19 budget estimate of
20 $12,000 to provide an
21 updated WRA."[as read]
22 Wind resource assessment.
23 A. Um-hmm.
24 Q. :
25 "Based on one turbine
[Page 515]
1 model/layout and hub
2 height combination."[as
3 read]
4 And then it specifies the
5 Siemens 3.6-130 times 83 turbines at hub height of
6 90 metres.
7 And then the last sentence:
8 "You expanded this budget
9 to provide $15,000 to
10 provide some leeway."[as
11 read]
12 Do you see that there, at the
13 end of that paragraph?
14 A. Right, um-hmm. Um-hmm.
15 I see that.
16 Q. Okay.
17 A. A letter from -- an email
18 from Hank to Ian.
19 Q. Yes. On which you are
20 copied, I presume, because of the estimate?
21 A. It's just because I put
22 out the POs.
23 Q. Right. You are in charge
24 of the finances --
25 A. I relied on the technical
[Page 516]
1 people to be talking together, yes.
2 Q. Right.
3 So let's go forward in the
4 chain which means back in the document to the
5 page 7, so it's only one.
6 And, looking at the top of the
7 page, we have here an email, again, from
8 Mr. Baines to Ortech, copying you. It's called
9 "budget for additional wind resource analysis".
10 And I am not asking you about the content.
11 But, at the very bottom of
12 this email, there is a mark for litigation
13 privilege. And I would just like to understand
14 which litigation this might have referred to.
15 So the Windstream I had
16 concluded?
17 A. Right.
18 Q. And this one had not yet
19 begun.
20 Do you know what that
21 litigation --
22 A. I honestly have no idea.
23 Q. No, that's totally fair.
24 Let's just look briefly at the
25 wind resource assessment itself, that's at the
[Page 517]
1 next tab, Tab 19.
2 And we will just go to the
3 executive summary, which is on page 3.
4 And I will just draw your
5 attention to the fact that the wind resource
6 assessment, Ortech says, was updated to consider a
7 larger capacity turbine with greater rotor
8 diameter using the available measurement data.
9 And that data being
10 December 2011 to March 2015; do you see that?
11 A. Yes, I would just like to
12 read it for a second, please.
13 Q. Of course, sorry.
14 A. There are so many pages
15 here.
16 Yes, I see that.
17 Q. Great.
18 And then let's go, finally,
19 to, on this topic, to Tab 20, which is Exhibit
20 C-2143.
21 A. Um-hmm.
22 Q. This is a document
23 entitled "a 2017 geological assessment" by CSR
24 GeoSurveys; is that right?
25 A. That's correct.
[Page 518]
1 Q. And I would just like to
2 note the date of this document, the final document
3 is on the very bottom of the cover page. The date
4 of the document is February 27th, 2018.
5 A. That's correct.
6 We were continually updating
7 the engineering and studies, despite submitting to
8 the REA. But this continued on right through to
9 the end.
10 Q. Maybe we could then just
11 take a look at the abstract which is on the other
12 flip side of that page.
13 A. Um-hmm.
14 Q. And the second paragraph:
15 "CSR notes that it
16 conducted a regional
17 bathymetry and marine
18 geophysical program in
19 2010."[as read]
20 A. Right.
21 Q. And then, in the final
22 paragraph:
23 "In 2017, CSR was
24 contracted to compile a
25 geological assessment of
[Page 519]
1 the wind farm site,
2 including the updated
3 2017 turbine locations.
4 And that this report
5 documents the results of
6 the geological assessment
7 based on the
8 interpretation of
9 reprocessed 2010
10 data."[as read]
11 A. Correct.
12 Q. Okay.
13 Let's go to Tab 21. This is
14 C-2720.
15 A. Um-hmm.
16 Q. And C-2720A. So it's the
17 document and its attachment.
18 A. Right.
19 Q. Let's look at the email
20 first.
21 This is on March 1st, 2018.
22 CSR writes to you and to
23 Mr. Baines with a subject line "re proposal for
24 further study of the bottom using existing data".
25 And then if we flip to the
[Page 520]
1 next page, the invoice. This is an invoice for
2 services with a total billed amount of just over
3 50,000 Canadian dollars; is that right?
4 A. Yes, that's right.
5 Q. I'd like to shift gears
6 and turn to Tab 22. This is another one of those
7 giant PDFs.
8 So, for the record, it is
9 Exhibit C-2477. The relevant pages of the PDF are
10 127 to 128. It's part of an affidavit of Michael
11 Lyle in the domestic application --
12 A. Yes.
13 Q. -- this letter appears as
14 Exhibit N to that affidavit.
15 A. Um-hmm.
16 Q. So as not to kill all the
17 trees, we have only printed the relevant part of
18 the letter.
19 A. That's a good thing.
20 Q. Okay.
21 This is a letter dated
22 February 20th, 2018. And it's from the IESO to
23 you; do you see that?
24 A. Yes, I do.
25 Q. Okay.
[Page 521]
1 And then, on the second page
2 of the letter, the second to last paragraph, the
3 IESO writes that:
4 "In light of all of the
5 information available to
6 it, the IESO has
7 determined to exercise
8 its right of termination
9 and this letter,
10 therefore, constitutes
11 notice of termination of
12 the FIT Contract pursuant
13 to Section 10.1(g)
14 thereof." [as read]
15 Do you recall that?
16 A. Yes, I do.
17 Q. Okay.
18 I'd like to move now to some
19 financial records. So let's go to Tab 23.
20 Exhibit C-2082.
21 A. Um-hmm.
22 Q. This is a two-page chart
23 entitled "accounting". Do you know what this
24 chart is?
25 A. Yes, I do. It's a record
[Page 522]
1 from David Mars.
2 Q. Okay.
3 A. Because the LLC paid
4 certain invoices and most of -- these,
5 basically -- David was involved with the letting
6 of the contract. He would often pay for some of
7 the invoices.
8 So this is a tabulation of the
9 invoices he has paid. It's separate from the
10 Windstream Energy or Windstream Wolfe Island
11 Shoals books.
12 Q. So this is Windstream
13 Energy LLC?
14 A. Yes.
15 Q. Would you have done any
16 of these transactions, those involving Canadian
17 dollars?
18 A. No, I didn't.
19 Q. Okay. I still am going
20 to ask you about them because there are a couple
21 of things that are relevant to you on this chart?
22 A. I will try to answer them
23 but, as I said, it's Mr. Mars' spreadsheet.
24 Q. Sure.
25 And, actually, maybe before I
[Page 523]
1 get into this very small type, I would like to
2 understand how expenses were dealt with as between
3 the three entities?
4 A. Sure.
5 Q. So we have Windstream
6 Energy LLC, we have Windstream Energy Inc. and we
7 have WWIS.
8 A. Yes.
9 Q. Am I correct that WWIS
10 would incur an expense and then it would get
11 reimbursed? Or perhaps you just --
12 A. No.
13 Q. -- tell us about how
14 those financial relationships worked.
15 A. I will do my best.
16 Again, I am not an accountant,
17 although I love, I love the financial area. But I
18 am not trained in accounting, so I will do my best
19 to explain.
20 Q. Just in your capacity
21 as -- yeah.
22 A. I worked with PwC all
23 through this process, right from when we set up
24 the books in the Canadian companies.
25 So, basically, Windstream
[Page 524]
1 Energy Inc. would contract all the work and so
2 those -- every single transaction is done on
3 QuickBooks and --
4 Q. Of Windstream Energy
5 Inc.?
6 A. Of Windstream Energy Inc.
7 Q. Okay.
8 A. And then PwC has
9 allocated the expenses that Windstream Energy Inc.
10 incurred for Windstream Wolfe Island Shoals.
11 And we have circled those
12 expenses at the end of the year -- PwC has done
13 this, through Windstream Wolfe Island Shoals.
14 So, in other words, on an
15 operating basis, everything came through
16 Windstream Energy Inc., and then PwC handled the
17 allocation to the Wolfe Island Shoals project.
18 Q. Okay. So Wolfe -- the
19 WWIS does not have its own books?
20 A. It does have its own
21 books, yes. And there are financial statements
22 produced by PwC for Wolfe Island.
23 And so when I put -- when I
24 put everything into QuickBooks, it is allocated by
25 project.
[Page 525]
1 So, yes, you know, everything
2 would be put in as Windstream Wolfe Island Shoals,
3 through the Windstream Energy books.
4 Q. Right.
5 But, in terms of incurring an
6 expense, like, would that have been paid by WWIS
7 and then it would have been allocated --
8 A. No. It would have been
9 paid --
10 Q. Or everything went
11 through Inc.?
12 A. Everything went through
13 Windstream Energy Inc.
14 Q. Okay. Except for the
15 things we have here that would have gone through
16 LLC?
17 A. That's correct. That's
18 correct.
19 Q. Thank you. That's very
20 helpful.
21 So let's just go back to
22 C-2082, the accounting chart. It definitely
23 requires glasses.
24 A. Yeah, it does.
25 Q. So this appears to be --
[Page 526]
1 it's a series of transaction records and the date
2 range is April 21st, 2017. That's the first
3 entry.
4 And then, on the flip side,
5 the last entry is December 31st, 2020?
6 A. Yes.
7 Q. If we can go back to the
8 first page, we have the opening balance and that's
9 payment from the Tribunal. So that's the
10 Windstream I award.
11 A. Correct.
12 Q. And there's a series of
13 payments, legal fees, principal, interest, et
14 cetera.
15 And then, a quarter of the way
16 down, there are two payments to 905085 Ontario?
17 A. That's correct.
18 Q. And that's your company?
19 A. Yes.
20 Q. And the notation there is
21 "accrued management fees"?
22 A. That's right.
23 Q. And then the two payments
24 total $2 million?
25 A. That's correct.
[Page 527]
1 Would you like me to explain
2 those?
3 Q. I would like you to
4 explain the accrued part of that.
5 So when would these services
6 have been performed?
7 A. Okay.
8 So we continued to invoice, as
9 contractors, Ian and I, Windstream right up until
10 June 2012.
11 And, at that point, we
12 realized that we were heading into a litigation.
13 And, I have to say, our
14 investors have been incredibly supportive and we
15 so appreciated it.
16 And, at that point, Ian and I
17 said, look it, if they are going to fund going
18 forward and trying to get this project off the
19 ground and go into NAFTA 1, we have to have skin
20 in the game.
21 And so we decided not to be
22 paid since June 2012.
23 And so we worked for free,
24 basically, until 2016 when the award was made.
25 And, as it turns out, the
[Page 528]
1 money that David has shown as an accrual --
2 because I did keep records of what we would
3 normally have invoiced Windstream for our time.
4 As it turns out, what we were
5 paid was basically about the same amount as we
6 would have invoiced during that time.
7 Q. Okay.
8 A. So that's what took us to
9 basically we were -- when we got the money,
10 finally, was 2017.
11 Q. Yeah. I note there it
12 was paid, I believe this is the American style, so
13 May 8th, 2017.
14 A. Well, there we go.
15 Q. So of those costs,
16 then --
17 A. Um-hmm, um-hmm.
18 Q. -- how many -- how much
19 of that accrual, how much of those services
20 related to the time, up to and including the
21 Windstream I award, and how much related to work
22 after the Windstream I award?
23 A. Nothing after the
24 Windstream I award.
25 Q. Okay.
[Page 529]
1 A. It took us just to the
2 Windstream I award.
3 Q. Okay.
4 A. We have since done the
5 same thing, and we have been working since 2016
6 for free because -- not for free. We have kept an
7 accrual.
8 But, basically, Ian, David and
9 I -- I will speak for Ian and I. I can't speak
10 for David. But I am sure it's similar -- have not
11 been paid for basically eight years. And that's
12 our skin in the game.
13 Q. Right. Although you did
14 receive the $2 million --
15 A. Sorry, not eight years.
16 We did in 2017. But it took us to 2016, the award
17 in 2016.
18 Q. Okay. Great.
19 A. Not when it was paid.
20 Q. No, I understand.
21 Let's flip the page. I just
22 want to ask about one more entry.
23 It's about the eighth row from
24 the bottom. And this appears to be a payment to
25 Windstream Energy Inc., so the entity for which
[Page 530]
1 you were responsible.
2 And the notation is "legal
3 settlement".
4 A. I am sorry --
5 Q. Oh, yeah. I know it's so
6 small.
7 So, if you go up from the
8 bottom --
9 A. Oh, yeah. Yeah.
10 Q. Yeah.
11 A. Just a moment. I am
12 still looking for it down here. I am sorry.
13 Q. I see Secretariat, Torys
14 and then Windstream.
15 A. Oh, I am sorry. I am on
16 the wrong page. That helps; doesn't it.
17 Yes, I see it.
18 Q. Okay.
19 And this is a payment of
20 $750,000?
21 A. Yes.
22 Q. Do you remember what
23 that's for?
24 A. That was paid to the --
25 to the IESO as a result of direction from the
[Page 531]
1 judge in the Ontario application. We paid that
2 amount.
3 Q. We have, on the record,
4 C-2304 which is a letter between lawyers. They
5 are discussing the costs to be allocated.
6 A. Yes, yes.
7 Q. And the IESO was willing
8 to settle its costs of the domestic application
9 for just under $750,000 -- sorry, I should have
10 taken you there.
11 It's Tab 24, in case you
12 wanted a refresher.
13 A. Okay.
14 Again, this is not something
15 that I was directly involved with.
16 Q. But you would have been
17 involved in the payments, obviously, in receiving
18 the payment --
19 A. No, I didn't. That was
20 Mr. Mars.
21 Are you referring to the
22 $750,000 or what --
23 Q. Yes. The $750,000 on
24 that accounting document --
25 A. Right.
[Page 532]
1 Q. -- it shows it as going
2 to Windstream Energy Inc.?
3 A. Oh, sorry. I had
4 forgotten that.
5 Okay.
6 Q. Okay.
7 A. You know what, it's been
8 so long ago.
9 Q. Yes.
10 A. I can't remember
11 whether -- this is kind of jarring -- I have got a
12 little bit of a memory that money came wired in to
13 me and then I --
14 Q. Wired it on?
15 A. -- paid it, probably,
16 yeah.
17 It's been a long time so I
18 can't remember each transaction.
19 Q. That's why we have
20 documents --
21 A. I do remember the judge's
22 handwritten notes with regard to this.
23 Q. I just wanted you to
24 confirm that what we have on the record, C-2304,
25 is about that $750,000 --
[Page 533]
1 A. Okay.
2 Q. -- and I wanted to
3 confirm that that was the same $750,000 we have
4 here recorded.
5 A. Okay. Sure. Sure.
6 Thank you.
7 Q. Okay.
8 And you'll remember, just a
9 couple minutes ago, we looked at the IESO's notice
10 of termination that went to you?
11 A. Yes.
12 Q. And that that was dated
13 February 20th, 2018?
14 A. Yes.
15 Q. Okay.
16 And so we can agree, then,
17 that, all of the entries, if you look on this
18 chart, all of the entries after -- there is an
19 entry sort of three quarters of the way down,
20 WRZ -- I believe that's Mr. Ziegler -- 2017
21 expenses. That was paid at the end of
22 January 2018.
23 So we can agree that all the
24 entries after that post date that notice of
25 termination of the FIT Contract?
[Page 534]
1 A. I see that on this sheet.
2 Q. Um-hmm.
3 A. I am not sure what you're
4 trying to get at.
5 Q. That's okay. I just
6 wanted to confirm that.
7 Let me confer with my
8 colleagues before I hand you back to Ms. Shelley.
9 So if you'll bear with me, we
10 have just a couple more questions about the
11 payments to 9058 -- sorry, 905085 Ontario Inc.
12 A. Right.
13 Q. So I am going to ask the
14 technician to bring up -- oh, okay. Sorry.
15 As you can see, we are having
16 a little trouble deciphering some of the financial
17 records but I think we will leave it there for
18 today.
19 So thank you for being here.
20 I will give you back to Ms. Shelley or perhaps the
21 Tribunal.
22 MS. SHELLEY: I am wondering
23 if we might be able to take a small break before
24 we gather to do a short re-examination.
