Category Archives: Administrative Law

Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

By: Nigel Bankes

PDF Version: Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

Cases and Matters Commented On: Secretary of State for Climate Change v Friends of the Earth and Others, [2012] EWCA Civ. 28,  aff’g lower decision; Mesa Power Group LLC v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, July 6, 2011; Mercer International Inc v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, 26 January 2012, and request for arbitration (ICSID Additional Facility), April 30, 2012

Governments around the world are adopting a variety of low carbon and green energy policies designed to increase the share of renewable energy sources in the energy mix. In addition, some governments, including the government of Alberta, have also adopted policies to provide for the sequestration of carbon dioxide emissions where carbon fuels continue to make up a significant part of the energy mix. These policies often provide financial incentives to investors in order to persuade them to commit to the new technology. For example, many governments provide for feed-in-tariffs (FIT) to encourage the development of wind and solar energy. A FIT represents a commitment by the government directly or through the incumbent utility to purchase the output from the designated facility (e.g. wind generator, solar panels or biomass generation) at a specified price for a prescribed number of years (typically representing the amortization period of the asset). Such commitments are designed to be “bankable” in the sense that the proponent will be able to use the commitment to raise capital to fund the venture. Similarly, many governments have found it necessary to provide financial support (subsidies or “state aid” in the language of the European Union) for the first commercial scale carbon capture and storage projects. For example, the province of Alberta is currently providing support for three different sequestration related projects in the province (see here). Continue reading →

Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

PDF version: Unjustly discriminatory rates on Ventures Pipeline to continue; the Commission decides that it lacks jurisdiction to set interim or final rates.

Cases and decisions commented on:

(1) AEUB Decision 2006-105, Suncor Energy Inc., Preliminary Decision Regarding Jurisdiction to have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act, October 24, 2006;

(2) TransCanada Pipeline Limited v Alberta (Energy and Utilities Board), 2008 ABCA 55 (appeal of AEUB Decision 2006-105);

(3) AUC Decision 2009-065, TransCanada Pipeline Ventures Ltd, Suncor Energy Inc, Application to Have the Ventures Pipeline (Oil Sands Pipeline) Regulated Under the Provisions of the Gas Utilities Act, Section 24 of the Gas Utilities Act – Investigation, May 20, 2009;

(4) TransCanada Pipeline Ventures Ltd v. Alberta (Utilities Commission), 2010 ABCA 96 (appeal of AUC 2009-065);

(5) AUC Decision 2012-164, Williams Energy (Canada), Inc, Application to Terminate the Williams Contract for Ventures Pipeline Transportation Service or, in the Alternative, Set Rates to be Imposed and Observed by the Owners of Ventures Pipeline, June 14, 2012.

On June 14, 2012 the Alberta Utilities Commission (AUC\Commission) handed down its decision in the latest effort by the contract shippers on Ventures Pipeline to obtain relief from what the Commission has already ruled to be rates that are “unjust or unreasonable, unjustly discriminatory or unduly preferential” (AUC Decision 2009-065 at paras 145 & 147).  The AUC declined to grant the relief sought.  How could this be?  The simple answer is that section 5 of the Gas Utilities Act, RSA 2000, c G-5 (GUA) provides that the Commission may only exercise its authority under certain key sections of the GUA (including the rate setting provisions) if the Commission has been authorized to do so by means of an Order in Council (OC), or if the gas utility in question is covered by an exemption under the regulations.  The Commission held that Ventures did not fall within any of the existing categories of exemption and further, that since there was no OC in place (despite the Commission’s request), the Commission had no jurisdiction to fix final or interim rates for Ventures.

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The need to explain yourself before imposing discipline under the law

PDF version: The need to explain yourself before imposing discipline under the law

Case considered: Pridgen v University of Calgary, 2012 ABCA 139

The Alberta Court of Appeal recently issued its judgment in the appeal by the University of Calgary from the October 2010 decision of Madam Justice Strekaf quashing a student discipline decision by the University (Pridgen v University of Calgary, 2010 ABQB 644). Madam Justice Strekaf’s judicial review decision was the subject of an ABlawg post by Heather Beyko – one of our JD students – in November 2010 (See “Facebook and Freedom of Expression”). Briefly speaking, the University imposed discipline on two undergraduate students for posting comments on Facebook concerning a course of instruction taken by them in the Faculty of Communication and Culture (as it was at the time) during the Fall 2007 semester. The University decided such comments amounted to non-academic misconduct and imposed discipline on both students including several months of academic probation. The students were successful on judicial review in front of Madam Justice Strekaf, who ruled the University decision was unreasonable in law and also infringed section 2(b) of the Charter of Rights and Freedoms. The Court of Appeal has unanimously upheld Madam Justice Strekaf’s finding that the University disciplinary decision was unreasonable under principles of administrative law. The Court of Appeal was more guarded on the Charter issue, with two of the three justices commenting it was unnecessary to consider the Charter to decide this case. My comment here focuses on the administrative law issues raised in this appeal.

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One Person, Two Universities, Three Alberta Cases

 PDF version: One Person, Two Universities, Three Alberta Cases

 Cases Considered: Oleynik v University of Calgary, 2012 ABQB 189 (Case #1); University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (Case #2); Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (Case #3)

These three cases involve personal privacy issues in the process of applying for a research grant from Social Sciences and Humanities Research Council of Canada (SSHRC). Two of the cases suggest that the access to information requests to Universities were being used to obtain evidence to support allegations of bias in decision-making.

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Federal Court of Appeal confirms that a SARA protection statement must offer the critical habitat of a listed species real legal and non-discretionary protection

Case commented on: Minister of Fisheries and Oceans v. David Suzuki Foundation (the Killer Whale case) 2012 FCA 40

PDF Version: Federal Court of Appeal confirms that a SARA protection statement must offer the critical habitat of a listed species real legal and non-discretionary protection

A unanimous Federal Court of Appeal in a decision authored by Justice Mainville has largely affirmed Justice Russell’s decision at trial in a case dealing with the legal protection of the critical habitat of two populations of killer whale listed as threatened or endangered under the terms of the Species at Risk Act (SARA), SC 2002, c 29. ABlawg’s post on the trial decision is available here: “SARA has a spine as well as teeth.”

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