Author: Nigel Bankes Page 34 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: The Complaint Jurisdiction of the AUC with Respect to the AESO

Decisions Commented On: (1) AUC Decision, 22367-D01-2017, Enel Alberta Wind Inc. General Partner of the Castle Rock Ridge Limited Partnership Complaint Pursuant to Section 26 of the Electric Utilities Act Regarding Conduct of the Alberta Electric System Operator December 23, 2017; (2) AUC Decision 21867-D01-2017, ENMAX Corporation Written Complaint About the Conduct of the Independent System Operator October 23, 2017; (3) AUC Decision 2010-104, Lavesta Area Group Written Complaint about the Conduct of the Independent System Operator March 10, 2010

The Alberta Electric System Operator (AESO) (aka the ISO, the Independent System Operator) established by the Electric Utilities Act, SA 2003, c E-5.1 (EUA) has two principal functions. It is responsible for the operation of the power pool and for the procurement of ancillary services, and it is responsible for engaging in transmission system planning and for providing system access to the transmission system. In furtherance of the latter it must prepare and submit to the Alberta Utilities Commission (AUC) for approval a tariff (EUA, s 30) setting out the rates to be charged by the AESO for system access service and the terms and conditions that apply.

Cowper-Smith and the Law of Proprietary Estoppel: Implications for the Oil and Gas Lease?

By Nigel Bankes

On January 10, 2018

In Oil & Gas, Wills and Estates

By: Nigel Bankes

PDF Version: Cowper-Smith and the Law of Proprietary Estoppel: Implications for the Oil and Gas Lease?

Case Commented On: Cowper-Smith v Morgan, 2017 SCC 61 (CanLII)

The Supreme Court of Canada handed down its decision in Cowper-Smith v Morgan in December 2017. The decision is an important decision on proprietary estoppel. While it arises in the context of a family dispute it deserves to be read by commercial lawyers including oil and gas lawyers. It is one of the curiosities of the Canadian law of estoppel that some of our leading cases have come out of fact patterns involving the “unless” form of the oil and gas lease from the 1960s and 1970s from Alberta and Saskatchewan. These cases include Canadian Superior Oil Ltd. v Paddon-Hughes Development Co., [1970] S.C.R. 932, 1970 CanLII 3 (SCC) and Sohio Petroleum Co. v Weyburn Security Co., [1971] S.C.R. 81, 1970 CanLII 137 (SCC). These cases continue to be influential in oil and gas lease matters and beyond. The typical fact pattern involves a missed or late payment during the primary term or a missed or late shut-in payment during the secondary term which automatically terminates the lease unbeknownst to either party. The parties continue to act as if the lease is in force and in some cases the lessee expends considerable monies on the leased lands including drilling a new well. But in the end, all is for naught. The lease is dead and to this point estoppel arguments aimed at reviving the lease have largely failed; in some cases on the basis that estoppel cannot be used as a sword (to create a new lease), and in other cases, and most commonly, on the basis that the lessee never acted to its detriment on the basis of a representation made by the lessor that the lease was still in effect; typically there was no such representation, the lessee was simply proceeding on the basis of its own understanding of the legal position.

The AESO Line Loss Marathon Inches Towards the Finish Line

By Nigel Bankes

On January 8, 2018

In Energy

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.