The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Cabinet minister yesterday said he is pursuing a class action lawsuit over Bahamas Power & Light’s (BPL) outages, and warned: “This is a straight-up consumer war.”

Damian Gomez, pictured, minister of state for legal affairs under the Christie administration, told Tribune Business that Bahamians needed to stand up for their rights and stop passively accepting poor service and high costs from their utility providers.

Disclosing that he had already obtained the backing of the hotel union, the largest private sector union, for his legal bid to secure compensation for Bahamian consumers and businesses over BPL’s daily load shedding and blackouts, Mr Gomez said he was “fairly confident” such an action could be filed within the next three weeks.

Arguing that the Electricity Act 2015 imposes “strict liability” on BPL for failing to provide reliable energy supply, Mr Gomez said the utility and its Bahamas Electricity Corporation (BEC) predecessor appeared to have little defence given that it “seems common ground they have not properly managed their plant”.

He added that liability could also extend to the Utilities Regulation and Competition Authority (URCA), the energy sector regulator, on the basis that it had failed to implement “the consumer protection embedded” in the Electricity Act and effectively given BPL “a free pass” over its conduct.

URCA’s chief executive, Stephen Bereaux, previously told this newspaper that the regulator had initiated a probe into BPL’s latest round of load shedding and outages some three weeks ago, but Mr Gomez yesterday argued it should have been doing much more to be “on top of” the situation.

The ex-minister blasted BPL’s refusal to compensate consumers for the disruption, damaged equipment and loss of income as “really disgraceful”, adding that utilities in other countries would have offered clients credits to their bills in subsequent months.

Revealing that he had resisted purchasing a stand-by generator in the hope electricity supply would improve, Mr Gomez added that Bahamians “should not be put to that level of expense” to acquire one.

Branding as “unsustainable” the increased maintenance and fuel costs for those forced to run their generators daily, he said New Providence’s energy crisis had become a ‘life and death’ struggle for many elderly persons due to the exposure to heat stroke, and medicines and perishable food items being thrown away after they went bad.

“I’m actively dealing with it,” Mr Gomez told Tribune Business of his proposed BPL class action lawsuit. “I’m waiting for the Bahamas Chamber of Commerce to get back to me. One of the major unions has agreed to join it; that’s the hotel union. I’m waiting for the confirmations of affiliate unions, but it’s going to be a big group.

“We’ll get there. I’m confident the unions are going to join in; fairly confident. The response has been pretty good so far. It will probably be three weeks, then we can go [and file]. I’m ready to go. I’m just waiting for the players to answer the call. Once we get enough in terms of numbers, we’ll file. We just need the numbers and we’ll be off to the races.

“I’ve had enough, so we’re going to do something about it. It’s not political, it’s a straight-up consumer war. Somebody has got to stand up for the Bahamian consumer.”

Mr Gomez did not specify the level of damages any class action legal filing will seek. He explained that all parties wishing to join it would need to “particularise their loss” in terms of income foregone, increased costs due to replacing damaged equipment, and other factors that would enable an overall “position as to liability” to be calculated.

Using some sectors as examples, the former minister said claims from Airbnb and other vacation rental clients that the power outages had spoilt their vacation “could run into many millions of dollars”. And vacation rental landlords could also seek to recover any discounts they had given their guests.

Mr Gomez said hairdressers and barbers would also be able to calculate how many customers they had lost, “because once the power goes off that’s the end of them”.

Explaining why he had decided to act in a social media posting, Mr Gomez wrote: “It’s time for Bahamian consumers to stand up and shake off the sense of victimhood. We have the right to a consistent, reliable supply of electricity.

“The supplier, BPL, and its predecessor have failed us consumers. Our government has failed us. We have the statutory right of recourse before the Supreme Court. Let us exercise our rights by suing for compensation against BEC, BNPL, URCA and the Government.

“If you believe in accountability, join the class action lawsuit. It is high time we protect ourselves from the rapacious bureaucracy which abuses the Bahamian electricity consumers. We must put an end to the deaths from heat stroke and other deaths caused by the power outages. Join the fight. Bahamians need to fight for the rights of Bahamians.”

Asked whether Bahamians have been too accepting of mediocrity, and unwilling to hold those responsible accountable, Mr Gomez told Tribune Business: “I think in the past we have been.

“That’s the reason for the language I used in my post. We seem to enjoy complaining to one another and not doing anything about it, but that has to change if we’re going to see any improvements in utilities. It’s not just BPL; BTC and Cable Bahamas also have issues.”

While load shedding and power outages have been common every summer, few New Providence residents and businesses would dispute that this is the worst it has ever been due to BPL’s generation capacity being 40 Mega Watts (MW) short of the level required to meet energy demand.

Mr Gomez said the revised Electricity Act passed by the former Christie administration in 2015 had closed some of the loopholes that allowed BPL’s predecessor, BEC, to escape liability for the outages and disruption caused under its watch.

While BEC was granted an “exemption” for outages and situations beyond its control, the ex-minister said this had been tightened under the new Act. And he added: “In this instance it seems common ground that the company was not properly managing the plant.....

“There’s enough information that we could go after BEC for at least five years, and against BPL from 2016 to the present. BPL is more exposed because the new Act in 2015, which came into force in January 2016, that’s only strict liability. There’s no exemption for nonsenses. I’m very confident of suing BPL. BEC has that defence but will have to show outages were beyond its control.”

Mr Gomez argued that URCA also bore responsibility for the situation, and explained: “The problem has been exacerbated because URCA has not done what the Electricity Act requires of them.

“They were required to have BPL produce a paper on an arbitration system, which would be discussed by the public, and enable disputes to be resolved in a cheaper and quicker manner than if it went to the Supreme Court.”

A consultation paper on such a dispute resolution mechanism was released by URCA this summer, ironically coinciding with when BPL began a daily three-hour load shedding rotation that continues to affect all of New Providence.

Mr Gomez, though, remained unimpressed, saying: “This is two years down the road. BPL has had a free pass because URCA has not fast-forwarded, in the way one would expect, the consumer protection embedded in the new Act.

“They’re on the hock because of it. If you’re in a state of blackouts you’d expect the regulator to be on top of it before anyone else.” Having resisted purchasing a generator himself in the forlorn hope that BPL’s supply reliability would improve, Mr Gomez argued this was an expense Bahamians should not have to incur.

Pointing out that Bahamians have a right to expect BPL will fulfill this most basic obligation, he added: “It’s really expensive. You can pay as high as $15,000 to $50,000 depending on the size of the house.

“Why should the public be put to that level of expense? When you buy a generator, the assumption is that it’s for emergency use, but you are using it for three hours a day. Maintenance costs go up, fuel costs go up. It’s just unsustainable.”

Mr Gomez recalled how he went to the Central Detective Unit (CDU) recently to be present for a client’s interview with the police only to find the power off and the detainees being held outside. He was subsequently informed that the CDU’s generator had “burnt up” because it was being used every day.

He also noted how an elderly relative of a secretary at his law firm was found dead from heat stroke in May due to the power being off. “That’s is actually very serious,” Mr Gomez said. “That’s how bad it is. To have politicians say we didn’t know it was this bad defies belief.”