25 PRESIDING ARBITRATOR MILES:
[Page 535]
1 Do you think you'll need a re-examination?
2 MS. SHELLEY: I do.
3 PRESIDING ARBITRATOR MILES:
4 All right, five minutes. We will be back at
5 quarter past.
6 MS. SHELLEY: Thank you.
7 --- Upon recess at 10:10 a.m.
8 --- Upon resuming at 10:17 a.m.
9 PRESIDING ARBITRATOR MILES:
10 Please go ahead, Ms. Shelley.
11 RE-EXAMINATION BY MS. SHELLEY:
12 Q. Thank you.
13 Ms. Baines, I just have a
14 couple of questions in re-examination.
15 During Ms. Dosman's
16 examination, you made reference to a comfort
17 letter from the MNR?
18 A. Correct.
19 Q. And I would like to just
20 pull up, if we could, the Tribunal's award from
21 NAFTA 1. This is the C-2040, the version we are
22 using. And I am at paragraph 135.
23 We see there:
24 "On the 5th of August,
25 2010, WWIS sent a
[Page 536]
1 proposed layout and
2 description of the grid
3 cells required for the
4 project to be built
5 outside of the 5
6 kilometre exclusion zone
7 to the MNR."[as read]
8 And that's the 5 kilometre
9 setback -- sorry, I should ask that.
10 That was the 5 kilometre
11 setback you discussed?
12 A. That was the 5 kilometre
13 setback and this is what I was referring to, yes.
14 Q. So you'll see, on the 9th
15 of August 2010, with the approval of the MEI and
16 the Premier's office, the MNR sent Windstream a
17 letter confirming its willingness to discuss a
18 reconfiguration of the project site after the
19 conclusion of the 5 kilometre setback policy?
20 A. That was the comfort
21 letter I was referring to.
22 Q. And the letter was
23 promising to move as quickly as possible through
24 the remainder of the application review process in
25 order that WWIS may obtain applicant of record
[Page 537]
1 status in a timely manner?
2 A. That's right.
3 Q. And that's consistent
4 with your recollection?
5 A. That's consistent with my
6 recollection.
7 Q. And, for the Tribunal,
8 the record that's being referred to here is C-0334
9 but I don't think we need to go to the record
10 itself.
11 And if we could just then move
12 forward a couple paragraphs in the award to
13 paragraph 139. Still in Exhibit C-2040.
14 And we are going to be at the
15 very bottom of the page, beginning on the 7
16 October 2010:
17 "On the 7th of
18 October 2010, Windstream
19 formally applied to the
20 MNR for the swap of Crown
21 land grid cells, also
22 reiterating its request
23 to obtain AOR status."[as
24 read]
25 A. Yes, I see that.
[Page 538]
1 Q. Ms. Baines, is that
2 consistent with your recollection --
3 A. Yes, it is.
4 Q. -- how it proceeded?
5 Those are my questions -- oh,
6 sorry, apologies. Sorry, I jumped the gun.
7 I am going to move topics
8 slightly now, Ms. Baines. I have one final
9 question.
10 You discussed, during your
11 examination with Ms. Dosman, the PDR, the project
12 description report; you recall that?
13 A. Yes.
14 Q. And if we could now pull
15 up C-2075. And it's Exhibit 1.
16 There was a discussion between
17 you and Ms. Dosman about whether the 45, 47
18 studies were or were not attached.
19 On the screen, maybe we could
20 orient Ms. Baines as to what this document is?
21 A. Thank you.
22 Q. So this is the -- if you
23 go right -- there we go.
24 This is the Ortech document.
25 It's the report, the summary of engineering and
[Page 539]
1 environmental studies of the Wolfe Island Shoals
2 offshore wind farm?
3 A. Correct.
4 Q. And it's dated
5 February 15th, 2017.
6 And now we could advance
7 forward to the table of contents.
8 And you see listed there the
9 list of appendices?
10 A. Yes, I do.
11 Q. And what does that list
12 of appendices tell us, Ms. Baines?
13 A. It says there is an
14 electronic copy of all the studies that were
15 referenced in the report on a DVD.
16 Q. Thank you, Ms. Baines.
17 Those are my questions.
18 MS. DOSMAN: Can I just have
19 one point with the witness?
20 No, I won't. I do have a
21 point of clarification for the Tribunal, though,
22 on the issue of the binders.
23 PRESIDING ARBITRATOR MILES:
24 How about we release Ms. Baines.
25 Ms. Baines, thank you very
[Page 540]
1 much very, very much for answering the questions
2 and that's it for you.
3 THE WITNESS: Thank you.
4 PRESIDING ARBITRATOR MILES:
5 So you may now stay for as much of the hearing as
6 you want.
7 THE WITNESS: Thank you.
8 PRESIDING ARBITRATOR MILES:
9 Ms. Dosman.
10 MS. DOSMAN: I just wanted to
11 clarify the issue of the binders.
12 In PO5 --
13 PRESIDING ARBITRATOR MILES:
14 Yes, we have got PO5.
15 Can I just jump ahead.
16 This process wasn't
17 particularly helpful for me. Not having the
18 documents and not being able easily to access from
19 your index.
20 So I understand -- I checked
21 too. I understand exactly what PO5 said. You did
22 it by the book. It just wasn't helpful to me as
23 the Tribunal member. I haven't spoken to --
24 CO-ARBITRATOR MCLACHLIN: No,
25 it wasn't helpful.
[Page 541]
1 PRESIDING ARBITRATOR MILES:
2 We can't follow.
3 So how big is your bundle for
4 Mr. Killeavy?
5 MR. TIAN: Not very big. We
6 could, in the break, get three copies for the
7 Tribunal.
8 PRESIDING ARBITRATOR MILES:
9 Excellent.
10 MR. TIAN: And one copy for
11 the Claimant, of course.
12 PRESIDING ARBITRATOR MILES:
13 And for the Claimant's; that's right. Don't give
14 us anything you don't give them.
15 Who is crossing the --
16 MS. SHERKEY: I am defending
17 Mr. Killeavy.
18 PRESIDING ARBITRATOR MILES:
19 That wasn't my question.
20 MS. SHERKEY: Oh, sorry.
21 PRESIDING ARBITRATOR MILES:
22 Who is crossing the Respondent's witnesses this
23 afternoon?
24 MS. SHERKEY: I am and I have
25 physical copies of all briefs.
[Page 542]
1 PRESIDING ARBITRATOR MILES:
2 You have physical copies. Excellent. All right.
3 Well, we will proceed on that
4 basis. Are you -- I don't think there is any
5 prejudice to the Claimants, in particular, of the
6 Tribunal and you not having a bundle here.
7 But are you prepared to
8 confirm that for Ms. Baines?
9 MS. SHERKEY: That was fine.
10 PRESIDING ARBITRATOR MILES:
11 Okay. Excellent.
12 So we will proceed on the
13 basis that we didn't have the bundles there. It
14 will mean that we will need to go back and relook
15 at those documents.
16 And we will take the 10:30
17 break now. And Mr. Tian will get us copies of his
18 bundles, three for the Tribunal and one for the
19 Claimant.
20 MR. TIAN: For exhibits that
21 are very large, is the Tribunal satisfied with the
22 excerpt that I will be referring to.
23 PRESIDING ARBITRATOR MILES:
24 Just to photocopy whatever you have in the witness
25 bundle.
[Page 543]
1 So I am assuming, based on
2 practice with Ms. Baines, that you are not
3 reproducing whole exhibits in the bundle.
4 MR. TIAN: That's correct.
5 PRESIDING ARBITRATOR MILES:
6 Yes. So just what you have is helpful. Thank
7 you.
8 We will take the full break
9 now, so twenty to 11. So we will take the
10 15-minute proper coffee break now.
11 You will all be twitchy by the
12 time you come back from your coffee. Maybe it's
13 just me.
14 So 20 to 11, please, sharp.
15 MS. DOSMAN: I am sensing
16 murmuring.
17 In the event that's not enough
18 time to complete the reproduction of the binders,
19 should we just let everyone know?
20 I am noting some concern that
21 15 minutes may not be enough time to reproduce the
22 four copies. So, if that's the case, we will let
23 everyone know.
24 PRESIDING ARBITRATOR MILES:
25 Hustle, hustle. Okay.
[Page 544]
1 --- Upon recess at 10:26 a.m.
2 --- Upon resuming at 11:06 a.m.
3 PRESIDING ARBITRATOR MILES:
4 Ms. Sherkey, is this your witness?
5 MS. SHERKEY: Yes.
6 PRESIDING ARBITRATOR MILES:
7 Mr. Killeavy, hello.
8 My name is Wendy Miles. Your
9 Tribunal, Professor Gotanda, Justice McLachlin.
10 You have an affirmation in
11 front of you. Could you please take that for the
12 Tribunal?
13 THE WITNESS: I solemnly
14 declare upon my honour and conscience that I will
15 speak the truth, the whole truth and nothing but
16 the truth.
17 AFFIRMED: MICHAEL KILLEAVY
18 PRESIDING ARBITRATOR MILES:
19 Thank you very much, Mr. Killeavy.
20 Ms. Sherkey is going to ask
21 you some questions briefly and then you will be
22 cross-examined, I believe, by Mr. Tian.
23 THE WITNESS: Okay.
24 EXAMINATION IN-CHIEF BY MS. SHERKEY:
25 Q. Good morning.
[Page 545]
1 You were director of contract
2 management at the OPA, then the IESO, from fall
3 2009 --
4 --- Off-record discussion re microphones
5 BY MS. SHERKEY:
6 Q. You were director of
7 contract management at the OPA then the IESO from
8 fall 2009 to February 2018; is that correct?
9 A. Correct.
10 Q. Describe your
11 responsibilities in that role?
12 A. So I led the contract
13 management function at the OPA and the IESO. I
14 was responsible for, I think when I left, around
15 30,000 odd contracts. This would include sort of
16 the day-to-day administration of all the power
17 generation and storage contracts that the OPA and
18 IESO had.
19 Q. What was the hierarchy of
20 the contract management group? Who did you report
21 to and who reported to you?
22 A. I reported to JoAnne
23 Butler who was the vice president of what was
24 called electricity resources. She reported to the
25 CEO.
[Page 546]
1 And I had, over the eight or
2 so years that I was there, I had anywhere between
3 half a dozen and 12 direct reports who were
4 managers.
5 Q. And who were underneath
6 the managers?
7 A. Underneath the managers
8 would have been what we call contract analysts.
9 Q. And did you report to
10 Ms. Butler to the end of your tenure?
11 A. Yes. Oh, no, sorry.
12 Pardon me.
13 She left in October of 2017,
14 and then I reported to Michael Lyle for a few
15 months. Sorry.
16 Q. Who was in charge of the
17 Windstream contract?
18 A. The manager for the
19 Windstream contract was a fellow named Perry
20 Cecchini.
21 Q. And then he reported to
22 you?
23 A. And then he reported to
24 me; correct.
25 Q. You left your role at the
[Page 547]
1 IESO in February 2018?
2 A. Correct.
3 Q. Why?
4 A. Correct. I was
5 terminated without cause.
6 Q. Do you have any further
7 information as to why?
8 A. I don't.
9 Q. Where did you go?
10 A. I went to work for Power
11 Advisory in around May of 2018.
12 Q. What is Power Advisory?
13 A. Power Advisory is an
14 energy sector consultancy. We provide sort of
15 management consulting advice to mostly power
16 generators, sometimes utilities, even the IESO, in
17 fact.
18 Q. What's your role at Power
19 Advisory?
20 A. I am what's called a
21 commercial director. So I look after all matters
22 that would be commercial, such as negotiating
23 contracts, appraising investments, providing that
24 sort of advice in general.
25 Q. How did you know Jason
[Page 548]
1 Chee-Aloy, the managing principle of Power
2 Advisory?
3 A. So, before I joined the
4 Ontario Power Authority in 2009, I owned a
5 consulting firm and we did work with the Ontario
6 Power Authority.
7 I probably met him around
8 almost 20 years ago, circa 2004, 2005.
9 Q. How would you describe
10 your relationship with him?
11 A. He was a professional
12 colleague. I mean, when I joined the OPA in 2009,
13 he was director of procurement. I was director of
14 contract management. So we worked side by side
15 for about, I think about a year or so until he
16 left.
17 Q. Okay. Great.
18 Those are all my questions.
19 A. Thank you.
20 CROSS-EXAMINATION BY MR. TIAN:
21 Q. Good morning,
22 Mr. Killeavy.
23 A. Good morning.
24 Q. Thank you very much for
25 your time this morning.
[Page 549]
1 A. No problem.
2 Q. My name is Yu Cai Tian.
3 I am counsel for Canada in this arbitration.
4 I am going to ask you a few
5 questions so that I can better understand the
6 witness testimony that you have submitted on
7 behalf of the Claimant in this arbitration.
8 A. Okay.
9 Q. If you don't understand a
10 question, please let me know and I will repeat it
11 or I will rephrase it.
12 A. All right.
13 Q. It's quite important, of
14 course, that we understand each other.
15 A. Of course.
16 Q. And it's also important
17 that you answer my questions.
18 So, in that sense, if my
19 question is yes or no, I would appreciate if you
20 could start your answer in that way so that we
21 have a clear record.
22 I will then do my best to
23 allow you time to add the context you think is
24 necessary. But we do have a limited amount of
25 time so I would appreciate very much if we could
[Page 550]
1 remain focused on the point of our discussions
2 today.
3 And I will also be referring
4 to a number of documents. Some of them have been
5 designated as confidential by the parties.
6 So, when I am referring to one
7 of those, we will take a brief pause so that the
8 public feed can be cut out.
9 All the documents are included
10 in the bundle in front of you and they will also
11 come up on the screen in front of you.
12 If you have trouble seeing a
13 document at any time or if you want to take your
14 time to read the document through, please let me
15 know, and of course I will do my best to allow
16 that.
17 Do you have any questions?
18 A. No.
19 Q. Great.
20 So I want to start today by
21 situating us in the time of relevant events.
22 You just said that you started
23 working for the OPA and its predecessor -- the
24 IESO and the OPA, its predecessor, in 2009;
25 correct?
[Page 551]
1 A. Correct.
2 Q. And are you aware that,
3 in January 2013, the Claimant filed the Windstream
4 I arbitration?
5 A. I believe that's correct.
6 Q. Are you aware that Power
7 Advisory was engaged as an expert by the Claimant
8 in that arbitration?
9 A. I didn't know that.
10 Q. Let's take a look at
11 Tab 4.
12 For the record, this is the
13 expert report filed by Power Advisory in the
14 Windstream I arbitration.
15 A. Okay.
16 Q. So turning to page Roman
17 numeral 3. That is page 4 of the PDF.
18 A. Yes.
19 Q. Do you see the first
20 sentence under the executive summary?
21 A. The first sentence that
22 says "Windstream Energy Inc."?
23 Q. Yes.
24 A. Yes.
25 Q. It says:
[Page 552]
1 "Windstream Energy Inc.
2 (Windstream) engaged
3 Power Advisory LLC (Power
4 Advisory) to provide an
5 independent assessment of
6 the economic benefits to
7 the Province of Ontario
8 from the cancellation of
9 the Wolfe Island Shoals
10 Inc. (Wolfe Island
11 Shoals) offshore wind
12 project power purchase
13 agreement (PPA)."[as
14 read]
15 Do you see that?
16 A. I do.
17 Q. Do you take issue with
18 that statement?
19 A. I wasn't involved so I
20 don't know what they did. I don't know what Power
21 Advisory did then.
22 Q. But you don't disagree
23 with it?
24 A. Disagree with it? They
25 are saying that they were hired to do an
[Page 553]
1 independent assessment. I would take it on face
2 value, I guess.
3 Q. Great.
4 Are you aware that the award,
5 so the final decision in the Windstream I
6 arbitration was issued in September 2016?
7 A. I can't remember the
8 exact date but I will take your word that that was
9 the date.
10 Q. So, for the entirety of
11 the Windstream I arbitration, that is between 2013
12 and 2016, you were working at the OPA; correct?
13 A. Sorry, can you give me
14 those dates again?
