Author: Nigel Bankes Page 52 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.

By: Nigel Bankes

PDF Version: Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Decision Commented On: AUC Decision 790-D02-2015, Milner Power Inc. and ATCO Power Ltd, Complaints re the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module A, January 20, 2015

In this decision the Alberta Utilities Commission (AUC) has decided that it has the jurisdiction to grant tariff-based relief in a case where a rule of the Independent System Operator (ISO) is found to be unlawful on the basis that it was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act (EUA) (now SA 2003, c. E-5.1) and the Transmission Regulation (now Alta Reg 86/2007). Such relief may involve retrospective or retroactive adjustments to the ISO tariff going back to the date when the Rule first entered into force (January 1, 2006, Milner Power having originally filed its objection to the ISO Line Loss Rule in August 2005 before the rule came into force).

The Website of the Alberta Courts

By Nigel Bankes

On January 9, 2015

In Access to Justice, Blogs and Websites

By: Nigel Bankes, Jennifer Koshan, and Jonnette Watson Hamilton

PDF Version: The Website of the Alberta Courts

Matter Commented On: The Alberta Courts’ website

This post deals with Court websites. We are posting it now because all three Alberta Courts have just made a significant change in their practice. At the beginning of this week (January 5, 2015) they announced that they will no longer post judgments on their own website. Instead, users are referred to CanLII for copies of recent judgments. Here is the notice that you will find on the ABQB and ABPC websites:

A collection of the judgments of the Court of Queen’s Bench of Alberta is available from CanLII. The official version of the reasons for judgment is the signed original or handwritten endorsement in the court file. If there is a question about the content of a judgment, the original court file takes precedence. Copies of the original judgment may be obtained on payment of the applicable fee, by contacting the relevant court location.

You are about to leave the Court of Queen’s Bench of Alberta website. The Court of Queen’s Bench of Alberta is not responsible for the content of any external website.

Queen’s Bench judgments on CanLII

The Court of Appeal has yet to implement this decision but anticipates doing so in the near future.

Two Alberta Perpetuities Stories

By Nigel Bankes

On December 19, 2014

In Environmental, Property

By: Nigel Bankes

PDF Version: Two Alberta Perpetuities Stories

Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park

This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9^th and Royal Assent on December 17^th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.

Section 9 of Bill 8, the Justice Statutes Amendment Act provides that

(2) The following is added after section 22 [of the Perpetuities Act]:

Rule against perpetuities not applicable to qualifying environmental trusts

22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.

(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.

The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5^th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.

How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

By Nigel Bankes

On December 10, 2014

In Administrative Law, Energy, Utility Regulation

By: Nigel Bankes

PDF Version: How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

Case Commented On: ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397

In this case the Court of Appeal confirmed that the Alberta Utilities Commission (AUC) has some level of discretion as to the extent to which it allows a regulated utility to recover its prudently incurred legal costs from its customers when that utility participates in hearings called by the AUC to consider generic issues of interest to all regulated utilities and their customers and shareholders. One member of the Court (Justice Peter Martin) thought that the Commission went too far in denying recovery in relation to one set of costs and would have sent that matter back to the Commission.

The decision is interesting because it involves the intersection between an adjudicator’s discretion to allow for the recovery of legal costs and the general principle that a utility ought to have the opportunity to recover all of its prudently incurred operating costs (including the legal costs associated with rate setting) through the tariff approved by the regulator. A decision that recognizes that a utility has prudently incurred certain costs but which then denies the utility even the opportunity to recover those costs will generally be unsupportable: BC Electric Railway Company v Public Utilities Commission, [1960] SCR 837. In this case however there were special considerations and thus while the majority found the Commission’s decision both reasonable and correct, the decision is not likely of broad application – a point that Chief Justice Fraser herself seems to acknowledge at paras 70 – 73. In particular, and notwithstanding other and rather more sweeping statements from the Chief Justice (see, for example para 106, quoted below, and paras 110 – 111), it is not likely that the decision can be applied in the more routine situation in which a utility incurs legal costs as part of preparing and presenting its general rate application (GRA) to the AUC for it to set just and reasonable rates. The AUC may still scrutinize those legal costs on prudence grounds (and see here in particular Justice Martin at para 171) to ensure that the utility is not gold-plating its costs (e.g. where it chooses to retain expensive outside counsel to undertake a task that could be more economically dealt with in-house) but it likely cannot say (even on a reasonableness standard of review) that the legal costs associated with preparing and presenting a GRA are not recoverable.

A Revised Aboriginal Consultation Direction issued to the Alberta Energy Regulator

By Nigel Bankes

On December 8, 2014

In Aboriginal, Energy, Responsible Energy Development Act

By: Giorilyn Bruno and Nigel Bankes

PDF Version: A Revised Aboriginal Consultation Direction issued to the Alberta Energy Regulator

Direction and Decision Commented On: Energy Ministerial Order 105/2014 / Environment and Sustainable Resource Development Ministerial Order 53/2014; Prosper Petroleum Ltd., 2014 ABAER 013

On October 31, 2014, the Minister of Energy and the Minister of Environment and Sustainable Resource Development (ESRD) by Order issued a revised Aboriginal Consultation Direction to the Alberta Energy Regulator (AER). The main purpose of this Direction is “to ensure that the AER considers and makes decisions in respect of energy applications in a manner that is consistent with the work of the Government of Alberta” in meeting its consultation obligations associated with the existing rights of Aboriginal people (Direction at 2). This is the second Ministerial Order issued under s. 67 of the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) and it repeals the previous one. In April we posted a blog commenting on the first Order (available here). This post provides an overview of the changes introduced by the new Direction, comments on its scope, and identifies some of the issues that have yet to be addressed.