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Author: Nigel Bankes Page 32 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.

Overturning Stores Block and Implementing the Capacity Market

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On April 25, 2018

In Utility Regulation

By: Nigel Bankes

PDF Version: Overturning Stores Block and Implementing the Capacity Market

Bill Commented On: An Act to Secure Alberta’s Electricity Future, Bill 13 [Alberta], first reading, April 19, 2018

This Bill has four main objectives. First (clauses 1-2), Bill 13 overturns the majority decision of the Supreme Court of Canada in a case known as Stores Block: ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4 (CanLII). Second (clauses 3-35), the Bill will amend a series of energy statutes to provide the necessary legislative framework to implement the government’s plan to establish an electricity capacity market to supplement the existing energy market. Third (clause 36), the Bill will afford the Alberta Utilities Commission (AUC) enhanced authority to make orders (including administrative penalties) with respect to electric utilities, regulated rate providers and retailers (and their gas equivalents) where the AUC concludes that there has been a failure to comply with the rules respecting service quality and standards. Fourth, the Bill (clause 57) will afford the Lieutenant Governor in Council the authority under s 142 of the Electric Utilities Act, SA 2003, c E-5.1 to allow the AUC and the Alberta Electric System Authority (AESO) to make rules with respect to the expedited construction of transmission. Such rules are currently found in some form in the Transmission Deficiency Regulation, Alta Reg 176/2014.

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Applications for Party Status in a Permission to Appeal Application

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On April 24, 2018

In Energy, Intervenors and Standing, Utility Regulation

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).

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

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On April 18, 2018

In Oil & Gas

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.

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

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On April 3, 2018

In Oil & Gas

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.

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

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On March 28, 2018

In Energy

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.

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