What lawsuit? NB Power claim for damages against AECL has not gone to court

More confusion showed itself at NB Power's rate hearing Friday when the utility's lawyer, John Furey, interrupted questions about the company's lawsuit against Atomic Energy of Canada Ltd. to announce there is no lawsuit.

"There are not currently any other legal actions commenced," said Furey about attempts to win compensation from AECL for problems at the Point Lepreau nuclear generating station refurbishment, which finished more than five years ago.

The question left unanswered was what the utility is doing instead.

Furey's comments came as Energy and Utilities Board lawyer Ellen Desmond was asking if it is NB Power's intention to advise the EUB when "litigation" with AECL concludes and potentially more settlement money related to the troubled refurbishment is won.

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Furey said there are only "potential legal claims," a revelation that caught Desmond by surprise.

"I had understood that there was litigation outstanding, but what I think I'm hearing Mr. Furey advise the board is that it's not litigation," said Desmond.

NB Power did sue insurance companies over their failure to pay for damage and delays during Lepreau's rebuild, which concluded in 2012 after running three years late and $1 billion over budget.

Two weeks ago Furey told the hearing that with the settlement of those lawsuits out of the way, attention was switching to "claims between NB Power and AECL."

"This settlement does not represent the conclusion of all claims surrounding the delays in refurbishment," said Furey. "There are substantial areas of dispute that remain between NB  Power and Atomic Energy of Canada Limited."

Desmond, and others, wrongly assumed that meant there was a legal action underway against AECL, which served as the refurbishment contractor.

NB Power has not said how much it is seeking or what process it is using to try to secure additional money from AECL.

Furthermore, Furey said NB Power considers whatever it wins to be money it can use as it sees fit.

In 2013 the Energy and Utilities Board ordered NB Power to notify it of "any proceeds" from successful refurbishment legal claims to the EUB, so it could "initiate a review to consider how such proceeds should be applied."

NB Power did that with the insurance settlement money, but Furey said he believes any money it wins from AECL to be outside of that order.

"I don't believe the scope of the board's order covered the AECL claims," he said.

It is New Brunswick policy that NB Power is entitled to "full compensation" for the $1 billion in cost overruns it suffered at Lepreau, in any combination from insurance companies, AECL or the federal government, which owned AECL at the time.

The amount paid to the utility last month by insurers is confidential, but enough information about it has been provided to know it is likely less than $200 million.