ABLawg - - Page 118

Decision Commented On: National Energy Board, TransCanada Pipelines Limited (TransCanada) Application for Approval of 2018 to 2020 Mainline Tolls RH-001-2018, Reasons for Decision, December 13, 2018

This is the most recent decision in a string of decisions from the National Energy Board (NEB) over the last five years dealing with TransCanada PipeLines (TCPL) as TCPL and the NEB seek to grapple with the dramatic changes that have occurred in North American natural gas markets over this period, and more specifically how these changes pose the risk of stranded assets and as such threaten to affect the viability of one of the NEB’s most important regulated pipelines: TCPL and TCPL’s mainline (or at least elements of that mainline). Perhaps the most dramatic of these changes is the increased availability of shale gas supplies, and specifically shale gas supplies from basins much closer to TCPL’s traditional markets than the Western Canadian Sedimentary Basin (WCSB), TCPL’s main source of gas.

What is interesting about these decisions, including this most recent decision, is the interplay or tension between the NEB’s statutory authority to establish just and reasonable rates and the market-based approaches as reflected in negotiated settlements. While the NEB and other regulators seek to encourage negotiated settlements between the regulated entity and its customers, it is plain from this decision that the regulator retains a power of review. While a regulator may be reluctant to exercise that power given that settlements typically involve some give and take, this decision demonstrates that the regulator will not always defer to the paradigm of settlement and contract if it perceives that the results of the settlement depart significantly from fundamental rate-making principles. While this decision happens to deal with TCPL and the NEB, the same interplay is apparent in any jurisdiction that allows for the possibility that a regulated utility may reach a negotiated settlement with some or all customers rather than going through an adversarial rate hearing.

Bill C-88 Will Finally Eliminate the MVRMA “Superboard” … But Where’s the Rest?

By David V Wright

On January 8, 2019

In Aboriginal, Environmental

By: David V. Wright

PDF Version: Bill C-88 Will Finally Eliminate the MVRMA “Superboard” … But Where’s the Rest?

Bill Commented On: Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts

The Trudeau Government recently tabled Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts. This post focuses on the amendments to the Mackenzie Valley Resource Management Act, SC 1998, c 25 (MVRMA). The primary purpose of this portion of the Bill is to reverse several controversial amendments to the MVRMA. The Harper Government enacted these changes in 2014 as part of a broader suite of reforms to implement devolution in the Northwest Territories (NWT). These amendments sought to reform regulatory review bodies and co-management boards in the NWT by creating a “superboard”; however, the litigation discussed below stymied those plans. This post provides context around Bill C-88, summarizes the superboard litigation, and comments on an unfulfilled government commitment to conduct a broader review of northern assessment regimes.

The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

By Jennifer Koshan

On January 7, 2019

In Constitutional, Criminal, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

ABlawg: Year in Review 2018

By Admin

On December 28, 2018

In Blogs and Websites

By: Admin

PDF Version: ABlawg: Year in Review 2018

2018 was a notable year for ABlawg as we celebrated our tenth anniversary in February. ABlawg also received its first cite by the Supreme Court of Canada, with the Supreme Court citing Nigel Bankes’ post, The Duty to Consult and the Legislative Process: But What About Reconciliation?, in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at para 51. This year also saw ABlawg publish its largest series of posts on a single topic, with 13 posts contributing to the debate on Bills C-68 and C-69 which purport to overhaul the National Energy Board, the federal environmental impact assessment regime, and several other pieces of the federal environmental legislative framework.

Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

By Jonnette Watson Hamilton

On December 21, 2018

In Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

Case Commented On: Makis v Alberta Health Services, 2018 ABQB 976

In many written decisions rendered over the past two years, some judges of the Court of Queen’s Bench of Alberta have been rather disdainful of the vexatious litigant procedures added to the Judicature Act, RSA 2000, c J-2 in 2007, referring to them, for example, as “obsolete and inferior” (Gagnon v Shoppers Drug Mart, 2018 ABQB 888 at para 14). Although the Judicature Act procedures continue to be used in rare cases (e.g. HRMT v SNS, 2018 ABQB 843 at para 102), the Court usually makes it clear that it prefers its own two-step “modern” process – introduced in Hok v Alberta, 2016 ABQB 651 – which they justify as an exercise of a superior court’s inherent jurisdiction. The use of their inherent jurisdiction is said to provide “a more robust, functional, and efficient response to control of problematic litigants” (Templanza v Ford, 2018 ABQB 168 at para 103; Hill v Bundon, 2018 ABQB 506 at para 53). The Judicature Act procedure requires “persistent” bad behavior by a litigant before that litigant’s access to the courts can be restricted (s 23(2)), usually by requiring the litigant to obtain the court’s permission before starting a new court action. The Court of Queen’s Bench does not want to wait for persistent vexatious conduct (Templanza at para 101; 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 49-50). The legislated procedure also requires notice to the Minister of Justice and Solicitor General (s 23.1(1)), who has a right to appear and be heard in person (s. 23.1(3)), a requirement that suggests how seriously our elected representatives saw restrictions on court access when they added the vexatious litigant procedures to the Act in 2007. The court-fashioned process does not usually require notice to anyone except the person about to be found to be a vexatious litigant, and it has become a written-submissions-only process – no one has the right to appear and be heard in person. The usual restrictions on court access are now characterized as a “very modest imposition” (Knutson (Re), 2018 ABQB 858 at para 42). As this brief summary suggests, the changes made to this area of the law over the past two years have been fairly dramatic. But the Court of Queens’ Bench has now pushed the envelope, extending their inherent jurisdiction even further. In Makis v Alberta Health Services, their inherent jurisdiction is used to control access by a litigant found to be vexatious to non-judicial bodies, i.e. administrative tribunals and other statutory decision-makers.

Negotiated Settlements and Just and Reasonable Rates

Bill C-88 Will Finally Eliminate the MVRMA “Superboard” … But Where’s the Rest?

The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

ABlawg: Year in Review 2018

Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body