BC Hydro, which had entered into an electricity purchase agreement (EPA) with an independent power producer for the supply of electricity at a particular project in BC, agreed with that supplier that the EPA would be amended to provide, inter alia, that in consideration for the payment by BC Hydro of the sum of $8.5 million by the date 30 days after the project became operational, BC Hydro would have the option to extend the term of the EPA by a further 16 years.
In finding that the $8.5 million payment should not be bifurcated so that a portion thereof was to be treated as a termination payment for ETA s. 182 purposes, Bocock J stated (at para. 77, footnotes omitted):
Where language within the contract is clear and unambiguous, the parol evidence rule excludes the use of extrinsic evidence. Justice Nadon, writing for the Federal Court of Appeal in General Motors Canada Ltd v. The Queen relied on such principles from Eli Lilly, stating that failing the finding of ambiguity in the document under consideration, it is not open to the Court to consider extrinsic evidence, furthermore, that even where there is ambiguity, evidence only of a party’s subjective intention is not admissible. Those clear legal pronouncements are binding authority on this Court. Hence, there is no reason for the Court to investigate further the nature of the Payment when its nature has been plainly stated in Section 2.2(d) of the [Agreement].