Author: Nigel Bankes Page 33 of 87

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: The AESO Line Loss Marathon Inches Towards the Finish Line

Decision Commented On: Milner Power Inc. & ATCO Power Ltd. Complaints Regarding the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module C, AUC Decision 790-D06-2017, December 18, 2017

In a pre-Christmas post on the power purchase arrangements (PPAs) saga I hinted that, at least from the perspective of the energy regulatory lawyers in the city, the PPA saga must be the gift that keeps on giving; but this epithet must be even more so for the line loss dispute—for this truly is a marathon. And while the latest decision of the Alberta Utilities Commission (AUC) gets us a little closer to the finish line, I fully expect that we shall see further applications to the AUC for review and variance and perhaps several more trips to the Court of Appeal. Indeed I believe that there is still one outstanding application (Capital Power Corporation v Alberta (Utilities Commission), 2015 ABCA 197 (CanLII) and see also at paras 150-152 of this decision) for permission to appeal an earlier decision which application was adjourned sine die pending the outcome of the AUC’s decision on the merits (i.e. this decision).

Confidentiality Agreements and Brokerage Opportunities in the Context of the Sale of Oil and Gas Properties

By Nigel Bankes

On January 2, 2018

In Contracts, Oil & Gas, Property

By: Nigel Bankes

PDF Version: Confidentiality Agreements and Brokerage Opportunities in the Context of the Sale of Oil and Gas Properties

Case Commented On: Beaumont Resources Ltd. v Cardinal Energy Ltd., 2017 ABCA 416 (CanLII), aff’g unreported reasons for judgment of Justice Anderson, September 26, 2016, aff’g unreported reasons for judgment of Master Farrington, January 22, 2016

In 2012 Beaumont Resources made some preliminary inquiries of Felcom Resources about a possible acquisition of some oil and gas properties. In the course of those inquiries Beaumont and Felcom entered into a confidentiality agreement (the Felcom CA) with respect to information provided by Felcom to Beaumont. The agreement included the following terms:

An Unseverable Joint Tenancy: Intentions of the Donor or a Question of Law?

By Nigel Bankes

On December 21, 2017

In Property

By: Nigel Bankes

PDF Version: An Unseverable Joint Tenancy: Intentions of the Donor or a Question of Law?

Case Commented On: Pohl v Midtal, 2017 ABQB 711 (CanLII)

In this decision Justice Rita Khullar concludes that when a parent makes an inter vivos gift of interest as a joint tenant in real property to an adult child, that gift may include an irrevocable right of survivorship. While there is a presumption that the donor has retained the power to sever during the donor’s lifetime, this presumption may be rebutted based on the expressed intentions of the donor. In this case the presumption was rebutted. In reaching these conclusions Justice Khullar relies heavily on the decision of the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII), a case dealing with a joint bank account.

Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

By Nigel Bankes

On December 14, 2017

In Aboriginal

By: Nigel Bankes

PDF Version: Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

Case Commented On: First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII)

In this unanimous decision authored by Justice Karakatsanis, the Supreme Court of Canada confirmed what seems like an obvious proposition, namely that good faith fulfilment of modern treaties is a necessary condition for the project of reconciliation. The Court concluded that the land use planning process established by the Yukon Final Agreements permitted Yukon to modify a Recommended Final Plan (in this case the Peel Watershed Regional Land Use Plan), but that the power to modify did not include the power to change a Plan “so significantly as to effectively reject it” (at para 39). More specifically, Yukon’s power to modify was confined by the scope of the issues that it had raised during the planning process; it could not raise significant new issues although it could respond to changing circumstances. As a result, Yukon’s purported approval of the Plan was invalid (at para 35).

The False Security of Commingled Trust Accounts

By Nigel Bankes

On December 8, 2017

In Bankruptcy and Insolvency, Oil & Gas

By: Nigel Bankes

PDF Version: The False Security of Commingled Trust Accounts

Case Commented On: Alberta Treasury Branches v Exall Energy Corporation, 2017 ABQB 602 (CanLII)

Working interest owners in the western sedimentary basin have long sought to have the best of both worlds: the convenience of allowing an operator to commingle joint account monies from multiple properties in a single general account, while offering (through the provisions of the Canadian Association of Petroleum Landmen (CAPL) operating procedures) the contractual assurance to non-operators that their funds were impressed with a trust while in that commingled account. The weakness of such an assurance is that its underlying premise is that the operator will always have a balance in that commingled general account equal to or greater than the amounts represented by the “monies of the joint operator”, whether those monies are monies contributed by a joint operator to fund joint operations or whether they represent monies received by the operator on account of the sale of a joint operator’s share of production. If that premise turns out not to be the case then a joint operator’s proprietary claim evaporates. The premise of course is most likely to be false when the operator is in financial difficulty – the precise point in time when a joint operator would like to have access to a proprietary remedy.