15 Q. 2013 to 2016.
16 A. So 2013 to 2015, I worked
17 for the Ontario Power Authority.
18 2015 to 2016, I would have
19 worked for the Independent Electricity System
20 Operator. They merged on January 1st of 2015.
21 Q. Right.
22 And, for the whole entirety,
23 you worked at either the OPA or the IESO; correct?
24 A. Correct. Correct.
25 Q. And, soon after, are you
[Page 554]
1 aware that Windstream, through its enterprise,
2 WWIS, brought a domestic application against the
3 IESO in March 2017?
4 A. I believe that's correct.
5 Q. At that time, March 2017,
6 you were still at the OPA; correct -- the IESO,
7 sorry?
8 A. March of 2017, I was
9 still working for the Independent Electricity
10 System Operator.
11 Q. And, in October 2017, so
12 a few months after that, you were examined as an
13 IESO representative in that domestic application;
14 correct?
15 A. I believe so.
16 Q. Then, in February 2018,
17 you presented a memo to Mr. Michael Lyle
18 recommending the termination of Windstream's FIT
19 Contract with the IESO; correct?
20 A. Correct.
21 Q. And it was also in the
22 same month that you left the IESO; correct --
23 A. Correct.
24 Q. -- February 2018?
25 A. Correct.
[Page 555]
1 Q. And three months later,
2 in May 2018, you started working for Power
3 Advisory; correct?
4 A. Correct.
5 Q. In October 2018, you then
6 gave an affidavit in the domestic application,
7 this time as witness for Windstream; correct?
8 A. Correct.
9 Q. Do you still work for
10 Power Advisory to this day?
11 A. I do.
12 Q. And you said earlier that
13 you report to Mr. Jason Chee-Aloy --
14 A. I don't think I said
15 that; did I? I work with Jason Chee-Aloy at Power
16 Advisory.
17 Q. Do you report to him?
18 A. I guess I do, yes. I
19 suppose that would be correct, yes.
20 Q. So just to recapture, for
21 the sake of clarity, you were at the IESO from
22 2009; at the OPA/IESO from 2009 up to
23 February 2018; correct?
24 A. Correct.
25 Q. And you have been working
[Page 556]
1 at Power Advisory from May 2018 up to today?
2 A. Correct.
3 Q. I would like to briefly
4 turn to your professional qualifications.
5 A. Yes.
6 Q. I understand that you are
7 a member of the Professional Engineers of Ontario?
8 A. Correct.
9 Q. And you also have a law
10 degree?
11 A. I do. I don't practice
12 law though.
13 Q. Right.
14 I would like to turn to your
15 experience in the wind energy sector in Ontario.
16 You stated earlier that you
17 worked as a director of contract management at the
18 OPA and then at the IESO; correct?
19 A. Correct.
20 Q. For the entirety of your
21 tenure?
22 A. Yes.
23 Q. That is between 2009 and
24 2018?
25 A. Correct.
[Page 557]
1 Q. In October 2018 -- 2017,
2 sorry, you mentioned that Mr. Michael Lyle -- you
3 reported to Mr. Michael Lyle?
4 A. At the end of the month,
5 yes.
6 Q. That was when he became
7 the head of contract management at the IESO?
8 A. He became the vice
9 president that was responsible for the contract
10 management function. He was still the general
11 counsel. He had a number of duties.
12 Q. And in the chain of
13 command you would report to him?
14 A. Yes.
15 Q. And you would also take
16 instructions from him?
17 A. Yes.
18 Q. Let's turn to the
19 Windstream I arbitration. No documents yet. Just
20 turning to that topic.
21 Recalling, for the benefit of
22 the Tribunal, that was between 2013 and 2016;
23 correct?
24 A. I believe so, yes.
25 Q. And a part of that case
[Page 558]
1 involved Canada addressing facts related to the
2 IESO's actions or the OPA's actions; correct?
3 A. I think so, yes.
4 Q. In that respect, Canada's
5 counsels worked with the OPA and then the IESO to
6 prepare its defence in Windstream I; correct?
7 A. Correct.
8 Q. And, in doing so, Canada
9 shared information subject to confidential --
10 information subject to solicitor-client privilege
11 with the OPA; correct?
12 A. I don't know.
13 Q. Were you present at
14 meetings with Canada's counsels back then?
15 A. One or two maybe.
16 Q. Do you recall being
17 copied on emails from Canada's counsels?
18 A. I don't.
19 Q. Do you recall providing
20 input to Canada's expert report?
21 A. I believe I did review
22 and comment on the construction aspect of it.
23 I am a civil engineer. I have
24 done marine construction so they asked me to look
25 at it and comment, yes.
[Page 559]
1 Q. Could you provide more
2 detail on your input, or your involvement?
3 A. Not really, no. It was a
4 while ago.
5 Q. You said earlier that
6 Mr. Perry Cecchini reported to you back then;
7 correct?
8 A. That's correct, yes.
9 Q. Are you aware that
10 Mr. Cecchini testified for Canada in Windstream I?
11 A. I believe that's correct.
12 Q. Did you discuss his
13 witness statement with him at the time of filing?
14 A. I don't believe I did.
15 Q. Did you discuss it with
16 anybody else at the IESO or the OPA?
17 A. I really didn't get that
18 involved in the NAFTA hearing unless people asked
19 me specific things to respond to.
20 Q. You were present at
21 meetings with Canada's counsels when they prepared
22 Mr. Cecchini prior to the Windstream I hearing?
23 A. I can't recall if I was
24 or not. I don't know.
25 Q. So, other than the expert
[Page 560]
1 report, did you otherwise provide input to Canada
2 for its defence in Windstream I?
3 A. I don't recall that I
4 did.
5 Q. I'd like to turn to the
6 domestic application.
7 Again, recalling, for the
8 benefit of the Tribunal, the Claimant via WWIS
9 started this domestic application in March 2017;
10 correct?
11 A. I believe that's correct.
12 Q. And, back then, you were
13 still director of contract management at the IESO;
14 correct?
15 A. Correct.
16 Q. And, in that application,
17 the whole purpose was that Windstream, through
18 WWIS, sought to restrain the IESO from exercising
19 its termination right under the FIT Contract?
20 A. I think that's correct,
21 yes.
22 Q. Let's turn to Tab 6 of
23 your binder.
24 For the record, this is
25 C-2480. A transcript of Mr. Killeavy's
[Page 561]
1 examination in the domestic application as an IESO
2 representative.
3 Do you recognize this
4 document?
5 A. I have seen it before,
6 yes.
7 Q. On the first page, the
8 middle, it says:
9 "Rule 39 examination of
10 Michael Killeavy."[as
11 read]
12 Could you tell the Tribunal
13 what is a Rule 39 examination.
14 A. I don't know.
15 Q. If I tell you that it is
16 when a party examines for discovery an adverse
17 party or a representative of that adverse party;
18 do you take issue with that statement?
19 A. I don't know. I will
20 take your word for it.
21 Q. So, if I understand the
22 document correctly, you were examined or
23 questioned in the context of the domestic
24 application; correct?
25 A. I believe so, yes.
[Page 562]
1 Q. And that was in
2 October 2017?
3 A. Yes.
4 What is the date on it? It
5 says "revised December 2017".
6 Q. Right --
7 A. Oh, yes. It says
8 October 4th, yes. Excuse me. I see it now, yes.
9 Q. And you were an IESO
10 representative?
11 A. Yes.
12 Q. The opposing or the
13 adverse side was Windstream or WWIS; correct?
14 A. Yes, yes.
15 Q. Represented by its
16 counsel, Mr. John Terry?
17 A. Yes.
18 Q. The same Mr. Terry that
19 is with us today?
20 A. He looks to be the same
21 person, yes.
22 Q. And, as WWIS' counsel,
23 Mr. Terry asked you questions in that examination?
24 A. Yes, he did.
25 Q. Still on the first page.
[Page 563]
1 After appearances, do you see
2 Alan Mark and Melanie Ouanounou?
3 A. I do.
4 Q. They were IESO's external
5 counsels; correct?
6 A. That's correct.
7 Q. Have you ever
8 participated in a meeting with any of them?
9 A. Probably -- I probably
10 did participate in meetings with them, with Alan,
11 Mark and Melanie Ouanounou. I probably did, yes.
12 Q. Were any of these
13 meetings to prepare for your examination?
14 A. Yes.
15 Q. Were any of those to
16 prepare for the IESO's defence in the domestic
17 application?
18 A. It was to prepare me for
19 my cross-examination, I believe. Yes.
20 Q. And these meetings were
21 understandably subject to solicitor-client
22 privilege; correct?
23 A. I believe so, yes.
24 Q. Let's take a look at
25 Tab 2 of your binder.
[Page 564]
1 For the record, this is
2 C-2475, the affidavit Mr. Killeavy gave in the
3 domestic application as Windstream's witness.
4 A part of this document is
5 confidential and we will go to confidential mode
6 when we get to questions related to that material.
7 A. Okay.
8 Q. Do you recognize this
9 document?
10 A. I do.
11 Q. That's the affidavit you
12 gave in the domestic application as Windstream's
13 witness; correct?
14 A. I believe so, yes.
15 Q. And we are talking about
16 the same domestic application for which you had
17 been examined as an IESO representative; correct?
18 A. Yes.
19 Q. Were you paid to testify
20 for Windstream?
21 A. Yes.
22 Q. Was Power Advisory paid
23 for your testimony?
24 A. On October --
25 October 2018, I believe so, yes.
[Page 565]
1 Q. Did Power Advisory
2 instruct you to testify?
3 A. No. I was asked by
4 counsel to testify.
5 Q. Let's turn to paragraph 8
6 of that affidavit. So that's page 3.
7 You indicated, at paragraph 8,
8 that, again, as you stated, that counsel for
9 Windstream asked you to review a report prepared
10 by Power Advisory; correct?
11 A. That's what it says, yes.
12 Q. And, on that basis, you
13 changed your mind on the termination
14 recommendation; correct?
15 A. Correct, correct.
16 Q. Was the report the only
17 element that made you change your mind?
18 A. Yes.
19 Q. And that report in
20 question is signed by Mr. Jason Chee-Aloy, the
21 person you report to?
22 A. Can you show me the
23 document? Is that the --
24 Q. Yes, it's in Exhibit A.
25 Unfortunately, there is no page number. But it's
[Page 566]
1 in the same tab.
2 A. I am not sure. Where did
3 he sign it.
4 Q. At Tab 2, so turning
5 page 3, turning another page.
6 Do you see the cover page?
7 A. Romanette 3 or page 3?
8 Q. Before that, before that,
9 sorry. Yeah, yeah. Just before that.
10 A. Before this?
11 Q. No. The page you were
12 on, just one page before. Yeah. This one. This
13 one.
14 A. All right.
15 Q. Do you see that the
16 report -- that's the report you referred to;
17 right?
18 A. That's right.
19 Q. And that's signed by
20 Mr. Jason Chee-Aloy?
21 A. It's not signed. It says
22 he authored it. Or it has got his name in
23 brackets. Presumably, he authored it.
24 Q. He authored it?
25 A. Yeah.
[Page 567]
1 Q. And that's the person you
2 report to in your day job?
3 A. Yes.
4 Q. When did the counsel for
5 Windstream ask you to review this report?
6 A. I can't recall.
7 Q. Did you review an
8 advanced copy before it being released?
9 A. I can't recall.
10 Q. Did you discuss it with
11 Mr. Jason Chee-Aloy before it being released?
12 A. No, we had not talked
13 about this report at all.
14 Q. I would like to go to
15 confidential session, please.
16 --- CONFIDENTIAL TRANSCRIPT COMMENCES AT 11:29
17 a.m.
18 PRESIDING ARBITRATOR MILES:
19 Alonso, are you with us?
20 MR. HAUSER: I am, Madam
21 President. One second, please.
22 We are now in confidential,
23 Madam President.
24 PRESIDING ARBITRATOR MILES:
25 Thank you. Amazing.
[Page 568]
1 Off you go, Mr. Tian.
2 BY MR. TIAN:
3 Q. So turning the page to
4 page 1 of the report?
5 A. Romanette 1 or page 1.
6 Q. Arabic number.
7 A. Arabic number 1; okay.
8 Q. Where it says "executive
9 summary"; do you see that?
10 A. Yes.
11 Q. That first paragraph, the
12 first two lines, it says:
13 "Power Advisory LLC
14 (Power Advisory) has been
15 retained by Torys LLP on
16 behalf of Windstream
17 Wolfe Island Shoals Inc.
18 (Windstream) in the
19 dispute between
20 Windstream and the
21 Independent Electricity
22 System Operator (IESO)
23 concerning the
24 termination of the
25 Windstream Wolfe Island
[Page 569]
1 Shoals Inc. (Windstream)
2 Feed-in Tariff (FIT)
3 Contract."[as read]
4 Do you see that?
5 A. I do.
6 Q. Do you take issue with
7 that statement?
8 A. No.
9 MR. TIAN: We can exit the
10 confidential session.
11 --- CONFIDENTIAL TRANSCRIPT ENDS AT 11:30 a.m.
12 MR. HAUSER: We are back,
13 Madam President. Thank you.
14 PRESIDING ARBITRATOR MILES:
15 Thank you very much.
16 Go ahead.
17 BY MR. TIAN:
18 Q. So turning back to the
19 cover page of the report.
20 A. Yes.
21 Q. So it says that report
22 was released on October 17th, 2018; correct?
23 A. Correct.
24 Q. And let's go back two
25 pages, way back. Just turning one, where we see
[Page 570]
1 your signature for the affidavit.
2 A. Correct, yes.
3 Q. And you signed this
4 affidavit on October 17th or 18th of 2018?
5 A. It says 18.
6 Q. 18.
7 So it was released, the report
8 was released on October 17th.
9 A. Yes.
10 Q. And the affidavit is
11 dated on October 18th?
12 A. Correct.
13 Q. And you had previously
14 indicated that you don't remember having reviewed
15 an advance copy of that report?
16 A. Correct.
17 Q. So, if I understand you
18 correctly, you had the time to review a 40-page
19 report --
20 A. Yes.
21 Q. -- change your mind and
22 prepare an affidavit in less than a day?
23 A. Yes.
24 Q. Again, let's stay on the
25 domestic application.
[Page 571]
1 I'd like to turn to Tab 10 of
2 your binder.
3 A. Ten. Yes.
4 Q. For the record, this is
5 the Claimant's memorial.
6 Turning the page, do you see
7 paragraph 271?
8 A. Yes.
9 Q. It states, and I am
10 quoting:
11 "On or about
12 November 1st, 2017, the
13 IESO and WWIS agreed to
14 adjourn the Ontario
15 application while the
16 IESO undertook that
17 process to decide whether
18 to terminate the FIT
19 Contract pursuant to
20 Section 10.1(g), the
21 adjournment
22 agreement."[as read]
23 Do you see that?
24 A. Yes.
25 Q. Do you take issue with
[Page 572]
1 that statement?
2 A. No.
3 Q. So, just to be clear, the
4 domestic application in question was initiated in
5 March 2017 and then adjourned on or about
6 November 1st, 2017?
7 A. Is that a question or?
8 Q. Correct?
9 A. I believe so.
10 Q. And the purpose of that
11 adjournment was to allow the IESO to make a
12 decision on whether or not to terminate the FIT
13 Contract; correct?
14 A. Correct.
15 Q. Let's turn to Tab 11.
16 For the record, this is a
17 letter sent by the IESO to Windstream on
18 November 10th, 2017.
19 A. Correct.
20 Q. Do you recognize this
21 document?
22 A. I do.
23 Q. You signed this letter;
24 correct?
25 A. I did, yes.
[Page 573]
1 Q. And that was ten days
2 after the adjournment agreement, on November 10th,
3 2017; correct?
4 A. Yes.
5 Q. The purpose of the letter
6 was to request a number of documents from
7 Windstream; correct?
8 A. Yes.
9 Q. And that is to enable the
10 IESO -- and I am looking at paragraph 3 -- "to
11 making a determination with respect to whether or
12 not to exercise its termination right under
13 Section 10.1(g)"; correct?
14 A. Correct.
15 Q. Let's go through the list
16 of documents that was requested.
