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TMX Litigation Takes an Unusual Turn at the Federal Court of Appeal

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On October 5, 2019

In Energy, Oil & Gas

By: David V. Wright, Martin Olszynski, and Nigel Bankes

PDF Version: TMX Litigation Takes an Unusual Turn at the Federal Court of Appeal

Case Commented On: Ignace v Canada (Attorney General), 2019 FCA 239 (CanLII)

Last week, the Federal Court of Appeal (FCA) issued another ruling in the TMX saga dealing with the consolidated challenges to the Trans Mountain pipeline expansion (TMX) project. This decision comes just three weeks after Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 (Can LII) (Raincoast), where the FCA granted leave to six parties to commence judicial reviews challenging the Governor in Council’s decision to re-approve the Trans Mountain Expansion (TMX) project. In this most recent decision, Justice David Stratas concluded that two of those six parties, Tsleil Waututh Nation (TWN) and Squamish Nation (Squamish), had filed applications that went beyond the narrow parameters set out in the September 4thcourt order granting leave. Accordingly, the Court issued an order allowing both parties to file amended notices of application that comply with the restrictions in the initial order. In this post, we briefly summarize this latest and fairly unusual development and conclude with a brief comment on what might have led counsel to push the boundaries in this matter.

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The Canadian Energy Regulator Shuts Down the Open Season for Enbridge’s Mainline

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On October 4, 2019

In Energy

By: Nigel Bankes

PDF Version: The Canadian Energy Regulator Shuts Down the Open Season for Enbridge’s Mainline

Decision Commented On: Canadian Energy Regulator, Letter Decision re Suncor Energy Inc. (Suncor), Shell Canada Limited (Shell), The Explorers and Producers Association of Canada (EPAC), and Canadian Natural Resources Limited (CNRL), Complaints regarding Enbridge Pipelines Inc. (Enbridge) Mainline Open Season, 27 September 2019

In what must be one of its first formal decisions, the Commission of the Canadian Energy Regulator (CER) (which replaced the National Energy Board (NEB) as of August 28, 2019) has required Enbridge to shut down the open-season that it was conducting for its mainline. The decision is brief (4 pages) and while it contains many references to the decisions and practice of its predecessor, the decision contains not a single reference to any statutory provision that it may be relying upon as authority to make this order. While I think that the conclusion is sound, I hope that the failure to reference statutory authority does not become common practice for the new regulator. Any decision maker claiming to exercise a statutory authority must satisfy itself that it has the authority to act and it should do so in a transparent and reasoned manner. There was perhaps a particular need to do so in this case since the application was filed under the terms of the National Energy Board Act, RSC 1985, c N-7 (NEBA),but resolved by the CER.

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Discrimination Justified in Elder Advocates of Alberta Society Class Action

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On October 3, 2019

In Constitutional, Equality

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: Discrimination Justified in Elder Advocates of Alberta Society Class Action

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII)

The Alberta Court of Appeal has dismissed the appeal of the Elder Advocates of Alberta Society from the January 2018 judgment of Justice June Ross, which had dismissed their class-action challenging accommodation fees charged to long-term care residents by the province. Accommodation fees cover expenses such as meals, housekeeping, and building maintenance, and currently range from $55.90 per day for a standard shared room to $68.00 per day for a private room. The essence of the class action claim was that long-term care residents are subsidizing their health care costs, something no other users of the Alberta health care system are required to do.

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The Rate Treatment of the Costs of Acquisition of a Utility Distribution System

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On October 2, 2019

In Energy

By: Nigel Bankes

PDF Version: The Rate Treatment of the Costs of Acquisition of a Utility Distribution System

Decision Commented On: AUC Decision 24405-D01-2019, Generic Proceeding to Review Rate Treatment of Distribution System Acquisition Costs Under Performance-Based Regulation, September 6, 2019

From time to time utility distribution systems change hands. In particular, in recent years we have seen investor owned distribution utilities purchasing municipally owned distribution systems and distribution systems owned by rural electrification associations (REAs) and gas co-operatives. The AUC convened this Generic Proceeding through Bulletin 2019-03 of March 12, 2019 to consider the rate treatment of the acquisition costs of a utility within the context of performance based regulation (PBR).

This post begins with brief summaries of PBR and the regulation of distribution systems. It then turns to examine the list of issues identified by the AUC in this proceeding.

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The 2018/2019 Year in Access to Justice Issues on ABlawg

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On September 30, 2019

In Access to Justice

By: Drew Yewchuk

PDF Version: The 2018/2019 Year in Access to Justice Issues on ABlawg

The Canadian Bar Association’s Access to Justice Week in Alberta runs from September 28-October 5, 2019. This annual event is meant to highlight the ongoing inequality in access to legal services and legal dispute resolution mechanisms in Canada. Many Canadians are unable to protect their rights and interests in our legal system. This means those on the lower economic rungs are subject to the law but rarely protected by it – a black mark on the rule of law in Canada. The full list of events can be accessed at the website here.

This is a summary of ABlawg posts dealing with access to justice issues from September 2018 to September 2019. These posts covered important issues on access to justice issues, and I start by following up on the four indicator issues discussed in my post from last year.

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