Author: Nigel Bankes Page 29 of 89

Nigel Bankes is emeritus professor of law at the University of Calgary. Prior to his retirement in June 2021 Nigel held the chair in natural resources law in the Faculty of Law.

Decision Commented On: National Energy Board, TransCanada Pipelines Limited (TransCanada) Application for Approval of 2018 to 2020 Mainline Tolls RH-001-2018, Reasons for Decision, December 13, 2018

This is the most recent decision in a string of decisions from the National Energy Board (NEB) over the last five years dealing with TransCanada PipeLines (TCPL) as TCPL and the NEB seek to grapple with the dramatic changes that have occurred in North American natural gas markets over this period, and more specifically how these changes pose the risk of stranded assets and as such threaten to affect the viability of one of the NEB’s most important regulated pipelines: TCPL and TCPL’s mainline (or at least elements of that mainline). Perhaps the most dramatic of these changes is the increased availability of shale gas supplies, and specifically shale gas supplies from basins much closer to TCPL’s traditional markets than the Western Canadian Sedimentary Basin (WCSB), TCPL’s main source of gas.

What is interesting about these decisions, including this most recent decision, is the interplay or tension between the NEB’s statutory authority to establish just and reasonable rates and the market-based approaches as reflected in negotiated settlements. While the NEB and other regulators seek to encourage negotiated settlements between the regulated entity and its customers, it is plain from this decision that the regulator retains a power of review. While a regulator may be reluctant to exercise that power given that settlements typically involve some give and take, this decision demonstrates that the regulator will not always defer to the paradigm of settlement and contract if it perceives that the results of the settlement depart significantly from fundamental rate-making principles. While this decision happens to deal with TCPL and the NEB, the same interplay is apparent in any jurisdiction that allows for the possibility that a regulated utility may reach a negotiated settlement with some or all customers rather than going through an adversarial rate hearing.

Market power in the electricity sector prior to the implementation of a capacity market

By Nigel Bankes

On December 18, 2018

In Energy

By: Nigel Bankes

PDF Version: Market power in the electricity sector prior to the implementation of a capacity market

Report commented on: Charles River Associates, Offer Behaviour Guidelines prior to the implementation of a capacity market, Report Prepared for the Market Surveillance Administrator, December 18, 2018

On September 27, 2018, Alberta’s Market Surveillance Administrator (MSA) provided notice that it was starting a process to determine if it needed to adopt guidelines for market participants in the electricity sector in Alberta during the period prior to the implementation of a capacity market. It will be recalled that the MSA had a set of Offer Behaviour Enforcement Guidelines (OBEG) that were in force until withdrawn by the MSA with the announced advent of a capacity market. For an earlier post referring to the development see here and for discussion of the transition to an energy plus capacity market see here.

To initiate this process the MSA retained Charles River Associates (CRA) to address three questions:

Could there be a problem with offer behaviour that would need to be addressed during the transition period?
If so, could the problem identified be addressed in whole, or in part, through MSA guidelines and what form could those guidelines take?
If guidelines were made and market participants did not follow those guidelines what remedies should the MSA seek from the Alberta Utilities Commission (“Commission”) in an enforcement proceeding?

The MSA has now received that report and this post summarizes some of its key findings.

The Duty of a Regulated Pipeline to Provide Facilities

By Nigel Bankes

On December 17, 2018

In Energy

By: Nigel Bankes

PDF Version: The Duty of a Regulated Pipeline to Provide Facilities

Case Commented On: National Energy Board, Letter Decision, 4 December 2018, Nipigon LNG Corporation (NLNG) Application pursuant to Section 12, Section 13, Section 59, Subsection 71(2), Subsection 71(3) and Part IV of the National Energy Board Act (NEB Act) in respect of TransCanada PipeLines Limited (TransCanada) and the TransCanada Mainline pipeline system (the TransCanada Mainline).

Public utility statutes typically require a public utility to provide service on a non-discriminatory basis to persons within its exclusive franchise area. This is also the common law duty of a common carrier. But what if a regulated utility does not have a franchise area (e.g. TransCanada PipeLines, see for example the comments of the National Energy Board in its TCPL Restructuring Decision RH-003-2011, at 38); and what if the utility is not a common carrier (e.g. a federally regulated natural gas pipeline)?

Severing a joint tenancy in Alberta

By Nigel Bankes

On December 14, 2018

In Property

By: Nigel Bankes

PDF Version: Severing a joint tenancy in Alberta

Case Commented On: Dobransky v Roteliuk, 2018 ABQB 660 and Smilley v McMillan, 2018 ABQB 988.

Co-owners in Alberta may choose to hold an estate in land as joint tenants or as tenants in common: Law of Property Act, RSA 2000, c L-7, sections 4 and 5 (LPA). A joint tenancy carries with it the incident of survivorship – that is, the right of the surviving joint tenant to the entire estate. Despite the fact that there is a presumption in favour of a tenancy in common and that therefore co-owners must indicate expressly that they wish to own as joint tenants and not as tenants in common (LPA, section 8), there is general agreement (and this was certainly the position of courts of equity) that it should be easy to destroy or sever the joint tenancy thereby avoiding the incident of survivorship. This post sets out the law of severance and then comments on two recent decisions in each of which the plaintiff sought to get the Court’s assistance to complete a severance.

Saskatchewan Land Titles Decision Calls Out for Appellate Review

By Nigel Bankes

On November 30, 2018

In Property

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Land Titles Decision Calls Out for Appellate Review

Case Commented On: Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290.

This decision deals with the power of the registrar to correct an error made back in the chain of title, the effect of a registrar’s caveat, and the status of a purchaser where a title is encumbered by a registrar’s caveat. Unfortunately, Justice Kovach has, in our view, reached incorrect conclusions on each of these issues. We hope that the Saskatchewan Court of Appeal has the opportunity to correct these errors.

Author: Nigel Bankes Page 29 of 89

Negotiated Settlements and Just and Reasonable Rates

Market power in the electricity sector prior to the implementation of a capacity market

The Duty of a Regulated Pipeline to Provide Facilities

Severing a joint tenancy in Alberta

Saskatchewan Land Titles Decision Calls Out for Appellate Review