17 A. Okay.
18 Q. So I see that the first
19 point is the documents on the status of the
20 moratorium; correct?
21 A. Bear with me for a moment
22 while I read it.
23 Q. Of course. Take your
24 time.
25 A. Yes.
[Page 574]
1 Q. The second point was on
2 the status of the site release; correct?
3 A. Let me have a look at it.
4 Correct.
5 Q. Do you remember why did
6 you or the IESO ask for that?
7 A. My recollection is they
8 did not have -- they were going to be putting the
9 facility on Crown land and they didn't have the
10 site release from the Ontario government yet.
11 Q. And that was also the
12 reason for the force majeure event in the first
13 place?
14 A. Yes.
15 Q. And, then turning the
16 page, at point 3, you -- or the IESO requested
17 information on the status of the force majeure
18 event itself; correct?
19 A. Yes.
20 Q. Point 4, we then
21 requested -- or the IESO, rather, information on
22 the anticipated hourly energy production profile;
23 correct?
24 A. Correct.
25 Q. And we will come to that
[Page 575]
1 point later.
2 Turning to point 5, you
3 requested project schedule; correct?
4 A. Bear with me.
5 Yes.
6 Q. Did you receive one?
7 A. I can't recall.
8 Q. Point 6. You then
9 requested the turbine supply agreement; correct?
10 A. Yes.
11 Q. Why did the IESO ask for
12 that?
13 A. We wanted to see if they
14 had the sort of primary components purchased
15 already. And that would be the wind turbines.
16 Q. Point 7, you requested
17 financing plans; correct?
18 A. Correct.
19 Q. And point 8 was about
20 risk management; correct?
21 A. Yes.
22 Q. And point 9 was all
23 outstanding approvals and permits; correct?
24 A. Just bear with me.
25 Yes, municipal, provincial and
[Page 576]
1 federal approvals, yes.
2 Q. Do you remember how many
3 were outstanding?
4 A. I don't recall.
5 Q. If I tell you there were
6 over 40, do you take issue with that?
7 A. I don't know.
8 Q. Did Windstream indicate
9 that they have received any permits that were
10 granted?
11 A. I can't recall.
12 Q. Point 10 was the list of
13 any impact assessments; correct?
14 A. Yes.
15 Q. And point 11 was the
16 discussion regarding connection of the project to
17 the grid; correct?
18 A. Correct.
19 Q. Or any discussion?
20 A. Yes.
21 Q. And 12 was an outline of
22 the currently anticipated delays; correct?
23 A. Currently anticipated
24 delays or impediments to advancing the project,
25 yes.
[Page 577]
1 Q. And point 13 was other
2 informations; correct?
3 A. Any other information
4 that the supplier considers relevant to the IESO's
5 decision, yes.
6 Q. Let's turn to Tab 12.
7 For the record, this is R-803,
8 a letter sent by the IESO to Windstream on
9 December 15th, 2017.
10 A. Yes.
11 Q. Do you recognize this
12 document?
13 A. I signed it, so I -- yes.
14 Q. And, in that letter, you
15 requested further information from Windstream;
16 correct?
17 A. Let me read it.
18 Yes.
19 Q. And the further
20 information includes the anticipated hourly energy
21 production profile based on data for at least one
22 year; correct?
23 A. Yes.
24 Q. And, that, I am referring
25 to point 1 of the information requested?
[Page 578]
1 A. Correct.
2 Q. Right?
3 A. Correct.
4 Q. Because Windstream only
5 provided data for a 24-hour period; correct?
6 A. Yes.
7 Q. And then, at point 2,
8 turning the page, you also requested copies of
9 some correspondence between Windstream and the
10 Ministry of Environment; correct?
11 A. Yes.
12 Q. Let's turn to Tab 13.
13 For the record, this is R-804,
14 a letter sent by the IESO to Windstream on
15 January 8th, 2018.
16 Do you recognize this
17 document?
18 A. Yes.
19 Q. You signed this letter as
20 well; correct?
21 A. Yes, I did.
22 Q. It was in January 2018;
23 correct?
24 A. That's the date on the
25 letter, yes.
[Page 579]
1 Q. And, again, the letter
2 communicated to Windstream that the IESO did not
3 receive anticipated hourly energy production
4 profile it requested; right?
5 A. Let me read the letter.
6 It's been a while.
7 Q. Of course. Take your
8 time.
9 A. Yes.
10 Q. So I will just repeat my
11 question for the sake of clarity.
12 The letter was to communicate
13 to Windstream that the IESO did not receive
14 anticipated hourly energy production profile it
15 requested; correct?
16 A. Correct.
17 Q. Because it requested for
18 a period of one year at least; right?
19 A. Yes, yes.
20 Q. And you then indicated,
21 in the absence of the documents requested, the
22 IESO would have to use proxy data if it were to do
23 any modelling; correct?
24 A. Yes.
25 Q. Great. Let's start a
[Page 580]
1 confidential session, please.
2 --- CONFIDENTIAL TRANSCRIPT COMMENCES AT 11:43
3 a.m.
4 MR. HAUSER: We are
5 confidential now, Madam President.
6 PRESIDING ARBITRATOR MILES:
7 Thank you very much.
8 BY MR. TIAN:
9 [Redacted]
[Page 581]
[Redacted]
[Page 582]
[Redacted]
[Page 583]
[Redacted]
[Page 584]
[Redacted]
[Page 585]
[Redacted]
[Page 586]
[Redacted]
[Page 587]
[Redacted]
[Page 588]
[Redacted]
[Page 589]
[Redacted]
[Page 590]
[Redacted]
[Page 591]
[Redacted]
[Page 592]
[Redacted]
[Page 593]
[Redacted]
[Page 594]
[Redacted]
[Page 595]
12 PRESIDING ARBITRATOR MILES:
13 Thank you for that. That's very helpful.
14 Sorry for that, Mr. Tian.
15 Carry on.
16 Mr. Tian, did you want to ask
17 any follow-up questions to that and, if not, we
18 will come out of confidential.
19 MR. TIAN: No. No follow-ups.
20 PRESIDING ARBITRATOR MILES:
21 Excellent. Thank you, Justice McLachlin.
22 Alonso, we can come out of
23 confidential now, please.
24 MR. HAUSER: Thank you, Madam
25 President. We are out of confidential. Thank
[Page 596]
1 you.
2 --- CONFIDENTIAL TRANSCRIPT ENDS AT 12:01 p.m.
3 PRESIDING ARBITRATOR MILES:
4 Thank you.
5 CROSS-EXAMINATION BY MR. TIAN (Cont'd):
6 Q. So let's go back to
7 Tab 2.
8 A. Tab 2 of the binder?
9 Q. Yes.
10 A. Okay, yes.
11 Q. For the record, this is
12 the affidavit Mr. Killeavy gave in the domestic
13 application as Windstream's witness.
14 Could you please turn to
15 paragraph 9.
16 A. Yes.
17 Q. I understand, from that
18 paragraph, that you now think the PSPG analysis is
19 based on flawed assumptions; correct?
20 A. Yes, yes.
21 Q. And, as we've discussed
22 earlier, the PSPG analysis refers to the planning
23 evaluation; correct?
24 A. Correct, correct.
25 Q. And it does not refer to
[Page 597]
1 maturity evaluation?
2 A. It did not refer to
3 maturity evaluation, no.
4 Q. And it does not refer
5 either to the procurement policies evaluation?
6 A. Correct.
7 Q. So we are talking about,
8 by PSPG analysis, one element or one subsection
9 out of the three sections of the termination
10 analysis?
11 A. Yes, but it was valid
12 that all three sections were considered in
13 determination. Yes.
14 Q. But the PSPG only refers
15 to one section?
16 A. Correct.
17 Q. And this new view of
18 yours, based on the Power Advisory report --
19 A. Yes.
20 Q. -- it doesn't change the
21 fact that Windstream still had not obtained over
22 40 approvals or permits; correct?
23 A. Correct.
24 Q. It does not either change
25 the fact that there is still no timeline regarding
[Page 598]
1 if and when the force majeure event would be
2 resolved after seven years from the contract
3 award; correct?
4 A. Correct, correct.
5 Q. It doesn't change the
6 fact that Windstream still had no access to Crown
7 land; correct?
8 A. Correct.
9 Q. Nor does it change the
10 fact that Windstream has been awarded damages from
11 the Windstream I arbitration; correct?
12 A. Correct.
13 MR. TIAN: Thank you,
14 Mr. Killeavy. Those are all my questions.
15 THE WITNESS: Okay.
16 PRESIDING ARBITRATOR MILES:
17 Thank you very much.
18 Ms. Sherkey.
19 MS. SHERKEY: I have a few
20 reply questions. Can I just have a couple minutes
21 to -- I don't need a break -- just to confer with
22 Mr. Terry.
23 PRESIDING ARBITRATOR MILES:
24 Yes.
25 --- Upon recess at 12:04 p.m.
[Page 599]
1 --- Upon resuming at 12:09 p.m.
2 PRESIDING ARBITRATOR MILES:
3 Ms. Sherkey, just before you start, just for the
4 record, I spoke to Mr. Killeavy during the break
5 and he did not discuss his evidence with anybody
6 during the break.
7 Please proceed.
8 RE-EXAMINATION BY MS. SHERKEY:
9 Q. Good afternoon now,
10 Mr. Killeavy.
11 A. Yeah, good afternoon.
12 Q. Canada's counsel asked
13 you about meetings you attended with IESO and
14 Canada's counsel where solicitor privilege
15 discussions occurred; do you recall that?
16 A. He did ask that, yes.
17 Q. Have you ever disclosed
18 any information subject to privilege?
19 A. No, I have not.
20 Q. Canada's counsel also
21 asked you if you were paid for your testimony on
22 behalf of Windstream and you said yes; do you
23 recall that?
24 A. Yes.
25 Q. What were you paid?
[Page 600]
1 A. My rate is $500 an hour.
2 Q. And you say your rate.
3 What does that mean?
4 A. It's an hourly rate. I
5 get paid -- there's no success fee or anything
6 like that involved in it.
7 Q. You were also asked if
8 Power Advisory asked you to provide your testimony
9 in the Ontario application and you said no; do you
10 recall that?
11 A. Yes.
12 Q. What discussions, if any,
13 did you have with Mr. Chee-Aloy about your
14 testimony?
15 A. I did not discuss the
16 report or my testimony with him at all.
17 Q. You were also taken
18 through -- let's go into confidentiality mode.
19 PRESIDING ARBITRATOR MILES:
20 Alonso, the drapes down, please.
21 --- CONFIDENTIAL TRANSCRIPT COMMENCES AT 12:11
22 p.m.
23 MR. HAUSER: We are
24 confidential now, Madam President.
25 PRESIDING ARBITRATOR MILES:
[Page 601]
1 Thank you very much.
2 [Redacted]
[Page 602]
[Redacted]
[Page 603]
[Redacted]
[Page 604]
[Redacted]
[Page 605]
[Redacted]
[Page 606]
[Redacted]
[Page 607]
[Redacted]
[Page 608]
[Redacted]
[Page 609]
[Redacted]
[Page 610]
[Redacted]
12 BY MS. SHERKEY:
13 Q. And my final question.
14 We can take the document off the screen and we can
15 come out of confidentiality mode.
16 PRESIDING ARBITRATOR MILES:
17 Okay, Alonso, we are coming back.
18 --- CONFIDENTIAL TRANSCRIPT ENDS AT 12:21 p.m.
19 MR. HAUSER: We are back now,
20 Madam President.
21 PRESIDING ARBITRATOR MILES:
22 Thank you.
23 BY MS. SHERKEY:
24 Q. My friend asked you about
25 the timeline of you leaving the IESO, starting at
[Page 611]
1 Power Advisory and then providing your testimony
2 in the Ontario application; do you recall that?
3 A. Yes, yes.
4 Q. If what Canada's counsel
5 is suggesting is that your testimony, in the
6 Ontario application, was influenced by virtue of
7 your role at Power Advisory; what is your reaction
8 to that?
9 A. No. It was influenced by
10 the report that I read only.
11 MS. SHERKEY: Those are all my
12 questions.
13 PRESIDING ARBITRATOR MILES:
14 Could I just ask one more question.
15 Mr. Killeavy, if I read your
16 witness statement properly, it didn't mention the
17 content of your affidavit in the earlier
18 proceedings; is that right? Or did I miss it?
19 THE WITNESS: I am not sure.
20 Are you talking about the October 2018 affidavit?
21 PRESIDING ARBITRATOR MILES:
22 So you've given a witness statement in these
23 proceedings and you gave an affidavit in the Court
24 proceedings.
25 And your affidavit in the
[Page 612]
1 Court proceedings related to this memo that we
2 have just been talking about, the Power Advisory
3 memo.
4 And I did not see a discussion
5 about that in your witness statement in these
6 proceedings. Did I just miss it or did you not
7 address that?
8 THE WITNESS: Are you talking
9 about my affidavit from October of 2018?
10 PRESIDING ARBITRATOR MILES:
11 Yes.
12 THE WITNESS: And did it refer
13 to the application, the Court application; is that
14 what you're asking?
15 PRESIDING ARBITRATOR MILES: I
16 have -- sorry, in your witness statement in these
17 proceedings, which is dated 16th of February 2022.
18 I may have missed it, but I
19 didn't think that witness statement discussed the
20 content of your affidavit dated 18 October 2018
21 and, in particular, the changing your mind in
22 response to the Power Advisory memo.
23 And, Counsel, if you can help
24 by referring me to a paragraph, please do so.
25 MS. SHERKEY: Yes. If it
[Page 613]
1 helps, I believe Mr. Killeavy is looking for his
2 NAFTA witness statement. There should be a spare
3 copy, I put up a spare copy --
4 PRESIDING ARBITRATOR MILES:
5 If there is a paragraph number, just tell me.
6 MS. SHERKEY: Paragraph 9.
7 PRESIDING ARBITRATOR MILES:
8 Sorry, you did. I read straight past it. I do
9 apologize, Mr. Killeavy.
10 THE WITNESS: No problem.
11 PRESIDING ARBITRATOR MILES: I
12 am pleased I found it because my next question was
13 going to be why not. But you did.
14 So that's very helpful. Thank
15 you very much.
16 THE WITNESS: Okay.
17 PRESIDING ARBITRATOR MILES:
18 Mr. Tian, I asked a question during the
19 re-examination and I just asked one further
20 question then.
21 If you have a question arising
22 out of my questions, you are free to ask.
23 MR. TIAN: Yes, please. Can
24 we go back to confidential mode?
25 PRESIDING ARBITRATOR MILES:
[Page 614]
1 Yes, please.
2 Alonso, please we will go back
3 into confidential.
4 --- CONFIDENTIAL TRANSCRIPT COMMENCES AT 12:24
5 p.m.
6 MR. HAUSER: We are in
7 confidential now, Madam President.
8 PRESIDING ARBITRATOR MILES:
9 Thank you very much.
10 RE-CROSS-EXAMINATION BY MR. TIAN:
11 Q. So you mentioned earlier
12 that there are two elements in the Power Advisory
13 report that played into your consideration?
14 A. Yes.
15 Q. And one, the first
16 element being page 6 of that report.
17 A. Yes.
18 Q. The IESO's presentation
19 from technical planning conference stakeholder
20 meetings; is that right?
21 A. I think that's on page 7.
22 Q. Yeah, it's --
23 PRESIDING ARBITRATOR MILES:
24 Be careful, Mr. Tian, that you're asking questions
25 arising out of my questions and not out of
[Page 615]
1 Ms. Sherkey's questions. So just be careful about
2 that.
3 MR. TIAN: I will stop there.
4 PRESIDING ARBITRATOR MILES:
5 My question was did these two items fall within
6 the planning --
7 MR. TIAN: It's related to the
8 two items, if I may.
9 PRESIDING ARBITRATOR MILES:
10 Well, I didn't talk about the content of the two
11 items, just which box did they fall in, in the
12 IESO memo.
13 You ask your question and we
14 will see if Ms. Sherkey objects but you don't get
15 to re-examine, the re-examine.
