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Decisions Commented On: (1) AUC Decision 23339-D01-2019, Alberta Electric System Operator Needs Identification Document Application AltaLink Management Ltd. Facility Applications Provost Reliability Upgrade Project, and January 22, 2019; and (2) AUC Decision 23393-D01-2019, Alberta Electric System Operator Needs Identification Document Application AltaLink Management Ltd. Facility Application Fincastle 336S Substation Upgrade, February 14, 2019.

These two decisions deal with the Alberta Utilities Commission’s (AUC) assessment of a needs identification document (NID) to build new transmission in a situation where the NID was prepared on the basis of a system access service request (SASR) originating from the incumbent distribution facility owner (DFO) – in this case, FortisAlberta. Both cases triggered a dissenting opinion from AUC Vice Chair Anne Michaud. In each case the principal difference between the dissent and the majority turned on the Alberta Electric System Operator’s (AESO) responsibility to assess the reasonableness of the need for system access where the impetus to prepare the NID came from the DFO. In both cases, Vice Chair Michaud takes the view that if the AESO fails to properly scrutinize the need for the DFO’s SASR request then there is no public interest assessment of such a request. In both cases Vice Chair Michaud would have sent the NID back to the AESO with the suggestion “that the NID application incorporates an analysis of the need for the project that includes a weighing of the expected increase in reliability against the potential impacts of the project, having regard for the fact that the AESO is not required in all circumstances to respond to a SASR with a proposed transmission solution.” (Provost Decision at para 313).

The argument that greater scrutiny may be required in the case of a NID prepared in response to a SASR request from a DFO draws on the understanding that a DFO (unlike the AESO) does not have a public interest mandate and may therefore have an incentive to overbuild to increase its rate base – unless dis-incented from doing so by the new approach to capital investment in Phase II of performance based regulation – a doubtful proposition at best. New transmission is expensive and the cumulative effects on consumer bills significant. An important element of assessing the need to upgrade existing transmission facilities is the applicable reliability standard: the higher the reliability standard the greater the capital expense. What is that standard? Who gets to set that standard and should it be the same for all that are connected to the transmission system?

Lawyer (In)competence and Family Violence

By Deanne Sowter

On March 20, 2019

In Ethics and the Legal Profession, Family

By: Deanne Sowter

PDF Version: Lawyer (In)competence and Family Violence

Legislation Commented On: Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Family Lawyers Are Not Required To Be Trained In Nor Screen For Family Violence

In Canada, family law lawyers are not professionally required to screen for family violence. The Federation of Law Societies of Canada (FLS) and provincial / territorial law societies make no reference to screening or family violence in their codes of conduct.

The British Columbia Family Law Act, SBC 2011 c 25 (BC FLA) contains an expansive definition of family violence to include physical, sexual, psychological or emotional abuse of a family member, as well as the direct or indirect exposure to family violence by a child (s 1). The definition includes attempted physical or sexual abuse of a family member, coercion, unreasonable restrictions on a family member’s financial or personal autonomy, stalking, and intentional damage to property. There is no universally shared definition of family violence, domestic violence, intimate partner violence, or coercive control. What is important to note is that the BC FLA definition is expansive, and includes all forms of violence between family members. Section 8(1)(a) of the BC FLA, which is in the division devoted to out of court dispute resolution processes, requires family dispute resolution professionals to assess whether family violence may be present, the extent to which it may adversely affect the safety of the party or family member, and the party’s ability to negotiate a fair agreement. The term “family dispute resolution professionals” is defined to include family justice counsellor, parenting coordinator, lawyer, mediator, or arbitrator. The assessment for family violence must be done in accordance with the regulations, which only provides guidance for family law mediators, arbitrators and parenting coordinators, not lawyers. (See Family Law Act Regulation, BC Reg 347/2012).The BC FLA therefore suggests that lawyers ought to screen for family violence in order to assess whether it is present and discuss with the client the advisability of using various types of family dispute resolution processes to resolve the matter.

English Court of Appeal Confirms that an Operator Entitled to be “held neutral”

By Nigel Bankes

On March 19, 2019

In Energy, International Law, Oil & Gas

By: Nigel Bankes

PDF Version: English Court of Appeal Confirms that an Operator Entitled to be “held neutral”

Case Commented On: Spirit Energy Resources et al Marathon Oil UK LLC, [2019] EWCA Civ 11.

In a decision that will be of interest to the energy bar in all oil and gas jurisdictions in the common law world, the English Court of Appeal, in a unanimous decision, has confirmed the principle that operations conducted by an operator under the terms of a joint operating agreement are conducted for the joint account and for the shared risk of all working interest owners and that an operator is not an insurer for those other working interest owners. The Court did so in the somewhat unusual context of a liability for unfunded defined pension benefits.

The Discoverability Principle Applies—No Seriously, For Real This Time—to Contract Claims in Alberta

By Kyle Gardiner

On March 15, 2019

In Civil Procedure, Contracts, Limitations

By: Kyle Gardiner

PDF Version: The Discoverability Principle Applies—No Seriously, For Real This Time—to Contract Claims in Alberta

Case Commented On: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII)

Last month, the Alberta Court of Appeal delivered its long-awaited decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII) (Weir-Jones). The decision has been much anticipated largely because it clarified the correct standard of proof for summary judgment applications in Alberta (a balance of probabilities). As a bonus, the decision also provided clarification on another topic in which confusing and contradictory lines of authority had emerged in Alberta: the question of whether the discoverability principle applies when determining limitation periods applicable to breaches of contract in Alberta. Does a plaintiff’s limitation period for a breach of contract claim commence when the breach occurred, or when the plaintiff ought to have discovered that it had a claim?

Pharmacare…Long Overdue

By Lorian Hardcastle

On March 11, 2019

In Health Law

By: Lorian Hardcastle

PDF Version: Pharmacare…Long Overdue

Matter Commented On: Interim report from the Advisory Council on the Implementation of National Pharmacare

Canadian Medicare has traditionally focused on hospital and physician services due, in large part, to the fact that the Canada Health Act, RSC 1985, c C-6, provides for federal/provincial cost-sharing for these services. The exclusion of pharmaceuticals made sense at the inception of Medicare in the 1950s, as there were few effective drugs at the time. However, the ensuing decades have seen a proliferation of new drugs that significantly reduced morbidity and mortality. For example, statins, which lower cholesterol and decrease the risk of heart attack by approximately 25%, came into clinical use in the late 1980s. They are now taken by millions of Canadians and represent the second largest category of pharmaceutical spending (after certain types of cancer drugs). The increasing prevalence and efficacy of pharmaceuticals and their growing costs have led to calls for universal pharmaceutical insurance (referred to as pharmacare).

On Wednesday, the federally-appointed Advisory Council on the Implementation of National Pharmacare released their initial recommendations. Notably, they recommended that “Canadian residents have access to prescription drugs based on medical need, without financial or other barriers to access.” Universal pharmacare would make Canada’s health care system more equitable and prevent needless morbidity and mortality. It would also bring Canada in line with other countries. According to a recent report, “every developed country with a universal health care system provides universal coverage of prescription drugs—except Canada.”

How Should We Assess Transmission Upgrades When They are Requested by the DFO?

Lawyer (In)competence and Family Violence

English Court of Appeal Confirms that an Operator Entitled to be “held neutral”

The Discoverability Principle Applies—No Seriously, For Real This Time—to Contract Claims in Alberta

Pharmacare…Long Overdue