How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

By: Nigel Bankes

PDF Version: How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

Case Commented On: ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397

In this case the Court of Appeal confirmed that the Alberta Utilities Commission (AUC) has some level of discretion as to the extent to which it allows a regulated utility to recover its prudently incurred legal costs from its customers when that utility participates in hearings called by the AUC to consider generic issues of interest to all regulated utilities and their customers and shareholders. One member of the Court (Justice Peter Martin) thought that the Commission went too far in denying recovery in relation to one set of costs and would have sent that matter back to the Commission.

The decision is interesting because it involves the intersection between an adjudicator’s discretion to allow for the recovery of legal costs and the general principle that a utility ought to have the opportunity to recover all of its prudently incurred operating costs (including the legal costs associated with rate setting) through the tariff approved by the regulator. A decision that recognizes that a utility has prudently incurred certain costs but which then denies the utility even the opportunity to recover those costs will generally be unsupportable: BC Electric Railway Company v Public Utilities Commission, [1960] SCR 837. In this case however there were special considerations and thus while the majority found the Commission’s decision both reasonable and correct, the decision is not likely of broad application – a point that Chief Justice Fraser herself seems to acknowledge at paras 70 – 73. In particular, and notwithstanding other and rather more sweeping statements from the Chief Justice (see, for example para 106, quoted below, and paras 110 – 111), it is not likely that the decision can be applied in the more routine situation in which a utility incurs legal costs as part of preparing and presenting its general rate application (GRA) to the AUC for it to set just and reasonable rates. The AUC may still scrutinize those legal costs on prudence grounds (and see here in particular Justice Martin at para 171) to ensure that the utility is not gold-plating its costs (e.g. where it chooses to retain expensive outside counsel to undertake a task that could be more economically dealt with in-house) but it likely cannot say (even on a reasonableness standard of review) that the legal costs associated with preparing and presenting a GRA are not recoverable.

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Bill 202 v Bill 10: A Battle of the Bills

By: Ronaliz Veron and Sarah Burton

PDF Version: Bill 202 v Bill 10: A Battle of the Bills

Bills Commented On: Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014; Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014

The Alberta Legislature has been the subject of some controversy in recent weeks. On November 20, Liberal MLA Laurie Blakeman introduced Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014. A week later, in an abruptly called press conference, Premier Jim Prentice described Bill 202 as “unnecessarily divisive” and announced that his government would introduce its own bill dealing with the issues raised by Bill 202. On December 1, Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 was introduced by the Progressive Conservatives.  After being subjected to widespread public scrutiny, Bill 10 was amended on December 3, 2014. By the next day, it was clear that the amendment did not quell the rising tide of opposition and on December 4, Premier Prentice announced he was deferring Bill 10’s Third Reading until 2015.

This post will examine the salient parts of both Bill 202 and Bill 10 and their impact on the human rights regime in Alberta. It particularly focuses on the heart of the controversy: how the creation of gay-straight alliances is treated under both Bills.  Serious concerns that remain to be addressed by Bill 10 will also be identified. Given Premier Prentice’s apparent willingness to step back to examine his party’s Bill, we can only hope that these pressing concerns will be addressed in the new year.

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A Revised Aboriginal Consultation Direction issued to the Alberta Energy Regulator

By: Giorilyn Bruno and Nigel Bankes

PDF Version: A Revised Aboriginal Consultation Direction issued to the Alberta Energy Regulator

Direction and Decision Commented On: Energy Ministerial Order 105/2014 /  Environment and Sustainable Resource Development Ministerial Order 53/2014; Prosper Petroleum Ltd., 2014 ABAER 013

On October 31, 2014, the Minister of Energy and the Minister of Environment and Sustainable Resource Development (ESRD) by Order issued a revised Aboriginal Consultation Direction to the Alberta Energy Regulator (AER). The main purpose of this Direction is “to ensure that the AER considers and makes decisions in respect of energy applications in a manner that is consistent with the work of the Government of Alberta” in meeting its consultation obligations associated with the existing rights of Aboriginal people (Direction at 2). This is the second Ministerial Order issued under s. 67 of the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) and it repeals the previous one. In April we posted a blog commenting on the first Order (available here). This post provides an overview of the changes introduced by the new Direction, comments on its scope, and identifies some of the issues that have yet to be addressed.

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National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

By Jennifer Koshan

PDF Version: National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry

Case Commented On: Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)

Yesterday the University of Calgary marked the 25th National Day of Remembrance and Action on Violence Against Women with two events: the annual ceremony held by the Women’s Centre, and our own ceremony in the Faculty of Law. Our event involved strong components of both remembrance and action. We recognized the 20th anniversary of the installation of Teresa Posyniak’s beautiful and haunting sculpture “Lest We Forget” in the Faculty. The sculpture honours women who were killed by men, including Aboriginal women, sex trade workers and the 14 women of L’Ecole Polytechnique. Teresa was present to share her reflections on creating the sculpture, the progress we have made on issues of violence against women over the last 20 years, and the work we still have to do. In terms of action, we also heard from Michelle Robinson, a Yellowknife Dene woman who spoke powerfully about the ongoing colonial violence experienced by indigenous women and indigenous peoples in Canada, and of the actions that we can and must all take to respond to this violence. Dean Ian Holloway stressed the importance of hosting the sculpture in our faculty as a reminder to reflect on the meaning of justice.

That brings me to the case I wish to comment upon in this post. Three years ago, I marked the National Day of Remembrance with an ABlawg post inquiring into whether the federal government’s repeal of the long gun registry was a violation of its obligations concerning violence against women. There has now been litigation on that question, and the applicant Barbra Schlifer Commemorative Clinic was unsuccessful in arguing that the repeal violated sections 7 and 15 of the Charter (Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140 (CanLII)).

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Whose (Pipe)line is it Anyway?

By: Martin Olszynski 

PDF Version: Whose (Pipe)line is it Anyway?

Document Commented On: Quebec’s Letter to TransCanada Corp. Imposing 7 Conditions on Energy East

On November 18th, on the heels of a unanimous vote of non-confidence in the National Energy Board (NEB) by Quebec’s National Assembly, Quebec’s Environment Minister sent a letter to TransCanada outlining seven conditions that the company must meet before the province “accepts” the Quebec portion of the company’s proposed pipeline. Most of the conditions are similar to those stipulated by British Columbia with respect to Enbridge’s Northern Gateway pipeline (e.g. world class emergency and spill response plans, adequate consultation with First Nations) with three notable differences. First, while Quebec insists that the project generate economic benefits for all Quebecers, unlike British Columbia it is not asking for its “fair share” (whatever that meant). Second, because Energy East involves the repurposing of an existing natural gas pipeline, Quebec insists that there be no impact on its natural gas supply. Finally, and the focus of this post, Quebec insists on a full environmental assessment (EA) of the Quebec portion of the pipeline and the upstream greenhouse gas emissions from production outside the province – something that the NEB has consistently refused to assess in its other pipeline reviews. Last week, Ontario joined Quebec in imposing these conditions (see here for the MOU). Premier Kathleen Wynne acknowledged that “Alberta needs to move its resources across the country,” but argued that the two provinces “have to protect people in Ontario and Quebec.” In this post, I consider whether this condition is consistent with the current approach to the regulation of interprovincial pipelines.

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