16 MR. TIAN: Sure. Just to make
17 sure we are still in confidential.
18 PRESIDING ARBITRATOR MILES:
19 We are.
20 BY MR. TIAN:
21 Q. So that particular
22 technical planning conference that you refer to,
23 if we look at footnote 5 on page 7, that was held
24 on September 13th, 2018; correct?
25 MS. SHERKEY: Objection.
[Page 616]
1 PRESIDING ARBITRATOR MILES: I
2 think you are well out of the scope of certainly
3 my questions and the process. So I think we will
4 leave it there.
5 But if it's a document you
6 want our attention on, you have closing for that.
7 So you may make your submissions at the
8 appropriate time.
9 Did you have any other
10 questions?
11 CO-ARBITRATOR MCLACHLIN: No.
12 PRESIDING ARBITRATOR MILES:
13 Mr. Killeavy, thank you so much for coming and for
14 answering counsel's and our questions. It was
15 incredibly helpful and we really appreciate it.
16 THE WITNESS: Thank you.
17 Thank you.
18 PRESIDING ARBITRATOR MILES:
19 You are released. You can speak to whoever you
20 want about whatever you want.
21 THE WITNESS: Thank you.
22 PRESIDING ARBITRATOR MILES:
23 So that was quite nice timing. We were due to
24 finish at quarter after 12.
25 I am going to suggest that we
[Page 617]
1 still come back at 1:15 as planned in the
2 schedule.
3 So we will just have a
4 15-minute shorter lunch break and then we stay on
5 schedule for this afternoon.
6 MS. SHERKEY: Yes. And I told
7 my friends last night as well that my
8 cross-examination of Mr. Teliszewsky is not going
9 to be long. I think the schedule has an hour.
10 But we can, we will see what
11 happens and if the Tribunal has questions. But I
12 told them I don't plan to be long so I don't
13 expect a long run over, if that impacts just
14 timing for Mr. Lyle to come and for the afternoon.
15 PRESIDING ARBITRATOR MILES:
16 Perfect. So you will have Mr. Lyle ready to go
17 after lunch as well.
18 MR. NEUFELD: Yes. So two
19 points to make on that, if I -- two points to
20 make.
21 First, with respect to
22 Mr. Lyle, so we have notified the Claimant that
23 there may be a conflict for him this afternoon,
24 which they are fully aware of there is still no
25 conflict. He is still ready to go, he will be
[Page 626]
1 A. As the contractual
2 counterparty, I frequently would redirect
3 proponents to the IESO.
4 Q. And if we go to
5 paragraph 24, just back over the page.
6 You note that, in the emails
7 the Claimant relies on in this arbitration, you
8 refer to a potential huddle in the next couple of
9 weeks:
10
"But I do not recall this11 huddle, this event ever
12 happening. Instead, I
13 recall more general
14 briefings within the
15 Ministry of Energy at the
16 time the award was being
17 discussed as part of a
18 long list of other items
19 relevant to the energy
20 sector. I also recall
21 the award being discussed
22 as an information or
23 awareness piece, not as
24 an item requiring
25 particular ministerial
[Page 627]
1 decision."[as read]
2 Do you see that?
3 A. I do.
4 Q. So when you say the award
5 was discussed as an information or awareness
6 piece, you mean it was discussed to other
7 officials to say "here you are. You should be
8 aware of this award"?
9 A. Well, this was a
10 significant development; right. The initial
11 arbitration lasted several years. We would have
12 been tracking it and we would have known,
13 generally speaking, that a decision was going to
14 be released.
15 And so then, upon its release,
16 it was appropriate for us to brief up to the
17 Premier's office and other related officials so
18 that they would also be aware, from a whole of
19 government issues management perspective.
20 Q. And that was the full
21 extent of the meetings and briefings you had
22 regarding the award?
23 A. Yes.
24 Q. And you draw a contrast
25 between this award and other experiences. You
[Page 628]
1 highlight the 2013 WTO Appellate Body decision
2 that required Ontario to take certain actions.
3 And, at the end of this
4 paragraph, you conclude:
5
"In contrast, when the6 Windstream I award was
7 issued, there was nothing
8 further required of the
9 Ministry of Energy."[as
10 read]
11 And that was the conclusion
12 reached by the Ministry; is that right? That
13 there was nothing in the award that required your
14 further attention?
15 A. Based on the advice of
16 our legal counsel at the time, that's my
17 recollection, yes.
18 Q. So when the Ministry
19 decided, going forward, it was not going to meet
20 with Windstream and it communicated that message
21 to Windstream, the Ministry had not had further
22 internal meetings or huddles to discuss should
23 such a meeting happen?
24 A. We would have had
25 briefings about the initial ruling and what the
[Page 629]
1 obligations were, if any, on government. And, as
2 I indicated, there were no outstanding decision
3 points for the Ontario government to take.
4 And we also respected the role
5 that contract management staff at the IESO had to
6 be able to properly do their jobs.
7 Q. And so you didn't have
8 any meetings to discuss the reactivation of the
9 FIT Contract and what that would look like?
10 A. I apologize. I am
11 unclear about what you mean by "reactivation"?
12 Q. The Ministry didn't meet
13 to discuss the possibility, after the Windstream I
14 award, of renegotiating, reactivating Windstream's
15 FIT Contract and if that was something the
16 Ministry was interested in?
17 A. I am sorry. I also still
18 don't understand your question.
19 It wasn't the role of the
20 Ministry of Energy to negotiate with the
21 proponent, so we wouldn't have debated how to do
22 such a thing.
23 Q. It was the Ministry of
24 Energy that promised Windstream, in 2011, to keep
25 the project on hold or frozen; are you aware of
[Page 630]
1 that?
2 A. I wasn't at the Ministry
3 of Energy in 2011.
4 Q. But, in the subsequent
5 years and through the arbitration, did you become
6 aware of that commitment?
7 A. I don't recall that
8 commitment. I wasn't privy to any such
9 conversation.
10 Q. So you never had any
11 discussions at the Ministry following this award
12 about that commitment?
13 A. Not being aware of this
14 commitment, I wouldn't have had conversations at
15 the Ministry subsequent to the release of the
16 award about any commitment I wasn't a part of or
17 privy to.
18 Q. And you didn't have any
19 meetings to discuss the possibility of whether the
20 circumstances of this case warranted a direction
21 to the IESO?
22 A. It's possible that during
23 the course of conversations and briefings within
24 the Ministry that topics like that were raised.
25 But, ultimately, my
[Page 631]
1 recollection is that no, like, decision point was
2 required on the part of the Ontario government.
3 MS. SHERKEY: Just one moment.
4 BY MS. SHERKEY:
5 Q. And on Tab 3 of the brief
6 in front of you.
7 A. Sorry, the brief here?
8 Q. Yes.
9 A. The correspondence?
10 Q. Yes. I am just looking
11 at the top two emails where you get an email from
12 Mr. -- how do you say his last name?
13 A. Nekolaichuk.
14 Q. I may, for the sake of
15 respecting his last name, not attempt it.
16 A. Colin.
17 Q. He was the press secretary
18 at the Ministry of Energy; is that right?
19 A. Indeed.
20 Q. And he wrote to you about
21 an inquiry that he received from a reporter; is
22 that right?
23 A. It appears so, yes.
24 Q. In response, you said:
25
"This is a very sensitive
[Page 632]
1 legal issue. Ontario is
2 not a counterparty to the
3 contracts. The OPA/IESO
4 is. We will not today,
5 not ever be sitting down
6 with them."[as read]
7 In that last sentence, when
8 you say "them", you are referring to Windstream;
9 right?
10 A. Yes.
11 Q. And that was the position
12 of the Ministry at the time?
13 A. Indeed.
14 Q. And, as far as you're
15 aware, that remained the position of the Ministry?
16 A. During my tenure it was.
17 MS. SHERKEY: Those are all my
18 questions.
19 MS. DOSMAN: Nothing from me.
20 PRESIDING ARBITRATOR MILES:
21 Okay. You are all completed. Thank you,
22 Mr. Teliszewsky.
23 THE WITNESS: Very good.
24 Thank you.
25 PRESIDING ARBITRATOR MILES:
[Page 633]
1 Thank you very much for coming and for answering
2 our questions. It's not normally that brief or
3 easy so well done, you. And thank you very much.
4 And insofar as you were
5 sequestered from discussing this during the
6 hearing during the other witnesses, that's all now
7 lifted for you. We don't want you to talk to
8 Mr. Lyle just yet but I don't think you will have
9 a chance because we will call him right now. You
10 are welcome to stay.
11 THE WITNESS: I might excuse
12 myself.
13 PRESIDING ARBITRATOR MILES:
14 We won't be offended. Thank you very much.
15 Mr. Lyle? Are we able to
16 proceed with Ms. Dosman gone?
17 MR. NEUFELD: We are.
18 Somebody is getting Mr. Lyle?
19 We are.
20 PRESIDING ARBITRATOR MILES:
21 Okay.
22 Good afternoon, Mr. Lyle.
23 Welcome.
24 THE WITNESS: Thank you. Good
25 afternoon.
[Page 662]
1 being chosen.
2 Q. And the Lennox site was
3 chosen even though the OPA didn't think it was an
4 optimal location because it would result in higher
5 costs?
6 A. There were some gas
7 service issues, certainly, at the Lennox site.
8 Q. But the OPA complied with
9 the Minister's request or direction?
10 A. Yes.
11 Q. Okay. That is all my
12 questions on TransCanada.
13 I have a couple questions
14 related to the moratorium.
15 The moratorium was a decision
16 made by the Ontario government; is that right?
17 A. That is correct, yes.
18 Q. The OPA had no
19 involvement in that decision?
20 A. That is correct.
21 Q. It was informed of the
22 decision after it had been made?
23 A. Yes.
24 Q. And it was only informed
25 shortly before it was announced publicly?
[Page 663]
1 A. Yes.
2 Q. The OPA took steps to
3 implement the moratorium; is that right?
4 A. I am not quite sure I
5 understand what you mean by "implement the
6 moratorium".
7 Q. I can be more specific.
8 It returned FIT applications
9 for offshore wind proponents after the moratorium
10 was announced; right?
11 A. Yes.
12 Q. It told applicants we are
13 not going to accept more offshore wind
14 applications?
15 A. That is correct.
16 Q. And you did that as a
17 result of the moratorium?
18 A. Yes.
19 Q. But there had been no
20 formal directive from the government to do that?
21 A. There had not been, no.
22 Q. I am going to change
23 topics now. We are going to move on from the
24 relationship with the Ministry of Energy and move
25 to the IESO's negotiations with Windstream in
[Page 664]
1 2017.
2 If we go to Tab 10, this is a
3 letter from Windstream to Mr. Killeavy asking to
4 set up a meeting.
5 Have you seen this document
6 before?
7 A. Yes.
8 Q. Would you have been made
9 aware of it at the time?
10 A. I don't recall.
11 Q. And, over on the next
12 tab, the parties met on January 12th, 2017. You
13 did not attend but were you made aware of this
14 meeting?
15 A. So, at this juncture, I
16 was not the vice president responsible for
17 contract management.
18 I would have been made aware,
19 at a high level, of matters related to contracts
20 generally. But I might not have been specifically
21 had this particular meeting flagged to my
22 attention.
23 Q. At this time,
24 Mr. Killeavy was reporting to Ms. Butler?
25 A. That is correct.
[Page 665]
1 Q. And so you have no reason
2 to doubt the contents of the meeting minutes but
3 you also have no knowledge of what took place?
4 A. Yes. I don't have any
5 direct knowledge of what took place or was
6 informed of the specifics of this meeting at the
7 time.
8 Q. And, at the second
9 paragraph from the bottom, Ms. Helbronner, who is
10 Windstream's legal counsel, asked the IESO
11 representatives what happens on May 5th, 2017.
12 And Mr. Killeavy indicated the IESO does not know
13 at this point.
14 And that's consistent with
15 your knowledge too; no termination decision had
16 been made at this point?
17 A. Yes, that's my
18 understanding.
19 Q. And, prior to this
20 meeting with Windstream, the Ontario government
21 had not directed the IESO, formally or informally,
22 as to how to conduct its negotiations with
23 Windstream?
24 A. That is correct.
25 Q. The Ontario government
[Page 666]
1 never told the IESO to adjust the terms of the
2 contract to the moratorium?
3 A. Not to my knowledge, no.
4 Q. It didn't give the IESO
5 an update on the status of the moratorium prior to
6 this meeting?
7 A. No. Not to my knowledge.
8 Q. And the IESO did not
9 reach out to the government at that time to seek
10 that information?
11 A. Not at that time.
12 Q. And if we turn over the
13 tab --
14 A. But, of course we did,
15 prior to the decision to exercise the 10.1(g)
16 right in terms of the contract, reach out to the
17 government in respect of the moratorium.
18 Q. You are referring to the
19 letter that was sent as part of the analytical
20 framework --
21 A. That is correct, yes.
22 Q. -- we are going to
23 discuss that in the fall of 2017.
24 A. Okay.
25 Q. But, at this time, you
[Page 667]
1 did not?
2 A. At that time, no.
3 Q. And this February 9th,
4 2017, letter the IESO sent to Ms. Baines, have you
5 seen it before?
6 A. Yes.
7 Q. And, in it, the IESO
8 confirmed it was not willing to amend the FIT
9 Contract in any way; is that a fair summary?
10 A. That's not prepared to
11 change the FIT Contract in the manners that are
12 discussed in the numbered paragraphs.
13 Q. Yeah. It was not going
14 to extend the milestone commercial date of
15 operation or the date of an event of default;
16 right?
17 A. That is correct.
18 Q. It was not going to waive
19 any rights under the FIT Contract, including the
20 10.1(g) termination right?
21 A. That is correct.
22 Q. And it had not made a
23 decision as to whether to exercise its termination
24 right?
25 A. Yes.
[Page 668]
1 Q. And that was true?
2 A. Yes.
3 Q. To your knowledge?
4 A. To my knowledge.
5 Q. And so just orient us in
6 timing.
7 You are aware that Windstream
8 commenced its Ontario application in March 2017
9 against the IESO?
10 A. Yes.
11 Q. And, in that application,
12 it sought to restrain the IESO from exercising its
13 termination right due to delays caused by the
14 Ontario government?
15 A. Yes.
16 Q. And the parties agreed,
17 through counsel, that while that application was
18 underway, the IESO would not exercise its
19 termination right when it arose after May 4th,
20 2017; is that right?
21 A. Yes.
22 Q. And when the IESO is
23 deciding whether to exercise its termination right
24 under Section 10.1(g), that's a case by case
25 factual-specific exercise; is that right?
[Page 669]
1 A. Yes. That is correct.
2 [Redacted]
3 [Redacted]
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 [Redacted]
20 Q. So it's not automatic
21 that, when a Section 10.1(g) right arises, the
22 IESO will exercise it?
23 A. No, that's correct. The
24 IESO will -- it does have broad discretion but we
25 want to make a thoughtful decision that's
[Page 670]
1 reasonable, which is what we believe we did.
2 [Redacted]
3 [Redacted]
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 [Redacted]
17 [Redacted]
18 [Redacted]
19 [Redacted]
20 [Redacted]
21 [Redacted]
22 [Redacted]
23 [Redacted]
24 [Redacted]
25 [Redacted]
[Page 671]
1 [Redacted]
2 [Redacted]
3 [Redacted]
4 [Redacted]
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 [Redacted]
16 A. That is correct.
17 Q. And, if we turn over to
18 Tab 16, I believe this is the letter you were
19 referring to earlier where you said -- where you
20 noted that you had made inquiries about the status
21 of the moratorium; is that what you were referring
22 to?
23 A. Yes.
24 Q. And you were sending this
25 letter to the Ministry of the Environment to
[Page 672]
1 inform your decision-making process; right?
2 A. That is correct.
3 Q. And that was because, to
4 undertake this process, you needed to seek
5 information; is that fair?
6 A. Yes, yes.
7 And we had, as you're aware,
8 previously sought information from Windstream
9 directly about any communications that they had
10 had with the government with respect to the status
11 of the moratorium and the site release policy.
