Author Archives: Nigel Bankes

About Nigel Bankes

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.

Applications for Party Status in a Permission to Appeal Application

By: Nigel Bankes

PDF Version: Applications for Party Status in a Permission to Appeal Application

Bill Commented On: Balancing Pool v ENMAX Energy Corporation, 2018 ABCA 143 (CanLII)

This decision deals with applications by two parties (the Balancing Pool and TransAlta) to be accorded party status (or, failing that, intervenor status) in permission to appeal applications launched by TransCanada Energy, ENMAX and Capital Power relating to one aspect of the long-running line loss proceedings before the Alberta Utilities Commission (AUC). Justice Paperny’s decision on these preliminary matters merits reporting on ABlawg for two reasons. First, it provides an example of a Court taking the unusual step of granting party status in relation to that most preliminary of applications, a permission to appeal application (rather than at the subsequent stage where leave has been granted). Second, it provides an opportunity to update the status of the line loss file (AUC Proceeding 790). Continue reading →

A Bill to Restrict the Interprovincial Movement of Hydrocarbons: a.k.a. Preserving Canada’s Economic Prosperity [Act]

By: Nigel Bankes

PDF Version: A Bill to Restrict the Interprovincial Movement of Hydrocarbons: a.k.a. Preserving Canada’s Economic Prosperity [Act]

Bill Commented On: Preserving Canada’s Economic Prosperity Act, Bill 12 [Alberta], First Reading, April 16, 2018

This post examines two key questions: (1) What does Bill 12 do? and (2) What are the constitutional underpinnings of the Bill? The post does not examine whether or not the Bill is consistent with Alberta’s obligations under internal trade agreements or Canada’s obligations under the North American Free Trade Agreement. But first, some brief background to provide context for this unusual (and unusually titled) Bill. Continue reading →

Ontario Court of Appeal Decision Provides Guidance on the Application of Dynex

By: Nigel Bankes

PDF Version: Ontario Court of Appeal Decision Provides Guidance on the Application of Dynex

Case Commented On: Third Eye Capital Corporation v Ressources Dianor Inc, 2018 ONCA 253 (CanLII)

In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GOR) carved out of a working interest in oil and gas rights was capable of subsisting as an interest in land as a matter of law. In an earlier post on post-Dynex litigation I observed that:

Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GOR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts. Continue reading →

Regulated Tolls in the Competitive Environment of Northeast British Columbia: NEB Issues Directions to NGTL and Westcoast

By: Nigel Bankes

PDF Version: Regulated Tolls in the Competitive Environment of Northeast British Columbia: NEB Issues Directions to NGTL and Westcoast

Decision Commented On: National Energy Board Examination to Determine Whether to Undertake an Inquiry of the Tolling Methodologies, Tariff Provisions and Competition in Northeast British Columbia: Examination Decision, March 8, 2018

As noted in a post this time last year, the chair of the National Energy Board (NEB, the Board) decided to appoint a single Board member, Lyn Mercier, to conduct an examination to determine whether to conduct an Inquiry into the Tolling Methodologies, Tariff Provisions and Competition in Northeast British Columbia. Ms. Mercier submitted her Report to the Board on February 22, 2018 and the Board has now released its “Examination Decision” under the signature of the Board’s secretary.

Continue reading →

Power Purchase Arrangement Litigation Comes to an End

By: Nigel Bankes

PDF Version: Power Purchase Arrangement Litigation Comes to an End

Matter Commented On: Government of Alberta Press Release, March 9, 2018

The Government of Alberta issued a Press Release on March 9, 2018 indicating the Government and ENMAX “have agreed to withdraw ENMAX from the Power Purchase Arrangement (PPA) legal action initiated in 2016 by the Attorney General”. The agreement apparently “provides for the transfer from ENMAX to the Balancing Pool of 166,667 carbon offset credits and for a payment of equivalent value to ENMAX from the Balancing Pool for previously disputed and unpaid dispatch services and PPA transition matters”. The release goes on to note that “With this agreement, the legal action between the Government of Alberta, ENMAX and the remaining parties will be ended”.

ABlawg has published numerous posts on the PPA litigation (see here, here, here, here, here, and here) and there is a nice summary of the history of the litigation on the blog of the Alberta Power Market, a very informative blog prepared by members of the Electricity Markets Group of Borden Ladner Gervais LLP.

This post may be cited as: Nigel Bankes “Power Purchase Arrangement Litigation Comes to an End” (14 March, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/03/Blog_NB_PPA_Litigation_Ends.pdf

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