ABLawg - - Page 241

Alberta Utilities Commission Approves the Proposed Sale of AltaLink’s Transmission Assets to the Berkshire Hathaway Group

On December 1, 2014

By: Nigel Bankes

PDF Version: Alberta Utilities Commission Approves the Proposed Sale of AltaLink’s Transmission Assets to the Berkshire Hathaway Group

Decision Commented On: AUC Decision 2014-326, AltaLink Investment Management Ltd. and SNC Lavalin Transmission Ltd et al, November 28, 2014

AltaLink owns significant transmission assets in Alberta. AltaLink in turn is owned by SNC Lavalin. SNC Lavalin wanted to divest itself of these assets and found a wiling purchaser in the form of the US based Berkshire Hathaway Group. The transaction however requires the approval of federal foreign investment and competition authorities (already in place) and of the Alberta Utilities Commission (AUC).

The AUC ‘s approval is required under the terms of s.102 of the Public Utilities Act, RSA 2000, c. P-45 (PUA) which provides as follows:

Unless authorized to do so by an order of the Commission, the owner of a public utility designated under section 101(1) shall not sell or make or permit to be made on its books a transfer of any share of its capital stock to a corporation, however incorporated, if the sale or transfer, in itself or in connection with previous sales or transfers, would result in the vesting in that corporation of more than 50% of the outstanding capital stock of the owner of the public utility.

Alberta Releases the Carbon Capture and Storage Quantification Protocol for Public Comment

By Nigel Bankes

On November 28, 2014

In Carbon Capture and Storage

By: Nigel Bankes

PDF Version: Alberta Releases the Carbon Capture and Storage Quantification Protocol for Public Comment

Document Commented On: Quantification Protocol for CO₂ Capture and Permanent Storage in Deep Saline Aquifers, Version: DRAFT for public comment, November 2014 and associated commentary on changes made from the version released for technical review

The Government of Alberta (GoA) continues to make progress in putting together the legal and regulatory framework for commercial scale carbon capture and storage (CCS) projects in the province. Such a legal and regulatory framework needs to address four types of issues: (1) property issues including the ownership of pore space and a scheme for leasing or disposing of rights to pore space; (2) regulatory or permitting rules for reviewing the merits of particular projects and to establish the terms and conditions under which projects might proceed; (3) liability issues; and (4) greenhouse gas (GHG) accounting issues to ensure that CCS projects are fully integrated into regulatory approaches for managing greenhouse gas emissions – in the case of Alberta this means integrating CCS projects into the Specified Gas Emitter Regulation, Alta Reg 139/2007 (SGER).

The key elements of the province’s framework to date (with links to previous posts on the topic), are as follows:

Unified Family Courts: An Established Mechanism for Improving Access to Justice

By John-Paul Boyd

On November 26, 2014

In Access to Justice, Family

By: John-Paul Boyd

PDF Version: Unified Family Courts: An Established Mechanism for Improving Access to Justice

Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.

One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.

Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

By Jennifer Koshan

On November 24, 2014

In Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

Case Commented On: Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC)

We recently posted a paper on SSRN that is forthcoming in the Review of Constitutional Studies, dealing with the Supreme Court of Canada’s approach to adverse effects discrimination under section 15(1) of the Charter. Adverse effects discrimination occurs when laws that are neutral on their face have a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination. Although the Court has recognized adverse effects discrimination as key to the Charter’s guarantee of substantive equality, it has decided only 8 such cases out of a total of 66 section 15(1) decisions released since 1989, none since 2009. Only 2 of the 8 claims were successful (see Appendix I in our paper). Our analysis shows several obstacles for adverse effects discrimination claims, including burdensome evidentiary and causation requirements, courts’ acceptance of government arguments about the “neutrality” of policy choices, narrow focusing on prejudice and stereotyping as the only harms of discrimination, and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the group making the claim.

In light of the very small number of successful adverse effects claims and the problems in the case law, it is interesting to note that in October 2014 the Supreme Court heard 2 section 15(1) appeals involving adverse effects discrimination: Carter v Canada (Attorney General) and Taypotat v Taypotat, 2012 FC 1036, 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC). This post will focus on Carter, a challenge to the ban on assisted suicide under the Criminal Code, RSC 1985, c C-46, and the adverse effects discrimination arguments the Supreme Court is considering in that case. We acknowledge that the Court is far more likely to decide Carter on section 7 grounds—much of the Court’s focus during oral arguments was on whether the ban violates the rights to life and security of the person in ways that are arbitrary, overbroad or grossly disproportionate, contrary to the principles of fundamental justice (see Webcast of the Carter Hearing, October 15, 2014). Nevertheless, Carter raises important equality issues as well.

Supreme Court of Canada grants Leave to Appeal in Daniels

By Admin

On November 21, 2014

In Aboriginal, Constitutional

Case commented on: Harry Daniels et al. v. Her Majesty the Queen as represented by The Minister of Indian Affairs and Northern Development et al, 2013 FC 6, varied 2014 FCA 101; leave granted November 20, 2014 (SCC) (35945)

Yesterday the Supreme Court of Canada (Chief Justice McLachlin and Justices Cromwell and Wagner) agreed to hear Daniels, a case that raises the issue of whether Métis and non-status Indians fall within the scope of federal powers under section 91(24) of the Constitution Act 1867. For an ABlawg comment on the Federal Court and Federal Court of Appeal decisions, see here.

The panel’s decision reads as follows:

The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal is granted. The application for leave to appeal is granted with costs in any event of the cause. The application for leave to cross-appeal is granted. A party having intervened in the Federal Court of Appeal and wishing to intervene before this Court shall seek leave to intervene.