12 Q. And the IESO wasn't --
13 wouldn't pre-make a decision until it received all
14 that information and assessed the situation fully?
15 A. Well, certainly, it was
16 my decision to make and I made that decision and
17 communicated that decision on February 20th, after
18 reviewing the materials.
19 So --
20 Q. Only after receiving all
21 the information?
22 A. After I received the
23 recommendation material, yes.
24 Q. And that's exactly where
25 we are going to look at Tab 17. This is the
[Page 673]
1 recommendation memo you were just referring to.
2 A. Um-hmm.
3 Q. And so it was upon
4 reviewing this memo that you made the decision?
5 A. Yes, that's correct.
6 Q. And that decision was
7 communicated to Windstream on February 20th, 2018;
8 is that right?
9 A. That is correct.
10 Q. So the decision was made
11 some point between February 16th and
12 February 20th?
13 A. The decision was made, I
14 reviewed the material over the weekend, and then
15 communicated that decision to the team.
16 MS. SHERKEY: If I could just
17 have one moment.
18 BY MS. SHERKEY:
19 Q. Just one final topic.
20 Earlier in our discussion
21 today, we talked about the cancellation of the
22 procurement contracts pursuant to the July 13th,
23 2018, directive.
24 A. Yes.
25 Q. And you had mentioned
[Page 674]
1 there were 751 cancelled projects?
2 A. Yes.
3 Q. And I take it that you're
4 aware it was reported publicly that the Ontario
5 government paid $231 million to cancel those
6 contracts?
7 A. Yeah, that is inaccurate
8 as well.
9 Q. What is accurate?
10 A. It's probably around half
11 of that amount. The $231 million refers to the
12 preconstruction liability limit, the aggregate of
13 that for the 751 contracts.
14 And so that would be the most
15 that the Ontario government would have paid to
16 cancel those particular contracts.
17 In practice, we had been
18 working through with counterparties over the last
19 few years and just that work is just about done.
20 It's -- and it's roughly about half of that.
21 Q. Do you have any --
22 A. I also note that that
23 also doesn't reflect the analysis that there were
24 actually several hundred million dollars of
25 savings for ratepayers from the cancellation of
[Page 675]
1 those contracts.
2 Q. On what's been reported
3 publicly is that two of the 751 were wind
4 projects; are you aware of that?
5 A. I certainly recall a
6 large majority were small solar facilities.
7 Q. Do you know the total
8 amount of megawatts cancelled among those 751?
9 A. They were all quite small
10 and they sort of -- half a megawatt range. So
11 it's probably something in the range, I am going
12 to say, something like 350, 370 megawatts. But
13 that's subject to check.
14 Q. Had any of these projects
15 reached NTP?
16 A. None of the projects had
17 reached NTP.
18 Q. I think that was part of
19 the directive, right, that they were pre-NTP?
20 A. Yes, that's correct.
21 MS. SHERKEY: Those are all my
22 questions.
23 MR. NEUFELD: Thank you, Madam
24 President. I have very brief follow-up.
25 RE-EXAMINATION BY MR. NEUFELD:
[Page 676]
1 Q. Mr. Lyle, you were asked
2 an awful lot about the TransCanada decision and
3 brought through many, many minutes of questioning
4 on that situation and all the apparent
5 similarities with Windstream.
6 You weren't asked about
7 differences so I would like to ask you about the
8 differences and I would like to ask you if you are
9 aware of what the Windstream I Tribunal found on
10 this matter. I am going to take you to that, if
11 you need.
12 A. Yeah. So I am aware that
13 the Windstream I Tribunal made a finding that the
14 TransCanada facility was not a similarly situated,
15 or similar circumstances facility.
16 It is, of course -- or was a
17 combined cycle gas-fired generation plant,
18 approximately 900 megawatts. And it was procured
19 through a competitive RFP procurement process as
20 opposed to a standard offer program.
21 Q. So it wasn't a FIT
22 Contract?
23 A. It was not, no.
24 MR. NEUFELD: Thank you.
25 That's it.
[Page 677]
1 PRESIDING ARBITRATOR MILES:
2 Okay, Mr. Lyle, I think you are released. Thank
3 you very much very, very much for coming.
4 THE WITNESS: Thank you.
5 PRESIDING ARBITRATOR MILES:
6 And for your very straightforward answers and we
7 understand you were managing a conflict this
8 afternoon so thank you for --
9 THE WITNESS: Thank you.
10 PRESIDING ARBITRATOR MILES:
11 For prioritizing us in your conflict. We
12 appreciate that.
13 THE WITNESS: Appreciate that.
14 Thank you.
15 PRESIDING ARBITRATOR MILES: I
16 have a question. I will start with the Claimant.
17 Were any -- I think I saw
18 Mr. Tetard around. But were any of your experts
19 present for the opening?
20 MS. SHERKEY: Yes.
21 PRESIDING ARBITRATOR MILES:
22 All of them? Both of them? All of them? You
23 have got lots; haven't you.
24 MS. SHERKEY: So Ms. Shelley
25 can better advise on our side.
[Page 678]
1 PRESIDING ARBITRATOR MILES:
2 Okay.
3 MS. SHELLEY: Yes, I believe
4 that they tuned in. Mr. Tetard, I am not sure.
5 But for sure some of Secretariat tuned in. One of
6 their representatives was in the room yesterday.
7 I believe some were online for the opening of the
8 Claimant. And there were some in the room for the
9 opening of the Respondent as well.
10 PRESIDING ARBITRATOR MILES:
11 Okay. Very good.
12 Same question, Mr. Neufeld.
13 MR. NEUFELD: Can you repeat
14 the question. I am sorry.
15 PRESIDING ARBITRATOR MILES:
16 Was Mr. Guillet in the room during the openings?
17 MR. NEUFELD: He was.
18 PRESIDING ARBITRATOR MILES:
19 He was.
20 MR. NEUFELD: Yes.
21 PRESIDING ARBITRATOR MILES:
22 Okay. Very good.
23 The reason --
24 MR. HAUSER: Sorry for an
25 interruption --
[Page 679]
1 PRESIDING ARBITRATOR MILES:
2 Oh, Alonso, I am so sorry. Thank you. You need
3 to be able to flash the lights or something at us.
4 Yes, please, let us out.
5 MR. HAUSER: Sorry for
6 interrupting. Thank you, Madam President.
7 --- CONFIDENTIAL TRANSCRIPT ENDS AT 2:25 p.m.
8 PRESIDING ARBITRATOR MILES:
9 Don't apologize. Thank you so much.
10 Very good.
11 Okay, so that's the close of
12 fact witness testimony.
13 And, for tomorrow, we have the
14 expert testimony, at least the quantum and
15 economic experts.
16 And my question to the parties
17 was to check whether or not the testifying quantum
18 and economic experts were in the room during the
19 opening.
20 And the Claimants confirmed
21 yes, if not in the room, in the virtual room. And
22 Mr. Neufeld has just confirmed the same for
23 Canada's experts.
24 The reason I ask is no doubt
25 obvious. Our interest in particular issues in
[Page 680]
1 those reports should have been self-evident and we
2 would hope that they have tailored their
3 presentations tomorrow to respond to the
4 particular points that we were interested in and
5 obviously concerned about.
6 So, if they haven't done that
7 yet, then that will be homework for this evening.
8 We will have questions
9 tomorrow. So, yes, so don't book an early supper.
10 So we will start at 9 with the
11 presentation from Secretariat.
12 Remind me, José Luis, the
13 procedural order is for the presentations, the
14 demonstratives to come to us immediately before or
15 an hour before?
16 MR. ARAGÓN CARDIEL:
17 Immediately before.
18 MS. SHERKEY: If you would
19 like the presentation earlier, I am sure we can
20 arrange that.
21 PRESIDING ARBITRATOR MILES:
22 How to make friends, Ms. Sherkey. I really would.
23 Would the Respondent be
24 opposed to the Claimant providing just an
25 electronic copy of that to the Tribunal just
[Page 681]
1 30 minutes before?
2 MR. NEUFELD: No, of course
3 not.
4 PRESIDING ARBITRATOR MILES:
5 Okay.
6 And, if we get there, that we
7 change sides over the lunch break, then perhaps we
8 could do the same over the lunch break. Yes, so
9 Mr. Guillet's presentation.
10 All right. Very good. I
11 better check before I say this, just give me one
12 moment.
13 José Luis assures me I am
14 allowed to do this.
15 So just a forewarning.
16 We are not anticipating it
17 right now but we really would like to leave
18 tomorrow with the full benefit of the experts on
19 the various issues that are troubling us, in which
20 case, we understand the procedural order permits
21 us to put them together or put certain experts of
22 like discipline together.
23 And so just a forewarning that
24 we are not entirely close to doing that. We don't
25 intend -- we will proceed as normal per the
[Page 682]
1 schedule but, if there's particular issues at the
2 end of the day that we feel would benefit from
3 that, we might bring folks together on that.
4 So certainly Mr. Tobis,
5 Mr. Milburn, and Mr. Tetard are not to go anywhere
6 after they are finished testifying.
7 And there is no sequestration,
8 obviously. They are experts; right.
9 All right, okay. So early
10 finish.
11 So any housekeeping before we
12 leave for tomorrow? Ms. Sherkey, Mr. Terry, no?
13 Ms. Neufeld, no?
14 Okay. So we will stick to
15 9 o'clock and we will see Secretariat here then
16 and just send us and José Luis an email with the
17 slides at 8:30. Thank you.
18 --- Whereupon matter adjourned at 2:30 p.m., to
19 resume Wednesday, February 7, 2024,
20 at 9:00 a.m.
21
22
23
24
25
[Page 684]
A
a.m 466:11 470:3
535:7,8 544:1,2
567:17 569:11
580:3 682:20
AI 466:13
ability 647:7
683:6
able 534:23
540:18 594:11
629:6 633:15
648:15,20
679:3
Aboriginal 496:7
501:12 641:5
641:14,23
above-noted
658:16 659:1
absence 511:20
579:21
Absent 492:20
510:14
absolute 478:2
510:14
abstract 518:11
accept 642:13
661:4 663:13
acceptable
478:11
accepted 493:22
501:13 651:14
access 540:18
591:14 598:6
618:22
accommodate
487:17
accountant
523:16
accounting
521:23 523:18
accrual 531:24
525:22 531:24
accrued 528:1,19
529:7
accurate 526:21
527:4
accused 483:12
483:17 638:18
638:20 644:2,4
674:9
accurately 683:6
acknowledged
607:16
acknowledgem...
641:10
acquiring 607:13
Act 602:4 636:24
Act 636:19,24
645:22
acting 473:17
action 625:4
actions 558:2,2
628:2
activity 637:8
actual 582:25
584:11
add 487:18
546:23
additional 472:5
516:5 591:5
646:6
address 494:9
612:7 623:4
627:21
addressing 558:1
622:23
adequacy 602:24
adjourn 571:14
671:8
adjourned 572:5
682:18
adjournment
571:21 572:11
573:2
adjust 666:1
administration
472:17 473:1,3
499:5 545:16
administrative
473:4
admitted 602:13
advance 493:5
539:6 570:15
advanced 567:8
advancing
576:24
adverse 561:16
601:15 662:13
advice 547:15,24
628:15
advise 677:25
advised 619:2
Advisory 547:11
547:12,13,19
548:2 551:7,13
552:3,4,21
553:23 640:15
565:1,10,16
565:22
568:13,14
597:18 600:8
601:15 611:1,7
612:12
614:12
advocating
625:16
affairs 468:6
474:8 475:1
affidavit 520:10
520:14 555:6
564:2,11 565:6
570:1,4,10,22
596:12 601:20
611:17 623:12
623:25 612:9
612:20
affirmation
471:19,20
544:10 619:21
634:10
affirmed 469:18
469:3,7,14,17
471:25 544:17
620:2 634:16
afternoon 541:23
599:6 617:5
617:23
619:1 620:24
633:22,25
635:25 636:5
677:8
aggregates 647:17
aggregate 582:6
674:12
ago 532:8 533:9
548:8 559:4
644:6 650:16
agree 487:12,13
491:14 49:23
493:17 496:16
496:18 533:16
533:23 640:15
644:22 653:13
653:19
agreed 571:13
645:5 668:16
670:9 671:6
agreement
477:20 481:17
482:3,9 552:13
571:22 573:2
575:9 643:10
661:13
agrees 644:22
ahead 535:10
540:15 569:16
akin 653:11
Alan 563:2,10
Alex 467:11
Alexandra 467:3
468:3
allocated 524:9
524:25 525:7
531:5
allocation 524:17
allow 493:12
549:23 550:15
572:11
allowed 648:18
681:14
Alonso 567:19
592:4 595:22
600:20 610:17
614:2 645:10
679:2
amazing 567:25
amend 667:8
American 475:23
478:11
amount 488:1
520:2 528:5
531:2 549:24
652:11 674:11
675:8
analysis 506:15
516:5 585:2
586:5,9,18
589:6 596:18
596:22 597:8
597:10 603:2,9
604:23,24
605:1 670:13
671:8 674:23
analytical 546:8
analyze 546:19
670:8,25 671:8
analyzed 583:24
Andrew 468:12
469:14 620:2
621:7
announced
651:13 654:15
661:13 662:25
663:10
annual 646:12
647:1,13
annually 466:20
answer 478:17
522:22 549:17
549:20 584:17
608:7,10,14,6
answering 600:1
616:14 633:1
answers 677:6
anticipated
572:22 576:22
576:23 577:20
579:1,14
656:23 657:2
anticipating
[Page 706]
|
retained 568:15 return 475:7 returned 663:8 revenues 652:15 review 536:24 558:21 565:9 567:5,7 570:18 584:16 reviewed 570:14 673:14 reviewing 672:18 673:4 revised 466:13 562:5 revision 504:12 revisit 470:10 RFP 676:19 Rico 476:1 right 470:8 479:22 480:3,5 480:6,25 482:19,22 483:24 485:24 487:9 490:7 491:19 494:3 495:3 499:3,3 503:16,24 504:5 507:20 508:19,20 515:14,23 516:2,17 517:24 518:8 518:20 519:18 520:3,4 521:8 523:23 525:4 526:22 527:9 529:13 531:25 534:12 535:4 537:2 538:23 541:13 542:2 549:12 553:21 556:13 560:19 562:6 566:14 566:17,18 573:12 578:2 579:4,18 |
581:12,18 583:8 584:24 585:3 586:23 588:20 589:13 606:23 607:24 607:25 611:18 614:20 618:14 619:17 621:12 622:25 623:16 623:23 624:13 625:1 627:10 628:12 631:18 631:22 632:9 633:9 634:7 637:4,10,14,23 638:10,16 639:14,20 640:10 642:6 642:11,25 643:6 646:1,13 649:7,14,23 650:13 651:11 651:17 652:6 652:12 653:3,9 653:22 654:3,6 654:17,21 655:1,13,17 656:5,9,12,24 657:4,18,21 659:1,14,19 660:5 661:14 661:22 662:16 663:3,10 666:16 667:16 667:20,24 668:13,19,20 668:23,25 669:4,7,21 670:3,5,10,10 670:22 671:3,4 671:9 672:1 673:8 675:19 681:10,17 682:8,9 rights 667:19 risk 511:25 575:20 RL109 485:19 Rodney 468:2 role 472:21,22,25 473:10,18,19 475:2 499:4 545:11 546:25 547:18 611:7 621:15,16 629:4,19 roles 473:16 Roman 551:16 Romanette 566:7 568:5 room 678:6,8,16 679:18,21,21 rotor 517:7 roughly 644:10 674:20 row 529:23 RPR 683:12 Rt 466:17 Rule 561:9,13 rules 471:15 ruling 628:25 run 592:17 617:13 644:8 running 475:9,10 607:19 Ryan 468:14 S sake 555:21 579:11 631:14 sales 475:6 satisfied 542:21 Saturday 470:25 savings 674:25 saw 506:8 677:17 saying 491:4 552:25 603:2 604:18 656:11 says 517:6 539:13 551:22 551:25 561:8 562:5,7 565:11 |
566:21 568:8 568:12 569:21 570:5 582:14 583:3,23 584:4 585:19 589:22 590:14 592:9 651:11 652:18 658:15 scale 652:16 Schäferling 466:19 schedule 483:3 575:3 617:2,5,9 682:1 schedules 587:20 scope 483:6,12 484:10 616:2 screen 478:7 538:19 550:11 609:11 610:14 screens 478:8 search 592:17 second 486:13 494:10 497:2 504:21 506:1 506:19,20 508:13 509:9 509:13 513:7 517:12 518:14 521:1,2 567:21 574:1 581:22 583:23 590:2,3 618:2 635:6 659:23 660:10 665:8 Secretariat 530:13 678:5 680:11 682:15 secretary 631:17 section 486:4 492:11 494:13 496:4,10 521:13 571:20 573:13 581:13 581:24 583:7 584:23 589:12 597:15 645:24 668:24 669:21 670:4 sections 495:13 586:8,11 597:9 597:12 608:19 608:25 sector 547:14 556:15 621:17 624:3 626:20 sectors 625:14 security 634:2 see 477:15 479:14 480:1,4 480:12,16 481:16,21 486:12,18 493:18 494:24 495:11,12 503:2,12 504:11,13,22 505:2,2 508:6 513:25 514:4,5 514:8,14 515:12,15 517:10,16 520:23 530:13 530:17 534:1 534:15 535:23 536:14 537:25 539:8 551:19 552:15 562:8 563:1 566:6,15 568:9 569:4,25 571:6,23 573:18 575:13 582:9 583:2 588:5,9,16 589:1,4 609:14 612:4 615:14 617:10 622:21 627:2 640:5 641:6 647:10 648:12,18 649:1,5 654:15 658:4 660:1,2 |
[Page 707]
|
682:15 seeing 550:12 seek 666:9 672:4 seeking 658:17 658:23 seen 513:4 561:5 639:4,25 664:5 667:5 self-evident 680:1 send 682:16 sending 671:24 senior 468:2,2 642:16 sense 470:19 549:18 634:2 sensing 543:15 sensitive 631:25 sent 535:25 536:16 572:17 577:8 578:14 656:19 666:19 667:4 sentence 486:13 515:7 551:20 551:21 632:7 657:21 separate 500:6 522:9 separately 480:11 September 505:23 553:6 615:24 623:13 651:12 661:12 sequestered 633:5 sequestration 682:7 series 526:1,12 serious 602:19 603:19 served 635:18 serves 620:15 service 662:7 services 481:15 |
482:3,9 483:6 483:11,12 508:15 520:2 527:5 528:19 session 567:15 569:10 580:1 592:1 644:21 set 490:23 512:2 523:23 622:1 624:8 625:24 647:14 649:16 650:25 652:4 655:19 657:23 658:9 664:4 669:8 setback 487:15 488:5,24 489:24 490:16 490:20 536:9 536:11,13,19 sets 645:24 650:23 652:15 658:3 669:16 setting 476:16 489:16 647:12 656:21 settle 531:8 settlement 530:3 seven 475:25 589:23 598:2 share 501:9 shared 558:9 sharp 543:14 sheet 534:1 Shelley 467:3 469:4,6 470:5 471:7,9 472:3,7 477:2,16 478:15 534:8 534:20,22 535:2,6,10,11 677:24 678:3 Sherkey 467:2 469:8,12,16,19 541:16,20,24 542:9 544:4,5 544:20,24 545:5 598:18 598:19 599:3,8 601:2,5,23 604:7,16 605:5 605:7 608:15 609:6,9 610:12 610:23 611:11 612:25 613:6 615:14,25 617:6 620:7,22 620:23,25 631:3,4 632:17 634:21 635:24 636:2 645:6,20 648:13 649:4,8 673:16,18 675:21 677:20 677:24 680:18 680:22 682:12 Sherkey's 615:1 618:15 shift 520:5 Shoals 473:12,16 480:13 503:6 503:10 522:11 524:10,13,17 525:2 539:1 552:9,11 568:17 569:1 short 534:24 shorter 617:4 shortly 662:25 Shoshana 467:4 show 565:22 shown 528:1 648:15 shows 532:1 584:15 side 479:11 483:15 518:12 526:4 548:14 548:14 562:13 593:16,18,20 608:7 618:13 657:21 677:25 |
sides 608:8 681:7 Siemens 515:5 sign 566:3 580:21 signature 570:1 signed 565:20 566:19,21 570:3 572:23 577:13 578:19 580:15,16,19 651:20 significant 627:10 641:12 signing 580:20 similar 473:16 529:10 594:19 595:6 653:14 676:15 similarities 676:5 similarly 676:14 simplicity 513:18 simply 656:12 single 524:2 site 485:7,16 486:15,17 492:23 519:1 536:18 574:2 574:10 590:7 591:15 639:17 643:12 661:17 661:25 662:2,7 672:11 sitting 632:5 situated 676:14 situating 550:21 situation 475:6 672:14 676:4 situations 584:20 670:8,15,24 six 501:3 584:5 593:11 670:4,8 670:20 skill 683:6 skills 476:9,12 skin 527:19 529:12 skipped 478:12 slides 682:17 slightly 538:8 small 523:1 530:6 534:23 675:6,9 solar 675:6 solemnly 471:21 544:13 619:23 634:12 solicitor 599:14 solicitor-client 558:10 563:21 somebody 581:5 633:18 soon 553:25 sorry 477:16 484:4 485:11 489:3,5 490:19 492:7 503:23 505:1 507:17 507:19 513:17 513:24 517:13 529:15 530:4 530:12,15 531:9 532:3 534:11,14 536:9 538:6,6 541:20 546:11 546:15 553:13 554:7 557:2 566:9 590:3 591:8 592:4 595:14 603:22 604:18 608:5 609:6 612:16 613:8 629:17 631:7 644:15 658:19 678:14 678:24 679:2,5 sort 471:14 504:8 509:8 533:19 545:15 547:14 547:24 575:14 607:14 608:23 645:1 675:10 sought 560:18 |
[Page 708]
|
668:12 672:8 southwest 651:4 spare 613:2,3 speak 471:23 529:9,9 544:15 616:19 619:25 625:19 634:14 speaking 472:14 478:11 627:13 specific 511:15 559:19 605:23 624:11 637:25 638:3,24 639:19 643:21 663:7 670:18 670:24 specifically 493:9 636:15 644:19 660:12 664:20 specificities 640:14 specifics 497:1 643:18,24 665:6 specifies 515:4 spent 474:11,20 spirit 645:4 spoke 599:4 spoken 540:23 spreadsheet 522:23 squint 480:15 Squires 468:2 staff 621:10 629:5 stage 594:21,22 594:22 595:2,6 609:20 stakeholder 614:19 standard 676:20 standards 512:1 standing 649:17 start 472:4,20 478:24 495:18 549:20 550:20 |
579:25 599:3 620:6 634:20 636:15 677:16 680:10 started 472:22 477:13 482:13 550:22 555:2 560:9 starting 478:18 610:25 starts 494:14 586:23 588:25 589:3 state 494:17 623:25 stated 493:19 556:16 565:8 statement 494:10 497:3 500:5 502:19 508:13 509:10,13 513:8 552:18 559:13 561:18 569:7 572:1 582:12 611:16 611:22 612:5 612:16,19 613:2 620:12 621:9 622:1 625:25 635:2,4 635:9 636:10 642:13 644:1 648:9 statements 479:6 494:7 524:21 states 476:7 571:9 581:22 647:1,4 station 661:18 status 484:20 486:22 487:2,4 487:10 488:11 490:24 492:25 500:21 537:1 537:23 573:19 574:2,17 666:5 671:20 672:10 stay 540:5 570:24 592:4,5 601:4 617:4 633:10 645:11 staying 591:4,20 Stefan 466:19 stenographer 472:15 step 661:3 steps 508:8 663:2 stick 602:8,15 682:14 stop 615:3 storage 545:17 637:9 straight 479:1,6 613:8 straightforward 677:6 strategic 476:23 strategy 474:1,6 587:17 Street 466:10,25 strengths 473:22 struggled 485:17 studies 493:13 497:24 501:8 501:22 503:9 504:24 505:11 506:8,15 507:6 508:1 509:3 511:10,18,23 511:25 512:16 513:6 518:7 538:18 539:1 539:14 study 506:21 519:24 style 528:12 sub 588:6 subheading 583:2 586:22 subject 519:23 558:9,10 563:21 599:18 |
675:13 subjective 605:23 subjectively 606:9 submission 494:15,20 497:4,8,11,18 497:19 498:19 498:22 499:16 500:7 501:23 501:25 502:3,5 502:20 503:4 507:14 509:11 509:24 submissions 509:17 616:7 637:2 submit 499:8,15 501:22 510:3 submitted 494:19 497:18,20 498:18 500:12 509:1,24 512:9 549:6 588:19 635:1 submitting 518:7 subparagraph 646:3 subsection 496:14 583:18 584:15 585:2,6 585:19,25 593:10 597:8 605:12,13 606:17 607:2 subsections 496:13 583:16 637:13 subsequent 623:20 630:4 630:15 subset 594:21 subsidiaries 480:4 succeeded 603:11 success 600:5 suggest 616:25 suggested 501:13 suggesting 611:5 Suite 466:10 summarize 621:25 summary 503:8 506:7 508:1 509:3 513:6 517:3 538:25 551:20 568:9 667:9 supper 680:9 supplier 577:4 supply 575:9 602:18 606:25 608:7 637:9 639:13 support 497:13 503:9 504:24 supportive 527:14 suppose 555:19 610:10 sure 473:13 477:7 479:2 481:9 489:3 492:3 522:24 523:4 529:10 533:5,5 534:3 566:2 601:20 611:19 615:16 615:17 635:11 648:14 663:4 670:12 678:4,5 680:19 swap 488:18 490:21 537:20 system 553:19 554:10 568:22 593:14 607:12 622:8 635:16 T tab 479:3,6 481:11 484:23 |
[Page 709]
|
485:19 489:5 492:4,5,5,7,8 494:10 495:5 498:3 502:11 503:21,23 506:3,4 507:17 510:11,22 513:10 517:1,1 517:19 519:13 520:6 521:19 531:11 551:11 560:22 563:25 566:1,4 571:1 572:15 577:6 578:12 580:10 596:7,8 601:22 601:23 604:5 604:15,16 609:7 631:5 636:18 639:1 639:22 640:17 645:22 646:11 649:9 650:6,6 664:2,12 666:13 669:9 671:18 672:25 table 471:11,19 494:12 504:21 504:22,23 505:7,15 506:14,23 507:6 539:7 tabs 479:5 503:18 tabulation 522:8 tailored 680:2 take 472:14 483:20 497:6 518:11 534:23 542:16 543:8,9 544:11 550:7 550:13 551:10 552:17 553:1,8 557:15 561:18 561:20 563:24 569:6 571:25 |
573:23 576:6 579:7 582:11 582:21 584:7 589:17 591:18 610:14 618:19 618:20,25 624:10 628:2 629:3 635:9 636:20 640:22 661:4 674:3 676:10 taken 531:10 600:17 601:6 609:3 takes 618:4 talk 615:10 633:7 639:6 talked 470:13 488:16 567:12 587:7 673:21 talking 516:1 564:15 597:7 604:11 611:20 612:2,8 Tariff 569:2 tariffs 607:23 TCE 639:13,14 team 499:12 635:19,22 642:17 673:15 teams 635:20 technical 474:2 474:18 475:5 515:25 602:11 602:12 614:19 615:22 technician 534:14 Teliszewsky 468:12 469:14 617:8 619:15 620:2,11 621:3 621:4 632:22 634:3 tell 523:13 539:12 561:12 561:15 576:5 592:19,20 613:5 tells 505:6 ten 474:12 571:3 573:1 590:12 646:6 tenure 546:10 556:21 632:16 term 641:21 652:12 terminate 571:18 572:12 581:25 648:4 653:8 654:20 656:13 terminated 547:5 638:14 termination 494:2 521:8,11 533:10,25 554:18 560:19 565:13 568:24 573:12 580:14 581:12,18 583:8 584:24 585:3 586:8 589:13 594:16 597:9 601:3,7 601:16 603:23 604:5 605:16 608:20 609:7 621:20 653:16 656:8,20 665:15 667:20 667:23 668:13 668:19,23 669:13 670:3 670:10,22 671:3 terms 525:5 637:20,25 638:23 640:9 640:15 643:7 659:14,16,21 666:1,16 Terry 467:2 |
470:5,7,17,23 562:16,18,23 598:22 644:19 682:12 test 486:15 testified 484:15 498:16 499:21 559:10 642:19 testify 497:7 564:19 565:2,4 testifying 679:17 682:6 testimony 549:6 564:23 599:21 600:8,14,16 611:1,5 620:16 644:20 649:17 649:20,22 679:12,14 testing 493:10 Tetard 467:11 677:18 678:4 682:5 thank 472:2 477:2,5,7 505:5 510:8 525:19 533:6 534:19 535:6,12 538:21 539:16 539:25 540:3,7 543:6 544:19 548:19,24 567:25 569:13 569:15 580:7 591:1 595:13 595:21,24,25 596:4 598:13 598:17 601:1 608:14 610:22 613:14 614:9 616:13,16,17 616:21 619:7 620:4 632:21 632:24 633:1,3 633:14,24 634:18,22 645:13,16,19 649:7 675:23 676:24 677:2,4 677:8,9,14 679:2,6,9 682:17 Thanks 470:23 thereof 521:14 thing 481:10 509:6 520:19 529:5 629:22 things 482:17 522:21 525:15 559:19 602:1 607:19 think 470:7,9,12 470:17,18 471:6 491:9 502:8 534:17 535:1 537:9 542:4 545:14 548:15 549:23 555:14 558:3 560:20 580:16 592:17 593:12 596:18 603:1,8 603:9,18 607:8 612:19 614:21 616:2,3 617:9 620:5,7 633:8 634:19 640:23 648:21 662:3 675:18 677:2 677:17 thinking 470:25 490:11 third 480:14 504:14 505:14 506:19 509:11 583:11 588:24 590:5,10 591:3 591:9 592:12 593:25 thought 476:9 thoughtful 669:25 |
[Page 710]
|
three 473:20 475:25 505:15 508:22 523:3 533:19 541:6 542:18 555:1 583:14,16 586:8,11 597:9 597:12 603:12 608:19,25 622:2,24 658:3 Tian 468:4 469:9 469:11,13 541:5,10 542:17,20 543:4 544:22 548:20 549:2 568:1,2 569:9 569:17 580:8 590:20,21,24 591:2 595:14 595:16,19 596:5 598:13 601:22 609:25 613:18,23 614:10,24 615:3,7,16,20 618:11 time 478:6,19 483:19,21 491:1 528:3,6 528:20 532:17 543:12,18,21 548:25 549:23 549:25 550:13 550:14,21 554:5 555:7 559:13 570:18 573:24 579:8 591:18 603:15 603:19 607:17 616:8 624:1,11 626:16 628:16 632:12 635:20 635:21 644:7,9 660:22 661:10 664:9,23 665:7 |
666:9,11,25 667:2 670:3 671:12 timeline 589:24 594:19 595:10 597:25 610:25 timelines 587:14 timely 537:1 times 499:15 515:5 670:4 timing 616:23 617:14 668:6 title 506:9 Tobis 467:10 682:4 today 471:17 478:6,23 534:18 550:2 550:20 556:1 562:19 623:8 632:4 645:12 673:21 told 501:14 617:6 617:12 655:1 661:21 663:12 666:1 tomorrow 679:13 680:3,9 681:18 682:12 top 479:20 495:24 516:6 592:25 631:11 656:17 topic 517:19 557:20 624:22 673:19 topics 538:7 622:2,24 630:24 647:22 663:23 Toronto 466:10 466:25 470:1 474:15 Torys 467:5 530:13 568:15 total 489:17 520:2 526:24 675:7 totally 516:23 touch 508:15 Town 654:1 tracking 627:12 Trade 468:6 trained 523:18 transaction 524:2 526:1 532:18 transactions 473:5 476:20 522:16 647:14 647:20 TransCanada 639:3,7,14 649:10,13 650:4 652:4,11 653:17 654:2,7 654:10 655:12 655:22 656:19 656:21 657:17 658:2 659:9,18 659:24 660:3 660:25 661:14 662:12 676:2 676:14 TransCanada's 650:13 651:14 transcribed 683:7 transcript 466:9 466:13,14 478:16 560:25 567:16 569:11 580:2 596:2 600:21 610:18 614:4 619:11 645:15 679:7 transferable 476:10 transmits 507:25 transparent 646:25 trees 520:17 |
Trial 468:13 Tribunal 466:16 469:10 470:14 471:20 473:10 477:21 484:17 486:13 526:9 534:21 537:7 539:21 540:23 541:7 542:6,18 542:21 544:9 544:12 557:22 560:8 561:12 584:13 592:2 617:11 619:5 619:18,22 634:6,10 650:20 676:9 676:13 680:25 Tribunal's 535:20 trouble 534:16 550:12 troubling 681:19 true 649:25 656:15 668:1 trumped 604:1 604:23 trust 644:1,3 truth 471:23,23 471:24 544:15 544:15,16 619:25,25 620:1 634:14 634:14,15 try 522:22 trying 476:25 498:21 527:18 534:4 592:23 608:2 Tuesday 466:11 470:2 tuned 678:4,5 turbine 514:25 517:7 519:3 575:9 turbines 515:5 575:15 turn 520:6 556:4 556:14 557:18 560:5,22 565:5 571:1 572:15 577:6 578:12 580:9 581:20 582:24 587:3 596:14 609:1 621:8 636:18 637:12 639:1,8 639:22 640:17 646:11 649:9 650:5 666:12 671:17 turned 488:21 turning 551:16 557:20 566:4,5 568:3 569:18 569:25 571:6 574:15 575:2 578:8 584:10 588:4 589:20 595:7 turns 472:14 527:25 528:4 twenty 543:9 twitchy 543:11 two 470:14 474:19 503:14 504:15 509:16 526:16,23 558:15 568:12 569:24 602:1 608:3 614:12 615:5,8,10 617:18,19 631:11 634:24 635:17 675:3 two-page 521:22 type 477:14 523:1 670:8 U ultimate 661:25 ultimately |
[Page 711]
|
630:25 651:8 um-hmm 479:9 481:13 489:7 489:10 496:9 498:4,8,17 499:6 500:9,9 502:12,25 503:24 504:10 505:8,16 506:4 510:12,20 514:23 515:14 515:14 517:21 518:13 519:15 520:15 521:21 528:17,17 534:2 636:17 645:23 673:2 unclear 509:8 629:11 underneath 546:5,7 understand 472:10,16 478:11,12 481:10 491:8 498:22 502:23 509:22 516:13 523:2 529:20 540:20,21 549:5,9,14 556:6 561:21 570:17 583:13 592:24 596:17 607:22 608:2 629:18 663:5 677:7 681:20 understandably 563:21 understanding 477:20,23 499:10 500:13 500:17 643:8 643:13 649:5 654:9 659:10 660:6 665:18 understood |
606:9 undertake 637:8 672:4 undertook 571:16 671:7 underway 668:18 unexpected 591:6 unfortunately 477:22 565:25 unhappy 660:3 660:21 unique 641:11 University 474:11 unusual 618:21 update 666:5 updated 494:15 494:19 497:4 498:19 502:20 503:5 507:13 513:5,8 514:21 517:6 519:2 updating 518:6 use 477:18 490:22 579:22 592:18 643:7 utilities 547:16 V valid 597:11 value 553:2 593:13 656:23 657:2 various 478:25 594:4 681:19 version 477:18 535:21 versus 605:12 viable 653:16 vice 475:16,21 545:23 557:8 664:16 view 509:23 597:17 653:16 virtual 679:21 virtue 611:6 647:7 VOLUME 466:12 vs 466:6 W wait 656:12 waive 667:18 670:9 Wannop 467:5 want 470:9,18 476:7 481:9 483:9,11 485:21 487:22 487:23 509:7 529:22 540:6 550:13,20 595:16 616:6 616:20,20 618:10,22,23 633:7 638:25 645:21 654:24 669:25 wanted 474:17 487:11,14 531:12 532:23 533:2 534:6 540:10 575:13 592:16 593:24 warranted 630:20 wasn't 540:16,22 540:25 541:19 552:19 629:19 630:2,8,16 648:17 672:12 676:21 way 470:13 476:25 494:1 510:22 526:15 533:19 549:20 569:25 667:9 670:18 we've 596:21 Wednesday |
682:19 week 470:12 weekend 673:14 weeks 626:9 welcome 471:13 619:15 633:10 633:23 Wendy 466:16 544:8 619:16 634:5 went 474:16 475:15 525:10 525:12 533:10 547:10 657:3 659:25 660:4 weren't 482:23 610:10 676:6 wholistic 608:23 Williams 467:4 willing 531:7 667:8 willingness 536:17 wind 473:12 477:1 493:9 503:6,10 511:16,22 513:9 514:22 516:9,25 517:5 519:1 539:2 552:11 556:15 575:15 591:7 610:9 638:10 642:25 643:3 663:9,13 675:3 WIND00011 513:16 Windstream 466:4 472:17 473:5,14,15 474:8 476:9,18 478:24,25 479:21 480:4 480:12,13 481:8,18 482:4 482:8 494:8 502:14 505:21 507:2 516:15 522:10,10,12 523:5,6,25 524:4,6,9,10,13 524:16 525:2,3 525:13 526:10 527:9 528:3,21 528:22,24 529:2,25 530:14 532:2 536:16 537:18 546:17,19 551:3,14,22 552:1,2 553:5 553:11 554:1 555:7 557:19 558:6 559:10 559:22 560:2 560:17 562:13 564:20 565:9 567:5 568:16 568:18,20,25 569:1 572:17 573:7 576:8 577:8,15 578:4 578:9,14 579:2 579:13 580:14 581:14 588:19 590:6,11,16 591:21 597:21 598:6,10,11 599:22 603:21 606:1,10 609:11,20 620:25 621:20 622:15,19 623:10,22 624:4,15,17,19 625:1,4,23 628:6,20,21 629:13,24 632:8 642:23 642:24 663:25 664:3 665:20 665:23 668:7 |
[Page 712]
|
673:7 676:5,9 676:13 Windstream's 489:19 494:14 509:11 554:18 564:3,12 582:16 588:6 591:13 596:13 623:9,20 629:14 665:10 670:19 671:9 wired 532:12,14 WIS 493:2 wish 655:4 witness 468:10 471:11 472:11 477:7 478:24 494:10 497:3 500:5 502:19 508:13 509:9 509:13 513:8 539:19 540:3,7 542:24 544:4 544:13,23 549:6 555:7 559:13 564:3 564:13 592:10 592:14,19 593:2,7,12,17 593:21 594:1,6 594:13,24 595:9 596:13 598:15 601:25 604:11,17,22 605:3,14,17,24 606:2,6,11,14 606:18,21 607:3,6,10,24 608:4,9,12 609:8 610:4,7 611:16,19,22 612:5,8,12,16 612:19 613:2 613:10,16 616:16,21 619:23 620:12 |
621:9 622:1 625:25 632:23 633:11,24 634:12 635:1,4 635:9 636:9 648:9 677:4,9 677:13 679:12 witnesses 467:8 467:10 468:11 541:22 633:6 Wolfe 473:11,15 480:13 503:6 503:10 522:10 524:10,13,17 524:18,22 525:2 539:1 552:9,10 568:17,25 wondering 477:17 534:22 word 478:13 553:8 561:20 592:18 words 524:14 work 473:3,4 474:2,5 475:3 476:15,16 497:12 501:7 508:21 524:1 528:21 547:10 548:5 555:9,15 603:3 674:19 worked 476:24 523:14,22 527:23 548:14 553:16,19,23 556:17 558:5 working 473:21 482:13 529:5 550:23 553:12 554:9 555:2,25 658:15,25 674:18 works 472:14 wouldn't 487:13 601:16 606:16 625:22 629:21 630:14 672:13 wound 475:9 WRA 514:21 writ 607:15 write 502:22 623:12 writes 512:12 519:22 521:3 writing 514:6,11 wrong 530:16 wrote 483:19 604:13 631:20 WRZ 533:20 WTO 628:1 WWIS 480:24 481:2 486:21 487:10 494:19 496:16,19 498:12 499:8 499:20 500:11 500:21 523:7,9 524:19 525:6 535:25 536:25 554:2 560:8,18 562:13 571:13 WWIS' 484:24 511:2 562:22 X Y yeah 491:11,11 507:23 509:14 523:21 525:24 528:11 530:5,9 530:9,10 532:16 566:9,9 566:12,25 593:21,21 599:11 601:25 604:15 605:3,3 607:24 614:22 652:17 667:13 670:16 674:7 676:12 |
year 475:16,17 524:12 548:15 577:22 579:18 years 474:12,19 529:11,15 546:2 548:8 589:23 598:2 602:18 627:11 630:5 640:24 642:17 650:16 661:2 674:19 yesterday 470:11 471:14 678:6 Yu 468:4 549:2 Z Ziegler 533:20 zone 488:8 493:2 536:6 zoom 479:15 zooming 479:19 0 0322 495:6 0330 489:6 1 1 479:5 503:4 506:14 527:19 535:21 538:15 568:4,5,5,7 577:25 584:15 585:2,6 587:12 604:2,8,9,21 605:12 606:5 608:20 618:6 619:10 636:18 645:22 1:15 617:1 1:18 619:13 1:46 645:15 10 502:11 506:13 571:1 576:12 584:11,11 586:22 645:24 664:2 10.1(g) 521:13 571:20 573:13 581:13,24 583:7 584:23 589:12 653:12 666:15 667:20 668:24 669:7 669:21 670:4 671:3 10:10 535:7 10:17 535:8 10:26 544:1 10:30 542:16 100 640:23 644:6 107 486:11 10th 572:18 573:2 588:12 588:15 11 475:21 483:3,4 503:18,23 543:9,14 572:15 576:15 582:25 586:25 587:3,6 593:1 593:25 11.10(d) 618:6 11:06 544:2 11:29 567:16 11:30 569:11 11:43 580:2 1107 0009 513:17 12 503:18 506:3,4 546:3 576:21 577:6 584:11 588:3,5 616:24 650:17 661:2 12,000 514:20 12:01 596:2 12:04 598:25 12:09 599:1 12:11 600:21 12:21 610:18 12:24 614:4 12:30 619:11,12 127 520:10 |
[Page 713]
|
128 520:10 12th 640:18 664:12 13 577:1 578:12 588:3,22 592:7 592:9,10 135 535:22 139 537:13 13th 615:24 638:9 639:2 673:22 14 589:21 609:1,7 669:9 15 480:20 543:21 607:2 15-minute 543:10 617:4 15,000 508:18,21 515:9 150 488:23 15th 494:18 502:16 504:4 506:1,9 512:9 539:5 577:9 16 485:25 492:11 507:17 671:18 16th 580:25 612:17 673:11 17 494:14 510:11 510:22 605:21 661:12 672:25 17th 569:22 570:4,8 18 508:13 513:10 570:5,6 612:20 18th 479:8 570:4 570:11 19 517:1 1976 474:11 1st 481:15 507:22 519:21 553:20 571:12 572:6 639:23 2 2 466:12 479:5 |
492:11 494:10 495:20 503:8 504:23 505:7 507:6 511:5 526:24 529:14 563:25 566:4 578:7 583:3 585:19 587:13 596:7,8 601:22 601:23 604:10 605:1 608:21 621:9 637:13 638:10 639:1,8 646:3 669:16 2.7 652:16 2:25 679:7 2:30 682:18 20 517:19 543:14 548:8 20-year 652:12 2002 475:13 2004 548:8 2005 548:8 635:13 644:10 2008 472:23 474:8 476:5,25 481:8 482:14 650:24 2009 481:15 482:11 545:3,8 548:4,12 550:24 555:22 555:22 556:23 651:12,20 2010 490:1 494:1 504:17 510:4 518:19 519:9 535:25 536:15 537:16,18 654:17 659:8 2011 517:10 629:24 630:3 2012 504:17 510:4 527:10 527:22 639:3 661:12 2013 484:3,5 551:3 553:11 553:15,16 557:22 621:11 628:1 640:18 649:19 2014 639:23 652:10 2015 517:10 553:16,18,20 635:17 2016 505:23 508:14 527:24 529:5,16,17 553:6,12,15,18 557:22 622:13 623:13 624:10 2017 494:18 502:16 504:4 506:10 507:22 507:22 508:10 511:1 513:23 517:23 518:23 519:3 526:2 528:10,13 529:16 533:20 539:5 546:13 554:3,5,8,11 557:1 560:9 562:25 571:12 572:5,6,18 573:3 577:9 582:18 588:12 635:22 664:1 664:12 665:11 666:23 667:4 668:8,20 671:5 2017/2018 670:2 2018 518:4 519:21 520:22 533:13,22 545:8 547:1,11 554:16,24 555:2,5,23 556:1,24 557:1 564:25 569:22 |
570:4 578:15 578:22 580:25 601:20 605:22 607:17 611:20 612:9,20 615:24 621:12 621:21 638:9 673:7,23 2019 603:6 2020 526:5 646:12,18 2021-26 466:1 2022 479:8 612:17 2023 620:13 2024 466:11,24 470:2 682:19 20th 507:22,23 513:23 520:22 533:13 672:17 673:7,12 21 509:10 519:13 21st 526:2 22 486:10 520:6 623:8,11 23 521:19 231 674:5,11 23rd 620:13 24 531:11 582:7 626:5 653:8 656:13 24-hour 578:5 25 479:11 486:2 623:19 25.32 637:13 25th 511:1 26 624:8 27 513:7 625:7,25 271 571:7 27th 518:4 28 505:7 2R2 466:25 3 3 479:3,6 492:9 517:3 551:17 565:6 566:5,7,7 573:10 574:16 585:25 587:15 593:10 605:13 606:17 607:2 608:21 631:5 638:10 639:22 3.6-130 515:5 30 479:13 681:1 30,000 545:15 300 489:14 31 603:13 31st 526:5 32 603:13 333 466:10 350 675:12 359/09 495:10 512:23 370 675:12 39 561:9,13 4 4 481:11 492:4,5 492:5 551:11 551:17 574:20 581:20 587:17 621:25 638:10 4.2.2 658:15,22 40 576:6 590:12 597:22 40-page 570:18 45 538:17 4500 488:25 47 501:7,22 538:17 471 469:3 472 469:4 477 469:5 4th 562:8 582:18 668:19 5 5 484:23 487:15 488:5,7,24 489:24 490:15 490:20 492:7,8 |
[Page 714]
|
492:10 495:23 495:24 536:5,8 536:10,12,19 575:2 587:19 615:23 637:14 638:10 640:17 50,000 520:3 500 600:1 535 469:6 544 469:7,8 548 469:9 592 469:10 596 469:11 599 469:12 5th 535:24 665:11 6 6 466:11 470:2 485:19 560:22 575:8 581:21 602:5 614:16 641:4 646:11 6,000 475:20 614 469:13 620 469:14,15,16 634 469:17,18 635 469:19 675 469:20 7 7 489:5 516:5 537:15 575:16 580:10 603:9,9 603:13 604:5 604:15,16 607:5 609:7 614:21 615:23 649:9 682:19 750,000 530:20 531:9,22,23 532:25 533:3 751 638:15,18 674:1,13 675:3 675:8 758 638:13,18 |
7th 537:17 649:19 655:19 8 8 495:5 496:11 565:5,7 575:19 603:9 650:6 8:30 682:17 83 515:5 85 480:19 850 651:1 87 510:19 8th 528:13 578:15 9 9 498:3 513:17 514:9 575:22 582:24,25 596:15 613:6 680:10 682:15 9:00 466:11 470:3 682:20 90 510:19 515:6 900 466:10 676:18 900-333 466:25 905085 526:16 534:11 9058 534:11 905850 483:25 9th 536:14 667:3 |